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A. This article will focus on those procedures which may lead to false allegations of sexual abuse. By focusing on false allegations, I will be emphasizing what I believe are the weaknesses in the present system of identifying sexual abuse in children. My personal opinion is that the vast majority of sexual abuse allegations are true and that the dedication of the experts that I am critical of in this article has resulted in the conviction of sex offenders who might otherwise have gone free to abuse other children. So much deserved praise has been given these experts that I do not feel the need to say more. However, there has been so little deserved criticism of these experts that I do feel the need to criticize those procedures that can lead to false accusations of sexual abuse. False accusations can be devastating both to the innocently accused and to the child incorrectly diagnosed as a sexual abuse victim.

B. Wakefield and Underwager have recently written a book which is the most exhaustive study of accusations of child sexual abuse which I have found. The following excerpts from that book clearly define some of the issues I will discuss:

"Prior to the first official contact, the parents, if they suspect abuse or have been informed that abuse was reported, will question the child . . . Retrospective description of this first interrogation begins when the investigating official first talks to the reporting adult and gets the information that led to the report. If the investigating official has the bias that children must always be believed and that all accusations are true, the initial contact with the child will be based upon the prior assumption that the alleged abuse really happened. This bias markedly affects the outcome of the investigation.

. . . Social workers, police and physicians often make their initial decision that alleged abuse is fact on the basis of a history from the reporting adult before talking to the child at all . . Once that subjective initial decision by the investigator has been made, subsequent investigation seeks affirmation rather than facts . . . The stronger and more certain the beliefs of the interrogator are about the event being investigated the stronger and more powerful the bias will be.

. . . Dent investigated the effect of the interviewer's background and preconceptions. She found that when the interviewer held a strong preconceived impression of what had happened, this led to the phrasing of highly suggestive questions, and a lack of receptiveness to relevant information that did not fit into the preconceived version. The result was that the main determinant for obtaining accurate accounts was whether or not the interviewer had a preconceived notion of what happened.

. . . In any situation where it is evident that (1) a professional very quickly reached a decision that abuse had occurred; (2) the decision was made on the basis of limited data; and (3) disconfirming data was ignored and no alternative options were examined, the probability of a false positive (allegation) is increased." (1)

A vicious circle may develop. The police and DFS workers have learned which hospital has a bias towards finding evidence that children have been sexually abused. The child is referred to that hospital. The professionals in that hospital may reach a decision that abuse has occurred and they may reach that decision on the basis of limited data. Disconfirming data may be ignored and alternative options might not be examined. The professionals at the hospital advise the police, DFS workers and parents that based upon their examination of the child they believe the child has been sexually abused. This finding strengthens the bias of subsequent interviewers. The hospital personnel or DFS workers refer the child to a therapist who has the same bias. In my experience, the therapist does not do an assessment to determine if in fact the child has been sexually abused because the professionals at the hospital have already reached this conclusion. Therapy sessions with the child are highly suggestive because the therapist assumes the child has been sexually abused and, if the child continues to deny abuse, the therapist exerts more pressure on the child to disclose.

If the child continues to deny abuse, more therapy sessions are necessary to get the child to open up and express anger against the abuser. Ultimately, the child admits the abuse and this admission is then used to validate the professionals and therapist's initial conclusion that the child had been abused.

The police and DFS workers tell the parent or parents that this hospital's experts are the best in the field and are not mistaken in their diagnosis. The hospital recommends an "excellent" therapist (in my experience the therapist recommended is not a psychologist or psychiatrist) and the therapist advises the parent or parents that the experts at the hospital could not be incorrect in their diagnosis. No one in this "circle" will criticize or question the methods and opinions of the others in the circle.

If the child is referred to someone outside this circle, either a doctor or psychologist, and if that doctor or psychologist does an unbiased, independent assessment of the medical or psychological evidence, any weaknesses in the initial assessment of sexual abuse can be exposed. The earlier an unbiased doctor or psychologist is involved in the assessment process the less likely the chances are that all subsequent interviews will have the built-in bias.

To demonstrate my opinion that professionals and experts in our metropolitan area are sometimes diagnosing sexual abuse on the basis of limited and sometimes incorrect data and they are ignoring disconfirming data and not examining alternative options, I will use as examples testimony from the doctor who is considered by many in our area to be the leading authority on diagnosing sexual abuse. If the leading authority in our area is sometimes diagnosing sexual abuse on the basis of limited data and not examining alternative options, then it is likely that less experienced and less qualified experts are doing the same. The likelihood of this occurring in less-qualified experts is even greater since this "leading authority" is training the less-qualified doctors.

The "expert" in St. Louis has testified that he considers three factors when he makes a "diagnosis" of sexual abuse. Those factors are:

A. What the Child Reports

B. The Medical Findings

C. The Psychological Changes or Behavioral

Indicators of Sexual Abuse

II. What the Child Reports

A. In criminal cases you often do not have an opportunity to hear firsthand what the child is reporting until the preliminary hearing or in depositions after your client has been indicted. At this point, the child has often been subjected to numerous interviews by relatives, DFS workers, police officers, nurses at SAM clinics, therapist, etc. If these previous interviews were not videotaped or at least tape recorded, it is very difficult to prove that the child's allegations are the result of influences and suggestions made in the interviews. Since it is my belief that this is such an important part of distinguishing false allegations from true allegations, I want to spend some time discussing this point.

There is substantial psychological evidence in the psychological literature that if a young child is asked a leading or suggestive question the child may give an affirmative response to the answer even though the correct response is negative because (1) the child believes from the way the question is phrased the correct answer is an affirmative response, or (2) because the child believes the interviewer wants an affirmative response and the child wants to please the interviewer or (3) for other reasons (1, 2, 3). Even if the child gives the correct negative response to a question that is leading or suggestive, the child may later report those suggestions made in the questions as facts. The psychological studies report that the suggestions made

in the question distort the child's memory and the child later remembers what was suggested in the question and the child's memory for what actually occurred or did not occur is lost (1, 4). Not only is there substantial psychological studies to support these findings, but the two most comprehensive law enforcement studies into false allegations of sexual abuse also support this finding (5, 6).

It is important for lawyers to understand how little suggestion is required to effect the reliability of the child's response. Lawyers and others involved in the interrogation of young children must be aware of the suggestibility of young children. For example, as reported by Dale, Loftus, and Rathbun (7), the use of the word "the" as opposed to "a" can effect the reliability of the child's answer. These psychologists investigated the effect of the form of questions on the memory of preschoolers after they had viewed films. They found that the syntax of the question had no effect if the question concerned something which was actually present in the film. However, if the object was not present in the film, children were more likely to answer "yes" incorrectly when questions were worded as follows:

1. "Did you see the . . . ?"

2. "Did you see any . . . ?"

3. "Didn't you see some . . . ?"

This same study found that the question is less likely to induce a false positive response if the following question is asked?

4. "Did you see a . . . ?"



As noted in Wakefield and Underwager's book, leading questions not only elicit information but also provide it. When one asks, "Did you see the broken headlight?", one is essentially stating, "There was a broken headlight. Did you happen to see it?" (1) Some other forms of leading or suggestive questions that can contaminate or distort the child's account of the alleged abuse are set forth in Appendix A.

If the child has been questioned, it is likely that the child has been subjected to such leading and suggestive questioning. In the interviews of 15-20 children in cases that I have been involved in, the interviews by the police, DFS workers, nurses and therapist are much more leading and suggestive than the questions referred to above. However, I have yet to find a police officer, DFS worker or nurse who will admit that they asked a leading or suggestive question. In Appendix B, I have set forth a portion of an interview by a therapist and in Appendix C a portion of an interview by two police officers. In both of these interviews, the interviewers suggest answers to the child. However, the

therapist and police testified they did not suggest answers.

If the interviews in Appendix B and C had not been videotaped or tape recorded, the police officers' and therapist's testimony which was a totally inaccurate account of the interview would not have been refuted. Wakefield and Underwager's review of over 100 taped interviews of children found that this is a common misleading behavior of interviewers. They explained this behavior as follows:

"Frequently interviewers introduce a statement, a topic, a question, to which the child either gives no response, a denial or a minimal response. After repeated questioning, the child may nod or answer yes. But in the report of the interview, the interviewer claims that the child said the statement rather than only affirming the interviewer's statement. Also, denials which may have preceded the eventual affirmation are seldom mentioned.

When tapes of interrogations are examined, children often do not say what the interviewer reported they said. A false description by the adult interrogator may be either a deliberate misrepresentation or a misperception. In view of what is known about interviewer bias, it is more likely that the prior beliefs and bias of the interrogator lead to the false statement rather than a deliberate choice to mislead.

The most likely interpretation of this discrepancy is that the bias and belief of the interviewer that the child was abused created a situation of cognitive dissonance when the child denied it. For the child to deny that daddy did it, when the interviewer believes that daddy did it, doesn't fit. Cognitive dissonance theory then predicts what happens in this situation. The interviewer reduces the dissonance by misperceiving the reality.

Interviewers also may reduce dissonance by explaining the denial in a way that enables them to maintain the belief that daddy did it. There are three explanations interviewers use when the child denies or refuses to admit that abuse happened. They are (1) the child is scared by some threat; (2) the child is frightened or ashamed and it is hard to talk about it; and (3) the child has a secret too scary to tell. When a child does not produce the desired response affirming abuse but denies it, interviewers may use one or all of these explanations. They repeat the question and the putative explanation for the `wrong' answer until the child finally catches on to what is wanted. The child gives the desired response, and then gets social reenforcement for producing the `right' answer. In this manner the child is taught to produce the explanations for the initial denial of abuse." (1)

As a consequence of knowing that (1) the interviewers are going to ask leading and suggestive questions; (2) the interviewers are going to denythat they asked leading and suggestive questions; (3) the interviewers will inaccurately report what the child reports; and (4) the suggestions made in the questions will distort the child's memory and the child may report those suggestions as fact, I always file a motion with the court requesting that all interviews of the child be videotaped. When there is a case in juvenile court, I have been successful in convincing the juvenile judge to order that no one -- police, DFS workers, therapist, etc., can interview the child unless that interview is videotaped or tape recorded. I argue that the best interests of the child require that all interviews be videotaped because (1) if the interview is videotaped and properly conducted that videotape can be used in court instead of the child's live testimony; and (2) the videotape will show if leading and suggestive questions which distort the child's memory are being used by the interviewer. False allegations resulting from improper interviewing techniques can be as psychologically damaging to a child as actual abuse. (1)

Many therapists, prosecutors and DFS workers refuse to acknowledge that children will report an allegation of sexual abuse as a result of leading and suggestive questioning. However, in my experience, jurors are very receptive to the idea that a young child can be led into believing he or she has been sexually abused by improper and repeated interviews. In many criminal trials, the jury has to consider two options as to each witness: (1) the witness is telling the truth or (2) the witness is lying. If you are going to be successful in defending your client from false allegations of sexual abuse, you have to give the jury a third option: (3) the child may be neither lying nor telling the truth. The child may say what he or she believes is true, even though it is not the truth. A psychiatrist, Dr. Lee Coleman, writes:

"At first blush, this seems a rather unlikely possibility, to say the least. A child believes in sexual abuse which has not taken place. I would certainly be skeptical of such an idea if I hadn't had a chance to see how children are being manipulated by adult interviewers -- sometimes by a police officer or protective service worker, sometimes by a mental health professional -- who have been trained to believe that those who really care and are sufficiently skilled at their work will help the child talk about sexual abuse." (8)

In order to educate the jury on the substantial evidence that exists that a child can believe he or she was sexually abused as a result of the interviewing process, I would recommend that you call an expert (I have used both psychiatrists and psychologists) to testify how leading and suggestive questions can distort a child's memory and how what the child is now reporting was first suggested by the interviewer and not the child. I would also recommend that through discovery you question every person that questioned the child and you attempt to show what questions were asked in each interview. By then demonstrating to the jury.

(I do this by printing the leading and suggestive questions on a large chart) that what the child is now reporting was first suggested by an interviewer, reasonable doubt may be established. (See Appendix D for a detailed explanation of how this was demonstrated in one case.)

Of course, probably the most effective way to demonstrate to a jury that a young child can be led to make false allegations of sexual abuse is to lead the child into making false allegations when you question that child. If you have evidence that a particular child has been subjected to interviews where leading and suggestive questions were asked and the child has incorporated the misleading information supplied in the questions into his account of the allegations of abuse, you may want to use the same type of questioning technique to demonstrate that fact. If an attorney takes the time to learn what type of questions are most likely to lead to false allegations and what type of interviewing techniques are most likely to lead to false allegations, the attorney can elicit false allegations from the child.

In one case I was involved in, seven four year old boys had allegedly been sexually abused by a man. According to the parents of three of the seven boys, their children indicated that numerous other people were also involved in sexually abusing them. In this case, the therapist and other experts testified at the preliminary hearing that children are not capable of making false allegations of sexual abuse and that it is absurd to believe that a child would make a false allegation of sexual abuse as a result of leading and suggestive questions. Since the State was introducing the hearsay testimony of these children and did not intend to call the children at the preliminary hearing, I had subpoenaed the children as witnesses so that I could question them and demonstrate that these children were capable of making false allegations if they were subjected to leading and suggestive questions. I agreed I would only call three of the children at the preliminary hearing and that their testimony would be taken outside of the courtroom setting on videotape. I carefully prepared a set of questions for each of the three children. I made certain that I did not use any interviewing technique that was any more suggestive or leading than the interviewing technique used by the nurse at the hospital where these children were interviewed. By using questions that were less leading and suggestive than those questions previously asked these three children, I was able to elicit from these three children the following false allegations:

1. Each of the three children positively identified the assistant prosecutor who filed the charges as either sexually abusing them or being present when my client sexually abused them. One of the three recanted that testimony while the other two on cross-examination by the prosecutor refused to recant that testimony despite the leading and suggestive questioning by the prosecutor. These three children identified the assistant prosecutor from a photographic display that I showed to them.

2. Of the three children, one positively identified the chief of police's home as the place where the sexual abuse occurred while another positively identified the investigating detective's home as the place where the abuse occurred. The child that identified the chief of police's home as the place where the abuse occurred also selected from the photographic display the chief of police's picture as a picture of a person who was present when the abuse occurred.

3. One child identified a Missouri Supreme Court judge and a doctor on the Missouri Arts Council as the man and woman who he and two other four year old boys "killed" in the presence of my client. He testified both on direct and cross-examination that he was positive that this man and woman he had identified were the same man and woman that were killed. This child had previously advised his mother that he and two other four year old boys were with my client when they went over to a house. This child told his mother that when they were at the house, he and the other two four year old boys climbed upon the roof of the house while my client remained inside the house. While on the roof of the house, a man and a woman walked by the house and the boys pushed a ladder onto that man and woman, striking them on the head. They then climbed down and my client came out of the house and assisted them in tying the hands and feet of this man and woman. The child had told his mother that the man and woman were dead and my client and the three four year old boys dragged them to the trunk of my client's car, put them in the trunk and then took their bodies to another house. On cross-examination, the prosecutor could not get the child to change his mind that this occurred at the house identified as the chief of police's home and that the man and woman involved in this incident were a Missouri Supreme Court judge and a doctor on the Missouri Arts Council. (By the way, the judge and the doctor are still alive and well.)

4. One child selected the photograph of a movie actress and testified that that actress and my client engaged in sexual activities in the child's presence.

The false allegations in this case did not stop after my interview of these three boys. According to the mother of one of the boys, her son had indicated that there were over 40 adults involved in his abuse. This boy recognized one of these people when he was at Dierberg's. The allegations he made against a man he saw at Dierberg's, who had no connection to my client, included the following: that man took him to his house and made him type the letter "g" on his typewriter all day; that man made him catch beautiful butterflies; that man tied women up and made the child kiss their breasts. This boy had driven through town and identified four different houses as places where he had been sexually abused. None of these people were charged with any offenses.

When one of the therapists in the case decided that there most be some ritualistic or satanic abuse involved in the case, the allegations then became allegations of mutilation of animals, torture of children, groups of Chinese chanting and taking drugs, people dressing up as bears, etc. According to one child, my client, his wife, his two children, his mother and at least 40 other people were involved in this ritualistic abuse.

When I deposed some of the other children, one boy testified that my client took a large needle approximately a foot long, stuck it in one of the child's ears, through his head, and it came out the child's other ear and that he stuck a needle through the top of the child's head and it came out through the bottom of his chin. One child testified that my client took him to Grant's Farm and threw him in a snake pit. He testified that he was bitten by five to ten snakes and was saved by the zookeeper. Another child testified that my client had a friendly blue monster that was approximately a foot tall and it was alive, had three eyes and it talked to him. The child testified that when the child snapped his finger, the blue monster turned into a statue and when he snapped his finger again it turned back into a live blue monster. He indicated that this blue monster stayed over at my client's house and when the child went to my client's house, he and the blue monster and other boys would go into the back yard of my client's house and the blue monster would play freeze tag with the boys. The child said the blue monster talked to him and drove him around town.

For over a year, I tried to convince the prosecuting attorney's office that these children were making these allegations as a result of the leading and suggestive questions used by their parents and therapists. It was only after the prosecutor sent all police reports, parents' statements and therapists' reports to an FBI expert, a psychologist in New Jersey and a psychologist in Atlanta that the prosecutor finally believed that the leading and suggestive questions of the parents and therapists had distorted these children's memories. The State's own national experts concluded that these children were in fact making false allegations and that those false allegations resulted from the parents, police and therapists' interviewing techniques. (The State's local experts still refuse to admit this occurred.)

B.

" . . . Faced with such problems, police and child protection workers naturally hope for a way to resolve these special difficulties which may protect the child molester in one case and falsely accuse an innocent person in another.

Not for the first time and undoubtedly not for the last, we have turned to doctors to relieve us of the uncertainty. And so

great has been our desire for resolution, for "science" to come to the rescue, that we have been only too happy to accept whatever the doctors have offered. With few exceptions little thought has been given to whether the doctors' offerings are legitimate medical evidence, or something else." (9)

 

 

 

 

III. Medical Findings

A. In nearly every metropolitan area "law enforcement and child protection workers quickly learn which examiners are more likely to make findings supportive of an allegation of molest. Most often those examiners are attached to a `sex abuse team'" (9). Likewise, in the St. Louis metropolitan area, the police and Division of Family Services workers have learned which sex abuse team is more likely to make findings supportive of an allegation of molest.

B. The most important motion an attorney can file when faced with medical findings consistent with sexual abuse is to attempt to have the child examined by another doctor. It is not unusual for one expert to examine a child and report physical findings of molestation and another expert to examine the same child and find none (9, 12).

In a criminal case, no Missouri statute or rule authorizes a trial court to order a physical or mental examination of a prosecution witness and appellate courts have upheld trial courts' refusals to order mental examinations. State v. Clark, 711 S.W.2d 885 (Mo. App. E.D. 1986); State v. Wallace, 745 S.W.2d 233 (Mo. App. E.D. 1987). However, in State v. Johnson, 714 S.W.2d 752 (Mo. App. W.D. 1986), the Western District disagreed with the Eastern District's ruling in State v. Clark that a trial court never has authority to order a mental examination of a prosecution witness. The Johnson case suggests that Missouri trial courts have authority to order such an examination ("We note only that the thoughtfully wrought decisions of virtually all jurisdictions which have considered the essential question recognize just such a discretion in a trial court to protect the integrity of the fact-finding in a criminal case -- the want of a rule or statute notwithstanding.") State v. Johnson, supra at 758 fn. 6. The same analysis should apply to a physical examination. (See State v. Johnson at 757-8 for a discussion of cases from other states).

Missouri Supreme Court Rule 60.01(a) allows a court in a civil case to order a party, or a person in the custody or under the legal control of a party, to submit to physical or mental examinations. Consequently if a juvenile court proceeding or domestic relations case is pending that involves the child a physical examination can be ordered.

C. To date, there are only two studies which report the incidence of various genital and anal findings in normal non- abused children. Both of these studies are considered authoritative studies and are very useful in cross examining experts who claim they have found evidence of sexual abuse. If lawyers become familiar with these two studies, they can demonstrate to judges and juries that "experts" are reporting as "findings of sexual abuse" findings which commonly occur in children who have not been sexually abused. The two studies that report what findings occur in the genital and anal area of young children who have not been sexually abused are: (1) Emans, Woods, Flag, Freeman, "Genital Findings in Sexually Abused, Symptomatic and Asymptomatic Girls." Pediatrics, V. 79, No. 5, May 1987 and (2) A study done by Dr. McCann, Dr. Voris and Dr. Simon which is not in print yet but which was presented at a meeting in St. Diego in January, 1988 sponsored by the Center for Child Protection of San Diego Children's Hospital. Dr. McCann's findings as presented at that meeting are contained on audio cassette tapes and will soon be published (11).

Dr. Lee Coleman has recently written an article entitled "Medical Examination for Sexual Abuse: Are We Being Told the Truth?" In that article he summarizes some of the findings of the Emans and McCann studies:

"Emans, et al.attempted to compare three groups of girls: abused (Group 1), asymptomatic and non-abused (Group 2) and symptomatic and non-abused (Group 3). This study has serious flaws. The examiners were not blind to which category each girl belonged; no information is given on how certain it was that alleged molest victims were true victims; and examiners were not randomly assigned. Instead, the lead author was the exclusive examiner of girls assumed to be molested.

Nonetheless, the authors deserve credit for at least addressing what has been ignored by so many others. They concluded from their literature search, just as I have from my own, that `no previous study has reported the incidence of various genital findings in girls . . .'

Presence or absence of 20 genital findings were recorded on each child. These included hymenal clefts, hymenal bumps, synechiae (tissue bands), labial adhesions, increased vascularity and erythema (redness), scarring, friability (easy bleeding), rounding of hymenal border, abrasions, anal tags, anal fissures, condyloma accuminata (venereal warts). These are the kinds of findings which are being attributed to sexual abuse in courts across the land, despite their having been `no previous study.'

Their findings: `the genital findings in Groups I and III were remarkably similar . . . there was no difference between Groups I and III in the occurrence of friability, scars, attenuation of the hymen, rounding of the hymen, bumps, clefts, or synechiae to the vagina.' These findings, in other words, are not specific to molest.

Emans, et al. do claim that only the abused group showed hymenal tears and intravaginal synechiae. Doubts about this, however, are raised by the results of the only other research effort done so far. It is not yet in print, but Dr. John McCann has recently discussed the findings. McCann, Voris and Simon have taken a different approach from Emans group. They have taken on the very necessary task of trying to establish the range of anogenital anatomy in normal children. Without such data, the `findings' so regularly attributed to molest are essentially meaningless. That there are as yet no published data on this is itself highly significant.

At a meeting in San Diego in January, 1988, sponsored by the Center for Child Protection of the St. Diego Children's Hospital, McCann reported on this research. Three hundred pre-pubertal children were examined, and it was found that many of the things currently being attributed to molest are present in normal children. Here are some conclusions:

- - vaginal opening size varies widely in the same child, depending on how much traction is applied and the position of the child. Knee-high chest position leads to different results from frog position.

- - 50% of the girls had what McCann calls bands around the urethra. He has heard these described as scars indicative of molest. So have I.

- - 50% of the girls had small (less than 2 mm) labial adhesions when examined with magnification (colposcope). Twenty-five percent had larger adhesions visible with the naked eye.

- - Only 25% of hymens are smooth and contour. Half are redundant, and a high percentage are irregular.

- - What are often called clefts in the hymen, and attributed to molest, were present in 50% of the girls.

- - `We were struck with the fact that we couldn't find a normal (hymen). It took us three years before we found a normal of what we had in our own minds as a preconceived normal . . . You see a lot of variation in this area just like any other part of the body . . . We need a lot more information about kids . . . We found a wide variety . . .'

- - ` . . . in the literature, they talk about . . . intravaginal

synechiae and it turns out that . . . we saw them everywhere . . we couldn't find one that we couldn't find those ridges.'

- - When does normal asymmetry become a cleft? I don't know.'

Anal examination were equally revealing of a good more variation among normal children than the `experts' have so far been recognizing.

- - 35% of children had perianal pigmentation.

- - 40% had perianal redness. The younger the age group, the more likely this finding.

- - One-third of the children showed anal dilatation less than 30 seconds after being positioned for the examination.

- - Intermittent dilatation, said by Hobbs and Wynne to be clear evidence of molest, was found in two-thirds of the children.

Recall that Emans found that while abused (by `history' at least) girls were remarkably similar to non-abused but symptomatic (infections, rashes, etc.) girls, hymenal tears and intravaginal synechiae were said to be found only in the abused group. We now see the McCann's group finds that it cannot be sure what is a tear and what is a normal asymmetry, and that they `saw intravaginal synechiae everywhere.'

What little research exists, then, shows that a small group of self-appointed `experts,' given credibility by an all- two-eager law enforcement and child protection bureaucracy, has misled the courts, falsely `diagnosed' sexual abuse, and damaged the lives of countless non-abused children and falsely accused adults." (9)

D. Have the "experts" in our metropolitan area reported findings which occur in non-abused normal children as proof that a child has been sexually abused? The answer is a definite yes. To illustrate, I will take testimony from the "expert" in our metropolitan area and compare it to the recent studies referred to above. The medical finding that I will use as an illustration is an anal tag. An anal tag is defined "as a mound of skin on the anal verge which may be associated with or have resulted from a fissure." (12)

The following testimony was given by the prosecution's "expert" at a preliminary hearing:

Q: What physical findings must be present before you can specifically conclude based solely upon the physical findings that the child has been sexually abused as regards the anus?

A. Tags and tears. Dilation. And these children, the history becomes very pertinent and your behavioral indicators. You need to show dilation, and I think -- you should ideally if at all possible, dilation and tears and tags and funneling. They are all physical findings.

Q. What I'm asking you is, is based solely on physical findings what do you have to observe before you can conclude positively that that child has been sexually abused through anal intercourse?

A. Any of the things I mentioned.

(Objection made and overruled.)

Q. What physical evidence must you have, or must any pediatrician or expert in this field have before they can conclude based solely upon the physical finding that the child has definitely been anally penetrated?

A. Nothing else.

Q. With nothing else --

A. After a kid's physical exam?

Q. Yes.

A. And I had no other input but that physical exam, if I saw a tear or a tag I would say this child would be very likely to have been sexually abused, getting some history, getting some --

Q. But you're still not answering my question --

FY">A. But I have answered your question.

Q. My question is what physical findings must you see before you can conclude positively that this child has been anally penetrated not knowing any other behavioral indicators or background?

A. Dilation.

Q. Let me stop you there.

(At this point the expert testifies on the significance of dilation of the anus. According to McCann's study, dilation can be a normal finding in children who have not been abused. Since I am only discussing anal tags, I will not discuss this any further).

Q. Other than dilation what other physical findings must you see for you to determine that without a doubt this child has been anally penetrated if you have no history or no background on the

child or any behavioral indicators?

(Objection made and overruled).

Q. Other than dilation is there anything else as far as physical findings where you can look at the anus of a child and determine based solely upon the physical findings that that child has been anally penetrated?

A. Yes. Tags.

Q. And how many tags do you have to find before --

A. One is sufficient.

Q. So when you find one tag you can conclude that that child without a doubt has been anally penetrated.

A. Yes.

According to this expert's testimony, he can make a positive diagnosis of sexual abuse without obtaining any history on that child if he observes one anal tag. According to the two studies of "normals," this is not possible because anal tags are found in "normal" non-abused children (10, 11).

In the Emans study, the percentage of anal tags found in sexually abused girls did not differ significantly from the percentage of anal skin tags seen in girls with other genital complaints. The Emans article notes that some children are born with anal skin tags. (Yet the "expert" above can see a tag and without a history conclude the child has been sexually abused). According to Emans, "anal tags were seen in all groups; when known congenital tags were specifically excluded, group 1 (sexually abused girls) was slightly more likely than group 2 (normal girls with no genital complaints) to have tags."

Similarly, the McCann study found that normal children have anal skin tags (13).

A comprehensive study of the significance of medical findings of sexual abuse in young children in England had the following to say about the significance of finding anal tags: "They (anal skin tags) would not appear in themselves to be grounds for suspicion" (12).

According to the testimony of the expert in St. Louis, not only are they grounds for suspicion but anal tags can be diagnostic of sexual abuse. I have been unable to find any source that agrees with the St. Louis expert.

I never got the opportunity to impeach this expert at trial with the above materials because the charges against my client were dismissed just before trial. However, in depositions, this "expert" retreated from his original claim that observing an anal tag is proof of sexual abuse. In my experience with the expert, I have seen him attribute numerous other "normal" anal and vaginal findings as being consistent with sexual abuse.

with the above materials because the charges against my client were dismissed just before trial. However, in depositions, this "expert" retreated from his original claim that observing an anal tag is proof of sexual abuse. In my experience with the expert, I have seen him attribute other "normal" anal and vaginal findings to sexual abuse.

E. Differential Diagnosis: Those experts who find evidence of sexual abuse more often than other experts often do not consider alternative causes of a particular finding. It is important for a defense attorney to show that the finding that the expert is relying on to conclude that this child has been sexually abused could have been the result of causes other than sexual abuse. If the defense attorney can show that the particular finding could be the result of causes other than sexual abuse, you may be able to establish reasonable doubt. If the expert is one used by the prosecution, that expert may not admit that the finding has many causes.

How do you get the State's expert to admit that the finding has many causes? Again, I will illustrate this through testimony in a case I handled. This testimony occurred at a preliminary hearing where I cross-examined the State's expert:

 

Finding: Small scars and dimples on child's anus.

Testimony: Isn't is true that passing large stool can cause small scarring?

A. Yes.

Q. What else can cause small scars other than passing large stool and sexual abuse.

A. I don't think of anything else.

Q. You don't know of anything in the literature that would cause small scars?

A. I'm sure there must be something. Turns to judge: He must have found something.

After the preliminary hearing but prior to trial, I had to disclose what authoritative sources I intended to use at trial. The State's expert apparently read some of those sources because when he testified at trial on direct examination he testified as follows:

Q. By prosecutor: Now, what other things can cause scars in a child's anus like this?

A. Very few things. But you can get anal trauma and anal problems with chronic constipation. You can get it with severe diarrhea, explosive diarrhea in which people have. And you can also get it with chronic colonic disease.

 

To prepare for my cross-examination I spent several hours at the St. Louis University Medical Library to obtain authoritative sources which discuss the various causes of scars on a child's anus. After spending only a few hours at the medical library, I had obtained authoritative sources that indicated any of the following could cause scars on a child's anus:

1. Constipation.

2. Any trauma to area: ranging from the child acidentally sitting on a sharp object to intentional injuries.

3. Scratching induced by eczema or other perianal condition; i.e., child does not wipe himself thoroughly.

4. Crohn's disease.

5. Anal stenosis.

6. Crypt abscess.

7. Juvenile polyps.

8. Perianal inflammation.

9. Inflammatory bowel disease.

10. Improper insertion of anal thermometer.

11. Insertion of finger, either child's or adults while wiping child.

12. Diarrhea.

13. Giving a child an enema - if not done properly can cause a small scar.

At the trial this "expert" was then asked, on cross-examination, questions such as the following:

Q. And you have previously testified that Nelson's Textbook on Pediatrics is an authoritative source, isn't that correct?

A. On pediatrics, yes, sir.

Q. Let me ask you if you agree with this statement in Nelson's Textbook on Pediatrics: "The causes of most anal fissures and

scars are often not evident but may be secondary to constipation with passage of large stools, scratching induced by irritation from enterobius vermicularis or eczema or other perianal conditions."

A. This child did not have eczema. And eczema doesn't usually attack that area. But if Nelson said it, I guess it's feasible.

Using this same approach with each of these causes the State's expert admitted that every one of the items in the above list can cause small scars on a child's anus similar to the one he allegedly observed on this child's anus.

I then finished this part of my cross-examination with the following questions:

Q. Doctor, there's other things besides which I have listed here that can cause scars in a child's anus, aren't there?

A. That looks pretty thorough to me. There might be other small --

Q. Have you previously testified that everyone knows in any situation in medicine you can list at least 50 things that can cause the same thing?

A. Sure. You can get --

Q. I don't quite have 50 though, do I?

A. No, but you give a differential. And you've got to take, as I said at that time too, if a child comes to you as to why that scar is there, then you can list 50 things that can cause it. But when a child comes and gives you a history, then that list is diminished in size.

Q. Let me ask you about correct procedure on examining a child. Are you familiar with procedures used and recommended in other states where the doctor does not hear the history before examining the child because of the biasing effect, that the studies have shown that if you are told a child is sexually abused, you are more likely to find evidence of that and ignore other possible causes?

A. I imagine that could be feasible in a place that doesn't see a lot of kids.

Q. When you attended the summit conference in California, wasn't that a recommendation and isn't that what they use in San Diego, that a doctor does not get to hear the history before he examines the child because if you hear a history that has a biasing effect on any normal individual?

A. I guess that's feasible, but I think that the history is important too.

Q. Before you examine the child?

A. Yes, sir, I believe that is. I'd like to believe I wouldn't be biased by that.

F. In the above example, we saw that the expert initially claimed a particular finding could only be caused by two things -- constipation and sexual abuse (in this case forcing a stick into the child's rectum). The expert claimed he asked the parents if the boy had ever been constipated and when they denied constipation he concluded the small scar on the anus was "consistent with sexual abuse as stated by child." He then advised the police and parents of his opinion.

This expert did not tell the police or the parents that this small scar could have fifty other causes. Nor did he inquire into the child's medical history to determine the likelihood of these other causes. The parents and police interpreted this expert's conclusion that the small scar was consistent with sexual abuse as medical proof that the child was sexually abused. From that point on, any hope for a neutral investigation was lost forever (9). Everyone who then interviewed the child, including his psychologist, admitted they assumed the child was a victim of sexual abuse because of this expert's findings -- the investigation into the truth or source of the allegation stopped.

 

 

This expert's phrase that the physical examination of the child showed evidence "consistent with" sexual abuse means very little. Dr. Coleman describes the term "consistent with" as a pseudofinding:

"Likewise, it might seem obvious that a normal ano/genital examination is no help in establishing molest. Such normal examinations are, nonetheless, frequently termed "consistent with" sexual abuse. Rarely have I seen this followed by a statement indicating that a normal examination is equally consistent with no abuse . . .

Given that many victims of molestation show no physical results, it follows that every child's anatomy is `consistent with' molest because normal anatomy is also consistent with non-traumatic molest."

Not only can this "pseudofinding" stop the truth-seeking process, at times it can start a false allegation. If a parent, police officer or DFS worker is told that the expert found medical findings consistent with sexual abuse it often is only a matter of time before the interviewer's bias (in this case a belief that there is medical proof of molest) results in the child affirming the interviewer's belief.

G. I began this section with a recommendation that you always attempt to obtain a second medical examination of the alleged victim. The case I have been discussing in this section is a good example of why a second examination is important.

In his medical report and at the preliminary hearing, the State's expert did not indicate the size or shape of the small

scar he claims to have observed on the child's anus. In depositions he testified as follows:

Q. Was this small well-healed scar at six o'clock as large as a millimeter?

A. I don't recall.

Q. Was it smaller than a millimeter?

A. I don't recall.

At trial in this case this "expert" gave the following testimony on direct examination regarding the size of this alleged scar:

Q. Well, first, about how big was this scar?

A. . . . I din't measure it. It's hard to say, but I know it would be at least a centimeter. Maybe longer. (Note: A centimeter is 10 times longer than a millimeter).

On cross-examination this expert admitted that he did not document the size of the scar by either photographing it, drawing it in the medical report or indicating the size in his medical records. He also testified that he had no records that would refresh his recollection as to the size of the scar. He was then confronted with the testimony he had given approximately 10 months earlier:

Q. Have you ever given different testimony as to the size of that scar in this case?

A. Not that I recollect. Again, I didn't measure it. It's hard to say. I might have given different sizes. I might have said something other, but my recollection at this point is that that would be about it.

Q. Well, you wouldn't be mistaken and be off as much as 10 times the length, would you?

A. I don't think so.

When this expert was confronted with his previous testimony that he did not recall if the scar was smaller or larger than a millimeter (but he now remembered it was at least a centimeter), he testified as follows:

Q. Well was your memory better a year ago or is it better today?

A. I don't recall it. I didn't recall then and again I said I would think. I didn't say it was one centimeter. I said I would think it would be at least that length.

I had requested that this child be examined by another expert but this request was denied. In the hearing on the motion for a second examination, I introduced evidence that the State's expert had on previous occasions observed evidence of sexual abuse that other experts failed to observe when the child was seen by a second expert. If a second opinion had been ordered at least the size of the scar would have been determined and the size of the scar would not have grown from the depositions to the trial.

H. Even when you cannot obtain a second examination of the alleged victim, you may still be able to contest the existence of a particular finding. This can be accomplished by obtaining a complete history of any medical complaints made by the child (through a deposition of the child's parents and through the pediatric records of the child) and demonstrating how the medical history is inconsistent with the allegations being made by the child. For continuity, I will again use the child with an alleged small scar on his anus as an example. In this case the State charged the defendant with forcing a stick into the child's rectum. According to the father of the child, the child said the Defendant held onto the stick with both hands and made three quick thrusts with his hands when he forced the stick into the child's rectum.

In depositions of the child, the child at first said there was no pain when the stick was forced into his rectum and then he said it hurt just a little. However, at trial when the State asked the child if this was one of the child's most painful experiences, the child answered in the affirmative.

The State's expert testified that this small scar on the child's anus (size disputed) was consistent with the child's allegation that a stick had been forced into his rectum. The nurse who worked with this expert had not told him that while she was interviewing the child he took her scissors and told her the defendant had also stuck those scissors into his rectum. However, when I pointed that out to this expert, he said the small scar was also consistent with pointed scissors being forced into the child's rectum. His testimony on this is as follows:

A. . . . I examine the child and I see a scar. And I say that scar is consistent with what the child says.

Q. And if you didn't see anything, no findings at all, that also is consistent with what the child said, isn't it?

A. It can be, yes, sir.

Q. And in fact, no findings at all are consistent with what the child said?

A. That's feasible. Besides, 50 percent of children who are sexually abused show no findings.

Q. So there is nothing that is inconsistent with what the child says according to you, is there?

A. According to everyone who works in the field.

- - - - - - - - - - - - - - - - - - - - - - - - - - - -

Q. Let me ask you if you agree with this statement in the Medicine, Science and the Law by Dr. Paul. "Fissures, scars, and anal verge, hematoma can both result from the passage of constipated stools so great care must be taken in the interpretation of such a solitary finding. History of any sudden change in an infant's bowel habit is of great importance. A child previously potty-trained and regular in his bowel habits who suddenly resents being pottied or refuses to have his bowels helped is frequently found to have some injury to his anal verge. Such a history is associated with a history of an alleged sexual assult and with clinical findings of anal verge injury is good corroboration. Any child who has been the victim of anal penetration will experience pain on defecation for sometime afterwards and this discomfort will persist even in the absence of an anal fissure or scar. If a fissure or scar is present, the discomfort may persist for as long as two weeks. So specific is that the doctor should view with great suspicion any history where there is no complaint of pain on defecation. Such a history is inconsistent with penetration."

A. I don't know if I agree with that entirely.

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Q. Let me ask you if you agree with this statement in Nelson's Textbook on Pediatrics regarding fissures and scars. "Pain on defecation and frequently refusal to defecate are the principle manifestations of an anal fissure." Do you agree or disagree with that?

A. Fissure, oh, yeah, anal fissures are common. They don't often, they usually don't scar.

Q. Because they're less severe than what causes a scar?

A. Breaks in skin. You get little fissures on the lip the same way. A break in the skin. Tender, heals, doesn't leave a scar.

Q. So it's not severe?

A. Has to be deeper to leave a scar, yes, sir.

Q. So a principle manifestation of what the child would have shown because of this scar would be pain on defecation and refusal to defecate?

A. Does Nelson list in there sex abuse as a cause of scars?

Q. No, he doesn't.

A. Then he's not complete either, is he?

Q. I'll get to the American Medical Association Diagnostic list in a minute. Now, Nelson, that's a national publication, textbook?

A. Yes, sir, it is.

Q. You've also told me that another book which is in pediatrics is Current Pediatric Diagnosis and Treatment, ninth edition, edited by Kempsey and Silver; is that correct?

A. Yes, sir.

Q. And that's an authoritative source, isn't it?

A. It's considered, yes, sir.

Q. Let me ask you if you agree with this statement as to what findings the child will have if they've had a small scar or fissure on their anus. And it's in Current Pediatrics Diagnosis and Treatment. "The infant or child cries with defecation and will try to hold back stools. Sparse bright red bleeding is seen on the outside of the stool or the toilet tissue following defecation. Fissure can often be seen if the patient is held in the knee-chest position." Do you agree with that?

A. Yes, sir.

Q. So again we have --

A. That's why it's a vicious circle. Children who are sexually abused can have, get a history of chronic constipation.

Q. And did you ask his parents if the child ever had a history of pain on defecation?

A. I don't recall if I did. I don't think I did.

Q. Doctor, are you familiar with the medicine, American Medical Association's journal where the council on scientific affairs has listed a diagnostic list of factors you look for to determine if there's been child abuse or child sexual abuse?

A. If that's it.

Q. Yes. Are you familiar with the AMA diagnostic and treatment guidelines concerning child abuse and neglect?

A. Yes, I think I have seen that.

Q. Okay. Let me ask you a specific question about that.

A. Sure.

Q. There is a list of approximately 16 items, signs of sexual abuse, physical signs. Let me ask if you agree with these, any of the following physical signs may indicate sexual abuse: Difficulty in walking or sitting.

A. Sure.

Q. Did you have any history of that --

A. No, sir.

Q. - - from the child?

Q. Did you have any history of torn, stained or bloody underwear?

A. No, I did not sir.

Q. Bruises or bleeding of the perianal area, did you find that?

A. No, sir.

Q. Recurrent urinary track infections, gonococcal, syphilis, herpes, sperm or acid toxilate, lax rectal tone. Did you find any of that?

A. No, sir.

Q. Is there anywhere on this list put out by the American Medical Association scientific affairs published in 1985 that says that small scars on the anus are physical findings of sexual abuse?

A. Well, I don't think it's a complete list. They listed, the most uncommon thing is not there. It just doesn't, that's not the complete list either. I think that's incomplete.

Q. So they left out --

A. If they left out scars, I think that's an oversight on their part. They also left out normal findings as a finding too. So I think that's an incomplete list.

Q. This is the Journal of American Medical Association, isn't it?

A. Yes, sir, it is.

In cross-examination of the parents, it was brought out that this child had never been constipated, had never had complaints of pain on defecation and had never made complaints of pain to his anal area (except once approximately two weeks after his removal from the school where the abuse allegedly occurred). Further, his parents had never observed any blood on his underwear or blood in his stool. The child's pediatric records were introduced to show that this child was never taken to his pediatrician for any complaints of pain or injury to his anus or rectum. Thus, the child's history was "inconsistent with" a small scar being on the child's anus.

The defendant's expert testified among other things (1) that a small scar on the anus could not properly be identified as a scar by simply looking at the scar as was done by the State's expert, (2) that the State's expert's failure to "document" the scar by photographing the scar or at least describing the size and shape in his medical report was not consistent with standard medical procedure, (3) that if in fact the child had a small scar on his anus there should have been a history of constipation or pain on defecation, and (4) that if in fact the child had a small scar on his anus the child's pediatric records and history as given by the parents provided a number of alternative explanations for a small scar.

The defendant's expert strongly disagreed with the State's expert that a small scar on the child's anus is "consistent with" the child's story that a stick had been forced into the child's rectum. The defendant's expert explained that due to the size of a young child's anus and rectum, a stick forced into the child's rectum in the manner alleged by the child could have caused

severe injuries to the child and there would have been pain and blood associated with the injury.

I. Do not be afraid to challenge the qualification of the "expert" who claims to have diagnosed findings consistent with sexual abuse. When I first became involved in child sexual abuse cases, the police, DFS workers and prosecutors extolled the qualification of their "expert." However, when I investigated this expert's qualifications, he came up short in several areas. Two of those areas that should be brought out on cross- examination are:

(a) Impartiality: The "expert" used most often by the State testified in the trial referred to above that he had never testified on behalf of the defense.

(b) Publications: The "expert" used most often in St. Louis has never published, in a journal or textbook, an article on sexual abuse. Yet if you do not tie him down on this point he will testify as follows:

Q. Have you published any articles in this field - sexual abuse of children.

A. Yes, I have.

Q. Okay. And I served you with a subpoena. Did you bring those articles that the subpoena required you to bring today.

A. They weren't published at the time.

Q. I served you with the subpoena last week. Are they still not published.

A. They're in, they're in, yeah, they're published now. They're in the book that I presented, not in this, not in sexual abuse, not, the article I published pertains to urethral dilation in girls. And it's in the proceedings of the international meeting that was held in Rio do Janeiro.

Q. The only article you've published is published in Brazil?

A. No, it's published here. It's published in Denver, out of Denver.

Q. Okay. And I served you with a subpoena and asked you to bring every article, every paper you've ever written. Did you bring that with you today?

A. No, sir, I didn't.

Q. What is this one article you say you've published? What does it have to do with?

A. Vaginal findings in girls.

Q. And what this is is they typed up a transcript of your speech in Rio Do Janeiro; is that correct?

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Q. And these are speeches you gave and someone tape- recorded it and typed it up; isn't that correct?

A. No. They weren't speeches. They were submitted papers and

then I talked on the submitted paper.

Q. Have they ever been published in any authoritative journal such as in "Pediatrics?"

A. No.

Q. Any published in an authoritative textbook?

A. No, sir, they have not.

Q. Will you have time after you leave here today before this case is over to bring your article back to us?

A. Not back. I can probably find a way to get it to you, sure.

Q. Okay. You'll do that for us, won't you.

A. Certainly.

This trial lasted another two days and this article was never produced.

There is no doubt that many "experts" are experts because of their experience. The fact that an expert has not published does not make that person any less of an expert. However, "experience" does not necessarily make the person an expert. In assessing what weight to give an expert's testimony because of his experience, consider the following comments:

"Finally, a note on "experience." Experience, like consensus, is not enough to move from conjecture to science. Feedback, i.e., controlled testing of ideas through research, is necessary to be sure that one's experience is not filled with incorrect notions that go unrecognized. Thousands of women, for example, underwent radical mastectomy because highly experienced surgeons, and doctors in general, believed it was the best way to save lives. Only subsequent research demonstrated that simple mastectomy saved as many lives.

The situation is even worse when the doctor's opinion will itself influence the ultimate findings of the justice system. If Doctor X opines that a child has been molested, based on findings which in truth do not prove molest, a court will frequently rubber stamp such an opinion. This judicial finding then becomes the confirmation which makes the doctor feel he can rely on his "experience." Such "confirmation" is of course scientifically meaningless."

 

IV. Behavioral Indicators of Sexual Abuse

In Missouri a prosecutor may elicit testimony (assuming a witness has otherwise been properly qualified) that an alleged victim displays psychological changes that are consistent with those resulting from a traumatic or stressful sexual experience. (See Briefs and Motions in Appendix E for citations). However, an expert cannot testify that the victim suffers from "rape trauma syndrome" or "child molestation or abuse syndrome." State v. Taylor, 663 S.W.2d 235 (Mo. banc 1984).

In my experience, false allegations of sexual abuse are often the result of leading and suggestive questioning of children by parents who are led to believe their children have been sexually abused because their children have "behavior indicators consistent with sexual abuse." If a doctor, nurse, social worker or other professional advises a parent that they believe the child has been sexually abused because the child has "behavioral indicators consistent with sexual abuse," the parent interprets this as proof of sexual abuse. Interviewers are more likely to ask leading and suggestive questions that elicit false allegations of sexual abuse if they believe the child has been sexually abused. They often believe the child has been sexually abused because of an overinterpretation of a medical finding or "behavioral indicator" by a professional.

Take for example the case of a four-year old boy taken to a hospital in St. Louis for evaluation by a sexual abuse team. Another child had indicated that this boy may know something about alleged sexual abuse taking place at the child's day care center. The police questioned the child on videotape and the child denied that he was sexually abused. Even when the police suggested to the child that he or other children had been sexually abused by a named suspect, the child denied the allegations.

When the child was taken to this hospital, a nurse interviewed this child in a very leading and suggestive manner. Despite the interviewing techniques used by the nurse, the child continued to deny that he had been sexually abused. The nurse could not get the child to admit that the suspect had engaged in any improper behavior. When the child refused to give the nurse the affirmations of abuse she was requesting, the nurse held a group interview. In that interview, two other boys stated, in the presence of this boy, that the suspect had hit them. Still this boy continued to deny that the suspect engaged in any improper behavior.

Despite the boy's consistent denials and despite a normal physical examination the doctor and nurse concluded this child had been sexually abused. Here is what the doctor wrote in his report:

"Though physical findings are not remarkable, this does not negate sexual abuse. I believe strongly this child has been sexually abused -- has strong behavior indicators, night terrors, sleep disorders, fears falling asleep, handling and touch."

The parents and police took this doctor's report to be medical proof the child had been sexually abused. The child was then taken to a therapist (referred to the parents by the same hospital). That therapist testified that she assumed the child had been sexually abused because the "experts" had made that diagnosis. She testified that even though the child continued to deny the allegations for several weeks of therapy sessions, she assumed his denials were due to his fear of the suspect.

After numerous interviews with different interviewers (police, nurse, parents, therapist) and after weeks of therapy the child finally admitted that the defendant had abused him by tying him up in a chair and sticking needles into the child's legs. According to the child, this all occurred in the presence of numerous other children. When those other children were questioned about the defendant abusing this child by sticking needles in his leg, they had no knowledge of this.

What was the "expert's" explanation for his statement that he strongly believed this boy had been sexually abused even though the boy denied abuse and he had a normal physical examination? In a deposition, the "expert" testified as follows:

Q. And what were your conclusions regarding any sexual abuse of the child?

A. I felt that he was -- I can read my SAM evaluation. No physical findings are not remarkable. This does not negate sexual abuse. I believe strongly this child has been sexually abused, has strong behavioral indicators, night terrors, sleep disorders, fears of falling asleep, handling, and touching.

Q. So based upon those indicators alone, that's why you believe strongly he had been sexually abused?

A. Yes.

Q. And is that consistent --

A. Well, no, no, that's behavioral, and what other history, too, I think is important.

Q. Well, in his history he denied any sexual abuse?

A. That's not unusual.

Q. I'm asking you how you made a statement such as the following: I believe strongly this child has been sexually abused, has strong behavioral indicators, night terrors, slight disorders, fears

falling asleep, handling and touch.

A. I want to know everything you base that finding on.

Numerous objections made. Witness refuses to answer question without reviewing videotape of nurse's interview.

Q. So when you testified at the preliminary hearing that the sole basis for your finding that you believed the child was sexually abused, was because of the strong behavioral indicators, night terrors, sleep disorders, fears falling asleep, handling and touch; are you now telling us that there may have been something else?

A. There may have been. There may not have been either.

The expert then testified that his statement that he believed strongly that the child had been sexually abused was also based upon the fact that the child's parents had said the child admitted that he had been in the suspect's office and that he described being paddled (the parents in their testimony denied that their child had reported this to them prior to the hospital examination). He then testified his statement regarding this child was also based upon the fact that three other boys were allegedly involved. He testified as follows:

A. . . . So it is not unusual for children who have been sexually abused, and chronically sexually abused to deny it happened.

Q. Is it unusual for children who have not been sexually abused to deny that it's happened?

A. Yeah. That's true too.

Q. You assume when a child comes in that he's been sexually abused?

A. Not at all.

Q. I'll go back to my question. Assume that the police interview of this child was consistent denials, that the hospital interview of this child was consistent denials, that your physical exam of this child was, I think you have not remarkable, but you still conclude that the child has been sexually abused, based upon the behavioral indicators.

A. And what the parents said and the whole scenario of cases.

Q. And what did the parents tell you?

A. That he was having problems, and that he was -- he described being in the suspect's office, and that he described being paddled.

Q. Parents told you those things?

A. Yes.

Q. And based upon that, you made the statement that you strongly believe he had been sexually abused?

A. Yes.

Q. Let me ask you about these behavioral indicators. Is it unusual for a child to have night terrors, sleep disorders, fears falling asleep?

A. Not at all.

Q. In fact, a large percentage of children have those; isn't that correct?

A. Yes, they do.

Q. And a large percentage of children who have not been abused have that?

A. Yes.

Q. Let me ask you if you agree with a statement by a Dr. Anthony Rostain, a medical doctor, obtained in a book in the hospital library entitled, Principles and Practice of Clinical Pediatrics. "Sleep disorders are common during childhood and vary according to the age of the child."

Do you agree with that?

A. Yes, I do.

Q. "Toddlers and preschoolers have difficulties with falling and staying asleep, night terrors, nightmares, and enuresis."

Do you agree with that?

A. They can, yes.

Q. "Although estimates vary widely, a majority of children will have some type of sleep disorder during childhood, most of which resolve with minimal or no treatment."

Do you agree with that statement?

A. Yes.

Q. From the same article, I ask you if you agree with these

treatments.

"Special consideration should be given to details in the bedtime routine that may aid in diagnosis, e.g., scary bedtime stories or television programs, too much physical activity before bedtime, irregular habits or no fixed schedule."

Do you agree with that?

A. Yes.

Q. And did you take any history from these parents as to the child's bedtime routine?

A. No.

Q. Let me ask you if you agree with this: "The presence of family stresses should be explored, since sleep problems often begin in response to other family problems."

Do you agree with that?

A. Yes.

Q. And let me ask you if you agree with this statement: "Finally, a family history of sleep disorders, neurological diseases, or psychiatric illness must be ruled out."

Do you agree with that?

A. Yeah.

Q. And when you took these behavioral indicators as a basis for sexual abuse, did you rule out the other causes of sleep disorders?

A. Again, you're isolating each one of these, and if you can, and I'm sure you can take each one of these and not look at the whole picture, and make a case for all of it.

Q. Let me ask you about that, Doctor. Did the police give you a background on the whole situation?

A. No. Not that I recall, no.

Q. And I'm asking you to explain if you went through the normal medical diagnosis in this case, to rule out various things such as bedtime routine, family stresses, or history of sleep disorders, did you do any of those things in diagnosing this sleep disorder as being connected with sexual abuse?

A. No. I felt it was strongly due to sexual abuse.

Q. And is it common for you, Doctor, not to, or is it common for you to make a diagnosis without ruling out other causes for that diagnosis?

A. When you, you know, there is, you know, there is a policy in medicine that you put down your differential diagnosis, and people often will put down 50 different things that can cause a situation. Everyone knows in a situation in medicine you can list 50 things that cause just about anything.

But still, a good physician has his first impression and he stands by that. This is how I feel it is, and you put all your thoughts together and you come up with an answer.

Q. And a good physician doesn't even question the family about medical history of other problems.

A. Not when he has -- If it walks like a duck and quacks like a duck, it's a duck.

- - - - - - - - - - - - - - - - - - - - - - - - - - - -

Q. The question again is, can you tell me any medical journal, any article whatsoever, based upon reasonable medical procedure, that says the correct way to diagnose a problem is to disregard other conditions that can cause that same problem, and not even question those other conditions?

A. No.

Q. Did you or anyone at the hospital question the parents to rule out all the possible causes of these sleep disorders?

A. No, we didn't.

Q. Let me refer you again to the article, "Principles of Practice of Clinical Pediatrics," edited by Dr. William Schwartz, and ask you if you agree or disagree with this statement: "Nightmares are normal occurrences."

A. I disagree.

Q. Let me ask you in the same article if you agree or disagree with this statement: "Night terrors are most frightening for parents and other family members, they need to be reassured that these are not serious or pathological episodes."

A. Did I agree with that in context, in the context that's used there, they're probably correct.

Q. What do you mean by your statement in the child's reports about handling and touch.

A. That they don't want anyone to touch them, they don't want to be -- That's basically it, they are resistive to being touched.

Q. And who advised you that the child was resistant to being touched?

A. The parents.

Q. And did they advise you when that first began?

A. Not that I recall.

Q. Wouldn't it be important to determine when that first began?

A. May or may not be.

Q. But you didn't obtain that information; is that right?

A. No. Not that I recall, no.

According to the parent's testimony, their child was never resistant to being touched while he attended the day care center where the abuse allegedly occurred. According to the parent's testimony, the child first indicated a resistance to touch the day after he was interviewed by the police and questioned about being touched in his private areas. Prior to the police interview, the child had never been resistant to touch. As to the sleep disturbances, etc., through discovery the defense was able to show that these "behavioral indicators" began shortly after the child's father was arrested for a felony assault.

One of the leading legal scholars in the area of child witness law has these comments on basing an opinion of sexual abuse on such behavioral indicators as those mentioned by the above expert:

"The most casual examination of these symptoms (behaviors attributed to sexual abuse) reveals, however, that many of them are associated with other developmental and psychological problems of childhood and adolescence. For example, the fact that a child suffers from nightmares, loss of appetite, regression, and depression says very little, if anything, about sexual abuse. A myriad of other factors can cause such symptoms, and it would be improper for an expert to base an opinion relating to sexual abuse on such ambiguous symptoms alone." Myers at 157."

In State v. Maule, 35 Wash. App. 287, 667 P.2d 96 (1983) an expert identified the typical characteristics of sexually abused children to include:

". . . sleep disruption of some kind, appetite disruption,

nightmares fairly common sort of reaction; sometimes other behavior changes might be noted, particularly the child being withdrawn or perhaps having regressed in their behavior, acting like a younger child, being rather clingy to the mother, being afraid of being alone with a particular person, something like that."

The Court in Maule rejected the expert opinion based on such symptoms, finding that the testimony was not supported by adequate medical or scientific research, and was not based on the

type of evidence reasonably relied upon by experts in the field.



Id. at 100; Myers at 159-60.

Likewise, if the prosecution proposes to introduce testimony such as that given by the "expert" in deposition, counsel should move to exclude such evidence for the same reasons set forth in State v. Maule and for the reasons set forth in Appendix E. (See also Note, The Unreliability of Expert Testimony on the Typical Characteristics of Sexual Abuse Victims, 74 Geo. L.J. 429 (1985); McCord, Expert Psychological Testimony About Child Complainants in Sexual Abuse Prosecutions: A Foray Into the Admissibility of Novel Psychological Evidence, 77 J. Crim. L. & Criminology 1 (1986)).

For similar comments from psychologists regarding the unreliability of expert testimony based on such behavior indicators, consider the following:

"The relationship between these behaviors and any sexual abuse is the weakest and most tenuously supported of the claims that have been made. The most that can be said is that these behaviors may be related to any stress experience . . .

The base rates of the presence of many such behaviors in fully normal children, in troubled children, in non-abused children, and as part of the normal developmental process for all children is so high that any attempt to use them as indicating abuse will result in a high rate of error.

These alleged behavioral indicators of sexual abuse are found in many different situations, including divorce, conflict between parents, economic stress . . . and almost any stressful situation children experience. Possible consequences arising from an allegation of sexual abuse -- a frightening and perhaps painful physical examination by a stranger, separation from one or both parents, possible removal to a foster home, multiple interrogations by a number of interviewers -- are themselves the source of significant stress."

Because the consequences arising from an allegation of sexual abuse can be the source of these behavior indicators, it is

important that you document, through discovery, when the indicators first began. Often the "indicators" first begin after

the child has been interviewed by the police or after "therapy" sessions begin.

V. Admissibility of Child's Hearsay Statements Under 491.075 RSMo.

If you have been successful in convincing the trial judge that the child's statements disclosing abuse are the result of contamination by leading and suggestive questioning of the child, you may be able to prevent the prosecutor or juvenile office from introducing the hearsay statements of the child. See Appendix F for a memorandum of law that discusses what factors courts have considered in deciding on the admissibility of hearsay statements under 491.075 RSMo. and similar statutes.

 

VI. References

1. Wakefield, Hollida and Underwager, Ralph, Accusations of Child Sexual Abuse, Charles C. Thomas Publisher (1988). (This is a 500-page book that is an excellent source for lawyers. The book is written by two psychologists who have extensive experience in assessing accusations of sexual abuse by children.)

2. Nurcombe, Barry, "The Child as Witness: Competency and Credibility." Journal of the American Academy of Child Psychiatry 25, 473 - 480 (1986).

3. Benedek, Elissa and Schetky, Diane, "Clinical Experience, Problems in Validating Allegations of Sexual Abuse," Journal of the American Academy of Child and Adolescent Psychiatry 26, 6:912 - 921 (1987).

4. Ceci, Ross, and Toglia, "Suggestibility of Children's Memory: Psycholegal Implications," Journal of Experimental Psychology: General 116, No. 1, 38 - 49 (1987).

5. Humphrey, H. (1985) Report of Scott County Investigations, St. Paul, MN: Attorney General's Office.

6. Van DeKamp, J.K. (1986), Report on the Kern County Child Abuse Investigation, Sacramento, CA. Office of the Attorney General, Division of Law Enforcement, Bureau of Investigation.

7. Dale, Loftus and Rothburn. The influence of the Form of the Question on the Eyewitness Testimony of Preschool Children." Journal of Psycholinguistics Research, 7, 269 - 277 (1978).

8. Coleman, Lee, Has a Child Been Molested? California Lawyer, July 1986.

9. Coleman, Lee, "Medical Examination for Sexual Abuse: Are We Being Told the Truth. In press Family Alternatives, Minneapolis, MN (1989).

10. Emans, Woods, Flag and Freeman, "Genital Findings in Sexually Abused, Symptomatic and Asympthomatic Girls", Pediatrics, V. 79, No. 5, May 1987.

11. McCann, Anatomical Standardization of Normal Prepubertal Children, (Study in press but McCann's lecture presented at a meeting sponsored by the Center for Child Protection of the San Diego Children's Hospital is on audiotape and is available through Convention Recorders, P.O. Box 87042, San Diego, California.

12. Report of the Inquiry into Child Abuse in Cleveland 1987, Presented to the Secretary of State for Social Services by the Honourable Lord Justice Butler - Sloss DBE, Her Majesty's Stationery Office, London, July 1988.

 

VII. Recommended Sources:

A. What the Child Reports:

Wakefield, Hollida and Underwager, Ralph, Accusations of Child Sexual Abuse, Charles C. Thomas Publisher (1988).

This book has an extensive bibliography of sources on child sexual abuse and is an excellent source on all issues concerning allegations of sexual abuse.

B. Medical Findings:

Paul, D.M., "What Really Did Happen to Baby Jane?" - the medical aspects of the investigation of alleged sexual abuse of children, 26 Med. Sci. Law #2, p. 85 (1986). This periodical is available at Washington University Law Library.

Paul, D.M., The Medical Examination in Sexual Offenses Against Children, 17 Med. Sci. Law #4, p. 251 (1977).

Report of the Inquiry into Child Abuse in Cleveland 1987, Presented to the Secretary of State for Social Services by the Right Honourable Lord Justice Butler - Sloss DBE, Her Majesty's Stationery Office, London, July 1988.

Emans, S.J., Woods E.R., Flagg, N. T., Freeman, A., "Genital Findings in Sexually Abused, Symptomatic and Asymptomatic Girls." 79 Pediatrics #5, p. 778, May 1987.

McCann, Anatomical Standardization of NormalPrepubertal Children (Study in press but McCann's lecture presented at a meeting sponsored by the Center for Child Protection of a meeting sponsored by the Center for Child Protection of the San Diego Children's Hospital is on audiotape and is available through Convention Recorders, P. O. Box 87042, San Diego, California.

Coleman, Lee, Medical Examination for Sexual Abuse: Are We Being Told the Truth in Press: Family Alternatives, Minneapolis, MN (1989).

C. Psychological Changes or Behavioral Indicators of Sexual Abuse:

Wakefield and Underwager, supra.

Note, The Unreliability of Expert Testimony on the Typical Characteristics of Sexual Abuse Victims, 74 Geo. L. J. 429 (1985).

D. Legal Resource:

Myers, J., Child Witness Law and Practice (John Wiley & Sons Publisher (1987).