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At a preliminary hearing, a therapist of a four-year old boy testified that the boy had reported to her that the defendant had taken "icky" and "naughty" pictures of him. The therapist testified that she had not suggested or led the child into making this statement. The parents also testified that the child had told them that the defendant took "icky" and "naughty" pictures of him. Through discovery, I found out that the therapist had tape recorded some of her sessions with the child. I obtained the tape recordings and made transcripts of all the tapes. The following is part of the transcript when the child allegedly first reported that the defendant took "icky" and "naughty" pictures of him. Note that what the child is doing is mimicking the therapist's suggestion that the pictures were icky and naughty when in fact the child doesn't even know the meaning of the words "icky" and "naughty." Also note that the child also indicated that he had his clothes on when the pictures were taken and he was unable to report why he thought the pictures were icky or naughty. If these tape recordings had not existed, a judge or jury would have only heard the testimony of the therapist that the child said the pictures were icky and naughty and they would not have known that it was the therapist that said the pictures were icky and naughty and the child just repeated these phrases not knowing what the words meant.

Therapist (T): So you had your picture taken with other boys at the same time? Did you have your clothes on when they took your pictures?

Child (C): Yes.

T: Yes? Do you know why they took your picture?

C: No.

T: Was it a fun picture or did it feel icky?

C: Icky.

T: Icky? What was icky about it?

C: (Inaudible)

T: I don't understand.

C: They said they were going to give the picture to us icky.

T: I don't know what that means. Do you know what I mean when I say icky?

C: No.

T: No? I think I used a goofy word. I wondered if when they took your picture, it was a nice picture or a naughty picture.

C: Naughty.

T: Naughty? Do you know what that means?

C: No.

T: No? Did it feel good to have your picture taken?

C: Nope.

T: What didn't feel good?

C: They said they were going to give it icky and naughty.

T: Ummm. . . What were you doing when you had your picture taken?

C: I was good and they were bad.

T: How were they bad to you? (Long pause)

C: I don't know.

T: You don't . . . this is real hard for you to talk about isn't it?



B. Medical Examination and Findings

1. 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). 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. Since I have been involved in numerous cases where a well-known doctor (head of a sexual abuse team) has found evidence (consistent with sexual abuse), I will use that doctor's previous testimony in those cases to demonstrate how to attack medical findings of sexual abuse.

2. 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 ( ).

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 disagrees with the .pn2

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. (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.

3. To date, there are only two studies where doctors have attempted to establish what findings occur in normal 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 a 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 (13).

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)

4. Have the "experts" in our metropolitan area reported as proof that a child has been sexually abused findings which occur in a large percentage of non-abused normal children? 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."

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 --

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.

This expert who the prosecutors in the metropolitan area claim is the leading expert on diagnosing child abuse and child sexual abuse 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 (12, 13).

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." The percentage of anal tags seen in sexually abused girls and asymptomatic but non-abused girls was similar. Similarly, the McCann study found that normal children have anal skin tags (13).

In a comprehensive study of the significance of medical findings in young children in England that study 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" (14).

Unfortunately, according to the testimony of the expert in St. Louis, not only are they grounds for suspicion but they are 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.

5. 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 is the same expert that prosecutors and DFS workers consider to be the leading expert on child abuse. 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 cars?

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 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.

6. 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 related by the 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 (Coleman, p. 3). 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 does this "pseudofinding" often stop the truth- seeking process, at times it starts 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.

7. 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.

8. 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.

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

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.

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.

9. 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?

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

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 table 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 brought in to the court.

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."

 

 

TRANSCRIPT OF POLICE VIDEO INTERVIEW OF FOUR-YEAR OLD BOY

The following contains portions from a transcript of a police videotape of an alleged sexual abuse victim. I want to use this transcript to demonstrate several important points. First, if the interview of the child is not tape recorded or videotaped, you will never know what suggestions were made to the child nor will you know the extent of the denials made by the child. The two police officers who conducted the following interview and the mother of the child that sat in on the interview all testified under oath that no one in the interview asked any leading questions and no one in the interview made any suggestions to the four year old child.

At the preliminary hearing and pre-trial motions, the police officers and the mother testified that the four year old boy on videotape told them the name of the suspect, that he was a white man and that he took the child upstairs into his office. They also testified that the boy told them that when he took the child in his office he pulled the child's pants down and put food in and on the child's penis and in the child's rectum. They all three denied that the child made any statements inconsistent with that version of the offense. Not one of the three remembered that the child first described the suspect as a black man; not one of the three remembered that the child said the bad man only took him to McDonald's and that the child never said that the man took him upstairs to his office; not one of the three remembered that the child told the police officers that his mother told him to say that someone put food in his private parts; not one of the three remembered that even after 40 minutes of suggestion, coercion and leading questions, the child could not name the suspect and did not name the suspect until the sound went off on the videotape machine for a period of 40 seconds and when the sound came back on, the police officer stated the name of the suspect and continued the interview as if the child had named the suspect when the sound was off.

Remember that an interviewer's distorted perception of what occurred in an interview is not an unusual occurrence in the interviews of young children. The experts that have studied false allegations of sexual abuse have indicated that it is very common for interviewers to "perceive" that a child said one thing when in fact the child said the opposite or to "perceive" that a child said one thing when in fact it was the interviewer who made the statement. In this case, I have known the two police officers for some time. I do not believe that either of those police officers lied under oath when they stated that they did not lead or suggest any of the answers to the young child or when they stated that the child made certain statements that the child never made. They went into the interview assuming that the suspect was a particular person and assuming that that suspect was guilty. When the child made statements that did not confirm this assumption, they either ignored those statements or they "perceived" that the child was too afraid to tell them the truth or that the child was confused. Certainly they would not have lied about this knowing that there was a videotape of the interview. However, if there was not a videotape of this interview, I am certain, based upon the two police officers' memory of the interview, that my client would have been convicted of this offense. When there is no videotape or tape recording, there is reason to suspect that the interviewer's memory is even more distorted.

The second point that I would like to make through the use of this transcript is the importance of making a typewritten transcript of all videotapes or tape recordings and reviewing those very closely to determine what suggestions have been made and how those suggestions distorted the child's memory. An example of this can be seen in the following transcript. In that transcript, the child at one point is sitting in front of the videotape and he has french fries, a hamburger and a Coca- Cola that the police have bought him from McDonald's. As you will see in the transcript, the police officer gives him a french fry and asks him to pretend that is other food and to show them what the suspect did with the food. Several months after this interview, the child reported to his therapist and to his parents that the suspect put french fries, hamburgers and Coca-Cola up his rectum. The State had taken the position that no one had suggested this to the child and that the child could not have made up this allegation. However, a careful review of the videotape and the transcript showed the source of this false allegation. As you will see in the transcript, the police directly suggested to him that french fries were put in his rectum and the police directly suggested to the boy that he was taken upstairs to the suspect's office. During the interview, the boy kept reporting that the suspect only took him to McDonald's (the police had just brought the boy from McDonald's to the police station). However, in later interviews, not only did the boy incorporate the french fries into the false allegation, but he included the Coca-Cola and hamburger and he claimed this occurred in the suspect's office.

 

VIDEO POLICE INTERVIEW

Codes:
(Det. 1) Detective 1
Det. 2) Detective 2
(M) Mother
(C) Child

Background

Detective 2 testified that prior to the videotape interview, Detective 2 interviewed the child at his home. Detective 2 testified the child's mother told him that she believed the boy has been sexually abused by the suspect because her son told her the suspect had good food upstairs and they played games upstairs. According to Detective 2, because of these statements and certain behavioral changes noticed in her son, the mother concluded he had been sexually abused by this suspect. However, the mother testified that she did not tell Detective 2 that she believed the suspect had sexually abused her son prior to Detective 2 interviewing her son. She testified that the first time she knew her son was accusing the suspect was after the detective interviewed her son and told her what her son said in the interview.

Detective 2 testified that in his interview of the child approximately one-half hour prior to the videotape interview, the child told him that the suspect took him to his office, pulled the child's pants down and put green beans, corn and donuts in the child's rectum and penis. On cross-examination, the detective said when he asked the child if the suspect took him up to his office and put green beans and corn in his private areas, the child first denied this "because he didn't trust me at first." He testified that after about thirty minutes of talking with the child, the child trusted him and agreed that the suspect put green beans and corn in his rectum and penis. (The detective never could explain why he would ask a four-year old boy if a man pulled his pants down and put green beans and corn in his rectum).

With this background here are some portions of the transcript of the videotape interview:

 

Questions and Answers Comments

Det. 2: Who are we going to take care of?

C: Oh, the bad guys . . .

Det. 2: What was that bad guy's name? What did we call him?

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

Det. 1: Did you have a special class room you were supposed to be in at the old school, or a special room you were in all the time? Did you ever leave that room?

C: No.

Det. 2: (Very quickly jumps on child to say) Remember what I told you? That we always have to tell the truth because we're all friends and you want to be a policeman.

Det. 2: Are we going to take care of Mommy, Daddy and your friends for you?

Det. 1: That's what we're here for and we're here to help. Will you tell me what you were talking about with the officer here?

C: About bad guys (mumbles). Wait a second. (Child leans over and whispers to his Mother). What was his name?

M: . . . You'll have to tell

them . . .

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

Det. 1: Did he used to come down and eat lunch with you?

(Child the shakes his head no).

(The child's day care center was in the basement. The suspect was the only person who had an office upstairs and the only person who came down and ate lunch with the day care workers.)

Det. 1: Do you remember what color his hair is?

C: Gray.

Det. 1: What color is his skin? Do you know what a white man or a black man looks like?

C: He's a black man.

(The suspect is a white man.)

Det. 1: He's a black man? You know what black is don't you? See Mama's purse over there? That's black. Does he look like that? (Child shakes his head no). Then what color is he?

C: He's a boy, black.

Det. 2: Remember what we were talking about? Do you remember what

you told me he looked like? What's the bad man look like? Does he have my color of skin?

M: Does he look like Mommy and Daddy?

Det. 1: He does? Color like your Mama's skin?

C: Yeah.

Det. 1: O.K. So he's what we would call a white man, right? (Child nods yes)

Det. 2: Does he wear anything on his face?

(The suspect wears his glasses.)

C: No.

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

Det. 1: What kind of bad things does the bad man do?

C: He hits people all the time.

C: He hits a . . . he does this on your cheek. (Hits his own right cheek)

Det. 2: On your cheek? Does he ever hit any of your friends?

Det. 1: Would he hit you anywhere else?

C: No.

Det. 2: Remember I'm here to protect you and nothing is going to happen to you.

C: (Shouts disgustingly) I KNOW!!!

Det. 2: Oh, you're tired of me telling you that aren't you? (Child nods yes) (But you know that we're friends, right?

C: YES!!!

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

Det. 1: Do you remember what this bad man's name is?

C: No.

Det. 1: Have you ever seen him before?

C: Let me see here (twists and thinks; no answer) . . .

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

Det. 1: These dolls of mine (Referring to anatomically correct dolls. They help me find out when a bad man and a little boy get together. Now let's pretend that this will be the bad man that you know (one in his rt. hand) and let's pretend this is you (one in lt. hand) I want you to take the bad man and show me what the bad man did to you, O.K.? Can you do that? Can you show me what happened between you and the bad man using these little dollies, can you? (Child takes a doll in each hand, dances them up and down, bangs heads together and lets both dolls drop to floor falling on each other) O.K., what else happened?

C: O.K. (grabs dolls, dances them up and down and then takes good doll and crosses it over head of bad doll) it jumped over his head.

Det. 1: O.K., but show me what the bad man would do to you though, O.K.? (Child takes bad doll and smacks it into good doll) He would hit you?

Det. 2: Weren't you taking a nap sometimes when the bad man would come?

Det. 1: Did the bad man ever spank you? The child later reported the suspect spanked him. (Child takes bad doll and spanks good doll).

Det. 2: Is that how the bad man spanked you? Show me again, I didn't see it, just one more time. There you go, buddy.

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

Det. 2: Show us what the bad man did to little boys, O.K.? (Child continues to bounce doll) Do it. O.K.?

C: I'm doing it.

Det. 2: Well, he didn't . . .

Det. 1: Did he do more than that, did he do more than just bounce you up and down like that?

C: He did this, boing, boing, voom (bounces doll and flips it completely over).

Det. 2: Did he hit you?

C: Yeah, he hit me.

(C) Boing, boing, boing, voom.

Det. 1: And what else would he do?

Det. 2: (Sternly calls child's name!) Remember what we - what you told me . . .

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

Det. 2: You're showing us what the bad man did to you. (Child mumbles and laughs as he flips doll over and over).

Det. 1: O.K., did the bad man do anything else to you besides spin you around and hit you in the face?

Det. 1: Did he ever hit you anywhere besides in your face? Did he hit you on your (pats self on bottom) back here? (Child shakes his head no) Where would he hit you?

C: He has jeans on and I have jeans on.

Det. 2: Didn't the bad man ever make you take anything off? Show me with the doll.

Det. 1: Yeah, show us what the bad man did with you, O.K.?

C: He takes his pants off.

Det. 1: Well, go ahead.

M: Go ahead and do it, it's O.K.

C: What?

C: O.K., O.K. (Starts taking doll's pants down) Now, almost.

Det. 2: Is that what the bad man did to you? What else did the bad man do?

Det. 1: Oh, he's got his pants pulled down.

Det. 1: Did the bad man do that to you?

C: Yeah.

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

Det. 1: O.K. Did the bad man ever touch your willie? (Child shakes his head no). (The child in later inter views reported the suspect touched his penis) (name child uses for "willie.")

Did the bad man have you pull your pants down or did he pull them down for you?

C: He pulled the pants down for me.

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

C: Huh? What's this? (points to doll's pubic hair) I don't know, what is that?

Det. 1: Did you ever see that on the bad man? (Child shakes head no) (The child in later interviews reported that he did see suspect's "privates.") You never saw that on the bad man?

C: (Shakes head no) What is it?

Det. 1: What is this? (points to doll's hair on head)

C: Hair.

Det. 1: Well, what is that? (points to pubic hair)

C: Hair.

Det. 1: Did you ever see any hair down there on the bad man? (Child spinning good doll over and over).

C: Nooo.

Det. 1: Put yourself (meaning good doll) down here and show me what the bad man did to you when he had his pants down too.

Det. 2: You can use this stuff over here too, O.K.?

Det. 2: So what did the bad man do with things?

Det. 1: Did anyone touch your willie while you were sleeping?

C: No.

Det. 1: When you were awake?

C: No.

Det. 2: Didn't he touch your private part?

Det. 2: Did the bad man ever touch your private part?

C: No.

Det. 2: Can you show me what happened to your private parts? Just show me what happened to it, O.K.? Remember these things over here? (points to food)

C: Uh, huh.

Det. 2: Well, let's pretend they are something else. What do you want to say this stuff is? (Det. 2 hands child a french fry).

Det. 2: Well, let's pretend they are something else.

Det. 2: Yeah, show me what happened to your private part, using that (French Fry).

Det. 2: But you show me what happened to your private part. (Child goes to good doll). That's good, show me what happened. It's O.K.

C: (Shouts) I KNOW!!

C: I got two big ones (shows 2 french fries).

Det. 2: O.K. You got two big ones. (Child flips dolls over on back). O.K., there's the private part.

C: Turn it over. (Starts sticking FF in penis)

Det. 2: Yeah, what is that? What are we pretending that stuff is? Is that . . . what is it?

C: I'm calling these FF's.

Det. 1: Yeah, but what are we pretending they are?

C: I pretend that these are (?) food! (Starts inserting FF into doll's bottom).

Det. 2: These are food. Oh, is that what happened to the food?

C: Yeah.

Det. 1: What are you doing now?

C: Putting it back here.

Det. 2: Yeah, how come you are doing that? Did somebody show you to put that there? Who showed you to put that there? Did somebody show you to put that there?

C: Yes.

Det. 1 and Det. 2: Who? (in unison)

C: (Growls loudly) MOMMY!!

Det. 2: Who?

C: Mommy. (When the detective receives an answer that he doesn't believe he tells the child that he gave the wrong answer.

Det. 2: No. Mommy didn't show you. I think somebody else showed you.

C: Uh huh.

Det. 1: Did somebody else show you to put food back there? Was that supposed to be food or supposed to be something else?

(The detectives never questioned the mother regarding the child's accusation.)

C: It supposed to be food.

Det. 1: O. K.

Det. 2: Who put that food back there? Who put that food in there? Who's this guy? (shows child bad doll)

C: Bad guy.

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

Det. 2: Show us what the bad man did.

C: Ummm, boom! (drops FF aiming at good doll on floor).

Det. 2: You're going to help me with the bad man.

C: I missed it (FF doesn't hit doll) missed, missed, missed.

When the child claimed food was put in his rectum they never asked him if that was really true. It is only when he claims french fries were thrown at him that they doubt his story.

M: Is this really true?

C: (Yells loudly at mother) YES!!!

Det. 2: After you show us what the bad man did, I'll let you put my handcuffs on the bad man and we'll take him away.

Det. 1: What would he do?

Det. 2: Show us what the bad man would do. (Child throws FF on floor at doll). No?

C: He did so.

C: I know I'm talking . . . he would do this (throws another FF at doll).

Det. 1: He would throw things at you?

C: Uh huh.

Det. 1: Well, what were the things he would throw?

(The child is already incorporating the french fries (FF) into his story.

C: FF or Danish . . .

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

Det. 1: I know, but who was the one that put the (picks up FF and puts on good doll's penis).

C: Just bad guys.

Det. 1: Well, without a name, we can't put handcuffs on somebody that's for sure. We have to have their name.

M: It's OK.

C: Let me see, what's his name?

Det. 1: What would I call this guy if he was the bad guy. I gotta name this doll.

C: Mom, what's his name?

(Several times throughout the interview the child would ask his mother to tell him the name of the suspect.)

M: I can't think of a good name.

Det. 1: What's the bad guy's name that I'm going to keep away from your friends and protect your mommy and daddy from?

Det. 2: What's that bad man's name? The guy at the gas station's name?

(Prior to the interview the mother had told the police that she and the child had seen the suspect at a gas station.)

Det. 2: Yeah, but you gotta tell me so I can go get him and protect your mommy and daddy and your friends.

C: It was . . .

C: I don't know his name.

Det. 2: Yeah, you do.

C: I don't know his name.

Det. 2: He used to come down and The only person who fits eat lunch with you. Who was the this description given to guy, remember? When you were taking the child by Det. 2 is a nap and this guy that would come the suspect. and get you from your nap? (Child sighs). You almost said it.

C: What?

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

Det. 2: Where did he take you?

Det. 2: Where did he take you?

C: McDonald's.

Det. 2: He took you to McDonald's? No, he didn't. He took you someplace in the building. Didn't he used to take you someplace in the old school?

 

The police testified that in this interview the child said the suspect took him to his office and they did not remember saying the suspect took him to McDonald's.

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

THE SOUND ON THE TAPE IS BLANK FOR 45-50 SECONDS

(The police testified that they must have accidentally disconnected the microphone. They testified that during the 45- 50 seconds that the sound was off the child named the suspect. This was more than forty (40) minutes into the interview after the child had been asked more than 20 times to name the suspect and he had been unable to.)

DETECTIVE 2 IS SHOWN SHAKING CHILD'S HAND JUST PRIOR TO SOUND RETURNING.

Det. 1: So the suspect (names suspect was at the church?

Det. 2: Here I tell you what. Let's take care of (the suspect). Yea, we gotta put our handcuffs on (the suspect), don't we? Cause he's bad. Put these old handcuffs on (the suspect) and lay him down here. O.K.? Is that better?

Det. 1: So (the suspect) is the one that used to take these things (picks up FF) and put on your privates. Is that what he would do?

Det. 2: He can't get you anymore because I'm protecting you.

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

Det. 2: Did (the suspect) touch your willie?

Det. 1: Did (the suspect) touch your willie? (Child ignores the detective) Huh?

Det. 1: Would the suspect take his hand and touch your willie like that? (Reaches over and flattens willie) Would he do that sometimes? (Child acts and looks puzzled).

Det. 2: That's O.K.

Det. 1: You can tell me if he did.

Det. 2: It's O.K. because we're friends.

C: He didn't.

Det. 1: He done it? (Child shakes head no). He didn't? (Child keeps shaking head no). He didn't (Still shakes head no). He never touched your willie? (Child continues to shake head no). How did he get the Danish by your willie then? How did he do that if he didn't touch it? Would he tell you to do it?

(The police will not accept the child's answer even though he has consistently denied this throughout the interview.)

C: No (Picks up FF)

Det. 1: Then how did he do it?

C: Put this right here (puts FF on doll's eye) this right here (on other eye) and this right here (on nose).

C: O.K. (Puts both hands up to doll's mouth as if putting something in mouth). Put (inaudible) on him and they do this (takes doll) move my coke and hamburger. I'm going to do something and move my food and glass . . .

Det. 2: O.K. Show me where (the suspect) put the green beans.

C: You green bean? (Looking at FF Det. 2 is holding).

Det. 2: I got the green bean (Child taps doll's penis). (The suspect) would put the green bean here? (No response)

Det. 1: Would he touch you when he put the green bean there?

C: No.

Det. 2: Would he just lay it down like this? (Lay FF beside doll and child nods yes).

C: (Takes his FF and puts in doll's hand) and I'll put mine right here.

Det. 2: And you'd put your green bean there?

Det. 1: O.K.

Det. 2: I guess we need some corn now too don't we?

Det. 1: Yeah, see if we can find some corn. (Leans over looking at food)

C: How about . . .

Det. 2: Here's some corn (leans over and picks up more FF). We need this as corn, where would the corn go? Show me.

C: (Points to doll's mouth) In the mouth.

Det. 2: But didn't the corn

go . . . you told me once someplace else too . . . let me remember . . it was . . . where?

C: (Grabs doll's penis) Squish this.

Det. 1 and Det. 2: (Unison) Squish that?

Det. 2: Who held onto that?

C: (Takes FF off doll and hands to Det. 1 (Points to doll's penis and looks at Det. 2 and says) You hold onto that. (Det. 2 holds doll's penis)

Det. 2: Who would hold onto that? (meaning penis)

C: (Hands Det. 1 FF) Hold that.

Det. 2: Who would hold onto this? (penis)

Det. 1: Who would hold onto that while you would roll over?

C: You (rolls doll over on stomach and Det. 2 hangs onto penis)

Det. 2: Who am I? Who am I pretending to be? Am I . . . who? Am I that bad man?

C: Nooo.

Det. 2: Show me what the bad man would do with the corn (hands child a FF and child inserts into rectum) Why would he put it there?

C: Because.

Det. 2: Because why?

Det. 1: And then what would he do?

C: Give me this FF.

Det. 2: What's that now?

C: (Puts in doll's right hand) This was in this hand.

Det. 2: Well, who held your willie?

C: Where's that other FF?

Det. 1: (Picks one up off floor) Must be here.

Det. 2: Who held your willie? When this was happening who would hold onto your willie?

C: You can let go.

Det. 2: (Let's go off penis) I can let go because nobody held onto your penis? Then you would lay like this? (Det. 2 pats doll on back)

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

Det. 2: But this is the suspect. The suspect has to go to . . . away.

C: Huh?

Det. 2: (The suspect) has to go away so we can't play with this one.

C: Why?

Det. 1: Because (the suspect) . . . you know . . . Did anybody say something about hurting you?

C: Then put these handcuffs on him.

Det. 2: O.K.

Det. 1: So he won't hurt you, right?

Det. 2: And he's not going to hurt your friend is he?

C: And pretend this is the police doll.

Det. 2: Where did (the suspect) take you? (Child ignores question).

C: Pretend this is the police guy.

Det. 2: Where did (the suspect) take you. (Child ignores question).

C: Pretend this is the policeman, O.K.?

Det. 2: O.K. But where did (the suspect) take you? He took you someplace in the building didn't he?

Det. 2: Remember when (the suspect) would take you places? (Child ignores the detective)

Det. 2: Tell me where he took you, buddy?

C: I don't know.

Det. 2: Well . . . you told me before now, remember at the school?

C: (mumbles) McDonald's.

Det. 2: Well, no, we didn't go to McDonald's.

C: So I can order food.

Det. 2: (The suspect) took you someplace in the school didn't he? By yourself didn't he?

C: I don't know.

Det. 2: Yes he did. Tell the truth, remember?

Det. 2: (Turning to child) Where did he take you? Where did he take you? Huh? Where? Hurry up and tell me. Yell it out like you did before.

(In this interview the child never claimed (the suspect) took him anywhere in the building; yet the police testifiedthey were sure he said the suspect took him to his office in the building.

C: He took me to McDonald's (whispered)

Det. 2: Where did he take you in school, buddy? Where did he take you in school?

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

Det. 2: O.K. Why don't we all go home now and then I'll come over to your house at 7:00 o'clock, O.K.?


B. Medical Examination and Findings

1. 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). 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. Since I have been involved in numerous cases where a well-known doctor (head of a sexual abuse team) has found evidence (consistent with sexual abuse), I will use that doctor's previous testimony in those cases to demonstrate how to attack medical findings of sexual abuse.

2. 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.

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 disagrees with the .pn2

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. (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.

3. To date, there are only two studies where doctors have attempted to establish what findings occur in normal 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 a 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 (13).

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)

4. Have the "experts" in our metropolitan area reported as proof that a child has been sexually abused findings which occur in a large percentage of non-abused normal children? 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."

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 --

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.

This expert who the prosecutors in the metropolitan area claim is the leading expert on diagnosing child abuse and child sexual abuse 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 (12, 13).

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." The percentage of anal tags seen in sexually abused girls and asymptomatic but non-abused girls was similar. Similarly, the McCann study found that normal children have anal skin tags (13).

In a comprehensive study of the significance of medical findings in young children in England that study 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" (14).

Unfortunately, according to the testimony of the expert in St. Louis, not only are they grounds for suspicion but they are 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.

5. 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 is the same expert that prosecutors and DFS workers consider to be the leading expert on child abuse. 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 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.

6. 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 related by the 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 (Coleman, p. 3). 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 does this "pseudofinding" often stop the truth- seeking process, at times it starts 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.

7. 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.

8. 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.

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

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.

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.

9. 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?

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

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 table 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 brought in to the court.

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."