Request for Analysis

On January 11, 2002, at the request of Mr. John Smith, attorney at law, I read the report of interviews conducted between 5-year-old Jane Doe, hereinafter referred to as "Jane," and "Female Interviewer," LPC, Clinical Therapist, conducted at the Unidentified Children's Advocacy Center, Inc., 123 North Anywhere Street in City, State on September 13, 2001 and, then again, on September 17, 2001. The report I was provided with contained basic background information the interviewer obtained prior to her interview with Jane, what was identified as a "transcript" of the interview conducted between Jane and the interviewer and the interviewers "findings" and recommendations.

My Basic Background

As a means of background, my name is Allen Cowling. As of 2009, I have practiced as a private investigator for the past 40 years and have had my offices in Jackson, Mississippi since May of 1975. In 1989, I began to devote my practice exclusively to studies and cases dealing with false allegations of child sexual abuse. Education has included attending numerous national seminars, a vast amount of legal research, case history studies and conducting interviews with experts worldwide, including child advocates, judges, attorneys, medical doctors, psychologists, psychiatrists, research specialists, professors, investigators plus prior victims of false allegations and their families. In the past 20 years, I have actively participated in more than 300 trials and in more than 500 cases 49 states, Canada, the UK, France, Italy, Mexico, Brazil and Japan. During the past 20 years, my profession has basically changed from that of "private investigator," to that of a "defense strategist." My main involvement in these cases has been to provide a defense strategy for the falsely accused. This has included psychological and "sexual preference" testing for the accused, determining what "experts" were beneficial and then providing those "experts," analysis of medical reports and records and assisting in all phases pretrial and then during trial, which has included, but has not been limited to, jury selection, preparing my client for testimony and assisting the trial attorney during trial.

I have never attempted to qualify myself as an expert, or to offer any expert testimony in false allegation cases, simply for the reason that the experts I do refer are far more educated and intelligent that I would ever profess to be. My expertise is in knowing who these experts are and in my ability to provide the proper expert for the proper area.

As to interview techniques and the testimony of children, there are numerous qualified experts, many of whom are research psychologists. One of the best examples is a research psychologist named Maggie Bruck, on staff at John Hopkins University in Baltimore, MD. She and Stephen Ceci wrote the book, "Jeopardy In the Courtroom," a scientific analysis of children's testimony. That book, published by the American Psychological Association, is the definitive on child interview techniques and was the result of years of research and interviews.

As with Ceci and Bruck, there are numerous other experts who, over the past decade, have determined through careful research that improper interview techniques can actually result in tainting a child's testimony to the point where it has absolutely no credibility whatsoever. Improper techniques include multiple interviews of a child and the improper use of leading and suggestive questioning during interviews. In short, these multiple interviews and leading and suggestive questioning can prompt a child to make a false allegation or expand on allegations they may have already made. In short, following the use of improper interviewing, how does one determine, based on the child's statements, what is real and what was induced by one or more interviewers?

Current Issue

While I was provided with a "transcript" of Jane's interview, I was not provided with the product from which the transcript was made; either audio or video tape. The problem is that the transcript, itself, is not an accurate depiction of what actually transpired during the interview. There are too many narratives and "fill-in-the-blanks" by whoever typed it. In addition, I had no ability to analyze the actions of the interviewer or Jane during the interview process, vital to any proper analysis.

Based solely only on the transcript, however, I did detect numerous and inexcusable errors. The main theme appears to be that the interviewer had a preconceived opinion that Jane had been sexually molested by her grandfather and she, in a completely biased manner, used her interview simply as a means of attempting to "validate" the alleged abuse, not to determine the truth or the real facts. This is clearly evidenced by the number of times that Jane actually denied any abuse and denied being touched, but since that was not what the interviewer wanted to hear, she ignored those statements and continued her barrage.

No interviewer will ever obtain the truth with questioning such as, "Jane, did anyone touch you, did papaw touch you, where was daddy when papaw touched you, who was there when papaw touched you, did papaw touch anyone else, did anyone see papaw touch you - on and on. How many times is it necessary for the interviewer to keep injecting the "theme" before the child is able to determine exactly what the interviewer wants and for the child to be able to respond appropriately?

There are also contradictory problems noted. The initial report states, on page 2, that there had been no change in Jane's eating pattern, yet later, in the same report, on page 3, "Jane has experienced loss of appetite during the past week, when she appeared not to eat like she used to." The later statement, regarding the fact that Jane's appetite had been affected was specifically noted in an area of the report where the writer was attempting to offer "supporting evidence" for the alleged abuse. It appeared with other statements, such as Jane was experiencing nightmares.

Unfortunately, many biased interviewers, attempting to validate sexual abuse, also attempt to show that symptoms, such as "nightmares or night terrors," "bed wetting," "loss of appetite," failing in school" and a sudden belligerent attitude on the part of the child are "characteristics" of a molested child. The fact is, there are no characteristics or symptoms of a molested child. They simply do not exist. That specific issue was well addressed by the Supreme Court of Mississippi in GOODSON vs. State of Mississippi and HOSFORD.

Another interestingly point in the interview/report was a statement identified in the initial synopsis. It was reported that Mr. Accused has a "growing flower that grows real big and has hair." At no time during the interview did she ever refer to a "penis" as a "growing flower," so where did that come from? Also consider several statements made within the overall report. "Maw-Maw saw Papaw abusing Jane and told him to get off" and her mother's own admission that Jane did not want to talk about the abuse allegations.

In my work, during the course of the past 12 years, I have been in a position to analyze hundreds of interviews with children who have made allegations of sexual abuse. Normally, when I enter a case, I analyze all material, determine what problems exist, if any, and then determine what experts would be required. Based on my study of interview techniques used, more often than not, I usually rely on research psychologists who specialize in the suggestibility of children such as Doctors Maggie Bruck, Debra Poole or Elizabeth Loftus. Without question and, as the information herein depicts, there are precise standards for conducting interviews with children who make allegations of sexual abuse. These standards have been implemented after years of study in which it has been determined that improper interview techniques can easily taint the testimony of a child to the point where the child has no credibility whatsoever. Whenever I attempt to assess the quality of the interview with any child who is making sexual abuse allegations, according to accepted practice and standards, I look for the following:

In this case, according to the transcript and narrative, the interviewer violated every possible standard for acceptable interview practice and, based on the entire report, it would be absolutely impossible for anyone to ever honestly determine if this child was abused or if they are simply telling a story that they have been "taught." This is a 5-year-old child who has been exposed to anything but neutral and unbiased interview techniques. It simply is not possible to know if what this child says is reality or information she has been provided with.

The transcript provides absolute facts to the improper interview techniques, but one must look elsewhere to determine if this child was interviewed on multiple occasions. According to the report from the Advocacy Center, under the heading, "Reason for Referral," on the first page, information advises that Jane was referred to the Advocacy Center by a social worker with the County Department of Human Services. It also advises that, prior to the interview of Jane at the Advocacy Center, Jane's grandfather, Danny Accused, had placed his fingers in Jane's vaginal area, that oral sex had been performed on Mr. Accused, although it was unclear by whom, and that vaginal penetration had occurred with Mr. Accused's penis.

Further in the report, under the heading, "Background Information," information identifies that Jane was accompanied to the interview by social worker, a sheriff's department detective and a representative of the County District Attorney's Office.

The question is, who had previously interviewed Jane prior to her arrival at the Advocacy Center. Depend on the fact she had been interviewed because of the allegations about what her grandfather had allegedly done to her. At the very least, Jane talked about her allegations to her mother, possibly other family members, a school nurse, a nurse during the time of her medical exam at the hospital and the social worker. She most probably also talked with the detective and the prosecutor. Amazingly though, consider carefully the wording in the report under the heading, "Reason for Referral." Even after she had been interviewed and/or discussed these allegations, prior to the Advocacy Center, no one could even determine "who" was supposed to have performed oral sex on the grandfather; Jane or her brother, Chet. We were, however, provided with two specific allegations; vaginal touching and the penile penetration by an adult male to a 5-year-old child. Certainly, if penetration was true, we would expect a medical examination to show scaring, tearing or lack of a hymen, depending on the depth of penetration. The fact is, the physical findings in the medical examination showed no such evidence. The doctor, who conducted the medical examination noted what he termed a "ruptured" vaginal area and the presence of an infection which he automatically attributed to "sexual activity."

As previously stated, leading and suggestive questioning was noted throughout Jane's interview and was totally improper because it actually "suggested" to her what the interviewer wanted her to say. Amazingly, even with this leading and suggestive questioning, again and again, the child said "no" and only changed when she was pushed by the interviewer.

Some specific examples of the leading and suggestive questioning used during Jane's interview were:

Interview One, September 13, 2001

Interview Two, September 17, 2001

Based solely on the examples of the leading and suggestive questions above, note that again and again, the interviewer continuously "hammers" her "theme" to this young child, "you got touched." This is clearly evidenced by the fact that several questions are asked repeatedly, and that was simply because Jane was not providing the interviewer with the responses she wanted.

Interview One, September 13, 2001

Interview Two, September 17, 2001

It would be hard to even imagine any better example of an interview being conducted where the interviewer is attempting to "force" a story from a child, or any interview where, without question, the child is saying nothing happened. Nothing in either interview is even remotely supportive of prior allegations that Mr. Accused has put his penis into Jane's vagina or mouth, yet, the interviewer, in her assessment, states that, in her opinion, Jane was molested by her grandfather and, further, that Jane was credible in her allegations. Nothing could be further from the truth.

Acceptable Interview Techniques

A proper interview provides every opportunity for the child to relate his/her own version of the events. These interviews should be conducted in a non-leading, non-suggestive, and non-contaminating manner so as to produce reliable and complete information from the child. The interviewer does need to understand what names the child has for their body parts and private areas, but the interviewer should never identify the body part allegedly touched by the suspect. At no time should the child be introduced to the concept of good and bad touches, the names of private parts and/or any other labels for any body part of the child. Allow the child to provide the names for body parts independently, without suggestion. To reduce anxiety the child often experiences when identifying private areas, a possible approach would be:

The interviewer should never identify the name of the suspect. This should be done by the child independently. At no time should the child be interrupted during their free narrative. If the interviewer does think of questions, contradictions or inconsistencies, they should make a note for later reference. Under no circumstances should an interviewer ever correct, interpret or challenge during the child's narrative phase. If the child does stop, the interviewer should encourage them to continue with use of simple statements or questions, such as "What happened then?"

The interviewer needs to be very patient during all phases of the interview, tolerate pauses from the child and keep a relaxed tone during the entire interview process. They also need to be careful in their attempt to clarify previous answers or statements the child may have made and/or in their attempt to gain more specific information from the child about the alleged incident of abuse. Generally, when real abuse has occurred, children will discuss these issues, but there are some children who refuse to discuss the abuse, are unable to provide details of the abuse, yet continue to make statements that they have been abused. Rephrasing certain questions may provide the child with an opportunity to describe details about the alleged incident. The interviewer should be very cautious in rephrasing questions and never introduce information they may have obtained from any other source. Under no circumstances should any interviewer ever tell a child that another person has disclosed details of the alleged incident to them. At no time should the interviewer ask any question that will provide information about what was supposedly done.

When a child does not provide any details of the alleged abuse, but makes general statements that they have been molested, the interviewer should carefully analyze what they are told and attempt to determine what the child has told others. This may indicate that they have either overheard something, been coached, or are simply incapable of providing the true aspects of the incident. Keep in mind that no child can provide details to events that never took place.

For whatever reasons, many interviewers fail to understand that the use of anatomical pictures and dolls are most probably different from basically anything that the child has previously seen and the use of these are very likely to produce strong emotional reactions in the child. They can also easily give the child the message that the interviewer is interested in discussing matters related to naked bodies and this serves to draw the child's thoughts, fantasies, and feelings into that path. Whether the interviewer uses the pictures or the dolls, a significant contamination has been introduced at the outset, a contamination that already makes it unlikely that the interviewer will truly find out whether the child has been genuinely abused. After exposure to these pictures or dolls, one cannot know whether the child's verbalizations about sex abuse were the result of an actual experience or were stimulated by the naked human figures. Without question, these anatomically correct "drawings" and "dolls" serve as a teaching or coaching tool. Consider this. An interviewer is talking to a young girl who says "daddy put his pee-pee in my pee-pee. If the allegation is the truth, the child can easily describe a penis simply because she has seen one. If, however, the allegation is false, possibly the child cannot describe a penis because she may very well have never seen one. Her allegation may simply may be the telling of a story that she was instructed to tell. The question is, could viewing an anatomically correct drawing or doll, provide the child with the knowledge of what a penis is and where it is located? Could viewing the drawing or doll assist the child in providing details that she never could have provided otherwise? Unfortunately, many interviewers are nothing more than validators. In other words, they have already accepted, at face value, the fact that the child was molested and they are simply looking for a means to validate the abuse. These, untrained and biased interviewers will use drawings and dolls as a means of "helping" the child make the best story possible and, it never occurs to them that the child's allegation could be completely false. Simply put, they are not looking for any sign that the allegation is not true because they have already accepted the fact that it is.

On numerous occasions, these untrained interviewers/validators appear to be totally oblivious to the important techniques in child evaluation and treatment. Many will zero right in with their leading questions. Almost invariably, these direct the child to talk about sex abuse. A typical example might be a three-year-old girl, who has placed her finger in the vagina of an anatomically-correct doll. Unfortunately, many interviewers almost invariably consider that to be "proof' that some adult perpetrator has placed his/her finger in the child's vagina. The examiner, without any previous discussion about the child's father, says, "Does your daddy put his fingers in you just like that?" The child may not have been sexually abused and may never even have thought about her father doing such a thing, yet, the question plants a seed in the child's mind that such an event could possibly take place.

Another example would be an interviewer holding up the chart of a naked woman, allegedly to find out what names the child uses for the various body parts. The interviewer asks, "Has your teacher ever touched you there?" The child may never have been abused by her teacher or anyone else. The question, however, introduces the visual image of such an encounter and contaminates all further inquiry regarding sex abuse, by the teacher or anyone else for that matter. After that, regardless of whether the answer was yes or no, one will never really know whether or not such an event actually occurred or if the child has responded due to fantasy after viewing the picture and hearing the interviewers question.

Taint Hearing in Criminal Cases

Reliability is necessary in determining the admissibility of evidence. It is a due process violation to allow the conviction of a defendant on the basis of unreliable evidence. If children are interviewed repeatedly using suggestive and coercive interview techniques, the child's memory of the alleged events may be destroyed by the interview process. When this happens, the child's statements are not reliable.

Reliability must be differentiated from credibility. Credibility implies that the speaker knows whether what is said is true or false. A person who is not credible may be lying. Reliability, however, is comparable to accuracy. When the person's memory of events is changed or lost, the person may not know what is true or false. When the person then gives unreliable information, the person may not be aware of it. In such cases, the person cannot be said to be lying. A child who has been suggestively interviewed may be unable to distinguish the memory of a real event from that of being "taught" by the interviewer. Therefore, the testimony the child gives is not reliable.

This is an important distinction in terms of expert witnesses. Experts are not permitted to testify as to the ultimate issue and thus cannot comment as to a child's credibility, but they can generally testify about factors in interviews and investigations that risk making a child witnesses' statements unreliable.

Always consider a taint hearing:

Medical Considerations in the Diagnosis of Child Sexual Abuse

As a result of Jane's allegations, she given a medical examination by a physician at a local hospital. According to the notes, Jane was sedated during the exam and made no statements to the doctor regarding any abuse. The doctor's "medical" findings were that Jane's vagina appeared "ruptured", and she appeared to have some sort of "infection" which indicated to him that she had experienced some sort of sexual activity. The issue here is very simple. Since the doctor was going strictly by physical findings, why was he able to provide a specific medical opinion that the "rupture" and the "infection" were directly associated with sexual activity. The question for him would simply be, "Are you saying there is no disorder, other than sexual activity, that would have caused what you observed? What basis are you attributing your findings to "sexual activity?"

There are no physical signs of abuse to be found in the vast majority of sexual abuse cases. Medical findings supporting or proving abuse are not as clear cut as may be expected. Many of the medical indicators advocated are frequently found in non-abused children. The ubiquitous practice of describing completely normal examination findings as being "consistent with abuse" is likely to be misunderstood in a courtroom as evidence supporting an allegation. Lay people serving as jurors are particularly apt to be misled by medical experts giving such testimony.

Doctors called upon to perform forensic sexual abuse examinations should have up-to-date information on the range of normal for nonabused children. They should be very cautious on how they interpret their findings, and insure that they have an empirical basis for their claims. Children can be seriously harmed both by invasive investigative practices and by subsequent interventions when the allegations are unfounded.

Physicians examining a child for possible sexual abuse are likely to have been briefed by other workers who have already decided that the child has been sexually abused. Many social workers and psychologists believe that false allegations are extremely rare and that "children never lie about abuse," and see their role as a "validator" that the abuse has occurred. Once a belief that sexual abuse has taken place has become entrenched, very little can be done to sway the believers otherwise. To even suggest the possibility of a false allegation is often to invite an emotional outburst and accusations of condoning or even colluding with abuse. Actions and decisions may subsequently be made without scientific substantiation of the allegations.

As previously stated, most cases of sexual abuse are diagnosed on historical and behavioral evidence and not on physical findings, however, investigation of sexual abuse will often involve a medical examination to look for physical evidence of abuse. Such information will be eagerly sought by the prosecution, as physical findings represent relatively "hard" evidence compared to psychological assessment and "disclosure" interview findings. Also, the courts will generally give considerable weight to a physician testifying in support of an abuse allegation.

The majority of sexual abuse cases involve activities such as genital fondling and not penetration of the vagina or anus, and do not cause any marks or damage to the tissues. A diagnosis of sexual abuse is therefore infrequently made solely on medical findings. Obviously, sexual activity can be proved if an underage pregnancy has occurred, or if a sexually transmitted disease is detected, but these are relatively rare events. Finding semen on the genital area also indicates sexual contact, but this is only possible if the child is examined soon after the alleged event, within 72 hours at the outside. In reality, the vast majority of alleged abuse cases present weeks, months or years later.

If a young child does have the vagina or anus penetrated by fingers or a penis, bruising, tearing and bleeding are likely. It seems probable that the child would also suffer considerable discomfort for the next couple of days or so, especially when urinating or defecating. Anal penetration, by the penis, normally results in severe pain when the child next attempts to have a bowel movement, but keep in mind that the perineal region has a good blood supply, and usually heals rapidly.

Whether such injuries cause permanent scars detectable months or years later is currently being researched. McCann, Voris and Simon (1992) studied three children who had suffered genital lacerations from a single isolated episode of assault, one requiring suturing. They used a camera and colposcope to record their findings and followed up the appearance of the injuries for up to three years. They found that in these cases, there was very little scar formation and signs of damage were difficult to detect after a couple of months.

Children who have been sexually abused on an ongoing basis may well show more obvious signs of trauma. The vaginal and anal orifices might remain more open and show signs of scarring, although research evidence in this area is still sparse also.

Children's genital regions have not been routinely examined in medical examinations, and until the last decade virtually nothing was written on what normal vaginas and anuses looked like in childhood (Pokorny, Pokorny, & Kramer, 1992; McCann, Voris, Simon & Wells, 1989; McCann, Wells, Simon, &Voris, 1990).

In 1983, Cantwell examined and measured the hymens of nearly 250 girls under 13 years of age who were treated at a Crisis Care Unit in Denver. She reported that 75% of those with horizontal openings greater than 4mm had been sexually abused. Four years later she amended this figure to 80% (Cantwell, 1987). This paper is often quoted by medical experts in court rooms and in the absence of any other studies, a horizontal hymen size greater than 4mm has been considered an indicator of sexual abuse.

Examination of this study reveals it seriously flawed, however. First, the method of substantiating abuse was not made clear, and appears to include a number of girls who denied that they were victims.

Second, measuring hymenal size is not a simple procedure, and different examiners are likely to get different results. To establish the diameter, a child's legs must be spread at the hips and the vaginal lips gently parted to expose the hymen. Varying the amount of lateral pressure used to part the lips will distort the shape of the hymen and change the apparent diameter. In addition, the method used for examination, supine with labial separation, supine with labial traction, or knee-chest, affects the measurement of the hymenal orifice diameter (McCann, Voris, Simon, & Wells, 1990).

Hymenal shape is very variable (Heger, 1985; Hyden, Gallagher, 1992). Some have several openings, they may be crescent-shaped, slit-shaped (horizontal or vertical), or very irregular. The hymen might be thick and fleshy or a very thin membrane. Not only is measurement impossible with any degree of accuracy, but Dr. Raine Roberts, Manchester, reported in the British Medical Journal in 1989 that "the hymen can vary, in the same child, from a pinhole to a centimeter, depending on whether she is relaxed or apprehensive, warm or cold." A medical finding of a dilated hymenal opening must therefore be interpreted with great caution.

The diameter of an average index or middle finger is about 15 to 20mm. An erect penis is 25 to 40mm in diameter. The hymen is not a very elastic tissue, but even allowing for some stretching, the belief that any hymenal diameter greater than 4mm is an indicator of abuse is not commonsense. The Royal College of Physicians (1991) states that a hymenal diameter of 15mm is supportive of abuse, although it should not be used as the sole basis for a diagnosis.

Unfortunately, the belief that hymenal diameters greater than 4mm indicate sexual abuse has permeated the field. On many occasions, vaginal examinations where hymenal sizes less than 10mm have been reported by the examining physician as indicating probable abuse.

Examining doctors often claim that rashes and redness around the vaginal area are "consistent with sexual abuse." While this may be technically true, there are so many other common causes of such findings that such a claim is likely to mislead a court into believing these findings mean sexual abuse has probably occurred. In fact, such genital irritation is also consistent with no sexual abuse. Scratching, masturbating, inadequate washing, irritating soaps and bubble baths, tight-fitting underpants, threadworm, thrush and other nonsexually transmitted infections can all result in redness and irritation. So can a number of less common causes such as foreign bodies inserted in the vagina.

Medical testimony regarding physical indications of sexual abuse is critical. Testimony that physical findings indicative of sexual abuse exist in the alleged victim is very powerful and cannot be underestimated by the defense. To the fact finder, physical evidence is "real" evidence. While there may be reluctance to find abuse based upon statements alone, there is none when there is corroborative physical evidence.

Generally, there are only two questions for the trier of fact to consider: (1) Was the child sexually abused? and, (2) Who did it? If there is medical testimony asserting physical evidence of abuse, it is just a short step to a finding of abuse if the child is naming the defendant as the abuser. Also, in alleged interfamily abuse, corroborative physical findings make it much more likely that criminal charges will be brought. Prosecutors often feel that physical evidence is needed to meet the "beyond a reasonable doubt" burden required for criminal conviction. Without such evidence they are much more likely to allow the case to be handled in family or juvenile court where a "preponderance of the evidence" standard applies.

It is also important to be prepared for the unusual circumstances that sometimes surround medical testimony in sex abuse cases. Ideally, doctors come to court in order to give unbiased, accurate information as an aid to the fact finder. Unfortunately, in the area of child abuse, too often the doctor acts as an advocate when delivering an opinion. Doctors will sometimes testify that certain findings are indicative of abuse even though the doctor well knows, or should know, that they are not. In the absence of an informed defense attorney, such evidence is very persuasive and, if the doctor is the only one testifying on the issue, the testimony is likely to be conclusive on the question of whether or not abuse occurred.

In order to deal effectively with medical testimony, the defense lawyer must be completely conversant with the research on what is and is not indicative of abuse. He or she must be aware of the importance of normality and the role of normative studies in medicine. Incredibly, there are still many physicians practicing who are ignorant of such landmark studies as the work by McCann and his colleagues (McCann, Voris, & Simon, 1992; McCann, Voris, Simon, & Wells, 1989; 1990; McCann, Wells, Simon, & Voris, 1990).

A thorough and searching cross-examination is the best tool for truth seeking, and each and every aspect of the medical evaluation should be carefully analyzed for cross-examination purposes. The attorney must understand that physicians are not trained as scientists. The practice of medicine is an art, not a science, although physicians may be consumers of science. Physicians are often unsophisticated and unskilled in dealing with statistics and causality. Even though medical testimony is often given considerable weight by fact finders, the attorney must make it clear that physicians' expertise is limited and quite narrow.

Do not overlook a complete evaluation of the testifying doctors. Obtain current CVs. Do a complete library search and obtain copies of anything they have written. If you can, find out where and from whom they learned about physical examinations for sexual abuse, who they consider authoritative on the subject and then obtain, read, and understand everything that the doctor, their teachers, or their own recognized authorities have written. In the zeal of advocating their position it is not unusual for doctors to contradict their own printed statements and you must be prepared to take advantage.

Usually, doctors will be asked if they have an opinion within a reasonable degree of medical certainty as to whether or not the examination did nor did not indicate sexual abuse. Here, on cross-examination you must be very probing. Usually, it turns out that the opinion is based on the totality of the exam which includes an interview of the child or a history from a caretaker. If the history taken indicates abuse, it becomes part of the basis upon which the opinion is formed.

This inclusion improperly slants the testimony. Doctors are seldom expert in interviewing, and often admit on cross-examination that they assume the truth of what the patient tells them. The testimony is presented as if the doctor's opinion is based on physical findings when it is not. It is often largely or wholly based on statements made, a far different basis than objective findings upon examination.

The attorney must sort out all data which contribute to the doctor's opinion and focus in on the objective physical findings which the doctor claims are indicative of abuse. In many cases, findings in false allegation cases have never been indicative of abuse when examined closely. Instead, they consist of such nonspecific findings as thickened areas of the hymenal edge, vascular changes, nonspecific discharges, irregular hymenal edges, hymenal openings in excess of 4 mm, etc. which are all also found in large numbers of nonabused children.

Often an examination will be said to be "consistent with" abuse. Be very careful of such a statement. The phrase "consistent with" should be probed with vigor. If physicians make statements embodying the concepts of "consistent with" or "typical of" they have exceeded their area of competence. These are issues of probability and the laws of statistical inference. Physicians are not trained in these areas. Almost always, physicians will confuse correlation with causation and assume that if something is associated with something else it is a causal relationship. This is erroneous.

A normal exam is "consistent with" abuse since most sexual abuse leaves no physical findings. I have seen reports which indicate "normal exam, consistent with abuse based on history." Most exams are also "consistent with" nonabuse. The key here is to distinguish between "consistent with" and "indicative of." Certain findings, such as a hymenal tear, healed scars, and the presence of sperm are strongly suspicious for abuse. Most of the findings said to be "consistent with" abuse are, in fact, nonspecific findings which occur in nonabused children as well as abused children. This must be made clear on cross-examination. Sometimes the doctor will go to absurd lengths to maintain the "consistent with" argument and getting what seems a perfectly straight-forward admission can be very difficult.

Every note, mark, drawing, and measurement in the doctor's records must be rigorously checked and re-checked. Fundamental errors are made so to avoid this, if the hymen was measured, determine exactly how was it measured; by eye, ruler, colposcope scale, etc.

Myths Regarding Child Sexual Abuse

Children do not lie about their experiences of sexual abuse; therefore, when they express such allegations, their willingness to disclose them verifies the veracity of their statements.

Physical examinations frequently provide reliable evidence of sexual abuse.

Children who demonstrate a level of sexual knowledge beyond their years have likely been sexually abused.

Psychotherapy can assist children to recover previously repressed memories of sexual abuse by alleviating their repression.

Clinical psychologist Sue White and psychiatrist Kathleen Quinn (1988) discuss critical issues of investigatory independence in child sexual abuse evaluations:

According to White and Quinn, "Leading should be considered to have occurred when the interviewer introduces any material that the child has not previously revealed to that interviewer" (p. 271). They discuss the use of "Yes-No" questions and multiple choice questions and describe "disconfirmation" as a technique frequently used by adults to influence a child's decisions: For example, a mother may ask, "What do you want to eat?" to which the child responds "Candy." Dissatisfied with that answer, she then disconfirms the child's answer by saying, "You don't want candy. How about some soup?" (p. 273). Leading the child away from her answer, telling the child she is wrong or simply ignoring the child's answer are all examples of disconfirmation.

White and Quinn describe the coercion that often happens in children's interviews. They note that when interviewing suspected victims of sexual assault, truth-lie paradigms, positive or negative rewards, repetitive questioning, and threats may clearly "compromise the evaluation because of their directive nature" (p. 274-275). They recommend that any fact finder assess the investigatory independence manifest in the interview process. A fact finder must ask:

Quinn, White and Santilli (1989) discuss the impact of physical cues, investigatory materials, and emotional interactions, such as tone of voice and nonverbal communication. They note that many reforms have been instituted to improve the prosecutability of child sex abuse cases. But these very reforms coupled with a zeal to "protect" children by less-than-well-trained examiners can have confounding and contaminating results. One unpublished Hawaii opinion ruled that two children were disqualified from testifying in a sexual abuse case, based on an expert's opinion that each child had been subjected to layers and layers of interviews, questions, examinations, etc., which were fraught with textbook examples of poor interview techniques. State v. McKellar, No. 85-0553 (Haw. Cir. Ct. Jan. 15, 1983), cited in Bulkley (1989).

Based solely on the material I examined and, based on 12 years experience with child abuse investigations, it is absolutely impossible for me to give any credibility whatsoever to the allegations made by Jane. In reality, there is not one ounce of proof that Jane actually made the allegations. Based on everything I have read, adults claim that Jane accused her grandfather, but I have seen nothing that indicates to me that Jane has actually said anything, short of the interview transcripts. Even considering those transcripts, I see absolutely no validity to the allegations, simply because it is not possible to know what allegations are hers and what allegations were inadvertently put into her head during the entire investigative and interview process. Clearly, the interviewer at the Advocacy Center was of the opinion that Jane had been abused, even before she talked with Jane. She used her interview simply as a means of validating what she had already been told and, on at least two occasions, appeared to become frustrated with Jane because Jane was not providing the responses she desired.

Again, based on the information supplied in the report, Jane has most probably either been interviewed or discussed the allegations with no less than 5 people and there is no telling on how many occasions. In a case of this nature, when an allegation surfaces, one, proper interview, conducted by an unbiased and experienced examiner, is the recommended protocol.

In addition to questionable interview techniques, there are other issues we have been faced with that may provide assistance to a defense attorney who may not be familiar with the proper techniques.

Department of Human Services

Child Abuse Accommodation Syndrome

Motion to Compel

Defense Denied Independent Psychological Examination

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