What False Allegation Defense Attorneys
Should Know
Allen Cowling
Cowling Investigations, Inc.
You have accessed one of the many
pages here at the Cowling Investigations, False Allegation Defense Website.
Our main links are located at the bottom of this page. For an explanation
of how we handle a false allegation defense, see Our
Expertise, We Can Help. |
Most unfortunately, in case after case, that I am personally involved in,
I see interview examples, involving child accusers, that are absolutely absurd.
In many cases, these interviews actually contribute to the allegations
themselves. In one case, an elderly gentleman was accused of fondling and
penetrating a young girl's vagina, with his finger, and he was facing two
felony indictments, accordingly. Amazingly, when I had the opportunity to
review all the material, including audio and video tapes of the interviews
of that child, I quickly discovered that the child had never personally made
any allegation. What she had done was to agree with her interviewer that
it had happened. There is a great deal of difference in making an allegation
and simply agreeing with someone who says they think that it happened.
There is no set, standard rule that governs proper interviewing techniques
and the greatest majority of those interviewing child accusers have no real
specialized training, but there are recommended guidelines, as noted in the
following "Policy Statement" from the American Academy of Child and Adolescent
Psychiatry, and it is vital that any defense attorney realize and understand
these guidelines.
The explosion of cases involving allegations of child sexual abuse exceeds
the resources available to deal with the problem. Many clinicians lack specific
training in this area, and the legal profession is often confronted with
an array of self-identified experts who have emerged to fill the void.
Unfortunately, these evaluators often used inadequate diagnostic techniques
and fail to evaluate the child within the context of the family. If conclusions
are drawn on the basis of inadequate in insufficient information, children
may be harmed, parent-child relationships seriously damaged, and these cases
contaminated to the point that courts and other professionals have great
difficulty sorting out what did or did not occur.
The following guidelines have been developed to assist clinicians performing
these evaluations and, the purpose of the clinical evaluation of child sexual
abuse is to determine whether:
-
Abuse has occurred
-
If the child needs protection and
-
If the child needs treatment for medical or emotional problems
The Choice of Clinician to Evaluate the Child for Sexual abuse
-
Persons doing evaluation must be professionals with special skills and experience
in child and adolescent sexual abuse, and evaluations ideally should be performed
under the direction of an experienced child and adolescent psychiatrist or
psychologist. Clinicians performing these evaluations should possess sound
knowledge of child development, family dynamics related to sexual abuse,
effects of sexual abuse on the child, and the assessment of children, adolescents
and families. Further, they should be trained in the diagnostic evaluation
of both children and adults. They should be comfortable with testifying in
court and prepared and willing to do so.
-
It is important to establish that specialized training has been obtained
either during the professional's formal training program or at a later time.
The Number of Times the Child is Interviewed
The Location of the Interview
-
The interview should take place in a relaxed environment, preferably not
in an emergency ward or in a place with the trappings of authority such as
a police department or a principal's office. The child should be allowed
privacy without interrupting phone calls or people coming in and out of the
room.
Obtaining the History
-
Gathering a history on the child or adolescent form parents or care givers
is an important part of the evaluation and should include: developmental
history, cognitive assessment, history of prior abuse or other traumas, relevant
medical history, behavioral changes, history of the parent's abuse as a child,
and the family's attitudes towards sex and modesty. Prior psychiatric disorders
in the child or parent are also relevant.
Interviewing both Parents in Intrafamalial Abuse
-
It is essential to obtain a history from the perspective of each parent.
The clinician needs to be able to consider all sides of the story, and any
other stresses besides sexual abuse, that could account for the child's symptoms.
Sufficient time should be spent with each parent alone. This should include
a psychiatric assessment of each parent, especially if there is concern that
the allegation may be false, or when a parent was abused as a child. When
the accused family member is not present, that person should be interviewed
as well.
Use of Guardian ad Litem
-
If custody is an issue, a guardian ad litem for the child should be appointed
to represent the child's best interests, preventing parents from subjecting
the child to multiple evaluations in the hope of finding an expert who will
support one or another's contentions.
Considering False Allegations
-
The possibility of false allegations needs to be considered particularly
if allegations are coming from the parent rather than the child, if parents
are engaged in dispute over custody or visitation, and/or if the child is
a preschooler. Under such circumstances, the clinician should meet alone
with the child to establish trust and ensure that the child will feel some
degree of control over the interview with the alleged offender. If the child
is too upset by the proposed visit, and there is risk of traumatizing, the
clinician may decide that the visit with the alleged offender should not
occur. Resistance from a parent alone is not a reason to avoid this part
of the evaluation.
-
False allegations may arise in other situations as well, such as the
misinterpretation of a child's statement or behavior by relatives or caretakers.
Adolescents may also occasionally make false allegations out of vindictiveness
or to cover their own sexuality. Children who have experienced prior sexual
abuse may sometimes misinterpret actions of adults or accuse the wrong person
of abuse.
Modification in the Clinical Evaluation
-
The magnitude of the charges involved in alleged sexual abuse, and their
ramifications in terms of legal sequelae and impact on the family, require
diagnostic evaluations with certain modifications. These evaluations differ
from the usual psychiatric evaluation, because the examiner is being asked
to determine whether certain events occurred, and determine at least on
individual's credibility. It is essential that the clinician maintain emotional
neutrality, approach the case with an open mind, adapt a non-judgmental stance
and seek out the unique particulars of each case. Great care must be taken
to avoid leading questions and coercive techniques; the child must be allowed
to tell his story in his own words. The clinician needs to focus on detailed
descriptions of discrete events more than once as accounts may change or
new information may emerge. Finally, these evaluations differ from usual
clinical evaluations in that more effort needs to be invested in obtaining
corroborating information from other sources. This may include medical or
school reports, prior psychiatric evaluations, and talking with significant
others.
Assessing the Child's Credibility
Anatomically Correct Dolls
-
In these assessments, it is not necessary to use anatomically correct dolls.
They may be useful for eliciting the child's terminology for anatomical parts,
and for allowing the child who cannot tell or draw what happened, to demonstrate
what happened. Care should be taken not to use these dolls to instruct, coach,
or lead the child. Further, they should not be used as a short cut to a more
comprehensive evaluation of the child and the child's family. The examiner
should anticipate being asked in court that such aids alone do not provide
reliable answers. (California has barred the admissibility of evidence obtained
through use of anatomically correct dolls until such a time that the procedure
has been accepted as reliable in the scientific community in which it was
developed.)
The use of Children's Drawings
-
Children's drawings are helpful in assessing child sexual abuse. These include
spontaneous drawings, or asking the child to draw a male and female, kinetic
family drawings, self-portraits, what happened and where it happened, or
even a picture of the alleged offender. The usefulness of drawings lies in
the affect and information they elicit and certain findings which may be
suggestive of sexual abuse as depiction of genitalia or avoidance of sexual
features altogether. However, as with any other tool, they should be interpreted
by an experienced clinician and in the context of the overall clinical picture.
Videotaping
-
Videotaping, when possible, can serve several useful purposes including 1)
preserving the child's initial statements; 2) avoiding duplication of efforts
by sharing the video with others involved in the investigation; 3) encouraging
the defendant to plead guilty, thereby sparing the child from testifying
in court; 4) presenting the video to the grand jury in lieu of the child;
and 5) as a teaching tool to help the interviewer and other improve techniques.
-
In making a videotape, the following concerns, disadvantages or risks should
be taken into consideration: Videos can be used to harass or intimidate the
child on cross-examination, or reviews may regard the testimony as more credible
because it was given on video. Videos might be shown out of context or fall
in the hands of those who have no professional obligations of confidentiality
or concern for the child's best interest. Clinicians should familiarize
themselves with laws in their state relative to admissibility of videotaped
testimony.
-
The child should always be informed as to the purpose of the videotape and
about who is present if a one-way mirror is being used. Parental consent
and the child's consent should be obtained to videotape.
Psychological Testing
-
Testing alone does not diagnose sexual abuse either in the victim or offender.
It is helpful as a part of the evaluation of the alleged offender, and in
case of possible false allegations, it may be helpful to have testing of
both parents. In all fairness, if testing is done on one parent, it should
be done on the other as well. Testing of the victim may be indicated if there
are questions about intelligence or thought process.
Reporting
-
Child sexual abuse must be reported in accordance with ethical and legal
requirements in each state. Clinicians should be aware of these requirements.
The parent(s) and child should be informed as clinically indicated, and to
the extent that the child protective services investigation begins, it often
becomes difficult to obtain a history from the accused parent, who may become
defensive.
The Medical Evaluation
-
Every child who may have been sexually abused should have a physical examination.
The medical exam gathers medico legal evidence and treats any problems related
to the abuse. It can be informative and can reassure the child and adolescent.
Preferably, the examination should be performed by a pediatrician or family
physician known to the child or by a pediatric gynecologist. The physician
should know the ramifications of an examination carried out in this context.
Such evaluations require special training which many physicians in the community
have not yet obtained. Thus it is important to determine the qualifications
of the physicians planning to do the physical exam. When possible, the child
should be allowed to choose the sex of the examining physician. It is recommended
that a trusted, supportive adult remain with the child during the evaluation.
-
Whenever there is the possibility of obtaining forensic evidence, the exam
should take place promptly. If the child has been raped, or there is a
possibility of acute trauma or infection, or the abuse occurred within 72
hours of the disclosure, the child should be examined as soon as possible
in order to obtain forensic evidence. Preferably, the child should be seen
in a physician's office rather than an emergency ward. The genital exam may
be conducted in the context of an overall physical so as to de-emphasize
it, and the child should be informed of what the physician is doing and be
told afterwards what the findings are. It should be remembered that a negative
genital exam does not rule out sexual abuse. The child's emotional state
and degree of relaxation may affect the findings on both vaginal and rectal
exams. If the child refused to cooperate with the physical exam for reasons
of trauma, consideration should be given to deferring the exam until such
a time when, with benefit of counseling, the child is deemed able to cooperate.
-
If a child is already being evaluated by a mental health professional, the
physician doing the physical exam should be sensitive to the child and minimize
questions about the abuse so as to avoid contaminating the child's data and
duplication of interviews.
Formulating Recommendations
-
The clinician needs to decide, based on history, an evaluation of child and
parents, a review of corroborating evidence of child and parents, and a review
of corroborating evidence, whether or not any sexual abuse occurred. A carefully
written report should document the basis for these determinations. The next
question concerns the immediate disposition of the child and whether it is
safe to allow the child to return home. This decision is usually made by
protective services, but the clinician's opinion is helpful. The decision
will take into consideration whether or not the family believes and can protect
the child, what the child's wishes are (depending on the age of the child),
and, if living in the home, whether the offender is willing to take
responsibility for his or her actions and seek help. Prior psychiatric problems
which may have predisposed the abuse need to be sorted out from reactions
to the abuse and its aftermath. Diagnostic impressions should be made and
decisions need to be made as to what sort of treatment is recommended and
for whom. This may include a range or combination of treatment modalities
including individual, family, group and couples therapy, as well as behavioral
and pharmacological approaches to the offender.
-
In some cases the evaluator may not be able to determine whether sexual abuse
occurred. There are a number of reasons why this may be the case, including
contamination by too many evaluations, particularly biased or leading ones.
In addition, the child may be too young to verbalize what occurred, the abuse
may have happened too long ago, or the child may have been subjected to the
under influence of competing parents and no longer knows what to believe.
In such cases, the clinician must attempt to offer the child reasonable
protection while also preserving parent-child ties.
-
The effects of child sexual abuse are diagnosable in the same sense that
other medical conditions are diagnosed - - on basis of history, physical
examination and the judicious use of various tests. Rarely is one finding
alone diagnostic of sexual abuse; rather, findings must be interpreted within
the total context of a thorough evaluation. However, if the case proceeds,
one may be expected to explain opinions in terms of reasonable degree of
medical certainty.
As previously mentioned, there are no set standards for interviewing a child accuser, however, the guidelines above were taken directly from the specific policy statement of the American Academy of Child and Adolescent Psychiatry and should carefully considered by any attorney who is defending a client who has been falsely accused of child sexual abuse.
|