By Kara Comte
Assistant District Attorney in Brazos County
“A child’s voice, however honest and true, is meaningless to those who have forgotten how to listen.”—Albus Dumbledore
Child sexual abuse cases: You either stay as far away from them as you can, or you love trying them. If you are one of those prosecutors who takes on child sexual abuse cases and you haven’t already had that case, one day you will. You know which case I’m talking about: A child discloses abuse that occurred six months ago, or two years ago, or five years ago, or abuse that started when she was 6, ended when she was 12, and now she’s 16 and she’s never told anyone. In fact, she’s even denied being abused to some people. As with most child sexual abuse cases, you will be left trying to prove a case with the testimony of the child alone.
When we prosecutors are faced with such a set of facts and left with just the word of the child—and no one believes kids—I guess we should just walk away from it, right?
Wrong!
I know you must be wondering, “How on earth can I prove a child sexual abuse case that happened years ago with just the kid’s testimony?” Using the tools in this article, you don’t have to. It is possible, and even encouraged, to try such cases just by seeing the world through the victim’s perspective and, more importantly, helping the jury to do the same.
Of course, it is important to find any kind of evidence to corroborate a child’s testimony in any way you can.[1] But at a minimum, the jury needs to understand how children disclose abuse. Specifically, jurors must understand that disclosure is generally a process, rather than an event, and that the process of disclosure has several stages. In some instances, children may disclose abuse immediately, but it is much more common for children to disclose at a later date. Likewise, while some children may give all of the details in their first disclosure, it is more likely that they will disclose a little at a time, rather than giving all the details at once.
To help jurors learn how disclosure works, prosecutors should use expert witnesses.[2] That expert testimony can corroborate the child victim and help the jury understand the horrible world they are hearing about. In other words, remind the jury how to listen to children. This article will focus on the process of disclosure of child sexual abuse and how prosecutors can use experts to their advantage in this area.
Finding an expert
What type of expert are we talking about? You could use a counselor who has treated the child, a psychologist, or even the forensic interviewer who did the initial interview of the child.[3] In Brazos County, we often use one of the forensic interviewers from Scotty’s House, our local Children’s Advocacy Center. We do this for two reasons: 1) they are expertly trained and have spoken to hundreds, if not thousands, of child abuse victims,[4] and 2) frequently, they will also be the outcry witness and can serve multiple roles in the case.[5]
What evidence can we introduce through an expert? What specialized knowledge does he or she have that could help the jury? The world of child abuse is often unfamiliar to the average juror. Most parents teach their children to tell immediately if someone touches them, so it may seem odd to some jurors if a child does not disclose abuse for years or is inconsistent in what she reports. Unfortunately, we must bring those jury members into the world of child abuse and help them understand why a child might wait to disclose abuse or why they might change their testimony over time. Remember that disclosure of abuse is generally a process, not a singular event.[6] Walking the jury through that process is critical in supporting the credibility of a child victim.
Steps of disclosure
The process of disclosure can be broken down into five steps:[7]
1) denial
2) tentative disclosure
3) active disclosure
4) recantation
5) reaffirmation
While we refer to them as steps, not every child will experience each step, nor will a child progress through the steps in any particular order. However, it is critical to understand each step and how it plays into the disclosure of abuse.
Denial
It is not uncommon for children to deny any form of abuse, even when asked directly if anything has happened to them.[8] This denial can occur for any number of reasons: fear of not being believed, fear of getting in trouble, a promise to keep a secret, or even not understanding that what is happening is wrong.[9] In one Swedish study, experts reviewed a case in which officers conducting a search warrant found numerous videotaped acts of abuse on 10 different children.[10] Prior to the videos’ discovery, none of the children had disclosed any abuse. Even after the discovery, most of the victims denied or minimized the abuse they endured when they were interviewed.[11]
In a 1991 study published by Teena Sorensen, a Licensed Psychiatric Nurse Specialist, and Barbara Snow, a Licensed Clinical Social Worker, 116 confirmed cases of child sexual abuse were examined, and they found that 72 percent of those children initially denied any form of abuse before moving into disclosure.[12] If you have ever tried a child sexual abuse case and asked potential jurors if any of them had experienced childhood abuse (and in my experience, many people raise their hands to say yes), my guess is that you have had someone disclose sexual abuse for the first time.
Two types of disclosure
Before talking about the types of disclosure, note that there are two methods of disclosure: accidental (not an intentional or deliberate disclosure on the victim’s part) and purposeful (a child makes a conscious decision to disclose).[13] Examples of accidental disclosure might include telling a friend in confidence, writing in a journal with no intent that it be discovered, or even sexual behaviors that are not appropriate for the child’s age. In a case in which a child discloses accidentally, it is less likely that the defense will successfully argue that the child was trying to get the defendant in trouble. If the child didn’t want anyone to know about the abuse, why would he or she falsify these allegations?
Purposeful disclosure can occur after an educational situation, such as sex education at school, during a time when the perpetrator no longer has access to the child, or even when the child victim is concerned that a younger sibling is also being abused. A purposeful disclosure can be corroborated by school records to show what the child was learning, or with the testimony of another victim in a situation where a sibling or another child also discloses.
In their study, Sorensen and Snow found that accidental disclosure was more common in young children, while purposeful disclosure happens more with adolescents.
So, how does disclosure occur?
Tentative disclosure
In most cases, disclosure starts tentatively. This can be best compared to dipping a toe in the swimming pool to test the water’s temperature. The child making a tentative disclosure is trying to discern what reaction she will receive by revealing this very private information. When a child receives a “favorable” response or is embraced and believed, she is more likely to move on to the active disclosure step. However, if the child is not believed or perceives that she is in any form of trouble, she is more likely to back off the statement and maybe even recant.[14]
Active disclosure
When a child progresses to or is engaged in active disclosure, he is giving details of specific events of sexual abuse.[15] It is most often done during the investigation of the case or during forensic interviews. During the active disclosure step, it is critical for prosecutors to look for information that could be used to corroborate the child’s outcry and support the victim’s testimony in court.
As we have previously discussed, disclosure is generally a process and not an event. As a result, it is very common that “rolling” disclosures will occur.[16] Rolling disclosures happen as the process goes on, in that the child is likely to give additional details or even describe additional acts of abuse. These ongoing, or rolling, disclosures may occur to parents, therapists, counselors, or even prosecutors and victim assistance coordinators. In my experience, it is not uncommon for a child to disclose additional acts of abuse while preparing for trial or even in the middle of trial while waiting to testify. When those additional disclosures are made to a counselor who also serves in an advocacy role (for example, a counselor at the Children’s Advocacy Center who specializes in treating victims of abuse), that witness can serve as an expert in disclosure as well as possibly an outcry witness to any additional acts of abuse that are disclosed.[17] Active disclosure, when a child is giving details of the abuse, is how we as prosecutors ascertain whether an offense occurred and whether we can prosecute. If a child does not give the details to someone, we are unable to look for corroborating evidence and often will not have an offense to charge.
Recantation
Even after a child has disclosed abuse in a forensic setting, it is not unusual for him to later recant the disclosure. The reasons for recantation are not that different from why victims of family violence later want to drop charges: pressure from the abuser, pressure from family, investigatory or legal proceedings, or even negative personal consequences.[18] When a child recants, it is critical to schedule a recantation interview at the Children’s Advocacy Center.[19] A recantation interview is generally done by the same forensic interviewer the child saw the first time. However, this time, the interviewer does not discuss the abuse with the child. Instead, she talks about what has been happening in the child’s life since the initial disclosure.[20] For instance, the interviewer might ask, “What’s going on at home? Who is in the home now? How is your mom doing?” The answers to these questions may allow the prosecutor to use the reasons for recantation as evidence to corroborate the child, much like forfeiture by wrongdoing in family violence cases. Sorensen and Snow found that children recanted their allegations in 22 percent of the cases they studied.[21]
Reaffirmation
However, the study further showed that of those who recanted, 92 percent later reaffirmed their initial disclosure.[22] A recantation interview can help with the movement to reaffirmation. When a child victim feels supported and believed, she is more likely to stand firm in the truth than to revert to a place that’s unsafe but that feels familiar.
At this point, I want to take a minute to hop on my “soapbox,” as a coworker calls it. When a child recants, it does not mean that we should walk away from the case. By taking the time and putting in the extra work of a recantation interview to find out why the child is recanting and following up on the child’s answers during that interview, we may find evidence of post-outcry pressure or abuse in the home. We also might discover the rare instance when a child has made a false disclosure and a true recantation. In either situation, we are not jumping to conclusions and are ensuring that justice is done.
Using this info in trial
As in every jury trial, it is critical for prosecutors to begin this discussion of disclosure of abuse during voir dire. In a delayed outcry case or one where the child victim has been inconsistent, have a discussion with the panel about expectation versus reality. As I discussed earlier, parents teach their children to tell someone when they have been touched inappropriately. In cases where a child has not told, we must help the jury understand why a child might delay in disclosing or deny any abuse occurred. This conversation will undoubtedly reveal that our expectation that a child will tell immediately doesn’t really apply in certain cases, such as when the parent or other authority figure in the home is the one abusing the child. We want to prepare the jury for what they will hear from an expert and from the child victim regarding why the outcry was delayed or recanted. The testimony they will hear will likely very closely resemble the responses panel members will give in response to the prosecutor’s questions during voir dire.
Conclusion
Child sexual abuse is a crime that happens behind closed doors. It is a crime with no outside witnesses and typically no physical evidence. Prosecutors are left with the word of a child who has often been inconsistent. That inconsistency, though, can be a powerful factor if the jury can understand the steps of disclosure.
That process of disclosure is what child abuse cases often look like, and as prosecutors, we should fearlessly pursue them. Hearing the word “guilty” and seeing the relief on a child’s face after testifying is a feeling that cannot be replaced. As we say in our office, these cases are high-risk, high-reward. There are no cases that are more important. Experience teaches us that with child predators, there are other kids out there who will become victims if we do not see justice done. When we are armed with the reasons behind the delays, denials, and inconsistencies, we can use those reasons as a guide to bring the jury to a true and just verdict.
Endnotes
[1] Corroboration of a child’s testimony can be found in school records, counseling records, pictures, journals, and so much more. But that is an entirely different article!
[2] Morales v. State, 32 S.W.3d 862 (Tex. Crim. App. 2000) (expert testimony must relate to pertinent facts of the case); Cohn v. State, 849 S.W.2d 817 (Tex. Crim. App. 1993) (expert can testify about behaviors that are consistent with sexual abuse, including delayed disclosure, and that testimony can be presented as substantive evidence rather than being allowed only to rehabilitate child victim), overruling Duckett v. State, 797 S.W.2d 906 (Tex. Crim. App. 1990).
[3] Lair v. State, No. 02-12-00068-CR , 2013 Tex. App. LEXIS 9906, *6-*8 (Tex. App.—Fort Worth 2013, pet ref’d) (not designated for publication), citing Morris v. State, 361 S.W.3d 649, 666 (Tex. Crim. App. 2011) (discussing “grooming” testimony and explaining that such “evidence has been received by courts from numerous types of experts—which include psychiatrists, psychologists, therapists, []social workers[, and] law enforcement”).
[4] See Martinez v. State, No. 01-15-00823-CR, 2016 Tex. App. LEXIS 12345, *11-15 (Tex. App.—Houston 2016, pet ref’d, cert denied) (not designated for publication) for a great summary of the testimony of Cameron Collins Hines, the forensic interviewer we, as well as several surrounding counties, often use in our child abuse cases.
[5] Be sure to use expert witness’s curriculum vitae (CV) in trial preparation. Oftentimes, the CV is useful to learn more about what the expert has done and is able to testify to, allowing prosecutors to call this particular expert for more than just outcry or disclosure purposes. For instance, maybe this expert witness has created a tool for preparing children for court or helping them through the criminal justice process. This creates instant credibility in the eyes of the jury and enhances all of the testimony the expert will provide.
[6] See Lair, 2013 Tex. App. LEXIS 9906 at *6-*8.
[7] Teena Sorensen and Barbara Snow, How Children Tell: The Process of Disclosure in Child Sexual Abuse, Child Welfare, 70(1):3-15 (1991). If you want a copy of this study, feel free to reach out to me at kcomte@ brazoscountytx.gov, and I will send it to you.
[8] Id.
[9] Ann-Christin Cederborg, Michael E. Lamb and Ola Laurell, Delay of Disclosure, Minimization, and Denial of Abuse When the Evidence is Unambiguous: A Multivictim Case, in Child Sexual Abuse: Disclosure, Delay, and Denial, 159-173 (2007).
[10] Id.
[11] Id.
[12] Sorensen & Snow.
[13] Id.
[14] Id.
[15] Id.
[16] See Lair, 2013 Tex. App. LEXIS 9906 at *8-*11.
[17] Counselors who treat other children as well as child abuse victims may not be as well-versed in the dynamics of child abuse disclosure.
[18] Sorensen & Snow.
[19] Carmit Katz, “Please believe me; I am the biggest liar that exists”: Characterizing children’s recantations during forensic investigations, Children and Youth Services Review 43, 160-166 (2014).
[20] Id.
[21] Sorensen & Snow.
[22] Id.