Mother and Father
[2006] FCWA 89
•01/01/2006
AUTHORISED FOR PUBLICATION
JURISDICTION:
FAMILY COURT OF WESTERN AUSTRALIA
| ACT: | FAMILY LAW ACT 1975 |
| LOCATION: | PERTH |
| CITATION: | Mother and Father [2006] FCWA 89 |
| CORAM: | THACKRAY J |
| HEARD: | |
| DELIVERED: | |
| FILE NO/S: | |
| BETWEEN: | Mother |
Applicant
AND
Father
Respondent
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Catchwords:
Children – parental responsibility – residence – allegations of sexual abuse – inability of mother to promote relationship with father – impact of legislative amendments – research on reliability of disclosures by young children
Legislation:
Family Law Act 1975, s 4, s 60B, s 60CA, s 60CC, s 61DA, s 65DAA, s
68F(2)
Family Law Amendment (Shared Parental Responsibility) Act 2006
Category: Reportable
Representation:
Counsel:
Applicant :
Respondent :
Child Representative;
Solicitors:
Applicant :
Respondent :
Child Representative:
Cases referred to in judgment:
B & B (1993) FLC 92-357
Commonwealth of Massachusetts v Le Fave (unreported) delivered on 12
June 1998
K v B (1994) FLC 92-478
M v M (1988) FLC 91-979
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Re W (Sex Abuse Standard of Proof) (2004) FLC 93-192
State of New Jersey v Michaels 642 A.2d 1372 (N.J., 1994)
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ABRIDGED JUDGMENT
WARNING
[2006] FCWA 89
Persons viewing this judgment should note that the Honourable Justice Thackray has made an order restraining publication of any account of this judgment in any newspaper or electronic media without prior approval of the Principal Registrar of the Family Court of Western Australia.
The full text of the order is set out below.
On the Court’s own motion, the following orders are made:
1. Until further order of the Court, the parties and any other person having access to the judgment delivered in these proceedings on 8 September 2006 is restrained and an injunction is hereby granted restraining them from publishing in any newspaper or electronic media (save as permitted by ss 121(9)(e) and (f) of the Family Law Act 1975) any account of the judgment other than in a form authorised in writing by the Principal Registrar of the Court.
2. Any person seeking to publish an account of the judgment shall make application in writing to the Principal Registrar, such application to be accompanied by a copy of the account proposed to be published.
3. The parties and any other person interested shall have liberty to apply to the Honourable Justice Thackray to vary or set aside the terms of this order.
4. The Principal Registrar shall cause a copy of this order (with identifying information removed) to be attached to any copy of the judgment that may henceforth be made available by the Court.
| 29 January 2007 | ……………………….. |
ASSOCIATE
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1 These proceedings concern six-year-old Robbie. Robbie’s mother, Sarah is convinced he has been sexually abused by his father, Luke. She also believes Robbie has been abused by his grandfather and that his grandmother has covered up the abuse. These allegations are vigorously denied by Luke and his family.
Orders sought
2 Sarah originally proposed that Robbie remain living with her and have no contact with Luke. She has since amended her application to propose supervised contact; however, it is obvious she only did so because she has been advised it is unlikely the Court will terminate contact.
3 Luke originally agreed to Robbie living with Sarah; however, he now seeks an order for Robbie to live with him. He proposes that Sarah’s contact be supervised until the Court Expert recommends otherwise.
[His Honour then dealt with issues relating to the conduct of the trial, the lengthy written submissions and the applicable law following the commencement of the Family Law Amendment (Shared Parental Responsibility) Act 2006]
Approach to allegations of sexual abuse
9 It is vital for the many people interested in Robbie’s welfare to understand the role of the Family Court in dealing with allegations of sexual abuse. The well-accepted maxim of our criminal justice system that “it is better for 10 guilty men to go free than one innocent man be convicted” has no application in a jurisdiction where the best interests of the child are the paramount consideration.
10 The approach adopted in cases involving sexual abuse allegations prior to the recent amendments was enunciated by the Full Court of the Family Court of Australia in B & B (1993) FLC 92-357 and the High Court of Australia in M & M (1988) FLC 91- 979. The Full Court in B & B outlined the approach at 79,777- 79,781:-
"The Family Court is a civil court in which trial Judges are required to hear and determine cases in the course of which evidence of the parties and their witnesses must be analysed
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and findings made based upon the civil standard of proof, that the court may make one of the following findings in relation to an allegation of child abuse:
is to say, on the balance of probabilities.
It is not appropriate for Judges of the Family Court to conduct
cases in which allegations of child sexual abuse have been
made as criminal trials which seek to establish the guilt or
innocence of one of the parties in relation to allegations of
sexual abuse with the consequential result being that if the
allegation be proved, access will be suspended whereas if theallegation be not proved then access will be ordered.
(a) that the allegation is proved; or (b) the allegation is not proved; or (c) there is insufficient evidence to determine either (a) or (b).
Briginshaw v. Briginshaw & Anor (1938) 60 C.L.R. 336 at p. 362 demonstrates:
Any such finding, however, may not necessarily be the standard and the civil standard, although the civil standard may vary according to the gravity of the finding to be made as the following passage from the decision of the High Court in
determinant factor in the ultimate decision.
The issue for the court, in our view, is not whether a parent
has sexually abused a child but whether in all the
circumstances of the case access should or should not take
place, following a consideration and evaluation of the various
matters referred to in sec. 64(1), including any finding in
relation to child sexual abuse, with the overriding principle
being the paramountcy of the welfare of the child.
It follows, therefore, that the proper venue for the
determination of the guilt or innocence of a parent of a child
to an allegation of child sexual abuse is the State criminal
courts and not the Family Court.‘... The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect
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the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences ...’
In our view, the finding as to whether a child has or has not been abused and the finding as to whether a child will be at risk in the future if access occurs, must be arrived at following the application of the civil standard of proof, bearing in mind the above test when determining the gravity of the allegation.”
11 In M v M (1988) FLC 91-979, the High Court said (at 77,081) that in cases involving allegations of sexual abuse:-
“To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.”
12 The Full Court of the Family Court also gave the following advice in Re W (Sex Abuse: Standard of Proof) (2004) FLC 93-192 at [19]:-
“The termination of a worthwhile relationship between the parent and child ought in most cases be the course of last resort. The Court should not shy away from reaching such a result in an appropriate case but at all times judges should be conscious that the adversarial or inquisitorial systems often reach results that are artificial. The truth does not always come out. A false negative finding accompanied by appropriate safeguards as to the future relationship between parent and child, such as adequate supervision to guard against possible abuse, may be far less disastrous for the child than an erroneous positive finding that leads to a cessation of the parent-child relationship. The Court needs to remain conscious of this imperfection at all times.”
13 The Full Court went on to cite with approval these observations of Kay J in K v B (1994) FLC 92-478 at 80,972:
“In cases of alleged sexual abuse, there is a significant risk that the ultimate effect of orders to be made by the Court, and of the proper operation of the legal system, will be overlooked in the Court’s anxiety to ensure that the risks of sexual interference are minimised. Where the evidence of sexual abuse consists of ambiguous statements of a pre-kindergarten
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aged child coupled with perceived but possibly otherwise explicable behavioural changes, it is almost impossible for the party denying any impropriety to prove that party’s position.
In an article entitled “Prediction, Prevention and Clinical Expertise in Child Custody Cases In Which Allegations of Child Sexual Abuse Have Been Made”, appearing in Volume XXVI No. 2 Summer 1992 Family Law Quarterly (Publication American Bar Association Section of Family Law), at p 170, it was observed:
“Unfortunately the magnetising force of the simple allegation of a heinous event such as child sexual abuse, which legitimately invokes consideration of the possibility of that event, draw the clinician — and perhaps even judges and jurors as well ... away from what ought always to be the starting point of her or his evaluation enquiries, which is that the event did not (or very highly probably did not) occur. Because the null hypothesis (and, correlatively the absence of an event) cannot be proved, in their testimonies concerning possibilities of alleged events, clinicians strongly resist exonerating the targets of their evaluation. Because it is always possible that a given individual — even one randomly drawn from the general or a specific population — has sexually molested a child, an inconvertible proof that the individual has not molested a child is impossible.”
The article concerns itself with research carried out at the University of Michigan. Case notes concerning the possible sexual abuse of a three year old child were provided to 8 senior clinical psychologists, 23 graduate students undergoing clinical training in psychology and 50 members of staff of child guidance clinics including social workers, clinical psychologists and psychiatrists all specialising in child development in areas of child mental health. They were asked individually and then in groups to evaluate the probabilities that sexual abuse had occurred and then to recommend what if any ongoing child/father contact should take place.
The range of opinion on whether there had been abuse was so wide that the authors concluded as follows:
“The most striking feature of these studies’ findings is the extremely large range across experienced and non-
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experienced clinicians of estimates concerning the likelihood that Melissa was sexually abused by her father. When given all of the relevant facts of the case, child experts and trainees varied greatly in their individual judgment ... These findings lend strong support for the view that individual experts can provide courts little if any assurance that they are able to provide even crudely reasonable (i.e. objective) estimates of likelihood that child sexual abuse has occurred or will occur, when they are confronted with the same set of ambiguities faced by the courts in these cases.”
14 In commenting on these remarks of Kay J, the Full Court in
Re W (Sex Abuse: Standard of Proof) (supra at [21]) said:
“The lessons to be learned have not changed. The risk that the Court will find heinous behaviour where none has occurred needs be borne in mind at all times. The harm and injustice that flows to both parent and child from an erroneous positive is almost too horrible to contemplate.”
15 By virtue of the amendments, the objects of the Act now include the proposition that children’s best interests are met by protecting them “from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence”. This is hardly a novel proposition, and it echoes one of the factors previously taken into account under s 68F(2). The elevation of this proposition from a factor to be taken into account, to an express object of the legislation, makes no difference to my obligation to make the order most likely to promote Robbie’s best interests. Accordingly, I do not consider the force of the authorities discussed above has been affected by the amendments. I therefore intend to keep those authorities firmly in mind.
Relevant research
16 In arriving at my decision, I must give careful consideration to the reliability of Robbie’s “disclosures”. Counsel for the Child Representative provided a document which draws together some of the research relating to the “accuracy of young children’s memories and the degree to which young children’s memories and reports can be moulded by suggestions implanted by adult individuals”. Sarah and Luke consented to this document being introduced into evidence. I consider it to be of such importance that I propose to discuss it before setting out my findings.
| (Page 9) | |
| 17 | The document in question is the Amicus Brief filed in the Supreme Court of New Jersey in what was to become the landmark case of State of New Jersey v Michaels 642 A.2d 1372 (N.J., 1994). The brief was prepared by a “committee of concerned social scientists”, but was primarily written by Dr Maggie Bruck of McGill University and Dr Stephen Ceci of Cornell University. The Brief was endorsed by more than 40 academics, all of whom held a Ph.D. and posts in universities across North America. |
| 18 | For those unfamiliar with the concept of the “amicus brief”, it can be briefly described as a document filed in an appellate court by a third party who wishes to volunteer information on a point of law or some other aspect of the case to assist the court in determining the matter before it. The decision whether or not to admit the information is entirely within the discretion of the appellate judges. |
| 19 | The Amicus Brief in State of New Jersey v Michaels was a lengthy essay and it is impossible to do it justice by paraphrasing. On the other hand, it is not realistic to repeat all its contents. Although I consider the entire document essential reading, I intend to adopt a mid-course by citing from it extensively. (The “Wee Care children” mentioned in the Brief are the infants who made the “disclosures” that led to the incarceration of the defendant, Kelly Michaels, who had been supervising them at their day care centre.) |
| 20 | At the outset, it is important to record that the Amicus Brief was primarily written for a forensic purpose – to show the unreliability of “disclosures” that had been obtained by the most appalling methods. Accordingly, the authors of the Brief were at pains to recognise that it could be argued that their essay contained a “biased presentation of the literature”, in that there were a number of other studies they did not discuss extensively. The authors acknowledged they had focused on studies that emphasised the weaknesses of children’s memories – and they did so because they considered those studies were of most relevance to the case for which the Brief was prepared. |
| 21 | The authors of the Amicus Brief pointed out that the other studies, which emphasised the reliability of young children’s memories, did not contain the same types of suggestive interviewing procedures as had been employed with the Wee Care children. However, they noted that what characterised many such studies were:- |
| (Page 10) |
“the neutral tone of the interviewer, the limited use of misleading[sic] questions (for the most part, suggestions are limited to a single occasion) and the absence of the induction of any motive for the child to make a false report.”
| 22 | The authors of the Brief went on to acknowledge that:- “When such conditions are present, it is a common (although not a universal) finding that children are much more immune to suggestive influences, particularly about sexual details.” |
23 Early in their discussion, the authors signalled much of what was to follow, when they said:
“Children’s suggestibility has been a focus of research since the turn of the twentieth century. There have been many studies that examine the influence of a single misleading suggestion on children’s recall of an event; generally, these studies indicate that in a variety of conditions, young children are more suggestible than adults with preschoolers being more vulnerable than any other age group…
No longer do older maxims hold that when children are inaccurate in their reporting about such events it is because they make errors of omission (i.e., they fail to report important events) rather than errors of commission (i.e., they insert inaccurate details). The newer research indicates that under certain conditions, young children also make errors of commission about personally experienced events involving their own bodies…
A review of interviews of children suspected of sexual abuse reveals that some interviewers blindly pursue a single hypothesis that sexual abuse has occurred. In such interviews, the interviewer typically fails to rule out rival hypotheses that might explain the behavior of the child. As a result, the interviewer often concludes that the child was sexually abused.
Some investigative and therapeutic interviewers claim that such techniques are necessary because sexually abused children are so scared or embarrassed that they will never willingly or spontaneously tell any interviewer, including their own parents of the past abuses. Therefore, they claim, it is necessary to use all available strategies to get the child to reveal sexual abuse. These strategies include the use of repeated leading questions, repeated interviews, bribes or
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threats, and the induction of stereotypes and expectancies (Ceci & Bruck, 1993a). Such strategies may prove successful when the child has been sexually abused; that is, the interviewer will be successful in drawing out a report of sexual abuse from the child. However, as we document below when interviewers have strong preconceived impressions of what happened, these biases can also result in the generation of false confessions from children.”
24 The Brief then discussed three studies showing that interviewers, when given false information, often shape children’s reports to be consistent with the interviewer’s inaccurate beliefs about what had occurred. One of the studies involved children, aged five and six, being exposed to a staged event that could be construed as either abusive or innocent. The scenario involved an actor playing the role of a janitor.
“When questioned by a neutral interviewer, or by an interviewer whose interpretation was consistent with the activity viewed by the child, children’s accounts were both factually correct, and consistent with the janitor's script. However, when the interviewer contradicted the script, children’s stories quickly conformed to the suggestions or beliefs of the interviewer. By the end of the first interview, 75% of children’s remarks were consistent with the examiner’s point of view, and 90% answered the interpretive questions in agreement with the interviewer’s point of view, as opposed to what actually happened. Children changed their stories from the first to second interviews only if the two interviewers differed in their interpretation of the events. Thus, when the second interviewer contradicted the first interviewer, the majority of children then fit their stories to the suggestions of the second interviewer. If the interviewer’s interpretation was consistent across two interviews, the suggestions planted in the first session were quickly taken up and mentioned by the children in the second session. Moreover, when questioned by their parents, the children’s answers were consistent with the interviewers’ biases. Finally, although the effects of the interviewers’ interpretations were most observable in terms of the children’s responses to the interpretive questions about what the janitor had done, 20% of the children also made errors on the factual questions in the direction suggested by the biased
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interpretation, even though no suggestions had been given experience an ambiguous event (e.g., touching), depending on the interviewers’ beliefs about the touching, and how these beliefs get translated into questions, children may relate that it was good touching (“my teacher was only rubbing my back”), or bad touching (“my teacher was rubbing my bum”).”
regarding these particular details.
25 The next case study involved two actors, posing as park rangers, visiting a class of pre-school children to ask for them to help a bird find a nest. During the presentation, one of the rangers accidentally knocked a cake onto the floor. It was observed that “when the cake fell and shattered on the floor, there was an abrupt silence and a halt to all activities”. Significantly, seven members of the class had been taken to other parts of the school, and did not view this event. All of the children, including those who had not been present, were questioned two weeks later. The methodology and outcome were reported as follows:
“Interviewers’ beliefs about the event were manipulated. Some interviewers had full accurate knowledge of the event. Some were given inaccurate information (i.e. false beliefs). Other interviewers were given no information about the event. The interviewers were told to question each child until they found out what happened, and to avoid the use of leading questions.
Despite the warning to avoid leading questions, 30% of all interviewers’ questions could be characterized as leading, and half of these were misleading. Interviewers with inaccurate knowledge (false beliefs) asked four to five times as many misleading questions as the other interviewers. Overall, children agreed with 41% of the misleading questions. Children who were interviewed by biased interviewers gave the most inaccurate information. Thus if an interviewer’s belief is contrary to what the child actually experienced, the interview is characterized by an overabundance of misleading questions which results in children providing highly inaccurate information.”
26 Later, in a different context, the authors of the Brief returned to this study. It will be recalled that seven children were absent when the cake fell. Yet when questioned two weeks later, six of
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these children claimed they were present. The authors of the Brief
noted:“One presumes that these six children gave false reports so that they would feel they were part of the same group as their friends who did participate. Importantly, this study also shows how the peer group’s actual experiences in an event can contaminate non-participants’ reports or fabricated memories of the event.”
27 The third case study involved pre-school children who were exposed to a “touching game” and were then interviewed a month later. The Amicus Brief described the study thus:
“The interviewer was given a one-page report containing information about what might have occurred. Some of the information was accurate and some was inaccurate. The interviewer was asked to conduct an interview to determine how much information the child could, in fact, still recall. The only instruction given to the interviewer was that she should begin by asking the child for a free narrative of what had transpired, avoiding all forms of suggestions and leading questions. Following this, the interviewer was instructed to use whatever strategies she felt necessary to elicit the most factually accurate report from the child.
When the interviewer was accurately informed, she got children to recall correctly most of the events that had transpired. There were no false reports when the interviewer was correctly informed. However, when she was misinformed, 34% of the 3- to 4-year-olds and 18% of the 5- to-6-year-olds corroborated one or more false events that the interviewer erroneously believed had transpired. Thus, in the misinformed condition, the children made errors of commission. After two such interviews, children continued to give detailed, but false, accounts of bodily touching (e.g., some falsely claimed that their knees were licked and that marbles were inserted into their ears). Finally, the children in the misinformed condition seemingly became more credible as the interview unfolded. Many initially stated details inconsistently, or with reluctance or even denial, but as the interviewer persisted in asking about non-events, some children abandoned their denials and hesitancy.
These studies provide important evidence that interviewers’ beliefs about an event can influence their style of questioning.
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This, in turn, can affect the accuracy of children’s testimony. The data highlight the dangers of having only one hypothesis about the event in question – especially when this hypothesis is incorrect.”
28 The Amicus Brief then turned to consideration of some of the interviews that had been conducted with the Wee Care children. Having given a sample of some of the interviews, the authors of the Brief made these observations:
“Thus when children’s responses contained discrepant, inconsistent, incomprehensible or no information, the investigators only considered these responses to be consistent with the fact that abuse had taken place or else they chose to ignore these statements. We are struck by the inconsistencies and the bizarre statements made by the children in response to the interviewers’ questions. Most adults interacting with children in these situations would try to figure out just what the child was thinking about or why the child might be so confused to make such statements. Yet this simply did not happen. The children were never asked common sense questions such as: “Did this happen to you or are you just pretending that it happened to you?” or “Did you see this happen or did someone tell you that it happened?” Children were never challenged about their statements, “Are you sure that this happened or are you telling me a joke?” Competent investigative interviewers would have used such techniques in order to understand how the alleged acts could actually be carried out in a short period of time in a very public place.”
29 The Amicus Brief then moved to discuss the effect of repeated questioning of young children:
“A number of studies have shown that asking children the same question repeatedly within an interview and across interviews, especially a yes/no question (e.g., Poole & White, 1991), often results in the child changing her original answer. Preschoolers are particularly vulnerable to these effects. Children often do this because they seem to reason, “The first answer I gave must be wrong, that is why they are asking me the question again. Therefore I should change my answer.” At other times, children may change their answer to please the adult who is questioning them; they reason that the “adult must not have liked the first answer I gave so I will give another answer.” At other times, children’s answers may
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change because the interviewer’s previous suggestions
become incorporated into their memories.”
30 The Amicus Brief next examined the effects of repeating misinformation across interviews. Some of their findings on this topic are set out below:
“A number of studies show that repeatedly giving children misleading information in a series of interviews can have serious effects on the accuracy of their later reports (for a review, see Poole & White, in press). Not only can the misinformation become directly incorporated into the children’s subsequent reports (they use the interviewers’ words in their inaccurate statements), but it can also lead to fabrications or inaccuracies which do not directly mirror the content of the misleading information or questions.
For example, Bruck, Ceci, Francouer & Barr, (submitted) found that children will give highly inaccurate reports about a previous visit to a pediatrician’s office if they are given multiple suggestions in repeated interviews. The children in this study visited their pediatrician when they were five years old. During that visit, a male pediatrician gave each child a physical examination, an oral polio vaccine and an inoculation. During that same visit, a female research assistant talked to the child about a poster on the wall, read the child a story and gave the child some treats.
Approximately one year later, the children were re- interviewed four times over a period of a month. During the first three interviews, some children were falsely reminded that the pediatrician showed them the poster, gave them treats, and read them a story, and that the research assistant gave them the inoculation and the oral vaccine. Other children were given no information about the actors of these events. During the final interview, when asked to recall what happened during the original medical visit, children who were not given any misleading information were highly accurate in their final reports. They correctly recalled which events were performed by the pediatrician and by the research assistant. In contrast, the misled children were very inaccurate; not only did they incorporate the misleading suggestions into their reports, with more than half the children falling sway to these suggestions (e.g., claiming that the female assistant inoculated them rather the pediatrician), but 45% of these children also
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included non-suggested but inaccurate events in their reports by falsely reporting that the research assistant had checked their ears and nose. None of the control children made such inaccurate reports. Thus, when suggestions are implanted and incorporated, young children use these in highly productive ways to reconstruct and distort reality (see Chester Study above by Clarke-Stewart et al., and Sam Stone Study below by Leichtman & Ceci for similar results).
Unfortunately, we do not have any of the initial interviews with the Wee Care children. Thus we cannot ascertain the degree to which the allegations that emerge in much later taped investigatory interviews reflect earlier implanted suggestions. It is also possible that some of the allegations that occurred in these investigatory interviews reflect suggestions implanted from earlier conversations with parents who were urged by professionals and by other parents to look for signs of abuse in their children … A consideration of the research findings suggests that if the children had not been abused, then this magnitude of repeated suggestive interviews could have the effect of increasing and cementing false reports.”
31 The Amicus Brief also considered issues arising out of the “emotional tone of the interviews” in which the children made the disclosures. In considering this topic, the authors said:
“There are many other studies in the social science literature to show that reinforcing children for certain behaviors regardless of the quality of the behaviors also increases the frequency of these types of behaviors. Telling children “you are a really good boy” is one of example of this. In some situations, when used appropriately, these types of supportive statements make children feel at ease and make children more responsive and accurate than when they are provided with no feedback or support (e.g., Goodman, Rudy, Bottoms, & Aman, 1990). If used inappropriately, however, these types of statements can also produce inaccurate statements. Thus, it has also been found that when interviewers are overly supportive of children, then children tend to produce many inaccurate as well as many accurate details (e.g., Geiselman, Saywitz & Bornstein, 1990). Certainly, there appears to be some trade-off in the effect of positive and neutral support on the accuracy of children’s reports.”
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32 The authors also discussed the effect of children being interviewed by “adults with high status”. In discussing that subject, the Brief said:
“Young children are sensitive to the status and power of their interviewers. As a result they are especially likely to comply with the implicit and explicit agenda of such interviewers. If their account is questioned for example, children may defer to the challenges of the more senior interviewer. To some extent, it is this power differential and its recognition by the child that is one of the most important explanations for children’s increased suggestibility. Children are more likely to believe adults than other children, they are more willing to go along with the wishes of adults, and to incorporate adults’ beliefs into their reports. This fact has long been recognized by researchers since the turn of the century and has been demonstrated in many studies…”
33 The Amicus Brief also discussed what it termed “the effects of stereotype inducement”:
“As we have argued above, suggestions do not have to necessarily be in the form of an explicit (mis)leading question such as, “Show me how she touched your bottom.” One component of a suggestive interview involves the induction of stereotypes. That is, if a child is repeatedly told that a person “does bad things”, then the child may begin to incorporate this belief into his or her reports. As the following two studies demonstrate, stereotype induction can have a very powerful effect on children’s subsequent reports.
In the first study (Lepore & Sesco, in press), children ranging in age from 4- to 6-years old played some games with a man called Dale. Dale played with some of the toys in a researcher’s laboratory room and he also asked the child to help him take off his sweater. Later, an interviewer asked the child to tell her everything that happened when Dale was in the room. For half the children, the interviewer maintained a neutral stance whenever they recalled an action. For the remaining children, the interviewer re-interpreted each of the child’s responses in an incriminating way by stating, “He wasn’t supposed to do or say that. That was bad. What else did he do?” Thus, in this incriminating condition, a negative stereotype was induced. At the conclusion of these
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incriminating procedures, the children heard three misleading statements about things that had not happened (“Didn't he take off some of your clothes, too?”, "Other kids have told me that he kissed them, didn’t he do that to you?” and, “He touched you and he wasn’t supposed to do that, was he?”). All children were then asked a series of direct questions, requiring “yes” or “no” answers, about what had happened with Dale. Children in the incriminating condition gave many more inaccurate responses to the direct yes-no questions than children in the neutral condition. Interestingly, 1/3 of the children in the incriminating condition embellished their responses to these questions, and the embellished responses were always in the direction of the incriminating suggestions. The question that elicited the most frequent embellishments was: “Did Dale ever touch other kids at the school?” Embellishments to this question included information about who Dale touched (e.g., “He touched Jason, he touched Tori, and he touched Molly.”), where he touched them (e.g., “He touched them on their legs.”), how he touched them (e.g., “... and some he kissed ...on the lips”), and how he took their clothes off (“Yes, my shoes and my socks and my pants. But not my shirt.”). When they were re-interviewed one week later, children in the incriminating condition continued to answer the yes/no questions inaccurately and they continued to embellish their answers.
The second study also demonstrates the powerful effects of stereotype inductions especially when these are paired with repeated suggestive questioning. A stranger named Sam Stone paid a two-minute visit to preschoolers (aged 3 to 6 years) in their daycare center (see Leichtman & Ceci, in press). Following Sam Stone’s visit, the children were asked for details about the visit on 4 different occasions over a 10- week period. During these 4 occasions, the interviewer refrained from using suggestive questions. She simply encouraged children to describe Sam Stone’s visit in as much detail as possible. One month following the fourth interview, the children were interviewed a fifth time, by a new interviewer who asked about two “non-events” which involved Sam doing something to a teddy bear and a book. In reality, Sam Stone never touched either one. When asked in the fifth interview: “Did Sam Stone do anything to a book or a teddy bear?” most children rightfully replied “No.” Only
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10% of the youngest (3 to 4-year- old) children’s answers contained claims that Sam Stone did anything to a book or teddy bear. When asked if they actually saw him do anything to the book or teddy bear, as opposed to “thinking they saw him do something,” or “hearing he did something,” now only 5% of their answers contained claims that anything occurred. Finally, when these 5% were gently challenged (“You didn't really see him do anything to the book/the teddy bear, did you?”) only 2.5% still insisted on the reality of the fictional event. None of the older (5 to 6-year-old) children claimed to have actually seen Sam Stone do either of the fictional events. A second group of preschoolers were presented with a stereotype of Sam Stone before he ever visited their school. Each week, beginning a month prior to Sam Stone’s visit, these children were told a new Sam Stone story, in which he was depicted as very clumsy. For example:
You’ll never guess who visited me last night. [pause] That’s right. Sam Stone! And guess what he did this time? He asked to borrow my Barbie and when he was carrying her down the stairs, he tripped and fell and broke her arm. That Sam Stone is always getting into accidents and breaking things!
Following Sam Stone's visit, these children were given 4 suggestive interviews over a ten-week period. Each suggestive interview contained two erroneous suggestions, one having to do with ripping a book and the other with soiling a teddy bear (e.g., “Remember that time Sam Stone visited your classroom and spilled chocolate on that white teddy bear? Did he do it on purpose or was it an accident?” and “When Sam Stone ripped that book, was he being silly or was he angry?”).
Ten weeks later, when a new interviewer probed about these events (“Did anything happen to a book?” “Did anything happen to a teddy bear?”), 72% of the youngest preschoolers claimed that Sam Stone did one or both misdeeds, a figure that dropped to 44% when asked if they actually saw him do these things. Importantly, 21% continued to insist that they saw him do these things, even when gently challenged. The older preschoolers, though more accurate, still included some children (11%) who insisted they saw him do the misdeeds.”
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34 Later in the
Brief, there was discussion of the way in which suggestions are delivered to children in a “much milder and less detectable manner” than had occurred with the Wee Care children. The authors referred to three studies.
“These three studies focus on the theoretical construct of “source attribution error”. This refers to the problems that both children and adults have in separating the sources of their memories. In some cases, this may be particularly problematic for some children. For example, 6- and 9- year- old children make more errors than adults when discriminating between actions they performed and actions they merely imagined themselves performing (Foley & Johnson, 1985). When asked to remember which of two people said what, preschool children have a more difficult time than adults, if the two people speaking share similar physical characteristics (Foley & Johnson, 1985; Lindsay, Johnson, & Kwon, 1991).
Zaragoza and her colleagues (Ackil & Zaragoza, 1993) have used some of these same techniques to explore the basis of children’s suggestibility. In these experiments, subjects viewed a videotape, after which the experimenter read them a summary of the video which contained events that were part of the video as well as events that were not part of the video. Sometime later, subjects were given a surprise memory test; here they were read a list of events and asked to say whether they remembered seeing the event on the video, or hearing the event from the summary, or both. The youngest children (6- year-olds) were most prone to confusing actually viewed with suggested (heard) events. These findings suggest that suggestibility effects reflect young children’s susceptibility to serious memory errors, namely the tendency to believe they remembered seeing details that were only suggested to them. The next two experiments take this paradigm closer to the field of children’s testimony in the forensic context.
Poole and Lindsay (unpublished) demonstrated how source attribution errors may occur through subtle interventions, such as parents reading a book to their child. In this study, preschoolers played with “Mr. Science” for 16 minutes in a university laboratory. During that time the child participated in four demonstrations (e.g, lifting cans with pulleys). Four months later, the parents were mailed a story book which was
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specially constructed for each child. It contained a biographical description of their child’s visit to Mr. Science. However, not all of the information was accurate; the story described two of the experiments that the child had seen and it also described two that the child had not seen. Furthermore, each story finished with the following fabricated account of what happened when it was time to leave the laboratory:
“Mr Science wiped (child’s name) hands and face with a wet-wipe. The cloth got close to (child’s name) mouth and tasted really yuckie.”
The parents read the story to their children three times. These young children were very susceptible to source attribution errors. When later interviewed by the experimenters, the children reported that they had participated in demonstrations which had only been mentioned in the stories read to them by their parents. When asked whether Mr. Science put anything “yuckie” in their mouths, more than half of the children inaccurately replied “yes,” and these children elaborated their “yes” answers. Moreover, inaccurate reports of having something “yuckie” put in their mouths increased on repeated questioning; when asked, “Did Mr. Science put something yuckie in your mouth or did your Mom just read you this in a story?”, now 71% of the children said that it really happened. This study demonstrates how very subtle suggestions can influence children’s inaccurate reporting of non-events which can have a sexual interpretation.
The next study, conducted by Ceci and his colleagues (Ceci, Crotteau, Smith & Loftus, in press) was designed to pursue the question of whether preschoolers exhibit source misattributions when they are repeatedly encouraged to think about events that never occurred. Each week for 10 consecutive weeks, an interviewer asked preschoolers to think about both actual events that they had experienced in their distant past (e.g., an accident that eventuated in stitches) and fictitious events that they had never experienced (e.g., getting their hand caught in a mousetrap and having to go to the hospital to get it removed; seeing an alligator on a bus with an apple in its mouth). Each of these events and non-events was written on a separate card. The child selected a card, the interviewer would read it aloud, and then ask if the event ever happened. For example, when the child selected the card that read: “Got finger caught in a mousetrap and had to go to the
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hospital to get the trap off”, the interviewer would ask: “Think real hard, and tell me if this ever happened to you. Can you remember going to the hospital with the mousetrap on your finger?” (This study will be henceforth referred to as “The Mousetrap Study.”)
After 10 weeks of thinking about both real and fictitious events, these preschool children were interviewed by a second interviewer. Initially, the interviewer asked: “Tell me if this ever happened to you: Did you ever get your finger caught in a mousetrap and have to go to the hospital to get the trap off?” Following the child’s reply, the interviewer asked for additional details (e.g., “Can you tell me more?”).
When exposed to these very mild manipulations, 58% of the preschool children produced false narratives to one or more of these fictitious events; 25% produced false narratives to the majority of them. Furthermore, the children’s reports did not solely contain one word responses; their narratives contained elaborated and embellished descriptions of events that never occurred. Some accounts were internally coherent, containing not only details and sequences of events that never occurred but also containing descriptions of the child’s affect during these non-events…
These data indicate that children can come to make false reports about non-occurring events, even ostensibly painful bodily events, when suggestions are mildly made in the course of a conversation or a story-telling activity. If children are repeatedly asked by investigators, therapists, and parents to try to remember “how someone touched you” or “if someone touched your vagina,” will children eventually come to make statements that they had been sexually abused, when abuse had never taken place? Furthermore, when parents or therapists read books with abuse themes to children, do children come to believe what happened in the book actually happened to them? (For example, Dr. Susan Esquilin read Where the Wild Things Are to some of the Wee Care children. One of the pictures contains a monster with a fork running after a child. After reading this book, some children began reporting abuse with utensils.) There are no data on these important issues. However, the results of the studies that we have just reviewed provide a theoretical and empirical framework for suspecting that such activities lead to significant source misattributions.”
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35 The Amicus Brief also noted research indicating “that when children want an interview to end, they often increase the quantity of false statements”. For example, one of the Wee Care children alleged that his carer “urinated in his mouth and he urinated in her mouth; he and others were made to walk in her urine and slide on the classroom floor in her urine.”
36 The Brief then went on to discuss the impact that perceptual details given by young children have on those who attempt to ascertain whether they are telling the truth.
“Some researchers have opined that the presence of perceptual details in reports is one of the indicators of an actual memory, as opposed to a confabulated one (Schooler, Gerhard, & Loftus, 1986; Raskin & Yuille, 1989). However, in the Sam Stone study for example, the presence of perceptual details was no assurance that the report was accurate. There was a surprising number of fabricated perceptual details that children in the combined stereotype plus suggestion condition provided to embellish the non-events (e.g, claiming that Sam Stone took the teddy bear into a bathroom and soaked it in hot water before smearing it with a crayon; claiming that there was more than one Sam Stone; claiming that they saw Sam Stone go to the corner store to buy chocolate ice cream).
It is one thing to demonstrate that children can be induced to make errors and include perceptual details in their reports, but it is another matter to show that such faulty reports are convincing to an observer, especially a highly trained one. To examine the believability of the children’s reports, videotapes of their final interviews were shown to approximately 1,000 researchers and clinicians who work on children’s testimonial issues (Leichtman & Ceci, in press). These researchers and clinicians were told that all the children observed Sam Stone’s visit to their daycare centers. They were asked to decide which of the events reported by the children actually transpired and then to rate the overall credibility of each child. The majority of the professionals were highly inaccurate. Experts who conduct research on the credibility of children’s reports, who provide therapy to children suspected of having been abused, and who carry out law enforcement interviews with children, generally failed to detect which of the children’s claims were accurate and which were not, despite
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being confident in their judgments. The highly credible yet inaccurate reports obtained from the children may have resulted from a combination of repeated interviews with persistent and intense suggestions that built on a set of prior stereotypes. Similarly, it may become difficult to separate credibility from accuracy when these children, after repeated interviews, give a formal video-taped interview or testify in court.
Similar results were obtained when psychologists who specialize in interviewing children were shown videotapes of the children in the Mousetrap study (Ceci, in press). Recall that these children had been simply asked to repeatedly think about whether a fictitious or real event had actually happened. Again, professionals could not reliably detect which of the events in the children’s narratives were real and which were not. One reason for their difficulty may be that they cannot imagine such plausible, internally coherent narratives being fabricated. In addition, the children exhibited none of the tell- tale signs of duping, teasing, or tricking. They seemed sincere, their facial expressions and affect were appropriate, and their narratives were filled with the kind of low-frequency details that make accounts seem plausible, as shown in the following account:
My brother Colin was trying to get Blowtorch (an action figure) from me, and I wouldn’t let him take it from me, so he pushed me into the wood pile where the mousetrap was. And then my finger got caught in it. And then we went to the hospital, and my mommy, daddy, and Colin drove me there, to the hospital in our van, because it was far away. And the doctor put a bandage on this finger (indicating).
Some researchers are developing techniques that may ultimately be used to detect when children’s reports are accurate and when their reports are inaccurate. These involve fine-grained analyses of the linguistic content of the statements, the gestures, voice quality, and other affective measures. However, these techniques have not yet been validated on children who have undergone repeated and highly suggestive interviews. Furthermore, even if such techniques were available, they could only be used by highly trained professionals, not by jurors, or even by specialists in child development. These techniques are being developed
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precisely because of the difficulty that professionals and non- professionals all share in distinguishing between children’s reliable and unreliable reporting.
To summarize, when children have undergone suggestive interviewing or are exposed to some of the components of suggestive interviews, they frequently appear highly credible when they are inaccurate, even to well-trained professionals.”
37 Importantly, the Amicus Brief then considered the longevity of suggestions given to young children.
“The longevity of the suggestibility effects is primarily influenced by the overall strength of the suggestions. Thus, the same factors that increase the risk of erroneous reports also increase the longevity of these reports and beliefs. To repeat these include such factors as: the forcefulness of the suggestions, the perceived authority of the provider of the suggestions, the use of threats and bribes, reinforcement for reports of abuse, negative reinforcement or ignoring denials, retractions, or implausible reports, creation of an accusatory atmosphere, peer pressure, and the suggestive use of anatomically detailed dolls.
Further, aspects of the social and mental life of the child may serve to solidify and strengthen their false reports and false beliefs long after the interviews are over. That is, if the children continue to think about the suggested events and to talk about them and to hear others around them talk about them, their beliefs in the reality of these events may solidify.”
38 Having considered an anecdote from the life of the renowned psychologist, Piaget, the Amicus Brief gave a more recent example of the longevity of suggestibility effects:
“A second piece of evidence to support the contention that some children maintain their beliefs about fabricated stories that are a product of suggestive interviews, long after the suggestions of ceased, comes from the “mousetrap” study. Several weeks after the last interview, one of the subjects who had told about his finger being caught in the mousetrap was re-interviewed. When his mother brought him to the lab, she told the experimenters that both she and her husband thought that the study was completed, and therefore two days earlier they explained to their son that the story about the mousetrap was fictitious and had never happened. She said that her son initially refused to accept this debriefing, claiming that he
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remembered it happening when the family lived in their former house. She and her husband continued to explain that the whole story was just in his imagination, that nothing like this ever happened.
Despite the debriefing, the experimenters decided to re- interview the child. When asked if he ever got his finger caught in a mousetrap, the child stated that he remembered this happening, and he proceeded to supply a richly-detailed narrative. When the interviewer challenged him, asking him if it was not the case that his mother had already explained that this never happened, the child protested, “But it really did happen. I remember it!” While this child’s insistence, in the presence of his mother, is not proof that he believed what he was saying about this fictitious event, it does suggest that he was not duping the adults for any obvious motive, given that the demand characteristics were all tilted against his claiming that he remembered this … These data suggest that the effects of suggestions may be extremely long-lasting. Some children hold onto their beliefs long after the suggestions have terminated.”
39 As I have already stressed, the Amicus Brief focused on studies emphasising the weaknesses of children’s memories. However, the authors mention two important implications of the studies that do focus on the strength of children’s reporting:
“The first point is that although children are mainly highly accurate in studies in which they are interviewed by a neutral experimenter, asked minimal leading questions, and not given any motivation to produce distorted reports, there are nevertheless a few children in such studies who do give bizarre or sexualized answers to some leading questions. For example, in the Saywitz et al. study of children’s reports of their medical examinations, one child, who never had a genital exam, falsely reported that the pediatrician had touched her buttocks and on further questioning claimed that it tickled and that the doctor used a long stick. In a study of children’s recalls of their visit to a laboratory (Rudy & Goodman, 1991) one small child claimed that he had seen bones and blood in the research trailer ... Thus, children do occasionally make spontaneous, strange, and unfounded allegations. However, as Goodman and her colleagues point out, many of these allegations can be understood by sensibly questioning the
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child and parents further. Often these allegations reflect the
child’s source confusions or his anxieties.
… A second important implication of studies that emphasize
the strength of children’s memories is that they highlight the
conditions under which children should be interviewed if one
wishes to obtain reliable reports. Again, when children are
interviewed by unbiased, neutral interviewers, and when
leading questions are kept to a minimum, and there is the
absence of threats, bribes and peer-pressure, then children’s
reports are less at risk for taint.”
40 Significantly, in determining the accuracy of allegations said to have been made by Robbie, the Amicus Brief referred to the crucial issue of the “missing first interviews”. The authors of the Amicus Brief began their discussion of this topic with the following observations:
“The failure to have audio- or video-taped records of the initial interviews with these children makes it impossible to determine the accuracy of the children’s subsequent statements. Summaries of missing interviews and/or electronic recordings of later interviews in which children make allegations do not substitute for the missing original interviews. Written summaries of unrecorded interviews are subject to a number of distortions…It is a well documented fact in the psycholinguistic literature that when asked to recall conversations, most adults may recall the gist, but they cannot recall the exact words used, nor the sequences of interactions between speakers. This linguistic information rapidly fades from memory, minutes after the interactions have occurred (see Rayner & Pollatsek, 1990, for a review).
In the case of child witnesses, it is crucial to document the details by which their reports were obtained. For example, we must know whether and how often the interviewer asked the child leading questions. We must know whether the interviewer prodded the child’s reports with the use of anatomically detailed dolls, etc. We also must know the verbatim statements and questions of the interviewer as well as the verbatim responses of the children. Because this verbatim information fades most rapidly from memory (within a matter of minutes), it is crucial that it be electronically recorded. Without this information, one cannot begin to evaluate the reliability of the children’s allegations. It is also
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the case, that the gist of previous interviews may be inaccurately summarized in later reports due to certain biases or misperceptions of the interviewer. If the investigator has a bias that the child was sexually abused, then this can color his interpretations of what the child said or did; and it is this interpretation that appears in the summary rather than a factual account of what transpired.”
41 In wrapping up their essay, the authors of the Amicus Brief endeavoured to generalise from “research to the real world”.
“This recent research indicates that suggestive interviewing procedures can lead young children to give false reports of real-life experiences which include erroneous claims about interactions involving physical contact between an adult and a child. The research also shows that very few young children would fabricate detailed claims of bizarre sexual abuse in response to one or two mildly leading questions. And, as we have seen, many of the Wee Care children initially appeared to resist repeated and forceful suggestions before capitulating to the interviewers’ insinuations. The research also shows, however, that with more powerful and persistent methods of suggestion, such as those described in this brief, a substantial percentage of children can be led to make false reports of events that never occurred, including events that involve their own bodies and that would have been quite traumatic had they occurred.”
42 The key points made in the Amicus Brief were then
summarised:
“1. There are reliable age effects in children’s suggestibility, with preschoolers being more vulnerable than older children to a host of factors that contribute to unreliable reports.
2. Although young children are often accurate reporters, some do make mistakes – particularly when they undergo suggestive interviews; and these errors can involve not only peripheral details, but also central, predictable (i.e., scripted) events that involve their own bodies. It is also the case that suggestive questioning not only distorts children’s factual recall, but it also has a strong influence on their interpretation of events.
3. Measures can be taken to lessen the risk of suggestibility effects. To date, the factors that we know most about
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degree of suggestiveness, and demand characteristics.
A child’s report is less likely to be distorted, for example,
after one interview than after several interviews (the term
“interviews” here includes informal conversations
between parents and child about the target events).
Interviewers who ask non-leading questions, who do not
have a confirmatory bias (i.e., an attachment to a single
hypothesis), and who do not repeat close-ended yes/no
questions within or across interviews, are more likely to
obtain accurate reports from children.
Interviewers who are patient, non-judgmental, and who do
not attempt to create demand characteristics (e.g., by
providing subtle rewards for certain responses) are likely
to elicit the best quality reports from young children.
concern the nature of the interview itself – its frequency, child's spontaneous statements made prior to any attempt by an adult to elicit what they suspect may be the truth. At the other extreme, we are more likely to be concerned when a child has made a statement after prolonged, repeated, suggestive interviews.
4. Finally, it is also important that the court appreciate the complexity of the interrelationships of the factors affecting children’s suggestibility. As in most areas of social science, effects are rarely as straightforward as one might wish. Even though suggestibility effects may be robust, the effects are not universal. Results vary between studies and children’s behavior varies within studies. Thus, even in studies with pronounced suggestibility effects, there are always some children who are highly resistant to suggestion. We have seen this in our own studies as well as in the transcripts of the Wee Care interviews: in some cases, no matter how much an interviewer may try to suggest that an event occurred, some children will consistently resist and not incorporate the interviewer’s suggestion or point of view. On the other side, although suggestibility effects tend to be most dramatic after prolonged and repeated interviewing, some children incorporate suggestions quickly, even after one short interview…”
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43 By way of
concluding remarks, the authors of the Brief said they
were:-
“…fully aware of the immense obstacles that face those who are charged with investigating and reporting suspected child maltreatments. In no way do we want to convey the attitude that we deny the seriousness of the problem of child sexual abuse in today’s society. The focus of our research and our arguments, however, is that unless one is very careful in the interviewing procedures that one uses with young children suspected of abuse, that one may never make an accurate determination of whether or not abuse occurred. This is because there are a number of interviewing procedures that have the potential to make non-abused children look like abused children. These are the same conditions that were used in the interviews with the Wee Care children. Given our present state of scientific knowledge, there are no valid scientific tests to determine which of the children’s reports were accurate. The fact that these children underwent extremely suggestive interviews makes the determination of accuracy impossible.”
44 The authors ended their essay by expressing their deep concern for the Wee Care children. They had difficulty in believing that adults charged with the care and protection of young children would be allowed to conduct themselves as they had in obtaining their “disclosures”. They went on to say:
“Above and beyond the great stress, intimidation, and embarrassment that many of the children so obviously suffered during the interviews, we are deeply concerned about the long-lasting harmful effects of persuading children that they have been horribly sexually and physically abused, when in fact there may have been no abuse until the interviews began.”
The weight to be given to the research
45 The fact the parties consented to the introduction of the Amicus Brief overcomes the basic evidentiary hurdle. However, apart from the recitation of the names and qualifications of those who wrote and endorsed the Brief, there was no additional information provided to indicate what weight should be placed on its content.
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| 46 | The Amicus Brief was not specifically discussed in the decision in State of New Jersey v Michaels, which confirmed the order of a lower appellate court reversing the conviction of the defendant. It is apparent, however, that the research assembled in the Brief and similar research was highly influential in the decision. After a thorough consideration of all of the material, the seven justices of the Supreme Court of New Jersey unanimously concluded:- |
“...a sufficient consensus exists within the academic, professional, and law enforcement communities, confirmed in varying degrees by courts, to warrant the conclusion that the use of coercive or highly suggestive interrogation techniques can create a significant risk that the interrogation itself will distort the child’s recollection of events, thereby undermining the reliability of the statements and subsequent testimony concerning such events.”
47 The Amicus Brief was later published in the June 1995 issue (Volume 1, No. 2) of the journal “Psychology, Public Policy and Law”. Reference to that learned journal indicates that it was one of 15 articles in the same issue dealing with allegations of sexual abuse.
48 Apart from having been published in a scholarly journal, my own enquiry satisfies me that the conclusions drawn by the Amicus Brief have been cited and endorsed in courts in the USA. I refer, for example, to the decision of Borenstein J in Commonwealth of Massachusetts v Le Fave delivered on 12 June 1998 in the Middlesex Superior Court, Cambridge, Massachusetts. His Honour was asked to determine whether or not a retrial should be granted to another day care centre operator, who had been convicted on the testimony of young children. That case, along with a raft of similar sex abuse cases involving workers in day care centres, had become a cause celebre in North America. The defendant had failed in repeated earlier attempts to obtain a retrial.
49 In her further application for a retrial, the defendant had relied upon what was claimed to be a new wave of research led by Dr Bruck, one of the principal authors of the Amicus Brief. Although the decision of Borenstein J allowing a retrial was reversed on appeal, his findings concerning the reliability of Dr Bruck’s evidence and research were not impugned.
50 His Honour found as follows:
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“…the defendant presented the testimony of, and offered exhibits through two expert witnesses, Dr Bruck and Dr Schetky. This Court finds these witnesses credible, believable, objective, qualified and cooperative in assisting the Court in understanding the newly- discovered evidence, the devastating impact that the suggestive interviewing, investigative procedures and other influences had on the children who testified in this case, and how the fields of mental health and law have come, since 1987, to help the Courts better understand the risks of improperly handling child sexual abuse investigations.
Dr. Bruck is one of the nation’s leading experts in the area of the suggestibility of children, and for the past seven years, at least, she has conducted research in the area of the reliability of their testimony in abuse cases. She has written extensively in scholarly publications, presented papers at respected conferences, and is co-author of a leading text on the subject entitled Maggie Bruck and Stephen Ceci, Jeopardy in the Courtroom: A Scientific Analysis of Children's Testimony, (1995). Her research focuses on factors that affect the accuracy of reports by children.
Far from believing that child sexual abuse does not exist, Dr. Bruck is a highly regarded scientist who has dedicated her work toward a better understanding of those factors which contribute to the accuracy of a report and those which do not….”
51 His Honour then considered the testimony of Dr Schetky, whom he described as a “highly credentialed psychiatrist who specialises in forensic evaluations of children who may have been abused”. He summarised Dr Schetky’s evidence as follows:
“Dr. Schetky testified that Dr. Bruck is held in high regard among specialists in her field and that Jeopardy in the Courtroom, supra, is considered to be among the most important and useful books in the area of forensic evaluation of child sexual abuse allegations. In 1997, the American Academy of Child and Adolescent Psychiatry, a respected organization, published practice parameters to be used by mental health professionals in the field of forensics and child sexual abuse. Included in its four page bibliography, Jeopardy in the Courtroom, supra, was one of six works starred, indicating it to be the one of the most significant works in the field.”
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52 I conclude, especially in the absence of any submission to the contrary, that I should give significant weight to the expert evidence contained in the Amicus Brief.
53 Sarah’s counsel, in her closing submissions, provided a copy of portion of a lengthy publication entitled “Clinical and Forensic Interviewing of Children and Families. Guidelines for the Mental Health, Education, Pediatric, and Child Maltreatment Fields” by Jerome Sattler of San Diego University. Although self-published, there seems no reason to doubt this is anything other than a learned textbook. Significantly, Sattler cited with approval earlier research of the principal authors of the Amicus Brief, and said nothing which would derogate from the weight to be placed on the material contained in the Brief.
54 The parties agreed I could also take into account the book, Jeopardy in the Courtroom. This was published in 1995 by the American Psychological Association. The high regard in which that text is held in the United States can be ascertained from the remarks cited above. I have found it unnecessary to read this publication, since I was assured it contains material essentially similar to that outlined more succinctly in the Amicus Brief.
Application of the research
55 The question that arises is what use is this research in arriving at the best outcome for Robbie. Those who wrote the Amicus Brief acknowledged “there is always some risk when generalising from scientific studies to real world analogs”. I accept there is risk; however, there are many risks associated with assessment of credibility, especially of a child who has not been seen, let alone heard, by the judicial officer charged with making a crucial decision. I therefore respectfully agree with the opinion expressed by the authors of the Brief:
“Scientists believe, however, that the best basis for doing this [i.e. generalizing from scientific studies to the real world] is to extrapolate from the corpus of research that comes closest to matching the constellation of variables that operate in the real world, even if the match is less than perfect. The alternative is to eschew insights, predictions, or hypotheses gained from systematic, controlled studies in lieu of anecdotes, personal opinions, and ideological views.”
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56 Having outlined
the law I am required to apply, the approach superior Courts have directed me to adopt, and the weight to be placed on the research provided to me, I turn now to Robbie.
[The balance of the 176 page judgment has been deleted by
direction of the Court.]