Our court system prevents children from providing accurate evidence by failing to recognize their developmental capabilities.

Re-Victimizing Sexually Abused Children in Court

Laura Park, PhD
Edward Renner, PhD
Christine Alksnis, PhD

            Dramatic increases in cases of child sexual abuse have resulted in large numbers of children being called upon to testify in criminal trials. The children's testimony is often crucial, as there is seldom corroborative evidence.

            However, child witnesses face many hardships in the court system, including repeated attacks by lawyers. In a study in London Ontario, children were asked what they remembered most about testifying in court. Their answer was not being able to understand the proceedings, the questions, or the terminology, as well as harassment and stress on the witness stand.

            During cross-examination of the child, the goal of the Defence is to discredit the witness, not to discover the truth. As a tactic, lawyers frequently ask questions of children that are beyond their current level of understanding, such as asking a five year old to indicate in minutes the duration of a particular sexual abuse incident, or the month of the year in which some event occurred. Most people would recognize that these questions are inappropriate. Five year old children have not yet come to understand what time is, or how to tell time, and most certainly not how to think in terms of minutes, hours, days and months. 

            It is not surprising that child witnesses are confused and often respond to these kinds of complex questions with silence, or with "I can't remember." Often they are pressured to respond anyway, with, "Well, what is your answer!" Children then make errors that result from trying to comply with the demands made by this adult authority to pick between two alternatives, such as “Was it in October or December?” In a courtroom, the lack of response by the child, or saying "I don't know," and errors of compliance are perceived as evidence of the child's incompetence as a witness, confirming the existence of a reasonable doubt.

            It is paradoxical that in a legal proceeding intended to protect children against one type of exploitation by an adult, that the court itself does not afford the child similar protection from another form of deliberate exploitation arising from the superior mental capacity of an adult agent of the court.

            Clearly, the tactic of asking questions which children are developmentally unable to comprehend does not prove that children are incompetent or unreliable witnesses concerning the details of their sexual abuse. Rather, it highlights the insensitivity of existing legal practices. Children do have excellent capacity to recall past events, and can give accurate information when the questions respect their level of cognitive development. By allowing inappropriate questions, the court actually destroys valid evidence that could be provided by children.

            These hardships facing child witnesses are unnecessary.

            The legal process can be changed by implementing simple practices based on knowledge from developmental psychology. By determining the cognitive capabilities of the child prior to testifying, courtroom standards can be set which would permit only questions that respect the child's ability. For example, a five year old may accurately recall that they were decorating the Christmas tree at the time, but not necessarily whether the event took place on December 17 or 20, or on a Monday or a Thursday.

            There is a good precedent for making the court accountable for achieving fair and just outcomes. The court will not permit the failure of a witness to answer a question asked in a foreign language to be used as proof of witness incompetence. Why then will it allow children to be deemed incompetent when asked questions posed in a manner they cannot understand because they are simply not old enough?

            The legal system will only achieve actual justice when it ensures the use of strategies which recognize the developmental capabilities of the child witness.

This article is based on a research paper by the authors entitled “The Standard of Social Justice as a Research Process” which appeared in Canadian Psychology, 1997, 38 (No. 2, May), 91-102, the professional journal of the Canadian Psychological Association.  For more information on this research series see: www.napasa.org.

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