For children there are two outrageous issues which need to be documented and discussed in the media. The first, children are held responsible for their sexuality. This, of course, is inappropriate because it is the absolute responsibility of the adult to avoid all sexual contact with a child. The second, children are asked complicated questions which are beyond their developmental level to understand; their failure to answer is used to demonstrate that they can not give reliable testimony. This, of course, is also inappropriate because no one would be expected to answer a question asked in a language they did not understand.
The courts have completely inverted the reality of what children can
and can not do when they appear in court as witnesses about their own sexual
abuse. In fact, children are not responsible for their sexuality, but
can give responsible answers when asked appropriate questions. Both
of these issues need to be documented at the local level, reported by the
local media, and the local Prosecutor must be held accountable to
stop this abuse of children by the legal process designed to protect them
Children are held responsible for their sexuality by being asked questions that are appropriate for adult sexuality, as for example, who removed the clothing, who initiated the contact, or the extent to which there was resistance. None of these issues are relevant. Even if a child presented themselves naked to the adult and promised not to tell, it is still the responsibility of the adult to avoid sexual contact with the child.
In one of our cases the husband and father of a child returned home after his wife had left to sexually assault the baby sitter to the point of intercourse. The young girl was questioned about her jeans and sweater and whether they were tight fitting. Obviously, if the man was free to be home they did not need the baby sitter, and it is the man who is out of bounds by coming home to sexually approach a captive girl. This is outrageous, and it is even more outrageous that the young girl's clothing could even be discussed, yet there was no objection by the Prosecutor or intervention by the Judge. Children are not responsible for their sexuality. End of story.
In our research with adult cases, we identified a set of 16 themes (shown in Table 1 attached to the end of this document) which are used by both the Prosecutor and the Defense to try to fix responsibility for the sexual contact with either the accused or the victim, respectively. For example, if clothing was torn the Prosecutor would present the evidence, and if the clothing was not torn the Defense would present the article as evidence. The lawyers acted in a complementary fashion, each selectively using some of categories, but seldom coming into direct conflict with each other.
What we did not expected to find was that these same categories are used in the same way in child sexual abuse cases. Thus, for the themes, no distinction is required for adult sexual assault and child sexual abuse. The same coding system can be used for children as is used for adults. This, too, is outrageous. There are three elements to a court watching process:
1. Learn the Categories
The first step is to learn the categories that are defined in Table 1 (attached to the end of this document). It is useful for each court watcher to have a copy of the table, and initially for several individuals to watch the same case so that they may discuss with each other when examples of the categories occurred. At first, this is a difficult process, but after watching several trials the pattern becomes clearer and the task is easier. We recommend that two types of data, frequency counts and excerpts, be collected when observing cases in the courtroom.
2. Frequency Counts
We use a data sheet that lists each of the categories (see Data Sheet 1 attached at the end of this document). When a lawyer asks a question that fits into one of the categories, the observer puts a tick mark in the box opposite that category. Thus, at the end of each trial it is possible to say a lawyer discussed material which fit into any particular category "x" number of times. This is a good way to have a quantitative summary of each case, and to be able to document the consistency over a series of cases. We have allowed space on the right-hand side of the page for the observer to make notes. Most transcriptions use clock time to mark the spots on a tape recording of the trial from which the transcripts are prepared. One useful note is the time when a particular example happened. This may be useful if there is an appeal of the case based on an objection made by the Prosecutor. In those cases, a written transcript will most likely be prepared, and the notes will enable the examples to be located more easily.
Frequency counts do not capture the truly outrageous things which are said. To do this requires a verbatim (or nearly so) record of what was asked and how the child responded. These are hard to do on the spot. It is much easier to work from a transcript when they become available. But, for immediacy of response, an on-the-spot approximation is necessary. If the example causes enough concern, then that alone may be grounds for the court ordering a transcript of that segment of trial for further consideration, or for grounds of appeal. When that happens, the record can be corrected to be a verbatim account. We have found that each excerpt is best recorded on a separate page. In that way, examples from different cases that illustrate the same issue can be filed together; this facilities talking to the media about the categories (rather than the case). It is important that the media make the point that the central issue is that the court process is wrong in this and many other cases, not about how this particular case was argued. A copy of our data sheet (Data Sheet 2) for recording excerpts is also attached at the end of this document, along with some illustrative examples from our files of completed sheets
Developmentally Inappropriate Questions
In many ways, the practice of holding children responsible for their sexuality provides the occasion for an even more outrageous tactic by the Defense. This is to ask a child a question which they are developmentally unable to answer and then using their lack of ability to answer to imply that the child is not a reliable witness and cannot be believed about the sexual assault.
In one of our cases a five year old boy was asked during the preliminary hearing how many times he had to put his mouth on the accused's penis. He said five. During the trial, he was asked the same question again and said 25. The Defense then asked the boy if he was lying then or lying now. The issue was not one of lying but of a developmentally inappropriate question that was allowed on two occasions. Every parent knows that if their five year old says "there was a hundred of them", that there was a number of them, more than one, but nothing more than that. A five year old does not know that 1 is to 5 as 5 is to 25. He or she may be able to recite the numbers from 1 to 10, but this does not mean that the child understands the underlying number concepts. The only issue is whether the child can report that he was asked to put his mouth on the man's penis, and that it happened more than once. The fact that the child cannot do ratio math does not mean he is an unreliable witness about the event in question. For that event, the child can give reliable testimony. It is outrageous to deny the validity of what a child can remember on the basis of a question that a child of five years cannot comprehend and therefore cannot answer. To allow these types of questions with children would be the same as allowing an adult to be questioned in a language they did understand, and then concluding that the adult cannot give reliable evidence.
Stages of Development
As part of the court examination process, child witnesses may be asked to: pinpoint the time or duration of an event in minutes, hours; to pinpoint a location in terms of miles, or a city address; to describe someone's height in feet and inches, and weight in pounds. To do so, a witness should have mastered conventional systems for measuring time, distance, and weight, but these skills are learned gradually over the course of the elementary school years. Children initially come to understand a concept such as distance, first in its qualitative form (near, far), then in its representational or comparative form (farther than, nearer than), and finally in its quantitative form (inches, kilometers). Many such skills are not fully mastered until adolescence. As another example, children do not learn to tell clock time until the approximate age of seven. By eight years, children have mastered the days of the week and the seasons. Furthermore, children often struggle with calendar dates and questions involving "diachronic" thinking, such as determining whether something happened before or after some other event. It is by age 10 or 11 that children may first start to be able to report events in accurate chronological order. Research suggests that children are unable to provide accurate quantitative information concerning time estimation before the age of 13 or 14.
Questions asked of child witnesses become problematic when they require skills children have not yet developed. The degree to which the content of the question matches the child's stage of cognitive development affects the accuracy of the responses. Children may try to answer a question even when they lack the necessary skill in order to comply with adult demands, and the resulting inaccuracy of their answer is perceived by adults as an indication of their incompetence. The tactic of asking developmentally inappropriate questions of witnesses, however, does not prove that the children are incompetent or unreliable witnesses concerning the details of their sexual abuse; rather it highlights the inappropriateness of such legal practices. When children are asked questions in a developmentally appropriate form they give accurate answers about events that they experienced in the past.
Excerpts of Age Inappropriate Questions
To fully examine the developmental inappropriateness of questions asked of child witnesses, all questions involving ratio estimates relating to numbers, time, distance or size should be transcribed for subsequent categorization according to whether the child witnesses are old enough to have mastered the cognitive task which the court is asking them to perform. Table 2 (at the end of this document) provides a guide for making these determinations. However, the truly outrageous examples are easy to recognize. Any parent will immediately recognize the extreme questions that exceed the developmental capacity of the child. Therefore, the testimony of children younger than 14 needs to be monitored for inaccuracies and/or errors of compliance, "I don't know" responses, or no responses at all, to illustrate and document through transcribing excerpts of questions that are blatantly inappropriate developmentally. Again, each excerpt is best recorded on a separate page using the example provided at the end of this document.
|Previous Sexual History||Avoids the issue.
Treats as irrelevant.
|Introduces when possible.
Treats as relevant
|Previous Non-Sexual History||Avoids the issue.
Presents positive view or challenges
|Drinking habits, relationship with other men.|
|Previous relationship with the accused||Avoids the issue.
Presents a positive view, i.e., had good reason to be trustful.
|Previous dates and previous sex.|
|Adjustment Before||Good=this person does not use sex
or relationships to satisfy other emotional needs
Bad=a vulnerable person, emotionally unstable, has been exploited before, should know better, often older man/young girl
|Bad=Sick, unstable person, bizarre.
Must counter. Show person is not "naive" or vulnerable, but manipulative, e.g. bad seed, seductive child
|Adjustment After||Good- must explain or ignore
ie. was a strong person to begin with
Bad- Rape trauma syndrome
|Good- Did not seek counselling, was
not upset, was cold or calm - no emotion or maladjustment after=no rape
Bad-Must explain or ignore.
|Feelings at the time||How bad she felt, how emotional she was = assault||If not upset, no sexual assault.|
1. Injury (physical)
|Injury = no consent
No injury = must explain or ignore
|Injury = must dispute or ignore
No injury = consent
|2. Resistance (either explicit physical or verbal resistance; proposed new law makes explicit statement necessary)||Resistance = no consent
No resistance = must explain or ignore
|Resistance = must dispute or ignore
No resistance = consent
|3. Removed/Torn Clothing||Removed/torn = no consent
Not removed/torn = must dispute or ignore
|Removed/torn = must dispute or ignore
Not removed/torn = consent
|4. Violence/Intimidation (degree of intimidation through level or threat of force)||Foolish to resist, would only get
If no coercion must challenge or explain
|Dispute or ignore.
No coercion=no assault / with child did not ask not to tell = no assault
|5. Place||Unusual = not consent because people
do not have sex on a gravel road, bathroom floor, or stairwell when car
seats and beds are available
Usual, normal = must contest or ignore
|Unusual = must contest or ignore.
Usual, normal = consent
|6. Culpability/Character (was the act in keeping with the victim's past character or present behaviour, i.e., a blamable person?)||Clothing non-sexual, does not drink,
trusted accused like a friend. Uses good judgement.
Victim exploited/trust used
Opposite. Must explain or ignore
|Must challenge the good character
and make victim blamable or ignore
Sexual clothes, drinks, is not naive about relationships and sexual behaviour, etc.
|7. Recency of Complaint (to police, hospital, others)||Recent = an assault
Not recent = must explain the delay
|Recent = must contest or ignore
Not recent = no assault
|8. Initiation||Victim = must explain or ignore
Accused = stalked, planned, lured
|Victim = led on, asked for it
Accused=must challenge or ignore
|9. Misunderstanding||Affection is weird = child
Not a reasonable belief = adult
|Child misinterpreted affection
Adult honestly believed
|Consent not given||Consent given|
|B. Mistaken id||Correct person||Mistaken ID is part of Defense|
|Transcript||Barbara, aged 10, is asked by the Defense:
Q: How far is the lake from your home?
A: I don't know.
Q: But don't you go to the lake every day or so to
|A child, aged 5½ years, is asked by the Prosecutor:
Q: How long would you visit with Daddy when you went to his apartment?
A: Umm. I don't know.
Q: Well, would it be a matter of minutes?
A: Sometimes, I stayed there for supper.
|Andrea, aged 11, is asked by the Defense to indicate
the size of the living room in which she was molested over a year prior
to her appearance in court:
Q: How big is the living room at Mr. H.'s house?
A: ...(No response)
Q: Perhaps if you can't tell us the measurements, you could point out an area in the court room that is similar in size.
Do you walk to the lake? Is it a short walk?
Does it take longer to walk to the lake than to walk
How many minutes does it take to walk to the lake?
Did you visit your Dad at his apartment? Was it a long visit?
Did you see your Dad longer than the time that you
spend at school each day?
How many hours would you spend at your Dad's apartment when you visited?
Have you been in Mr. H.'s
Is Mr. H.'s living room bigger than the living room
in your own home?
How many feet wide is Mr.
|Column||Variable Name||Frequency Count|
|1||Previous Sexual History/Prosecutor|
|2||Previous Non-sexual History/Prosecutor|
|3||Previous Relationship Accused/Prosecutor|
|4||Previous Sexual History/Defense|
|5||Previous Non-sexual History/Defense|
|6||Previous Relationship Accused/Defense|
|9||Feelings at time/Prosecutor|
|12||Feelings at time/Defense|
|Major heading from Table||Prosecutor or Defense||Category name from the Table.||Name of the defendant.||Child, age in
Explain why the excerpt has been made. Be brief,
On the following pages are examples from
our files illustrating several of the categories.
|Type||Lawyer||Category||Case ID||Vic Age|
|history||Defense||non-sexual history||11408||child aged 5|
Defense attempts to establish that the child is of bad character and
enjoys hurting her brother.
D: Did you ever beat your brother up?
C: He hits me.
D: When you tell your brother to do something he does it, right?
D: Or else you'll smack him?
|Type||Lawyer||Category||Case ID||Vic Age|
|psychological||Defense||feelings at the time||10872||child aged 12|
Defense attempts to show that the witness was not
upset following the sexual assault.
D: And so what happened, did you people call for pizza again, or...?
D: You did?
D: And what was the pizza for?
C: For me and my mother and them.
D: For you and ?
C: My mother and David and Helen and them.
D: Given that you were so upset why didn't you just go home and forget about the pizza?
C: I don't get ya?
D: You said you were trying to get a pizza after all this happened, why didn't you just forget about the pizza and why didn't you just go home?
|Type||Lawyer||Category||Case ID||Vic Age|
|themes||Defense||resistance||10294||child aged 10|
Defense is trying to illustrate the lack of resistance
by the child to the assault.
D: Did Mr. M. every grab you?
D: Never forced you to do anything?
D: Never yelled at you
D: And according to your story, you kept on going there for 21/2 years and you knew every time when you went in what was going to happen and you just kept coming back. Is that what you are telling us?
C: Hmmm Yes.
|Type||Lawyer||Category||Case ID||Vic Age|
|themes||Defense||character||11352||child aged 8|
Defense attempts to establish that Jody
was a precocious child of questionable character.
D: When you were in the laundry room, what
were you asking Cliff about?
D: Why were you asking questions like that?
C: Because I wanted to know what it was.
D: Did you ever ask your mom questions like that?
D: Did she answer you?
C: Yes, but she didn't answer all of it.
D: Where else did you ask the accused about sex?
|Type||Lawyer||Category||Case ID||Vic Age|
|themes||Defense||recency of complaint||11376||child aged 11|
Defense is asking the child why she waited
4 years before she told her mother about the abuse and overlooks the fact
that the child had been threatened into silence.
D: You didn't tell anyone about this incident
C: Until my parents got separated and my friend told me to tell my mother.
D: Did you not think to tell your mother before this time.
C: I was scared.
|Type||Lawyer||Category||Case ID||Vic Age|
|strategies||Defense||impeachment||10355||child aged 10|
Defense is challenging the witness and
implying that she has lied yet, the details are peripheral.
D: And at the preliminary hearing, you
said: I was in bed beside Laurie. Correct?
D: The evidence you gave today was that you were on the floor. Correct?
D: The both can't be true, can they Mary?
J: The answer is self evident, Mr. G.
D: Which one is true?
D: Can you answer that Mary. Were you in bed or on the floor?
C: Um. I am pretty sure I was on the floor.
D: Mary, if you were pretty sure you were on the floor, why did you in court, under oath, tell the judge you were in bed?
D: Can you answer that question, Mary?
D: Can you recall why you said that you were in bed?
C: I don't know.
A skilled Defense attorney will always ask a series of such seemingly reasonable, yet developmentally inappropriate questions at the preliminary hearing and at the trial to encourage conflicting or inaccurate responses. Any discrepancies will be noted, and used to impeach the child witness as illustrated in the following example:
Defense (D): You've known Doug for a couple
Child (C): No
D: You didn't?
D: Are you sure about that?
D: It was just a month or two prior to this thing having taken place that you first knew Dougy, isn't it.
D: Could you go to page 1 of your statement please, David?
D: Right in the middle there is a question that says, When did you first meet Dougy?
D: And is your answer, last month was the first time that I went to his house. Right?
D: And the next line reads I knew him for a couple of years before that. Doesn't it?
D: So you lied to the police!
C: ...(no response)
D: or are you lying to us?
D: Well, you can't have it both ways David!
In the example above the issue is not one of lying, rather the discrepancy is the result of a child complying with the demand of an adult to answer a developmentally inappropriate question involving quantitative units of time. Yet, questions which require capacities the child does not have are frequently asked of young children, to which children respond with silence, "I don't know" or "I can't remember". As one example illustrates:
Defense: Mary can you tell us how many days apart
these incidents you've told us about happened?
Child: I can't remember when, how far they were apart, or if they were in the same day.
Defense: So they could have been a couple of days apart, or they could have been on the same day. You don't know.
Defense: (Brings up evidence from the preliminary). Having heard the question Mary, and having heard the answer, does that at all change your mind today as to whether or not it all happened on the same day, or it happened on different days, or how many days a part the incidents that you told us about happened?
In a courtroom, silence and "I don't know" responses
are taken as a sign of child-witness incompetence. Yet, most often the
dates, times, numbers, and sequences that children are asked about have
no relevance to the case, most certainly not about the nature of the sexual
contact that took place.
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