This publication describes the mechanisms through which the "discounting" takes place in child sexual abuse cases.

Court records of 58 examples of child sexual abuse testimony were examined for the sensitivity of the court in acknowledging the differing developmental capabilities between child and adult witnesses. Children were frequently asked developmentally inappropriate questions. These questions either exceeded the children's cognitive threshold of comprehension, or failed to respect the fact that children are not responsible for their sexuality by the definition of being a child. The Canadian legal system fails justice to the extent that it holds the child responsible for providing accurate testimony, but fails to ensure that procedures are used which recognize the developmental capabilities and the non-sexual status of the child witness.

Every year thousands of children in North America become entangled in the criminal justice system and many of these children must testify at their own sexual abuse trials. Ceci and Bruck (1995) estimated that well over 13,000 children testify each year in sexual abuse cases in the United States alone, and that many thousands more give depositions and unsworn statements to law enforcement officials. Although there is some debate over the prevalence of child sexual abuse in Canada, Finkelhor's (1994) evaluation of the existing data (Badgley, 1984) suggests that the number of adults in the population sexually abused as children is high (30 sexual abuse victims per 100 of the Canadian population; ). These data reflect a serious social problem. The gravity of the problem is further highlighted by the fact that the number of official reports of child sexual abuse have increased dramatically in both the United States and Canada (American Humane Association, 1988; Rogers, 1990) with estimates of a 2,000% increase in the past two decades. Researchers believe that these large figures reflect mandated reporting in North America and increased education and understanding of the prevalence of childhood sexual abuse (e.g., Ceci & Bruck, 1995).
 

The legal system, however, has failed to show a corresponding change in sensitivity to the treatment of children entering the criminal justice system to testify concerning their sexual abuse experiences. Although there have been attempts at reform to meet the needs of child witnesses in the courtroom, such as allowing the child to testify behind a screen or through a pre-recorded video, these procedures have not been widely used (Hornick & Bolitho, 1992). In fact, many children are pushed beyond their level of competence on the witness stand, as was found in a longitudinal research project which followed the experiences of 126 child witnesses (London Family Court Clinic, 1993).
 

In cases of alleged sexual abuse, children are often the only sources of vital information. Rarely, is there physical evidence or an adult witness to verify a child's report. Without physical evidence, legal professionals rely heavily on children's testimony to discover the truth (Renner & Park, 1997; Saywitz, 1995). Children bring both capabilities and limitations to this task. Children's developmental constraints often translate into an inability to understand court proceedings, legal terminology, and complex questions during examinations. Many lawyers have capitalized on these known weaknesses of child witnesses in testifying as a means of negating children's credibility and for suggesting that the children cannot be believed beyond a reasonable doubt. As a result, child witnesses face many hardships as part of their participation in court (Ceci & Bruck, 1995; London Family Court Clinic, 1993; Whitcomb, Runyan, DeVos, Hunter, Cross, Everson, Peeler, Porter, Toth, & Cropper, 1991). Saywitz (1995, concluded that "The use of courtroom methods of collecting evidence are inimical to the developmentally sensitive process necessary to elicit information from children and thus, reduces the optimal level of children's responses" (p.114).
 

The Dual Nature of the Problem

There are two issues which are typically confounded in the courtroom testimony of the child witness. The first concerns the capacity of a child to accurately remember and report on a past event. The second concerns whether the methods used in the courtroom to elicit the information are appropriate. Just as the failure of an adult to answer a question asked in a foreign language does not mean the adult does not remember the event in question, a question asked in a form a child cannot understand does not mean that the child does not remember the event.

The practice of cross-examination exemplifies the inability of the court to manage cases in which children are witnesses. "For two centuries, common law judges and lawyers have regarded the opportunity of cross-examination as an essential safeguard of the accuracy and completeness of testimony, and they have insisted that the opportunity is a right and not a mere privilege" (McCormick, 1984, p.47). During cross-examination the goal of the Defence is to discredit and undermine the witness through strategic questioning. As a result, lawyers frequently ask questions of child witnesses that are beyond their current developmental level. Lawyers are notorious for using large vocabulary, compound sentences, asking questions requiring advanced reasoning skills, and asking for ratio measurement estimates (Renner & Park, 1997; Saywitz, 1995). The confused children often respond with silence, "I can't remember," or, when pressured to respond (for example, "Well, which is it?"), with errors that result from compliance with the demands of an adult authority to pick between two alternatives. In a courtroom, the lack of a response, saying "I don't know," or errors of compliance, are perceived as evidence of the child's incompetence as a witness.
 

Saywitz (1995) argues that children's apparent lack of credibility "has as much to do with the competence of adults to communicate effectively with children in the courtroom as it does with children's abilities to remember and relate their experiences accurately" (p. 115). Similar conclusions were reported by Renner and Park (1997) who suggested that the capacity of the child to accurately remember and report on a past event was confounded with the inappropriate methods used in the courtroom to elicit the information. Clearly, the tactic of asking developmentally inappropriate questions of witnesses does not prove that the children are incompetent or unreliable witnesses concerning the details of their sexual abuse; rather, it highlights the inappropriateness and insensitivity of such legal practices. It is in the sense of allowing inappropriate questions in the search for "truth" that the court may become party to the destruction of valid evidence. Any question or standard that is beyond the comprehension of the child is prima facia evidence of injustice, because it restricts the possibility of the discovery of the truth. The goal of the legal process should be to ensure justice by using developmentally appropriate means for ascertaining the truth from child witnesses.
 

The Role of Developmental Psychology in Solving the Problem
 

Numerous research studies have shown that children have the capacity to accurately recall past events (Fivush & Hammond, 1990; Flin, Boon, Knox, & Bull, 1992; Hammond & Fivush, 1991; Goodman & Reed, 1986; Peterson, 1996; Spencer & Flin, 1990), and not to imagine events which did not happen (Johnson and Foley, 1984; Harris, Brown, Marriot, Whittall & Harmer 1991; Sivan, 1991; Spencer & Flin, 1990), if their developmental capabilities are respected. The basic conclusions from the developmental psychology literature are that as children age, they develop more complex concepts, skills and capabilities. For example, Rosser (1994) and Alyman and Peters (1993) found that children's spatial ability will follow a linear evolution such that older children are more capable of making height, weight, or size estimations than younger children. A similar linear trend exists in children's comprehension of time (Levin, 1992; Levin & Simons, 1986).
 

However, these skills and concepts are subject to a ceiling in their complexity at any age. These ceilings are due to the existence of age-related constraints (for example, limited short term memory) that apply across the entire psychological system (Case, Okamoto, Henderson, & McKeough, 1993). As a result, many cognitive concepts appear to mature in stages such that children initially come to understand a concept such as distance (Goetze, 1980; Rudy, 1986) first in its qualitative form (near, far), then in its representational form (farther than, nearer than), and only finally in its quantitative form (inches, kilometres). These developmental levels are summarized in Table 1. The constraints change only gradually, and as they do, children's optimal cognitive performance can be realized (Case et al., 1993).

For younger children (under the age of 6 to 8 years), and especially very young children (3 to 6 years of age), all such references to complex frequency, time, distance, and space relationships should be avoided (Goetze, 1980; Rudy, 1986). Seldom is such detailed information from a child witness crucial to whether the sexual abuse took place. Even young children (ages 3 to 6) have the capacity for images and for making correct identifications, but do not have the capacity to arrange information into logical cause and effect sequences (Montangero, 1992, 1993), or into temporal or spatial patterns (Piaget, 1926; Price & Goodman, 1984).
 

The studies of courtroom communication and its mismatch with children's normative cognitive development suggest that often questions are asked in language too complex for children to comprehend about concepts too abstract for them to understand (Saywitz, 1995, p.125). In these cases, the court must restrict the questions to the level of testimony that the child has the developmental capacity to give. Child testimony would then be given greater consideration and the child would be less vulnerable to being exploited by the Defence. Such restrictions avoid confounding the limitations due to the ability of the child with distortions and errors introduced by the court process. A child's lack of capacity to provide some types of complex information should not be taken to mean that the facts that can be given are not trustworthy.
 

Purpose of the Present Study
 

The present paper explores the proposition that the Canadian legal system may be insensitive to the child witness. If the court fails to acknowledge the differing developmental capabilities of child and adult witnesses, this may prevent children from furnishing accurate and complete evidence which they are able to give. Because the system of justice used in Canada today was designed for adults it may not be adequately prepared to handle cases in which children are involved as witnesses.

To assess whether the Canadian legal system overlooks the developmental capabilities of child witnesses, the official public court records and the content of the actual testimony of 58 child sexual abuse victims were examined from 54 cases from the Halifax court system (In four cases, the testimony of two child witnesses was presented.). Twenty-nine cases were available on audio tape and written transcripts were provided for the remaining 25 cases. The court records provided factual information about the dates, times, places, evidence, offender and victim characteristics, details of the charge, and the verdict and sentence. The coding system used for the court records has previously been applied to both child and adult cases of sexual assault (see Yurchesyn, Keith, & Renner, 1992; Renner & Yurchesyn, 1994; Renner, Alksnis, & Park, 1997).
 

The process of coding the child testimony involved reading each transcript or listening to each tape with a predefined list of 22 categories of questions and tactics that might be used by either the Crown or the Defence, for a total of 44 separate scoreable activities (Renner, Parriag & Park, 1997). These categories reflect an exhaustive list of themes and tactics used by courtroom officials as identified in the previous research (Yurchesyn, et al., 1992; Renner & Yurchesyn, 1994; Renner, et al, 1997). Specifically, the coder placed a tick mark on the summary data sheet whenever a run of questions matched one of the predefined categories. For example, if the Crown asked about when the child told someone of the abuse, a check mark was made under "Recency of Report/Crown," and so on for each category for each lawyer. Eight of the 58 cases were scored by two independent raters; inter-rater reliability for these cases was 80%. Of particular interest to this study were seven of the 22 categories dealing with fixing responsibility for sexuality (see Table 2).
 

An additional analysis involved reviewing the audio tapes and transcripts qualitatively for incidents of developmentally inappropriate courtroom practices. For this analysis, the number of cases was restricted to 29 in which the children were 4 to 13 years of age. As most cognitive abilities (e.g. number knowledge, height estimation, comprehension of speed, etc.) become more fully realized by the ages of 14-16, the issue of developmentally inappropriate questions was of particular concern for children in this younger age range. All examples of questions involving time, distance and size estimations were transcribed for subsequent categorization according to whether the child witness was old enough to have mastered the cognitive task which the court was asking him/her to perform. For example, research suggests that children are unable to provide accurate quantitative information concerning time estimation before the age of 13 or 14 (Levin, 1992). Therefore, the testimony of children younger than 14 who were asked to provide time estimations was transcribed and the frequency of inaccuracies and/or errors of compliance, "I don't know" responses, or no responses at all were recorded. Ten of the 29 cases were scored by two independent raters; the inter-rater agreement for identifying instances of developmentally sensitive questions was 85%.
 

The transcriptions of these scenarios relating to time, distance, and size estimations provided an initial pool of material from which to evaluate the frequency of these lines of questions, and to make judgements on the basis of Table 1 about their appropriateness for the developmental level of the child. This procedure was primarily qualitative, although simple descriptive quantitative statistics resulted. Because the search was limited to only a few developmentally sensitive categories this material was by no means exhaustive. In fact, many other examples of potentially developmentally inappropriate questions and tactics were identified, such as asking the child to provide height or speed estimates. In other cases, harsh and intimidating methods were used to reduce a child to tears, at which point further information was not forthcoming; the lack of response was then used to argue that the child did not have the capacity to provide reliable testimony. This expanded range of examples was also transcribed to provide a broader set of materials for developing a more inclusive conceptual framework for future research. Thus, the qualitative data to be summarized in this paper is a small portion of the range of material potentially available. Each case contributed to this collection of scenarios; the examples are pervasive and representative of children's experiences in court.
 

Description of the Cases
 

The quantitative coding of the court records documents showed that the accused was charged with Simple (Level I) Sexual Assault under the Criminal Code in all 54 cases. This is the least serious charge, and is laid when there is no physical harm to the victim and when no weapon was used (Level II), and when the victim's life was not endangered (Level III). This finding is not unusual as child sexual abuse cases are frequently under-charged (Roberts, 1990) which most often occurs if the Crown does not have extensive corroborative evidence, as is often the condition in child cases. The lower charge level, however, does not prevent the Crown from introducing evidence or claiming harm through the testimony of the witness during the trial. Using this more liberal standard, some form of physical harm or threat of harm was claimed in 9 cases (15%) and some actual injury in 2 cases (3%). In seven of the nine cases the child was over 13 years of age, thus moving into a gray area where witnesses who are legally children are treated increasingly like adults (Renner, et al, 1997). This data is consistent with the child sexual abuse literature indicating that little violence or injury is needed to coerce children into participating in sexual acts with adults (Rogers, 1990). The perpetrator's greater physical size, power, and authority are usually sufficient to coerce young children and prevent disclosure.
 

Does the Court Show Respect for the Developmental Level of the Child Witness?

There are two ways in which the current court procedures fail to show respect for the developmental capabilities of the child witness. The first, is to ask age inappropriate questions the child can not be expected to answer; these forced errors are allowed by the court and are used as the basis for discrediting the testimony of the child. The second, is the content of the questions which indirectly holds children responsible for their sexuality, which should never occur because the law explicitly forbids an adult from having sexual contact with a child.
 

Sensitivity to Cognitive Developmental Stages. Qualitative analysis of the data revealed that developmentally inappropriate questions were asked of all the child witnesses aged 4-13 for the three cognitive concepts examined. Fifty clear examples of inappropriate lines of questioning were found where the child's "ceiling" of comprehension for size, distance, and time estimations were exceeded. Not surprisingly, in these instances the children consistently failed to respond, made errors, or said, "I don't know." Examples of these questions included asking an ten year old to indicate, "How wide the windows were at a Pizza Joe's" and when no answer was forthcoming, "Compare it to the screen in front of you. How wide would the windows be in comparison to the screen?" Similarly, an eight year old was asked, "Do you know how long it was the day before you went downstairs to get the bicycle horn that you had last seen Mr. R.? The question is convoluted, compounded and requires quantitative thinking skills that could only be reasonably expected of a teenager or adult.
 

A skilled Defence 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:
 

Defence (D): You've known Doug for a couple of years.
Child (C): No
D: You didn't?
C: No
D: Are you sure about that?
C: Yes
D: It was just a month or two prior to this thing having taken place that you first knew Dougy, isn't it.
C: Yes.
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?
C: Yes
D: And is your answer, last month was the first time that I went to his house. Right?
C: Yes.
D: And the next line reads I knew him for a couple of years before that. Doesn't it?
C: Yes
D: So you lied to the police!
C: ...(no response)
D: or are you lying to us?
C: No.
D: Well, you can't have it both ways David!
 

In this example 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. The court provides a legally permissible way for the Defence to abuse the child by allowing inappropriate questions. Seldom, if ever, are numerical details, or the physical size of the widow at Pizza Joe's, relevant to the central issue of whether sexual abuse took place. Rather, these numerical details serve the sole purpose of discrediting a child witness by use of the "tricks" of cross examination, pitting the capacity of the mind of a professional adult against the mind of a child.
 

Interestingly, the Crown was also guilty of asking developmentally unacceptable questions of their witnesses. For example, a ten year old child who had been sexually abused by her father for many years was asked how long each of the abusive incidents would last. Furthermore, one Crown attorney asked of his eight year old witness: "How much time did all this take," thus exposing his own witness to a continuation of a developmentally inappropriate line of questions in cross examination by introducing a quantitative time estimate as part of the direct examination.
 

The Issue of Responsibility. The tactic of asking inappropriate "objective" questions appears on the surface to be reasonable because the court has implicitly used the context of adult sexuality for trying cases of child sexual abuse. The result of such "tricks" has been to shift partial responsibility for sexuality from the accused adult to the child witness. All of the content themes found in the child cases (see Table 2) are based on "myths" about the nature of sexual assault which are used in adult cases to try to show that adult women were responsible for and/or consented to the sexual act (Renner & Yurchesyn, 1994). The assumption is made that if an adult woman did not consent, there would be physical evidence of resistance, lack of initiation, and a recent report. In a parallel fashion in the child cases, whenever possible the Crown would emphasize good adjustment before the abuse, bad adjustment after the abuse, that the accused removed the child's clothing, that the child resisted, was of good character, reported the abuse quickly, and did not initiate contact with the accused. Whenever possible the Defence would emphasize the opposite. All of these differences in emphasis between the Crown and Defence were statistically significant at p <.001 (see Table 2).

Of particular interest in Table 2 is the high frequency of the category "No Reference," in which both the Crown and Defence selectively pick the themes they will focus on based on the circumstances of the case. Both use adult themes which support their position and ignore themes that do not. Because the two largely act in a complementary fashion, the actual trial is a script waiting to be played out based on myths about adult sexuality.
 

The category of resistance provides an example of the complementary use of themes to shift some degree of responsibility for sexuality from the accused adult to the child witness. In 59% of the child cases, the Crown as part of the presentation made the claim that the child offered some form of resistance. For these cases, the Defence either ignored the claim (56%) when there was corroborative evidence, challenged the claim (29%) by the Crown, or partially agreed with the Crown (15%). The Defence, on the other hand, used the theme of lack of resistance in 35% of the cases, to which the Crown ignored the claim 40% of the time (if lack of resistance was clear, such as the child returning to the home of the accused), and challenged the claim of the Defence in only 10% the remaining cases.
 

For the theme of who initiated the contact(s) in which the abuse was alleged to have happened, the Crown argued it was the accused in 34% of the cases. For these cases, the Defence usually ignored the claim (70%) or in the remaining cases argued that it was the child. The Defence claimed that the child initiated the contact in 31% of the cases. In these instances, the Crown only challenged the claim made by the Defence 33% of the time. A similar pattern of results also applied to the clothing (who removed it), recency of complaint (was it reported immediately), character (is this a good child or a bad seed), psychological adjustment before the incident (trustworthy child or not), and psychological adjustment after the incident (if there was an emotional problem the abuse must have caused it, or if there was no emotional problem afterward no abuse occurred). There is seldom conflict between the Crown and the Defence. Each lawyer is selective among the major themes that define adult sexuality to either bring out the evidence if it supports their case, or ignore it when it does not.
 

Unfortunately, the preoccupation of the legal process with the capacity of the child to objectively answer these types of questions has distracted attention away from the fact that these issues are irrelevant in cases of child sexual abuse. Full and complete responsibility rests with the adult to refrain from all sexual activity with a child, even if a child had removed all articles of clothing, requested the sexual abuse, and promised not to tell anyone. Of course, these conditions never apply; yet, the themes present in adult cases are used in the direct and cross examination of children. Overwhelming, both the Crown and the Defence buy into myths which effectively hold the child responsible for preventing the sexual abuse from taking place. The Crown and Defence seem to engage in a "game" in which each side highlights or ignores evidence that might support or refute their position based on a model of adult sexuality.

It is our position that the application of developmental psychology to the legal process could result in courtroom standards that acknowledge the differing cognitive capabilities between children and adults. Such procedures would allow the legal process to separate two sources of potential error that are now confounded. The lack of capacity of the child to provide evidence must be separated from the failure to provide evidence due to the use of questions known in advance to be cognitively impossible for the child to answer. In short, errors forced by the court process should not be attributed to the lack of capacity of the child to provide reliable testimony.
 

Application of Developmental Standards
 

Three exhibits exemplify how the legal process might enable children to furnish accurate testimony by respecting the child's intellectual capabilities with cognitively appropriate questions (see Table 3).

In Exhibit A, the 10 year old child's response of "I don't know" to a question suitable for a fourteen year old is used to imply that the child is not a reliable witness. It is highly likely, however, that this child does not have the cognitive means to provide an estimation of distance. All that is central to the sexual assault case is that there is a lake to which the child frequently walks to go swimming, either alone or with other children. If appropriate questions were asked, a clear picture would have been received by the court of a lake frequently used for swimming within easy walking distance, a fact that could be easily confirmed.
 

Due to the very young age of the witness in Exhibit B, and the fact that time estimation skills are very fragile and/or non-existent prior to age eight, this witness should have been asked a series of questions which used only images or identification, such as "Did you sleep at Daddy's?," "Did you have supper at Daddy's?," to gauge the approximate time that the child spent at her father's apartment without asking for time estimations. Or, to establish previous physical presence in a location, the child could have been shown a picture, to which the reply: "Daddy's bedroom," would depend only on the capacity to recognize her father's home. Such appropriate questions would then allow the adults who serve as judge and jury to make inferences about the validity of the testimony and whether the alleged circumstances of the case are credible.
 

The final example, Exhibit C, provides an illustration of what seems like a reasonable line of questions. However, the child is caught in a no win situation. Failure to answer the question implies that the child is incompetent, and perhaps was never in the living room. Yet, being forced to provide an answer before the required spatial skills are developed frequently results in conflicting numerical estimates or an answer that can be demonstrated to be incorrect. If all that needs to be established is evidence that the child was in the living room, this can be verified by a descriptive account of objects, or by correctly pointing to a picture of the living room, both of which requires only the capacity for images, which emerges at a very early developmental level.
 

What Needs to be Done?
 

The procedures of the courtroom need not provide the occasion, in practice, for a secondary form of abuse, through failing to adjust procedures to match the mental capacity of children. The discovery of the "truth" to serve justice can never be achieved through a mechanism known in advance to produce false, incomplete, or misleading information. We know from developmental research that children have the capacity to remember, and that these memories can be accurately reported when appropriate questions are asked.
 

The primary purpose of the legal system is to achieve justice by providing a balance between the rights of the victim and the rights of the accused. However, in the situation of child sexual abuse testimony, it is not a case of two sets of rights in conflict. Rather, the court fails in its purpose in child sexual abuse cases by obscuring the truth through legal practices known to be developmentally inappropriate. The legal process can be changed to eliminate the destruction of good legal evidence. This can be done through the creation and administration of an assessment tool designed to determine the cognitive level of the child prior to testifying, and through the application of a standard in the form of a template that outlines acceptable formats for questions. For each cognitive concept, accurate testimony can be obtained from child witnesses by respecting the child's cognitive threshold of comprehension.
 

For example, when a child is asked, "How big is the living room at Mr. H.'s house?" (size estimation), or "How long did you have to put your mouth on his penis?" (time estimation), the child must have achieved comprehension of these concepts at a quantitative level to respond accurately. Had a pre-court assessment of the child established that he or she had achieved a representational comprehension of spatial ability or time estimation, the above questions would not have been permitted in the courtroom as the child's "ceiling" would have been exceeded. Rather, application of a developmental framework would only permit questions which respected the child's representational comprehension of these concepts, granting the child the opportunity to provide accurate evidence.
 

Furthermore, application of standards from developmental psychology will aid in the dispersion of the myth that children are responsible for their own sexuality. The current legal system inverts the developmental truth that children can give responsible testimony but are not responsible for their sexuality. The mechanism through which the inversion happens is the use of the context of adult sexuality as the thematic frame of reference for child sexual abuse. This contradiction to justice and common sense would be eliminated if the legal system were more forceful in requiring questions to be developmentally appropriate, and in respecting that children do not have responsibility for their sexuality.
 

Of particular concern is the use of inappropriate questions which demand an answer (for example, "Well, which one is right?"). Children feel the obligation to give an answer to such a question to comply with the demand characteristics of the situation. While it would be possible to attempt to train children before a court appearance to add the response category of "I don't understand the question" to their repertoire, it would be far simpler and more fitting to place the responsibility on the court. There is good precedent for making the court accountable for achieving just outcomes. For example, the court will not enforce a contract between a five year old and an adult which exchanges the child's future lifetime earnings for a dish of ice cream.
 

In order for justice to be served, a child witness must have the capacity to answer the question posed, and, by definition of being a child, must be protected against deliberate exploitation by an adult. In cases of child sexual abuse both of these fundamental principles of justice are violated by the legal process itself. Specifically, child witnesses are prevented from furnishing accurate and complete evidence. Ironically, the system designed to protect child victims of sexual abuse is, in practice, an accomplice in needlessly destroying their testimony and traumatizing the witness.

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