|Year : 2017 | Volume
| Issue : 3 | Page : 152-160
How to ensure children's credibility of testimony in sexual abuse cases
School of Law, Henan University of Science and Technology, Luoyang, Henan 471023, China
|Date of Web Publication||29-Sep-2017|
School of Law, Henan University of Science and Technology, 263, Kaiyuan Avenue, Luoyang, Henan 471023
Source of Support: None, Conflict of Interest: None
There were several sexual abuse cases in Taiwan where the defendants having committed child rapes either received light punishment or held not guilty. This led to the White Rose Movement in 2010, whereby the court decisions were criticized ruthlessly by people. Among those problematic court decisions with absurd reasoning, we have suspected that the legislative purpose of statutory rape and that of forcible rape applied to children and adults separately were mistakenly mixed. It resulted in the consent of intercourse becoming a legal constituent requirement taken into consideration in child rape cases. However, a child's consent on sex is invalid in the U.S. laws. Since the child's testimony was thought less creditable by some psychologists, Taiwanese courts have admitted the reports of defendant's polygraph and child victim's hymen tests to be presented in court to ensure the child's credibility. This paper, thus, based on Taiwan's judicial experience, aims to explore the child's credibility of testimony from legal and forensic linguistic aspects and to present an assessing method for reference.
Keywords: Child victims, consensual sex, sexual abuse, testimony hearsay exceptions
|How to cite this article:|
Chang WH. How to ensure children's credibility of testimony in sexual abuse cases. J Forensic Sci Med 2017;3:152-60
| Introduction|| |
The “White Rose” Movement was launched on September 25, 2010, in Taipei after thousands of people were outraged by a court verdict ruling the defendant who sexually molested a 6-year-old girl, a light prison sentence on the basis that the child did not explicitly express objection. Later, more similar court decisions were found. Over 150,000 protesters held white roses in hand symbolizing children's purity and gathered outside the presidential office to call for better protection for child sexual assault victims. The movement eventually brought the issue to the attention of the president and the executive, legislative, and judicial branches, the introduction of certain legal amendments, as well as the review of evidence in child rape cases. To explore what went wrong in the court's reasoning, we have studied largely the Taiwan and the U.S. court decisions before we arrive at a conclusion.
| Questions about Children's Testimony|| |
Ten years ago, a study pointed out that children's mental development and cognitive abilities fall behind those of adults, which results in a disadvantage to children's testimony. In addition, children's memories are susceptible to adults' induction, and once children blend the reality with imagination together, their memory is contaminated and twisted, thus the questions of children's testimony are not credible. The aforementioned suggestions were based on the literatures of psychologists like Piaget, Gleitman, Papalia, Olds, and Feldman, providing with viewpoints of children's educational psychology, but the researcher without careful review on the relation between children's testimony and the children's language in the process of cognitive development, instead, jumped to conclude that children's testimony is dangerous. Needless to say, there are at least two kinds of children witnesses, common witnesses and victims also witnesses, whose testimonial creditability is certainly different from each other. That is, the researcher ignored the testimonial risk disparities between child witnesses and child victims.
Why there were many psychologists so much into the studies about child testimonial creditability during 1990s? We traced and found a case having happened in 1983 in the U.S., where a 2-year-old boy's mother called the police to report that his son had likely been molested by the teachers at the McMartin Preschool. To seek possible witnesses or victims, the police mistakenly sent warning letters to all the parents of the students in the preschool, which resulted in media reporting and fear spreading. Finally, there were about 300 children allegedly to be sexually molested, however, and after 7 years' investigation with weak evidence, none of the defendants were convicted. This case has been known for its biggest expenses and longest trail in the U.S. judicial history. Ever since then, more and more psychological studies have tried to prove that children's testimony is not reliable according to this story. However, just because the research itself had already a purpose, its experimental infrastructure also had a prejudice. Moreover, such a conclusion in the past 10 years has caused a big impact on the court decisions of child sexual abuse cases in Taiwanese judicial practice.
Next, what were the consequences brought up to the courts while trying child sexual abuse cases? As a sexual abuse case usually leaves little evidence or simply nothing on the criminal scene, to ensure the credibility of child witnesses, the courts usually rely on two testing results of evidence: the child victim's hymen (virginity's completion) and the result of defendant's lie detection. Here, we must first think about how an adult rape a very young child? The younger the child victims are, the more possibilities of tools in the process of rape would be used. Different from adult victims, children victims could get heavily hurt, mentally and physically. Most cases unsuccessfully prosecuted are those in which children are raped by the perpetrator's finger or a bottle or pen, etc. No matter what ways the perpetrator uses, as long as the child victim keeps this as a secret to him/herself, or his/her experience is not discovered after a certain period of time, the physical examination may hardly show anything unusual. Even if an older child accepts physical examination and it later detects the girl's hymen is not complete, it cannot thus be proved of having anything to do with a rape or actually experiencing an accident or a consent sexual act. Second, the test report of polygraph (lie detector) is inadmissible to the U.S. courts because of its reliability's controversy. In other words, the evidence used for the Taiwanese courts to judge whether a child having experienced a sexual abuse is a truth or an imagination, is simply not enough, and also problematic.
In addition to the child's testimony having long been considered less creditable and the examinations of polygraph and hymen are instead widely used in court for the judges to ensure the child's credibility in reviewing sexual abuse cases in Taiwan, another issue is the unclear statutory definition resulting in the victim's consent being mistaken a decisive requirement to constitute the child rape. It can be found that the clause of “consent invalid” is not stipulated in the related statutes of sexual offenses. See the Taiwan Criminal Code §221 (1): A person who by threats, violence, intimidation, inducing hypnosis, or other means against the will of a male or female and who has sexual intercourse with such person shall be sentenced to imprisonment for not less than 3 years but not more than 10 years; §227 (1): A person who has sexual intercourse with a male or female under the age of fourteen shall be sentenced to imprisonment for not <3 years but not more than 10 years; and §227 (3): A person who has sexual intercourse with a male or female who is over the age of fourteen but under the age of sixteen shall be sentenced to imprisonment for not more than 7 years. On the contrary, the American law highlights the legislative determination of protecting children by rejecting the notion of a child's ability to consent to having sex, and the law imposes severe penalties on perpetrators. Sexual assault is a secretive crime, and once a child victim's testimony is not admissible, the defendant could just let go free. American courts consider children's state of mind first by assuming that a child victim's testimony under the absence of motive makes the accusation believable. In general, an out-of-court statement by a child is admissible by the testimony of the person or persons to whom made if the statement describes an act of sexual contact or physical abuse performed with or on the child; and the child is available to testify; and the court finds that the circumstances of the statement provide sufficient indicia of reliability.
| Limitation of Hymen's Test|| |
Medical studies have continuously suggested that physicians engaging in collecting evidence from the patients mostly lack the insufficient knowledge to tell a girl's sexual organ of normal and abnormal anatomy. According to a survey of gynecologists, carried out by the United Kingdom, over half of physicians are unable to clearly describe a normal child's hymen, and consequently, the girl having experienced a sexual assault sometimes cannot be laid out correctly. In addition, earlier studies thought that the sexually abused girls whose hymen's diameters would be wider than those of normal girls can be used as evidence. However, with different body shapes of each girl, measuring the diameter will find several overlapping gray areas, so it cannot be used as diagnostic criteria of the genitalia having been inserted. As to the evidence by checking the hymen broken scare between the 5 and 7 o'clock direction, the notch below or transverse; it should be noted that the hymen may be completely recovered, or healed in v-notch form typically appearing in the lower part of the hymen from the 3 o'clock to 9 o'clock direction.
Other studies have also shown that the girls who have experienced sexual violence and did not undergo medical tests within 48 h, their checkup on genital anomalies left least unusual finds, in particular, the sexual acts through the fingers and mouth hardly leave a mark. Even though the girls have heterosexual genitally inserted trauma, their recovery ability is pretty fast as well. Furthermore, in girls those who have been sexually abused by male genital insertion, 95% of those genital examinations show normal. Among the 236 cases of the court having established child sex abuse, 28% of the test reports on female genital showed normal, 49% showed nothing unusual, 9% of those showed suspicious, and only 14% of those showed abnormal finds. In an additional research on 205 girls at the average age of 5.4 years, who have been determined with experiences of sexual abuse, 110 (54%) of those children after genital examination were found normal and only 95 (46%) of those found clear evidence of sexual invasion. These studies suggest that children experiencing sexual abuses whose hymen in particular by fingers show normal in a fairly high rate; on the contrary, genital insertion would much easier to leave the hymen rupture. Since the depth of insertion is different, the result in each case is not absolute, either.
Accordingly, the hymen's integrity can be explained as: (1) the inserted objects have smaller diameter, such as a finger or incomplete insertion, (2) children have stronger healing capacity than expected, with reference to those at the age of 13–19 years who experienced adult male's genital insertion, whose hymen up to 52% still remain complete, and in an extreme case, it was observed that the pregnant girls have complete hymen. Therefore, a clinical physician suggests that judicial decisions should take the limitation of medical evidence into account, other scholars in the medical community and legal sectors, and social workers also have similar words about not overstating medical evidence. Depending on the medical evidence alone, most of the perpetrators would not be possibly convicted, besides, who usually have multi-attribute personalities and suffer from pedophile. As long as the perpetrators are not convicted along with compulsory treatment, under the recidivism rate as high as 40%, by then, there will be more child victims.
| Results of Polygraph|| |
According to Article 161-1 of Taiwan Criminal Procedure Code, the defendant can propose advantageous methods for the accused fact. Does it include polygraph evidence? Practically, Taiwanese courts admit the polygraph's result as evidence as long as defendants accept to the test. However, more and more defendants appeal against child rape conviction by voluntarily asking the court for undergoing examination of polygraph, and then contend the report of passing polygraph examination as their advantageous defense. In other words, defendants who pass polygraph are mostly considered not guilty in trial, but for those who fail in polygraph, polygraph's reliability becomes their reason to appeal. This phenomenon results in more and more child rape cases with no conviction. Can the polygraph evidence be used as an advantageous defense for defendants, especially used against child testimonial credibility?
For example, in States v. Posado (1995), the appeal concerns the admissibility of polygraph evidence in a pretrial hearing to suppress 44 kg of cocaine recovered after an airport interdiction and search of the defendants' luggage. The district court refused to consider polygraph evidence offered by the defendants to corroborate their version of events preceding the arrest. Our precedent, with few variations, has unequivocally held that polygraph evidence is inadmissible in a federal court for any purpose. However, the U.S. Fifth Circuit court concluded that the rationale underlying this circuit's per se rule against admitting polygraph evidence did not survive Daubert v. Merrell Dow Pharmaceuticals, Inc., (1993). Therefore, it will be necessary to reverse and remand to the district court for determination of the admissibility of the proffered evidence in light of the principles embodied in the Federal Rules of Evidence and the Supreme Court's decision in Daubert. Given the sparsity of the record, however, we express no opinion about whether, based on that analysis, the evidence possesses sufficient evidentiary reliability and relevance to be admissible in the suppression hearing on remand.
Defendants like Miriam Henao Posado, Pablo Ramirez, and Irma Clemencio Hurtado were each indicted and subsequently convicted of one count of conspiracy to possess and one count of possession with intent to distribute in excess of 5 kg of cocaine in violation of 21 U.S.C. §§841(a)(1), 841(b)(a)(A) and 846. Prior to the trial, the defendants moved to suppress the cocaine found in their luggage and certain postarrest statements. At issue was whether the defendants validly consented to a search of their luggage. The prosecution sought to justify the search solely on the basis of consent, offering a Spanish language consent form executed by all the three defendants. The three defendants, by the way of affidavit, argued that first they were not asked to consent and did not consent, either orally or in writing, to the search of their luggage until after the bags had been opened; second, they were told they were under arrest before their bags were searched; and third, they were not given Miranda warnings before the bags were opened.
Initially, Frye v. United States (1923) ruled that expert opinion based on a scientific technique is inadmissible unless the technique is “generally accepted” as reliable in the relevant scientific community. Later, in Daubert v. Merrell Dow Pharmaceuticals, Inc. (1995), the opinions were amended as: “Faced with a proffer of expert scientific testimony under Rule 702, the trial judge, pursuant to Rule 104(a), must make a preliminary assessment of whether the testimony's underlying reasoning or methodology is scientifically valid and properly can be applied to the facts at issue. Many considerations will bear on the inquiry, including whether the theory or technique in question can be (and has been) tested, whether it has been subjected to peer review and publication, its known or potential error rate and the existence and maintenance of standards controlling its operation, and whether it has attracted widespread acceptance within a relevant scientific community.”
The dissenting opinions in the United States v. Posado (1995) mentioned that  “It is with a high degree of caution that we have today opened the door to the possibility of polygraph evidence in certain circumstances. We may indeed be opening a legal Pandora's box. However, that the task is full of uncertainty and risk does not excuse us from our mandate to follow the Supreme Court's lead.” Further in the United States v. Kwong (1995), the court noted that the “legal Pandora's box” which the Fifth Circuit opened in the United States v. Posado (1995) is not yet agape in this Circuit. The record before us simply does not provide the proper opportunity to explore the validity of polygraph evidence under Rule 702. We found that the district court did not err in admitting the in-court eyewitness identification, declining to give an alibi instruction, or refusing to admit the results of the polygraph examination. According to the Military Rules of Evidence, Rule 707, polygraph examinations: (a) Notwithstanding any other provision of law, the results of a polygraph examination, the opinion of a polygraph examiner, or any reference to an offer to take, failure to take, or taking of a polygraph examination shall not be admitted into evidence. As quoted in the United States v. Scheffer (1998): “State and federal governments unquestionably have a legitimate interest in ensuring that reliable evidence is presented to the trier of fact in a criminal trial.” However, “there is simply no consensus that polygraph evidence is reliable.”
Since the White Rose Movement in 2010, the Taiwan Supreme Court has had the defendant's/appellant's reason turned down more frequently than before, especially which asks for the judge to send the child victim to do polygraph.
| Competency of Child Witnesses|| |
A child is deemed to be a capable witness unless proved otherwise through a competency examination administered by the court in accordance with Article 21 of this [Law] [Act], and his or her testimony shall not be presumed invalid or untrustworthy by reason of his or her age alone provided that his or her age and maturity allow the giving of intelligible and credible testimony. The general rule is that every person is competent to be a witness unless the trial court determines that the person is disqualified under the evidence rules. For example, North Carolina Evidence Rule 601(b) provides that any person, adult, or child is disqualified to testify as a witness when the court determines that he or she is “incapable of expressing himself/herself concerning the matter as to be understood, either directly or through interpretation by one who can understand” the witness, or “incapable of understanding the duty of a witness to tell the truth.” This standard sometimes is stated as requiring that the witness “understands the obligations of an oath or affirmation and has sufficient intelligence to give evidence.” “There is no fixed age limit below which a witness is incompetent to testify.”
A competency examination of a child may be conducted only if the court determines that there are compelling reasons to do so. The competency examination is aimed at determining whether or not the child can understand questions that are put to him or her in a language that a child understands as well as the importance of telling the truth. The trial judge may not accept a stipulation as to competency. Rather, the trial judge should personally examine or observe the child. A voir dire on competency of a child witness might include the following questions.
In the U.S. courts, before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness' conscience and impress the witness' mind with the duty to do so. For child witnesses, the judge will ask them to promise of telling the truth instead. According to Federal Rules of Evidence §601: “Every person is competent to be a witness except as otherwise provided in these rules.” Before a young child is put onto the witness stand, the judge qualifies the child witness of the issue of competency by greeting him below:
Q: “Good morning James. Can you hear me?”
Q: “Do you promise that everything you tell will be the truth?”
Q: “Miss Rubin (the prosecutor) is going to ask you some questions. Can you see me?”
Q: “How old are you today?”
Q: “Do you know the difference between telling the truth and a lie?”
Q: “What is the difference?”
A: “Well… Telling the truth is telling what happened and telling a lie is telling something that never happened.”
Q: “What would happen if you tell a lie?”
A: “The judge would punish me.”
Q: “When we talk about telling the truth… Tell what you remember… We don't want to know what other people told you happened.”
It has been found that many defendants appeal against his conviction by asking the judge to send the child victim to do psychiatric examination to ensure whether the child's accusation of being raped is just her/his imagination in Taiwanese judicial cases, but they have been mostly refused, more in particular after 2010. According to the guidelines of the United Nations, psychological or psychiatric examinations to assess the competency of a child shall not be ordered unless compelling reasons to do so are demonstrated. That is a trial judge has no authority to require a child witness to submit to an examination by a psychologist or a psychiatrist.
| Examination of Children's Credibility|| |
As in most child rape cases, scientific evidence is almost impossible to be found, the child victim's accusation becomes the only evidence. However, when the topmost principle of presumption of innocence until proved guilty meets child victims, the best interests of the child must be placed ahead to be considered. The “best interests of the child” is also one of the key principles underlying the Guidelines on Justice in Matters involving Child Victims and Witnesses of Crime. It is affirmed, among other principles, in paragraph 8(c)of the Guidelines, which states that “every child has the right to have his or her best interests given primary consideration.” The same paragraph further provides that the best interests of the child also include the right to protection and to a chance for harmonious development, yet these are only examples and should not be understood as limiting the scope of that principle. It also affirms that, while there is a need to safeguard the rights of accused and convicted offenders, the best interests of the child should be given primary consideration.
Thus, to deal with child sexual abuse cases, the U.S. courts adopted a model of assuming the child tells the truth, let the defendant take more responsibility for burden of proof. The cause is simply because the prosecutor in most cases can hardly represent the child victim due to the lack of substantial evidence. The reviewing model can be described as the relation between a patient and his/her doctor where both parties are the sole participants in a legal dispute. We present four ways to examine a child's testimony for reference in the following sections.
External consistency with the reality
External consistency is to check whether there are any impossible facts existing in the reality. If the description of the fact from the child is over reality, we need to be cautious about the child's statement; if nonreality facts are not mentioned of, basically we can presume the child's statement is not from imagination. For example, water flows upward or saw a demon showing up in the toilet. In McMartin Preschool case, some children mentioned that they were molested by film actor Chuck Norris whom they had never met; they claimed that they had been forced to dig up dead bodies and watch while the teachers hacked them to pieces with knives, and the bodies bled. Other children told of having been molested in airplanes, in hot air balloons, in a supermarket, and in the walkway of a car wash.
Internal consistency with the fact
Internal consistency is to check the persons, objects, and places… in the child's statement, which they can be later proved and stand. For example, the child mentioned of a mother's friend named Jack who drove a truck and took him to a shop in the evening near the gas station where they met his maths teacher… etc., Then, by investigating all the things, the child described if they do exist and proved real later, the child's statement is viewed believable. Whatsoever, we also need to concern about the child's age and language capability. Especially when the statement made by the child's own language, we must double check its external and internal consistency with reality and with their known facts until the examination moves to the next step. The following is a testimony of an 8-year-old boy from a preliminary hearing in the McMartin Preschool case, which is also a clue to first distinguish a common witness from a victim.
Q: “When you were little, did you go to McMartin School?”
Q: “Did you go in the morning or in the afternoon?”
Q: ”Did you ever stay in the afternoon?”
Q: “We were talking about places you went away from school, some houses. Did you play games at these houses?”
Q: “What games?”
A: “The Naked Movie Star.”
Q: “Who was there?”
A: “Ray and his friends.”
Q: “Ray and his friends were at the house. Had you seen them before?”
A: “Yes, at the school.”
Q: “James, when you played Naked Movie Star, did anyone take any pictures?”
Q: “Was there anything scary at these houses?”
Q: “Tell me what.”
A: “Ray would open this door in the floor and there would be lions.”
Q: “What did they do?”
A: “They would run around and roar.”
Q: “What did Ray tell you?”
A: “That the lions would jump up and get us if we told what happened.”
Q: “How was Ray dressed?”
A: “Well, it was like this red… Ray was dressed up as the devil and it was really scary.”
Q: “Wearing what?”
A: “A red coat, dressed up like the devil.”
Q: “More than one time?”
Q: “At this house, did anybody touch you?”
A: “Ray and his friends.”
Q: “Did Ray put any part of his body inside you?”
Q: “Which parts?”
A: “His penis and his finger.”
Q: “Did you go anywhere else with him?”
A: “I don't remember.”
Q: “Do you know what a mortuary is?”
Q: “What is a mortuary?”
A: “A place where dead people are taken to get ready for…”
Q: “Did you go to a mortuary with anyone from school?”
Q: “Did you go in a car?”
Q: “Was there anyone else?”
A: “Yes, his friends.”
Q: ”Would you tell what you saw in the mortuary?”
A: “Well, he opened up some coffins and we saw some dead bodies.”
Nevertheless, law enforcement officials while investing the McMartin Preschool case went to the school and attempted to search the lions, and they also brought in sonar equipment to locate the underground tunnels. They failed to find the room, the tunnels, and the lions. Before a child witness is asked to testify in court, maybe investigators should think about first whether this child has ever complained about any teacher's strange acts at school to their parents, or had a sudden period of time reluctant to go to school. In other words, if a child has never been like a victim, such as fluctuating emotions, being quiet, very sad, and violent, he/she should not be told of other victims' stories to make them remember the stories while interviewing them because they do not know the exact meaning of testifying in court.
Painful core memory
A researcher ever made an example to account for a child's memory as imperfect as any one of us: “Those of us who heard John Dean testify at the Watergate hearings had to be impressed with the honesty of his testimony. After all, it appeared that the amount of detail was such that it could not have been fabricated. His story had internal consistency; his testimony was consistent with known facts. More than anything else, however, it was his attention to detail that made us believe the truth of which he spoke. His statement was so specific that Senator Inouye incredulously asked Dean - Have you always had a facility for recalling the details of conversations which took place many months before?”
Most of us believed that John Dean spoke the truth, but he did not. After the statements were compared to the tape recordings of the conversations, it became apparent that what John Dean reported was partly an inaccurate recollection, the meetings as he fantasied they had occurred. Although the testimony reflected part of wishful thinking than accurate recall, if the detail of accusation does not twist the fact, it is allowed because even the adult's memory cannot be perfect, how we require a child. That is, when the event's happening time the child first mentioned of was at 3 pm in the afternoon, then later changed to 4 pm in another repeated statement, and because the time issue does not affect the fact of he was sexually abused, the child's statement is considered believable.
One of the techniques we use to judge credibility is the amount of detail. When a witness who answers “doesn't remember” to nearly all questions, he/she is not believed; the person who is quick to respond is believed. Here, we are almost certain that the key difference between a common witness who has never experienced a sexual abuse and a victim who has truly experienced the sexual abuse is that the detail of how he/she was raped by the defendant, such as the tool used, the gesture, the victimized process, and what the defendant said before he/she did the thing to the child victim.
Demeanor in court
Can we expect the child who has been sexually abused to testify in court? The fact is that none of us would understand what a sexual abuse experience has done to a child victim and what effects would happen to the child. If we do not know, it can be presumed that neither the judge nor the jury will have known how a child who has been abused will act when testifying. Thus, in preparing for trial, the prosecutor perhaps should worry about two things: (a) What the child will say and how the child will say it and; (b) whether the manner be interpreted as consistent or inconsistent with one who has been abused.
Louis Kiefer further provided explanations with two cases in which the child witness's demeanor in court was the determining factor of the final case decision. In one case, the young child took the stand holding a teddy bear. She started to answer the leading questions of the prosecutor and basically said that her father had molested her. She, incidentally, had not been able to see her father for over a year. In the middle of her testimony, she suddenly spotted her father who was sitting quietly, holding an oversized stuffed rabbit in his lap. She came running off the witness chair, yelling with glee, “Daddy, Daddy, I love you.” and jumped into his lap, hugged, and kissed him. The jury acquitted the father because they believed that a child who had been molested would not show that kind of spontaneous affect. Her affect was deemed more important than her words. Remember, however, there is no empirical knowledge to show whether that conclusion is accurate.
The other case is a retarded girl testifying in court whose demeanor and emotional reaction appeared to have been the main consideration which led to the conviction. According to the lawyer who was representing Colleen Bennett: “Amanda was about five at the time she testified, but relatively immature, not a very bright girl. She testified and she was rather bizarre in what she was saying, and they got her to say that she was touched, but it was kind of vague and did not amount to anything. At the end of her testimony, they had her start at one end (of the counsel table) and start identifying the defendants. She looked at Gina Miller and she said, 'I don't know who that is.' Then, she looked at her grandmother and she said, 'That's grandma.' Then, she looked at her uncle, Wayne Dill. She did not recognize him either. Then, she got to Rick Pitts and when she could see Rick, I mean to tell you, that kid just cracked up! She started yelling and screaming. And I tell you, I've never seen anything like it before. The kid just freaked. And I do not believe it was phony. The kid just shrieked. It was as if she'd just seen her father killed and was all alone in the world. She started running. She grabbed the judge… Up to that point, there was no evidence. That incident was the strongest piece of evidence in the whole case. Half the jury was in tears. They cried for that kid.”
The attorney for Pitts described the scene: And then, she saw Rick and she went into hysterics and started screaming: “Oh God! It's Rick! Help! Help!” The judge tried to get somebody to quiet her down. She wouldn't go with the witness coordinator, she went running up to the judge, grabbed his robe, gasping and hyperventilating and said, “Don't let him near me! Don't let him kill me!” That piece of testimony had more impact than anything else. It was really disturbing because, up to that point, I didn't really care about her testimony. She wasn't believable at all. Both attorneys stated that all witnesses prior to that time had confirmed that Amanda really liked Rick and had a good relationship with him. They also felt that the therapists had instilled a fear into Amanda which had not been there before the therapy.
Motives of false accusation
Would that be possible for a child to make a false report that his father, mother, or brother sexually abused him/her if it weren't true? It is obviously against the child's interest when he/she needs help. On the other hand, would a teenager be maliciously to send her father to prison for 30 years, for destroying his reputation? Similarly, would a child falsely report a teacher, to make him/her out of the school or merely because of a bad grade, or because of an unreciprocated crush? If it were not true?
To respond to the above questions, we should think about “will there be any different concern between little kids and adolescents?” Honestly speaking, comparing the children under the age of 5 to the children aged 11 years, their language ability can be seen a disparity, not to mention the credibility of testimony by children and teenagers. This is just a reminder that the older the child victim is, the more complicated the case could be, in particular the accused perpetrator is the victim's family member or closed person. Thus, to check whether the child witness has a motive to tell a lie or not becomes a key to clarify the fact in the case.
An attorney thinks that the motive for the little lie and attempt should be aware as it can go wild. Based on general reading, it appears that the motives in the adolescent victim may include one or more of the following: (a) Shift blame from a boyfriend. (b) Get even revenge, i.e., against a teacher for a bad grade, against a parent for perceived unreasonable punishment. (c) Get attention, i.e., the child who claims sexual abuse will make him or her famous in the community. (d) Imitation of movie scripts. (e) Imitation of real accusations, i.e., teenagers could image they were the objects of the teacher's affections. (f) Psychotic delusional thinking. (g) Jealousy, i.e., the child is jealous of the attention given by a natural parent to a stepparent or a stepsibling. (h) To avoid pressure from school's homework.
As far as we know among the above-mentioned factors of a false report, the motives (b) and (g) could likely happen but seem rarely heard of the cases in Taiwan. However, to check out whether there is motive for a victim to make a false report is helpful to repel suspicious accusations as well.
Evidence of character
Basically, the defendant's character evidence or reputation in the community, from a reliable source, especially in relation to the criminal facts, is admissible in court. In addition, the Taiwanese Criminal Procedures §166-7(2)(8) also allow the witness's character evidence put into issue, but as a corroborative evidence, as to its weight of evidence value is decided by the judge's discretion. On the other hand, as the victim is also the witness, to rebut the accusation of sexual abuse, the defendant's attorney sometimes would try to bring in the victim's evidence of a bad reputation, i.e., habitual liar, for truth and veracity, but the victim's prior sex experience is inadmissible. If character evidence can be established in the early trial, it may color the perception of the rest of the evidence, particularly, child rape is associated with pedophilia, meaning a psychiatric disorder in adults or late adolescents (persons aged 16 or older) typically characterized by a primary or exclusive sexual interest in prepubescent children (generally aged 13 years or younger, though onset of puberty may vary). With respect to character evidence, in State v. Hicks (2008), a witness who has known the defendant, a stepfather of her classmate, for 25 years, testified in court that when she was at 11 at the defendant's house, once lying in her classmate's bed alone, the defendant came in to spank her and seduced her with obscene words.
Further, in reference to character evidence, Louisiana Code of Evidence Article 412.2: “(A). When an accused is charged with a crime involving sexually assaultive behavior, or with acts that constitute a sex offense involving a victim who was under the age of seventeen at the time of the offense, evidence of the accused's commission of another crime, wrong, or act involving sexually assaultive behavior or acts which indicate a lustful disposition toward children may be admissible and may be considered for its bearing on any matter to which it is relevant subject to the balancing test provided in Article 403. (B). In a case in which the state intends to offer evidence under the provisions of this Article, the prosecution shall, upon request of the accused, provide reasonable notice in advance of trial of the nature of any such evidence it intends to introduce at trial for such purposes. (C). This Article shall not be construed to limit the admission or consideration of evidence under any other rule.” However, Louisiana Code of Evidence Article 403 also emphasizes that: “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time.”
| Conclusion|| |
Since a child's accusation in most sexual abuse cases is the sole evidence, the credibility of child's testimony becomes an issue. Thus, when the White Rose Movement disclosed many reasoning of court decisions unconvincing, we started to dig out those judgements for the nonguilty defendants in which we found the problematic measures of examination of hymen and polygraph used to ensure the child victim's testimony by the Taiwanese courts. In contrast, the U.S. practice of dealing with child victims of sexual assault cases has realized the difficulties in collecting scientific evidence since the McMartin Preschool case, and thus how to establish the child victim's credibility is important by the prosecution. That is, to admit the child's state of mind is necessary, we, thus, suggest several ways to help examine the child's testimony.
Moreover, a common child witness may not vouch for the credibility of a victim because it constitutes an impermissible opinion on the guilt of the defendant, unless he or she truly experienced the fact, i.e., having witnessed the thing happening or heard of the victim's asking for help, etc., Accordingly, North Carolina Supreme Court has held that “in a sexual offense prosecution involving a child victim, the trial court should not admit expert opinion that sexual abuse has in fact occurred because, in the absence of physical evidence supporting a diagnosis of sexual abuse, such testimony is an impermissible opinion regarding the victim's credibility. However, an expert witness may testify, upon a proper foundation, as to the profiles of sexually abused children and whether a particular complainant has symptoms or characteristics consistent therewith.”
The so-called testimony by expert witnesses is defined as: “A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.” The opinions given by expert witnesses in court are viewed as corroborative purposes. However, the expert testimony must not include expert's personal opinions, otherwise it will lead to exclusion of the testimony. In State of North Carolina v. Slade Weston Hicks (2015), the defendant argues that Frieda Bellis' testimony that Sally specifically came in because she had been molested by her older cousin amounted to expert testimony that Sally had, in fact, been sexually molested by defendant and impermissibly vouched for Sally's credibility. The court disagreed and held that the trial court did not err in admitting the expert testimony by explaining: “Because Ms. Bellis' testimony, when viewed in context, does not express an opinion as to Sally's credibility or defendant's guilt.”
On the other hand, testimony on posttraumatic stress syndrome may assist in corroborating the victim's story, or it may help to explain delays in reporting the crime or to refute the defense of consent. The U.S. Supreme Court further supplemented that: “The trial court should balance the probative value of evidence of posttraumatic stress, or rape trauma, syndrome against its prejudicial impact under Evidence Rule 403. It should also determine whether admission of this evidence would be helpful to the trier of fact under Evidence Rule 702. If the trial court is satisfied that these criteria have been met on the facts of the particular case, the evidence may be admitted for the purposes of corroboration. If admitted, the trial judge should take pains to explain to the jurors the limited uses for which the evidence is admitted.”
To summarize, a valuable lesson from the White Rose Movement is that the prejudice about children's suggestibility to lie on a sexual abuse should be thrown away in compliance with the child's best interests. Moreover, we believe that saving a child victim also means decreasing a potential perpetrator in the future.
Financial support and sponsorship
Conflicts of interest
There are no conflicts of interest.
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