You cannot trust what you see and hear: children deny; adult victims deny; and, above all, those who commit abusive acts deny. Courts recognize that parents who learn of abuse of their children by the other parent often act counterintuitively. (People v. McAlpin (1991) 53 Cal.3d 1289, 1302 (mothers not reporting known abuse).) A child’s recantation after disclosing sexual abuse is a common occurrence and too often taken as the truth of what happened. (See People v. McAlpin, supra, 53 Cal.3d at pp. 1399-1301; Brodit v. Cambra (2003) 350 F.3d 985; United States v. Bighead (1997) 128 F.3d 1329; United States v. Antone (1992) 981 F .2d 1059.)
The National Council of Juvenile and Family Court Judges caution judges that “[t]he absence of allegations of abuse or the absence of requests for sole custody does not mean that safety risks are not present. For any number of reasons, victims of abuse may fail to disclose the abuse in their initial pleadings; among them, a fear of increasing the level of dangerousness, embarrassment or shame, or advice from an attorney that asserting such claims may be detrimental to their case or delay resolution.” (A Judge’s Guide to Child Safety in Custody Cases, 2008, Sec. C. 7 .3, p. 20.)
What you think you see is not always what it is. Victims and offenders do things that are counterintuitive, some subconsciously and others intentionally to mislead those whom they must impress or are investigating reports or suspicions of abuse. For example, a child who tells a mother may not tell others who try to verify what the mother has reported. When children do disclose, of all other family members, they are most likely to report to mothers. Few disclose abuse to authorities or professionals. (No One Noticed, No One Heard: A Study of Disclosures of Childhood Abuse, Debbie Allnock and Pam Miller, National Society for the Prevention of Cruelty to Children, London, Eng. (2013) p. 23; see also Interviewing Children About Sexual Abuse, Faller, K., Oxford, 2007, pp. 183-190.)
Science hasn’t caught up with what we encounter in these investigations and there is no exact way to determine every aspect of what we need to know. Valid reports of abuse often have “paradoxical” qualities. (See People v. Patino (1994) 26 Cal.App.4th 1737, 1744-1745.) Legal professionals, police, CPS investigators, mental health professionals, and courts all have different views of these allegations. If you are investigating, it is not always possible to rely upon the opinions, observations, and “facts” established by others. They often do not follow best practices or even their own policies, guidelines, and/or regulations. Often times a CPS or law enforcement investigator’s eyes glaze over when custody is mentioned along with facts that indicate abuse.
For example, many interpret a child hitting or otherwise becoming antagonistic towards the “protective parent” (the parent seeking protection for the child) as proof that the child is not being abused by the other parent, and is expressing anger about being kept from the abusive parent. In fact, this behavior more often indicates the child’s anger at the protective parent for not protecting them. Survivors of sexual abuse often have secondary responses, including substance abuse, eating disorders, self-mutilation, and suicidal ideation and attempts. Survivors of childhood sexual abuse also suffer long-term mental health symptoms, including anxiety, depression, and oppositional defiant behavior or aggression. (See People v. Mckee (2012) WL 3008783 *10 (Cal.App. 4 Dist.).)
It is necessary to keep up on the literature, science, and generally accepted principles about all aspects of this subject so as to properly question conclusions reached by “clinical experience” which by its very definition has a built-in bias. What the clinician, investigator, attorney, judge, or other professional involved has experienced is unique to that individual. There are many characteristics of abuse that must be considered when assessing the facts as discovered, uncovered, or presented.
There are distinct patterns of behavior that provide a conducive environment for abuse. Grooming appears nearly universal, either in place of or in addition to coercion as a technique for gaining sexual access to children. “The establishment (and eventual betrayal) of affection and trust occupies a central role in the child molester’s interactions with children.” (Salter, A, Transforming Trauma, Sage Publications, 1995, pp. 74-83, 88-97; Los Angeles County Dept. of Children & Family Services v. Superior Court (2013) 222 Cal.App.4th 149 (grooming sufficient evidence to sustain 300 WIC Petition for Dependency).)
Abusers are very adept at misdirecting those making inquiries about their conduct. I call it “Deception Delight.” Others have their own terms for it. Offenders actually get great satisfaction sending those who seek to intervene on distracting journeys. (See Anna Salter, Sex, Lies and Sex Offenders; Dr. Bill Eddy, Ph.D., J.D., Presentation AFCC, Toronto, 2019.)
Too often incorrect conclusions are reached because there was no medical finding or evidence. The reality is that there is rarely any medical evidence and, for that very reason, when evidence is found it is so significant. (See Adams, Harper, Knudson & Revilla, Examination Findings in Legally Confirmed Child Sexual Abuse: It’s Normal to be Normal, 94 Pediatrics 310 (1994).)
Mental health professionals and others too often believe that because a person isn’t found to be a “pedophile” they could not have molested the child in question. Offending parents do many things for reasons other than being sexually motivated. Is it possible that what was done was for the purpose of antagonizing the other parent – of generating a report just before a significant event in the case so that it can be claimed that the other parent is trying to manipulate the outcome of the case?
Mental health professionals and others too often discount the finding of nude pictures of children in a suspected offender’s possession as insignificant, when in fact, the image is often a view into the offender’s mind. (See United States v. Crisman (2014) 39 F. Supp. 3d 1189, 1191 for a good discussion on the merits of studies and cases as of 2014; see also Seto, M, et al. “Child Pornography Offenses Are a Valid Diagnostic Indicator of Pedophilia” Journal of Abnormal Psychology, 2006, Vol. 115, No. 3, 610-615.)
An individual’s own beliefs may misguide their conclusions. In one case involving a metropolitan sheriff’s department deputy who discounted child pornography depicting images of teenager cheerleaders with the focus of the camera on their underwear found by a concerned mother, parting her company, he said “…every man has a sexual fantasy of a teen in a cheerleader’s outfit.” Too often a sexual abuse report is summarily dismissed as false because it comes during some form of relationship between parents living together. In fact, the actual rate of maliciously made false reporting of abuse is not statistically significant. Over the years there have been several studies on false allegations that establish these facts. In fact studies show a low rate of false accusations (Jones, 1987; Oates, 2000). Both studies reviewed all referrals into the Denver Colorado Child Protective Services division over a one-year period. The 1987 study found a fictitious report rate of 5% arising from adult coaching and 1% from the child’s own motivations. In 2000, the rate was .02% from adult coaching and 2.5% from children’s own motivation. Another report covered 9 states with data reported on intentionally false allegations. Rate of intentionally false allegations were .002% — statistically insignificant. Results are consistent with previous national reports which were as low as .001 in 2010. (U.S. Department of Health & Human Services. (2019) Child Maltreatment 2017.)
https://www.acf.hhs.gov/sites/default/files/documents/cb/cm2017.pdf
In 7,600 cases across Canada in 1998 a study found 4% maliciously false allegations overall; 12% in the context of a custody dispute. Fathers were more likely to make intentionally false allegations than mothers or children. Not all false allegations are intentional. (Trocme, N & Bala, N. “False Allegations of Abuse and Neglect When Parents Separate,” Child Abuse and Neglect 29 (2005) 1333-1345.)
Judges, private attorneys, and custody evaluators were more likely than domestic violence workers and legal aid attorneys to believe that mothers make false allegations. (Child Custody Evaluator’s Beliefs About Domestic Abuse Allegations: Their Relationship to Evaluator Demographics, Background, Domestic Violence Knowledge and Custody-Visitation Recommendations, Saunders, Daniel, et al. (2012) U.S. Dept. Of Justice.)
Litigating these issues requires someone who knows the law, the nuances of the research, what evidence is possible, where and how to find that evidence, what the evidence that exists means, and, finally, how to get all of the evidence properly into court. It means having an attorney who has these characteristics, an investigator, and mental health professional sensitive to these issues, and an expert who can put all of this into perspective for the court. That is how the child abuser vertical prosecution program I ran became so successful. We worked with the agencies who brought the cases to us in looking for admissible evidence, took the cases to court, and secured convictions on 96.5% of the charges we filed, at charging, not superior court. In the civil sector, family court, the same can be achieved with the right combination of advocates working for the family. It is important to get the case going in the right direction at the start. Once a tree falls in the forest, it is almost impossible to get it to grow straight up again.
References:
- Adjudicating Allegations of Child Sexual Abuse When Custody is in Dispute: Facilitator’s Manual and Curriculum Text, National Judicial Education Program to Promote Equality for Women and Men in the Courts and the American Bar Association, Washington, D.C., (1996)
- The APSAC Handbook on Child Maltreatment, 4th Ed. Editors, Klika, J. Bart, Conte, Jon, SAGE, Thousand Oaks (2017)
- Child Custody & Domestic Violence: A Call for Safety and Accountability, Jaffe, P., et al., Sage, Thousand Oaks (2003)
- Domestic Violence, Abuse and Child Custody: Legal Strategies and Policy Issues, Hannah, M., Goldstein, B., Civil Research Institute, N.J. (2010)
- Domestic Violence and Child Custody Disputes: A Resource Handbook for Judges and Court Managers, National Center for State Courts, Washington, D.C. (1997)
- Domestic Violence & Children: Resolving Custody and Visitation Disputes, A National Judicial Curriculum, Lemon, Nancy, et al., Family Violence Prevention Fund & Supreme Court of Arizona, San Francisco (1995)
- Investigation and Prosecution of Child Abuse, 2nd Ed., The National District Attorney’s Association, National Center for the Prosecution of Child Abuse (1993)
- Meyers on Evidence of Interpersonal Violence: Child Maltreatment, Intimate Partner Violence, Rape, Stalking, and Elder Abuse, 5th Ed., Wolters Kluwer, N.Y. (2020)
- Representing the Domestic Violence Survivor: Critical Legal Issues, Effective Safety Strategies, 2nd Ed., Civil Research Institute, N.J. (2019)
- The Sexual Exploitation of Children: A Practical Guide to Assessment, Investigation and Intervention, 2nd Ed., Goldstein, S., CRC Press, Boca Raton, Fla. (1999)
Seth Goldstein is a trial lawyer, trial consultant, expert witness and trainer. He was in law enforcement for 20 years, the latter part of his career as a district attorney’s investigator preparing sexual abuse cases for trial. He ran a Child Abuser Prosecution Program that achieved a 96.5% conviction rate at charging, charging 75% of the cases brought to the program. He has repeatedly testified as an expert on child abuse issues throughout California and in several states, consulting as an expert and as co-counsel on hundreds of cases over his 44 years working in that field. His 25 year law practice has concentrated on sexual abuse and interpersonal violence in child custody matters. His book The Sexual Exploitation of Children: A Practical Guide to Assessment, Investigation, and Intervention, 2nd Edition, (1999) is still the standard for analysis of these cases.