Devising Child-Friendly Practices
Besides credibility, another special problem requires a special solution: Testifying in legal proceedings can add to the suffering of victimized children. To avoid further traumatizing these youngsters, the idea of developing a child-friendly courtroom setting and protocol quickly caught on (see Libai, 1969).
The right to a public trial always has protected defendants against judicial misconduct and govern- mental persecution behind closed doors. However, the prospect of testifying in front of a crowd of strangers can deter a youthful complainant from pressing charges. In particular, the spectacle of describing in intimate detail what happened during an episode of sexual abuse is so potentially disturb- ing to a sensitive youngster that exceptions to the public nature of a trial have been legislated. Some
states grant judges the authority to bar spectators from the courtroom during the testimony of a child who claims to have been sexually abused. In more than half of the states, the release of identify- ing information by the news media about a com- plainant in a sexual abuse case is severely limited (Whitcomb, 1992).
The Sixth Amendment guarantees defendants in criminal trials the right to confront their accusers. In theory, looking the defendant in the eye in court as an accusation is repeated has traditionally been considered a test of a complaining witness’s truth- fulness. But when very young children are the complainants, they often dread seeing the defendant in person. For many years, to avoid last-minute intimidation when the youngster took the stand, prosecutors would position themselves to block the small witness’s view of the defendant. Other prosecutors simply instructed the child to look at someone in the spectator section during the testi- mony, preferably toward a supportive, familiar per- son. More obvious methods of shielding frightened complainants from the direct gaze of defendants, such as using a screen or one-way glass or having the children turn their backs, were deemed to vio- late the face-to-face requirement of the confronta- tion clause.
With the advent of closed-circuit television and videotaping, more options developed. To avoid intimidation and anxiety caused by the presence of jurors and other courtroom personnel, nearly all states allow youngsters to be questioned in another room using two-way, live closed-circuit television. To spare the child the ordeal of reliving unpleasant experiences in front of strangers, most of these states permit testimony and cross-examination previously videotaped at depositions, grand jury proceedings, or preliminary hearings to be used in trials (Kelley, 2009). In 1990, the Supreme Court ruled (in Maryland v. Craig) that these alternatives to direct confrontation were constitutionally permissi- ble under certain circumstances (Whitcomb, 1992).
Hearsay is usually not admissible during trials because statements uttered outside the courtroom are not made under oath and are not subject to cross-examination. Yet in child abuse cases, what
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the youngster said before legal proceedings were initiated may be very compelling evidence. For example, a casual remark by a very young and immature girl might be a surprisingly graphic description of a sexual act that should be unfamiliar to her. Therefore, in the interest of justice in more than half the states, special exceptions to the hearsay rule enable witnesses to tell the court what allegedly sexually abused children have told them (Kelley, 2009). In 1980, the Supreme Court ruled (in Ohio v. Roberts) that a statement made by a complainant who does not testify at the trial can be used as evi- dence if it falls under one of the rules for hearsay exceptions or meets a reliability test (Whitcomb, 1992).
In the late 1970s, investigators began to use anatomically detailed dolls (with prominent genita- lia) to facilitate and enhance interviews with chil- dren who might have been sexually abused. The rationale was that the presence of a doll would make the interview seem less formal and stressful, enable children with limited vocabularies or over- whelming emotions to demonstrate what happened to them, and permit the information to be disclosed without any reliance on leading questions. The Victims of Child Abuse Act of 1990 endorsed the use of dolls as demonstrative aids during interviews and court proceedings, and some states have fol- lowed suit. But critics point out that experiments have shown that even children with no suspected history of abuse play with the anatomically intrigu- ing dolls in a suggestive way that could falsely imply an inordinate interest in sexuality based on personal experiences (see Whitcomb, 1992).
Other reforms that are less controversial and more often implemented include allowing children to use drawings to describe what happened to them, interviewing them in decorated playrooms at police stations rather than in dingy, bare-walled interrogation rooms, and modifying the court- room’s protocol and seating arrangements to make the setting less imposing. Additional child-friendly practices include giving young witnesses an orien- tation tour of the courthouse, enrolling them in brief “court schools” that explain the role of key figures and the procedures that will be followed,
permitting them to have a supportive person at their side, and using just one trained interviewer to elicit all their testimony. To limit the length of the ordeal of going to trial, some jurisdictions give child abuse cases a high priority in scheduling and try to avoid continuances that cause upsetting delays. To minimize stress, the medical, mental health, treatment, and legal aspects of abuse cases are now coordinated by child protection teams of professionals from different disciplines. Information-sharing procedures eliminate unneces- sary interviews. Public funds cover the costs of physical and mental health examinations. Casewor- kers from protective services agencies and law enforcement officers are empowered to take chil- dren endangered by their situations into emergency custody. Because confused and intimidated young- sters often do not inform anyone of their plight for years, many states have extended their statutes of limitations so they do not begin to run until the complainant reaches a more mature age (see Whitcomb, 1986; “Child Abuse Victims,” 1989; Howell, 1989; Myers, 1998; and Kelley, 2009).
A survey revealed that the following percen- tages of judges have used these approaches to mini- mize the stress on youngsters who testified in their courtrooms: adjust questions to the child’s compre- hension level (88 percent); exclude the public dur- ing the child’s testimony (55 percent); allow the child to testify in the judge’s chambers (46 percent); have only the judge ask the questions (45 percent); permit the child to testify while sitting on an adult’s lap (41 percent); rearrange courtroom furniture (31 percent); videotape the child’s testimony (27 per- cent); remove the defendant from the child’s view (16 percent); have a therapist ask the questions (13 percent); allow the child to testify over closed- circuit television (11 percent); and install a one- way mirror (3 percent) (Hafemeister, 1996).
The funnel model of the criminal justice sys- tem best describes what typically happens to child abuse cases. Although the legal system starts with a huge workload, cases are removed or lost at each stage in the proceedings (arrest, prosecution, indict- ment, plea negotiation, trial) until there are very few left at the end of the process—leading to
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incarceration in jail or prison. Children testifying and being cross-examined, and adults getting convicted and locked up turns out to be a relatively rare event (see Chapman and Smith, 1987; and Whitcomb, 1988, 1992).