Jury instructions, not problematic expert testimony, in child sexual assault cases.

• Author: Moriarty, Marina

1. INTRODUCTION

   Especially when dealing with the despicable and emotionally charged crime of child sexual abuse, the courts must vigilantly balance the state's interest in punishing a criminal wrongdoer against the defendant's right to a fair and impartial trial. (1) The New Jersey Supreme Court observed that, "[s]ociety must tread a measured path that avoids ignoring the reality of child sexual abuse and avoids as well the possibility of unjust conviction of this most shameful of crimes." (2) In child sexual abuse cases the only witnesses are often the alleged victim and perpetrator, prosecutors have therefore relied on behavioral science to aid the jury in evaluating the alleged victim's credibility. (3)

   Experts in the field claim that child victims of sexual assault typically exhibit certain behavioral patterns. (4) These behavior characteristics include sleeping disturbances, returning to the abuser if a family member or friend, eating disorders, exhibiting inappropriate sexual behaviors, delaying disclosure and retraction, among others. (5) Some argue that unless specially trained, the average person can not "believe that a normal, truthful child would tolerate [abuse] without immediately reporting or that an apparently normal father could be capable of repeated, unchallenged sexual molestation on his own daughter." (6) Expert opinions regarding a child's behavior after sexual assault have generated controversy since a dramatic rise in child sexual assault prosecutions in the late 1970s. (7) Such expert testimony should be used for the limited purpose of providing a context to evaluate the credibility of a witness. (8) There is the risk, however, that the jury may rely too heavily on the expert's testimony and allow the expert's conclusions to overwhelm their own evaluation of the evidence. (9)

   Prosecutors argue that expert opinion testimony from social workers, psychologists and psychiatrists about typical behavior traits of sexually abused children is necessary to educate the jury and to explain the possible underlying reason(s) for the child's confusing behavior, behavior that the layperson may conclude contradicts his/her testimony. (10) However, defense attorneys argue that this kind of testimony impermissibly bolsters the child witness' testimony, invades the jury's fact finding function and, at worst, comments directly on the guilt of the defendant. (11)

   If expert testimony regarding behavioral characteristics of child sexual assault victims is sufficiently reliable and admissible, then what is the most effective manner of conveying this information to the jury? (12) One method is through the traditional use of expert testimony, however, problems persist with this approach despite awareness and cautioning by the courts. (13) Expert opinion testimony, even by impartial non-percipient witnesses, often impermissibly treads on the jury's independent credibility assessment of the complaining witness. (14)

   This Note first explains the relevant behavior patterns experts testify about in child sexual assault cases and why this information is crucial to the jury's understanding of the surrounding facts. It will examine past uses of expert testimony and demonstrate that many states even permitted experts to comment directly on the credibility of the child. (15) Next, this Note will discuss the current state of the law, followed by an illustration of the persistent problems with allowing such testimony. Finally, this Note argues as an alterative, the use of jury instructions to impart the necessary facts about behavior characteristics typical of sexually abused children without commenting directly or indirectly on the credibility of the child complainant. Although courts have not yet used jury instructions in child sexual assault prosecutions, Massachusetts courts have similarly utilized jury instructions rather than expert testimony regarding eyewitness testimony reliability. (16)

2. TYPICAL EXPERT TESTIMONY IN CHILD SEXUAL ASSAULT CASES

   1. Child Sexual Abuse Accommodation Syndrome (CSAAS)

      Child psychologist Dr. Roland Summit first identified Child Sexual Abuse Accommodation Syndrome (CSAAS) in his 1983 journal article for Child Abuse and Neglect. (17) According to Dr. Summit, child victims of sexual abuse exhibit a similar set of behaviors and identifiable emotions that allow them to "accommodate" the abuse into their everyday life. (18) The first symptom of CSAAS, secrecy, arises from the private nature of the abuse and often the molester's admonishments not to report the abuse. (19) Helplessness, Dr. Summit's second identified behavior pattern, results from the inherent power imbalance between the abuser and the child. (20) Typically, the abuser is in a position of authority in relation to the child (parent, caretaker, religious authority) and can easily take advantage of society's norm that children should obey adults. (21) Because of the secrecy and helplessness felt by the victim entrapment is often the third identified behavior. In other words, the child feels he/she will not be believed if he/she comes forward and the child feels powerless to stop the abuse. (22) The first three behavioral characteristics displayed by an abused child contribute to Dr. Summit's fourth and fifth elements of CSAAS. (23) Children often wait months or years to disclose the abuse and then often recant their stories, claiming to have lied under pressure from family or well intentioned investigators. (24) CSAAS also identifies other, more concrete behaviors typically demonstrated by sexually abused children such as changes in weight, appetite, scholastic performance, and depression or insomnia. (25)

      Despite the term "syndrome," CSAAS is not a diagnostic tool that can be used to prove that sexual abuse did in fact occur. (26) Rather, it is intended for clinicians to use therapeutically, proceeding from the premise that abuse did take place, identifying common reactions to child sexual abuse and to help the child heal. (27) Dr. Summit himself intended that CSAAS be used only as, "a 'common language' for the professionals working to protect sexually abused children." (28)

   2. Child Sexual Assault Syndrome (CSAS)

      Although many child sexual assault experts cite Dr. Summit's CSAAS specifically when testifying in court, many expert witnesses generally refer to Child Sexual Abuse Syndrome (CSAS). (29) CSAS is not attributable to a single scientific study or journal article, but rather the accumulation of individual expert's observations, experiences and general theoretical knowledge of behavioral patterns of sexually abused children. (30)

      A court permitting CSAS testimony may allow experts to testify that in their professional experience a victim of childhood sexual abuse may exhibit certain predictable but seemingly illogical behaviors. (31) These behaviors may be similar to those noted under CSAAS (changes in mood, sleeping patterns, and depression), but may also include behaviors that are not in Summit's theory such as preoccupation with sexual behaviors, masturbation, developmental regression and misbehavior. (32)

      As with CSAAS, CSAS is not a diagnostic tool. (33) There is no scientifically accepted manner of proving that sexual abuse occurred based on an alleged victim's behavioral pattern. (34)

   3. Post Traumatic Stress Disorder (PTSD)

      In addition to CSAAS and CSAS, post traumatic stress disorder (PTSD) is another syndrome about which experts often testify in sexual abuse cases. (35) Under a PTSD theory, the child's abnormal behavior is attributable to a trigger: either a single traumatic event (a rape) or a series of equally stressful events (continued molestation). Therapists and other psychology experts may describe the child's behaviors and compare them to the standardized elements of PTSD. (36) However, unlike CAAS and CSAS, PTSD does not demonstrate any particular indicia of sexual abuse, such as recanting allegations, and does not place any emphasis on sexually abnormal behavior. (37)

      To effectively use PTSD at trial, a prosecutor must first suggest to the jury that the presence of certain behavior leads to a positive diagnosis of PTSD. The expert would then testify that past sexual abuse triggered Reliability of Expert Psychological Testimony in Child Sexual Abuse Prosecutions, 15 CARDOZO L. REV. 2027, n.223 (citing the AMA Diagnostic and Treatment Guidelines Concerning Child Abuse and Neglect). The following behaviors are indicative of child abuse: highly sexualized play, withdrawal, excessive daydreaming, low self-esteem, feelings of guilt, falling grades, pseudo-mature personality development, sexual promiscuity, poor peer relationships, suicide attempts, frightened or phobic behavior towards adults. Id. (or could have triggered) the PTSD. However, as defense counsel should respond, PTSD can be caused by any stressful event in the child's life, not necessarily by sexual abuse. (38)

   4. General Terminology

      Despite the common labels (CSAAS, CSAS and PTSD) therapists and other mental health professionals use to categorize particular and general behavioral traits of sexually abused children, courts often allow expert testimony about "syndrome" behavior without requiring any specific terminology. (39)

3. RELEVANT BEHAVIOR PATTERNS: WHY ARE THEY IMPORTANT?

   Prosecuting a child sexual assault case is extremely difficult. First, these cases usually lack concrete physical or medical evidence that is common in most trials. Second, there are generally no corroborating witnesses because of the inherently private nature of child sexual abuse. (40) Ultimately, these cases simply turn on credibility: the child's testimony versus the defendant's denials. (41) Even more difficult for prosecutors are the problems inherent in any child witness. (42) Children do not make convincing witnesses because they often give inconsistent recollections of timing and events. (43) Children also become easily nervous or embarrassed and are...