Expert Testimony on Sexually Abused Child Syndrome in a Child Protective Proceeding: More Hurtful Than Helpful

• Author: Mary Ellen Reilly
• Pages: 419-158

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B.A., cum laude, English and Psychology, Georgetown University, June 2002. J.D. candidate Benjamin N. Cardozo School of Law (June 2005). Managing Editor, Cardozo Public Law, Policy, and Ethics Journal. I want to express my gratitude to Professor Melanie Leslie for directing me to this topic and for reviewing earlier drafts of the note. I would also like to thank the entire staff of Cardozo Public Law, Policy, and Ethics Journal for all their hard work on getting this note ready for publication.

Introduction

During the 1980s, the once unmentionable subject of child sexual abuse became "something of a national obsession."¹ Numerous newspaper headings, magazine cover stories, and news programs highlighted instances of child sexual abuse.² Allegations of child sexual abuse increased exponentially during this time. A survey by the American Humane Society published in 1988 estimated a 2,000% increase in reports of sexual abuse between 1976 and 1986.³

The public's voiced dismay over the growing instances of child abuse accusations led to legislative intervention on the federal and state levels.⁴ The Child Abuse Prevention and Treatment Act of 1974 (CAPTA),⁵ "which mandated the reporting of suspected physical andPage 420 sexual abuse involving children,"⁶ marked the beginning of an attempt to address child victimization.⁷ CAPTA was followed, on the federal level, by the Adoption Assistance and Child Welfare Act of 1980,⁸ the Family Preservation and Family Support Act of 1993,⁹ and the Adoption and Safe Families Acts of 1997.¹⁰

Many states also amended their courtroom procedures to make it easier for the government to support a claim of child sexual abuse.¹¹ As part of this endeavor, states employed a variety of different evidentiary strategies, including, "the use of anatomically correct dolls, the prosecutor's use of leading questions on direct examination, [and] lenient excited utterances or diagnostic hearsay rulings. . . ."¹² Expert testimony on child sexual abuse was also routinely admitted in support of a finding of abuse.¹³

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In an attempt to address the difficulties inherent in sustaining an allegation of sexual abuse, the New York State legislature enacted Article Ten of the Family Court Act (the Act) in 1969.¹⁴ Section 1046(a) (vi) of the Act was amended in 1985 to provide:

[P]revious statements made by the child relating to any allegations of abuse or neglect shall be admissible in evidence, but if uncorroborated, such statements shall not be sufficient to make a fact-finding of abuse or neglect. Any other evidence tending to support the reliability of the previous statements, including, but not limited to the types of evidence defined in this subdivision shall be sufficient corroboration. The testimony of the child shall not be necessary to make a fact-finding of abuse or neglect.¹⁵

The Act sets forth a new exception to the hearsay rule by providing for the admissibility of a child's out-of-court statements. In order to establish a finding of abuse or neglect, however, the statute requires the State to corroborate the child's out-of-court statements. Corroboration is intended to strengthen the reliability of the hearsay statements.¹⁶

In Matter of Nicole V., the New York Court of Appeals seriously expanded the State's prosecutorial powers by admitting highly problematic evidence to corroborate a child's out-of-court allegations of abuse.¹⁷Page 422 Specifically, the Court held that expert testimony on Sexually Abused Child Syndrome (SACS) may be admitted to corroborate a child's out-of-court statements of abuse.¹⁸ In its opinion, the Court of Appeals described SACS as a "recognized diagnosis based upon comparisons between the characteristics of individuals and relationships in incestuous families, as described by mental health experts, and the characteristics of the individuals and relationships of the family in question."¹⁹ The ad-Page 423mission of SACS testimony is of meaningful legal significance considering (1) the increasing volume of petitions filed under Article Ten alleging child abuse, including child sexual abuse, and (2) the increasing use of experts on child abuse to confirm whether a child is telling the truth regarding the alleged abuse.²⁰

At the time Matter of Nicole V. was decided, SACS was a relatively new syndrome. Over sixteen years have passed since the Court of Appeals rendered its ruling in Matter of Nicole V. Research has indisputably shown that, contrary to the Court of Appeals' assertion, SACS testimony is not a "recognized diagnosis."²¹ Both the mental health and the legal communities have attributed a wide array of limitations to the syndrome.

While the State has a strong interest in protecting children from sexual abuse, the admission of SACS testimony in a child protective proceeding is not the solution. Due to its many limitations and its inherent unreliability, SACS testimony does not satisfy the admissibility requirements for corroboration under section 1046(a)(vi) of the Family Court Act and thus should not be admitted as such. The admission of SACS testimony in a child protective proceeding does nothing more than complicate and prolong the hearing. Moreover, a finding of sexual abuse based on the admission of SACS testimony as corroborating evidence of a child's hearsay statements violates a parent's fundamental right to the care, custody, and control of his or her child and the right to protect both the family's and his or her own integrity as guaranteed by the Due Process Clause of the Fourteenth Amendment. Fundamental tenets of constitutional and evidence law should not be violated simply because incidents of child sexual abuse are widespread and difficult to prove.²²

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Section I of this note begins with background information on the prevalence of sexual abuse and the difficulties that arise in substantiating allegations of child sexual abuse. This is followed by a general discussion on Article Ten proceedings and the Court of Appeals' decision in Matter of Nicole V. Section I closes with a description of SACS and the qualifications of testifying experts. Section II then discusses how SACS testimony, due to its many limitations, is inadmissible in a criminal proceeding as substantive evidence of abuse and how, for the same reasons, SACS should not be admitted in child protective proceedings. A look at how subsequent courts have impermissibly expanded the Court of Appeals' ruling by allowing SACS testimony as the only corroborating evidence of the child's hearsay statements follows. The conclusion is then drawn that Matter of Nicole V. must be overruled in order to prevent the continued misuse of such testimony. Section III describes how the admission of SACS testimony as corroborating evidence of a child's out-of-court allegations of sexual abuse in a child protective proceeding violates the accused parent's constitutionally protected rights. Due to the strength of a parent's constitutional rights, a finding of abuse or neglect should not be based on a child's hearsay statements corroborated solely by SACS testimony. Section IV sets forth the admission of closed-circuit-television testimony of the child as a means of substantiating allegations of sexual abuse while eliminating the need for SACS testimony.

I Background

A Sexual Abuse of Children and the Difficulty of Proving Allegations

Sexual abuse of children²³ is a widespread occurence.²⁴ According to Child Maltreatment 2001, the most recent report of data from thePage 425 National Center on Child Abuse and Neglect (NCCAN),²⁵ 86,668 children were found to be victims of sexual abuse in 2001.²⁶ Although incidents of sexual abuse have decreased over the past couple of years,²⁷Page 426 preventing sexual abuse and prosecuting offenders remains a major societal and judicial concern.²⁸

Allegations of child sexual abuse are, however, one of the most difficult to prove.²⁹ Part of the problem arises from the secretive nature of the offense.³⁰ Frequently the victim is the only witness to the crime.³¹ The difficulty of supporting a claim of abuse is compounded by the lack of physical evidence,³² either because the child delayed reporting,³³ or because the abuse did not involve penetration.³⁴

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Thus, the child's statements of abuse are frequently all the State, in an Article Ten proceeding, has to rest its case;³⁵ such statements, however, are oftentimes not enough to support an allegation of abuse. Whether it is even appropriate for the petitioner to call the child to testify implicates concerns over the accuracy of children as witnesses and the impact testifying has on a child's well-being.³⁶

Accuracy concerns are raised for a variety of reasons. Particularly in cases of intra-family abuse, children have a tendency to recant or alter their allegations.³⁷ Because children are highly suggestible, interviewing the child also presents its own set of difficulties.³⁸ Interviewers and examiners may coerce children, intentionally or otherwise, into reporting events that never happened.³⁹ Interview bias may also influence the accuracy of children's reports. Interview bias describes the tendency of interviewers to conduct the interview in such a way that elicits...