What Would Happen if Videotaped Depositions of Sexually Abused Children Were Routinely Admitted in Civil Trials? a Journey Through the Legal Process and Beyond

JurisdictionUnited States,Federal
CitationVol. 15 No. 02
Publication year1991

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 15, No. 2WINTER 1992

ARTICLES

What Would Happen If Videotaped Depositions of Sexually Abused Children Were Routinely Admitted in Civil Trials? A Journey Through the Legal Process and Beyond

John B. Mitchell(fn*)

Table of Contents

I. Introduction........................................... 262

II. Admitting Videotaped Testimony Into Evidence..... 265

A. The Reasons That Video Depositions Will Be Admitted.......................................... 265

1. Judicial Concern for Child Welfare.......... 265

2. The Civil Context............................. 267

3. Videotape Reliability.......................... 271

4. Accessible "Unavailability"................... 272

B. The Relevance of a Prior Criminal Prosecution . 282

III. The Consequences of Admitting Videotaped

Depositions............................................ 287

A. A Brief Exploration of the Broader, Systemic Implications....................................... 287

B. How Releasing a Child from Testifying at Trial Will Affect the Behavior of the Various Interested Players................................ 289

1. The Child and the Child's Parents or Guardians...................................... 290

2. The Defense Attorney........................ 294

3. The Plaintiff's Attorney...................... 295

C. Consequences of Admitting Child Videotape Depositions: More Settlements and Judgments for Plaintiffs...................................... 298

1. Compensating the Victim..................... 299

a. Compensation From Individual Abusers.. 301

b. Compensation From Vicariously Liable Nonlnstitutional Defendants.............. 307

c. Compensation From Vicariously Liable Institutional Defendants................... 309

d. Summary.................................. 311

2. Deterrence: Discouraging Child Sexual Abuse.......................................... 312

a. Deterring the Individual Abuser.......... 312

b. Deterring the Non-Participating Spouse and the Family Home Daycare Operators.................................. 312

c. Deterring Institutional Daycares and

State Licensing Facilities.................. 314

3. Consequences of Accepting Videotaped Testimony on the Behavior of Insurance Companies..................................... 320

a. The "Insurance Crisis" of 1984-1985...... 321

b. Past the "Crises," to Today and Beyond.. 324

c. The Interplay Between Insurance and Deterrence................................. 330

IV. Conclusion: Some Final Consequences and a Fable . 331

I. Introduction

As all of us are aware, there has been concern throughout our legal system about the trauma that child victims of sexual abuse suffer when testifying at criminal trials. It is likely that these same concerns will follow into the civil arena as civil cases for sexual abuse of child victims become more common.(fn1) In response, advocates of child victims will propose that videotapes of child depositions be admitted in trial in place of live testimony. Such evidence may have profound effects on juries and may also alter the role of advocates in our civil system.

This Article, however, is not about the effect of videotaped testimony on a jury,(fn2) or about whether the advocate of the future will be more of a film editor than an orator, or more of a visual than an oral storyteller. Rather, this Article is about how the possibility of videotaped child depositions offers a promise that the law cannot keep. Video depositions in civil cases promise sexual child abuse victims a kinder, gentler path to compensation. This promise cannot be kept because, pretend as we might, what we create within the categorical world of the law cannot be hermetically sealed off from the outer world. Legal realists are concerned with the seepage of influences from the outer world into the legal domain.(fn3) Conversely, this Article focuses upon seepage from the legal domain into the outer world.

We will follow the journey of one well-intentioned legally created solution, clothed as a gloss upon the evidentiary rules governing depositions, as it drifts into the world outside.(fn4) As we follow the video deposition solution, it will interact with the psychology of child molesters and advocates, the economics of daycares, the emergence of working mothers in the American workforce, and the reactions of institutions providing insurance. Yet, at the journey's end, the solution will be but an empty promise.

This journey begins in the comfortable, self-contained world of the law and legal arguments about the admissibility of a child's deposition in civil sex abuse cases. I will show, in Section II-A, that it is plausible to believe that trial courts will routinely accept such arguments. I will then consider, in Section II-B, why principles of collateral estoppel will not shield the child victim from testifying at trial.

In considering the resulting consequences, I will examine, in Section III-A, the broader implications of accepting the evidentiary arguments. I will then explore, in Section III-B, the impact of routine acceptance of these evidentiary arguments on the behavior of the child and his or her parents or guardians, the defense bar, and the plaintiff bar. We will see that more sexual molestation suits will likely be brought and favorably settled for the plaintiff as a result of the alteration in behavior of all three categories of the above players. From here, in Section III-C, I will assess the impact of the projected increase in civil molestation cases and favorable settlements on compensation for victims and deterrence of future child sexual abuse.

The consequences of an increase in civil molestation cases and in favorable plaintiff settlements will affect different categories of defendants in different ways. The first category of defendants consist of individual abusers who are the direct perpetrators of the sexual molestation. These defendants will neither offer sources of compensation nor be deterred from committing further sexual abuse by the prospect of civil suit for reasons we will encounter involving human psychology, economics, and the behavior of the insurance industry.

The second category of defendants consists of noninstitu-tional vicariously liable defendants. This category includes nonparticipating spouses or significant others who knew or should have known about their mate's behavior yet failed to act. Also included in this category are operators of family home daycares (i.e., daycares conducted in the owner's home, generally involving a few children in addition to the owner's) who negligently hired or supervised employees. We will see that these would-be defendants may change their behavior somewhat to decrease the possibility of molestation in the face of an increased chance of civil suit. However, this group fares little better than the first group of defendants as a source of compensation for many of the same reasons.

The final category of defendants consists of vicariously liable institutional entities. These are for-profit, nonprofit, and employer-sponsored daycare facilities, and state daycare licensing agencies. They face liability for negligent hiring, supervision, licensing, and inspection. Unlike the first two categories of defendants, these institutional defendants both offer sources for compensation and respond to the risk of suit by taking steps to reduce the risk of sexual child abuse. Nevertheless, there are potential downsides to these institutions' risk averse behavior and their responses are largely intertwined with the behavior of insurance institutions. Thus, the journey leads us to explore the past, present, and future relationship of insurance companies to daycares.

The journey ends with a stark reality. Although more cases may be brought and although daycares and government agencies may respond in ways that will diminish instances of molestation as a result, sources of money will simply not be available to compensate most child victims of sexual abuse.

II. Admitting Videotaped Testimony into Evidence

A. The Reasons That Video Depositions Will Be Admitted

There are several reasons why trial courts will readily admit video depositions in civil child molestation suits into evidence.

1. Judicial Concern for Child Welfare

The child's counsel's evidentiary arguments will take place against the backdrop of a legal system with a traditional concern for the welfare of children.(fn5) Recently this system has become all but obsessed with the well-being of child sexual abuse victims in the litigation process.(fn6) Of particular concern is the potentially traumatic and psychologically harmful consequences to the child victim of requiring his or her testimony at a criminal trial.(fn7) As one commentator has observed:Several researchers have determined that traditional court procedures add to a child's psychological scars, producing "system-induced trauma." One study compared a sample of children who had testified in court with a random sample of sex abuse victims and found that 73 percent of the court victims had behavioral problems compared with only 57 percent of the random sample. The researchers attributed the differences to the trauma of testifying in court. Others have also reported that child sex abuse victims who must participate in...

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