Child Sexual Abuse, Criminal Justice, and the Pediatrician

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PEDIATRICS Vol. 79 No. 3 March

1987

437

COMMENTARIES

Opinions expressed in these commentaries are those of the authors and not necessarily those of the

American Academy of Pediatrics or its Committees.

Child

Sexual

Abuse,

Criminal

Justice,

and the Pediatrician

More children are being recognized as victims of

sexual abuse than in the past. Because pediatricians are often the first professionals to see the victim, they are often also the first to assess and to evaluate

the child. Increased diagnoses of child sexual abuse

may be the result either of an actual increase in the

incidence of child sexual abuse or of heightened

recognition. Whichever explanation or combination

is correct, it is crucial that pediatricians be aware

not only of the issue of child sexual abuse but also

of the correct procedures in collecting data that

may be used as evidence and in preparing to be a

witness in a potential criminal prosecution of the

alleged offender.

In all 50 states, pediatricians, as well as others who come in contact with children in a professional

capacity, are required to report cases of suspected

sexual abuse to child protective services and/or the

district attorney’s office. Physicians often wonder

whether reporting to a district attorney is in the

best interests of the child. The goals of the criminal

justice system are to protect the constitutional

rights of the defendant, to provide a fair trial, and

to punish the accused if he or she is convicted. The

child victim of sexual abuse often will be called

upon to testify in criminal court against the alleged

offender. The criminal justice system does not focus

on protecting the fragilities inherent in child

wit-nesses or on advocating the best interests of the

child, as does the juvenile or family court system.

The child victim’s testimony is often the most

important evidence for the prosecution, especially

when there is limited or no physical corroborating

evidence of the abuse. Testifying in court may be

not only immensely burdensome but also

humilat-ing and traumatic to the child.

Historically, the legal system has not been

pared to treat child witnesses any differently from

adults. However, in the last 2 years, the legal system

has attempted innovations in the trial process to

minimize the trauma of testifying against the

a!-leged offender and to improve the quality and

quan-tity of testimony that a child witness may provide.

Videotaping child testimony prior to trial, using

two-way circuit television during trial, prohibiting

reporters and audiences from remaining in the

courtroom during the child’s testimony, permitting

a psychiatric screener to veto sensitive questions

addressed to the child witness, and altering

tech-nical rules of evidence are only a few of the efforts

that have materialized in the legal system’s effort

to improve the young victim’s experience as a

wit-ness and to encourage better and more extensive testimony from such a witness.

INNOVATIONS IN THE LEGAL SYSTEM

Videotaping the child witness’ testimony prior to

the trial protects the child from testifying in open

court while facing the alleged molester. However,

the defendant is entitled to certain constitutional

guarantees, some of which are arguably infringed

upon by this technique of testifying. The defendant

has a Sixth Amendment right to be confronted by

the witness against him or her so that he or she or

the attorney has an opportunity to cross-examine

the accuser. The defendant also has a Fourteenth

Amendment procedural due process right to a fair

trial, at which the jury has full access to the

de-meanor of the witnesses. Both rights may not be

fully realized when the key witness’ testimony is

videotaped prior to trial, even when the defendant

and his or her attorney cross-examined the child

witness during the videotaping of his or her

testi-mony.

Attorneys, pediatricians, child development

ex-perts, psychiatric screeners, and victim advocates

should create a protocol agreeable to all, outlining

the correct manner of questioning a child witness

whose testimony is being videotaped. The protocol

should clearly differentiate between questions that

are leading, and, therefore, unacceptable, and those

that are merely appropriate for obtaining answers

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438 PEDIATRICS Vol. 79 No. 3 March 1987

from young, often frightened child witnesses. To

avoid unnecessary or prolonged questioning, precise

substantive standards as to the information that

needs to be elicited from the child during his or her

interview should also be agreed upon by the

prose-cuting and defense attorneys and the judge prior to

the videotaping session.

Two-way closed circuit television is an

alterna-tive method of avoiding a child victim testifying

while in the same room as his or her alleged

mo-lester. The child is questioned in one room while

the defendant, defense attorney, the judge, and the

jury remain in another. Both parties are able to see

each other. The defense attorney may interrupt the

prosecutor’s questioning as if the questioning were

occurring in the same room. Cross-examination of

the witness would occur out of the physical presence ofthe defendant. This alleviates some ofthe tension

that a child witness often feels when testifying in

front of the defendant.

Parents of a child victim may perceive the

expe-rience of their child testifying in court as

emotion-ally devastating to the child, as demonstrated by

the parental reaction in the recent and highly

pub-!icized McMartin day-care center case in California.

The judge was compelled to dismiss more than two

thirds of the original 323 counts filed after ruling

that the child witnesses could not testify on

two-way closed circuit television. The parents of more

than 25 of the 41 children believed that testifying

in open court would be too disturbing for the

chi!-dren and, therefore, withdrew the children as

wit-nesses. As a direct result of this serious problem,

California, New York, and other states have

en-acted laws permitting two-way television in child

sexual abuse cases.

Prohibiting reporters and the general public from

the courtroom during a victim’s testimony has

re-ceived approval from the Supreme Court, as long

as it is done on a case-by-case basis. Similarly,

exceptions to certain rules of evidence determining

what information can be presented in and accepted

by courts hearing child sexual abuse cases have

been upheld. Now, in many states, when a child

speaks with the treating physician about the injury

within a relatively short time after the injury has

occurred, the child’s statement may be repeated in

court by the physician and is admissible as

evi-dence. Ordinarily, this type of evidence is excluded

as hearsay, which is defined as an out of court

statement being repeated in court for the truth of

the matter asserted. Statements made by the child

to the parent regarding the abuse and which are

made within a short time from the incident also are

now admissible as evidence. These exceptions are

being upheld to facilitate testifying by the child

witness because the testimony is often so crucial in

these cases.

The outcome of child sexual abuse cases can also

be improved by increased communication between

prosecutors and pediatricians. Prosecutors who are

trying a child sexual abuse case have a moral duty

not merely to advocate zealously the position of

their client (the state) but to protect the child

witness from unnecessary negative trial-related

ex-periences. The worst possible breach of this moral

duty by the prosecutor would be an inadequate

presentation of the case to the court, as may occur

when the prosecutor fails to outline a proper role

in the trial to the treating pediatrician. The

prose-cutor must instruct the pediatrician who reported

or merely evaluated the sexual abuse that the

pe-diatrician is not an expert witness. The pediatrician is a fact witness and, therefore, needs only to testify about the facts of the particular child abuse incident at issue. The pediatrician is not in court to present

general medical information. This distinction is

important for the pediatrician to understand, as

there may be a temptation to answer medical

ques-tions that are appropriately answered only by a

child sexual abuse expert. By answering such

ques-tions, the pediatrician may be doing an injustice to

the case against the defendant and thus, to the

child. There will be occasions, especially in smaller

communities, in which the pediatrician may be

expected to fulfill both roles, but we urge that this

overlap be avoided whenever possible.

For pediatricians to devote the necessary time

and effort required to be good witnesses, they must

be financially compensated. Payment will vary

de-pending on pediatricians’ roles as either expert or

factual witnesses and the state and court in which

the trial is being held. We would urge that

pedia-tricians seek appropriate compensation so that they

willingly and unresentfully allocate time for

testi-fying in child sexual abuse cases. However, it is the

pediatrician’s moral obligation to the particular

child victim, as well as children in general, to fully participate in a system ofjustice whose goal it is to

stop the abuse of children. Pediatricians and

dis-trict attorneys should work together to encourage

legislative appropriations adequate to cover

com-pensation for this vital public responsibility.

Pediatricians who are less experienced testifiers

may not be aware of the numerous delays,

resched-ulings, and cancellations that frequently occur in

the court system. Therefore, the pediatrician should

be advised to discuss with the district attorney the

possibility of scheduling a specific time for

testi-mony and/or being placed on call to testify.

Al-though the district attorney is not compelled to

assist in these arrangements, the district attorney’s

office appreciates the time and inconvenience that

testimony may impose on physicians and their

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COMMENTARIES 439

practices. Therefore, the district attorney’s office is

frequently anxious to accommodate pediatricians

in their requests.

PHYSICIANS AND THEIR ROLE IN IMPROVING THE CHILD VICTIM’S EXPERIENCE AS A

WITNESS

Just as attorneys, judges, and legislators can

a!-leviate the potential trauma of child sexual abuse

witnesses, so too can physicians. Because the child

is often the key witness for the prosecution, any

substantiation of the child’s story will bolster the

credibility of the child witness to the court and,

therefore, help build the state’s case against the

defendant. The pediatrician who testifies on behalf

of the state is especially important as a witness in

this capacity, because, as the pediatrician, he or she

may be the only adult who can report and verify

the physical injuries that resulted from the sexual

abuse. Thus, the physician has a responsibility to

the child patient to be as efficient and as effective

as possible in presentation and documentation of

the evidence.

A physician is allowed by the rules of evidence to

testify as to statements that were made for the

purpose of medical treatment and diagnosis, even

though the identity of the inflictor of the injuries is

generally excluded. Thus, a physician should

promptly record all conversations between the

pa-tient and him- and herself. With such notes,

mem-ory can be easily refreshed if the patient goes to

court and the physician is called upon as a witness.

Hospital and other medical records also are

ad-missible as evidence. Thus, the records should be

maintained correctly, with attention to the fact that

these records may be read into evidence. The best

way to keep medical records is to be thorough and

accurate in all notes made in the patient’s chart

and to avoid shorthand, abbreviations, and other

time-saving practices commonly used in recording

medical observations of patients.

Proper photographs should be taken of any

ex-ternal injuries. The photographs should be taken

preferably with an instant camera, because the

physician or photographer must retain the shots

until the trial. This is important, as a legal rule of

evidence requires that the photographs be

authen-ticated. This means that the photographer must be

able to testify that the pictures are the originals

and accurately portray the condition of the child

when brought in for treatment. The dimensions,

coloration, degree, and general state of the injury

should be precisely described on the back of each

photo, along with the name of the photographer

and the time and date. To help verify that the

photographs are actually of the child witness, one

picture also should be taken of the child’s face, and

the date, time, and place at which the photograph

was taken should be written on the back of the

print. This protocol applies to photographs in all

types of abuse cases-physical or sexual. If nothing

else, we hope that this commentary will lead all

pediatricians to purchase an instant camera for

their office or clinics, as a necessary medical instru-ment.

Pediatricians should expect to be witnesses and,

therefore, should be prepared to be good witnesses

by understanding the legal system and keeping up

with general changes in the laws governing child

abuse. This may be done by reading publications

and updates of changes in child sexual abuse law as

well as by working closely with the prosecutor’s

office. Pediatricians should also advocate for

exten-sive training on sexual abuse in medical schools.

This training should include how to recognize not

only the physical signs of abuse but also the

psy-chologic and other behavioral manifestations.

Em-phasis should be placed on recognition of possible

sexual abuse by talking with the child without the

parent, as well as by watching the interaction

be-tween the child and the parent. Finally,

pediatri-cians can lobby their state and federal

representa-tives for continued improvement in the criminal

justice system as it pertains to the victims of child

sexual abuse.

CONCLUSION

Much of what we have described here did not

exist 2 years ago and will be different as the judicial system responds to changes proposed by legislators

and case law. Pediatricians have played an

impor-tant role in helping those in the legal system to

understand child development and psychology. The

judicial system and the medical field should

con-tinue their combined efforts to make the child

victim’s experience in court as tolerable as possible. It is our opinion that, if this is done, more

prose-cutions, when appropriate, would result in

convic-tions, and more child victims would be protected

from the psychologic trauma of testifying in the

legal system.

ELIZABETH BAUM, JD

MICHAEL A. GRODIN, MD JOEL J. ALPERT, MD

LEONARD GLANTZ, JD

Departments of Pediatrics, Social and

Behavioral Sciences, and Health Law

Boston University Schools of Medicine and

Public Health, and Boston City Hospital

Boston

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1987;79;437

Pediatrics

GLANTZ

ELIZABETH BAUM, MICHAEL A. GRODIN, JOEL J. ALPERT and LEONARD