Child Abuse and the Law - Innovations In The Court

Anatomically Detailed Dolls

Many legal professionals use dolls with sexual organs made to represent the human anatomy to help children explain what has happened to them in court. Advocates of the use of dolls report that they make it easier to get a child to talk about things that can be very difficult to discuss. Even when children know the words, they may be too embarrassed to say them out loud to strangers. The dolls allow these children to point out and show things difficult or even impossible for them to say. Some experts claim dolls work because children find them easier to use, as they are age-appropriate and familiar to them.

Lori S. Holmes, training coordinator for CornerHouse, a child abuse evaluation and training center in Minneapolis, Minnesota, noted that the use of anatomical dolls helps the child demonstrate internal consistency. A child who has made allegations of abuse can show the interviewer exactly what happened to him or her, thus confirming the oral disclosure ("Using Anatomical Dolls in Child Sexual Abuse Forensic Interviews," American Prosecutors Research Institute Update, vol. 13, no. 8, 2000).

Potential problems, however, exist in using dolls. Critics of this method believe that dolls suggest fantasy to children, and the exaggerated sexual organs on a doll (they are proportionately larger than life-size) may suggest improper sexual activity. Since most children's dolls do not have such sexual parts, the appearance of such parts on a doll might bring to a child's mind things he or she might not have thought of otherwise. According to the "affordance phenomenon," children will experiment with any opportunities provided by a new experience. Some experts believe that what might appear to be sexual behavior, like putting a finger in a hole in the doll, may have no more significance than a child putting a finger through the hole in a doughnut. Such exploratory play can have disastrous effects when it is misinterpreted as the re-creation of a sexual act.

Videotaped Testimony and Closed-Circuit Television Testimony

It is difficult for children to deal with the fear and intimidation of testifying in open court. The person who has allegedly abused and threatened them may be sitting before them, while the serious nature of the court can be intimidating to them. Videotaped testimony and closed-circuit television testimony have become common methods used to relieve the pressure on the child who must testify. The federal government and thirty-seven states allow the use of closed-circuit television testimony instead of in-court testimony for children under age eighteen ("Legislation Regarding the Use of Closed-Circuit Television Testimony in Criminal Child Abuse Proceedings," National Center for Prosecution of Child Abuse, http://www.ndaa-apri.org/pdf/closed_circuit_tv_testimony.pdf [accessed November 20, 2004]). States vary in their requirements regarding the use of closed-circuit television testimony. In some states the jury stays in the courtroom while the child, the judge, the prosecutor, the defendant, and the defense attorney are in a different room. In some states the child alone is in a room separate from the jury and other participants.

The federal government and seventeen states recognize the right to use videotaped testimony taken at a preliminary hearing or deposition (testimony given under oath to be used in court at a later date) for children under age eighteen ("Legislation Regarding the Admissibility of Videotaped Interviews/Statements in Criminal Child Abuse Proceedings," National Center for Prosecution of Child Abuse, http://www.ndaa-apri.org/pdf/statute_admi ssibility_videotaped_interviews_statements.pdf [accessed November 20, 2004]). A videotape of the pretrial interviews shows the jury how the child behaved and whether the interviewer prompted the child. Often prepared soon after the abuse, videotaped interviews preserve the child's memory and emotions when they are still fresh. Because a videotaped interview presents an out-of-court statement, which the alleged abuser cannot refute face to face, it can be admitted only as a hearsay exception.

Whereas the videotapes generally pertain to oral statements by the child victims, Missouri allows both verbal and nonverbal statements. Nonverbal assertions include the child's actions, facial expressions, or demonstrations of the abuse using anatomical dolls or other visual aids. In Rhode Island and Wisconsin, child witnesses are required to swear under oath regarding their statements. Prior to taking the oath, the significance of the oath is explained to the child—that is, false statements are punishable under the law and that it is important to tell the truth. Some state laws also say that, even with the videotaped testimony, the child may still be called to testify and be cross-examined.

Videotaping can cut down on the number of interviews the child must undergo, and prosecutors indicate that this method encourages guilty pleas. Videotapes can be powerful tools to deal with the problem of the child who recants his or her testimony when put on the witness stand. The case can still be prosecuted, with the jury witnessing the child's opposing statements. Experts believe that a videotape statement containing sufficient details from the child and elicited through nonleading questions makes for very compelling evidence.

Depositions, however, can be as demanding and difficult as a trial. They often take place in small rooms, forcing the child and defendant closer together than they might have been in a courtroom. The judge might not be there to control the behavior of the defendant or his or her attorney. Individuals who might offer the child support, such as victim advocates, may not be permitted to attend.

Furthermore, if the prosecutor claims the child is unable to handle the emotional trauma of the witness stand, the child may have to undergo medical or psychiatric tests by the state or defense attorney in order to permit videotaped testimony. This could be as traumatic as going through with a personal appearance at the trial. Some states permit the child to sit behind a one-way mirror so that the defendant can see the child and communicate with the defense attorney, but the child is shielded from direct confrontation with the defendant.

Critics of videotaping have suggested other possible problems:

• It is possible that people "perform" for the camera instead of communicating.
• Victims are placed under subjective scrutiny by juries when every gesture, change in voice or speech pattern, and eye movement are judged.
• There is no accountability for the videotapes. Multiple copies of tapes are sometimes made and given to various attorneys and witnesses. Some tapes are used at training sessions, often without concealing the victims' names.