Copyright ã L. Park 2002.  Presented at a symposium entitled “Redefining the Legal Issues of Sexual Assault and Abuse” sponsored by the Society for the Psychological Study of Social Issues (SPSSI), 2002 SPSSI Convention, Toronto, ON, CANADA, June 28-30, 2002. This paper may be freely reproduced and reprinted with full acknowledgment of the source. For more information see www.napasa.org.

Legal Disparities and the Child Witness

  Laura Park, Ph.D.

  The ideal goals of our legal system are equality and fairness - “equal justice for all within an open, ordered, and impartial system” (Law Society of Upper Canada, 1996).  A legal process designed for adults, however, cannot be applied to children’s cases under the assumption that adult and children’s testimonial capabilities are identical.  Children, by virtue of their immaturity, bring both capabilities and limitations to the task of providing testimony.  Further, children’s developmental constraints often translate into an inability to understand court proceedings, legal terminology, and complex questions during examinations (Sas, Hurley, Hatch, Malla, & Dick, 1993).  The law must reflect the reality that children are not miniature adults on the witness stand (Bala, 1991).

In many ways the law recognizes that children are less developed than adults to understand situations and to make decisions and judgments as children are afforded a variety of special considerations designed to protect them by virtue of being a child.  For example, they may not be sold cigarettes or alcohol, and it is the obligation of the adult responsible not to do so, even when requested by the child.  Further, the law would never uphold an exploitative contract between an adult and a child such as a child exchanging 50% of his or her future lifetime income with an adult for a dish of ice cream whenever the child demanded one.  The court has a legal responsibility to protect the child from the more mature mind of an adult – an adult that maintains a “superior bargaining power" over the child.  Therefore, such a contract, unlike other contracts made with individuals over 18 years of age, is not binding on the child, and cannot be enforced through the Canadian courts (see Toronto Marlboro Major Junior “A" Hockey Club et al. v. Tonelli et al., 1979, for case law).  These protections, however, are not extended to children when they are called to the witness stand to testify concerning their sexual abuse, and this presents a critical problem.

Critical law theory indicates that if there is a problem with the manner in which the law operates, in order to define the legal issues, one should examine the law and its processes (Clark, 1992; Kairys, 1982b; Smart, 1990).  As a result, court records of 58 examples of child sexual abuse testimony (ages 4 –13) were investigated for sensitivity of the court in acknowledging the differing developmental capabilities between child and adult witnesses.  Children were found to be asked developmentally inappropriate questions during direct- and cross- examinations that either failed to respect the fact that children are not responsible for their sexuality by definition of being a minor, i.e., a child, or exceeded the children’s cognitive threshold of comprehension.

Holding Children Responsible for Their Sexuality

The children in this research sample were asked questions that were consistent with “myths” about the nature of sexual assault which are used in adult cases to try to show that adult women were responsible for and/or consented to the sexual act (Renner & Yurchsyn, 1994).  The assumption is made that if an adult woman did not consent, there would be physical evidence of resistance, lack of initiation with the accused, and a recent report to authorities of the sexual assault.  In a parallel fashion in the child cases, the examination process highlighted whether the child had or had not resisted the advances of the accused, reported the abuse quickly to an adult or initiated contact with the accused.   The following examples, asked of two eight-year-old children, directly or indirectly suggested that the children solicited the sexual interaction with the adult or failed to avoid it. 

Example 1:

Defence:  When you were in the laundry room, what were you asking the accused about?
Child:  Sex.  
Defence:  Why were you asking questions like that?  
Child:  Because I wanted to know what it was.  
Defence:  Did you ever ask your mom questions like that?  
Child:  Yes.  
Defence:  Did she answer you?  
Child:  Yes, but she didn’t answer all of it.  
Defence:  Where else did you ask the accused about sex?  

Example 2:

Defence:  Did the accused ever grab you?
Child:  No.
Defence:  Never forced you to do anything?
Child:  No.
Defence:  Never yelled at you?  
Child:  No.
Defence:  And according to your story, you kept going to the house of the accused for 2 ½ years [to play with your friend] and you knew every time when you went in that was going to happen and you just kept coming back.   Is that what you are telling us?

Asking age inappropriate questions of a minor when the child is a witness in the courtroom may first appear to be reasonable because the court has implicitly used the context of adult sexuality for trying cases of sexual abuse (Brennan, 1995).  However, the result of doing so has shifted responsibility for the sexual act from the accused adult to the child witness.  Yet, the law is very clear on the issue of responsibility in child sexual abuse cases.  When the child is under the age of 14, the child is legally incapable of consenting to sexual activity (Bill C-15, 1988).  Therefore, full and complete responsibility rests with the adult to refrain from all sexual relations with a child. 

Unfortunately, the preoccupation of the legal process with the capacity of the child to objectively answer questions about recency of complaint or contact initiation has distracted attention away from the fact that these issues are legally irrelevant in cases of child sexual abuse.

Developmentally Inappropriate Questions

It was also found that the child witnesses in this sample were asked questions beyond their cognitive abilities with respect to cognitive concepts such as size, distance, and time estimations.  As part of testifying, children are often asked to estimate the time of an occurrence or to provide the number or sequence of events.  Developmental psychology literature has demonstrated that as children age, they develop more complex concepts, skills, and capabilities.  Many cognitive concepts, including height, weight, size, and time mature in stages (Piaget, 1928;1970) (See Table 1).  Children initially come to understand a concept such as distance first in its qualitative form (near, far) between the ages of 8-10, then in its representational form (farther than, nearer than) between the ages of 11 –13 and finally in its quantitative form (inches, kilometres) around the age of 14 and onward (Goetze, 1980; Piaget, 1970; Rosser, 1994; Rudy, 1986). 

Table 1

Children’s Approximate Developmental Acquisition of
Distance, Size, and Time Estimation 

Note: Based on the work of Goetze, 1980, Piaget, 1970, Rosser, 1994, and Rudy, 1986.

As a result, when a child is asked to answer a question in the courtroom involving estimating the length of time of an occurrence in minutes before he or she has attained that stage of comprehension, the child is simply incapable of responding accurately.  No matter how simply the question is structured linguistically, the accurate answer cannot be produced.  Comprehension of cognitive concepts changes only gradually with development, and as this occurs, so does children’s optimal performance.

Using the principles of Piaget’s developmental stage theory, it was ascertained that many of the children were asked age inappropriate questions.  Examples included asking a ten-year-old, “How wide are the windows at Pizza Dan’s?” and when no answer was forthcoming, “Compare it to the screen in front of you.  How wide would the windows be in comparison to the screen?” Additional questions included:

How far is the lake from your home?

How many minutes, outside of these ten, do you estimate you were alone in the living room with Mr. P?

How often would you stay over at the Randall's (not real name) when you were nine? 

How big is the living room at Mr. H’s house?

When faced with these incomprehensible questions, many of the children refused to answer out of confusion, said, “I don’t know” or when pressured to respond by counsel, provided an inaccurate response.  In a courtroom, the lack of a response, saying “I don’t know” or inaccurate answers are perceived as evidence of the child’s incompetence as a witness.

However, Karen Saywitz and her colleagues in the Unites States have argued for years that children’s apparent lack of credibility “has as much to do with the competence of adults to communicate effectively with children in the courtroom as it does with children’s abilities to remember and relate their experiences accurately (Saywitz, 1995, p.115).  “When the discrepancy between the cognition of the courtroom and the cognition of the child is great, children’s responses can appear unreliable” (Saywitz, 1995, p.125).  The use of developmentally inappropriate questions in the courtroom does not prove that the children are incompetent or unreliable witnesses concerning the details of their sexual abuse, but highlights the inappropriateness and insensitivity of such legal practices.

Identifying the Real Proble

Once a child is called before the court as a witness, however, the child appears to forfeit his/her legal standing as a minor in need of protection from the more mature mind of an adult.  By applying developmental psychology to the legal process, this research has demonstrated that the capabilities of children, protected outside the courtroom by law and statute, can be disrespected within the courtroom.  In essence, the developmental truth that most children under the age of 14 are capable of providing responsible testimony, but are not responsible for their sexuality has been inverted.  The legal system has inadvertently placed the responsibility for the provision of reliable testimony on the child alone, and has overlooked the fact that “accurate reports are as much a function of the children’s communication and cognitive skills as the communication demands of the legal system environment” (Saywitz, 1995, p. 115).

The court system can no longer support the use of courtroom strategies that can subject children to a secondary form of abuse through the very legislative process designed to protect them. The goals of fairness and equality (Rawls, 1998) can never be attained through a legal process that can, at times, disrespect the developmental capabilities of the child witness by pitting the mind of a child against the mind of an educated adult.  Children’s mental development is fixed and relatively absolute at any given chronological age, and it is the court’s rules and legal practices which are arbitrary and reformable.  Therefore, it is the courtroom practices and legal doctrines which must be revised and changed to fit the developmental needs of the child, as opposed to the child being required to fit the rules and sophisticated environment of the courtroom.  “Such accommodations could enhance the ability of the courts to ascertain the truth from child witnesses and need not violate the fundamental rights of the accused” (Bala, 1991, p. 8).

Finding a Solution

Developmental levels have been thoroughly investigated and modern research suggests that as children age, they develop more complex concepts, skills, and capabilities (Piaget, 1926; 1928; 1970; Case, Okamoto, Henderson & McKeough, 1993).  In other words, a linear evolution exists in children’s abilities, although each child is unique.  The advantage of linear cognitive development is that a child’s grasp of a particular cognitive concept may be measured and with this knowledge, the child’s cognitive threshold of comprehension can be respected in the courtroom.

The legal process can be changed to respect the developmental abilities of the child witness through the creation and administration of an assessment tool designed to determine the cognitive level of the child prior to testifying, and through the application of a standard that outlines acceptable formats for questions.  With such a pre‑test, there could not be any confounding of the child’s testimony as the assessment of the child’s cognitive ability would establish the restrictions to be placed on the complexity and wording of the questions which may be asked.  Logic dictates that if children are to be treated fairly, then the court must accommodate itself to their level of cognition and communication (Saywitz, Jaenicke, & Camparo, 1990; Schuman, Bala, & Lee, 1999).

The application of developmental psychology in the legal process via the pre‑court assessment would result in courtroom standards that acknowledge the differing cognitive capabilities between children and adults.  Such a procedure would allow the legal process to separate two sources of potential error that are now confounded.  The lack of capacity of the child witness to provide evidence must be separated from the failure to provide evidence due to the use of questions known to be cognitively impossible for the child to answer.  In short, errors forced by the court process should not be attributed to the lack of capacity of the child to provide reliable testimony.

Three exhibits exemplify how the legal process might enable children to furnish accurate testimony by respecting the child’s intellectual capabilities with cognitively appropriate questions (see Table 2). 

Table 2

Developmentally Appropriate Methods of Eliciting Testimony 

  In Exhibit A, the 10-year-old child’s response of “I don’t know” to a question suitable for a fourteen-year-old could imply that the child is not a reliable witness.  It is highly likely, however, that this child does not have the cognitive means to provide an estimation of distance in its quantitative form.  All that is central to the sexual assault case is that there is a lake to which the child frequently walks to go swimming, either alone or with other children.  If the appropriate questions had been asked, a clear picture would have been received by the court of a lake frequently used for swimming within easy walking distance, a fact that could be easily confirmed.

Due to the very young age of the witness in Exhibit B, and the fact that time estimation skills are very fragile prior to age eight, this witness should have been asked a series of simple questions which used only images or identification, such as “Did you sleep at Daddy’s?”,”Did you have supper at Daddy’s?,” to gauge the approximate time that the child spent at her father’s apartment without asking for time estimations.

The final example, Exhibit C, provides an illustration of what seems like a reasonable line of questions.  However, the child is caught in a no win situation.  Failure to answer the question implies that the child is incompetent, and perhaps was never in the living room. Yet, being forced to provide an answer before the required quantitative level, spatial skills have developed will likely result in an answer that can be demonstrated to be incorrect.  Had a pre‑court assessment of the child in Exhibit C established that he or she had achieved a representational comprehension of spatial ability, the above question would not have been permitted in the courtroom as the child’s threshold of comprehension had been exceeded.

Law Reform: A Re-Definition

The current legal system, at times, fails to protect children and when it does, it subjects child witnesses to a secondary form of abuse through the very process designed to protect them. A new round of law reform is needed.  It seems logical that the protection children should be afforded is the assurance that the questions they are asked in the courtroom do not exceed their level of mental development.  Failure to do so would be similar to asking an adult a question in a language they did not understand.^[1]  In both cases, the failure to understand the question does not reflect upon the capacity of the person, only the inappropriateness of the question.  In either case it would be incorrect to conclude that the witness was not able to provide reliable information.

The rules of evidence are simply that; they are rules.  They are procedures put in place to try to ensure that the courts render decisions based on objective, factual information.  If these rules can fail to protect the ability of the child witness to provide reliable testimony in child sexual abuse cases, then to serve the end of “equal justice for all,” it is necessary to change the rules to fit the children, because the children cannot be changed to fit the rules.

Court officials’ recognition of the developmentally insensitive legal process and their desire to address the child witness’s needs may be mitigated, however, by concerns of impinging on the rights of the accused.  Respecting the developmental capabilities of a child witness in the courtroom is not about balancing the rights of the victim with the right of the accused.  Rather, it is the obligation of the court to provide justice – fairness in its most fundamental sense – that is at issue.  This requires a mindful legal process through which children do not have to be abused cognitively in order to seek justice for sexual abuse. The issue is one of equality before the law.  Fundamental legal protection cannot be withheld from children by the actions of the court. The court cannot be an agent of harm in the service of justice.

References

An Act to Amend the Criminal Code of Canada and the Canada Evidence Act, S.     1986-87, c. C-15, R.S.C. 1985 (3rd Supp.) (Bill C-15).

Bala, N. (1991).  Double victims: Child sexual abuse and the Canadian criminal justice system.  Queen’s Law Journal, 16, 3-32.

Brennan, M. (1995).  The discourse of denial: Cross-examining child victim witnesses.  Journal of Pragmatics, 23(1), 71-91.

Canadian Charter of Rights and Freedoms (1982), S.C. 1982 c.11.

Case, R. Okamoto, Y., Henderson, B., & McKeough, A. (1993).  Individual variability and consistency in cognitive development: New evidence for the existence of central conceptual structures.  In R. Case & W. Edelstein (Eds.), The new structuralism in cognitive development: Theory and research on individual pathways (pp. 71-100).  New York: Karger.

Clark, L.M.G. (1992).  Women and the state: Critical theory-oasis or desert island?  Canadian Journal of Women and the Law, 5(1), 166-178.

Goetze, H. (1980). The effect of age and method of interview on the accuracy and completeness of eyewitness accounts.  Unpublished doctoral dissertation, Hofstra University, New York.

Kairys, D. (Ed.)(1982b).  The Politics of Law: A Progressive Critique.  New York: Pantheon Books.

Law Society of Upper Canada (1996).  Professional conduct handbook. [wwwdocument]. URL http://www.lsuc.on.ca/services/services_rules_en.shtml.

Piaget, J. (1926).  The language and thought of the child.  London: Routledge & Kegan Paul.

Piaget, J. (1928).  Judgement and reasoning in the child.  London, England: Kegan Paul.

Piaget, J. (1970).  The child’s conception of movement and speed.  New York: G.E.T. Holloway & M.J. Mackenzie Trans.

Rawls, J.  (1998).  Justice as fairness.  In Dawson, T.B. (Ed.), Women, law and social change: Core readings and current issues (3rd edition) (pp. 422-425). North York: First Captus Press.

Renner, K.E., & Yurchesyn, K. (1994).  Sexual robbery: The missing concept in the search for an appropriate legal metaphor for sexual aggression.  Canadian Journal of Behavioural Science, 26, 41-51.

Rosser, R. (1994).  The developmental course of spatial cognition: Evidence for domain multidimensionality.  Child Study Journal, 24(4), 255-280.

Rudy, L. (1986). The effects of participation in children’s eyewitness testimony. Unpublished paper, Department of Psychology, University of Denver.

Sas, L.D., Hurley, P., Hatch, A., Malla, S., & Dick, T. (1993).  Three years after the verdict:  A longitudinal study of the social and psychological adjustment of child witnesses referred to the Child Witness Project.  London, Canada: London Family Court Clinic.

Saywitz, K. (1995). Memory and testimony in the child witness.  In M. Zaragoza, J. Graham, G. Hall, R. Hirschman, Y. Ben-Porath (Eds.), Memory and Testimony in the Child Witness (pp. 113-140).  London: Sage Publications.

Saywitz, K., Jaenicke, C., & Camparo, L. (1990).  Children’s knowledge of legal terminology.  Law and Human Behaviour, 14(6), 523-535.

Schuman, J.P., Bala, N., & Lee, K. (1999).  Developmentally appropriate questions for child witnesses.  Queen’s Law Journal, 25, 251-304.

Smart, C. (1990).  Feminism and the power of law.  London: Routledge Press.

Toronto Marlboro Major Junior “A” Hockey Club et al. v. Tonelli et al. (1979), 23 O.R. (2^nd) 193.

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