Prosecution of Child Abuse and Neglect

For the public, prosecution of child abuse is marked more by notoriety than knowledge. Ever since child abuse began to be prosecuted with some frequency in the 1980s, the news media have lavished enormous attention on several high profile cases like the McMartin Preschool trial (the longest trial in U.S. history), the Louise Woodward trial, and the Michael Jackson trial. But the average case receives little media coverage (Cheit 2003), despite the fact that tens of thousands of child sexual abuse cases alone come to the attention of law enforcement (Snyder 2000), and child physical abuse has begun to be prosecuted more frequently as well. The public and many professionals understand little in an area that can have enormous consequences for perpetrators, child victims, families, and communities. Despite professional disagreement over which cases should be prosecuted, there is broad consensus that prosecution of child abuse can be an essential societal response, and professionals involved with family violence need to have a working knowledge of it.

Prosecution of child abuse presents special challenges for everyone involved (National Center for Prosecution of Child Abuse 2004; Whitcomb 1992). Typically the key witnesses are the child victims themselves, and the emotional and cognitive demands of testifying can be enormous. Prosecution can hinge on already vulnerable child victims ‘‘retelling their stories’’ in adversarial proceedings. Usually the offender is someone the child knows and trusted: the father or mother, a sibling, relative, neighbor, caretaker, teacher, member of clergy, or other respected adult or adolescent. Prosecution of Child Abuse and Neglect  For sexual abuse—the most commonly prosecuted type of abuse—there is often limited evidence besides the child’s testimony. Children’s credibility in and out of court can be questioned; true allegations of child abuse can be met by disbelief if they are leveled against an apparently upstanding member of the community. Children testifying to abuse can be vilified by family members or others who side with the offender, and pressured to recant their allegations. Because of the Sixth Amendment right of defendants to confront their accusers, child victims who testify in court must often do so with their abusers facing them from the defense table. Child victims are sometimes ambivalent or even opposed to prosecuting their abuse, because of the difficulties involved, their relationship with the perpetrators, or both.

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One major concern has been the stress that prosecution places on child victims and the potential for emotional harm (Quas et al. 2005; Whitcomb 2003). Testifying, it was thought, could negatively affect children’s mental health, at worst leading to ‘‘secondary victimization’’ of child victims. Studies have found, not surprisingly, that children show stress and anxiety both before and during testimony. Testifying in court predicts poorer child mental health outcomes, particularly when children have to testify repeatedly, spend a long time on the witness stand, or undergo harsh cross-examination. However, most children recover within months after testifying, though some continue to have substantial behavioral problems. Despite the difficulties of testifying, not testifying can pose risks, too: Sas and colleagues’ (1993) three-year followup study found that children were better adjusted and had a more positive appraisal of their court involvement when there was a guilty verdict— thus, testifying poses a risk but may lead to an outcome that helps improve children’s later wellbeing. Quas and colleagues (2005) found a complex picture when they assessed alleged victims of child sexual abuse twelve years after their involvement in criminal court cases. They concluded that under certain conditions, testifying repeatedly in open court can contribute to a long-term trajectory of poor mental health functioning. On the other hand, they also found that children involved in trials who did not testify were more negative about their court experience. For the subgroup of less severe cases, nontestifiers reported higher levels of defensive avoidance. In total, the research suggests a need to balance the risks and benefits for children and society of both prosecuting and not prosecuting.Prosecution of Child Abuse and Neglect

Another major challenge for prosecution, and an area of controversy, has been concern about the accuracy and credibility of children’s testimony, both in forensic investigations and in court (see Ceci and Bruck 1999; Lyon 1999; National Center for the Prosecution of Child Abuse 2004; Saywitz, Goodman, and Lyon 2002). Children, especially very young ones, have developmental limitations to their memory, understanding, and ability to communicate that can be exacerbated by the stress of abuse and investigation. Getting accounts that are as accurate and believable as possible requires skilled interviewing. The skills apply mainly to forensic interviewing during investigation, but to some degree to questioning children at court hearings as well. Qualities of effective interviewing include:

• establishing rapport with children,
• obtaining as much information as possible through open-ended questions that allow children to ‘‘tell their story’’ in their own words,Prosecution of Child Abuse and Neglect
• instructing children that it is all right to say ‘‘I don’t know’’ if they lack the answer,
• phrasing questions in simple non-‘‘legalese’’ that children can understand, and
• avoiding suggestive or leading questions.

Good interviewing should ease the stress on children, yield accurate information, and help forestall challenges by the defense. The stakes are high, since a mistake could lead to a failure to stop and punish actual abuse, or to sending an innocent person to jail. Despite the controversy, there is considerable evidence and agreement that most children of even surprisingly young ages can provide accurate accounts of their abuse or lack of abuse when questioned well. It is also widely recognized that children, especially the very young, can provide inaccurate accounts in some situations, particularly with poor interviews, and that false allegations are possible if interviewing is leading, suggestive, or overly repetitious.

A number of reforms have been developed since the 1980s in response to the obstacles and stresses of prosecuting child abuse (Whitcomb 2003). Many communities have developed multidisciplinary professional teams or joint investigation protocols to improve coordination and reduce the number of times children have to talk about their abuse. Recent research suggests that redundant interviewing has generally decreased as compared with the 1980s (Cross et al. 2005). Special child-friendly settings called Children’s Advocacy Centers (CACs) have been developed to respond holistically to the needs of children in the criminal justice process. CACs aim to reduce stress on and increase support for children in investigations; facilitate delivery of needed mental health, medical, advocacy, and support services; enhance professional coordination; and improve investigations.Prosecution of Child Abuse and Neglect Over 500 CACs have been developed nationwide since the first was founded in 1985 (Cross et al. 2005). The use of victim-witness advocates and family support programs in child abuse cases has expanded as well, whether connected to district attorneys offices, CACs, or other programs. In addition to their direct benefits for children and families, these aim to help foster nonoffending parents’ support for children, a critical variable shown in numerous studies to buffer child victims against the stresses of the criminal justice system as well as the effects of abuse. A number of jurisdictions also have court preparation or ‘‘court school’’ programs for children. These programs educate children about court staff and functions and sometimes include an anxiety-reduction component as well. An evaluation of one such program found that it helped children gain knowledge of the legal system and reduce their fears of revictimization (Sas et al. 1993).

Motions for special courtroom procedures to help children have been used in many cases (National Center for the Prosecution of Child Abuse 2004; Whitcomb 2003). Courtroom seating can be rearranged to take the defendant out of direct view of the child or to place children in child-size chairs. A support person will sometimes be allowed to sit with a child witness. Children may be allowed to hold a teddy bear or blanket. Spectators can be removed from the courtroom. Children can swear to oaths adapted for their understanding, and attorneys can be directed to object by raising their hand rather than their voices. In Maryland v. Craig, 1990, the United States Supreme Court established that children may testify by prior videotape or closed circuit TV without having to confront the defendant, provided prosecutors can demonstrate that the child in question cannot reasonably testify otherwise.Prosecution of Child Abuse and Neglect

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Despite the challenges, the statistics on prosecution of child abuse are not dissimilar from those for other violent offenses (Cross et al. 2003). Child abuse cases are referred to prosecutors from both police and child protective services (CPS) investigations, though in many cases police and CPS work jointly or as part of a multidisciplinary team (see Finkelhor, Cross, and Cantor 2005). All child sexual abuse, defined as sexual activity between an adult and a youth under the age of consent, is a crime, while only serious child physical abuse and neglect are defined as crimes. Not surprisingly, a higher proportion of police cases than CPS cases are referred to prosecutors, though there are not enough data to estimate percentages.Prosecution of Child Abuse and Neglect To decide whether to file criminal charges, prosecutors consider whether there is sufficient evidence that a crime has been committed and whether the probability of obtaining a just result justifies filing charges. The stress to the victim and family of prosecution and a possible trial is taken into account. Across thirteen studies reviewed by Cross and colleagues (2003), charges were filed in the majority of cases referred to prosecutors, but the rates varied from 28 to 94 percent. Much of this variation probably reflects differences in policy and practice across jurisdictions. The overall mean charging rate of 66 percent was somewhat lower than the mean rate for all violent offenses (79 percent), but not significantly different from the mean rate for all rape and other sexual assault cases (69 percent; this latter group does, however, include child sexual abuse cases). It is not clear to what degree charging rates reflect the base rate of true allegations; the characteristics of cases referred to prosecutors; the policy and skills of prosecutors; the influence of victim, family, and community wishes; or the inherent challenges of prosecuting child abuse cases, which the National Center for the Prosecution of Child Abuse (2004, p. 171) described as ‘‘some of the most difficult of all criminal cases to prove.’’

Once charges were filed, prosecution of child abuse did not appear to differ in outcomes from prosecution of other violent offenses. Most charged cases (72 percent or greater in most studies) were carried forward without dismissal, a somewhat higher percentage of cases than for other violent crimes (65 percent). For those cases carried forward, an average of 82 percent of defendants pleaded guilty, and 18 percent went to trial. Overall, 94 percent of those cases that were carried forward without dismissal ended in convictions (guilty plea or conviction at trial).Prosecution of Child Abuse and Neglect The plea and conviction rates for charged cases were not significantly different than for other violent crimes. The number of trials in the research was not large enough to estimate separately the percentage of trials that ended in conviction. On average, 54 percent of convicted offenders were incarcerated. This was somewhat lower than for other violent crimes, perhaps because many defendants had familial or other close relationships with the victims. Thus the research suggests that, on the whole, child abuse prosecution is neither reckless, in that the rate at which charges are filed is not excessive, nor feckless, since child abuse prosecutions show outcomes that resemble those of other comparable felonies.

Prosecution will remain an important response as long as child abuse persists. Child-serving professionals and the public need to recognize its special difficulties and requirements, without being overly swayed by the horror stories told in the media. They also need to understand the criminal justice context in which it fits. Prosecution of Child Abuse and Neglect