A Day-Care Witch Hunt Tests Justice in Massachusetts

A few weeks ago, Massachusetts’ Supreme Judicial Court reinstated the convictions of Gerald Amirault, 42, his sister Cheryl Amirault LaFave, 38, and their mother Violet Amirault, 73, all found guilty and sent to prison in 1986-87 for molesting children at their day-care center.

Except for the names and the outcome, the Amirault story is identical to that of the McMartins, whose trial devastated Los Angeles more than a decade ago, and the Little Rascals day-care case in North Carolina, the Kelly Michaels case in New Jersey and Dale Akiki’s in San Diego, and to the alleged molestation rings in Jordan, Minn.; Wenatchee, Wash.; Niles, Mich., and dozens of other communities across America.

These cases made headlines, made careers and destroyed lives. One by one, they crumbled in court or were overturned on appeal; but not in the state of Salem. The Massachusetts high court rejected the Amiraults’ contention that their trial was constitutionally flawed by a special courtroom seating arrangement that had denied them the ability to look the child witnesses in the eye. In a 6-1 ruling, the justices allowed that some of the charges made against the Amiraults by the children were “quite improbable” and may have resulted from “communicated hysteria,” but the public deserves a sense of “finality” in criminal cases. “The mere fact that, if the process were redone, there might be a different outcome, or that some lingering doubt about the first outcome may remain, cannot be a sufficient reason to reopen what society has a right to consider closed,” the court said. In other words, justice is less important than closure.

I have a personal interest in the fate of the Amiraults, because I am still trying to atone for an essay I wrote about the McMartin case for this page years ago. When the trial ended in a hung jury, several jurors said they had been dismayed (and, thank God, unpersuaded) by the coercive interviewing tactics of prosecution witness Kee MacFarlane, a social worker who had been called on to determine whether the children had been molested. I hadn’t read MacFarlane’s testimony, but I thought I understood her approach. At the time, research suggested that children often will not tell about an uncomfortable or shameful experience unless the interviewer asks leading questions (such as, “The doctor touched your private parts, didn’t he?”). So that’s what I wrote in my essay, which was titled by the editors, “Do Children Lie? Not About This.”

Since then, of course, it has become abundantly clear not only that children do lie, on occasion, but also that they can be influenced to make false allegations, just as adults can. Today, behavioral scientists who study children’s testimony recognize that framing the issue in terms of “children never lie” versus “children always lie” is wrong. Instead, they ask: Under what conditions is a child more likely to be suggestible and claim that something happened that did not? Here are some answers:

* When the child is very young.

* When the situation is emotionally intense.

* When interviewers encourage the blurring of fantasy and reality, for instance by asking the child to “pretend” that an adult did something to them.

* When the child has a desire to please an interviewer.

* When an adult repeatedly asks the same question; many children (especially preschoolers) will change their answers, thinking the first one was wrong or unacceptable.

* When the child is pressured by threats, offered bribes or accused of lying if they don’t give the “right” answers.

* When the child is asked to play with anatomically detailed dolls. The assumption has been that doll play will reveal abuse that the child is ashamed to admit. However, when researchers compare how abused and nonabused children play with the dolls, they find no differences. Even nonabused children play with the dolls in a sexual manner--those parts are pretty interesting! With preschoolers, the use of dolls may even increase memory errors and erroneous reports of sexual touch.

All of these mistakes were present in the interrogations of children in every one of the sensational cases of the 1980s. In addition, there was no way the children or defendants could convince the prosecutors that molestation had not occurred. If the children admitted it after hours of questioning, that was evidence; but if they denied it, that too was evidence--evidence that they were too scared, or in denial, or had repressed the memory.

A study just completed by Sena Garven, at the University of Texas at El Paso, shows how alarmingly easy it is to get young children to agree to false allegations against an adult. A young man visited 3- to 6-year-old children in their preschool, read a story and handed out treats. A week later, Garven questioned them about his visit. She asked children in one group leading questions to see how many false allegations the children would agree with: Did he shove the teacher? Did he steal a pencil from the teacher’s desk? Did he throw a crayon at a kid who was talking?

Then Garven asked children in another group the same questions, but she added techniques used in the McMartin, Kelly Michaels and Amirault trials: telling the children what “other kids” had supposedly said; asking the children to “help”; expressing disappointment if answers were negative and praising the child for making allegations that the adult wanted to hear.

In the first group, children affirmed about 15% of the false allegations of wrongdoing--bad enough for those who think that children never lie, misremember or make things up. But in the second group, the 3-year-olds said “yes” to about 75% of false allegations offered to them, and about 50% of the 4-to-6-year-olds did the same. And this was with a short interview, lasting only five to 10 minutes. In the major day-care abuse trials, the interviewers kept up their questioning over the course of many weeks.

Research like this has helped psychologists understand how children can best be interviewed to increase the accuracy of what they tell. It has helped to free falsely accused people from prison. It has demonstrated the necessity of videotaping all interviews with children, so that impartial observers can assess potential interviewer bias or coercion.

And yet too many children’s advocates remain committed to the belief that “children never lie,” and that anyone who suggests that children can be induced to tell falsehoods is abetting molesters. I once was sympathetic to their worry that the country will return to the bad old days when no one believed a word a child said. But now that seems more likely an excuse to avoid saying the three hardest words in the English language: “I was wrong.”

If we are to learn anything from the McMartin trial and its many clones, it is that we must be prepared to change our minds when the evidence dictates. Contrary to the ruling of Massachusetts’ Supreme Judicial Court, “closure” never takes precedence over justice. And there will be no closure on the sorry decade of day-care hysteria in America as long as the Amiraults are in prison.