Undoing a Damaging Trend in Sexual Abuse Cases
On opposite sides of the country last month, two major cases of child sexual abuse grabbed headlines, raising questions yet again about what happens when children are enlisted as witnesses in a legal system designed for adults.
On the surface, the outcomes in Malden, Mass., and in Wenatchee, Wash., seemed contradictory: While a Superior Court judge here strongly condemned criminal authorities for the way they interviewed child witnesses 14 years ago in the notorious Fells Acres Day School matter, a civil jury in Wenatchee upheld the right of law enforcement officials to make arrests based on children’s allegations that they had been molested. Both cases, however, spoke volumes about how the landscape of legal and social thought has shifted since the infamous McMartin Preschool case of Manhattan Beach launched a torrent of about 40 large-scale child sexual abuse trials in 1984.
Nearly all those convictions have been reversed or significantly revised, leaving mountains of unanswered questions as well as staggering human costs for those involved. But experts say, nonetheless, that important lessons were learned. The way they handle such cases, they agree, has changed dramatically.
Social scientists say their expanded understanding about the suggestibility of young minds is directly attributable to research spurred by these high-profile prosecutions. Often using this research, judges have been educated about assessing children as witnesses. District attorneys have established new training methods for prosecutors and investigators who work with large-scale child sexual abuse cases.
In the past, interviewers often shared information that could influence questioning. Now, to avoid contamination of evidence gained from interviews, a “hierarchical” investigative scope is the model, with separate examiners reporting to a central figure. Prosecutors also strongly urge interviewers to videotape their sessions. Even prepositions have come under scrutiny as investigators have learned that words such as “on” or “in” have different meanings for children than for adults.
Because of the glut of cases that may or may not have been mishandled, “I think we’ve learned a lot,” said Daniel S. Armagh, an attorney who directs the National Center for the Prosecution of Child Abuse in Alexandria, Va. “We’ve learned how to talk to children in a way which probably facilitates their ability to tell us what happened in their own way and to understand that they don’t always speak the same language that adults do.”
One result of this new understanding, Armagh and other legal specialists say, is that multi-victim, multi-defendant child sexual abuse cases are probably becoming things of the past. Efficient prosecutions are more likely, they have determined, when a single, credible victim offers consistent, unshakable testimony.
The fallout from these cases has touched the arena of mental health as well. Just last year, the leading professional organization of child and adolescent psychiatrists adopted new interview guidelines that stress that the symptoms of a sexually abused child can also describe a myriad of other conditions. Experts have also learned that the interview setting may affect what a child says. As a result, about 300 communities across the country have set up child advocacy centers--such as Stuart House in Santa Monica--where trained professionals work only with suspected cases of child sexual abuse.
“For me the most important legacy of these cases is, first of all, a negative one, and that is the rekindling of skepticism about children’s credibility,” said John E.B. Myers, a professor of law at the University of the Pacific’s McGeorge School of Law in Sacramento. “But then there is the good news,” said Myers, who studies child abuse and child suggestibility, “and that is that we really have learned a lot about interviewing [children] since the early and mid-1980s, when these cases really were debacles.”
In his scathing decision last month in the Fells Acres case, Judge Isaac Borenstein offered a plethora of examples of the heavy-handed interviewing that caused him to void the conviction of Cheryl Amirault LeFave, a former teacher at Fells Acres, and to posthumously reverse the conviction of her late mother, Violet Amirault, who founded and directed the day-care school in Malden, a blue-collar Boston suburb.
Borenstein wrote that repeatedly and explicitly a little girl known as JB denied that her day-care teacher had ever taken her clothes off at school. But the interviewer pressed on. “So what did you say to AJ when she had her clothes off at Fells Acres?” she asked.
Convicted in 1987 along with her mother and sentenced to eight to 20 years in prison, LeFave, 40, said in an interview that their trial became “a hunt for allegations rather than a search for truth.” After eight years as cellmates, she and her mother were released on probation in 1995, when a different judge found that the court’s seating arrangement violated their constitutional right to face their accusers. In a separate trial, LeFave’s brother, Gerald Amirault, who also worked at the school, was convicted of felony child abuse in 1986 and sentenced to 30 to 40 years. He remains in prison, pending his appeal.
Daniel R. Williams of New York, the lead lawyer in LeFave’s legal marathon, also represented Margaret Kelly Michaels, a New Jersey preschool teacher convicted of more than 100 counts of sexual abuse in 1988. Michaels spent six years in prison before her conviction was overturned in 1994. Williams’ experience with “hysteria about sexual abuse in these day-care centers” taught him “never to underestimate the magnitude of human gullibility.”
More charitably, Williams said, “the revolution that has happened here is that now no one really questions the basic premise that children can be manipulated into making false statements. They didn’t accept that in the mid-80s. In fact, the assumption was the opposite.”
But law professor Thomas D. Lyon of USC contends that the cluster of highly publicized institutional child sexual-abuse cases that began with McMartin has, in effect, created an academic market, “a whole new wave of research which is designed to show how suggestible kids can be.”
Added Lyon: “What’s tragic is that this does make it harder to prosecute.”
Defense-hired experts are eager to tell juries about their recent research, Lyon said, and many of these researchers are conducting seminars for judges, “so that you’re influencing the people who apply those tools.”
Judges and juries have become more reluctant to accept children’s testimony--so much so, said Veronica Abney, a Santa Monica social worker, that “district attorneys are much more cautious about pursuing these kinds of cases, because they don’t want to lose, and they don’t want to be overturned later.”
Lyon cited a 1993 American Bar Assn. study showing that of 1,000 prosecutions for child abuse, 85% involved cases in which only one child was named. In 22% of the cases, prosecutors found evidence that other children had been abused by a single alleged perpetrator.
Armagh, whose organization is affiliated with the National District Attorneys’ Assn., said that in recent years, training of investigators and prosecutors has become much more refined. He advises law enforcement personnel, for example, that as “concrete thinkers,” young children can be confounded by compound questions. Keep it simple, Armagh urges.
In appeal after appeal defense attorneys have referred to studies by psychology professor Maggie Bruck of McGill University in Montreal demonstrating that “the memories of preschoolers are not as well organized as adults.” Bruck, coauthor of a book about children as witnesses, maintains that children younger than 5 are easily influenced by their questioners. The children want approval, and they often provide responses meant to please an adult, “especially if it means ending the interview,” she said.
In particular, the research of Bruck and others explores how young children may make “fantastic allegations that are sexual in nature.” This new data, said Bruck, has helped judges see the flaws in the often heavy-handed interviewing techniques that accompanied an era when stories told by children had all the power of truth.
This overly aggressive approach to questioning children came under fire once again in Wenatchee, where 60 children claimed to have been abused by parents, pastors and other adults--and where a civil jury last month refused to award damages to four adults who were arrested and later acquitted on criminal charges. The case raised nationwide calls for reforms in the prosecution of alleged child abuse, and an attorney for two of the adults in Wenatchee compared investigative techniques used there to those employed in the Fells Acres case. That case, plaintiffs attorney Bob Van Siclen said, “was a very good warning sign for this community that they should have looked at. They didn’t.”
But skepticism about sexual abuse is nothing new, said Dr. Renee Brant, a staff psychiatrist at Children’s Hospital in Boston who testified for the prosecution in the Fells Acres case. Even “the great Dr. Freud,” she said, anticipated this issue when he described--and then discounted--reports of adult female patients who said they were victimized as children more than 100 years ago.
The methodology of interviewing very young children has evolved, Brant said, “striking that balance between facilitating and supporting the disclosures of children, but also guarding against bias.” Calling children’s credibility into question, she said, makes it “very difficult to try child sexual abuse cases in court--and children already have an uphill battle.”
In 1997, the American Academy of Child and Adolescent Psychiatry drew heavily on recent research on memory and suggestibility when it adopted new parameters for evaluating minors who may have been sexually abused. The academy’s guidelines note that abused children manifest a variety of symptoms--but “the same symptoms may occur without any history of abuse.”
New studies show that the role of the interviewer is also critical. Dr. Diane H. Schetky, a Maine psychiatrist who reviewed the academy’s parameters, said one objective is to avoid “the trap of [the same person] being both therapist and evaluator"--a common shortcoming, she said, when cases like Fells Acres were first reported.
Experts on all sides agree that mistakes are sometimes made. The testimony of a child can wrongly convict a caregiver; conversely, dismissing a child’s view of events may mean that perpetrators of horrible crimes go unpunished.
“What we certainly don’t want to see is that because cases like this have been concocted, therefore all cases have been concocted,” said James L. Sultan, a Boston lawyer who also represented the Amiraults.
Still, Armagh of the National Center for the Prosecution of Child Abuse said that although “perceived mistakes” receive disproportionate attention, “the public is unaware that for every Kelly Michaels case, there are thousands of trials that succeed throughout this country each year--hundreds of multi-victim cases.”
Among those proceedings, the matter of Cheryl Amirault LeFave and her family now has the dubious distinction of being the longest-running institutional child sexual-abuse case in recent history. Fourteen years after the mother of one Fells Acres pupil accused Gerald Amirault of sexually abusing her son, the Middlesex County district attorney is expected to appeal Borenstein’s decision to the Massachusetts Supreme Judicial Court.
Noting that Malden is within shouting distance of Salem--where accusations by children launched the legendary witchcraft trials of three centuries ago--Sultan said the Amirault case had in a way become a metaphor.
“The best way to understand it is to read Arthur Miller’s play,” Sultan said, referring to “The Crucible.”
But in crafting his opinion, Borenstein handed defense attorneys and the higher court a dramatic challenge of his own. In concluding that the child witnesses in the Fells Acres case were manipulated by “overzealous” investigators who gave in to a “climate of panic, if not hysteria,” the judge barred the alleged victims from testifying in any retrial.