Beneficent Purposes: How does the court obtain clean evidence in child abuse cases?

By Michael G. Brock

It has been 13 years now since the State of Michigan first published its Governor’s Task Force on Children’s Justice and FIA Forensic Interviewing Protocol. The stated reason for the development of the Protocol was that, “In recent years, there has been increasing criticism directed at the type of interviews conducted by professionals involved in the investigation of child physical abuse and child sexual abuse. The criticism hinges on the use of poor interviewing techniques that could be cause for implanting memories in a child, or result in adults not listening to or learning the child’s disclosure of actual abuse.”

The introduction to the Protocol goes on to say, “The purpose of this protocol and training is to prepare local investigators to conduct competent child interviews which will reduce trauma to children, make the information gained more credible in the court process, and protect the rights of the accused.” Further on it lays down basic ground rules for forensic interviewing, such as, “Forensic Interviews should not be conducted by professionals who have an ongoing or a planned therapeutic
relationship with the child...forensic interviews are hypothesis-testing rather than hypothesis-confirming...forensic interview should be child-centered...interviewers should avoid suggesting events that have not been mentioned by the child...[etc].”

In the intervening years the Protocol has been expanded and revised, but the basic principles remain the same. The goal is to elicit a narrative from the child of the alleged abuse with as little prompting as possible (if such abuse has occurred) and to accept no for an answer if the child refutes or fails to confirm the allegation. In the tri-county area, specific facilities have been set up to perform interdisciplinary forensic interviews, including mental health clinicians, CPS and law enforcement officials. The interviews are generally conducted by mental health professionals in the presence of the other disciplines, and DVD recordings are made to preserve the evidence.

So far, so good. In my experience, however, it is not unusual for the forensic interviewer to refer the person presenting with the child (usually the alleging parent) to a mental health agency specializing in treatment of abused children. The reason for such referrals are obvious; the mental health professional has a very concerned parent in front of her stating that regardless of the results of the forensic interview the child has disclosed to him or her that she has been abused and the parent wants to get the child help. The interviewer knows that she cannot provide treatment, so she refers to someone who can. She may even state that therapy might discover abuse that has failed to come to light in the forensic interviewing process.

Such a referral may make intuitive sense to the mental health professional, or even to the legal professional who is concerned about protecting children and fears that the forensic interview(s) conducted according to Protocol (there are often more than one) may have missed something too important to be missed. Moreover, she is being confronted by an insistent and believable parent who is accusing someone who is not there of unspeakable acts. It is always easier to believe horrible things about someone who is not there.

Of course, if one is to follow this line of reasoning, then the logical conclusion is that there really is no reason to have a forensic interviewing protocol and laws mandating its use. We might as well ignore all the supporting literature documenting extensive research about the effects of repeated, coercive and highly suggestive questioning on impressionable minds by therapists who have heard only one side of a case and reached findings of facts and conclusions of law, which were then necessary to have verified by the victim so the child could be properly treated and the court would have the information necessary to confirm the findings of the therapist.

We could also then ignore the ruined lives of Jim and Betsy Kelly and their daughter, Laura (6 years old when her parents were arrested) who, along with the children of the other defendants in the Little Rascals Daycare sex abuse case, were the only children to truly be victimized by anyone connected with the case. Unless of course, we consider the alleged victims, who were allowed no peace until the finally spoke the “truth” that everyone knew, but only they could confirm. (Stephen Ceci has done some interesting work concluding that once a child has been convinced something has happened, he cannot then be convinced that it didn’t.) Best of all, we could ignore the fact that of all the highly publicized day care sex abuse cases, only one conviction held up, and that one highly questionable, while every other defendant was either acquitted or had their conviction overturned on appeal.

Finally we could ignore how difficult it was for mental health professionals to sell the legal community on the radical idea that due process was not only fundamental to the American system of jurisprudence, it might also be an excellent-perhaps the best-method of deciding the actual guilt or innocence of a person accused of a crime. To be sure, some of the guilty will get off, but maybe it’s better to acquit a guilty person than to convict an innocent one (or a whole bunch of innocent ones). In the words of Justice Louis Brandeis, “Experience teaches us to be most on our guard to protect liberty when the government’s purposes are beneficent.”

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Michael G. Brock, MA, LLP, LMSW, is a forensic mental health professional in private practice at Counseling and Evaluation Services in Wyandotte, Michigan. He has worked in the mental health field since 1974, and has been in full-time private practice since 1985. The majority of his practice in recent years relates to driver license restoration and substance abuse evaluation. He may be contacted at Michael G. Brock, Counseling and Evaluation Services, 2514 Biddle, Wyandotte, 48192; (313) 802-0863, fax/phone (734) 692-1082; e-mail: michaelgbrock@ comcast.net.