Stretching the blanket: Legal reforms affecting child witnesses

The author presents an overview of the changes in the rules of evidence that now govern criminal prosecutions of child sexual abuse and civil proceedings. The United States Supreme Court has issued six decisions that profoundly affect the receipt of children's testimony and expert testimony assaying the reliability of children's reported experiences. These cases as well as the Michaels prosecution in New Jersey have been catalysts for reform, exposing the pretrial investigative processes as the critical determinant of the reliability of trial evidence from children. She concludes that the next frontier is the application of social science research to the shaping of legislative standards and administrative guidelines aimed at minimizing the contamination of children's testimony during the pretrial staging of litigation.     

Child sexual abuse: a case study in community collaboration

OBJECTIVE: This is an exploratory study that describes the process and outcomes of a Midwestern US community's approach to case management of child sexual abuse. METHOD: Data were abstracted from 323 criminal court files. Specific information gathered included child and suspect demographic data, law enforcement and CPS involvement, child disclosure patterns and caretaker responses, offender confession, offender plea, trial and child testimony information, and sentences received by offenders. Both case process and outcome variables were examined. RESULTS: In this community, criminal court records reflect a sex offense confession rate of 64% and a sex offense plea rate of 70%. Only 15 cases went to trial and in six the offender was convicted. CONCLUSION: Communities can achieve successful outcomes when criminal prosecution of sexual abuse is sought, but the child's testimony is not necessarily the centerpiece of a successful case. In this study, desired outcomes were a consequence of the collaborative efforts of law enforcement, CPS, and the prosecutor's office, which resulted in a high confession and plea rate.     

刑事诉讼中证人出庭作证的困惑与思考

刑事诉讼证人不出庭作证已成为困扰司法的一大因素,证人在审前所做的陈述在法庭上被大量使用,使得控辩式诉讼流于形式。刑事证人出庭率低,除了司法人员的执法水平和证人的观念因素外,最主要的还是法律制度本身不健全,立法上义务与制裁失衡,缺乏对出庭证人的权益保障措施。应当通过提高公民对作证义务的认识,完善对证人的经济补偿和人身保护制度,确立证人特权和豁免规则等来改变刑事证人出庭难的状况。     

Childhood sexual assault victims: long-term outcomes after testifying in criminal court

We report a longitudinal study of long-term outcomes of participating in criminal cases following child sexual abuse (CSA). In the 1980s, 218 child victim/witnesses took part in a study of short-term sequelae of legal involvement. Approximately 12 years later, 174 of them, as well as a comparison group of 41 matched individuals with no CSA history, were interviewed about their mental health and legal attitudes. Being young when the legal case started was associated with poorer later adjustment. Additionally, even when controlling for psychological problems at the start of the legal case and other familial, CSA, and life stressors, testifying repeatedly in childhood predicted poorer current functioning. These associations were often moderated by the severity of both the CSA and the perpetrator's sentence: Testifying repeatedly in cases involving severe abuse, and not testifying when the perpetrator received a light sentence, predicted poorer current mental health. In partial contrast to the mental health results, being older when the case began and the perpetrator receiving a lenient sentence predicted more negative feelings about the legal system. In addition, not having testified when the perpetrator received a light sentence predicted more negative legal attitudes. Individuals' emotional reactions while waiting to testify and while actually testifying were also associated with their current mental health and attitudes toward the legal system: Greater distress predicted poorer adjustment, especially in individuals who were adolescents when they went to court. Greater distress also predicted more negative attitudes. Finally, when the former CSA victim/witnesses were compared with individuals with no CSA history, the former reported poorer adjustment and more negative feelings about the legal system. Results have implications for multilevel-transactional models of development, for understanding developmental sequelae of legal involvement following childhood trauma, and for social policy concerning the treatment of child victim/witnesses.     

Residents' attitudes toward the legal system and court testimony in child abuse

Resident physicians' contacts with the legal system during management of abused children may influence their attitudes, which were evaluated in a pilot survey completed by 42 pediatric and medicine/pediatric residents. Although negative attitudes toward attorneys were common, almost all of the residents considered general and hearing-specific legal training to be a legitimate part of their residency program. They reported lower levels of stress of court testimony than expected by the authors. Most who had testified in court believed their testimony had been needed and helpful, but all who believed their testimony had been a waste of time were senior-level residents. Although most residents believed the laws and courts usually work for protecting children, only 8 of the 20 residents who had previously testified in court responded affirmatively, and none of the 10 senior residents who had previously testified held this belief. The disillusionment of senior-level residents appeared to affect attitudes toward patient care less than expected, in that 90% of those who planned to enter private practice indicated they would perform physical abuse evaluations and 70% planned to perform sexual abuse evaluations. Only one resident who did not expect to perform the evaluations gave as a reason the prospect of having to testify in court.     

浅析刑事诉讼证人不出庭作证原因及改进

在我国,由于种种原因,现实中没有真正确立证人出庭作证的制度,在庭审中,提交书面的证人证言仍是主流。文章着重从刑事诉讼方面分析我国证人很少出庭作证的原因,进而提出改善建议,即建立出庭证人保护制度、建立出庭证人补偿制度、明确证人作证方式、树立法院权威以及提高民众法制意识等。     

辩护与帮助之辨——侦查阶段中律师的地位与职能问题探讨

辩护的本来意义,是被告方的一种通过防御来维护自身合法权益的法庭活动,辩护实际上包含民事辩护、刑事辩护乃至行政辩护,在我国,辩护专指刑事辩护.辩护律师的存在有三种意义:保障犯罪嫌疑人辩护权的有效行使和切实兑现;从程序上制衡国家追诉权;维护刑事诉讼程序顺利进行.在我国刑事诉讼侦查阶段,只有律师没有辩护律师,律师在侦查阶段并没有辩护人的地位,这是学界一致诟病的地方.必须通过以下制度的确立来保障辩护权能够得到切实实施:对嫌疑人采取强制性侦查措施时,辩护律师有在场权和签字确认权;辩护律师应当享有不受限制的自由会见权;辩护律师应当拥有调查取证的权利.     

Sexual abuse of children in the United Kingdom

Questionnaires were circulated to 1,599 family doctors, police surgeons, paediatricians, and child psychiatrists to determine the frequency and nature of child sexual abuse in the United Kingdom. At least three per 1,000 children are currently being recognized as sexually abused sometime during their childhood. The majority of cases reported involved actual or attempted intercourse, and 74% of the perpetrators were known to the child. Family disturbance was noted in 56% of the cases. The most common outcome (43%) was criminal prosecution of the perpetrator. Area Review Committees had no clear policy for the management of sexual abuse. Before it is possible to protect children and to develop therapeutic services for the family, it will be necessary to acknowledge that sexual abuse is part of the child abuse spectrum.     

我国刑事诉讼庭前审查的现状与重构

庭前审查在刑事诉讼中起着抑制公诉权的滥用,保障被告人的合法权益,为开庭审判做准备等重要作用。而我国目前庭前审查存在许多不足之处,正确分析其现状,有助于庭前审查程序的重新构建。     

The credibility of recovered memory testimony: exploring the effects of alleged victim and perpetrator gender.

OBJECTIVE: The purpose was to explore the effects of victim/complainant and perpetrator/defendant gender on the impact of recovered memory testimony in criminal sexual abuse trials. METHOD: A jury simulation methodology was used. Two hundred forty-six participants read a summary of a sexual abuse trial in which the following three variables were manipulated: the complainant's gender, the defendant's gender, and whether the complainant's memory of the alleged abuse had been "recovered" or remembered all along. Participants reached a verdict and rated the culpability and credibility of the parties. RESULTS: Compared to a case where the memory of the abuse had always been remembered, recovered memory testimony led to lower perceptions of the defendant's culpability and higher perceptions of the defendant's credibility. In addition, the complainant with recovered memory was viewed as less credible and less likely to be telling the truth. These effects of testimony type (i.e., recovered vs. remembered) were qualified by an interaction with complainant and defendant gender, such that testimony type exerted an effect in cases of alleged heterosexual but not homosexual abuse. CONCLUSION: The results suggest that mock jurors' judgments in sexual abuse cases reflect their stereotypes about sexual abuse and expectations regarding the relative likelihood of repression in various circumstances.     

A survey of pediatricians' attitudes and experiences with court in cases of child maltreatment

OBJECTIVES: To explore pediatricians' attitudes and experiences with the court system in child maltreatment cases. DESIGN: An anonymous, cross-sectional survey of a random sample of pediatricians registered with the North Carolina Medical Board. RESULTS: The response rate of the study was 60% (N=270). Few pediatricians (10%) reported that they had "ever" suspected maltreatment but decided not to report it. Pediatricians were equally likely to recall positive and negative experiences in court for child abuse cases. Pediatricians with negative court experiences were more likely to view reporting as time-consuming and were more than twice as likely not to report suspected cases of maltreatment (OR 2.4, 95% CI 1.04, 6.0). Seventy-five percent of pediatricians felt that court is harmful or distressing for children. CONCLUSIONS: The majority of pediatricians report suspected cases of child maltreatment. Pediatrician's court experiences play a role in the response to child maltreatment cases, influencing attitudes towards the legal system and the process of caring for maltreated children. Future research efforts should address physicians' concerns about the impact of court on children, ways to improve the working relationship between the legal system and physicians, and the training needs of physicians in child maltreatment, including testifying and understanding the court process.     

我国证人出庭制度的理论反思

我国的证人出庭制度似乎变成了证人不出庭制度:被告人认罪的案件实行简化审理,证人很少出庭;即使在普通程序中,法律也不要求所有证人一律出庭。对于仅剩的需要证人出庭的案件,却存在着无法强制证人作证的问题:由于律师无法对尚不存在的证人证言提出异议,启动法院强制证人出庭的权力变得不切实际;而特定近亲属享有免于出庭作证的特权,法院无法强制其出庭。需要肯定证人出庭制度的价值,并在此基础上实行机制改革,赋予被告人审前充分的质证机会、扩大适用认罪案件程序、将证言分为尚未取得和已经取得两种情形以及将特定近亲属的免于出庭作证特权改为拒绝作证特权。     

Educational program on evaluation of alleged sexual abuse victims

Increased awareness of the problem of child sexual abuse has resulted in increasing numbers of children presenting to professionals for the evaluation of possible sexual victimization. A multidisciplinary project to develop professionals' knowledge and skills in the identification and evaluation of possible victims is described. The program focused on the child as a victim and emphasized developmental perspectives with regard to identification, interviewing children, the medical examination, and children in the legal system. Fifty-one medical and social work professionals from ten Indiana counties attended the program and responded to questionnaires about their experience and knowledge. Of 40 (78%) respondents, 63% had had no previous training in the medical evaluation for child sexual abuse. Child protective workers referred alleged victims primarily to the child's regular physician (37%) or emergency room (31%) for medical examination. Knowledge about child sexual abuse improved significantly at two weeks postsymposium (p = .001) and remained improved at six months postsymposium (p less than .02). These original participants have subsequently organized similar multidisciplinary programs in their local communities for medical, social, law enforcement, and legal professionals; thus, they have been "seeds" for further educational and cooperative efforts throughout the state.     

Intervening in severe physical child abuse cases: mental health, legal, and social services.

OBJECTIVE: To examine the child protection process in cases of severe physical abuse, to compare characteristics of the families with risk factors previously reported in the published literature, and to develop recommendations about the use of mental health professionals in such cases. METHOD: Reviewers examined 30 case records of severely physically abused children under age 5, nominated by child protection workers and mental health providers. The reviewers recorded demographic, clinical, and case process information such as mental health and other referrals, reunification status, and frequency of criminal prosecution. A case study was described. RESULTS: The parents displayed a range of psychological characteristics (e.g., depression, anxiety, personality disorders) and life problems (e.g., domestic violence, substance abuse, abused as child). The majority of parents denied the abuse. The children were very young (more than half under 6 months old) and many had difficult births or medical problems prior to the abuse. The most common services offered were individual psychotherapy and parenting classes. More than half of the children reunified with at least one parent within I year. Forty percent of the cases involved criminal prosecution. CONCLUSIONS: Reunification occurred more quickly and more often than expected based on the severity of the injuries. The system often relies on psychotherapy to correct the abusive behavior, even when the perpetrator remains unknown and specific risks such as substance abuse or domestic violence are present. The authors advise utilizing multidisciplinary teams for recommendations regarding reunification.     

论刑事诉讼中见证人见证的法律效力

我国刑事诉讼中见证人见证制度固然存在诸多的问题和不足．但最根本的问题是见证人见证与否对相关的侦查行为及其所取得的证据不产生法律效力,这就使见证制度所具有的对相关侦查行为进行监督和证明功能失去意义。因此有必要对我国刑事诉讼中的见证行为进行研究,应当赋予见证人见证以法律效力,从而使见证人是否参与见证能够在不同情形下对证据能力和证明力产生影响。     

Social workers’ views on pre-trial therapy in cases of child sexual abuse in South Africa

This study sought to explore anecdotal reports that social workers in South Africa are often advised to postpone therapy with child complainants of sexual abuse until after the child's testimony, based on concerns of legal professionals that therapeutic interventions could influence the child's testimony. Applying purposive sampling and a qualitative research study, individual and focus group interviews were conducted with 18 social workers and one psychologist that provide therapeutic services to child complainants of sexual abuse in the Gauteng province. Interviews were audio-recorded, transcribed and independently analyzed by both researchers, performing thematic analysis. Emerging themes include a lack of directives in terms of the provision of pre-trial therapy for child victims of sexual abuse, current practices and challenges in this regard. Recommendations for the way forward are presented. Limitations and future research will be discussed.     

The expert witness in child abuse and neglect: An interdisciplinary process

The legal system is an important part of a society's response to child abuse and child neglect. Courts need to be guided in their deliberations by experts from many different professions. Consultation and in-court expert testimony is necessary from medicine, psychology, psychiatry, social work and other professions both to prove child abuse and neglect and establish the power of the court to act on behalf of a child but also to guide the court in the intervention strategy most suited to the needs of the child and his family. Non-lawyers often feel uncomfortable in the legal setting. The adversary process is foreign to their training and professional experience. Collaboration with a lawyer greatly improves their effectiveness in court. Lawyers, on the other hand, need to make maximum use of medical and social-psychological experts in the court process in the interests of their clients; but to do so lawyers need a basic understanding of the other professions. With an emphasis on a process of mutual education, the paper presents a framework for collaboration between lawyers and expert witnesses in child abuse and neglect cases. “Expert witness” is defined; informal consultation is encouraged; suggestions for selecting a collaborator are made; initial contracts between lawyer and expert, case conferencing and preparation for trial are discussed; specific advice on direct and cross examination is provided.     

Criminal investigation of child sexual abuse: a comparison of cases referred to the prosecutor to those not referred

OBJECTIVE: The present study sought to identify characteristics of child sexual abuse cases which differentiate cases referred for criminal prosecution ("criminal-action") from those not referred ("dropped") by investigators. METHOD: The study sample consisted of 1043 children who completed a forensic interview for sexual abuse that allegedly occurred at the hands of an adult between January 1, 1993 and December 31, 1996 in Bernalillo County of New Mexico. Data was systematically obtained from forensic interview files and offender records at the local prosecutor's office. RESULTS: Differences between criminal-action and dropped cases were found in relation to the children (age, sex and ethnicity), the alleged offenders (age, sex and relationship to child), and the case characteristics (disclosure and injury to the child). CONCLUSIONS: The present study provided insight into the characteristics of a previously ignored population (reported child sexual abuse cases that are not referred for prosecution). Recommendations are made to address the needs of these children and their families.     

庭审实质化背景下的证人出庭作证制度及其完善

我国刑事司法实践中,证人出庭之重要性与证人不出庭之现实间矛盾突出,证人、鉴定人出庭率始终徘徊不前,这不仅背离了直接言词原则与传闻证据规则的基本要求,更严重掣肘当前庭审实质化改革目标之实现。为此,文章拟结合庭审实质化改革的现实背景,在分析证人不出庭作证的立法、司法、观念等综合成因的基础上,指出证人出庭作证制度的完善路径与具体对策,即确立实行"相对的""不完全的"直接言词原则,在明确"关键证人"应当出庭作证情形的前提下,确立书面证言使用的限制性规则,明确那些应当出庭作证而未出庭的证人证言的程序性后果,从而建立起一套以制度化、常规化出庭作证为主,例外明确化书面证言为辅的混合式人证调查程序。