Very Young Victims
Research has consistently shown that child sexual-abuse victims' first unwanted sexual experiences occur around age ten (Finkelhor, 1979; Godbout, Briere, Sab- ourin, & Lussier, 2010). Child sexual abuse, however, involves victims of all ages. Very young children, from infancy to approximately age six, are at a significant disadvantage with respect to successful prosecution and adjudication of suspected sexual abuse. These reports are by far the least likely to be substantiated. One clinician provides the following example to demonstrate the difficulty in substantiating a child sexual-abuse case involving a two-year-old female victim:
A two-year-old child was in a domestic violence shelter with her mother. The mother was badly beaten by an alcoholic father. When the mother changed the child's diaper, she grabbed her vulva and cried "Daddy hurt butt! Daddy hurt butt!" The child was also observed to be nervous and anxious around her father and had trouble sleeping after a visit. Law enforcement officers and child protective services conducted a joint investigation but could not substantiate sexual abuse. The child was eventually returned to the father for unsupervised visitation.
(Hewitt, 1999, p. 1)
Scenarios like this are all too common for very young victims of sexual abuse. The difficulties in substantiating sexual abuse of very young victims point to several legal and extralegal factors. First, the likelihood of detecting diagnostic physical evidence in these cases is low (Heger, Ticson, Velasquez, & Bernier, 2002). Many types of sexual abuse do cause injuries, but such injuries can heal completely by the time the child is brought for a medical examination (McCann, Miyamoto, Boyle, & Rogers, 2007). Second, very young children may have difficulty in communicating abusive situations. Preverbal children, for example, may use what few verbal skills they have in combination with other gestures and behaviors that are suggestive of abuse (American Prosecutors Research Institute, 2004). There is a low likelihood that such communications will withstand legal scrutiny. Third, it has been argued that very young children are unduly suggestive, meaning they may be misled to report inaccurate information. Some earlier critics portrayed the prosecution of child sexual-abuse cases as an unethical process, led by corrupt professionals on a witch-hunt for false allegations (Gardner, 1991). There has never been evidence of such a witch-hunt. There is evidence, however, that some well-intentioned therapists, law enforcement officials, attorneys, and social workers have used interview techniques that could distort children's memories. Proper interviewing of vulnerable victims is explored further in Chapter 9.
By and large, successful prosecution, specifically in cases involving the youngest victims, depends on the quality of the verbal evidence and the effectiveness of the child victim's testimony (De Jong & Rose, 1991). It has been established that older children are more likely to disclose sexual abuse, as well as provide a more detailed disclosure of it, compared to younger children (London et al., 2005). Before a child can testify in court, the judge must be convinced that the child possesses testimonial competence. Testimonial competence requires basic cognitive and moral capacities. The child must be able to understand the difference between a lie and the truth and appreciate the need to tell the truth in court. Moreover, usable testimony also depends on a child's understanding and memory of the abuse, ability to describe what happened, and concerns about the consequences.
In most states, attorneys and judges can inquire about children's understanding of truth and lies (Myers, 2005). For example, in California, witnesses are disqualified from testifying if they are "incapable of understanding the duty of a witness to tell the truth" (California Evidence Code, 2010, § 701, subds. (a)(2)). As a result, child witnesses are likely to confront questions about their understanding of truth and lies and the importance of telling the truth. Their responses may be used as a prerequisite to allowing their testimony or as a means of evaluating their credibility. For school-age children and adolescents, this is usually not a serious barrier to prosecution. For very young victims with limited verbal communication abilities, however, this can be an insurmountable obstacle.
In the past ten years, the U.S. Supreme Court has increased the significance of oath-taking competency requirements for child witnesses. Under the law in most jurisdictions, children demonstrate oath-taking competency if they understand that "truth" refers to factual statements and that one ought to tell the truth. The ways young children understand abstract concepts, such as truth and honesty, often belie some jurisdictions' strict-oath competency requirements. Research has shown that young children conceptually understand notions of "truth" and "lie," despite their inability to successfully articulate them. Researchers have found that maltreated preschool-aged children (ages four to six years) successfully accepted true statements and rejected false statements before they were able to label true and false statements as "truth" and "lie" or as "good" and "bad" (Lyon, Carrick, & Quas, 2010). This finding is in line with previous research that has found that young children were able to label statements as "truth" or "lie" before they were able to provide a definition or explain the difference between the two (Lyon & Saywitz, 1999). Taken together, this means that children can and do accept true propositions and reject false ones even though they are incapable of articulating their understanding of truth and lies.
If some form of an oath is required, many children who reliably accept true statements and reject false statements will nevertheless be incapable of promising to "tell the truth" because they lack a technical understanding of the kinds of statements to which "the truth" refers. These children appreciate the importance of speaking truthfully but are unable to comment prospectively on whether they would do so and thus would be incapable of promising to tell the truth (Lyon et al., 2010).
Another significant barrier to prosecution of child sexual-abuse cases is the common belief that a child will be further traumatized by the legal process which, depending on the nature of the charges, can be a lengthy process, requiring the child to repeatedly face and relive trauma (Walsh et al., 2008). This is intensified when the child victim is related to his or her offender and may lack familial support. Though some evidence suggests that longer court processes increase anxiety and distress in child victims, thereby hindering their recovery process (Runyan et al., 1988), the negative effects appear to be short-lived. By the time child sexual-abuse cases are resolved, behavioral adjustment of children who testify is similar to that of children who do not testify (Goodman et al., 1992).