Youth Services Litigation Blog : Georgia Youth-Serving Organization Lawyer & Attorney : Debbie Ausburn Law Firm : Youth Camps, Day Care, Social Services

 A recent project led me to an interesting study in the Scandinavian Journal of Psychology looking at what factors influence the opinions of clinicians about whether child sexual abuse occurred in a given case.  It should come as no surprise that the study found that even expert clinicians are human, with many unexamined biases.

What I did find disconcerting was the study's conclusion that the clinicians noticed leading questions, but not other suggestive techniques.  The study included interviews that, in addition to leading questions,  used (a) inducing stereotypes ("he is bad"), (b) statements that assume abuse ("don't be afraid to tell"); and (c) praise or criticism for certain disclosures from the child.  Although experienced clinicians were more likely to note the leading questions, few of them noticed the other three suggestive techniques.

As the study's authors noted, this finding "is surprising as there is ample evidence that a number of suggestive interviewing techniques apart from leading questions may affect children's testimony in a negative way.  This is an alarming finding because if the clinicians do not recognize such influences as harmful, it would not be possible for them to take steps to avoid such influences when interviewing children themselves."  

The authors recommended more training about suggestive techniques and pre-existing beliefs, as well as (of course) more studies on the subject.

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Two New Jersey men claim to have recovered memories of sexual abuse that they suffered more than 60 years.  Yes, 60 years.  I tend to be skeptical about claims of recovered memories, but this one is particularly hard for me to believe.  According to this article in the Star-Ledger, one man says that his repressed memory broke through "after he learned on television, in October 2004, that the Newark Archdiocese had settled with victims of sex abuse for $1 million without acknowledging wrongdoing."

But of course.  That's how all repressed memories work.

Hat tip: Tillers on Evidence and Inference

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The latest of the Journal of Interpersonal Violence has a fascinating study about the effect of domestic violence on children.  It included a small sample, and needs to be replicated, but it is the first major study to look at the effect of the relationship between a child who witnesses domestic violence and the perpetrator.  It found no significant difference in regard to Post-Traumatic Stress Disorder, but found that children with multiple father figures showed significantly more troublesome behaviors.

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Like everyone else, I have been following (and fascinated by) the story of Jaycee Dugard, found 18 years after she was kidnapped. Now 29, she has two daughters, apparently fathered by her kidnapper.  It will take a long time to understand why she did not take opportunities to leave her kidnapper, but we adults often forget how very vulnerable children are, and how powerless they feel.  

For now, though, I want to focus on the police work that led to the discovery.  A Berkeley police officer says that she sensed something very wrong with the relationship between the kidnapper and the two younger children, but did not have strong enough facts to warrant a report to protective services.  Fortunately, she did not leave the question there, but called the kidnapper's parole officer, who was surprised to learn that he claimed to have two daughters.  That officer's interview led to the unravelling of the entire affair.

It is good that the Berkeley officer followed up on her suspicions.  Law enforcement officers always have to make difficult judgment calls, and always have someone second-guessing them.  This time, it was the right call.

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Speaking of bullying, DeKalb County has issued a report of its investigation into the suicide of 11-year-old Jaheem Herrera.  His mother filed suit last spring, arguing that the child killed himself because of bullying at school.  The school system hired a respected retired judge to investigate the situation.

One controversial aspect of the judge's findings is the possibility that the child's suicide was related to domestic violence that he witnessed.  Apparently, his mother's boyfriend has a documented history of abuse toward his mother.  The mother's attorney called the abuse a "non-issue," and said that it had no bearing on the case.

It is possible that the abuse had nothing to do with the child's suicide, but it certainly is an issue.  The mental health research is overwhelming that children who witness domestic violence experience higher rates of depression, anxiety, and aggression that children who do not.  See also here, here, and here.

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The current issue of Child Maltreatment has a fascinating study on children exposed to domestic violence.  Unlike similar studies, this one looked not only at battery-type violence, but also verbal aggression.  The researchers found that women and men were equally likely to be involved in aggression and violence, including verbal aggression.  They also found significant adjustment issues in children who experienced only verbal aggression.

Like all studies, this one has limits and needs to be replicated.  In the legal setting, however, it adds a significant wrinkle to the question of damages.  In any case where mental health is an issue, both the expert witnesses and attorneys need to investigate and account for domestic violence, including relatively moderate verbal aggression.

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This article about a convicted child molester whose victim has recanted her testimony caught my eye last week.  It wasn't the victim's change of heart that interested me.  As a former prosecutor, I am familiar with that phenomenon.  Sometimes witnesses think the sentence was too harsh, or they think that they have moved on and recant as a way of extending forgiveness.  And sometimes they really did lie in the original trial.  I don't know enough about this particular case to have an opinion on what really happened.  But I have serious questions about this testimony, presented by the prosecution to challenge the recanting victim:

The prosecution made its case by presenting testimony from a psychologist who theorized that Julie suffered from "child sex abuse accommodation syndrome," one of whose key symptoms is denial. In short, the theory was that her recantation as an adult was a form of denial that she had been sexually abused or that her father did it. Under the theory, her new statement also represented an effort by her to restore a family relationship.

The problem is that CSAAS is not a diagnosis.  No one can "suffer from" it.  If the expert actually testified as the article describes, then he or she was woefully, even inexcusably, uninformed.

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People working in child abuse prevention have long argued that animal cruelty is an indication, and perhaps a precursor to, domestic abuse.  The Journal of Interpersonal Violence recently published a study offering support for the belief that animal cruelty is at least a red flag for domestic violence. Researchers asked questions of college students, and found that 60% of the students who had experiences with animal cruelty also had experienced domestic violence.  Retrospective studies have limitations, such as the likelihood of hindsight bias, but this study provides important data support for treating animal cruelty reports as red flags for possible domestic violence.

Youth-serving organizations should be alert for this link.  If you see a child who exhibits signs of cruelty toward animals, you should be alert for other signs that the child has been abused.  In the civil litigation arena, lawyers and experts should be aware of this link, and should investigate domestic violence as a possible cause of anxiety symptoms.

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A Nashville school district has fired three employees after discovering that a middle school teacher was hired despite an outstanding criminal warrant for child molestation.  This story illustrates the pitfalls of relying too heavily on routine criminal background checks.  The accused teacher, Ronald Boykin, had no criminal conviction, but had been wanted for two years in another city in the state.

According to news reports, the district fired the employees for lax hiring practices.   Apparently Boykin actually noted on his application that he was under criminal investigation, although it is not clear whether he specified what was being investigated.  The district employes also failed to re-check his application when he transferred from a support position to being a teacher.

The first line of defense in any youth-serving organization is a thorough application  interview.  One of the best resources on screening employees, including how to conduct an interview, is the CDC's publication about policies and procedures.  It is free, and available for download here.  

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The Oklahoma Senate has passed a bill to prevent sex offenders from operating ice cream trucks.   The sponsor said he was motivated by reports of sex offenders operating ice cream trucks who were convicted of molesting children.  

Well,  what about accusations against other professions, such as (to pick just a few recent news articles at random) pediatricians, a private music teacher, a preacher, and a karate coach?  When will we see bills targeting these professions?

We could spend our lifetimes, and our children's, trying to ferret out all the places that predators spend their time, without ever exhausting the list.  Even if we could target all of the jobs, what criminal penalty will frighten a business more than the prospect of a substantial jury verdict for failure to screen its employees?  We would be better advised to spend our efforts on educating employers and organizations that deal with young people.

The best I can say about this bill is that it doesn't hurt anything, and might keep legislators distracted from more dangerous activities, such as raising taxes.

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Legal blogs already are picking up on the study that I mentioned yesterday.  The normally-solid Sexual Abuse Claims Blog quotes one report that "child abuse can permanently alter the way your genes fight stress, leaving victims of childhood abuse more vulnerable to stressful events throughout their life."  

Let's all repeat one more time - the study looked at a grand total of 36 tissue samples.   To quote a neurobiology professor, "The bottom line is that this is a terrific line of work, but there is a very long way to go either to understand the effects of early experience or the causes of mental disorders."

If you run across an expert who makes this claim about the results of childhood abuse, take a good look at the studies they are relying on.  As one of my favorite literary characters said, "Wizards should know better."

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 The Journal of Mental Health Counseling has an interesting article discussing factors that help children recover from sexual abuse.  The focus of the article is "transgenerational trauma and child sexual abuse," but it has a very helpful section summarizing recent research into factors that aid a child's recovery from abuse.  Those factors include:

•  Self-perception.  When children think their pre-abuse lives were positive, they are more likely to have a positive self-image after the abuse.

•  Reaction of support network.  When adults around the child deny the abuse or support the perpetrator, children are at greater risk for negative symptoms.

•  Emotional support .  Children who receive support from their primary caregivers show fewer symptoms than children who lack that support.  One study suggests that maternal support is a more important factor than the nature of the abuse or the child's relationship to the offender.

Hat tip:  The Phrenologist's Notebook

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The new issue of Child Maltreatment has a provocative article arguing for treating exposure to domestic violence as a form of child abuse.  This argument is gaining credibility in the mental health circles, in light of so many studies showing how children who only witness domestic violence exhibit many of the same symptoms as children who are direct victims.  

The article is worth purchasing simply for the list of research studies showing the effects of witnessing domestic violence.  Any attorney or expert working on cases involving alleged or proven abuse should be familiar with that research.   As I noted in my post about a study released last fall, competent experts must be able to rule out domestic violence as an alternate cause of symptoms and/or damages in litigation.

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I didn't really intend for my theme this week to be child-on-child abuse, but a recent study certainly fits that topic.  The Internet Safety Technology Task Force has published its findings on "Enhancing Child Safety and Online Technologies."  Some of the conclusions did not surprise me at all, such as that the children most at risk are those who engage in risky behavior off-line (duh!).

The finding that has surprised most people, but is consistent with other research in the area, is that other youth pose a much greater danger than adults.  As the executive summary notes, "Sexual predation of minors by adults, both online and offline remains a concern. . . . Youth report sexual solicitation of minors by minors more frequently, but these incidents, too, are understudied, underreported to law enforcement, and not part of most conversations about online safety."

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The U.S. Supreme Court's ruled last week that  a student who has been sexually harassed can sue the school and individual administrators under 42 U.S.C. § 1983.  There has been plenty of legal analysis of the decision, so I decided to blog about the underlying problem of child-on-child abuse.

That particular case started when a kindergarten child told her parents that other children were coercing her into exposing herself on the school bus.  The parents were not satisfied with the school's response, and eventually sued.  This case is rare only in that it made it all the way to the Supreme Court.  Child-on-child abuse in youth organizations actually is more common than abuse by adults. The problem for supervisors is knowing how to respond.

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Prevention Science today released the results of a survey, funded by the CDC, that studied the effects of parent support programs.  The researchers found that when parents have access to information and help dealing with common parenting problems, the incidence of maltreatment falls dramatically.

The CDC has more information about the study and related links here.

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A day care employee in Illinois has been charged with murder for throwing a child to the floor, causing a fatal skull fracture.  It is impossible to know from the other details we have now, but this tragedy may have resulted from something as simple as a snap decision by a normally caring staff member.

Young adults often do not understand how easy it is to hurt children, even with seemingly-minor actions that would not affect an adult.  Day care centers need to constantly train their workers about the risks of corporal punishment and rough handling.  Enforcing the rules is important, but helping employees understand the reasons underlying those rules may prevent their forgetting them in a moment of frustration.

This is a terrible tragedy that never should have happened.

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The California Court of Appeals recently issued an opinion in a suit against a mandated reporter.  The plaintiffs were 5 children who were molested by a coach.  They sued the City of Livermore, claiming that a year before their abuse, a city police officer had investigated claims from a sixth child that the same coach had molested him.  Although the investigator concluded that the coach probably had abused the first child, he did not report the abuse to Child Protective Services or the district attorney, as California law required.

The plaintiffs claimed that, if the policeman had made that report, then the coach would have been arrested and their parents would have known to protect them from him.  The appellate court disagreed, affirming the lower court's conclusion that there was not enough evidence to accurately predict that a single report would have stopped the coach.

The real moral of this story, though, is that the city's win took a lot of time, energy, and money.  The plaintiffs filed suit in May 2005, and the city did not win until December 2008.  That is 2-1/2 years of motions and court proceedings.  Regardless of who won, it is a safe bet that only the lawyers really benefitted from all that activity.

A single telephone call might not have stopped the coach, but it certainly would have prevented this lawsuit.

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A MedWire News article tells of a study published recently in the British Journal of Psychiatry  testing possible links between childhood abuse and psychotic episodes in early adolescence.  It comes as no surprise that the study found a strong link between childhood physical abuse and later psychosis. What I found interesting is that the study also found a stronger correlations with childhood bullying and exposure to domestic violence than with  sexual abuse.  

The importance of this study for youth-serving organizations is that bullying can be every bit as damaging as the forms of abuse that we traditionally watch for and try to prevent.

For lawyers, the takeaway is that in litigation involving this sort of claim, we need to investigate domestic violence in the home and bullying at other venues.  Our expert witnesses need to address those issues, and either rule them out or account for them as complicating factors when assessing damages.

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A school principal in St. Louise has been convicted of a misdemeanor for failing to report possible abuse.  Mr. Sirna was investigating the claims, and believed that he needed to have more information before calling police.  The prosecutor, jury, and judge disagreed.

I am sympathetic to the desire to investigate claims in-house, and am skeptical about the wisdom of the "call first, investigate later" motto.  Even though I have worked as a prosecutor and social worker, I am not convinced that child protection workers or even police investigators can investigate a claim better than an experienced school principal.  But the law is what it is, and most mandated reporter statutes do not leave much leeway for internal investigations before reporting a child's claims.  Don't put your career on the line -- call first and investigate later.

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The Lancet has published a series of very interesting articles on child maltreatment.  In one of the articles, a group of doctors and psychologists from the UK, USA, Canada and New Zealand reviewed various programs to prevent and treat abuse.  They concluded that the sexual abuse treatment with the most research support  is trauma-focused cognitive-behavior therapy (CBT).  They noted weaknesses in many of the studies of CBT, but noted the consensus that CBT "should be considered as the first-line treatment for sexually abused children and their families."

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Scott Carroll and Mark Hoekstra have published the final report of their ground-breaking and controversial  study into how domestic violence affects, not only the children in the home, but those children's classmates.  The New York Times highlighted the working paper  this past summer, and it has reverberated ever since around the Internet and among social services professionals.

The study concluded that children from families filing domestic violence claims "significantly decrease their peers' reading and math test scores and significantly increase the misbehavior of others in the classroom."  Thus, "any intervention that reduces family conflict may well have larger positive effects than previously thought."

This study has profound implications not only for schools, but for public policy.  I generally dislike calls for public funding of this or that pet project, but child abuse prevention is one area that needs much more money, both public and private.  If the implications of domestic violence are as profound as this study indicates, then proven programs that reduce that violence are a wise, even necessary, investment.

Hat tip: Children and the Law Blog

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In my last post about responding to abuse allegations, I recommended notifying parents about allegations.  A friend emailed to point out that law enforcement and licensing authorities often want to be the first people to contact parents.  The investigators try to persuade or coerce organizations into not notifying parents, often going so far as to threaten obstruction of justice charges.

It is true that, once law enforcement or licensing authorities are involved, you should cooperate with them.  However, I also believe that you should not let anyone else, even a lawyer, run your program. Lawyers, law enforcement, and licensing authorities tend to share two common characteristics: (1) we know our field very well, but we know very little about how our advice impacts your day-to-day business, and (2) our advice invariably makes our jobs easier than it makes yours.  So, listen to our advice, but do not be afraid to point out when it is going to complicate your life, and to work with us to adapt it to your particular circumstances.

Those principles apply particularly to high-profile or emotionally-charged incidents.  The last thing you want is to have parents learn about accusations from the grapevine instead of from you.  So, if the grapevine is getting ahead of the law enforcement or licensing investigation, let the investigator know.  Work with your lawyer to get a statement out as soon as possible.  I sometimes help my clients draft a letter, then send it to the investigator with the explanation that the organization is fielding questions that it needs to answer, and that if we do not hear to the contrary within the next X days, we will assume that the investigator has no objection to our sending out the enclosed letter.

Above all, remember that you have both an obligation not to interfere with the investigation and an obligation to talk to parents about their child.  In situations like this, where you can get into trouble with someone no matter what you do, I always recommend going with the option that lets you sleep at night.

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My earlier posts about reporting abuse and notifying parents prompted a couple of clients to ask me how they should respond if they suspect or are told that a child in their care has been abused.  While I can't give legal advice about hypothetical situations, I am happy to pass on principles that I have learned over the years from experts with whom I have worked.

•  The first rule is to take the report seriously.  Even if you have good reason to question the credibility of the child or staff member reporting the abuse, treat the report as valid.  This principle does not mean that you should jump to the conclusion that the accused person is guilty.  You do need to reserve judgment until all of the facts are in, but you also need to treat the person reporting the abuse with respect and listen seriously to their story.

The other principles follow naturally from this first one:

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I received a call recently from a friend asking for suggestions about an upcoming deposition of a child eyewitness to an accident.  Like all good bloggers, I decided to share my thoughts here.

Guidelines & Protocols

The first thing I always recommend to people preparing for a child's deposition is to read several of the many good publications about forensic interviewing of children.  Not everything in those guidelines will be relevant to your case, and most of them are geared toward sexual abuse investigations, but the guidelines synthesize many years of study and experience about how best to ask children questions about specific events.  Some of the publications I recommend are  the NIHD Interview Protocol (also explained in the Journal of Law and Contemporary Problems), theAPSAC Practice Guidelines on Investigative Interviewing, and the Michigan Forensic Interviewing Protocol.

UPDATE:  A friend pointed me to another good resource, Children in the Courtroom, published by NITA.

The next thing I recommend is . . . 

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A man under indictment for child abuse has sued both the parents of the alleged victim and the day camp where he worked.  He claims that the camp injured his reputation by sending 1500 emails to parents, notifying them of the charges against him.  A spokesman for the camp said that he had spoken to parents of children who had come in contact with the counselor, and sent an email to the rest of the parents in response to rumors.  

He said, "It was an e-mail that went out to our clientele and it stated very clearly that it was an accusation. There was no added information."

If the email was as limited as the spokesman claims, I cannot see any basis for the suit.  I often counsel clients in similar situations to notify parents sooner rather than later.  The camp's primary obligation is to its campers, and parents, particularly those whose children might have had contact with the accused counselor, have a right to know about any accusations.  The notification, of course, needs to be limited to the simple facts that an allegation has been made, that the counselor has been suspended or otherwise isolated from contact with the camp's children, and that the camp is cooperating with authorities.  Any editorializing or speculation definitely will get you into trouble.

Even if the camp ultimately prevails in this suit, defending it will take a lot of energy and money. Let's hope it has a good liability policy that covers this sort of claim.

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One of the most controversial questions I encounter in litigation involving children is predicting the costs of future mental health treatment.  Everyone agrees that children who have suffered a trauma need therapy, but few people agree on what sort of therapy or how much.  The American Journal of Preventive Medicine recently published a study concluding that only cognitive behavior therapy (individual and group) has been proven to be effective.  (Hat tip: Anxiety Insights blog). 

Defense attorneys will like this study for the same reason that plaintiff's attorneys will be skeptical - cognitive behavior therapy  requires only 8-12 sessions.  It may need to be repeated periodically at developmental milestones, such as puberty, but it does not require long-term, ongoing therapy sessions.

Other therapies that I often see recommended, such as intensive psychoanalysis or psychotropic medication, are simply not yet proven.  I have yet to see a Daubert challenge to such recommendations, but more studies like this one certainly would support one.

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The Department of Justice has issued a report evaluating the effectiveness of Child Advocacy Centers in responding to allegations of child abuse.   I was surprised to see that the CACs did not significantly reduce the number of interviews of child victims or increase the number of children who received mental health services.  The report speculated that better education of professionals in the field may have been so effective that other programs are now as aware as CACs of the need for limiting interviews and referrals to mental health services.  The CACs did seem to be less stressful for the child victims.

I strongly support CACs (and serve on the board of our local center), for a lot of reasons that are hard to measure in this sort of evaluation.  Nevertheless, the report has some excellent recommendations, such as increased access to mental health services, that every CAC should take to heart.

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A principal in St. Louis recently was sentenced to two years probation and 200 hours of community service for failure to report suspected child abuse.  It is difficult to tell from the news report exactly what this principal knew and why he failed to report, but such prosecutions are not rare.  Even where the teacher is acquitted, the court process can be brutal.  The safest course of action is to report suspicions or allegations to law enforcement authorities, and keep documentation of the report.

Every U.S. state and territory has passed laws requiring most professionals who work with children to report suspicions of child abuse.  These "mandated reporter" laws cover a wide variety of professions and knowledge.  The federal government has a searchable database where you can check for the laws of your particular state.

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Experts long have considered sexualized behavior in children to be a strong indicator of sexual abuse. Some behavior (masturbation, exhibitionism) is part of the normal developmental process, but other behaviors seem to occur significantly more often in children who have been sexually abused.

But according to a study reported in Child Maltreatment, physical and emotional abuse may cause the same behavior.  The researchers followed children at risk for physical or emotional abuse, but who had no reports of sexual abuse.  They found that children who had suffered either physical or emotional abuse exhibited more sexualized behavior than non-abused children. "Findings suggest that maltreatment other than sexual abuse, and the developmental periods in which is occurs, may be linked to the development of sexualized behaviors."

The abstract (free) and full text (minimal charge) are available online.

Lawyers handling cases with claims of sexual abuse need to be aware whether the respective expert witnesses have investigated the possibility of emotional or physical abuse in a given case.  It is one of those questions that need to be asked, if only to rule it out as a possible cause of the child's symptoms.

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Another school has been slapped with a lawsuit after an employee was arrested for molesting students.  This story is depressing, but also intriguing (at least to lawyers) because of the legal basis for the suit.

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