By Amanda Kay, JD, and Ryan L. Gonda, JD
Children and adult victims of violence and abuse are routinely called upon by police, attorneys, advocates, and judges to be witnesses and to tell their stories. But many victims lie or recant their testimonies.
Often victims’ stories change over time; they might recant their original testimony. And when a victim who initially described abuse later withdraws the allegations, minimizes them, or expresses confusion about what happened, police, attorney and judges often conclude that the victim lied.
Truth, however, is very rarely the issue. In child abuse cases, it been reported that nearly 75% of sexual abuse victims initially deny abuse and that nearly 25% eventually recant their allegations. Many reasons have been identified for the relatively high percentage of adult victims who fail to press charges, refuse to cooperate with prosecution, or do not pursue protection orders.
Distrust of the system
Adult victims may choose to forgo the courts because they think the justice system is ineffective, which is supported by confusing procedures, lack of information provided to the victims about their cases, lack of support in meeting the demands of the system (e.g., transportation, time off work, and child care), frustration at the slow progress of the proceedings, concern about losing custody of any children, and fear that the abuser still has access to the victim while proceedings are pending. Victims who report abuse to the court or police do so because they believe they will be safer. If that safety does not materialize, or if the report and ensuing proceedings worsen the danger, the victim no longer has any motivation to pursue court‐based remedies. A victim who encounters disbelief and skepticism (i.e., victim-blaming) when attempting to make a report will have no reason to report future abuse. A victim’s lack of belief in the justice system’s ability to provide safety should be of grave concern to all involved.
A child victim who has been placed in foster care or group homes for several years may have learned how to “work” the system to survive in their current placement or seek better permanent placement options. The child’s original story of their abuse may change, future abuse may not be reported, and the severity of the abuse could be diminished depending on perceived benefits from the court. Older foster children, especially those with a history of multiple placements, have been known to develop a heightened distrust of the court system if it has ignored their previous reports of abuse. The victims’ distrust of the system can diminish the accuracy of their testimony and even their willingness to provide testimony.
Victims, especially adult victims, recant their testimony because they’re afraid of retaliation, especially when abusers are frequently not incarcerated and still have access to the victim; economic hardship caused by the absence of the primary (and often sole) income‐earner; threats to get custody of the children by painting the victim as crazy or unstable; or even threats to the children themselves. Other reasons seem less intuitive: love, attachment based on a shared history, and hope that things could be better in the future. This may be difficult to understand – how can a person love someone who hurts and abuses them? But studies show that victims cite loss of love more frequently than fear and lost income. Appeals by abusers still in contact with their victims (whether allowed or not) are usually not to the victims’ fear but to their sympathy. They say things such as: “I miss you”, “I miss the kids”, “I miss our life together”, “We can’t let “them” come between us”. And they invoke memories of happier times, and promise to change.
Child victims are commonly asked to testify in presence of their abuser. Research suggests that loyalty to family members, or fear of their reaction to abuse allegations, may contribute to denials, recantations, and reluctance to disclose. Court hearings can be a very traumatic experience for children and can elicit many adverse reactions that limit their testimony. Victims of sexual abuse often experience symptoms of post-traumatic stress disorder (PTSD). Children with PTSD often enter an “avoidance” phase, in which they deny abuse or recant because they cannot cope with the anxiety. Child victims may also be reluctant to cooperate with authority figures because they have experienced complex trauma resulting from abuse at the hands of a trusted adult.
Children’s lack of physical, cognitive, and emotional development may make it difficult for them to relate to or understand court proceedings. Legal professionals often phrase their questions in a complex manner or with legal terms such as “severance” of parental rights and “adjudication” of the matter. The nature of the proceedings can confuse children and lead to ineffective testimony and minimize participation in court hearings.
The limitations of child witnesses in court may also be based on the degree of reliability unfairly placed upon them by the judicial system. During the mid-1980s, the McMartin, Fells Acres and Wee Care cases caused a public uproar over shocking claims of child abuse in daycare centers, claims that were later rebutted when many of the defendants were acquitted. Despite the basic presumption that all witnesses are presumed competent regardless of age, this wave of unsubstantiated child testimony had a damaging effect on the reliability of child witnesses.
Victims struggle to retell their stories of abuse and violence for a multitude of reasons. Some of the reasons discussed above, particularly those based on emotional attachment, may not be effectively addressed by the justice system. However, the justice system should consider improving court practice by first understanding the motivations behind the testimonies of children and adult victims and then by providing sufficient support and community services.
The judicial system benefits when children answer questions and can be evaluated by fact-finders, regardless of whether the child is a witness in criminal, delinquency or dependency court, or, on occasion, in divorce or other civil proceedings. Courts should recognize the necessity of accurate testimony from child victims and their limitations as witnesses and institute appropriate training and policy for all people who participate in the system.
Courts can improve the system by allowing alternative means for child victims to testify. Courts can allow children to testify in judges’ chambers with their attorney present;,use video technology to record the child’s testimony, or temporarily exclude parents/guardians from the courtroom. A few courts have allowed a support person or a court-approved therapy dog to accompany the child witness on the witness stand or in the courtroom to provide comfort and consistency.
A good first step for a court that is seriously committed to becoming trauma-informed is to conduct a trauma audit – i.e., look at all of its procedures through a trauma-informed lens. This evaluation will provide information on the court system’s strength and weaknesses in how it responds to trauma, as well as recommendations for improvement specific to that court.
Examples of such improvements could include training for all court personnel – judicial officers, bailiffs and security, clerks, judicial assistants, front-desk staff, and others – on best practices in assisting trauma victims; safe, separate waiting areas for victims until their case is called; enforcing protection orders to ensure that safety is reinforced as a priority and abusers are held accountable; and allowing an advocate or other support person to sit adjacent to the victim in court.