Abused: Can You Tell?

Courts continue to demonstrate uncertainty about exactly what the behavioral sciences can contribute to sorting out allegations of child sexual abuse. Two recent cases provided more direction and guidance for the admissibility of expert input. But both State v. Stowers and Irving v. State force us to ask, can we tell when a child is sexually abused? In State v. Stowers, the defendant was charged with raping four of his children. Each of them testified at trial. Two of the children recanted, while one of the children who originally denied the abuse testified that the rape had in fact occurred. The fourth child's testimony was inconclusive. Enter the expert witness, an experienced clinical psychologist named Dr. Robin Tener.

The trial court allowed Dr. Tener to testify that the behavior of the children who changed their stories was consistent with the behavior of other children who had been sexually abused. Stowers was convicted of raping all four of his children.

The court of appeals, which affirmed Stowers conviction certified a conflict of decisions to the Ohio Supreme Court for review. At issue: Did the expert's opinion that the behavior of a child is consistent with the behavior of other sexually abused children, impermissibly convey to the jury the expert's belief that a child was actually abused?

Wordsworth Irving's case presented a slightly different quandary—and a different outcome. He was convicted of sexual battery and lewd assault of a child under age 12. This after attempting to suppress any expert testimony that tended to demonstrate that his victim's behavior was consistent with that of a child who had been sexually abused. Mr. Irving sought to have such testimony evaluated in accordance with Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) for the purpose of determining its admissibility.

Both prongs of Irving's motion were denied. Dr. James Hord, a clinical psychologist, later testified that the alleged victim exhibited symptoms that were consistent with a child who had been sexually abused. Dr. Hord explained how he had utilized specific psychological tests, the kinetic family drawing test and projective story-telling cards to reach his conclusions. The psychologist spoke of how he found these tests especially reliable, and used them with 95 to 98 percent of the children he sees.

Fyre Hearings:

Generally required where a party seeks to admit new or novel scientific evidence. In such cases the proponent must demonstrate that the evidence is generally accepted within the relevant scientific field.

Irving was convicted. He appealed the decision.

Holdings: In State v. Stowers, the Ohio Supreme Court held that an expert witness' testimony that a child's behavior is consistent with behavior observed in sexually abused children was admissible. Basing its decision on several sections of the Ohio Rules of Evidence (Evid R. 702 & 704), the court stated an expert could convey his opinion that the child in question was actually abused—despite the fact that this testimony embraces an ultimate issue of fact. The court also allowed expert opinion based upon the observed behavior of a child rather than upon the expert's belief in the truth of the child's statement.

Even though a child sexual abuse syndrome is not yet recognized by the behavioral sciences, reversal was not warranted, wrote Justice Cook. Dr. Tener's testimony, distinguished as based on experience and education as opposed to scientific testing, was admissible. Mr. Stowers' conviction was affirmed.

However, in Irving v. State, the appellate court held that the admission of the State's expert's testimony was harmful error and remanded that case for a new trial. Judge Mickle's opinion drew heavily from Hadden v. State, 690 So. 2d. 573 (1997), which distinguished pure opinion testimony, based solely on the expert's experience and training, is not subject to the Frye standard. The court concluded that Dr. Hord's use of projective tests in this case introduced diagnostic standards which went beyond "pure opinion." This "scientific-expert testimony" rather than "pure opinion testimony" thus required the trial court to conduct a Frye hearing. The ruling in Hadden that child sexual abuse accommodation syndrome (CSAAS) had not been proven to be generally accepted by a majority of psychological experts also doomed the testimony of Dr. Hord. The court in Irving, noting the expert's testimony was based upon the inadmissible CSAAS, ruled that admission of this testimony constituted reversible error.

Professor Crump comments: The role of a scientific expert witness in Frye has been to assist the trial judge in identifying the relevant scientific community and to report what the majority of scientists in that community think about the conclusions of the scientific test and principles at issue. In other words, courts do not independently assess the scientific reliability of Frye evidence-they simply take a scientific head count.

Although this sounds straightforward enough, courts across the country have come to different conclusions when they have attempted to apply. Frye outside the areas of the purported "soft' sciences, such as psychiatry, sociology, economics, or even engineering. These sciences are called soft only because their results are not always susceptible to verification by the so-called scientific method, at least in the view of some courts. Courts currently disagree not only as to what constitutes scientific, technical or specialized knowledge in this area but also to which these categories Frye should apply.

This nationwide judicial murkiness is reflected in Irving and Stowers. Of the two, only Irving involves the admissibility of what is loosely called profile evidence.

When profile evidence is offered, it usually involves an expert testifying that a person-such as the victim in the case-exhibits behavioral characteristics consistent with individuals who have suffered the same trauma. From such testimony, the prosecution then argues that the victim was indeed telling the truth when she said she was sexually assaulted. The problem with profile evidence is that the behavioral characteristics exhibited by abused children are also exhibited by non-abused children. Courts under Frye are therefore reluctant to admit such testimony unless there is general acceptance among psychologists as to whether the symptoms point uniquely to abuse. In the case of child sexual abuse, there is no such generally accepted psychological test-at least according to the court.

Unlike in Irving, the Stowers expert testimony does not conclude that the child was abused because she exhibits symptoms of abuse. It simply assists the jury in evaluating whether their normal tendency to view such behavior as indicative of a falsehood is appropriate. The Stowers court, therefore, holds that such testimony need not be based upon what the court categorizes as the psychologist's observation and experience, a much lower standard of admissibility.

Irving and Stowers, illustrate how courts are in a muddle when it comes to determining the admissibility of scientific evidence in cases involving psychological testimony. There seems to be no overarching explanation in either case as to which part of psychologists testimony is scientific as opposed to technical or based upon specialized knowledge, and how a court makes those distinctions. Furthermore, why should Frye not apply to all psychological testimony? Neither case gives attorneys nor expert witnesses much guidance. The cases do, however, illustrate how admissibility of psychological testimony depends to a large extent how the offer is made, for what purpose, and in what jurisdiction. This means lawyers must know how courts in their jurisdiction view admissibility of psychological evidence and be willing to lay the proper predicate. Experts must be prepared to educate the lawyer and the court as to the underlying reasons-scientific or otherwise-his testimony is reliable. And no one should be surprised by inconsistent and unpredictable rulings.

William Foote, Ph.D.

Forensic Psychologist