How valid is a child’s credibility?
In alleged child sexual abuse cases before the
courts, there is seldom any corroborating evidence and the cases hinge on the
statements of young children. Although the sexual abuses alleged sometimes seem
bizarre and improbable, adults are inclined to accept them as true since to
them, it seems impossible that a child would lie or fantasize such detailed
accounts of sexual
abuse by an adult.
When
children are subjected to multiple formal and informal interviews, sessions of
therapy, and interactions with police and social; workers along with their
parents who believe that the abuses are real, the adults inadvertently shape,
mold, and reinforce the stories and drive children into believing their own stories
of abuse. When this happens, the child is likely to internalize the details and
believe in the truth of the stories. Understanding this process of social
influence is central to assessing the credibility of children's testimony. Of
course, a great many of children’s accounts of sexual molestation on them by
adults are actually true.
In cases involving allegations of
sexual abuse of children, there is seldom any corroborating evidence and because
of that fact, such cases hinge on the statements of the young victims. Although
sometimes the sexual abuse alleged appears to be highly improbable, adults must
consider that the allegations might actually be true. In evaluating such cases,
it is necessary to carefully have the child explain the sequence of events. The
circumstances surrounding the original disclosure and the contact the child has
had with the suspected adult must be recorded in writing along with the
statements reportedly made by the child as the case progresses.
There was a time in Canadian history that any allegation of sexual abuse
by an adult against a child had to be witnessed by a third person before an
criminal charge could be brought against the suspected abuser. That no longer
applies anymore. The law in Canada now is that the word of the child (if
believed) is sufficient.
Now I am going to tell you of a Canadian case in which the children who
claimed that they were sexually abused by their father weren’t believed by the
trial judge. The names of the children and their mother are not written in this
article for the children’s protection. I will only identify the children with
initials. The accused father however will be identified as “the accused” and the
children’s mother as “the mother”.
The accused initially began a relationship with the
mother in the summer of 2001. He had two children of his own from a prior
relationship with another woman. They were JG, a daughter and HG. a son. The
mother had two daughters: TF, born in 1995, (now 20) and KF, born in 1996, (now
19). She brought her daughters, TF and KF, to live with the accused on his
ranch in 2002. The ranch was also the location of the accused’s family peat
moss business. Throughout the cohabitation, the accused saw his two biological
children; JG and HG every second weekend. They stayed overnight with the accused
and the mother and her two daughters, TF and KF.
The relationship between the accused and the
mother ended in October of 2003. At the time of their separation, the mother
was three months pregnant with the accused’s child. The mother and her two
daughters, TF and KF left the shared home and moved into a condominium. The accused
no longer resided with them, but he did see the children often, particularly
after his son (CG) with the mother was born. In November of 2004, the mother’s
daughter, KF, who was by then eight years old, began exhibiting changes in her
behavior. She became anxious, difficult and often angry. She moved in with her
biological father in 2006. The accused continued to have contact with the
mother’s other daughter, TF and his biological son, CG. He also had contact with his two other
children (JG and HG) on weekends. The two families lived in various residences
between 2003 and 2010.
The children complained about this man’s sexual
abuse against them many years later and he was put on trial.
TF testified about a number of incidents that
occurred while the family was residing together between 2001 and 2003. TF
stated that on one occasion the accused was lying on a bed watching a film with
TF, KF, JG and HG. At one point she reached back to touch what she thought was
KF’s foot, but it was in fact the accused’s erect penis. The accused also
touched her side and her hips and placed his hand between her legs during this
incident.
At the accused’s ranch, he would operate a
track-hoe to recover peat moss from the fields. TF said that she would go with
the respondent in the track-hoe to gather peat moss, and as there was only one
seat in the machine, she would sit in front of him between his legs. On more
than one occasion, he ground his erect penis against her while he was operating
the track-hoe.
TF said that she also accompanied the accused on
delivery trips, during which he drove a semi-trailer truck to deliver peat
moss. Inside the truck during these trips he would take out his penis and ask
TF to touch it and look at it. TF also said that she put the accused’s penis in
her mouth on his instructions on more than one instance and that he ejaculated in
her mouth on at least on one occasion.
TF further testified that the abuse against her occurred
at a house the accused was renovating. The house belonged to the accused’s
sister and was unfinished. He would leave TF in one room in the house while he
was renovating other parts of the structure. When he was finished working for
the day he would come into the room and kiss and touch TF over her clothes.
This happened on more than one occasion.
TF also said that the respondent touched her
vaginal area on three or four occasions when he tucked her into bed. There were
also an indeterminate number of occasions when he asked TF to remove her
clothes or removed her clothes himself, had her lay down on the bed and
performed cunnilingus on her. The respondent also took baths with TF and
touched her breasts and vaginal area. TF also said that the respondent had a
purple metal vibrator and would ask TF to touch her vaginal area with it. This
only occurred when TF and the accused were alone in the home together.
TF recalled being in a house with the accused at some point
between 2004 and 2006. She testified that he played pornographic videos and
asked her if she had any questions about what she was seeing. She did not
believe they were wearing any clothes when this happened. She also testified
that on one other occasion in this house, the accused put pudding on her
nipples and stomach and tried to lick it off.
Finally, TF testified to an
incident after late 2004 or early 2005. TF said that one evening while the
respondent was babysitting her and his son, CG, the accused followed TF to the
laundry room in the basement and told her he wanted to try something. He then
pulled her pants down, turned her against the washer, undid his pants and tried
to put his erect penis into her anus. She told him to stop because it hurt a
lot and she was bleeding. He stopped and they returned to babysitting as if
nothing had happened.
KF, who is TF’s sister, was the second complainant. She testified
that the accused also assaulted her in the home he was renovating. She
testified that this occurred on one occasion when she was eight or nine years
old. The respondent performed cunnilingus while she was lying on a bed in a
room of the house.
KF also testified to another incident that happened either once or
twice when she was eight or nine years old and living on a farm. KF claimed
that the respondent touched her while he was babysitting her at the farm house.
The final complainant was JG, the accused’s biological daughter.
JG claimed that when she was about five years old and at the accused’s house, he
would lie down behind her when she went to bed and grope her crotch area over
her pajamas.
At some point in the fall or winter of 2009, TF
and KF were at their mother’s house in a hot tub with friends. They discussed
the fact that both of them had been touched inappropriately by the accused. KF
apparently first told her sister, TF, who then acknowledged that she too had
suffered similar abuse. TF encouraged KF to speak out and to tell their
biological father, but she did not want to be involved and did not want to be
mentioned as a victim.
In September 2010, the two victims finally
informed their biological father of the abuse. Shortly thereafter they went to
an RCMP detachment to provide separate statements. The accused was arrested on
October 1, 2010.
In May of 2011, TF returned to the RCMP to give a
second and more detailed statement. She had left out what she felt were the
most embarrassing details in her first statement.
In court during the preliminary inquiry, she admitted that she suspected the statements
provided up to that point “were not enough” and “would not amount to anything”,
and that failing to give the full details “would hinder everything we were trying
to accomplish.” She clarified that they were trying to get the accused to
realize that what he did was not right and he should never do it again.
TF also testified at the preliminary inquiry that
she heard something about the charges “going out the window” and returned to
the RCMP for the second statement in order to ensure the authorities had the
full story. At trial she could not recall whether she actually heard anyone say
that the charges were going “out the window” or if she drew that conclusion
based on the fact that her sister had not spent much time with the RCMP when
she gave her statement. In any event, TF wanted to provide the full details
because her sister had not given a very long statement, and because she felt
that it was not right to hold back as much as she had.
Five months later, in October
2011, JG provided a statement to the RCMP. She disclosed that she was also a
victim of sexual abuse. She testified that the reason for the timing of her
statement was because she was no longer afraid of the consequences of
disclosing the abuse.
The accused testified and denied all the incidents as never
happened.
As you are probably aware by now, this is a case in which
there were no witnesses to the abuses so it came down to who the judge should
believe. If the judge believed the victims, then the judge would remand the
accused and set the matter down to a full trial. If on the other hand, he
didn’t believe the victims, then he would dismiss the charges and the accused
would be free to go.
The judge carefully reviewed the evidence before
him in his written reasons. He noted that the case came down to issues of
credibility between the accused and the three complainants who had been
testifying about events that took place when they were very young.
At the first step of his analysis,
the judge had concerns with the accused’s credibility. He concluded that he was
not left in reasonable doubt by the accused’s evidence, and suggested that he
must move to the second step in the analysis. However, the first two steps in
analysis had already been completed at this point. The judge then went on to
consider the remainder of the evidence and expressed a number of concerns with
it.
He noted that TF’s allegation
of being ground against in the peat moss track-hoe was disproven by
photographic evidence of the track-hoe’s interior. He also noted that there was
no medical evidence to support the complainants’ allegations, although he
acknowledged that this was normally the case in historical sexual assaults and
that the only incident that could have given rise to such evidence was the
attempted anal penetration of TF.
The judge also found troubling
TF’s statement that not providing a second statement to the RCMP “would hinder
what they wanted to accomplish.” The judge stated that there was no
clarification of who “they” were, or whether “their” goal was more important
than telling the truth.
The judge further noted
inconsistencies between the complainants’ description of the homes they lived
in and the actual set-up of those homes at the time the abuse was occurring. He
found that they were unable to recall some of the more “innocuous things” such
as when they lived at certain places, or where they were going to school at the
time of the events.
Keep in mind that when those events took place, the
complainants were very young.
Finally thejudge stated: (and
this is the crux of this matter before the court)
“With the
alleged number of sexual assaults that the accused allegedly committed over a
period of time, one would have thought that any one of the complainants might
have mentioned the incidents to someone in passing. None of them testified that
the accused threatened them if they said anything. Nor did any of them testify
that the accused said not to tell anyone. Accordingly, one might have
reasonably thought that something might have come out. If they thought it was a
game (or playing), or if they were confused, or if they were uncomfortable, one
would have thought they might have mentioned this to their mothers or some
other care giver. They said absolutely nothing to anyone while these events
were allegedly happening.” unquote
It is not unusual for young
children who have been sexually abused to keep silent about what happened to
them. I know a man who when he was young, was sexually molested by his father
and later when he lived with a foster father, he was sexually abused by that
man also. When the Children’s Aid asked
a psychiatrist to interview the boy, he refused to tell the psychiatrist
anything whatsoever about the abuse he has been subjected to. It wasn’t until
he was in his late twenties that he finally told someone.
The trial judge concluded that of all the
evidence he heard, he was left with reasonable doubt and he acquitted the father
of his victims. The judge’s decision
was subsequently appealed.
The
main issue in the appeal was; “Did the judge apply the wrong legal test in
his assessment of the timing of the complainants’ disclosure of the abuse?” In
other words, was the fact that the children chose not to report the incidents
of sexual molestation to anyone when they were young mean that they were not to
be believed?
The judge was wrong
when he came to that conclusion. He
relied on discredited myths and stereotypes about the timing of disclosure of
sexual abuse, particularly by children.
Their delay in disclosure, standing alone, is not an appropriate
credibility consideration and subsequently, the judge erred in concluding that
the delay affected the complainants’ credibility.
The doctrine of “recent complaint” established a
presumption against the credibility of a sexual assault complainant who failed
to disclose the assault immediately after it occurred. That presumption has
been criticized for relying upon the stereotype that victims of sexual abuse should
have reported the incidents of sexual abuse soon after they occurred. That was
also the view of the Supreme Court of Canada. That doctrine has long been
removed from Canadian law by section 275 of the Criminal Code. The law is clear that no
presumptive adverse inference may be drawn against a complainant who does not
disclose sexual abuse immediately.
This does not mean that no consideration
whatsoever can be given to the timing of the disclosure of abuse. There can be
exceptions. But generally, delays in reporting the sexual abuses are not held
against the victims who are seeking justice. Recently in Canada, a famous radio
host of a radio show was accused of
molesting women and when the disclosure became public, other women who were
abused years earlier were asked to go to
the police and tell their stories to them also. He has subsequently been
charged with those crimes also.
No inference should be drawn regarding a
complainant’s credibility that is based on assumptions about how a victim of
sexual assault is supposed to react to the assault. The Supreme Court of Canada
has made it very clear that sexual assault cases should be decided without
resorting to folk tales about how sexual abuse victims are expected to act
after suffering from the trauma by people who have never suffered from the
trauma of sexual abuse. That is because itt
cannot be assumed that sexual assault victims will react to abuse in any
objectively identifiable way.
Further, The Supreme Court of Canada has ruled
that while recognizing that courts must carefully assess the credibility of
child witnesses, a flaw, such as a contradiction in a child’s testimony should
not be given the same effect as a similar flaw in the testimony of an adult. As
well, the Supreme Court of Canada has recognized that some inconsistencies are
minor and some are more significant. As well, it said that “many of the
inconsistencies may be explained by reference to the fact that a young child
might not be paying particular attention to certain details that occurred
during the time of the sexual assault.”
Although the trial judge stated the correct legal
principles for assessing the evidence of children, he did not apply them. He
stated that he was not concerned about the details, such as a description of
the places where the events occurred or how they occurred. And yet, he
nonetheless found the complainants less credible for failing to recall
‘innocuous things’, such as precisely when they lived at certain places or
where they went to school at specific times. Although the complainants were
young adults at the time of the trial, their recollection of specific details
regarding their lives as children should not have weighed so heavily in the
trial judge’s assessment of their credibility. This error also may well have
affected the outcome.
I should also point out that in Canada, there is
no statute of limitations with respect to crimes of a sexual nature.
The court of appeal in considering the same
position I have reached in this article has subsequently ordered a new trial
for the father. I don’t intend to suggest how much of the evidence of the
complainants will be accepted at the new trial before a different judge but I
am convinced that some of it will be accepted and the father will serve
considerable time in prison for his egregious conduct against his children.
When I learn the outcome of that new trial. I will publish the verdict at the bottom of this article as an UPDATE.
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