Youth Services Law

Questioning a Child: A Case Study

Upset child sitting on a couch in front of adult

A military court of appeals recently made headlines when it dismissed child abuse charges against a Marine colonel. The very thorough opinion provides a good case study in the difficulties of interviewing young children. In both my experience as a civil lawyer defending youth organizations and my past life as a criminal prosecutor, I have seen inadequate interviews so taint a child’s disclosure that it becomes impossible to know what actually happened.

In the Wilson case, the child’s disclosures followed a frequent pattern. The child’s first disclosure was to her mother, in response to direct questions. At trial, the parents denied that they asked any more questions before the forensic interview. However, two other daughters testified that the parents convened a family meeting and asked all of the girls “a lot of questions” about whether the accused had improperly touched them. Of course, it would be natural and not at all improper for parents to ask other children if they also had been victimized. Unfortunately, a parents’ well-intended questions often can taint a young child’s recollection of events. Then forensic interviewing, proceeding on the premise that the child already has disclosed abuse and seeking to confirm the disclosure, can compound the problem.

The military appeals court concluded that it could rule out inadvertent tainting of the child’s disclosure. First, the mother’s testimony that the child’s disclosure was spontaneous contradicted her earlier statements. In her account to investigators immediately after the disclosure, she said that she (the mother) was the first person to use the term “touch,” and that her daughter twice said that the accused did not touch her before finally saying that he did so.

Second, the child gave conflicting information to different questioners. In a forensic interview shortly after her conversation with her mother, the child gave contradictory answers about where she had been touched and how many times. Concerned about the quality of the first interview, the government conducted a second forensic interview eight months later. In that session, the child disclosed only one incident, and she included details that directly contradicted her disclosures in the first interview.

I have handled these cases as both prosecutor and civil attorney defending youth organizations, and there is no easy solution to this dilemma. Parents naturally and rightly are concerned about the possibility of abuse, and professionals care about stopping perpetrators. Younger children, however, do not understand the import of their statements, and their memories do not work the same way as older children and adults.

As the military appeals court noted, expert witnesses agreed that when an adult introduces a new fact into the discussion, a young child is likely to agree with the adult — not because the fact is true, but because young children want to please adults. Interviewers also can inadvertently affect a child’s account by asking the same question multiple times. Children tend to think that the adult is asking the same question because their first answer was wrong, so they change their answers until they give the one that the adult wants. On the other hand, children often give incremental disclosures of abuse, giving more details with each disclosure. Understanding how to elicit phased disclosures without tainting a child’s account requires good training and skill.

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