Written by Amanda Kay, JD, and Ryan L. Gonda, JD
Published in conjunction with the National Council of Juvenile and Family Court Judges
Children and adult victims of violence and abuse are routinely called upon by the judicial system to be witnesses and relay their story to police, attorneys, advocates, and judges. This article examines the prevalence and potential motivations for why victims “lie” or recant their testimonies and provides recommended improvements to court practices.
Often the victims’ story changes 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; a common conclusion is 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 of the perceived lack of effectiveness of the justice system itself: confusion at the 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, in fact, the report and ensuing proceedings worsen the danger, the victim no longer has any motivation to pursue court‐based remedies, and 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 congregate care for several years may have learned how to “work” the system in order 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 based on perceived indifferences or inaction by the court concerning 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.
- Emotional motivations
Victims’ recantation of their testimony, especially adult victims, can be based on fears that are intuitive to outsiders: fear 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. Others seem less intuitive: love, attachment based on a shared history, and hope that things could be better in the future. It may be difficult to understand this latter group of reasons – how can a person love someone who hurts and abuses them? – but studies show that they are cited by victims 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 – 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, promising 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) and children with PTSD often enter an “avoidance” phase, in which they deny abuse or recant because they cannot cope with the anxiety. Furthermore, the child victim may be reluctant to cooperate with authority figures because they have experienced complex trauma resulting from abuse at the hands of a trusted adult.
- Cognitive impairments
A child’s lack of physical, cognitive and emotional development may make it difficult for the child to relate to or understand the [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 the child victim 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 which were later rebutted when many of the defendants were acquitted. Despite the basic evidentiary 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.
- Conclusion and Solutions
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, thereby, institute appropriate training and policy for all system stakeholders.
Courts can improve the system by allowing alternative means for child victims to testify. Courts can allow children to testify in judges’ chambers with counsel present; use video technology, such as CCTV, to record the child’s testimony; or temporarily exclude parents/guardians from the courtroom. A few courts have allowed a support person to accompany the child witness on the witness stand or in the courtroom to provide comfort and consistency.
As for adult victims, a coordinated community response can be a great support to victims making their way through the system. All justice system professionals should be trained in the dynamics of family violence; such as the implications of violence on parenting, whether in custody proceedings between parents or in the child dependency sphere, and the necessity of support for a battered parent.
Most importantly, the justice system needs to understand that a change to a victim’s statement, either child or adult, should not automatically be taken as an admission of falsehood, but as an invitation to explore what concerns need to be addressed to help ensure that the victim feels safe and supported.
The National Council of Juvenile and Family Court Judges (NCJFCJ) is invested in ensuring justice for those who come before the nation’s courts – and is committed to an open and honest dialogue about the dynamics of victimization within our justice system. For more information on the NCJFCJ’s Victim Series, visit http://www.ncjfcj.org/victim-series.
 Amanda Kay is a Program Attorney for Family Violence and Domestic Relations at the National Council of Juvenile and Family Court Judges and Ryan L. Gonda is a Site Manager for Juvenile Law at the National Council of Juvenile and Family Court Judges. Points of view expressed are those of the authors and do not necessarily represent the official position or policies of the National Council of Juvenile and Family Court Judges.
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 Myrna S. Raeder, Distrusting young children who allege sexual abuse: Why stereotypes don’t die and ways to facilitate child testimony 16 Widener L. Review 239, 242 (2010).