Child witnesses and the confrontation clause

Journal of Criminal Law and Criminology

Volumn 102, Issue 4, 2012, Pages 1181-1232

  Lyon, Thomas D ^a   Dente, Julia A ^a  

^a UNIVERSITY OF SOUTHERN CALIFORNIA   (United States)

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EID: 84876259468     PISSN: 00914169     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (361)

1. No. 92,378, 2006 WL 1379576 (Kan. Ct. App. May 19, 2006).
2. Id. at 1-3.
3. Id. at 2.
4. Id. at1, 4.
5. Id. at9.
6. Id. at1-3.
7. Id. at3.
8. Id. at4.
9. Id. at3.
10. Id. at2.
11. 541 U.S. 36 (2004).
12. Waddell, 2006 WL 1379576, at9.
13. Id. at9.
14. Gail S. Goodman et al., Innovations for Child Witnesses: A National Survey, 5 PSYCHOL. PUB. POL'Y & L., 255, 264-65 (1999) [hereinafter Innovations for Child Witnesses].
15. NAT'L CTR. FOR PROSECUTION OF CHILD ABUSE, INVESTIGATION AND PROSECUTION OF CHILD ABUSE 369-70 (3d ed. 2004).
16. The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." U.S. CONST. amend. VI.
17. Michigan v. Bryant, 131 S. Ct. 1143, 1155 (2011).
18. Myrna S. Raeder, Distrusting Young Children Who Allege Sexual Abuse: Why Stereotypes Don't Die and Ways to Facilitate Child Testimony, 16 WIDENER L. REV. 239, 252 (2010).
19. State v. Waddell, No. 92,378, 2006 WL 1379576, at2 (Kan. Ct. App. May 19, 2006).
20. JOHN E.B. MYERS, MYERS ON EVIDENCE OF INTERPERSONAL VIOLENCE, CHILD MALTREATMENT, INTIMATE PARTNER VIOLENCE, RAPE, STALKING, AND ELDER ABUSE 874-76 (5th ed. 2012) (collecting cases).
21. 554 U.S. 353 (2008).
22. Id. at 356.
23. Id. at 358-59.
24. We will routinely use the word "declarant" to refer to hearsay declarants. Because most child witnesses are victims of child sexual abuse, and the perpetrators of child sexual abuse tend to be males and the victims of child sexual abuse tend to be females, we will routinely use "he" to refer to defendants and "she" to refer to declarants.
25. Giles, 554 U.S at 377.
26. 448 U.S. 56 (1980).
27. Id. at 66.
28. In Roberts and subsequent cases, the Court held that a number of hearsay exceptions were firmly rooted, including public records, business records, dying declarations, coconspirator statements, and of most relevance to child abuse cases, the spontaneous utterances exception and the medical diagnosis exception. White v. Illinois, 502 U.S. 346, 357 (1992) (statements made for the purpose of medical diagnosis and spontaneous utterances); Bourjaily v. United States, 483 U.S. 171, 182 (1987) (statements by coconspirator); Roberts, 448 U.S. at 66 n.8 (dying declarations, public records, business records, and prior testimony).
29. 497 U.S. 805 (1990).
30. Id. at 827. The residual exception was IDAHO R. EVID. 803(24) (allowing admission of any "statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness"). This language appears in the federal rules (FED. R. EVID. 807), as well as in the evidence rules of many states.
31. Wright, 497 U.S. at 821.
32. Id. at 820.
33. Id. at 818-19. The Idaho Supreme Court seriously weighed this option. Of course, in future applications of the residual exception to child abuse statements, whether the statements were videotaped would remain a valid factor in applying the statutory exception.
34. Id. at 821-22.
35. Whorton v. Bockting, 549 U.S. 406, 419 (2007) (Crawford overruled Roberts).
36. Crawford v. Washington, 541 U.S. 36, 61 (2004).
37. Id. at 53.
38. Michigan v. Bryant, 131 S. Ct 1143, 1155 (2011)
39. Davis v. Washington, 547 U.S. 823, 828, 830 (2006).
40. Crawford, 541 U.S. at 52 ("Statements taken by police officers in the course of interrogations are also testimonial under even a narrow standard.").
41. Id. at 53 ("The involvement of government officers in the production of testimonial evidence presents the same risk, whether the officers are police or justices of the peace.")
42. id. at 55 n.7 ("Involvement of government officers in the production of testimony with an eye toward trial presents unique potential for prosecutorial abuse-a fact borne out time and again throughout a history with which the Framers were keenly familiar.").
43. Davis, 547 U.S. at 823 n.2 ("If 911 operators are not themselves law enforcement officers, they may at least be agents of law enforcement when they conduct interrogations of 911 callers.").
44. Id. at 822 ("Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.").
45. (holding that hearsay is testimonial when "the primary purpose of the [police] interrogation is to establish or prove past events potentially relevant to later criminal prosecution").
46. See id. at 823 (holding that the Confrontation Clause applies only to testimonial hearsay); Crawford, 541 U.S. at 68 ("Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers' design to afford the States flexibility in their development of hearsay law-as does Roberts, and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether.").
47. Davis, 547 U.S. at 828.
48. Id. at 817-19.
49. Giles v. California, 554 U.S. 353, 358 (2008).
50. 147 P.3d 940 (Or. Ct. App. 2006), aff'd on reh'g, 159 P.3d 329 (Or. Ct. App. 2007). The case was retried, both girls testified, and the defendant was convicted. State v. Pitt, 237 P.3d 890 (Or. Ct. App. 2010), rev'd, 352 Or. 566 (2012).
51. Pitt, 147 P.3d at 942.
52. Id. at 942-43.
53. Id. at 942.
54. Id. at 942-43.
55. Id. at 943.
56. Id. at 945-46.
57. 162 P.3d 799 (Kan. 2007).
58. Id. at 802.
59. Id. at 801.
60. Id. at 800.
61. Id. at 800-01.
62. Id. at 806.
63. 155 P.3d 577 (Colo. App. 2006).
64. Id. at 578.
65. Id. at 581-83.
66. 920 A.2d 1262 (Pa. Super. Ct. 2007), cert. granted, 941 A.2d 671 (Pa. 2007) (regarding whether statements to mother were also testimonial).
67. In re S.R., 920 A.2d at 1264.
68. Id. at 1269.
69. Bobadilla v. Carlson, 575 F.3d 785, 787-88 (8th Cir. 2009), cert. denied, 130 S. Ct. 1081, 1081 (2010); Seely v. State, 373 Ark. 141, 143 (2008), cert. denied, 129 S. Ct. 218, 218 (2008); State v. Bentley, 739 N.W.2d 296, 297 (Iowa 2007), cert. denied, 128 S. Ct. 1655, 1655 (2008); State v. Bobadilla, 709 N.W.2d 243, 246 (Minn. 2006), cert. denied, 127 S. Ct. 382, 382 (2006); State v. Arnold, 933 N.E.2d 775, 777 (Ohio 2010), cert. denied, 132 S. Ct. 341, 341 (2011). But cf. Commonwealth v. Allshouse, 985 A.2d 847, 850 (Penn. 2009), cert. granted, judgment vacated, 131 S. Ct. 1597, 1598 (2011).
70. Richard Friedman, whose work was a source of inspiration for Crawford, is a leading advocate of this position.
71. Richard Friedman, Grappling With the Meaning of "Testimonial", 71 BROOK. L. REV. 241, 272 (2005) ("[S]ome very young children should be considered incapable of being witnesses for Confrontation Clause purposes. Their understanding is so undeveloped that their words ought to be considered more like the bark of a bloodhound than like the testimony of an adult witness."). Most commentators have similarly argued for a narrower definition of testimonial when children's statements are considered, usually on the grounds that children do not understand the nature of the legal process.
72. Kimberly Y. Chin, Note, "Minute and Separate": Considering the Admissibility of Videotaped Forensic Interviews in Child Sexual Abuse Cases After Crawford and Davis, 30 B.C. THIRD WORLD L.J. 67, 98-99 (2010) (arguing that children's statements, except for those naming the perpetrator, should be nontestimonial)
73. Andrew Darcy, Note, State v. Buda: The New Jersey Supreme Court, the Confrontation Clause, and "Testimonial" Competence, 40 SETON HALL L. REV. 1169, 1214 (2010) (arguing that children's statements should be judged nontestimonial)
74. Andrew W. Eichner, Note, Preserving Innocence: Protecting Child Victims in the Post-Crawford Legal System, 38 AM. J. CRIM. L. 101, 116 (2010-2011) (same)
75. Christopher Cannon Funk, Note, The Reasonable Child Declarant After Davis v. Washington, 61 STAN. L. REV. 923, 969-70 (2009) (same)
76. Jonathan Scher, Note, Out-of-Court Statements by Victims of Child Sexual Abuse to Multidisciplinary Teams: A Confrontation Clause Analysis, 47 FAM. CT. REV. 167, 173 (2009) (same)
77. Tom Lininger, Kids Say the Darndest Things: The Prosecutorial Use of Hearsay Statements by Children, 82 IND. L.J. 999, 999-1000 (2007) (arguing that a statement should be testimonial if the interviewer anticipated trial use)
78. Robert P. Mosteller, Testing the Testimonial Concept and Exceptions to Confrontation: "A Little Child Shall Lead Them," 82 IND. L.J. 917, 996-97 (2007) (arguing that statements should be defined as testimonial from the perspective of the interviewer, not the child).
79. State v. Siler, 876 N.E.2d 534, 541-44 (Ohio 2007) (reviewing cases and concluding that child's statements to law enforcement were testimonial, notwithstanding the child's perspective).
80. Michigan v. Bryant, 131 S. Ct. 1143, 1155 (2011). On remand from the Supreme Court, which instructed it to reconsider its holding in light of Bryant, the Pennsylvania Supreme Court held that the child declarant's age was relevant in determining if the child's statement was testimonial. Commonwealth v. Allshouse, 36 A.3d 163, 180-81 (Penn. 2012).
81. State v. Buda, 949 A.2d 761, 780 (N.J. 2008) (finding that statements to social worker were for purposes of protection rather than prosecution); State v. Arnold, 933 N.E.2d 775, 786 (Ohio 2010) (finding that some statements at child advocacy center were for purposes of medical diagnosis or treatment and were therefore nontestimonial).
82. Allshouse, 36 A.3d at 178
83. Robert P. Mosteller, Confrontation in Children's Cases: The Dimensions of Limited Coverage, 20 J.L. & POL'Y 393, 404-05 (2012)
84. Christopher C. Kendall, Note, Ongoing Emergency in Incest Cases: Forensic Interviewing Post-Davis, 10 WHITTIER J. CHILD. & FAM. ADVOC. 157, 179 (2010) (arguing that children's statements should fall under the exigency exception when they report intrafamilial abuse).
85. Theodore P. Cross, Lisa M. Jones, Wendy A. Walsh, Monique Simone & David Kolko, Child Forensic Interviewing in Children's Advocacy Centers: Empirical Data on a Practice Model, 31 CHILD ABUSE & NEGLECT 1031, 1033 (2007).
86. MYERS, supra note 25, at 874-76 (collecting cases).
87. We have identified only one article focusing on forfeiture in the child abuse context. The author clearly disagrees with the position adopted here. Clifford S. Fishman, The Child Declarant, The Confrontation Clause, and the Forfeiture Doctrine, 16 WIDENER L. REV. 279, 302-04 (2010) (rejecting arguments that pre-crime actions or exploitation of a child's vulnerability should be a basis for forfeiture).
88. Crawford v. Washington, 541 U.S. 36, 62 (2004).
89. Davis v. Washington, 547 U.S. 813, 833 (2006).
90. Reynolds, 98 U.S. 145, 158 (1878)
91. Motes v. United States, 178 U.S. 458, 471-74 (1900) (holding that the defendants did not forfeit their confrontation rights because "there was not the slightest ground in the evidence to suppose that [the witness] had absented himself from the trial at the instance, by the procurement, or with the assent of either of the accused").
92. 98 U.S. at 146, 148.
93. Id. at 149.
94. Id. at 159-60.
95. Id. at 158.
96. Id. at 159.
97. Id. at 160 ("Clearly, enough had been proven to cast the burden upon him of showing that he had not been instrumental in concealing or keeping the witness away.").
98. Giles v. California, 554 U.S. 353, 356-57 (2008).
99. Id. at 356.
100. Id. at 356-57.
101. Id. at 359.
102. Id. at 365.
103. Id. at 359.
104. Id. at 377.
105. The plurality opinion was signed by Justices Scalia, Roberts, Thomas, and Alito.
106. Id. at 380 (Souter, J., concurring) (emphasis added) ("If the evidence for admissibility shows a continuing relationship of this sort, it would make no sense to suggest that the oppressing defendant miraculously abandoned the dynamics of abuse the instant before he killed his victim, say, in a fit of anger.").
107. Id. at 406 (Breyer, J., dissenting).
108. United States v. Montague, 421 F.3d 1099, 1104 (10th Cir. 2005) (recognizing that defendant's prior relationship with the witness, his wife, helped inform the court's evaluation of the nature of defendant's post-incarceration communication with the witness and whether that conduct procured her unavailability)
109. Steele v. Taylor, 684 F.2d 1193, 1197, 1203 (6th Cir. 1982) (finding forfeiture appropriate where defendant paid for the witness's lawyer and shared his counsel with her, and noting that defendant had influence and control over the witness through his decade-long intimate relationship with her); People v. Pappalardo, 576 N.Y.S.2d 1001, 1004-05 (Sup. Ct. 1991) (noting that the close personal relationship between defendant and witness, while not sufficient in itself to establish "an unlawful involvement in a witness's refusal to testify," lends additional weight to the conclusion that defendant helped procure her unavailability); see also Mayes v. Sowders,
110. 621 F.2d 850, 856 n.4 (6th Cir. 1980) (finding that there was no evidence that defendant procured his cousin's unavailability, but implying that the close personal and familial relationship between defendant and witness would be relevant to a forfeiture inquiry).
111. Steele, 684 F.2d at 1198-99, 1203 (applying the forfeiture-by-wrongdoing rule where witness had been a prostitute for defendant, eventually lived with him and had his child, and defendant hired a lawyer for witness, paid for the lawyer, and had his own counsel make arguments on her behalf so she would not have to testify); State v. Hallum, 606 N.W.2d 351, 357-59 (Iowa 2000) (finding forfeiture on the basis of correspondence between a defendant and his brother where defendant advised his brother not to discuss anything over the phone, wrote to him "hang in there," and concluded his letter with "Love ya, bro"); People v. Smith, 907 N.Y.S.2d 860, 861 (Sup. Ct. 2010) (applying forfeiture when defendant had called victim 300 times from jail, but without evidence that he had threatened harm: "[t]he power, control, domination and coercion exercised in abusive relationships can be expressed in terms of violence certainly, but just as real in repeated calls sounding expressions of love and concern").
112. United States v. Scott, 284 F.3d 758, 763 (7th Cir. 2002) ("[G]iving something of value to a potential witness could constitute wrongdoing.").
113. McClarin v. Smith, No. 05-CV-2478 (DLI), 2007 WL 2323592, at10 (E.D.N.Y. Aug. 10, 2007) (admitting witness's grand jury testimony and applying the forfeiture-by-wrongdoing doctrine where defendant's "pleas for sympathy caused [witness] to alter his grand jury testimony"); Commonwealth v. Henderson, 747 N.E.2d 659, 660-61 (Mass. 2001) (upholding defendant's conviction for willfully endeavoring to interfere with a witness where defendant sent sixty letters to his former girlfriend who was the victim of an assault by defendant, repeatedly begging and pleading with her to lie for defendant regarding the assault).
114. CHRISTOPHER B. MUELLER & LAIRD C. KIRKPATRICK, FEDERAL EVIDENCE § 8:134 (3d ed. 2007) (stating that intent may exist well in advance of charges being filed); United States v. Dhinsa, 243 F.3d 635, 660-61 (2d Cir. 2001) (finding forfeiture where defendant killed two witnesses before charges were filed; one had not spoken to the police but had confronted defendant about killing his brother and defendant knew he had incriminating information); United States v. Miller, 116 F.3d 641, 667-69 (2d Cir. 1997) (citing United States v. Mastrangelo, 693 F.2d 269 (2d Cir. 1982)) ("We have never indicated that Mastrangelo did not apply to a defendant's procurement of the unavailability of the declarant unless there was an ongoing proceeding in which the declarant was scheduled to testify, and we see no reason to do so now.")
115. Robert P. Mosteller, Giles v. California: Avoiding Serious Damage to Crawford's Limited Revolution, 13 LEWIS & CLARK L. REV. 675, 695 n.76 (2009) (acknowledging that "threats as part of the sex act" and elicited promises to keep abuse a secret may be sufficient for forfeiture in the child abuse context)
116. Myrna S. Raeder, Comments on Child Abuse Litigation in a "Testimonial" World: The Intersection of Competency, Hearsay & Confrontation, 82 IND. L.J. 1009, 1019 (2007) ("[T]he original threats to the child should be presumed to affect the child's inability to testify at trial under a forfeiture rationale even though the demonstrated tampering occurred prior to disclosure.").
117. Admittedly, one could argue that this is a point unique to these two cases, both because there was evidence, based on the hearsay itself, that the declarants were willing to testify (in Reynolds, the declarant had previously testified against the defendant, and in Giles, the declarant had called the police against the defendant), and because the defendants made the declarants physically rather than psychologically unavailable. When the question is whether the defendant was responsible for the declarant's unwillingness (rather than inability) to testify, possible alternative explanations for the declarant's unwillingness may be relevant to the causation inquiry.
118. James F. Flanagan, Confrontation, Equity, and the Misnamed Exception for "Forfeiture" by Wrongdoing, 14 WM. & MARY BILL RTS. J. 1193, 1211 (2006) [hereinafter Confrontation]
119. James F. Flanagan, Forfeiture by Wrongdoing and Those Who Acquiesce in Witness Intimidation: A Reach Exceeding Its Grasp and Other Problems with Federal Rule of Evidence 804(b)(6), 51 DRAKE L. REV. 459, 486 (2003) [hereinafter Forfeiture by Wrongdoing].
120. Professor Flanagan argues that United States v. Williamson, 792 F. Supp. 805 (M.D. Ga. 1992), vacated, 512 U.S. 594 (1994), is a possible example of a case where a witness's independent reason "severs the link between the defendant's misconduct and the loss of the evidence." Flanagan, Forfeiture by Wrongdoing, supra note 115, at 486. In Williamson, the court rejected the prosecution's argument that the defendant procured the witness's unavailability by paying for the witness's attorney's fees in part because the witness had independent reasons for asserting his Fifth Amendment privilege at trial. Id. at 486 nn.165-66. The court found that the witness asserted the Fifth Amendment privilege because he had a pending appeal to suppress evidence on Fourth Amendment grounds, and had he offered self-incriminatory testimony, the benefits of the appeal would be nullified. Id. Thus, the witness's independent reasons caused him to assert the privilege. But, as Professor Flanagan notes, the prosecution could not establish that the defendant's actions would have caused unavailability even in the absence of the witness's valid reason for refusing to testify. Id. at 486 n.167. The court held that the evidence was insufficient to demonstrate either that there was any agreement between the defendant and the witness to keep silent or that the witness knew that the defendant was paying his legal fees. Id. Thus, this is not a case where the defendant's independent reason for asserting the privilege destroyed causation; indeed, there was simply no causal link to destroy in the first instance.
121. United States v. Balano, 618 F.2d 624, 630 (10th Cir. 1979) (finding that a witness's assertions that his earlier statements to police were made while under pressure and duress of the government, and that he simply wanted not to be involved were further evidence that the witness was scared of defendant). Courts also face similar causation issues where the witness avoids testimony by asserting a privilege, such as the witness's Fifth Amendment privilege against self-incrimination. When the evidence demonstrates that the defendant influenced or coerced the witness's decision, courts find the defendant responsible for the witness's unavailability. See, e.g., United States v. Mayes, 512 F.2d 637, 651 (6th Cir. 1975); Cole v. United States, 329 F.2d 437, 443 (9th Cir. 1964).
122. The courts are free to regard such reasons with skepticism, and many have done so. See, e.g., United States v. Scott, 284 F.3d 758, 763-64 (7th Cir. 2002) (rejecting defendant's assertion that he refused to testify for religious reasons); McClarin v. Smith, No. 05-CV-2478 (DLI), 2007 WL 2323592, at4 (E.D.N.Y. Aug. 10, 2007) (rejecting witness's assertion that he did not feel threatened by defendant); State v. Hallum, 606 N.W.2d 351, 358 (Iowa 2000) (finding not credible a witness's statement that he had not been pressured by defendant in any way and that he would refuse to testify even if defendant wanted him to do so); State v. Pierce, 364 N.W.2d 801, 807 (Minn. 1985) (rejecting incarcerated witness's claim that he refused to testify because he feared he would be known as a snitch to other inmates, and not because of defendant's threats); People v. Cotto, 677 N.Y.S.2d 35, 38-39 (App. Div. 1998) (finding a witness's explanation that he did not want to testify because he did not want to miss a parole hearing not credible); People v. Serrano, 644 N.Y.S.2d 162, 162 (App. Div. 1996) (rejecting witness's claims that he was not intimidated by defendant); People v. Pappalardo, 576 N.Y.S.2d 1001, 1002-03 (Sup. Ct. 1991) (finding that witness's claim of amnesia was feigned and that defendant assisted the witness in contriving the plan to avoid testimony)
123. Flanagan, Forfeiture by Wrongdoing, supra note 115, at 485.
124. United States v. Dhinsa, 243 F.3d 635, 654 (2d Cir. 2001); United States v. Houlihan, 92 F.3d 1271, 1279 (1st Cir. 1996).
125. Giles v. California, 554 U.S. 353, 357 (2008).
126. Thomas Y. Davies, Selective Originalism: Sorting Out Which Aspects of Giles's Forfeiture Exception to Confrontation Were or Were Not "Established at the Time of the Founding," 13 LEWIS & CLARK L. REV. 605, 619, 649 (2009).
127. Reynolds v. United States, 98 U.S. 145, 161 (1878) ("The accused was present at the time the [former] testimony was given, and had full opportunity of cross-examination.").
128. Child interviewers are often advised to elicit a promise to tell the truth. See Thomas D. Lyon, Assessing the Competency of Child Witnesses: Best Practice Informed by Psychology and Law, in CHILDREN'S TESTIMONY: A HANDBOOK OF PSYCHOLOGICAL RESEARCH AND PRACTICE 69, 80 (Michael E. Lamb et al. eds., 2011). Promising is often an acceptable substitute for a formal oath when young children testify. See, e.g., CAL. EVID. CODE § 710 (2012).
129. United States v. Scott, 284 F.3d 758, 764 (7th Cir. 2002) ("It seems almost certain that, in a case involving coercion or threats, a witness who refuses to testify at trial will not testify to the actions procuring his or her unavailability."); see also State v. Mechling, 633 S.E.2d 311, 326 (W. Va. 2006) ("If a victim is too scared to testify against the accused, for fear of retribution, the victim will probably also be too scared to testify in any pre-trial forfeiture proceeding.").
130. FED. R. EVID. 804(b)(6).
131. Although the Court in Davis stated that the federal rule "codifies the forfeiture doctrine," it emphasized that its holding took "no position on the standards necessary to demonstrate such forfeiture." Davis v. Washington, 547 U.S. 813, 833 (2006). The plurality opinion in Giles read the intent requirement in the federal rule as "highly persuasive" evidence that constitutional forfeiture required intent. Giles v. California, 554 U.S. 353, 368 (2008). Giles did not address the causation issue because murder always renders a declarant unavailable.
132. Michigan v. Bryant, 131 S. Ct. 1143, 1162 n.13 (2011) ("[T]he Due Process Clauses of the Fifth and Fourteenth Amendments may constitute a further bar to admission of, for example, unreliable evidence."). The plurality opinion in Giles rejected the dissent's argument that confrontation issues could be separated from hearsay issues, but only as a means of rejecting the argument that the dying declaration exception is consistent with the notion that knowledge-based intent is sufficient for forfeiture to occur. Giles, 554 U.S. at 364-65.
133. NAT'L CTR. FOR PROSECUTION OF CHILD ABUSE, supra note 20, at 369 ("[A] majority of states have a special child hearsay exception ... Whether hearsay is offered under a residual or a child hearsay exception, the critical issue is usually whether the hearsay is sufficiently reliable to gain admission in evidence.").
134. Clinical studies have been reviewed in Kamala London et al., Disclosure of Child Sexual Abuse: What Does the Research Tell Us About the Ways that Children Tell?, 11 PSYCHOL. PUB. POL'Y & L. 194, 195-96 (2005) [hereinafter Disclosure of Child Sexual Abuse]
135. Kamala London et al., Review of the Contemporary Literature on How Children Report Sexual Abuse to Others: Findings, Methodological Issues, and Implications for Forensic Interviewers, 16 MEMORY 29, 30 (2008) [hereinafter Review of Contemporary Literature on How Children Report Sexual Abuse]
136. Thomas D. Lyon, False Denials: Overcoming Methodological Biases in Abuse Disclosure Research, in DISCLOSING ABUSE: DELAYS, DENIALS, RETRACTIONS AND INCOMPLETE ACCOUNTS 41, 41-43 (Margaret-Ellen Pipe et al. eds., 2007) [hereinafter False Denials]
137. Thomas D. Lyon, Scientific Support for Expert Testimony on Child Sexual Abuse Accommodation, in CRITICAL ISSUES IN CHILD SEXUAL ABUSE 107, 120-23 (Jon R. Conte ed., 2002).
138. Population surveys were reviewed by Londonet al., supra, and Thomas D. Lyon, Abuse Disclosure: What Adults Can Tell, in CHILDREN AS VICTIMS, WITNESSES, AND OFFENDERS: PSYCHOLOGICAL SCIENCE AND THE LAW 19 (Bette L. Bottoms et al. eds., 2009) [hereinafter Abuse Disclosure]. Research asking child sex perpetrators to describe their modi operandi dates back at least to the 1960s. PAUL H. GEBHARD ET AL., SEX OFFENDERS: AN ANALYSIS OF TYPES 12-13 (1964). A review published in 2009 surveyed the results of 19 studies.
139. Benoit Leclerc et al., Examining the Modus Operandi of Sexual Offenders Against Children and Its Practical Implications, 14 AGGRESSION & VIOLENT BEHAV. 5, 6-7 (2009).
140. An overview of all of the literature can be found in Thomas D. Lyon & Elizabeth Ahern, Disclosure of Child Sexual Abuse, in THE APSAC HANDBOOK ON CHILD MALTREATMENT 233 (John E.B. Myers ed., 3d ed. 2011).
141. STEPHEN W. SMALLBONE & RICHARD K. WORTLEY, AUSTL. INST. OF CRIMINOLOGY, NO. 193, CHILD SEXUAL ABUSE: OFFENDER CHARACTERISTICS AND MODUS OPERANDI 4 (2001).
142. Jessie Anderson et al., Prevalence of Childhood Sexual Abuse Experiences in a Community Sample of Women, 32 J. AM. ACAD. CHILD & ADOLESCENT PSYCHIATRY 911, 913, 915 (1993) (defining sexual abuse as "exposure, spying, indecent suggestions and pornography"; 15% strangers)
143. D. M. Fergusson et al., The Stability of Child Abuse Reports: A Longitudinal Study of the Reporting Behavior of Young Adults, 30 PSYCHOL. MED. 529, 532 (2000) [hereinafter Stability of Child Abuse Reports] (defining sexual abuse as "noncontact episodes including indecent exposure, public masturbation by others, and unwanted sexual propositions or lewd suggestions"; 29% strangers)
144. David Finkelhor et al., Sexual Abuse in a National Survey of Adult Men and Women: Prevalence, Characteristics, and Risk Factors, 14 CHILD ABUSE & NEGLECT 19, 22 (1990) (defining sexual abuse as exhibitionism and sexual exposure; 40% strangers)
145. Jillian M. Fleming, Prevalence of Childhood Sexual Abuse in a Community Sample of Australian Women, 166 MED. J. AUSTL. 65, 66 (1997) (defining sexual abuse as all experiences of sexual contact occurring before the age of 12 with a person five or more years older, irrespective of consent, and all experiences of sexual contact occurring between the ages of 12 and 16 with a person five or more years older that were not wanted or were distressing; 8% strangers)
146. Daniel W. Smith et al., Delay in Disclosure of Childhood Rape: Results From a National Survey, 24 CHILD ABUSE & NEGLECT 273, 278 (2000) [hereinafter Disclosure of Childhood Rape] (considering genital penetration and "use or threat of force, as defined by the participant"; 10% strangers).
147. ELLEN GRAY, UNEQUAL JUSTICE: THE PROSECUTION OF CHILD SEXUAL ABUSE 83 (1993) ("The abusers were people known to the children, for the most part; only slightly fewer were actually family members (45.2%) than the proportion who were outside the family (54.8%).")
148. id. at 85 ("They were strangers to the child 13.7% of the time.")
149. LOUISE DEZWIREK SAS ET EL., TIPPING THE BALANCE TO TELL THE SECRET: PUBLIC DISCOVERY OF CHILD SEXUAL ABUSE 24 (1995) ("[T]hese children were typically abused by someone known to them. In fact one-third of the children had known the abusers all their lives. More than one-fifth of the abusers were fathers or father figures.")
150. id. at 26 (for all but 16% of the children, there had been an existing relationship with the abuser)
151. BARBARA E. SMITH ET AL., AM. BAR ASS'N, THE PROSECUTION OF CHILD SEXUAL AND PHYSICAL ABUSE CASES: FINAL REPORT 86 (1993) [hereinafter A.B.A. FINAL REPORT] ("The relationship between the defendant and the victim in our sample reflects figures comparable to other studies. Only 6% of the defendants were strangers to their victims. The most common relationship was that of parent, or a parental figure.")
152. DEBRA WHITCOMB ET AL., U.S. DEP'T OF JUSTICE, EMOTIONAL EFFECTS OF TESTIFYING ON SEXUALLY ABUSED CHILDREN 89 (1994) (a majority of perpetrators were related in some way to the victim (i.e., intrafamilial cases); the largest categories were biological parents (14%), mothers' boyfriends (14%), and stepparents (13%); in only 3% of cases were perpetrators unknown to their victims)
153. Tina B. Goodman-Brown et al., Why Children Tell: A Model of Children's Disclosure of Sexual Abuse, 27 CHILD ABUSE & NEGLECT 525, 530 (2003) ("Approximately 47% of the children suffered intrafamilial abuse, which was defined as abuse by a parent, step-parent, grandparent, mother's boyfriend or other relative; the 52% of children who experienced extrafamilial abuse were victimized by such individuals as teachers, babysitters, neighbors, or in a few cases, strangers.").
154. Angela D. Evans & Thomas D. Lyon, Assessing Children's Competency to Take the Oath in Court: The Influence of Question Type on Children's Accuracy, 36 L. & HUM. BEHAV. 195, 197 (2012).
155. Elaine Silverstrini, Child Porn's Dirty Secret: Dads Often Behind Bars, TAMPA BAY ONLINE (July 5, 2009), www2.tbo.com/content/2009/jul/05/na-child-porns-dirtysecret-dads-often-b ehind-lens/news-breaking/ (noting that the Exploited Child Division of the National Center for Missing and Exploited Children, which operates as a clearinghouse for law enforcement to share information about child pornography victims, has identified over 2,300 of the children featured in pornographic images and videos since 2003, and that 24% of victims were photographed by neighbors or close family friends)
156. Janis Wolak et al., Arrests for Child Pornography Production: Data at Two Time Points From a National Sample of U.S. Law Enforcement Agencies, 16 CHILD MALTREATMENT 184, 185 (2011) ("Most [child pornography] appears to be produced by child sexual abusers who know and have intimate access to specific victims (e.g., family or household members; acquaintances such as neighbors, family friends, baby sitters).").
157. Joe Sullivan & Anthony Beech, A Comparative Study of Demographic Data Relating to Intra- and Extra-Familial Child Sexual Abusers and Professional Perpetrators, 10 J. SEXUAL AGGRESSION 39, 46 (2004).
158. Jon R. Conte et al., What Sexual Offenders Tell Us About Prevention Strategies, 13 CHILD ABUSE & NEGLECT 293, 299 (1989).
159. Michele Elliott et al., Child Sexual Abuse Prevention: What Offenders Tell Us, 19 CHILD ABUSE & NEGLECT 579, 581 (1995).
160. Eric Beauregard et al., A Descriptive Model of the Hunting Process of Serial Sex Offenders: A Rational Choice Perspective, 22 J. FAM. VIOLENCE 449, 455 (2007).
161. Leclerc et al., supra note 130, at 8.
162. John R. Christiansen & Reed H. Blake, The Grooming Process in Father-Daughter Incest, in THE INCEST PERPETRATOR: THE FAMILY MEMBER NO ONE WANTS TO TREAT 88, 89 (Anne L. Horton et al. eds., 1990)
163. SMALLBONE & WORTLEY, supra note 131, at 4.
164. Lee Eric Budin & Charles Felzen Johnson, Sex Abuse Prevention Programs: Offenders' Attitudes About Their Efficacy, 13 CHILD ABUSE & NEGLECT 77, 84 (1989)
165. Christiansen & Blake, supra note 142, at 90
166. Keith Kaufman et al., Factors Influencing Sexual Offenders' Modus Operandi: An Examination of Victim-Offender Relatedness and Age, 3 CHILD MALTREATMENT 349, 353 (1998).
167. Even perpetrators who offend against strangers endorse strategies short of brute force; Beauregard and colleagues described the "hunting process" of sixty-nine serial sex perpetrators who offended against strangers and found that "[t]hree methods are used by sexual offenders specifically against children: seduction/persuasion (13%), money/gift (16%), and games (9%). These methods help perpetrators make contact with the victims slowly and to gradually estimate their chance of succeeding in getting the victim involved in sexual activities." Beauregard et al., supra note 140, at 456.
168. SMALLBONE & WORTLEY, supra note 131, at 5.
169. Kaufman et al., supra note 143, at 356.
170. Reuben A. Lang & Roy R. Frenzel, How Sex Offenders Lure Children, 1 ANNALS SEX RES. 303, 307-09 (1988).
171. Christiansen & Blake, supra note 142, at 92.
172. Kaufmanet al., supra note 143, at 356.
173. Lang & Frenzel, supra note 147, at 307-08.
174. Christiansen & Blake, supra note 142, at 89.
175. Id. at 90.
176. Fleming, supra note 132, at 5. Finkelhor and colleagues revealed that men reported force in 15% of acts of sexual abuse and women in 19%, but that abuse included noncontact offenses.
177. Finkelhoret al., supra note 132, at 21.
178. Irit Hershkowitz, Delayed Disclosure of Alleged Child Sexual Abuse Victims in Israel, 76 AM. J. ORTHOPSYCHIATRY 444, 446 (2006) [hereinafter Delayed Disclosure].
179. Lang& Frenzel, supra note 147, at 311.
180. Kaufman et al., supra note 143, at 351.
181. Id. at 356-57
182. Lang& Frenzel, supra note 147, at 310-11.
183. Lang& Frenzel, supra note 147, at 311.
184. Kaufmanet al., supra note 143, at 355.
185. Id. at 356
186. Elliottet al., supra note 139, at 582.
187. Christiansen& Blake, supra note 142, at 96.
188. SMITH ET AL., A.B.A. FINAL REPORT, supra note 133, at 89. The authors found that "the defendant actually overpowered (or took other steps) to inflict the abuse or to further weaken the child into submission" in only 12% of the cases and used bribes in only 8% of the cases.
189. Id. at 90, 92
190. WHITCOMB ET AL., supra note 133, at 91 (53% no force, 33% mild force, 5% violent force, 8% threat of force).
191. SAS ET AL., supra note 133, at 26.
192. Finkelhor et al., supra note 132, at 22 (57% of men and 59% of women delayed more than one year)
193. Fleming, supra note 132, at 5-6 (83% did not disclose within 1 year)
194. Smith et al., Disclosure of Childhood Rape, supra note 133, at 279 tbl.3 (48% did not disclose within 5 years).
195. Lyon, Abuse Disclosure, supra note 130, at 23 tbl.2.1 (13%-60% had never told anyone).
196. Judy Martin et al., Asking About Child Sexual Abuse: Methodological Implications of a Two Stage Survey, 17 CHILD ABUSE & NEGLECT 383, 387 (1993)
197. Diana E. H. Russell, The Incidence and Prevalence of Intrafamilial and Extrafamilial Sexual Abuse of Female Children, 7 CHILD ABUSE & NEGLECT 133, 142 (1983)
198. Smith A et al., Disclosure of Childhood Rape, supra note 132, at 279.
199. Gene G. Abel et al., Self-Reported Sex Crimes of Nonincarcerated Paraphiliacs, 2 J. INTERPERSONAL VIOLENCE 3, 21 (1987).
200. Lyon, False Denials, supra note 130, at 42, 46-48.
201. London A et al., Disclosure of Child Sexual Abuse, supra note 130 (describing a number of studies that have found a delay in reporting is common)
202. Mary L. Paine & David J. Hansen, Factors Influencing Children to Self-Disclose Sexual Abuse, 22 CLINICAL PSYCHOL. REV. 271 (2002).
203. SAS ET AL., supra note 133, at 26, 29. Goodman-Brown and colleagues reported that only 15% of the child witnesses delayed reporting for more than six months, but they measured delay from the last time the child was abused rather than from the first time, which means that delay was underestimated for children who experienced repeated abuse.
204. Goodman-Brown, supra note 133, at 533.
205. SAS ET AL., supra note 133, at 28 (when disclosure was delayed, abuse reoccurred in 70% of the cases).
206. Elliottet al., supra note 139, at 586
207. SMALLBONE & WORTLEY, supra note 131, at 4.
208. GRAY, supra note 133, at 90 (single act charged in only 39% of cases)
209. WHITCOMB ET AL., supra note 133, at 91 (single act charged in only 43% of cases).
210. Lindsay Wandrey et al., Maltreated Children's Ability to Estimate Temporal Location and Numerosity of Placement Changes and Court Visits, 18 PSYCHOL. PUB. POL'Y & L. 79, 99 (2012).
211. Four of the five representative surveys that tested for the effects of relationships on disclosure found that the relationship mattered, with closer relationships leading to lower rates of reported disclosure.
212. Anderson et al., supra note 132, at 915
213. Steven M. Kogan, Disclosing Unwanted Sexual Experiences: Results from a National Sample of Adolescent Women, 24 CHILD ABUSE & NEGLECT 147, 154 (2004)
214. Smithet al., Disclosure of Childhood Rape, supra note 132, at 281
215. Gail E. Wyatt & Michael Newcomb, Internal and External Mediators of Women's Sexual Abuse in Childhood, 58 J. CONSULTING & CLINICAL PSYCHOL. 758, 765 (1990).
216. Fleming, supra note 132, at 68 (finding no relation). Moreover, a study examining the same sample as Smith and colleagues found that reporting to the police was more likely when the perpetrator was a stranger.
217. Rochelle F. Hanson et al., Factors Related to the Reporting of Childhood Rape, 23 CHILD ABUSE & NEGLECT 559, 566 (1999). Three of these studies utilized a multivariate design, which enabled the researchers to control for possible confounding by interactions between relationship and other characteristics of abuse that might affect reporting
218. Smith et al., Disclosure of Childhood Rape, supra note 132, at 281
219. Wyatt, supra.
220. London et al., Review of Contemporary Literature on How Children Report Sexual Abuse, supra note 130. This modifies the view of the authors' earlier review of the literature.
221. London et al., Disclosure of Child Sexual Abuse, supra note 130.
222. SAS ET AL., supra note 133, at 27-30.
223. Lindsay C. Malloy et al., Filial Dependency and Recantation of Child Sexual Abuse Allegations, 46 J. AM. ACAD. CHILD & ADOLESCENT PSYCHIATRY 162, 165 (2007).
224. Thomas D. Lyon et al., Children's Reasoning about Disclosing Adult Transgressions: Effects of Maltreatment, Child Age, and Adult Identity, 81 CHILD DEV. 1714, 1720-21 (2010) [hereinafter Disclosing Adult Transgressions].
225. Marcus Choi Tye, Susan L. Amato, Charles R. Honts, Mary K. Devitt & Douglas Peters, The Willingness of Children to Lie and the Assessment of Credibility in an Ecologically Relevant Laboratory Setting, 3 APPLIED DEV. SCI. 92, 95-96 (1999).
226. Mark D. Everson et al., Maternal Support Following Disclosure of Incest, 59 AM. J. ORTHOPSYCHIATRY 197, 200 (1989) ("[M]others were significantly more supportive of their children if the offender were an ex-spouse than if he were someone with whom the women had a current relationship.").
227. Louanne Lawson & Mark Chaffin, False Negatives in Sexual Abuse Disclosure Interviews, 7 J. INTERPERSONAL VIOLENCE 532, 538 (1992) (finding that of the number of children with clear medical evidence of sexual abuse, 63% of those whose parents were willing to believe that their children might have been sexually abused disclosed whereas only 17% of the children whose parents refused to accept this possibility disclosed).
228. Irit Hershkowitz et al., Exploring the Disclosure of Child Sexual Abuse with Alleged Victims and Their Parents, 31 CHILD ABUSE & NEGLECT 111, 119 (2007).
229. Malloy et al., supra note 178, at 165.
230. SAS ET AL., supra note 133, at 62 (finding that 46% of prosecution sample had been exposed to domestic violence against mother by intimate partner).
231. Id. at 114. One child who denied being threatened answered: "No, but I knew what he was capable of."
232. Id. at 24. Conversely, immediate disclosure was likely if "force was used to gain compliance with the sexual act."
233. Hershkowitz, Delayed Disclosure, supra note 154, at 446. Sauzier did not analyze percentages statistically, but it appeared that immediate disclosures were more common when a perpetrator used force than when he used manipulation.
234. Maria Sauzier, Disclosure of Child Sexual Abuse: For Better or For Worse, 12 PSYCHIATRIC CLINICS N. AM. 455, 466 (1989).
235. Ann Hazzard et al., Predicting Symptomatology and Self-Blame Among Child Sex Abuse Victims 19 CHILD ABUSE & NEGLECT 707, 711 (1995).
236. Kathleen A. Kendall-Tackett et al., Impact of Sexual Abuse on Children: A Review and Synthesis of Recent Empirical Studies, 113 PSYCHOL. BULL. 164, 170 (1993)
237. Jodi A. Quas et al., Predictors of Attributions of Self-Blame and Internalizing Behavior Problems in Sexually Abused Children, 44 J. CHILD PSYCHOL. & PSYCHIATRY 723, 731 (2003).
238. Goodman-Brown et al., supra note 133, at 534 (showing that children who perceived more responsibility took longer to disclose).
239. Anderson et al., supra note 132, at 915.
240. Fleming, supra note 132, at 69.
241. SAS ET AL., supra note 133, at 27-28.
242. Budin& Johnson, supra note 143, at 80.
243. Elliott et al., supra note 139, at 592.
244. Lang & Frenzel, supra note 147, at 311.
245. Keith Kaufman et al., Assessing Child Sexual Offenders' Modus Operandi: Accuracy in Self-Reported Use of Threats and Coercion, 6 ANNALS SEX RES. 213, 221 (1993).
246. GRAY, supra note 133, at 90 ("The victim was told by the perpetrator not to tell anyone about the abuse, and threatened with consequences if she did tell, in almost 33% of the cases.")
247. SMITH ET AL., A.B.A. FINAL REPORT, supra note 133, at 93 ("In over one fourth (27%) of the cases, the defendant specifically warned the child not to tell about the sexual abuse.").
248. SAS ET AL., supra note 133, at 26 (when children were asked about the first episode of abuse, "in half the cases the abuser had warned them not to tell").
249. SMALLBONE & WORTLEY, supra note 131, at 5.
250. Lang & Frenzel, supra note 147, at 312 tbl.4.
251. Elliott et al., supra note 139, at 582.
252. Kaufman A et al., supra note 143, at 355-56.
253. SMALLBONE & WORTLEY, supra note 131, at 5.
254. Elliott et al., supra note 139, at 582.
255. Lang & Frenzel, supra note 147, at 311-12.
256. SMITH ET AL., A.B.A. FINAL REPORT, supra note 133, at 86
257. SAS ET EL., supra note 133, at 91-92 (reporting threats to hurt the child or a third party, harm the mother emotionally, or withdraw privileges, and warnings that the abuser would be harmed by the disclosure or that the child would no longer be loved by the mother).
258. Hershkowitz A, Delayed Disclosure, supra note 154, at 446.
259. SAS ET AL., supra note 133, at 114.
260. GRAY, supra note 133, at 90-91.
261. Goodman-Brown et al., supra note 133, at 535. There are three reasons why the study may have missed a relation between fears to self and delays. The researchers could not question children directly, id. at 532, whether the child feared harm or not was measured dichotomously, id., and delays were measured from the last act of abuse rather than the first, id. at 529. Measuring delay from the last act of abuse underestimates the delay when abuse is repeated.
262. Londonet al., Disclosure of Child Sexual Abuse, supra note 130, at 202.
263. Sharon C. Wilsnack et al., Self-Reports of Forgetting and Remembering Childhood Sexual Abuse in a Nationally Representative Sample of U.S. Women, 26 CHILD ABUSE & NEGLECT 139, 144 (2002).
264. KENNETH V. LANNING, CHILD MOLESTERS: A BEHAVIORAL ANALYSIS 7 (5th ed. 2010), available at www.missingkids.com/en_US/publications/NC70.pdf ("For the public the 'default setting' still seems to be stranger abduction. To them child molesters are sick perverts or 'predators' who physically overpower children and violently force them into sexual activity.").
265. Stephen J. Ceci, Sarah Kulkofsky, J. Zoe Klemfuss, Charlotte D. Sweeney & Maggie Bruck, Unwarranted Assumptions about Children's Testimonial Accuracy, 3 ANN. REV. CLINICAL PSYCHOL. 311, 322-23 (2007).
266. Lyon, False Denials, supra note 130, at 43-45.
267. An additional advantage of these studies is that the evidence reduces the likelihood that the allegations are false.
268. Lyon, False Denials, supra note 130, at 48.
269. Lawson and Chaffin found that 57% of children with a sexually transmitted disease failed to disclose abuse when questioned.
270. Lawson & Chaffin, supra note 183, at 537. Muram and his colleagues found that 49% of children with medical evidence strongly indicative of sexual abuse failed to disclose.
271. David Muram et al., Genital Abnormalities in Female Siblings and Friends of Child Victims of Sexual Abuse, 15 CHILD ABUSE & NEGLECT 105, 108 tb1.2 (1991).
272. Surveys may also understate reluctance to disclose to the extent that survey respondents are reluctant to tell the surveyor that they were victimized. If reluctant children who fail to report true abuse grow up to be reluctant adults, then the adults who acknowledge abuse in surveys are disproportionately those who acknowledged abuse as children, and former victims who deny abuse in surveys are disproportionately those who never disclosed as children. Calculating nondisclosure based on the adults who acknowledge abuse may therefore underestimate childhood reluctance.
273. Ceciet al., supra note 218, at 322.
274. Jochen Hardt & Michael Rutter, Validity of Adult Retrospective Reports of Adverse Childhood Experiences: Review of the Evidence, 45 J. CHILD PSYCHOL. & PSYCHIATRY 260, 270 (2004). Hardt and Rutter concluded that "the universal finding [is] that, even with well-documented serious abuse or neglect, about a third of individuals do not report its occurrence when specifically asked about it in adult life."
275. Rebecca M. Bolen & Maria Scannapieco, Prevalence of Child Sexual Abuse: A Corrective Metanalysis, 73 SOC. SERV. REV. 281, 293 (1999)
276. Wilsnack et al., supra note 216, at 143 (finding that the percentage of respondents reporting abuse doubled (from 15% to 31%) when they asked a greater number of specific questions about sexually abusive experiences).
277. Richard P.W. Fry et al., Interviewing for Sexual Abuse: Reliability and Effect of Interviewer Gender, 20 CHILD ABUSE & NEGLECT 725, 727 (1996). Fry and colleagues interviewed female gynecological clinic patients complaining of chronic pelvic pain at two time periods, three months apart. The authors found that 26% of the abuse mentioned at the first interview was not mentioned at the second interview (41/155) and that 16% of the abuse mentioned at the second interview was not mentioned at the first interview (22/136). Although one might suspect that women omitted abuse that was relatively trivial and therefore less memorable, the authors found that the "effect is even more striking when the reports of severe (contact) abuse are examined." Id. at 727. In their study, Robin McGee and her colleagues questioned adolescents from the open caseload of a child-protection agency who were substantiated as sexually abused and found that 19% (12/63) denied sexual abuse when individually questioned by two researchers.
278. Robin McGee et al., The Measurement of Maltreatment: A Comparison of Approaches, 19 CHILD ABUSE & NEGLECT 233, 239-40 (1995). In their population survey of eighteen-year-olds, Fergusson and colleagues found relatively low prevalence rates of abuse compared to other surveys and recognized the danger that their young respondents were not ready to disclose.
279. David M. Fergusson, Michael T. Lynskey & L. John Horwood, Childhood Sexual Abuse and Psychiatric Disorder in Young Adulthood: I. Prevalence of Sexual Abuse and Factors Associated with Sexual Abuse, 35 J. AM. ACAD. CHILD & ADOLESCENT PSYCHIATRY 1355, 1361 (1996). Three years later, Fergusson and colleagues questioned the same individuals when they were twenty-one.
280. Fergusson et al., Stability of Child Abuse Reports, supra note 132, at 534. Remarkably, among the respondents who reported sexual abuse at twenty-one, 45% had failed to report abuse at eighteen (37/83). Id. Conversely, among the respondents who reported sexual abuse at eighteen years of age, more than half (54%) failed to report abuse at age twenty-one (54/100).
281. Theodore P. Cross, Wendy A. Walsh, Monique Simone & Lisa M. Jones, Prosecution of Child Abuse: A Meta-Analysis of Rates of Criminal Justice Decisions, 4 TRAUMA VIOLENCE & ABUSE 323, 330 (2003) (finding that special programs had higher referral rates, but standard child-protection samples referred 40% of substantiated cases to the prosecution).
282. GRAY, supra note 133, at 94-96.
283. Id. at 111, 114.
284. Kathleen Coulborn Faller & James Henry, Child Sexual Abuse: A Case Study in Community Collaboration, 24 CHILD ABUSE & NEGLECT 1215, 1223 (2000)
285. Gail S. Goodman et al., Testifying in Criminal Court: Emotional Effects on Child Sexual Assault Victims, 57 MONOGRAPHS SOC. RES. CHILD DEV. 1, 80 (1992) [hereinafter Testifying in Criminal Court].
286. Goodman et al., Testifying in Criminal Court, supra note 231, at v.
287. Gail S. Goodman et al., Face-to-Face Confrontation: Effects of Closed-Circuit Technology on Children's Eyewitness Testimony and Jurors' Decisions, 22 L. & HUM. BEHAV. 165, 179 (1998). The authors note the difficulty of ensuring that a large number of children would be willing to testify: Such pilot testing revealed the necessity of employing staff who could establish rapport quickly and well with children, the chance for children to tour the courtroom and answer questions on the witness stand before being asked to testify, the opportunity for children to meet and have a friendly exchange with the prosecutor and judge before the trial, a chance for children to adjust to the courtroom and answer simple questions posed by the judge before the jury entered, and maintenance of an emotionally supportive atmosphere by the judge and attorneys toward the children. The critical importance of the children's parents staying in the courtroom when the children testified also became apparent, a privilege often denied actual child witnesses.
288. Id. at 177-78.
289. Pennsylvania v. Ritchie, 480 U.S. 39, 60 (1987).
290. Kennedy v. Louisiana, 554 U.S. 407, 444 (2008) (citations omitted).
291. Hodges v. Florida, 506 F.3d 1337 (11th Cir. 2007); United States v. Stewart, 485 F.3d 666 (2d Cir. 2007); United States v. Rivera, 412 F.3d 562 (4th Cir. 2005); United States v. Gray, 405 F.3d 227 (4th Cir. 2005); United States v. Thompson, 286 F.3d 950 (7th Cir. 2002); United States v. Dhinsa, 243 F.3d 635 (2d Cir. 2001); United States v. Emery, 186 F.3d 921 (8th Cir. 1999); United States v. Houlihan, 92 F.3d 1271 (1st Cir. 1996); United States v. Mastrangelo, 693 F.2d 269 (2d Cir. 1982); United States v. White, 838 F. Supp. 618 (D.D.C. 1993); Devonshire v. United States, 691 A.2d 165 (D.C. 1997); State v. Ivy, 188 S.W.3d 132 (Tenn. 2006).
292. State v. Waddell, No. 92,378, 2006 WL 1379576, at5 (Kan. Ct. App. May 19, 2006).
293. Id. at3.
294. Id. at5, 9.
295. Id. at9.
296. Id. at5.
297. Id. at9.
298. Id. at1.
299. Id. at4.
300. Id. at5.
301. Id. at9.
302. Id. at1.
303. Id. at1, 3 (school counselor and daycare provider).
304. Id. at3.
305. Id. at2.
306. In re Rolandis G., 902 N.E.2d 600, 602 (Ill. 2008).
307. Id. at 604.
308. Id. at 603-04.
309. Id. at 604.
310. Id. at 616. The Colorado Supreme Court has also noted (in a post-Giles case) that "the manner in which [the defendant] chose his victim" is a valid consideration in forfeiture; however, in the case before it, the prosecution did not introduce any evidence of intent, solely arguing that the fact of abuse and the fact that the child was traumatized were sufficient. People v. Moreno, 160 P.3d 242, 247 (Colo. 2007).
311. Rolandis, 902 N.E.2d at 616.
312. Giles v. California, 544 U.S. 353, 354 (2008).
313. People v. Johnson, 711 N.E.2d 967 (N.Y. 1999).
314. Id. at 968.
315. Id. at 969.
316. Fishman, supra note 83, at 298 ("[T]he defense can argue that, even assuming the defendant had threatened or cajoled the child not to report the abuse, ultimately the child did report it, or there would be no case to prosecute. Thus, those threats or blandishments, in the end, were ineffective, and therefore could not have 'procured' the child's subsequent inability to testify."); Mosteller, supra note 113, at 695 n.77 (acknowledging that defendants can argue that "forfeiture is illogical because the child was obviously not intimidated from reporting by the perpetrator's threat ... [and thus] there is no reason to believe the victim failed to testify because of that ineffectual threat").
317. Malloyet al., supra note 178, at 165.
318. Ware v. Harry, 636 F. Supp. 2d 574 (E.D. Mich. 2008), objections overruled by Ware v. Harry, No. 06-CV-10553-DT, 2008 WL 4852972 (E.D. Mich. Nov. 7, 2008).
319. Id. at 586.
320. (explaining that defendant "had threatened those who had witnessed the killing with death if they talked about the incident. Specifically, petitioner told the witnesses 'if it gets out I know who to go to' and 'I know everybody in this house right now ... [i]f this shit go any further y'all next.'").
321. Victor I. Vieth, Keeping the Balance True: Admitting Child Hearsay in the Wake of Crawford v. Washington, 16 APRI UPDATE No. 12 (Am. Prosecutors Research Inst., Alexandria, V.A.), 2004, at 1-2.
322. Lyon et al., Disclosing Adult Transgressions, supra note 179, at 1721.
323. STANLEY W. MOORE ET AL., THE CHILD'S POLITICAL WORLD: A LONGITUDINAL PERSPECTIVE 52 (1985).
324. With respect to the classification of their statements as testimonial, children are probably less familiar with the role that non-law-enforcement personnel play in the process. Hence, unless they are informed of police involvement, they may not understand that their statements to child advocacy center interviewers, medical personnel, and social workers are functionally equivalent to statements to the police. For this reason, there is still room to argue that if one adopts solely the eclarant's perspective, children's complaints of abuse are often nontestimonial.
325. Jody A. Quas et al., Do Jurors "Know" What Isn't So About Child Witnesses?, 29 L. & HUM. BEHAV. 425, 448 (2005).
326. Susan Morison & Edith Greene, Juror and Expert Knowledge of Child Sexual Abuse, 16 CHILD ABUSE & NEGLECT 595, 608 (1992).
327. Astrid Heger et al., Children Referred for Possible Sexual Abuse: Medical Findings in 2384 Children, 26 CHILD ABUSE & NEGLECT 645, 652 (2002).
328. Idaho v. Wright, 497 U.S. 805, 824 (1990) ("Corroboration of a child's allegations of sexual abuse by medical evidence of abuse, for example, sheds no light on the reliability of the child's allegations regarding the identity of the abuser.").
329. Pamela C. Regan & Sheri J. Baker, The Impact of Child Witness Demeanor on Perceived Credibility and Trial Outcome in Sexual Abuse Cases, 13 J. FAM. VIOLENCE 187, 189, 192 (1998)
330. Barbara Wood et al., Semistructured Child Sexual Abuse Interviews: Interview and Child Characteristics Related to Credibility of Disclosure, 20 CHILD ABUSE & NEGLECT 81, 88 (1996).
331. Thomas D. Lyon, Felony Charges of Child Sexual Abuse in Los Angeles County, 1997-2001 (2012) (unpublished data) (on file with the author).
332. Peter K. Isquith et al., Blaming the Child: Attribution of Responsibility to Victims of Child Sexual Abuse, in CHILD VICTIMS, CHILD WITNESSES: UNDERSTANDING & IMPROVING TESTIMONY 203, 223 (Gail S. Goodman & Bette L. Bottoms eds., 1993).
333. John E.B. Myers et al., Jurors' Perceptions of Hearsay in Child Sexual Abuse Cases, 5 PSYCHOL. PUB. POL'Y & L. 388, 411 (1999) ("[P]rosecutors are reluctant to take child sexual abuse cases to trial unless the victim is available to testify.").
334. Goodman et al., Innovations for Child Witnesses, supra note 19, at 261 ("[A]cross studies, when innovations do affect case outcome, either directly or indirectly, the effects appear to be mainly in terms of innovation use being associated with fewer rather than more guilty outcomes.").
335. Evans & Lyon, supra note 134, at 197 (finding that hearsay was admitted in lieu of children's testimony in 6 of 235 cases).
336. Bell v. State, 928 So.2d 951 (Miss. Ct. App. 2006).
337. Id. at 953.
338. Id. at 954.
339. See id. at 956.
340. Id. at 960-61.
341. State v. Siler, 876 N.E.2d 534, 536-37 (Ohio 2007).
342. Id. at 536.
343. Id. at 537.
344. Id. at 536-37.
345. Id. at 537.
346. Id. at 536.
347. Id. at 545.
348. Flores v. State, 120 P.3d 1170, 1172-73 (Nev. 2005).
349. Id. at 1179-81.
350. Tom Lininger, Evidentiary Issues in Federal Prosecutions of Violence Against Women, 36 IND. L. REV. 687, 709 n.76 (2003).
351. Hershkowitz, Delayed Disclosure, supra note 154, at 448 (finding that 95% of physical abuse is inflicted by parents).
352. Evan Stark, Commentary on Johnson's "Conflict and Control: Gender Symmetry and Asymmetry in Domestic Violence," 12 VIOLENCE AGAINST WOMEN 1019, 1021 (2006).
353. Anne E. Appel & George W. Holden, The Co-Occurrence of Spouse and Physical Child Abuse: A Review and Appraisal, 12 J. FAM. PSYCHOL. 578, 586 (finding a 40% rate of physical abuse in families in which spousal battering occurs).
354. Hershkowitz, Delayed Disclosure, supra note 154, at 444 (finding a lower rate of disclosure in physical abuse)
355. Irit Hershkowitz & Aline Elul, The Effects of Investigative Utterances on Israeli Children's Reports of Physical Abuse, 3 APPLIED DEV. SCI. 28, 32 (1999) (finding greater reluctance to disclose).
356. Myrna Raeder, Thoughts about Giles and Forfeiture in Domestic Violence Cases, 75 BROOK. L. REV. 1329, 1347 (2010) (arguing that the rules of evidence enable the judge to consider character evidence concerning defendant's abusive personality when assessing a forfeiture claim)
357. Deborah Tuerkheimer, Forfeiture after Giles: The Relevance of "Domestic Violence Context," 13 LEWIS & CLARK L. Rev. 711, 724-26 (2009) (discussing the dynamics of domestic violence, including theories of how batterers control their victims, and how it should affect forfeiture-by-wrongdoing findings).
358. Myrna Raeder, Enhancing the Legal Profession's Response to Victims of Child Abuse, 24 CRIM. JUST. 12, 21 (2009) ("Crawford has turned these best practices into a blueprint for creating testimonial statements.").
359. LUCY BERLINER & ROZANNE LIEB, CHILD SEXUAL ABUSE INVESTIGATIONS: TESTING DOCUMENTATION METHODS, at ii (Wash. State Inst. for Pub. Pol'y eds., 2001)
360. Michael E. Lamb et al., Accuracy of Investigators' Verbatim Notes of Their Forensic Interviews with Alleged Child Abuse Victims, 24 L. & HUM. BEHAV. 699, 704 (2000).
361. Frank E. Vandervort, Videotaping Investigative Interviews of Children in Cases of Child Sexual Abuse: One Community's Approach, 96 J. CRIM. L. & CRIMINOLOGY 1353, 1389-90 (2006).