Handling of Sexual Abuse Allegations
By Dr. Alan Taylor
In October the Louisiana Supreme Court ruled on a child custody case that included allegations of child sexual abuse. The court upheld the original trial court’s conclusions, and dismissed the appeals court’s objections, finding them without merit, but not before even more confusion and potential emotional anguish may have occurred.
The case was a strongly contested one where some, well- meaning health professionals became involved, but who did not have the specific knowledge to understand the complications that can be encountered in these cases.
In a guest article for this issue of the Times, Baton Rouge forensic and clinical psychologist, Dr. Alan Taylor, describes the problems in this type of case as “iatrogenic effects of legal and mental health practices.” The lower appeal court’s reversal was due to a lack of understanding that Taylor portrays as: “The first error is an assumption of expertise where it is lacking, and the second error is failure to recognize expertise when it is present.”
Forensic and clinical psychologist Dr. Alicia Pellegrin was the court-appointed expert in the case, and like Taylor, is a member of the Association of Family and Conciliation Courts (AFCC), an organization providing specialized training in this complex area of practice.
Pellegrin said that the case and others like it point to the need for more training and understanding in this demanding sub-specialty. “It is imperative that anyone working in this field have an understanding of child development, including language and cognitive processes,” she said, “child psychopathology, family systems, the legal statutes in the state in which one practices, and an understanding of relevant case law.”
Pellegrin told the Times, “One of our important functions can sometimes be simply to provide education to Judges that can inform their decisions that affect the most vulnerable in our society, our children. Towards that end, one must understand the effects of divorce on children and the particular vulnerabilities that certain children bring to the process. Finally because one or more serious allegations often arise in the context of a custody dispute, an understanding of child sexual abuse, domestic violence, and substance abuse, is critical.”
We present Dr. Taylor’s article in this special report and also cover aspects of the upcoming conference to be held in New Orleans by the Association of Family and Conciliation Courts, a premier provider of training and multidisciplinary thought in this complicated and important sub-discipline in psychology.
A recent Louisiana Supreme Court case (Louisiana Supreme Court case No. 2014- CJ1119) involved a custody battle where allegations of sexual abuse surfaced and caused a great deal of anguish and damage. This case illustrates what I call the iatrogenic effects of legal and mental health practices in custody cases with sexual abuse allegations. Serious mistakes can be made in both the legal and mental health systems that cause great harm to families and set bad precedents for managing these difficult cases. Although this case involved a custody battle, the handling of sexual abuse allegations in general is a volatile topic in all arenas – civil or criminal, public or private.
The first error is an assumption of expertise where it is lacking, and the second error is failure to recognize expertise when it is present.
The issues, problems, and solutions to handling sexual abuse allegations can be the subject of many articles, but this one will concentrate on some conceptual and practical points to ponder.
A Two Part Recipe for Bad Outcomes
1. The illogical assumption that because a person or agency works with a certain population, this makes him/them an expert regarding that population (substance abuse, sexual abuse, or domestic violence)
2. The more disadvantaged and overlooked the population being served, the poorer the training and resources available to the frontline staff who serve them (this is a statement of empathy, not disrespect). A great and unfair burden falls on staff with limited training and experience.
Do not expect expertise from this combination. In settings that deal with the worst human problems, training should focus on collecting data as objectively and clearly as possible at the lower levels, but analyzing and drawing conclusions is a higher-level function that requires professional training and experience. In many cases with sexual abuse allegations, this higher level function is never performed or significantly delayed while misguided efforts to help compound the problems.
A Case Example
To illustrate the forces at work and the complexity of ethical and professional issues, the following and unfortunately “typical” case is offered.
Assume a divorce proceeding involving two parents and a preschool aged child 4 to 5 years old. At a point shortly after the initial separation, allegations are made by the mother on behalf of the child that indicate possible sexual abuse. There is no history of previous allegations being made.
To support these claims, the mother (often advised by her attorney) takes the child to a pediatrician for an exam. The pediatrician sees only the child and the mother and receives all of the background information from the mother. Physical findings are negative. The mother subsequently takes the child to a mental health professional and relates information concerning the child’s behavior and reasons for suspected abuse. The mental health professional obtains information only from the mother and child, but is told about the previous pediatric examination. The physician may also have already made a mandated report which is described by the mother as a “finding” regarding abuse.
The mental health professional does not contact the other parent, who has not been informed of the appointment or the allegations. Based on some behavioral evidence and statements given, the mental health professional may also make a report to child protection authorities, who proceed with an investigation.
The OCS investigation automatically stops any visitation between the suspected parent and child. Pleadings are filed in court to eliminate visitation or have it supervised (often in an ex parte hearing in which information from the evaluations is presented for the first time). The judge “out of an excess of caution” concurs that visitation will be suspended until further evaluation can be completed.
The accused person is not allowed to have contact with the child and, should he become angry and upset with the mother, may find himself under a temporary restraining order. The accused parent may also be denied access to schools or information about the child and may find communication with daycare personnel cut off. This parent is often advised by his attorney to refuse to have any contact with previous evaluators who have seen the mother and/or child, as these people will be considered biased.
An independent custody evaluation may be requested where a petition is made to the court to require all parties to participate. However, the court may instead require that the accused parent undergo a mental health evaluation concerning their emotional stability, propensity for abuse, or fitness to proceed as a parent with visitation. The person performing this evaluation may have no access to the children or the accusing parent.
By this time, an array of as many as five or six mental health professionals may have become involved, none of whom has contemporary and comprehensive information about the history preceding the allegations, events subsequent to the allegations, results of other assessments, or contact with all involved parties. The evaluator may then be called to court to present findings, often as a witness for the particular party they have assessed. The length of this process may take from two to three months to a year or more, during which the accused parent may have little or no opportunity to meet or interact with their child.
If a full court hearing is completed and there are no definitive findings of abuse, the length of time with no contact and the resulting estrangement often necessitates meetings in a therapist’s office or supervised visitation on an infrequent basis to attempt a restoration of the parent/child relationship and progress toward a more normal course of visitation. In some cases, especially if the allegations have been adamantly maintained or supplemented throughout the process, there will be an immediate resumption of fresh allegations once visitation is resumed, setting the stage for another round.
The negative impacts on a child in the preceding section include the following:
1. The child suddenly and often inexplicably loses contact with the accused parent.
2. The child becomes the “litmus test” whose behavior, thoughts, and feelings are intensely scrutinized for any clues that might suggest or support allegations of abuse.
3. A child who reports information may have this information edited and reflected back by their parent, with interpretations or suggestions about what the child remembers or has experienced, along with comments about the intentions of the other parent. The child is exposed to an intense focus on sexual topics and behavior. Multiple evaluations suggest to the child that information of a sexual nature is considered highly important and attended to very closely. Care is often taken to reassure the child that producing and elaborating this material both in language and behavior will bring no negative consequences and indeed may bring praise.
4. Multiple evaluations imply that many adults are interested in and concerned about the sexually charged behavior. The child is led to assume that something “bad” or “wrong” has or was occurring during the time spent with the other parent. Often caretakers and teachers are alerted to observe the child’s behavior and are given background information suggesting reasons why they need to be concerned.
Do’s and Don’ts for Mental Health Professionals
• Whenever receiving an initial referral concerning a child, always ask whether there is an intact family situation. If not, ask what type of custody and visitation arrangements are in place, to be sure there is no underlying agenda.
• If it appears that the information developed from assessment or treatment is quite likely to be used in a forensic setting, immediately make it clear there will be strict rules and conditions agreed to before any services will be provided.
• The best practice is to perform only court-ordered evaluations that allow access to all parents and children. The next best practice would be that both parents be notified and informed of the nature and reason for the services with full access to information and participation by both. With extreme caution: agree to see one party only for a specific purpose, not relating to custody itself, with a clear explanation of the limitations in making any interpretations involving the other parties. Finally, a collaborative approach with other involved professionals is likely to be a good idea.
For Custody Evaluators:
1. Be aware of contamination effects from the number of previous assessments.
2. Do not use questionable or unsubstantiated assessment methods such as dolls.
3. Develop a model and structured approach in terms of interpreting data for relevance and weight (for example, timing of allegations, alternative explanations for normal developmental behavior, possible other potential perpetrators, information from other evaluations, etc.).
4. Remember that there is no expert instrument or procedure that can say whether sexual abuse did or did not take place.
It takes a brave soul to venture into the arena of high conflict custody battles, as well as any other areas that involve allegations of sexual or physical abuse. These cases are complex and problematic, in that concrete and objective information is scarce, with a considerable amount at stake in terms of emotional and legal consequences. Most judges dread situations in which there is ambiguous evidence and the need to make findings that pose a risk of failure to act on legitimate abuse allegations versus severe damage to parental access to relationships with
children. Attorneys who are advocating for a parent risk failing to act in the best interest of the children. Attorneys should never advise a client to get an evaluation or treatment concerning a child without notifying the other parent and providing an opportunity for them to participate in the
process. There should not be a contest to see who gets to court or the professional’s office
first. Mental health practitioners are presumably guided by children’s best interest, but there are often forces at work that involve multiple roles and becoming manipulated into questionable ethical positions.
Courts should strongly discourage ex parte or one-sided presentations of “evaluations” or treatment findings where the source of the information is compromised by lack of access to all
information. Appointing an independent practitioner who has full access to all relevant parties, persons, and information is definitely the best practice.
The Louisiana Supreme Court case illustrates the major need for more training and education at all levels (attorneys, judges, and mental health professionals) to avoid the collateral damage done in attempting to work with cases involving sexual abuse
allegations. One of the best available resources would be the Association of Family Conciliation Courts, which has addressed this serious issue over the years in journal articles, training/workshops, and provision of model standards and guidelines for competent and ethical practice. Every national annual conference addresses the problems and developments in this area with reports from leading researchers and practitioners. May 27-29th of this year will afford a golden opportunity for practitioners and educators as the National Conference is held in New Orleans.