Corroboration of a Child's Sexual Abuse Allegation With Behavioral Evidence
By Shaffer & Engle Law Offices, LLC posted in Sex Crimes on Monday, February 25, 2013
The credibility of a child sexual abuse victim may not be bolstered by testimony from an expert in Pennsylvania State Courts, however, there is a difference of opinion in the Federal Courts.
By Attorney Elisabeth K.H. Pasqualini, Child Sexual Abuse Defense Attorney, Harrisburg, PA
Pennsylvania Law Does Not Currently Allow for Expert Witness Testimony to Corroborate Victim's Symptoms
In several cases, the appellate courts of this Commonwealth have held that the testimony of doctors or child experts is inadmissible in child abuse prosecutions.
For instance, it was reversible error to admit testimony of a clinical child psychiatrist that changes in alleged child victim's behavior were consistent with sexual abuse and that the child's ability to differentiate reality from fantasy was excellent for his age. The testimony was inadmissible as tending to bolster the child's ability to respond to questions and to understand or articulate matters when the child's competency had already been determined by the court and when dynamics of child sexual abuse, in terms of consistent patterns of behavior by children generally, was never an issue. Commonwealth v. Emge, 381 Pa.Super. 139, 553 A.2d 74 (1988).
Testimony by the prosecution's expert in the area of child sexual abuse that certain personality and behavior characteristics, which another witness said he observed in alleged sexual assault victims, are found in sexually abused children served only to bolster the credibility of the alleged victims, and thus was inadmissible; general patterns of behavior exhibited by children who had been sexually abused was not an issue. Commonwealth v. Higby, 384 Pa.Super. 619, 559 A.2d 939 (1989).
An expert's testimony about behaviors exhibited by sexually abused children ("child sexual abuse syndrome") as well as reasons why sexually abused children do not always report abuse immediately after the incident is inadmissible. Commonwealth v. Sees, 529 Pa. 450, 605 A.2d 307 (1992); Commonwealth v. Dunkle, 529 Pa. 168, 602 A.2d 830 (1992).
Tender Years Hearsay Exception in PA- Different than Corroboration
Under the provisions of the Title 42 Pa.C.S. Â§ 5985.1, an otherwise inadmissible hearsay statement of a child (less than 12) to an adult describing the offense is admissible if:
- The court finds, in an in camera hearing, that the evidence is relevant and that the time, content and circumstances of the statement provide sufficient indicia of reliability; and
- The child either: (i) testifies at the proceeding; or (ii) is unavailable as a witness.
Federal Evidentiary Rules Allow for Corroboration of Child Witness Behavior
Sexually abused children react in certain ways that are not comprehensible to the average laymen. In the context of a child sexual abuse case, a qualified expert can inform the jury of characteristics in sexually abused children and describe the characteristics the alleged victim exhibits. A doctor who examines the victim may repeat the victim's statements identifying the abuser as a family member if the victim was properly motivated to ensure the statement's trustworthiness. A doctor can also summarize the medical evidence and express an opinion that the evidence is consistent or inconsistent with the victim's allegations of sexual abuse. What a doctor may not do:
Provide an opinion to the jury that the abuse has occured;
A doctor also cannot pass judgment on the alleged victim's truthfulness in the guise of a medical opinion. That is the jury's function.
The doctor may not base his diagnosis solely on the child's allegations of abuse. U.S. v. Whitted, 11 F.3d 782, 38 Fed. R. Evid. Serv. 939 (8th Cir. 1993).