Investigating Child Sex Abuse Allegations: A Guide to Help Legal Professionals Distinguish Valid From Invalid Claims

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Investigating Child Sex Abuse Allegations: A Guide to Help Legal Professionals Distinguish Valid From Invalid Claims

Indeed, if a little knowledge is dangerous, where is the man who has so much as to be out of danger?

- THOMAS HUXLEY

Doubt is not a pleasant condition, but certainty is an absurd one.

- VOLTAIRE

Part one: Various topics that may be of interest to counsel

Difficulties in defining child sexual abuse

In view of the enormous public concern about sexually mistreated children, and the many legal cases during the past decade or two that involve such allegations, it might come as a surprise that none of the words in the expression child sexual abuse is at all well defined. Because all three of these words are defined differently by different clinicians, different research investigators, and different lawmakers, there is no consensus about what they mean.

For example, some researchers consider a child to be someone below the age of 18; others use a cutoff of 17, and still others, 16 (Haugaard, 2000; Wyatt & Peters, 1986; Holmes & Slap, 1998). A similar situation is found with respect to the law: as of 2000, in about half of European jurisdictions, consensual sexual relationships with adolescents from age 14 were legal, and were legal by age 16 in nearly all of them (Jenkins, 1 998). And in America before 1885, "the great majority of states still maintained the English age of consent of ten years." Even after 1900, five Southern states still set it at that age, and Delaware's statutory age of consent stood at age seven (Jenkins, 1998, p. 24).' Thus, many American cases that are currently considered examples of child victimization are neither legally such in other Western countries now, nor would they have been considered so in the United States in the past.

In like manner, defining sexual has proven to be most difficult. "Although some behaviors are considered sexual by almost everyone (e.g., intercourse, genital fondling), there is less agreement about others, such as bathing children or sleeping with them. The intent of the adult [is an important consideration] when deciding whether a behavior is sexual, but intent ... is seldom obvious and almost always open to interpretation" (Haugaard 2000, p. 1036).

One case vividly illustrated the truth of these statements. A happily married decorated army veteran was tickling his 12year-old daughter, who was lying on her bed fully clothed, by "razzing" her stomach just below the umbilicus. A neighbor who was passing by the open bedroom door at the time called the police to report what she considered child abuse. The father was arrested and charged with immoral communication with a minor. The prosecutor refused to drop the charge even though the daughter was laughing during the incident, even though she repeatedly testified that the tickling was a game the whole family often played, and even though medical and psychological evaluations revealed no evidence of mistreatment. It was only many months (and several thousand dollars in legal bills) later that the father was again allowed to see his daughter.

And finally, controversy surrounds the meaning of abuse. Cases at the extreme pose few problems, but less dramatic ones spark disagreement. Do we wish, for example, to consider it abuse if Jeff, a psychologically mature 17-yearold, chooses to passionately neck with Elaine, his 31 -year-old neighbor? What if Elaine has intercourse with him? What if Elaine was the 17-year-old and Jeff the neighbor? These examples perhaps show the difficulty of distinguishing between abuse as actual, tangible harm to a child or adolescent, on the one hand, and abuse as a violation of social norms, on the other; it should not be assumed that the latter necessarily leads to harm. (Jenkins, 1998; Peters & Range, 1995). "The underlying problem is that our conceptualization of . . . abuse is inherently driven by social ...

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