The Interaction Between Children's Developmental Capabilities and the Courtroom Environment: The Impact on Testimonial Competency

1. Introduction (continued)

1. INTRODUCTION (continued)

1.1 Children and the Courts

Over the last twenty years, there has been a steady increase in the number of children who testify each year in criminal court in Canada. This is in no way a spurious development, but rather the culmination of a multiplicity of factors that have emerged over the last two decades. It began with a slow, but positive attitudinal change on the part of helping professionals towards children's competencies to provide accurate information about events in their lives. This gradual change in attitude towards children's disclosures, was reinforced in large part by social science research carried out in the 1980's in the United States on children's testimonial capabilities (Berliner & Barbieri, 1984; Goodman, 1984; Melton & Thompson, 1987; Myers, 1987; Whitcomb, Shapiro, & Stellwagen, 1985). More and more children were being identified in mental health clinics and residential treatment facilities, with behavioral and emotional symptomatology suggestive of past victimization. As case workers, treatment providers, and other professionals started asking more pointed questions, children responded with accounts of their past abuse.

This generally more favorable attitude on the part of professionals towards the credibility of children, which emerged in the mid-eighties in Canada, coincided with the release of the Badgley Royal Commission results, which identified child abuse as a significant problem in this country (Committee on Sexual Offences Against Children and Youth, 1984). In reality, this national survey confirmed what professionals already suspected from their caseloads, but the Commission results served to further awaken the general public to the extent of the problem. The startling statistics that emerged, described both the incidence and prevalence of childhood victimization in Canada and the apparent inefficient handling of cases of child abuse by the systems that were in place to protect children. The findings spurred heated discussions on all levels of government. How could our society better protect children in Canada from sexual and physical abuse? Listening to children was identified as the first step.

A more accepting disclosure climate with respect to allegations of abuse by children, led to a gradual increase in the number of cases reported to mandated agencies such as the police and the Children's Aid Society. What became apparent rather quickly, was that the next identified step had to involve the development of appropriate responses by mandated agencies to children's disclosures of abuse.

Motivated by this positive change in attitude towards abuse disclosures by children, and in recognition of the urgent need to deal more effectively with this social problem, Canada embarked on the development of new legal remedies to combat childhood victimization. Legislative amendments were introduced in 1988, most notably Bill C-15 enacted in 1988 (An Act to amend the Criminal Code of Canada and the Education Act, 1985). This bill contained significant changes to the Canada Evidence Act and Canadian Criminal Code in respect of child witnesses and child sexual abuse prosecutions. The amendments included the introduction of substantial new protections, most notably child-specific sexual offences and provisions to help children testify about their victimization. Further amendments were then introduced in 1993 (An Act to Amend the Criminal Code of Canada and the Young Offender's Act, 1993).

Of most significance from the point of view of children's involvement in the court system, was the abrogation in law of the need for corroboration of unsworn testimony and the negation of the distinction between sworn and unsworn evidence for children under fourteen years of age. These two changes to a previously restrictive reception of children's evidence in the courts essentially opened the courtroom doors, allowing children to testify even if they could not swear an oath and even in the absence of corroboration. Given the particularly clandestine nature of child sexual abuse which often does not involve injury and medical findings (Sas, Cunningham, Hurley, Dick, & Farnsworth, 1995), coupled with the reality that many young children have difficulty defining an oath in court (Bala, 1993; Sas et al., 1993; Wilson, 1989; Wolfe, Sas, & Wilson, 1987), these two legislative amendments were responsible for allowing more children into the courtroom to tell about their victimization experiences.

In the nineties, a number of historical cases of child sexual and physical abuse came to light as well, and these cases emphasized the importance of responding to children's disclosures of abuse. The Canadian public's awareness of the extent of child abuse increased tenfold through exposure to the horrific details that emerged in a high profile historical abuse case at Mount Cashel Orphanage in Newfoundland (Harris, 1990). Many questions abounded. How could so many children (now adults) have suffered and no one notice? In spite of rumors of abuse at Mount Cashel, why was nothing done?

Since that case came to light, the public has been exposed through extensive media coverage to the victimization of large groups of children in residential schools and other institutions, the proliferation of child pornography rings on the internet, and the involvement of children in sexual exploitation rings in major Canadian cities (Sas, Hurley, Cunningham & Austin, 1997). In addition to these multiple victim multiple offender cases, there have been a number of celebrated cases involving high profile individuals as victims. One such case involved Sheldon Kennedy. Sheldon Kennedy was a star junior hockey player for the Swift Current Broncos in Saskatoon. At age 20 he disclosed sexual abuse by his coach Graham James. This case in particular brought the problem of childhood victimization to the forefront.

As can be expected, accompanying the rise in high profile child abuse cases in which children testified has been an increase in criticism by defense lawyers regarding the veracity of young children's accounts of sexual and physical abuse. In the United States, the Kelly Michaels case (State v. Michaels, 1994) and the McMartin case (Montoya, 1993), both of which involved large numbers of preschoolers in a day care center; and in Canada, the Martinsville's matter in Saskatchewan (Roberts, 1995) which emphasized the potential dangers of accepting children's accounts of abuse when inappropriate and suggestive interviews had taken place before court. In comparison, the Prescott matter (Blishen & Gummer, undated; Pagnello, 1992) was an example of a well conducted multiple victim multiple offender criminal investigation.

In response to concerns raised in these North American cases, as well as criticisms of other investigations abroad (R v. Ellis, 1994)1, the last five years has found social science research focusing its attention on the troublesome issue of children's suggestibility in response to suggestive and leading questions in forensic interviews. A proliferation of studies examining the potential for contamination of children's reports by interviewers and the suggestibility of children's memories have been conducted (e.g., Bruck, Hembrooke, & Ceci, 1997; Ceci & Bruck, 1993, 1995; Lyon, 1999; Poole & Lindsay, 1997, 2001).

These studies on suggestibility and memory in children have raised concerns about the accuracy of very young children's memories. A common finding in these studies, has been that children's memories are deficient compared to that of adults and more suggestible to post-invent information. Some defense lawyers have even raised the question of whether young children can ever be depended on to give reliable accounts in a court of law.

In response to the increasing backlash against children's evidence in court and in light of study findings on children's susceptibility to suggestion, attempts have been made to provide clearer guidelines for interviewing children and more sophisticated abuse protocols for mandated agencies carrying out forensic investigations (Coulborn-Faller, 1996; Poole & Lamb, 1998; Saywitz, 1995; Saywitz & Elliot, 1999). Improving the quality and integrity of investigative interviews in light of current research findings has become a major priority.

In summary, the last twenty years or so has produced many changes in the way we respond to the problem of child abuse. One major development has been a stronger legal response to the problem and the introduction of more and more child witnesses into criminal court as complainants in prosecution cases. The next section of this paper will discuss the involvement of children in court, in particular the expectations of children when they testify. This is intended to provide a background for the subsequent sections, which will focus on different aspects of children's development and their impact on testimonial competency.

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