Should expert testimony about childhood sexual abuse be permitted in Pennsylvania?

Is it a matter of common sense that a child who has been sexually abused may delay reporting for weeks, months or even years? Is it a matter of common sense that victims of childhood sexual abuse may provide different details over time, and may even recant altogether? Or would expert testimony on these subjects be helpful to a jury? Even if such testimony would be helpful, would it be equivalent to telling the jury that the alleged victim is credible? These questions have arisen in connection with a controversy over expert psychological testimony in Pennsylvania.

In cases of alleged childhood sexual abuse, it is commonplace for courts in virtually all states to allow expert testimony to explain delayed reporting and/or changes in the child’s report that may have occurred over time. Testimony of this kind, however, is not permitted in Pennsylvania, in either criminal or civil cases in which childhood sexual abuse is alleged. The Pennsylvania Supreme Court has said that allowing such testimony is tantamount to allowing an expert to comment on the child’s credibility, which is outside the scope of proper expert testimony.

It has also been asserted that jurors do not need to hear expert testimony about delayed reporting or changes in a child’s report over time. These are matters of common sense, so the argument goes. Jurors, it is argued, do not benefit when an expert tells them what they already know.

Arguably, the Pennsylvania limitation on expert testimony allows some perpetrators to avoid the consequences of their acts, especially in cases where the alleged victim delayed reporting, or perhaps at some point recanted after the initial report. Without expert testimony about the frequency of delay (for example) and about the circumstances under which delay is most likely to occur, defense counsel will be free to argue that the delayed report indicates the abuse did not occur. If abuse had occurred, so the argument goes, it stands to reason that the child would have told someone “right away.”

Assuming that our goal is to prevent perpetrators from avoiding the consequences of their wrongful acts, it seems to me that we are faced with two challenges:  First, to demonstrate that expert testimony about delayed reporting (for example) can be framed in such a way as to avoid saying or even suggesting that the alleged victim is being truthful.  Second, to demonstrate that such testimony is not merely a matter of common sense, but instead is based upon scientific findings and will be helpful to the jury.

As for the first challenge, I believe that an expert can report the relevant scientific findings without saying or implying that the alleged victim of abuse is being truthful. For example, if the expert were to testify that a substantial proportion of child abuse victims delay making a disclosure (citing relevant studies), such testimony would not convey the message that the alleged victim in this case is telling the truth. Rather, it would inform the jury only that delayed disclosure does not mean the alleged victim is fabricating.

As for the second challenge, there are several studies showing that what is known about childhood sexual abuse, including delayed reporting and recantation, is not a matter of common sense. In a review article on this subject, the author concludes:

This review shows that many people in society, including some professionals, believe that delay in disclosure, retraction, and inconsistent reporting of sexual abuse are uncommon and are indicative of fabrication of allegations of sexual abuse; usually victims of child sexual abuse are fearful of the perpetrator; and most children will display clear behavioral indicators of sexual abuse. Further, many people also believe that most cases of child sexual abuse involve physical force and sexual intercourse, and that physical findings will usually exist.

Numerous empirical studies have shown these beliefs to be questionable, thus supporting the view that expert testimony would assist jurors in childhood sexual abuse cases.

Similarly, a study focused specifically on jurors  found that “relative to the experts, jurors had limited knowledge“ about sexual abuse of children, and that expert testimony would be helpful to them.

A Task Force on Child Protection has been created in Pennsylvania to “thoroughly review state laws and procedures governing child protection and the reporting of child abuse,” and to make recommendations to the state legislature in November of 2012. I hope the Task Force will consider the foregoing points when making its recommendations.

Shirley Feldman-Summers, Ph.D.

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