Misleading the Alleged Offender: Child Witnesses’ Displays of Competence in Police Interviews

Abstract

This chapter investigates Dutch police interviews with children who are a victim or a witness of sexual violence. These interviews have a great import for children. On the one hand, the testimonies allow children to tell their story and the fact that they are interviewed demonstrates faith in their competence to testify. On the other hand, the interview is a potentially difficult situation for children. Children need to provide a detailed account of sexual violence to an unknown police officer. Moreover, the institutional goal of police interviews is not to help the child and some advice that is meant to ensure reliability of the elicited information sometimes work out as being less than supportive. In this chapter we aim to show how children establish being competent, both in the situation of sexual violence and in the interview itself. We focus on occasions when children formulate their own behavior as somehow misleading the alleged offender in order to avoid the offense or to escape from it. Such reports portray the child as having actively resisted the alleged offender in the reported offense situation, while also displaying awareness of potential (interactional) repercussions when such resistance is offered explicitly and directly. Simultaneously, reports of misleading the alleged offender are situated and produced in interaction with the police officer. As such, they construct a version of what happened that emphasizes resistance and hence counters alternative versions of the story, including those that attribute blame based on the social belief that victims should resist their alleged offender (the ultimate resistance myth, e.g., Estrich in Real rape. Harvard University Press, Cambridge, MA, 1987). Although it is problematic that such a belief exists, it can be seen as a sign of interactional competence that children manage to build their accounts of what happened in ways that pre-empt such damaging versions of the story (MacLeod in Journal of Pragmatics 96: 96–109, 2016).

Professional Reflection by Naomi Dessaur

Appendices

Professional Reflection: The Dilemma of Working in the Best Interest of the Child in Sexual Abuse Cases and the Legal Process

Naomi Dessaur

Abstract

In my reflection on the findings of the chapter by Jol, Stommel and Spooren, I explicate some of the dilemmas of professionals in the legal field, even though they are committed to take the best interest of the child as a starting point for their work. One of the central dilemmas is how to safeguard the child to tell his/her own story, while also preventing the child from feeling pressured into taking legal steps and prosecuting a suspect. These dilemmatic situations may sometimes result in outcomes opposed to creating a safe, child-centered environment in which children can tell their story. In my profession, I have seen that children are smart enough to trick their abuser. This should however not be treated as a norm. I therefore want to make a plea for the claim that children are never guilty, whether they actively resist the abuse or not, and whatever the outcome of the legal process.

In article 3 of the UN Convention on the Rights of the Child (UNCRC, 1992) a reference is made to what is in ‘the best interest of the child’ when stating: “in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interest of the child shall be a primary consideration”. In this contribution, I want to reflect on what counts as the best interest of the child, when the child is involved in the legal process, as this involvement can pose different types of dilemmas for the actual well-being of the child.

As an 18-year-old volunteer, I was confronted with sexual abuse of children at the Dutch Childline (Kindertelefoon). Most of the abuse was committed by an acquaintance or close relative of the family. At the Dutch Childline you are not supposed to act, give advice or find the truth; the story of the child is the most important and the story as it is told by the child counts as the child’s truth. For me as a volunteer, this was sometimes frustrating (Berliner & Conte, 1995). We were not supposed to advise a child to go to the police or to stop the abuse. I felt that therefore we were not fully able to prevent abuse of other children who possibly could become victims as well. Looking back, 20 years later, on this period I realize that the Dutch Childline is one of the few places where a child can be open about his/her life without any kind of pressure for taking legal steps. This is worth its weight in gold. I always mention the example of the Dutch Childline to professionals for this very reason.

At twenty-two, I started to work as a case manager at the Dutch Child Protection Agency where children are guided in a volunteer framework. I worked with children who experienced sexual abuse and who were also in the middle of a legal process. During the eight years I worked at the Child Protection Agency, my opinion about the legal process, and what it means for children to be part of it, changed. I often felt a tension between what was supposedly in the best interest of the child and the importance of prosecuting a suspect. At the same time, it remains important to prosecute a suspect since that is the only way to stop the abuse.

As a trainer, I teach professionals how to conduct conversations with children about (suspicions of) sexual abuse and/or other forms of child neglect or abuse. During the training we discuss how there may be different interests at stake for the child when filing a police report and how this may pose dilemmas for the child. There is almost no ‘right’ choice. Of course the best interest of the child prevails, also at those times, but what does this mean if there are clear signs that the abuse is involving more children? There are no guarantees that the best interest of every single child can be served at those times and what sounds like an important goal to adhere to then seems so much harder to maintain. Consider for example the implications for children who are then asked to take up the role as a witness in an abuse case to strengthen the case against a suspect.

The Effects

To be a witness in an abuse case is often not without negative consequences for children (Vanoni, Lunemann, Kriek, Drost, & Smits van Waesberghe, 2013; Wijers & De Boer, 2010). The legal process is, as the chapter by Jol, Stommel & Spooren also shows, primarily about truth finding, collecting evidence and determining whether the sexual abuse did really happen. It is clear that on the one hand, we need such an objective and impartial process in an attempt to find the truth and to convict suspects. On the other hand there is the best interest of the child and whether that is served in those instances, for example when having to take part in multiple police interviews. I consider this to be another aspect of the paradox, which I cannot totally unravel, but which this chapter also illustrates.

In transcriptions of police interviews we often see that investigators start the interviews with a clear, and neutrally worded question, after which they encourage children to go on by verbal or non-verbal confirmation and by providing short summaries. Golden rules I teach professionals in my trainings are:

• the story of the child has to be taken seriously at all times;

• refrain from using leading questions as these provide suggestions as to which answer is preferred or considered ‘best’ or right’;

• the child is master over her/his story.

I see comparisons between what I capture in these golden rules with what police inspectors who interview children do in practice, but I also often miss empathy and warmth in their method of interviewing (and questioning ) children. I’ll come back to this later.

It would be very good if we could find ways to convict suspects without the child, who has been the victim of the suspect, necessary play a role in the prosecution. Children can feel enormous pressure and guilt when a conviction is being made. To establish whether someone is guilty should maybe not depend on the story and experiences of the child. This is even more true when there is (some form of) loyalty with the abuser involved. This is something that is often the case when the abuse has taken place over a longer period of time and/or when there is (or has developed) a personal (family) bond. In those instances, feelings of guilt can even be stronger for the children involved.

The fear children can experience, long after the abuse has stopped must not be underestimated. Threats that abusers use with their victims are often unimaginably cruel and manipulative, which the following examples show. Abusers may say things like: “I’ll kill your mother if you tell anyone.”; “No one will believe you.”; “You wanted it yourself so you are also guilty.”; “I cut off your fathers ear.”; “If you tell anyone, I will harm your brother/sister.” When fears like these play a role, talking to a police inspector or being involved in a legal process can be terrifying. In some instances, it might result in secondary traumatization and victimization. We speak of secondary traumatization when children are traumatized again by the legal process. In that case the post-traumatic stress reaction may deepen. This risk is especially high with victims of rape, violence or human trafficking. These children need recognition and support, while an interrogation, also in an informative way, can be felt like an attack on their personal credibility (Vanoni et al., 2013; Wijers & De Boer, 2010).

The way children are treated by the police, the influence of reactions of third parties or the attitude of the defense attorney can cause secondary victimization (Verwey-Jonker Institute, 2014: 17). The way children are treated may be considered too formal, or too much like there would be no difference between talking to children and talking to adults. The needs of the child victim might paradoxically as it seems, be overlooked when children are part of a legal process (Maas-de Waal, 2006).

It would be very good to avoid these risks for secondary traumatization and/or victimization. In Israel, there is a possibility to substitute the child in the legal process by a social worker, who will appear in court instead of the child (Morag, 1992). In cases of sexual abuse it is the social worker who talks with lawyers, police, prosecutor, defense and will also represent the child in court. This might be an interesting example to avoid the burden of telling your story time and again and to avoid involvement in the conviction. In the Israeli case, responsibility is removed from the child and transferred to an adult. However, in this Israeli format the social worker has to be trained to guarantee that the story he or she hears from the child in the first place is genuine and true. We still know very little about the ways in which social workers invite children to tell their story (but see van Nijnatten, 2013 for some of the characteristics of those talks in research conducted in the Netherlands).

Of course there is another side to this as well. Children can be relieved that the (sexual) abuse stops, that their story is heard, the abuser convicted. They may feel proud to be involved in this process. It can even restore their self-esteem. However, even though children might adapt well after such a traumatic experience , the lasting effects of having experienced (sexual)abuse should never be underestimated.

Offering Resistance

During many years of working with children of different ages, it has become clear that every child reacts differently to stressful and traumatic events . Not every child will actively and visibly resist sexual abuse. Some children will freeze (the so-called fight-or-flight response), dissociate or will do nothing, simply because they can’t. In my opinion, doing nothing can also be a coping strategy and ensure the abuse to stop or even worse happening.

The question then also arises whether resisting or the lack of resistance should be taken as a decisive factor in determining whether sexual abuse has taken place. Can we talk about compliance or even some sort of compliance if it’s based on inequality, which is always the case with sexual abuse of a minor? In the case of sexual abuse I think that a child can never be guilty, whether it actively and visibly resisted the abuse or not. As mentioned above, a child can be completely influenced, terrified by the manipulations, scared or indoctrinated and because of all those reasons, incapable to offer resistance.

Tricks

However, children are also capable to fool an abuser and use tricks. This shows how inventive and self-reliant children can be. I am still surprised how smart children sometimes are, in the circumstances, to deal with certain difficult situations and how they ‘protect’ themselves. To use the word protection in instances in which the sexual abuse does not stop is maybe an extraordinary term. Preventing or stopping violence and/or abuse are not the only ways to resist and protect oneself. Using tricks are a form of resistance as well, such as the trick that was mentioned in the chapter (‘I pretended to sleep,’ see fragment 4) or dissociation (an unconscious process, fleeing the situation), or using a pretend mode ‘I needed to stay in school longer’. Similar to instances in which children freeze these can all be considered coping mechanism to prevent worse.

Recommendations

The strategies of deception discussed in the chapter by Jol and colleagues demonstrate the seriousness of the situation and the necessity for a coping strategy. The child had to dissociate or use a trick to survive. Resistance does not only show in spoken language.

An experience-expert and colleague who went through multiple forms of child abuse and sexual abuse, and is now working with victims of sexual abuse, said:

I was raped by my father regularly between the age of five and eight. I very much wanted the sexual abuse to stop. I used tricks to make sure I would not utter a word since I was terrified, because my father threatened me with all sorts of terrible things. I literally had no words to tell what was happening. I was not able to give words to what happened with my body nor to convey the stress and fear I felt. How was I supposed to give words to the feeling of feeling completely insecure? At home I was not safe and my body and language also felt unsafe. I was terrified to speak up.

This girl was coping by keeping quiet and building up such muscle tension that she would not shiver and speak after the abuse. She might not have been able to tell her story to a police inspector and her abuser might not have been convicted. On the other side, the evidence was so overwhelming that even with her not being able to verbalize what she had experienced a conviction could have been the outcome. We may begin to see how warmth, support and empathy is an important factor and could have contributed to help this girl to be able to verbalize her experiences. After years of counseling and therapy, my colleague was able to tell her story and use it as an experience-expert.

In the fragments Jol, Stommel and Spooren present in their chapter, the police officers seem not to be warm or supportive. However in my opinion, whether or not they would be supportive probably not have hindered the interrogation. Abused children come from an unsafe environment. It is recommended to create a safe atmosphere before expecting children to tell their story, since telling your story to a stranger is quite unsafe anyway. Police officers may stay neutral, but this does not necessarily mean that they act in an ‘unattached’ manner. It is possible to be neutral and to be supportive at the same time. Examples I see in my work are giving a compliment, for instance, to express that it takes courage to tell this story. To explicitly state that a child can take the time it needs to say something (or not) or that the child is not to blame, whatever the outcome of the legal process.

I want to conclude by saying that my recommendations from the field are underlined by the policy recommendations by the Council of Europe for a child-friendly justice system and the Lanzarote Convention (2007). The convention states helpful guidelines for states that are part of this Convention:

Each Party shall take the necessary legislative or other measures to ensure that:

• a. interviews with the child take place without unjustified delay after the facts have been reported to the competent authorities;

• b. interviews with the child take place, where necessary, in premises designed or adapted for this purpose;

• c. interviews with the child are carried out by professionals trained for this purpose;

• d. the same persons, if possible and where appropriate, conduct all interviews with the child;

• e. the number of interviews is as limited as possible and in so far as strictly necessary for the purpose of criminal proceedings;

• f. the child may be accompanied by his or her legal representative or, where appropriate, an adult of his or her choice, unless a reasoned decision has been made to the contrary in respect of that person.