Behavior Changes in Child Sexual Abuse Cases
Our client was accused of sexually touching another juvenile when our client was fourteen and the other juvenile was more than 36 months younger than our client. In Washington State, children under the “age of consent” (16) could have sexual contact that is not considered criminal. However, the other juvenile must be a “peer”, i.e. within a certain age range to the other juvenile. For instance, if a fourteen year old has sexual contact with another fourteen year old, the activity may not be criminal. This depends on whether both individuals are willing participants. A fourteen year old cannot have sexual contact with a nine year old, even if the nine year old is a willing participant! The fourteen year old is not a “peer” in this situation. Our client was a juvenile, but too old to have sexual contact as a peer with the complaining witness.
The mother of the complaining witness suspected something had happened to her child. She testified that her concerns were based in large part on “behavior changes” which were quite significant to her. It is my experience that courts always allow some testimony about behavior changes with a child. However, the court often allows the testimony to explain why a parent suspected their child had been sexually abused. The problem created by this testimony is that there are built-in assumptions: parents are unable or unwilling to accept that behavior changes are highly subjective, and could be explained by a host of non-sinister reasons, such as the child is experiencing adolescence or normal hormonal change.
The mother testified that her daughter was overly emotional, and had begun to “dress differently.” The problem here is that the alleged abuse occurred when the daughter was nine, and she was twelve when different dress was noticed. The mother testified that her daughter liked to dress up in “girlie-girl” dresses. Now her daughter was wearing flannel, grungy clothing. We argued in defense that this was just like every other middle school adolescent. The mother provided a photo of her daughter in flannel clothes. It was not particularly flattering, but grunge rockers are not trying to look like homecoming queens. It was all too subjective. A very old Washington case, State v. Maule, 35 Wn.App. 287 (1983), discusses behavior changes, but only in the context of expert testimony. Its holding, which is logically helpful, is probably limited to whether expert testimony is helpful to a trier of fact, and, therefore, admissible. The Maule court expressed strong reservations about such testimony. This kind of expert testimony is really “substantive evidence to help persuade the jury that [the Defendant] was guilty.” The Maule court said the expert’s theory that sexually abused children display particular identifiable characteristics was not shown to be supported by accepted medical or scientific opinion.
The problem we faced with our fourteen–year-old juvenile client was that the mother of the alleged victim believed exactly that: the reason for her daughter’s behavior changes, i.e. the change in clothing, was due to her incurring a sexual assault by our client. Since this suspicion preceded the mother’s continued questioning of the daughter whether “anything happened,” the court allowed testimony concerning the behavior change in. Behavior change by an alleged sexual assault victim always comes into evidence, in some form.
Fortunately, in our case, the mother admitted on defense cross examination that she did not consider other factors, like youth culture or adolescent changes due to peer acceptance, as alternative explanations for her daughter’s change in attire. While we were able to secure an acquittal for our client, there is always a concern over how much weight a trier of fact gives to such behavior changes.
If you have a criminal matter you would like to consult with a lawyer about, please contact Jan Olson at Ellis, Li & McKinstry, PLLC at (206) 682-0565.