Friday, September 8, 2017

Recent decision in Hudson County Superior Court may have great import in criminal and DCPP cases involving alleged child sexual abuse

A recent decision that came out of Hudson County Superior Court on remand from the New Jersey Supreme Court, which asked the trial court to conduct a hearing on whether Child Sexual Abuse Accommodation Syndrome bore scientific liability under N.J.R.E. 702. The trial court concluded that there was no scientific validity to have testimony about CSAAS admitted at trial. While this was an unpublished decision, it came about as a result of an order for remand by the NJ Supreme Court to hold what is called a Rule 104 hearing.

This decision has a very carefully reasoned analysis as to why the so-called “expert testimony” on CSAAS is unreliable. It notes that the use of the word “syndrome” itself is inaccurate and that the psychologists who refer to it say it should be considered more of a pattern of responses instead of which is not even acknowledged to be a syndrome but has been referred to as a "pattern"a pathological or diagnostic condition. The court duly noted that there was not even a clear definition of what CSAAS. One expert, Ronald Summit, M.D. described it as “a common denominator of the most frequently observed victim behaviors.” He himself writes that it was to be understood as a “clinical opinion, not a scientific instrument.”  The defense in the trial argued that the “roadmap” that this expert refers to was one of advocacy for “their patients in a therapeutic and courtroom setting.” In other words, trying to explain behaviors that might belie an accusation of childhood sexual abuse by creating ex post facto “reasons” such as denial, recantation, secrecy, and so on.

The court noted that the State’s proffer of using this CSAAS as a “roadmap” to educate juries was to provide an explanation as to why they show up more commonly among abused children than among non-abused children. But the court in fact found reliable defense expert testimony that many of the so-called symptoms that were used to show CSAAS among sexually abused children were just as likely to show among other sections of the child and teen population. The court referred to those studies and controversies in the psychological and psychiatric community as to whether CSAAS is even accepted. For instance, there is no DSM classification and is not accepted by the American Psychological Association, the American Psychiatric Association or the American Psychological Society. It lacks data supporting its validity, even from one of the State’s experts, Dr. D’Urso, of the Audrey Hepburn Children’s Hospital, who testified as to his extensive clinical background in dealing with abused children yet stated that he never produced or maintained data on the more than 35,000 cases that he handled and never published any studies of his findings.

The court also made reference to the fact that, as Section Chief for the Audrey Hepburn Children’s Hospital (AHCH”) which receives considerable funding from the State and agencies like the Division of Child Protection and Permanency, there was the inherent potential of bias in the opinions that he offered to the court on matters of childhood sex abuse.

Much of Dr. D’Urso’s testimony was contradictory and showed that often non-abused children were as likely or more likely to exhibit the same patterns of conduct as abused children would . “Helplessness” would be present in non-abused children. Piecemeal disclosure of facts is a pattern not only among non-abused children but adults as well.

One of the authorities that the State’s experts relied on published his initial study in a magazine that was not even a peer reviewed journal, but in a special issue of Child Abuse and Neglect. This expert then went on to say how many of his sources of information came from such visionaries as discussions with Kee McFarlane, an unlicensed therapist,who was later discredited “child abuse expert” who conducted manipulative interviews of children who attended a pre-school in Manhattan Beach, California. This led to a widely reported scandal where 80 teachers, staff and administrators were placed on trial in what later became recognized as a horrific witchhunt complete with accusations not only of abuse but Satan worship and vile abuse. The hysteria surrounding this trial had accusations not only of child abuse but accusations that school personnel at the McMartin Pre-School killed animals and babies in front of the children and engaged in devil worship. It was in fact, the longest criminal trial in this country’s history and ended with no convictions.

While there is good evidence that child sex abuse occurs, it is especially important that unreliable theories to explain things like children’s recantations of abuse, or failures to report alleged abuse are not automatically construed to “prove’ that abuse occurred, which is what this made up tool known as CSAAS has often allowed prosecutors and DCPP attorneys to get away with.

If you wish more information contact:
Anthony Van Zwaren, Esq.
340 Clifton Avenue
Clifton, NJ

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