Guest Post: Accommodating a Child’s Voice in the Court Room

By Caroline Ruschell

calendar“Mom, did you know that yesterday, I saw a snake, a rabbit, and a fox up in the gymnasium.”  I looked with confusion at my 5-year old and then laughed to myself when I realized that the Silly Safari program came to her school a few weeks ago and indeed my daughter did see and pet these animals in the gymnasium, however, it did not happen yesterday.

It can be funny to think about a child’s ability to recount an event when it comes to the Silly Safari, however, when incidents of abuse are involved – it’s not so funny.  I work closely with Kentucky’s 15 Children’s Advocacy Centers (CACs), which are child friendly centers that coordinate the investigation, prosecution, and treatment of child abuse while helping abused children heal.  Our professional forensic interviewers at CACs talk to over 5,700 children each year and listen to their accounts of abuse.  During these disclosures, it is very rare that a child is able to provide a specific date.

It turns out that my 5-year old is not unique.  Research proves that a child develops the ability to accurately describe the “what” years before they are able to convey the “when.”1 In Kentucky, in order to convict a perpetrator of an act of abuse, a jury must unanimously agree on a specific act of abuse.  The most common way that a jury agrees on a specific act is to agree on the “when.”  In other words – they agree on the date.   You can see the dilemma here.  If a child is unable to provide a date and yet our legal system requires information that helps a jury agree on a specific event in time – it can make prosecuting child abuse offenders in some cases nearly impossible.

Last year, the Supreme Court considered one of these “impossible” cases, Ruiz v. Commonwealth of Kentucky, involving a 6-year old girl in Christian County Kentucky.   The little girl indicated that she was sexually abused by her step-father on many occasions during a 5 month period, but was unable to provide specific dates for any one of the abusive acts. Because the jury must agree on a uniquely identifiable instance of abuse and failed to do so, the case was overturned. The Court noted that many other states have enacted so-called “course of conduct” abuse statutes that would have avoided the result in the Ruiz case, and made the point that the General Assembly could close this gap in the protections of Kentucky’s children by adding a course of conduct crime to the Commonwealth’s criminal laws.

Fortunately, our legislators have heard the call of the Supreme Court and are working to enact such legislation.  Two bills have been filed.  One is SB60, sponsored by Senator Whitney Westerfield and the other is HB109, sponsored by Representative Joni Jenkins.  Both pieces of legislation have passed through their respective chambers and are now well-positioned to become law this year.

What is “course of conduct”?  Instead of requiring a jury to agree on one specific act, each juror is charged with finding that at least two acts of abuse occurred during a specified time period.  For example, if a child discloses that she was raped several times a week over the summer, a prosecutor could seek to convict the offender on a “course of conduct” for rape during a 3-month period.  Each juror could listen to the evidence and if they each determine that at least two acts of rape occurred somewhere during the 3-month time period (and the jurors need not agree on the same two) then there can be a conviction on behalf of the jury.

It takes an incredible amount of courage for a child to come forward and talk about their abuse.  Once they speak up, it is then up to us to respond.  I am thankful that our legislators are responding in a way that adequately accommodates the voice of our children by seeking to enact a course of conduct crime in Kentucky.   We need to listen and trust the voice of our children – it may not have happened yesterday – but it doesn’t mean it didn’t happen.

Help ensure SB 60 passes the House by contacting your legislators – act now. Learn more about the issue here.

Caroline Ruschell is the Executive Director of the Kentucky Association of Children’s Advocacy Centers

1 Applied Cognitive Psychology, Appl Cognit. Psychol. 25: 156-165 (2011) Published online 14 January 2010 in Wiley Online Library (wileyonlinelibrary.com) DOI:  10.1002/acp.1656 Children’s Memory for the Times and Events From the Past Year WILLIAM J. FRIEDMAN, ELAINE REESE and XIN DAI

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