Discriminate Validity

There are true victims of sexual assault that demonstrate a variety of reactions, including those described in this resource. But there is a tendency for CSA experts to overstate the science, ignore “false positives” and insinuate that counterintuitive behaviors are dispositive indicators that the complaining witness’s testimony is truthful.  In a sentence; CSA testimony can often lack “discriminant validity” – its overly “sensitive” at the cost of “specificity” (it fails to account for false reports of sexual assault). Let’s try to unpack that dense sentence. 

Sensitivity vs. Specificity
In medical diagnosis, test sensitivity is the ability of a test to correctly identify patients with a particular disease (true positive rate), whereas test specificity is the ability of a test to correctly identify those without the disease (true negative rate). For instance, if a physician suspects a patient has strep throat, she might administer a “Rapid Antigen Test” (RAT). This test can detect strep bacteria in minutes and will correctly identify 100% of patients suffering from strep.  In scientific terms, the RAT has high sensitivity to detecting strep in a patient. However, the RAT also has a high “false positive” rate, meaning it will often show positive results for a person that does not have strep throat.  In scientific terms, the test is overly sensitive and has a high level of “false positives”.  Another way of stating this is the RAT lacks specificity. If the implications of a false positive are low risk, an overly sensitive test might be acceptable.  For instance, treatment for strep (prescribing antibiotics) is a low-risk intervention.  So, a physician might not worry about prescribing antibiotics for a person who actually does not have strep.  But as the implications of a false diagnosis become more serious (i.e. diagnosing cancer or being falsely accused of a sex crime) a higher level of specificity is required.

From a scientific standpoint, CSA symptoms can be overly “sensitive” and lack “specificity”.

  • Diagnostic sensitivity: “Can this symptom rule in a reaction to a true sexual assault?”
  • Diagnostic specificity: “Can this symptom rule out a false claim of sexual assault?”

Rate of Unproven and False Reports
Research on child sexual abuse typically involves anecdotal surveys about reactions to self-reported sexual victimization in the past.  And herein lies one of the fundamental flaws in the research – there is no accounting for subjects who are mistaken or lying about sexual assault.  So, in Daubert or in the trial phase, consider working to establish research’s findings for what percent of sexual assault claims are proven, unproven or false (the judge will normally allow percentages to be discussed in Daubert, but not in the trial phase).

We begin with a basic question: “What percent of sexual assault claims have been found to be unproven or false?”  Unproven is different than false.

A) “What percent of sexual assault claims have been found to be unproven?”
This is intuitively the best way to ask the question.  Law enforcement investigates a suspected crime and gives their findings to prosecutors, who then determine whether to move forward with charges.  The American legal system doesn’t seek to prove the negative – i.e. a jury does not determine “a defendant is innocent of the crime in question.”  Our legal system affirms the positive – the accused did or did not commit the crime and is innocent until proven otherwise.

B) “What percent of sexual assault claims have been found to be false?”
In a similar vein, the American legal system normally does not determine if a complaining witness gave a false report. Most often, the legal system accepts the finding of “not guilty” and moves on to other cases. Very rarely does an investigating agency determine that a claim was false. It is difficult to estimate the proportion of true-to-unproven-to-false accusations, due in part to inconsistent definitions of what constitutes an unproven or false accusation (Saunders, 2012).  But research has discovered unproven or false reports occur on a regular basis. Here’s some of the more prominent studies.

AN IMPORTANT STUDY: Establishing ground truth in studies of child sexual abuse.
Steven W. Horowitz, Michael E. Lamb, Phillip W. Esplin, Tascha D. Boychuk, Lisa Reiter-Lavery, and Orit Krippen.
Expert Evidence, January 1995. 4(2), 42-51.
Abstract:
Reports of field research on child sexual abuse can be difficult to interpret when the criteria for inclusion of subjects in abused, non-abused, and false allegation groups are not specified. Since no single reliable and valid method exists for establishing what really did or did not occur to alleged victims (ground truth), multiple, convergent, and explicitly stated criteria are required. In this paper, examples from published field research are used to illustrate the advantages of specifying such criteria. Nine sources of information that could contribute to a decision about ground truth in child abuse cases are then described. Procedures for assessing the validity of these sources of information are then suggested. 

Three general categories merit differentiation in research on sexually abused children; abused children, non-abused children about whom no allegations have been made, and non-abused children about whom false allegations have been made. Unfortunately, although most researchers have sought to compare children in the first two groups, they have not always excluded children in the third group. Differentiation between the last two (nonabused) groups is necessary because false allegations may lead to invasive and disruptive investigations that themselves affect children’s behavior and performance.  (p. 43)

If only a small percentage of cases can be absolutely confirmed, studies that deal only with such cases risk threats to external validity, because the cases included are so unrepresentative . . . (p. 43)

The authors list nine sources of information for validation of child sexual abuse.

  1. Medical evidence (certainty, consistency, quality)
  2. Confessions (source of information, richness, motivation)
  3. Witness statements (verification of central or peripheral details, motivation)
  4. Coaching admissions (motivation)
  5. Serial victim statements (drift of core and peripheral details)
  6. Recantations (richness, disruption, pressure)
  7. Polygraph examination (type of test, uniformity of results, source of information)
  8. Physical evidence
  9. Statement analysis

Regarding Serial Victim Statements:
Alleged victims are often interviewed many times, and the consistency of these repeated statements can be evaluated. Some peripheral details should change, disappear, and reappear in the different statements, but core elements of the statements should not vary (Christianson, 1989; Undeutsch, 1989). If the most central elements of the statement vary, it may indicate that the accusation is false and that the child is changing the story to satisfy the demands of different interviewers.

Summary:
When researchers do not specify how ground truth was established or when they depend on a single index to assign cases to abused, non-abused, and the false allegation groups, they risk confusion rather than insight. (p. 49)

If you have Dr. Wendy Dutton in your case, she includes this study (Establishing ground truth in studies of child sexual abuse) in her dissertation citations (2011). She also observes;
“One common criticism of prior disclosure research was the lack of corroboration of the abuse claims made by the study subjects (Horowitz et al., 1996).”
Gender differences in children’s disclosures and legal narratives of sexual abuse.
Wendy A. Dutton. A dissertation presented in partial fulfillment of the requirements for the degree doctor of philosophy.  Approved April 2011, Madelaine Adelman, Chair. Arizona State University.  Page 172.

Studies on Unproven and False Child Abuse Claims
The following is a compilation of research regarding false child abuse claims:

  • A study of 576 child sexual abuse allegations made to the Denver Department of Social Services found that 3% were unreliable accounts and 8% were purely fictitious. Clinical features relevant to the fictitious accounts included: lack of emotion and an absence of coercion and threat in the recount, Jones and McGraw (1987).
    Jones & McGraw, Reliable and fictitious accounts of sexual abuse to children. Journal of Interpersonal violence, Vol 2(1), Mar 1987, pp. 27-45
  • One study of 410 children referred for suspected child sexual abuse, 197 (48%) were confirmed abused, 63 (15%) were determined to be false allegations.
    Anthony and Watkeys. False allegations in child sexual abuse: The pattern of referral in an area where reporting is not mandatory. Children & Society, Vol 5(2), Sum 1991, pp. 111-122.
  • After repeated forensic interviews 55.5% of children’s sexual abuse claims were determined to be unfounded or false.
    Connie Nicholas Carnes, et al. Extended forensic evaluation when sexual abuse is suspected: a multisite field study. Child Maltreatment (2001) 6: 230. Note that this study was included in Dr. Dutton’s 2011 dissertation. 
  • 2.98 million American children underwent a Child Protective Services investigation (or alternative CPS response) for an allegation of child abuse or neglect in 2010.  One-fifth of the claims met the legal requirements of abuse. In the other four-fifths of the claims, the investigation determined that there was not sufficient evidence under state law to conclude or suspect that the child was maltreated or at-risk of being maltreated.

Administration for Children and Families. Child Maltreatment 2010. Washington DC. Department of Health and Human Services. Page 6. http://www.acf.hhs.gov/programs/cb/pubs/cm10/index.htm
Administration for Children and Families. Child Maltreatment 2010. Washington DC. Department of Health and Human Services. Table 3-2. http://www.acf.hhs.gov/programs/cb/pubs/cm10/index.htm
Administration for Children and Families. Child Maltreatment 2010. Washington DC. Department of Health and Human Services. Pages 7-8. http://www.acf.hhs.gov/programs/cb/pubs/cm10/index.htm

  • A review of the literature concerning systematic research into the frequency of false allegations of sexual abuse revealed rates ranging from two to eight percent of referrals to child abuse clinics, six percent of emergency room referrals and substantially higher rates of 36.4% to 55.5% for the special circumstance of allegations arising out of the context of custody disputes.
    False sexual-abuse allegations by children and adolescents: Contextual factors and clinical subtypes. Mikkelsen, Edwin J., et al., American Journal of Psychotherapy, Vol 46(4), Oct, 1992. Boundaries, behavior, and sexual misconduct: Current issues and the medicolegal interface. pp. 556-570.
  • In a large retrospective review involving all 576 complaints of sexual abuse made to the Denver, Colorado, Department of Social Services in 1983, Jones and McGraw [8] utilized the innovative strategy of breaking away from a strict Yes/No dichotomy and put forward four categories that capture the ambiguity of many of these situations. Their four categories and the frequency of each are as follows: confirmed–53%; suspicious but not conclusive–17%; insufficient evidence to reach a conclusion–24%; and, definite false allegations–2%. (43% were unfounded) Mikkelsen, et al.
  • An important variable that has been analyzed in this research is the age of the child as it relates to the frequency of false allegations. This research as summarized by Everson and Boat indicates that the relative frequencies for different age groups is as follows [N for each group indicated in ()]: 1 to 2.9 years of age (N = 124) 6%; 3 to 5.9 years of age (N = 301) 7%; 6 to 11.9 years of age (N = 414) 4.3%; and 12 to 17.9 years of age (N = 410) 8.0%. Thus, it would appear that the risk of an allegation being false is greater with older children. Mikkelsen, et al.
  • Simon B Miranda, Licensed Clinical Psychologist specializing in Child Sexual Abuse reports that some powerful negative motive usually underlies the birth of a false sex abuse allegation, and often questionable (however pro-socially clothed) motives energize its flow through the governmental systems. At the entry point of a false allegation one almost always finds a parent who has questioned a child in indeterminate ways and often also exposed the child to powerful emotional messages. This parent will then pass that exchange through her/his personal psychological filter (beliefs, memories, attitudes, resentments, fears) before delivering this filtered information to a law enforcement professional.  This professional has the unique opportunity of detecting the false or doubtful nature of the allegations and stopping them.  Unfortunately, too often this person also has the power to give the allegation life and elevate it to an official status. (her father)
In her doctoral dissertation, Dr. Wendy Dutton cites the following studies
as examples of problems with discriminate validity

Crisma, Bascelli, Paci, and Romito (2004) conducted a qualitative analysis of in-depth interviews of 36 adolescent girls, 12 to 17 years of age, who called an anonymous toll-free line advertised in a youth oriented magazine. The advertisement recruited sexually abused adolescents and specified the purpose of the research. Results indicated that the girls did not report the abuse to their parents due to fear of not being believed, shame, and the negative consequences their disclosures could have on their families. The researchers did not report data concerning what prompted the girls to call. The authors did not include interviews that lacked credible accounts of abuse in their analyses; however, no corroborative evidence of abuse was available.

Gender differences in children’s disclosures and legal narratives of sexual abuse.
Wendy A. Dutton. A dissertation presented in partial fulfillment of the requirements for the degree doctor of philosophy.  Approved April 2011, Madelaine Adelman, Chair. Arizona State University.  Page 30.

Staller and Nelson-Gardell (2005) analyzed interviews conducted in focus groups of 34 pre-adolescent and adolescent female survivors of CSA, ages 10 to 18. Many of the girls reported feelings shame and responsibility for the abuse, which were barriers to disclosure. Girls were also concerned about the impact of their disclosure on their families. Many reported that it was difficult to choose the time, place and person to tell, and that their confidants’ reactions of disbelief or hostility were difficult to endure. The focus groups were conducted after the girls had completed treatment for abuse. Their responses may have been influenced by therapists, peers, or family members. The authors did not report whether they sought independent corroboration of abuse.

Gender differences in children’s disclosures and legal narratives of sexual abuse.
Wendy A. Dutton. A dissertation presented in partial fulfillment of the requirements for the degree doctor of philosophy.  Approved April 2011, Madelaine Adelman, Chair. Arizona State University.  Page 30.

Exonerations

  • Over the past two decades, 102 persons who had been convicted for child sex abuse were later exonerated (NRE Report, Table 1).
  • Of these 102 persons: 75% had been convicted based on a false accusation or perjury (NRE Report, Table 15).
  • In two-thirds of these cases, the alleged crime had been fabricated (NRE Report, Table 15).
  • 37 had been given life sentences.

False sexual-abuse allegations by children and adolescents: Contextual factors and clinical subtypes. Mikkelsen, Edwin J., et al., American Journal of Psychotherapy, Vol 46(4), Oct, 1992. Boundaries, behavior, and sexual misconduct: Current issues and the medicolegal interface. pp. 556-570.

What factors contribute to false allegations of child abuse?
  • Lack of presumption of innocence: According to the National Child Abuse Defense and Resource Center, in “alleged physical abuse cases, there is seldom a search for an ‘equally competing hypothesis’ for causation of any injuries. In most cases, the presumption is made that the injurie(s) were non-accidental and therefore must have been inflicted by someone.”
    National Child Abuse Defense and Resource Center. http://www.falseallegation.org/ . Accessed May 20, 2012.
  • Overly broad definitions: Each state has its own legal definition of child abuse that often includes vague terms like being “at-risk” for “emotional” abuse. In California, “family problems” can meet the statutory definition of abuse and neglect. In Utah, a child’s mere knowledge (not witnessing) of domestic violence by a parent is classified as abuse.
    Administration for Children and Families. Child Maltreatment 2010. Washington DC. Department of Health and Human Services. Appendix D. http://www.acf.hhs.gov/programs/cb/pubs/cm10/index 
  • Low standards of proof: Thirty-two states use the weakest “preponderance of evidence” standard: AL, AK, AR, CA, CO, CT, DE, GA, ID, IA, KY, ME, MD, MI, MN, MO, MT, NE, NH, NJ, NC, ND, RI, SC, SD, TN, TX, VA, WA, WV, WI, and WY. Only two states employ the strong “clear and convincing” standard: KS and PA.
    Administration for Children and Families. Child Maltreatment 2010. Washington DC. Department of Health and Human Services. Appendix D. http://www.acf.hhs.gov/programs/cb/pubs/cm10/index 
  • Mikkelson, et al. identify specific subtypes of false allegations (1) arising out of custody disputes, (2) stemming from accusers’ psychological disturbances, (3) resulting from conscious manipulation, (4) being caused by iatrogenic elements.
    Mikkelsen EJ, Gutheil TG, Emens M. False Sexual-Abuse Allegations by Children and Adolescents: Contextual Factors and Clinical Subtypes. American Journal of Psychotherpay. Vol. 46, 1992.
  • After repeated forensic interviews 55.5% of children’s sexual abuse claims were determined to be unfounded or false. Of these, 5 children appeared to have been exposed to an overly sexualized environment but did not appear to have been overtly abused. . . In 4 cases (3% of the sample), it appeared evident an adult had initially coached a child to make a false statement of abuse. A variety of other circumstances existed in this category, including experimentation with age mates, impulsivity and boundary issues, and initial misinterpretation of innocuous activities. . (p. 235)
    Connie Nicholas Carnes, et al. Extended forensic evaluation when sexual abuse is suspected: a multisite field study. Child Maltreatment (2001) 6: 230

Bottom Line:

  • How have the studies the expert is citing accounted for the demonstrated high rate of unproven or false sexual assault reports?
  • How has the expert accounted for an unproven / false sexual assault report that might exist in this trial?

When crossing the CSA expert, consider asking

  • During the trial phase the expert is not allowed to give any percentages. But if you do a Daubert challenge you can ask for specific percentages. “What is the percentage of unfounded and false sexual assault claims?”
  • “How have you accounted for that high rate of unproven or false sexual assault allegations when forming your opinion that . . . ?”

Be sure to read Rumney’s article “Purported False Allegations of Rape, Child Abuse and Non-Sexual Violence: Nature, Characteristics and Implications” in the Journal of Criminal Law (2017).

A tip for prosecutors – The most logical way this comes out in court is if a CSA expert testifies as a means to rehabilitate the complaining witness’s testimony.  Then the judge must find that a fair cross-examination on that testimony necessarily includes the ability to challenge the research upon which the expert is basing their opinion and how that research factors in proven/unproven allegations.  Therefore, the members should only be able to consider the evidence to that end, and not for an impermissible purpose i.e. that most child sex abuse cases result in not guilty, so this allegation is probably not true. If you’re a prosecutor and you think the defense is going to present this kind of cross of your expert in front of members, consider asking for a closed hearing prior to cross to get a ruling on whether the judge is going to allow this challenge based on how the direct went.