Amicus Curiae Brief — Maryland v. Craig

——ů——

Na 89-478

In The lL —

Supreme Court Of The United States

OCTOBER TERM, 1989

STATE OF MARYLAND,

Petitioner

V.

SANDRA ANN CRAIG,

Respondent

ie

MOTION FOR LEAVE TO FILE BRIEF

AMICUS CURIAE AND BRIEF OF AMICUS CURIAE

INSTITUTE FOR PSYCHOLOGICAL THERAPIES

IN SUPPORT OF SANDRA ANN CRAIG, RESPONDENT

LOUIS KIEFER

(Counsel of Record)

60 Washington Street,

Suite 1403

Hartford, CT 06106

(203) 249-3600

Attorney for Amicus Curiae

Institute for Psychological

Therapies

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1989

NO. 89-478

STATE OF MARYLAND,

Petitioner,

Vv.

SANDRA ANN CRAIG,

Respondent.

On Writ of Certiorari to the

Court of Appeals of Maryland

MOTION FOR LEAVE TO FILE BRIEF

AMICUS CURIAE

Ralph Underwager, Ph.D. and Holida

Wakefield, HK. A., 3 partnership during

business as The Institute for Psychologi-

cal Therapies (IPT) hereby move for leave

to file the attached brief amicus curiae.

The attorneys for the petitioner and the

respondent have consented.

This brief is a response to the

amicus curiae brief submitted by the

BEST AVAILABLE COPY American Psychological Association (APA).

As such it is in support of respondent,

Sandra Ann Craig.

Dr. Underwager is a member of the

American Psychological Association. He

and Ms. Wakefield are licensed

psychologists under Minnesota statute.

Based upon their clinical practice,

including diagnosis, evaluation and

treatment of victims and perpetrators of

child sexual abuse for over 25 years,

their research in child sexual abuse in

eight separate areas, their roles as con-

sultants in over 1000 cases of child

abuse accusations, as qualified expert

witnesses in criminal and civil trials

occurring in over forty states and five

countries, they repectfully disagree with

many of the claims and argument of the

APA brief submitted to this court.“

1. Dr. Underwager testified in the Jor-

dan, Minnesota child abuse cases, the

Cleveland-Middlesbrough Parliamentary In

quiry in England, and provided testimony

to the Supreme Court of Holland.

M-ii.

ae

Dr. Underwager and Ms. Wakefield are

the authors of two learned treatises in

the area of child sexual abuse and are

publishers of a journal dealing with

child abuse.?:

The powerful desire for social

change produces shifts in attitudes and

law not based upon empirical data but

rather in response to a deeply felt need.

The danger is that unintended conse-

quences may emerge. IPT believes that

this has happened in response to child

sexual abuse. An unintended consequence

is the likelihood of an unacceptable

level of false positives, that is, per-

sons wrongly identified as abusers’ and

victims. The seriousness of accusations

2. Wakefield and Underwager, Accusations

of Child Sexual Abuse (1987); Wakefield

and Underwager, The Real World of Child

Interogations, (1989); Issues in Child

Abuse Accusations, Northfield, MN..

M-iii.

of sexual abuse is that if such an error

is made the lives of both adults and

children are damaged and may be forever

ruined.

A consideration completely ignored

in the APA brief and also overlooked by

prosecutors, law enforcement, child

protection officers and judges is the ef-

fect on a child if adults make à false

positive mistake. When adults treat a

child who has not been abused as it the

child had been abused, it is not an in-

nocuous or benign experience for the

child. It is devastating and may result

in serious harm. It is an assault upon a

young child's ability to develop the

capacity to tell what is real from what

is not real. To miss an instance where a

child has been abused and commit a_ false

negative error is also harmful to a

child. Although there has been some dis

cussion of this type of error there has

M-iv.

been no research on the issue. In either

direction, adult errors may have tragic

consequences for a child.

For the foregoing reasons, IPT

respectfully urges the Court to accept

and file the enclosed brief amicus

curiae.

Repectfully submitted,

Louis Kiefer

Counsel of Record

60 Washington St.,Suite 1403

Hartford, CT 06105

(203) 249-3600

Attorney for Amicus Curiae

Institute for Psychological

Therapies

IN THE

SUPREME COURT OF THE UNITED STATES

NO. 89-478

STATE OF MARYLAND,

Petitioner

Vv.

SANDRA ANN CRAIG,

Respondent

BRIEF OF AMICUS CURIAE

INSTITUTE FOR PSYCHOLOGICAL

THERAPIES

IN SUPPORT OF SANDRA ANN CRAIG,

RESPONDENT

LOUIS KIEFER

(Counsel of Record)

60 Washington St.,Suite 1403

Hartford, CT 06106

(203) 249-3600

Attorney for Amicus Curiae

Institute for Psychological

Therapies

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES... ... ii.

INTEREST OF AMICUS CURIAK E Be

INTRODUCTION AND SUMMARY OF ARGUMENT..2.

I. THE APA BRIEF DOES NOT OFFER

EVIDENCE WITH HIGH AND CLEAR VALIDITY

THAT SERIOUS EMOTIONAL TRAUMA MAT BE

INFLICTED UPON CHILDREN THROUGH

COURTROOM CONFRONTATION WITH THEIR AL-

LEGED ABUSERS. THE APA BRIEF OVER-

STATES THE DATA AND DOES NOT GIVE THIS

COURT THE LIMITS AND QUALIFICATIONS

THAT MUST BE PLACED UPON THE DATA

II. SPECULATIVE THEORIES AND CLINICAL

EXPERIENCE CANNOT SUPPORT ASSERTIONS

PURPORTING TO BE FACTUAL BUT WHICH

HAVE NO BASIS IN ANY EMPIRICAL DATA.

THE APA BRIEF FREQUENTLY COMMITS THIS

BOR ccc cece „„ „„ 14.

111. THE APA BRIEF DOES NOT OFFER

CREDIBLE SCIENTIFIC DATA TO SUPPORT

THE ASSERTION THAT EMOTIONAL AROUSAL

MAY RESULT IN UNRELIABLE TESTIMONY...17.

1V. IN THE INTERIM BETWEEN ACCUSATION

AND A TRIAL, THERAPY FOR A CHILD

THOUGHT TO BE A VICTIM IS FEELING.

EXPRESSIVE, INSIGHT ORIENTED THERAPY

WHICH MAY WELL HAVE THE EFFECT OF

TEACHING A CHILD TO BE AFRAID OF THE

MM „ 21.

Cec cc ccc cee „ „„ „ „ „60 25.

ii

TABLE OF AUTHORITIES

CASES: Page

Coy v Iowa, 101 LEd 2nd 857

„. „. . „ „ „ „ „„ %%% Ge 6.

Kentucky v. Stincer, 282 U.S. 730

CES pc ccccccceccecscccseeseseess 5, 24.

MISCELLANEOUS :

Berliner & Barbieri, The Testimony

of the Child Victim of Sexual

Assault,40 J.Soc. Issues 125

10% %/%½ů ů ini 46 ll.

Browne & Finkelhor, Impact of Child

Sexual Abuse: A Review of the

Research, 99 Psychological

Bald GE dees 6 7.

Burgess & Holmstrom, Rape: The

Victim and the Criminal Justice

System. Victimology: A New Focus

e oe 16.

Conte & Berlinger The Impact

of Sexual Abuse on Children:

Empirical Findings. Handbook

on Sexual Abuse of Children.,

11900 6 9.

Finkelhor & Browne The Traumatic

Impact of Child Sexual Abuse,

American Journal of Ortho-

psychiatry, 55((4), pp. 530-541...... 14.

iii

Flin, Davies & Tarrant, The Child

BEGGS CRDOCD cocccccceseceoecoeececes 8.

Goodman, The Emotional Effects

on Child Sexual Assault Victims

of Testying in Criminal

Court, Final Report to the

National Institute of Justice,

U.S. Dept. of Justice (1989)...... 11,12.

Goodman, Rudy, Bottoms & Aman,

Children's Memory and Concerns:

Ecological Issues in the Study

of Children's Testimony, in

What Young Children Remember

and Why (Pivush & Hudson) 18.

Hill & Hill, Videotaping

Children's Testimony: An

Empirical View, 85 Mich.

eo BG, . CEOS Pccccesecceccceceses 20.

Kassin, Ellsworth & Smith

The "General Acceptance" of Psycho-

logical Research on Eyewitness

Testimony. American Psychologist,

44(8), pp 1089-1098 (1989)........... 13.

Meehl (1989) Law and Fireside Inductions

(with Postscript): Some Relections of

a Clinical Psychologist

Behavioral Sciences & the Law,

Re A ˙ R Seb SS becececeoss 3.

Rogers, Child Sexual Abuse and

the Courts: Preliminary findings,

in Social Work and Child Sexual

e ChE SbCOSeSCEE 16.

iv.

Runyan, Everson, Edelsohn,

Hunter, & Coulter, Impact

of Legal Intervention on

Sexually Abused Children,

113 J.Pediatrics 647 (1988)

INTEREST OF AMICUS CURIAE

The interest of the Institute for

Psychological Therapies is described in

the accompanying Motion for Leave to File

Brief Amicus Curiae. It can be summed up

as the interest to support all reasonable

and sound efforts to improve the accuracy

of the way society responds to accusa-

tions of child sexual abuse for the

protection of children and the protection

of persons accused.

INTRODUCTION AND SUMMARY OF

ARGUMENT

The only reason for psychology to be

given any attention by the law is the ex-

pectation that the science of psychology

may improve the accuracy of the legal

system. The first duty of psychologists

who address the courts is to be accurate

and scientifically credible. Psychology

is a broad and diverse discipline.

Within psychology there are differences

in the level of scientific status or

credibility. The validity of specific

concepts, theories, techniques, and

research domains may vary from high and

clear to low and doubtful.?*

We strongly question the accuracy of

the statement in the APA brief that "The

resulting body of research supports the

proposition that children as a class may

be especially likely to be emotionally

distressed by courtroom confrontation

with their alleged abuser” (APA pp.3-4).

This opinion is not high and clear in the

scientific support for its validity but

is instead low and doubtful. Every claim

advanced by the APA brief as a basis for

encouraging this court to change the

I. Meehl (1989). Law and Fireside Induc-

tions (with Postscript): Some Reflections

of a Clinical Psychologist. Behavioral

Sciences & the Law, 7(1), 521 - 550.

position of Kentucky v. Stincer 482

U.5.730 (1987) is of low and doubtful

validity.

Further, the APA brief combines

together research, clinical observation,

clinical experience, and theory as if all

had equal weight and can be considered as

one piece (APA pp.3,10,15). The only

Support offered by the APA brief for its

Point II is clinical observation and

theory.

The final point in the argument of

the APA brief is that research

demonstrates children may refuse to tes

tify, or testify less completely, and

jurors may not be able to weigh

children's testimony accurately. This

may then result ina disservice to the

truth-seeking rationale of the Confronta-

tion Clause.

The truth-seeking rationale is

described by Justice Scalia in a recent

opinion:

"It is always more difficult to tell

@ lie about a person ‘to his face

than ‘behind his back. In the

former context, even if a lie is

told it will often be told less

convincingly....The right to face-

to-face confrontation serves much

the same purpose as a less explicit

component of the Confrontation

Clause that we have had more fre-

quent occasion to discuss - the

right to cross-examine the accuser;

both ensurlel the integrity of the

fact-finding process.’ [citations

omitted]. The State can hardly

gainsay the profound effect upon a

witness accuses. .... That face-to-

face presence may, unfortunately,

upset the truthful rape victim or

abused child, but by the same token

it may confound and undo the _ false

accuser, or reveal the child coached

a malevolent adult. It is a truism

that constitutional protections have

costs.Coy v. Iowa, 101 LEd 2d 857,

866 (1988).

The APA brief assumes that a child fears

an accused person and therefore the

capacity to testify is adversely af-

fected. The assumption that the fear is

caused by having been abused by the

defendant already assumes quilt and vio-

lates the presumption of innocence, ig-

noring the possibility that a child vit

ness, in the interim between an accusa-

tion and testimony, may have been taught

by adults to fear the accused. Fear may

be learned from adults repeatedly telling

a child that the accused has hurt them,

is bad, wicked, should be punished, and

is to be feared. To diminish the con-

stitutional right to confrontation on the

basis of the APA brief's assumptions

would be to put individual rights at the

mercy of either well-intentioned folly or

deliberate vindictive manipulation. This

point will be further developed in Point

IV.

POINT I. The APA brief does not offer

evidence with high and clear validity

that serious emotional trauma may be in-

flicted upon children through courtroom

confrontation with their alleged abusers.

The APA brief overstates the data and

fails to offer this court the limits and

qualifications that must be placed upon

the data cited.

The first citation of an authority

to support the APA brief's claim, "A

recent review of studies of child victims

of sexual abuse showed that a significant

proportion of victims suffer moderate to

severe emotional distress after the

episode is disclosed," is the Brown and

Finkelhor (1986) article.

— .: : —— —U—̃

2. Browne 5 Finkelhor, Impact of Child

Sexual Abuse: A Review of the Research,

99 Psychological Bull. 66 (1986)

This review was available itn 1967.

Further, by using the term victims, the

APA brief already assumes the reality of

the abuse. Disclosure is synonymous with

proof certain. The APA brief claims the

review established a factual proposition,

but does not inform the court what the

review actually claims about the validity

of the data reported.

"However, because many of the

studies lackee standardized outcome

measure and adequate comparison

groups, it is not clear that these

findings reflect the experience of

all child victims of sexual abuse or

are even representative of those

children currently being seen in

Clinical settings. At this point

the empirical literature on the ini-

tial effects of child sexual abuse

would have to be considered sketchy

... Conclus ions from the foregoing

review must be tempered by the fact

that they are based on a body of

research that is still in its in-

fancy. Most of the available

studies have sample, design, and

measurement problems that could in-

validate their findings."*

3. 1d, pp.69,75

The brief cites forty-nine articles

and presentations in the Table of

Authorities, Of these, seven are post

1987 and could be seen as relating to the

issue of effects of courtroom confronta-

tion. Of the seven, six are unpublished

papers or reports. Only one is

published."*

The only other authority cited by

the brief to claim "much stronger"

evidence is now available are two un-

published reports by Goodman. Un-

published reports and unpublished data

have minimal scientific credibility or

standing. There has been no opportunity

for the broader scientific community to

evaluate the methodology and quality of

the research. Thus, the assertion of

"much stronger“ evidence rests upon the

4. Flin,Davis & Tarrant, The Child Wit-

ness (1988)

narrow base of one published article and

two unpublished articles. It is a gross

exaggeration for the APA brief to repre-

sent to this court that there is “much

stronger" evidence after 1987."

Note #5 (APA Brief) includes, as a

secondary citation, Conte and Berliner.

Once again the APA brief does not give

this court the limits and qualifications.

"... the factor analysis vas sone

what disappointing .... We decided

to create a series of clinical

dimensions from items on the Be-

havioral Profile due to the rela-

tively poor results of the factor

analysis"*

What this means in plain language is

that the authors did the statistical

analysis to prevent individual bias and

5. Conte & Berliner (1988). The Impact of

Sexual Abuse on Children: Empirical Find-

ings. In L. Walker, Handbook on Sexual

Abuse of Children.

6. Id p 78.

subjective speculation and did not like

what they got so they chose to ignore it

and proceed with purely arbitrary ad hoc

personal choices about behaviors, alleged

to be shown by abused children.

"Several methodological problems

deserve special consider-

ation....Measures of psychopathology

do not appear to successfully

describe the behavior or functioning

of many abused children.... While

the clinical dimensions and a sum-

mary total score do reliably

describe the difference, there is

some question in our mind how useful

these board descriptors are either

in directing clinical practice or in

research efforts.”

Having abandoned any pretense of

scientific procedure, this article cannot

be viewed as scientific and should only

be a source of possible hypotheses to be

checked by a truly empirical approach.

10

To support the claims that face to

face confrontation with the defendant is

the chief source of trauma to children

the APA brief refers to Goodman's Final

Report to the National Institute of Jus-

tice; Runyan, et al.; Flin, et al.; and

Berliner and Barbieri.*® The Flin et al

report does not support this claim.

Indeed, forty-six children were inter-

viewed prior to trial. Five children

gave responses indicating fear of the ac-

cused. This is not most children in this

study. Twenty-two children were observed

testifying. Two demonstrated signs of

distress. Runyan, et al,

8. APA Brief Amicus Curiae, (1989), pas-

Sim, pp. 7-13.

9. Runyan, Everson, Edelsohn, Hunter, &

Coulter, Impact of Legal Intervention on

Sexually Abused Children, 113 J.

Pediatrics 647 (1988)

11

concludes that testifying in juvenile

court is beneficial and suggests delay is

the cause of potential harmful effects. “

The use of Goodman's Final Report to sup-

port the claim that most children are

fearful of confronting the accused is an

overinterpretation of the reported data.

Tables 14, 15, and 16 report similar fre-

quencies for fear of testifying in court

and negative reactions to seeing deten

dant in court. This data does not permit

separating out which causes which. None

of the frequencies in these tables war-

rant the claim that most children are

fearful of seeing the defendant.

10. The data in Runyan does not warrant a

distinction in the impact between

juvenile and criminal court but rather

points to prolongation of the time

period.

12

Kassin et al show that it is pos-

sible to get consensus among

psychologists on what psychological

topics meet the general acceptance provi-

Sion of the Frye test.**The APA brief in

this case offers no scientific informa-

tion that meets the requirement of an

adequate level of acceptance in the

psychological community.

The APA brief does not support its

claim of “much stronger“ evidence with

any credible and valid evidence. The APA

brief does not offer data to support the

Claim that fear of courtroom confronta-

tion is the characteristic of most

children. The APA brief offers only

speculative opinion, oversimplification,

ll. Kassin, Ellsworth & Smith (1989) The

"General Acceptance” of Psychological

Research on Eyewitness Testimony.

American Psychologist, 44(8), pp.1089-

1098.

13

overinterpretation, and inflated repre-

sentations of preliminary studies.

Therefore we urge the court to disregard

this argument of the APA brief. There is

no credible scientific support for it.

POINT II. Speculative theories and

clinical experience cannot support asser

tions purporting to be factual but which

have no basis in any empirical data. The

APA brief frequently commits this error.

Until there is empirical data to es-

tablish an acceptable level of scientific

support, clinical observations are

hunches and not facts. When the APA

brief proposes a “model” based on clini-

cal experience an publications*? without

secscoesesoe — 222

12. p. 15, APA Brief. Finkelhor & Browne

(1985). The Traumatic Impact of Child

Sexual Abuse, American Journal oi Orthop-

sychiatry, 55(4), pp. 530-541 does not

Claim to be based on any research. It is

14

warning this court that there is no fac-

tual basis for the proposed “model,” once

again low and doubtful material is being

suggested to this court as a basis for a

major change ina significant constitu-

tional issue.

The APA Brief describes four

speculative factors and then in each

paragraph adds a conclusion for which

there is not evidence either in the model

or any cited research. The four unsup-

ported conclusions are:

"The fear, when present, may de

rearoused in the presence of the

defendant.... The strong emotion of

betrayal may be rekindled when the

vulnerable child confronts à for-

merly trusted defendant... When con-

clearly offered as a speculative

"“conceptualizations. . that can be used

in both research and treatment” (p. 530

but not for the consideration of the U.S.

Supreme Court. When the APA brief

describes this model as based "to a

lesser degree on systematic research,"

the lesser degree is none.

15

fronted by the defendant, the child

may reexperience the sense of help

lessness or powerlessness. .. con-

frontation may arouse these complex

and powerful emotions and interfere

with the child victim-witness'

ability to communicate reasonably”

(APA pp. 15-16).

Also, authorities cited in Note 37,

p. 16, do not support these statements.

Burgess and Holmstrom is not a research

study but field notes on adult victims of

rape. They report 9 of 61 women gave

"Afraid of man taking revenge” as a

reason for not pressing charges Rogers

concludes his article with this state-

ment:

Well intentioned yet misquided con

cerns for the safety and well-being

of child victims of sexual assault

have ied many to conclude ... to

great a risk of psychological trauma

for the child victim. The alterna-

tive view, presented her and else-

where, is that these risks have been

over-stated."**

13. Burgess & Holmstrom (1973). Rape: The

Victim and the Criminal Justice System.

Victimology: A New Focus, j3,Lexington

Books, pp. 21-30.

16

No credible scientific support is

offered by the APA brief tor the argument

that it is possible, on the basis of

speculative theory and unreliable clini-

cal observation, to make reliable and

valid individualized determinations about

the need for protective measures for

children. Therefore we urge the court to

understand the speculative nature of

these pronouncements and not rely on them

as a factor in a reasoned decision.

Point III. The APA Brief does not offer

credible scientific evidence to support

the assertion that emotional arousal may

result in unreliable testimony.

14. Rogers, Child Sexual Abuse and the

Courts: Preliminary Findings Social Work

and Child Sexual Abuse,p.144,151(1982).

17

The first authority cited by the APA

brief to support a claim that a child

victim-witness is “most likely to refuse

to testify, to be unable to verbalize

answers to questions, or to be tearful"

(APA pp.18,19) is an anecdote from a

court record. Anecdotal accounts are not

scientific evidence and cannot be used to

support a claim of scientific

credibility.

In Point III the APA brief cites a

study by Goodman et al.** However, in

that study, reporting what is touted as

ecologically valid research, that is more

closely approaching a real world inter

rogation, using stressful medical proce-

dures such as venipuncture and inocula-

15. Goodman, Rudy, Bottoms & Aman,

Children's Memory and Concerns: Ecologi-

cal Issues in the Study of Children's

Testimony in What Young Children Remember

and Why (R. Fivush & Hudson)

18

tion, the literature review section in-

cludes “.. there is reason to believe

that high levels of stress are associated

with better memory” (p. 34) and cites

four studies. After describing the pre-

diction prior to collecting data that

stress would facilitate memory, this is

the summary statement of the research

results.

"Our general finding was that stress

had a facilitative effect on the

children's reports. Specifically,

planned comparisons revealed that

children at the highest stress

levels recalled more information

than the other children and were

less suggestible. Interestingly,

the children had to reach a level of

great distress before beneficial ef-

fects on memory were evidenced."**

It is difficult to understand how a

research study dy one of the principal

authors of the brief, Goodman, whose work

is the most frequently cited in the

19

brief, could be overlooked or not under-

stood. Yet, it denies both the premise

and the conclusion of the argument in APA

Brief Point III. Whatever the cause, the

APA Brief presents a pattern of selective

citation and selective reporting that re

quires caution and wariness in accepting

any of the claims made therein.

Another problem occurring in several

places in the APA Brief is shown in the

citation of Hill and Hill.*”

"One study indicated children...are

more likely to omit information...than

children who testify in a private room

without the defendant present, as ina

one-way closed circuit television

arrangement.” (APA p.21)

This study is the only one cited for

the following conclusion that children's

testimony is adversely affected by

courtroom

— — — mr „

17. Hill & Hill, Videotaping Children's

Testimony: An Empirical View, 85 Mich. L.

Rev. 809 (1987)

20

confrontation. However, Hill and Hill

report that their results on this do not

show statistical significance:

"While not significant in a one-way

analysis of variance, there was a ten-

dency for subjects in the small room to

relate more central items in free recall

than subjects in the courtroom (p<.087).

(In social science research it is

generally assumed that the means of two

or more conditions are different if the

probability of such an occurrence by

chance is less than or equal to five

percent.)“.

For the MPA Brief not to inform the

court that a study which is the sole

basis for the climactic argument has no

statistical significance, not even to use

the term marginal significance, but to

present it as a fact requires the court

to exercise cautious reserve in evaluat-

ing the weight to be given to the brief.

21

Point IV. In the interim between accusa-

tion and a trial, therapy for a child

thought to be a victim is feeling-

expressive, insight oriented therapy

which may well have the effect of teach-

ing a child to be afraid of a defendant.

Especially in criminal trials there

is often a long time between an accusa-

tion and a child testifying. During this

interim, many children are placed in

therapy for having been sexually abused,

a decision made before the factual issue

is determined in the courtroom. Analysis

of records of therapy given to 405

children**and review of 617 articles and

books discussing treatment?°shows that

19. Wakefield & Underwager, Accusations

of Child Sexual Abuse (1988)

20. IPT Resource File, category, treat-

ment, contains 617 references dealing

with treatment accorded to children when

there is an accusation of sexual abuse.

22

the therapy given to children focuses on

getting their feelings about being abused

out and acting out those feelings in a

variety of techniques. However, this of-

ten includes encouraging and reinforcing

the expressing of anger and hatred toward

the alleged perpetrator. If a child has

spent time in therapy talking about how

bad the defendant is, hitting a bobo doll

identified as the defendant, drawing pic-

tures of the defendant and burning them,

making clay figures of the defendant and

putting them in jail, or throwing darts

at a picture of the defendant, it is not

Surprising if that child may talk about

fearing the accused and even show fear if

seeing him or her in the courtroom. But

the fear may well be caused by the treat-

ment rather than by the alleged abuse.

ͤ—2WAKxAVau ——— DU — p C — —— —

21. Such therapeutic behaviors are docu-

mented in the IPT files of actual cases.

23

If it can be demonstrated that a

given child has been subjected to this

therapeutic technique, confrontation in

court may help to determine the cause of

the fear, if it is present. While there

is no scientific data to support this

specific proposition, it may occur as it

did in the trial of Robert and Lois

Bentz, when their five-year-old son,

Billy, who had been in foster care and

therapy for months, was led into the

courtroom by the prosecutor. He spied

his parents, waved, smiled, and in a

cheery voice called out, “Hi Mom, Hi

Dad! "?2

—ä . ee H W — eee ee

22. Robert and Lois Bentz were the first

persons tried in the Jordan, Minnesota

sexual abuse accusations. The jury ac

quitted them on all counts in September,

1984, after a six week trial.

24

Conclusion

For the foregoing reasons, amicus

respectfully urges the court to continue

to accept the APA Brief in Kentucky v

Stincer as the most accurate rendering of

credible scientific evidence. The cur-

rent APA Brief in Maryland v. Craig is

flawed by an undeclared bias that causes

a high frequency of overinterpreted

statements, partial descriptions of

research, simplification and leveling of

complex outcomes, and selective report-

ing.

Above all other considerations,

however, is the observed fact that the

current APA brief offers only material

that is of low and doubtful validity and

lacks the required scientific status and

level of acceptability for the court to

consider it in reaching its decision.

When considering the issue of a state in-

25

terest compelling limitations of an in-

Gividua) constitutional right, only the

best information, solidly established in

contact with the real world, should be

able to move the state further to limit

individual personal liberty and rights.

Respectfully submitted,

Louis Kiefer

(Counsel of Record)

60 Washington St.Suite 1043

Hartford, Ct 06106

(203) 249-3600

Attorney for Institute for

Psychological Therapies

Date April 2, 1990

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