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“Yes.”
“And were the allegations of sexual abuse by Mr. Abernathy evaluated in accordance with the guidelines of the American Academy of Child and Adolescent Psychiatry?”
“Objection,” Aguilar said and Goldblatt overruled.
“To the best of my knowledge from everything I’ve heard, the evaluations were not conducted in accordance with the guidelines; that is, they were not conducted under the direction of a child psychiatrist or a child psychologist. All I heard were from social workers. No written evaluation was available that I saw, a thorough complete evaluation. I did not see any report. There was no recording, either video or audio, or even comprehensive note-taking available for others to evaluate concerning whether the person conducting the evaluation was asking leading questions or conducting an appropriate evaluation.
“The child was seen by any number of other people. It’s not clear—in fact, I think the conclusion was from yesterday’s testimony that no evaluation was conducted. Roberta Leavitt began treatment, but I think she said she had not seen any evaluation, and her intake committee had decided further evaluation was unnecessary. So there never was a complete evaluation conducted.”
“I’m going to object to his commenting on what he believes Roberta Leavitt testified to,” said Aguilar. “I believe that’s up to the court to decide, what went into evidence and what did not. I don’t believe it’s appropriate for a witness to comment on somebody else’s testimony.”
Bea said, “He is an expert, and having been present during all the testimony, a percipient witness.”
Goldblatt said, “Hold on a moment. No, he may have that comment. Go ahead. You may proceed.”
“I saw no indication that a full evaluation had been conducted. The father had not been interviewed by anyone other than the psychologist whom he arranged to see.
“Psychiatric evidence regarding the mother was not brought forth. No evaluation was conducted of her. And no one saw the child and the father together for the purpose of evaluation.”
“Are there any other factors you consider besides what you learn from the child?” Bea asked.
With some distress, Aguilar said, “Judge, if I may, I don’t understand the question. Additional factors regarding what? It’s an open-ended question.”
Goldblatt looked at Bea. “I assume it’s additional factors regarding an evaluation involving child sex abuse?”
“Yes, Your Honor.”
“Are there any factors you’ve left out?” Goldblatt asked the doctor directly.
Bea was thinking, Boy, we lucked out getting Goldblatt.
“I think a factor that’s important here and that is not specifically mentioned in the guidelines is to examine whether the allegations of that offense actually took place and are credible. In other words, does the thing supposedly done fit into the pattern of what sex offenders do? It’s important to know what some of the patterns of sexual offending are and whether those allegations fit those patterns.
“Secondly, what is the history of the accused parent relative to violence or taking advantage of a child and so forth? That has to be considered as well.”
Bea asked, “Is there a particular pattern of symptoms characteristic of sexually abused children?”
“No. The sexually abused child may show symptoms that occur in any child under stress. There is no unique diagnostic symptom pattern at all.”
Toffett then discounted many symptoms incorrectly believed to be uniquely characteristic of sexual abuse. “For example, nightmares are common in children and not unique to any particular disorder. Stomach aches occur with many kinds of stress disorders. Night lights are needed frequently by many children, including children who are not sexually abused. Bedwetting has many causes. A child could be angry at being separated from a parent, being in the middle of a parental conflict, going through a divorce. There are many, many stresses a child can be subjected to in a case of this sort.”
“What if a child expresses to someone that they’re fearful of that parent? Is that something one would expect from a sexually abused child or are there other explanations?”
“That would be one explanation that the child was somehow abused, but one must also, in all of these cases of allegations, weigh alternate hypotheses. And one hypothesis of great concern is the coaxing of the child, whether intentional or not. Unintentional coaxing often occurs by asking leading questions of the child about what he or she has been subjected to. In other words, has the child’s memory been distorted in some way?”
“Do you remember hearing testimony about the truth of the child’s statements? In other words, that they might not be accurate?”
“Yes, I do.”
“What’s the extent of the possibility of distortion, Dr. Toffett?”
“Distortion can run from no distortion at all to perfectly accurate memory or to complete distortion, where the individual believes something is true that is not.
“Is it possible the child could distort her own memory of a suppository being inserted with a penis on the anatomical doll?”
“Objection. Judge, it calls for a speculative answer,” Aguilar said, and the judge sustained the objection.
But Toffett answered anyway. “I think anything is a possibility, but if I had to consider alternate hypotheses, I wouldn’t put high weight on that.”
“You reviewed almost all the materials that were received in this case during discovery, did you not?”
“I read a great deal of depositions and other data.”
“Now, in all that you read, did you ever see a statement declaring that the child said the abuse occurred in a particular place?”
“No, not that I recall.”
“I might almost be through here,” Bea said as she glanced down her checklist. “What is the effect of the repeated interviews themselves regarding sexual abuse on the child, having been interviewed time and time again?”
“There are several things. As I said, additional information can distort the memory, so that the child’s recollection of the event is no longer a valid one. And once having muddied those waters, they never return to normal. Once you’ve distorted it, the greatest expert in the country can’t retrieve it. In some cases, one has to expect you’re never going to find out. And, of course, a second thing begins to happen as the child is being questioned by adults. The child is learning to say the things adults want to hear.”
Learned behavior... good, Bea thought. That’s key. She checked off the topic of reinforcement on her list.
“Again, this is why it’s so important to video record, because the simple expression on the interviewer’s face, the comments made by the interviewer—like ‘that’s a good girl’ or ‘do you recall’ or ‘that’s fine’ or ‘don’t you feel better now’—can be letting the child know what the interviewer is looking for. That’s what we call ‘positive reinforcement.’
“If an interviewer started the evaluation assuming abuse occurred rather than with a completely clean, unbiased slate, then the interviewer accepted the child’s statements as validation of what that person already has assumed. And we begin now to teach the child to say exactly the things the interviewer wants. And in the absence of a video recording or at least an audio—”
“Objection.”
“No, I think he may have it. I think that answers the question.”
Dr. Toffett would not be interrupted. “Or at least an audio recording, an independent evaluator cannot look over the shoulder and evaluate the validity of that interview.”
“I’d just like to finish up with the direct examination of this witness,” Goldblatt said. “Let me point out that Dr. Toffett indicated at the beginning he was summoned by the defendant for his opinion on the allegations and the factors involved in the allegations of child abuse. Beyond that I’m not going to let him testify. He’s testified thoroughly on that score. I’m not going to allow him to answer questions concerning other factors that have nothing to do with the allegations of sexual abuse.
“Unless there are more questions on that, I’ll stop the questioning of him now. Of course, he is subject to whatever cross-examination is going to occur on what he was summonsed here to testify about. Why don’t we take a five-minute break here before cross-examination,” Judge Goldblatt suggested.
Aguilar’s Moment
Aguilar’s cross-examining began with a bang. He asked a series of very short questions. Toffett agreed with all of them.
Dr. Toffett admitted he never personally interviewed the child, never spoke with the child, never saw the child, never spoke with the child’s teachers, never spoke with the child’s nursery school instructor, never spoke with the child’s neighbors, never spoke with any of the child’s friends. He also never personally conducted any memory testing on this particular child, he didn’t review her school records, and he didn’t know what her IQ was.
While Aguilar’s rapid-fire firecracker display may have been instantly pretty, it fizzed substantively. It didn’t help his case. His questions were irrelevant to Toffett’s role.
They just called attention to the caseworkers’ failure to speak with anyone but the child and the mother. The two teachers contacted hadn’t noticed anything unusual about Chloe’s behavior, and neither did Denise. And even Denise didn’t know Chloe’s IQ. As far as Denise knew, Chloe’d never been tested.
Second, Toffett was testifying as an expert to educate the judge on how facts were to be gathered and on the criteria which must be looked at to determine whether sexual abuse had occurred.
Third, cross-examination is to impeach a witness. And Aguilar was nowhere near impeaching the unflappable Toffett.
“Dr. Toffett, in assessing a child’s memory or recollection of an event, do you consider whether or not consistent statements have been made, the same statements consistently?”
“That is one of the criteria, yes.”
Bea thought, Aguilar is getting closer to where he should be.
“Is it fair to say when a child makes these same statements consistently, it indicates good memory?”
“Good memory perhaps. It doesn’t mean that it’s valid information, however. The child can have a good memory of false information. That’s part of what I was trying to testify to relative to memory.”
“Well, would you consider a consistent statement indicative of reliability?”
“I would not.”
“Would you consider an inconsistent statement indicative of unreliability?”
“No, I would not.”
Aguilar is getting nowhere fast.
Consistency and inconsistency remained the topics of more questioning. Toffett also consider how detailed a child’s statement is when determining reliability. The more detailed and specific a statement, the more likely the statement is reliable.
And, of course, Aguilar questioned whether it is appropriate to use anatomically correct dolls in an evaluation of whether or not a child has been sexually abused.
Toffett testified, “It’s very questionable whether they should be. We don’t have the research data at this point to back it up. As I said earlier, there are situations where it may be appropriate to use anatomically correct dolls, but not in the evaluator/investigative area. For treatment, they’re fine—that’s where they originated and they’re fine in that context—but certainly there’s nothing that would say they are even acceptable as investigative tools.”
“Well, what if the child does not have the ability to verbalize a particular part of the body? Might it then be appropriate to use an anatomically correct doll so the child can point to that particular part of the body?”
“That could be. With a highly skilled and trained evaluator, it could be used for that purpose, identifying parts of the body.”
About Carol Tracy, Toffett said, “I’ve found out essentially nothing about her.” He didn’t know what types of degrees she had or whether she’d been to programs that provide training in conducting sexual evaluations. He held firm to his earlier testimony that the ACAP says the initial sexual evaluations should be done under the supervision of an experienced child and adolescent psychiatrist or psychologist.
“If custody is an issue, a guardian ad litem for the child should be appointed to represent the child’s best interests, and to prevent parents from subjecting the child to multiple evaluations in the hope of finding an expert who will support one or the other’s contentions.”
Toffett then came down hard on Murphy, who had been the guardian ad litem appointed on this case.
“What I understood observing the woman who came in yesterday was not fulfilling at least what I understand the role of a guardian ad litem in a case of this sort.”
“Well, did you hear Miss Murphy testify that the purpose of her investigation was to investigate the issues of the child’s visitation with her father?”
“To investigate is not what I understand a guardian ad litem’s role to be.”
Aguilar continued to gnaw at Toffett a few minutes more in an effort to get the doctor to say he knew that neither Aguilar nor Bea had chosen Murphy.
Trying to disassociate yourself from her, are you Joe, to make yourself look less the fool? She’s yours, Joe. She’s yours. You put up a helluva fight to put her on the stand as the GAL.
Aguilar then shifted to Toffett’s claim that false allegations could occur when the allegations are coming from the parent rather than the child. “Now, do you know if the allegations came from the parent, in this case, Mrs. Abernathy, or from the child?”
“To the best of my knowledge it did not come from Mrs. Abernathy. It came from the first person who interviewed Chloe. It was important for the child to have been interviewed separately from the mother, so the child would not have felt pressured to go along with a story possibly coached by Mrs. Abernathy. And when the initial evaluator is the person who’s going to do the interview, it is appropriate to establish trust and ensure the child will feel some degree of control over the interview.
The first interview should be used to form the relationship with the child and then approach the subject of sexual abuse.”
Aguilar said, “According to the guidelines, is it true that in assessing the child’s credibility, descriptions in the child’s own language and from the child’s point of view are important?”
“Yes, that is important.”
“And is spontaneity in those allegations important?”
“Yes, it is. It’s important but it’s not always achieved. If you can have it, that’s fine.”
“Now, according to the guidelines, the use of anatomically correct dolls may be useful for eliciting the child’s terminology for anatomical parts, correct?”
“That’s what the guidelines state, correct.”
“And useful for allowing the child who cannot tell or draw what happened to demonstrate what happened?”
“The use of anatomically correct dolls may be useful for allowing the child who cannot tell or draw what happened to demonstrate what happened.”
“According to these guidelines,” Aguilar asked, “the academy believes it’s not even necessary to use anatomically correct dolls in doing these assessments?”
“That is correct.”
“Now, you don’t know if Carol Tracy first asked many questions and then used anatomically correct dolls or the other way around, do you?”
“I do not know.”
“And don’t these guidelines state that as a part of the evaluation of the alleged offender and in cases of possible false allegations, it may be helpful to test both parents, right?”
“Yes.”
Bea thought, “You’re aware in this case, Denise Abernathy was not tested?” Foolish question, she didn’t want to be. She won’t even let her therapist be deposed or show her notes.
“I understand that.”
“And the alleged victim in this case was not tested?”
“I saw no reason for it. She is a bright, intelligent girl. Nothing to test her for right now.”
“Dr. Toffett, is it fair to say you do not personally know this child’s memory capabilities?”
“That’s right. I don’t know this child.”
Toffett Revisited
Bea Archibald began her redirect.
“Was it necessary for your testimony today to have met and interviewed the mother personally?”
“No.”
“Could you tell us, then, what the role, the proper role, of a guardian ad litem is?”
“Objection.”
“No, I think you may have it, in his view.”
Aguilar said, “As long as it’s limited to his view in New Hampshire as opposed to Massachusetts in different situations.”
“Well, I would refer to what the guidelines themselves say, which I agree with. If custody is in issue, a guardian ad litem for the child should be appointed to represent the child’s best interests. That’s the key one there, preventing parents from subjecting the child to multiple evaluations in the hope of finding an expert who will support one or another’s contentions.”
“Okay,” Bea said.
“But to represent the child’s best interests.”
“In your opinion, if anyone interviewed the child at this time, how would the person be able to determine whether what the child says accurately portrays what actually happened, if anything?”
“Objection.”
“You may have that.”
“Thank you. I don’t think that person could with any degree of certainty depend upon what the child said.”
“And on what do you base your conclusion?”
“Both on my knowledge of how children’s memories are distorted and how once they are distorted by questioning of an unknown nature, there is simply no way of knowing the basis for what the child is talking about. And I think the best expert in the country might not be able to do it, and I’ve said so in other cases.”
“Thank you very much, Dr. Toffett,” Bea said.
“I have one question,” Aguilar said on recross. “Is it fair to say, then, the best time to get an accurate description of what took place is when the child is first evaluated?”
“The initial time—when you’re working with a clean slate—is the key time. One should thereafter minimize any further evaluations for a number of reasons.”
“No further questions.”
“Thank you very much, Doctor,” the judge said.
Dr. Toffett exited stage right.
Not wanting to waste the time waiting for the child to arrive in court, Goldblatt asked, “Mr. Aguilar, do you have another witness besides the child?”
When Aguilar didn’t immediately respond, Bea said, “We have another expert here.”
“Why don’t we start with him if it’s all right with you,” the judge said, looking at Aguilar, “and let’s get this thing moving.”
Aguilar said, “That’s fine, if we can interrupt his testimony when the child comes in. I don’t want to mislead the Court. I believe I have some rebuttal witnesses.”
“And who might they be?” Bea asked.
“I don’t have to disclose my rebuttal witnesses.”
Bea knew that. She thought she’d give it a stab. She doubted he had a valid rebuttal one.
Zorba and the Plethysmograph
Alan DeSegonzac, Ph.D., was a mustachioed and subdued Anthony Quinn with thick, salt-and-pepper hair. His broad form filled the chair at the end of the table. He had presence. Bea wondered if she was the only one who saw the wildness hidden behind his professional façade. He had good thighs.
His credentials were as impressive as he was. After being employed for twenty years by the Commonwealth to treat sexually dangerous persons, he had entered private practice. He specialized in forensic psychology and provided consultation, evaluation, and training services primarily in the area of sexual aggression. He’d received grants, published papers, and given speeches to professional associations. His focus was sexual violence of child molesters and rapists, the psychology of rape and child sexual abuse, and the long-term effects of child sexual abuse.
He was Bill’s next witness.
Formidably, he’d studied between three- and four-thousand sex offenders and had conducted well over a thousand interviews. He’d also testified three- to four-hundred times for both the prosecution and the defense as an expert in psychology and sexual aggression, primarily in child sexual abuse cases.
Upon hearing DeSegonzac’s background, Goldblatt qualified him as an expert in clinical psychology, sexual offenders, and the psychology of rape and child sex abuse. Bea had struck gold.
DeSegonzac hadn’t interviewed Denise or Chloe, but he had spent five days evaluating Bill and administering a battery of psychological tests, including projective personality tests.
Seated while DeSegonzac was standing, Bea struggled not to make a sound or move. Her eyes were at the level of those thighs. Unaware of Bea’s hormonally caused pain, he began describing the tests Bill had to take.
“Ten Rorschach inkblots are the standard set of pictures used. Mr. Abernathy had to respond first in a freeform way to whatever he saw in those inkblots, and then to say what about them caused him to produce each response.
“The TAT, Thematic Apperception Test, is a series of pictures of people, from a single solitary young man looking down and studying what’s typically seen as a violin before him, to a man with his eyes covered, shielded, standing in front of what appears to be a partially clothed woman lying on a bed. Mr. Abernathy had to describe the scene in the picture, the person’s feelings, the person’s thoughts when he saw the image, and then tell not only what might have led up to the scene in the picture but also what the outcome was going to be.”
Bea asked, “Could you please describe Bill’s performance on the Rorschach Inkblot test?”
“Well, both the Rorschach and the TAT have a limited utility as part of an evaluation of this type. Their primary value is in assessing the personality of the person who’s taking the test, the ease with which he can use his imagination. When you show somebody an inkblot test and they don’t have any outside cues as to what is an appropriate response, they tend to rely on their own internal mechanisms, their own internal preoccupations, and their own personality pattern to respond to it.
“There are a number of ways in which somebody can try to affect the outcome of the test. The major way is to give as limited a record as possible, to respond with only one or two responses per card.
“An average number of responses for somebody of Bill’s intelligence, which I estimated to be above average, would be on the order of two or three responses per card. And, indeed, that’s the number of responses he gave. The responses themselves can be scored. There are normative tables, again, based on the thousands of Rorschachs administered to clinical and normal populations. Using those data, we know basically how many normal people, as opposed to how many disturbed people, see what the subject saw on a particular card.
“Using those criteria, Bill’s responses were appropriate, with good agreement between what he saw and what most other people see. He made good use of the stimulus material and demonstrated that he has a good imagination. The contents of those responses were within normal limits relative to any sexual preoccupation, any aggressively tinged responses. And that’s what we look at the Rorschachs and the TAT for.
“In someone who’s involved in the medical field, for example, it’s not unusual to get certain anatomical responses. And as one might expect, he gave a certain number of anatomical responses that were consistent with his occupational level.
“So from the Rorschach and the TAT, I felt he was a man in good contact with reality. Again, there was no sign of any potential loss of reality sense, no evidence of any underlying mental illness. No odd response came out of left field or out of nowhere—nothing pathological.”
“Did he take any other tests?”
“Yes. The final part of the psychological test battery included the MMPI, Minnesota Multiphasic Personality Inventory—the most up-to-date version, MMPI-2. This is a set of 566 true/false questions Mr. Abernathy had to answer alone. His responses, his test profile, were then analyzed by computer and compared with the responses of various known clinical and nonclinical groups.
“In the MMPI, scales are used to establish the reliability and validity of the findings. For example, the test analyzes the tendency to respond Yes or No, so that a person who tends to deny any kind of symptoms will come up with a high negativism score.
“The test has certain test questions about relatively minor transgressions; for instance, ‘Have you ever stolen anything?’ Someone who is trying to present himself as overly virtuous or overly healthy or overly moral or lacking in normal human foibles is more likely to respond in a way that will distort the test results.
“The computer analyzes for that, and we concluded Mr. Abernathy responded to each individual question without any conscious attempt to distort or in any way manipulate the outcome of the test, and the test results were considered reliable.”
“Is that a test used in the psychological community with scientific certainty?”
After DeSegonzac gave an extensive answer, the bottom line was Yes.
“Did he take any more tests?”
“The final test involved Mr. Abernathy’s undergoing a Penile Plethysmograph evaluation. That procedure took approximately four hours of laboratory testing, and the procedure there was to have Mr.—”
“Judge,” Aguilar said, “at this time I’d like to object. There has been no proper foundation laid as to any of these tests being scientifically accepted in the scientific community as far as evaluating a sexual offender.”
“You may question him about that,” Goldblatt said. “That’s a matter of argument, but he may tell me what he did and what the test consists of and then you may argue that. Ms. Archibald hasn’t completed her questioning of him as to the validity of these tests. Then she may want to do that.
Okay?”
Bea held in her smile.
Goldblatt then addressed DeSegonzac. “You may proceed on what the Penile Plethysmograph test consisted of.”
And DeSegonzac did. “There were three components to that evaluation. In the first—”
“Hold on just one second, Doctor.” Goldblatt was assiduously taking notes. “Okay. Go ahead.”
Seeing not only Goldblatt but everyone writing, DeSegonzac said, “If you want to shorten it, it’s called a computerized assessment test or a CAT all in caps. That may make it easier.
“In the first phase of the assessment, he was exposed to twenty-five slides. The slides were a standard set of slides used nationwide by sex centers such as ours. They consist of nude, full-front, full-face figures equally divided between males and females ranging in age from approximately four years old through adulthood.
“Each slide was shown to him for two minutes. During those two minutes, his sexual arousal or lack thereof was recorded and the data were collected by the computer.
“The second phase of the assessment included a different set of slides. In order to evaluate whether Mr. Abernathy was paying full attention to the screen, slides of different colors were randomly flashed on the screen and he was instructed to report as soon as he saw the colors.
“If a person is avoiding looking at certain pictures, he would not be in a position to see the light come on, and we’d then have some sense that he wasn’t paying attention to the evaluation.
“The next phase of the evaluation was a variation on the same format. Mr. Abernathy was shown the same number of slides but from a different set. This time he was shown them for only ten seconds, and in between each slide the screen was blank.
“The purpose of conducting this sort of evaluation is to guard against a person suppressing arousal. That is, one of the ways a person may or attempt to consciously distort his arousal pattern is to actually concentrate on not getting aroused.
“And the reason for a ten-second exposure is, if you expose somebody for ten seconds, they have a reaction to the slide. If you then take off the slide, they tend to relax. At that point, if there is any arousal going on, the person taking the test is less likely to be able to consciously suppress it.
“During the final phase of the evaluation Mr. Abernathy, still hooked up to the computer, listened to a set of thirteen audiotapes. They are three-minute vignettes that describe very graphically a range of contacts between children and adults and between adults and adults.
“For example, in one scene a child is accosted in a park and brought up to a room where very sexually explicit activity goes on between them.
“In several of those scenarios, the child—because very often child molesters will distort and view the child as making the overture—the child is described as being very receptive to the overture. Some of those scenes are graphically very aggressive and some of them are actually child rapes.
“As a baseline, two of the audiotapes describe scenarios in which two mutually consenting adults—in one case, two men; in another, a male and a female—in the context of a loving relationship, engage in lovemaking and intercourse.
“That was the final part of the laboratory assessment. All told, Mr. Abernathy had about eleven hours of assessment.”
“Okay. Let’s hold up here until two o’clock, and I’ll see the child at two.”
Not being a regular courtroom, there being no clerk shuffling papers, no phones ringing, no court officer coming in or going out, no stray people peeking in to see if this was the courtroom they wanted, no coffee being poured, no small sugar packages being ripped open, no spoons tinkling against cups or saucers. The feeling inside the chamber was intense. Goldblatt was writing, Aguilar was listening closely in case he had to object, and Bea was making assorted notations and checking off her list as DeSegonzac made points. Bill was simply sitting, his mind active in recall as he heard about the tests he took.
Only Denise was absent from this scenario. She had seated herself in a chair along a wall to the rear of them. She had remained silent.
As Bea turned to leave with the others, she was stunned by Denise’s presence. The woman hadn’t even stood up with the others to leave for lunch. She was a statue in deep repose.
Political Rally
The Toffetts stayed for lunch even though the doctor had already testified. Everyone was curious about what Chloe would say to the judge. Toffett was describing an incident epitomizing how infectious public hysteria had become. “There I was at Harvard attending a seminar for psychologists,” said the debonair Toffett. “Some of the best were there. Each panel was structured so that each side of an issue would be heard.
“As each professional spoke, giving the results of scientific studies as well as anecdotal information, the audience hissed and booed and clapped and swore and threw barbs at the speakers. It was embarrassing. What was to be a scientific event was, in fact, a political rally. The pendulum has to swing in the other direction. Where it’ll come to rest is unpredictable.”
No one spoke. There was nothing to say. Everyone there had seen the effects of hysteria in this case.
No one lingered. No one wanted to be late for what was expected to be Chloe’s premiere performance.
Part 19 of 41 will post on Tuesday, September 09th
