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In many jurisdictions complainants under the age of 18 who have allegedly been victims of sexual abuse can now testify in a court of law by the use of closed- circuit television from a room adjacent to the courtroom, behind a screen in the courtroom or by means of a videotape if the complainant adopts the contents of the videotape while testifying. These alternative means of giving evidence are not automatically available to witnesses but are subject to certain conditions being satisfied and by a ruling of the court. These means are considered only after it is apparent that a witness will not be able to testify by the traditional and preferred method which is under oath in the courtroom before the trier of fact without using any protective devices.
These protocols apply only to videotaped interviews. If a young witness testifies by closed-circuit television or behind a screen, the procedure still involves contem-poraneous direct evidence being taken before the trier of fact under oath. A videotape, on the other hand, if admitted in evidence, becomes a substitute for the direct examination of the child or young person. It is evidence that was recorded at a previous time, out of the courtroom, not under oath and not subject to cross-examination at the time the statements were made. Thus, the procedures and methods used in conducting the videotaped interview will be carefully scrutinized by counsel and by the court before the tape will be admitted in evidence.
methods, particularly the avoidance of leading or suggestive questions, videotapes will be useful to courts of law and to other professionals in other situations, because the victim’s version of events will more likely be seen to be independent and credible.
Where should the children be videotaped?
Sufficient care must be taken in selecting the facility where the interview would take place. Needless to say, environment should be non-threatening. In most cases, the child should be interviewed first. The interview should take place in a neutral setting in order to avoid the potential of an alleged subject, parent, or other person influencing the child’s statement. In rare circumstances, a person whom the child knows and trusts may be present as a source of support to the child at the discretion of assessment team. Appropriate behavior and confidentiality issues should be discussed in advance with such a support person. If an interview in the home or location where the abuse may have occurred is unavoidable, the team is advised to select a room where the child feels comfortable.
The room should contain comfortable seating and a small table where the child can draw but there should be no other distractions such as toys. Investigative aids such as anatomically correct dolls, drawing materials or puppets should be accessible to the interviewer but out of sight of the child. Video camera and microphone equipment in the interview room should not be accessible to the child, but be placed in such a manner as to ensure accurate video and audio recording.
When should the interview be videotaped?
The video taping of the first interview should be done within a reasonable time after the offense is alleged to have been committed but, in any case, as soon as possible after the abuse has been reported.
Where possible, all initial interviews of sexual abuse victims should be video taped.
Where this is not possible, then videotaped interview should be made with the child at the first opportunity.
If required, a medical examination should be scheduled as soon as possible after disclosure of abuse regardless of whether the examination is before or after the videotaped interview. Some children may not make a full disclosure during the initial interview. All subsequent interviews with the child should be videotaped.
How should the interviewer be selected?
It is important that the qualified interviewer possess many different skills.
The interviewer should have experience in working with and interviewing sexually abused children. The interviewer should have education or training in the dynamics of child sexual abuse including an understanding of the profiles of the offender, the non-offending parent and the victim. The interviewer should be prepared to testify in court as to his or her qualifications and the procedures he or she chose to use in the videotaped interview.
What are the step-by-step protocols for interviewing child witnesses once the videotaped interview commences?
Introductory Phase
The interviewer will identify himself/herself and establish the time, date and location of the interview. The interviewer will identify who is present in the room. The interviewer will explain his/her job. The interviewer will inform the child that the interview will be videotaped.
Rapport Building Phase
The interviewer must take sufficient time to help the child to relax and to build rapport with the child. The form this takes will vary from child to child and it requires flexibility and an appreciation of the needs of children. There is no point in proceeding with the interview until rapport has been established.
Throughout the rapport building phase, the interviewer can make an informal assessment of several aspects of the child’s behavior. Thus, the interviewer can observe the child’s language abilities (which can aid the later questioning phases of the interview). The interviewer can note the body language of the child, eye contact and the affect the child displays.
The child should be asked to recount at least two memory episodes (e.g., a trip, a class excursion, a birthday, etc.). These episodes should be entirely independent of the abuse allegations. The interviewer can note the style and content of each memory episode. This serves as a comparison for the style and detail the child provides in the later part of the interview.
Introducing the Purpose of the Interview
The interviewer should discuss the importance of telling the truth and the need for the child to focus on his or her own experience. Introducing the topic of sexual abuse should follow the same step-wise approach which generally guides the interview. The topic is first introduced in the most general fashion:
Do you know why you are talking to me today?
¿Entiendes por qué estás hablando conmigo ahora?
If this does not introduce the topic, take the step to a slightly more specific question:
Has anything happened to you which you would like to tell me about?
¿Quieres contarme de algo que te haya pasado?
If this is unsuccessful, the next step might be:
Has anything happened to you which you feel unhappy or uncomfortable about?
¿Te han pasado cosas que te han hecho sentir mal?
A subsequent step, if necessary, might be:
Has anyone done something to you which they shouldn’t?
¿Alguien te ha hecho algo que no debía?
A last resort might be:
Has anyone touched you in a way they shouldn’t?
¿Alguien te ha tocado de un modo que no se debía?
Thus, the object is to avoid using suggestive or leading questions. The major facts in issue are whether the child has been sexually abused, in what manner and by whom. Any suggestive or leading questions on those issues can make a video-taped interview valueless in criminal court. Under no circumstances should you indicate the name of a suspect or the nature of the specific allegations. This type of information must come from the child. Be sure that you always phrase the question in language which is appropriate to the child’s developmental level.
In those cases where a child has not yet disclosed abuse, it may be necessary for child protection reasons to be more probing when introducing the topic of sexual abuse. Only take such a step as a last resort and be aware that the use of leading questions is likely to compromise any criminal justice consequences of the interview.
Free Narrative Phase
This is the most important aspect of the interview. You must provide every opportunity for the child to provide his or her own version of the events.
Ask the child to describe each event from the beginning. If the allegation is one of repeated abuse, first obtain an outline of the typical form of the abuse. Then use the script of the typical form of abuse as a means of assessing specific episodes. For example, ask if there was any occasion when the script was changed. Also, you might ask the child to recall the first episode and/or the last episode.
Do not interrupt the child during the free narrative. If you think of questions, contradictions, inconsistencies, etc. make a note for later reference. Do not correct, interpret or challenge the child during the narrative phase.
If the child stops the narrative, encourage continuation with the use of simple statements or questions.
What happened next?
¿Qué pasó después?
or restate the last thing the child said and say
And then what happened?
Y luego, ¿qué pasó?
This phase of the interview should proceed at the child’s pace. Be patient, tolerate pauses and keep a relaxed tone in the interview. Allow the child to elaborate and express whatever he or she wishes, even if you obtain irrelevant or verbose descriptions. Once the child has exhausted his or her capacity for a free narrative, ask the child to repeat some part of the narrative. Make sure that you communicate to the child that the purpose of this repetition is to assist you in understanding what happened. Do not lead the child to think you are doubting the story.
Open Questioning Phase
The purpose of this phase is to provide an opportunity for the child to elaborate details of the events described during the free narrative phase. In ideal circumstances, the free narrative would have exhausted the child’s memory. However, some question-ing is usually going to be necessary after the narrative and the younger the child, the more likely this is true.
The questions in this phase should take the form of requests for more details about events previously disclosed.
Can you tell me any more about the time it happened in the park?
¿Puedes contarme más de lo que pasó aquella vez en el parque?
If multiple incidents have been described in the narrative, it is useful to give each incident a distinctive label (e.g., the park incident, the TV time, etc.) The child may aid in the labeling of the incidents. This labeling will help to keep the incidents distinct and clarify which incident is being discussed at a particular time.
The questions employed should never lead the child nor should they suggest an answer. Make sure that your questions do not pressure the child to provide an answer. Always make it clear that the child can say “I don’t know that.”
If you need to repeat something the child said earlier (e.g., the description of an event), ask the child to correct you if you make any mistakes.
Specific Question Phase
The purpose of this phase is to provide an opportunity to clarify and expand previous answers. Certain devices can be employed here to assist the child who is having recall difficulty. For example, you might ask the child to describe how a television camera on the ceiling would have seen the event (i.e., taking a different perspective). Alternatively, the child might be asked to remember what he or she was doing before the event, what the weather was like, etc.
Some questions in this phase may require the inclusion of alternatives in the question. Always try to include more than two alternatives:
Did this happen in the autumn, winter, spring or summer?
¿Cuándo pasó eso, en el otoño, invierno, primavera, o verano?
Never include information you have obtained from any other source in your questions. The one exception is using something as a memory trigger. For example, if you know that a mirror was used during the abuse and the child has not mentioned it, you might ask
Do you remember anything about a mirror?
¿Recuerdas algo acerca de un espejo?
Note that this form of question provides no information to the child. Do not tell the child that you know that he or she told someone else.
With younger children or children with language problems, it may be necessary to use some aids during the interview. Such aids should only be used when the other phases of the interview have proved inadequate. The aids should not be suggestive. Thus, if drawings are used, they should not contain sexual features; these can be added by the child as part of the interview process. If dolls are used, they should not be anatomically detailed. Anatomically detailed dolls should only be used after the child has verbally disclosed the details of the sexual abuse and then only for illustrative purposes.
If there are inconsistencies in the child’s statement, they should be addressed last. The probing of inconsistencies should be as gentle as possible.
You said he put his finger inside, but you said you had your clothes on. How did that happen?
Me dijiste que estabas vestida pero que él te metió el dedo. ¿Comó pasó eso?
Leading Questions and Suggestions
Under unusual circumstances, a child protection worker may have to probe a child who has been unwilling to disclose. Using leading questions to probe is a last resort. Taking this step makes the likelihood of criminal proceedings based on videotaped evidence virtually zero. This step should be taken only when every other phase of the interview has failed to produce sufficient information and there is still good reason to be suspicious of abuse.
The question of how suggestible the child is may be an issue. If this is the case, it may be necessary to check suggestibility at the end of the interview. This can be done by asking a couple of leading questions about irrelevant issues.
You wore a red dress yesterday, didn’t you?
Ayer llevabas puesto un vestido rojo ¿verdad?
If the child demonstrates a susceptibility to suggestion, it may be necessary to pursue this issue to determine previous contamination of the child’s evidence.
Concluding the Interview
Regardless of the outcome of the interview, the child should be thanked for participating. Do not make promises about future developments which you cannot keep. Ask the child if he or she has any questions and answer those which you can.
In this section we’re going to look at leading questions and then rephrase them to non-leading questions and in the process we’ll explore five important rules of interviewing techniques.
Rule 1. Must not contain answer
Leading
Did it happen at your house?
¿Sucedió en tu casa?
Was your mom there?
¿Estaba tu mamá allí ?
Did he tell you not to tell anyone?
¿Te dijo él que no le contaras a nadie?
Non-Leading
Where did it happen?
¿Dónde pasó?
Who was there?
.¿Quién estaba allí?
What was said to you?
¿Qué te dijeron?
Rule 2. Must not contain a choice of answers
Leading
Was he wearing pants or shorts?
¿Llevaba él pantalones largos o pantalones cortos?
Were you sitting up or laying down?
¿Estabas sentada o acostada?
Were you scared, angry or sad?
¿Tenías miedo o te sentías triste o enojada?
Non-Leading
Tell me what he looked like.
¿Dime cómo se veía él?
Where were you in the room?
¿En qué parte del cuarto estabas?
How did you feel?
¿Cómo te sentías?
Rule 3. Must not name the suspected offender before the child has identified the person
Leading
Was it your dad who touched you?
¿Fue tu papá quien te tocó?
Did your babysitter tell you to keep a secret?
¿Te dijo la niñera que no se lo contaras a nadie?
We have been told you are having a problem with your uncle.
Nos han dicho que tienes problemas con tu tío.
Non-Leading
Who touched you?
¿Quién te tocó?
Has anyone asked you to keep this a secret?
¿Alguién ha pedido que no lo contaras a nadie?
Do you know why you are here?
¿Sabes por qué estás aquí?
Rule 4. Must not contain explicit details of the alleged offense
Leading
Did he make you rub his penis up and down?
¿Te hizo frotar su pene?
Did white stuff come out of his penis?
¿Le salió algo blanco de su pene?
Which finger did he use to hurt you?
¿Cuál dedo usó para lastimarte?
Non-Leading
What did he do next?
¿Qué hizo después?
Then what happened?
¿Y luego qué pasó?
What was it that hurt you?
¿Qué fue que te hizo daño?
Rule 5. Must not contain the interviewer’s assumptions
Leading
We are going to ask you some questions about what happened to you. What kind of car did you go in?
Vamos a hacerte algunas preguntas acerca de lo que te pasó. ¿En qué tipo de carro te subiste?
Where was the bed in the room?
¿En qué parte del cuarto estaba la cama?
Tell me about your mom’s house.
Cuéntame de la casa de tu mamá.
Non-Leading
Do you know why you are here?
¿Sabes por qué estás aquí?
How did you get there?
¿Cómo llegaste allá?
Can you tell me what was in the room?
¿Puedes decirme lo que había en el cuarto?
Tell me about where your mom lives.
Cuéntame del barrio donde vive tu mamá.
Author: Nancy Fredericks May 1992
www.gnb.ca/0017/Protection/Child/Interviewing-e.pdf
The following types of questions progress from the more desirable open-ended ones to less desirable multiple-choice and direct questions, and finally to undesirable leading and coercive questions. The more open-ended the question, the greater the confidence in the response elicited from the child.
General
I talk to kids when grownups don’t treat them right. Has any grownup mistreated you?
Yo hablo con los niños cuando los adultos no los tratan bien. ¿Algún adulto te ha maltratado?
Tell me everything you can remember about X.
Cuéntame todo lo que puedas recordar de X.
Do you know why we are talking today?
¿Sabes por qué tú y yo estamos hablando hoy?
Focused
Who (person who may have abused child)
Tell me about your dad. What do you like about him?
Cuéntame de tu papá. ¿Qué te gusta de él?
Are there things you don’t like?
¿Hay cosas que no te gustan de él?
Are there special things you do with Uncle Joe?
¿Hay cosas especiales que haces con tu tío Joe?
What(abuse)
Does anyone ever touch your peepee?
¿Hay alguien que te toca el pajarito?
Have you ever seen a penis? Whose?
¿Has visto un pene alguna vez? ¿De quién?
Are there secrets at your house?
¿Hay secretos en tu casa?
Do you ever play special games?
¿Juegas algún juego especial?
Where (circumstances of abuse)
Tell me what happened at day care.
Cuéntame lo que pasó en donde te cuidan.
What do people do at Dave’s house?
¿Qué hace le gente en casa de Dave?
What do you remember about the camping trip?
¿Qué recuerdas del viaje de campo?
When (circumstances of abuse)
Who put you to bed?
¿Quién te acostó?
What happens when your daddy drinks?
¿Qué pasa cuando tu papá toma?
What happens when you get a bath?
¿Qué pasa cuando te bañan?
Disclosure (prior to interview)
Did you talk to your teacher about someone hurting you?
¿Le hablaste a tu maestra acerca de alguien que te hace daño?
Did you have to go to the doctor?
¿Tuviste que ir al médico?
Followup
Narrative Cue
What happened after that?
¿Y luego qué pasó?
And then what?
¿Y luego?
Repeat (of child’s statement)
He touched your private parts?
¿Te tocó tus partes privadas?
Clarify (previous statement)
You said he bit you down there?
¿Dijiste que te mordió esa parte?
Where exactly did his peepee go?
¿Dónde exáctamente metió su pajarito?
Multiple Choice
Did it happen in the daytime or nighttime or both day and night?
¿Pasaba de día o de noche o de día y de noche?
Did he hurt your butt, face, arm, or somewhere else?
¿Te lastimó la colita, la cara, el brazo o alguna otra parte?
Direct
He touched your private parts?
¿Te tocó tus partes privadas?
Leading
Isn’t it true that your brother bit your peepee?
¿Es verdad que tu hermano te mordió el pajarito?
You were lying about what your mom did, weren’t you?
Mentías cuando hablaste de lo que hizo tu mamá ¿verdad?
Coercive
If you don’t tell the truth, you’re not leaving this room.
Si no dices la verdad, no saldrás de este cuarto.
We can go get ice cream once you tell me what happened.
Podemos ir a tomar un helado cuando me digas lo que pasó.