Timothy M. Tippins (NYLJ/Rick Kopstein)
Whether raised in a criminal prosecution, in a parental termination proceeding or in a custody case, an allegation of child sexual abuse presents an adjudicatory nightmare. The central issue is whether the allegation is true or false, credible or incredible. Without venturing a view as to percentages of valid versus invalid allegations, suffice to say that some of each make their way into the courtroom. Because sexual abuse typically occurs in secret and leaves no trail of physical evidence, much depends upon the credibility of the complainant. Enter the mental health professional and the theory of Child Sexual Abuse Accommodation Syndrome (CSAAS). This theory again came to the fore in the recent Court of Appeals decision in People v. Nicholson.1 This article will address that decision and the role of CSAAS in New York litigation.
What Is CSAAS?
Before turning to Nicholson, it is important to understand what CSAAS is and what it is not. As described in one prominent treatise:
The syndromes used in sexual abuse cases are generally not really syndromes in the diagnostic sense. The most prominent syndrome used is the Child Sexual Abuse Accommodation Syndrome (CSAAS). Dr. Roland Summit, who identified the CSAAS, identified various factors in a pattern of response to molestation which many children shared: (1) secrecy; (2) helplessness; (3) entrapment and accommodation; (4) delayed, conflicted, and unconvincing disclosure; and (5) retraction. The CSAAS does not diagnose sexual abuse. Rather, it is a clinical opinion which explains why a child who has been molested might exhibit certain behaviors which appear to be inconsistent with having been sexually abused.2
Summit himself made clear that CSAAS is not a diagnostic tool for determining whether sexual abuse has occurred or whether a given child who claims to have been abused is telling the truth.3 Rather, it simply describes certain types of behaviors (e.g., a delay in reporting the abuse) supposedly common to children who have been sexually abused that the typical fact-finder might find inconsistent with the validity of a child’s allegation. Though CSAAS is controversial and some authorities in the field question whether the theory has sufficient empirical support to be considered reliable4 and no reported New York decision reflects that it has ever been subjected to a Frye hearing,5 analysis of its empirical deficiencies is beyond the scope of this article.
Turning to People v. Nicholson, defendant was convicted of repeatedly raping his daughter from the time she was six years old until she was almost eight. The girl told no one about these events until she was 16 years old.
At trial, the daughter explained that she delayed reporting the rapes because she was afraid the defendant would come after her or her family. She testified that she decided to disclose when she did because she wanted to protect her younger sister from the same fate, she wanted the truth to come out and she wanted someone to help her keep from killing herself.
The prosecution called a social worker to the stand who presented testimony on CSAAS:
The expert testified that it is very common for child victims of sexual abuse to delay disclosure because they believe that they are to blame for the abuse, or that their silence protects other individuals from the consequences of the disclosure.6
In essence, the expert explained why a victim of sexual abuse might delay disclosure for reasons that do not necessarily detract from the credibility of the allegation.
On appeal, the defendant challenged the admission of the expert’s testimony solely on the ground that it was unnecessary because the jury understood the issue of delayed reporting without need of expert explanation. This argument was rejected by the court because the defendant failed to demonstrate that the jurors possessed a sufficiently sophisticated understanding of the issue and, thus, the trial judge did not abuse his discretion in receiving the testimony. In so holding, the court referenced its previous holdings:
We have previously held that expert testimony on CSAAS is admissible, like other psychological syndromes, because it helps to explain victim behavior that might be puzzling to the jury (citations omitted). The expert educates the jury on a scientifically-recognized “pattern of secrecy, helplessness, entrapment [and] accommodation” experienced by the child victim (citation omitted). This includes assisting the jury to understand “why a child may wait a long time before reporting the alleged abuse,” fail to report at all, and deny or recant claims of sexual assault (citation omitted). As we recognized in Spicola, the testimony is properly admitted for the legitimate purpose to counter an inference that the victim is not credible (citation omitted).”7
Because the defendant in Nicholson restricted his argument solely to the “necessity” issue, a deeper understanding of the proper role of CSAAS requires examination of two important precedents that were cited by the court: People v. Spicola8 and People v. Williams.9
In Spicola, the defendant was convicted of sexually abusing a boy on several occasions starting when the boy was six years old and ending when he was eight. The boy made no disclosure for six years. CSAAS testimony was received over defense objection. The Court of Appeals, in a 4-3 split decision, held there was no abuse of discretion in allowing “the expert to testify about CSAAS to rehabilitate the boy’s credibility,” stating:
The expert stressed that CSAAS was not a diagnosis; rather, it describes a range of behaviors observed in cases of validated child sexual abuse, some of which seem counterintuitive to a layperson. He confirmed that the presence or absence of any particular behavior was not substantive evidence that sexual abuse had, or had not, occurred. He made it clear that he knew nothing about the facts of the case before taking the witness stand; that he was not venturing an opinion as to whether sexual abuse took place in this case; that it was up to the jury to decide whether the boy was being truthful. In short, defendant staked his defense on the proposition that the boy’s behavior, as demonstrated by the evidence, was inconsistent with having been molested; the legitimate purpose of the expert’s testimony was to counter this inference.10
The dissenting opinion underscored that while CSAAS testimony was admissible to explain “behavior by a complainant that might appear unusual to the average juror—such as why a child might not immediately report sexual abuse—we have contrasted the permissible use of such testimony with testimony that opines that complainant’s ‘behavior [was] consistent with such abuse.’”
This is a critical distinction but to draw it one must count the angels dancing on the head of the evidentiary pin. Once the expert delineates characteristics supposedly common to abused children that match characteristics of the complainant, how likely is it that the fact-finder will not draw the inference that the testimony at least suggests that this child was, indeed, abused? After all, if it quacks like a duck …
Framework Testimony Only
Under current law, the key to the proper presentation of CSAAS testimony is that the expert must be confined to a general explanation of the concept without commenting specifically on the facts of the case before the court. The expert may not state that abuse did or did not occur, that the complainant is or is not telling the truth, or that the complainant’s characteristics or behavior are “consistent with”11 sexual abuse.
The proponent of the witness frequently seeks to circumvent this limitation by posing a hypothetical question that essentially mirrors the facts of the case. This is error. In People v. Williams, the Court of Appeals stated:
[T]he expert’s testimony exceeded permissible bounds when the prosecutor tailored the hypothetical questions to include facts concerning the abuse that occurred in this particular case. Such testimony went beyond explaining victim behavior that might be beyond the ken of a jury, and had the prejudicial effect of implying that the expert found the testimony of this particular complainant to be credible—even though the witness began his testimony claiming no knowledge of the case before the court.12
Thus, the expert may not even imply that he or she considers a particular complainant to be credible. Even when so circumscribed this kind of testimony comes dangerously close to the expert vouching for the credibility of the complainant, testimony long forbidden as “a serious usurpation of the jury’s prerogative and responsibility.”13 And the angels keep on dancing.
It is foreseeable that CSAAS testimony will continue to visit our courtrooms for some time to come. Each time it does, the courts and the attorneys will have to choreograph a punctilious evidentiary ballet, ensuring that the expert stays within the bounds of descriptive framework testimony about the concept without trespassing into the fact-finder’s exclusive domain of credibility assessment. Perhaps someday the courts will tire of this exertion and actually assess the reliability of the CSAAS concept under Frye14 or, better yet, Daubert,15 to decide whether it should be doing this dance at all.
1. People v. Nicholson, 26 N.Y.3d 813, 48 N.E.3d 944, 28 N.Y.S.3d 663 (2016).
2. Haralambie, A.M. 3 Handling Child Custody, Abuse and Adoption Cases §16:4 (West 2016)
3. See Summit, “Abuse of the Child Sexual Abuse Accommodation Syndrome,” 1 J Child Sexual Abuse 153 (1992).
4. See, for example, Kuehnle, K., Connell, M., “The Evaluation of Child Sexual Abuse Allegations: A Comprehensive Guide to Assessment and Testimony,” p. 286 (Wiley, 2009) (“The syndrome has been widely criticized as lacking empirical support.”); Lilienfeld, S.O., Lynn, S.J., Lohr, J.M., “Science and Pseudoscience in Clinical Psychology,” p. 104 (Guillford, 2015) (“Application of CSAAS in legal settings may be misleading and confusing to fact-finders.”).
5. Frye v. United States, 54 App. D.C. 46, 293 F. 1013 (1923); See In re Wendy P., 47 Misc.3d 1202(A) (2015) (“there is no reported case in which a family court or appellate court has required or recognized the need for a Frye hearing in an Article 10 proceeding for the admissibility of expert validation testimony in sexual abuse matters.”).
6. People v. Nicholson, 26 N.Y.3d 813, 820, 48 N.E.3d 944, 28 N.Y.S.3d 663 (2016).
7. People v. Nicholson, 26 N.Y.3d 813, 828, 48 N.E.3d 944, 28 N.Y.S.3d 663 (2016).
8. 16 N.Y.3d 441, (2011).
9. 20 N.Y.3d 579 (2013).
10. 16 N.Y.3d 441, 465 (2011).
11. People v. Carroll, 95 N.Y.2d 375, 387, 718 N.Y.S.2d 10, 740 N.E.2d 1084 (2000).
12. 20 N.Y.3d 579, 585 (2013).
13. People v. Parks, 41 N.Y.2d 36, 48 (1976).
14. Frye v. United States, 54 App. D.C. 46, 293 F. 1013 (1923).
15. Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786 (1993).