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COMMENTARY
Exploring the Contours of Expert
Testimony Regarding Child Sexual Abuse
Accommodation Syndrome
Elisa Reiter, Daniel Pollack and Jerey C. Siegel｜ April 9, 2024
The term “child sexual abuse accommodation syndrome” (CSAAS) was
initially coined by psychiatrist Roland Summit in 1983 in an effort to
understand the various ways children react to sexual abuse. From an
evidentiary perspective, not all states recognize CSAAS as admissible.
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Indeed, CSAAS is not recognized by the American Psychiatric Association
or the American Psychological Association. In California, expert
testimony regarding CSAAS is admissible. A recent case, People v. Mason,
sheds light on the use of CSAAS in court. Note that Mason is an
unpublished opinion.
The practice of bringing a “pure expert” to court is common. The purpose
is simple: to educate the judge or jury on an important issue in the case,
often including relevant research. Federal and state rules of evidence
characterize an expert as someone with specialized acumen or
knowledge—having one degree or many degrees is not necessarily how
an individual is recognized as an expert by a judge. The judge acts as a
gatekeeper. As such, the judge must be convinced that a mental health
professional proffered as an expert can validate their opinions and
recommendations. Expert witnesses traditionally must present
“a reliable basis in the knowledge and experience of the discipline.” What
type of information helps substantiate expertise? “[S]ufficient data,
reliable principles and methods, reliable application of those principles
and methods to the case facts.” (“How to Examine Mental Health
Experts,” Zervopoulos, 52).
The presentation of expert mental health information to the court is
essential, but such evidence does not need to be characterized as a
“syndrome” and it is likely to draw objections based on the fact, as
mentioned above, that neither APA recognizes such a distinction. But a
person’s behaviors based on observations, evaluations and appropriate
records may indicate a pattern of behaviors that have been described
and identified in relevant, empirically-sound and peer-reviewed
research as indicative of someone having experienced certain sorts of
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trauma. This may provide the expert confidence to report to the court
that a person under the circumstances as are present in the case is likely
to have experienced the trauma. An expert might even question the
necessity of using the term “syndrome” to describe a pattern of
behaviors.
In the Mason case, the defendant, Anthony Maurice Mason, was convicted
of two counts of continuous sexual abuse of his two daughters. Mason
appealed the conviction, contending that the trial court abused its
discretion in allowing certain expert testimony on CSAAS, as well as due
to the trial court allegedly giving improper instructions to the jury
regarding that issue. What is unique is that the expert, Dr. Carmichael,
acknowledged in his testimony that “… he did not know anything about
the facts of the case, had not read reports or interviews related to the
case, and knew nothing about the specific victim in the case or the
relationship of ‘the victim’ to the defendant.”
What did Carmichael know and testify about? Carmichael opined on the
five aspects of CSAAS, and the correlation of how those five items impact
disclosure of sexual abuse. Precedent in California stands for the
proposition that trial courts may allow CSAAS testimony in order “’to
explain the emotional antecedents of abused children’s seemingly self-
impeaching behavior,’ such as delayed exposure of the abuse.” The five
stages of CSAAS have been identified as:
1. Secrecy
2. Helplessness.
3. Entrapment (accommodation).
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4. Delayed and unconvincing disclosure.
5. Retraction of the complaint due to adult disbelief and blaming the
victim.
In the Mason appeal, the defendant argues that Carmichael’s testimony
exceeded appropriate boundaries by purportedly focusing on the
“perpetrator’s characteristics and the behavior of the ‘non-offending’
parent rather than on the children’s general reactions to sexual abuse.”
The appellate court rejected those contentions as being an inaccurate
summary of Carmichael’s testimony. What did Carmichael’s testimony
include?
1.Characterizing the majority of perpetrators as male.
2. Most perpetrators are known by the child.
3. Most perpetrators have established a trusted relationship with the
child.
4. The trusted relationship is maintained during the course of the abuse
and thereafter.
5. Abuse often occurs while the “non-abusing” parent is not home, or
simply not present due to their own issues (working, addiction,
depression, sleeping).
6. Indicating that the child is coerced or threatened into maintaining a
bond of secrecy with their abuser.
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7. Noting the child’s feelings of helplessness are exacerbated by a variety
of fears (loss of relationship, loss of home, the non-offending parent
siding with their partner rather than with the child).
8. Acknowledging that the perpetrator’s size can impact the child’s
feelings of helplessness—the perpetrator’s looming presence can instill
not only fear, but make the child seek the perpetrator’s approval.
9. Observing that while a child might smile or maintain an even keel
while confiding in someone about the abuse, such a demeanor does not
diminish the child’s veracity, but instead indicates that the child may be
attempting to distance themselves from the negative emotions that
attend the experience.
10. Adding that a child is “giggling” while disclosing the abuse should not
diminish the child’s veracity; instead, one should realize that one is
speaking with a child, not a mini-adult, and that children (like adults)
sometimes giggle when nervous.
11. Recognizing that the non-offending parent may be reluctant to go to
authorities due to shame, fear of loss of financial stability, and utter
incredulity that a person they love could harm another person the non-
offending parent loves.
The Mason court concluded that:
“Dr. Carmichael’s testimony was appropriately directed at helping the
jury understand common misconceptions about child victims of sexual
abuse. His statements that ‘the vast majority’ of children are abused by
someone they know and are in a trusted relationship with, rather than a
stranger, elaborated on the context in which such abuse generally occurs
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and dispelled a common misunderstanding as to the relationship
between child victims and their abusers.”
Further, even if Carmichael’s testimony regarding why a non-offending
parent may fail to report abuse exceeded the bounds of CSAAS
testimony, the appellate court concludes that it was not prejudicial, as
the testimony was brief, and failed to provide any specific tie to the
defendant’s guilt. The appellate court also rejects the argument that
Carmichael’s testimony was somehow grounded as inadmissible profile
evidence.
In People v Robbie, the California Appellate Court concluded that, “A
profile is a collection of conduct and characteristics commonly displayed
by those who commit a certain crime.” In the Robbie case, the prosecutor
asked an expert a series of hypothetical questions that included the
defendant’s specific conduct. In Robbie, the expert opined that the type of
behavior incorporated in the prosecution’s hypothetical questions was
“typical of a particular kind of criminal.” The Mason court distinguishes
Carmichael’s testimony from the expert in Robbie. While Carmichael
noted that most perpetrators of child sex abuse are male, that testimony
fell short of trying to profile a typical abuser. In addition, the appellate
court dismissed Mason’s contention that Carmichael’s testimony was too
fact specific and therefore lacked merit. Nor did the prosecution wrap
specific examples of Mason’s conduct into hypothetical questions,
distinguishing the underlying record in Mason from the record in
the Robbie case.
Mason’s contention that he was harmed by the judge’s instruction on
CSAAS testimony is also dismissed by the appellate court as unfounded.
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Mason’s constitutional rights were not infringed upon by the trial court,
including an instruction similar to CALCRIM 1193, which is a jury
instruction that specifically advises the jury that the mere fact that
testimony has been presented by an expert in child abuse does not stand
as proof that the defendant committed sexual abuse of a child. Read in
context, such a jury instruction is intended to help jurors grasp the
concept that “CSAAS testimony seeks to explain why certain behavior
does not, contrary to common opinion, suggest a victim’s allegations are
false.”
What makes for a successful prosecution, or allows a party to explain the
need for a change of custody based on allegations of child abuse?
• Digging down into the facts specific to the case.
• Explaining to a jury—or even to an experienced judge—that
outcries by minors must be validated and not ignored.
• Laying the foundation for the five principles attendant to CSAAS, or
the foundation for the generally agreed upon five principles noted
in the research regarding sexual abuse accommodation strategies
(coping strategies) used by children.
• Making sure that the best interests of children are served, and that
children are safe.
Elisa Reiter, senior attorney with Calabrese Budner, is board certified in
family law and in child welfare law by the Texas Board of Legal
Specialization. She has served as an adjunct professor at Southern
Methodist University. She is also admitted to practice in the District of
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Columbia, Massachusetts and New York.
Contact: elisa@calabresebudner.com.
Daniel Pollack, MSW, JD is a professor at Yeshiva University’s School of
Social Work in New York City. He was also a commissioner of Game Over:
Commission to Protect Youth Athletes, an independent blue-ribbon
commission created to examine the institutional responses to sexual
grooming and abuse by former USA Gymnastics physician Larry Nassar.
Contact: dpollack@yu.edu.
Jeffrey C. Siegel, Ph.D., ABPP is a forensic and clinical psychologist in
Dallas, Texas. In practice since 1981, he has been conducting child custody
evaluations for over 40 years in multiple states and has provided court
testimony over 300 times. He is board certified in Clinical Psychology and
Family Psychology through the American Board of Professional Psychology
and is a fellow of the American College of Forensic Psychology.
Contact: jeff@siegelphd.com.
Original link: https://www.law.com/therecorder/2024/04/09/exploring-the-
contours-of-expert-testimony-regarding-child-sexual-abuse-accommodation-
syndrome/