(Editor’s note: The information in this special series is for educational purposes only and is not intended to address any particular case, nor should any articles be taken as legal advice. Always consult with an attorney on any legal matter.)

It’s no surprise that cases with a child victim are the most difficult. They are difficult because the facts are tough to hear and they are difficult because of obstacles in obtaining evidence. And after the investigation, they are difficult to present at a trial.

Child abuse most often occurs in secret where there are no witnesses. Children are vulnerable and they may be too afraid to report the abuse or because the offender has made threats to ensure they do not report. Children who are abused by a family member are particularly less likely to timely report out of feelings of fear as well as loyalty to their loved one even if that loved one is hurting them.

We have had young victims who are unable to accurately describe what has occurred because they simply did not have the knowledge. Children may not actually see and can only describe it, or would describe it differently than an adult might.

We have had other young victims who are reluctant to report because they did not see anything wrong with the abuse because it was something that they did with a loved relative. Abuse was not unusual to them and they did not understand they were being ill-treated.

When children do report, they report abuse to the people they know — usually a parent or school teacher. Teachers and others who work with children are considered “mandated reporters,” meaning they are required to notify ChildLine if they suspect abuse. But anyone can report it.

After the initial report by the child, one or more investigations commence.

The two agencies responsible for investigating these reports are the police and Children and Youth Services and these groups work closely together. At the end of the law enforcement investigation, the evidence obtained is analyzed to determine if the admissible evidence shows the offender committed the crime beyond a reasonable doubt.

Evidence that is admissible versus evidence that is not admissible will be discussed in another article but, for purposes of this week’s article, it is sufficient to say that not all evidence obtained will be allowed to be shown to a jury.

For any witness, testifying in court is intimidating. Most people have never been in that situation and they have to sit on the witness stand between the jury and the judge and describe very personal events. For child victims, the circumstances of a courtroom are exponentially more intimidating and, often, debilitating to the point the child is unwilling to describe the very events they have described in detail to others.

The legislature has attempted to alleviate some of the obstacles presented with child witnesses. One statute allows a judge to permit a child to testify in a room separate from the defendant and the jury and their testimony is captured by video that is streamed into the courtroom where the defendant and jury see it. The standard for presenting a child outside of the defendant’s view is very high, however, and rarely met. In fact, I have only had one case where I was able to present a child’s testimony from a different room, away from a defendant. This is because

the law guarantees a defendant the right to face his accuser in a face-to-face scenario. The law is written so that it requires a judge to find that testifying in front of the defendant will cause a child witness to suffer serious emotional distress that would substantially impair their ability to reasonably communicate.

So, while often it is evident the child does not want to discuss the abuse in front of their family member/defendant, it is less often that we can show the child is suffering serious emotional distress as required. Therefore, the current law requires children to testify in front of the defendant more often than not. This often, predictably, impedes a child’s testimony.

Other than actual testimony from the child, statements the child made to others about the abuse is the next best evidence. Normally, we are not permitted to introduce statements of people who don’t testify. Such statements are considered hearsay.

The legislature has created a statute that allows us to present hearsay statements of children – called The Tender Years Statute. However just like the other statute, a standard has to be met before this is allowed.

Statements by children are broken down into two categories – testimonial and non-testimonial. Testimonial statements are those that were made as part of the investigation.

For many child victims, law enforcement requests a forensic interview from the Child Advocacy Center with the child. Statements a child makes to the police or the CAC forensic interviewer are common examples of “testimonial” statements because they are obtained as part of the investigation. The law requires that, before these statements are introduced at a trial, the child has to testify and be subject to cross-examination. If a judge does not find that the child has testified and was subject to cross-examination, the jury is not permitted to be told about the forensic interview. This is frustrating to the prosecution because forensic interviews are conducted in a controlled setting, by trained individuals, made close to the time of the child’s reporting (rather than a year or more later at a jury trial) and captured on video.

Non-testimonial statements are those that children make to others before the investigation commences. The most common example is the initial disclosure by a child to a teacher or parent. The statute allows these witnesses to testify and tell the jury what the child told them after a court has ruled that the statements contain a ‘sufficient indicia of reliability” and were spontaneously made by a child and that either the child testifies and is subject to cross-examination or is found to be “unavailable” as that term is defined under the statute.

The legal obstacles we face include the difficulty the child may experience by testifying in the same room as the offender or being able to testify about the abuse to allow us to show the jury the recorded forensic interview.

As you can see, there are a lot of legal hurdles in child abuse cases. Despite the legislature’s efforts to ease the stress on a child and increase the ability of their statements to be heard by a jury, these obstacles remain. Because of this, the child’s testimony is considered well in advance of trial. It is not enough to locate “evidence” — we must identify and evaluate what a court will later find to be admissible so that a jury will hear it. If you suspect child abuse, please call ChildLine at (800) 932-0313 or 911.