December 01, 2013

Prosecuting Cases for Children Who Cannot Speak about Traumatic Events

Christina Rainville

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

While prosecuting sexual abuse cases for children with disabilities six years ago in Bennington County, Vermont, our prosecution team quickly realized that some children are unwilling to talk about being abused. Many children want to talk but are unable.

We have seen children become unable to speak at all stages of the legal process: in the forensic interview, in meetings with the prosecution team, and at trial. This article addresses common situations that prosecution teams encounter, and how to help the child find a voice.

What Makes a Child Unable to Speak about Abuse: Understanding Mutism

Dr. James Tallmadge, a child psychologist and adjunct professor at the Vermont Center for Youth and Families, at the University of Vermont Medical School, has worked with children who struggle with mutism. According to Tallmadge, everyone can become unable to speak when overwhelmed, and some children suffer from disabilities that make them prone to becoming speechless. Children on the autism spectrum frequently become mute when they are overwhelmed, and some children have a disability called “selective mutism.” Children with autism or selective mutism may be perfectly capable of speaking at times, and completely unable to speak when their stress level is heightened.

The Diagnostic and Statistical Manual (DSM -5) sets forth the diagnostic symptoms of selective mutism disability:

A. Consistent failure to speak in specific social situations in which there is an expectation for speaking (e.g., at school) despite speaking in other situations.

B. The disturbance interferes with educational or occupational achievement or with social communication.

C. The duration of the disturbance is at least one month (not limited to the first month of school).

D. The failure to speak is not due to a lack of knowledge of, or comfort with, the spoken language required in the social situation.

E. The disturbance is not better accounted for by a communication disorder (e.g., childhood-onset fluency disorder) and does not occur exclusively during the course of autism spectrum disorder, schizophrenia, or another psychotic disorder.

According to Tallmadge, children with selective mutism appear extremely shy and tend to only be comfortable with the people they know well. They may speak perfectly well at home with their family, but fail to speak when someone they do not know is present or when they are outside of the home. Sometimes these children can speak to their peers, and they may speak perfectly well in some circumstances. At other times, they simply cannot speak at all. 

Dr. Tallmadge explains that, regardless of whether the child has a disability that causes mutism or whether the child has no disability but is simply overwhelmed to the point where the child cannot speak, the approach for helping all of these children is the same. Understand that these children are not being difficult and refusing to speak, rather, they are unable to speak. They need help and support.

Inability to Speak about Abuse Can Occur Anytime

Look for signs that a child is having difficulty speaking and adjust accordingly to support the child. Difficulty speaking presents in different ways in different stages of the legal process.

Speech anxiety can be heightened by many factors, including the location of the conversation (e.g., outside the child’s home), the number of people present, the fear that the conversation will be overheard, too much direct eye-contact by the questioner, the child’s fear of error or disapproval, or simply being asked questions that require a response.1

When the child’s body language tells a different story 

In sexual abuse forensic interviews, the scenario of a child who cannot speak about the abuse fits a common pattern. When investigators from the Department of Children and Families and the police interview the child, they start on easy, relationship-building topics and the child sits comfortably and talks with ease. When the topic turns to the suspected abuser or the abuse itself, the child’s demeanor changes. Some children become completely mute; others change the subject; some may deny that anything happened. In some cases, perhaps there was no abuse, and the interview results are accurate. Often, the child’s body language in the interview is a better indicator than the child’s words. 

When the topic turns to the suspected abuser or the abuse, many abused children shrink and take the fetal position. Some children hide behind or underneath furniture, some bury their heads into furniture pillows, and some start shaking or engaging in repetitive motions or tics.2 When a child has a dramatic change in body language during the interview, we suspect the abuse happened. If the child engages in these behaviors while being mute or offering short denials, we suspect the child was abused but is unable to talk about it. 

The problem can arise first in meetings with the prosecutor.

In cases where the child’s disclosures in the interview were strong enough to warrant prosecution, the inability to speak sometimes develops later, and we see it in our meetings with the children. Children who have difficulty speaking often turn to a caregiver and wait for the caregiver to answer questions that were directed to the child. They may remain mute even after we ask them if they can answer the question themselves. They may verbally change the subject or offer reasons why they need to leave (“I really have a lot of homework, can I leave now?”). Often, we may see body language that does not match the words (e.g., tears flowing while the child says “I don’t remember”). Behaviors like this suggest the child will need support to speak at trial.

The problem can also first arise midtrial.

The problem can also develop for the first time during trial when a child suddenly becomes mute while testifying. Sometimes, when we have seen a child struggle in the interview or in meetings, we are not surprised and we are ready for it. But even the strongest children can become mute mid-trial. 

The support process is the same.

According to Dr. Tallmadge, the process of supporting a child who has become mute is the same at all stages of the legal process:

1. Learn if the child has a disability that affects the child’s ability to speak.

It is important to know about a child’s ability to speak before any interview or meeting. If a child has been diagnosed with selective mutism, an autism spectrum disorder, or other developmental disability, learn the extent of the child’s disability and get input from the child’s caregiver, therapist, teacher or special educator about the nature of the disability and the circumstances under which the child can best communicate. 

A child’s Individualized Education Program (“IEP”) or 504 Plan may provide guidance on accommodations needed to help the child speak, or methods to reduce the child’s anxiety. Starting an interview or a meeting and realizing there is a problem only after you start will make it harder to get the child talking. It is also important to understand the child’s developmental capabilities: can the child read and write as a substitute for speech if that becomes necessary?

2. Know the factors that cause a child to become mute.

According to Dr. Tallmadge, three independent factors affect a child’s ability to speak:

  • Context: Where is the conversation taking place, who is present, and does the child feel safe?
  • Content: What is the conversation about?
  • Confidence: How does the child feel at the moment? Anxious? Calm?

Each factor can be a source of anxiety for the child, and when the child’s anxiety reaches a tipping point, the child will become mute. By controlling these three factors, one can better support a child who is struggling to speak.

3. Control the factors that cause mutism.

Control the context in the interview

Dr. Tallmadge suggests a number of things prosecution teams can do to create an interview context that is less anxiety-provoking for the child. 

Pick a familiar location.

The first is the location. Try to pick a place that is familiar for the child. If a child can only speak at home, Tallmadge believes the home is probably the best place to conduct the interview, even if the abuse is alleged to have happened in the home. 

Allow a support person.

Dr. Tallmadge notes that another important way to control the context is to have a support person present for the child. In a forensic interview, the support person cannot be someone closely connected to the case or a witness, but Tallmadge suggests finding someone with whom the child is comfortable talking (e.g., relative not involved in the case, or teacher).

Hold interviews at child’s therapist’s office.

When we have a child who is unable to talk in the initial forensic interview, we sometimes conduct a second interview in the child’s therapist’s office after the child has engaged in therapy for a few months. The therapist’s office is a safe and familiar place, and the therapist is a good support person for the child. The interviews we conduct under those circumstances often have positive results for children who previously could not talk about the abuse.

Avoid confrontation.

Finally, Dr. Tallmadge notes it is important not to do anything confrontational to the child. For example, if a child asks to leave, do not say no. Instead, say something like: “Yes, in just a couple of minutes”, or “Absolutely, just a few more questions and we’ll be done.” When these children make a request and the answer is “No,” they will sometimes shut down completely. 

Control the context in court

Have child testify outside court.

In court, Dr. Tallmadge suggests controlling the context by having the child testify outside the courtroom, and to make sure the space is familiar and comfortable to the child before the child testifies by having the child visit the location several times before trial. Practicing questions and answers in the testimony room—not even questions related to the case—will make the child more comfortable. A support person should be present and should be someone with whom the child can usually speak.

Give the child something to hold.

Dr. Tallmadge also suggests that a child might benefit from having something to hold while testifying, such as a stuffed animal, “security blanket,” or stress ball. Another approach is to direct the child where to look, such as at a picture on a wall. He says children can often control their anxiety by focusing their attention away. 

Respect the child’s limits.

There are also important things not to do. According to Dr. Tallmadge, one should never require a child to make eye contact, as that can create anxiety. Asking a child to look at the jury could cause a child to shut down. One should also be very careful not to step into the child’s physical space; leave room between yourself and the child, especially in court.

Control the content

Dr. Tallmadge notes that it is difficult to control the content when one is asking a child about abuse, but there are ways to help.

Start out easy before progressing to harder topics.

He suggests starting the conversation (in the interview, a meeting or in court) by talking about a favorite subject for the child, such as a favorite pet. If there is a topic that the child can talk about, explore that topic and get the child talking. Then, when the content becomes more difficult and the child starts to struggle, back up to that comfortable topic to get the child talking again. When the child regains the ability to talk, try the difficult content again.

Intervene if a child starts to struggle.

Dr. Tallmadge says it is important not to wait until the child shuts down completely: start to intervene at the first signal with positive, supportive comments and switch the topic if necessary. It is also helpful, when a child starts to struggle, to give directions to let the child know where things stand, such as, “Just a few more questions and then we’ll be done,” or “Just a few more questions and we’ll take a break.” Concrete information can help calm the child’s anxiety.

Control confidence

Build success from the start.

Dr. Tallmadge explains that a child’s ability to speak is often a function of confidence. Success builds success, and failure brings further failure. It is important to build success so the child feels good about him/herself. Children are more likely to be able to speak when they feel confident.

Dr. Tallmadge suggests starting the interview or subsequent meetings with something the child can succeed at, like a tic-to-toe game where you let a young child win. Complement the child on the success, and give lots of praise. It is important to build confidence from the onset.

For older children, Tallmadge suggests playing a video game (again letting the child win). We do not have video games in our office, but we use other strategies. We find ways to praise the child, such as complementing him/her about something that we learned about before meeting the child, such as that the child does well in a certain subject in school, or in a sport, or does a wonderful job taking care of a pet.

Step back if a child’s confidence drops.

In interviews, meetings, and in court, a child’s confidence will drop when the child has difficulty speaking. Tallmadge advises that one should always be ready to “back up” to a topic that the child can talk about. Once the child is talking, offer more praise, and then start the difficult topic again from another angle.

Build confidence before trial.

Before the trial, it is important to help the child believe that the child will be able to testify. Tallmadge suggests saying things like, “I know you’ll do great.” “I know you can do this.” “It won’t be as hard as you think.” Practicing the back-and-forth of questions and answers (not necessarily on the topic) can also help build confidence. Follow up with praise: “you’re doing a great job, I knew you could do this!” 

Sometimes, despite our best efforts, children become overwhelmed and cannot speak in the middle of a trial and the child asks for a break, or the judge suggests a break. Dr. Tallmadge says it is important to try to have the child leave the stand with success before the break: back up to a topic that the child can talk about, get the child talking, and then take the break. 

During the break, again instill confidence: “You’re really doing great.” “You’re almost done, just a couple more minutes.” “I know you can do it.” Then, when the child is back on the stand, build confidence again by starting with a topic the child can talk about before moving back to the anxiety-provoking subject.

4. Be ready to offer alternatives.

Request accommodations.

At trial, we recognize that, despite our best efforts, some of our children will not be able to speak. When we anticipate that a child will not be able to speak under normal trial circumstances, we ask the judge in advance for accommodations. If a child has been diagnosed with a disability, such as selective mutism or autism spectrum disorder, we will file a motion for accommodations under the Americans with Disabilities Act. 

Determining what accommodations are needed requires input from the child and adults who work with the child. These accommodations can include that the child be permitted to testify outside the courtroom, write answers rather than speak them, or provide nonverbal answers such as nodding the head.

Devise a plan with the child.

When I work with children who sometimes cannot speak in our meetings, I talk to the children directly about “what if” they cannot speak at trial. I always put it in positive terms: “I know you’ll do great, and you don’t need to worry about this, but let’s come up with a plan just in case you have trouble.” Often, just letting the child know that there are options and back-up systems in place give the child confidence to go forward.

Accommodate children who become mute during testimony.

Sometimes, children whom we never expect would have a problem become mute in the middle of testimony. When that happens, the prosecutor has to be quick-thinking, and ready with alternative ways for the child to communicate.

A few years ago, I was prosecuting a sexual assault trial of a defendant who started sexually assaulting the teenage witness when she was a toddler. Her testimony was going great, and she was vibrant, talkative and full of personality on the stand. But then, I asked the next question about the first time: “He touched you where?” 

Silence.

Just the day before, we had gone over how she would have to provide that kind of detail and she was totally fine about it. In that meeting, she had been in high spirits, even joking about how good she was going to be in the trial. The thought that this child would have a problem speaking had never crossed my mind. She had no disabilities: no IEP and no 504 plan. She was strong and good to go. 

But now, she could not speak, and a case that had been very strong was on the verge of collapse. The jury sat there, intently looking at me wondering what I could possibly do to fix this problem and help her. I could tell that they wanted me to do something

She finally got a few words out: “Do I have to say it?”

I asked, “Could you try?” She shook her head no.

“Would it be easier for you if you were to write it out?”

“Yeah.”

And so she did. She wrote, “He touched my vagina.” I marked the document as an exhibit and published it to the jury. I watched the jurors’ expressions as they held the document and read her words. Jurors try to have expressionless faces during a trial, but several could not hold back their tears. Holding her words in their hands was much more powerful than hearing her words.

After that, the teenager was able to verbally answer questions about the rest of that incident. But when we got to the second incident, she became mute again.

“And then what happened next in this incident that you’re remembering now?”

“Can I write it?” she asked.

She wrote, “He put his penis in my vagina.” I marked it as an exhibit and published it to the jury. Again, the jurors could not hide their emotion.

Then I asked her, “Twice now, you’ve asked if you could write it.”

“Yes.”

“Why—why writing it?”

“Because I don’t like saying it.”

The jury could feel her trauma, and they promptly convicted.

After that experience, I always make sure to come up with a plan with every child before the trial so that we are all prepared with alternatives in case the child cannot speak. I will ask children, before the trial, to think about what they would want to do if talking becomes difficult, and I encourage the children to ask on the stand for what they need—whether they want a break, need to write their answers, or use another approach.

Conclusion

The fact that a child struggles with mutism when talking about traumatic events should not be a bar to prosecution. By controlling the factors that cause mutism, and planning for alternative communication methods, these children can do well at trial.

Christina Rainville, JD, is the Chief Deputy State’s Attorney for Bennington County, Vermont, where she heads the Special Investigations Unit. She is also a former recipient of the ABA’s Pro Bono Publico Award.

Endnotes

1. Johnson, Maggie and Alison Wintgens. The Selective Mutism Resource Manual. Milton Keynes, United Kingdom: Speechmark Publishing , Ltd., 2013. 

2. All of our forensic interviews are videotaped so that we can later play the video to the jury to show the change in demeanor.