07052015 when the empirical base crumbles- the myth that open dependency proceedings do not psychologically damage abused children

322782KGBK 9/26/2012
For Educational Use Only
WHEN THE EMPIRICAL BASE CRUMBLES: THE MYTH..., 33 Law & Psychol....
33 Law & Psychol. Rev. 29
Law & Psychology Review
2009
Contributed Article
WHEN THE EMPIRICAL BASE CRUMBLES: THE MYTH THAT OPEN DEPENDENCY PROCEEDINGS DO
NOT PSYCHOLOGICALLY DAMAGE ABUSED CHILDREN
William Wesley Pattona1
Copyright © 2009 Law and Psychology Review; William Wesley Patton
I. Introduction
In two previous articles, I chronicled the vast pediatric-psychiatric empirical evidence regarding the fragile psychological
state of abused and/or neglected children and the evidence that forcing abused children to testify before the press and
strangers in open dependency court proceedings exacerbates their psychopathology, thereby making therapeutic assistance
more difficult and time consuming.1 Those articles provided dozens of examples of media stories regarding abused children
that included identifying data, such as the child’s name, address, relatives, and school.2 Pediatric-psychiatric literature clearly
states that such public exposure of child abuse victims could cause them incalculable additional emotional trauma.3
This article will analyze the psychological data relied upon by those in the open dependency court movement to justify
opening those proceedings to the press and public and to support their finding that abused children *30 will not be
unreasonably harmed by the jurogenic effects nor by the resultant publicity inherent in public proceedings. Part II of this
article analyzes the National Center for State Courts’ (NCSC) empirical study of the effects on abused children of the
Minnesota open dependency courts, as well as discusses the latest open court empirical study - the Arizona State University
study of the Arizona Open Court Pilot Program. Although these open court empirical studies have provided the psychological
and policy bases for legislators and judges to open child dependency proceedings to the press and public, the reliability of
those findings have recently been severely impeached by testimony given in In re San Mateo County Human Services
Agency.4 Part III discusses a number of psychological myths about the effects on abused children of opening child abuse
proceedings to the press and public.
II. New Evidence Regarding the Validity of the Minnesota and Arizona Studies of Open Dependency Court Pilot
Projects
The NCSC study of the Minnesota Open Court Pilot Project5 is the “Holy Grail” of empirical support for proponents on the
efficacy and safety of open court proceedings; it is difficult to read a contemporary article or speech on open court proposals
that does not refer to this study.6 However, starting in 2004, serious questions regarding that study’s methodology and results
began to appear. For instance, the National Council of Juvenile and Family Court Judges issued a report that concluded:
The NCSC report and its findings are now widely referenced by proponents for open hearings as supporting the view that
open hearings do not produce the negative effects that have been argued for by opponents to this practice. However, as
indicated by the concluding thoughts of the report itself, the recommendations *31 made by the NCSC evaluators were much
more cautious and neutral than later references to the report would suggest. In addition, a number of methodological and
other design flaws have been identified in the study by other researchers in this area that may further limit the scope and
© 2012 Thomson Reuters. No claim to original U.S. Government Works. 1

322782KGBK 9/26/2012
applicability of these findings to other jurisdictions.7
In a previous article, I articulated many of the methodological flaws of the NCSC study, including: (1) a search for only
“extraordinary” psychological harm caused by open court proceedings and publicity, instead of analyzing all psychological
harm; (2) an inadequate study of media publicity regarding abused children; (3) no survey of those most aware of any effects
of the open court system on abused children’s psychopathology, including children, parents, and treating psychologists; (4) a
failure to investigate post-adjudication trauma; and (5) neither pediatric psychiatrists nor pediatric-psychiatric literature were
consulted regarding the study’s conclusions.8
In addition, substantial new evidence regarding the methodological weaknesses of the NCSC and Arizona State studies of
open court dependency systems was recently developed in a hearing in the California Superior Court of San Mateo County,
which seriously calls into question the credibility of those studies regarding the safety of open court proceedings and
publicity on abused children.9
A. Methodological Flaws in the Minnesota Study
Dr. Fred Cheesman was called as one of San Mateo County Counsel’s star witnesses in its motion to presumptively open
dependency court proceedings to the press and public.10 Dr. Cheesman is a senior court researcher for the NCSC who
designed and administered the Minnesota Open Court study.11 He testified that the Minnesota research advisory committee
forbade the researchers from interviewing the abused children and their parents who appeared in dependency court because
such interviews might harm the children.12 Dr. Cheesman explained:
The other thing to sort of keep in mind about this methodology is that we had an advisory committee in Minnesota, and they
were *32 very concerned with protecting children. And as a result, even though as a professional, I would have - it would
have been interesting to have been able to figure out a way to talk to children and families, the advisory committee was really
adamant that they really didn’t even want to entertain the possibility of harming kids. So we didn’t have the chance to talk to
kids and families.13
Dr. Cheesman’s testimony is remarkable. First, he indicates that interviewing abused children and their parents is
methodologically important in determining whether children were psychologically harmed by the open proceedings or from
the publicity generated by those hearings.14 Second, Dr. Cheesman indicated that the study’s design was substantially altered
by the advisory committee in a manner inconsistent with his expert opinion and intended model.15 He answered affirmatively
to the follow-up inquiry: “So you indicated that you couldn’t speak to children because Minnesota basically asked you not
to[?]”16 More to the point, the Minnesota Supreme Court’s advisory committee concluded that expert researchers could not
talk to the abused children in a private, controlled environment because it might cause them psychological harm, but it was
not too risky to permit children to appear in court before strangers and the press and to testify regarding intimate details of
their child abuse.17
Dr. Cheesman further admitted that no psychologists or psychiatrists were consulted or questioned regarding whether the
open court proceedings had harmed children.18 In fact, he testified that rather than selecting the professionals to interview,
the researchers relied upon the governmental agencies and court to determine who should be surveyed.19 Dr. Cheesman also
agreed it was fair to conclude that “the government people selected a list of people for [him] to survey with regard to [the]
question of harm [to children].”20 The research sample was thus biased since those with the most interest in seeing that the
court proceedings would remain open were the ones who selected the sample from whom evidence of harm to children would
be derived. When it was averred that the study did not analyze whether any of the children suffered post-traumatic stress
disorder from the open hearings, Dr. Cheesman indicated that “[i]t’s an interesting *33 theory, that post traumatic stress
syndrome might be related to open hearings.”21
Another problem with the Minnesota study is that Dr. Cheesman indicated that the researchers only investigated
“extraordinary harm,” not normal or milder forms of psychological harm.22 However, he admitted that nowhere in the study
was the term “extraordinary harm” defined.23 Equally troubling was Dr. Cheesman’s failure to propound on why that level of
harm was chosen for the study.24 The cross examination included the following colloquy:
Q: And why did you choose extraordinary harm instead of some harm, slight harm, moderate harm to children - or ordinary
harm?

322782KGBK 9/26/2012
A: That is an interesting question, why that word was chosen [I]t was probably some serious amount of harm. So I think
that’s why I chose the word. And it was my choice to use that word, extraordinary. I think that’s why I chose the word
. . . .
Q: What did you consider to be harm, or what does your study consider to be harm?
A: I guess a case where you’re able to demonstrate embarrassment or psychological trauma.25
Since Dr. Cheesman had great difficulty even defining the term “extraordinary harm” and since that term was not defined
anywhere in the report, one cannot have any confidence in the answers of those who were interviewed concerning harm to
children in the open court study. Each person questioned might have had a very different understanding regarding what
constitutes “extraordinary harm.” For instance, anyone with an assumption that abused children might be psychologically
traumatized by testifying in public might conclude that “extraordinary harm” is a term defining only the most drastic cases
rather than all cases involving child trauma. Thus, the ambiguity of the term “extraordinary harm” may have led to severe
underreporting of children’s psychological trauma.
Dr. Cheesman also testified regarding two independent forms of bias that may have affected the conclusion in the Minnesota
report that open *34 hearings did not harm abused children. First, he indicated that some judges surveyed did not want to
close hearings, by finding that the children would be harmed, because doing so might affect the study.26 “I do know that I
think there was some reluctance on the part of judges to close the hearings because they didn’t want to interfere with the
experiment. We heard that in the interviews.”27 It was even suggested that judges were afraid of the ramifications if they
closed hearings.28
Another bias in the report’s conclusion that children were not harmed was a devaluation of public defenders’ comments.
Even though several public defenders expressed concern about harm to abused children in the open court proceedings, the
report stated:
The expression of such sentiments by public defenders is consistent with the “client-oriented” perspective. Because public
defenders tend to assume this orientation, it is not surprising that they would express concern about the privacy of individual
children and families, regardless of what benefits might accrue from open hearings/records in child protection proceedings.29
Dr. Cheesman further agreed with the question, “So I believe you’re saying because the public defenders are client oriented
and they’re only looking out for the best interests of their client, they’re not paying attention to the overall good that’s being
achieved from this new policy; is that correct?”30 Dr. Cheesman’s bias against public defenders, one set of professionals in
the best position to determine whether children exhibit symptoms of trauma, raises serious questions regarding the Minnesota
report’s conclusion that children suffered no harm in the open court project.
Finally, Dr. Cheesman indicated that he, too, was not totally confident in the study; he testified “I’m not claiming that this is
the most full-proof study.”31 And he further admitted that the study’s methodology was flawed in determining the effects of
the open court system on abused children because “there was no way, with our methodology, that we really could have taken
into account some of these extraneous factors, like maturation. We just couldn’t given the budget that we had to work
with.”32 *35 $TP Unsurprisingly, the National Council of Juvenile and Family Court Judges has cautioned against too much
reliance on the Minnesota report because of its design flaws.33 As demonstrated above, the methodology was biased since it
was, in part, designed by an advisory committee that would not permit the researchers to interview children and parents who
would best know whether or not the children suffered trauma. The study was also incomplete, as a result of several factors:
no treating mental health professionals were interviewed; it used a very vague and ill-defined standard for determining the
level of harm to children; it was subject to the bias and fear of judges in upsetting the experiment if they protected
traumatized children by closing hearings to the press and public; it devalued the evidence presented by public defenders; and
it lacked the financial resources to sufficiently investigate whether trauma to children occurred, and if so, the attribution of
that trauma. Therefore, legislators, judges, and researchers should rely on the Minnesota study with great caution.
B. Methodological Flaws in the Arizona Study
I have previously commented upon the Arizona Open Court Pilot Project and discussed many of the weaknesses in that

322782KGBK 9/26/2012
statutory scheme.34 However, this additional analysis involves a subsequently published report on the Arizona experiment
written by Greg Broberg, a graduate student at Arizona State University.35 Broberg was called by the San Mateo County
Counsel in the San Mateo hearing as a witness on the methodology and results of the Arizona Open Court Pilot Project
Report.36 Broberg attended all meetings regarding the Arizona study, formulated the methodology, implemented the
research, and wrote the report.37 The methodology for the Arizona report was based upon the Minnesota study discussed
above;38 the Arizona report, therefore, suffers many of the same methodological flaws. For instance, no parents, children, or
mental health experts were consulted regarding any psychological trauma caused to abused children.39 Instead, the
researchers relied “upon the department’s caseworker in order to [determine detriment to children]”40 even though Broberg
testified that the report did not take into consideration any potential caseworker bias.41 He was asked whether that
methodology gives him *36 “pause for concern as to the reliability” of the findings that children were not harmed by open
hearings, and he answered: “Many of these things can be pause for concern with regards to this project.”42 He explained that
the Arizona study could not analyze the full effects of the open dependency court system on abused children because of
limited funding, saying “[i]t’s the best that they could do.”43 The San Mateo County Superior Court judge asked Broberg
whether they studied the impact of the open hearings on the child and he again responded that “[w]ithin the time and the
scope of this project - again, I’m sorry to use the unfunded mandate again, but the department did not have the resources to
do that type of thing.”44
Thus, reliance upon the Arizona study for any empirical evidence that children were not traumatized by testifying or from
publicity about their child abuse is not warranted. The study not only suffered from the same methodological flaws as the
Minnesota study, but since the Arizona Legislature provided an “unfunded mandate” for the report,45 the researchers lacked
sufficient resources to reliably report on the open court system’s impact on abused children.
III. Debunking Open Dependency Court Myths
While a substantial body of pediatric-psychiatric evidence supports the conclusion that abused children are at further
psychological risk in open dependency court proceedings, evidence supporting a contrary conclusion is extremely sparse.
Therefore, open court advocates have been forced to rely on analogies to other types of legal proceedings such as mental
health, juvenile delinquency, status offenses, and adult proceedings to support their “no child harmed” position. However,
most of those analogies are equivalent to the apples and oranges argument in which the number of variables between court
systems belies any methodological or analytical generalizations, applications, or reliability. The following discussion
deconstructs some of these myths by tracing the genesis of the myths back to their primary sources and shows the evolution
of the precepts from valid observations to speculative and/or false applications in discussions of open dependency court
proceedings.
*37 A. Myth #1: Open Dependency Proceedings Help Abused Children Psychologically Recover
One of the nation’s staunchest open court proponents has stated that “[o]pen child protection proceedings may assist the
psychological recovery of the abused children.”46 This statement, if true, provides some support for opening child
dependency proceedings since children will be benefited by accelerating therapy and expediting emotional equipoise.
However, deconstructing this claim from its primary sources demonstrates that its precursor psychological studies provide no
empirical basis for the conclusion that testifying in open court is therapeutically beneficial for most abused children.
1. Source #1: Sokol, 1998
The claim that testifying is beneficial for abused children is directly based upon a statement made by another open court
proponent,47 Samuel Broderick Sokol, who stated that “[f]or some children, particularly older children, a formal public
hearing might even aid their psychological recovery.”48 However, as will be demonstrated, Sokol’s assertion is both
speculative and conditional, and it is based upon a strained extrapolation from an earlier statement by Janet R. Fink.49
2. Source #2: Sokol on Fink, 1987
Sokol’s generalization is based upon the following statement by Janet R. Fink:50

322782KGBK 9/26/2012
While the adversary system’s purported psychological harms to children noted by the Supreme Court in Parham v. J.R. [442
U.S. 584, 611 (1979)] have yet to be demonstrated, its benefits are obvious, particularly for older children. Research has
established that the more adversary the structure, the more the affected parties have positive perceptions of the control they
have exercised and *38 the fairness of the result by virtue of thei r input into the decisions made.51
It is obvious that there are several problems with the leap from Fink’s statements to Sokol’s conclusion regarding the
psychological benefits to children testifying in open dependency court hearings. First, Fink’s statements do not even refer to
abused children or to dependency court proceedings, but rather concern mental health commitment procedures. Second,
Fink’s statement refers to studies of adults in adversary systems, and she merely speculates that one could find the same
results in the population of minors who are involved in mental health commitments. Sokol jumps from empirical evidence
showing that adults find comfort in adversary proceedings to Fink’s application to children in mental health commitments,
and finally to abused children in dependency court. Thus, when deconstructed, there is simply no empirical link between the
adult hearings and children testifying in dependency courts. But Sokol’s reliance on Fink is even weaker because Fink was
discussing the lack of empirical evidence to support the Supreme Court’s statement in Parham that an adversary mental
health hearing would cause a psychological rift between parents and children,52 not that adversary proceedings do not cause
children trauma. Thus, reliance upon Parham to prove the safety of child abuse victims testifying in open court is misplaced.
3. Source #3: Fink on Saks, 1983
The genesis of the claim that testifying before strangers is therapeutic for abused children has a much longer lineage. Fink
relied on the work of Michael J. Saks and his colleagues,53 which mentioned that “[s]ome research has been done on people’s
reactions to having their interests decided through adversary versus nonadversary procedures.”54 But Fink’s reliance on Saks,
is not only misplaced because those studies involve adults, not abused children, but because Saks substantially qualifies the
statement that the adversary system is sometimes more satisfying than alternative dispute resolution. He indicates that such
studies have many limitations and that research also demonstrates “the unsuitability of formal adjudication for resolving
certain kinds of disputes . . . .”55 Saks neither discusses the different effects of adversarial litigation versus alternative *39
dispute resolution regarding dependency proceedings nor the different psychological effects of public testimony on children
rather than upon adults.
4. Source #4: Saks & Melton on Thibaut & Walker, 1975
Saks relied on a general study by Thibaut and Walker on the attitudes of adults regarding their satisfaction with different
resolution systems.56 They found that adults were more satisfied with formal adversarial processes if they had interests at
stake.57 However, Saks indicates that one must not generalize too easily since “[d]ifferent procedures have differential power
to protect or undermine interests, produce more or less balanced fact distributions, and generate more or less subjective stress
or well-being.”58
Gary B. Melton also recognizes several methodological and empirical problems with generalizing Thibaut and Walker’s
study regarding adults to children involved in adversarial proceedings. First, their study did not involve cases with “emotion-
laden contexts.”59 In other words, although adults might find more satisfaction than psychological trauma in litigating a
commercial dispute, one cannot assume that the same reaction would occur, even for adults, in family court disputes. Second,
Melton indicates that there is some evidence that children, unlike adults, may not find litigation more fulfilling than
alternative dispute resolution and calls for more research on the Thibaut and Walker theory as applied to children.60 Melton
further acknowledges that because of “the massive status difference between a child and his or her advocate,” the child,
unlike an adult, might not perceive that they have more power to direct the litigation than the power to direct alternative
dispute resolution.61 And when Melton speculates that children “might generally benefit from more adversary
proceedings,”62 he is not talking about a psychological benefit, nor is he discussing the potential psychological harm that
children might suffer.63 The “benefit” Melton describes concerns the more desirable outcome for the child in an adversary
system that brings forth “complete information concerning the child’s best interests being available to the decision maker”
versus an informal system in which much relevant data might not be disclosed *40 to the fact finder.64 Most importantly,
Melton notes that this increased supply of information might come at the expense of the child’s emotional health.65 Finally,

322782KGBK 9/26/2012
none of the research cited in Thibaut and Walker or in Melton discusses the effects of a public adversarial process on abused
children. Thus, neither Thibaut and Walker’s research, nor Saks and Melton’s ruminations on that research, support
statements that adversary proceedings, much less public hearings, are psychologically beneficial to children.
5. Source #5: Runyan et al. Study of Child Witnesses in Dependency Court, 1988
Twenty-one years ago Desmond K. Runyan and colleagues conducted an empirical study of the effects of both the criminal
and dependency legal systems on sexually abused children.66 One hundred sexually abused children were referred to the
study; longitudinal data was obtained from seventy-six children after five months, and eighteen-month data was collected
from sixty-two children.67 Out of the thirty-four dependency cases that were heard in juvenile court, only twelve children
testified.68 “Criminal charges had been brought in 56 percent of the cases. Half (21) had been resolved - 17 by guilty plea and
4 by trial. The other half were still pending trial.”69
The Runyan study drew two interesting conclusions: (1) abused children are adversely affected by delays in criminal child
sexual abuse trials; and (2) “the opportunity to testify in juvenile court may exert a protective effect on the child victim.”70
The authors speculated that:
*41 [T]he finding that the group that testified in juvenile court made significant gains [in mental health measures], while the
group awaiting trial did not, suggests that court in and of itself may not be bad for the child if the resolution is speedy; or it
may suggest that the act of testifying may be itself empowering or in some other way beneficial for the child.71
However, the authors cautioned future researchers that their study involved many troubling methodological problems, and
that some of their conclusions were speculative:
This study, despite being the largest of its kind, should not be interpreted as definitive. These findings must be considered in
the context that our sample excluded children less than 6 years of age, as well as in the context of the criminal and juvenile
court systems in North Carolina. Our sample was too limited to look at effects by developmental stage or age. We caution
against extrapolation of these data to criminal court testimony.72
Nevertheless, subsequent researchers and authors failed to heed this caution regarding the speculative nature of the study and
instead have confidently asserted that children are not traumatized by testifying in juvenile court proceedings. For instance,
one study of child sexual abuse victims baldly states that the Runyan research found that “children who testified in juvenile
court appeared to benefit from the experience by demonstrating improved mental health, as indicated by standardized testing
measures.”73 And another study of child witnesses relied on the Runyan study to conclude that “testifying by children in
juvenile court does not appear to result in significant, lasting distress for most children.”74
There are a number of reasons why the Runyan study does not provide sufficient and/or reliable evidence that abused
children are not retruamatized by testifying in dependency courts and that the act of testifying helps those victims resolve
their psychological problems caused by that abuse. First, the Runyan study itself found that there were other variables that
significantly reduced the abused children’s psychopathology and that the study could not isolate which of these variables, or
which combination of these variables, were causative in increasing children’s mental health.75 *42 For instance, the study
found that the children were “adversely affected by lengthy delays in the resolution of criminal prosecution of child sexual
abuse.”76 However, the study’s methodology did not indicate which of the one hundred children studied underwent only
criminal and/or dependency proceedings, and which were involved in both criminal and dependency proceedings. This data is
critically important in determining which variable (testifying in dependency court versus children whose criminal cases were
significantly delayed) affected the mental health of which groups of children. For example, the Runyan conclusion that
testifying in dependency proceedings is therapeutic for abused children was only based upon the experiences of twelve child
witnesses. Although it is clear that such a small sample is inadequate to support such a definitive determination of the cause
and effect of testifying, the speculative nature of that conclusion is compounded because the study did not define what other
judicial proceedings those twelve children were involved in. Put another way, the study did not delineate the different
variables for the total group of children involved with the dependency court system - thirty-four children, twelve of whom
testified. For instance, it is possible that the twelve children who testified in dependency court were not involved in any way
with the criminal court process. This is a central issue since the Runyan study found that one of the strongest variables on
abused children’s mental health was the lengthy criminal process. It would not be surprising, therefore, that if the twelve
children who testified in dependency court and who were not involved in the lengthy delays of the criminal court process

322782KGBK 9/26/2012
would have significantly more healthy test scores on the Child Assessment Schedule and other standard instruments used77
than the other twenty-two children who were involved solely in the criminal court process or those involved in both court
systems.78
Second, the Runyan study did not test for, nor differentiate between, two radically different variables that might have led to
lower stressor test scores for the twelve children who testified in dependency court. The reduced anxiety level could be
attributable to children’s ability to tell their story in court and to be empowered by the process, or the mental equipoise might
have been merely the result of the trial being concluded so that the child could close that public chapter in his/her abuse
history. The Runyan study itself indicated that it could not isolate those two variables: *43 “The significant resolution of
anxiety symptoms for this group may also be due to having the testimony behind them so that they can, in the words of one
child, ‘get on with life.”’79 Therefore, the Runyan study’s conclusion that testifying in dependency court provided children
with emotional catharsis may have actually been the result of the children’s relief of having the proceedings finally
concluded.80 In fact, another study found that improvement in abused children’s mental health after testifying was due to
relief of closure rather than emotional catharsis at facing the abuser or from empowerment.81
Finally, the Runyan study did not account for the significant relationship between abused children’s longitudinal mental
health scores and the outcomes of the trials in which they were involved. The study does not compare the effects of
conviction and/or acquittal or a sustained versus dismissed dependency petition on the children’s mental health. Nor does it
explicate which of the thirty-four children involved in the child dependency proceedings had the sex abuse petitions
sustained. Knowledge of abused children’s case outcomes is critically important since the impressions of children testifying
in trials in which the defendant was found guilty and/or the dependency petition was sustained are much more positive about
the court experience.82 A Canadian study noted that “[t]he devastating impact of an acquittal for a sexually abused child
cannot be underestimated.”83 In addition, “[n]one of those children whose case[s] ended in a guilty plea or conviction after
trial expressed any regret; whereas many (57 percent) of those whose case ended in an acquittal did regret having gone to
court.”84
6. Conclusion
By deconstructing the etiology of the assertion that open child dependency proceedings are therapeutic for abused children,
one discovers that *44 the claim has little empirical support. The evolution of the statement started in 1975 with Thibaut and
Walker’s general study on adults’ satisfaction with different modes of resolving disputes, and continued with Sak’s 1983
discussion of informed consent, Fink’s 1987 analysis of mental health commitment hearings, Sokol’s 1998 discussion of
open dependency proceedings, and finally the 2000 conclusion that open proceedings are psychologically beneficial to
children. None of these precursors studied abused children or child dependency proceedings. This faulty analytical thread is
not based upon any empirical support that stripping the cloak of confidentiality from abused children and forcing them to
testify in public and/or being the subject of media reports is therapeutically beneficial. To the contrary, empirical data states
that “disclosing the abuse publicly in court could increase a child’s feelings of stigmatization by generating adverse opinions
by friends, relatives, and possibly the media. In addition, the child’s self-blame and guilt may increase as a result of any
cross-examination . . . .”85 Therefore, the statement that open dependency hearings are therapeutic for most abused children
is merely a myth.86
B. Myth #2: Children are Not Traumatized by Testifying Before Strangers
Another open court advocate, Sara VanMeter, asserts that “‘[t]here is, to date, no empirical support for contentions that
children are traumatized by the presence of an audience during their testimony.”’87 If this statement is true, then one of the
strongest arguments against opening dependency proceedings has no merit since the presence of the press and strangers will
not deleteriously affect abused children. However, again, a *45 study of the etiology of that statement demonstrates that it is
nothing more than pure speculation and not based upon any current expert evidence.
The quotation cited by VanMeter for the proposition that testifying before strangers does not harm abused children is from a
twenty-four year old study by Debra Whitcomb.88 VanMeter’s reliance on Whitcomb is even more troubling since she fails
to indicate that Whitcomb, herself, also states that “some children will indeed be humiliated by public exposure of their
victimization.”89 Whitcomb thus admits that testifying before strangers in court may cause harm to some abused children and

322782KGBK 9/26/2012
that protective measures, such as removing strangers, may be necessary to protect child witnesses.90 In addition, Whitcomb
notes that when children testify in confidential hearings where strangers are not admitted, children might be less stressed by
the experience.91 Whitcomb further states that some studies have found that an audience intimidates child victims.92
Whitcomb, thus, provides VanMeter with little support for her proposition that testifying in court in front of strangers does
not cause child victims additional psychological harm.
Whitcomb may well have been correct that in 1985, nineteen years before VanMeter’s article, no empirical studies proved
that testifying before strangers traumatizes children. However, VanMeter did not discuss any of the more contemporary
psychological research regarding trauma to child abuse victims. As early as 1988,93 just three years after Whitcomb’s study,
the United States Supreme Court in Coy v. Iowa94 considered *46 whether trauma to child victims testifying in open court
before the child abuser might require prophylactic protections for the child even though the result might be to diminish the
defendant’s right to confrontation.95 And the Court, again, just two years later in Maryland v. Craig96 approved using one-
way closed circuit television during the examination of child abuse victims as long as it was demonstrated that that particular
child would suffer serious psychological damage from being examined in court in front of the alleged abuser.97 It is also
significant that in Maryland v. Craig the American Psychological Association (APA) filed an amicus curiae brief in support
of providing abused children protection during their in-court testimony and supported that conclusion with several
psychological studies.98
In addition to United States Supreme Court cases and the articles cited in the APA amicus curiae brief, there is further
evidence that abused children can suffer further trauma when testifying before strangers. In 1993, Saywitz and Nathanson
conducted a study to determine whether children questioned in court before strangers would feel more or less stress than
children questioned outside of court.99 Their research discovered that “[a]nswering questions in front of a lot of strange
adults in court”100 was much more stressful for the children than answering the same questions in a familiar environment
without the presence of strangers.101 Their study indicated that the source of children’s fear of testifying in court before
strangers was a “fear of public scrutiny, embarrassment, personal inadequacies, and fear of an inability to cope with over-
whelming emotions.”102 These findings are critically important because the primary causes of children’s fear of testifying in
court, humiliation and shame, are two of the strongest determinates of the severity and duration of abused children’s post-
traumatic stress disorder.103 Although Coy v. *47 Iowa and Maryland v. Craig were adult criminal cases, their logic and
holdings have been applied by many states to provide similar protection for abused children testifying in child dependency
proceedings.104
Furthermore, a three-year Canadian longitudinal study of the effects of the legal system on abused children also found that
open court proceedings are harmful to abused children and that children are traumatized by testifying in public before
strangers.105 “Many children expressed their intense discomfort about their public exposure during their testimony [That] is
why we recommend that all cases involving child complainants be routinely heard in closed courts.”106 The Canadian study
also found that abused children were anxious that their peers not learn about their abuse through the public hearing
process.107
Finally, a recently published 10-year longitudinal study of the psychological trauma suffered by abused children who testified
in court determined that “courtroom testimony is associated with worse mental health and more negative feelings about the
legal system” and that “anticipation of testifying, as distinct from actually testifying, is related to increased distress.”108 The
study also found that “testifying was associated with increased risk for adverse mental health outcomes, particularly when
children testified about highly invasive abuse.”109 Finally, the results indicated that “recounting sexual abuse repeatedly in
open court may help solidify a trajectory of poor mental health functioning, as measured both via trauma-related
symptomatology and general mental health problems.”110
It is quite clear, therefore, that Whitcomb’s 1985 statement regarding the paucity of empirical evidence that children are
traumatized while testifying in court before strangers is no longer true. VanMeter’s assertions, *48 when read in the context
of Whitcomb’s full research and in light of subsequent psychological findings, provides no support for the myth that abused
children do not suffer emotional stress while testifying before strangers.
C. Myth # 3: The Press will Protect Abused Children by Not Publishing Identifying or Embarrassing Information
About Them
One open court advocate states that “publication of names is the single largest impediment to public hearings in abuse and

322782KGBK 9/26/2012
neglect cases.”111 But other prominent open court proponents have argued that the fear of publication is unwarranted because
the “media protects the victims” and does not publish child abuse victims’ names or photographs.112 The problem is that
empirical evidence clearly demonstrates that the media do identify child abuse victims and that opening the courts will lead
to more, rather than less, publicity of abused children.113 Media reports sometime list abused children’s names, specific
details regarding their abuse, their medical and psychological information, quotations from the abused child’s siblings,
addresses, schools, teachers’ names, and photographs of the abused children.114
The media’s publication of identifying information regarding abused children is nothing new. During the media’s first foray
into the juvenile dependency and delinquency courts in the nineteenth and early twentieth centuries, they “published stories
about the children, including their names, addresses and, in delinquency cases, their alleged offenses.”115 This policy of
publishing abused children’s identifying information continues in many contemporary media sources.116 “There’s no
universal media *49 policy against identifying children as there is for victims of sexual assault. Some papers name; some
don’t. Some are inconsistent, naming sometimes, but not others.”117 And the decision to publish identifying data is not
dependent on the size or prominence of the media source: “Newspapers big and small, from Albuquerque to New York City,
routinely publish children’s names and photographs.”118 Some newspapers have promulgated policies favoring the
publication of abused children’s identifying information for three different reasons. First, it is argued that omitting abused
children’s names dehumanizes them.119 Second, some consider stories without specific identifying information regarding the
individuals involved to be less credible than articles that identify the victims.120 And finally, some argue that by protecting
the identities of victims, media perpetuate the stigma of being a victim; publication will bring the victims’ abuse into the
open and the shame involved in being violated will be reduced.121
A number of problems are inherent in the three grounds used to justify publication of abused children’s identities. First,
proponents of the dehumanization theory proffer no empirical evidence that shielding abused children from publicity harms
them. In fact, the empirical evidence supports protecting child victims from media and public scrutiny. Mental health
professionals have found that “child [abuse] victim[s] should be shielded from publicity,”122 that “fear of public scrutiny” is
one of child abuse victims’ greatest fears,123 and “intense publicity surrounding the events which have brought a child into
the juvenile court may psychologically harm the child, making it more difficult, if not impossible, for the child to recover
from those events.”124 Second, although proponents provide no empirical support for their proposition that stories that list
victims’ *50 names are more credible, this argument is only half of the equation. Since the press does not have a
constitutional right to attend dependency court proceedings, the question is whether the increased credibility for the news
report outweighs the public policy of shielding abused children from the psychological harm caused by publicity. Because
proponents of the “credibility theory” have not produced any empirical data to support their proposition, it is unlikely that
any court would open its doors and permit the publication of abused children’s identities at this time. Third, the theory that
abused children’s identities should be published in order to strip the guilt of being a victim of sexual abuse is a harsh curative
since it places the burden of reforming public attitude upon one of our most vulnerable populations, abused young children.
“‘[W]hy must the victim, who has already suffered from the ordeal of rape, be forced to bear the responsibility of educating
society and changing its prejudicial view toward rape and its victims?”’125 Public attitudes do not currently support
publishing rape victims’ names. In fact, seventy-six percent of American women support legislation making it illegal to
publish rape victims’ identities.126 The reality is that publishing abused children’s identities will not only psychologically
harm the abused children, but it will also “seriously strain the [child’s] family” and reduce the chances of rehabilitation and
reunification.127
Therefore, the belief that the media protects child abuse victims from publicity and the publication of identifying information
is not only a myth, it is contrary to historical press coverage and is inconsistent with the express policies of several
contemporary media sources. One commentator has even suggested that a media source’s general decision not to publish
children’s names might succumb to other interests:
[T]he media’s good intentions may be swept aside by a legally important or sufficiently sensational case. Professional self-
restraint, therefore, does not always succeed in protecting the child-witness - nor should the media be forced to carry the
entire burden of protecting such witnesses, particularly when declining to broadcast runs counter to its pecuniary interests.128
Thus, children’s privacy and psychological health cannot be left to the discretion of media editors, but rather must be
protected by legislators and *51 courts in limiting access to the press and public who might psychologically harm and
humiliate these fragile children.

322782KGBK 9/26/2012
D. Myth # 4: Older Abused Children are Not at Risk from Publicity
Most cases, statutes, and law review articles have focused on how to protect young children from the jurogenic129 effects of
the legal system. In addition, most literature has focused on child sexual abuse victims, rather than on those otherwise
physically and/or emotionally abused, or those children who suffer several different forms of abuse.130 This bias toward
young children has led to policy and legislative decisions that under-protect older abused children from the harsh effects of
the adversary system and its attendant publicity.
An example of a “young child” bias is contained in the proposed California Welfare & Institutions Code Section 346.1.131
That bill would provide that in child dependency proceedings:
If a child under the age of 14 will be testifying at the hearing, the juvenile court shall exclude members of the public from
that portion of the hearing unless a member of the public requests the right to be present and the court deems that member of
the public to *52 have a direct and legitimate interest in the particular case or the work of the court.132
No empirical evidence was supplied by the proponents of proposed § 346.1 supporting the presumption that children under
fourteen years old should be treated differently than those child abuse victims older than fourteen.
The problem with the presumption that younger children are at greater risk of trauma from testifying is that the empirical
evidence demonstrates that older children are equally or sometimes more at risk of psychological damage. For instance, one
study found that older children experienced more stress than younger children while testifying in open court and also
determined that stress of children twelve to sixteen years of age was more than four times greater than stress experienced by
six and seven year old children.133 In addition, another study that determined the psychopathology of abused children before
testifying and any changes three months later found that the trauma suffered by young children who testified declined much
more significantly than the stress suffered by older children who testified (those between 12 and 16 years old).134 And among
the total population of out-of-home placed children, “older youths in the foster care system have a disproportionately high
rate of psychiatric disorders.”135 Therefore, legislators and judges should not rely upon the myth that only younger children
may be psychologically harmed by being forced to testify before the press and public. We owe an equal duty to our older
abused children to reduce their trauma when they are captured in the child abuse legal maelstrom. As Justice Blatz has so
eloquently argued, “while we [judges] are not responsible for the harm that forces these children and their families into our
courtrooms, we do have a responsibility to ensure that the system doesn’t contribute to or exacerbate the problems.”136 That
duty extends to older, as well as younger, children.
*53 E. Myth # 5: Observing Child Abuse Victims’ Open Court Testimony can Determine the Frequency, Seriousness,
and Duration of the Psychological Effects of Testifying in Open Court and the Effects of any Publicity
Many of the studies and proponents of open court hearings conclude that abused children forced to testify in open court or
whose stories are reported in the media suffered no psychological damage because the children did not manifest symptoms
while testifying. For example, the NCSC study of the Minnesota Open Court Pilot Project determined that child abuse
victims suffered no psychological harm based in large part on interviewees’ anecdotes about dependency court hearings and
reviews of case files.137 The researchers in that study did not interview children, parents, or psychological service providers
about post-hearing trauma suffered by those abused children.138
For several reasons, in order to determine whether open court proceedings harm abused children, risk assessment instruments
must study much more than the abused child while he or she testifies. First, much of the psychological damage is long-term
and none of the courtroom participants have an opportunity to observe the child’s psychological path. Since a high
percentage of child abuse victims suffer post-traumatic stress disorder, which often does not manifest for months or years
after the traumatic event, longitudinal studies of children who testify are critically important to determine how testifying
before strangers and/or the resultant publicity have increased their existing psychopathology or created new and different
psychological problems.139 Second, children often do not manifest psychological symptoms of stress for months, or even a
year, after the traumatic event. The result of one longitudinal study of abused children found that “children who were initially
asymptomatic had more problems at an 18-month follow-up than did children who were initially highly symptomatic.”140

322782KGBK 9/26/2012
This delay in the physical manifestation of trauma *54 symptoms among children who display the fewest symptoms when
first evaluated is termed the “sleeper effect.”141 Thus, studies that merely analyze children’s behavior in court proceedings
while they testify provide significantly insufficient evidence regarding the effects on the children’s psychopathology. That is
why it is critical for research on the effects of open court proceedings to examine longitudinal evidence of children’s trauma
by investigating in a confidential and protective manner the child’s, parents’, and treating mental heath professionals’
observations.
IV. Conclusion
I am not an apologist for the current quality of care, professional competence, accountability, or inadequate resources in most
states’ child dependency systems. I, as much as the next person, would like to find the magical solution to transform child
abuse courts into dynamic, caring, creative, and competent mechanisms for determining abused children’s best interests, and
for helping families deprived of the most basic resources find a way to safely stay together or to place children in loving,
stable new family relationships if reunification is not possible. However, I am unwilling to experiment with our children’s
mental health by opening these proceedings to the press and public and by forcing abused children to suffer the humiliation
and embarrassment of having their intimate secrets revealed without the empirical evidence to support the wisdom of that
systemic sunshine.
As some child abuse experts have noted, “we are now in danger of uncritically embracing whatever is offered as a remedy,
even though it is not at all clear that we should be comforted by the ‘something’ that is being done about this tragic
phenomenon [child abuse].”142 As Richard Gelles has argued, “we must provide services based on scientific information
rather than conventional wisdoms and persuasive myths.”143 Merely reacting out of desperation by “simply doing something
about child abuse may have taken precedence over drawing on available knowledge to do something that ensures children’s
best interests are served by our actions.”144
This article has attempted to illuminate several of the pervasive myths surrounding the safety and wisdom of opening our
child dependency court to the press and public. I have demonstrated that there is no empirical support for the following myths
that: (1) open hearings help abused children *55 psychologically recover; (2) children are not traumatized by testifying about
intimate details of their abuse in front of strangers; (3) the press protects abused children by not publishing identifying data;
(4) older abused children are not at risk from publicity; and (5) merely observing children testify in court is a reliable and
sufficient methodology for determining whether open proceedings traumatize them. In addition, this article demonstrated the
inherent biases, methodological flaws, and incomplete and misleading research and conclusions of the Minnesota and
Arizona studies of open dependency court systems.
Hopefully, policy makers, judges, and legislators will now demand empirical evidence that abused and/or neglected children
will not be psychologically harmed by open dependency proceedings and the publicity generated from those hearings before
admitting the press and public into child dependency proceedings. As I have detailed in this and earlier articles, there is
significant pediatric-psychiatric evidence that open dependency proceedings are not benign, but rather that they retraumatize
abused children, make therapeutic recovery more difficult and time consuming, and exacerbate psychological problems that
will last these unfortunate children a lifetime.
Footnotes
a1 Professor, J. Allan Cook and Mary Schalling Cook Children’s Law Scholar, and Associate Dean for Clinical Programs, Whittier
Law School; Lecturer, UCLA David Geffen School of Medicine, Department of Psychiatry.
1 See William Wesley Patton, The Connecticut Open-Court Movement: Reflection and Remonstration, 4 CONN. PUB. INT. L. J.
(Symposium Edition) 8 (2004) [hereinafter Patton, Connecticut]; William Wesley Patton, Revictimizing Child Abuse Victims: An
Empirical Rebuttal to the Open Juvenile Dependency Court Reform Movement, 38 SUFFOLK U. L. REV. 303 (2005) [hereinafter
Patton, Revictimizing].
2 See Patton, Connecticut, supra note 1, at 19-22; Patton, Revictimizing, supra note 1, at 320-29. I reported on one of the most

322782KGBK 9/26/2012
heinous media exploitations of a child abuse victim in American history, in which the newspaper of one of the country’s most
zealous open court advocates published twenty-three articles in a twenty-eight day period (written by more than twelve different
reporters) identifying a child abuse victim by name and/or photograph. In addition, the newspaper published a photograph of the
alleged sex abuser in front of his wall of sadomasochistic sex tools described as the “‘slave master[’s]”’ “‘dungeon.”’ Patton,
Connecticut, supra note 1, at 20-21.
3 See, e.g., Patton, Connecticut, supra note 1, at 19; Patton, Revictimizing, supra note 1, at 313-19. Child abuse victims have “rates
of PTSD [post-traumatic stress disorder] of greater than 30%” and “children in foster care are some 16 times more likely to have
psychiatric diagnoses, eight times more likely to be taking psychotropic medications and utilize psychiatric services at a rate eight
times greater compared with children from similar socio-economic backgrounds and living with their families.” Robert Racusin et
al., Psychological Treatment of Children in Foster Care: A Review, 41 COMMUNITY MENTAL HEALTH J. 199, 202-03 (2005).
4 See Transcript of Proceedings, In re San Mateo County Human Services Agency (Super. Ct. San Mateo County, Dept. 5 Mar. 3,
2005) (on file with author) [hereinafter Transcript].
5 FRED L CHEESMAN, II, NAT’L CTR. FOR STATE COURTS, MINNESOTA SUPREME COURT STATE COURT
ADMINISTRATOR’S OFFICE KEY FINDINGS FROM THE EVALUATION OF OPEN HEARINGS AND COURT
RECORDS IN JUVENILE PROTECTION MATTERS (2001).
6 See, e.g., An Act Concerning Public Access to Proceedings in Certain Juvenile Matters: Hearing on H.B. 5555 Before the Judiciary
Comm., Connecticut General Assembly (2004) (statement of Christina D. Ghio, Staff Attorney, Child Abuse Project, Center for
Children’s Advocacy, Univ. of Conn. School of Law); DIONNE MAXWELL ET AL., NAT’L COUNCIL OF JUVENILE &
FAMILY COURT JUDGES, TO OPEN OR NOT TO OPEN: THE ISSUE OF PUBLIC ACCESS IN CHILD PROTECTION
HEARINGS 5 n.26, 12-14 (2004); Kathleen Blatz, Transcript of Remarks, 4 CONN. PUB. INT. L. J. (Symposium Edition) 25, 29
(2004); Barbara White Stack, Edited Transcript of Remarks, 4 CONN. PUB. INT. L. J. (Symposium Edition) 43, 44 (2004); Sara
VanMeter, Public Access to Juvenile Dependency Proceedings in Washington State: An Important Piece of the Permanency
Puzzle, 27 SEATTLE U. L. REV. 859, 879 (2004); Barbara White Stack, The Dangers of Identifying Children, QUILL
MAGAZINE, Sept. 2002, at 32, 34 [hereinafter Stack, Dangers].
7 MAXWELL ET AL., supra note 6, at 13.
8 Patton, Revictimizing, supra note 1, at 310-13.
9 See Transcript, supra note 4. I filed an amicus curiae brief and testified as an expert witness in this hearing.
10 Id. at 11.
11 Id. at 12-13.
12 Id. at 16.
13 Id. at 16.
14 See id.

322782KGBK 9/26/2012
15 See id.
16 Id. at 17.
17 Dr. Cheesman further testified “I think the overall concern was on the part of the advisory committee that we do nothing that
would cause harm or embarrassment to the parents or the children.” Id. at 48.
18 Id. at 44. Dr. Cheesman also testified that no therapists were questioned. Id.
19 Id.
20 Id.
21 Id. at 34.
22 Id. at 45.
23 Id.
24 Id. at 45-46.
25 Id.
26 Id. at 54.
27 Id.
28 Id. Even though San Mateo County Counsel’s motion to strike this question was granted and it was not answered or admitted at the
hearing, it still describes Dr. Cheesman’s assessment of the empirical evidence used to reach the conclusion that children were not
harmed.
29 CHEESMAN, supra note 5, at 19.
30 Transcript, supra note 4, at 74.
31 Id. at 92.
32 Id. at 95.
33 See MAXWELL ET AL., supra note 6, at 13-14.

322782KGBK 9/26/2012
34 See Patton, Revictimizing, supra note 1, at 340-47.
35 GREGORY B. BROBERG, ARIZONA OPEN DEPENDENCY HEARING PILOT STUDY (2006).
36 Transcript, supra note 4, at 145.
37 Id. at 149.
38 Id. at 151.
39 Id. at 159, 170.
40 Id. at 170.
41 See id.
42 Id.
43 Id. at 171.
44 Id. at 178-79. Broberg further answered, “So your question [whether we studied adverse effects of open hearings on children] is
very valid. It should be studied. They don’t have the resources to study it. Nor do we.” Id. at 180.
45 Id. at 170.
46 Heidi S. Schellhas, Open Child Protection Proceedings in Minnesota, 26 WM. MITCHELL L. REV. 631, 666 (2000). Heidi S.
Schellhas was a juvenile court judge in Minnesota at the time when she wrote this article and currently sits on the Minnesota Court
of Appeals.
47 See id. at 666 n.256.
48 Samuel Broderick Sokol, Trying Dependency Cases In Public: A First Amendment Inquiry, 45 UCLA L. REV. 881, 924 (1998).
49 See id. at 924 n.281.
50 Id.
51 Janet R. Fink, Determining the Future Child: Actors on the Juvenile Court Stage, in FROM CHILDREN TO CITIZENS 270, 275
(Francis X. Hartmann ed., vol. 2 1987).

322782KGBK 9/26/2012
52 Id.
53 See id. at 275 nn.27-28.
54 Michael J. Saks, Social Psychological Perspectives on the Problem of Consent, in CHILDREN’S COMPETENCE TO CONSENT
41, 48 (Gary B. Melton et al. eds., 1983).
55 Id.
56 See id. (citing JOHN W. THIBAUT & LAURENS WALKER, PROCEDURAL JUSTICE: A PSYCHOLOGICAL ANALYSIS
(1975)).
57 Saks, supra note 54, at 48.
58 Id.
59 Gary B. Melton & E. Allan Lind, Procedural Justice in Family Court: Does the Adversary Model Make Sense?, in 5 LEGAL
REFORMS AFFECTING CHILD & YOUTH SERVICES 65, 68-69 (Gary B. Melton ed., vol. 5 1982).
60 See id. at 70-71.
61 Id. at 70.
62 Id. at 75 (emphasis in original).
63 See id.
64 Id.
65 See id. at 76. “On the other hand, the stress of making what may seem to be an impossible decision may increase as children
become more cognizant of the gravity of the proceeding and of being the object of a battle in which there is necessarily a winner
and a loser.” Id.
66 Desmond K. Runyan et al., Impact of Legal Intervention on Sexually Abused Children, 113 J. PEDIATRICS 647 (1988); see also
Nancy M. P. King et al., Going to Court: The Experience of Child Victims of Intrafamilial Sexual Abuse, 13 J. HEALTH POL.
POL’Y & L. 705 (1988).
67 King et al., supra note 66, at 707. The longitudinal study excluded 21 children who did not appear for the second interview because
“whereabouts unknown (8), moved from state (3), refusal by parents (8), and refusal by children (2).” Runyan et al., supra note 66,
at 649. The Runyan study does not discuss or account for result biases based upon the 21 children who did not participate in the
second interview. For instance, we need to know why the eight children whose parents would not permit continued involvement in

322782KGBK 9/26/2012
the study made that decision. Was it because those children, some of whom were involved in the juvenile court, thought that their
children had been traumatized by the legal proceedings or by the study itself? In addition, why did two children refuse to complete
the study? Finally, since abused children whose abuse histories are publicized sometimes must move from their community in
order to find a more quiet and stable town environment, how many of the eight “whereabouts unknown” and/or three who had
moved to another state did so because the court process had just been too traumatic?
68 King et al., supra note 66, at 707.
69 Id.
70 Runyan et al., supra note 66, at 652.
71 King et al., supra note 66, at 708.
73 Jim Henry, System Intervention Trauma to Child Sexual Abuse Victims Following Disclosure, 12 J. INTERPERSONAL
VIOLENCE 499, 500 (1997).
74 Mark A. Small & Gary B. Melton, Evaluation of Child Witnesses for Confrontation by Criminal Defendants, 25 PROF.
PSYCHOL. 228, 231 (1994).
75 See Runyan et al., supra note 66, at 652.
76 Id.
77 The Runyan study used the Child Assessment Schedule, the Child Behavior Checklist-Parent form, and the Peabody Picture
Vocabulary Test to assess the children. Id. at 648.
78 Although the Runyan study described the different court processes and the outcomes of those cases for the children who were
questioned at the five and eighteen month intervals, the study did not identify which of the children in those different groups were
involved in the different proceedings, and did not discuss the effects of the variables of testifying, long delays, and case outcomes
upon individual children. See, e.g., King et al., supra note 66, at 707 n.2.
80 The Runyan study found that “children awaiting criminal trial were only 8% as likely to improve on the Depression subscale as
were children not involved in the court process.” Id. at 651. The study did not indicate which of the 34 children in the dependency
court also had criminal court involvement. Therefore, it is possible that those 12 children who testified in the dependency
proceedings were less stressed because, unlike the other 22 children, they were not involved in the criminal court.
81 See Julie A. Lipovsky, The Impact of Court on Children: Research Findings and Practical Recommendations, 9 J.
INTERPERSONAL VIOLENCE 238, 242 (1994). Many abused children are highly stressed at the prospect of testifying, but “after

322782KGBK 9/26/2012
testifying, a significant proportion of children expressed feeling relief and many noted that the experience had not been as bad as
they had expected.” Id.
82 See CHILD WITNESS PROJECT, LONDON FAMILY COURT CLINIC INC., THREE YEARS AFTER THE VERDICT: A
LONGITUDINAL STUDY OF THE SOCIAL AND PSYCHOLOGICAL ADJUSTMENT OF CHILD WITNESSES REFERRED
TO THE CHILD WITNESS PROJECT 119 (1993).
83 Id. at 120.
84 Id. at 121.
85 Jessica Liebergott Hamblen & Murray Levine, The Legal Implications and Emotional Consequences of Sexually Abused Children
Testifying as Victim-Witnesses, 21 LAW & PSYCHOL. REV. 139, 158 (1997). Another major problem is that there are
insufficient pediatric psychiatric state services to help abused children whose psychopathology is worsened by the trauma and
publicity of testifying in open dependency proceedings. See, e.g., Bonnie T. Zima et al., Quality of Publicly-Funded Outpatient
Specialty Mental Health Care for Common Childhood Psychiatric Disorders in California, 44 J. AM. ACAD. CHILD &
ADOLESCENT PSYCHIATRY 130, 131 (2005). Further, abused children’s defense mechanisms are weakened, placing them at a
greater risk of being re-abused by external factors. See Peter M. Thomas, Dissociation and Internal Models of Protection:
Psychotherapy with Child Abuse Survivors, 42 PSYCHOTHERAPY: THEORY, RES., PRAC., TRAINING 20, 21-22 (2005).
86 One study has rebutted the generalization that child abuse victims’ emotional trauma is reduced by the catharsis of publicly
disclosing their abuse:
Contrary to the prevailing belief that disclosure always brings about a sense of relief and catharsis in a child victim, it was often the
case that the disclosure brought a host of pressures, many of which the child was unprepared for. Furthermore, once the disclosure
was made, any feelings of personal control or sense of taking charge soon dissipated. The fleeting, empowered position of the child
vis-a-vis the abuser dissolved as reaction to the disclosure took on a life of its own. CHILD WITNESS PROJECT, supra note 82,
at 46.
87 VanMeter, supra note 6, at 889 (quoting DEBRA WHITCOMB ET AL., U.S. DEP’T OF JUSTICE, WHEN THE VICTIM IS A
CHILD 46 (1985)).
88 WHITCOMB ET AL., supra note 87, at 46.
89 Id.
90 See also Mary Avery, The Child Abuse Witness: Potential for Secondary Victimization, 7 CRIM. JUST. J. 1, 3 (1983) (“Mental
health professionals have found that legal proceedings can have a profoundly disturbing effect on the mental and emotional health
of the child victim. Stigma, embarrassment and trauma to the child, sometimes with lifelong ramifications, are increased by
involvement in the current judicial system.”).
91 WHITCOMB ET AL., supra note 87, at 17 (“Juvenile court proceedings also may be less traumatic to the child, [in part because of
the] [c]losing of the courtroom . . . .”).
92 Id. at 18. It is not surprising that strangers in the courtroom will cause abused children additional trauma since research has
demonstrated that the second most significant determinant of psychopathology among abused children is the abused child’s sense
of a loss of control of their lives and a sense of powerlessness. See Victoria L. Banyard & Linda M. Williams, Characteristics of

322782KGBK 9/26/2012
Child Sexual Abuse as Correlates of Women’s Adjustment: A Prospective Study, 58 J. MARRIAGE & FAM. 853, 862 (1996).
93 And even earlier:
In 1977, the federal government formally recognized the special concerns of the child witness by funding two programs devoted
specifically to children as victim/witnesses: The Sexual Assault Center at Harborview Medical Center in Seattle, Washington, and
the Children’s National Hospital and Medical Center in Washington, D.C. The goal of the programs at these institutions was to
develop social, medical and legal responses to child victims which recognized and accommodated the children’s special needs and
encouraged their successful participation in the criminal justice process. Lucy Berliner, The Child Witness: The Progress and
Emerging Limitations, 40 U. MIAMI L. REV. 167, 168-69 (1985).
94 487 U.S. 1012 (1988).
95 See id.
96 497 U.S. 836 (1990).
97 Id. at 855-57.
98 Brief for Amicus Curiae Am. Psychological Ass’n in Support of Neither Party, Maryland v. Craig, 497 U.S. 836 (1990) (No. 89-
478), 1990 WL 10013093, at *11 n.23.
99 Karen J. Saywitz & Rebecca Nathanson, Children’s Testimony and Their Perceptions of Stress In and Out of the Courtroom, 17
CHILD ABUSE & NEGLECT 613 (1993).
100 Id. at 617.
101 See id. at 617-18. Another study conducted in South Africa also found that testifying in a courtroom caused children to feel
“nervous, embarrassed or scared” and “[m]any instances were observed in the courtroom where the children showed signs of
nervousness, for instance, twisting hair, trying to leave the witness stand or courtroom before they were finished, shaking and, in
once [sic] instance, the child even started crying.” Karen Muller, An Inquisitorial Approach to the Evidence of Children, 4 CRIME
RES. IN S. AFR. 1, 1 (2001), available at http://www.crisa.org.za/downloads/ia.pdf.
102 Saywitz & Nathanson, supra note 99, at 620.
103 See David Finkelhor & Angela Browne, The Traumatic Impact of Child Sexual Abuse: A Conceptualization, 55 AM. J.
ORTHOPSYCHIATRY 530, 532-33 (1985); Malgorzata Ligezinska et al., Children’s Emotional and Behavioral Reactions
Following the Disclosure of Extrafamilial Sexual Abuse: Initial Effects, 20 CHILD ABUSE & NEGLECT 111, 121 (1996); Toni
M. Massaro, The Meanings of Shame Implications for Legal Reform, 3 PSYCHOL. PUB. POL’Y & L. 645, 665 (1997); Susan V.
McLeer et al., Psychiatric Disorders in Sexually Abused Children, 33 J. AM. ACAD. CHILD & ADOLESCENT PSYCHIATRY
313, 313-14 (1994). Even adults fear public disclosure. In a poll by the National Women’s Study, two-thirds of adult rape victims
feared the public’s reaction to the disclosure of their abuse. See Deborah W. Denno, Perspectives on Disclosing Rape Victims’
Names, 61 FORDHAM L. REV. 1113, 1125 (1993).
104 See, e.g., CAL. WELF. & INST. CODE § 350(b) (West 2007) (provides that “The testimony of a minor may be taken in chambers
and outside the presence of the minor’s parent or parents, if any of the following circumstances exist: (1) The court determines that

322782KGBK 9/26/2012
testimony in chambers is necessary to ensure truthful testimony. (2) The minor is likely to be intimidated by a formal courtroom
setting. (3) The minor is afraid to testify in front of his or her parent or parents.”); In re Adoption of Don, 755 N.E.2d 721, 728-29
(Mass. 2001); In re Katherine S., 271 A.D.2d 538, 539 (N.Y. App. Div. 2000).
105 See CHILD WITNESS PROJECT, supra note 82.
106 Id. at 223.
107 Id. at 91.
108 Jodi A. Quas et al., Childhood Sexual Assault Victims: Long-Term Outcomes After Testifying in Criminal Courts,
MONOGRAPHS SOC’Y FOR RES. CHILD DEV., June 2005, at 1, 15.
109 Id. at 105.
110 Id. at 110.
111 Stack, Dangers, supra note 6, at 33.
112 Blatz, supra note 6, at 32-34. See also Schellhas, supra note 46, at 665.
113 See Mary Jo Brooks Hunter, Minnesota Supreme Court Foster Care and Adoption Task Force, 19 HAMLINE J. PUB. L. & POL’Y
1, 231 (1997) (minority report to the NCSC study of the Minnesota Open Court Pilot Project which found that “a review of several
of these [Michigan] news articles revealed that in some cases children’s real names were used, as well as their photographs, when
describing cases of foster care abuse, termination of parental rights and child protection matters.”); Patton, Revictimizing, supra
note 1, at 323-29; see, e.g., Rhonda Bodfield Bloom, Broken Bonds, ARIZ. DAILY STAR, Oct. 22, 2005, available at
http://www.azstarnet.com/sn/printDS/98979 (child’s name, and description of the child crying when taken from mother and placed
in foster care); Joyesha Chesnick, Shift in Policy Aims at Keeping Children Out of Foster Homes, ARIZ. DAILY STAR, July 25,
2005, available at http:// www.azstarnet.com/sn/printDS/85627 (lists child’s name, his medical condition, and fact that police took
him and his sibling into custody); Emily Tsao & Sarah Hunsberger, Failings Found in Foster Child’s Case, THE OREGONIAN,
Feb. 19, 2005, at B1 (child’s name and medical condition).
114 See Patton, Revictimizing, supra note 1, at 323-29.
115 David S. Tanenhaus, Before the Doors Closed: A Historical Perspective on Public Access, 4 CONN. PUB. INT. L. J. (Symposium
Edition) 1, 4 (2004); see also DAVID S. TANENHAUS, JUVENILE JUSTICE IN THE MAKING 49-54 (2004).
116 See, e.g., In re “S” Children, 532 N.Y.S.2d 192 (N.Y. Fam. Ct. 1988) (where a New York court permitted a reporter to attend a
hearing, but ordered the reporter not to publish the story for at least 22 hours after the hearing; the reporter, however, violated the
court order and published the report the next morning); Editorial: Open Minds - and Courts / Out West, Officials Rethink Closed
Custody Hearings, PITTSBURGH POST-GAZETTE, July 31, 2002, at A10 (where the Post Gazette newspaper won a hearing to
open an otherwise confidential custody hearing and then published the name of the 14-year-old child involved in that hearing).

322782KGBK 9/26/2012
118 Id. By 1999, many media changed their policies regarding identifying children involved in juvenile court. “[N]ews organizations
have begun to alter long-standing policies against printing the names and photographs of juvenile offenders” “because of a widely
shared ethic that children deserved to be shielded. Recently, that consensus has broken down.” Emily Bazelon, Public Access to
Juvenile and Family Court: Should the Courtroom Doors Be Open or Closed?, 18 YALE L. & POL’Y REV. 155, 156, 173 (1999).
120 See id. (“[I]n Albuquerque, N. M., Tribune reporter Susie Gran said her editors insist on true identities. They believe a paper’s
credibility is threatened by deliberately withholding such information and enhanced when it uses real names, ages and
hometowns.”).
121 Denno, supra note 103, at 1124-26.
122 Avery, supra note 90, at 2.
123 Saywitz & Nathanson, supra note 99, at 620.
124 In re T.R., 556 N.E.2d 439, 451 (Ohio 1990).
125 Denno, supra note 103, at 1126 (quoting Paul Marcus & Tara L. McMahon, Limiting Disclosure on Rape Victims’ Identities, 64 S.
CAL. L. REV. 1019, 1033 (1991)).
126 Denno, supra note 103, at 1130.
127 Kara E. Nelson, The Release of Juvenile Records Under Wisconsin’s Juvenile Justice Code: A New System of False Promises, 81
MARQ. L. REV. 1101, 1153-54 (1998).
128 Kathe Aschenbrenner Pate, Restricting Electronic Media Coverage of Child-Witnesses: A Proposed Rule, 1993 U. CHI. LEGAL F.
347, 358 (1993).
129 The “jurogenic effect” is defined as “the risk of harm to the child that flows from contact with the legal system.” Proceedings of
the Conference on Ethical Issues in the Legal Representation of Children, Report of the Working Group on the Allocation of
Decision Making, 64 FORDHAM L. REV. 1325, 1327 (1996).
130 In reality, children who suffer any type of child abuse have an increased chance of “feelings of distrust of others, disconnection,
and isolation in adulthood.” Marylene Cloitre et al., Therapeutic Alliance, Negative Mood Regulation, and Treatment Outcome in
Child Abuse-Related Posttraumatic Stress Disorder, 72 J. CONSULTING & CLINICAL PSYCHOL. 411, 414 (2004); see also
Racusin et al., supra note 3, at 202, 204. In addition:
Studies using clinical samples suggest that there may be a high rate of co-occurrence among sexual abuse, physical abuse,
witnessing of violence, and other trauma children who have been both physically and sexually abused appear to be at additionally
increased risk for subsequent victimization than children who have experienced sexual abuse but not further physical abuse. Mark
Chaffin & Rochelle F. Hanson, Treatment of Multiply Traumatized Abused Children, in TREATMENT OF CHILD ABUSE 271,
272-73 (Robert M. Reece ed., 2000). For differences in psychopathology between physically and emotionally abused children, see

322782KGBK 9/26/2012
Seth D. Pollak et al., Recognizing Emotion in Faces: Developmental Effects of Child Abuse and Neglect, 36 DEVELOPMENTAL
PSYCHOL. 679, 684-85 (2000). “[T]he most consistent and robust predictor of past year psychiatric disorder was the number of
types of maltreatment reported, suggesting that the effects of maltreatment on disorder may be additive.” J. Curtis McMillen et al.,
Prevalence of Psychiatric Disorders Among Older Youths in the Foster Care System, 44 J. AM. ACAD. CHILD &
ADOLESCENT PSYCHIATRY 88, 93 (2005).
131 Proposed CAL. WELF. & INST. CODE § 346.1 (on file with author), was a substantially amended version of a previous California
open dependency court bill that was not passed, A.B. 2627, 2003-2004 Leg., Reg. Sess. (Cal. 2004). Proposed CAL. WELF. &
INST. CODE § 346.1 was drafted by the San Mateo County, California County Counsel’s office; however, it was never voted upon
by the California Legislature. See Letter from Thomas F. Casey III, County Counsel, San Mateo County, California, to Gerry
Hilliard, San Mateo Private Defender Program (Apr. 6, 2005) (on file with author).
132 Proposed CAL. WELF. & INST. CODE § 346.1(a)(2) (on file with author).
133 See DEBRA WHITCOMB ET AL., U.S. DEP’T OF JUSTICE, THE CHILD VICTIM AS A WITNESS (RESEARCH REPORT)
124 (1994). The psychological fragility of abused children does not magically disappear within a few years after the abuse or even
when they age out of the juvenile dependency system. See Pamela C. Alexander, The Differential Effects of Abuse Characteristics
and Attachment in the Prediction of Long-Term Effects of Sexual Abuse, 8 J. INTERPERSONAL VIOLENCE 346, 359 (1993);
Avery, supra note 90, at 3; John N. Briere & Diana M. Elliott, Immediate and Long-Term Impacts of Child Sexual Abuse, 4
SEXUAL ABUSE OF CHILD. 54, 63 (1994); Steven J. Collings, The Long-Term Effects of Contact and Noncontact Forms of
Child Sexual Abuse in a Sample of University Men, 19 CHILD ABUSE & NEGLECT 1 (1994).
134 Gail S. Goodman et al., Testifying in Criminal Court: Emotional Effects on Child Sexual Assault Victims, MONOGRAPHS
SOC’Y FOR RES. CHILD DEV., July 1992, at 1, 13-14, 45-47.
135 McMillen et al., supra note 130, at 92.
136 Blatz, supra note 6, at 30.
137 See CHEESMAN, supra note 5. The NCSC study was based upon site visits, interviews, focus groups, surveys, information logs,
court records, and newspaper articles. Id. at 2. But the purpose of these various reviews did not include the purpose of analyzing
stress on the child abuse victims. See id. at 2-4. The description of the NCSC study methodology does not indicate that a purpose
was to specifically test how open court proceedings affected abused children. Instead, the study merely provided interviewees an
opportunity to volunteer any information that they found to be a positive or negative result of open hearings. See id. at 5. None of
the data relied upon by the NCSC study to conclude that abused children were not harmed by open hearings studied the children’s
psychopathology after the hearings.
138 See id. None of the questions in the two-volume NCSC study even specifically asked judges, court personnel, attorneys or guardian
ad litems whether they had witnessed trauma to children during their testimony. See id.
139 See DEAN G. KILPATRICK ET AL., U.S. DEP’T OF JUSTICE, YOUTH VICTIMIZATION: PREVALENCE AND
IMPLICATIONS 7-9 (2003); David Pelcovitz et al., Post-Traumatic Stress Disorder in Physically Abused Adolescents, 33 J. AM.
ACAD. CHILD & ADOLESCENT PSYCHIATRY 305, 306 (1994).
140 Briere & Elliott, supra note 133, at 63.

322782KGBK 9/26/2012
141 See Erna Olafson & Barbara W. Boat, Long-Term Management of the Sexually Abused Child: Considerations and Challenges, in
TREATMENT OF CHILD ABUSE 14, 25 (Robert M. Reece ed., 2000).
142 Frank D. Fincham et al., The Professional Response to Child Sexual Abuse: Whose Interests are Served?, 43 FAM. REL. 244, 244
(1994).
143 Richard J. Gelles, Demythologizing Child Abuse, 25 FAM. COORDINATOR 135, 141 (1976).
144 Fincham et al., supra note 142, at 246.
33 LPSYR 29
End of Document © 2012 Thomson Reuters. No claim to original U.S. Government Works.

07052015 when the empirical base crumbles- the myth that open dependency proceedings do not psychologically damage abused children

More Related Content

Similar to 07052015 when the empirical base crumbles- the myth that open dependency proceedings do not psychologically damage abused children (20)

More from screaminc (20)

Recently uploaded (20)

07052015 when the empirical base crumbles- the myth that open dependency proceedings do not psychologically damage abused children