On appeal from Superior Court, Law Division, Essex County.
King, Long and Stern. The opinion of the court was delivered by Long, J.A.D. Stern, J.A.D. (dissenting).
We are called upon here to determine the extent to which expert evidence may be utilized in a child sex abuse case to
shore up a victim-witness's testimony. Defendant, J.Q., who was convicted of a series of sex crimes against his young daughters, N.Q. and C.Q., claims that he was denied a fair trial because of the improper admission of expert testimony which bolstered the credibility of the children.*fn1 At issue is the admission of testimony as to the Child Sexual Abuse Accommodation Syndrome (CSAAS), other so-called syndrome evidence and expert opinion that the children's statements that they had been sexually abused were truthful.
We hold that CSAAS evidence is generally reliable to explain secrecy, belated disclosure and recantation by a child sex abuse victim; that syndrome evidence, including CSAAS, is not reliable to prove the occurrence of sexual abuse, and that absent a question of capacity, a social science expert lacks the qualifications to render an opinion as to the truthfulness of a statement by another witness. Because the expert in this case testified before the jury as to syndrome evidence to prove that sex abuse occurred; opined as to the truthfulness of the children (and their mother), and rendered the opinion that the children were abused based in great measure upon these two interdicted classes of evidence, we are satisfied that the admission of her testimony was error clearly capable of producing an unjust result.*fn2 We thus reverse and remand the case for a new trial. In this opinion, we will attempt to distinguish between admissible and inadmissible expert behavioral science evidence in a child sexual abuse case.
After a jury trial, defendant was convicted on count one of Essex County Indictment No. 3069-7-87 of first-degree aggravated sexual assault upon his daughter, C.Q., then seven years of age,*fn3 by vaginal penetration, contrary to the provisions of N.J.S.A. 2C:14-2a(1). On count two, defendant was convicted of fellatio upon C.Q. -- also first-degree aggravated assault -- contrary to N.J.S.A. 2C:14-2a(1), and on count three, of sexual conduct which would impair or debauch the morals of C.Q., while defendant had a legal duty of caring for her, in violation of N.J.S.A. 2C:24-4. On counts four, five, six and seven, defendant was convicted of having committed aggravated sexual assault upon his daughter, N.Q., then six years of age,*fn4 by vaginal penetration, anal penetration, fellatio and cunnilingus, all contrary to the provisions of N.J.S.A. 2C:14-2a(1). On count eight, defendant was convicted of engaging in sexual conduct which would impair or debauch the morals of N.Q., while he had a legal duty of caring for her, in violation of N.J.S.A. 2C:24-4. Defendant received an aggregate custodial term of 30 years with ten years of parole ineligibility. An appropriate Violent Crimes Compensation Board Penalty was also imposed.
Defendant lived with C.W. for approximately nine years. Although they never married, they had two daughters: C.Q. born in 1977, and N.Q., born in 1979. Throughout 1984, the time period covered in the indictment, defendant and C.W. lived with their two daughters in an apartment in Newark, New
Jersey. The parties separated in late 1985 or early 1986. C.W. married "Carlos" in 1985, and defendant has also married since the separation.
Like their separation, the parties' relationship was acrimonious and even violent -- both parties testified that defendant frequently hit C.W. In 1977, defendant had an affair, and C.W. surprised defendant and his paramour in the family apartment. C.W. beat up the woman friend, hit defendant, and according to him, told him she would "make him pay."
Defendant and C.W. apparently separated one or more times before the final breakup -- in December 1984 -- according to C.W. because defendant was "fooling around." Defendant went to Puerto Rico to visit his family. When he returned, C.W. was pregnant, and they argued about whether the child was his. Defendant's suspicions were confirmed when C.W. testified at trial that J., born in 1985, was not defendant's child.
The parties finally separated at the end of 1985 or the beginning of 1986, after defendant found C.W. in their apartment with another man. Defendant and C.W. battled until the end. For example, N.Q. and defendant both described an incident where defendant returned to the apartment and hit C.W. in the stomach with a hammer. When he dropped the tool, C.W. retrieved it, and hit him on the head with it.
Despite the stormy relationship between defendant and C.W., defendant continued to see his daughters from the time of the separation until "sometime in 1987" when allegations about sexual misconduct came to light. For a while, defendant took the girls to his apartment in New York every weekend, although the frequency of these visits eventually dropped off and according to C.W., defendant came only "when he felt like it." C.W. explained that she never wanted to keep her daughters away from their father because she had never known her father and did not want the same to happen to N.Q. and C.Q. Indeed, there was some testimony that C.W. insisted that defendant assume some responsibility for N.Q. and C.Q. Defendant
stated that once C.W. came to his apartment to ask why he did not visit the girls. He said she insisted that he take them for the weekends because she was young and needed to go out.
These visits came to an end when N.Q. and C.Q. disclosed that defendant had committed sexual acts with them. These allegations surfaced "sometime in 1987." C.W. was in her bedroom watching television, and her three daughters were in their bedroom playing, when she heard a loud slap. Her youngest daughter had slapped N.Q. and left a mark on her face. N.Q. was on her knees kneeling over J., and while C.W. at first thought they were just playing "horsey back riding," J.Q. was crying and said N.Q. tried to pull down her panties and touch her "butt." C.W. asked N.Q.: "who told you to pull someones [ sic ] panties [?]." At first N.Q. did not want to say but then she stated that "it starts with d," and finally she said it was d-a-d. C.W. asked her if she meant her stepfather or her real father, and N.Q. replied her father. C.Q. then added that her father did things to her too but they did not want to tell because he threatened to hurt C.W. C.W. told the girls that it was important not to lie and they denied that they were lying. C.W. asked them to use a baby doll to show what had happened to them, and after this she was convinced that they had been sexually abused. C.W. eventually took the children to her doctor, and then to the Division of Youth & Family Services. C.W. also testified that before these disclosures she had noticed that N.Q. had a vaginal discharge, but had attributed it to the child not changing her panties.
N.Q. and C.Q. both testified at trial, in the judge's chambers, via closed-circuit television broadcast into the courtroom. N.Q. was eight years old and in second grade when she testified in May 1988. She responded "yes" to the question as to whether she was four or five years old back in 1984, and also replied "yes" when questioned whether there "came a point in time where your daddy did things that you didn't like?" She then related that "[h]e put his d-i-c-k in my vagina." By "d-i-c-k" she
said she meant his "private parts." She said that this hurt a "little bit." He put his "d-i-c-k" in her mouth also, and "milk" came out of it. In response to whether he ever put anything on his d-i-c-k, she replied that when he was living with her mother he put some kind of chocolate syrup on it and made her lick it off. She also stated that he "french kissed" her, which she described as "when the guy puts the tongue into a woman's mouth." He also put his mouth on her vagina and licked her and put his d-i-c-k in her butt, which hurt her. He also put his finger in her vagina and moved it around. N.Q. stated that he did these things to C.Q. also, and that C.Q. saw him when he did them to her. The incidents occurred while defendant lived with them and their mother, but when her mother was out of the apartment. (At one point, N.Q. also stated that these incidents occurred when she and C.Q. visited defendant in Brooklyn.) She explained that she was not allowed to tell her mother about what was happening because she was afraid her father would hit her and C.Q. and her mother. N.Q. said that she would never lie and that, while she was mad at her father, she had loved him very much before he started doing these things.
C.Q., age ten at the time of trial and in fourth grade, also stated that defendant did things to her and her sister N.Q. which they did not like. "He put his hot dog in our private place." He put it in "a lot" and it hurt "a little bit." He also put his penis in her "back part" and this hurt. He put chocolate syrup on his penis and put it in N.Q.'s mouth. Sometimes he would tell one of them to put her mouth on his penis, and he would put his mouth on the vagina of the other. She and N.Q. never told their mother about these acts because they were afraid they would get in trouble and that defendant would hit them.
C.Q. stated that after defendant left their apartment to live in Brooklyn, she and N.Q. would go to visit him. They wanted to see him because they loved him, but sometimes he made them go and would give them an "evil look" when he picked them up.
She insisted, in the face of cross-examination, that her mother did not force her to tell this "story" about her father.
During cross-examination of N.Q. and C.Q., the defense tried to establish that they might have been exposed to sexual activity other than through defendant. For example, N.Q. acknowledged that she sometimes saw the boys in her apartment do "nasty" things to girls in the hallways, and she once saw a boy kissing C.Q. in the basement. C.Q. explained that once her mother sent her out of the room when a movie came on with "nasty things" in it. The movie showed a man putting his penis in a woman's vagina. She remarked that Carlos usually put an "x" on some movies when he brought them home, but this time he did not.
Dr. Karen Bresnahan, a pediatric resident at the University of Medicine and Dentistry of New Jersey, testified that she had examined N.Q. Bresnahan stated that she had previously examined between 30 and 50 child abuse victims. Bresnahan reported that N.Q.'s hymenal opening was stretched, but there were no lacerations and no evidence of blood or puss. She reported that it was not normal for a child to have a stretched hymen, and explained that the hymenal opening is usually about four millimeters. While she did not record how much N.Q's. hymen was stretched beyond this, she opined that her finding "makes one suspicious" that there had been some type of manipulation consistent with sexual abuse. The stretching she observed could result from penetration by penis or finger, although it is possible that a girl could be born either without a hymen or with one with a larger opening than average. The condition could not result from strenuous activity. On the other hand, Bresnahan opined that it is possible that a stretched hymen would be the only physical evidence of penetration by an adult male on a six or seven-year-old girl. Bresnahan concluded that N.Q. had been sexually abused, both because of the physical examination and because N.Q. had told her she had been abused. No medical testimony was presented with respect to C.Q. The parties stipulated that a Dr. Haratounian
had examined C.Q. and found that she also had a stretched hymen.
Dr. Madeline Milchman, a Ph.D in clinical psychology, interviewed both C.Q. and N.Q. each for a period of approximately an hour and one-half. She was trained in child sex abuse, has taught psychology at Rutgers, and has published articles on how to determine whether child abuse has occurred. She chairs a subcommittee of the New Jersey Psychological Association which is devoted to conducting research into objective criteria for assessing whether or not a child is making a valid allegation of child sexual abuse. According to Milchman, such objective criteria is being tested in "pilot" cases.
Milchman stated that approximately one-third of her practice "consists of children who have [been] alleged to have been sexually abused." In the course of her training, Milchman became familiar with CSAAS, a pattern of behavior "found to occur again and again in children who are victims of incest." According to Milchman, it has five components:
[A] pattern of behavior that is found to occur again and again in children who are victims of incest and there are five parts to that. The first part of the pattern is that the children tend to keep the incest a secret. Most people would expect that a child would tell if they had been sexually assaulted but in fact they tell very rarely. Usually the child will keep it a secret and will keep it a secret for a very long period of time.
The second part of the pattern is helplessness and that has to do with why the child keeps it a secret. . . . The third part is entrapment and accommodation and what that means is that the child gets trapped, the child feels helpless, the child is told to keep it a secret. They have been threatened they are afraid that the parent would not love them any more. The parent has more power than the child. . . . And for that reason they will go along for years and years and years without ever making any disclosure to anybody. What the child does is to accommodate the abuse. That means they adjust to it.
A disclosure is usually very delayed and it comes because of something external that has revealed the pattern. That's the fourth part, the delayed disclosure. And the last part, the fifth part of the pattern is that sometimes the child can go back on it, they will say no I made it up and that's not true and they will give up. . . . And those are the five parts of the Sex Abuse Accommodation Syndrome.
Milchman concluded that N.Q. suffered from the first four symptoms of CSAAS -- secrecy, helplessness, accommodation and delayed disclosure and was a withdrawn child. The only symptom she did not show, according to Milchman, was recantation. Milchman stated that C.Q. also exhibited the first four symptoms of CSAAS although her overt reactions were more outgoing and brash than those of N.Q.
Milchman stated that some child sex victims become withdrawn while others are more aggressive and that other outward signs of sexual abuse are "behavior syndromes of trauma, nightmares, falling grades in school, fights with other children, aggression, withdrawal, crying episodes for no apparent reason or for flimsy reasons, any kind of sign of stress, such as anxiety." She related that N.Q. experienced crying, nightmares and falling grades.
Milchman testified that the childrens' recitation of the events was consistent with sexual abuse because of its detail. She explained that descriptions of their "father's" acts of moving his finger in N.Q.'s vagina, and "french kissing," cannot be learned from watching an X-rated movie or from the "general culture" and that the chocolate syrup story was the type of "concrete, realistic detail" that supported the truthfulness of the allegation.*fn5
As to the method she uses to assess the credibility of child witnesses, Milchman stated:
One of the things that is very important to look at, in order to tell whether a child has been sexually abused or not when they are saying it is whether the
child is lying. It's not real hard to tell whether a child is lying. Anybody who has raised a child has some knowledge about what cues them to whether a child is lying or not. You might look at whether the child appears sincere emotionally. You might look at whether what they are feeling is what they are saying, if they are telling you something frightening happening and they are giggling you are not going to believe them and if they are telling you something frightening happened and they are having a hard time telling you and maybe they are crying and shaking at the same time you are going to be more prone to believe them.
She recapped what she looks for in determining the truthfulness of an alleged child sex victim:
Okay, I look for -- I look for many different things. I look for whether the child appears to be sincere. I look for whether or not the feeling that they have at the time goes with what they are saying or whether it contradicts what they are saying. I go for whether there are a lot of different behaviors that all point to the same conclusion. For example, is what the child saying, does that match the demonstrations that they give when they try to explain it with their hands or with dolls, does it match the pictures that they draw for me? Does it match what they told the mother; does it match what they told the DYFS worker; does it match what they told the prosecutor or investigator; or does it match what they told me? I look for consistency across a lot of different kinds of behaviors.
In a child who is telling the truth you don't get every detail the same because that's the nature of human memory that sometimes we forget one detail or another but you get a broad consistency. A lot of different behaviors all back each other up, they all say the same thing. A child who is lying or being programmed will be the opposite. You will tend to get a consistent verbal statement but if you then say well draw a picture for me they don't know what they are talking about, they can't draw a picture that will back it up or you say show it to me on the doll, they don't know what to do or they do something that looks like something you would see on television, very romantic, very general not specific, concrete details. That's another thing I look for are there realistic, concrete, specific kinds of details that are not the kinds of things that you would tend to see on a television so that any kid could pick up or any cable t.v. or movie that any kid could just pick up, that what I look for.
Milchman was then asked this question:
Q. Doctor, based on your examinations of the girls, can you give this jury your expert opinion as to whether or not both C.Q. and N.Q. were sexually abused?
A. I believe that they were sexually abused.
On cross-examination, Milchman acknowledged that C.Q. had reported to her that she had once observed defendant and her mother engage in sexual intercourse and that C.Q. told her that
the boys in her apartment building stand around in the hallways and try to "get" ...