THE PREVENTION OF CRIME AND THE TREATMENT OF OFFENDERS IN ISRAEL: 1995 REPORT

CHILDREN’S EVIDENCE IN CHILD ABUSE PROCEEDINGS: AMENDMENT TO THE LAW OF EVIDENCE

Tamar Morag,
Director,
Legal Department,
National Council for the Child

In 1955, after public criticism of several sex offense cases in which young children were interrogated in court in a hurtful and insensitive manner, the Knesset (Israeli parliament) enacted an amendment to the existing law of evidence, the Law of Evidence Amendment (Protection of Children). The purpose of the amendment is stated in its name to protect children from harm during police or courtroom questioning.

Although almost forty years have passed since its enactment, the law is still considered one of the most innovative pieces of legislation in the field and draws attention, debate and controversy in national and international fora.

This article will lay out the Law’s main provisions and then discuss the controversy surrounding it and some of the legislative proposals for its amendment currently under discussion in Israel.

The Law

The Law applies to children under 14 years of age who are required to testify in court regarding a sex offense or an offense committed on them by one of their parents. Primarily, it applies to cases in which the child is the victim of the crime but is also enacted in cases where the child is a suspect or an eyewitness to a sex offense.

The Law establishes the new function and post of Youth Investigator. Only this investigator may interrogate the child and take his or her testimony. The Youth Investigator is also authorized to decide whether, and under what conditions, the child may testify in court. Should he or she believe, after questioning the child, that testifying in court may psychologically damage the child, they will forbid it and the child’s testimony, as taken and presented by the investigator, will become admissible in court instead. The investigator himself/herself presents the child’s testimony to the court and testifies as to the circumstances in which the testimony was taken and to his or her own estimate of the child’s credibility.

Both defense and prosecution, as well as the judge, may request that the investigator re-examine the child and specify supplementary questions but the investigator has the right to reject questions that may be harmful to the child. In those cases where the investigator does allow the child to testify in court, the court may stop the child’s testimony at any time if the investigator believes that continuing would cause harm.

The chief innovation of this Law clearly lies in the creation of an exception to the two rules of courtroom practice that exclude hearsay evidence and give the accused the right to cross-examine every witness. To compensate for the potential harm that this might cause to the rights of the accused, the Law lays down that no person may be convicted on the basis of a child’s testimony submitted via a Youth Investigator, unless it is corroborated by other evidence.

Recent Amendments to the Law

Until 1989, the Law applied only to sex offenses. For years, supporters of the Law had argued that there was no justification or logic to this distinction between physical, mental and sexual abuse and that the Law should operate in all cases of child abuse. It was also claimed that the Law should make special provision for those children who are required to testify in court, whether because the investigator has permitted this or because they are over 14 or because the offense is not a sex offense.

The amendments passed in 1989 gave at least partial satisfaction to these critics. The first amendment applies the Law to any offense committed on a child by one of its parents.

The second amendment deals with those children who do testify in court. It empowers the judge to remove from the courtroom during the testimony of a child a parent accused of incest. With the permission of the judge, the defense attorney may remain in court and cross-examine the child. This amendment was the result of several cases in which the child was unable to testify in the presence of the accused or had great difficulty in doing so. In one of these cases, in a Jerusalem District Court, a 14-year-old victim of incest who had previously given the police detailed testimony against her father, reversed that testimony when she reached the courtroom and had to testify in face of her father.

The third amendment is more recent and states that all youth interrogations must be audio recorded. The intention is to raise the credibility of the child’s testimony by enabling the judge to better assess his or her quality as a witness.

Implementation of the Law

Ministry of Labor and Social Affairs statistics show that up to 1988, some 1,000-1,200 children were questioned every year by Youth Investigators. Since then, increasing public consciousness of the issue of child abuse and the enactment of the obligation of every citizen to report cases of such abuse have raised the number of cases reported and referred to investigation. In 1993 alone, 3,252 children were questioned. 80% of them were the victim of an offense, 14% were eyewitnesses and 6% were suspects. In some 85% of the cases, the Youth Investigator did not allow the child to testify in court. The rise in the reported rate of incest is particularly interesting. Whereas in 1989 only 456 cases of incest were reported, in 1993 the figure was 1,239.

The Youth Investigator

The first investigators appointed by the Minister of Police were police officers but they seemed to lack the therapeutic skills needed for the interrogation of children. The next appointees were social workers or teachers. In 1982, the responsibility for youth investigation was transferred from the INP to the Youth Probation Division of the Ministry of Labor and Social Affairs and today almost all investigators are probation officers or social workers.

The Role of the Youth Investigator

The investigator’s major function is to take the child’s testimony. The interrogation is conducted in a relaxed atmosphere to encourage the child to unburden himself or herself. The investigator will make use of a range of therapeutic techniques, such as drawing pictures and play-acting and is allowed to put leading questions. But he/she must record everything that is said or happens during the interrogation.

One of the key issues that the Israeli courts have had to probe into in interpreting this Law is whether the role of the investigator shall be restricted to taking the child’s testimony and presenting it to the court or whether it is also part of his or her role to add an estimate of the testimony’s reliability. The question has been extensively debated in the courts and has reached the Supreme Court several times.

For the first year of the Law’s operation, the courts tended not to admit as evidence the investigator’s assessment of the child’s reliability. They asserted that determining the reliability of a witness was the unique and exclusive function of the court and could not be transferred to any other agent. This view has since been revised. Today, the investigator’s assessment is not only admissible but mandatory. The Supreme Court agrees that only the court trying the case is authorized to assess how convincing a witness the child is, yet holds that there is no stronger or more cogent evidence for this than the judgement of the Youth Investigator. His opinion is, therefore, a dominant factor now in estimating the child’s trustworthiness, although the court is not bound by it and may reach a different conclusion.

To make an assessment of the child’s reliability as a witness is thus a new third function of the investigator and one that demands much experience and expertise. In court he/she will not only present the testimony but be cross- examined on it and also on his/her judgement of the credit to be granted it.

Virtues and Deficiencies of The Amended Law of Evidence

Virtues

Protection of the Child: Clearly the first and cardinal benefit of the amendment is the protection of the child by sparing them the harrowing experience of giving testimony in court, coping with the strangeness and formality of the judicial process, undergoing cross-examination and facing their abuser once again.

A further advantage, and an important one, is that it becomes possible to take the child’s testimony immediately after the offense and thus spare the child the stress and anxiety of the waiting for the trial before he/she can give testimony. Studies by psychologists in recent years in the field of children’s testimony repeatedly label the time factor most significant. They show that children who testify soon after the event suffer markedly less stress than those who must wait long periods of time months, even years for the trial to begin. In many cases, the rehabilitative process cannot begin until the child’s testimony has been heard in order not to exercise influence on it.

Psychologists studying another issue entirely the reliability of children as witnesses have come to the same conclusion. Although, overall, they found little difference between adult and child reliability in this matter, it did become clear that children who testify a long time after the event, particularly very young children, tend to omit more details than do adults. Credibility of the Testimony: It is convincingly argued that the questioning of the child by a competent professional in a relaxed atmosphere is much more likely to penetrate to the truth than interrogation in more artificial and fraught circumstances.

Law Enforcement: Before the Law was passed, many parents decided against reporting cases of child abuse to the police in order to protect the child from the further harm of the interrogation process. Even in those cases which did come to investigation, the Attorney-General’s Office often decided not to prosecute to save the child the trauma of interrogation and cross-examination in court. The Evidence Law Amendment significantly raised the number of cases reported and prosecuted.

Deficiencies

Infringement of the Rights of the Accused: The Law creates exceptions to the rules that disqualify hearsay evidence and give the accused the right of cross- examination. It is argued that his may bring about the conviction of innocent persons.

The Difficulty of Getting a Conviction: A criticism from the opposite direction is that the Law, in fact, does not help enforce justice because, in courtroom practice, convictions are difficult to obtain.

There are two specific problems: the most important is the requirement of corroboration, which is all the more constricting in the case of child abuse since these offenses are usually committed in the privacy of the home with no witnesses and few, if any, visible scars. When the child testifies in person no corroboration is demanded.

The second problem is that a substantial minority of judges are reluctant to convict on the basis of testimony delivered through the mouth of a Youth Investigator. This reluctance to convict without having had the opportunity to get a first hand impression of the witness has led judges several times to ask to meet the child in their chambers. One must note that such a procedure has no basis in the Law. Recently, the Supreme Court adjudicated that the judge is not allowed to meet the child witness in this way and put questions to him/her, even if this is done with the consent of the prosecution, the defense and the Youth Investigator.

These practical difficulties have brought about a situation where conviction is frequently replaced by plea bargaining or acquittal. It appears therefore that the protest at the infringement of the accused’s rights is merely theoretical. In actual practice, the likelihood of convicting an innocent person is much smaller than for other offenses.

The Need to Protect Children to Whom the Law does not Apply: there remain outside the protection of the Law numerous children who are required to testify in court, whether because the investigator has permitted this or because they are over 14 or because the offense is not a sex offense. They include also children who were witnesses to offenses not mentioned in the Law, such as crimes of violence between other family members. For example, the child who witnesses the murder of one parent by the other would not be entitled to any protection at all from this Law. Perhaps the worst shortcoming of the Law, therefore, is that it divides children into two categories, of whom one gets full protection and the other none at all.

Proposed Amendments to the Law Currently under Consideration

* To Videotape the Child’s Testimony
This (in addition to the audio recording) would allow the court deeper acquaintance with the witness and perhaps end the discomfort of some judges at not seeing the witness in the flesh, while at the same time still spare the child the trauma of a court appearance.

* To Add Categories of Children who Would Come under the Protection of the Law
The categories suggested are:
– a child who witnesses violence by one family member against another;
– a child who has been the victim of violence by a family member other than a parent;
– children over the age of 14, in some cases.

* To Introduce Other Forms of Protection for the Child

One solution to the difficulty of getting convictions under this Law might be to protect the child in a way that enables the judge to form a opinion of his or her Other countries do the following:
– take pretrial testimony from the child;
– take testimony via closed-circuit television;
– separate the child and the defendant by screen;
– remove the defendant from the courtroom;
– appoint a guardian-ad-litem for the child for the duration of the trial.

The Youth Investigator could be empowered, in addition to his current power to prohibit testimony in court entirely, to permit the child to testify but on specific protective conditions. Any amendment along these lines must be careful to leave intact the investigator’s authority to give complete protection where he deems it necessary.

Conclusion

The Amendment to the Law of Evidence (Protection of Children) is at present at a crossroads. This unique legal provision has raised in courtroom practice many difficulties and is still the subject of pointed criticism. Yet it is not to be forgotten that, although passed thirty-nine years ago, it grants many children protection unequalled elsewhere. In considering ways to amend it, we must exercise caution not to damage its power to spare children the pain and scarring of courtroom cross-examination.