Family courts across the continent are continuing to operate largely disconnected from the last four decades of research and clinical writing on incest perpetration, including the stories of survivors. The unfortunate result in many cases that I have researched is that court and court-appointed personnel are basing their decisions on myths and misconceptions that went out long ago, sometimes leading to disastrous results for children and their non-offending parents. Here are some of the key points that family courts are often missing (I use "he" for the suspected perpetrator and "she" for the alleged victim, since this is statistically the most common scenario):
* A child's relationship with a parent that is sexually abusing her will often have some positive (or at least positive appearing) aspects.
Courts in some cases stop looking carefully at evidence of sexual abuse by a father if they get reports that the child is sometimes happy to see him, is physically affectionate with him, or expresses interest in seeing him. The reality is that incest perpetrators typically develop a bond (though not a healthy one) with their victims through doing favors, giving positive attention, expressing love (and even describing the sexual abuse as proof of that love), and buying gifts. This is extremely confusing for the child and tends to leave her with powerful ambivalent feelings and adds to the difficulty she faces in making the hard decision of whether to disclose his behavior, and then whether to testify against him.
Furthermore, incest perpetrators do profound psychological damage to their victims without being horrible to them all the time. In fact, survivors say that the positive-appearing aspects of their relationships with their fathers made the emotional wounds in many ways deeper and harder to heal from.
I have been involved in a number of cases where court personnel acknowledged that the sexual abuse had occurred or had probably occurred, but then have gone on to state that the child's relationship with the father has some positive aspects, and therefore is very important to preserve in an extensive form. This conclusion does not follow from the research evidence regarding harm and is specifically contradicted by survivors' stories; contact between an incest perpetrator and a victim should occur only with highly-trained and vigilant supervision, and should stop any time the victim wishes it to or starts to show significant emotional deterioration following visits.
* It is common for a victim to recant disclosures of sexual abuse some time later, and even more so in cases where she has continued to have unsupervised contact with the suspected perpetrator.
Incest perpetrators are known to control and intimidate the victim in various ways following a disclosure; commonly reported tactics include threatening to harm the child or actually doing so, telling the child that he will go to jail if she doesn't recant, threatening to harm the mother, telling the child that she will never get to see him (the father) again if she doesn't recant, promising her purchases, vacations, or other rewards in return for recanting, and promising her that the abuse will stop in return for recanting. Obviously the more extensive access the suspected perpetrator has to the child through visitation, phone calls, texting, and email, or if the child is continuing to live with him, the greater the risk of a forced recantation.
* The suspected perpetrator will make angry, outraged, and hurt-sounding denials in close to 100% of cases. A correctly-accused perpetrator will be very difficult to distinguish by his public behavior, including his behavior at court, from one who is false accused. The perpetrator is often a respected and successful member of the community.
Courts have to rely on the evidence, not on how the suspect presents himself or what his public reputation is like.
* Incest perpetration is almost always surrounded by a other behaviors by the man that violate the child's boundaries in subtler, less overtly illegal, ways. These behaviors usually begin well before the outright sexual abuse begins, and then continue along side it.
Courts sometimes make the mistake of discounting evidence of boundary violations toward a child "because they don't rise to the level of sexual abuse." Such boundary violations need to be taken seriously always, but in a case where there are other indications of sexual abuse -- such as a child's disclosure, for example -- such lower level boundary violations should be treated as evidence pointing to the likelihood that the outright sexual abuse being disclosed did in fact take place.
* It is virtually unheard of for children younger than teenagers to make up reports of sexual abuse, and even in teenagers it is very rare.
Mistaken reports of sexual abuse do not come from children making them up. They come from one of the following sources: 1) A statement by the child that was misinterpreted by adults; 2) The child having been manipulated or intimidated into making the false allegation. Proper unbiased investigation makes it possible to find out if one of these two is functioning in a case.
* Most sexual abuse allegations that are brought to the attention of family courts are brought in good faith, not as a "tactic."
Every large-sample study that has been done has found that true reports of sexual abuse are substantially more common than mistaken ones even when they occur in the context of child custody litigation. Further, the research has found that even most mistaken allegations are brought in good faith, meaning that the parent heard a disclosure or witnessed behaviors that would have worried most responsible parents. And finally, the research shows that sexual abuse allegations that are deliberately false are made equally by fathers and mothers; there is no basis for the belief that women are especially likely to make a false sexual abuse report during litigation.
* Domestic violence perpetrators (specifically, men who batter women), have been found in study after study to commit a far higher rate of incest than non-battering men do.
You can read a review of many studies on the subject in Chapter 4 of my book The Batterer as Parent. When there is persuasive evidence of a history of domestic violence, courts should make sure to investigate sexual abuse disclosures, and reports of lower level (not illegal) boundary violations, by that father with even more care and diligence.
* When a child discloses sexual abuse to a parent (by anyone), the parent needs to believe the child and take every possible step to protect her.
It may seem odd that I have to say this, but it is regrettably common for mothers in family courts to be criticized for believing the child, particularly if other systems such as child protection or the family court have declared that they cannot find enough evidence to restrict the father's visitation. If a mother persists in believing her child, and tries to explain the different ways in which systems failed to make a properly thorough and unbiased investigation, she may have various negative labels attached to her by court personnel or may be threatened with having the child removed from her even if any other responsible parent in her position would also remain concerned, given the facts of the case.
Everything I wrote above remains true if the child making the disclosure is a boy, by the way.
It is my fervent hope that family courts across the continent will take rapid steps to get themselves in alignment with the research and with the published accounts of survivors. A tremendous number of lives are in the balance.