VOICES FOR PSYCHOLOGICALLY INJURED CHILDREN: PSYCHOANALYTIC TESTIMONY DURING CIVIL LITIGATION HELPS BRING SOCIAL CHANGE, SETTLEMENTS AND JURY AWARDS
The author draws on his experience in the field of psychoanalysis
and forensic child psychiatry
, in over 200 separate cases, most of them civil, many with multiple victims. About 70% were requested by child plaintiffs' attorneys, 30% by defense attorneys. Child psychoanalytic testimony, because of its depth and scope, can make major contributions to the civil justice system and can lead to just compensation for child plaintiffs. Attorneys can strategically use such testimony to favorably influence child institutional practices and standards of care. Psychoanalytic testimony, when requested by a skilled attorney and carefully integrated with that attorney's professional tasks and skills, can lead to more thorough and knowledgeable compensation for injured children than occurs with superficial approaches to psychological pathology, prognosis and care. Governmental and private institutions are then more likely to be required by courts and juries to pay appropriate rather than token compensation for negligence in allowing children to be traumatized in life-damaging ways. Despite important failures, the cumulative impact of psychoanalytic participation in forensic endeavor helps motivate social change. When major compensation is given traumatized children and the negligent or abusive parties are held financially responsible, child protection standards improve. To illustrate the measurable significance which the judicial system gives to psychoanalytically informed evaluations and testimony, plaintiff children's cases are discussed. Among those cases, the author's reports and testimony helped attorneys win awards and settlements for children totaling over a quarter billion dollars.
The legal system and juries customarily weigh evidence more regularly than the psychoanalytic
profession. Attorneys, mediators, judges and juries measure personal injury damages in quantifiable ways, and the legal system compensates injured and disabled persons in the measurable form of money. As psychoanalysts we have powerful voices to contribute to the process, if we are careful in collaborating with excellent attorneys and use high standards in preparing evidence and organizing testimony. This essay is an effort to reflect on what has worked best so far in an ongoing career of thirty years in forensic child psychiatry. As a psychoanalytic child psychiatrist
, with my staff's help, I often succeed in helping mediators, attorneys, judges and juries conclude that the evidence presented through my testimony concerning a child's injury was well founded. Many of the verdicts and settlements had socially significant impact leading to detectible favorable changes regarding children's safety in governmental, social and religious organizations and systems. A readily measurable outcome is that monetary awards for parties we whom we provided evaluations and testimony totaled over a $260,000,000. As an expert, I found that most of the major successful cases depended on good teamness between attorney and expert. There is probably a positive cycling effect at work among cases in which psychoanalysts are involved. Previously highly effective attorneys are the ones most likely to choose effective experts. Thus the chosen expert is also in the position of being well prepared with the help of the already experienced retaining attorney, and being provided with all the necessary documents and evidence, and given enough time and collaboration from the attorney himself or his or her office staff for the expert to prepare a thorough and convincing presentation. My impression is that time spent by the attorney and expert together has a positive correlation with outcome. The more the two work together the more they make a team in court. They must literally show mutual knowledge of each other's findings and evidence, and a good understanding of each other's roles. Juries may have no patience with a team of illprepared or uncoordinated attorneys and experts. Further, the expert whom the attorney has prepared adequately is less vulnerable at cross-examination.
Our child psychoanalytic consultation has resulted in most cases being considered won by the retaining side. Only five of over 200 cases have resulted in adverse decisions. Several of those adverse decisions were based not on the clinical merits of the case for damages but rather on liability matters concerning who was responsible.
Examples of Societal Impact
Jury and settlement awards, if large enough to punish and cause attention, have a striking effect on future behavior, particularly of corporations, agencies, church administrations and governments. Some of our cases have involved very high intensity of press attention, particularly concerning priests who sexually molest and church administrations which fail to protect children. Thus, the examples which follow concern neglect of children in institutions, particularly what occurred at the OK Boys Ranch, Three Springs Residential Treatment Center, and the Roman Catholic Diocese of Dallas. Responses of juries in the civil cases were powerful punishments and incentives for institutional improvements. In other cases (below) my psychoanalytic testimony helped establish legal precedents in two states for using clinical and scientific evidence concerning the effects of loss of parental services.
Standards of Residential Care for Delinquent Adolescents: Does vs. OK Boys Ranch, The Kiwanis and the State of Washington.
This Washington State case involved teen-age boys living in an institutional environment. I found evidence showing children's lives at the OK Boys Ranch resembled Golding's (1954) novel, The Lord of the Flies. The novel, like this institutional negligence case, centers on how children's impulse controls and superego processes deteriorate in the absence of adult supervision. At the OK Boys Ranch, delinquent boys as young as eleven and as old as seventeen were allowed to batter, as well as anally and orally rape each other. We used the facility's behavioral logs to give documentary evidence and obtained depositions showing the staff was aware of rapes, beatings and intimidations. They had mad clinical notes of numerous such events, and responded as counselors to the complaining victims. Staff told boys that the rapes were ?normal adolescent behavior,? thus permitting and ratifying the wrongdoings. Great harm resulted to many minors. At the OK Boys Ranch what little reporting of sexual assaults there was to protective services was poorly followed up. Further, the repeated complaints of State licensors and auditors concerning violations of supervisory standards at the Ranch had been ineffectual for over a decade. Thus not only the Ranch but also the State was sued.
The societal impact of the 52 OK Boys Ranch victims' cases in which I have been involved seems substantial. First, nothing else had closed the Ranch until the civil suits started to give promise of succeeding in a major and well-publicized way. Those suits depended heavily on my psychoanalytically informed testimony. I extensively interviewed each child concerning details of the assaults and psychological consequences, and videotaped the interviews. Earlier childhood histories (usually including many vulnerabilities due to prior traumatization and documented psychiatric disorders) were articulated in my written opinions and depositions. I carefully reviewed the facility's behavioral logs. Together with much of the assembled evidence assembled, the logs gave me a foundation for an opinion that the sexual assaults of the boys on each other were generally foreseeable, preventable, and harmful to the boys. In each child's case there had been a loss of much-needed residential therapeutic opportunity, linkage of
therapeutic milieu with trauma, and accumulation of trauma through preventable victimization. Each child's personality development was harmed during the passage of several epochs. Because I am a child psychoanalyst factors involved in my testimony included extensive use of psychoanalytic literature, especially societal influences on personality formation, the superego and the ego ideal, and the opportunity for constructively reworking the Oedipus complex during adolescence (Bos 1979, Erikson, 1959). In one case a child who was allowed to be a frequent perpetrator was considered by his attorney, and by me, to be a victim of corrupt adult permission giving and turning a blind eye to his known assaultive behavior.
The litigation had several phases, spanned over seven years and involved 52 children. During the course of this widely publicized case, the State of Washington responded constructively by creating a more responsive and autonomous intermediary to protect the civil rights of children in state-licensed or stateconducted care. The Office of the Family and Children's Ombudsman is now required by state law to research child abuse in State controlled care. A booklet was created and distributed to all children over age 12 in state-licensed care, describing their rights and access to Ombudsman services. The OK Boys Ranch was finally closed, and several state officials chose or were required to leave employment. The children were compensated in every case, totaling over fifty million dollars. We thus believe there have been widespread favorable impacts on safety of children within Washington state institutions and agencies caring for children.
A secondary important issue was the failure of therapists who knew of the complaints of rapes and were treating some of the children, to call protective services to report and prevent further rapes of their clients and other children. This issue, also, resulted in favorable major (but confidential) settlements for the child victims.
Videotaping my interviews with each boy gave me the opportunity to return during later phases of the litigation to what I had seen earlier. The interval was as long as six years for some children. I used the old tapes in new phases of the litigation, re-interviewing and compare my later findings with previously noted conditions of the same children. Using Axis V of DSM-IV (American Psychiatric Association), we were able to form serial GAF (Global Assessment of Function) scores showing that many of the children were continuing to deteriorate, as well as having chronic PTSD. We used Khan's (1963) concept of cumulative trauma and relevant adult psychiatric literature concerning how chronicity is commonly found among traumatized veterans many years after the initial diagnosis of PTSD.
This case had other features of scientific and legal interest. One was quite unexpected, in that we learned that an attorney behaved in a wrongful fashion, mirroring his institutional client in a certain deceptive way. This discovery came about partly because of my psychoanalytic emphasis on attention to detail. Aiming for thoroughness, I had staff perform collateral interviews when I could not do so with parents and foster parents, perform standardized psychological testing, review and make timelines of literally tens of thousands of pages of documents about the earlier childhoods of the children ? many of whom were the subject of much narrative recording within social service logs. This resulting paperwork preoccupied one defense attorney strangely. He literally spent days deposing me about clerical matters. I noted a persistent tendency on the part of this attorney to projectively attribute unwarranted blame onto me concerning whether my own rather systematic records were in good order. At my first opportunity during the deposition, I offered an opinion that something was troubling the deposing attorney. I thought it concerned not my documents but rather a great concern about the adequacy of the submission to me of his own institution's behavioral documents. This psychoanalytically derived clue helped the already alert plaintiff's attorney, who was ultimately able to prove that 20,000 pages of institutional behavioral daily log documents had been wrongfully withheld during discovery by that same defense attorney. In addition the deposing attorney also had an ethical conflict as he was a former member of the defending institution's Board of Directors. He ultimately was penalized $160,000 as a disciplinary action by a court which reviewed the matter.
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