In a custody court system that disbelieves 94% of typical child sexual abuse reports, in a society that allows one-quarter of its children to be sexually abused, this case still stands out.
I just got back from Costa Rica where I was supposed to testify as an expert witness to save a child from “The Penis Game” and a mother from a long prison term for trying to protect him. The Costa Rican judge let the abuser’s side use up most of the time, as they did in the original New York City case by repeating information from the flawed practices that created this situation in the first place. Then the judge told the mother’s side to hurry up their case and refused to listen to an expert who could share the research proving the findings against the mother are totally unreliable.
This should have been the easiest case to recognize the father’s sexual abuse. When he was two, the boy came back upset from visitation with his father and described sexual games the father played with him. As often happens, the boy told the person he trusts most; his mother. He was reluctant to discuss what happened with strangers from Child Protective Services who never took the time to develop a trusting relationship or send him for play therapy or other specialized investigation. It was far easier for caseworkers to dismiss the report to relieve their heavy caseload.
As time went on and authorities failed to protect the boy, the father’s abuse escalated. The boy came home talking about “The Penis Game.” This is where his father’s penis rubs against his penis. With the mother’s encouragement, the child told the caseworker and the evaluator what the father was doing. By this time, he had discussed his father’s abuse with many people so he had the “wrong” affect and the professionals focused on claims the mother was coaching him.
A benefit of play therapy is that the child can reveal whatever he needs to without realizing he is doing so. Revealing what is happening subconsciously in his play and artwork is not something that can be coached. The boy picked up the play animals in the therapist’s office and started looking for their penises. This led to a discussion with the therapist and his reports of his father’s abuse. The evaluator dismissed the revelations because the mother was present in the office and the therapist used leading questions, but none of this was true about his play with the animals.
The most inconvenient facts that undermined the findings of the unqualified professionals occurred when he was three. While the mother was at an appointment, the boy was playing with a close friend, also three, in the friend’s home. The boy closed the door and convinced his friend to take off his clothes. When the friend’s mother opened the door and interrupted their play, the boy’s penis was sore from trying to push it up his friend’s bottom and he had peed all over his friend’s back. The evaluator who claimed to be an expert in child sexual abuse dismissed this extreme behavior as “playing doctor.” The boy’s teacher needed to keep the boy near her because he kept trying to take other boys to private areas for sex games.
The professionals ignored this smoking gun and focused on less important ,often false, facts and theories. There was no dispute about the boy’s play with his friend. Any genuine expert would have known the mother could not have coached a three-year-old to engage in such behavior. There is no benign explanation for such extreme behavior. The father was the only possible source for this behavior and the boy repeatedly stated it was the father who abused him.
Failure to Use Best Practices or Current Scientific Research
In the 1970s when domestic violence first became a public issue no research was available. Family courts developed practices to respond to abuse based on popular assumptions that turned out to be wrong. Courts used mental health professionals based on mistaken assumptions that domestic violence was caused by mental illness or substance abuse. These professionals do not have the needed specialized knowledge of domestic violence and child sexual abuse. This has led to standard practices that pathologize victims and routinely disbelieve true reports of abuse. Judges and lawyers have heard the misinformation throughout their careers, so it is deeply ingrained. We now have substantial scientific research from highly credible sources, but the courts have been hostile and defensive about creating the reforms necessary to protect children.
The ACE (Adverse Childhood Experiences) Studies are medical research from the Centers for Disease Control and Prevention. They are used for medical treatment and public policy, but Dr. Vincent Felitti, the lead author of the original study believes prevention is its most important use.
The fundamental finding is that children exposed to domestic violence and child abuse will live shorter lives and suffer a lifetime of health and social problems. Most of the damage comes not from the immediate physical injuries courts focus on, but living with the fear and stress that causes a lifetime of harm. This means common court practices requiring victims to “get over it” have no chance of success as the court cannot remove the fear and stress of forcing an abused child to interact with their abuser. The child expressed his fear of the father but the unqualified court professionals ignored the risks.
The ACE Research provides the definitive answer to the frequency of child sexual abuse in the United States. Using methodology that eliminates false reporting, ACE found that 22% of the patients said they were sexually abused as children. Surely some victims may be too embarrassed to reveal the abuse even in a confidential study, so it is likely that one-quarter of our children are sexually abused. Practices focusing only on sexual abuse of children by strangers, reunification instead of prosecution for incest and promote the myth that false reports are common contribute to our poor response. The flawed practices used in family courts significantly contributes to society’s failure to protect our children.
The Saunders Study is research about the domestic violence knowledge of judges, lawyers and especially evaluators. The Study comes from the National Institute of Justice in the US Justice Department. Saunders found that court professionals need very specific knowledge. Most court professionals do not have the necessary expertise, and those without this knowledge tend to focus on the myth that mothers frequently make false reports, unscientific alienation theories and the assumption that mothers trying to protect children from dangerous abusers are actually harming the children.
These mistaken approaches that were used in the Costa Rican case lead to decisions that place children in jeopardy. The Saunders research supports the use of a more multi-disciplinary approach that would include domestic violence and child sexual abuse experts. Today we have the worst of all worlds; professionals without the needed knowledge but who believe they are experts so they confidently keep making the same mistakes that destroy children’s lives. When professionals like the ones in this case focus on the mistaken beliefs they are providing more information about their lack of knowledge than the circumstances in the case.
Forty states, including New York where the case originated, have created court-sponsored gender bias committees. The research occurred over four decades with a variety of methodology but all found widespread bias against women. In New York, the Committee on Women in the Courts found that typical examples of gender bias included holding women to higher standards of proof, giving women less credibility and holding mothers responsible for their normal reactions to the fathers’ abuse. Gender bias is difficult to overcome because it is usually unintentional, but any complaint causes defensiveness. The courts have not responded to this research with reforms or improved training, so these common examples permeate the New York courts. The research indicates the courts were getting a high percentage of abuse cases catastrophically wrong. Studies about child murders related to contested custody found that over 650 children were murdered in the last ten years. Most were killed by abusive fathers and in many cases the courts provided the access the murderer needed.
A follow-up study by Dr. Dianne Bartlow found that the courts did not create any reforms in response to the tragedy in their community because they assumed the local murder was an exception. This helps explain why the flawed practices have continued so long. A study by Dr. Joy Silberg for the Leadership Council found that 58,000 children are sent for custody or unprotected visitation with dangerous abusers every year.
The National Institute of Justice gave a grant to Professor Joan Meier to obtain definitive information about the effects of the flawed practices in custody courts. The final study has yet to be released, but last year Professor Meier published an article based on the findings from the pilot study. The research involved reviewing appellate cases involving reports of domestic violence, child abuse and alienation.
Typically, when mothers report abuse, fathers use the tactic of claiming alienation. Although mothers involved in contested custody make deliberate false reports less than 2% of the time, when courts believe the alienation tactic, alleged abusive fathers win about 70% of the abuse cases and courts disbelieve 94% of child sexual abuse reports. This means in a large majority of abuse cases the courts are sending children to live with rapists and abusers. Another study by Neustein and Lesher found alleged abusive fathers win custody 85% of the time in child sexual abuse cases.
In recent years we have seen campaigns and reforms that responded to sexual assault on campus; sexual assault in the military, sexual harassment and the #metoo movement. All of these are important. Those of us working in the movements against child abuse and on behalf of protective mothers have long wondered when it will be our turn. How can this country ignore the definitive proof that one-quarter of our children are being sexually abused? How can the family courts close their eyes and respond defensively in light of the murder statistics and research demonstrating they are getting most abuse cases dangerously wrong?
What is a mother supposed to do when told to send her child to be sexually assaulted? The authorities would like to say that the one thing she can’t do is run away to protect her child. These authorities must first create reforms to prevent outrageous decisions that jeopardize children. They can start by erring on the side of health and safety of children instead of erring on the side of keeping even abusive fathers in children’s lives. They must focus on safe parenting instead of equal parenting.
The mother fled to Costa Rica with her son because she reasonably believed it was the only way to protect him. The court professionals in her case added a bunch of absurd claims after she left in order to defend their earlier egregious mistakes. They want to pretend she disrupted her entire life and moved to a place where she had no friends or family just because she wanted to hurt the father.
As I write this, we don’t know what the judge in Costa Rica will decide or if an appeal might consider all the information. We don’t know what the asylum petition will bring. I cannot stand the idea that there is a good chance the boy could be returned to resume “The Penis Games” or that the mother could be jailed for trying to protect her son. I can’t stand that the United States permits one-quarter of our children to be sexually abused and the courts contribute this by disbelieving almost all reports of child sexual abuse.
I once appeared on a television show in which I was asked what kind of attorney I was. I told the truth. I said I was the worst attorney in the history of the world and I knew this because I kept losing cases in which the evidence overwhelmingly supported my clients. I know I need help saving this mother and child and all the children.
We need to get this article to people who can create the needed change. We need to do more than just post on Facebook, although that is a start. We need to get this article to legislators, court administrators, child protective agencies, state administrative officials, reporters, law enforcement officials, anyone who might be able to lead the way for needed change, and the Ambassador from Costa Rica.
Safe parenting does not include “The Penis Game”. Mothers are not crazy because they don’t want their sons playing “The Penis Game”. It is crazy that courts are relying on “experts” who could possibly disbelieve a child like this. It is crazy that preventing child sexual abuse in not one of our leading priorities. Please help me find the heroes who will change this.
You can reach Ambassador Fernando Llorca Castro on Twitter @FLlorK or on LinkedIn: linkedin.com/in/fernandollorcacastro
Domestic Violence Writer, Speaker, and Advocate
Barry Goldstein is one of the leading domestic violence authors, speakers, advocates, and a frequent expert witness.