Rocky Mountain Skeptics
(from the Rocky Mountain Skeptic, Sept. 1995)
The status of the practice of facilitated communication (FC) in the U.S. has to some extent been reflected in the courts, where the subject has arisen in both civil and criminal proceedings. In particular, communications elicited via FC have been used as the basis for allegations of physical or sexual abuse by a parent or caretaker. Although the very real problem of the sexual abuse of children should not be taken lightly (and by no means does this article intend to do so), the seriousness of the accusation and the devastating consequences for the accused - guilty or not - demands that the evidence for the charge be thoroughly and careful examined.
Such statements allegedly communicated by mentally disabled, nonverbal children through the use of FC have in some cases led to court proceedings where the scientific or factual basis for FC has come under scrutiny, with varied and inconsistent results. The controversy hinges on the identity of the real source of the communication - the child or the facilitator - and whether such children are indeed capable of communicating in this fashion.
FC was developed in Australia in the 1970's and imported to the U.S. in the late 1980's by Dr. Douglas Biklen, who eventually became associated with Syracuse University in New York. There Dr. Biklen established a following, with the result that New York appears, at least at this time, to be the state where FC is most widely practiced. Not surprisingly, most of the published legal caselaw addressing FC has come out of New York.
The first case published on this subject arose out of one of New York's Family Courts: Matter of Jenny S. v. Mark S., 156 Misc.2d 393, 593 N.Y.S.2d 142 (Fam.Ct. 1992). A 16-year-old autistic girl attending a special school allegedly told her teachers, through FC, that she had been sexually abused by her father. The girl was subsequently removed from her parents' custody. In her written opinion, the judge presiding over this case framed the issue: "The question before the Court is simple - have we heard the frantic cry of a child? The answer is far from simple." The court attempted to examine this question in seven days of testimony from eleven expert witnesses. Dr. Biklen did not directly participate in this case.
One of the first issues for the court to address in this case was the applicability of the "Frye Rule." The Frye Rule is a standard applied to the admissibility of scientific evidence which harkens back to a 1923 federal case out of Washington D.C. Briefly, the rule states that scientific evidence or testimony will be admitted at trial if the procedures and results of the subject methodology are generally accepted as reliable and valid by the scientific community. The community's assessment need not be unanimous, but a court must be satisfied that the method has reached a point of general acceptance. The question is thus posed: is FC a generally accepted as a technique which is capable of producing reliable results?
The petitioners in this case, the child's representatives, asserted that the Frye Rule need not apply because the technique is analogous to the use of a foreign language or sign language translator. In other words, a statement from one person (the autistic child) is merely being transmitted to another by the use of a facilitator. The petitioners conceded that facilitators "are specifically required to assume competence of the child or adult being facilitated." (Earlier it its opinion, the court noted that FC was initially developed to assist persons with cerebral palsy, who have normal cognitive abilities but often have poor motor and speech control, preventing them from writing and speaking effectively.) However, the court indicated that "the issue is not the admissibility of scientific evidence to assist the court in determining the . . . validity of a witness' statement but rather whether in fact a statement exists at all" (emphasis added). The court therefore proceeded to apply the Frye Rule and concluded that, at that point in time, the status of FC was somewhere between experimental and demonstrable.
Experts on both sides acknowledged that serious scientific studies were lacking. The court further concluded that FC had not attained the reliability or validity required by Frye. Therefore, the child's statement would be excluded from evidence. The petitioners dropped their case and custody was returned to the parents. The father, Mark Storch, later sued Syracuse University and Dr. Biklen (see the last case discussed below). The court regretted its decision but implored FC advocates to do proper studies of the technique.
The next case in this series, Matter of M.Z., 155 Misc.2d 564, 590 N.Y.S.2d 390 (Fam.Ct. 1992), provided rather sketchy facts, but it involved a purported accusation of sexual abuse made by a 10-year-old with Down's Syndrome, elicited by FC. This decision arose out of a motion by the respondents in this case to preclude evidence obtained through the use of FC. Again, the Frye Rule was used as the standard against which the "evidence" would be evaluated. The burden was on the petitioners - those representing the child - to present sufficient proof that FC was generally accepted and considered reliable by the sc ientific community.
To assess its validity, the court asked whether FC measures what is it supposed to measure. Four experts, including Dr. Biklen, testified as to the efficacy of FC. Much of the testimony concerned the role and training of the facilitator. At that time, and perhaps even today, there was no requirement to certify the skills of facilitators, and most of the evidence submitted was anecdotal. One of the experts, a speech pathologist, stated that "You know you're not doing it right if you don't get results." [The possibility that a child is simply unable to communicate in this fashion -or at all- is apparently not considered.] The court in this case did not admit the evidence obtained as a result of FC, stating that "[Experts] did not present any coherent theory as to the underlying principle" involved in FC, and that there was insufficient proof of its general acceptance and reliability. As with the previous case discussed, the court urged that there be more controlled research on FC.
The next New York case led to a different conclusion. In Matter of Luz P., 190 A.D.2d 274, 595 N.Y.S.2d 541 (1993), an 11-year-old autistic and retarded girl, through FC, alleged sexual abuse by her parents. The state appellate court held what has come to be known as a "Frye hearing" on the admissibility of FC. In a ruling which diverged from the previous cases, the court held that FC was analogous to a mere translation of words such as that which occurs when using a language translator, and no scientific evidence is required to support the use of a language translator in court. The case was remanded back to the trial court, which proceeded to try this case using the FC evidence. However, the appellate court directed that the trial court be "satisfied" that the source of the child's testimony was from the child and not the facilitator. The trial court, in concluding its case, found that the child's statements would not be admitted into evidence after tests were conducted which questioned the reliability of FC as used in this case.
In a 1993 New York criminal case, People v. Webb, 597 N.Y.S.2d 565 (Co.Ct. 1993), the court addressed the use of FC in obtaining testimony in a Grand Jury proceeding. Because of the secrecy of Grand Jury proceedings, attorneys for the defendant alleged that it would be "error" for the facilitator to be present in the room during the testimony from the child, even though the facilitator was required to wear headphones through which "white noise" was transmitted. The court distinguished this case from the earlier Family Court decisions because it involved live testimony before the Grand Jury. It opined that the process of FC does not involve "interpretation" by a third party, but is just a new form of language interpretation. The facilitator had been sworn to assist the witness and not change the testimony. Further, the court held that it was the function of the Grand Jury to assess the credibility of the witness' testimony, and so it should be heard. However, the court did order that the judge presiding over the subsequent trial should hold a special hearing on the efficacy of FC.
Moving into 1994, in what has become a familiar scenario, a 14-year-old autistic girl alleged, through FC, that she had been sexually abused by her father. The child was removed from her parents' custody. In Matter of Jennie E.E., 620 N.Y.S.2d 550 (A.D.3 Dept. 1994), an appellate court dismissed the appeal from the lower court decision which refused to admit testimony elicited from FC because it failed to meet the standards established for the admissibility of scientific evidence. The dismissal of the appeal affirmed the trial court's decision, which was consistent with some of the earlier Family Court opinions.
In the only federal court case to date involving these issues, the consequences of using FC received a new twist. In Callahan v, Lancaster-Lebanon Intermediate Unit 13, 880 F.Supp. 319 (E.D.Pa. 1994), a child alleged, through FC, that his father had sexually abused him. Custody of the child was removed from the parents. Although custody was eventually reinstated, the father sued the local school/social services district, alleging that removal of his son under these circumstances (i.e., relying on FC evidence) was a violation of the federal Civil Rights Act. More specifically, were the parents' due process rights violated by removal of the child without inquiry into the use of FC as reliable and valid? Other pertinent facts: the child was 16-years-old, nonverbal, diagnosed with autism and retardation. In the course of using FC with "Michael," one teacher came to believe that he was revealing information about sexual abuse. Work with a second facilitator confirmed this suspicion. Also, the court noted that other teachers at the facility had received reports of sexual abuse from other students via FC. The court in this case did not address directly the efficacy of FC but did acknowledge that it was under "strong criticism" from the scientific community. Again, the issue was whether reliance on FC by school personnel and social workers, in reporting the suspected abuse, was a violation of the parents' due process rights. Essentially, the court said no, citing a litany of other cases (not involving FC) where social workers or other state employees received qualified immunity when removing a child from parental custody, even where the evidence was sketchy or preliminary. It boiled down to balancing the state's interest in protecting children vs. the rights of parents. In cases of suspected abuse, states tend to "err" in favor of protecting the children by removing them (pending further proceedings), and courts have generally upheld this practice.
Closer to home, the Kansas State Supreme Court recently tackled FC in State v. Warden, 891 P.2d 1086 (Kan. 1995). A child diagnosed with autism and retardation, "J.K.," was a resident in a state institution. In 1992 teachers there began using FC, and J. K. allegedly communicated that he had been sexually abused by one of his caretakers. The man was arrested, and in the course of his trial the controversy over the use of FC arose. (Mr. Warden twice confessed to having inappropriately touched the child, but later recanted.) The court's rather lengthy opinion in this case delved deeply into FC. It appears to be the only case published to date which includes transcripts of the child's actual typed testimony, and might be an interesting read to those of you who wish to observe what the results of FC can look like. The court acknowledged that FC is not widely accepted in the scientific community, and described in some detail recent studies of FC. It noted that FC relies on the assumption "that there is an undetected literacy already present in persons with autism, though this . . . has not been confirmed by scientific methodology."
The court also focused on Dr. Biklen's research and theory, and also his recommendations as to protocols for use in dealing with suspected sexual abuse. For example: allow the speaker ( the person being facilitated) to make long responses and do not ask many yes/no questions; use more than one facilitator, and require that the facilitator either not look at the keyboard or wear headphones to avoid hearing the questions put to the subject. In this case, almost none of these protocols were used, and the child was never physically examined for signs of the alleged abuse.
The Kansas Supreme Court also noted that the trial court had held a "Frye hearing" which found that FC was not generally accepted as reliable. However, in citing some of the earlier New York cases, the Supreme Court held that statements produced through FC are not subject to Frye because FC is merely a new method of transmitting communication, requiring no scientific validation. The facilitator only "assists" and does not "interpret." Further, it is up to the jury to decide the competency and reliabilit y of the evidence. Only the actual letters typed by J.K. were admitted for the jury's consideration. The court did however recommend that a witness such as J.K. be subjected to various tests to determine that he is competent to testify, and that the trial court take steps to reduce possible cueing by the facilitator.
Finally, the most recent case on this matter relates back to the first one discussed above, Matter of Jenny S. v. Mark S. In this 1995 case, Storch v. Syracuse University 629 N.Y.S2d 958 (Sup.Ct. 1995), the father of Jenny S. sued the University and Doug las Biklen for various civil rights violations, malicious prosecution, fraud and malpractice. The basis of these claims is that FC is essentially a fraud and a hoax, that the University and Dr. Biklen knew or should have known that it had no efficacy, and that Mark Storch and others have been harmed by the dissemination and/or advocacy of FC by the defendants. The New York court dismissed the plaintiffs' case, basically finding that advocating a controversial theory does not impose a specific duty or liability on the advocates vis-à-vis the plaintiffs' rights. It observed that the data on FC was quite limited in 1990-91, and even Dr. Biklen in various writings had conceded that the method was controversial and from time to time demonstrated problematic "cueing" by the facilitators. The court concluded that there was no attempt by the defendants to perpetrate and/or conceal a deliberate fraud and, as a matter of law, declined to determine whether FC was indeed a hoax, tossing that ball back into the court of researchers and the lower courts.
In summary, the jury is still out on how FC is to be treated as the source of evidence in a court proceeding. The law will continue to develop as serious studies of FC are completed and collected. Until a sufficient body of scientific evidence is established - and that body is now growing - courts will likely continue to convey divergent opinions on the subject. Meanwhile, in cases involving the very serious and devastating charge of sexual abuse, the futures of both the accused and the accusers hang in the balance. -Becky Greben
Becky is a paralegal and a member of the Board of Directors of The Rocky Mountain Skeptics. She heads up the legal special interest group (legSIG) for RMS.
Last updated: 12/09/98
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Copyright Rocky Mountain Skeptics (RMS), 1998.