(WOMENSENEWS)–The persistent controversies over what exactly happens in family courts, especially in contested cases involving allegations of sexual abuse, are lacking in clarity often because accusations that can not be proven are often deemed “false” or “fictitious.” That doesn’t mean the person who makes the claims is lying.

In fact, they might be unsupported by sufficient evidence, but they could be true. They might be a good-faith but erroneous misperception. Often, it is impossible to determine whether abuse has taken place.

The scrupulous use of precise terminology is crucial to the fairness of the proceedings and to evaluating claims, but there is no one lexicon for all family courts in all states.

Further, the cases become even more confusing because many in the legal system believe that an accusation must be either true or false, rather than provable or not-provable, according to the National Judicial Education Program of the NOW Legal Defense and Education Fund, the American Bar Association and the Center on Children and the Law. (Women’s Enews is a media project of NOW Legal Defense.)

Researchers and writers in the field have used and interpreted the terms “false,” “fictitious,” “non-valid,” “untrue,” “unsubstantiated” and “unfounded” to cover a range of situations that involve one or more of the following: insufficient evidence; mistaken but good-faith misperceptions; fishing expeditions and deliberate fabrications.

In addition, social service agencies use the term “unsubstantiated” to cover a range of situations in which the agency is unable to confirm or make a finding of abuse.

In fact, many articles and reports about “false” allegations are mistakenly cited as studies of fabrication rates.

The most difficult and potentially misleading case to describe is one in which no sexual violence is found. And the four terms–insufficient evidence, mistaken but good-faith misperceptions, fishing expeditions and deliberate fabrications–can be used to clarify the lexicon and to frame questions in order to distill the best information.

“Insufficient evidence” denotes cases in which there is not enough evidence to reach a conclusive finding of abuse or no abuse. Child sexual abuse cases in a custody/visitation context often involve very young children who are unable to articulate what did or did not happen to them. Often there is no medical evidence because some acts, like fondling and oral sex, leave no physical traces. Even injuries from penetration heal very quickly in young children. With so little evidence, it is difficult or impossible to determine whether an accusation is, or is not, founded.

“Mistaken but good-faith misperceptions” can result from a range of circumstances not related to child sexual abuse, including misperceptions about a child’s behavior, non-sexual contact, an ambiguous statement from a very young child or a psychiatric disturbance of the parent or the child.

“Fishing expedition” refers to the situation in which a parent hopes to find that abuse has occurred. The parent is selfishly caught up in his or her own needs and is motivated not by concern for the child’s well-being, but by the need to shut out the other parent and the other parent’s family from the child’s life. The parent on a fishing expedition acts in bad faith and often takes his or her child from therapist to therapist until one provides professional confirmation of the parent’s hope. Unlike a parent who deliberately fabricates, however, a parent on a fishing expedition is not lying about abuse occurring. Rather, the parent persistently seeks proof of abuse. In addition to parents, therapists and attorneys also can be on fishing expeditions.

“Fabricated allegations” are consciously and deliberately contrived to gain a more favorable custody or visitation placement for the accuser or to hurt an ex-spouse. Unlike most of the child sexual abuse literature, which uses “false” or “fictitious” with little or no definition, this terminology uses the term “fabricated” to indicate only those cases in which an allegation is deliberately contrived by an adult or child to hurt the accused parent or to benefit the accusing parent. “Fabricated” is not a blanket term for all sexual abuse allegations that are not confirmed.

Avoiding the Fallacy of Binary Thinking, True-False, Either-Or

It is essential to differentiate cases with insufficient evidence, mistaken allegations or fishing expeditions from those that involve deliberate fabrications. Keeping these distinctions in mind is difficult because the legal system imposes a true-false way of thinking, leaving little room for gray.

The true-false model is not useful in custody disputes where, unlike the guilty-not guilty framework of criminal sexual abuse cases, the goal of the legal inquiry is to establish the best interests of the child. This true-false model also is not useful for sorting out child sexual abuse allegations because it often is not possible to know whether abuse occurred. The parent who makes an allegation with insufficient evidence or a mistaken but good-faith allegation should not be lumped together with the malicious parent who deliberately fabricates an allegation.

Adapted from “Adjudicating Allegations of Child Sexual Abuse When Custody Is in Dispute,” a facilitators manual created by the National Judicial Education Program, the American Bar Association and the Center on Children and the Law, funded by the State Justice Institute.

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