Psychological expertise in criminal cases involving sexual abuse

Theoretical Aspects

Conducting psychological expertise is a link that ensures establishing the circumstances of legal importance with objective content, based on which a correct qualification of the legal event can be made, thus respecting the subject's rights. In modern judicial systems, judicial psychological expertise is a necessity that can adjust and advise analytically what in today's legal literature we call the judge's intimate conviction or the magistrate's conscience. Global evolution and the need to use scientific tools and experts in specialized fields, in situations of rigorous and experienced approach, supplemented by certification of competencies, can lead to a modern, transparent, and flexible act of justice. N. Mitrofan gives the following definition of the notion: "psychological expertise is a complex set of actions of analysis, investigation, and psychological measurement of the human individual, aiming to highlight the specific characteristics of their psychometric profile."

Currently, one of the dramatic problems of contemporary society is the increase in juvenile crime, as well as the number of minor victims (Luca, 2014). The participation of the child in the criminal process presupposes a series of roles in which they can find themselves, rights and obligations that may incumbent upon them, one of the most important aspects referring to the expertise of the child victim of a crime (Luca, 2014). Although of major importance for the subsequent course of the criminal process, the expertise of the minor victim of a crime is not expressly regulated by procedural penal norms. However, there are relevant aspects that differentiate the victim from the perpetrator, and moreover, the adult from the minor.
Abuse involves the engagement of a child or adolescent minor, dependent and immature from the perspective of psychosexual development, in sexual activities they are unable to understand, which are inappropriate for their age or psychosexual development, sexual activities they undergo being constrained by violence or seduction or any that transgress social taboos related to family roles; these activities usually involve physical contact, with or without sexual penetration. Sexual molestation, exposing the child to insults or language with sexual connotations, touching the child in erogenous zones with the hand or by kissing, regardless of the child's age; situations that lead to the satisfaction of the sexual needs of an adult or another child who is in a position of responsibility, power, or in a relationship of trust with the child victim; enticing or forcing the child into obscene actions; exposing the child to obscene materials or providing such materials to them; early marriage or engagement of children involving sexual relations (especially in Roma communities); genital mutilation; sexual harassment, defined for the workplace, for children working in the formal system under Law no. 53/2003 - Labor Code, with subsequent amendments and completions, referred to hereinafter as the Labor Code, or under the Civil Code. In the penal casuistry regarding crimes committed against minors, victims of abuse or mistreatment include "all forms of physical and/or emotional mistreatment, sexual abuse, neglect or negligent treatment, commercial or other exploitation, trafficking, whose consequences are actual or potential damage to the child's health, survival, development, or dignity, in the context of a relationship of responsibility, trust, or power."
Close collaboration between professionals in the legal and psychological fields is essential to ensure that the needs of sexually abused children are understood and addressed in a holistic and efficient manner. The principles enshrined by the Consultative Council of European Prosecutors in the Yerevan Declaration on Justice for Minors, drafted on the occasion of the 2010 Plenary Session, stipulate that all magistrates involved in justice for minors should "take into account the degree of maturity, vulnerability, and mental capacity of the minor, regardless of their procedural quality in relation to criminal law, as perpetrator, victim, or witness."
Psychological expertise is ordered ex officio or at the request of the criminal prosecution body / court / extrajudicial evidence on the legal basis of Article 172 of Title IV ("Evidence, means of evidence, and probative procedures") of the Code of Criminal Procedure: "for the establishment, clarification, or evaluation of facts or circumstances that are important for the discovery of the truth in the case, the opinion of an expert is necessary."
On behalf of the judicial body, difficulties are identified in the appreciation/ interpretation of the evidence, respectively the psychological evaluations (initial/detailed, comprehensive, and multidimensional, prepared by social workers/psychologists from the DGASPC) or judicial or extrajudicial psychological expertise. In the context of investigations and legal proceedings concerning such cases, psychological expertise is essential to understand and evaluate the psychological impact of abuse on the victim, to explain/justify the victim's reactions/attitude during or after the abuse, to contribute to obtaining fair justice, and to facilitate the recovery process of the victims. Psychologists can provide expertise in court, helping judges and lawyers interpret the information provided by minors during the investigation and trial, to understand the victim's ability to perceive the true dimension of the situation that transformed them in a victim, to interpret her reactions during or after the occurrence of the abuse, in relation to her mental development, to discern whether it is simulated behaviour or not regarding what she claims happened to her, and for clarification of the facts, the existence, and nature of the abuse.
In cases involving crimes of rape, sexual assault, sexual acts with a minor, mistreatment of a minor, all crimes that have a major impact on the psyche and development of the child, psychological expertise (in some cases even psychiatric, when there are indications of mental alienation) may be indispensable for the magistrate seeking to establish: either the existence of the act itself (as in the case of the offense of mistreatment of a minor, whose objective aspect requires proving "serious endangerment through measures or treatments of any kind, physical, intellectual or moral development of the minor...", or rape/sexual assault, which requires establishing the existence of sexual abuse/aggression), or clarifying the quality of the victim's consent in relation to their mental and biological age (sexual act with a minor).

Judicial authorities may request psychological expertise in cases of sexual abuse of minors to assess trauma, as sexual abuse has a significant impact on the mental and emotional health of a minor, the credibility of the minor witness, their ability to testify validly, and provide relevant information for the case. Additionally, psychological expertise can examine the degree of suggestibility of a minor and can help discern between real information and possible influences or distortions of memory and provides important information for making recommendations for therapeutic interventions or support services that may be necessary for the child following the experience of sexual abuse.