Inquisition 21
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Sex abuse
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1 | 2 | 3 | 4 | 5 | 6 | 7 | 8 | 9 | 10 | 11 | 12 | 13 | 14
Sex abuse is the latest expression of absolutism
The Australian inquiry
MISCARRIAGES OF JUSTICE IN HISTORIC CASES OF CHILD SEXUAL ABUSE- THE QUEENSLAND EXPERIENCE AND A CASE FOR A NATIONAL INQUIRY
Michael D Cox, (B.Soc.Wk.) Immediate Past President CAFSA
Past President of the AFMA
Dr. Travis Gee, MACA(Clin.), Assoc. MAPS
Director, SigmaX Consulting Pty Ltd
Research Fellow, University of Qld.
Scientific Advisor to CAFSA
30/1/2005
Executive Summary
• Part 1 introduces the idea of the moral panic which seems to have a grip on Australian society as regards paedophilia, and points towards a number of societal factors, not least of which is the propagation of nonsense about memory by segments of the mental health industry;
• Over-zealous but ill-informed individuals, in addition to the media, are fanning the flames of a witch-hunt, in which many innocent individuals are finding their lives ruined;
• Police and the justice systems are failing to recognise the role played in many false allegations of sexual abuse (especially historic ones) by ill-informed therapy.
• Part II reviews the case of the first author's daughter, and provides detailed insight into a clear case of false allegations based on:
• Freedom-of-information documents that reveal the ill-informed assumption of “repressed memories” of sexual abuse, which are interpreted by mental health professionals as indicating rape by her father, in the complete absence of positive evidence, and in the face of evidence to the contrary;
• A statement given by her when she realized the memories were false;
• Statements taken from her brother that indicate attempts to diagnose her as having “multiple personality disorder”;
• Contemporaneous notes from her father (the first author).
• Part III relates 13 additional cases taken from CAFSA archives that reflect numerous aspects of the problems we raise:
1. Police failure to carry out a fair, objective ‘best practice’ investigation;
2. The basic principle of innocent until proven guilty has not been observed;
3. Police evidence seeking was systematically skewed in favour of obtaining evidence of possible criminality, not of possible innocence (known to psychologists as ‘Confirmatory bias’) and using “trawls”;
4. Police failure to see the significance of the therapy and counselling which had taken place, failure to investigate it, or failure to preserve evidence of it. This is in contravention of the DPP guidelines re. ‘recovered memories’ with reference to regression therapies, including specifically hypnosis and EMDR;
5. No corroboration or evidence interpreted to be corroboration which is not;
6. One person’s word against another, and hearsay evidence;
7. Conflicting evidence given by witnesses;
8. Little consideration given to the defendant’s previous character;
9. Nonsensical allegations taken seriously and convictions still recorded;
10. No suspicion or rumour at the time of the alleged offence many years ago, even in small, close-knit communities .(usually many years ago);
11. Lack of recent complaint;
12. No repeat offences after the alleged offences ie. before charges are laid many years later;
13. No repeat offences on release from prison even though these people, now branded as paedophiles, despite pressure being applied refusing to participate in ‘rehabilitation’ courses while in jail, at the cost of serving longer jail time and putting up with abuse from other inmates etc.
• Part IV inquires into the social and psychological roots of the current madness.
• Therapy in historic cases is discussed, with reference to professional practice guidelines that seem to be widely ignored;
• a case of a simple malicious allegation is drawn from the literature to show how mental health professionals may leap on sexual abuse as an explanation for everything, to the detriment of the client;
• The Queensland situation is discussed, summarizing CAFSA files, of which the great majority are historic cases in which the complainant's memory has been tampered with by therapists;
• The importance of knowledge about psychology, and the absence of it in much of the legal profession as well as the police is discussed, with reference to a glaring hole in our legal framework;
• Investigative processes are reviewed, and the implications of false allegations are expanded with reference to psychological principles;
• DPP guidelines set forth in Queensland are examined, and the problem of failing to comply with them as is occurring with disturbing frequency in Queensland;
• the matter of prosecutors raising facts not in evidence, to get misleading information before the jury is raised;
• We discuss the problem of police neglect of exculpatory evidence;
• The importance of counselling and memory is expanded with reference to the need for the DPP to be informed about, and issue guidelines on, proper exploration of the counselling history of complainants;
• the disgraceful state of court processes is explored, from pre-trial preparation through to jury trials, and the way in which such processes may encourage juries to leap to unwarranted conclusions, especially where therapy was involved;
• Part V is a critique of key aspects of the Qld. Crime and Misconduct Commission's Inquiry Seeking Justice
• Part VI summarizes our conclusions and outlines key recommendations:
• require better training of mental health professionals, and re-education of existing ones through development of continuing education programmes;
• require reconsideration of extant mutual recognition guidelines to protect against out-of-state substandard training, possibly including upgrading to Victorian standards prior to granting of recognition;
• link with the Victorian Ombudsman to examine and redress past wrongs;
• link with the Justice Dept. in Victoria to examine the extent to which problems rampant in Qld. may be present in Victoria;
• link with Commonwealth authorities to examine this in the light of a full national inquiry.
“Still Seeking Justice - The Case for an Inquiry”
“ There has got to be justice.... Justice is for both sides” (Qld. Premier Peter Beattie, Hansard 22/8/02)
JUSTICE believes that, “ the desire to convict the guilty must never be allowed to increase the risk of convicting the innocent.” (Justice Bulletin- Winter 2003 in comment on UK White Paper- “ Justice for all”.)
There is a chain of events that originates in the promulgation of mythology in the university classrooms of this, and many other countries, that links with dubious police practices, urban myths and prosecutorial zeal to the other end of the chain – prison or destruction of reputation for countless innocent individuals. That chain of events is described in this document. It has been in preparation for some three years, but draws on case materials going back a decade or more in Queensland and to some extent, Victoria, where the first author has advocated for those falsely accused of sexual abuse, largely based on so-called “recovered memories.” That those providing therapy in the mental health industry give credence to certain misguided beliefs, and actively promote the creation of false memories of childhood abuse, is a testament to the poor training that they receive which fails to assist them in distinguishing modern myths and urban legends from valid psychological theory. The requirement of relative uniformity of training across Australia, plus the practice of reciprocal recognition, opens the door to professionals qualified in one state practicing in another. By the same token, it opens the door to the likelihood that poor training received in one state can create problems in another.
Originally intended as a call for an inquiry in Queensland, this paper is now being provided to the Victorian Health Commissioner to assist with her present inquiry into precisely the poor training that has produced the situation we describe below. Our other written and verbal lobbying for such an inquiry in Queensland has fallen largely on deaf ears, despite it even leading to a Parliamentary Forum on Justice in Sexual Abuse Allegations in the State Parliament in Dec. 2002, which was almost entirely ignored by politicians of all persuasions. It was not only ignored, but in the opening address by the Premier's representative, Mike Reynolds, grieving and traumatised families were insulted by the way in which the whole point of the forum was misrepresented by self-congratulatory statements applauding the progress of the Queensland government on dealing with child sexual abuse. This insult ignored precisely the swing of the pendulum about which we are alarmed, in that efforts to combat child abuse have gone from nil to excessive, to a point where little evidence other than the accusation itself is required to destroy those individuals at whom the finger points.
Sexual abuse, particularly that of children, is a scourge on our society. We are now more than ever aware of its evil and as a society we have been taking more positive steps toward eradicating or minimizing the incidence. However, over the past decade or so the quest to expose and thus deal with it more effectively has as well, resulted in many innocent casualties. Tragically, it has resulted in the creation of “a new genre of miscarriages of justice” . This is an unprecedented attack on many innocent individuals and families. We argue that the real extent of what is no less than a social catastrophe will never be revealed, nor will a proper balance be restored, without a properly constituted public inquiry into all facets of the problem. As our calls in Queensland have been largely ignored, we now address the Victorian Government in the hope that the present inquiry will precipitate investigations into the disasters precipitated by the mental health training problems that they have observed in that state. We also hope that the Victorian findings will precipitate a national inquiry into the problems that Victoria most certainly shares with other States as a result of an attack of unprecedented proportions on key societal values.
Values Under Attack
The argument can be made that pressures are at work which challenge the existence of some of what were, once upon a time, sacrosanct societal values: The notions of a fair go; that we are all considered equal before the law; that we stick up for the “little aussie battler”; that the underdog deserves our sympathy; that the accused is innocent until proven guilty beyond a reasonable doubt, etc. etc. These basic values have been accepted as an unchallengeable underpinning to our way of life generally, and more specifically, to our expectations of what constitutes justice.
The majority in our community may still believe these values to be strongly and widely held. This is a false consensus. We argue that they no longer apply in our current pursuit of anyone accused of sexual abuse, particularly the abuse of children, and most notably, where allegations are considered to be of an historic nature or old. This usually results in the complainant being an adult and the defendant a senior citizen with some allegations going back some thirty or forty years or more. Some experienced criminal lawyers consider that ‘old’ can be as short as four or five years.
Such matters are appearing before the courts in greater numbers and indications are that this trend is likely to continue unless effective changes are made in the areas that we will outline in this paper. Some argue that an increase in prosecutions of this nature is a good thing. For instance, the CMC report (p.67) suggests that this reflects “a greater social awareness about sexual offending that has occurred during the past few decades and the public pressure now brought to bear on police." We contend that the CMC has missed another vital imperative, namely, the growth of the “recovery movement” which has helped fuel a witch-hunt.
This “movement” began in the early nineteen eighties in the USA and has subsequently spread to other countries including Australia. Largely unconstrained by regulation, this has resulted in the flourishing of an industry driven by “ self-styled psychotherapists, hypnotherapists, Christian counsellors, New Age Spiritualists and other practitioners”. “Recovered Memory Therapy” is a term used generally to describe therapy that generally:
a) assumes that childhood trauma, especially sexual abuse, is commonly “repressed,” or “buried” out of awareness for many years, ostensibly to protect the individual from the pain of remembering it;
b) assumes that various psychological symptoms are the result of such repressed memories and/or the alleged sexual abuse;
c) holds that recollection of the abuse and “catharsis” (or “re-living”) of the traumatic event are necessary to recovery, as is recollection of all such events;
d) memories so recalled are veridical accounts of past events, and;
e) certain methods known to the therapist(s) can recover accurately the historical facts associated with such “repressed” memories.
The methods used to recover the memories are varied, and include, but are not limited to, hypnosis (especially of the 'age regression' kind ); EMDR; journaling; group therapy; and art therapy. Whilst hypnosis is the most well-studied in an identifiable format, each of these shares critical elements with the dynamics involved in hypnosis. The authority figure (eg., the hypnotist) presents suggestions about things to explore with the client, and then facilitates that exploration, with ample opportunity to drive the “findings” of the exploration through subtle manipulations, such as overt or covert verbal suggestion, provision of suggestive materials, and – critically – interpretation of the statements, writings or art works that are produced through the technique.
Unfortunately, in Australia, the regulation of such practices has tended to decrease, rather than increase, and a growing number of unregulated counsellors are now practicing across the country. Indeed, the second author has identified one such “counsellor” who claims to have a “Bachelor of Hypnosis” degree, which turns out to be a five-day workshop offered by a company that was reprimanded by the accrediting body in Queensland for claiming that such a workshop constituted a Bachelor's degree. The second author is also aware of a kinesiologist in the Rockhampton area, with no known qualifications, who has devastated several families by “recovering” so-called “memories” from knotted muscles in suggestible individuals.
Guilliatt observes that in this country, the “recovered memory” movement was “crucial to the growth of both alternative therapy techniques and repressed memory allegations.” This, coupled with what we believe to be inferior training in understanding the science of memory, has contributed to the development of a moral panic”, and this, we hold, has led to what can only be seen as an ongoing witch-hunt. While the recommendations made by the CMC (June 2003) in their “Seeking Justice Report” will help somewhat if properly implemented, they simply do not go far enough for reasons we will make clear. We also make critical comment below on some of the research findings, which are the foundation for the CMC report.
Further, while the CMC inquiry identifies some serious problem areas and suggests that serious flaws exist, it fails to recognise that the likely result is yet more serious miscarriages of justice. The CMC report also fails to place these narrow legal issues into their essential context, that is to say, that of a witch-hunt. It fails to identify clearly and forcefully the importance of memory in historic cases, and the extent to which well-meaning but misguided professional (or other) interference in memory processes can distort matters that are critical to the understanding of the charges that are laid in such matters.
Moral Panic
Perhaps the reality of this challenge to our core values has been clouded by the development of “the moral panic. “Moral panic” is a sociological term, which has been defined as a form of collective behaviour characterized by widely circulating rumours which greatly exaggerate the threat posed by some newly identified form of deviance. In a moral panic, there is a heightened level of concern over the behaviour of a certain group and a greater than normal fear about the consequences of this behaviour for the rest of society. Sociologists refer to the sentiment generated by the newly identified threat as “ a kind of fever—characterized by heightened emotion, fear, dread, anxiety, hostility and a strong feeling of righteousness.”
We concur, and regard a “moral panic” of the present type as a situation in which a large proportion of the population comes to believe that a particular class of immoral activity is widespread, and being perpetrated against a certain group, notably (but not limited to), children. Over the centuries it has often been panic over the activity of witches, but as belief in witchcraft declined, other immoral activities – commonly sexual, and currently child molestation – have supplanted the mystical ones. The problem becomes severe when officialdom not only condones, but actively persecutes, those accused of the current immoral activity without regard to principles of justice.
This “moral panic” has developed into what now must be accepted as a witch-hunt of frightening proportions. This is confirmed time and again at CAFSA meetings, where afflicted people use words such as frightening, scary, destructive, incredible, shattering, preposterous, tragic, monster, scurrilous, fanatical, mockery, malicious, evil, torn apart, hysteria, farcical, afraid, despair, and brutal, on a regular basis. As an example, in the United States, for a considerable time in the 1990's the issue of "Satanic Ritual Abuse" fired the public imagination. Multiple Personality Disorder (now renamed “Dissociative Identity Disorder”), was supposedly the result of children forced to cannibalize babies, undergo bizarre Satanic rituals, eat faeces, and so forth. There is still resistance in many quarters, for instance, to the fact that the FBI invested vast sums in investigating these crimes, "remembered" in what was then considered "therapy," and yet failed to find any proof at all of a systematic, organised ring of cults abusing children. Indeed, as will be seen in Karen's story, the suggestion of alter personalities is documented as having been suggested by hospital staff. At least one psychiatrist has lost his license over such practices (Burgus v. Braun) in the US. Australia has not been immune to this insanity as one of our examples below will show.
Of course, if someone in therapy can be led to believe such things, it is, relatively speaking, a trifle to lead them to believe that perhaps they were sexually abused by a parent or some other "trauma." This is even easier if, for example, Parental Alienation has taken hold during the extended and enforced absence of a non-custodial parent against whom the custodial parent has poisoned the child (ref. Gardner, R.A. (2003), The Parental Alienation Syndrome: Past, Present, and Future. In The Parental Alienation Syndrome: An Interdisciplinary Challenge for Professionals Involved in Divorce., eds. W. von Boch-Gallhau, U. Kodjoe, W Andritsky, and P. Koeppel, pp. 89-125. Berlin, Germany: VWB-Verlag für Wissenshaft and Bildung.) The implantation of such false memories (known as "pseudomemories") by perhaps well-meaning but ill-advised and poorly-trained therapists became another log in the fire of the moral panic, and regrettably, that fire still burns in Australia. As Beth Wilson, Victorian Health Services Commissioner has said (ABC interview, 23/7/2004), "It's very easy to install a false memory into somebody, unfortunately, very easy." Alas, when the public starts to see "peds under every bed," the belief cycle is reinforced, and it becomes even easier to instil such memories in a public that has been overexposed to this moral panic. While on the one hand we applaud the Victorian government in permitting the Health Services Commissioner to lead an inquiry into the poor training that leads to such practices in that state, we must point out that, absent a full inquiry into the harm that has flowed from that malpractice, justice will not be served for the complainants who have demanded the inquiry. We therefore urge the Commissioner to consider working with the Victorian Ombudsman to give a fair hearing to those who have been 'burned' in the present witch-hunt.
We attribute some of this problem to the mainstream media, which has been involved in sensationalism at the expense of truth and justice, and has generally adopted a “censorship by omission” approach. While it has been easy for witch hunters to broadcast inaccurate and misleading statistics, it has been extraordinarily difficult for those who would speak out against them to be get a public hearing, and as noted above, here in Queensland, laws have been passed that ensure the prosecution of those who would speak publicly on behalf of the wrongfully convicted, at least without the consent of the political masters who may have a good deal to hide themselves. Certainly the number of those who have spoken out appears to be very small. One academic to whom the first author complained about this attributed this to a “fear factor” that is creating something of a "chill" in academia, where ostracism of those who stand by scientific principles in the face of what can only be termed "political correctness" routinely stifles the voices of reason.
The "censorship by omission" approach is not the only tactic, however. More aggressive means are not only available, but they are in use. For instance, at the trial of one man in Queensland, the major local newspaper (which had previously hounded this man prior to arrest, and on through conviction) ran a full-page story on the front page about survivors of sexual abuse not receiving justice in the morning edition on the day the jury was to hear closing arguments and be sequestered. This, of course, was the paper that would have been available to the jurors over their breakfast, immediately prior to deliberations. We regard this as a very good reason not to publicize names of the accused in these matters until after conviction.
Certainly, from the verbal reports to us from the falsely accused, fear is very real to them. It is primarily out of fear that very few falsely accused, other than those who have been unambiguously cleared, like myself, have been prepared to be identified publicly. This in turn makes it much more difficult to personalise and publicly highlight the damage being done. However it is not only fear that is at work. While this witch-hunt may be a passing social aberration, it is passing very slowly and those who stand to gain the most from its continued existence are those who hold the reins to public perception at this time. Those who by exaggeration and misinformation inflame public opinion are readily given the stage, whilst the voices of reason are stifled. Indeed, in Queensland, legislation (not yet challenged in a high court) exists that requires permission of the Dept. of Corrections before reporters can tell the stories of those imprisoned – including those who maintain their innocence – without fear of being charged themselves. This situation virtually guarantees that prosecutorial excesses can be covered up where it would be embarrassing for the government. We argue that the elimination of this balance, rooted in the democratic principle of free speech, provides the State with too much power.
This is an important point, because politicians as a group have generally fallen over themselves in the rush to appear tougher and stronger on the law and order issue than their opponents, and many of them have also no doubt succumbed to fear, or themselves been hoodwinked by the propaganda. We have attempted to meet personally with Premier Beattie and opposition leader Springborg to discuss our concerns but to no avail. They too must fear the negative publicity that immediately surrounds anyone who calls for justice in these cases, and it is largely for this reason, we feel, that our proposals to political advisors have, to date, fallen on deaf ears.
The matter is further confounded by some prominent “children’s rights” crusaders who, despite good work for real survivors of abuse, have distorted the true picture by spouting wildly inaccurate information, and who are not concerned that miscarriages of justice may occur as a result of their distortions of the facts. For instance, Hetty Johnston - a recent candidate for the Senate - has been quoted as publicly stating that "if one innocent man is in jail, then too bad for him!" If we are to believe the sort of wild statistics that she and other such zealots routinely quote (usually with no knowledge at all of where the numbers come from or how they were obtained), then a third of women are molested as children, usually by someone they know, and a third of them "repress" it. If this is true, then the proportion of men who are molesters must be truly huge, perhaps as high as one in four. If so, then we must ask "Why not simply throw men into jail randomly?" Such a scheme would result in about 3 innocent men in jail (who plainly do not matter) for every incarcerated paedophile. We seem, on that philosophy, to be quite on the opposite end of the views of Voltaire, who held that it is "Better to risk saving a guilty person, than to condemn an innocent one," (Zadig)
It is important to place the actions of psychologists, psychotherapists, psychiatrists and counsellors into the social context in which they function. Ideally, their training would provide some immunity to the sort of panic that we have described. However, to the extent that such people use their training selectively to reinforce belief-congruent elements of their world-view, and disregard what scientific training they may have had in selectively ignoring belief-dissonant facts, we arrive at a situation where zealots begin crusading on the basis of little or no scientific evidence. For example, there is the present situation in Queensland, where Hetty Johnston refers to us in an article by Fenella Souter in the Good Weekend of 23/10/04 as “the false allegation brigade” and that false allegations are “a red herring.” She says they are a tiny percentage of cases although she admits knowing of genuine cases. She claims – with absolutely no evidence at all - there are paedophiles in the ranks of our organizations. While we are prepared to give her the benefit of any doubt that she has done some good work in the child abuse area, she is clearly out of her depth when making these unsubstantiated, scurrilous and hurtful allegations. As she admitted in the Souter article, “once I’ve made up my mind, I’m a bit of a bull in a china shop.” She is clearly making up her mind on the subject of “recovered memories” before she knows enough about it. On the subject of recovered memory, she admits she doesn’t know enough about it to make an informed comment, and then proceeded to claim her husband had a recovered memory when he got off the plane in New Zealand.
In our view, what makes her so dangerous is the fact she is so badly informed on the facts which are based on the best available science while at the same time is usually treated by the media and authorities as extremely knowledgeable. Sadly, she appears to be operating from a platform of vengeance stemming from her own life experience, not best practice – and of course her political aspirations are there for all to see. These are issues for which a licensed professional could and should be suspended – we refer to the ACA position statement on repressed memories that has been provided to the Inquiry by the Australian Counselling Association.
Referring again to the Souter article , she claims that around one third of Braveheart’s clients are adults bringing historic cases, which they encourage to take to the police, and she also admits some contain recovered memories. Given this, it is surely reasonable to ask what steps are taken by Braveheart employees to attempt to counsel these unfortunate people on the nature of memory and the difference between narrative and historical truth. Clearly, in our experience, many of those who go to the police are very much in danger of becoming embroiled in further awful trauma, which is likely to destroy lives and be harmful to all, including themselves.
Clearly, some women’s groups as well have been driven by ideology rather than best practice, and have fostered politically correct but scientifically disastrous philosophies, passing them off as therapeutic. Public funds have been used to support rape crisis centres that themselves do not seem to have any responsibility for accurate portrayal of facts, or use of evidence-based, rather than politically-motivated, materials to support victims. Rather, from the reports we have heard, the creation of victims through convincing women with no memories of abuse that they were indeed abused seems to be a major industry. While this may continue to justify the centres' reason for existence, it is dangerous and harmful, not only to third parties who may be accused, but to pseudo-victims who can never fully recover from the trauma of what is supposed to be therapy.
As an example of this, the first author recently visited our local women’s Health Centre with his wife. While waiting for her, he perused the books in their small library. He was alarmed to see they held multiple copies of The Courage to Heal and related recovery movement publications. One which drew his attention was a local publication (Nambour, Qld.) titled “ The Feeling of Healing”, written by adult survivors of childhood sexual abuse published in 1996 by the “Women’s Project Group”, Cotton Tree, Queensland. The Project was funded by Queensland Health and emanated from the Sunshine Coast Women’s Crisis Service. The foreword is written by Jocelynne A Scutt. The first author was further alarmed upon reading the introduction to the first story which reads,” I kept the inner child a prisoner chained to the dungeon walls of my mind. I blocked out the painful memories of childhood to survive.” At the end of the book it recommends as an activity watching a video, and in the list of suggested movies, includes The Three Faces of Eve, which is an account of Multiple Personality Disorder that the second author would never ever recommend to anyone in a fragile and suggestible state, especially in view of the likelihood that it could lead towards the creation of the disorder in susceptible people. It also recommends The Courage to Heal and related books for reading. Although we are reliably informed that these dangerous books have now been removed from their library, we can only hope that the “recovery” culture that has gone along with them is cognizant of the change. However the concern remains how many other similar centres are still maintaining or even extending this culture?
Today's atmosphere is reminiscent of the days of McCarthyism in the United States not to mention the witch hunts of old Salem. The public is being ‘ conned’ into believing there is a “ped under every bed." Recent respected research in fact shows the reverse is happening and child sexual abuse (CSA) is actually on the decline. It is the emergence of many more historic cases, fuelled by misguided beliefs about "repressed memories," that is mainly responsible for the current tidal wave of CSA matters before the courts. Many of these are being prosecuted in direct contravention of DPP criteria that must be met prior to Police tendering evidence of this type. This criterion was formulated to recognize the inherent unfairness to the accused in such matters, having been set out in two letters to commissioner of police, Mr J O’Sullivan written by then DPP Royce Miller, QC.
The first of these letters, dated 20/12/94, refers to the use of regression therapy or the use of hypnosis. It spells out strict guidelines to be satisfied before he would tender evidence of a “recollection” of a witness which emerged for the first time during or after hypnosis unless the guidelines are satisfied. He further states “ The fact that a witness has been hypnotised will be disclosed by the prosecution to the defence and all relevant transcripts and information provided to the defence well in advance of trial in order to enable the defence to have the assistance of their own expert witnesses in relation to that material. In a further letter dated 1/11/95 to the Commissioner he advised that, “ the guidelines therein set out (referring to his previous letter of 20/12/94) will be applied equally in respect of evidence obtained by the process called Eye Movement Desensitisation and Reprocessing. (EMDR).” Despite the recognition of the faulty memories that can be created by these methods, cases continue to be paraded before the courts that are based in such “evidence,” and it is the rare and fortunate accused who finds a solicitor or barrister who knows how to handle it.
Police Trawling
We also add that, consistent with a McCarthyism tone in present day sexual abuse allegations, is the change in police tactics to include broad sweeps through a person’s social network in search of anything that might be used prejudicially in court. Many lawyers believe that an alarmingly high number of false allegations appear to result from trawling operations. The principle underlying these operations is according to one senior UK policeman, ‘corroboration by volume’ as opposed to corroboration by solid facts. In the face of multiple allegations it is all but impossible to find judges or juries who are prepared to acquit, however many inconsistencies the evidence may contain. Such was the concern in the UK, where Parliament set up a select committee to investigate these matters. While their resultant recommendations expressed some reservations about the conduct of trawling, they stopped short of prohibiting it. They did say, “ In every case however, there should be clear justification for the decision to launch a trawl” (Para 26). They advised a revision of the police handbook for senior investigating officers, in order to set out clearly the terms of an initial approach to potential witnesses. They put forward a strong recommendation for recording police interviews of complainants and other significant witnesses on video or audio- tape with preference for video recording and that such recording be mandatory. They recommended the Home Office issue a code of practice for this process regarding complainants and other significant witnesses in cases of historical child abuse. They invited the Association of Chief Police Officers to further revise the handbook to minimise the risk of inducing false or exaggerated allegations. First and foremost, they believe any practice by the police of offering or acceding to requests for, mitigation in exchange for evidence against suspected child abusers in historical cases should be prohibited (para 129).
The psychological impact of the atmosphere of suspicion created by trawl should not be disregarded, either. Just as those who would not name names in the Communist scares of the 1950’s in the US were themselves treated as guilty, we are concerned that today, people trawled by the police are themselves afraid of falling under suspicion if they do not provide the evidence required by investigating officers, even if they cannot do so because the evidence does not exist. This, too, is another face of the moral panic.
The Failure of Our Justice Systems
There are undoubtedly numerous contributing factors embedded in our investigative and legal processes that have spawned the many miscarriages we have seen. We will discuss that later, as it is necessary. But first we must see the full extent of the problem, and examine closely the failure of our criminal law/justice systems to deal fairly with such complaints. No explanation will suffice, we feel, unless it includes the influence of moral panic and the witch-hunt. As prominent barrister Ian Freckelton says, “CSA has been the subject of a series of moral panics in western societies during the course of the 1990’s as well as earlier times. The impact of such panics can be to reduce the capacity of child protection investigators, police and even prosecution authorities to evaluate evidence scientifically, calmly, and objectively.” We point to the frequency with which such individuals have degrees in social science as a potential source of that inability, which they share with the mental health professionals on whom judicial systems increasingly rely.
We recognise that no justice system is infallible. Miscarriages do occur as criminologists’ research amply demonstrates. However, we have verbal reports from senior counsel that the majority of the current seriously worrying guilty verdicts are coming from CSA matters. Under Voltaire's philosophy of minimizing the risk of condemnation of innocents, miscarriages of justice have always been an unwelcome, though relatively small, component of legal proceedings. The numbers have changed, we submit, precisely because those attitudes to justice reflected in the satirical proposal above have been born of particular and clearly identifiable social developments.
These pathological attitudes, however, can be addressed or at least mitigated, given the political and social will. No doubt a raised public awareness of the horror that is occurring, followed by a rational and informed debate, will assist in facilitating that process. However, to have zealots like Hetty Johnston reporting her political detractors to the police as "paedophiles" is simply a return to the blind ignorance of McCarthyism, reducing those who object to their agenda for any reason as a stereotypical "bad guy" of whatever current socially-unacceptable sort is most vilified under current prejudices.
It is instructive here to examine in detail the case of the first author's daughter, before proceeding to detailed analysis of a number of representative cases from the CAFSA archives. The story of Karen is told from several different perspectives, beginning with the documents that support the versions later told by her, her brother and her father (the first author).
Karens’ Story
The following describes relevant matters in the case of the first author, which precipitated his seeking out the Australian False Memory Association, and later founding CAFSA. His daughter, Karen, suffered from bipolar disorder from the age of about 23. She was a fairly extreme case, being regularly hospitalised and regularly harming herself (eg., cutting and overdosing ). In about October or November 1991, Karen phoned her younger brother Christopher. She would have been age 31 at the time. Her brother Christopher was 8 years younger. She was telling him about her new therapist on Wickham Terrace (one Dr. Rodney Hall). He had been recommended to her by a member of her church as a Christian counsellor. He had been doing hypnotherapy, taking her back to her childhood and doing drawings. She wanted to show the drawings to him and ‘she knew he wouldn’t like them’. Christopher recalls from the tone of her voice what she would be likely saying to him. He had seen a couple of documentaries around the issue of CSA at the time.
The Official Information
From medical records and other documents obtained under FOI in about 1997 by Karen, it is evident that:
1. Karen was admitted to Winston Noble at Chermside on 2/1/92 with a ‘manic swing’. She was released on 10/1/92. She had a crisis admission on the 19/1/92 to the 23/1/92, admitted again on the 24/1/92 with a ‘manic swing’ and released 11/2/92. During this latter admission she started describing experiences of sexual abuse by me up to the age of ten years. She was now reporting that her father came to her bed when she was young. She was also ‘ventilating’ anger and experiencing ambivalence towards her parents. Notes suggested that she would probably need to deal with these issues in psychotherapy with Dr. Hall, the referring physician. This was recorded by Psychiatric Registrar Dr. Daubney.
2. On 2/2/92 Karen “spoke at length about seeing Dr. Hall for psychotherapy. Became distressed at times. Feels she needs to continue seeing him as there are things she needs to face. Intends to try and see him tomorrow @ D.T.C. to make an appointment. Also requesting to see Dr. Cutbush. (Physician/surg.) (signed Tounsend c/n)”
3. ”On the 3/2/92 at 2300 hrs. - She upset earlier – talking about her past and sexual abuse she suffered from her father – Says the psychotherapy she’s been having with Dr. Hall “drags it all up” – crying and wailing very loudly – escorted to seclusion room – “I can see what happened, I can feel it – It’s not happening now is it?” – “I have to get my daughter and son away from my father.” (Maloney)
4. 1300hrs. – Has gone into city to see Solicitor re. Sexual abuse from her father when she was a child.
5. (3/2/92 - No time given ) – W/R Cutbush (We assume this means ward rounds – notes taken by a nurse accompanying Dr. Cutbush)...Continuing to elaborate over alleged sexual abuse by father, some amnesia symptoms evident. Consulted Solicitor re. Custody rights re. her children and experiencing concerns re. her father looking after children. Unclear what has precipitated these revelations. Dr. Cutbush will review.
6. 4/2/92 Social Work...I/V Karen who advised she felt distressed about her son continuing to remain with her parents during her admission. However, also acknowledges her ambivalence about family involvement. Discussion about her need to continue therapy with a primary therapist to which she agreed – she will discuss with Dr. Cutbush. ( unclear signature, O Lastin? SW).
7. 4/2/92 Patient describes experiences of sexual abuse by her father up to the age of ten years. Describes very few memories at all of her (F) in her primary school years. Seems to have repressed a lot of memories. Now reporting that her father came to her bed when she was young. Raising concerns re her own children- no real suspicions of her (D) having been abused but worried about recent behavioural changes in her son, although accepts there may be other explanations eg. Missing herself. Ventilating anger and ambivalence re her parents and aware she will need to deal with these issues in psychotherapy with Dr. Hall. No presence of manic swing- not elevated no pressure (unclear) of speech or flight of ideas/proclivity of behaviour appigsuats display (these words unclear). No self harm thoughts – may have leave for two days (her request) but will return if she feels she isn’t coping.
8. On discharge, she was on Thiothixine 10mg nocte, 10mg bd, Carbamazepine 200mg bd, cogentin 2mg?
It was at some time in February of 1992 the first author received a phone call from Karen. She said she had been experiencing difficulties with her psychiatrist and was beginning to wonder whether he had sexually molested her when she was a child. Her therapist had been encouraging her to draw pictures and she thought one of them resembled him. She said it was a bearded man. She was told by her father that although she may be confused at the moment, he was certainly not the bearded man, as he had not worn a beard when she was a child (a fact proven by a multitude of family photos). At the end of the conversation, she sounded reassured and it seemed that would be the end of the matter. As it turned out, it was just the beginning of a four year nightmare. It was then that her brother Christopher revealed the nature of his previous discussions with her.
In Her Brother's Words
Karen's brother Christopher recalls his conversations with her at the time. He reports that Dr. Hall met with Karen. She showed him her drawings. He said he could only remember the first one which showed the first author with a beard. Christopher then explained to her that her father had worn a beard only since attending university (1980). He also told her he was sure it wasn’t Dad but probably someone else. Being quite used to Karen’s illness and its manifestations, he didn’t mention this incident to the family at the time. He also remembers talking to Karen about her ‘different personalities’ around that time. Once again, he did not mention this to us then, and it is only now that it is clear that multiple personality disorder was being suggested to her as an explanation of her symptoms.
In Her Own Words
Karen had been to, and returned from, hospitals for treatment of bipolar disorder – a biologically-based psychiatric illness with no known relationship to childhood sexual abuse - over many years. The story of Karen's return home from the visit to the Winston Noble Unit that created her false memories, though, began after about four years, and was gradually recorded commencing on 21st. Jan. 1996. It begins, quoting her;
“As I recall I started seeing Dr. Hall about July or August 1991. I think he was recommended to me by someone from the Windsor Rd. Baptist Church as a Christian psychiatrist. He didn’t want me to write things down that I wanted to talk about. He wanted me to come to therapy and discuss what was on my mind at the time. We talked a lot about family relationships and what was happening in my life.”
It is possible that Karen was not completely open about the type of therapy she underwent. Despite the first author's attempts to pin this down at the time, details remain unclear.
“In late December or early January 1992 I became ill and admitted myself to Winston Noble Unit at Chermside Hospital. I told the doctors this episode was different from previous episodes because I felt I was falling apart. They didn’t seem to take any notice. One night they put me into the seclusion room because I was crying a lot and keeping the other patients awake, I was labile at the time with severe mood swings. I would have been on really large doses of Tegratol, Thiothixine, Tefranol or Triphasil and Cogentin. The next night I asked to go in there again but they wouldn’t let me. When the midnight shift came on, I was still crying and asked the nurse on duty if I could go in and she allowed me.
“I was lying on the bed in the seclusion room when I started feeling as if someone was raping me. I was crying hysterically and crouched in the corner. It wasn’t a dream. I was awake at the time. I could psychically feel someone raping me. I couldn’t see anyone. I could just feel it happening to me. The nurse came in and tried to put me back to bed but I wouldn’t go. I was saying something like Dad or Father and she said, “ I know – I understand”. I think she gave me some pills and I went to sleep.”
We believe that it is at this point that the inference by Winston Noble Unit staff was made that the first author was a child molester. This is the point where we believe that her calling out for help from her father in the midst of a nightmare, as so many people do, was misinterpreted by staff that seem as unaware of the psychological effects of the drugs she was on, as they were of the aetiology of bipolar disorder and of normal human sleep behaviour. This belief is based on the following statements that she made:
“The next day I started talking to Colleen a nurse about it. She said something like, 'This may have been your problem all along. You might have been raped by your father when you were a child'.
“I think this all happened on a weekend and during the weekend Colleen and I talked a lot about it. She said things like, ‘Maybe this is the real cause of your problem – maybe you aren’t bipolar after all’.
“It was then like 'bees around the honey pot.' All the staff were coming to me and saying things. As I recall, it was only Colleen (another nurse) and her friend, (the Sister from the episode), who suggested I may have been raped, but it seemed at the time it had created a lot of interest amongst the staff.”
We observe that this is typical of many such cases, in that some credulous mental health professionals first suggest sexual abuse as an explanation of symptoms, then reward and reinforce the production of “repressed” memories of such abuse – however bizarre and improbable or impossible – to aid the client in coming to believe them. The belief in such memories on the ward is evident from the notes of 4/2/92, and is consistent with the practices of many hypnotherapists in “regressing” people to earlier ages to attempt to “recover” such memories, as we suspect may have been done by Dr. Hall.
“Monday morning my Doctor ( Dr. Cutbush) came on her rounds. She said to me, 'Why didn’t you tell me about this before?' I said I didn’t remember it until now. As my children Denica and Sebastian were in the care of my mother and father in the country and I was really worried about them, I asked her if she thought I should go and get them. She agreed. I said if I tell my mother and father about this, they might try and take the kids off me. She said – 'If they try, I’ll go to court for you’.”
We thus have evidence of a medical doctor willing to testify on the basis of “recovered memories” that had been “repressed,” which lends weight to our argument about the use of recovered-memory therapy at the Winston Noble Unit, as well as our argument that this misguided belief has led mental health professionals to foster false allegations on the basis of a theory that has never had any sound evidence to support it.
The following statement illustrates another point that we feel is quite important, in that the creation of memories of childhood sexual abuse is itself as traumatic as if such abuse had actually happened. This aspect of recovered-memory-therapy is probably part of the pattern noted by other researchers in which patients tend to get worse.
“For days afterwards, I felt the psychical effects as though I had actually been raped. No therapist or counsellor has ever asked me to describe to them at any time how I felt during that experience.”
Another dimension of the false memory problem is that by making “real” some imaginary abuses, treatment that actually works (such as medication for bipolar disorder) might be eliminated. This too, can contribute to the worsening, rather than the amelioration, of symptoms. Karen certainly felt the urge to discontinue medical treatment:
“I think by this time I felt I had found the cause of all my problems. No more hospitals – No more medicine.”
Karen felt the ambiguity of the situation at first:
“At the time Dr. Cutbush didn’t spend any more time with me than she normally did with me. I’m quite sure she didn’t go through the actual episode with me. If someone had asked me at that time if I believed 100% that I’d been raped by my father, I would have probably said I don’t know.”
Such ambiguity is in itself a stressful experience, and increases the motivation to find a resolution – any resolution – that reduces the cognitive and affective dissonances that are at work. Credulous mental health professionals who discount the possibility that false memories may be due to their own suggestive practices might work towards reducing the cognitive and affective dissonances by pushing the patient to believe in the abuse, as Karen discovered:
“Dr. Cutbush advised me I would have to continue this in therapy with Dr. Hall after I left hospital. She knew Dr. Hall. I think they were both on the Psychiatrists’ board together. Before I was discharged from hospital I remember also seeing a Dr. Beames who I now understand to be a psychologist. I didn’t know that at the time. I don’t remember exactly what we talked about but I am quite sure no one made any suggestion to me at any time before I was discharged that the experience of being raped may not have been a real memory at all. In fact, quite the opposite. They didn’t express any doubt that it happened but rather reiterated the reality of it.”
This creates for them the illusion that their “therapy” is working, as an abatement of symptoms occurs following on the heels of the acceptance of the false belief, and the alleviation of bad feelings associated with having a mental disorder that comes with finding a scapegoat. Discharge may occur once the patient has accepted the false memories as real, and thus has something to distract attention from the actual underlying problem, assisting with the temporary - but not the long-term - alleviation of symptoms:
“When I was discharged after a two or three week stay, I continued seeing Dr. Hall. I don’t remember a lot of what we talked about but I remember him saying some girls fantasize about their fathers. I don’t remember him talking much about the episode – but it was very difficult for me to talk to him about it anyway because he was a man and I was offended by his suggestion that I may have sexually fantasised about my father. I was also feeling intimidated by him. He talked to me about forgiveness – that I should forgive my father for what he did. I think I only saw Dr. Hall about six times.”
Karen returned home, but her false beliefs had shattered the family. Family relationships were never the same, and even though, through AFMA's information and the FOI documents, the family were able to show her the error of her ways and obtain a retraction – which was aired on ABC's Four Corners, 60 Minutes and The Midday Show – she continues to have bouts of illness that bring back the accusations, leading her to isolate herself from exactly those people whose love and support she needs.
In Her Father's Words
We include this story as one example of how long we have been struggling to be heard. It also serves as an example of the suffering of the many families who have been fortunate not to have been forced to face the courts. This is taken from a paper written by the first author in Feb 1998, “Repressed Memory Therapies and the Phoney War – Australian Families in Crisis”, which was circulated widely to politicians and professionals. It drew little or no response. It is a shortened version of what was written after his own accusing daughter had recanted and returned to the family. At that time she was one of very few who had done so in Australia. Sadly, reconciliation with her broke down after a couple of years and she has once more isolated herself from the rest of the family together with her four children whom the first author has not seen for over three years.
“I and my families have been casualties of this war, I have been falsely accused of sexually assaulting my second of four daughters over a five year period from when she was aged five to ten. My wife was also accused as an accomplice. Our family went through nearly five years of hell before my daughter recanted and returned to the family. We are one of only a handful of families across Australia where reconciliation has occurred at this time. Nearly all affected families are still split asunder, some after more than ten years. During that five years our family was split and my wife and I were in grave danger of losing three of our five children plus four of our seven grandchildren. We became afraid of the knock on the door and the ring of the telephone. I began contemplating suicide. I began questioning my own sanity - could I have done something and completely forgotten it? Only the love of my wife and support of our eldest daughter and only son saw us through those dark days. However, as a result our health has been affected and many scars still remain.
“Our personal experience informs us that the monstrous practice of recovered memory therapy is being widely used and accepted. Consider this – Our accusing daughter began recovering her ‘memories’ while seeing a psychiatrist. These ‘memories’ were later unquestioningly accepted and reinforced by staff of a major public psychiatric hospital where she was a patient for Bi-polar disorder. (Manic Depression).
“Professions involved included psychiatry, psychology, social work and nursing. Later she sought help from a rape and incest crisis centre which further reinforced her false beliefs through personal and group therapy, plus recommended literature eg. The self-help book 'The Courage to Heal.' My daughter was encouraged by her counsellors to seek revenge against the ‘perpetrator’, her father. Fortunately for me, her Christian beliefs stopped her from doing that.
“Not satisfied with this ‘help’, she consulted a well known national counselling service and began seeing a family therapist. She consulted her regularly over a twelve month period. During this time she not only refined and validated the ‘memories’ but began to uncover ‘multiple personalities’ as well. This ‘therapy’, perhaps fortunately, then ceased as the therapist felt she could do no more.
“My daughter was then advised by her church pastor to consult with a Christian counsellor. This person, who was operating under the umbrella of a local Baptist church, convinced her that her family wanted her dead. Her father’s spirit was haunting her at night and that her new husband was probably a molester. She should leave him as she was one of Gods’ chosen brides. She then proceeded to perform an exorcism on her aided by several other people. My daughter later advised me that her only ‘counselling’ qualifications stemmed from a Bible study course she had done. She was charging a fee for her services.
“Having suffered from Bipolar disorder for many years, my daughter was encouraged to believe that she no longer needed her medication. Her ‘real’ problem was that she had been sexually abused by her father. As a result, she went off her medication for two years. Her life was a living hell and her husband and two children suffered with her. Not only was she trying to come to terms with the fact that her father was a molester and her mother had betrayed her, she had lost her family and was going through periods of mania and severe depression. Suicide often beckoned her.
“My fourth daughter, who was torn between her sister and her parents and having relationship problems as well, sought help from a counsellor. This counsellor advised her that she may as well accept that she too had probably been abused by her father. (even though she had no memory of it ). Her relationship broke down and she moved back to Queensland from NSW. She consulted a counsellor from a well known national service (the same her sister had used – different branch) who advised her of the same thing. She discovered this counsellor had other clients who were ‘recovering memories.’ On one visit she heard one of them being physically sick after just ‘recovering memories’ of abuse. Fortunately, my daughter left and didn't return.
“My third daughter, who at first supported her accusing sister, returned to us as the accusations became more and more bizarre. On expressing doubt to her sister, she and her daughter were physically thrown from the house. She then sought reconciliation with us. As she and my wife were finding it extremely difficult to cope, as was I, I encouraged them to both seek counselling. They attended a local counselling clinic (Gympie) to be both advised they may as well accept the fact that I was an abuser. My wife was told that she was a very brave woman to stay with me. Later, when we returned to confront them, we discovered that this ‘clinic’ was a devotee of 'The Courage to Heal' and the related work book.
“When our accusing daughter returned home and later recanted, the process of reconciliation began. The first twelve months was like walking on eggshells. We had several serious setbacks along the way. Unfortunately, when she is ill it still rears its ugly head. However we are slowly overcoming these difficulties as we are together as a family once again. Even though we are well down the path of reconciliation, the question of justice still hangs like a cloud over our heads, as I’m sure it does with hundreds if not thousands of other effected Australian families at this moment.”
Summary
The matter of third party duty of care that the Australian Psychological Society seems to wish to duck by omitting it from its guidelines (contrary to the stated views of the Australian Counselling Association) are underscored by another matter from this case. Sadly, when the first author's wife and third daughter went to a local counselling clinic (Gympie Counselling Clinic) to deal with the collateral damage caused by Karen's therapy, a counsellor simply advised them that they had to accept that the accused was a paedophile. When confronted with this outrage some time later, the offending counsellor admitted to the clinic using the ‘Courage to Heal’ and the related workbook. She broke down and confessed she had been abused as a child in a seeming attempt to evoke a sympathetic response from the complainants. The LifeLine manager responsible for their offending counsellors simply denied that such a thing could occur at their service. The breach of responsible duty of care involved in affirming, without evidence and in the face of evidence to the contrary, that someone else is a paedophile based on recovered memories is, in our view, simple defamation that should be subjected to legal penalties.
This case occurred at the time that many professional bodies were putting out their guidelines (eg., footnotes 27-36 below), and the effect of these had not trickled down to the average recovered-memory practitioner – a situation which we do not see as markedly improved as yet. Unfortunately the repercussions are now being passed down through the generations, as Karen's daughter's belief in the accusations – made when she was about 13 – appears still to be leading her to refuse to maintain contact with her grandparents. The first author has a grandchild he has never met and more with whom he has no contact, thus depriving them of knowledge, love and support from that branch of their extended family. After 13 years, these therapeutic excesses continue to tear this family apart. For the following reasons, we regard this one case as the tip of a large iceberg, with hundreds, if not thousands of families around Australia suffering the same disastrous consequences of the misguided beliefs of professionals. We turn now to synopses of some of the many other files in the CAFSA archives.
LIVES WRECKED: STORIES FROM THE ARCHIVES
To help illustrate the madness occurring, we give some real examples from our case files which demonstrates the extent to which common sense and rationality have flown out the window. These are but a small sample of the large number of cases on our files, each and every one of which has provided ample evidence that they were falsely accused, or wrongly convicted. Sadly, this evidence often never sees light of day in court due to incompetent legal counsel who failed to consider many of the factors that we describe, or worse, simply dismissed them as irrelevant. The astute reader will note many of the following elements in these cases (some common to many):
14. Police failure to carry out a fair, objective ‘best practice’ investigation;
15. The basic principle of innocent until proven guilty has not been observed;
16. Police evidence seeking was systematically skewed in favour of obtaining evidence of possible criminality, not of possible innocence (known to psychologists as ‘Confirmatory bias’) and using “trawls”;
17. Police failure to see the significance of the therapy and counselling which had taken place, failure to investigate it, or failure to preserve evidence of it. This is in contravention of the DPP guidelines re. ‘recovered memories’ with reference to regression therapies, including specifically hypnosis and EMDR;
18. No corroboration or evidence interpreted to be corroboration which is not;
19. One person’s word against another, and hearsay evidence;
20. Conflicting evidence given by witnesses;
21. Little consideration given to the defendant’s previous character;
22. Nonsensical allegations taken seriously and convictions still recorded;
23. No suspicion or rumour at the time of the alleged offence many years ago, even in small, close-knit communities.
24. Lack of recent complaint;
25. No repeat offences after the alleged offences ie. before charges are laid many years later;
26. No repeat offences on release from prison even though these people, now branded as paedophiles, despite pressure being applied refusing to participate in ‘rehabilitation’ courses while in jail, at the cost of serving longer jail time and putting up with abuse from other inmates etc.
It is sad to note many of the concerns above were highlighted by Terry O’Gorman, now National President of Civil Liberties, in a 1990 article in The Australian titled, ‘Accused fall victim to presumption of guilt’.
This was taken from a paper he delivered to a National Conference of Labor Lawyers in Brisbane. Under such circumstances, we ask how can these ordinary normally law-abiding citizens be subjected to charges, and dragged before a court, with many to be incarcerated for most of the latter years of their lives ?
Published cases abound that highlight the sort of nonsense that passes for therapy , and the drastic consequences thereof . An abundance of older cases has already been presented to the International Commission of Jurists. However, it is of greater interest here to document the main features of some of the more recent cases known to us and on our files here in Queensland, of which we are certain there are many parallels in Victoria.
Case 1: 2002
We point first to the serious acceptance in evidence at trial of the man, blind since birth, having “perved” at a young girl in the shower after driving her around in a car. He was also charged with offences against a then-deceased daughter. This man was acquitted in short order on charges that reason dictates should never have made it past the police, much less the prosecutor. Unfortunately, the case proceeded long enough to wreck his life both emotionally and financially.
CASE 2: 2002
A 23 year old male accuser had talked with his mother on a Sunday around the topic of abuse. He said to her he was glad nothing like that had ever happened to him. The following Wednesday he phoned her to say he had just remembered being abused by his step father (now her husband), when he was nine years old. Complaints to police followed. The mother and stepfather were initially pleased the police were investigating as they believed the truth would soon be found. However, they were astounded when the ‘investigators' failed to interview anybody who had any association with either the accused or the accuser, past or present. They either failed to find or ignored the fact the accuser took drugs regularly. Under questioning at committal, he admitted regularly smoking 3 6 joints a day. They failed to realise, or ignored the fact, that his accusation was based entirely on a ‘recovered' memory. They failed to discover or ignored that his father, a Doctor of Psychology who is known to use dangerous regression therapies, also smokes ‘a lot of marijuana’. They failed to discover or ignored the fact that a social worker was also involved in ‘counselling' the accuser.
The only ‘evidence' offered by the police was the accuser ‘remembered' a certain TV program being on when the alleged abuse took place. The police established the date of the program and used that date as the date the alleged offence took place. In interviewing the accused, the police asked him to verify the existence and positions of items of furniture in the bedroom, presumably to verify the accuser had been in there. As the accused said, a child being able to identify the geography of a parent's bedroom surely does not indicate unacceptable behaviour having taken place in there. In the ‘pretext' phone call by the step son to the accused, the accused said the accuser was ‘nuts and needed to go to a hospital'. The magistrate in his summary at committal said he doubted there was sufficient evidence but in view of the nature of the case he would recommend it to proceed. At trial, after only thirty minutes, the judge suggested to the prosecution that they may wish to reconsider their position. They chose to continue. Even though acquitted by the jury in quick time, the accused and his wife, the mother of the accuser, are still trying to heal their shattered family relationships.
This man is still considered guilty by some family members. As the accused says, “At 63 years old, I have never been accused of any other sex offence. I have founded a children's soccer club, coached and refereed in many soccer clubs, worked with two schools in the capacity of fund raiser which involved ample contact with children. I have therefore had plenty of contact with children over the years and many opportunities for sex offences if I had been that way inclined. What is the probability of my offending only once?”
This man unfortunately does not realize that such statements, were they to be made to the wrong people, would likely result in a police trawl of everyone who had ever known him. The sizable payouts from victims’ compensation money now available provide yet another incentive to ''remember” things that may have happened to them in a way that, with some help, may incriminate the accused while simultaneously building a case for what we can only view as government-sponsored extortion, given the current climate with regard to these cases.
CASE 3: 2003
In another historic matter on file, allegations of abuse from twenty seven years previously were made by a now adult son and step daughter against the father. At the time, a bitter marriage break-up was in progress between the mother and father. The father had re married. The step daughter claims she remembered the abuse starting at age three. She claimed it continued until age sixteen. She claimed to have disclosed it to at least two people at age thirteen. Both these people denied any knowledge of it when approached by police. She claimed he performed oral sex on her at age sixteen and she slept with him all night. She said they were alone in the house and the mother was away for the night. The mother said she was never away for the night and would always be home by ten or eleven. Her step brother also denied ever being away for the night while living at that address. The first person she told about this allegation was the police officer who took her first statement some fourteen years later – after she had had extensive recovered-memory therapy in which these “memories” emerged for the first time, precipitating a drastic worsening of her condition.
There was inconsistency after inconsistency in the witnesses accounts of events, too numerous to mention here. The step daughter had been undergoing counselling with a psychologist who used hypnosis some sixteen months prior to her first police statement of complaint. During this counselling she wrote an accusing letter to her step father in which she accused him of “oral sex, masturbation, inappropriate touching, exposing himself to a number of her friends". She accused him of doing things to his son as well. She denied him any further access to his grandchildren. She wrote, “Over the past few months I have been receiving counselling which has helped me to realise that you are directly responsible for many of the problems I have suffered over the years. They have included a number of sexual dysfunctions, addictions to cigarettes, alcohol and other substances. I had never realised that these problems stem directly from childhood sexual abuse."
The son denied that his father had abused him when his mother, who suggested his step sister had been abused, raised the subject. He actually ‘stuck up' for his father. It wasn't until he was later being treated for ‘post traumatic stress disorder' by a psychologist which was "enough to trigger those memories to come back out onto the surface because as it happened to me as I was a child and they were traumatic experiences, I put them back in my subconscious." In other words, his absence of memories for abuse was not explained by the most obvious reason - that it didn’t happen. Rather, it was put down to “repression.”
The accused was interviewed by police and he denied all allegations. He was issued with a notice to appear and committal proceedings followed. He was committed for trial. Three days before the trial was to commence, the prosecution entered a Nolle prosequi (ie., they dropped all charges), and this man is now left to pick up the pieces of his shattered life after being subjected to this torture for over two years. He has been defamed, his professional career has been damaged, as has his health and financial position. In my view, had proper investigations been completed, charges would not have been made at all. Many months before this matter was to go to trial, I had reviewed all the material at the request of the defendant. I made this written comment in my report: "In examining this material I have attempted to determine whether the allegations made against carry sufficient credibility to warrant police action to the extent of the laying of charges. I have to say my conclusion, based on the material provided, is there is extreme doubt as to the validity of the allegations. In my view, perusal of all counselling/therapy/medical records concerning the witnesses is vital before police take any further action.”
An article in Good Weekend by Fenella Souter reveals that Hetty Johnston had reported this man to police on the basis of information given by the man’s ex-wife. One is entitled to question the ethics and professionalism behind such an action by Bravehearts, and we are left to ponder on how many other such cases of a similar nature have been reported to and acted upon by police. This man was later to be subjected to further outrage when two detectives knocked on his door to question him about the disappearance of Sunshine Coast boy Daniel Morcombe. The man describes the experience in the following way: ‘It is hard to put the impact into words. The emotions are many and devastating.”
He continues, “After enduring just over two years of hell and trying to recover from the horror and grief caused by a false allegation in the midst of an acrimonious divorce and property settlement, I had trouble believing what came next. Two detectives visited me from Brisbane investigating Daniel Morcombe’s disappearance. They stated they had been told I was ‘a person of interest’ in this case. Fortunately, I was able to tell them where I was on the day of his disappearance. They informed me they would have to check this information – more embarrassment.
“After more than two years with my life, and that of my family in limbo, due to false allegations, court appearances and several changes to the status of my case,” he adds, “not to mention the emotional and financial devastation, it appears that I am still not free of this disgusting nonsense despite being innocent. “
Psychological symptoms of post-traumatic stress have been noted in cases of people abused by the legal system and the same is true here. This man notes that “there has already been considerable impact on my behaviour in ‘normal’ interactions with children. I am hyper vigilant and extremely anxious. I avoid any situation I can where children are present. When I view others’ interactions with children I become anxious too because I see how easily that could be misconstrued. I have never worked with children but now I will definitely never engage with children at any level and will do everything I can to avoid it. My life has changed for the worse for ever.”
CASE 4: 2004
Another man was charged with 5 counts of Indecent Dealing with a person under the age of 16 yrs (Section 216 Criminal Code). It was also an historic case. At the commencement of the second day of an intended three day Committal Hearing the five charges were dismissed by the Magistrate. First of all the Magistrate agreed that the complainant's credibility had been damaged, if not destroyed, to the point where her evidence could not be taken seriously. The second factor concerned the fundamental unfairness in having to meet a case that could not be properly particularised. The time frame for the alleged offences kept changing at an alarming degree.
One would have assumed that an officer investigating a matter of such a serious nature would have adequately investigated all elements of the complaint thoroughly. However, it would appear that an attitude of ‘charge him and let the courts decide' has prevailed in this situation and the trauma and cost to the accused, his family and friends was never considered.
On the evidence presented by the Investigating Officer there was a complaint suggesting an offence occurred in ‘the new residence' whilst ‘the accused's wife was in hospital having their first child, (a report dated 9th March 1978 within the Brief indicated the residence would be completed on or about 23 March 1978). Their child was born on 7 March 1978.
At the time of charging the accused the Investigating Officer had not obtained his son's birth certificate nor had she obtained a birth certificate of the complainant, which was necessary to substantiate the charge. (The accused's son's birth certificate was subsequently obtained by her on 23 July 2003 and the complainant's on 24 July 2003. The Investigating Officer had obviously researched the fact that the accused's son was born at least two weeks prior to the occupancy of the residence but failed to act on this vital piece of information. A copy of accused's personal file was obtained by the investigating officer (these documents were certified True & Correct by a JP, however this certification was not dated). This file showed a letter stating the birth date of accused's son (7/3/78) and a letter from accused to the Dept (dated 9/3/78) requesting transportation of furniture to the ‘new residence' for an anticipated removal date on 23/3/78. The date the Investigating Officer received this information is not available to the defence but one would assume that this would have been obtained prior to the accused being charged. This alone shows that the complainant lied to the Investigating Officer. Yet, it would appear the Investigating Officer failed to challenge the complainant with these obvious anomalies.
Further to this, the complainant nominated a school friend as the possible first person to be told of this abuse. Yet the statement taken from this school friend, by the Investigating Officer, emphatically denied any knowledge of this information from the complainant. This statement was taken prior to the accused being charged.
To the defence it would appear that at the time of the accused being charged the only evidence the Investigating Officer appeared to have available to her was:
1. Statement from complainant dated 5 July 2002 complete with anomalies together with typewritten notes as presented by the complainant when statement taken. Even the notes and statement disagree with each other.
2. An addendum statement from the complainant dated 25 June 2003 (almost 12 months later)
3. The discorroborating Statement (dated 9 July 2002) from the friend.
This appears to be the entire evidence that the officer was relying upon to substantiate 5 charges of Indecent Dealing with a person under the age of 16yrs.
In July/August 2003 the accused's wife requested (under Freedom of Information) her records from Innisfail Base Hospital – she was subsequently advised that this file was not available, it could not be found and it was assumed it had been destroyed. Strangely enough, a short time prior to Committal Hearing the defence Solicitor requested this file and it was available in time for the Hearing – it was no longer ‘missing'. The accused requested from the Police Dept (under Freedom from Information) copies of all rosters for the period of his appointment in the town where the alleged offences took place (a 4 year term). Only two years of this were available to him as the other two years had ‘probably been destroyed'. These missing rosters (together with the 2yr period he was able to obtain) were tendered to the Court at the Committal hearing by the Police Prosecutor. We wonder how it was possible for the Police Prosecutor to obtain his records when they were not available to him?
CASE 5: 2000
Yet another man was sentenced to 14 years jail after one demonstrably flawed complaint to police alleging sexual abuse over 30 years ago. This was followed by a police trawl, which resulted in another 8 complainants all making allegations going back 30/40 years. The police trawl is a method of investigation which has attracted a great deal of attention and criticism in the UK over the last several years. It has been described as the reverse of normal police methods. Instead of starting from a crime and setting out to find the criminal, the trawling procedure starts with the suspect (or an allegation) and then attempts to find the crime. For example, Police officers trace and interview some attendees of the complainant’s former school, about matters that may have occurred thirty or more years previously.
The major conviction was based on “pictures in the mind" of the complainant, not memories (a phrasing strongly suggestive of the use of hypnosis to recall memories - a point not investigated by police). This complainant alleged she was vaginally raped (full penetration) by this man, who was her teacher when 8 or 9 years old. It was supposed to have happened on the teachers lap, on his chair behind an open fronted desk. No one else in the class noticed anything amiss despite the fact there were over two dozen other students of all ages sitting directly facing the teacher’s desk.
In this case, the complainant claimed to have told other students at the time, although why they would need telling given that they had watched it was not explained. Despite having ‘seen’ it and been told about it, though, on investigation, none of the "witnesses" could corroborate this claim. The only thing resembling corroborative evidence was that something claimed to have been seen by another person through a hole in a wall. However, again, on investigation that should have been done by police in the first instance, that hole has now been proven not to have existed (just like the alleged "tunnels" in the McMartin day care case in the US; Pendergrast, 1995). We are left to marvel at the police investigators’ insistence that it did. Several other witnesses and complainants claimed to have seen things through the non-existent hole, and investigations into a conspiracy are proceeding. It can now be shown conclusively the convicted person was not there when these things were alleged to have happened. Nonetheless, this man is at risk of dying in prison given his age and heart condition. Many of his routes of appeal are blocked, because his legal team failed to use much information about "recovered memories" that was available to them at the time of prosecution. Discovering that evidence not used in the first instance is relevant after the trial does not constitute "new evidence" on which an appeal can be launched.
It is also worth noting here that the original and only complaint volunteered to the police was not proceeded with as the first trial but pursued much later. A reading of her statement to police leaves one wondering about the critical thinking ability of investigating police and one can’t help asking the question would the following allegations resulting from the police trawl have been pursued successfully or even at all had her matter been dealt with first. Many new revelations have been unearthed by private detectives employed by the convicted person’s family at great expense which confirm the investigation to have been little more than a charade. Similar to the much-publicised Volkers case, which also involved a police trawl and we believe, pseudo-memories, these new facts would have been unearthed easily through the initial police investigation if as much energy had been expended checking the complainant's claims as was spent in hounding this man.
CASE 6: 1996
Another man was convicted of having sex with a handicapped 11-year-old child on the front seat of his taxi in a busy rank at a shopping centre at rush hour and sentenced to eight and a half years. He was convicted of (1) “maintaining an unlawful sexual relationship with a child under 16 years” (2) Indecent treatment of a child under 16 years (x 3). (3) Indecent dealing with a child under 16 years. Again, we question the critical thinking of police, because this was supposed to have happened in spite of the fact that due to the man's weight and the design of the car, this was physically impossible). In spite of other obvious flaws in the prosecution’s case to which we will turn in a moment, his application for a pardon was the first ever funded by Legal Aid, which requires 90% certainty of success before proceeding with such a venture.
The injustices in this instance have been summarized by an expert in the area of false memories of sexual abuse. After the man’s release from prison, we obtained an expert opinion from Senior Clinical Neuropsychologist, Dr. Andrew Gibbs, who at the time was Senior Clinical Neuropsychologist at the Royal Melbourne hospital. His report is dated 24/3/03. Under ‘Summary of Opinion’ he says there are a number of matters of relevance to examine. These are ; regarding’ Recognition memory and independence of identification of grave ‘--- The seeming “identification” of the gravestone by (complainant) is spurious.
‘Psychological Examination of Capacity of Complainants’---- There is concern that the psychological examination of capacity of the (2) witnesses (complainants) included no specific measures of memory.
‘Suggestive Questioning Methods’----There is evidence of suggestive questioning within the police interviews of (one complainant), including highly leading questions concerning the belated claims of anal penetration. (Gibbs did not have the opportunity to examine the interviews of the other complainant)
‘Claims of Not Remembering by Complainants Where Expected’----- There is concern that both complainants make claims of “not remembering”, as their reason for not making previous claims.
‘Evidence of Discussions Liable to Impact on Memory’----There is concern that discussion has occurred amongst a number of witnesses, quite apart from “coaching”. This has the capacity to adversely impact on the reliability and validity of evidence provided in persons without disability, let alone those with it. (Note; both complainants had disability)
‘Evidence of “Coaching” liable to impact on “memory” ----- There is concern that the witness (major complainant) has been “coached” in her statements.
Despite numerous obvious injustices in the case, and his clear innocence, the pardon was denied. We suggest that it was denied by a government afraid of the negative publicity, and an opening of the floodgates on many similar cases.
CASE 7: 2003
Another man was the victim of a family feud in which a sister, jealous of the fact that he had been made executor of the estate, first threatened to "stitch up" her father to force a change to the will. Failing in this, she then advised her brother that he'd better refuse the executorship of the will. When he declined, she "recovered" memories of him abusing her when she was young. Despite substantial evidence of changes to her story and a diary that was demonstrably fabricated (and partly plagiarized from psychology textbooks), the man was pressured into pleading guilty when he ran out of money to pay for his defense. This was several months after a consulting psychologist had provided evidence to the man's lawyers that in the diary she claimed to have lost her virginity to another man, years after the alleged "rape." The man's lawyers did not use that information to get the Crown to withdraw the case when it was first provided. Rather, they waited almost half a year, and then when the Crown suggested mediation was more appropriate than a trial, they did not take the offer to their client until his finances had run dry. We regard this as an example of how some in the legal profession do not place the client's interests first, and more deeply, as an example of the way in which many guilty pleas are likely, in fact, to be a buckling of innocent men under pressure. Statistics about the rate at which guilty pleas are made are therefore not an accurate reflection of the true guilt of men so charged. We also maintain that this is typical of many 'convictions,' where people, terrified at the prospect of conviction once the inherent bias in the judicial system is apparent to them, make admissions to events that did not occur in an effort to reduce jail time.
CASE 8: 1993 TO PRESENT
In another case, we have a statement from an accuser retracting bizarre allegations that were made against her father in the context of a bitter custody dispute many years ago. A psychologist, to her discredit, believed that the man had danced naked in a satanic ritual in a hall in North Brisbane before some 200 children, along with another man (a local psychologist who was known to oppose the excesses of recovered memory therapy). The children were all raped that night, taken home by the man, and murdered that night (except the few he "kept.") The man was alleged to be part of a paedophile ring consisting of a number of high-profile Queenslanders, and the girl's stepfather had provided a complete listing of this group to Peter Beattie, then Minister for Justice. Had Premier Beattie acted to investigate this information, as requested by the complainant, the man could have been cleared of these bizarre charges. Instead, he has lived in a caravan for a number of years, having lost his home and possessions in the legal battle. Thankfully, after many years, the girl, now 18, has admitted in a sworn statement that her mother and stepfather cajoled her into making these allegations up on pain of punishment if she failed to convince the psychologist (whose credulity stands as a warning to the profession) that these were true.
This case has an interesting related dimension, in that the mother of the girl also forged the man's signature (by photocopying) onto a death threat that was then sent to a priest. The man proved conclusively to police that this was yet another vindictive attempt to frame him on false charges by providing the original letter to his ex-wife that had the signature on it that she had photocopied. However, instead of pressing charges against the ex, the police simply did nothing. In many cases, plainly vindictive false allegations are simply allowed to occur without fear of punishment by a system that continues to regard complainants as "victims" even after it has been proved conclusively that no crime was committed against them. We believe that the witch-hunt is fuelled by the general knowledge that when it is proved that the complainant had committed a crime against the accused, nothing happens.
We feel that this is the reason for many of the cases on our files where false allegations of sexual abuse are used simply to win custody battles following divorce. In such cases typically the mother makes a false allegation against the father because this has the immediate effect of eliminating, or at least severely limiting, his access to the children. This may be done out of sheer vengeance, or for a profit motive (e.g., maximising child support by minimizing contact time), or for both. By the time an investigation occurs, the status quo is established, and even if the man is cleared and the mother proven to have committed perjury, the mother retains custody and is not charged, on the grounds that a change in the access pattern would result in upset to the children, especially if the mother were punished for her crime. The next case illustrates the extent to which the problem may extend to people who accept punishment for crimes they did not commit out of fear of greater punishment when authorities abuse their powers. It also gives fair warning as to the number of people damaged by the moral panic who have not gone through the justice system, but who have been victims of the administrative systems that are themselves infected by this panic.
CASE 9: 1993
The preceding cases, having passed through the system, are on our files. We believe that they represent the tip of a rather large iceberg. A case not on our files reflects what is below the surface. A man involved in a custody dispute some 12 years ago had a weekend visit with his daughter whilst matters were being settled. With his new partner in the room, the daughter played a joke on him that was all the rage in Grade 2, asking him if he had holes in his underwear. She did not get the expected reply, "No," and so could not deliver the punch line, "So what do you put your legs through?" Instead, he dropped his pants low enough to show her that indeed, there were holes in his underwear. The man, his new partner and the girl had a good laugh. A few days after the visit, when the police arrived with a social worker, the man was informed that he would be jailed for indecently exposing himself, unless he signed a waiver agreeing not to see his daughter again until she was an adult. He initially protested, telling them the story above, and indicating that he had a witness (his new partner) who had seen the whole thing. However, it was made clear to him by these authorities that having a witness was not sufficient, that nobody would believe her anyway, because she was his defacto, and that he would lose in court. We believe that the high conviction rate on such matters is due to innocent people pleading to lesser charges due to the sort of fear that he was experiencing, however, this information was not available to him. Instead, he believed the police and the social worker, and agreed to miss out on his daughter's life rather than humiliate her by being incarcerated. It has been some 12 years since he has seen her. Because of this moral panic, which inflames fear in the hearts of such men, we believe that there are many children who have been robbed of their fathers in this way.
CASE 10: 2002
We are also aware of a case that was thrown out very quickly because "recovered memories" of a man abusing a young girl were highly dependent on the fact that the events were alleged to have happened on a particular striped sofa when the girl was about five. The police, in their investigation, took photographs of the sofa to prove that it was in the man's home at the time of investigation (some twenty years after the alleged events). However, had they bothered to investigate the provenance of the sofa, they would have found that it was purchased some seven years after the alleged events, making the memory impossible. Fortunately, this man was able to provide a receipt in court proving beyond a shadow of a doubt that this was the case. That receipt was his saving grace.
CASE 11: ONGOING
We are even aware of grandparents who had to care for a grandchild whilst the mentally ill, drug-addicted daughter was incapable of doing so, only to find themselves accused when once the mother got out of an institution, again, it would seem, so as to win a custody battle that, in this case, had not even started yet. The fact that the grandchild vigorously denies any such molestation, and overtly accuses the mother of making it all up seems irrelevant to those currently investigating the case, who refuse to provide any information to the grandparents, who have been waiting for the axe to drop for almost a year.
CASE 12: 1998-2003
While the next one is not an historic case it demonstrates how counselling, the effects of bad methods of police questioning and suggestion by significant others can impact on the disclosure process. This saga began with the mother of the 9 year old child taking her to police with the complaint that the child had told her “she could remember (the now- estranged father) taking her pants off.” As noted in previous cases, the mother and father had been going through a bitter custody dispute. The child was extremely vague in her first interview, however, under suggestive prompting, recounted him touching her every night after waking her up. She couldn’t remember any more happening “as she went to sleep being very tired from school.” Remarkably, the police referred her to see a doctor who then referred her to see a Psychologist. After 14 sessions with the psychologist before committal, the initial charge grew from indecent dealing (pre-counselling), to permitting indecent dealing on oneself, incest and sodomy. (post-counselling). Consequently, the father served 6 years in jail and now remains determined to fight on to clear his name, arguing on the premise that consistent with what is known about using suggestive questioning on children, the "memories" were created by the investigators and the psychologist assisted by the mother, then taken as factual accounts once the child was - abusively, in our view - led to believe them. We ask the reader to note this case especially, as we refer to it again in our discussion of the particulars of the CMC report.
CASE 13: 2002-2003
In another case not on our files, but well-known in the media, the Governor-General of Australia was initially identified as possibly having engaged in a cover-up of sexual misconduct in the Anglican church many years prior to his appointment in the highest office. The public furore led to massive media attention, and the second author suggested that it wouldn't be long before somebody "recovered" a memory of him having abused her as a child. True to prediction, one Annie Jarmyn later accused Hollingsworth, on the basis of recovered memories, of having molested her at an Anglican facility when she was younger. This case is interesting because Jarmyn was reportedly counselled by Hetty Johnson's organisation Bravehearts, which we suspect promotes recovered memories as "real" (and which claims as a member the ex-wife of the man accused by his daughter of molesting her at the age of three.) Not long after evidence emerged that when Jarmyn was young, Mr. Hollingworth was never actually at the institution where the abuse was supposed to have occurred, Jarmyn tragically committed suicide. We report this because we are seriously concerned that recovered-memory therapy fails to prepare its victims for real life, as it encourages hiding from anyone who challenges the memories rather than coping with their inherent ambiguity and inaccuracy, and it fails to recognise that they may have been created in therapy. We add as a parallel observation the fatal deterioration of Jennifer Hendricks in the wake of pressure to recover “memories” of sexual abuse that the mental health professionals in her case assumed to be present, and pressured her to recall.
In that widely circulated paper of February 1998, the first author set out ten urgent recommendations. They are even more urgent today. That paper pleaded for us to learn from the American experience and to take up the challenge now. It laid out how the choices are very clear and the challenge to us all as individuals and as a society is whether we are capable of acting now, or whether we allow the situation to drift and degenerate. Speaking as a wounded survivor of this war, he stated the latter prospect, is too horrendous to contemplate.
Summary
It gives us no pleasure to say today that the situation has been allowed to drift and to degenerate. Will that plea be ignored once again? We have provided but a small sample of the most blatant miscarriages amongst the many cases of which we know, and by now we hope that the question that cries out for an answer is, "How can this type of 'evidence' be considered credible enough to put before a court, particularly when there is no corroboration and it comes down to one person’s word against another? And more central to the present inquiry,
1. How can the training of mental health professionals remain so substandard that such practices continue in this country, and;
2. How can the mental health profession support continued statements both in and out of court - from practitioners about the veracity of recovered memories, when there is no evidence base to support such statements, and no demonstrated ability of such practitioners to tell truth from falsehood?
WHENCE THE MADNESS?
To explain this phenomenon at least partly, we have heard the argument that juries - as representatives of public opinion and perceptions - have accepted a lowering of the bar in terms of what is an acceptable level of proof of guilt. That is to say, what constitutes reasonable doubt now extends to far more dubious sorts of evidence. Furthermore, the experience of the second author in teaching in this country is consistent with a lowering of the bar as to what constitutes evidence of support for scientific theories in psychology.
From what we have seen this is clearly the case. After all, jury members are as subject to the influence of “moral panic” and the witch-hunt as any other members of the public, as are all actors in the criminal justice process. This leaves us with the question of whether or not we must simply accept the jury as the final arbiter and wait for the general public to come to its collective senses? To this we respond, surely not, for to accept this would mean many more innocent lives being smashed forever over the coming years. In parallel, we must ask why sound training in logic and science is not a sufficiently pre-eminent feature of mental health practitioner training that it overrides the belief in current cultural mythologies.
It has been suggested to us that there is a filtering process prior to the case ever being heard by a jury that should be capable of deciding in a fair, competent and professional manner whether or not there is a reasonable case for an accused to answer. Part of that filtering process is, quite often in the cases we have seen, treatment by a psychologist or counsellor who appears still to cling to discredited notions about memory, and false perceptions about sexual abuse and its sequelae. We further suggest that all of those filters are in desperate need of repair.
The police are said to be the first link in that chain, although therapy commonly precedes this phase. When an allegation is made to police they “generally document it and initiate an investigation."(ref Seeking Justice: An Inquiry into how sexual offences are handled by the Queensland Justice system. Crime & Misconduct Commission, June, 2003, p. 31.The QPS Operations Procedures Manual 2 identifies this police function to be “to investigate and establish if an offence of rape or sexual assault has been committed." (ref. Seeking Justice, p32). Whether the police brief constitutes evidence that is sufficient to justify a trial is then decided by a magistrate at committal. The DPP then generally assumes responsibility for the continuance or otherwise of the matter and has the responsibility of deciding if the police brief comes up to the requisite standard of proof. They can, in fact, override a magistrate’s decision either way within a certain time limit.
This decision “is not to be taken lightly” and “a failure to perform it correctly, apart from causing large and unnecessary expense, may put a citizen who should not be tried at risk of conviction, or set free an offender who should be brought to trial.” (op.cit. p 39). This suggests that extraneous elements - such as prosecutor's fear of negative media over decisions - should not be a factor in deciding whether or not a trial proceeds. It is noteworthy that at a meeting between CAFSA representatives (the authors of the present submission) and the Brisbane DPP Leanne Clare and her deputy in Nov. 2003, the deputy made the comment to us that it is a prosecutor's worst nightmare to convict an innocent person. In contrast to this, we are aware of a very weak case that was dropped one day due to insufficient evidence then reinstated the very next day, after the ABC's "trial by media" of Scott Volkers the night before, which portrayed the DPP very negatively for dropping that case.
The admissibility of the evidence can be challenged further by the defence before a Judge at a 592A hearing, prior to trial. However, in the spirit of increasing the likelihood of unsafe convictions that seems to be driving political will these days, there are efforts to remove this protection afoot in Queensland at the present time. The loss of this protection will only worsen the present bad situation.
Given all these safeguards, the question must be asked why so many matters are brought to trial which in our view (which coincide with the views of some senior criminal lawyers and senior highly respected former police officers) should not, under normally acceptable circumstances, have attracted charges at all. The high likelihood of a conviction once these matters reach the courts is on the record although again, we believe that this is due to a large number of cases being pressured to plead to lesser charges either by incompetent counsel, or out of fear flamed by that statistic itself.
We suggest that the same spirit is moving the abolition of the 592A and other protections in Queensland, as moves the prosecution of blind men for voyeurism, and which moved the prosecution of women for witchcraft in the Middle Ages. It is the same spirit that struck fear into the heart of the man who gave up his daughter out of fear of his fellow citizens branding him a paedophile. It is the same spirit which moved Dr. Margot Legosz, Senior Research Officer of the CMC inquiry, to write that the inquiry “heard from victims of sexual abuse, and those who claimed to be falsely accused.” In our view, each is a claim - that of being a victim, as well as that of being falsely accused – should be subject to fair testing. But that view does not seem to be shared by many of those who are in a position to provide the sort of fairness that is required at trial.
We argue that the public has the right to expect our criminal justice system to rise above such social aberrations as witch hunts or at least have the ability to react fairly quickly and rectify the imbalance. In this instance, it has done neither after nearly two decades. That is not to say some progress has not been made. Of course it has. However, we argue that much more needs to be done to limit the incidence of further miscarriages of justice.
Our discussion in the next section begins with the first link in the chain, which is the background of many of these cases in some type of therapy. We then discuss how the shattering effects of recovered memory therapy (RMT) echo through other aspects of the investigative process, the DPP decisions and the court processes.
THERAPY IN HISTORIC CASES
We note that internationally, there is growing recognition of the many injustices inherent in historic cases. We applaud the formation of the Historical Abuse Appeal Panel formed in the UK in September 2003. (http://www.appealpanel.org/default.cfm), which has been formed to address the fact that they have the same problems there as we do here, as do the various professional bodies that have, over the years, recognised that some forms of therapy can produce pseudo memories, or recollections that appear to be memories, but in fact are false with respect to historical events. These may contain elements of truth (eg., a person really did live in House X), but certain facts are misaligned (eg., abuse was supposed to have happened at the age of 3 in House X, but House X was not purchased until the person was 11 years of age). The problem of the emergence of a tidal wave of false allegations was addressed long ago, through the development of professional associations' guidelines and position statements , , , , , , , , , These guidelines in principle acknowledge the impossibility of ascertaining the veracity of “recovered memories” in the absence of corroborating evidence, and the paucity of research confirming the accuracy of such recollections. As noted in the Brandon Report of the Royal College of Psychiatrists Working Party in the UK, “There should be a significant number of corroborated cases recovered through psychotherapy in the literature. In fact there is none.”
One organisation in Australia (the Australian Psychological Society) has watered down its guidelines to omit reference to third party duty of care in a move viewed by some as an attempt to protect their members against the consequences of some of their therapeutic excesses, the Australian Counselling Association has only this year adopted a policy on the practice of Recovered Memory Therapy which explicitly identifies such liability as a possible legal consequence that should be considered by members.
It is equally interesting to note the Royal Australian and New Zealand college of Psychiatrists clinical memorandum 17. “Guidelines for Psychiatrists dealing with Repressed Traumatic Memories” adopted in May 1996, and to be reviewed by May 2001. 2 (c) reads, “Memory of such abusive experiences (referring to physical and sexual abuse in early and later childhood), may be absent for considerable and varied periods of life and maybe recalled under any of a variety of circumstances, including as a vicissitude of undergoing psychiatric treatment for (at least initially) apparently unrelated reasons.” Indeed, we are aware of one case in Victoria where a man was convicted largely on the basis of this position statement, despite the absence of any evidence to support it outside of clinical speculations cited in support of later clinical speculations.
It cannot be the case that evidence was then available to support the notion of repression, as an evidential vacuum remains to this date. On what basis the RANZCP made this statement we have no idea. We observe that Matthew Goode (S.C., A.D.P.P., A/Prof. Law, Adelaide U.) delivered a cautionary paper in the mid-1990's warning of the potential for disaster in Australia if our professionals followed in the erroneous footsteps of their American counterparts by accepting recovered memory therapy, where he stated: “I hope, without much conviction, that Australian society and the Australian legal system will not undergo the hysteria now present in the United States on the question.” We concur with Mr. Goode that we hope we can learn from the US experience, but we too lack optimism about our prospects. This is because we observe that Royce Miller's guidelines against hypnotically refreshed memory were based on what was common knowledge in 1994, and we ask how these Australian lawyers could be so aware of the nature of this malpractice, when Australian professionals who should have known better seemed either not to be aware of it, or not to care.
Individuals engage professionals, paraprofessionals and unqualified people who self-identify as "counsellors," with an eye to resolving some emotional, psychological or other problems. Commonly the therapist involved represents himself or herself as having specialized qualifications and knowledge beyond that of their client. That, after all, is the point of providing a service of some sort. Unfortunately, the public at large is ill-informed about the differences between a psychologist, a psychiatrist, and a counsellor, and often believes – erroneously – that if one is practicing as a counsellor, one “must” have some sort of appropriate qualifications. The question of public education that this raises is one of vital importance, and we hope that the Victorian inquiry will frame recommendations that will lead to a major programme along these lines.
While valid instances of corroborated “repressed” memories do not appear to exist, there is an abundance of cases where the processes by which pseudo memories are created have been exposed. In the US, Pendergrast has recounted tales told by “retractors,” as individuals who have recovered memories, only to find them false and recant are called. In Burgus v. Braun & others., one of the largest judgements against therapists for instilling false memories brought to light videotapes of the manner in which a woman, whose presenting complaint was of depression, was brutally browbeaten by the defendants into believing that her family were a ring of Satanists who had brainwashed her. Hernbacher describes an episode from her therapy thus:
"One day in the group, a girl was talking about a frightening experience she'd had that day. A man had approached her in the park, scared the hell out of her. This brought up everyone's issues with abuse and fear and inappropriate behaviour...I got up and walked out of the room...A Staff came after me. After a few minutes, I told him, through tears and gasping, that I'd been sexually abused by men in my father's theatre when I was a child. It was a lie. It was not premeditated. It leapt into my brain and I spit it out... Just as I spit it out I realized the effect it would have: The remainder of my time in Lowe House was spent dealing with this non-issue...”
There is no research that suggests that therapists are better than the average person at detecting a lie. Hornbacher's experience reflects this, as she continues:
"All of the therapists were proud of me for dealing with this difficult issue. Everyone was almost relieved that there was a nice, pin-pointable reason for my total disembodiment, my selective amnesia, my sleep disturbances, my promiscuity, my fear of men, my issues of intimacy, my issues with trust, the whole nine yards. It all came back to the abuse, which never took place. In essence, I lobbed a firebomb to the right, and while everyone was chasing the firebomb, I disappeared stage left. Absolved. I created a straw man and he took all of the blame.”
The effects of suggestion can be subtle, and neither therapist nor client may be entirely aware of the process by which ideas like this become created. Horbacher describes how the idea “leapt into my brain,” after a session of discussion in group therapy (often a breeding ground for false memories) where it was clearly a topic of discussion. However, she does not discuss the extent to which other similar discussions, overheard, or read about in the reading materials on the clinic bookshelves, may also have suggested the theme.
Many therapists (of many different sorts) still believe in the discredited idea that memories can be "repressed" or blocked completely from awareness for many years, and some believe in the equally-discredited notion that there is some set of psychological symptoms that allows one to infer that sexual abuse occurred. As an example, we believe that there is much more to Hornbacher's account than she reveals, because following the preceding quote, she recites the mantra that was surely fed to her, along with suggestions of abuse so subtle | |
