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NZ
Herald
February 2, 2004
Victory for adult victims of children's abuse lies
Michael Corballis
Professor Michael Corballis teaches in Auckland University's psychology department.
Last month, in a landmark case in Saskatoon,
Canada,
Queen's Bench Justice George Baynton upheld a charge against three
individuals for malicious prosecution of 12 adults accused of satanic ritual
abuse of three children. [Ref 1] Those
charged were a police officer, a crown prosecutor, and a therapist.
The original charges against the 12 alleged child abusers, laid in 1990, were
stayed by the court, because it was considered the children were too
traumatised to testify further, although it subsequently became clear the
children were fabricating their stories.
Nevertheless, the accused adults were clearly stigmatised by the accusations,
and one of them, in particular, had lobbied tirelessly to have his name
cleared, along with the names of the other accused. For these people - normal
citizens of a normal provincial town - the ruling is a significant victory.
Justice Baynton also noted that the children themselves were significantly
harmed by the actions of the police, social welfare workers, and therapists.
The original case shares several features with that of the Christchurch Civic
Creche, which resulted in the conviction of Peter Ellis on charges of the
sexual abuse of children. Both took place in the early 1990s when hysteria
over satanic ritual abuse was at its peak; both involved the zealous efforts
of a police officer bent on exposing such abuse; and in both cases a mental
health professional was critically involved.
In both cases the evidence of abuse was based almost exclusively on
"disclosures" of abuse from the children, and was followed by later
retractions.
In both cases only one person of those initially charged was convicted and
sentenced, although the circumstances were rather different. In Christchurch the charges against the civic workers were
eventually reduced to restricted charges against Peter Ellis, while in Saskatoon the father of
one of the accused foster parents pleaded guilty to one charge against each
of the children as part of a plea bargain.
There were, of course, other differences between the two cases. In the Christchurch case, the
alleged victims were presumably normal children attending a childcare
facility. In the Saskatoon
case the children were from a dysfunctional family and were fostered in other
homes.
It became clear that the main perpetrator of sexual abuse was one of the
children, and the stories were fabricated by this child and his sisters in an
attempt to have him taken from one foster home and reunited with his sisters
in another.
The stories were amplified by these and other children into tales of satanic
ritual abuse, involving the killing of babies and animals, and the ingestion
of human flesh and bodily products. It is probable that such stories were
implanted in the minds of the children during the long and repeated attempts
to extract disclosures of abuse, and it is a measure of the hysteria of the
time that the stories were widely believed.
The Christchurch
case included similar elements. Yet in the Saskatoon case it should have been evident
from the beginning that the children were not reliable witnesses. It was
well-known that all three children had what was euphemistically referred to
as a "touching problem", yet the policeman and the therapist
nevertheless persisted in extracting "disclosures" about abuse, and
in believing the children rather than the adults.
The therapist appears to have adopted the extraordinary attitude that the
disclosures were critical regardless of whether or not they were true. When
they were revealed as lies, she showed no signs of remorse and offered no
apology for the distress and stigma suffered by the accused.
The attitude of the therapist may well be described as malicious, although in
legal terms "malice" has a definition that is at once broader and
more specific. A prosecution is considered malicious if it was carried out in
the absence of reasonable and probable cause, and for a primary purpose other
than carrying the law into effect.
The prosecution must also have been initiated by those accused of the
malicious prosecution, and the proceedings must have been terminated in
favour of the plaintiffs. Justice Baynton found that all these conditions
were fulfilled.
My guess is that the missionary zeal of the prosecutors was based more on
ideological conviction than on personal malice, although the one may well
breed the other.
In a recent
dialogue article, Emma Davies rightly noted that the questioning of
children in court must be handled with extreme care and sensitivity,
especially in cases involving alleged sexual abuse, and that it was of
paramount importance to discover the truth of what actually happened.
She also suggested there was an imbalance in the way information was obtained
from children. Referring to a study in which she was involved, she wrote:
"We found that child interviewers responsible for taking videotaped
statements were sensitive and careful when interviewing children. Defence
lawyers were not."
This may not always be the case. In the Ellis trial, one of the psychologists
who gave evidence said, "I was actually very impressed with
what's-his-name [the defence lawyer]. I thought he'd be a real shit to those
kids but in fact he was very engaging. He was quite gentle and
sensitive".
Even the children were impressed after a day in court. One of them told his
mother that Ellis' lawyer was kind to him.
In the Saskatoon
case, too, Justice Baynton wrote that the defence counsel were polite and
considerate toward the children. Further, every care was taken to ensure that
the courtroom provided a sympathetic environment.
The accused adults were hidden by a screen so the children would never have
to look at them, and the public and media were excluded when the children
testified. The judges doffed their gowns and wore suits to create a less
intimidating atmosphere.
Dismissing suggestions that the children were suffering from fear, trauma or
exhaustion in court, Justice Baynton wrote: "It should have been obvious
that the poor performance of the children was caused primarily by their
inability to accurately relate the fabrications they had previously made, and
their inability to weave new fabrications consistent with those they had
previously made."
He also remarked that the intense pressure on the children to make "disclosures"
of abuse was "far more traumatic than any court proceedings could have
been". Any trauma they may have experienced in court came about when it
was made plain to all, through glaring inconsistencies in their stories, that
they were lying.
To their credit, the children, now in their 20s, later retracted.
This case should not, of course, be taken to imply that children always lie,
or that those accused of abuse are generally innocent. Rather, it raises two
important points.
First, failure to arrive at the truth is not always due to aggressive
questioning by defence lawyers. Those bent on prosecution can also behave
aggressively, and have greater opportunity to do so outside court.
Second, it reminds us that false accusations of abuse are as damaging to
those accused as are failures to apprehend the guilty, and perhaps more so.
Justice Baynton wrote perceptively: "The ideological pendulum in our
society has a history of swinging from one extreme to the other. In the early
1990s, pursuing allegations of child abuse was the ideology of the day. At
the outset of the 21st century, pursuing wrongful prosecutions and
convictions appears to be the ideology of the day. Hopefully a balance of
these ideologies will prevail."
Up to 1989, the word of an adult was generally taken over that of a child,
and judges frequently warned juries that children could be more imaginative
and suggestible than adults. In 1989 the law concerning children's evidence
was changed, and judges were no longer able to give this warning.
This change came about as a result of claims that the incidence of child
sexual abuse was higher than previously thought, and it was widely proclaimed
that children never lie.
Both children and adults tell lies, and it is also increasingly recognised
that memory is highly fallible. To misrecall the past is not necessarily to
lie. We should not always believe children, just as we should not always
believe adults.
Accusations of satanic ritual abuse may now be largely a thing of the past, but
there are undoubtedly still innocent people who have suffered the stigma of
false accusation, and in some cases wrongful conviction.
The Saskatoon
affair may be just the tip of an iceberg, and is a timely reminder that
injustice can cut two ways.
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References:
[Ref 1] Download
Queen's Bench Justice George Baynton's judgement (pdf file: 377 KB)
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