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Newsmaker: Child
psychiatrist Karen Zelas, a key prosecution witness in the trial of Peter
Ellis, is blamed for a possible miscarriage of justice in another sex abuse
case. Anthony Hubbard reports. Karen Zelas was once a
star on the sex abuse circuit. Senior judges praised her performance in
difficult trials. Journalists sought her views whenever the subject came up.
She helped rewrite the rules governing expert testimony in sex abuse cases. Now the star is under a
cloud after the Court of Appeal strongly criticised her role in the case of a
man convicted on 16 counts of abusing three young girls, saying she had
"gratuitously exceeded the limits of expert opinion". She "may well have
been perceived as an advocate for the complainants rather than as a truly
independent expert", the court said. While it was "most
regrettable" that the girls would have to undergo the stress of a new
trial, they said, the appeal must be allowed. Zelas, once a media
favourite, now avoids interviews. She declined to discuss the latest case
with the Sunday Star-Times. The eminent child psychiatrist lives quietly in Controversy, however,
continues to surround her and the set of legal rules which she helped design
for child abuse cases. These rules are now under attack from lawyers,
psychologists, academics and even some judges. Zelas' career as an
expert on sex abuse covers 25 years of mounting national argument over the
subject. From the late '70s, she
was a pioneer and a crusader in the field of child abuse. The problem was
"far more common than most people realised" she warned in late
1978. She also became a leader in the field of treatment of abused children. For feminists and
others, the campaign against child abuse was a social breakthrough, an
acknowledgement of a problem previous neglected. Others saw it as "the
sex abuse industry" which replaced injustice towards the abused with
injustice towards the accused. "If anyone brought
the virus into Her reputation in the
field grew steadily. Ironically, the Court
of Appeal once seemed to be one of her greatest admirers. In 1994 it asked
Zelas - "a leading consultant psychiatrist in this field in In the 1993 Peter Ellis
trial she was a key expert witness for the prosecution. The Ellis case, and
its subsequent appeals, put Zelas in the national spotlight for the best part
of a decade. To her supporters, she
was the expert who helped clinch the case and put away a man they regarded as
a monster, a ruthless predator on defenceless children. To her critics, she was
part of a system that convicted an innocent man, and that threatened the
rights of others wrongly accused of child abuse. But both sides agree that
Zelas is an accomplished courtroom performer: unflappable, cool, poised and
intelligent. Part of the debate
centres on changes to the law of evidence in sex abuse cases, changes that
Zelas helped design. She was part of an advisory committee, headed by
pediatrician David Geddis, that recommended amendments in 1988 to the
Evidence Act. The critics describe
some of the changes - enacted into law the following year - as flawed or even
meaningless, and likely to lead to miscarriages of justice. They particularly
dislike Section 23G, which governs the testimony of expert witnesses. This section, which
featured in the Ellis case and some other famous sex abuse trials, allows an
expert witness to say whether the child's behaviour "is consistent or
inconsistent with the behaviour of sexually abused children of the same age
group". This clause, according
to New Zealand Law Journal editor Bernard Robertson, is actually meaningless.
"The phrase 'inconsistent with' means 'logically incompatible with'. Now
there is in fact no human behaviour that is logically incompatible with
sexual abuse." Psychologist Barry Parsonson,
who appeared as an expert witness for Ellis at the Court of Appeal in 1999,
says "there is no behaviour that is characteristic of sexual abuse
only". Behaviour such as
bedwetting, nightmares and so on could be a result of many other kinds of disturbance,
including a bad divorce or disharmony at home. "The lists used in
the Ellis case to say, 'These are the sorts of things to look for if your
child has been sexually abused' are essentially meaningless," says
Parsonson. Lynley Hood's book A
City Possessed, the Christchurch Civic Creche Case, records that Zelas was
asked at the Ellis trial: "What behaviours in young children are
inconsistent with the child who had been sexually abused?" "I haven't thought
about that," she replied. But she insisted, Hood writes, that the
child's history of being happy at the creche and withdrawn at school was
consistent - and not, as defence counsel Rob Harrison suggested, inconsistent
- with her being abused at the creche. The law allows the
expert to testify about "the general development level of children of
the same age" as the child who has been allegedly abused. But the whole
notion of fixed stages of child development has now been debunked, Parsonson
says. This is an important
issue, because in sex abuse trials it is sometimes claimed that abused
children displayed sexual knowledge or behaviour they could not otherwise
have known about at their age. But nowadays
researchers believe that "age isn't the important thing any more. It's
the experience the kids have", Parsonson says. Ideas about what was
normal sexual behaviour among children had changed. "Kids have access to
all sorts of information that a lot of nice middle-class people don't think
they have access to," he says. The act provides that
evidence can be given only by doctors, psychiatrists or psychologists with
experience in the treatment of sexually abused children. Dr Maryanne Garry,
senior lecturer in psychology at "The only reason I
am able to keep abreast of the research," she says, "is because I
spend 50 to 60 hours a week doing so." Garry cites the case of
"draw and tell" interviews with supposedly abused children. Research in the mid and
late 1990s suggested that when children were asked to draw pictures while
reporting their experiences, they provided more information than those who
just talked. The information, however, showed no loss of accuracy. But more recent
research, including that published this year by Garry and colleagues at There are clearly many
ways, says Parsonson, "in which we can all convince ourselves that
things that didn't happen did happen". This kind of research
clearly matters, because it has implications for the interviewing of alleged
child abuse victims. The Ellis trials spent an enormous amount of time
discussing whether the interviews with the children were reliable. Several courts, and the
inquiry by former Chief Justice Sir Thomas Eichelbaum, concluded that the
interviews could be relied on. Parsonson disagrees. Crucial children's
evidence was contaminated by, amongst other things, parental involvement. "It doesn't mean
the kids lied. They might well have very much believed that it
happened." This particular piece
of the law is clearly also bothering some on the bench. In the The problem is that
expert witness, in giving an opinion about whether the child's behaviour is
"consistent with" sex abuse and so on, can all too easily signal to
the jury they think the child has been abused. This is what the judges
found Zelas had done in this case, although "we do not suggest that the
excess was deliberate". The judges were
especially concerned that Zelas had told the court, when speaking of one of
the girls, that "there has been no known prior sexual abuse". This
was not only a factual matter outside the scope of permissible expert
opinion, they said. It also carried the "inevitable inference" of
Zelas' opinion that there had been abuse in this particular case. The judges also picked
up Zelas' statement that: "It is not realistic to expect a child of J's
age to be able to accurately estimate distances or describe geographical
locations and J showed herself to have difficulty in this area." "We think that
comment was not so much an opinion as to J's mental capacity as an apology
for the quality of her evidence in certain respects," the judges said.
Zelas had "in many subtle respects" crossed the boundary between
permissible information and impermissible evaluation of the complainants'
reliability. Parsonson, a former
head of the Psychologists' Board and now academic administrator at Hawke's
Bay's Eastern Institute of Technology, says it is easy for an expert witness
to overstep the mark. The flaws in the legislation, however, remained, and
were likely to be a continuing source of trouble. |
