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Sunday Star Times
July 9, 2000
page 3
Lying with conviction
by Donna Chisholm
The story of how an
innocent man was locked up for 14 months on sex charges against his own son
is a tale which should make all fathers very afraid. The case is about to
become the first considered under new rules to compensate the wrongly
convicted. Donna Chisholm reports.
At 13, Sam is his father's boy. He has the same dark eyes and olive
complexion, the same sturdy build, the same love of sport.
He loves his dad, too. He tells him so all the time--even hugs him when he
leaves the house. Quite something for a teenager.
Yet six years ago, Sam told such convincing lies he had his father sent to
jail for sex abuse.
For Sam, the saga has lost much of its horror through the telling and
retelling. He speaks with almost chilling dispassion about why he claimed
after a year of professional counselling that his father sodomised him.
"I was angry at him. I thought he was a bit unfair making me go to bed
early. I made a decision to get back at him."
Yes, there is much more to this story than that. But ultimately, Sam's father
Michael fell victim to a system which, where children and sex are concerned,
presumes children never lie, and abuse counsellors always elicit the
truth--if they dig hard enough, long enough.
"Kids can lie at any time," says Sam.
Once he told his story, there was no going back. "It was like a tidal
wave," he says. "About a week later I started thinking about it. I
thought I shouldn't have said that, but I had to keep going. If I kept
changing they would have thought I didn't know what I was doing. I worried
about what was going to happen to dad . . . I thought he'd go to jail and I
thought jail would be really bad--cold and dirty
and all that."
Michael spent 14 months in jail on the strength of Sam's assertions before
the boy admitted he'd lied. Younger brother Jason alleged he, too, had been
abused. But the jury had had sufficient doubt to acquit on those charges.
Michael can remember those jury verdicts--guilty and not guilty. "My mum
shouted `You have jailed an innocent man'. I was collapsing. I am sitting
there, nearly falling through the ground, crying my eyes out in sheer
disbelief. My side was going berserk."
For Michael and other men falsely accused, the problem is how to prove the
abuse did NOT occur.
For police and therapists, the issue is how to protect kids from parents who
really do abuse them, given it's a crime of secrecy and there is often a
dearth of physical evidence.
"I had an open mind about guilt or innocence in this case until I looked
at the file," says Michael's lawyer Rob Harrison, who took the case over
on appeal. Harrison was no stranger to such cases, after representing Peter
Ellis in the infamous Christchurch
creche trial.
"I started having real concerns, not just because the child had
retracted, but because I discovered the extent to which there had been input
into the child's evidence," he says. "It just had `done like a
dog's dinner' written all over it."
The "input" was a year of almost weekly counselling more than two
years before the trial, initiated after the boy began to display
inappropriate sexual behaviour at school--simulating intercourse with a girl
and touching other boys' genitals.
It was, police say, a textbook sign of abuse. But no other explanations were
sought or investigated.
Sam was referred for counselling about a month after his parents had amicably
parted, but his problem behaviour was longstanding.
He'd been a difficult child since he was two--his mother suspected attention
deficit disorder and mentioned as much to the family.
Before the counsellor even met the boy, she told Sam's mother she believed he
had been sexually abused and the abuser could well be his father.
"I just said `No way, it's the last thing he would do', Sam's mother
recalls. "It was just shock and utter disbelief."
She was right to be sceptical. But in this tale of Shakespearean twists, both
boys would begin to be abused for real within months of Sam starting
counselling. The abuser was not their father but their mother's new partner,
who was later jailed after admitting offences against both boys over a
lengthy period.
And who should be sitting alongside both boys when they give video evidence
at their father's August 1995 trial, but their paedophile stepfather, who
probably couldn't believe his luck.
Last week Justice minister Phil Goff announced Michael's case was about to go
to cabinet, after a report from a Queen's Counsel recommended he be
compensated.
So let's go back to June 1993. Ellis had just been convicted in the Christchurch creche case
and awareness of sex abuse had never been more acute in psychology circles.
Sharp divisions were becoming evident about how evidential interviews with
children should be handled. The Children and Young Persons Service supported
the children-never-lie philosophy.
But Hamilton psychologist Jane Rawls, who had
just returned to New Zealand
from researching her doctorate in the US on the accuracy of children's
reports of being touched by adults, took a more cautious line.
"Interviewing children is a complex process which can, if it includes
too many closed questions, run the risk of diverting the child from the
truth," she said.
A child's answers were only as good as the options put to them. "For
example, you could ask `Do you like red or blue'? but what happens if they
like purple?"
Rawls examined records of the counsellor's contact with Sam and was deeply
concerned. At his first meeting with the counsellor, in front of his mother
and younger brother, he "disclosed" he had sexually abused his
brother and other children.
Interviewed in front of his brother about behaviour he was getting into
trouble for, could have meant Sam welcomed subsequent suggestions by the
counsellor focusing on him as a victim not a perpetrator.
The counsellor asked him to imagine what it might be like to be a victim--a
technique which Rawls says can run the risk of false disclosures when
combined with false suggestions.
"Her repeated encouragement of him to disclose what abuse had occurred
and by whom, through techniques which required imagination from the child and
interpretation from her, was a one-sided approach at best. At worst, it
exposed him to false suggestions."
After a year of counselling, Sam finally "cracked" and named his
father as his abuser--an allegation quickly followed by an identical claim
from his younger brother, who then started to attend counselling himself.
"Eureka"
the counsellor wrote on the file. Last year, Harrison
found yet another disturbing file note, scrawled at the top of a police
report on the case. "Better one be convicted than 10 paedophiles go
free."
Harrison has been unable to establish who made
the notation, but says it was not the counsellor.
When Michael was charged in 1994 with sexually molesting both boys, his
contact with them was severed. He would not see them again for threeyears.
And all the while, their stepfather continued to violate them in secret,
maintaining the public facade of caring husband and loving parent.
Her second marriage now in tatters, the boys' mother says she is still trying
to deal with the nauseating possibility her second husband married her just
to prey on her sons.
The thought he was sitting in on the video interviews encouraging and
supporting her sons while they gave evidence against her former husband
"just makes me sick to my stomach", she says.
The boys, too, were clearly sick to theirs. Six months before their father's
trial, Sam tried to retract the claims, naming his stepfather as the real
abuser before retracting that allegation as well.
After the retraction, his mother took him back to the counsellor, who suggested
to the child he was in denial. It was only natural not to want to believe
daddy abused you, she told him, only natural not to want him to go to jail.
She did, however, advise police of the retraction. But the jury never got to
hear about it because the police failed to pass the information on to
Michael's lawyers. The counsellor herself never mentioned it at the trial.
Police, asked why the retraction was not passed on, refused to comment
publicly when approached by the Sunday Star-Times.
As Michael's life descended further into hell, his supporters galvanised for
the fight to free him. Leading the battle were his elderly parents and new
girlfriend--a woman he'd met while on bail and with whom he now lives.
"It's not a great opening line: `I've been arrested for paedophilia, how
are you'?" Michael recalls, but she stuck by him, never for a moment
believing he was guilty.
Her support impressed Harrison. "She
struck me as an incredibly level-headed woman," he says. "She is
not the mother of his children, she wasn't financially dependent on him and
she was not the sort who struck me as desperate and dateless."
Michael's mother, who has since died, also impressed Harrison.
She was strong, practical and intelligent "and a woman suffering a hell
of a lot of pain. She was watching her retirement, her golden years disappear
and her family disintegrate. She was being deprived of her
grandchildren".
"Here was a woman who had always believed in the system. She asked
me: `How could they get it so wrong'?"
For Michael, the breakthrough came six months after his trial, when Sam broke
down in tears on a drive with his mother.
"Does God know if you are telling lies?" he asked.
"Yes, God knows if you are telling lies and He knows if you are telling
the truth," she replied.
Sam began to sob. His mother stopped the car.
"Why are you crying?" she asked.
"Because I've been telling lies about daddy," he said.
Both he and his brother admitted they made up the stories because they were
sick of the way Michael treated them when they went on access visits. He was
mean to them and smacked them, they said. This was their way of not having to
go and stay with daddy any more.
The Court of Appeal quashed the convictions late in 1996.
The day after his release, Michael saw his sons for the first time for nearly
three years.
"I was terrified. I was a virtual stranger to them. But when I came
through the door, we just cried and cuddled and cuddled and cried."
Both boys now live with him. He harbours no animosity towards them.
"I know I am difficult to get along with. I tend to shout a lot. I have
instant anger and the boys found that difficult, but I love them more than
anything else in the world."
You don't have to convict someone to destroy his life, says Harrison.
"Many men have effectively lost their children on the sniff of an
allegation."
It's a message that seems to be getting through to Child Youth and Family.
To a series of questions from the Sunday Star-Times, the agency said while it
earlier assumed children making allegations could be believed, there was now
"stronger emphasis on ensuring the child's story is heard".
Jane Rawls is not aware if CYF has adopted the findings of her research about
increasing the accuracy of children's reports and integrated them into their
evidential interviewing techniques. "It would be a good thing if they
did."
For Harrison, Michael's case was a recipe
for wrongful conviction, even without the complication of the stepfather's
abuse.
"False accusations are rife. I have seen children give very convincing
evidence when it was clear no abuse was going on. I don't think it is unusual
for men to be charged with abusing children when they haven't."
Law changes in the mid-1980s which made it easier for sex allegations to be
prosecuted, with corroboration no longer necessary and allowing videotaped
evidence from young complainants, has contributed to a rise in wrongful
imprisonment, he believes.
"While children can give accurate and truthful accounts of abuse, we
need to provide some safeguards about how we obtain evidence from them.
Currently, it is not designed to get to the truth, but to get the child to
talk about abuse.
"Why would a child lie? If what the child is saying is not true, do they
know what they are saying is a lie? If they have been led to believe it is
the truth, do you understand the significance of what they are saying? It may
be someone else's version of reality, not just counsellors, but parents or
anyone with a vested interested in the child not telling the truth, such as
in marriage break-ups and custody cases." By the time the case comes to
trial, says Harrison, it is in many ways too
late to start looking for the truth.
"There is a presumption of guilt these days, from the moment the charges
are read out."
Despite the fact compensation is now certain, Michael remains an angry man.
"I won't lose the anger," he says. "How can I when I have had
my life turned upside down? Every day I think `Why is this happening to me?
What the hell have I done? All I tried to be was a good father'."
His parents who mortgaged their home to raise $60,000 to put towards his
legal bills, died within nine weeks of each other in 1998, their deaths, he
is certain, hastened by the stress of his trial and imprisonment.
His memories of jail remain vivid, particularly the scepticism of guards to
whom he professed his innocence.
"A guard asked me what I was in for. I said sex offending but I am
innocent. He goes, `Oh yeah, you're all innocent' and I said no, I am and I
will prove it. He said `No one does'."
What kept him sane during those days of frustration, anger and grinding
boredom was the thought that some day, those responsible would pay.
"You make an allegation, you ruin a man's life. There are still people
who think because I was charged and convicted that I was guilty. And I was
innocent from day one.
"This is about the worst thing you can do to a male. If you want to
screw up someone's life, accuse him of being a paedophile."
Names have been changed to protect the identity of the children
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