The Bearing of Daubert on Sexual Abuse Litigation
The Bearing of Daubert on Sexual Abuse Allegations
Presented at The Australian Academy
of Forensic Science, 9 February 2000. Pubished in The Australian Journal of
Forensic Sciences, The Official Journal of the Australian Academy of Forensic
Sciences. vol 32 No 2 45-57 June -December 2000.
The last decade and a half has seen a massive increase in
cases where people charge parents and others with having abused them sexually.
In my practice, I see more than a 100 cases per year in which allegations
of sexual abuse are made by persons referred for treatment or for medico-legal
assessment in criminal, custody or compensation proceedings. The cases to
which I refer are not those where a rape or assault took place and was investigated
while physical evidence was still present. Rather these sexual contacts are
said to have taken place a long time ago. The accusers and their bewildered
families are different from children and paedophiles whom psychiatrists encountered
20 or 30 years ago.[1]
Experienced practitioners agree that this phenomenon has
reached epidemic proportions and has all the characteristics of mass hysteria,
now termed moral panic.[2] Society has altered its attitude towards
those who claim abuse of various kinds, and it designates them ‘victims’.
This collective action is driven by hysterical beliefs, unvalidated and untrue.
What passes for ‘memory’ has become important
in legal proceedings. Specialists in mind sciences were not called as experts
in sexual abuse matters until the question of validity arose when delayed
allegations became widespread.
The 1993 United States Supreme Court decision in Daubert
v. Merrell Dow Pharmaceuticals changed the criteria
by which the views of experts are to be admitted as scientific testimony in
court.[3]
Daubert was one of a thousand actions, on behalf of infants
with abnormalities, against the manufacturer of Bendectin, known in Australia
as Debendox, a common morning sickness remedy. The judges allowed evidence
from epidemiologists who had found no excess of foetal abnormalities among
the progeny of users of the drug. The judges barred from giving evidence to
a jury those experts who only pointed out that it was impossible to prove
that no causal relationship existed when Bendectin use and foetal abnormality
coincided.[4]
The unanimous ruling states that the criterion of the scientific
status of a proposition is that is can be tested, particularly by way of a
logical process called ‘falsification’. That is, it must be possible
to specify a set of circumstances, the occurrence of which, would demonstrate
that the proposition is false.
In effect, Daubert replaces the Frye and Bolam tests of ‘expert opinion’, being that which is ‘generally
accepted’ by a significant number of authorities in the field, with
Karl Popper’s notion of science as ‘knowledge’ which has
withstood rigorous testing. This sometimes entails a preliminary assessment,
a Daubert Hearing, to decide if the reasoning or methodology underlying the
testimony is scientifically valid.
Daubert has not been adopted in Australia where simple plausibility of expertise
has held sway, with Adamcik[5] and Abalos[6] setting the standard. In each case, the High Court lost an opportunity
to comment on the difference between expert evidence within the relevant body
of scientific knowledge, and the unsupported opinions of persons who hold
expert status. The High Court confirmed that a judge or jury could choose
whichever opinion they preferred.
Scientific method includes putting up a proposition couched
in the negative, a null hypothesis, and testing it to see if it can be knocked
down. Examples of the null hypothesis are that the prisoner is not guilty
and that the unicorn does not exist. In junk science, the null hypothesis
is replaced by a positive assertion, one which cannot be proved to be untrue
even if it is untrue. One can never prove that a unicorn does not exist, as
it might always be just out of sight, so a proposition asserting that a unicorn
exists is not a suitable one for a scientific investigation. The presumption
of innocence is a null hypothesis, a hallmark of good law as well as good
science.
Hypotheses come out of their precursor paradigms. Thomas
Kuhn, in his seminal text, The Structure of Scientific Revolutions[7] introduced the concept of the paradigm as an organising principle
that governs perception itself. The book itself started a revolution in evaluating
competing theories and research results. Kuhn tells us that a paradigm is
a set of pre-scientific ideas which comprises the tenets of a given society
and it consists of an assortment of beliefs which pass for ‘common knowledge’.
Laws are passed within the taken-for-granted framework of a dominant paradigm.
Research and professional activities are predicated upon its assumptions.
What Kuhn called ‘normal science’ proceeds through
a process of paradigm shifts because, as knowledge grows, information which
does not fit in with an existing assumption causes the paradigm to become
wobbly around the edges. Then a new paradigm, a new set of assumptions, is
introduced to accommodate new knowledge gained through observation and scientific
research. This causes the community to reject the discredited model and to
shift to a new framework. When that occurs, activities which have been conducted
on a basis thus shown to be false have to be re-evaluated. When a paradigm
shift appears inevitable, some people will immediately structure their thinking
to a new one, but others will have difficulty and will retain it until they
die out. After Galileo demonstrated that the earth revolved around the sun,
a paradigm shift took place while conservative interests in Rome fought a
rearguard action.
The increase in child abuse allegations has been causally
linked to a paradigmatic set of beliefs around the notion that sexual contact
in childhood inevitably causes harm. This is a remnant of Freudian pseudoscience,
a once-dominant paradigm which posited that neurotic conditions had sexual
origins. The argument further runs to the effect that, by corollary, disturbances
in adult life can, and should, be traced back to abuse in the distant past.
This notion flourishes among patients whose therapists promote and share such
beliefs. Like Freud, they cite their own ‘clinical experience’,
what their patients told them, to justify what they believe.
The revival of the notion that sexual abuse is the cause
of later mental disorders has been traced back to a psychiatrist, Cornelia
Wilbur, who treated Sybil.[8]
Sybil displayed multiple personalities which were presented by Wilbur as caused
by sexual abuse perpetrated by Sybil's disturbed mother. After the book was
published in 1973, and followed by the film Sybil, therapists expected to find horrible sexual abuse in their patients’
histories. And they did find what they expected. Sybil herself repudiated
the truth of the story related by her therapist. Sybil had been impressed
by The Three Faces of Eve, and, having been
told that the book about her would be more successful if it had a happy ending,
she re-integrated all 16 personalities after a therapy which had lasted more
than 12 years. Wilbur had treated her unsuccessfully for schizophrenia before
experimenting with hypnosis which had generated her accounts of abuse.
During the early development of his talking therapy, Freud
wrote that ‘almost all’ of his adult female patients told him
of abuse by their fathers.[9]
For a while Freud believed that infantile seduction, in current terminology,
being ‘sexually abused’, was the cause of their ailments, then
collectively known as ‘hysteria’. His colleagues were appalled
at the preposterous nature of this claim. Freud came to recognise his role
in generating these fantasies and retracted his theory. A hundred years later,
Jeffrey Masson, in his book, Assault on Truth,
denounced Freud, claiming that he had recanted only to protect his friend
Fleiss who was, at that time, the recipient of an embarrassing sexualised
transference which, in common language, is a crush experienced by a patient.[10]
Ideologically driven feminists now believe Masson is right
and that Freud had been wrong not to accept, at face value, the reports of
his women patients.
The literature linking reports of ‘sexual abuse’
to current mental disorder is underpinned by the ideologically driven belief
that what a patient calls her ‘memory’ should not be questioned.
It is also backed by the ‘Believe the Children’ movement which
propelled Janet Reno, US Attorney General, into prominence. Ultimately, it
was her knowledge that the children associated with David Koresh were being
abused that caused her to send the tanks into Waco with the result that both
the abusers and the abused were destroyed.[11]
Many researchers and clinicians take reports of having been
abused at face value. Hundreds of publications are underpinned by two naive
assumptions: first, that reports of abuse are the equivalent of instances
of abuse and, second, that a cause-and-effect relationship exists between
these reported events and later patienthood.
The adherents of this ‘recovery’ paradigm are
called ‘true believers’. Surveys indicate that 25% of American
doctoral-level therapists, about 62,500, are ‘true believers’[12]. The
social movement associated with ‘recovery’ is said to have created,
in terms of numbers of people and resources involved, the greatest moral panic
since the Salem witch-hunts. Its adherents claim that sexual abuse constitutes
a major and ubiquitous evil in society which must, at all costs, be rooted
out. Australia is affected to a lesser degree than the United States. They
got the Puritans and we got the convicts, and thank God for that!
The recovery paradigm is laid out for the self-help movement
in The Courage to Heal,[13] a million copy self-help best seller
by Ellen Bass and Laura Davis, respectively, a journalist and a self-styled
‘survivor’. This pop psychology ‘survivors' bible’
attributes all problems of living and many other forms of disturbance to having
been sexually abused. The book advises that, if you cannot remember, it is
because you have repressed your memories. You must ‘recover’ the
memories to be ‘healed’.
Those who recovered memories in therapy are a tiny percentage
of those who believe that they have been abused. Many more identify themselves
as victims and seek out counsellors to enable them to remember and be healed.
No one denies that false memories are sometimes generated, but true believers
say that they are generated only by unethical or bad therapists. The attractions
of the recovery paradigm are its ability to rationalise away all doubts, its
explanatory power and its jargon: ‘victim’, ‘repression’,
‘remembering’, ‘disclosure’, ‘perpetrator’,
‘healing’, ‘survivor’, and ‘revictimisation’.
The recovery movement’s seminal texts are Judith Herman’s
Trauma and Recovery,[14] Lenore Terr’s dramatic Unchained
Memories[15] and Renee Fredrickson’s Repressed Memories: A Journey into
Recovery from Sexual Abuse.[16] Herman,
Terr, and van der Kolk[17] believe that memories of child sexual
abuse (CSA) are traumatic memories and that these are laid down in the brain
through a unique process that does not apply to other forms of trauma. In
Terr’s view, trauma sets up entirely new rules for memory. In their
view, a child represses, or involuntarily forces out of awareness, each instance
of sexual abuse until it is recalled in therapy. They expect that the recall
during therapy will lead to recovery from a condition which they term Complex
Posttraumatic Stress Disorder (PTSD). Orthodox psychiatrists call it Borderline
Personality Disorder (BPD).
PTSD and BPD have some clinical features in common. Both
are diagnosed by reference to symptom lists constructed by committees of psychiatrists.
Because some symptoms are common to both, true believers argue that they must
have a common cause, psychic trauma. The patient does not know about it because
it is repressed, hence inaccessible to normal everyday recalling. Therapy
will be long and costly. The emergence of repressed material is the expected
by-product of therapy. Therefore that which emerges in therapy has to be repressed
material.
My Medline search reveals over 100 studies of personality-disordered
subjects reporting CSA.[18] Most researchers have concluded that
CSA is the cause of borderline personality disorder. More significant to the
social scientist, however, is my observation that the rate of reporting having
been sexually abused within such clinical samples has risen from 10% in the
early 1980s to 90% twenty years later.
The recovery paradigm’s critics, the sceptics, have
repeatedly demonstrated it to be more than wobbly around the edges. Loftus,[19] Ofshe,[20] Crews[21]
and Pendergrast[22] all call its underlying assumptions
into question. Our compatriots, Ferguson and Mullen, reviewed the literature
to publish Childhood Sexual Abuse: an Evidence-Based Perspective, a very slim volume.[23]
Richard Ofshe was called in to assist the prosecutor in
a famous case concerning Richard Ingram where, in a small religion-obsessed
town in the United States, two girls charged their father, his friends and
public officials with years of orgies and satanic ritual abuse.[24] Ofshe found that he was able to suggest
fabricated events and that the accused father endorsed Ofshe’s fabrications
as what he ‘would have done.’ The children had been doing the
same at the suggestion of various police and clergy. Their mother believed
the accusations until they included her as well. Satanic ritual abuse has
never been substantiated by physical evidence and its existence is denied
by the FBI and the NSW Royal Commission into the Police.
The sceptics argue that conclusions drawn from ‘clinical
experience’ are biased, contaminated, dangerous, unvalidated and unscientific.
They argue that, before anyone can draw conclusions about the effects of abuse,
the question of whether or not it really occurred must first be answered.
Sceptical critics point out that no research has linked the development of
abnormal personalities solely to CSA. No researcher has validated patients’
reports of having been abused. Some claim to have done so, but they have done
it, as lawyers would say, by eliciting further particulars from the dubious
complainants themselves, and have called it ‘corroboration’. This
is not corroboration, not in law and not in science.
No research has examined the credibility of complainants.
A huge literature reports that borderline and related personality-disordered
persons misinterpret or misremember social interactions, misreport and distort
the past, lie manipulatively and convincingly, and voluntarily enter into
destructive sexual relationships even at a young age. Up to 90% of borderlines
volunteer and insist that they have been ‘abused’ and, given the
opportunity, they will, like Erika Ingram, go into a dissociated state of
consciousness and relate stereotypical events in detail and technicolour.
Critics point out that the term ‘sexual abuse’
is presumptive and ill-defined, involving activities from genital display
through fondling to brutal rape, and incorporates retrospective complaints
about consensual but illegal contact. Childhood can encompass up to 18 years.
This all confounds meaningful research.[25]
Even if it were the case that CSA, however it be defined, had occurred in
some or many of these people, causal links to patienthood would be hard to
establish given the confounding variables of upbringing and genetics.[26]
Anorexia, bulimia and chronic pain states are currently
being associated in the professional literature with sexual abuse and incest.
But anorexia is most prevalent in educated families where parents would be
devastated to learn that such allegations made by their children could be
taken seriously without further investigation. Even the bible of the American
Psychiatric Association, the Diagnostic and Statistical Manual,
known as the DSM, fails to distinguish in its
text between the idiom of ‘having’ and ‘reporting’
a history of sexual abuse. Courts have acknowledged the responsibility of
therapists to third parties when they operate on unsupported beliefs and blame
parents for their children’s difficulties.[27]
In order to explain the well-documented phenomenon of having
developed ‘memories’ of abuse and later repudiating them as having
been false and instilled by therapists, Professor Roland Summit constructed
the ‘Child Sexual Abuse Accommodation Syndrome’ (CSAAS). In this
model, threats have ensured that secrecy be maintained about the sexual abuse,
and this results in emotional helplessness and inability to resist or complain,
hence, ‘accommodation’. Then there is a later, conflicted and
unconvincing disclosure of the abuse, followed by retraction, according to
Summit, in an attempt to restore order to the family structure which the disclosure
threatens to destroy.[28] This ‘syndrome’ maintains
the truth status of repudiated beliefs but there is no way that the child
can say that the abuse never occurred.
Karl Popper would dismiss CSAAS as a hypothesis incapable
of being falsified, an example of scientific nonsense. The controversy is
played out in the New York Review of Books,[29] in learned texts, legal and clinical
journals, on the Internet and, unfortunately, in court rooms.
There is consensus that those who seek to 'recover' from
CSA are afflicted with borderline and related psychopathologies. It is the
relationship between these pathologies and CSA that is at issue, and this
must be resolved before a testable hypothesis can be generated.
True believers assert that borderline psychopathology is
a posttraumatic state caused by being sexually abused in childhood. The sceptics
observe that the making of delayed allegations of sexual and other forms of
maltreatment is a manifestation of borderline states where perceptual distortions
of past and present situations are demonstrable and prominent.
The recovery paradigm holds the moral high ground on shaky
foundations. It contains a set of discredited assumptions all of which still
underpin the Criminal Law, Victims Compensation, judicial investigations and
procedures, as well as research and therapeutic activities. Resource allocation
follows zealously held beliefs and prejudices and is influenced by a huge
industry of activists, investigators, therapists and lawyers.
Estimates of CSA in the histories of women range from 3%
to 63% with much confusion between incidence and prevalence.[30] Variance depends on how CSA is defined,
the age group specified, how questions are framed, and how the sample is selected.
A prevalence of 3% to 5% means that one child out of each class of thirty
might be abused at some time, and the number would include street kids, runaways
who enter into catamite relationships, and young boys who father children.
At this minimal estimate, childhood sexual activity is the tip of another
massive social problem.
Research suggests that sexual abuse takes place in disturbed
families in conjunction with other abuse and neglect, comprising 3% of the
abuse-neglect spectrum. However, current statistics from the NSW Department
of Community Services (DOCS) place CSA at 2,640 ‘substantiated’
cases against only 7,000 for all emotional and physical abuse and neglect
cases.[31] Without
physical evidence or a confession, the best that such so-called substantiation
can be is an assertion. These statistics have two serious consequences: if
it is the case that a false report is made and accepted, then untold damage
is done by all the interventions conducted within a framework that simply
assumes its truth. If CSA is being targeted with undue attention, then it
is at the cost of taking resources from other, more obvious, child abuse and
neglect which often have fatal consequences.
So how might this confusion arise? 129 women with authenticated,
documented histories from fondling to forced sexual intercourse dating from
the early 1970s were interviewed by Williams 17 years after the abuse. 38%
did not report the abuse but two thirds of them said that they knew something,
but did not recall the index event. They would be vulnerable to plausible
misinformation and perpetrator substitution.[32] Of the total sample, 12% insisted that
they were never sexually abused in childhood. Extrapolating suggests the possibility
that 12% to 38% of reports which should be positive are false negatives.
Sexual abuse allegations in borderline personality disorder
are well-researched. Psychotic, antisocial, histrionic, schizotypal and narcissistic
personality-disordered individuals also indulge in this behaviour. If that
personality-disordered sector of the population, say 8%, is reporting sexual
abuse falsely, and the sampled population is large, then probability analysis
indicates that any one report is many times more likely to be false than true.
Borderline and Histrionic personalities comprise 3-4% of the population and
they provide the majority of the reports that I see. Some of them have had
their day in court.
A huge Georgian study, currently on the true believers’
modern equivalent of the Index Librorum Prohibitorum,
reported that 55% of female children under 14 had sexual experiences, mostly
trivial ones, and two thirds were voluntary participants, most having initiated
the experience. A similar proportion had found them pleasant or better, 28%
of children found their childhood experiences harmful, and 16% found them
abusive. The latter were mostly the ones where it was forced and involved
penetration.[33]
Incest, defined by a relationship too close for marriage, involved less than
1% and was confined to isolated rural outposts.
The clinical evidence suggests that there are two distinct
populations which are totally different. Those who promote themselves as ‘abused’
are the personality-disordered and, as such, they do not represent the spectrum
of normal women who may have been inappropriately handled. Women who have
been raped or sexually traumatised want to get on with their lives and readily
recognise the personality-disordered who want to make a fetish of their miseries.
They decline to continue in group therapy with them.
Sexualised activities between children and older persons
are very common. Most are trivial and forgotten but it is the personality-disordered
who provide the majority of reports because, by blaming some evil in their
childhood, they find a justifying cause for their predicaments. A similar
overlap of events was noted in the nineteenth century between persons who
had masturbated, now also known to be a majority, and the mentally ill. Psychiatric
case histories of the time reflected a paradigmatic belief that masturbation
caused insanity.
The epidemic of remembering abuse has provided an impetus
for research into the science of memory. Elizabeth Loftus has 200 memory experiments
to her credit, all of which demonstrate that memory is fragile and unreliable.
She denies the need for ‘new rules,’ pointing out that children
who witness rape, homicide and suicide do not suffer from traumatic amnesia.
Loftus writes:
“Human remembering does not work like a videotape recorder or a
movie camera. When a person wants to remember something, he or she does not
simply pluck a whole memory intact out of a ‘memory store’. The
memory is constructed from stored and available bits of information; any gaps
in the information are filled in unconsciously by inferences. When the fragments
are integrated and make sense, they form what we call a memory.”
Loftus repeatedly demonstrates how easy it is to trigger
false recall in normal volunteers rendering them incapable of differentiating
confirmed events of their childhood from experimentally implanted false narratives.[34] She
argues that no experiment can be devised that will differentiate repression,
a phenomenon for which there is no evidence, from simple forgetting which
is common.
Loftus tells a personal story. On her 44th birthday, at a family gathering,
an uncle informed her that she had been the one to discover her dead mother’s
body when she was 14. Until then, she remembered little about the death itself.
Suddenly the memories began to drift back, clear and vivid. A few days later
her brother called to say her uncle realised he had made a mistake, that her
aunt had found the body, not Loftus.
“Therefore, those few days of ‘recovered’ memories were
utterly false,” she wrote. “My own experiment had inadvertently
been performed on me! I was left with a sense of wonder at the inherent credulity
of even my sceptical mind.” [35]
Studies of hypnotism, borderline states, trance-mediumship,
multiple personality, hysteria, brain disorders, epilepsy and psychosis reveal
that memory associated with these states is qualitatively different from that
found in laboratory studies of healthy individuals.[36]
The characteristics of memory and recall are not common
knowledge. Commonplace but mistaken beliefs underpin the statements that false
memory victims provide with great detail relating to action, costume,
climate and furniture. The level of detail is well beyond normal memory. The
form of the allegation, known as the ‘Hollywood presentation’,
is that of a film or video, and this is consistent with mistaken beliefs of
the accuser or her assisting scribe.
Recovered memory is claimed in jurisdictions where the statute
of limitations can be overcome by claiming delayed awareness, but denied in
those states where it is not admitted as evidence. It can be used to explain
a family that was happy before the allegation surfaced. But is it memory at
all? The multiple phenomena covered by the term ‘memory’ are part
of the diagnostic repertoire of psychiatrists trained in the identification
and diagnosis of false belief states.
The conflation of mental content and psychiatric phenomenology
with ‘memory’ originated in American folk psychology was taken
up by professionals who had little if any experience of working with the mentally
ill and mentally disordered. Psychologists are not universally trained to
recognise psychopathology. The focus on the notion of memory has hijacked
the debate into arguing about the truth or falsehood of mental content. For
example, the False Memory Syndrome Foundation in the USA has limited its language
and thinking to the ‘memory’ model and seems to be locked into
it.[37] I suggest
the Abigail Syndrome, after the leading character Arthur Miller's updated
screen play for The Crucible, described as ‘a timeless tale of truth
on trial’.[38]
Everything we say is prefixed with a silent “I know”
or “I remember”. ‘Pseudomemories’ known to psychiatry
include beliefs based on information from another person, scenarios borrowed
from television, films and books, the products of guided imagining, delusions,
dreams and nightmares, elaborations engendered by therapeutic processes or
by hypnosis or trance in a process known as ‘hypnotic pseudomemory production’,
inserted memories, mystical experiences, oedipal fantasies, plausible explanations,
reconstructed scenarios and unverified conclusions achieved by short-circuiting
in panic situations. A thorough psychiatric examination also searches for
indoctrination suggestion and fantasy.
Courts are not in a position to recognise what the psychiatrist
sees as the products of dissociation and manifest hysteria. The court sees
a well-rehearsed performance. The psychiatrist observes the alteration in
consciousness, the change to a different voice, and trance-like behaviour
associated with detailed, but false, ‘remembering.’
The layman rarely recognises the pervasive disorder of perception
of the personality-disordered, being easily misled by needy women who claim
to have been mistreated who appeal to protective instincts. A disorder of
inner life and perception is involved in the formation of sexual and sado-masochistic
victim fantasies which they act out as they describe them..
Hysterical beliefs, shared or singular, are spread by group
contagion. This is the explanation for the epidemic of preposterous satanic
abuse allegations which has spread along with films whose scenarios are standardised
myths.[39]
Sexualised dreams get a life of their own when they are supported by sexual
abuse counsellors, police or prosecutors. Disconnected events with no lead-up
are believed with delusional fervour, even in the face of contradictory evidence.
Some can be sourced to a true believer therapist, to reading a self-help book
such as The Courage to Heal, others to a dominant
partner in a psychotic folie à deux, or to a localised outbreak of hysteria in which information has been
shared with reinforcing and authoritative agents.
The form and context of the notification should be available
for expert inspection before they have been contaminated. Form includes the
genesis, growth and mode of disclosure of the allegations. Context extends
to the predicaments, characteristics and motives of all involved. Beliefs
are even more liable than tissue samples to become contaminated in their travels
from a crime scene to many places and back to court. They demand stringent
precautions to avoid error.
Pseudologia fantastica, the pathological recounting of tall
tales, often passes for ‘memory’ as in the Ingram case.[40] A pseudologue talks like
James Ellroy writes, creating an impression of intimate knowledge of events
of which he or she cannot possibly have had personal experience. Linguistic
analysis reveals the use of the past conditional construction concerning what
the offender ‘would have done’. This betrays the coincident re-construction
of a scenario. Lawyers do not recognise confabulations of childhood, intellectual
disability and brain damage, but nurses know about them. This population is
prone to innocent lying and misinterpretation. Perpetrator substitution is
also reported, but the High Court has rejected it once as a defence.[41] Child welfare workers
are no longer allowed not to pass on reports, and police, have no understanding
at all of these pitfalls.
Memories emerge in response to a family fight, called the
Parental Alienation Syndrome[42],
a compensation payment, a conversation or training in child abuse. Most people
do not routinely distinguish between information which they have obtained
from observation, and that gleaned from other sources. A therapeutic support
group discussing rumours and hearsay, without malice, can both promote and
enhance entirely false beliefs.
The ability to recognise a delusion is the province of an
expert, but non-bizarre delusional beliefs are routinely accepted as true
by laymen. Delusional constructions of situations, confabulations and perceptual
disturbances are associated with personality disorders. Delusions that manifest
in personality disorders can be transient and elusive, or persistent if nourished.
Some emerge from brief psychotic episodes which have passed unremarked and
are experienced as reality by those afflicted with them.
Most of the persons suddenly claiming to have been abused
would attract a diagnosis of ‘factitious disorder with psychological
symptoms’ over and above the histrionic and borderline personality disorder
diagnosis. Munchausen, and Munchausen by Proxy, perpetrators want a ticket
for endless attention and ply the listener with accounts of pity-evoking factitious
abuse, bereavement and disease. Mothers implore the child to tell ‘the
truth’, and advance a litany of horror stories to mask their own activities.
Over long periods they elaborate and change allegations, incorporating borrowed
scenarios with innovations and inconsistencies.
One victim-accuser had undergone sexual abuse therapy with
a counsellor who believed her false account that the accuser’s father
had been convicted. She had been treated on that false basis. She received
forty thousand dollars from the Victims Compensation Tribunal before entering
the witness box where she lied about having received the money. The jury convicted
and the Court of Appeal and High Court allowed the conviction to stand.
Young, single-degree graduates with as little as ten days
of in-service training, work as sexual abuse counsellors in Community Health
Centres. This lends them the authority of the government and high status as
legitimators. They have no credentials in the diagnosis of mental disorders
nor in current research on memory, nor do they see it as their role to investigate
the validity of claims. My patients tell me in jargon that counsellors have
helped them remember so much more and how they have helped them prepare their
statements for the courts. Their statements leave me in no doubt of the extent
to which The Courage to Heal and its associated
Workbook is used as a template, and that unacknowledged coaching takes place
during counselling and report preparation. The professional's use of such
books in the USA is considered malpractice.
The defence is to be refused access to reports in which
the evidentiary gold dust regarding ‘memory’ is located.[43] Documents from sex abuse counselling
services are not available for inspection by the defence, as this has been
made difficult by new legislation.[44] Enhancing uncertain memories is malpractice
which almost guarantees deregistration in the United States but Australian
courts allow enhanced memories into evidence. This material, briefly made
available by a decision of the NSW Court of Criminal Appeal,[45]
can provide, for those who know how to interpret it, evidence of escalation
of claims, impossible scenarios, sudden and bizarre onset of ‘memories’
with atypical characteristics and impossibly detailed recall. This information
enables the expert to understand the social context and mental phenomena that
were involved in the generation and elaboration of the complaint.
Therapies and substantiation procedures which lack intellectual
rigour might cost governments millions of dollars in compensation, claimed
by the victims of accusers who should have been recognised as mentally disordered.
Therapists of all kinds have become the targets of law suits
from convicted and defamed third parties. 26 Hypnotically and therapeutically enhanced
memories are not reliable. The leaders of the recovery movement who helped
their patients win five figure sums after recovering memories are now settling
claims against themselves for millions of dollars.[46] Renee
Fredrickson was charged with malpractice and lost her licence. Lenore Terr
was sued over a repressed memory case where sexual abuse and murder were falsely
alleged.[47] She argued successfully that expert
witnesses have privilege which confers immunity from liability for civil damages
for giving perjured testimony at trial and from conspiring with others to
do so.[48] Insurers have paid out millions on behalf
of psychiatrists who did memory work.
When it seems more likely than not that an accuser would
be believed, an allegation of child abuse becomes a powerful weapon in the
hands of the malicious, angry, vengeful, spiteful or greedy. False allegations
emerge in up to 8% of litigated custody cases in the USA. Personality disorder
can be diagnosed in up to 80% of parents who raise such allegations, about
six times the rate one would expect to see in the general population and their
disorders go unrecognised[49]
Studies of sexually abused children find that between 25%
and 49% suffer no recognisable mental effects even allowing for dysfunctional
family lives. No pathologist would ever offer a blood test which produced
up to 49% false negatives, and substantially more than that of false positives.
No court should admit that quality of evidence.
Deductions from the behaviour still underpin investigations.
Many children have emotional disturbances especially while their parents are
at war, but diagnosis of sexual abuse from behaviour, the anal reflex, or
syndrome evidence such as the Abused Child Syndrome and the Child Sexual Abuse
Accommodation Syndrome should have no value in a court room. A review of doctors
trying to differentiate, by inspection, penetrated from not penetrated small
children yielded humbling results in the hands of experts, with an error rate
of 75% false positives.[50]
If all these so-called ‘signs’ of having been
abused do not pass scientific scrutiny, are they not just witch’s marks,
and their proclamation today’s Malleus Maleficarum?
And should their use by investigators not be discouraged by having the courts
soundly reject them?
Denial by an accused is common. Bewilderment is different
from denial and may result in soul-searching and false confession: “My
daughter would not lie. If she says this, I must have done something.”
Such confessions are typically retracted.
Well-documented instances of false confession have occurred
during police interrogations and fundamentalist prayer meetings. Religious
hysteria may accompany sexual hysteria. A young woman, after her father had
visited to return her car, suddenly became flooded by thoughts of repeated
rape by her father in her cradle, recalling a period known to be subject to
infantile amnesia. She was taken screaming to a psychiatric unit where ‘delayed
posttraumatic stress disorder’ was diagnosed and the psychotic break
in this severely borderline woman evaded discovery until she made identical
allegations about the father of her own infant daughter some years later.
A young woman told me that her mother and father tied her
to a four poster bed and regularly raped her with a double edged knife. I
found it implausible. No doctor had ever been required to attend. To explain
that, she alleged that her bewildered mother colluded. No one else knew, not
her friends, her doctor, nor her school. The corroborating ‘medical’
evidence cited in this case was that the woman had refused to allow vaginal
examination. This was cited as evidence of her having been sexually assaulted
in early childhood. The jury accepted her story and her father went to jail
for 11 years, while her mother was also punished. There was heavy media involvement
in the case, signalling hysterical display, and she became a cause célèbre of the local feminist lesbian group and received tens of thousands
of dollars in compensation, thus lending further credence to her story.
More commonly, after having used up all of his resources
defending a set of preposterous allegations, the accused is offered an opportunity
to make a plea of guilty to fewer or lesser charges. Rather than risk an adverse
finding by a jury, he takes the option. In my view, prosecutors should proceed
with all of the allegations, and in their original form. An amended charge
constitutes, to my layman’s mind, de facto plea bargaining and evidence
tampering. Pragmatic defence lawyers weigh up the odds and do not agree with
me.
Common knowledge on which juries rely in making their decisions
depends on untested beliefs concerning the reliability of what people say
when they are not obviously psychotic, confused or deluded. The odds are stacked
against an accused person. The identity of a complainant cannot be reported
and her prior sexual history, including similar previous allegations she has
falsely made, cannot be raised in NSW courts where judicial discretion to
admit such evidence has been removed, even when the accused has his freedom
at stake.
For forensic purposes, it is necessary to determine if a
complainant is reliable. Borderline psychopathology was formerly called ‘malignant
hysteria’ and it can be diagnosed, often without traversing the matter
before the court, as is already being done in examinations for fitness to
plead. If there is a variety of psychological explanations for a person unwittingly
telling untruths then the jury should certainly be told that the teller believes
that he or she is telling the truth but is subject to a demonstrable disorder
of perception, hence is ‘an honest liar’. Out of this range of
false beliefs, only ‘lies for profit’ are not part of the spectrum
of psychiatric diagnosis.
A recent case in the High Court allows for a situation where
an expert can bring a complainant’s reliability to the attention of
a jury if the condition that causes it is beyond common knowledge.[51] This case seems to apply
only to those cases where a psychiatric history is available and known. In
most cases a psychiatrist is able to make a diagnosis of borderline personality
disorder on the documents, and on the report of persons close to the complainant,
and from the scars of delicate cutting on the accuser’s arms. The immediate
problem is getting the expert witness onto the stand when the expert has something
scientific to say.
With complete access to the case materials and free access
to the prosecution’s witnesses, the expert examiner can reveal a fact
pattern which may not be readily perceived by the defence.[52] If a prosecutor hears the incredible,
or can expect expert evidence to be led on a complainant’s or accuser’s
reliability, I submit that there should be consultation with a psychiatrist
before deciding whether a case should be brought to court. The strong correlation
of borderline psychopathology and false allegations suggests that it is negligent
of the prosecution not to have the accuser examined.
In recent years barristers have noticed an increasing tendency
for the child protection services to allow sexual cases to proceed, regardless
of the quality of the evidence. At the same time both magistrates and judges
are reluctant to use their powers to dismiss unsound prosecutions or to halt
trials that are an abuse of justice. The terror that an innocent person might
be found guilty, which has traditionally and rightly been the foundation of
our justice system, has been replaced by the terror that a guilty man might
go free.
There is no longer any disinterested complainant. They can
all get money from a Victims’ Tribunal, probably more if prosecution
is successful. I do not think anyone has thought through the long term effects
of compensating people for little more than making allegations which a credulous
professional has legitimated. In a moral panic, hysterical beliefs short-circuit
reasoning and an illusory paradigm governs perception. Judges, juries, social
workers are all members of the same community. All reverberate with its beliefs,
are prone to adopt the newly imposed values and, reluctantly, to suppress
their own common sense.
The legislators of today should consider that the witch-hunts
of the Middle Ages ceased when the accusers stopped being rewarded with half
the convicted witch’s property. A woman’s privacy has been given
a higher value than a man’s freedom, higher than justice itself. The
Daubert standard of expert, scientific knowledge can be used to keep experts
off the stand if they cannot show scientific standards of validity for what
they say. A paradigm shift has already taken place in what is to constitute
expert evidence, irrespective of whether Australia adopts this standard in
legislation. A new generation of Daubert-competent scientists, lawyers and
tribunals is now learning how to judge science.
The United States was forced to adopt this standard to put
an end to speculative litigation in which one side or the other had to be
utterly and completely wrong. Typically, the plaintiff was poor and had nothing
to lose, while the defendant suffered the disadvantage of having resources
and a reputation to defend. This had resulted in a series of shakedowns as
it was cheaper to buy off a suit by offering settlement than to pursue the
uncertainty of a jury trial, especially when the law took an anarchic view
of expert opinion.
If the Daubert standard renders pseudoscience inadmissible in the court room, then
the rest of the community can be encouraged to follow this evidence-based
standard in social practices.
An enlightened review of the convicted would lead to the
release of a number of prisoners and restore some ruined lives and reputations.
I watched helplessly as a diagnosed pseudologue alleged she had indulged in
sex during sessions with her doctor. A psychiatrist and a surgeon on the Medical
Tribunal warned that the complainant was a diagnosed borderline and not reliable
and, indeed, she had been caught telling lies, but she was believed by the
lay member and the judge who used his casting vote to deregister my colleague.
[1] Gardner RA.: Protocols for
the Sex Abuse Evaluation, Creative Therapeutics, New Jersey: 1995.
[2] Goode E. & Ben-Yahuda N: Moral Panics, Oxford & Cambridge: Blackwell, 1994.
[3] Daubert v. Merrell Dow Pharmaceuticals Inc. 113 Supreme Court of the USA, 2786, June 28, 1993.
[4] Foster K.R. & Huber P.W: Judging Science:
Scientific Knowledge and the Federal Courts, Cambridge
Massachusetts: The MIT Press, 1997.
[5] Commissioner for Government Transport v. Adamcik
(1961) 106 CLR 292.
[6] Abalos v. Australian Postal Commission (1990) 171 CLR 167 F.C. 90/44.
[7] Kuhn T.S: The Structure of Scientific Revolutions. The Chicago University Press, 1962, 1970.
[8] Schreiber F: Sybil. Chicago: Henry Regnery Co., 1973.
[9] Schimek J.G: Fact and Fantasy in the Seduction Theory:
A Historical Review, Journal of the American Psychoanalytic Association,
1987; 35:937-965.
[10] Masson J.M: Assault on Truth: Freud's Suppression of
the Seduction Theory. Penguin Books, 1984.
[11] Boyer P.J: Children of Waco. New Yorker 1995, May 15:37-45.
[12] Paradise J: Predictive accuracy and the diagnosis of sexual
abuse: a big issue about a little tissue. Child Abuse and Neglect 1989; (13):169-176.
[13] Bass E. & Davis L: The Courage to Heal: A Guide
for Women Survivors of Child Sexual Abuse. New
York: Harper & Row, 1988.
[14] Herman J: Trauma and Recovery. New York: Basic Books, 1992.
[15] Terr L.C.. Unchained Memories.
New York: HarperCollins, 1994.
[16] Fredrickson R: Repressed Memories: A Journey into Recovery
from Sexual Abuse. New York: Simon & Shuster,
1992.
[17] van der Kolk B.A, & Kadish W: Amnesia, Dissociation,
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Trauma, American Psychiatric Press, Inc., Washington
DC, 1987.
[18] Medline searches 1980 to 1999 using 'sexual abuse' and
'borderline personality disorder' as keywords.
[19] Loftus E., Creating False Memories, Scientific American
1997; 2(77(3)):50-55.
[20] Ofshe R. & Watters E: Making Monsters, Berkeley, Los Angeles: University of California Press, 1994.
[21] Crews F: The Memory Wars: Freud's Legacy in Dispute, New
York: New York Review of Books, 1995.
[22] Pendergrast M: Victims of Memory: Sex Abuse Allegations
and Shattered Lives, Hinesberg Vermont: Upper
Access, 1995.
[23] Ferguson D.M. & Mullen P.E: Childhood Sexual Abuse:
an Evidence-Based Perspective, Thousand Oaks:
Sage Publications Inc., 1999; vol 40.
[24] Wright L: Remembering Satan, New York: Alfred A Knopf, 1994.
[25] Pope H.G.J. & Hudson J.I: Can Memories of Childhood
Sexual Abuse be Repressed?, Psychological Medicine 1995; 25(1):121-126.
[26] Rind B., Thomovitch P. & Bauserman R: A Meta-Analytic
Examination of Assumed Properties of Child Sexual Abuse, Psychological
Bulletin 1998; 124(1):22-53.
[27] Johnston M: Spectral Evidence: the Ramona Case: Incest,
Memory and Truth on Trial in the Napa Valley, Boston
New York: Houghton Mifflin Company, 1997.
[28] Summit R.C: The Child Sexual Abuse Accommodation Syndrome,
Child Abuse & Neglect 1983; 7(177):181-88.
[29] Crews F: The Revenge of the Repressed, The New York
Review of Books 1994, November, December.
[30] Ferguson D.M. & Mullen P.E: Childhood Sexual Abuse:
An Evidence-Based Perspective, Thousand Oaks: Sage Publications Inc., 1999;
vol. 40.
[31] NSW Department of Community Services,
Annual Report 1999. http://www.community.nsw.gov.au
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Study of Women's Memories of Child Sexual Abuse, Journal of Consulting
and Clinical Psychology, 1992; 62:1167-1176.
[33] Kilpatrick A: Long-Range Effects of Child and Adolescent
Sexual Experiences: Myths, Mores, Menace, Hillsdale New Jersey: Lawrence Eribaum Associates, 1992.
[34] Loftus E: Creating False Memories, Scientific American
1997; 2(77(3)):50-55.
[35] Neimark J: The Diva of Disclosure, Memory Researcher:
Elizabeth Loftus, Psychology Today, 1996; 29
(1 January):48.
[36] Erdelyhi M.H: The Recovery of Unconscious Memories:
Hyperamnesia and Reminiscence, Chicago London:
The University of Chicago Press, 1996.
[37] Borch-Jacobson M., Sybil - The Making of a Disease: An Interview
with Herbert Spiegel, The New York Review of Books, 24 April 1997.
[38] Miller A.: The Crucible Screenplay 1997. Twentieth Century Fox.
[39] Smelser N.J: Theory of Collective Behaviour, London: Routledge & Kegan Paul, 1970.
[40] King B. & Ford C: Pseudologia fantastica, [Review].
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77(1):1-6.
[41] HG v. The
Queen. Gleeson CJ, Gaudron, McHugh, Gummow, Hayne
JJ. High Court of Australia: S67/1998, 1999.
[42] Gardner R. The
Parental Alienation Syndrome: A guide for Legal and Medical Professionals.
Cresskill New Jersey: Creative Therapeutics Inc,
1995
[43] NSW Evidence Act
[44] Criminal Procedure Amendment (Sexual AssaultCommunications
Privilege) Act 1999 NSW Government Printer
[45] R v. Young. New South Wales
Court of Criminal Appeal: 60522/98. 1999.
[46]
Anonymous: There'll be the Devil to Pay: The Future of America's Recovery
Movement is at Stake: $35M Lawsuit, The Independent, October 17, 1994.
[47] Press Release,:19 June 1998, Barden & Associates.
USA
[48] Ruling Protects 2 Psychiatrists from Lawsuit, San Francisco
Chronicle, Feb. 3, 2000, p.A20.
[49] Wakefield H. & Underwager R: Personality
Characteristics of Parents Making False Accusations of Sexual Abuse in Custody
Disputes, Institute for Psychological Therapies Journal, 1990. http://www.ipt-forensics.com/journal/volume2/j2_3_1.htm
[50] Underwager R.C. & Wakefield H: Oklahoma
Seminar on Child Abuse, IPT Journal. 1995. http://www.ipt-forensics.com/library
[51] Farrell v. The Queen. High
Court of Australia: August 1998, HCA 50.
[52] Ofshe R: Report: The Ingram Case, Washington: IngramOrg@aol.com,
April 2, 1989.
The Author: Dr Yolande Lucire PhD MBBS DPM FRANZCP is a
medical anthropologist and a forensic psychiatrist in private practice. She
researches and writes about hysteria and moral panics.
The Occasion: Plenary session of the New South Wales Chapter of the Academy
held on 9th February, 2000 to discuss Junk Science and the Epidemic
of Sexual Abuse.
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