THE EXPERT WITNESS: False allegations of sexual abuse - What can be done 2017

prev
next

By Michael G. Brock

Over the past thirty years I have published numerous articles about the prevalence of false allegations of sexual abuse in child custody and criminal cases. The purpose of these articles has been to heighten the awareness of mental health professions, lawyers, the judiciary and the general public regarding these allegations, and to cite the research regarding how to differentiate true from false allegations of abuse. During this time, however, very little has changed; the same allegations are made in the same way, with more or less the same results. The typical scenario goes like this:

There is a dispute of custody or parenting time between the parents, either during the divorce process, or after the divorce has taken place. Child custody/parenting time litigation is set in motion. An allegation is made—usually by the custodial parent—stating that the child has been physically and/or sexually abused by the other parent. A Protective Services investigation takes place, including an interview with the child alleged to have been abused. In a false allegation case, there is either no evidence, or any marks or bruises can be adequately explained by the child’s normal play activities (skinned knees, etc.) There is a finding by the investigator that the abuse did not take place or cannot be confirmed.

Protective Services may recommend that the child be enrolled in therapy. There is usually no clear suggestion regarding what the diagnosis is, or what the goals of therapy should be. Sometimes the P.S. report will reflect that the child needs treatment for the trauma of being caught in the crossfire of a child custody dispute. When such therapy is initiated, the custodial parent is usually the presenting parent, and typically, sets the time and agenda for therapy to take place. This parent
often does not inform the non-custodial parent that therapy is taking place, or suggest to the therapist that they be contacted.

When a child is enrolled in therapy, the therapist depends on the presenting parent to provide the presenting problem and the child’s history. Unlike adults, children are generally unable to provide accurate histories, or to fully articulate any problems they may be having. This provides a false accuser an excellent opportunity to suggest to the therapist that the child is being physically and/or sexually and/or sexually abused by the other parent and/or their spouse. The parent says that the allegation was made by the child, but the records (if they can be obtained) in these cases show that the report is typically made by the presenting parent. The therapist’s intake and treatment notes will reflect a presumption that the abuse has occurred, with such treatment goals as, “alleviate trauma of abuse,” or “facilitate child’s ability to verbally express trauma.”

Such presumptions are appropriate to therapy in general, but when the anticipated use of the therapy is to make a recommendation regarding the parenting time that the child will have with the parent who is not there—in other words, is intended to be used as evidence in court—a more objective process is required. This is the entire reason that interviewing Protocols have been developed,1 but they are useless if those using the Protocols are going to refer the child to a person unskilled in investigative interviewing, and who will employ improper therapeutic techniques to obtain forensic evidence. One or several more reports are made to Protective Services, additional forensic interviews are done by this agency using a Protocol developed for this purpose, but rarely are these interviews recorded. No abuse is discovered.

A referral is made to a hospital, where the child undergoes one or several examinations for evidence of physical trauma for sexual abuse. Sometimes doctors will talk about “hymeneal irregularities” or other such “findings of past trauma”, but the urologist with whom I confer on these cases tells me that the smallest amount of pressure on a child’s hymen is sufficient to rupture it, and is sometimes necessary if urine is collecting behind the hymen and causing infection. Most often, no evidence is found, but the examining physician feels obliged to hedge his bets (or cover his behind) by saying that the examination “does not prove that the child was not abused.” No, and the fact that there is no evidence of abuse does not mean that the child was not molested by the examining doctor either. (In one recorded case, an examining physician actually stuck his finger in the child’s rectum and asked the kid if his parent did that to him. Needless to say, the doctor was not charged.)

The hospital refers the kid to their own mental health expert, who performs a forensic interview with the child, ignoring proper Protocol, and confusing the process in two ways; first, by drawing conclusions which have no forensic value; and secondly, by making yet another referral for treatment. It is his clear presumption that the purpose of treatment is to continue the investigation, which is completely contrary to the separation of treatment and forensic (court-related) evaluation that is clearly indicated by Protocol, and the evaluation guidelines of both the American Psychological2 and the American Psychiatric Associations3. The National Association of Social Workers has no established Protocol for forensic procedures, but it does suggest that social workers avoid dual roles and conflicts of interest. The role of evaluator is one that calls for objective and impartial assessment. Someone who has engaged in the role of therapist for any party in a forensic process has no such objectivity. All peer reviewed forensic literature advises against combining treatment and forensic roles.

A police report is made. They conduct their own investigation, also interviewing the children using the Protocol developed for this purpose. These interviews are also usually not recorded. The accused parent is asked to take a polygraph—inadmissible in court—to “clear himself.” The accused parent may retain counsel, who advises them not to take the polygraph; or they may consent to take a polygraph. However, this test of physiological responses is unreliable, and is used primarily as a pretext for interrogating a “defendant” without counsel. Police will often tell the person being interrogated that they failed the polygraph, when in fact they passed it, and that it will go easier on them if they confess to the crime. It is not a crime, or even considered improper by judges, for police to lie to a suspect in order to extort a confession. This is one of the key reasons for false confessions.

Yet another forensic interview may be conducted by an interdisciplinary team which has been set up for the purpose of obtaining evidence that may be used for incriminating the suspect, but which the team is reluctant to release to the “defendant” (who has not yet been charged) or his attorney. Various states have laws limiting the release of the forensic interview, ostensibly for the protection of the child. However, the real purpose of these laws is to limit the defenses access to the evidence, thereby making it more difficult to put on a case. Best practices dictate that such interviews be recorded4, but they often are not. Again, whatever the stated purpose, the real reason is to limit the accused’s access to evidence, and especially, to make it impossible or difficult to accurately ascertain the method in which the evidence was obtained, 14th amendment due process rights notwithstanding. Mostly, prosecutors consider constitutional protections efforts to impede their efforts to get bad guys off the street.5

Police turn their evidence over to the prosecutor, who decides whether or not to proceed with criminal charges. Experience teaches that most prosecutors will proceed with a prosecution if a disclosure of abuse is made.6 It does not matter how the evidence was obtained, or how coercive the interview was in which the disclosure was made. They know they can get a conviction, regardless of how improbable the child’s story, and they alone determine the quality of that supposedly objective and scientific evidence. They rarely consider the possibility that the child could be lying or could have been coached. It does not suit their purpose.

The fact that the (Mondale) Child Abuse Prevention and Treatment Act of 1974 (CAPTA) provides millions for prosecution of sexual abuse cases7, but not a penny for defendants in these cases, both insures that such allegations, true or false, will be prosecuted, and that most will be won due to superior resources. Defense counsel has to determine how to allocate their resources; prosecution has the luxury of spending as much as they want, particularly considering that their key witnesses, as well as prosecution staff, are on the government payroll. We all pay handsomely for the right to be prosecuted.

The accuser’s family lawyer informs the family court judge that an investigation is underway and that criminal charges may be pending; that the child has disclosed abuse to the therapist, and/or that evidence of abuse has been discovered, and asks that the target parent’s time with the child be suspended. The records will usually show that this report is not true (particularly if there is no prosecution in criminal court), but the allegation is usually sufficient to cause the judge a great deal of concern about what might happen if it turns out to be true.

The judge will usually try to err on the side of caution, suspending the target parent’s visitation and allowing the alienation of the target parent by the accusing parent to proceed uninterrupted. It is important to understand that parents who make these allegations have no qualms about coaching, coercing, or rewarding the child for “correct” answers. They believe they are the true owner of the child, and whatever they must do to keep possession of their property is justified. They also do not mind using their child as an instrument of vengeance, are oblivious to the effects on the child, and will never be prosecuted for it, regardless of how transparent these efforts.

If the accuser’s perjury is very successful, the accused goes to prison. If it is only moderately successful, they are awarded supervised visitation, which essentially means they will never again spend quality time with their child. If it is minimally successful, they have succeeded in disrupting, at least temporarily, the other parent’s relationship with the child, and casting aspersions which may hang over that parent for years. If the accuser’s perjury fails, they have lost nothing, and have succeeded in placing heavy financial and emotional burdens on the target parent. Moreover, they can use this tactic an indefinite number of times with no consequences.

So this is the pattern; what can be done about it? I have the following suggestions, but this is in no way a complete answer or solution. I am writing this article as much to provoke discussion and to encourage others to come up with ideas, as I am to share what I have learned. There is a great deal of reporting in the media that false allegations of sexual abuse have become the weapon of choice for mother’s seeking to alienate their children’s fathers in custody disputes, but it is not politically correct and has not translated into legal or social policy. If one finds themselves in this position, he is on his own. However, there are some actions that can be taken, including the following suggestions:

A person accused of sexual abuse must always take the matter very seriously. Someone making a false allegation is committing the most violent form of domestic abuse short of murder, and anyone who does not see this and move to protect him or herself is guilty of very poor judgment. One cannot think that these things will go away. Recent history is replete with persons who were convicted in the hysteria of the moment, and whose subsequently overturned convictions have done very little to restore their ruined lives. Visit PBS Frontline’s “Child Terrors” series if you need a convincer.

Hire an attorney who specializes in these cases and convince him of your innocence. No one wants to protect a child molester. I once prepared a case in which I told the attorney I thought his client was guilty. He said thank you and issued me a subpoena. I sent him and his client a certified letter telling him what I would say on the stand, and he changed his mind about having me testify. The only conclusion I could reach was that that he was trying to sabotage his client. That is the prosecutor’s job, and he had plenty of evidence to do it with; he did not really need defense counsel’s help.

Have a videotaped forensic interview done, according to the Protocol adopted by your state, or if your state has no Protocol, as outlined in the forensic writings of Lamb and Poole or another nationally recognize researcher in the field of child interviews, as early in the process as possible. This cannot be overemphasized. Police and prosecutors do not gain points from exonerating the innocent, and the forensic mental health professionals who work with them have often made statements to me that show they consider themselves part of the prosecution’s team. (One forensic interviewer told me she would not conduct an interview with a child who had been brought by the “perpetrator.” Translation: “We know that the crime was committed, and we know who the perpetrator is because the accusing parent already told us; it’s just a question of whether we can get the child to tell us.”) Depending on the jurisdiction, these people may or may not do a quality interview. However, but the more times a child is asked the same question, the more likely he is to give the answer he or she thinks is expected of them.

The biggest threat to an innocent client is the treatment professional. Typically, they have the least training in forensic procedures of anyone involved, and their recommendations tend to carry a lot of weight with the court because judges are lawyers and often former prosecutors, and they tend to place very little emphasis on the science, which they are likely to see as getting in the way of good legal arguments. If your child is being treated, insist on being involved. If someone is trying to demonize you, it is much easier to accept that portrayal if you do not know that person, or have to confront any evidence that may challenge this conception. If the child’s therapist does not want to include you in therapy it is a pretty good bet that he or she has already made up their mind about you.

Treatment professionals are legally very unsophisticated people. The notion of due process of law and constitutional guarantees of a fair and impartial hearing. The fact that their role in the legal process is influenced as much and usually more by what the presenting parent has to say as it is by what they child is telling them, usually never occurs to them. One insightful judge asked a treatment professional, who was testifying in a case in which I was involved, why the mother and child were doing treatment for a problem which had to do with the father’s relationship with the child while the father was being excluded.

The obvious answer was that what was going on was not treatment at all, but investigation. But a fair investigation also involves an attempt to obtain information from all parties involved. Treatment professionals in these cases see themselves as having a responsibility to “crack the case” by getting the child to admit the abuse that everyone knows happened. They often put enormous pressure on a child over an extended period of time to disclose, and children often cave in under such pressure.

Obtain the treatment records. You have a right to your child’s records in most states, whether you have custody or not. The records in a false allegation case will show that there has been an ongoing interrogation of the child by the therapist, who is obtaining most of the evidence from the presenting parent. Sometimes therapists will even allow the parent to interrogate the child in their office, completely co-opting the process!

Hire a forensic mental health expert to tell you where the holes are in the case the other person is trying to put together against you. You may not think you need this, but most lawyers really don’t know what to look for in sexual abuse case records. Moreover, you need an expert not just to give evidence as to help in preparing your case. But do your homework in either hiring an expert or before agreeing to an expert to be appointed by the court who will give testimony.

Read “Investigative Interviews of Children,” by Michael Lamb and Deborah Poole, and “Jeopardy in the Courtroom, “by Steven Ceci and Maggie Bruck, or more recent books and articles by recognized experts in the field, so you know what the research experts consider proper evidence and interviewing techniques. If you don’t want to do all that reading, read the articles on forensic interviewing available on my blog and at my website: michaelgbrock.com., and the articles available on the Truth in Justice Website.

Obtain records of all forensic interviews and investigations done in the case, especially those done by Protective Services, Interdisciplinary Teams set up by the state, and examinations by both the child’s pediatrician and those done at a hospital ER. We are talking about cases in which proper procedures are almost never followed, and the left hand usually does not know what he right hand is doing, so don’t assume that people are going by the rule book in these cases. If you are being denied access to your children and you did nothing wrong, someone screwed up (usually a lot of people screwed up). You have to track down the information if you want to get a fair hearing in court. And remember, there is a defacto presumption of guilt in these cases.

There needs to be some kind of information sharing done in these cases, but I don’t see it. There is a need for groups, not so much for therapy, but for mutual support and consciousness raising. I’ve tried to figure out how to structure such a group, but I don’t often give seminars and, frankly, I have to make a living, so if I was going to do it I would have to charge enough to rent a facility and justify my time. I do have a lot of information I plan to make available in a book that I am currently writing, and some people I have helped have offered to share their experiences in these cases. There is also something called the Community of the Wrongly Accused, and other organizations, but I don’t know much about them. There is a lot of information now available to the public. Not everything on the internet is reliable, but there are many publications in recognized journals available on government websites. Do your homework.

I have written letters to professionals whose behavior in these cases is unethical, letting them know what behavior is objectionable, and informing them that in the future I will report such behavior to the licensing board. But it is not my ox being gored here; if it were, I would undoubtedly take stronger action. Because I work in the courts as an expert witness, I have frequently been threatened with suits or licensing complaints, but I know what the rules are and I follow them. Still, forensic and treatment professionals alike need to know there will be consequences if they overstep professional boundaries.

This is not a politically correct cause, and judges in much of the country are elected. Victims cannot expect a lot of sympathy in court. Perjury and false allegations are felonies, but these laws are not enforced. Moreover, no one believes that this will happen to them until it does. When it does, victims of false allegation display a shockingly naïve faith in the system. Laws are enforced quite arbitrarily, due to the fact that regardless of what is on the books, prosecutors have almost unlimited discretion regarding which cases they choose to go after.

Even in criminal court, there is a perception that someone falsely accused of sexual abuse has suffered no real damages. And in family court, if the charges are determined to be groundless, it’s rarely seen as a reason to limit contact with the offending parent. This will continue until judges, prosecutors and lawmakers are forced to see this behavior as what it is: an extreme form of domestic violence; and this will not happen without some form of grass-roots movement to draw an appropriate amount of attention to the problem.

But the prevailing winds continue to blow in the direction of presumption of guilt and denial of due process. When I wrote the initial version of this article over twenty years ago, it would have been unthinkable that the President of the United States would have issued an executive order in the form of the “Dear Colleague” Letter of 20118, taking away the due process rights of all men accused of rape on college campuses, but that is what happened. And they backed it up with a threat to take away college funding if the colleges did not set up kangaroo courts to determine guilt with a preponderance of “he said, she said” evidence. But they have done it, and no one in congress has had the courage to challenge the ruling. There has been considerable discussion about making it law, on both the left and right side of the legislative branches of government. The idea that we can put our heads in the sand and this will magically go away is foolhardy. The system is corrupt, but the only realistic option is to work within it to make it better.
————————
1 In Michigan, law mandates the use of the State of Michigan Governor’s Task Force on Child Abuse and Neglect and Department of Human Services Forensic Interviewing Protocol (Third Edition) https://www.michigan.gov/documents/dhs/DHS-PUB-0779_211637_7.pdf , authored primarily by Deborah Poole, and based on her book with Michael Lamb entitled, Investigative Interviews of Children (1998), published by the American Psychological Association. Other frequently used protocols include the NICHD Protocol http://nichdprotocol.com/wp-content/uploads/2013/03/RevisedProtocolTMWH2final-1.pdf developed by Michael Lamb, but all contain common elements, including rapport building, practice narrative, a narrative of the alleged/suspected abuse event, and clarification of disclosures.

2Irreconcilable Conflict between Therapeutic and Forensic Roles, by Stuart A. Greenberg, and Daniel W. Shuman, Professional Psychology: Research and Practice, Vol 28(1), Feb 1997, 50-57, “Despite being contrary to good patient care and existing clinical and forensic practice guidelines, some therapists nevertheless engage in dual clinical and forensic roles. Perhaps because an injured litigant seeking treatment is required to engage in 2 distinct roles (litigant and patient), care providers may be tempted to meet both sets of that person’s needs. Through the presentation of 10 principles that underlie why combining these roles is conflicting and problematical, the authors stress the importance of avoiding such conflicts, avoiding the threat to the efficacy of therapy, avoiding the threat to accuracy of judicial determinations, and avoiding deception when providing testimony.” (Currently Available on American Psychological Association, PsychNet) http://doi.apa.org/buy/1997-02162-009 .”

3American Academy of Psychiatry and the Law, Ethics Guidelines for the Practice of Forensic Psychiatry, Adopted May, 2005, http://www.aapl.org/ethics.htm “Psychiatrists who take on a forensic role for patients they are treating may adversely affect the therapeutic relationship with them. Forensic evaluations usually require interviewing corroborative sources, exposing information to public scrutiny, or subjecting evaluees and the treatment itself to potentially damaging cross-examination. The forensic evaluation and the credibility of the practitioner may also be undermined by conflicts inherent in the differing clinical and forensic roles. Treating psychiatrists should therefore generally avoid acting as an expert witness for their patients or performing evaluations of their patients for legal purposes.”

4Michigan Forensic Interviewing Protocol, P. 3: “The Governor’s Task Force on Child Abuse and Neglect supports as a best practice (emphasis mine) the videorecording of investigative forensic interviews of children at child advocacy centers or in similar settings...”

5Confessions of an Ex-Prosecutor, Culture and law conspire to make prosecutors hostile to constitutional rights, Ken White, June 23, 2016: “Twenty-one years ago, the day O.J. Simpson was acquitted, I began my career as a federal prosecutor. I was 26—a young 26 at that—on the cusp of extraordinary power over the lives of my fellow citizens. After years of internships with federal and state prosecutors, I knew to expect camaraderie and sense of mission. I didn’t expect it to influence how I thought about constitutional rights. But it did. Three types of culture—the culture of the prosecutor’s office, American popular culture, and the culture created by the modern legal norms of criminal justice—shaped how I saw the rights of the people I prosecuted. If you had asked me, I would have said that it was my job to protect constitutional rights and strike only what the Supreme Court once called “hard blows, not foul ones.” But in my heart, and in my approach to law, I saw rights as a challenge, as something to be overcome to win a conviction. Nobody taught me that explicitly—nobody had to...” http://reason.com/archives/2016/06/23/confessions-of-an-ex-prosecutor

6Moreover, the pro-prosecution bias of those utilizing the protocol, and the completely indiscriminate manner in which those protocols are interpreted by prosecutors is evident to anyone who is not part of the prosecution team. However, it is ultimately the prosecutor who has sole discretion regarding whether they provide grounds to proceed with a criminal prosecution, and if the child makes a disclosure, no matter how credible, the case will be prosecuted, and no judge will halt such a prosecution at the preliminary stage.

7Child Welfare League of American, The President’s Fiscal Year 2018 Budget Request. “On Tuesday, May 23, the President submitted the full fiscal year (FY) 2018 budget to complete the details to his budget outline released in March 2017. FY 2018 begins on October 1, 2017...The Administration proposes the same level of funding for two of the three CAPTA-related [Child Abuse Prevention and Treatment Act, AKA, Mondale Act] grants for FY 2018. State Grants would be funded at $25 million, CAPTA Community-Based Grants to Prevent Child Abuse and Neglect would be funded at $40 million, and CAPTA Discretionary Grants would be funded at $33 million.” http://www.cwla.org/wp-content/uploads/2017/05/CWLA-Summary-of-Presidents-FY-2018-Childrens-Child-Welfare-Budget.pdf

8U.S. Department of Education, April 4, 2011, “Dear Colleague: Education has long been recognized as the great equalizer in America. The U.S. Department of Education and its Office for Civil Rights (OCR) believe that providing all students with an educational environment free from discrimination is extremely important. The sexual harassment of students, including sexual violence, interferes with students’ right to receive an education free from discrimination and, in the case of sexual violence, is a crime...” https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.html
————————
Michael G. Brock, MA, LMSW, is a forensic mental health professional in private practice at Counseling and Evaluation Services in Wyandotte, Michigan. He has worked in the mental health field since 1974, and has been in full-time private practice since 1985. Much of his practice in recent years relates to driver license restoration and substance abuse evaluation, but he also consults and serves as an expert witness regarding forensic interviewing and the use of forensic interviewing protocols in cases of child sexual abuse allegations. He may be contacted at Michael G. Brock, Counseling and Evaluation Services, 2514 Biddle, Wyandotte, 48192; 313-802-0863, fax/phone 734-692-1082; e-mail: michaelgbrock@comcast.net, website, michaelgbrock.com.