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Foreword Last year Members of the Royal College of Psychiatrists Working Group on Reported Recovered Memories of Sexual Abuse published recommendations on this issue in the British Journal of Psychiatry (Brandon S, Boakes J, Glaser D & Green R (1998). Recovered memories of childhood sexual abuse: implications for clinical practice, British Journal of Psychiatry, 172, 296-307). They write: No evidence exists for the repression and recovery of verified, severely traumatic events, and their role in symptom formation has yet to be proved. There is also striking absence in the literature of well-corroborated cases of such repressed memories recovered through psychotherapy. Given the prevalence of childhood sexual abuse, even if only a small proportion are repressed and only some of them are subsequently recovered, there should be a significant number of corroborated cases. In fact there are none. PRESIDENT'S MESSAGE Welcome. We are once again confronted with the challenge of presenting a message to all the hurting families across Australia which may in some small way, help people understand what is happening to them. Why it is happening? and, perhaps answer the question - Will it ever end? That is, as they say, a very big ask and it is no doubt a question in other countries which are also affected by this epidemic. Of course, there are no easy answers to complex questions, despite what some politicians [and some therapists] might try and tell us. If I may borrow from later articles:
Undoubtedly the role of AFMA and its membership is vital in this process. A continued high quality newsletter supported by a very professional website, in fact any legitimate and effective methods of raising public awareness are greatly needed. Any responsible private or public communication to anyone who will listen � letters to editors � using talk-back radio � writing letters to politicians is all valuable. Knowledge is power and the role of ensuring that our concerns continue to be heard is largely up to us. Of course we are not alone. Members of our professional advisory board and sympathetic journalists continue to do great work. Perhaps Pamela Freyd [executive director � FMSF in the USA] encapsulates many of our feelings in a recent letter to me when she writes �Some days I am optimistic about the end of this nonsense; other days are just the opposite. What is clear in this country is that it is the legal pressure that is making the difference.� That process is beginning here. Richard Guilliatt writes about a Sydney couple who are suing the state government and others [see below ED]. I understand that the Melbourne case against a psychiatrist is listed for June or July. Another Sydney Morning Herald article suggests that family social workers are likely to have an exaggerated view of the extent of physical and sexual abuse which fathers inflict on their children. [See below ED] A Courier-Mail article reports the Queensland Council for Civil Liberties call for confidential counseling sessions with alleged sex abuse victims to be taped for use as evidence in court � to stop some counselors shredding notes and coaching clients. This call stems from fears that counseling could result in suppressed memories or �contaminated� evidence being put before juries. [See below ED] I am hearing more reports of retractors [2] and returners even though new cases are still being reported. No doubt that number will grow when we are on-line, the TV commercial appears and more areas are covered through our white pages entry. We continue to strive for publicity and are confident of a break through in that area very soon. Please don�t forget our symposium and AGM in Melbourne. Unfortunately Pamela Freyd is unable to visit this year, maybe next. However be assured that we are doing our best to have quality speakers and a memorable weekend for everyone. Important items for discussion will be proposed changes to our legal entity and future plans for AFMA as well as the elections. Good news! Thanks to the Victorian group, I expect to be setting up a computer in my office by the time you receive this newsletter. Thank you. Once I have mastered the brute, I�m sure my work will become more effective. Pamela Freyd assures me there is not much to dealing with a computer these days. As well, one of our northern members is donating a mobile phone. Although we live in a grey area [no reception] it will be very useful when I�m away from home. For example, I have just spent two weeks in Brisbane attending Kenward and Noble trials. Finally, as I am constantly reminded � � We have to keep chipping away until reason not delusion prevails.� I agree and eventually the whole rotten False Memory edifice will come tumbling down. Remember the Berlin Wall! And remember � �Where evil exists, so does a clear duty to oppose it.� [Elia Kazan] Kind regards to all. Mike Editorial Most of us have ideas about what would make for a better world. For some the goals are short term and unapologetically material: win Lotto and sail away. For others the goal may be not really of this world: centered on the supernatural through allegiance to a particular faith or philosophy. Others seek adventure and stimulation through a range of outlets: travel, drugs, friends, family, good causes. Martin Krygier in Eureka Street [9:1,1999] proposes that a good society is not the good society as there may well be many such capable of fulfilling humanity�s needs. However, Krygier suggests that a good society will satisfy these criteria:
Krygier is fairly satisfied with Australia. �In most respects, this is a particularly civil society, generally decent and relatively just. There are many societies of which none of this can be said.� Most of us would agree with Krygier�s summation. While most of us would be able to point to those aspects about Australia as a good society which satisfy our criteria as well as Krygier�s, there are, for most [all?] of us changes we would love to implement. Later in this issue there is a longer reference to the disappearance of the sadly misguided Franca Arena from the New South Wales political scene as a result of the recent elections- surely a good outcome for the good society. On the other hand many of those falsely accused of sexual abuse arising from the ministrations of care-less counselors would prefer to see a legislated framework for the regulation of all who wish to hang out the shingle of �Counselor�. Deborah McIntosh in �Sunday Life�[23/5/99] points to the ease with which persons may set up shop as a counselor. In brief, says Deborah McIntosh, �Anyone can call themselves a counselor or psychotherapist [a term used by psychiatrists, psychologists, therapists and social workers].� Most would assume that the professions whom McIntosh lists would be both well trained and the members of an exclusive club entitled to call themselves �Counselor�. But, no. Anyone can call himself or herself �Counselor�. Until our society, Australia, closely controls the exercise of the right to offer advice, support, even management of its members through the profession of Counselor, it is and will be far short of the right to think of itself as a good society. Even then, there will be a need to monitor carefully the practices and even beliefs of Counselors. A good society will act to prevent witchhunts arising from belief that it is possible to dredge up true memories from the past of events that bear no relationship to the recollections of others involved, particularly parents. Or as Krygier would put it exclude an evil and open the door to a good. NEWS THE NOBLE RULING A remarkable appeal was heard in the District Court of Queensland [Criminal Jurisdiction] which should sound alarm bells throughout the criminal justice and welfare systems � only no-one seems to be listening. A 57 year old truck driver, denied legal aid, was able to achieve from a prison cell what educated lawyers were unable to deliver � leave to appeal convictions for three counts of indecent touching, alleged by a step daughter to have occurred in the early to late 1970�s. When the appeal was granted, one of the three convictions was quashed and a retrial granted to decide the other two. With the assistance now of lawyers, new information was obtained. When the re-trial began, [Q v Noble, Indictment No. 89 0f 1999] the remaining two convictions were quashed after an astonishing train of events and even before a jury was empanelled. The presiding judge, Judge Pratt, made a number of significant comments not just about the use of hypnosis and EMDR [Eye Movement Desensitisation Reprocessing] [1] but about the capacity of counseling in general to contaminate evidence. This remarkable case, [as many others involving recovered memories] raises serious questions about the criminal justice system for both the falsely accused and the abused. Mr Noble is what some may describe as an ordinary Australian. A truck driver, his life has been one of struggles, the ups and downs of life which all experience with some of the bruises that go along with this. He has turned his hand to many things in life. Like many working Australians, he does not mind hard work and enjoys a beer at the end of a truck-driving day. And, of course, he has a family. Now a grandfather many times over entering the remaining decades of life, his life became embroiled in a massive series of events. In August 1996, Mr Noble was charged with three counts of indecent dealing [ie touching] alleged by his step daughter to have occurred in the early to late 1970�s when she was between the ages of four and thirteen years old. No allegations other than these were made. For those who have experienced it, the legal process can be long, frustrating, and enormously expensive. Mr Noble had to sell valuable assets to meet expenses. The committal proceedings were adjourned six times to allow police witnesses to be called. That is for the police to present their case. After all this delay, no police witnesses were ever called at either the committal proceedings or the later trial. None-the-less, the wheels ground on and Mr Noble was committed for trial in July 1998. This lead to his conviction by jury trial, and jailing, on the three counts of indecent dealing. Similar to the case of Q v Dagg [and others], there was no corroboration for these claims. Pleading �Not Guilty�, and strenuously maintaining his innocence, his sentence was two years jail. From jail he applied for legal aid to mount an appeal. This was denied. [Readers may be aware of a recent news release of a report via the Victorian Domestic Violence and Incest Resource Centre, and the Family Court, where this solely gave examples of the effect on women who were denied legal aid. On balance, it would appear that access to legal representation is an issue both for complainant and defendant.] Undaunted, he sought leave to appeal from jail. This was a remarkable achievement given his lack of formal education and the restrictions on access to assistance and information while �inside�. On 3rd November 1998, the matter went to appeal. On 18th December the Court of Appeal quashed the conviction on the grounds [briefly put] that not enough had been made of the effects of time on memory of witnesses in the trial judge�s directions, and too much evidence had been adduced in respect of uncharged acts. This latter matter is one where it is possible under some circumstances for the legal system to allow potentially highly prejudicial evidence to be heard by a jury which does not relate directly to the charges. When this mechanism is examined carefully, this can be a legal means to suggest a potential smear which allows the jury to form a conviction based on this. Mr Noble was released from jail for Christmas and a retrial on the remaining two charges began in January 1999. By that time the defense had become aware that the complainant had been counseled for some years before she made her complaint to the police in 1995. None of this had been brought to the attention of the trial judge in 1998 or the Court of Appeal. The Prosecution had failed completely to inform the defense of any counseling taking place. [In fact, the Evidence Acts of at least two states have been amended, at the behest of counseling services, whereby obtaining the details of such records had been subject to restriction, thereby limiting both discovery and scrutiny of such matters.] This is extraordinary given the ruling by the Director of Prosecutions in December 1994 that he would not seek to tender evidence of a �recollection� of a witness which emerged for the first time during or after hypnosis unless [stringent] guidelines are satisfied and �the fact that a witness has been hypnotised will be disclosed by the prosecution to the defense�. [2] The same letter states in the first paragraph, �In recent years regression therapy, or the use of hypnosis to �refresh� the memories of witnesses or victims of crime, particularly alleged victims of sexual abuse within the family, has been the focus of attention by scientific, professional and legal personnel� and finishes by asking the Commissioner �to inform all investigators of his decision as soon as possible�. The latter makes it even more extraordinary. It was only when the January trial judge advised the Crown to consider its position that the Crown made further enquiries which revealed the identity of one counselor in Victoria who had counseled the complainant seven times between February and June 1989 [including the use of EMDR]. They also established that before the EMDR treatment the complainant had been counseled at the North East Centre for Allegations of Sexual Assault [NECASA] in Victoria. The Prosecution made no contact with NECASA until the judge insisted and the counselor was located in Mildura. It was revealed that she conducted counseling sessions seven times for up to an hour between 25/6/92 & 23/7/92. It was also divulged that the complainant had been counseled by psychologists and others at a Women�s Health Centre in Rockhampton at the end of 1994. Incredibly, in the judge�s view, the Crown was unable to identify the Rockhampton counselors thus denying the defendant his right to cross-examine them and establish what type of therapy was used. The Crown equally incredibly, could not produce the police investigators involved. To have been able to examine them would have been a defense counselor�s delight in Judge Pratt�s view. Judge Pratt agreed with the defense barrister, Mr Maher that �this matter is about memories�. [3] The sexual assault centre counselor believed, like a lot of people who counsel others in the judge�s view, that she did not suggest anything to the complainant. The judge commented �For a professional counselor to say he/she didn�t set out to do things and/or didn�t achieve those things in a specific case sounds odd to anyone who knows anything about psychology.� The judge also stated �It is important that counseling is aimed at influencing the subject to see things differently, to alter perceptions, to reorganise memories and to structure the subject�s cognition� and that fifty minutes or so would be quite enough time for a counselor to influence [whether intentionally or otherwise] �the thinking, perceptions or memories of a subject�. [4] Judge Pratt states, �The simple fact is this. If the Crown wishes to rely on the evidence of a person who has been subjected to counseling of the kind provided ��.then the danger is that such counseling has almost certainly placed the witness in the vulnerable position of being susceptible to suggestion from the counselor. Questions of hypnosis and EMDR treatment aside, the onus in such a case must be on the prosecution to satisfy the Court that it is safe to admit such persons� evidence. That is a question of admissibility.�[5] Even though the DPP guidelines issued in December 1994 addressed only hypnotically induced evidence and amended in Dec. 1995 to include EMDR, his letter to the Commissioner of Police [20/12/94] in the opening paragraph shows clearly his awareness of the dangers of regression therapy [which of course refers to a whole raft of �therapeutic� techniques including psychoanalysis] in particular where allegations of sexual abuse within the family are involved and certainly indicates his awareness of the scientific literature at that time. So what is going wrong? It has been said that it is better for a guilty man to be found not guilty than for an innocent man to go to jail. This is a perverse form of logic. It is a matter of the deficiencies within a system which can allow for errors in decision-making either way. The presumption of innocence is a cornerstone of this system � and that the state should prove its case �beyond reasonable doubt�. However, via a variety of leaps of the imagination and lobbying, the balance within this delicate system appears to have been dramatically overturned. A mere allegation is sufficient � and the onus of proof has been reversed to prove your innocence! A plea of �not guilty� is an indication of a �lack of remorse� and guilt. As long as this state of affairs continues, the welfare of the abused, the falsely accused, and any person against whom such an allegation may be made, is in peril. This situation has no doubt arisen within a variety of complex and powerful social forces. A self-absorbed society provided the myth that their current ills are the consequence of perceived past injustice, within a society increasingly individualistic and non-caring of the effects on others. Add a proliferation of gurus and less than professional [or ill-informed] therapists, only too willing to lend a hand with simplistic solutions and a hodge-podge of beliefs and methods, opportunistic politicians on the vote-winning law and order band-wagon or the wagon train of care, a dollar-driven media where price of truth is cheap, and the anxiety about the future of our children in uncertain times. The scenario is complete with the tragic reality that child abuse doe sexist � predominantly in the form of neglect. While the system of justice is designed for the common good, its processes are subject to the manipulation and whims of its practitioners where notions of truth are often left side in what Geoffrey Robinson calls �The Justice Game in the title of a recent book. [6] If the justice system is to maintain credence and integrity, it must discern the ill effects which dangerous social influences may have on its essential role of equity- or risk losing the confidence of the public. It is time for the criminal justice and welfare systems to hear and respond to the alarm bells which are loudly ringing. It is clear, knowledge of the effect on memory and perceptions through the use of ill-informed and unprofessional counseling/ therapy needs vast improvement within the welfare and justice sectors. This is for the abused as much as those who recover false memories, or who are falsely accused. It is clear that the legal aid system is far from ideal. Had it not been for the remarkable determination of Mr Noble, these now evident deficiencies may have gone unnoticed while grave injustice continues to occur. Judge Pratt�s ruling was facilitated by the mere chance discovery of information where the law now has changed to restrict such access on a discretionary basis. However, being in the particular court, it carries little or no weight in relation to creating a legal precedent, or alleviating problems in similar cases. Those who accept the caring and investigative roles must also accept the heavy responsibilities which that implies. The policy makers and professional organisations involved can no longer shirk their responsibility. They must act to ensure such grave systemic injustice no longer wrecks the lives of falsely accused, their families and the vulnerable within our society. M D Cox [B.Soc. Wk] � * For those concerned about confidentiality, Mr Noble agreed to his surname being published. References: [1] Eye Movement Desentisation and Processing. This is a procedure in which the therapist causes the patient to move the eyes rapidly from side to side whilst concentrating on some disturbing event or emotion. Even though this treatment differs from hypnosis treatment in many ways it is now established that similar guidelines should be followed if a subject is a potential witness, failing which the subject�s evidence may be ruled inadmissible. [2] Letter from the DPP to Mr J O�Sullivan, Commissioner
of Police 20/12/94, p.2.
POSTSCRIPT: For every door that opens another closes�.: While reading of the outcome of R v Noble is welcomed, it is worth recognising that not all are so fortunate. The AFMA is aware of two recent cases of note where individuals were jailed for lengthy sentences. One is referred to with permission of the Barrister involved (with the other possibly subject to Appeal). In one case, a woman was admitted to a psychiatric hospital after reporting being raped, having slashed her wrists. It is not known if there had been any influences or therapy prior to this. This event �brought back� the �memories� of sexual assault by her father, who she accused of being a Warlock with a Satanic Bible and an altar. Despite the surrounding paraphenalia, the defense did not examine this at trial (although there are themes familiar to many members). The man had pleaded �not guilty�. He is currently serving a 12-year jail sentence, with minimal ability to challenge the charges upon appeal. Material not entered at trial is near impossible to examine on appeal. It is a �legal bind� which makes dubious convictions difficult to over-turn, where on the basis of reason and the evidence, re-examination of the case would appear appropriate . Further up the system, the High Court does not regard itself as a Court of Criminal Appeal, and reserves rulings for when there is an issue of the Administration of Justice. With circumstances like these, it seems that the AFMA needs to continue to exist, and be supported.
Dr Andrew Gibbs Australian NEWS Extradition to face delayed charges The New South Wales police have failed in an attempt to have an Australian man living in Canterbury [NZ] extradited to face sexual abuse charges. The 54 year old man faced 3 representative allegations of carnal knowledge with a girl aged between 12 and 15 (between 1964 and 1968); and similar allegation with a 7 year old girl between 1972 and 1973. The man denies all charges. Nigel Hampton, QC, represented the man. Judge Strelle said that the delay relating to the complaints in the 1960s (30 to 35 years ago), exacerbated by the deaths of 2 family members who could have provided evidence for the defense, and the destruction of records, created unfairness to such a degree that it would be unjust to make the man stand trial on these charges. He did not find the delay a factor in the 1972 � 1973 allegations, but he refused to grant extradition on the grounds of hardship. This included the effects of returning to Australia on the man�s wife and mother-in-law, who depend on him personally, emotionally and physically. (The Press, Christchurch, 16 Dec 1998, Judge declines bid
by police for man�s extradition) Parents sue over �memory of abuse� [Source: Article by Richard Guilliatt, published in The Sydney Morning Herald.] A Sydney couple who were �totally and utterly devastated�
after becoming the target of a major police paedophile network
investigation are suing the State Government, claiming the case
against them resulted from their daughter�s false recovered
memories. Their claim for unspecified damages, filed in the Supreme Court on April 28, is believed to be the first civil litigation in NSW resulting from �recovered memory� therapy. The couple, who cannot be named, were charged with sexual
assault in 1994 after their two oldest teenage daughters told
police their parents were part of a sadistic paedophile network
who drank blood, wore robes and carried out abortions on its
victims. They allege that police and the NSW Department of Community
Services [DOCS] pursued the case despite extensive evidence that
the allegations were unreliable. The couple�s solicitor, Mr Greg Walsh said yesterday that the police and DOCS social workers involved in the case appeared to have been �wilfully blind� to the requirements of proper investigation. Mr Walsh said his clients had endured a 109-day hearing before the Children �s Court to determine the custody of their children, the longest care hearing in the history of NSW. Since the charges were dismissed the parents have been reunited with their son and youngest daughter but remain estranged from their two oldest daughters. Mr Walsh said the father had lost his job and used all his superannuation to fight the allegations. �This case is significant because repressed memory therapy
has been responsible for a number of cases involving significant
travesties of justice, not only in Australia but in many other
countries,� Mr Walsh said. �How and why DOCS and police
could have proceeded with these cases will certainly be a subject
of our case.� Franca Arena says goodbye in a far cry from her days under the spotlight [The following is an article by Damien Murphy, published in The Sydney Morning Herald] Mrs Franca Arena cried herself out of politics yesterday. She had wept so much, so often, most people had stopped listening, and nobody was left to lament but her. Eighteen years ago she swept into [the NSW] State Parliament, a colourful larger-than-life Italian-Australian mama figure who rode in on feminism, multiculturalism, republicanism and a range of progressive ideas that at the end had paled into a single obsession: child protection Her obsession saw a judge kill himself, it caused her to abandon the ALP and turn on parliamentary and trade union colleagues, and when sent to Coventry she went it alone, establishing her own political party, the Franca Arena Child Safety Alliance. Fueled by opinion polling that she commissioned, showing 13 per cent of people were �very likely� to vote for her, Mrs Arena relied on her overwhelming media profile. But it was not enough. Only a paltry 0.4 per cent of voters wanted to put her back in the Upper House at last month� selection. Her growing obsession was evident in 1996 when she named a retired NSW Supreme Court judge, Mr David Yeldham, in relation to paedophile enquiries. He committed suicide four days later. The following year Mrs Arena resigned from the ALP after alleging in parliament that the Premier, Mr Carr, Justice James Wood, the then Opposition Leader, Mr Peter Collins, and the ALP State secretary, Mr John Della Bosca, were involved in a conspiracy to hide the identities of powerful paedophiles. Mrs Arena escaped suspension from Parliament last November despite the recommendation of its ethics committee over her allegations. She now plans to write a book and to become involved in establishing a new, community based organisation, Court Watch, to monitor the court performance of the judiciary so that ordinary people obtain a fair share of justice. [Mrs Arena has] paid about $10,000 in legal costs after being
sued by Mr Della Bosca for defamation over accusations that senior
Labour Party officials protected paedophiles. The defamation
case continues. Mr Della Bosca won an Upper House seat in the
recent election. Sydney Morning Herald, 14 April 1999. [ED: Such news is cold comfort for those who have had to sell
their homes in order to defend themselves against uncorroborated
repressed memory allegations. |
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