Wrongful allegation of child sexual abuse as weapon

Andrew L. Urban.

There’s nothing worse than being wrongfully accused of child sexual abuse – except being wrongfully convicted of such a crime. Two books explore how the law and how society treat this explosive subject; allegation as weapon.

Anyone jailed for child sexual abuse is kept apart from the general prison population – for their own safety. Even crims hate them. An allegation of such a crime has the same effect in open society. Imagine if the allegation is wrongful, the accused innocent. The complainant is guilty of a unique crime that tramples the usual safeguards of the rule of law, enabling the complainant immense power over the accused while shielding the complainant.

I personally know one man who has been wrongfully convicted of historic child sexual abuse. While in prison, he met several others like him. That’s just one man, in one prison. It would be irrational to think that wrongful convictions do not occur among such cases; they occur in all serious criminal cases as research has shown.

On reflection, he says: “I always feel that terrible feeling a child has, when his parents accuse him of breaking the heirloom vase. He knows the disappointment his parents feel about losing something irreplaceable. But in that instant of anger or anguish, they have crushed their child’s ability to go to them for a just hearing. That’s how I feel. The system is like a parent with deaf ears. Soul destroying! Desperate! No one to turn to. I have saved the lives of 4 children at the risk of my own. Who does that ? A hero or a villain. I don’t want to be either. I know who I am and what I’m capable of. The one thing I know I’m not capable of, is exactly what I’ve been accused of. In 1986 I’m supposed to have offended . The judge said I’d lived an exemplary life before 1986 and then after 1986. So I did something completely out of character that I never did before or after despite thousands of opportunities. Dear Australia, I hope we are better than this. Help exonerate the innocent, and prosecute the perjurors.”

The severity with which society views such crimes is reflected in the emotion-charged discussions that they evoke. Understandably. The problem is that such emotions tend to sweep aside the needs of the wrongfully convicted, and often seem careless with the usual safeguards. A good example of that is the thoughtless campaign to publish location details of child sexual abusers: a) the police already have such a list; b) what would the public do with the list … form a lynch mob? and c) what consequences might flow to the wrongfully convicted?

tendency evidence

Perhaps the most troubling example of dangerous law in this regard is the nature of tendency and coincidence provisions that “ignore the prejudice that flows from revealing past crime during a later trial even though its is well accepted jurisprudential principle that previously proven crime does not prove later offences,” as noted by A. Keith Thompson (professor at the Sydney Law School of The University of Notre Dame) in his editor’s introduction to Current Issues in the Law of Evidence (Connor Court).

But wait, there’s worse … the possibility for vindictiveness, which is exactly what drove my friend’s vindictive (now adult) complainant to weaponise a friend who would provide the false – and fatal – tendency evidence that clinched the conviction in his case. Legal mistakes corrupted his trial, his appeal was dismissed (despite a judicial doubt of evidence) and the High Court refused leave to appeal. But a comment by Justice Virginia Bell revealed her acceptance of the tendency and coincidence evidence. So 3 to 2 judges refused leave to appeal, although David Jackson QC said that the Tendency & Coincidence evidence was incorrectly used.

Well after his prison sentence, he is still subject to random, unannounced visits from the police (searching everything), and he can’t travel (even when Covid-19 was not a threat) without a permit.

You might think I am biased in his favour. If so, I became ‘biased’ after reading a comprehensive deconstructive analysis of his case by a lawyer, which shows not only how flawed (biased) was the police investigation but how flawed was the entire process, including (amazingly) prejudicial errors by a judge.

“There are so many inconsistencies and contradictions in the evidence led against me that my conviction is unsafe,” he says with ironic understatement. It’s like saying the Titanic had a leak.

stigma is permanent

Child sexual abuse is not like any other crime: it carries a massive payload of shame and public hatred. The stigma is permanent.

Thompson writes:
While rape shield laws were introduced by amendments to the Criminal Procedure Act 1986 [NSW] and preserved the overall integrity of the uniform evidence regime, New South Wales Attorney General Greg Smith subsequently introduced a new s89A into the Evidence Act 1995 [NSW] designed to abrogate the common law right to silence of those accused of crime and one of his successors, Mark Speakman, has completely reconstructed the tendency and coincidence provisions of the New South Wales legislation to make it easier to convict those accused of sexual offenses against children.

While the attempt to abrogate the right to silence has been unsuccessful for practical reasons, the New South Wales amendments to the uniform tendency and coincidence regime ignore the prejudice that flows from revealing past crime during a later trial, even though it is a well accepted jurisprudential principle that previously proven crime does not prove later offenses. That is, the New South Wales amendments to the previous tendency and coincidence rules present as unwise amendment that pander to vindictive developments in our society and seem to accept that permanent incarceration is the only solution to criminal behaviour despite empirical proof that even child sexual abusers can be rehabilitated if they receive the right treatment.

The levers of evidence law operate like the arc of a pendulum. When the mechanisms are too close, an unacceptable number of the guilty avoid detection and punishment and the opportunity to be redeemed by sound rehabilitation programs. When we wind the mechanisms so tightly that we convict every person guilty of crime, we convict many innocents along with them. And when the mechanisms of evidence law are wound so tight that they punish and incarcerate the innocent, there is no way to count the cost of those injustices though Ros Burnett and others have attempted to draw societal attention to some of that human damage. (see below)

a cruel tyranny

It is inherent in the, typically, unwitnessed and physically uncorroborated nature of these ‘hidden’ crimes that they are difficult to prosecute; but also to disprove if no crime has been committed. That’s where Wrongful Allegations of Sexual and Child Abuse (Oxford University Press) comes in, a book that claims to be an “authoritative and considered text focused on false accusations of recent or historical abuse, both as a miscarriage of justice and as an ordeal which impairs lives even when it does not result in criminal charges. It brings together experts from different disciplinary backgrounds and relevant specialisms to explicate the context, causes, and processes that foster erroneous or fabricated allegations and to consider ways of reducing their incidence and the injustices that follow them,” says the publisher.

Edited by Ros Burnett, a Senior Research Associate, Centre for Criminology, University of Oxford, the book boasts many well credentialed authors, including herself. (Her voluntary roles include research consultant to FACT, the support group for falsely accused carers, teachers and other professionals.) She writes in Part 1 (The reality of wrongful allegations of abuse): “For an innocent person who has led a law-abiding and decent life, it is hard to imagine a ‘crueler tyranny’ (Rabinowitz, 2004) than being found guilty of child sexual abuse and sentenced to perhaps decades in prison, with lifelong registration as a sex offender and restricted access to children in his or her family—and having ‘every good that [they] put into the world turned around for bad’ (Greene, 2011: 2).”

She writes: “The worst-case scenario is that the accused will be wrongly convicted and imprisoned, usually for many years, without having committed the alleged crimes and quite possibly having never broken the law in his or her entire life. Those convicted and unable to ‘clear their name’ are unlikely to receive the same support that other prisoners are eligible to receive for their families or their resettlement, because maintaining innocence is perceived as indicative of a lack of remorse and unpreparedness to change.

“The very existence of false allegations is challenged or the concept is regarded as offensive—particularly in the narrow sense of ‘false’ as deliberately fabricated, and therefore as representing women as dishonest, while failing to acknowledge their suffering.

“Ironically, this minimizing, and even mythologizing, of false allegations adds to the danger that they will occur, because it sets up ideal conditions for them to be made maliciously or recklessly and nevertheless to be believed. (emphasis added)

“Because sexual abuse is typically unwitnessed and leaves no physical marker, responses to claims made are dependent on believing that the reported abuse has occurred and on believing the accounts of complainants. This is therefore an area in which the criminal justice system is particularly liable to make errors of judgement, and in which prior assumptions and mindset will influence outcomes. Where there is scope for doubt, and choice, in the absence of decisive information, it is inevitable that personal passions, groupthink, and cognitive biases will come into play (Tavris and Aronson, 2015). Most critical, therefore, are the theories held by policymakers that guide practice and legal developments.”

The most diabolical examples of wrongful convictions in this area are those that have been failed at every step of the criminal justice system: charge, trial, appeal, High Court. This is a perfect storm that defies solution. In cases where a petition of mercy is (in desperation) delivered to the Attorney-General for review and recommendation to the Governor, the perfect storm hits the perfect wall: no politician will go to bat for a convicted child sex abuser, even when armed with exculpatory evidence. That is a life sentence and a miserable one.

Burnett collected six (anonymous) first person accounts of wrongful allegations. One sentiment common to all these is encapsulated in account 6: “It is only those who have been falsely accused of child abuse who can truly understand the way it invades every last cell of their body like a cancer that can never be purged. You feel abandoned and betrayed by justice—and incredulous that someone who has always been law-abiding and protective of others could suddenly be perceived and condemned as a child molester. Your own implicit faith in natural justice is thrown on its head.

“In my case, what made it even more outrageous was discovering that this was no error or honest mistake, but something that had been brought upon me deliberately by someone with a grudge after we had argued. The accuser went about framing me with the enthusiasm and evil of Dr Mengele carrying out one of his experiments at Auschwitz, injecting … a poison that seeps into every aspect of your life and [which] will be with you forever. It is only when you are in the invidious position of being wrongly criminalized, as I was, that you come to appreciate how readily that accusation is believed and how rapidly the machinery goes into action to keep others away from this presumed guilty person.”

The Confession of Mario

In Part IV of Wrongful Allegations of Sexual and Child Abuse, there is absolutely fascinating discussion of the phenomenon of false confessions to child sexual abuse. Caught me by surprise! Each case is unique, of course, but this one deserves to be included here.

“In May 2006, 10-year-old Shawnae Matthews reported to police that her uncle Mario Matthews had sexually molested her for approximately a year. The molestation allegedly occurred three years earlier, when she was aged 7, between January and December 2003. Shawnae reported that her uncle Mario had forced her to have intercourse between ten and twenty times, and had digitally penetrated her on other occasions.

“On 22 March 2007, almost a year after the initial allegations, Mario Matthews was brought to a San Bernardino police station, where he was interrogated for roughly an hour. Few would imagine that his interrogation was of the type likely to induce a false confession. It was short. There was no physical intimidation nor were there explicit verbal threats seemingly sufficient to cause him to confess falsely.

“Yet Mario Matthews did confess falsely. Although he denied everything at first, he later admitted to all of the allegations his niece had made. He did so relatively quickly, within an hour, and with no apparent coercion. And, as a result, Matthews went to jail, where he spent several years awaiting trial. It was only when the case went to trial that his false confession was discovered. When the victim was asked in court whether the person sitting at the defence table was her molester, she responded ‘No.’ When challenged with the fact that she had explicitly reported that it was her uncle Mario Matthews who had molested her, she responded that indeed it was her uncle Mario Matthews, but she had two uncle Mario Matthews, and it was the other one who had molested her.

“Had Mario Matthew’s niece not exonerated him so definitively in open court, his claims of innocence almost certainly would not have been believed, he would almost certainly have been convicted, and he would have spent decades in prison. Most false confessors to sexual abuse, and to other ‘he said, she said’ sexual allegations, are not so lucky.”

This story is related by Deborah David and Richard A. Leo, who explore the (bizarre) special vulnerability of sexual abuse suspects to false confession. (It also raises questions about the efficiency of the investigation, of course.)

They discuss the issue of interrogation-induced false confessions and note that “Much of what interrogators are taught regarding detection of deceit is directly contradicted by scientific studies identifying actual cues to deception.” That is also noted in Malcolm Gladwell’s book, Talking to Strangers (Little, Brown and Company). “… the people charged with making determinations of innocence and guilt seem to be as bad as or even worse than the rest of us when it comes to the hardest cases. Is this part of the reason for wrongful convictions? As one of his readers puts it, “It’s very difficult to tell when people are lying.”

David and Leo note that “Likely to experience anxiety under the circumstances, all suspects are thus at risk of being judged deceptive, based on the flawed behavioural analysis indicators of deception, as employed by interrogators who use them selectively and unsystematically, in the context of expectations of guilt. But are some classes of suspects—and sexual abuse suspects, in particular—at increased risk of being judged deceptive and therefore at increased risk of being interrogated? We suggest that sexual abuse suspects may be more likely to be judged deceptive than many other classes of suspects.”

The whole deck of legal cards is stacked against sexual abuse suspects, which may not trouble us … unless the suspect is innocent. But when and how do we, our legal systems, discover that?