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?
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.
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?
Thank you Andrew. I put this aside when I first read it and even now, a week later, I have the familiar anxiety in the pit of my stomach.
Unfortunately it is too close to home. At the present time I wait for defence lawyers to finalise material for an Appeal for my husband – one of those good men who is not capable of sexual abuse to anyone much less a minor. Not only is he not capable, but I reconstructed a roster applying to 45 years ago which is totally valid and checked against a large number of known dates, which shows he just was not present for 57% of the convictions. This was not produced at trial essentially because the solicitor did not understand why it was valid but did not tell me this. In addition we have since discovered evidence that shows unequivocally that another 33% of the convictions were not possible. That is, a staggering 90%. of the convictions were just not possible. The remainder represent allegations that it is impossible to prove or disprove. And the prosecution certainly did not “prove” them but the judge, after erring by excluding mis-identification evidence, did some interesting airbrushing out of exculpatory evidence and speculating in of theory to fit her paradigm.
And my husband has been in prison for more than 2 years, having been convicted for a lengthy period of time with non-parole period of more than 12 years which puts him in a Maximum Security category where he can do nothing because he is too old and infirm to work. Can we get this new evidence admitted in an Appeal? I simply do not know. It is difficult as Appeal Courts do not like accepting any new evidence. All I can say is that I am pushing for all I am worth.
Let me give you something I wrote for our lawyers:
“Large numbers of studies [50% of studies reviewed by Rumney] put the wrongful allegation rate in the 20% – 47% range, with outliers claiming 1.5% and 90%, and the total showing an overall average of 21.67%1 which is far different from the incorrect, low 2% figure based on a US police chief’s guess. Nor even the 6% figure based on a very narrow definition of “wrongful” as being “deliberate”. 6% has become accepted and ignores all the other reasons an allegation might not be accurate. This will affect the popular approach to an accused person.” 1 [False Allegations of Rape, Philip N. S. Rumney, The Cambridge Law Journal, Vol. 65, No. 1 (Mar., 2006), pp. 128-158 (31 pages), Published By: Cambridge University Press]
And from my own research of Case Study 7 of the 2013-18 Royal Commission into Institutional Responses to Child Sexual Abuse:
” …..Parramatta Girls Training School in Case No. 7 at the Royal Commission where at least six out of sixteen witnesses accused men who were not present at PGTS at the same time as those women. That’s an error rate of 37.5%. We do not know if they were abused by someone else at PGTS or if there has been conflation with abuse in some other period of their lives. But we do know that they were not correct at the R/C. And for the men nominated, that constitutes wrongful allegations.4″ 4. Supplementary Report – Royal Commission into Institutional Responses Into Child Sexual Abuse – Case Study No 7, April 2015, written by me.
And that 6 out of 16 witnesses does not include the person who accused my husband nor the person who accused another really good man who is also currently in prison. To add those in would make it at least 8 out of 16 wrongful claimants. 50%!
I won’t go into the reasons why and how these mistakes or lies occur. But I will say that when children have traumatic early childhoods it can severely affect their perception of having been abused because they happened to have felt vulnerable. And feeling vulnerable can severely affect how well they lay down that memory and consequently what memory they have for recall many years later. Then there are those who actually lie for whatever reason – and there are many reasons why a damaged person might lie. Lawyers do not seem very aware of these psychological aspects even though they think they know the basics.
Something has to be done.
(Ed: This has also been published as a stand-alone post)
I spent 6 years daily judiciously researching and investigating the Historical Sexual Abuse Allegation case brought against my son by one of his daughters. Starting from scratch and knowing nothing, I created a Timeline of Events in the life of my grand-daughter from the date of her birth. My son simply said that as he had never sexually abuse her, his daughter had no relevant reason to make the allegation and that it was not her saying this about him, but that “others were talking through her head”.
At the time of my son’s arrest, neither of us were aware that his Complainant daughter had undergone “Repressed Memory Psychotherapy” from May 2013 to September 2013 before voicing her sexual abuse allegation on 21 Oct.2013. Neither did we know that it was her fiance and not her who was first to assert the allegation to others at the end of September 2013, that Ms.X HAD BEEN sexually abused by her father. I found Ms.X to have then followed up on his lead and on 21 October 2013 to have told the same thing to her two sisters at the same time of meeting with them.
There is so much more to what ended up being an horrific story of corruption, ineptitude and deliberate vilification of my son by a Justice System that is demonstrably by me, completely out of control when it comes to dealing with Allegations of Child Sexual Abuse. But just to give a glimpse into what happened, I will write further…………………………
My son was, by his own assertion, a victim of false allegations of historical sexual abuse against one of his daughters Ms.X. He was arrested on 29 Jan.2013 and charged with 18 counts of child sexual abuse. Ms. Xwas the most favoured of his three daughters because he found her to be the most supportive of him when it came to liaising between himself and their vindictive narcissistic mother who was his former wife. For the whole of her childhood Ms.X behaviour both towards and always in favour of her father gave everyone who knew them both to form a self conviction of mind that she implicitly trusted, admired, and held her father in very high regard.
My son was treated as if guilty by Police, Lawyers and the courts and was victim of vigilante vilification and threats of violence.
He was found guilty on one count with the Jury hung on all others, all more serious charges, two of which were of Rape. No fact based proof was presented in court and the first trial was an attempt to prove “Tendency to have a sexual interest in his children”. The Prosection relied upon one other daughter having said that her father told her about his having said he missed having sex with her mother. Later on I found that my son had possession of a what was a Wedding Date Notification Cardlet. It was custom hand created by his Complainant daughter. It bore the names of Ms.X and her male fiance and the message upon it was for the recipients to give up all else to be able to be there on the 6 February 2014 six month into the future. (Ms.X did indeed marry her fiance on 6 February 2014), By that date her father, my eldest son, had been arrested on 29 January 2014.
Ms. X provided via mail, on 27 August 2013, an identical Cardlet to my son, his mother and the Co-Complainant sister she on 21 October 2013 (two months later), engaged with in ways to favour her allegatory case against my son. These documents we considered to be vital exculpatory evidence of the kind to put in serious question as to what could possibly have caused Ms.X to in September 2013 completely reverse her lifelong positive attitude towards her father. Surely this also put into doubt as to what had REALLY MOTIVATED her to do so. Although I provided to my son’s Defence QC, the ORIGINAL Cardlets that were received by my son and his mother, complete with dated mailing envelopes , he failed to present them at trial as my son had instructed him to. When my son questioned his failure, he replied “It’s not a Wedding Invitation”. The Jury took 4 weeks to reach its verdict of guilty on one count and hung on all others. For that my son was sentenced to 18months prison with 12months parole. and ordered to undergo a second trial. It was 2 years before the second trial took place. The original male Defence QC abrogated his role due to commitments to another trial at the time. He on referred the carriage of the case to another QC he said he held in high regard. For the six months prior to the 2nd Trial my had son languished in prison with no contact from his Defence Lawyer. This time the Judge had to refuse to permit a Tendency Trial due to the Co-Complainant daughter having redacted her statement in that regard. The new QC was female. My son told me that at their first meeting she was condescending and obviously unaccepting of his plea of being a falsely accused innocent person. The trial proceeded, but soon into it my son decided to sack the QC and ask for a Judge Only Trial. The Prosecution agreed and my son proceeded to present himself. My son had asked to have his Complainant daughter put on the stand so that he could cross examine her, but she refused to appear, and the “Justice System” did nothing to make her do so. Three weeks later the female Judge found my son “Not guilty on all remaining Counts”; my son having undergone the trauma of another three weeks of trial with him having cross examined Four Prosecution Co-Complainants as well as the Police Officer who arrested him.
The Judge told him “You are free to go!”
We all thought that was the end of it all. Then it became clear that my son would have to Appeal his conviction on one count at his first trial to put an end to it all completely.
My son was so elated to be free to get in with his life that he decided to put lodging an Appeal on the back burner until he felt ready.
That mistake has led to him having been put on the Australian National Register of Pedophiles and the Police have made his life a misery ever since. He had been arrested and imprisoned twice for several days at a time. He is currently due to appear in court for having allegedly failed to comply with his “Reporting obligations”.
As at this time of writing I have compiled a new folder of “FACTUAL EVIDENCE ” for my son to put to use lodging an Appeal of Conviction
Until he does, he potentially faces a lifetime of Police harassment and the threat of imprisonment as penalty for himself harbouring the self conviction of mind due to the certain knowledge that he did not commit the crime his daughter accused him of.
stigma is permanent.
I live in a caravan park as a permanent. There are many permanents. Disabled pensioners, homeless, old age pensioners and others.
I was told Joe Blow was a child molester. The informer is a known gossip viper.
She even recently told a tourist staying over who reported her slander to management.
Some people just love to gossip.