Andrew L. Urban
Dealing with tendency evidence in my book Presumption of Evil about the Noel Greenaway conviction (arguably wrongful) for historical sexual abuse, I refer to another man who was convicted of sexual abuse on tendency evidence. He and Greenaway (and Frank Valentine, my sequel to Presumption of Evil) are not the only ones, of course. Tendency evidence is the iceberg in the path of HMS Justice Titanic.
The unique problem in the administration of justice when it comes to sexual crimes is that the nature of the crimes makes the accused pariahs, guilty or not – and deters the re-investigation of cases where a wrongful conviction is claimed.
After his failed appeal, understandably upset and determined to show he had been unjustly convicted, the man (name withheld at his request) lodged a petition of mercy with the Attorney-General for his recommendation to the NSW Governor for a pardon. A pardon would not quash the conviction, but it would enable his name to be partially cleared and removed from the sex offenders register. That’s the sex offenders register some would like to see made public … The then NSW Attorney-General Mark Speakman (after a delay of three years) refused the request and refused to explain why that decision was taken.
No politician can be expected to recommend a pardon for a convicted sex offender, whether the offender was convicted of a crime against a child or an adult. The 70 page application for a pardon prepared by a lawyer is convincing that a miscarriage of justice had occurred. But the perception no doubt feared by politicians is that they could be viewed as “soft” on sexual assault and supportive of paedophiles … You can imagine them cringing at the thought.
Tendency evidence in both Frank and Noel’s case was applying one set of lies to validate another. This is a clear weakness in the justice system.
It is up to the legal system (eg The Law Reform Commission? The Attorneys-General?) to devise a better process. One that shields politicians from making decisions on matters of law, at the same time taking account of the community’s disgust at sexual abuse crimes. Surely, legal eagles can rise to the challenge? (I have argued for several years – along with others – that a Criminal Cases Review Commission-style body would be one way to address this and other problems in the appeal process. One day perhaps a principled Federal Attorney-General will have the guts and the imagination to lead the States to the establishment of a national network of such bodies.)
These crimes are abhorrent and at least as repulsive as murder. But society reserves a special intolerance for the sexual abuse of minors. Those crimes are beyond forgiveness in a way that murder is not. The greater the severity of the crime, the greater the severity of the punishment. To properly deliver justice, the care and responsibility with which such crimes are administered should be exceptionally thorough.
In the cases to which I refer, there are ample examples of the failures of the system to protect the wrongly charged. The kneejerk reaction is to presume guilt. This is the pendulum swinging back after years of dismissive behaviour towards women claiming abuse. But it does not correct past wrongs against women to enact new wrongs against men.
Despite the much improved and acknowledged professionalism of many police officers around Australia, it cannot be denied that investigating sexual abuse crimes is a greater challenge than non-sex crimes.
In the case of our anonymous male* suffering a wrongful conviction, his lawyers have identified errors made by police that ought to have prevented his conviction. There is evidence to support a claim along those lines. Police failures were found to be causal or contributing factors in 55% of wrongful convictions, in Griffith University research by Dr Rachel Dioso-Villa. That is the highest of all the factors she found, with erroneous judicial instructions second at 23%.
(* He wishes not to reveal his name to avoid further harm and embarrassment to his family.)
As I reported in Presumption of Evil (and elsewhere) false witness testimony was found by the Griffith University research to be causal or contributing factors in 17% of wrongful convictions. In historical cases such as Noel’s, where the alleged offending half a century prior could not be corroborated, witness testimony must be scrupulously inspected. As in the case of the late Cardinal Pell, it was accepted all too readily, eventually to be dismissed by the High Court. Pell is dead. Noel will celebrate his 89th birthday in prison in October. Noel was 77 when the Royal Commission named him, over alleged events claimed to have taken place in the 1960s and 70s, half a century prior, when he was a supervisor in the Department of Child Welfare. Being named in the Royal Commission was the equivalent of being investigated by the ICAC; you were presumed guilty.
At his trial, the only ‘evidence’ was the memory-reliant testimony of the complainants.
Rachel Dioso-Villa, with her colleagues Roberta Julia, Mark Kebbel, Lynn Weathered and Nina Westera found that “The first place an error can enter the system is a witness’s memory for the event. Psychological research demonstrates memory is not like a video-recording (Tulving 1974; Suddendorf and Corballis 2008). We do not passively take in information and replay it; rather, memory is an active, creative process that can be inaccurate for a variety of reasons. Hence, witnesses may unwittingly integrate prior experiences (for example, media reports they have read, conversations they have had with other witnesses or associates (French, Garry, and Mori 2008; Gabbert, Memon and Wright 2006) and expectations into their accounts of what happened, even before police become involved (Greenberg, Westcott, and Bailey 1998). Such problems with the reliability of memory are exacerbated if the alleged crime occurred a long time ago (Read and Connolly 2007).”
In the conclusion to their paper A Systemic Review of Wrongful Conviction in Australia (2016), the authors make a powerful point:
“This paper is designed to start the discussion between academics, practitioners and lawmakers regarding wrongful conviction as a systemic issue that warrants a comprehensive systemic solution, rather than a rare or accidental occurrence. Rather than anomalies in the system, wrongful convictions can be regarded as rare opportunities to dissect how errors occur and compound at different stages of the criminal justice system that leads to systemic breakdown with the hope of detecting, correcting and preventing future occurrences.”
Echoing my own sentiment that, “While there has been a welcome increase in policies which address child abuse, rape and other sexual offences, these tend to neglect or disavow the diametrical problem of false allegations of such offences,” the book Wrongful Allegations of Sexual and Child Abuse (Oxford University Press), edited by Ros Burnett (Research Associate, formerly Reader in Criminology, at the Centre for Criminology, University of Oxford), also notes that “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. It is right that all allegations of abuse are treated as believable and are rigorously investigated, but it is not in the interest of any progressive and robust system of justice to convict or malign innocent people.”
To set the framework, the book begins with the context: “It was in California in the 1970s and 1980s that a new culture of child protection gradually emerged. One of the distinctive features was the manner in which it set out to combat the systemic disbelief with which allegations of sexual abuse were all too frequently met. The development was in many ways both necessary and overdue. But the rigid ideology which lay behind this view meant that in too many cases an attitude of systematic disbelief was replaced not by an open minded willingness to investigate, but by a systematic credibility.” (I think the correct word is ‘credulity’.)
The following observation is all too familiar to men like Greenaway. “There is a special repugnance reserved for sexual and violent abuse of children, women and other vulnerable adults. These offences of physical violation and traumatising psychological degradation are so contemptible that many would refuse to be in the same room as a named child abuser or rapist; even those who support paradigms of rehabilitation and forgiveness would not trust former sex offenders to be alone with children or vulnerable adults. Such offences have become a crimen exceptum (Larner, 1980) of modern times, arguably more so than even terrorism – on a par with witchcraft in historical Europe. They are regarded as sufficiently endemic and evil as to necessitate exceptional measures to root them out and penalise them. Other heinous crimes such as murder, do not necessarily call forth the same moral opprobrium or populist punitiveness as sexual offences.
“All the greater the calamity visited upon those who are wrongly accused of such offences. They are no less likely to share those same feelings of revulsion against sex offenders and child abusers and yet are forced to live with being identified as capable of and culpable for such deeds. For an innocent person who has led a law abiding and decent life, it is hard to imagine a crueller tyranny than being found guilty of child sexual abuse and sentence to perhaps decades in prison with lifelong registration as a sex offender …”
As that book makes clear, the accused are never declared innocent if and when acquitted and typically there is no exculpatory evidence to remove suspicion.
This is an area in which the criminal justice system is liable to make errors of judgement, say the authors, and in which prior assumptions and mindsets will influence outcomes. Especially so when public opinion can be influenced – which led to the Royal Commission. Which, in turn, revealed the shocking and hidden abuse on which public opinion gorged.
In the absence of objective biometric evidence, judgements become more an act of faith and choosing to err on the side of the perceived greater injustice. As the authors say, “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 minimising and even mythologizing of false allegations as 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.”
Sociologist Frank Furedi contributes Moral Crusades, Child Protection, Celebrities and the Duty to Believe, an exceptionally relevant chapter. Many elements of Furedi’s essay echo elements of my books. Within the shadows of his words lie many universal truths.
It is a sobering exploration of the characteristics of moral crusades spanning centuries. The challenge for contemporary western civilisation is to balance the concerns for the complainants with the rights of the accused. In the field of sexual allegations, that is a task not even sagacious Solomon would be keen to attempt.
It is so binary: believe or disbelieve. That is not helpful.
As Furedi says: The intensely moralised language surrounding allegations of victimisation is underwritten by the conviction that what is at stake are not simply individual criminal acts but a conspiracy of evil.