Wrongful Allegations of Sexual and Child Abuse
Edited by Ros Burnett
Reviewed by Nigel Hampton QC
I shortly will declare a number of interests which, some might argue, render me less than impartial when setting down my views on this book.
But first, a brief outline of the book. It comprises a series of 21 essays, inter-related, contributed by some 22 authors (some essays are jointly authored) on the highly contentious, yet little enough researched, area of wrongful allegations, how such may arise, their effects and how the many concerns, which such do necessarily raise, may be addressed in the future. And a note, before I go further – the word used in the title, deliberately, is “wrongful” and not “false”, thus taking away the thought that there is necessarily a wilful or intentional layer behind such wrong allegations.
The 21 essays are placed into five parts (and merely to describe those parts, which I will soon, gives a fair representation of the topics under discussion in the individual essays), with the contributors a geographically diverse group (four countries, including Felicity Goodyear-Smith from New Zealand) from a considerable range of disciplines – criminology, psychology, law, political science, sociology, medicine, social work and journalism.
The first part is an introductory summary of what is to follow, positing the rhetorical question as to why should it be that such wrongful allegations of abuse matter?
Ros Burnett’s claim that this is a “neglected and expanding category of injustice”, is reinforced in a thoughtful foreword by Andrew Ashworth QC – to him the book “focuses on criminology and public policy at the cutting edge, taking the topical issue of sexual and child abuse and raising myriad issues that have been under-researched and under-discussed … two key questions are how the criminal justice system has dealt with them and how it should deal with them”.
Professor Ashworth concludes by opining that the book should be essential reading for all of those involved in the United Kingdom’s ongoing Independent Inquiry into Child Sexual Abuse (one time, and still at the time of his writing, chaired by Hon Lowell Goddard QC).
Having posed the question, Dr Burnett then answers it, with the parts of the book that follow setting out in considerable detail why such wrongful allegations should concern all throughout society.
Part II attempts, successfully in this reviewer’s mind, to explain the cultural and political context which can give, and has given, rise to wrongful allegations – what is the background “terrain” which can give rise to such? Of interest to this reviewer, given what occurred in New Zealand in the late 1980s, early 1990s, are the discussions of the rise and worldwide spread of what was claimed to be an evil satanic conspiracy involving the sexual abuse of pre-schoolers (the Christchurch Civic Creche is referenced) and the “moral panic” which spurred it on. However, soberingly, it would seem that the world is not yet quit of such moral scourges and their resultant injustices – witness what has happened in the UK post the Jimmy Savile revelations, the moral panic button pushed yet again and, attendant, the “zealotry of righteousness”. Unfortunately, such moral panics are inevitably characterised by disproportionate responses. (As an aside – it will be cold comfort for Peter Ellis to learn that hundreds of people are believed to have been imprisoned, wrongly, in the UK as a result of the sort of “trawling” for “disclosures” as occurred in his case. And there, without overtly declaring it, I have shown one of my interests).
Part III has its focus on the causal and motivational reasons for the making of “false” allegations – why should anyone do so? Of significance to me (again revealing my interest and my opinions) are discussions as to “motivated remembering” and the difficulties inherent in such, and as to “repressed memories” and their claimed later recovery – memory researchers, it seems, are far less inclined to believe that phenomenon than, say, investigators, prosecutors and the general public (and necessarily, therefore, jurors).
Part IV considers in some detail the role and the impact of the criminal justice system – how can the justice system get it so wrong, as it has done (and in this reviewer’s mind, still does, regrettably) from time to time?
Here, among other things, is found an essay on false confessions and a paper on the failure of the (England and Wales) Court of Appeal to exercise its power to assess whether the “jury got it wrong on the facts”, leading to a blockage in reversing and setting right such miscarriages of justice (and that notwithstanding the existence in that jurisdiction of the Criminal Cases Review Commission (CCRC)). Again two more of my interests exposed, and both matters on which I have long advocated for change, both in court and out – first, the constrained way in which our (New Zealand) Court of Appeal operates, much as it does in the jurisdiction familiar to Michael Zander QC; secondly, our pressing need for a CCRC in New Zealand.
Part V concludes by discussing the ways that the concerns raised in the earlier parts might be addressed, while remaining mindful of the interests and concerns of victims of abuse and their suffering – what can be done? I raise one more of my mouldy, much gnawed, bones of contention – the part that the abolition of the need for corroboration in sexual matters has played in miscarriages of justice here and in other common law jurisdictions. In an essay in this part there is mounted, in my view, a strong argument for the reinstatement of corroboration requirements and, in any event, a plea for investigators and prosecutors to prioritise searching for corroborative evidence in cases of suspected child abuse.
To me, the most worrying aspect to emerge from these essays, and the studies and the thought which lie behind them, is the proposition that the rise and spread of moral panics has led to the “duty” that all must adhere to, the obligation, that we all must believe the complainant as a “victim”, and believe as well that person’s allegations, as such allegations contain an “intrinsic truth” – the “moral imperative”, that underpins the claim that the victim must be believed, is that allegations of victimisation contain an essential truth which “we” must affirm. (“A confirmation bias”). The result is that there is no such thing as a wrongful allegation; hence, effectively, the onus of proof is reversed. The duty to believe trumps other considerations. For if the complainant is automatically a “victim”, even before an investigation is undertaken, then the obvious corollary is that the person accused, if he denies the allegation, must be lying. The practical effect of this approach is a reversal of the onus – the accused is guilty unless proven innocent, an almost impossible uphill battle to establish a negative; ie, that something had not happened. An open-minded willingness to investigate is replaced by “systemic credulity”.
As Andrew Ashworth says, in a very detached and balanced way, although an assumption by an investigator/prosecutor that a complainant is telling the truth may be “acceptable as a working hypothesis”, the presumption of innocence must be regarded and the search should be for “objective evidence … showing an awareness of the possible fallability of the memory, particularly recovered memory”.
The book, part academic, part polemic, is an essential read for any and all involved in the criminal justice system – which means everyone: investigators, interviewers, social workers, police, prosecutors, defenders, judges and the public (as potential jurors).
To me, this book is a genuine 21-faceted diamond – and how, how, I wish it was available some 25 years ago. As a whole, it is one large cautionary tale.
To finish on a practical note for criminal lawyers: this book is a virtual directory containing a gallery of experts, their expertise and their experience, with excerpts of their work. If for no other reason than that, you may want to think of acquiring it – or, at the very least, consulting a copy. But if you do just try to use it as a directory, I venture the thought that the content, its substance and its strength, will lay a hold on you.
Nigel Hampton QC is a Christchurch barrister with more than 50 years’ experience as a trial lawyer, primarily in criminal law. His extensive CV includes serving as Chief Justice of the Kingdom of Tonga and being the first Commissioner of Standards and Discipline of counsel in the International Criminal Court (ICC) in The Hague, where he still serves as an elected alternate member of the Disciplinary Appeals Board for ICC counsel.
Last updated on the 3rd November 2016