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1 16th April 15:29
brian
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Default Peter ELLIS : Michael Corballis draws parallels with Saskatoon malicious prosecution


NZ Herald
February 2, 2004


Victory for adult victims of children's abuse lies
Michael Corballis

Professor Michael Corballis teaches in Auckland University's
psychology department.


Last month, in a landmark case in Saskatoon, Canada, Queen's Bench
Justice George Baynton upheld a charge against three individuals for
malicious prosecution of 12 adults accused of satanic ritual abuse of
three children. [Ref 1] Those charged were a police officer, a crown
prosecutor, and a therapist.

The original charges against the 12 alleged child abusers, laid in
1990, were stayed by the court, because it was considered the children
were too traumatised to testify further, although it subsequently
became clear the children were fabricating their stories.

Nevertheless, the accused adults were clearly stigmatised by the
accusations, and one of them, in particular, had lobbied tirelessly to
have his name cleared, along with the names of the other accused. For
these people - normal citizens of a normal provincial town - the
ruling is a significant victory.

Justice Baynton also noted that the children themselves were
significantly harmed by the actions of the police, social welfare
workers, and therapists.

The original case shares several features with that of the
Christchurch Civic Creche, which resulted in the conviction of Peter
Ellis on charges of the ***ual abuse of children. Both took place in
the early 1990s when hysteria over satanic ritual abuse was at its
peak; both involved the zealous efforts of a police officer bent on
exposing such abuse; and in both cases a mental health professional
was critically involved.

In both cases the evidence of abuse was based almost exclusively on
"disclosures" of abuse from the children, and was followed by later
retractions.

In both cases only one person of those initially charged was convicted
and sentenced, although the cir***stances were rather different. In
Christchurch the charges against the civic workers were eventually
reduced to restricted charges against Peter Ellis, while in Saskatoon
the father of one of the accused foster parents pleaded guilty to one
charge against each of the children as part of a plea bargain.

There were, of course, other differences between the two cases. In the
Christchurch case, the alleged victims were presumably normal children
attending a childcare facility. In the Saskatoon case the children
were from a dysfunctional family and were fostered in other homes.

It became clear that the main perpetrator of ***ual abuse was one of
the children, and the stories were fabricated by this child and his
sisters in an attempt to have him taken from one foster home and
reunited with his sisters in another.

The stories were amplified by these and other children into tales of
satanic ritual abuse, involving the killing of babies and animals, and
the ingestion of human flesh and bodily products. It is probable that
such stories were implanted in the minds of the children during the
long and repeated attempts to extract disclosures of abuse, and it is
a measure of the hysteria of the time that the stories were widely
believed.

The Christchurch case included similar elements. Yet in the Saskatoon
case it should have been evident from the beginning that the children
were not reliable witnesses. It was well-known that all three children
had what was euphemistically referred to as a "touching problem", yet
the policeman and the therapist nevertheless persisted in extracting
"disclosures" about abuse, and in believing the children rather than
the adults.

The therapist appears to have adopted the extraordinary attitude that
the disclosures were critical regardless of whether or not they were
true. When they were revealed as lies, she showed no signs of remorse
and offered no apology for the distress and stigma suffered by the
accused.

The attitude of the therapist may well be described as malicious,
although in legal terms "malice" has a definition that is at once
broader and more specific. A prosecution is considered malicious if it
was carried out in the absence of reasonable and probable cause, and
for a primary purpose other than carrying the law into effect.

The prosecution must also have been initiated by those accused of the
malicious prosecution, and the proceedings must have been terminated
in favour of the plaintiffs. Justice Baynton found that all these
conditions were fulfilled.

My guess is that the missionary zeal of the prosecutors was based more
on ideological conviction than on personal malice, although the one
may well breed the other.

In a recent dialogue article, Emma Davies rightly noted that the
questioning of children in court must be handled with extreme care and
sensitivity, especially in cases involving alleged ***ual abuse, and
that it was of paramount importance to discover the truth of what
actually happened.

She also suggested there was an imbalance in the way information was
obtained from children. Referring to a study in which she was


interviewing children. Defence lawyers were not."

This may not always be the case. In the Ellis trial, one of the
psychologists who gave evidence said, "I was actually very impressed
with what's-his-name [the defence lawyer]. I thought he'd be a real
shit to those kids but in fact he was very engaging. He was quite
gentle and sensitive".

Even the children were impressed after a day in court. One of them
told his mother that Ellis' lawyer was kind to him.

In the Saskatoon case, too, Justice Baynton wrote that the defence
counsel were polite and considerate toward the children. Further,
every care was taken to ensure that the courtroom provided a
sympathetic environment.

The accused adults were hidden by a screen so the children would never
have to look at them, and the public and media were excluded when the
children testified. The judges doffed their gowns and wore suits to
create a less intimidating atmosphere.

Dismissing suggestions that the children were suffering from fear,
trauma or exhaustion in court, Justice Baynton wrote: "It should have
been obvious that the poor performance of the children was caused
primarily by their inability to accurately relate the fabrications
they had previously made, and their inability to weave new
fabrications consistent with those they had previously made."

He also remarked that the intense pressure on the children to make
"disclosures" of abuse was "far more traumatic than any court
proceedings could have been". Any trauma they may have experienced in
court came about when it was made plain to all, through glaring
inconsistencies in their stories, that they were lying.

To their credit, the children, now in their 20s, later retracted.

This case should not, of course, be taken to imply that children
always lie, or that those accused of abuse are generally innocent.
Rather, it raises two important points.

First, failure to arrive at the truth is not always due to aggressive
questioning by defence lawyers. Those bent on prosecution can also
behave aggressively, and have greater opportunity to do so outside
court.

Second, it reminds us that false accusations of abuse are as damaging
to those accused as are failures to apprehend the guilty, and perhaps
more so.

Justice Baynton wrote perceptively: "The ideological pendulum in our
society has a history of swinging from one extreme to the other. In
the early 1990s, pursuing allegations of child abuse was the ideology
of the day. At the outset of the 21st century, pursuing wrongful
prosecutions and convictions appears to be the ideology of the day.
Hopefully a balance of these ideologies will prevail."

Up to 1989, the word of an adult was generally taken over that of a
child, and judges frequently warned juries that children could be more
imaginative and suggestible than adults. In 1989 the law concerning
children's evidence was changed, and judges were no longer able to
give this warning.

This change came about as a result of claims that the incidence of
child ***ual abuse was higher than previously thought, and it was
widely proclaimed that children never lie.

Both children and adults tell lies, and it is also increasingly
recognised that memory is highly fallible. To misrecall the past is
not necessarily to lie. We should not always believe children, just as
we should not always believe adults.

Accusations of satanic ritual abuse may now be largely a thing of the
past, but there are undoubtedly still innocent people who have
suffered the stigma of false accusation, and in some cases wrongful
conviction.

The Saskatoon affair may be just the tip of an iceberg, and is a
timely reminder that injustice can cut two ways.
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