“These investigations are often said to involve “children’s homes”. In fact they are usually residential institutions for troubled or difficult adolescents and, since the allegations of abuse usually refer back ten, 20 or even 30 years, those making them are not children at all. They are almost always adults, many of them with long criminal records. In a number of cases they make their allegations in prison or while facing serious criminal charges. It is here that the real dangers of police trawling operations become apparent – or ought to become apparent.”
Richard Webster [deceased] 1999
http://www.newstatesman.com/node/135233
“If police officers interview hundreds of damaged young people with long records of deception and dishonesty, with the aim of gathering allegations of abuse against those who once cared for them, it would be surprising if they did not succeed in provoking a large number of false allegations – particularly when it is known that such allegations can result in thousands of pounds being paid out by the Criminal Injuries Compensation Authority.”

Since Webster’s day, we now have an Industry of Compo lawyers inciting the criminal classes….
Victims of Society – as Monty Python would have reminded us back in the 1970’s.

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I’ve reprinted this article from the BFMS Newsletter December 2003 (available online) because it seems relevant to the current debate – including the compo question. Things have gotten a lot worse in the courts since then.

Therapy culture in the courtroom
by Margaret Jervis
Last month a conference was held in London on “therapy culture”i – the title of Frank Furedi’s new bookii. One of the points stressed was that “therapy culture” was not primarily about therapy, which could be good, bad or indifferent, but about a linguistically-foisted view of humanity that was ultimately controlling and self-defeating.

Therapy culture in this sense is now ubiquitous. And that is why it is so insidious. For it has wormed its way into the fabric of our institutions to form a consensus of powerful but often misconceived dogmatic opinions. The conference tackled far-reaching aspects of the therapeutic milieu, including those in the workplace and international war zones, but it did not address a central issue: therapy culture in the courts and criminal justice system.

In criminal trials involving alleged sexual abuse, the judge will usually tell the jury to put aside “emotions” and “feelings” when dealing with the case. However, what passes by is the number of therapeutically-driven presumptions that routinely shore up cranky evidence with the full support of the Court.

The prosecution and sometimes the judge will tell the jury that “we now know” it is, in fact, quite normal for hideous sexual crimes to be committed by a parent or carer and then not disclosed until decades later. In fact, we know no such thing. The basis of this “common knowledge” is claims that have been made selectively by groups with vested interests in flagging up the prevalence of sexual abuse in the home, together with dubious claims by alleged victims who have modelled their assertions on the therapeutic rubric. The key test here is that the mounting “discovery” of a large number of alleged victims, whose experiences echoed a prescribed pattern, only came after a decade of unwarranted assertions by the new wave of sexual abuse theorists in the 1980s. This expectation was satisfied by promoting the “therapeutic” use of techniques of memory creation and inflation while focussing on unknown or unacknowledged sexual abuse as a likely cause of current problems.

Yet the claimsmakers’ figures do not even stand up to their own scrutiny. Take the NSPCC which led the crusade in the early 1980s, stating that between one in four and one in ten girls were sexually abused, predominantly by fathers, with cases that were coming to light the “tip of the iceberg”. The NSPCC’s own research has revealed a quotient of only one per cent of respondents claiming to be sexually abused at all by the broad category of a parent or carer – and note these are claims, not verified cases. The largest category of abuser was not other relatives but “other known people” followed by “strangers/or someone recently met” this latter group frequently being contemporaries.iii

Figures like these suggest that the sexual abuse victim stereotype – years of horrific abuse at the hand of a parent or carer that is hidden from the world – is not a routine occurrence but a therapeutic construct that has permeated through the media into popular consciousness and the courts.

At no point has the NSPCC or any other promotional organisation admitted that much of their evidence for their original scare campaigns depended on the circularity of assumptions and flawed clinical practices that were manufacturing victims. Rather a whole generation of social workers, police and mental health professionals followed suit. By the early 1990s there was a groundswell of support resting on two pillars. Firstly, the linking of abuse claims to compensation and secondly, the soft landing provided by the media and the broader social fabric to therapy culture and victimhood.

It is now standard fare in the courts for evidence of abuse to be proffered implicitly through claims about effects, such as low self-esteem, drug and alcohol excesses or an eating disorder. Rarely is there any questioning of likely causation – it is taken as read that sexual abuse does cause a myriad of delayed psychological problems. But again there is no reliable evidence to support this, only clinical speculation and unthinking belief.

Then there is witness demeanour. While the jury may think they are putting aside their own “feelings”, it’s a fair bet that in the absence of any external proof, the jury will rest heavily on what they regard as the authenticity of the complainant’s emotions. Getting upset when giving evidence, particularly the graphic descriptions, might well move jury members, in fact it’s pretty well programmed to disgust them. As the judge directs, they may be assiduous in putting aside their feelings, but will they similarly be able to dismiss the display of emotion and lurid detail by the complainant as an arbiter of truth? Of course real victims can get upset retelling a crime and true details can appal. However, it would be rash to rely on these factors alone – because contrary to popular opinion, emotion is not a reliable guide to truth and visual details, such as the colour and pattern of a dress allegedly worn during an assault 20 years ago, do not provide any guide to authenticity of recall or truth.

These and other prejudicial factors go some way to explaining why it is that so many of the people who come to the BFMS for advice after conviction complain that the conviction took place despite there being “no evidence” and massive inconsistencies and contradictions. “Would an abuse victim have left her children with an abuser?” is a common complaint. “How could she have led a normal life with all that going on?” is another. Or, “If she was being raped day in day out without contraception, how come she didn’t get pregnant?”

The answer is simple. The jury do not believe abuse victims behave as would ordinary rational beings in the face of other serious crimes, or bear detectable signs of extreme abuse contemporaneously. Instead they accept the bottling up and delayed signs and effects theory as being the norm and apply it. There need be no mention of “repression”, “blocking out”, and “recovered memory” or even of therapy. Yet unwittingly the jury may be swayed to convict by inferences drawn from specious therapeutic dicta rather than actual knowledge.

Not every case, judge or jury is therapeutically hoodwinked, but too many are as a matter of course. And there are numerous other misconceptions drifting through the courts such as the theory of “denial”. This dictates that when people of good character deny sexual offences this denial is in itself supportive of guilt. Again, this notion has a foundation in therapeutic fiction, not fact. Yet a bare denial may be all an innocent person can offer in his defence.

As anybody wrongly convicted knows, it is extremely difficult to challenge a jury’s verdict on appeal unless there is new evidence or a binding legal point. However, when, as is arguably the case at present, the trial process itself has been systematically contaminated by therapeutic misapprehensions about the nature and reliability of evidence in sexual abuse cases, the wrongfully convicted may have very little recourse to justice in the higher courts.

What is really worrying is that the need for safeguards is not acknowledged because of a failure to recognise the existence of the problem. Belatedly some members of the senior judiciary seem to be sensing that something is wrong. Lord Justice Woolf’s comments in an Appeal Court caseiv hint at the possibility of a large class of convictions being unfairly decided. Given its caseload, the Criminal Cases Review Commission must harbour similar fears.v In the current climate, it would be altogether astonishing if the courts, much less the politicians, were to act on their fears. But with the critique of “therapy culture”, a significant section of people and the media are now beginning to question the shibboleths that have come to dominate popular discourse. It’s time we did likewise in the courts.

i. King’s College, London, 22 November 2003
ii. Therapy Culture: Cultivating Vulnerability in an Anxious Age, Routledge, London (2003)
iii. Cawson, P. et al Child maltreatment in the United Kingdom NSPCC, London (2000)
iv. R v Selwyn Bell [2003] EWCA Crim 319, para 25-29
v. 39 per cent of applications to the CCRC as against one to two per cent of convictions on indictment concern alleged sexual offences.

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