Why sex abuse allegations are so hard to defend
By Michael G. Brock
"ESTRAGON: Nothing to be done.
"VLADIMIR: I'm beginning to come round to that opinion. All my life I've tried to put it from me, saying Vladimir, be reasonable, you haven't yet tried everything..."
-"Waiting for Godot,"
Opening of Act I
Samuel Beckett
"The real struggle is not between East and West, or capitalism and communism, but between education and propaganda."
-Martin Buber
"Encounter with Martin Buber" (1972) by Aubrey Hodes, p. 135
"There's a whole lot of people in trouble tonight from the disease of conceit
"Whole lot of people seeing double tonight from the disease of conceit
"Give you delusions of grandeur and an evil eye
"Give you the idea that you're too good to die
"Then they bury you from head to your feet
"From the disease of conceit"
-Bob Dylan
"The Disease of Conceit"
My daughter shares my love of theatre, and while she was still in college we went to see a production of "Waiting for Godot: at the University of Michigan. Afterwards we discussed the philosophical issues raised by Beckett in the work. If you've never seen or read the play, it is essentially a very articulate tragicomedy about Everyperson. Humankind, according to Samuel Becket, is trapped in a dilemma that repeats infinitely throughout the course of all human existence and in all humans, from birth to death.1
The dilemma is this: We are doomed to wait forever for God because we need God, and only God can give absolute meaning to lives flanked by the abyss on either side. (Any meaning we arbitrarily assign to our lives can just as arbitrarily be taken away by someone else.) The problem is that God never shows up. He sends messengers and makes promises, but the Good, the Bad and the Ugly are all left holding the bag at the end, hoping against hope that God will someday arrive and with him meaning. However, as in that other great existential work of the period, Ingmar Bergman's film, "The Seventh Seal," God fails to show, or elects to remain silent, i.e., uninvolved in the affairs of humans.
Existentialism, my daughter argued, (trying to convince me that my investment in her education was at least partially justified) was the prevailing philosophy of a generation that was born or came of age in the aftermath of two world wars, and was spawned by a fear that the future held nothing but the promise of destruction on an ever larger scale, with individual worth and dignity shrinking as the population spiraled out of control.
"But what of Kierkegaard, the Christian Existentialist?"2 I responded, looking for an upside, and perhaps a way to reconcile my spiritual beliefs with the philosophical view that made the most sense to me.
"I haven't read him so I can't comment," she said, "but the postmodernists are even bleaker.3 Their position is that there is no Universal Truth; it's all a question of what you can get people to believe."
"I see," said I, remembering that for Gandhi, Truth was the purest embodiment of God4, "We've exchanged our One Big God for a lot of little gods."
"Yes," she replied, "but these little gods have a very short life expectancy."
"Hmmm, I guess that depends on how long you can get people to believe the particular truth you happen to be selling?"
"Yep."
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Since that evening I have thought often about our conversation. Of course, I believe there is ultimately meaning to life, even if that meaning is sometimes obscured by conflicting interests, unresolved dualities, and theologies that presume to justify the most unspiritual behavior as ordained by God. But the question remains, "Are we living in a postmodern world where there is really no Truth and no unifying principle?"
It would seem that, in the West, group or societal morality has been replace by the legal process, and though I believe the legal process is necessary and well designed, I also know that it operates-by necessity-on the principal that Absolute Truth cannot be known, but through the adversarial process we can come within a close proximity of the truth (which, like Plato's Ideal, does exist in the abstract), and that will have to do.
All of this is well and good, but for two points: first, the legal system is not designed to micromanage the daily affairs of our citizenry, and when it seeks to do so it becomes very intrusive and begins to erode personal liberty. Secondly, it becomes overburdened with matters that it is not structurally designed to handle. For example, we now have a debtor's prison for parents who don't pay their child support; and there are still many cases of custody and parenting time that remain stuck in the revolving door because the judge is not there when it's time to exchange the children so he or she is never really sure whom to believe. Moreover, in the absence of any universally held moral principles, truth (and therefore Law) becomes more and more a matter of political power because there is no humility before a Higher Power that would impede what becomes a very small step toward, "Truth is whatever I say it is." The existence of these debtor's prisons, for example, deliberately targets men because fashionable truth presumes men should be the providers, whereas, it lets women off the hook for their infractions because it presumes that they are the most important parent and, therefore, to punish the most important parent with prison for withholding parenting time would ultimately punitive to the children (The role of the provider, on the other hand, can be and is replaced by the State). The courts have clearly stated that there is no connection between support and visitation, even when it involves the crime of rape, where women are rewarded for having sex with underage boys, who are then required to pay them child support-the same behavior for which men are routinely imprisoned.5
Alternative dispute resolution is one answer to deciding custody/parenting time issues, and it can be very effective. But it is also based on a system of relative truth, and not on moral principles that, if not attainable, at least inspire us to seek a higher good, and one that is not entirely self-centered. As such, it remains subject to political considerations. Still, it is not just the absence of the Ideal in the general populous that is of concern. It is more disconcerting to me that many of those who work within the criminal justice system have taken the attitude that truth is irrelevant and politics is expedient. This opens the door to the admission of bad evidence, including interrogation processes that are extremely immoral, coercive, and which exploit the power of the State in a most capricious and abusive manner. Moreover, in direct contradiction to the 5th amendment right against self-incrimination, the Supreme Court has upheld the right of law enforcement to obtain coerced confessions.6
In my own experience over the years I have not only handled many child custody evaluations, but also forensic interviews of children suspected of being abused, including interviews with both the accused and accuser in these cases, and have worked as a defense expert where the validity of the forensic interview was laughably deficient and biased, but still resulted in prosecution and conviction. Evidence that was prima facie obtained through coercion, not of a defendant, but of an innocent child, is routinely used by prosecutors, knowing that all a jury needs to hear is the child say it happened on the stand. Inept defense attorneys fail to motion for a taint hearing to keep a jury that is incapable of understanding the science from hearing the bad evidence that is the fruit of this poisoned tree, and prosecutors do everything they can to keep the jury from hearing the truth from a defense expert.
I have also been involved in many domestic violence cases as an evaluator and treatment professional. The manner in which suspects in these cases are treated by police and prosecutors especially suggests that there is not much concern for truth, and tactics that would clearly be seen as abusive if a spouse employed them against another spouse, or a parent against a child, are deemed acceptable to break a suspect down. The fact that these techniques work on the innocent as well as the guilty has either not occurred to law enforcement officials, or, more likely, they don't care.7,8
The techniques I am referring to and have seen practiced in cases I have worked on include:
1. Inviting a suspect to take a polygraph9 to "clear his/her name," when the interrogator knows that the results of such a polygraph are inadmissible as evidence, and that they (police and prosecutors) are not going to drop the case if the results do not favor prosecution. Especially, using the polygraph as a ruse to lure the suspect into an hours-long interrogation without counsel present and without making any record of the way in which a confession may have been coerced.10
2. Inviting the suspect to be interviewed without counsel under the pretense that he/she is not in fact a suspect, but that he/she might have information to provide which would help police catch the "real perpetrator."11
3. Repeatedly refusing to accept the suspect's explanation of events and insisting that the suspect corroborate the interrogators version of events before the suspect is allowed to leave, go to the bathroom, get a glass of water, or take the polygraph, which is supposed to clear his/her name, and unreasonable lengths of interrogation and manipulation of a suspect by smarter, stronger, and unprincipled law enforcement officers.12
4. Telling the suspect that he/she failed the polygraph, when in fact he/she passed it, or the results are inconclusive, and that if he/she confesses it will go easier on him/her and the interrogator will get him/her the "help" he/she needs (cited above).
5. Threatening a suspect by telling him/her that they have enough evidence to convict him/her without his/her confession, and that if he/she doesn't confess he/she will go to prison for a long time and, in a child abuse case, that he/she will never see his/her children again. (The absurdity that a parent would ever again be allowed to visit with a child they confess to abusing does not occur to many bewildered suspects who find themselves in this situation.)
6. Lying to the suspect about what evidence the police actually have, including what his/her children may have said about him to police, CPS, prosecutors, and independent evaluators. (Would the police lie to me about something that important?)
7. Making the suspect wait for an unreasonably long time before interviewing him/her, just to increase his/her anxiety level.
8. Refusing to take any information from a suspect, or to take a written statement, unless it is a confession.
9. Appealing to a suspect to confess to a misdemeanor (such as a 1st domestic violence charge) because it will be taken under advisement and is the cheapest and most convenient way to make the problem go away, but not explaining that this information may be used against the suspect in a future DV case, or in family Court.
10. Filling out false police reports and lying under oath to obtain a conviction.
11. Writing up a confession and having the suspect sign it without allowing him/her to read it or consult with counsel, even if he/she has counsel.
12. Not informing the suspect of his/her Miranda rights because he/she is not really a suspect, but just a witness they hope to be helpful in finding the real perpetrator; or presenting Miranda in such a way as to suggest that no innocent person would need to hide behind this "criminal's defense." Not reading the suspect his Miranda rights until police have what they feel is sufficient inculpatory evidence to convict.13
13. Piling on additional charges that have no merit, but which can be plea-bargained away if the suspect will plead to the real charge.
14. Trying the same case under a different charge when the suspect/defendant has been found innocent of the original charge, or trying the same case in a different court.
15. Denying an acquitted suspect access to his/her children on the basis of evidence that has been thrown out of criminal and family court.
16. Charging defense counsel with crimes because (if they are defending someone charged with a drug offense) they must be getting paid with funds obtained illegally14; or, in one case I read about several years ago in the NY Times, planting incriminating evidence on defense counsel.
17. Holding a press conference on national TV in defiance of a judge's gag order to deliberately sway the outcome of a highly sensitive trial during the conduct of that trial by vouching for the veracity of the prosecution's star witness.15
18. Refusing to reopen a case in which the DNA evidence has conclusively demonstrated that the semen used to convict the defendant was not his; and also despite a confession by the person whose DNA did match. Maintaining the guilt of the defendant that the whole world knows is innocent.16
I could go on, but I think you get the point. We are now reading about exonerations every day because people were prosecuted with extremely flimsy evidence, or exculpatory evidence was deliberately withheld. Take the case of James Terrell Shepherd, who was convicted of the 2010 murder of a drug dealer, when Flat Rock MI police detective Jeffrey Metz had proof that Shepherd was not at the scene. First of all, his employer said he was at work; he was punched in and did not punch out or have a way to transport himself to the scene of the crime, and cell phone tower records Metz possessed also showed that Shepherd was at work. But Metz never shared that information, either with the defense attorney, or with the prosecutor. Shepherd's court appointed counsel was apparently too lazy to track down this exculpatory information himself, nor did the prosecutor seem to have a great interest in tangible proof as to the whereabouts of the person she was seeking to condemn to a life in prison.17
There is a lawsuit filed against Metz and the city will undoubtedly pay for the police officer's malicious behavior with taxpayer money, but I asked attorney Matthew Zick, who as a prosecutor for the city of Flat Rock, worked with Metz for 20 years, if there would be any consequences for the detective's deliberately deceitful behavior. Matt's response was, "The City has insurance for this sort of thing, and Metz will be covered under their policy. He is retired now and there is no way that his life will be negatively impacted." The notion that he would ever be prosecuted for deliberately sending an innocent man to prison is apparently too absurd to consider. The message is clear: it is permissible to tell any lie you want if you are on the side of the "good guys"; and that we accept a lower level of morality from law enforcement officials because they are "truth seekers." If your position is moral, the ends justify the means.
I am reminded of a friend I had when I was in graduate school and he was in law school. His name is Gary T. MacInnis, and he went on to a very successful career in personal injury law. Prior to his death, he lived and practiced in Texas. In college, we used to spend hours talking about psychology and law, years before I ever thought I would be in a field that involve both (although I had been accepted to law school before deciding to go into mental health). I remember him telling me that in England they would have no need for the Miranda ruling. Had the Miranda case happened over there, the police would have simply said, "You want to speak to your lawyer, Mr. Miranda? Certainly." And that would have been the end of it.
But to demonstrate how deeply ingrained in our social consciousness is the idea that anyone charged-or even suspected-of a crime in our society must be guilty, I will quote another very successful lawyer, who, since he still practices in the Detroit Metro area, will go unnamed. While discussing this issue recently he said to me, "Nobody really believes that innocent until proven guilty stuff anyway. Everyone figures, 'The guy must have done it; so how is he going to get off? What clever ruse will his attorney use to get around the truth?'"
After giving testimony in a sex abuse allegation case in Macomb County recently I had a brief conversation with the investigating police officer. Walking back into the courtroom after a break, he asked me how I slept. I said, "Last night I slept well; I don't always." He said, "I don't imagine you do." The reason I don't always sleep well before a trial is that there is so much riding on these cases. I've heard lawyers report the same experience. A conviction for criminal sexual conduct essentially ends a person's life. The sentence for abusing a child is more severe than that for murder, and then there is the permanent punishment of the sex offender registry if he ever gets out of prison.
The police officer, of course, meant to imply that anyone who would stoop so low as to testify for someone accused of child abuse (all of whom are, of course, guilty) should have difficulty sleeping. It is such ideological extremism that allows the witch hunt atmosphere of sexual abuse allegations to continue, including the rewriting of the laws to the huge advantage of the prosecution and the imprisonment of so many men without any credible evidence. What made witch hunts so unfair and so devastating was that so much credence was given to the uncorroborated statements of children, the absence of any real evidence (What evidence could exist for witchcraft?), and the presumption that anyone charged was guilty.
Of course, there are true sexual abuse allegations, but as with any valid crime, there is typically some evidence in these cases, whereas most cases of sexual abuse there is not. Moreover, the presence of physical evidence, such as a torn hymen, will be construed as inculpatory evidence, but the absence of a damaged hymen in this case was not considered to be exculpatory. The seven year old child's intact hymen did not convince a jury that she could not have been penetrated fully by an adult male penis. Though one doctor stated that this was, if not impossible, extremely improbable, and he had the research to back it up; another stated that it was not, despite this medical research to the contrary. Nor were the three different accounts that the child gave at the forensic interview, the preliminary hearing, and the trial, and the fact that all these differed with the account given by the child's aunt (who gave the initial report of abuse) sufficient to give the jury reasonable doubt. The preliminary hearing transcripts were never entered into evidence, and, therefore, never discussed.
Once these cases go to a jury, there is an overwhelming presumption of guilt, which is increasingly impossible to refute. The reasons for this have been covered previously, but the fact is that it is the prosecutors who are responsible to see that cases without merit are not pursued. There are, however, no effective restraints on prosecutors, and, therefore, they have little or no motivation not to prosecute the innocent. First, as displayed by the police officer in this case, the arrogance of the law enforcement team is so great that it never occurs to them to question themselves, their motives, or what passes for evidence. And what passes for evidence in these cases is simply a child pointing a finger.
I can't speak to the motivation of everyone who participates in the defense of someone charged with sexual abuse, but I know that many do so for noble reasons; they believe the accused are entitled to a fair trial and vigorous representation, and that many of them are innocent. I am involved, not because it pays so well (Dollar per hour, I make more money doing driver license restoration evaluations with a lot less aggravation.), but because I believe a proper understanding and application of the science of how children reveal the truth is essential to obtaining justice. I do not have any sympathy for perpetrators of this crime.
I knew a child molester who molested all of his grandchildren quite well. Two of these grandchildren died young of alcoholism, and another had three hospitalizations for depression before getting his life on track. One of the grandchildren told me recently that she still hates her grandfather. The damage is real and lasting. But putting innocent people in prison is not going to ameliorate the suffering of those who have truly been abused, nor is it ultimately intended to. It is a power grab on the part of extreme feminists who are looking for revenge and domination and are more than willing to believe any allegation of abuse, regardless of how preposterous. Opportunistic males exploit the current political atmosphere for their own personal benefit. For those who deliberately make false allegations, it is a safe and legal way to commit murder.
Evil is insidious. But the evil that is most insidious is not the evil done by ill-tempered beasts through malice, drunken impulse, or in the name of greed, lust, anger, gluttony, envy, or sloth, but the massive evil done by otherwise decent people afflicted with the disease of pride. Hubris is the fashionable word, defined as: excessive pride or self-confidence, arrogance, conceit, haughtiness, hauteur, pride, self-importance, egotism, pomposity, superciliousness, superiority. It is no accident that pride is the first of the seven deadly sins, because it is the one that creates the clearest division between oneself and others, and it is this ability to see others as less than human that justifies any and all atrocities inflicted upon them.
In the absence of a belief in or search for Absolute Truth, God is inevitably replaced by the human ego. Truth is determined by consensus of the elite, or the loudest voice. My kid understands; we truly live in a postmodern society. The truth is whatever you can get people to believe.
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1 "Pozzo: (suddenly furious.) Have you not done tormenting me with your accursed time! It's abominable! When! When! One day, is that not enough for you, one day he went dumb, one day I went blind, one day we'll go deaf, one day we were born, one day we shall die, the same day, the same second, is that not enough for you? (Calmer.) They give birth astride of a grave, the light gleams an instant, then it's night once more."-Waiting for Godot, Act II
2 Although we think of existentialism as a modern movement spawned by writers from a Christian background, its roots are apparent in ancient Jewish writings, such as the Book of Job, and Ecclesiastes, and in modern Jewish works by people like Victor Frankl in Man's Search for Meaning.
3 Postmodernism: Issues And Problems Dewan Mahboob Hossain, M. M. Shariful Karim, Asian Journal of Social Science, May 2013
4 All Men Are Brothers, Mohandas K. Gandhi
5 Statutory Rape Victim Forced To Pay Child Support, Alia Beard Rau, The Arizona Republic, Sept. 3, 2014
6 Deception In The Interrogation Room, By Cynthia J. Najdowski, PhD, and Catherine L. Bonventre, JD, MS, American Psychological Association, Judicial Notebook, 2014, Vol 45, No. 5.
"For example, the U.S. Supreme Court has allowed police to falsely claim that a suspect's confederate confessed when in fact he had not (Frazier v. Cupp, 1969) and to have found a suspect's fingerprints at a crime scene when there were none (Oregon v. Mathiason, 1977), determining such acts insufficient for rendering the defendant's confession inadmissible. State courts have permitted police to deceive suspects about a range of factual matters, including, for example, falsely stating that incriminating DNA evidence and satellite photography of the crime scene exist (State v. Nightingale, 2012). Deception In The Interrogation Room, By Cynthia J. Najdowski, PhD, and Catherine L. Bonventre, JD, MS, American Psychological Association, Judicial Notebook, 2014, Vol 45, No. 5.
7 A Rare Look at the Police Tactics That Can Lead to False Confessions, Frontline, 12/9/2011, by Gretchen Gavett
8 4 Police Interrogation Techniques You Should Know (And Why Not All of Them Work), The Forensic Outreach Team, http://forensicoutreach.com/library/4-police-interrogation-techniques-you-should-know-and-why-not-all-of-them-work/
9 The Truth About Lie Detectors (aka Polygraph Tests) American Psychological Association, August 5, 2004, "Without a better theoretical understanding of the mechanisms by which deception functions, however, development of a lie detection technology seems highly problematic. For now, although the idea of a lie detector may be comforting, the most practical advice is to remain skeptical about any conclusion wrung from a polygraph."
10 Lie detectors: Why They Don't Work, And Why Police Use Them Anyway, Vox.com, Joseph Stromberg, Vox.com, December 15, 2014
11 Why You Should Never Talk to Police, Ever!, James Duane, https://www.youtube.com/watch?v=Au4_EdPwTkE
12 Dr. Saul Kassin, Coerced to Confess, the Psychology of False Confessions: "The reason why people confess to crimes they did not commit is because they are subject to pressures of interrogation, a highly aggressive form of social influence. In the interrogation, especially in American style interrogation, people can become so stressed and so broken down and they start to feel so hopeless about their current situation that they come to believe in a rational way a confession is in their best interest. In some cases, they get so confused by the fact that American police are permitted to lie about evidence - and I mean lie about DNA, prints, surveillance footage, polygraph results - that in some cases people accused of crimes, particularly kids and others who are limited intellectually, become so confused by the lies that they actually come to believe they have committed this crime they did not commit. They wonder why it is they can't recall it. They are led to believe that it is possible for people to transgress without awareness, for people to do something terrible and repress it. So they develop basically an inference that they must have committed this crime."
13 The Wages of Stealth Overruling (With Particular Attention to Miranda v. Arizona), Barry Friedman, The Georgetown Law Journal, Vol. 99:1. "The Gradual Overruling of Miranda...'In order to assess whether Miranda has been stealth overruled, it is important to focus on both its rule and the rationale upon which the rule is based. The Miranda rule is that a prosecutor 'may not use" statements 'stemming from custodial interrogation" in the absence of "procedural safeguards effective to secure the privilege against self-incrimination.' The safeguards to which the Court adverted, of course, are the now-ubiquitous Miranda warnings. The scope of the rule was clear beyond peradventure: the Court's plain language about the ban on the 'use' of statements meant not only that the statements themselves were to be excluded from evidence, but so too the "fruits"-that is, any other evidence discovered by obtaining such statements. "Unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against the defendant.' Justices acknowledged that the rule applied not only to statements but to fruits as well."
14 Philip J. Griffin, Of Laundering and Legal Fees: The Implications of United States v. Blair for Criminal Defense Attorneys Who Accept Potentially Tainted Funds, 164 U. Pa. L. Rev. Online 179 (2016), http:// www.pennlawreview.com/online/164-U-Pa-L-Rev-Online-179.pdf., " Because § 1957 eliminates the requirement found in other money laundering statutes that the government prove an attempt to commit a crime or to conceal the proceeds of a crime, § 1957 "applies to the most open, above-board transaction," such as a criminal defense attorney receiving payment for representation."
15 And, of course, the virtual flood of leaks from law enforcement and intelligence officers to spin any investigation the way they want to before any charges are filed.
16 The infamous "New York Jogger Case."
17 Man Cleared In Murder Sues Ex-Officer, City Who Helped Convict Him, by Gus Burns, Detroit News, 4/6/2017
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Michael G. Brock, MA, LMSW, is a forensic mental health professional in private practice at Counseling and Evaluation Services in Wyandotte, Michigan. He has worked in the mental health field since 1974, and has been in full-time private practice since 1985. Much of his practice in recent years relates to driver license restoration and substance abuse evaluation, but he also consults and serves as an expert witness regarding forensic interviewing and the use of forensic interviewing protocols in cases of child sexual abuse allegations. He may be contacted at Michael G. Brock, Counseling and Evaluation Services, 2514 Biddle, Wyandotte, 48192; 313-802-0863, fax/phone 734-692-1082; e-mail: michaelgbrock@comcast.net, website, michaelgbrock.com.
Published: Wed, Jun 21, 2017
