(Continued . . .)
In a recent case where I gave testimony, there was obvious coaching, some of which was observed by and noted by mental health professionals who supervised the parents’ interaction with the child; and also by a neutral foster care mom, who stated that the child came back from visits with her mother with new allegations of mistreatment by her father. There were no fewer than 12 forensic interviews, and therapy focused on treating abuse that has not been found by a court to exist. By that point it would be virtually impossible to obtain accurate information regarding the credibility of any allegations. The absence of any credible evidence that abuse did occur, obtained in a forensically defensible manner, strongly suggested a sustained campaign of malicious coaching by the mother. But based on the testimony of a “trauma expert,” Dr. Ricky Greenwald, that the child had disclosed numerous times to the mother, and to “trauma therapist”, who testified that she treated only victims of sex abuse and their families, the State’s representative recommended denying parenting time to the father pending further “trauma assessment.” In this way, bad evidence routinely makes its way into findings of fact and legal dispositions. It is unconscionable for the courts to allow and encourage these practitioners of junk science.
Finally, consider these recommendations from Protocol Author Debra Poole:21 “...Clinicians providing treatment can inadvertently harm the credibility of children’s allegations when they cross over into a forensic role by mining for disclosures or assuming an investigative role following disclosures. As Kathryn Kuehnle and Mary Connell (2010) explained,
‘When therapists directly take on an investigative role, asking questions to ‘facilitate disclosure,’ they may interfere in the forensic investigation. Under such circumstances, the risk is that the child’s memories and statements become so tainted or inaccurate that a miscarriage of justice results. Abused children’s statements may come to appear unreliable or the therapist may unwittingly shape and reinforce the erroneous statements of nonabused children. . . . Furthermore, children who are exposed to ongoing questioning and probing are effectively denied the needed therapeutic support that occurs within a relationship premised on neutrality regarding an unconfirmed allegation of sexual abuse. For example, when parents report to a therapist that their child made a specific comment about having been touched inappropriately, the therapist should follow mandated reporting laws and make an immediate report to CPS but should not conduct an interview of the child regarding the comment. However, if a child makes a spontaneous, suspicious but ambiguous statement during a therapy session (e.g., “Daddy touched my pee pee”), the therapist may need to respond with one or two open-ended questions (e.g., “Tell me about that”) to determine if what is being described crosses the line from innocuous touch (e.g., wiping the child after toileting) and enters the range of reasonable suspicion (e.g., rubbing the child’s genitals). (p. 557)’
“Activities during therapy that can compromise cases include repeated presentation of sexual abuse prevention books and detailed exploration following reports of abuse. Abuse prevention books can establish a strong atmosphere of concern about abuse while also imparting knowledge to the child that can lead to sexual acting out and verbal mimicry, thereby making it difficult to determine the source of the child’s information. In turn, exploration of a potential disclosure that exceeds what is necessary to make a reporting decision (Kalichman, 1999) raises questions about the clinician’s objectivity and influence on the report.”
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To repeat something I wrote nearly 30 years ago, “Ultimately, due process is much more vital to the survival of our democracy than the practice of mental health, and if we mental health professionals have something to offer the legal process, it seems only sensible to require that the information stand up to some sort of scrutiny. There are exquisite psychological principles underlying the concept of due process. Why is it considered unacceptable on direct examination for the witness to be led? Any mental health professional should understand that it is because some people are easily led to wrong conclusions. Even the most uneducated and unsophisticated understand that it is easier to lead a child than it is to lead an adult. So when some mental health professionals say, ‘believe the children,’ what they are really saying is ‘ignore the context of the statements, the method in which they were gathered and accept that a presumption of guilt is not only acceptable, but necessary whenever the issue of sexual abuse is in question.’
“Such a statement is neither legal nor psychological; it is not even political, it is fanatical ideology, which embodies the now unquestioned notion that some classes of people, especially women and children, have been victimized in the past by not being believed, or, in the case of rape victims, being humiliated by having unfair evidence presented at trial which had nothing to do with the case at hand. Some changes needed to be made, and have been made in the law. But the concept has gone beyond this to the state that a presumption of guilt by a mental health professional is considered legitimate grounds for criminal prosecution.
When it is not grounds for prosecution it is frequently grounds to allow a parent only supervised visitation in a custody/parenting time dispute, which makes the ultimate ruling less important than the accomplished fact of the other parent having interim custody, which will, of course, soon turn into sole custody with no contact between the child and the other parent.”
Sexual abuse is a crime for which no physical evidence is required to send a person—most frequently a man—to prison for life. Our hope for justice hangs on the scientifically obtained statements and testimony of a child. This is not often done well when these interviews are recorded and subject to scrutiny. To eliminate the requirement that these statements be obtained in a scientifically valid, ethical, and legally defensible manner is to eliminate all hope of justice for thousands accused of this crime, some for good reason, others by opportunists with malicious motives.
What was once a valid concern about the safety of our children, has gone through the initial phase of hysteria, then serious scientific pursuit, then a political football with legal implications, and finally, an ideology more firmly rooted than the most fanatical religion embraced by anyone in the West, to the point where it defies all logic or rational thought, and serves best those who use it without conscience to meet their own narrow and selfish ends. I laugh when I hear people worry aloud about Russian interference in our election process, not because I believe they wouldn’t destabilize our government if they could, but because no one could do to this country what we are doing to ourselves. It is my well intentioned countrymen and leaders who truly terrify me. The land of the free is now the land of the imprisoned, and those who are not imprisoned are embroiled in never ending litigation.
To what end? Ultimately, no laws will be sufficient to create order for a people who lack good will toward one another. When this country falls, the conqueror will walk in unopposed.
“Our dried voices, when
We whisper together
Are quiet and meaningless
As wind in dry grass
Or rats’ feet over broken glass
In our dry cellar”. . .
Our world will end,
“Not with a bang but with a whimper”22
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1Wex Legal Dictionary, Cornell Law School, https://www.law.cornell.edu/ wex/procedural_due_process
2 Exploring Constitutional Law, University of Missouri-Kansas City Law School. Doug Linder, Professor of Law. linderd@umkc.edu
3 Wex Legal Dictionary, Cornell Law School, https://www.law.cornell.edu/ wex/substantive_due_process
4 “Around 3 a.m. on August 15, 2008, the Nashua, New Hampshire Police Department received a call reporting that an African-American male was trying to break into cars parked in the lot of the caller’s apartment building. When an officer responding to the call asked eyewitness Nubia Blandon to describe the man, Blandon pointed to her kitchen window and said the man she saw breaking into the car was standing in the parking lot, next to a police officer. Petitioner Barion Perry’s arrest followed this identification.”
5 The standard of proof will depend upon the court, but whether criminal, probate or civil, the question is nevertheless whether the child has been subjected to harm, and will be subjected to more harm of the legal system does not intervene. The finding of fact is the same, only the standard and burden of proof are subject to variation.
6 450 Mich. 349, 537 N.W.2d 857 (1995)
7 Journal of Sex Abuse, 19(5):572-89, September 2010, Kathleen Coulborn Faller
8 Bow, J. N., Quinnell, F. A., Zaroff, M., & Assemany, A. (2002). Assessment of sexual abuse allegations in child custody cases. Professional Psychology: Research and Practice, 33(6), 566-575.
9 Handbook of Psychology, Volume 11, Forensic Psychology, Chapter 12, Assessment of Childhood Trauma, Steven Sparta, P. 219
10 ‘No previous disclosure or unclear disclosure, but concerns remain. Cases in this category are usually ones in which a child protection worker has already conducted a forensic investigative interview, but it was inconclusive.’
11 http://www.apa.org/practice/guidelines/forensic-psychology.aspx
12 http://www.apa.org/practice/guidelines/child-custody.aspx
13 http://www.zurinstitute.com/codesofethics_forensicdualrelationships.html#nasw
14 http://www.aapl.org/ethics.htm
15 (Michigan Forensic Interviewing Protocol, P. 1)
16 Michigan Child Protection Law. Act 238 of 1975 http://www.legislature.mi.gov/(S(wky3wmdxkcwvtep05nw0h2i3))/mileg.aspx?page=getObject&objectname=mcl-act-238-of-1975
17 The People’s Law Dictionary by Gerald and Kathleen Hill, Publisher Fine Communications, https://dictionary.law.com/Default.aspx?selected=595
18 Merriam-Webster Dictionary definition of scientific method: “principles and procedures for the systematic pursuit of knowledge involving the recognition and formulation of a problem, the collection of data through observation and experiment, and the formulation and testing of hypotheses.”
19 http://caselaw.findlaw.com/mi-court-of-appeals/1881488.html
20 https://www.ojjdp.gov/pubs/248749. pdf
21 Poole, Debra A., Chapter Two, Interviewing Children, the Science of Conversation in Forensic Contexts (2016) American Psychological Association, Washington D.C., Electronic edition published 2016. ISBN: 978-1-4338-2216-2 (electronic edition).
22 T.S. Elliot, The Hollow Men (1925)
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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.
