Legal Affairs Information
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Criminal prosecutions
Retrospective allegations of child sexual abuse may be true, a mixture
of truth and falsehood or completely false. Prior to the exposure of highly
questionable therapeutic techniques for eliciting abuse allegations in
children and adults - methods which are known to be unreliable - suspects
for sexual offences had the highest rate of spontaneous confession among
any group of suspected offenders - nearly 90 per cent. A similar figure
was found for accusations of incest. (Source: Mitchell B. (1983) Confessions
and police interrogation of suspects. Crim Law Rev Sept 596-604; Manchester
A. Incest and the Law in Family Violence (1978)).
There is therefore no evidence to suggest that denial of offences
is indicative of guilt. Recent Home Office Research (HO
Findings Paper 164 - "Reconviction rates of serious sex
offenders and assessments of their risk") indeed suggests that deniers
pose no greater risk of reconviction than controls. Deniers do however,
clearly suffer prejudice in the minds of the Authorities on issues such
as parole or risk assessment etc.
Studies of 'denial' which appear to show high rates among convicted sex
offenders are associated with adult rapes and issues of consent, not the
existence of the events or victim harm among admitted paedophiles. (Source:
Kennedy, H & Grubin D. Patterns of denial in sex offenders. Psychological
Medicine, 22, 191-6).
The particular area of Paedophilia and Rape abound with shibboleths and
myths that pass for sloppy scientific thinking. It is often observed (e.g.)
that paedophiles are notoriously difficult to cure and treat, and rapists
are likely to re-offend. In the same breath, proponents will argue that
only a miniscule proportion of either group of offender ever come before
the courts, and an even lesser fraction are actually convicted. A moment's
reflection will show that the two premises are totally contradictory.
If only a minute fraction of paedophiles and rapists ever present themselves
to the Criminal Justice System, the vast majority of offenders are "out
there" committing their offences with impunity. Of the numbers known
to the authorities the sample would be so infinitesimally small, that
one could make no reliable observations about the incidence and trends
of either criminal group.
There is undoubtedly a social perception that previous generations swept
issues of child sexual abuse, familial patterns of generational abuse,
and abuse occurring in institutions (boarding schools, hospitals residential
homes etc), under the carpet. Unfortunately the swing of the pendulum
has now produced a Criminal Justice system that seems very slow to recognise
that "over-reaction" can produce as many evils as those which
it set out to remedy.
Because of a significant relaxation to the rules governing Similar Fact
evidence in two decisions of the House of Lords in the final decade of
the last century, and a more permissive approach to police investigative
methods (such as "trawling for evidence"), an innocent person
is much more likely to be prosecuted and possibly convicted than was previously
the case and it is therefore hardly surprising that denial rates among
convicted sex offenders have significantly risen.
Defendants
In the UK, uncorroborated retrospective allegations of child sexual abuse
may be criminally prosecuted at any time. There is no statutory limitation
period (unlike in civil cases) and complaints alleging abuse thirty or
more years ago may be made for the first time now and brought to trial.
Since the prosecution may rest on a confabulated narrative that is impossible
to refute because there is no objective evidence to go by, innocent people
may be convicted of non-existent child sexual abuse offences.
The justification given for pursuing this no-limitation policy in English
Law rests on two principal arguments. (1) That child sexual abuse is a
phenomenon whose consequences can often only be appreciated and faced
by the "victim" in later adult life and (2) Knowledge that there
will be no respite from liability for their crimes for the rest of their
lives deters adult abusers from criminal acts against contemporary victims.
The policy is unique to English Common Law. The other nations of Europe
whose systems evolved from the Civil Law (Roman) all invariably have time
limits (dependent upon severity and class of case etc) after which no
prosecution may be brought. Some cases such as War Crimes, Genocide and
other Crimes against Humanity have by international convention, no time
limits.
The feature which is unique to retrospective child sexual abuse allegations
is often that it is the only class of crime, WHERE PROOF OF ANY CRIME
HAVING BEEN COMMITTED DEPENDS EXCLUSIVELY UPON ORAL EVIDENCE.
As has been said "In these crimes, there is no body, no smoking
gun, and no blood on the carpet".
Nevertheless, the European Court of Human Rights has recently defended
the right of States to choose to have or not have periods of limitation
for the prosecution of crime. (SAWONIUK -v- UK).
There are a number of different types of false allegations. Even where
the initial allegation is a conscious lie, it is possible for the accuser
to come to believe the allegations, especially when motivated, encouraged
or reinforced. Also since a daily dose of media, stories and documentaries
come to give the impression that child sexual abuse is endemic and widespread,
vulnerable people may feel that they have been given "therapeutic
permission" to ascribe all their failings in life, to the incidence
of abusive trauma suffered in child-hood. At the end of the day it may
be difficult to distinguish between lies and sincerely held false beliefs.
A history of psychological treatment, therapy or counselling may have
significance in terms of the reliability of the allegations and their
admissibility as evidence. Certain attributes of the accuser may also
be relevant in this regard.
Research has demonstrated that both psychotherapeutic techniques and
police investigation can unwittingly elicit false testimony that may then
be believed and reinforced.
The latter dangers have been highlighted in the House of Commons
all-party inquiry in to retrospective child abuse in children's homes.
(HOME OFFICE DOCUMENT ref/HC 836-I, 836-II). The recommendations of this
committee received a very lukewarm response from Government
(Observations in Response - ref Cm 5799)
How long ago?
Sometimes, false allegations concern abuse held to have occurred decades
ago. At other times the abuse is alleged to have continued into adulthood,
though there is no corroborative evidence. There is no fixed rule on the
length of delay indicative of false allegations even when sincerely made;
but sometimes, recent false allegations can be proven to be delusional
because of greater specificity concerning time and the availability of
an alibi.
Teenage false allegations may also be alleged to have continued up until
recently and may erupt quite suddenly.
Complex, organised and institutional cases
Sometimes cases are built up over a period of time on the basis of a
suspicion of a large number of abusers who may be members of the same
family or linked in some other way.
In particular there has been a massive growth in retrospective allegations
of abuse in children's homes and residential schools. Such cases can quickly
overwhelm all those involved in the defence despite the innocence of those
charged.
See also:
Brandon report
JET report
Solicitors and Barristers
For a BFMS legal information pack please contact us.
We can give information on
- Timeline* methods to challenge allegations
- Researching and identifying 'recovered memory' and other unreliable
evidence
- The legal status of 'recovered memory' evidence
- Retrospective uncorroborated allegations - 'delayed complaints'
- Abuse of process applications
- The choice and use of expert witnesses
- Legal precedent (UK and Commonwealth)
- Scientific updates
- Grounds for appeal and the Criminal Cases Review Commission
* Timeline is a method of reconstructing a relevant history of one's
life, from records, documents, letters, photos etc and for aiding and
marshalling memory so as to deal as far as may be possible with detailed
accusations, many years after the event.
Civil cases
Lawsuits against parents
Action against alleged abusers may only be taken in the civil courts
within six years of the alleged physical or sexual abuse or six years
of the age of majority (i.e. until 24). This is because the acts are assaults
and therefore actionable under the law of trespass to the person where
the strict limitation period prevails.
Different rules apply under negligence where there is judicial discretion
to waive the normal three years within which to sue. Negligence entails
a breach of a duty of care so that one parent might conceivably be sued
if it is alleged that s/he knew about the abuse and failed to protect
the child.
Usually negligence suits involving abuse are against institutions and
schools rather than parents or relatives, but exceptions do exist.
A 1998 consultation paper by the Law Commission recommended changes in the current law which will result in lawsuits similar to those in the USA on the basis of recovered memory or alleged delayed discovery of the effects. Many of the recommendations seem likely to be incorporated into changes to the Limitation Act 1980 following the Law Lords ruling in January 2008 in the case of A v Hoare. This case was one of six considered by the Court. (See A v Hoare – Opening the flood gates? in the BFMS Newsletter March 2008, Vol. 16, No. 1, page 21)
The BFMS is concerned by this development as it proposed to the Law Commission that a cause of action should exist in retrospective child abuse cases only where it is possible to objectively determine the existence of the alleged abuse i.e. there must be independent corroboration. In Hoare the House of Lords recognised that their decision might well lead to a great number of claims from victims seeking to disapply the three year limitation period. However, the inhibiting effect of sexual abuse upon a victim’s preparedness to bring proceedings will not automatically lead to a Court exercising a Section 33 discretion (discretionary extension) in his or her favour. It will be just one of the factors to be considered by a judge when exercising discretion and in the absence of cogent evidence or of a complaint made and recorded at the time or of a conviction for the abuse complained of, many cases may well be unable to proceed out of time.
Action against mental health professionals and
institutions for false memories/ allegations
Medical negligence connected with false or recovered memory may be subject
to claims made by former patients. In the USA since 1994 there have been
multi-million dollar settlements by psychiatrists and hospitals diagnosing
and treating Multiple Personality Disorder. (See the FMSF Website at www.fmsfonline.org)
Legal aid may be available in some cases. Conditional fee arrangements
are possible but would require high legal insurance premiums and may incur
extra court costs not covered.
Third party lawsuits against mental health professionals are commonly
thought to be impossible in the UK. However, this is a fluid area and
given the seriousness of the allegations and the foreseeable harm to the
accused the law may yet develop in this area echoing the Hungerford and
Jones (1998) ruling in the USA, (Supreme Court of New Hampshire).
BFMS is a small but national charity. We do not give
formal legal opinions or advice. Whilst every care is taken with regard
to information contained in the Society's correspondence, newsletter or
displayed on this web-site, we cannot accept liability arising from reliance
upon the same, howsoever arising.
This means that the Society does not operate a legal
help-line as such, nor do we provide legal advice. (We can assist solicitors with assessing the potential that a case shows indications of the presence of false memory.
The Society will, where possible, be pleased to provide
such professionals with extracts from our archive of relevant research.
Essentially, the Society can be most useful where a point
has already been identified in a case which falls within the ambit of
the Society's researches i.e. issues of memory, "False Memory",
"Recovered Memory", reliability of evidence based upon memory
and related issues. |