A Priori Bias
(1) A priori bias
. Consistent with
. Mass Child Abuse
. In Denial
(1.2) Child Protection Movement
(1.3) Satanic Ritual Abuse
(1.4) The Evidential Interviews
. Selectivity bias
. The evidential interviewing team
(1.5) Bias within Institutions
. (i) The Ministry of Justice
. (ii) The Christchurch City Council
. (iii) The Police
(1.6) Justice Williamson
(1.7) Bias evident within the Eichelbaum Report
. (i) Graham Davies’ contribution
. (ii) Louise Sas’s contribution
. (iii) Eichelbaum
(1) A priori bias
"positive court outcomes"
Dr Louise Sas in reference to convictions.
In an emotionally laden case such as this, the impartiality of those involved must be critical for a fair trial to take place. Impartiality does not necessarily imply taking time to decide. A tennis umpire is not considered partial because he calls "out" or "in" or "let" quickly. Impartiality includes the preparedness to alter one’s conclusion in the light of new evidence; a better analysis of the same evidence; or upon the revelation of a logical flaw in prior reasoning. We often start with some kind of expectation. A good umpire can still be fair, even though s/he believes before the match that a particular player will probably win. An a priori bias is a pre-existing assumption or attitude that can lead to making unfair decisions. In order to detect such bias I look for indicators of its modus operandi, such as not challenging unsubstantiated theories, not looking for alternative explanations, or selectively ignoring data.
Possible motivators toward bias are many, and deeply held political and religious beliefs are common sources of bias. Others motivators include the protection of very high self-esteem and the desire to avoid possible negative consequences to ones actions. This can also lead to a tendency to not admit to one’s own mistakes, which can also result in biased outcomes. A fear of any possible negative fallout from whistle blowing may also cause one to defend the errors of others, again resulting in biased behaviours. The possible reasons for, and sources of, the biases that have occurred in the course of the Civic Centre Case are many. I refer those who are interested in the socio-political conditions that may have contributed toward their occurrence to Hood’s book, A City Possessed.
I have identified a number of indicators of an a priori bias on the part of civil authorities, the investigation teams, Justice Williamson, Sas, Davies and Eichelbaum that all operated toward returning guilty verdicts. It is useful to first identify bias found within the terminology and slogans of the period.
Back to section contents
From the moment they arose and throughout the investigation and subsequent legal actions the allegations made by the children were referred to as "disclosures". On page 18 of her report, Sas recommends that children who make allegations of sexual abuse should be immediately told that
"they did the right thing to disclose [sic]"
The same term appears to have been in common use by the interviewers and Karen Zelas, who used the term frequently in my interviews with her.
Use of the term "disclosure" is a bias mechanism. It works by implying an acceptance of the truth of an allegation (termed disclosure), when in fact; all that has happened is that an allegation has been made. Once the truth of an allegation (through accepting it as a "disclosure") is thus accepted, logic dictates that the guilt of the alleged perpetuator is also immediately accepted. That is an a priori assumption that may not be supported by the evidence.
The term "disclosure" is of relatively recent usage in this context, and its increased use directly reflects the growth of specialist professional activity in the field of child abuse (see also section (1.2), on the child protection movement). It may be argued that the term has closer ties to political philosophy than clinical reality.
Back to section contents
Throughout the trail, the appeals and the ministerial inquiry the ambiguous term "consistent with abuse" has been used to describe certain behaviours exhibited by young children. This definition/description of a behaviour or set of behaviours is highly misleading. Its use ignores the fact that an observation said to be consistent with abuse may also be consistent with not being abused. Its use signals a lack of understanding of science at a very basic level.
Consistency is a logical property of statements that can only be true or false, it is not a function of scientific probability. To use the term "consistent" in a probability context is to commit what philosophers call a category mistake. This bias mechanism works by suggesting a causal link that is as yet unproven
Corballis (2003) has pointed out that such an implied argument is also an example of another logical fallacy known as affirming the consequent.
"If abuse causes nightmares, she [Dr Louise Sas] suggests, then a child who has nightmares has been abused. The absurdity of this is illustrated by the analogous argument: if someone is murdered, then that person is dead. A dead person, the argument goes must therefore have been murdered."
Whatever use these statements about behaviours consistent with abuse are put to does not change their inherent meaninglessness in these contexts. Lawyers and pseudo-scientists using the consistency bias mechanism are hiding a lack of real evidence. Good scientists, rather than discussing "consistencies," are more likely to provide probabilities, as in the case of DNA evidence. A good example of this bias occurs when the Crown expert witness Karen Zelas describes certain behavioural "symptoms" as "consistent with" being abused (by Ellis). This neatly averts attention from what the jury really needed to know, i.e. - are these "symptoms" likely to indicate abuse. Of course, it should always be remembered that they could easily indicate something else completely. The only concrete fact that can be drawn from Zelas’s testimony in this instance is that she provided the testimony in a biased manner, whether by intention or otherwise.
Back to section contents
"Mass Child Abuse"
The phrase, "mass child abuse allegations" can be seen as a substitute for the less credible, "satanic ritual abuse."(SRA) Most paedophiles seem to have multiple victims, so the term seems redundant. Multiple allegations may be a less emotive term, as the word mass can be inflationary. I have not noticed the term "mass child abuse allegations" being used by research scientists such as Dr Ceci, so I suspect that those using it may be thinking of SRA (see below, sections (1.2) and (1.3)) when they use the term. Later, I discuss how Eichelbaum and others have neglected to seriously consider that SRA allegations first emanated from adult sources rather than from the children.
Back to section contents
The widespread use of the term "in denial" to explain away the grounds that anybody may use to refute that abuse took place could amount to a misuse of the English language. It operates as an a priori bias mechanism in much the same manner as does the term ‘disclose’. The term indicates, on the part of the person (an observer) using it, a prior determination of the veracity of the statement/s made by a subject, who is termed to be "in denial" of the "true" state of affairs. It serves to trivialise rational argument. In addition, to deny guilt, or to deny that something happened, does not automatically indicate some underlying psychopathology. It is just as easy to lie through making positive assertions as it is through denial. Furthermore, if children lie through a "mechanism of denial", then they are most unreliable witnesses indeed.
Back to section contents
(1.2) Child Protection Movement
There are many workers involved in dealing with child sexual abuse. The level of funding and resources available to the field must be dependent upon the perceived extent of the problem, and presumably, the efficacy of those involved in dealing with it. At the time of the Ellis trial, there were busy teams of specialist interviewers at the Department of Social Welfare (in the Specialist Services Units at what is now CYF). The careers of therapists and counsellors (often Accident Compensation Corporation (ACC) funded) and the viability of specialist police teams are also dependent on the perception of the problem and of its solution.
In an environment where government funding is tight and aggressively competed for, there must be a temptation to inflate the extent of a problem and efficacy in dealing with it. Along with this possibility, a genuine desire to protect innocent children could in some cases lead to over-zealousness in prosecuting those accused of these offences. The following analysis looks at evidence for possible biases from such causes.
Clearly not all child sex abuse workers are likely to be over-zealous, and the mere existence of any bias within the field is not at all strong evidence that Ellis is innocent. However, serious commentary does indicate how these sorts of bias may have led directly to an unfair trial. Nor does an absence of bias in this regard prove that Ellis had a fair trial, even if it might then be more likely, as there are other possible sources of bias (public attitudes for example) that also need to be examined.
Hood (2001) describes at length the Child Protection Movement (CPM), which she appears to conclude is biased, due to its political agenda. On page 46, she describes how the work of Henry Kempe
"... set the pendulum of child protection swinging away from supporting needy families, and back towards policing them."
I gain the impression that she goes on to link expert witness Karen Zelas, and some of the interviewers in the Ellis case, with this movement. Under the entry for CPM in the index Hood has written "see Geddis, Kempe, Zelas." In the second part of chapter 2 (from p48), Hood describes the CPM in terms of feminism and religious conservatism uniting as a new, and perhaps surprising, alliance in the cause of combating child sexual abuse.
A similar analysis is found in Goodyear-Smith (1993). Here it is described as the "sexual abuse industry." On page 35, she lists the "faulty assumptions underpinning the field."
Newbold (2000 pp 84 – 88) iterates the same concerns.
Ross Francis writing in the NZ Law Journal (2003) defined the term sex abuse industry as
"a legitimate term that applies to psychologists and counsellors who profit from allegations of sexual abuse without verifying or corroborating such allegations. It also applies to so-called victims who unearth memories of sexual abuse for which there is little or no scientific basis."
He goes on to quote from Accident Compensation Corporation figures;
"…in 2002/03, the Accident Compensation Corporation had 4894 new sensitive claims and 7351 ongoing sensitive claims. Sensitive claims "are where the claimant suffered an injury as a result of being the victim of specific types of criminal behaviour...[t]hey relate mostly to sexual crimes...[c]onviction does not have to result" (ACC Injury Statistics 2003, para 13.1). The cost of sensitive claims in 2002/03 was $22.048 million or $1800 per claim. Interestingly, ACC states that conviction is unnecessary but that claims are the result of criminal behaviour. If there has been no conviction, how can ACC be sure that any criminal behaviour has occurred?"
The term ‘industry’ suggests that there exists widespread bad practice within a range of professions, including counselling (some paid by the Accident Compensation Commission (ACC)), special policing and social working teams, and expert witnesses. The term also implies that some of this work is unnecessary, as it is based on inflated claims about the extent and effects of the problem. Below I provide a summary of some of the basic errors, bias and bad science that have been alleged to exist within the Child Protection Movement/Sexual Abuse Industry. The interpretation is based upon the analyses Newbold, Hood and Goodyear-Smith.
Denial The CPM commonly contends
that abused children will not talk about the abuse, and will even initially
deny it, (usually it is supposed that the children have been kept quiet by
threats from the abuser), hence they support the coaxing of allegations from a
child "in a supportive environment." Ultimately, their
contentions can be summarised in the following manner: if the child (commonly a
child that has been identified as displaying 'symptoms', later to be termed
'indicators', of sexual abuse) is forthcoming and talks about abuse, then the
child has been abused; however, if the child denies being abused, then the
child is still deemed to have been abused but is considered to be in a state of
‘denial’. Such argument leaves little or no scope for alternative explanations
or for impartial investigation. Nor is it much help in trying to assess the
reliability of allegations. In the Ellis case even the child N/Zelda Cypress
who recanted was said by supporters of the convictions to be "in
denial." Surprisingly, in 1994 the Court of Appeal also gave strong
credence to this viewpoint.
“…we are by no means satisfied that she did lie at the interviews, although she may now genuinely think she did.”
She has never since wavered from her retraction.
The typical case representing classic recovered memory is that of a
mature woman "remembering" that she was abused as a child, usually
after therapy. This theory is based on the now discredited Freudian theory of
repressed memories. Even Freud himself later rejected this theory. The theory
contends that when a child has been abused the memory of the terrible event is
often suppressed, due to mental trauma or as a result of external threats.
However, the theory supposes that the memory can be later "recovered"
by skilful therapists or interviewers. I detect acceptance of the theory by
some key players operating in the Ellis case. I have no detailed information
regarding the backgrounds and previous work of therapists who were seeing the
children before, and during, the evidential interviews. Nevertheless the
interviews were conducted under the guidance of Dr Karen Zelas, and Zelas has
been linked with classic "recovered memory" cases.
It is justified to dismiss the repressed memory theory. Modern texts, such as Neath (1998) give it barely a mention (on page 4). Loftus’ 1993 study describes how repressed memories have not been verified as being true. For example, (p524) she states,
"... one therapist said, ‘if a woman said it happened, it happened’…(from a small study of 16 therapists) therapists believe their clients and often use symptomatology as evidence."
Loftus also points out that children do not in fact repress memories of dramatic and frightening events such as the murder of a parent (p533 –4). Furthermore, Auckland psychologist Dr Michael Corballis (1995) criticises the term "recovery" as it implies memories are stored in a perfect state. Instead, he points out, "All episodic memories are constructed of incomplete fragments, and convey the true past with varying degrees of verisimilitude." The term retrieval would be better than "recovery". He quotes Ron Fox (ex-president of the American Psychological Association) as saying the acceptance of this theory by some is
"a black eye for psychology that is likely to persist as a threat to the profession for some time."
There is no evidence that I have read to indicate that "recovered memories" are any more accurate than other memories. Probably quite the reverse is true. In fact, recent research from Harvard University (McNally 2003), casts much doubt on recovered memory theory. McNally concludes from his literature review and case reports that traumatic experiences are unforgettable, and rarely slip from awareness for very long. He finds the evidence for repressed memories of trauma, or even for repression at all, is surprisingly weak.
The fact that memories are not repressed does not mean that all memories must be accurate. Memory for real events is logically consistent with "memories" for events that did not happen. The problem is that we may not know how to distinguish the two.
dramatic case illustrating the ability of children to lie in sexual abuse cases
was examined by Donna Chisholm, "Lying with conviction" Sunday
Star Times 9 July 2000 (p. C3). In this case a boy deliberately lied (with
aforethought) when falsely accusing his own father of sexual abuse. The real
victim went to prison. Recent research in New Zealand by psychologist Jane
Rawls (1996) has confirmed the findings of overseas studies by Ceci and others that children
will make false accusations of sexual abuse (bad touching) with very little
When I interviewed expert witness for the prosecution, Karen Zelas, I found that she relied in part on the work of Gail Goodman. Goodman has claimed that children rarely lie about being abused. However, her claims (see Goodman et al 1990, for example) appear to be based on challengeable science. Goodman failed to include or allow for the motivation to lie, and in the words of Ceci and Bruck (1993) "tilted the odds towards finding truthfulness in pre-schoolers." The experimenter’s expectations need to be controlled for in these studies, because subtle cues - flagging expectations - can be transmitted to the subjects (i.e. they can motivate certain responses in the subject.). Marks (2000) makes this point in his detailed review of the poor science behind so-called parapsychology experiments in extra sensory perception. In chapter three Marks describes how even independent blind judges of data can still pick up clues about the experimenter’s expectations and produce erroneous results. In the Ellis case it was likely that children had heard that other children had already made allegations, the interviewers may have implied approval of the making of allegations and kept probing even when no allegations arose, suggesting to the children that the answer that "nothing happened" was wrong. In addition, when Goodman stated "fewer than 1% of children can be led to report false touching" she was admitting that some children can make false allegations. In the Civic childcare centre case, at least 127 children were officially interviewed, only six of whom provided evidence that was found to be reliable at trial. One or two of these children may well represent the one percent of children identified by Goodman.
True lies was the title of an article appearing in New Scientist 7 April 2001. The article reported that experimental psychologists had found that 30% of a group of children recalled "uncomfortable touching" episodes which had not in reality happened to them but had been mentioned to them in a story scenario. Their recall accuracy was even worse when they were asked questions that required a yes/no answer.
In Ceci and Bruck’s 1993 review, the authors say that court experts often make claims that are not in accord with the research they have reviewed. This includes the claim that children are incapable of lying or are not suggestible. They state that
"...experts rarely present a careful summary of the research because doing so would probably force them to attenuate their often strident claims…"
They conclude (p432) "Our review of the literature indicates that children can indeed be led to make false or inaccurate reports about very crucial, personally experienced central details."
It is important to state that I (and most other critics of the Ellis verdicts) do not claim that the complainant children were deliberately lying. The word "lie" implies an awareness of specific untruths, but it can also be argued that the term "lie" has a non-pejorative use, meaning the espousal of something untruthful: in that sense the children did lie. However awareness of lying - in the pejorative sense -may not always be present within the children, even when their testimony can be shown to be untrue. Therefore lying is not the word automatically used within this report in the context of the Ellis case.
o Children never talk about sex unless they have been abused It has been claimed (for example by Zelas) that if children display sexual knowledge "beyond their years" and/or talk explicitly about sexual acts they may be the victims of sexual abuse. If however, the display is treated as evidence or considered proof of sexual abuse, then alternative sources for the statements may not be explored. There is often little attempt to acknowledge other sources of a child’s knowledge of sex (e.g.: books about abuse read to children, parents’ questions, seeing parents making love, other children, television., adult magazine pictures, etc). Hood discusses a child from the Civic childcare centre talking about explicit sexual behaviour (p222). This "disclosure" did not result in charges, because it turned out that the child had observed her parents engaged in sexual activity. There may well be other cases in which no abuse has occurred, but the source of the statements is not so obvious.
Pseudo-science It does seem that
the claims of repressed memories, denial, and children never lying about sexual
abuse are not scientifically based. For example Corballis (1995) discusses Courage
to Heal by Ellen Bass and Laura Davis. The authors themselves acknowledge
that there is no scientific basis for the claims. On page 4, Corballis states:
"The harm caused by this extraordinary attitude has already been immense and it may get worse." And that the divide between clinical and scientific psychology is "now in danger of becoming a chasm."
The parallels with other pseudo-sciences are striking. "Parapsychologists" found that their studies on "psychic" abilities were rejected by mainstream scientific publications due to incorrect statistical analysis, flawed methodology, and in some cases plain dishonesty. Consequently they set up their own journals. Many of these journals eventually self-destructed. For example, Victoria University has copies of the Journal of Parapsychology for the years 1972 – 1978 only. The CPM has its own similar journals such as Child Abuse and Neglect, Journal of Child Sexual Abuse (in which John Read, director of clinical psychology at Auckland University, has published) and perhaps also to some extent Issues in Child Abuse which similarly lack the scientific rigour required to support some of the conclusions put forward. The CYF journal (NZ), Social Work Now" also seems remarkably uninformed by science.
may be a tendency to exaggerate the incidences of abuse in the USA. Finkelhor
reported in 1988 that child abuse was rampant in pre-school facilities.
However, his definition of "substantiated abuse" included cases that
had been rejected by police, prosecutors or the court, and then extrapolated
the data so as to include undetected abuse. He also found that respectable
professional childcare supervisors were not reporting it as frequently as were
parents. The parents of allegedly molested children were described as
emotionally unstable and marginally employed. Yet he failed to consider that
the parents might be less reliable than the trained professionals, and his
acceptance of parental reporting may have resulted in over estimating
occurrences of actual abuse (see Hood page 185, Goodyear-Smith p78). If his
description of the parents is generally true, strategists who wish to see
changes for the better in the arena of false sexual allegations should attend
to those people and their circumstances so as to help stop the tide of false
child sexual abuse allegations. The incidence of child sexual abuse is
difficult to measure in a valid and reliable and way. Authorities cannot yet
agree upon exactly constitutes sexual abuse. Some argue that it is not valid to
make the definition of abuse too wide, so as to include for example, unwanted
cuddles, but others have little problem casting the net so wide. Also, given
the unreliable nature of childhood memory, asking adults to recall incidents of
abuse that occurred during their early childhood may well yield unreliable
The true incident rates may not match the reported totals, actual rates could be higher or lower than reported. Questionnaires or surveys are often quoted in this regard, but they are inherently unreliable. If questionnaires are mailed out, then an unrepresentative group may reply.
The figure of one girl in four being sexually abused during childhood seems to be a frequent claim within the CPM. In the publicity for the 1988 telethon, psychologist Dr Hilary Haines (later Lapsley), was at the time deputy director of the Mental Health Foundation. She supplied this figure to the advertising agency, but was eventually forced to admit: "Of course they are only guessing with these figures, but in a sense it doesn't really matter. The main point is that they shock." (as quoted by Barbara Faithful, Herald 14 August 2003, and also Hood).
However, the debate over incidence rates has no direct bearing on the guilt or innocence of Peter Ellis. Even if there were a high incidence rate of paedophiles among childcare workers, this does not prove Ellis to be guilty; nor would a low rate prove him to be innocent. Nevertheless society's perception of the incidence rate does have great bearing on the manner in which case was handled, as it influenced the attitudes of those who conducted the investigation, the trial and even attitudes within the jury itself.
has catastrophic long-term effects The CPM appears to make a value judgement when
it is often inferred by those within it that sexual abuse is on a par with
murder or grievous bodily harm, and that sexual abuse results in severe and
lasting psychological damage to its victims. In terms of bodily harm this claim
is absurd, especially when sexual abuse is compared with even moderate, let
alone serious, physical assaults and murder. I discuss the weak evidence for
serious psychological harm in section 5.5 on the "symptoms" of abuse.
In any case, the claim that the effects of sexual abuse are very severe and
long lasting is scientifically testable. If true, the claims alleged by the CPM
could justify the large sums of money being spent on counselling and
compensation. The question ought to arise as to whether children are being
similarly compensated for the more commonly occurring physical harm. According
to the Land Transport Authority, adults cause around 45 child deaths each year
through bad driving. Ministry of Health’s figures for the 1998 –1999 financial
year indicate that road accidents were the biggest killer of children under 14
years (53 deaths) followed by drowning and choking (24). Suicides were next (12
deaths) followed by homicides (10). In the same period there were 6,500
hospital admissions due to accidental falls, 1250 for road accidents, and 947
for poisonings. (Figures available on the Ministry’s web site.). While many
children presumably make a full recovery from poisonings (most are non-fatal),
many of the physical injuries from burns and falls are obviously permanent. Goodyear-Smith, a research fellow
at Auckland University’s Faculty of Medicine and Health Sciences states
"Sexual abuse is only about 10% of all child maltreatment".
Rind et al (1998) found that belief in the evil effects of childhood sexual abuse (CSA) is widespread in America, but that:
"the basic beliefs about CSA in the general population are not supported by the evidence."
Kendall-Tackett, Williams and Finkelhor (1993) in a review of studies, found a third of victims had no symptoms of psychological disturbance. Of course, if a number of convicted abusers are in fact innocent, due to the problems outlined in this document, then that might help to account for this group. However, the authors also state that two thirds made a recovery after 18 months. The same cannot be said for permanent physical disablement as a result of physical assault that has no sexual component.
Whilst sexual abuse is certainly an abhorrent act, it is important not to confuse that moral abhorrence with the scientific evidence when regarding the psychological damage sexual abuse causes to its victims. It must be placed in perspective alongside many other forms of preventable harm to our children. In common with Goodyear-Smith (1999), I contend that the concept of absolute safety is unrealistic, and unachievable. Keeping children at home, as the forgoing illustrated, exposes them to very significant risks. Perhaps the misconception of absolute safety could be added to the preceding list. It could well be another factor driving the fervour of the sexual abuse field.
While most of the preceding
tenets appear unwarranted, the fact that someone possesses such beliefs does
not automatically discredit every statement that person makes. Extra caution
may be required in examining the evidence purporting to support the statements
made by such people. Some of the forgoing may also provide clues as to which
areas ought to be examined for indications of bias within the interviews. For
example, if an interviewer believes that a child never lies about sexual abuse,
that interviewer may be lax in checking out the source of such statements
(doing reality checks or source monitoring).
There may be an over-representation of radical feminists who are also lesbian, among child protection workers. Not all lesbians are of a radical - or what Hood calls a revolutionary rather than an evolutionary - orientation. Revolutionary lesbians may have or aspire to a "lesbian lifestyle" that excludes men as far as possible. Such views could be found in early Broadsheet issues. While the authors here make no claims on this, it may be something that merits research. There are at least seven New Zealand psychologists and social workers currently dealing with child sex abuse known to the authors to be lesbians. Most of these appear to have expressed views that may be of an extreme nature. Several psychologists and academics have expressed concern in private to the writers over this issue. This seems to indicate the presence of a notable level of concern that is generally only expressed clandestinely, between co-professionals. The concerns expressed include that radical lesbians, in positions of responsibility in the Executive, are acting in malign or unfair ways, towards males in particular, over matters that include sexual abuse allegations; however, this behaviour has nothing to do with lesbianism per se
In conclusion, there does seem to be a tendency for some of those working with sexually abused children to be unscientific and in some ways pseudo-scientific in their thinking about sexual abuse. During the 1980’s and 1990’s a number of pseudo-experts travelled the world holding workshops at conferences, and spreading much of the preceding misinformation. Social workers in particular seem to have been heavily influenced by their gravitas. Those organising such workshops for the professionals appear to have given little attention to the scientific credentials of these people. This represents part of a major systemic failure that seems to persist today.
Back to section contents
(1.3) Satanic Ritual Abuse
A belief in SRA clearly motivated many involved with the Civic childcare centre case. Many believed that SRA had occurred on a large scale with many perpetrators. This belief contributed toward many of the formal charges laid against both Ellis and his co-workers; toward the mountain of allegations that failed to make it to court; and ultimately toward Ellis’s convictions. The belief helps to explain why the women were charged. During Ellis’s trial this potential driving force seems to have been hidden from the jury. In my later section on the trial, I discuss the evidence for the ontogenesis and spread of SRA belief more fully.
Belief in such unsubstantiated theories clearly motivates the believer toward uncovering "evidence" of ritual abuse existence, and thus operates as a bias mechanism. It will suffice here to simply list some examples of its probable presence in some of the key players. There is good evidence that, in varying degrees, the following people sympathised with belief in SRA at the time of the Ellis trial:
o The investigating police detective, Colin Keenan Eade. For much of the course of the police investigation Eade was in sole charge. Hood (p27) describes her face-to-face interview with Eade. She found his conspiracy theories
"... chillingly reminiscent of the arguments and beliefs I had read about in demonology manuals…"
In 1997, TV3 journalist Melanie
Reid reported that Eade’s superiors were concerned about Eade’s mental
stability during the investigation.
Eade had shown signs of "an obsessional personality" (Hood p585) Later, the police announced an in house investigation into the behaviour of Eade (sexually propositioning the parents). Nothing significant, however seemed to emerge from this investigation. Detective Superintendent Millar declared Eade’s judgement had not been impaired, despite the fact that Eade was "at times not totally objective" (Hood P325)
When Civic staff were interviewed by Eade they were offered, and advised to read, the book Nursery Crimes by Finkelhor. The subject matter of this book included SRA activity within preschool settings.
After Eade left the police force, he decided to study sociology at Canterbury University. However, one lecturer, Arnold Parr, analysed some aspects of the Civic childcare centre case in one of the lectures. Eade then laid a complaint with the University against Parr. This is indicative of a bias, including an unwillingness to consider alternative points of view.
o The officer later in overall charge of the police case, Chief Inspector Brian Pearce claimed on the television current affairs show Holmes (TV One) June 1992 that the Civic childcare centre case was evidence society was reaping the fruits of mocking morals campaigner Patricia Bartlett, conservative politician John Banks and God (McLoughlin 1996).
o The leader of the Parents (mostly mothers) group, Sally Ruth (Ms Magnolia/D see section (5.1.i)) on contamination of the evidence by parents). Ruth can be described as having been a true believer in SRA. During the investigation, it would be difficult to imagine Ruth even attempting to hide her beliefs. On page 371, Hood states, "a checklist of ritual abuse symptoms was in circulation among Ms Magnolia’s supporters from the earliest days of the investigation"
o Parent Ms X/Dogwood, as with Ms Ruth this woman was highly active in regard to networking and the sharing of information between parents. At depositions Ms Dogwood demanded that USA SRA "expert" Pamela Hudson be brought to Christchurch as an expert witness. Her son’s allegations contained many elements, purportedly typical, of ritual abuse.
o Psychiatrist Karen Zelas, the expert witness for the prosecution and consultative supervisor of both interview and some therapy agencies involved in dealing with the children (See section (6.1)). Some of her distortions, discussed later in this report, appear to have SRA tenets as their source. Zelas’s insistence that certain behaviours could indicate sexual abuse had occurred, and her style of interrogation, in accepting no denials, suggests to me that she may have suspended scientific judgement, in a similar manner to the witch hunting approach used by SRA believers.
o The Social workers involved with the case. Hood discusses how Sue Sidey, a senior participant in the forensic child interviewing team involved in the case, attended a DSW review meeting in 1991 where the report on the meeting stated (Hood p251) "Some felt guidelines should acknowledge its [SRA] existence." In 1992, Social worker Jan Gillanders brought Pamela Hudson’s Ritual Child Abuse for the Civic childcare centre case library. (Hood p371). In June or July 1992, Social worker Genevieve (Gen) Crossen was recommending another SRA book, Breaking the Circle of Ritual Satanic Abuse by Daniel Ryder, to parents (Hood p371). Crossen, along with parent X/Dogwood, was a founding member of End Ritual Abuse Inc., founded in September 1994. The stated aims of the society included
"The purpose of this society is to educate the public on ritual abuse and to provide written, audio and visual information on the subject matter." "The aims are to gather information from overseas, write a quarterly newsletter, provide a resource library, act as a support group for those survivors and families who have been involved in ritual abuse, support those needing to go through the judicial system, to support overseas visitors to New Zealand on this topic, and to assist those wanting to attend conferences on the said subject"
o Rosemary Smart, in section (1.5 ii) I discuss how Rosemary Smart was influential in the decision to close the Civic Child Care Centre. After the trial Smart organised a seminar for Pamela Hudson at the Campbell Centre, Christchurch, in 1993. (Martin van Beynen, The Press 1993). Hudson was the author of Ritual Child Abuse (1991), and a self styled "ritual abuse expert", she believed in the widespread existence of Satanic Ritual Abuse.
o Dr Louise Sas, one of the experts Eichelbaum consulted for his inquiry, was director of the Child Witness Project at the London (Ontario) Family Court Clinic !987-1999. A publication promoted through the clinic's website defines Ritual Abuse as an "under-acknowledged" form of violence (The Final Report of the Canadian Panel on Violence Against Women, www.lfcc.on.ca/chanland )
While to many observers it may
at first seem bizarre to even want to believe in SRA, one parent (Ms X/Dogwood)
reported (Bander 1997) that there were some rewards – occasional social
evenings, clearly lots of attention, and possibly the thrill of being on to
something big. This observation simply proposes possible reasons, or motivation,
for those with strong SRA beliefs to continue in these beliefs, even in the
face of contrary evidence.
Back to section contents
(1.4) The Evidential Interviews
(i) Selectivity bias in interviewer challenges
Simply by reading all the excerpts of the interviews quoted in the Eichelbaum report, the reader can conclude that the interviewers were more likely to challenge the improbable allegations than the more credible ones. This mechanism is unfair and obviously biased. Sas, Davies and Eichelbaum failed by overlooking this and this failure may have been due to pre-existing attitudes on their part. The slogans of the time, "children never lie about abuse" and "believe the child" were indicative of an a priori approach that hindered the search for hard facts and circumvented careful examination of relevant scientific research.
(ii) The evidential interviewing team
Eichelbaum concludes (p4) that the interviewing was "of a good overall quality." He also states, that in regard to interviewer bias (p105)
"Neither the experts nor I saw evidence of bias [in the videotapes of the interviews]".
This observation presumably allowed Eichelbaum to conclude that the interviewers were impartial, a conclusion that may have resulted from the narrow terms of reference of the Inquiry. I note that, despite Eichelbaum’s claim, neither expert makes such an assertion. Both experts did identify many deficiencies in the conduct of interviews (see this report, sections (3),(5), (6)). The existence of underlying prior bias on the part of interviewers cannot be ruled out as being the cause of these poor practices, merely through examination of the videotaped record. Moreover, it is valid to argue that the poor practices were in themselves, bias mechanisms.
It can also be argued that four key players involved in the child interviewing team have shown evidence of holding many of the already identified attitudes that are associated with the CPM.
Some children involved in the Civic childcare centre case received therapy under the supervision of Karen Zelas before there were any convictions. That would tend to confirm a CPM bias; in carrying out remedial therapy it must be assumed that the therapists believed that abuse had taken place. In at least one case, therapy sessions preceded the completion of the child’s evidential interviews (Hood p343, Eichelbaum p9). Davies fails to address this point in his summary on contamination (p38). Sas also fails in this respect. Zelas must have surely been aware of the risk of contamination of evidence. Perhaps she believed that the effects of the abuse was extreme, and that therapy would be extremely beneficial. If, as seems likely, the therapy carried out was primarily counselling (talk therapy), then some research (eg: Ricks 2000) suggests that it may not have been very effective. It seems of dubious value to risk weakening the value of the children’s evidence by beginning therapy before they can give evidence through completing the evidential interviews and before any cross examination in court.
Hood (p550) refers to Zelas’s assertion that
"retractions were common, and did not mean that the original allegations were untrue."
This is indicative of a belief in the theory of denial.
During the Civic childcare centre investigation and trial, Zelas seems to have exhibited (at least publicly) an attitude that allegations by children, made in any circumstances, are in essence a proof of abuse. However in regard to the interviews with children X/Bart Dogwood and Z/Kari Lacebark, Zelas wrote to Detective Sgt. John Ell on 28 August 1992 and made the following statement. It is in direct contradiction to what was reported elsewhere by the parents. She stated that at the time of the interviews;
"... parents generally were not considering the involvement of other adults nor speculating about, nor questioning their children on what they believed to be characteristics of `ritual' abuse."
I find that this statement is extremely unlikely to be true (see Section (6) A Fair Trial?, and sub-sections on public hysteria and SRA theories). She continued,
"It is clear that [Z/Kari Lacebark’s] parents elicited disclosures of abuse by Peter Ellis by highly leading questioning. [X/Bart Dogwood’s] brother and parents did the same. In [Bart’s] case, the parents subjected him to intensive interrogation pertaining to `ritual' abuse between the three August interviews, which were on consecutive days. [Bart] would then disclose in the next interview with Sue Sidey the information elicited by his parents the previous night."
Zelas then looked for similarities between the two children’s (Z/Kari Lacebark and X/Bart Dogwood) stories, and included:
o travelling in `Peter's' car [Ellis had no car, and did not drive].
o reference to white clothes being worn [classic SRA behaviour but not fitting real paedophile profiles].
o Both children have mentioned other children being involved, but they do not refer to the same children. This needs to be determined, perhaps from Z/Kari Lacebark’s mother. [Children are not consistent on central detail].
o Both children named adults but the only consistency is their naming of Peter Ellis. Z/Kari Lacebark named: Joseph, Julie, Amie, James. X/Bart Dogwood named: Peter's Mother, Roger or Robert (a name possibly influenced by parental questioning), Andrew…Crèche staff…Spike `not his real name’ Boulderhead.
This correspondence reveals
that Zelas was aware of major flaws in the evidence, and yet she was still
prepared to persist in what appears to have been a precipitate fashion.
According to Lynley Hood (p387-388), this letter (along with Rosemary Smart’s
report for the City Council) was probably very influential in the closure of
the Civic Child Care Centre, which occurred immediately afterwards.
Thus there appears to be good evidence of bias in the work of Zelas. Eichelbaum does not discuss such evidence.
Sidey conducted most of the evidential child interviews used at the trial.. Council administrator Alistair Graham (Hood p334) described her in an audio taped interview in 1996. "She seemed very concerned with the travesty of abuse…she was emotional." Sas states in her concluding remarks (p58)
"There were a few situations where the interviewers appeared very anxious to obtain the information and used too many repeated probes."
Clear examples of Sidey’s over-zealousness appear in her interviews, she said to one child: "could you come back another day, and tell me the other things if we have a break now?" (Hood p293)
Sidey constantly continues probing when children say they can’t remember details or a whole incident. When interviewing R/Eli Laurel, Sidey found Eli could not remember an incident he had mentioned in a previous interview. She then said to Eli, (Hood p 347)
"Right, I think perhaps I could help you. I remember some things, and we talked about mean things to do with penises".
In early December 1991 Sidey stated (Hood p258):
"Peter Ellis is not a suitable person for a child centre."
This statement was made almost two months before there were any formal allegations of abuse and Sidey had not then even met Peter Ellis. I think the evidence for similarly biased attitudes by other significant evidential interviewers (see below) is also compelling.
At the time Sidey had limited experience and no formal qualifications in child psychology, having only had "on the job experience" to equip her as a child interviewer.
I personally interviewed child interviewer, Cathy Crawford after the Ellis case. I found her ignorance of many of the most basic concepts of psychology to be profound. (For example, she had no understanding of the relevant concepts of verbal reinforcers, negative reinforcement, etc, or of past and current research on children’s memories and interviewing). Crawford told me that she relied upon Zelas for information on how best to carry out interviews.
Cathy Crawford’s performance during the depositions hearing (Hood p437) is now notorious to observers and critics of the case. A videotaped interview was seriously presented in court in which a child is obviously telling a tall story. Crawford continually repeats the phrase, "it is beyond my expertise" (to interpret the story). Yet she also claims nebulously that as the wild and impossible story is "consistent in detail" it therefore is truthful, and reveals abuse. One child did make a clear strong allegation of abuse. Unfortunately, Crawford ignored it altogether (Hood p 466). The allegation involved an uncle and the alleged incident occurred outside the childcare centre. Crawford’s lack of training and judgement appears to be well established. None of her interviews were used at the trial. However, the effects of her suggestive techniques are likely to have transferred to other children. This was possible whenever the resultant unreliable allegations were repeated to children; either directly or via parents, other interviewers and therapists.
Morgan joined the interview team on 6 April 1992 (Hood p340). Morgan was the founder of the Incest Survivors Group. Morgan is author of Katie’s Yucky Problem (1985) which describes "bad touching" for pre-schoolers. Morgan congratulated the staff in Ward 24 at a conference in 1982 (Hood p128). Ward 24 staff appear to have made a number of major errors. The reader is referred to Hood (p151-153) for an analysis of Justice Kean’s 1988 judgement, and a description of the investigation by the Frontline television programme. Both events highlighted deficiencies in the Ward 24 child abuse investigations. Karen Zelas’s name also appears in these disturbing reports.
Back to section contents
(1.5) Bias within Institutions
(i) The Ministry of Justice
Lynley Hood must have been the first to reveal that an official from within the Ministry of Justice phoned the psychologist originally appointed by the defence team. The psychologist was told, (Hood p367).
" Peter Ellis was guilty as hell…there were unspoken implications…that I would be compromising my ability to receive ongoing referrals and appointments and assignments from Government Departments and reputable referrers in town – that I would be committing professional suicide [if he acted for the defence]".
The psychologist told Hood he was "scared shitless." He also claims that at the time attempts were being made (he did not say by whom) to suppress research findings regarding the unreliability of child witnesses.
I spoke further to this psychologist, who expanded a little:
"Putting aside the fact that the official was caught up in the hysteria of the times, the official did me a favour by alerting me to what turned out to be perilous waters for all professionals (including Peter's solicitor) involved.
The case turned out to be a graveyard for people's reputations".
This information, if correct, reveals a successful attempt to influence, perhaps illegally, the course of justice, and reveals how widespread the bias was at the time. This issue is not mentioned in the Eichelbaum report.
Back to section contents
(ii) The Christchurch City Council
By precipitously closing the Civic Child Care Centre on extremely questionable grounds, the Christchurch City Council played a role in generating prejudice against Ellis and the women coworkers. It is not unreasonable to contend that this event affected the jury also. Non-specific and unsubstantiated rumours are also not proper grounds upon which to either suspend or dismiss Ellis, when acting as a fair employer. The City Council commissioned a report on the operation of the Civic childcare centre, completed in August 1992. It contains much of the CPM and SRA rhetoric that is discussed earlier in this report. The report ventured into the subject areas of paedophile profiles and ‘symptoms’ of abuse. Rosemary Francis Smart, the author of this document, had already publicly professed a disdain for science, and certainly failed to consult the relevant scientific journals in the writing of the report. Smart does not appear to have any academic qualifications in psychology; her training included an MA in Social Work and Education. This suggests that the processes of how sexual abusers are properly identified and of how to carry out an impartial evaluation of the scientific literature about the signs of abuse in children were well beyond Smart’s expertise. Furthermore, when she focused upon the identification of child abusers and upon identifying signs of sexual abuse in children she may have gone beyond her brief, which was to look at how the Christchurch Civic Child Care Centre operated. Although it was almost a year before Ellis’s trial, it is apparent that Smart had already presumed him to be guilty of child sexual abuse.
The Smart report continually quoted research by Finkelhor sent to her by Beth Wood (then with office of the Commissioner for Children), (see section (1.2) Abuse is rampant?), but little else of scientific substance
"...[pre-school child sexual] abusers are not like paedophiles …5.5 per 10,000 children in day-care centres in America are sexually abused… two thirds of abuse in pre-schools takes place in toilets…"
Smart, again quoting Finkelhor, claimed that behavioural signs of abusers included:
"...emotional problems, substance abuse, criminal behaviour, sexual difficulties, poor judgement, and punitiveness and insensitivity towards children." Smart then went on to list the "warning signs of [sexual] abuse" in children: "genital irritation and discomfort, unusual sexual knowledge, fearfulness related to the centre, and other symptoms mentioned in ‘feeling safe’ [apparently based on a series of videos made by Ruth Corrin of the Child Alert Trust]."
I approached Council manager John Gray for a copy of the Smart report, and I was discouraged from seeing it and told I would have to pay for a copy, which I refused to do. Eventually, I was allowed to go in and read a copy at the council offices. When I later requested an opportunity to discuss my concerns regarding the report with Gray, I was refused, and Gray told me "We know best". The City Council may not have paid much attention to the issues of scientific accuracy and impartial reliability in their consideration of, and reaction to, the report. However this report was influential in the police decision to investigate allegations against the women crèche workers.
Rosemary Smart later organised a seminar for Pamela Hudson at the Campbell Centre, Christchurch, in 1993. (Martin van Beynen, The Press 1993). Hudson was the author of Ritual Child Abuse (1991), and a self styled "ritual abuse expert", she believed in the widespread existence of Satanic Ritual Abuse. This is strongly indicative that Smart was sympathetic toward SRA dogmas.
Back to section contents
(iii) The Police
The Great Christchurch Child Pornography Ring
Chief Social worker Mike Doolan said of Detective John Ell who was involved in the case: "I thought that there was a degree of heightened excitement that wasn’t altogether comforting." (Hood p339). Detective Ell suffered a "physical and emotional collapse" on 4 September 1992, and left the Civic childcare centre investigation. That was the day before the closure of the childcare centre, and a month before the arrest of the women. Ell had also been involved with the earlier and unsuccessful investigation into the "great paedophile ring". This had significant bearing on the conduct of the police investigation.
Hood states (p275) that an earlier failure of police to find any evidence for such a ring still rankled with them at the time of the Ellis inquiry. There is evidence in Hood’s book, and elsewhere (Newbold 2000), that the police felt that, during the Civic childcare centre inquiry, they were at last on to something significant in this regard. The following description of police treatment of one Civic childcare centre worker aptly illustrates how this perception influenced the inquiry.
The Treatment of Sharleen
Civic childcare centre worker Sharleen (Hood’s pseudonym p423) was repeatedly interrogated by police, and amongst the many bizarre things the police suggested to her, were that she knew of tunnels under the childcare centre, cages to imprison children and that Ellis was involving children in a pornography ring. The police even felt it appropriate to give her a book to read on satanic cults (Nursery Crimes Finkelhor).
A consideration of other allegations is very instructive, and highly relevant. Ellis (who professes homosexual preferences) was alleged to have, and was charged with, having sexual intercourse with co-worker Debbie Gillespie (who had lesbian preferences over that period). This was said to have occurred at the childcare centre, and in view of the children. This charge alone, reveals much in regard to the credulity of the police, child interviewers and the prosecuting lawyers involved. The event is highly unlikely to have occurred. It would appear that they had misconceptions in regard to sexual orientation and behaviour and that somehow confounded their grip on reality. The charge did not arise from an allegation by a child but rather from an interviewer’s interpretation of the child’s play with dolls. The charge did not proceed to trial. In addition to raising question as to the judgement of the police this raises the question of how far are the Police are entitled to proceed on flimsy evidence.
According to Hood (p424) Detectives Jenkins and McAuley had problems with homosexuality and lesbianism. Hood surmises they held the moral tenet that homosexuals were very likely to be sexual perverts and to be committing sex crimes. It is relevant to this argument that until recently before the Ellis case the police had sought the prosecution of homosexuals, according to previous law. Consensual homosexual acts between adults are no longer a crime, but held-over attitudes by some on the police force can constitute a bias mechanism. This bias mechanism is what Hood alludes to.
Police lack of objectivity
Hood (p422) describes how the police investigation room contained pictures from Civic childcare centre children with negative captions concerning Ellis.
On page 330, Hood describes how the police removed an iron last (cobbler’s anvil) that had served as a perch in a birdcage from Ellis’s residence. They labelled it "phallus symbol/object."
Interviewer Sue Sidey became so concerned that contamination by parents was rendering one child’s evidence unreliable that she declined to undertake further interviews of the child (X/Bart Dogwood). The police then instructed her to continue with further interviews of the child against her (initial) professional judgement (Bander 1997).
When in early October 1992 police applied for a warrant to search the homes of five of Ellis’s co-workers they chose not follow usual procedure, which was to apply to either a District Court Judge or Court Registrar, both situated 500m from the central police station. Rather detective Kenneth John Legat had it signed by a retired Justice of the Peace in a suburb well removed from the station. One of the grounds for searching the home of one of these women was:
“3. Once the investigation into Peter Ellis became public knowledge, [she] has continued to maintain contact with him and was observed visiting him eight weeks into the investigation when it was known that he was facing serious sexual abuse [sic].
and in reference to another worker:
“2. She has been described by a number of witnesses as being very close to Ellis.
Amongst further false and baseless claims included by Ken Legat in the grounds of the application were that one co-worker had announced that she was going to marry Ellis and that the ex-husband of another of the women was a homosexual who was ‘involved’ with Ellis. Besides mere guilt by association the latter underscores the aforementioned police attitude toward homosexual males.
The excessive delay in
interviewing Ellis, and then not adequately allowing him to give his
explanation of events is confirmation that the police were very one sided in
their work. From the police perspective, there were two possible crimes: Ellis
may have committed abuse, or the parents (and children) could have been laying
false complaints. The police failed to attempt to protect Ellis from this
possibility. He had equal right to such protection.
Recently Police have successfully prosecuted a number of false allegations of rape and sexual abuse. One such case was that of Simone Doublett, who in 1991 aged 17 told Christchurch Psychologist Lynne Haye that she had been sexually abused in a SRA scenario which included ritualistic chanting and babies being killed.. She alleged the perpetrators included her own father. She subsequently received $10,000 from ACC. Later, whilst a student at the University of Canterbury’s psychology she recanted. The effect of sexual allegations on a man’s life and career are obviously severe. Had Dr Haye convinced Simone that her father was a perpetrator, the effect of sexual allegations on a man’s life and career would have been obviously severe.
The border between reasonable suspicion and outright bias may at times be blurred, but the fact that the police were biased and frequently closed-minded in their investigation of Peter Ellis is well established.
Back to section contents
(1.6) Justice Williamson
Many of his rulings and the manner in which Justice Williamson conducted the trial exhibited much that can only be adequately explained by concluding that his actions had prior bias as root cause. This is more fully discussed in section (6).
Back to section contents
(1.7) Bias evident within the Eichelbaum Report
(i) Graham Davies’ contribution
On page 15 of his report Davies claims that:
"This strategy [of asking leading questions] could have been justified if it produced new convincing detail…"
This statement endorses the use of leading questions, however it is interpreted. Again, on page 25, he admits that the interviewer’s prompts are a departure from best practice, but goes on to say that this "could, however be justified on this occasion, by the information elicited." This approach is surely unfair to the accused as it suggests a search for convincing allegations rather than for the truth, such an approach is commonly referred to as a ‘fishing expedition’.
Davies also tends to try to justify the interviewers’ use of poor techniques. He quotes research that indicates the interviews were unacceptably long, states the delays of six months and over between interviews was far too long, and the frequent use of direct, closed and multiple choice questions was "of concern." Yet he then excuses these failings by stating,
"one can sympathise with the interviewers."
He never seems to seriously consider that these proven distortions to sound practices are unfair to the accused, toward whom no sympathy is proffered.
On page 37, he admits that usually in law, bizarre implausible and improbable allegations (as were made by these children) decrease the credibility of a witness. He then quotes "some pilot studies" as suggesting bizarre allegations may exist alongside true allegations. In the pilot study from which he quoted, there exists a major methodological flaw. It did not compare allegations from the corroborated cases with cases where innocence was established. Pilot studies are simply not good enough for dismissing a cause for reasonable doubt. The pilot study is also illogical in its analysis. Impossible allegations are a category of untruth. Where such untruths exist in a finite narrative, then there is logically less space remaining for the truth. Children who make wild allegations cannot be assumed to be good witnesses simply for that reason.
On page 15 Davies fails to recognise the presence of what look like rehearsed statements by the children: The child (Q/Lara Palm) says:
" [Peter is] a very mean man who wants children to feel all scared."
That appears unlikely to be the spontaneous statement of a six year old. Although Davies notes some examples of rehearsed statements, he misses this one and others (see this report section (5.1.i)). He therefore appears to underestimate the extent of the problem.
There is no mention by Davies (see his references, on pages 40 – 42) of the highly relevant and important research by Elizabeth Loftus and associates on children’s memory. However, he does quote some of Ceci and Lindsay’s important work on interviewing children.
Davies reaches a most peculiar conclusion when discussing the evidence of child Z/Kari Lacebark. Despite his statements that this child’s evidence was heavily contaminated by discussions with her mother, he goes on to state (p30) "Given existing research on coaching [sic] it is hard to see how such an account could have arisen from this source alone." Later in this report I discuss some important and pertinent research, under the heading "Scientific Analysis of the Testimony" that examines how this phenomenon can occur. One such finding is that "coaching" is not at all necessary to produce false allegations (or false statements) in young children.
In any event "coaching" is an emotionally laden term and it is not used in any of the serious research that I have read. Its use implies that the parents were attempting, at best, to produce a convincing story from their children or, at worst, to rehearse lies. I have no evidence to confirm that this was their conscious intention. Nor do most other critics of the Ellis verdicts believe this to be the case. In Davies’ references I could find no articles that discussed in depth the extensive research on the construction of false memories in children.
Back to section contents
(ii) Louise Sas’s contribution
In early January 2001, shortly before Eichelbaum’s report was completed, former nanny Vilma Climaco had her name finally cleared, in the Canadian Courts, of charges of sexual abuse of children in her care. Dr Louise Sas played a prominent role in assessing the complainant children’s allegations on behalf of the prosecution, as she had done in numerous previous cases, and always on behalf of the prosecution. Before considering Sas’s contribution to Eichelbaum’s report it is apposite to consider aspects of this case for reason that its timing was almost contemporaneous with Sas’s work for the Eichelbaum inquiry, and for the adverse criticism Sas drew for her role in the case. The following is drawn from an article by Margaret Wente, The Globe and Mail [Toronto], Saturday, January 20, 2001.
"...There were no witnesses,
and the kids' tapes [evidential interviews] were
shaky. But there was an expert -- Dr. Louise Sas, a child psychologist who has
testified for the prosecution in numerous abuse cases. Dr. Sas found the
evidence against Ms. Climaco quite damning.
In a report prepared for the Crown, she had this to say about the incident in the restaurant:
"The way in which the first disclosure came about initially is of significance. It is what can best be described as an unsolicited accidental delayed disclosure, triggered by a conversation which brought to mind the specific incidents of sexual abuse.
"In this case, the discussion of food and appetite by their mother at a restaurant brought on the disclosure of oral sex with the babysitter, whom the boys reported had withheld food from them. According to the evidence, the boys had already been describing sexual acts in the car which they would do to each other, and the tone of the conversation in the car was overtly sexualized.
"This in and of itself is highly irregular, and this type of discussion suggests that they had been eroticized and introduced to that type of behaviour."
The inconsistencies, the nonsense language, the many months that had passed since Ms. Climaco had left before the kids spoke out -- to Dr. Sas, it all fit together.
"The disclosures were delayed, which is consistent with the abuser being known to the child. . . . There may well have been intimidation as well (the eye injury) and a grooming process (such as using the term 'toy' for vibrator or 'sandbox' for vaginal area, or involving a hose as part of a sexual game) which made it difficult for the children to explain what happened."
Tim Moore, a psychology professor at York University in Toronto, is also an expert on children's testimony. He was scheduled to appear for the defence. I asked him about the complications of children's testimony, especially children so young.
"Children are inclined to be co-operative and compliant," he says. "The problem is that with the right ingredients of social pressure, suggestiveness, repetition and unintentional reinforcement, children may say what they think is expected of them."
I asked if frequent talk about genitalia is abnormal for four-year-olds.
"There's a natural fascination with body functions at that age," he says. "Scatalogical terminology is hysterically funny. Kids can amuse themselves endlessly with body-part references."
Cindy Wasser, Ms. Climaco's lawyer, says: "Dr. Sas can interpret every fact and every behaviour as evidence of abuse."
[Vilma Climaco’s resultant (first) trial was declared a mistrial due to the prosecution producing a new "surprise" witness. A new trial was then scheduled].
.......the new witness was interviewed three times on videotape. His stories were contradictory, and in the third interview he declared that he had been lying all along.
Once again, the Crown called on Dr. Sas to give her expert opinion of the tapes. Her verdict? All the testimony again pointed to Ms. Climaco's guilt.
"There are strong indices of reliability in his allegations about sexual victimization," she wrote. "His retractions and then reaffirmation of the veracity of the information he was providing was a clear example of his difficulty sharing the information."
In other words, all the boy's contradictions, as well as his assertion that he had been lying, were really signs that he had been telling the truth.
On Jan. 2, Ms. Climaco's second trial began before Mr. Justice Paul Rivard. It, too, was very short. Before a jury could be summoned, the judge assessed the evidence and the circumstances surrounding the case. He viewed the tapes and decided they were completely unreliable. So he threw the case out.
Vilma Climaco was free to go.
You could say the justice system worked. After all, a judge was wise and an innocent person did not go to jail. Ms. Climaco's defence was excellent and was funded by legal aid. Still, the price she paid is almost unbearably high.
"She's been completely vindicated," Ms. Wasser says. "But it's a bittersweet win."
Today, the former nanny works part-time in a Wal-Mart. She is $17,000 in debt for student loans [accrued in an attempt to re-train for an alternative career]. She can see her son Jonathan now, but he is in California, and she is broke."
In the case of
Sas’s contribution to Eichelbaum’s inquiry the a priori bias seems more
widespread than in the Davies report. She begins with some dramatic overseas
cases of "Multi victim multi offender " abuse, with special reference
to the "porn ring" in the Project Guardian case in Canada. I
interpret this as indicating a belief on her part in SRA. There is little
reference to any hard evidence to back some of the claims she makes in regard
to these cases. According to Hood (pp 608, 609), the Canadian case did not
reveal what Sas claimed it did, as there was no MVMO "porn ring"
Other observers have said that the men alleged to be involved, some of whom
were teenage male prostitutes, were not working together and that any offences
committed were consensual. Sas also appears unable to distinguish consenting
adult male homosexuality from male-to-male paedophilia, the latter involving
pre-pubescent boys with older men. Eichelbaum was thus being misinformed by Sas
right from the beginning of her report.
In her brief discussion of the "Kelly Michaels" case, where all convictions were overturned, Sas fails to point out the obvious similarities with the Ellis case (p6). Such similarities include, amongst other factors, communication between parents of what other children had said, allegations of planting objects in penises and bottoms, etc and the demonisation of the accused.
Police prepared a handout headed “What to do if a child tells of his or her abuse.” for the Knox Hall meeting of parents. It was based upon a leaflet prepared earlier by Feeling Safe director Ruth Corrin, in which the title read originally “when” rather than “if” a child tells. This handout was severely criticised by Sas (pp 16 & 17) as failing to list behaviours “not associated with abuse” and for its bias. In discussing contamination, Sas also states (p8) “steps must be taken right at the beginning to contain the hysteria [sic] and amateur sleuthing...people will go to great lengths to uncover the ‘truth.’ ” Yet she fails to follow through with an analysis of the results that these histrionics may have caused in the Ellis case interviews.
On page 10 of her report, Sas states that a "lack of spontaneous disclosures is consistent with the dynamics of secrecy…" This identifies an important problem and the manner in which it was handled is the crux of much of the argument in the Ellis matter. An absence of spontaneous allegations may (or may not) be due to the children having been threatened or sworn to secrecy. Because abusers will undoubtedly try hard to avoid getting caught, there is a temptation to interview children at length and to use leading questions, etc., Unfortunately this approach can easily render the evidence totally unreliable and may result in miscarriages of justice. Sas fails to seriously consider the more straightforward alternative, that a lack of spontaneous allegations could, (and perhaps more commonly), indicate that no abuse had occurred.
Sas uses the term ‘disclosure’ in place of allegation throughout. She uses the term in a manner that regards every allegation as a disclosure of truth (p4). On page 24, Sas states her support for asking some leading questions in evidential interviews. She also suggests that parents should be given a handout, recommending the use of leading questions, in instances where earlier attempts have failed to result in any "disclosure" (p18).
Further examples of Sas’s use of language that betray underlying bias (my emphasis):
o Page 28, regarding an interviewer’s failure to follow best practice "... I felt the child’s rapport with the interview [sic] was compromised by the interviewer's need to get a disclosure." Sas is not criticising the interviewer’s "need to get a disclosure" but is arguing that such a "need", on the part of the interviewer, is reasonable reason to mitigate the occurrence of poor rapport in the interview. The interviewer should not be motivated toward obtaining "disclosures", rather the interviewer should be conducting an impartial investigation into the possibility that an offence had been committed. Sas appears to condone the interviews becoming ‘fishing expeditions’ for allegations, this is contrary to widely accepted best practice guidelines.
o Page 39, regarding a flawed interview "The saving grace was that the child had previously given these disclosures in the first interview..." Here Sas betrays herself by revealing what she does and does not regard as positive outcomes (also see page 33 below).
o Page 44, regarding a flawed interview that was not used in court " This was understandable but was unfortunate [that it wasn't used in court] as the child made clear disclosures". Again Sas betrays bias toward certain favoured outcomes and she also attempts to excuse poor practice. An impartial commentator would simply state "this was an appropriate outcome given the flawed interview practises" and allow for the possibility that the poor practices had contributed to the production of unsafe testimony.
o Sas reveals bias when she refers to accused persons as "offenders", even in situations that are prior to both investigation and conviction.
"From the moment an allegation of child sexual abuse first surfaces ...the natural tendency on the part of parents and professionals [is] to look for signs of abuse in children who have been exposed to the offender, ...." (p7).
"The problem of course is when an offender is dismissed from a facility pending an investigation ..." (p8).
In sexual abuse cases defence
teams often argue that allegations from children are unreliable due to
interaction with external sources of influence (contamination). This is a
perfectly reasonable contention that may or may not be supported by the
evidence. To Sas however such a proposition is not afforded the dignity of
being considered an argument, but rather,
"A common defense accusation is that complainant families through [sharing of information] can create false disclosures in their children". (p4)
The more emotive term accusation exposes an adversarial attitude on Sas’s part. It suggests that she regards it as her role to counter such arguments rather than simply to examine or evaluate them.
On page 47, Sas states that nightmares were "consistent with having been sexually traumatised." It should be appreciated that so is a myriad of other benign activities. Presumably, she means that this (nightmares) is a weak part in a strand of evidence, and that the strands all add up as a web of circumstantial evidence. However, a fair evaluation would consider other possible causes. Nightmares are fairly common, an external cause cannot always be found, and they certainly do not prove abuse has occurred. Again, the term "consistent with" seems to indicate a less than open way of influencing opinion without having to provide any solid evidence. The logical absurdity of the term has been previously exposed in section ((1).i ), in reference to the affirmation of the consequent.
Page 50 of Sas’s report reveals more in regard to a priori bias on her part. She states that child X/Bart Dogwood was "not helpful" when he refused to "disclose", and had responded that "there were no other things, anyway." Significantly, she states that rapport was "mediocre" in this case. Rapport, whilst no doubt useful in obtaining a sense of trust, could also be seen as an indicator of control over the child through reinforcers, both verbal and non-verbal. (A ‘reinforcer’ is a response such as a smile, or an affirmation such as saying yes, that will strengthen preceding behaviours).
Sas seems to invent some of her theory as she goes along; in order to make the facts fit (her) foregone conclusions. For example, on page 52, she states that one child (X/Bart Dogwood) showed little emotion because he was feeling emotional, that he repeated questions and changed the topic as a means of coping. This is possible; although I think unlikely and not a conclusion able to be drawn from proven research. The more parsimonious explanation would be that the events under discussion were not real and therefore had little emotional impact upon the child. This child, in the same manner, also related how Ellis drove a car (Ellis did not drive), that Ellis stuck a burning piece of paper up his anus, that Ellis’s mother was present (very unlikely, surely), and that other women, "Spike" and "Boulderhead" were there (no such people were ever identified) etc. Even Sas finds this all "pretty incredible." This child was nevertheless, and in contrast (but never explained by Sas), capable of the more usual "emotive responses" of screaming, crying and vomiting at the time of his mother’s interrogation (p55, Sas).
Sas admits that child X/Bart Dogwood’s evidence is contentious (p56). Her explanation ("one theory I have") of the unlikely allegations from this child, invokes the highly controversial post-traumatic stress reaction theory. If this were the case, none of the evidence can be reliable, and there is also no proof that Ellis was the source of the trauma. Furthermore, once the SRA allegations are removed, what remains may not be, from a child’s point of view, very traumatic sources for allegations. Another seemingly non-rigorous and unprofessional statement begins (p8): "it is common knowledge that."
On page 6 Sas briefly describes the Kelly Michaels and the McMartin cases (USA). In both cases the accused were ultimately exonerated by reason of contamination of children’s evidence, including the use of seriously flawed forensic interviews. Sas then reveals that she regards the purpose of trials as being to find "offenders" guilty, rather than to ascertain the likelihood of any allegations being true.
"The two Canadian MVMO [multi-victim multi-offender] cases in Ontario, were much more successful in their sexual abuse prosecutions [than in the McMartin case]. ...in the first [Canadian] case, the positive court outcomes were also due to ..." (p7)
Use of the phrase "positive court outcomes" implies that Sas considers successful prosecutions to be positive and unsuccessful prosecutions to be negative. This is a clear and blatant bias and it lies at the very core of what Eichelbaum, with Sas’s assistance, was entrusted to evaluate.
Louise Sas seems to have spent her busy career not by carrying out research, but rather by pursuing alleged child abusers and by appearing in courts and taking workshops for professionals. She exhibits the mindset of a prosecutor, not of a scientist. Sas’s analyses are made less credible when it is observed that she seems to produce a theory for everything, as long as it leads toward a guilty verdict.
Theories that attempt to explain everything actually explain nothing. They are rather like panaceas.
Back to section contents
Eichelbaum (p27) notes that the report of the Cleveland Inquiry recommended that the term "disclosure interview" is undesirable and should be avoided. This term was repeatedly used by the Crown prosecutor during Ellis’s trial when describing the evidential interviews, but Eichelbaum does not raise any concern in his report as to the possible prejudicial effects such use may have had upon the jury. Eichelbaum makes no comment on any of the biased terminology identified earlier in this section.
The appointment of the two experts.
See also: NEW EVIDENCE IN THE PETER ELLIS CASE Ross Francis, New Zealand Law Journal; November, December 2007
Eichelbaum was correct in
appointing psychologists (rather than appointing psychiatrists, as were used in
the trial), but it seems inappropriate that Eichelbaum should appear to rely
primarily on legal opinion in choosing his appointments (p23). It should be
asked why was there no consultation with people with expertise in the field of
psychology, making use of academics in our universities. It is questionable as
to how legal people alone can be the best people to assess psychologists. Legal
experts may be of some use, for example in looking at the issue of impartiality
(but in regard to that issue, I fear, Eichelbaum was misdirected. As noted
elsewhere, Eichelbaum could have better ensured impartiality by consulting more
than the minimum number of two experts.)
In considering who would qualify as an expert, it might be appropriate to consider two analogies from the field of medicine. An inquiry into NZ’s cervical screening procedures recently did not call for the opinions of GPs. Instead, it heard from scientific researchers who had direct knowledge of the relevant scientific facts. Secondly, new drugs are tested and evaluated by research scientists before being used by GPs or hospital doctors. The clinicians might report back their concerns (eg side effects with certain people) and further tests can be done. The use of thalidomide for pregnant mothers resulted in deformed babies being born. Since, testing has been made more thorough. The hard data come from the researchers rather than clinicians. In the fields of psychology and psychiatry, this is also the case. It seems that in court, clinicians (whose role is to apply knowledge) may not, in general, be as reliable as research scientists.
In the Civic childcare centre case the validity of the prosecution’s case clearly relied on the scientific answers to two major questions. Firstly, were the children’s memories likely to be accurate long after the alleged events? Secondly, was the way they were spoken to prior to the evidential interviews (by parents, police, social workers, therapists and other children) likely to have influenced their later statements in the evidential interviews to the point where those statements could not be relied upon?
Elizabeth Loftus (1979) discusses various criteria for court experts, and the importance of the expert’s qualifications and experience. It is mooted in her book that experts should have an advanced degree in experimental psychology and should have carried out and published research in this area. To have someone significantly less qualified could, in my opinion, be worse than having no expert at all.
I have concluded, from my finding in the previous sections, that bias exists in the work of the two psychologists chosen by Eichelbaum. Both performed below par in their analyses. Eichelbaum, however, appears to have relied heavily upon their reports in order to reach many of his conclusions.
One obvious choice as an expert for Eichelbaum was Dr Stephen Ceci, who has conducted and published much research on interviewing children. His work focuses on factors that affect the reliability of children’s statements. Ceci was nominated, on behalf of Ellis by his legal counsel Ablett Kerr, but rejected by Eichelbaum, in part because he had "provided input for a television programme on the case"(p24). I do not regard this is as strong argument. Few experts in the field would have been totally ignorant of this high profile case and leading experts would almost inevitably have been asked for comment at some stage. Such an association should not exclude them.
Eichelbaum was in error if he thought that Ceci had expressed a final opinion on the case. As already discussed in regard to bias, even if Ceci had stated that he thought Ellis was innocent, that does not in any way indicate that he is biased, as he may be prepared to revise his opinion in the light of new evidence (eg access to all the videotapes of the child interviews).
The terms of reference instructed Eichelbaum to seek nominations as to appointment of experts from Mr Ellis, the Crown Law Office, families of the children and the Commissioner for Children. It appears Eichelbaum then opted to seek experts who had no previous connection with the case or with any of the parties, especially that of Mr Ellis (Eichelbaum, p23,24). This can operate as a bias mechanism against any party who had previously undertaken to legitimately approach, for opinion, the leading authorities on the issues. It can also operate toward selecting experts of inferior calibre, as those that lead in the field may be excluded. The questions should be raised; was the purpose of the nominations only a means of identifying certain experts in order to exclude them? or alternatively, was Eichelbaum deliberately ignoring the intent of the clause within the terms of reference?.
It is therefore no surprise
that Eichelbaum states (p23)
"The nominations caused some difficulty."
In the end we were left with the selections deemed appropriate by Eichelbaum, Legal Counsel within the Ministry of Justice and an anonymous "USA Law professor" with whom Eichelbaum had "a long discussion". Eichelbaum provides no detail or summary of the nature of the advice he received from either of these two sources in regard to this critical issue.
The unnamed professor referred to has since been identified as Thomas Lyon of Cornell University. Lyon wrote a review of the scientific literature on children’s memory and the effects of different interviewing techniques (Lyon 1999). In it, he admits several times that his views are out of line with those of his colleagues and mainstream psychology (for example see p5, in relation to the Kelly Michaels appeal, and his references to the American Psychological Association position statement). Lyon argues that forensic child interviews (such as the ones in this case) are generally free of suggestive questioning, and because they are usually not videotaped, we cannot claim that they may be deficient. Fortunately, the interviews in the civic case were recorded, and show otherwise. He also states that childcare cases where there are large numbers of children interviewed are atypical. That makes the Civic case atypical, too. Had Lyon seen the videotaped civic interviews, it may be likely that he would have described them as similar to the "highly coercive and suggestive questions documented in the Michaels case," (Lyon page 34).
Lyon quite openly elevates claims based upon subjective clinical experience in comparison to the objective results of scientific study. He then appears to reject some of the scientific results that do not accord with his view that children must be accurate when they make allegations of sexual abuse. He does, however, describe well the trade off between using interviewing techniques that provide more information, both true (that can lead to correct convictions) and false (false convictions); against those that provide less information, less false convictions, but also more false acquittals. Traditionally, the law has erred on the latter side by being cautious to convict. The change of emphasis in cases of child sexual abuse appears unjustified, especially in considering the effects of wrongful conviction. In our prisons, (see Newbold (2000, and also "The Big Huey" by the same author), paedophiles are commonly beaten by other inmates. Social attitudes commonly reported in the media suggest that many citizens hold the view that it is on a par with, or worse than murder.
However, as with the Eichelbaum report, it is easy to see that the majority of material in Lyon’s paper points clearly away from his conclusions; towards the need for greater caution in accepting uncertain uncorroborated evidence from young children. On page 40, he states
"My position is not that the new wave’s research is irrelevant to decision makers assessing the reliability of children’s claims of abuse, but that its relevance is tempered by the realities of sexual abuse and abuse investigations and by the fact that no science is value-free."
His description of recent (especially post 1985) studies in memory as a "new wave" is very odd, considering that these kinds of memory studies go back at least 100 years (see Neath 1998). Lyon also states (in regard to researchers such as Stephen Ceci, Elizabeth Loftus and Maggie Bruck,
"Not only does the new wave conduct research with scientific rigor, but it also admirably discusses its research and its implications in an even-handed tone."
Not withstanding Lyon’s own inconsistencies, had Eichelbaum placed weight upon Thomas Lyon’s advice then clearly Lyon’s biases would have strongly prejudiced against the acceptance of any of the experts submitted by counsel for Ellis.
In regard to Eichelbaum's stated desire to avoid using experts already acquainted with the case it has been revealed (Hood p608 ) that Louise Sas had opportunity to hear highly partisan opinion on the case well before her appointment by Eichelbaum. Until 2001 Wendy Ball has acted as spokesperson for some complainant parents after the trial Ball held position as a law lecturer at the University of Waikato before her appointment, announced by Margaret Wilson, to the Parole Board. Ball has been an outspoken supporter of Ellis's convictions and she was also a friend of Sally Ruth (Hood p219), the parent who has been described by Ablett Kerr QC as being at the very
"heart of the spider's web of networking [between parents] and spreading cross contamination [of evidence]".
Ball had opportunity to meet and acquaint Louise Sas with details and her evaluation of aspects of the case when both were speakers in a workshop that included the subject of multi-victim, multi-offender child abuse with emphasis on cases within the past decade (Second International Conference on Children Exposed to Family Violence, held in London (Ontario) in 1997). Ball has indicated that the topic and nature of her input was (private correspondence 2004)
"evidential aspects of 1989 Evidence Amendment Act pertaining to child witnesses/victims of sexual offence" and that "the Christchurch Civic Creche case was covered in this presentation".
Wendy Ball went on to claim that the presentation was on “the way video/CTV recording worked in such cases”. Her claim is misleading, examination of the paper Ball presented reveal that the focus was far broader (link to paper, PDF 630KB). Moreover, the Ellis case was extensively and exclusively cited as a triumph of the 1989 legislative changes. Throughout Ball made clear her opinion that Ellis was a “disgusting paedophile” and that families of the complainants continued to suffer the “vicious backlash” generated in the media by well-organised supporters of Ellis. Prior to her appointment to the inquiry Sas would have been well aware of the significance of the Ellis case in upholding the changes to evidential procedures that she and fellow advocates had worked on for a decade or more to introduce.
I have noted that Sas is something of a campaigner in the field of the prosecution of paedophiles. Ergo, someone who would rigorously examine the other possibility could have counterbalanced her approach.
I have raised strong criticism of Sas and Davies in regard to their credentials in the area of scientific research. Sas has published little or no relevant scientific research. Professor Corballis has noted (personal correspondence and NZ Listener 2003) that the scientific status of a journal can be checked by referring to Journal Citation Reports, a compendium of 5876 academic and scientific journals which provides indices as to how often each journal is cited, and in respect to the journals within which the only two papers of any substance that Sas has published, neither appear on the lists. Davies seems to have carried out some, but little of it seems to have been published in mainstream journals. For example, is Child Abuse Review an impartial journal with a good scientific reputation? (see Davies's appendix p3). The Social Work and Law journals are not strictly relevant either. Corballis (2003) finds Davies that has "a moderately respectable record…although not in the major journals of memory or developmental psychology". I note that Davies does pronounce not on the veracity of the children’s accounts (p3, 39), whereas Sas clearly states (p59)
"The evidence of the six complainant children (S, Q, Z, X, R, and O) was reliable."
In contrast, and exercising caution common to many scientists, Davies was not prepared to make such an assertion on the insufficient data that was supplied to him. It would appear to be significant that Davies’ scientific base seems much more secure than Sas’s.
See also: NEW EVIDENCE IN THE PETER ELLIS CASE Ross Francis, New Zealand Law Journal; November, December 2007
(Additional documentation pertaining
to the selection of the international experts for the inquiry - Official
correspondence between Eichelbaum and Ministry Justice advisers; Submissions by
the Crown, Parents, Commissioner for Children, J Ablett Kerr (counsel for Peter
Ellis); Justice Minister's advice to Governor General can be accessed on this
website: Link )
Eichelbaum's respect for Williamson
It is noteworthy that in 1997, three years prior to his ministerial report into the Ellis case, Eichelbaum gave the inaugural address at the Neil Williamson Memorial Lecture held in Christchurch. Williamson was the judge throughout the Ellis trial. Interestingly, Eichelbaum had chosen the topic of judicial independence, which he said was under threat, for the address. In his tribute to his former colleague Eichelbaum said that he personally had the greatest admiration for him, and that in the field of law, Justice Williamson
"... had exceptional gifts of judgment, integrity and humanity. He conducted many of the most difficult trials of his time, and he did so impeccably. He was a model Judge"
In light of this statement the
question has to be asked, how prepared was he to subsequently criticise the
work of Williamson? Any reluctance to do so either directly or indirectly would
The major issues
Any determination of whether or not the children’s allegations arose from memories that were of actual events or otherwise needs to include a study of the children and their relevant personal history. It can be strongly argued that this is essential to any thorough analysis, at least from a scientific perspective. In the course of this case I am unaware of any but the most superficial attempts to do this, certainly Eichelbaum attempts no such analysis.
There were no spontaneous allegations apart from Ruth’s son remarking that he did "not like Peter’s black penis". The boy failed to elaborate, so no charges ensued from this child. Formal interviews of the other children followed an extended period, in some cases several months, of parental questioning well prior to the formal evidential interviews. Most of the child witnesses whose evidence resulted in standing convictions were first formally interviewed between six and 15 months after last attending the childcare centre. In one case there was an 18-month delay. Eichelbaum does not directly detail these significant time lapses. Given these delays it was, arguably, too late to determine beyond reasonable doubt, whether such recollections were of actual events. Eichelbaum does not acknowledge that these delays are significant.
A comprehensive inquiry would have studied more closely how the evidence was gathered, and of how the behaviour of the police and parents may have resulted in it being collected improperly (see following sections of this report). For example, the delay in questioning Ellis allowed alternative explanations for the allegations to be lost to the record. There should have been comment in the Eichelbaum report on the possible consequences of, and impact of, the long delay in interviewing Ellis.
The way the trial was conducted may also have prejudiced the manner in which the evidence was presented. This could have been discussed in more detail, especially as to rulings that constrained presentation of evidence that had a direct bearing on the reliability of the children as witnesses. These matters are examined in more detail in section (6).
This treatise also contends that Eichelbaum was disingenuous in his analysis of the experts’ opinions and in his interpretation of their conclusions when later weighing the arguments. This is especially evident in Eichelbaum’s use of Davies’ contribution. In this regard other commentators, including Hood, Ellis’s counsel Ablett Kerr have raised similar concerns. More generally, the editor of the New Zealand Law Journal, Bernard Robertson has suggested that Eichelbaum’s judgement was faulty (NZ Law Journal, February 2002).
On page 111 Eichelbaum states
"Professor Davies stated that the mistakes which occurred were insufficient to explain the content of the allegations regarding events at the crèche. The reservations he expressed affect only one of the 13 convictions."
But Davies expressed numerous concerns. Eichelbaum’s assertion that Davies concerns affected only one of the convictions does not stand up to any careful scrutiny of the material presented within Davies report. For example, Davies’ states p39
"Of more concern, is cross-talk between families, against a background of persistent accusation against a suspect."
This likely involves more than one complainant and it appears that Eichelbaum’s repeated assumption (also p119 Eichelbaum), that Davies’ concerns relate only to the accusation set at the Hereford St location (child Z/Kari Lacebark), is simply not supported by the record.
Of more import, Eichelbaum, in the forgoing statement, seems to deliberately overlook an important qualification that Davies deliberately included on p39, (my emphasis)
"...I do not think that cross-talk alone is sufficient to explain the similar accusations..."
Eichelbaum misinterprets this along with "the gist of his [Davies’] concluding comments" as meaning the tapes provided "credible evidence of the offences on which the convictions were entered". Davies does not rule out such contamination as having contributed to accusations (in particular those set in the Civic childcare centre premises). In other words Davies' statement does not rule out the possibility that cross-talk might have contributed toward the similar accusations when considered in combination with other factors, for example the children having been read similar books or having had similar scenarios put to them by adults (such as investigating police officers and counsellors). Eichelbaum uses the statement to imply that cross-talk did not result in the accusations and therefore cross-talk can be disregarded as cause. This is a basic logical error and by this means Eichelbaum seemingly manages to dismiss all concerns that Davies might harbour in regard to contamination. However Davies had continued by writing that the accusations need to be considered in the light of the wider context of the investigation, including Civic Child Care Centre layout, timetables etc (matters that Hood refers to as "reality checks"). Eichelbaum failed to carry out such checks (e.g. he did not study the Civic Child Care Centre layout). The qualification "alone" is important and should not have been ignored by Eichelbaum, especially as Eichelbaum later transforms ‘credible evidence’ (i.e. capable of being believed) into "reliable evidence". This is certainly not Davies’ position as I and other commentators interpret it. Eichelbaum goes on to use this distortion, seemingly now elevated by him to the status of fact, as reason in his weighing up of the arguments, as is evident in his summary of salient points (p119)
"... the experts and I independently reached the view that the children’s evidence in the conviction cases was reliable."
However, Davies had stated quite clearly (p3, my emphasis)
"[My report will] not attempt to pass judgment on the guilt or otherwise of Mr Ellis nor to pronounce on the reliability of individual children’s accounts".
I would go so far as to contend that this borders on dishonest reasoning on Eichelbaum’s part. Unfortunately, as this section has revealed, blatant distortions such as this one, in this case made by Sir Thomas Eichelbaum, a retired Chief Justice, are not an uncommon feature of this case.
Back to section contents
It appears to me that many people closely involved with this case have exhibited fundamental flaws in regard to the logic of their reasoning. These flaws appear to have been habitual in nature, and therefore may well have existed before this case arose. Eichelbaum also exhibits some of these flaws. Such flaws may reflect incompetence, but where they arise due to a conscious desire to reach a certain conclusion, then an avoidable and deliberate bias could be inferred.
Throughout this case, biased terms such as "disclosure" (instead of allegation) "consistent with" (out of a logical context and with the implied meaning "is likely to be due to") and "in denial" (in place of "the person/child denies or does not agree …") have gone unchallenged, even by Eichelbaum himself. It might be fair to suggest Karen Zelas was the person most culpable during the investigation and trial. She had several key roles, and was said to be well trained and respected. Yet she appears to have propagated and supported these biases rather than have rejected them.
The appointments of Sas and Davies failed to address these issues. In fact both reports, most especially that of Sas, contained multiple errors and bias. Sas appears to lack experience in conducting relevant scientific research. Both were less than rigorous in applying what they did know. The account of Sas’s appearance as an expert witness at an overseas trial, her prior contact with Wendy Ball, who was a representative of complainant parents, as well as her work for the Eichelbaum report establishes a pattern of extreme bias and recklessness in her analyses. Eichelbaum rejected experts Ceci and Bruck who were nominated in the submissions but did not succeed in finding two comparably high quality psychologists through his enquiries to his legal contacts. It was inadequate of him not to have approached a university psychology department for informed opinion.
It was inadequate of Eichelbaum not to disclose of the nature of advice he received from the Ministry of Justice and from Thomas Lyon in regard to the appointment of experts. At the time of writing the advice provided by the Ministry of Justice remains unreleased.
An examination of the agencies involved (police, CYPS, Crown Law Office, and the Christchurch City Council (who oversaw the Civic childcare centre), shows that there existed widespread bias, and a belief in many cases in a non-existent great pornography ring that practised SRA. In addition, there was widespread misinformation about the "symptoms" of sexual abuse and reliable methods of investigation of child sexual abuse allegations. There is clearly evidence of prior bias by the child interviewers and their supervisor psychiatrist Karen Zelas, who supervised the therapy and also acted as expert witness for the prosecution. The preceding summary of some of the unfounded assumptions present within the Child Protection Movement provides a convincing explanation for the sources of these biases.
Significant factors are hidden by a muddled analysis in the Eichelbaum report. His focus was far too narrow, due in the main to his terms of reference.
These matters of bias alone are sufficient grounds to cast doubt on the value of the whole Eichelbaum report.
Only the existence of very convincing hard evidence can overcome the doubts raised by this bias.