Section Nine

Conclusions

Contents:

(9) Conclusions

(1) A Serious Moral Panic Existed
(2)Media hysteria was unacceptable
(3) Absence of spontaneous allegation
(4) The evidence was contaminated
(5) Children can and do lie
(6) Absence of hard evidence and corroboration
(7) The time delays made the children’s testimony useless
(8) The abuse "symptom" syndrome does not exist
(9) The child interviews were substandard
(10) Paedophile profile
(11) Bias
(12) The trial was unfair
(13) The "Experts" were not scientifically thorough in their analysis
(14) The women were not guilty
(15) Post trial revelations
(16) Final Verdict

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(9) Conclusions



1.         A Serious Moral Panic Existed

There can be no doubt at all about this. It bore all the hallmarks of a witch-hunt. The formal allegations against Ellis and his co-workers were obtained during a period of a public and professional hysteria over the existence of local and national paedophile covens practising satanic ritual abuse, for which there remains no supporting evidence. This made it totally impossible for a fair trial to take place in Christchurch or possibly anywhere else in New Zealand at that time. The police investigating the complaints were unacceptably preoccupied with uncovering the great paedophile ring. They failed. There was no evidence of the ring, and ultimately only one person, Ellis, was convicted. Eichelbaum was not required to look at this raison d’etre for the trial itself. Clearly he should have done so. Furthermore evidence previously presented supports the view that the satanic ritual abuse (SRA) scare and dogma had found its way into CYPS, the Crown Law Office, the Ministry of Justice and the Christchurch City Council, which oversaw the Civic Child Care Centre.

"The extraordinary thing about the Ellis case is the way that a wave of local panic about satanic ritual abuse allowed a conviction to be obtained on the basis of evidence which at any other time would almost certainly have been considered absurd." (Newbold, 2000)

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2.         Media hysteria was unacceptable

There can be no doubt that some of the media reported in a prejudicial manner immediately prior to the trial. There were sensational stories about Ellis portrayed as a paedophile and other reckless reportage on SRA. Although this can also be a factor in other high profile criminal trials, it does not diminish the fact that this made the presumption of innocence very difficult, and it was therefore extremely difficult to guarantee a fair trial.

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3.         Absence of spontaneous allegation

"The children who testified had initially disclosed nothing and had only begun to talk about being sexually abused after heavy and repeated questioning from their parents and/or sexual abuse counsellors." (Newbold 2000, p87).

The first formal complaint that triggered this case did not involve any clear disclosure of abuse. No charges resulted from it (Hood pp224- 226). When first questioned by the DSW, many Civic childcare centre children said that they were happy with the centre and with Peter Ellis. An ERO official review conducted only days after the first complaint surfaced was favourable toward the Civic Child Care Centre. The initial police investigation was closed down due to lack of evidence one month after the first complaint. This suggests that the allegations that eventually emerged at much later dates were likely to be suspect.

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4.         The evidence was contaminated

The only "evidence" in this case amounted to the children’s allegations. There is overwhelming evidence that parents and state professionals, through the processes known as contamination, accidentally constructed false memories in the minds of their impressionable offspring. Unfortunately, Eichelbaum only referred to this vital and fundamental consideration indirectly. Because of the delay after the alleged events, even if the formal child interviews been conducted in a perfect manner, they would still not have uncovered the source of the allegations. The contamination is particularly significant given the young ages of the children Many constructed, unreliable memories do not break down, even when challenged. The forensic interviews were actually of no value at all, because the contamination was over a long term, fired by panic, and the children were too young to even possess reliable memories.

The focus of Eichelbaum’s report was the formal interviews. This focus was misdirected and resulted in his not fully examining the issue of contamination.

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5.         Children can and do lie

The Court entertained allegations that Ellis put children in cages suspended from the roof. He is supposed to have abused children in the Civic childcare centre toilets, unobserved by other staff and visitors. Such allegations are not credible given the open layout of the centre. The children’s evidence is also contradictory in central detail, e.g. the children said he drove them to another location in his car, yet Ellis has no car and does not drive.

Children tell untruths and sometimes lie for many reasons. They can readily make both deliberate and honestly mistaken false allegations of sexual abuse, which can persist strongly for years. There was every reason to conclude that the children were not reporting real events in this case. The parental sources of contamination were evident. There is an obvious reluctance in the Eichelbaum report to accept this basic and obvious conclusion.

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6.         Absence of hard evidence and corroboration

There was no hard forensic evidence of any kind to corroborate the children’s allegations. There were no adult witnesses to the alleged abuse. Ellis possessed no pornographic pictures of children. There is no evidence of him ever having offended anywhere else or of him offending since his release. This corroboration is needed to be able to safely convict. A consensus of expert opinion comes to the same conclusion:

"It is not known how to distinguish, with complete accuracy, memories based on true events from those derived from other sources."

American Psychiatric Association, Statement on Memories of Sexual Abuse, 1993.

"The AMA considers recovered memories of childhood sexual abuse to be of uncertain authenticity, which should be subject to external verification."

American Medical Association, Council on Scientific Affairs, Memories of Childhood Sexual Abuse, 1994.

"The available scientific and clinical evidence does not allow accurate, inaccurate, and fabricated memories to be distinguished in the absence of independent corroboration." Australian Psychological Society, Guidelines Relating to the Reporting of Recovered Memories, 1994.

 

"At present there are no scientifically valid criteria that would generally permit the reliable differentiation of true recovered memories of sexual abuse from pseudomemories." Michigan Psychological Association, Recovered Memories of Sexual Abuse: MPA Position Paper, 1995.

"At this point it is impossible, without other corroborative evidence, to distinguish a true memory from a false one."

American Psychological Association, Questions and Answers about Memories of Childhood Abuse, 1995.

"Psychologists acknowledge that a definite conclusion that a memory is based on objective reality is not possible unless there is incontrovertible corroborating evidence."

Canadian Psychological Association, Position Statement on Adult Recovered Memories of Childhood Sexual Abuse, 1996


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7.        
The time delays made the children’s testimony useless

Pre-school children forget over time. Even in cases involving central events. Interviewing six year olds about what may have happened one or two years ago is unlikely to reveal anything at all apart from constructed memories that may or may not be true. They simply have very little memory stored. They are unable to help, even if something bad (even traumatic) did happen. Eichelbaum touches on this, but fails to show the courage or the intellectual rigour to apply the science. Because of this delay the informal interviews with parents become the significant ones needing to be examined if wanting to best evaluate the children’s accounts. Unfortunately these are of very low forensic value (not recorded) and so were never examined during the investigative and legal processes.

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8.         The abuse "symptom" syndrome does not exist

This existence of a set of ‘symptoms of abuse’ was one of the weakest and arguably more dubious claims made by the prosecution. In the light of the scientific knowledge available at the time of the trial, it raises serious concerns as to how this could have been taken seriously. The ‘symptoms of abuse’ may have occurred only after the interviews and therapy, and thus a result of those processes. Loftus (1993) asks,

"is it possible that the therapist’s interpretation is the cause of the patient’s disorder rather than the effect of the disorder?"

There appears to have been a bias operating in the court trial, where the judge and expert witness’s unquestioning acceptance may have lulled jurors into accepting this completely unsubstantiated invention. The underlying fault for this outcome may lie in section 23G of the Evidence Act, which allows for such theory to be introduced via the "consistency" argument. This line of reasoning amounts to a bias mechanism. Eichelbaum appears not to have strongly considered this, as he fails to challenge it. In fact Eichelbaum also appears to embrace this discredited theory by his unquestioning acceptance of expert Sas’s systematic application of it, which appears within her report under the sections disingenuously entitled "Clinical indices of reliability".

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9.         The child interviews were substandard

The prosecution relied on allegations that arose in the interviews because there was no other hard evidence. But the interviews provided unreliable evidence because they were substandard, even by the standards of the time.

o        The "truth test" at the beginning was not effective enough.

o        There were too many leading questions.

o        There were too many closed and forced choice questions.

o        There were too many inappropriate repeated questions after the child had given an answer.

o        The interviews were generally too long.

o        There were far too many interviews

o        Children were asked often to imagine how something would feel. This is very distorting.

o        There were too few challenges to credible allegations in comparison to those made to some obviously unlikely allegations.

o        The use of anatomically correct dolls was totally inappropriate then as now.

o        Denial from the children that abuse had taken place was often not accepted.

o        Source monitoring was carried out too late or not at all.

Judith Ablett Kerr sums it all up neatly (Eichelbaum p52),

"the parents, having provided [the]…disclosures made by the child, the Interviewer then attempted to extract a repetition of the disclosure."

Modern standards of best practice are more rigorous now than they were then. Ablett Kerr perhaps should have put the word disclosures in quotation marks, or used the more accurate word, "allegations". Perhaps even she was unwittingly drawn into using this bias mechanism.

The biased way in which these interviews were carried out exactly matches Hood’s description of the problems with the Child Protection Movement. Right from the start, the interviewers’ intent was that they were not going to fail to protect these children by letting Ellis, and the women he worked with, get away. In their terms, they did fail with the women, but succeeded with Ellis.

I utterly reject Eichelbaum’s conclusions about the interviews. However, although they are forensically useless, they do suggest that many of the allegations had their source in certain books. Many of the remainder could simply be the products of the leading questions that were repeated over time and arose from the children’s imaginations in their efforts to please parents and interviewers.

Again it must be noted that the focus of Eichelbaum’s report was the formal interviews. Despite this focus he spectacularly failed to identify their shortcomings.

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10.       Paedophile profile

Ellis does not fit known paedophile profiles. The details of some of the offences Ellis was found guilty of committing appear unusual for a paedophile. For example, having the children drinking urine, and defecating in the bath. Although paedophiles do vary in personality traits, Ellis, with his outgoing, confident social personality can not be seen as typical. Furthermore, paedophiles tend to have a long history of offending. There have been no allegations in regard to Ellis offending at any earlier or later time. The evidence against the four women does not appear to be substantially different from the evidence against Ellis. The same considerations thus also apply in regard to them. It is unlikely that chance would find four female paedophiles in the same childcare centre at the same time, as paedophilia is rare amongst women.

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11.       Bias

This report has revealed bias mechanisms operating within and through key persons and organisations involved in the investigation and prosecution of Peter Ellis and the Civic childcare centre workers. Bias has persisted throughout the course of the trial and appeal processes. It is clearly existent within the Eichelbaum report, most notably within Sas’s report, and in Eichelbaum’s selective manipulation of the (limited) material put before him.

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12.       The trial was unfair

Changes to the Evidence Act in 1989 tipped the balance toward the prosecution in child sexual abuse cases. It allowed for the presentation of uncorroborated testimony from young children without requiring the jury to be warned of its potential unreliability.

Highly relevant events, developments and considerations were not mentioned during the trial:

o        Crown "expert" Zelas had demonstrated her bias and unreliability in a number of prior cases. Zelas had supervised the interview team and "therapy" for the children; yet she was allowed to appear in court as an expert witness for the crown. Zelas is not a psychologist, and had insufficient (I would suggest no) relevant scientific experience to appear in court as an expert witness.

o        A Department of Justice official scared off a psychologist who wished to represent Ellis.

o        Ellis had been given no prior opportunity to defend himself or explain the allegations prior to the trial, when such a defence had a fair chance of being effective.

o        The complainant children were those that resulted from the process of reducing of the pool of at least 127 initially interviewed to a handful of more credible children before the trial commenced. This amounted to a bias mechanism against the accused, as a not-insignificant proportion of children can be susceptible to producing false reports when subjected to processes such as those that occurring in the Civic investigation.

o        Investigating Police officer Eade was propositioning mothers involved in the investigation, this brought his impartiality into question.

During this trial:

o        Expert crown witness Zelas presented unproven theory about certain "symptoms" being "consistent with" sexual abuse. Detective Eade presented similar material. The judge should have disallowed such testimony, or at the very least, he should have warned the jury not to give it undue weight. Zelas was also allowed to mislead the jury about the consistency of "central detail" in the children’s allegations. For the most part the details were certainly not consistent. Consistency does not indicate greater reliability, but may simply represent a more effective common source of contamination.

o        There was an indulgent treatment by the prosecution and the Judge of the parents.

o        The jury were never warned about the clear problems regarding the reliability of evidence given by (the) children.

o        The prosecution were given free rein to present the videotapes they chose, yet the defence appeared to believe they were constrained in their ability to show and cross examine on some of videotapes they wished the jury to consider. The jury was not given the opportunity to properly judge the children’s credibility for themselves. Newbold (2002 p87) succinctly states:

"Children whose stories of sexual depravity were clearly outrageous were not called by the crown. Thus, much of the obvious fantasy which the children indulged in was not heard by the jury"

This is iterated by Hood, Sunday Star Times, 10 August 2003;

"By refusing to allow the jury to see all the interviews with the remaining 13 children, Justice Williamson did not give Ellis a fair trial… Fundamental unfairness created by his refusal to allow the jury to see all the tapes".

o        No spontaneous allegations of abuse were shown to have had occurred. This lack is highly significant, and much should have been made of it in the judge’s summing up.

o        There was no corroborating or hard evidence.

The trial was biased. It is the responsibility of the judge, not the prosecution, to see that the defence has access to the same information as the prosecution. Given the principal of natural justice ,Justice Williamson had a strong moral responsibility to warn the jury of the possible unreliability of the child witnesses in these (or any) circumstances. He must have witnessed this problem many times.

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13.       The "Experts" were not scientifically thorough in their analysis

Eichelbaum has not had his attention drawn to the relevant research. The fault here partly lies with Sas and Davies, for not informing him.

Although I may have accused Davies of bias and perhaps misrepresenting some of the research findings, he did not say that the allegations of the children were convincing to the point that they proved guilt. He only says (p39) that, "in my view...such accusations need to be taken seriously." He goes on to qualify his position by stating that the children’s allegations need to be examined in the wider context, a context on which he himself had insufficient information, or "remit", upon which to make any judgement.

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14.       The women were not guilty

It is clear that the investigators, prosecutors and Justice Williamson all believed that there were many other offenders - not only the four women, but also the "great Christchurch paedophile ring" itself. The total lack of any corroboration for this theory, especially the total lack of any pornographic material in any of the many homes searched, suggests that they started off with a wrongly conceived mission.

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15.       Post trial revelations

There have been some significant post-trial developments. The retraction of the most effective witness is the most spectacular. This girl was the eldest, and hence most reliable witness. Yet, the Court of Appeal judgement in 1994 stated (Hood p553)

"we are by no means satisfied that she did lie at the interviews although she may now genuinely think that she did."

Hill (1998 in the last two paragraphs) discusses Roland Summit's Child Sexual Abuse Accommodation Syndrome. This theory claims that children never lie about abuse - hence "Believe the children" - but may lie when they retract accusations. This "syndrome was described by Summit himself as "impressionistic" and based on no research at all. This is likely to be the source of the Court of Appeal’s opinion.

However they did quash those convictions. As Hood implies (p549), the child protection movement (CPM) philosophy always said "believe the child" when they talk about sexual abuse. Apparently this only applies if it suits the purpose of gaining convictions.

Another post-trial consideration is the fact that the police have, since his release, twice interviewed Ellis about "historical" allegations. Both occasions coincided with publicity for Hood’s book. Yet, if Ellis is really a paedophile, since he has been out of prison for a number of years, it is possible that they might find fresh allegations. The fact that there are no new allegations or even suggestions of them may indicate that he is not. After all, he refused all therapy whilst in prison. If his offending were on the scale alleged, he would surely remain a high risk.

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16.       Final Verdict

The Ellis trial and subsequent enquiries into it do not appear to have been informed by mainstream scientific evidence on the nature of memory, especially during childhood, and the effect of questioning on the testimony given by children. The experts chosen to provide information on these matters should be researchers in the field who have published in the leading international journals, which are subject to rigorous peer review. If provided, such evidence would constitute new information, as it was not available during the original trial or the subsequent enquiries. [This paragraph contributed by Michael Corballis in December 2003.]

To which it should be added that when such mainstream information was presented, as it was at the second appeal, the courts have chosen not to heed it.

The Eichelbaum report is seriously flawed, and even the information contained within the report itself does not warrant his conclusions

It may be reasonable to describe Eichelbaum’s report as a Crown report, paid for, advised by, and reporting to the Crown, rather than a balanced, impartial one.

The standard of safety of conviction in New Zealand criminal law remains "beyond reasonable doubt". When weighed together, the factors outlined in this report render all remaining convictions against Ellis totally unsafe. Consequently, the Eichelbaum report’s conclusion that the convictions should stand must be in error, and to paraphrase Sir Thomas -
 

"by a distinct margin".

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