Commission should proceed with caution

The Royal Commission into child abuse opens today, with Australia firmly hoping it will shine a penetrating white light on hideous hidden practices of the past, and allow the nation to put very dark years behind us. But, as Rex Widerstrom cautions, not all memories will be precisely accurate, and some innocent people are likely to be unjustly caught up in the urge to punish the guilty.

Commission should proceed with caution

 By Rex Widerstrom, Director (WA), Civil Liberties Australia

 No crime exercises the public quite like an offence against a child. Even the bashing of an elderly victim doesn’t generate quite the same clamour for the offender to be caught, tried and punished –the comments of some people going so far as to suggest dispensing with the middle step entirely when the victim is a child.

Even those who’d normally claim to support Blackstone’s formulation that it’s better that ten guilty persons escape than that one innocent suffer tend to favour abandoning the ratio when it comes to child abuse cases.

So imagine, then, the horror with which New Zealanders greeted the news in October 1992 that a sleeping 11 year old girl had been abducted from her home and raped. They were somewhat mollified, however, that the girl had bravely identified her attacker, who was well known to her  –neighbour, David Dougherty.

Dougherty protested his innocence but then, as the aphorism has it, he would say that, wouldn’t he. A DNA sample – willingly given in the days before the law allowed the police to take it without consent – proved inconclusive. Dougherty stuck to his not guilty plea and the girl bravely testified at his trial. Yes, it was him. Yes, she was positive. It didn’t take the 1993 jury long to return a verdict of guilty, and Dougherty began a seven year, nine month term for a horrendous crime.

A crime, it turns out, he did not commit. One appeal – based on scientists’ findings that another man’s DNA was present in the complainant’s underwear but so was DNA “that cannot exclude Dougherty – failed.

His indefatigable legal team – aided, as so often seems to be the case, by a crusading journalist named Donna Chisholm – persisted, and a petition to the Governor-General triggered another appeal. That quashed his convictions. A year later, a Melbourne scientist re-tested the semen on the girl’s clothes and finds no evidence implicating Dougherty and in 1997 a NZ High Court jury finally acquitted him.

The system doesn’t like to be proved wrong, however, and it took a judicial review and yet another DNA test, this time carried out in Tasmania and showing the clear profile of another man, to force the NZ government into paying compensation of $868,728.

Finally, in May 2003, Nicholas Reekie was found guilty of the rape and abduction of Dougherty’s neighbour.

What relevance does this case have to Australia in 2013?  A great deal today, just as the Royal Commission opens into claims of sexual abuse which allegedly occurred in any number of church, state and privately owned places and potentially affects many thousands of victims.

Because Dougherty’s accuser had the events fresh in her mind; she made her identification almost contemporaneously with the offence. She was utterly convinced she was correct, maintained that conviction through several years of appeals, and made a most convincing witness on the stand.

 

How reliable is 50-year-old recall?

Conversely, how reliable might the testimony be of someone recalling events 50 or 60 or 70 years ago? Victims groups will no doubt say that memories of such traumatic events barely fade with time and that accusers’ recollections are as vivid today as when the abuse occurred. But as the Dougherty case, and countless others like it, illustrates, even when the offence is just hours old tragic errors can be made.

By prefacing any criminal trials with a Royal Commission, the grief and anger of victims will have been on display to the nation, via its media, for months before the first verdict is delivered. The pressure on police and the justice system to redress past wrongs will be immense.

But decades on, there won’t be any exonerating DNA evidence left to free someone who, like David Dougherty, falls victim to misplaced identification, or a recall of events coloured by the passage of time no matter how much the abuse victim may believe otherwise. And there’ll probably be too many newly convicted prisoners protesting their innocence for the crusading journalists and pro bono lawyers to handle.

There may even be – as I have personally witnessed – some elderly accused who genuinely cannot recall the events of their early 20s with any clarity and so, under oath, can only answer to that effect, which is all too often seen by juries as less than a ringing plea of not guilty and thus, in their desire to redress the victim’s pain, sufficient on which to convict.

It would be a rare and particularly evil person who would level a charge of child abuse at someone knowing it not to be true. I am certain that those who come forward to the Royal Commission and later to any trial will believe without doubt, as Dougherty’s accuser did, that they are right.

But in the event that they are not, the wrongfully accused can be plunged into a nightmare every bit as horrifying as that of the victim. As Dougherty said in one of the few interviews he’s granted since his release, when he was arrested he was “was freaking out because I knew what happened to child rapists in jail… they are smashed to pieces… the mentality that prevails is that the child rapist is a dog to be kicked”. His “freaking out” was fated to last another four years and six months; well over 1,500 nights of sleeping lightly, if at all, and days of hyper-vigilance when amongst other prisoners – a draining experience that psychologists say leads to ongoing PTSD-like symptoms even when the incarceration is over.

That’s on the inside. On the outside, those accused of child abuse often lose the support of family and friends well before the verdict is pronounced, so that even a “not guilty” comes as little relief, simply pitching the accused person onto the street with no support network and no job. And, if their arrest and charge has been publicised, they face the ongoing prejudice held by many that “where there’s smoke…” Every Google search delivers to any potential spouse, would-be employer or nosey neighbour the ‘evidence’ they need to shun the acquitted person if their prejudice so inclines them. I well recall one of the first people I saw acquitted of such an offence; rather than the elation, or even the sigh of relief I expected, he turned angrily to the judge and asked “Now where do I go to get my life back?”

Of course the corollary to all this is that offenders are aware that such cases all too often have little supporting evidence and rely mostly or solely on the credibility of the accuser and their performance in court, especially under cross-examination. That goes some way to explaining why, according to a University of NSW study, guilty pleas in the District Courts for such offences occur in about 45% of all cases while the comparable rate for other offences is about 70%.

Worse still, the conviction rate at trial is about 20%, and less in lower courts. Clearly, there’s considerable motivation to plead not guilty to a child sexual offence when there’s an 80% chance you’ll be found not guilty; but then of course there’s an even stronger motivation to do so if you didn’t commit the offence.

The crucial question then, which no one can answer with any certainty, is whether the majority of prosecutions should never have been brought, or instead whether cunning child abusers are going free by gaming the system.

Certainly the police will pursue an allegation of child abuse unsupported by anything but the weakest of circumstantial evidence (if that) to a degree they would never consider for other types of offences. Officers in the various child abuse units tend to take their work very personally, to an extent even the most dedicated robbery or homicide detective would not; I recall a newspaper article on the WA Police Child Abuse Unit which noted they’d all had lapel badges made depicting spiders, “rock spider” being common slang for a paedophile.

 

Some innocents to jail, some guilty go free

So it seems that by starting down this path we are assured that at least some innocents will go to jail and several of the guilty will not. That should be unacceptable even in the normal course of events, and more so with the numbers due to significantly increase.

But, short of not using information elicited by the Royal Commission in criminal prosecutions, what can be done? One answer is to establish specialised sex offenders courts. We already have family courts, small claims courts, tenancy courts, Koori courts, drug courts and various other specialist courts in various jurisdictions. Surely an issue as multifaceted and rife with potential for injustice as allegations of sexual abuse deserve a hearing before a judge with specialised training in the field, with prosecutors and defence lawyers similarly trained and accredited?

The idea isn’t particularly revolutionary; there are, for instance, now eight Sex Offenders Courts operating in New York State with indications of improvements in the ratio of guilty pleas, a decreased drop-out rate as cases go through the system, and improved consistency in the way they’re handled. Evidence is starting to emerge of better outcomes for victims and offenders, who can more easily be assigned to treatment programmes.

Nor is it new to Australia; a leading authority on Child Sex Crimes, Associate Professor Annie Cossins from the UNSW law school, published a report in 2010 recommending the creation of such courts here following a visit to New York.

But it seems the upper levels of Australia’s judiciary don’t support the idea, perhaps because such courts tend to be outcomes-focused, where opposing parties are more likely to work together for a solution that’s in the best interests of everyone; that sort of thing tends to dilute the supposed authority of the bench.

Similarly our politicians have not jumped to embrace the idea, no doubt terrified that some shock jock will leap upon the proposal as “spending all this money on kiddy fiddlers”.

But if we are to ensure both that fewer innocent people experience the horrendousness of a false accusation and that less guilty offenders are set free, we need to lift our game. And now is the time to do it.

 April 2013                                                                         

 Rex WiderstomOriginally editor of national publications and host of syndicated radio programs in NZ, Rex Widerstrom became the energy, broadcasting, and telecoms spokesperson as well as communications director for a new political party, helping to lift its vote from 3% to 30% in six months. After advising political campaigns in NZ, the US, Europe and Australia, he was director of the NZ Electronic Electoral Trial, a joint venture between a NZ university and the US Campaign-for-Digital Democracy, studying and advocating electronic voting, which he continues to support strongly. Rex came to Australia in 2002 as a TV executive producer and has since built a successful government relations practice, advising businesses and individuals, based in Perth. He is on the board of CLA.

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