THERAPY COURT

Somewhere in America, today, somewhere in Michigan, or most likely, in several places in Michigan, court is in session.  The presiding judge is not really a judge and has no legal training.  He is not even a lawyer, nor has he made any effort to study the applicable law.

Nonetheless, there are no laws or (enforced) ethics codes preventing him from trying this type of case.  It has not occurred to him, or even to much of the legal community that it is wrong for him to do so, so why should he concern himself?  He doesn’t even call this a court, but it is very much a court of law, and the stakes are very high.  At issue is the termination of parental rights.

Whose parental rights?  Yours, and you probably didn’t even know about this trial.  Even if you had been informed, you wouldn’t be welcome.  These trials work far better if the accused is not present.  He probably would want to give testimony on his own behalf, and that is not really necessary. 

There is no need for due process in this court.  The judge already knows what has happened and has all the evidence necessary to make an informed decision.  He knows this because he has heard the accuser’s side of the story.  There is no reason not to assume that everything he says is the truth.  The fact that the judge has a prior advocacy relationship with the accuser, and is being paid by the accuser for his work on this case is really irrelevant to the process.  The end will justify the means.  And the end is—everyone will agree on this—of the utmost importance.  It is the protection of our children from abuse.

The accuser will inform the judge of the details of abuse disclosed to him so that the judge will know what questions to ask to get the facts from the child.  The child will be a little reluctant to disclose the abuse at first, despite the fact that he has been well prepared by the accuser for the judge’s questions.

There is no need for a prosecutor or defense counsel in this court; the inquisitional style legal system really works better for the intended purpose.  However, as a courtesy the judge might keep the accuser’s counsel informed, or even take a few suggestions regarding what evidence is necessary for a change of custody and how the necessary evidence might best be obtained.  The accuser’s counsel might also advise the judge regarding the use of certain legal terms, such as “the best interests of the child.”  This is reasonable since therapy court judges are not generally familiar with legal terminology or procedure.

On the basis of the accuser’s testimony, the judge makes a presumption that the child has been abused.  (It is, after all, standard and proper therapeutic practice to accept a presenting parent’s statements as truthful.)  Once the key witness, the child, is willing to testify to your guilt, the judge can send the case to a duly elected Court and the matter can be formalized.  There is no need to keep an accurate record of these proceedings because the formal Court will do this in the process of confirming therapy court’s findings.

At the start of the process the judge makes a finding of fact regarding what the child's problem is, including the likely cause of that problem (i.e., trauma from sexual abuse) and writes that conclusion in the record in the form of a diagnosis.  Any definition of a medical (including mental health) diagnosis will state that it is a conclusion as to the nature and cause of a medical condition, to whit:

Webster’s New World Medical Dictionary: Second Edition

Diagnosis: 1. The nature of a disease; the identification of an illness.

2. A conclusion or decision reached by diagnosis. The diagnosis is rabies.

3. The identification of any problem. The diagnosis was a plugged IV.

The word diagnosis comes directly from the Greek, but the meaning has been changed. To the Greeks a diagnosis meant specifically a "discrimination, a distinguishing, or a discerning between two possibilities."  Today, in medicine that corresponds more closely to a differential diagnosis.

Differential diagnosis: The process of weighing the probability of one disease versus that of other diseases possibly accounting for a patient's illness. The differential diagnosis of rhinitis (a runny nose) includes allergic rhinitis (hayfever), the abuse of nasal decongestants and, of course, the common cold.

The American Heritage Stedman’s Medical Dictionary

Di·ag·no·sis (dī'əg-nō'sĭs)
n., pl. -ses (-sēz).

1.      Medicine.

a.                        The act or process of identifying or determining the nature and cause of a disease or injury through evaluation of patient history, examination, and review of laboratory data.

b.                        The opinion derived from such an evaluation.

(Note:  A differential diagnosis, also known as an alternative hypothesis, is not deemed necessary in therapy court, where both the condition and cause are considered obvious, although it is a routine part of a forensic interview.)

The judge will then want to question the key witness, which is of course the child who has been abused.  He knows what the child has to say, but getting him to say it is sometimes difficult; children who have been abused are often reluctant to disclose, a fact we are very familiar with from anecdotal evidence (acceptable in therapy court in place of forensic research, which cannot always be relied upon to support intuitive supposition).  Moreover, we also know from anecdotal reports that children never lie about something this important, and the child has, after all, disclosed this evidence to the accuser.

So it is often necessary to dig for the evidence, to ask the child the same questions repeatedly, in a leading manner, and over a long period of time in order to encourage the child to disclose the abuse; and by telling him that children often tell the judge about these things and the judge knows how difficult it is to talk about it, but that the child will feel much better once he has. 

The judge is very sensitive to the child’s needs, helps the child remember if the details of what he told the accuser are a little vague, and rewards the child with a “good for you!” when the child has finally worked up the courage to disclose.  He will encourage the child, who is now convinced of the truth of the disclosure, never to back down from confronting the perpetrator of this horrible crime, "empower" the child by teaching him confrontation skills, and let him know that the judge will do everything he can to see that the perpetrator never again has the opportunity to hurt him.

Once the child has disclosed, the judge truly has all the proof that any court would ever need to confirm the findings of fact he made at the beginning of the process.  It is then time to reach a conclusion of law.  The judge's ruling is that the child needs to be kept from contact with the guilty party (often times the accuser’s ex-spouse by some odd coincidence) permanently; that the parental rights of the accused need to be terminated.

Therapy court will make this ruling in the form of a recommendation (but who is going to dispute it?), then refer the case on to Child Protective Services and the formal Court for the necessary confirmation, having saved the Court much time and expense, as well as the difficulty of trying to obtain proper forensic evidence and weighing this evidence during a standard, due process, adversarial type of trial.  In the formal proceeding it is sufficient for the child to reiterate what he has told the therapy court judge, and for the formal Court to rubber stamp this judge’s ruling.

If legal professionals do not believe that this therapy court, with it’s tremendous power, secrecy, incredible unfairness, appalling lack of due process and usurpation of the power of legitimate Courts exists, or think that this portrayal of its method of operation is a gross exaggeration of a standard practice, I assure you that it does exist, and that legal and mental health professionals perpetuate it’s existence every time they refer a forensic case to a treatment therapist for a resolution, or accept forensic evidence obtained by this so-called therapeutic process.

The fact that it continues to go on tells me that both legal and mental health professionals fail to grasp the inherent conflict between legal due process and legitimate mental health treatment practice, and/or to insist on providing and accepting only legitimate forensically obtained evidence in the courtroom.

Toward this end, mental health professionals and their representative organizations need to accept as a standard of practice the Protocol which is currently law for State of Michigan employees outlining the proper, forensically valid method of interviewing and recording the interviews of children suspected of being abused, or to develop their own protocol consistent with current forensic research and the researchers’ recommendations.  These recommendations are remarkably consistent at this point in time.

Of the four main mental health disciplines, psychiatry, psychology, social work and counseling, only The American Academy of Child and Adolescent Psychiatry has adapted a specific protocol outlining the standard of practice for its members working in the area of child abuse.  The fact that other disciplines have not, insures that the quality of work done by treatment professionals in this critical field will continue to lag behind the work done by police, prosecutors, and other non-mental health professionals; and begs the question why legal professionals put so much faith—or any faith at all—in mental health evidence provided by these professionals in a legitimate court of law.

If professional organizations refuse to adopt state of the art guidelines for their own membership (because they fear possible accompanying liability?), the legislature owes it to the citizens of this State to impose at least the minimal standards of practice for mental health professionals in their own area of expertise that it has on police investigators and prosecutors charged with obtaining forensic mental health evidence for the Court.  After all, these procedures were developed by mental health professions as a response to numerous innocent people being sent to court 20 years ago for crimes that, not only did they not commit, but that it was ultimately determined nobody committed; or that if anybody did commit these crimes, the evidence was so badly botched by therapy court the truth can never be known (New Jersey v. Kelly Michaels, North Carolina v. James Kelly, Florida v. Fijnje, etc.).

In addressing the issue of valid evidence, however, one must also ask why judges and lawyers often seek blindly for any mental health professional willing to perform forensic functions according to their specifications rather than going to people who have made an effort to study and employ proper forensic techniques in child custody and abuse cases.  Even in this day and age it is not unusual to encounter people seeking partisan evaluations and recommendations, or to have cases referred to me by mental health professionals who have no experience doing this kind of work but have been asked to by the Court.

My colleague and advisor, Herman Daldin PhD, recently referred two such cases to me.  One of these cases was a request for a forensic abuse interview by a lawyer who was referred by another attorney for whom I had done forensic work (work that I am very proud of) and who should have known that Dr. Daldin did not do this work. 

Dr. Daldin was listening when I made the call back.  Having had some prior involvement with the case I had to turn it down, but when I hung up Dr. Daldin asked me,

“How many times did you have to tell that guy I don’t do forensic work?” 

I told Dr. Daldin that in the future he needed to call and make the referral and not just give me the number and ask me to call.

But this stuff is scary.  Do judges and lawyers really want the kind of evidence outlined in the above scenario?  If legal professionals would rather seek out unqualified people to do forensic work because they have PhD, rather than sending these cases to a Master’s level person who has done his homework, they are going to continue to get unreliable evidence, and as they say in the computer business, “garbage in, garbage out.”

I have seen reports from PhD custody evaluators who do not do child abuse forensic interviews stating that children have not been coached in cases where I had a couple of hours of taped, properly obtained interviews that proved the children were coached.  This is highly significant because it has been my experience that people who coach their children to make false allegations may lie low when their efforts fail, but because there are rarely any consequences, they inevitably try again. 

Therapy court is like any other court, only more so, in this most important respect; the more times you try the same case, the better chance you have of making the allegations stick.  So it is important not only to identify through proper forensic investigation whether or not a child has been abused by the alleged perpetrator, but also by the coach if there is one, and to hold people who commit this crime accountable.

In the end, legal professionals, and especially the courts, have to know enough about what constitutes valid mental health forensic evidence to make an informed decision about what to let in and what to exclude, and not just to take the easy road of opting to believe the person with the highest credentials.  The worst evidence in forensic cases in my experience is provided by treatment professionals, especially those who conduct therapy court, and the best work is done by those who have made a study of forensics, and who truly know the difference between treatment and forensic mental health, regardless of their level of education.

Relying on credentials in this area is at best snobbish, and at worst foolhardy and irresponsible.  It reminds me of one of my late mother’s favorite quotes from John W. Gardner about intellectual snobbery,

“The society which scorns excellence in plumbing because plumbing is a humble activity, and tolerates shoddiness in philosophy because philosophy is an exalted activity, will have neither good plumbing nor good philosophy. Neither its pipes nor its theories will hold water.”

Ultimately, neither will its legal system.