False Allegations of Sexual Abuse: What Can Be Done
Michael G. Brock, MA, LMSW
Over the past few years I have published several articles about the prevalence of false allegations of sexual abuse in child custody cases. The purpose of these articles has been to heighten the awareness of mental health professions, lawyers, the judiciary and the general public regarding these allegations, and to cite the research regarding how to differentiate true from false allegations of abuse. During this time, however, very little has changed; the same allegations are made in the same way, with more or less the same results. The typical scenario goes like this:
There is a dispute of custody or parenting time between the parents, either during the divorce process or after the divorce has taken place. Child custody/parenting time litigation is set in motion.
An allegation is made—usually by the custodial parent—stating that the child has been physically abused by the other parent.
A Protective Services investigation takes place, including an interview with the child alleged to have been abused. In a false allegation case, there is either no evidence, or any marks or bruises can be adequately explained by the child’s normal play activities (skinned knees, etc.) There is a finding by the investigator that the abuse did not take place or cannot be confirmed.
Protective Services may recommend that the child be enrolled in therapy. There is usually no clear suggestion regarding what the diagnosis is, or what the goals of therapy should be. Sometimes the P.S. report will reflect that the child needs treatment for the trauma of being caught in the crossfire of a child custody dispute. When such therapy is initiated, the custodial parent is usually the presenting parent, and typically, sets the time and agenda for therapy to take place. This parent often does not inform the non-custodial parent that therapy is taking place, or suggest to the therapist that they be contacted.
When a child is enrolled in therapy, the therapist depends on the presenting parent to provide the presenting problem and the child’s history. Unlike adults, children are generally unable to provide accurate histories, or to fully articulate any problems they may be having. This provides a false accuser an excellent opportunity to suggest to the therapist that the child is being physically and/or sexually abused by the other parent and/or their spouse. The parent says that the allegation was made by the child, but the records in these cases show that the report is typically made by the presenting parent. The therapist’s intake and treatment notes will reflect a presumption that the abuse has occurred, with such treatment goals as, “alleviate trauma of abuse”, or “facilitate child’s ability to verbally express trauma.”
Such presumptions are appropriate to therapy in general, but when the anticipated use of the therapy is to make a recommendation regarding the parenting time that the child will have with the parent who is not there—in other words, is intended to be used as evidence in court—a more objective process is required. This is the entire reason that interviewing protocols have been developed, but it is useless if those using the protocol are going to refer the child to a person unskilled in investigative interviewing, and who will employ improper therapeutic techniques to obtain forensic evidence.
One or several more reports are made to Protective Services, additional forensic interviews are done by this agency using the protocol developed for this purpose, but none of these interviews are recorded. No abuse is discovered.
A referral is made to a hospital, where the child undergoes one or several examinations for evidence of physical trauma related to sexual abuse. Sometimes doctors will talk about “hymeneal irregularities” or other such “findings of past trauma”, but the urologist with whom I confer in these cases tells me that the smallest amount of pressure on a child’s hymen is sufficient to rupture it, and this is sometimes necessary if urine is collecting behind the hymen and causing infection. Most often, no evidence is found, but the examining physician feels obliged to hedge his bets (or cover his behind) by saying that the examination “does not prove that the child was not abused.” No, and the fact that there is no evidence of abuse does not mean that the child was not molested by the examining doctor either. (In one recorded case, an examining physician actually stuck his finger in the child’s rectum and asked the kid if his parent did that to him. Needless to say, the doctor was not charged.)
The hospital refers the child to their own mental health expert, who performs a forensic interview, ignoring proper protocol, and confusing the process in two ways; first, by drawing conclusions which have no forensic value; and secondly, by making yet another referral for treatment. It is his clear presumption that the purpose of treatment is to continue the investigation. This presumption is completely contrary to the separation of treatment and forensic (court-related) evaluation that is clearly indicated by most state protocols, and the evaluation guidelines of both the American Psychological and the American Psychiatric Associations.
The National Association of Social Workers has no established protocol for forensic procedures, but it does suggest that social workers avoid dual roles and conflicts of interest. Clearly, the role of evaluator is one that calls for objective and impartial assessment. Someone engaged in the role of therapist for any party in a forensic process has no such objectivity. This is equally true of the child’s therapist, who forms an alliance with the presenting parent.
A police report is made. They conduct their own investigation, also interviewing the children using a protocol developed for this purpose. These interviews are also usually not recorded. The accused parent is asked to take a polygraph—inadmissible in court—to “clear himself.” The accused parent may retain counsel, who advises them not to take the polygraph; or they may consent to take a polygraph. However, this test of physiological responses is unreliable, and is used as a pretext for interrogating a “defendant” without counsel. Police will often tell the person being interrogated that they failed the polygraph, when in fact they passed it, and that it will go easier on them if they confess to the crime. It is not a crime, or even considered improper by judges, for police to lie to a suspect in order to extort a confession. This is one of the key reasons for false confessions.
Yet another forensic interview may be conducted by an interdisciplinary team which has been set up for the purpose of obtaining evidence that may be used for incriminating the suspect, but which the team is reluctant to release to the “defendant” (who has not yet been charged) or his attorney. In my state, all such interviews, except those conducted by the therapist, are required by the Child Protection Law to be conducted according to a protocol which has been developed by the state for the purpose of obtaining evidence and “protecting the rights of the accused.” Current forensic research strongly suggests—as does recently passed State Law—that such interviews be recorded, but they rarely are. Access to the evidence is not always among the rights of the accused in many states. Police turn their evidence over to the prosecutor, who decides whether or not to proceed with criminal charges.
The accuser’s family lawyer informs the family court judge that an investigation is underway and that criminal charges may be pending; that the child has disclosed abuse to the therapist, and/or that evidence of physical abuse has been discovered, and asks that the target parent’s time with the child be suspended. The records will usually show that this report is not true (if it were, the case would surely be prosecuted in criminal court), but the allegation is often sufficient to cause the judge a great deal of concern about what might happen if it turns out to be true.
The judge will usually try to err on the side of caution, suspending the target parent’s visitation and allowing the alienation process to continue unimpeded. It is important to understand that parents who make these allegations have no qualms about coaching, coercing, or rewarding the child for “correct” answers. They believe they are the true owner of the child, and whatever they must do to keep possession of their property is justified.
If the accuser’s perjury is very successful, the accused goes to prison. If it is only moderately successful, the target parent is awarded only supervised visitation, which essentially means they will never again spend quality time with their child. If it is minimally successful, they have succeeded in disrupting, at least temporarily, the other parent’s relationship with the child, and casting aspersions which may hang over that parent for years. If the accuser’s perjury fails, they have lost nothing, and have succeeded in placing heavy financial and emotional burdens on the target parent. Moreover, they can use this tactic an indefinite number of times with no consequences.
So this is the pattern; what can be done about it? I have the following suggestions, but this is in no way a complete answer or solution. Rather, I am writing this as much to provoke discussion and to encourage others to come up with ideas, as I am to share what I have learned.
A person accused of sexual abuse must always take the matter very seriously. Someone making a false allegation of sexual abuse is committing the most violent form of domestic abuse short of murder, and anyone who does not see this and move to protect him or herself is guilty of very poor judgment. One cannot think that these things will go away. Recent history is replete with persons who were convicted in the hysteria of the moment, and whose subsequently overturned convictions have done very little to restore their ruined lives. Visit PBS Frontline’s “Child Terrors” series if you need a convincer.
Hire an attorney who specializes in these cases and convince him of your innocence. No one wants to protect a child molester. I once prepared a case in which I told the attorney who hired me that I thought his client was guilty. He said thank you and issued me a subpoena. I sent him and his client a certified letter telling him what I would say on the stand, and he changed his mind about having me testify. The only conclusion I could reach was that that he was trying to sabotage his client. That is the prosecutor’s job, and he had plenty of evidence to do it with; he did not really need defense counsel’s help.
Have a videotaped forensic interview done, according to the protocol adopted by the state in which you live. If your state has no protocol, have the interview conducted as outlined in the forensic writings of Lamb and Poole or another nationally recognized researcher in the field of child interviews, as early in the process as possible. This cannot be overemphasized. Police and prosecutors do not gain points from exonerating the innocent, and the forensic mental health professionals who work with them have often made statements to me that show they consider themselves part of the prosecution’s team. (One forensic interviewer told me she would not conduct an interview with a child who had been brought by the “perpetrator.” Translation: “We know that the crime was committed, and we know who the perpetrator is because the accusing parent already told us; it’s just a question of whether we can get the child to tell us.”) This having been said, these people generally do a pretty good job of interviewing, but the more times a child is asked the same question, the more likely he is to give the answer he or she thinks is expected of them.
The biggest threat to an innocent client is the treatment professional. Typically, they have the least training in forensic procedures of anyone involved, and their recommendations tend to carry a lot of weight with the Court. If your child is being treated, insist on being involved. If someone is trying to demonize you, it is much easier for the treatment professional to accept that portrayal if they do not know you or have to confront any evidence that may challenge this conception. If the child’s therapist does not want to include you in therapy it is a pretty good bet that he or she has already made up their mind about you.
Treatment professionals are legally very unsophisticated people. The notion of due process of law and constitutional guarantees of a fair and impartial hearing, or that their role in that process is influenced as much (and usually more) by what the presenting parent has to say as it is by what the child is telling them, usually never occurs to them. One insightful judge asked a treatment professional, who was testifying in a case in which I was involved, why the mother and child were doing treatment for a problem which had more to do with the father’s relationship with the child than the mother’s.
The obvious answer was that what was going on was not treatment at all, but investigation. But a fair investigation also involves an attempt to obtain information from all parties involved. Treatment professionals in these cases see themselves as having a responsibility to “crack the case” by getting the child to admit the abuse that everyone knows happened. They often put enormous pressure on a child over an extended period of time to disclose, and children often cave in under such pressure.
Obtain the treatment records. You have a right to your child’s records in most states, whether you have custody or not. The records in a false allegation case will show that there has been an ongoing interrogation of the child by the therapist, who is obtaining most of the supporting evidence from the presenting parent. Sometimes therapists will even allow the parent to interrogate the child in their office, completely co-opting the process.
Hire a forensic mental health expert to tell you where the holes are in the case the other person is trying to put together against you. You may not think you need this, but most lawyers really don’t know what to look for in sexual abuse case records. Moreover, you need an expert not so much to give evidence as to help in preparing your case. But do your homework in either hiring an expert to prepare your case, or agreeing to an expert to be appointed by the Court who will give testimony.
Read, Investigative Interviews of Children, by Michael Lamb and Deborah Poole, and Jeopardy in the Courtroom, by Steven Ceci and Maggie Bruck, so you know what the research experts consider proper evidence and interviewing techniques. If you don’t want to do all that reading, read the articles on forensic interviewing available at my website: michaelgbrock.com, and the articles available on the Truth in Justice Website.
Obtain records of all forensic interviews and investigations done in the case, especially those done by Protective Services, interdisciplinary teams set up by the state, and examinations by both the child’s pediatrician and those done at a hospital ER. We are talking about cases in which proper procedures are almost never followed, and the left hand usually does not know what he right hand is doing, so don’t assume that people know what they are doing in these cases. If you are being denied access to your children and you did nothing wrong, someone screwed up (usually a lot of people screwed up). You have to track down the information if you want to get a fair hearing in court. And remember, the court’s desire to err on the side of caution is a defacto presumption of guilt.
There needs to be some kind of information sharing done in these cases, but I don’t see it. There is a need for groups, not so much for therapy, but for mutual support and consciousness raising. I’m not sure such a group would be structured. Perhaps a six or eight week class would be the way to go. Plus, there has to be some information made available to the public. But would the press want to do a story without names and faces? And who wants to be the poster child for cases of false allegations of sexual abuse?
I have begun to write letters to professionals, whose behavior in these cases is unethical, letting them know what behavior is objectionable, and informing them that in the future I will report such behavior to the licensing board. But it is not my ox being gored here; if it were, I would undoubtedly take stronger action. Because I work in the courts and make custody recommendations, I have frequently been threatened will suits or licensing complaints, but I know what the rules are and I follow them. Still, forensic and treatment professionals alike need to know there will be consequences if they overstep professional boundaries.
This is not a politically correct cause, and judges in my state are elected. Victims cannot expect a lot of sympathy in court. Perjury and false allegations are felonies in this state, but these laws are not enforced. Moreover, no one believes that this could happen to them until it does. When it does, victims of false allegation display a shockingly naive faith in the system. Laws are enforced quite arbitrarily, due to the fact that regardless of what is on the books, prosecutors have almost unlimited discretion regarding which criminals they choose to go after.
Even in civil court, there is a perception that someone falsely accused of sexual abuse has suffered no real damages. And in family court, if the charges are determined to be groundless, it’s rarely seen as a reason to limit contact with the offending parent. This will continue until judges, prosecutors and lawmakers are forced to see this behavior as what it is: an extreme form of domestic violence; and this will not happen without some form of grass-roots movement to draw an appropriate amount of attention to the problem.