The Volokh Conspiracy

Sexually Abusing A Child in the Name of Prosecuting Child Abuse:

I've mentioned that I've been reading up on the ritual sex abuse case of the 1980s. The victims included not only the wrongfully convicted, but the children who were fed false memories of abuse that never happened (and still to this day believe fantastic tales of ritual abuse), and others. The story that most affected me was of an eight year old girl subjected to a particular "expert" physician's physical "test" for sexual abuse. The physician told the girl she had been molested. She denied it. He then told the girl that to test her truthfulness, he was going to rub her anus with swabs, insert glass test tubes into her rectum, and take photographs of her genitals. Frightened and embarassed, she cried and begged not to be examined, but he insisted. He then once again insisted she had been abused. Years later, she remembered this as "the worst thing that ever happened to me." (Nathan & Snedeker, Satan's Silence 188)

The girl almost certainly wasn't sexually abused by the defendant, but she was by the physician retained by the prosecutor.

Bill Poser (mail) (www):
Was the physician prosecuted or at least disciplined by the medical association? Even if one believes in recovered memories, reproducing physical abuse is inexcusable and I am confident that this falls outside of established medical practice. (I take it that you use the term "physician" advisedly and that he was a real doctor, for whom real standards of practice and competence exist.)
6.21.2007 5:08pm
Cornellian (mail):
Just goes to show how much you can get away with on the "protect our children" ticket.
6.21.2007 5:10pm
Dave N (mail):
I believe that there was a witchhunt in the 1980's and 1990's that swept up some innocent people. However, unlike Salem, there also were some real witches.
6.21.2007 5:17pm
Dave N (mail):
Before I get flamed, let me be clear that I was speaking metaphorically in my last post.
6.21.2007 5:18pm
BruceM (mail) (www):
Anything to Protect The Children.
6.21.2007 5:19pm
Clayton E. Cramer (mail) (www):
It makes you wonder: if you wanted to get your jollies talking about sex with little children, what better job could you get?
6.21.2007 5:37pm
john w. (mail):
Nothing new here ... If the Government does it, then it's OK. There are two classes of citizen in this country: The Nobility, a.k.a. Government Employees/Agents and the commoners, a.k.a. you &I.
6.21.2007 5:57pm
LizardBreath (mail):
The physician told the girl she had been molested. She denied it. He then told the girl that to test her truthfulness, he was going to rub her anus with swabs, insert glass test tubes into her rectum, and take photographs of her genitals.

I'm just checking here, but is it clear that this was a threat to browbeat her into changing her story, or was it the normal physical examination one would do to determine if the child had been raped? (Generally, I absolutely agree that the Satanic ritual abuse cases were nonsense and usually characterized by prosecutorial misconduct -- this just doesn't sound that far off from a child's report of a doctor doing an exam for a rape kit.)
6.21.2007 5:58pm
Anderson (mail) (www):
I don't actually disbelieve the account, but since it arises in the context of false memories, taking it on faith seems a bit ironic. Perhaps I should look at the book.
6.21.2007 5:58pm
Richard Gould-Saltman (mail):
Reminds me that a psychologist friend of mine called my attention to, and showed me the catalog pictures of, the "anatomically correct" dolls offered by some therapists' suppliers for use in the detection, diagnosis and treatment of CSA. "Anatomic caricature dolls" would be a better description, since they were not "correct" in any meaningful sense, and the only likely response by any human being, kid or adult, on seeing these, would be probably "DAMN! Look at those dolls' ENORMOUS genitals! What wierdo made THAT!!!???"

It was also apparent that if the therapist insisted that kid subject then PLAY with these dolls, more than likely, the play was going to involve, in some way, the dolls' most CONSPICUOUS (no, really, you have to see these to get the full effect; they all but had blinking strings of LED lights spelling out "GENITALS!" on 'em) features, since they were otherwise wholly unremarkable.

If a non-therapist had kept 'em around, and showed 'em to kids, they'd tar and feather him....
6.21.2007 6:01pm
JB:
I'm reminded of the old story where the King/Sultan/Emperor gets someone before him, describes an awful crime, and asks the person what the just punishment should be for that. When the person has passed a brutal sentence, the King/Sultan/Emperor reveals that he has evidence that the person himself is guilty of the crime, and the brutal sentence is enacted on its author.

I'd like to see that applied to the physician and those who instructed him to act in that manner.

I'd also like to see people keep these stories in mind when they call for blood in cases like this.
6.21.2007 6:38pm
Elliot123 (mail):
The state bar associations sat on their hands while all these prosecutors ran wild? Why?

Did the legal profession rise up against this abuse? Why not?

Can we expect similar silence if some frenzy once again hits the presecutorial class?
6.21.2007 7:21pm
Fub:
LizardBreath wrote at 6.21.2007 5:58pm:
The physician told the girl she had been molested. She denied it. He then told the girl that to test her truthfulness, he was going to ...

I'm just checking here, but is it clear that this was a threat to browbeat her into changing her story, or was it the normal physical examination one would do to determine if the child had been raped?
If the physician actually told the child that his purpose was "to test her truthfulness", then I seriously doubt it was a "normal" examination.

Such an introduction, even if to a perfectly ordinary physical examination of a child (or even an adult), immediately sets up the physician as an adversary challenging what the patient has said. An adult might (I know I would!) respond to that screwy introduction with "Touch me again and I'll test your face's modulus of elasticity under compressive impulse load. And when you wake up, you'll hear from my lawyer. You're fired! Step away from me, now!"

But a child would be entirely defenseless and helpless, and much more vulnerable to the physician's suggestion that changing her story would prevent her suffering further unpleasantness.

And that's assuming that the actual physical exam was routine for the purpose of detecting rape and was physically administered so.

But another conspicuous issue, the dog that didn't bark in Prof. Bernstein's account above, is the absence of an adult female observer or nurse during the physical examination of a young girl by a male physician.

Most male ob/gyns conduct such examinations with a female nurse present. One reason for that is to prevent false accusations of improper conduct. I believe there have been lawsuits in which that fact (or its absence) figured significantly. It seems reasonable that there would be even more reason to employ an adult female observer in a male physician's examination of a young girl.

As stated in the account, this "examination" sounds much more than just hinky. It sounds to me like the "expert" physician should be in the dock for sexual abuse of a child. As others have pointed out though, he probably wasn't prosecuted, since he was the prosecution's star witness.
6.21.2007 7:31pm
NeoConTheoConRightReactionaryZionist (mail):

This is why lawyers have approximately the same public approval ratings as the child molesters themselves.

As the Duke rape case shows, rogue prosecutors are essentially free to sow havoc in the lives of individuals. I can't find the study but there is one around showing that prosecutors are punished less than two tenths of one percent of the time prosecutorial misconduct occurs.
6.21.2007 7:41pm
LizardBreath (mail):
Sure, but we're looking at Bernstein's paraphrase of a child's memory of an event. There's no positive statement that there wasn't a female observer, and 'test her truthfulness' isn't that far away from what I could see as a reasonable statement to a child denying having been molested when there was good reason to think she had been: something like, "Okay, but I still have to do this examination to be sure that it's true that nothing happened to you."

Again, generally the satanic abuse prosecutions were horribly irresponsible and baseless, and were almost certainly damaging to the children involved, let alone the innocent defendants. This story just doesn't seem like a clear reason to call the doctor involved a child molestor.
6.21.2007 7:44pm
pmorem (mail):
Can we expect similar silence if some frenzy once again hits the presecutorial class?

I would say that Mr. Nifong has become something of an expert on the subject.

While the Lacrosse players' lawyers are most responsible for the demonstration of their innocence, it is public awareness and pressure that has driven the punishment.
6.21.2007 7:48pm
Pub Editor:
JB:

I'm not sure if this is what you're thinking of, but see 2 Samuel 12:1-12.
6.21.2007 7:53pm
Dave Hardy (mail) (www):
This is why lawyers have approximately the same public approval ratings as the child molesters themselves.

Until the Nifong matter, we had them beat by at least five percentage points, but now it's within the error range.

If the doc did that, I'd note that at least here the civil statute of limitations doesn't start ticking until a kid hits 18.

As far as inflicting a similar punishment on the doc, the problem is that he might enjoy it.
6.21.2007 8:00pm
JB:
Pub Editor: I hadn't thought of that one. I've encountered tales like this all over the place, and I wouldn't be surprised if the type occurs in the Bible elsewhere as well.

In the Arabian Nights, a story like this appears as The Tale of the Jar of Olives. I've heard it in ancient Chinese literature (I forget where), and in tales of various wise kings in Europe.

It's a wonderful cautionary tale for those who would raise posses.
6.21.2007 8:06pm
DavidBernstein (mail):
Two quick points: The exam itself was apparently based on unproven theories about how an abused child with physically react to anal probing, and on nonsense about testing a girl's virginity through physical signs (that very quite widely among young girls).

Second, not only were those that prosecuted these cases never punished, several of them used the prosecutions to bolster their careers. Scott Harshberger became AG of Massachusetts, and almost governor, and Janet Reno became AG of the U.S.
6.21.2007 8:25pm
Dr. T (mail) (www):
The "physician" in this case behaved unprofessionally. If there was evidence of recent rape, then, with parental permission, a chaperoned examination should have been performed to obtain evidence of the crime (the rape kit swabs) and, more importantly, to detect trauma and sexually transmitted diseases. With no evidence of recent rape, the "physician" in this case coerced false statements by threatening sexual trauma. He committed malpractice and probably committed a crime.
6.21.2007 8:35pm
TheCrankyProfessor (mail) (www):
Glad you're speaking metaphorically, Dave - because there were certainly people in Salem who thought that they were witches...kinda like in 17th century Europe. Just because we don't believe it worked doesn't mean that they didn't...kinda like recovered memories.
6.21.2007 9:21pm
Bill Poser (mail) (www):
Cranky:

I submit that there is an important difference between the recovered memory people today and those who tried women for witchcraft in 17th century Salem. In the 17th century, few people understood scientific method, and even the elite of Salem, some of whom were fairly well educated by the standards of their time, were mired in primitive superstition and cannot reasonably have been expected to understood how silly their belief in witchcraft and how to detect it was. In contrast, in the United States of the latter 20th century, the "therapists", police officers, and prosecutors involved in the "repressed memory" scandals were almost certainly exposed to the basics of scientific method and to intense skepticism about religion and other forms of superstition. Moreover, they had ready access to psychologists and others more knowledgeable than themselves. In using ad hoc investigative techniques, pursuing intrinsically dubious hypotheses, and failing to consult people with real expertise, they behaved in a way that was at the very least reckless. Bottom line: Cotton Mather didn't know any better. The "repressed memory" people did or should have.
6.21.2007 9:32pm
Richard Aubrey (mail):
Bill Poser. Didn't we have a thread not long ago about why people believe in stupid stuff? It wasn't restricted to some long-gone century.
The primary motivation to believe stupid stuff is that it would be really neat if it were true. Selection bias does most of the work.
And why people would be really, really pleased to find some of this awful stuff is true is....icky.
6.21.2007 10:19pm
Assistant Village Idiot (mail) (www):
Following Lizardbreath and Anderson, I would introduce the caution that this story is a retrospective by an adult remembering an event she would likely not have understood well as a child. That doesn't make it right, as children's potential to misinterpret events should be part of how we deal with them. But it also doesn't mean that the doctor acted as described.

I've been a psychiatric social worker for 30 years, and I remember well the numerous young women we received, unraveling to the point of suicidality because their therapists were pressing them to recover memories that they were sure must be there.

I would add to Bill Poser's comment that the advantage we in the 21st C show over the 17th is indeed scientific rather than moral. If we believed others were capable of inflicting damage on our loved ones from a distance in some way we would still punish them severely. (See Alar, secondhand smoke, breast implants)
6.21.2007 11:19pm
michael (mail) (www):
Massacheusetts is associated with extraordinary ideational achievement: The Mayflower Compact, MIT, Harvard etc. At the same time it has had the most bizarre social, governmental actions in the New World: the Salem witch trials, the Amirault trial here referred to. I suppose there is some twinning here, that is, for example, the power to advance an idea is accepted by others as perhaps reflective of its being 'the best in the world' rather than deviant. However, I have trouble believing that Romney is interested in justice for Americans when, as governor of Massacheusetts, he failed to pardon the Amiraults.
6.22.2007 1:04am
John Maguire (mail):
Why is prosecutorial abuse is rampant in this country? A major reason is that the newspaper editors refuse to shine a light on it. Newspapers will investigate all kinds of bad behavior by public officials--as they should--but they leave prosecutors alone. Prosecutors reward newspapers with cheap and dramatic stories--that's why they get this pass. No one can get front page coverage with a mere press release more easily than a prosecutor. It's likely to get worse. In this time of shrinking newsroom budgets, to understate it, papers are badly in need of cheap news, meaning news stories that do not take weeks of time and thousands of dollars in reporting time to produce.

Papers always cooperate with prosecutors. In the Duke story, the local papers cooperated with DA Nifong, and so did the NY Times. (On the first day this story hit the national news, I, 1000 miles away, could tell a friend that this story had a fishy smell to it--but the local papers in Durham went along with the DA for months.) Up here in Boston in the 80s, the Boston Globe went whole hog with the Amirault prosecution, and years after the fiasco was a national scandal, its editors were still telling visiting reporters (like Rabinowitz) how correct they had been.

My pet peeve on the subject of P.A. is the deadbeat dad stuff you also see on the front page of your newspapers reguarly. ("DA shames top ten deadbeats") If you give a close look at the stories, you will see there is no checking on the facts by the reporters. Most of the dollar figures the DAs use in these press events are extremely unlikely (a Mexican landscape worker owing $70,000 in back child support?) but no one ever checks. Note that. No one ever checks.
6.22.2007 6:31am
Public_Defender (mail):
I don't envy people who have to investigate and decide whether a specific child was sexually abused. It's hard. Yes, many times they cross the line. For example, lying by claiming that they are trying to provide diagnosis and treatment when they are really just trying to evade the hearsay and confrontation rules. I also think some investigastors assume abuse too early and lead the children to make false allegations.

All that said, I'm lucky that I have a clearly defined role in the system (to give the accused the benefit of the doubt). Deciding whether a sepecific child has been sexually abused is an awesome task. The child's testimony will often be vague and imprecise. Older kids can lie.

If you wrongly decide that a kid was not abused, the kid is denied the treatment and care that the kid needs. A child molester stays free, and you've increased the chance that the victimized kid will victimize others.

If you wrongly decide that a kid was abused, you've subjected the accused to the only thing worse than being sexually abused--defending himself against a false allegation of sexual abuse. You've wrongly forced a man from respectable society to a position of the lowest of the low. You've also sexualized the child by coercing him or her to say things no kid should say.

And the scary thing is, if you routinely handle child sex cases, you will eventually be wrong.

One possible solution is to rotate people in and out of handling these kinds of cases. It should not be your career. These cases gnaw on everyone who handles them.
6.22.2007 6:50am
Richard Aubrey (mail):
PD. I expect you're right. But if you find somebody who isn't gnawed down, maybe that person should find an entirely new field of endeavor.
6.22.2007 7:49am
M. Simon (mail) (www):
Fub says:

"Touch me again and I'll test your face's modulus of elasticity under compressive impulse load.

I'd be testing for the yield modulus myself. I'm interested in the non-linear part of the curve. I think a permanent elongation of 10% would be sufficient. However that could be adjusted up or down as circumstances require.
6.22.2007 7:58am
pete (mail) (www):
Public_Defender:

"Older kids can lie"

So can younger ones. Remember that most of the day care sexual abuse hysteria cases in the 80s revolved around kids aged 3-6 at the time of the supposed abuse.

My wife used to work for an agency a few years ago that helped kids who were suspected of being sexually abused with the pyschologist, doctor, police officer, social worker, and prosecuter all sharing the same office to make the process easier on the kid and the family since if the kid was abused they need to meet with all these different people. She did occasional intake interviews with familes and almost inevitably the abuse was committed by a blood relative, step-father, or by the mother's boyfriend. I don't think a single person in her office believed in recovered memories and they had a good procedure including chaperoned medical exams to try to determine if the child had been abused and tried to avoid suggestion.
6.22.2007 8:29am
Richard Aubrey (mail):
Fub and Simon.

Suppose you were that poor kid's father? Even supposing you weren't going to be Nifonged.

Getting my thumbs out of the doc's larynx might be difficult.
6.22.2007 8:29am
Henri Le Compte (mail):
Unfortunately, whenever you combine widespread ignorance (of a topic, like say, satanic child abuse), and political advantages (to, say, an aggressive prosecutor) you will invite this outcome. People get corrupted by power. People like to be on the "cutting edge," pioneers discovering something here-to-fore missed. People like to sanctimoniously denounce others. Not everyone, obviously, but enough to periodically produce these horrible fads that are somehow "too good to require proof."

I'll probably tick some of you off, but I'm afraid that global warming has the potential to be another one!
6.22.2007 8:46am
John Pepple (mail):
People here seem to be forgetting, or else they never knew, that science has been under attack for the last forty years by certain professors in the humanities. This includes some feminists. The ideas propounded by these people include the claims that objectivity is impossible, or even patriarchal, that scientific results merely reflect the biases of those in control of society and are not actually true, etc. One feminist declared that Newton's "Principia" was a rape manual. I believe these people are also suspicious of courtroom procedures, which they feel constrain them from reaching the verdicts they want reached.

I've always assumed it was under the influence of these ideas that lots of innocent people went to jail and that children were abused, not by the defendants, but by those who assumed they had been abused.
6.22.2007 8:48am
markm (mail):
M. Simon &Fub: Just how many engineers read the VC? And do any of the lawyers understand our posts?
6.22.2007 9:03am
whackjobbbb:

I'd be testing for the yield modulus myself. I'm interested in the non-linear part of the curve. I think a permanent elongation of 10% would be sufficient. However that could be adjusted up or down as circumstances require.


Simon, your suggestion to move well out into the non-linear portion of the curve is an excellent one, of course. And
when performing stress-strain analysis, I always recommend multiple trials, so as to generate a high-confidence dataset.
6.22.2007 10:27am
Deoxy (mail):
"It makes you wonder: if you wanted to get your jollies talking about sex with little children, what better job could you get?"

CPS. "Shild Protective Services". You know, the ones who put out th guideline saying never to leave your child alone with anyone, then come up to school without the parents' knowledge and perform a physical exam on two of their children ALONE in a room.

Did I mention that was done entirely on the 'evidence' of hearsay of hearsay? (No, not to my kids, but to a friend's.)

Yeah, a pedophile with half a brain would work for CPS; there's no accountability for those people... they are their own oversight.
6.22.2007 10:50am
Mr. Mandias (mail) (www):
<i>religion and other forms of superstition</i>

I don't think you have to smear all religious belief as superstition to discount so-called "recovered memories."
6.22.2007 11:07am
Philistine (mail):
I agree with Lizardbreath on this one--it sounds like it very well may have been a standard rape physical examination filtered through an 8 year-old's memory.

Maybe not, I suppose, but that was my thought reading it.

As a side note--does a parent generally have to consent to a minor's being subjected to a rape examination? Obviously it gets complicated where one or both parents are suspected of being directly or indirectly involved in the abuse--but in general?
6.22.2007 11:28am
Dave N (mail):
I want to make another point that I did not know about until fairly recently with child sexual abuse:

In the 1980s and 1990s there were many people testifying as experts who would testify about what they perceived to be trauma caused by sexual abuse--when in reality the genitalia was "normal."

I add the caveat that absence of evidence is not evidence of absence (that the lack of trauma does not mean that sexual abuse did not occur)--but Dr. Joyce Adams, a Clinical Professor of Pediatrics at the University of California, San Diego has testified regarding this change in the "science" (as have various local experts on child sexual abuse).
6.22.2007 12:02pm
Fub:
markm wrote:
M. Simon &Fub: Just how many engineers read the VC? And do any of the lawyers understand our posts?
The Conspirators themselves have very strong backgrounds in a variety of scientific and engineering disciplines. So I wouldn't be surprised that many in the peanut gallery do too.
6.22.2007 12:32pm
a midwestern pediatrician:
I do forensic sexual abuse exams for a local clinic, and I agree with LizardBreath's assessment: this sounds like an adult's memory of a traumatic rape exam; taking photographs and swabbing for evidence. The "glass tubes in the rectum" is actually a very gentle way of looking for tears in the anus: the bottom of a blood collection tube is pressed against the tissue to spread it without obscuring it. If an accusation has been made, I think the exam has to be done, though as gently and age-appropriately as possible.

That said, it is true that it has only been in the past 10 years that people have been systematically studying normal female prepubescent anatomy; before this doctors tended to diagnose abuse based on what they thought it "should" look like. There turns out to be a very wide range of , and things heal very quickly. One recent study of prepubescent girls who presented with known rape with bleeding, after 2 weeks, only 6% had any diagnostic findings.
6.22.2007 1:41pm
a midwestern pediatrician:
Oops; second to last sentence should read "There turns out to be a very wide range of normal--what is now called 'commonly seen in non-abused children'..."
6.22.2007 1:44pm
DavidBernstein (mail):
Midwestern, you have to read the whole context to get a full flavor of both how unnecessary this exam was, how abusive it was, and about the underlying quackery of what the doctor was looking for as sings of abuse. And as has been pointed out above, the doctor was not simply doing a medical exam for abuse, but setting himself up as the patients' adversary.
6.22.2007 2:44pm
Fub:
a midwestern pediatrician wrote:
I do forensic sexual abuse exams for a local clinic, and I agree with LizardBreath's assessment: this sounds like an adult's memory of a traumatic rape exam; ...

If an accusation has been made, I think the exam has to be done, though as gently and age-appropriately as possible.
I don't disagree -- if an accusation has been made by a victim. But in this case it wasn't. The examining physician made the accusation before he even examined the alleged victim.

From Prof. Bernstein's account above:
The story that most affected me was of an eight year old girl subjected to a particular "expert" physician's physical "test" for sexual abuse. The physician told the girl she had been molested. She denied it.
6.22.2007 2:57pm
ElizabethN (mail):
"M. Simon &Fub: Just how many engineers read the VC? And do any of the lawyers understand our posts?"

I have a Ph.D. in materials engineering and a J.D. - I understand you just fine.
6.22.2007 4:22pm
whackjobbbb:
Liz, I think you may be a rarity. I'm a little annoyed that the lawyer crowd is puzzled by a little elementary mechanics jargon. And this isn't the only technical area that you can continually find these guys weak on.
6.22.2007 6:24pm
Public_Defender (mail):
I give Professor Bernstein credit on consistency with junk science allegations. We criminal defense lawyers have been way too slow to pick up the Daubert cudgel. Based on a couple hours of a seminar and zero science, cops routinely testify that they are "experts" in gangs, criminal activity, forensics, drunk driving identification, etc.

On the topic of this thread, many if not most diagnoses of sexual abuse are based on hunches, not science (I've won a new trial for a guy whose conviction was based partly on a non-scientific "diagnosis" of sexual abuse.)

All that said, it looks like some who have posted here don't understand that some kids really are abused. And the system has to do its best to identify the guilty.

What we need is some real science on what demonstrates sexual abuse and what does not. We need to couple the science with a respect for the right of the defendant to confront his accuser.
6.22.2007 7:50pm
CLS (mail) (www):
It is said that since the context is false memories that one should not necessarily accept the account. It is critical to note the differences. If the victim had no memory of the incident, and then through theraphy remembered, it would most likely be a false memory. If she never forgot it would not be. The reality is that real abuse is not easily forgotten or easily repressed. True victims of abuse spend their lives wanting to forget.

I have not read this book but I followed the cases very closely. The fact is that children were told htey were abused, rewarded if they confirmed it and harassed if they denied it. After months of theraphy like that a child has memories installed.

Why does this happen? They abuse experts start out with an assumption that abuse has happened and that they must get the child to confess for the child’s own good. If a child says it happened, it did. If they deny it that probably means it did happen. They can’t be proven wrong. And once they know what has to be found it is just a matter of time before they get it.

I had an adult friend who almost got caught in this false memory issue through intensive theraphy. He told me he was Satanically abused. Only when I started questioning him did it become clear it was the therapist telling him this and reinterpreting his memories. He was convinced his brother had confirmed it by mentioning “a deep, dark family secret.” I challenged him to actually ask what that secret was. He was sure it was Satanism. He asked and the brother said: “You know, our mother’s affair.” He left that therapist and found another.

It should also be noted that with false memories when they are induced the children suffer the same mental trauma then that would have had the abuse really happened before.
6.23.2007 6:23pm
Clayton E. Cramer (mail) (www):

The reality is that real abuse is not easily forgotten or easily repressed.
At what age? Remember that even non-traumatic memories of small children fade rapidly. I don't find it hard to believe that a child of four might repress traumatic memories that a child of eight would remember well.
6.25.2007 12:39pm