The Christchurch Civic Crèche Case

Law Reform Index

Law of Evidence - Section 23G

The Press
September 4, 2003.


Civic Creche: Who can you really believe?
How valid is the evidence in the Civic Creche trial?

An inquiry is needed into the case
by Bernard Robertson

Bernard Robertson, editor of The New Zealand Law Journal and co-author of Interpreting Evidence: Evaluating Forensic Science in the Courtroom (John Wiley, UK 1995) and of Cross on Evidence (NZ ed)

Parents know that children are different. Their frame of reference is different, they have little understanding of the consequences of their actions, sometimes they are contrary, sometimes keen to please.

Yet in the early 1990s, the psychological mantra was "children never lie". Even if this is limited to saying that children never deliberately say something they know is untrue, parents know this is not right. Children will lie to stay out of trouble, or to receive a benefit.

The proper point in psychology was that for therapeutic purposes one takes what clients say at face value. One does not say "well that sounds nonsense to me, get a grip of yourself’. But to accept that what the client is saying is also an accurate reflection of reality is a leap of faith which has no justification. But this is precisely what psychologists, and less well-qualified people who call themselves "sex abuse counsellors” or whatever, did in the 1980s and ‘90s.

Sadly, psychologists are notoriously gullible. In controlled studies with prepared scripts, no psychologist ever detected a malingerer. The whole split-personality farce was just a case of clever psychopaths feeding psychologists what they wanted to hear. There has never been a proven instance of split personality but every psychologist wants to find one and publish articles about it.  This gullibility extended itself into fury at judges throwing out psychological evidence about children in court cases. The common law developed various ritual warnings that had to be given to juries in sexual offences and with child witnesses. No doubt these rituals confused juries and resulted in some wrongful acquittals. But in this area of the law as in others it is better that the guilty go free than that the innocent are convicted. It is not clear that psychologists accept that, however, and some of what  they and others are saying is dangerously close to saying that Peter Ellis and others must remain convicted so as to help with the therapy of undoubtedly disturbed people.

In the 1980s, evidence was given in court in sex abuse cases by half-trained counsellors and others which was rightly rejected by the Court of Appeal. It was rejected because it was illogical and did not prove what the witnesses seemed to think it proved. Rather than learn from the experience, the psychological lobby managed to get section 23G of the Evidence Act passed.

This enables psychologists to give evidence about all sorts of ill-defined things. In particular they can give evidence about whether a child’s behaviour is "compatible or incompatible" with sexual abuse.  This is meaningless. There is no behaviour which is incompatible with sexual abuse, so all of us, all the time, exhibit behaviour that is compatible with sexual abuse. "Compatible with" does not mean "evidence for" or "supporting" but  that is how surveys show lawyers,  police, and perhaps jurors understand it.

Despite the latitude which section 23G gives, it seems that psychologists are unable to stay within its bounds. Two recent Court of Appeal cases threw out evidence given by experienced witnesses who have given evidence in many other cases, one of them Dr Karen Zelas, who figured in the Christchurch creche case. Now, appeals represent only the tip of the iceberg.  Many people do not appeal even against convictions because they cannot afford it or because they want to put it behind them and get on with their lives. If an appeal case shows that a prominent psychological witness has misunderstood the boundaries of section 23G, then it seems to me that there should be an inquiry and a re-examination of cases in which that witness gave evidence, in order to ensure that the same errors were not committed in those cases.

This is why there needs to be an inquiry into the Peter Ellis case, and this is the reason why the establishment is vigorously resisting an inquiry. It is not just a matter of the guilt or innocence of Peter Ellis but of (among other things) the whole functioning of the judicial system and the role of psychologists in it.

The Court of Appeal in the 1980s believed that psychology would “grow as a science" and things would improve. Sadly, this will not happen. Psychology is not a science. It has no agreed theoretical foundation and after a century of floundering around has failed to come up with any general theory of human behaviour. The differences between schools of psychology are not about detail, they are about fundamentals.

Nor does psychology "grow". While physical sciences constantly refine and expand their understanding of the world, psychology is swept by new ideas which wipe out everything that went before. When the sex abuse diagnostic manual is revised it is completely rewritten and often contradicts what was in previous editions. Psychology is no nearer a general theory than it was 100 years ago.

Nor is psychology of much practical value. There is no evidence that counselling does any good, and plenty of evidence that it does harm. To the extent that talking to someone can be valuable for some people, no theoretical knowledge is required to make you a good listener. Most psychological problems come from brain chemistry and can be alleviated with drugs, diet, and exercise.  Evidence from controlled studies is that psychologists are no better at predicting future dangerousness than schoolchildren and secretaries.

Yet psychologists regularly give opinions which result in families being broken up, people going to jail, people being released from or kept in jail. This is a house of cards and the Ellis case is the card that could bring it all tumbling down.