Terry O'Gorman

Child sex abuse inquiry’s stance on recovered memories raises fears as report release nears

Earlier in the week Terry O'Gorman participated in an article with the Weekend Australian concerning the National Royal Commission into Child Sexual Abuse. The article is set out in full below:

The Weekend Australian, 2 December 2017

In January last year the Royal Commission into Institutional Responses to Child Sexual Abuse began a wide-ranging public investigation into the Church of England Boys Society, the Anglican Church’s equivalent of the Boy Scouts. On the fifth day of those hearings, in a courtroom of the Commonwealth Law Courts building in Hobart, a 63-year-old man known only as BYA entered the witness box and made disturbing allegations about a pedophile ring in the upper reaches of the South Australian CEBS.

BYA recalled that in 1967, as a shy and religiously inclined 15-year-old, he became leader of his local CEBS group in inner-suburban Adelaide. At about that time, he said, the chief commissioner of CEBS in South Australia, Bob Brandenburg, began sexually abusing him during sleepovers at Brandenburg’s house and on expeditions to look for campsites.

Between 1967 and 1971, BYA said, four other CEBS leaders from South Australia abused or sexually accosted him, including two branch governors and a district commissioner. The five men, he said, “were operating as some sort of group and perhaps exchanged information on which boys were vulnerable or approachable for sexual contact”.

Despite this, BYA remained active in the CEBS for six years after the abuse ended, becoming an assistant district commissioner and even inviting two of his alleged abusers to his wedding in 1974. The explanation for this came later in BYA’s testimony, when he revealed he had completely forgotten the sexual abuse for more than 40 years. It was only in 2010 — 11 years after Brandenburg’s highly publicised suicide while under police investigation for child abuse — that BYA began having “flashbacks” following a car accident, and sought the help of a psychologist and psychiatrist.

“I repressed all memories of this sexual abuse for many years,” he said.

Such long-forgotten memories of sexual abuse have been treated with extreme caution in the legal arena during the past 20 years. Numerous authorities have warn­ed that repressed memories recovered through counselling can be unreliable or even false; the Wood Royal Commission into the NSW Police Service in 1996, a Victorian Health Services Commission inquiry in 2005, the Australian Psychological Society and several appeals court judgments have urged caution when dealing with such memories. The National Health and Medical Research Council endorses the view that “in the absence of corroboration, it is not possible to unequivocally determine the validity of recovered memories”.

The current royal commission, headed by Justice Peter McClellan, has departed from this approach by accepting recovered-memory allegations without ques­tioning them. It’s a stance that highlights a broader issue about the commission’s work that may not be widely understood: its policy was to ask “minimal” questions of the approximately 8000 people who approached it with allegations, a gentle approach that in turn was taken up by the churches and other institutions that were accused. Virtually no cross-examination took place, and McClellan’s public statements — which refer to all 8000 claimants as “survivors” — suggest the inquiry accepted their evidence without requiring corroboration.

Asked by this newspaper whether that is the case, the royal commission says it has never made a finding of abuse without evidence of a “relevant conviction” but says its terms of reference do did not require it to “resolve any issue with respect to the evidence of most individual survivors”. “But for a few witnesses,” the statement says, “the evidence of individuals has not been challenged before the royal commission.”

This issue is now causing consternation among some lawyers and trauma experts as the royal commission prepares its final report and the spotlight shifts to paying compensation and prosecuting the approximately 2000 cases that have been referred to police.

Ian Coyle, a veteran forensic psychologist who assesses abuse claims for the courts and is an adjunct professor at University of Southern Queensland, says the royal commission appears to have adopted an uncritical and unscientific approach that could potentially blow out the cost of the compensation scheme and lead to failed prosecutions.

“I understand why the royal commission took a non-critical approach to these allegations,” says Coyle. “They simply did not have the skill set to vet all those people. I have no doubt the overwhelming majority of compensation claims will be genuine, but we have 8000 potential claimants plus an unknown number of others who may come forward, applying for payments of up to $150,000 each. It will require highly skilled staff to assess those claims. And a large number of these cases are being referred to the criminal justice system, where the standard of proof required is beyond reasonable doubt. The implications are beyond profound.”

Former NSW attorney-general Greg Smith, now a barrister in private practice, says the royal commission is offering “a pretty weak excuse” for failing to vet allegations. “I have been very concerned about the lack of cross-examination by the royal commission,” says Smith, who previously work­ed as a prosecutor and counsel assisting the NSW Independent Commission Against Cor­ruption.

“It’s all very well to say you are being compassionate and witnesses have been through enough, but where there is a so-called ‘target’ who is challenging the truth of the allegations there should be cross-examination, particularly with historical cases, whether it’s recovered memory or whatever.

“In cases like this there could be fabrications, there could be the promise or wish of future compensation … I very much feel sympathy for people who have been molested, but I’m concerned about the sorts of statements that are being made about people who have had no opportunity to cross-examine.”

Brisbane criminal lawyer Terry O’Gorman voices a broader concern about the royal commission’s recommendations for sweeping changes to court processes, such as restricting a defendant’s right to separate trials when facing multiple accusers. “I find it extremely worrying that the royal commission is proposing the most fundamental change in the balance between prosecution and defence in 100 years, based on the untested evidence of people whose allegations, by the commission’s own admission, were not subject to critical examination,” O’Gorman says.

Since its public hearings began in April 2013, the royal commission has been lauded for exposing systemic child sexual abuse in schools, orphanages and church organisations. Many institutions have acknowledged their failures, which included cover-ups and callous treatment of victims.

McClellan has said the commission adopted a policy of “minimal questioning” of the 8000 people who gave unsworn testimony in private sessions, to avoid re-traumatising them.

A lawyer representing the Catholic Church, Peter Gray SC, told the commission in 2015 the church groups “do not intend to question witnesses about the detail of their recollections of various events, even where, for instance, someone associated with a church party may have a different recollection of an event or conversation”.

O’Gorman points out that previous royal commissions did test the claims of witnesses, notably the 1990s inquiry by Justice James Wood that investigated allegations that NSW police had protected pedophiles. In his 1996 report, Wood specifically warned about the dangers of false and distorted claims of child abuse after he investigated reports of “satanic ritual abuse” made by adults and children undergoing counselling.

These apparently eyewitness accounts of pedophile crimes involving sacrificial child murders were so widespread that many government health bodies and sexual assault centres accepted them, and NSW Labor MP Franca Arena aired allegations that a NSW judge was a satanic axe murderer. Wood devoted two chapters to the phenomenon, concluding there was almost no supporting evidence and attributing it to the inappropriate questioning of young children, the recovered memories of adult therapy patients, the influence of media reports and the spread of conspiracy theories about pedophilia.

In a speech 11 years ago to a legal conference, McClellan himself warned that repressed memories could be false and that children were more susceptible to suggestion than adults. But the judge’s thinking on these issues appears to have shifted significantly. In September he told a psychotherapy conference some victims could forget their abuse entirely, saying he had been “somewhat startled” during private interview sessions with survivors to discover some had no memory of their abuse, even though the perpetrator had pleaded guilty.

Whether childhood sexual abuse can be blocked from consciousness, then remembered accurately years later, is a subject that has divided the psychiatric and psychology professions for decades. The satanic abuse scare in the 1980s and 90s discredited the theory, but many psychotherapists and social workers insist that children often “dissociate” when subjected to trauma, repressing events that can return decades later in the form of flashbacks. How accurate those memories are is hotly disputed, and memory researchers have shown it is surprisingly easy to contaminate people’s recollections with false informa­tion and suggestive questioning.

One royal commission witness whose recovered memories appeared to be corroborated was a former state ward from Victoria who testified that at age 50 he began remembering that he had been raped repeatedly in his youth by a staff member at a Salvation Army boys home, Bill Willemsen. After the former state ward went to police in 2005, Willemsen admitted molesting several boys and pleaded guilty, although he denied raping them.

On other occasions the commission has aired evidence of extensive crimes based on untested recovered memories. Last year a former state ward in his 60s testified in Newcastle that between the ages of 10 and 14 he was violently abused on a weekly or fortnightly basis by Anglican priest Peter Rushton, who on occasions cut his back with a knife while raping him. The witness said Rushton, who died in 2007, delivered him into the hands of other pedophiles who repeatedly raped him and other boys in a room at the St Alban’s Home for Boys, but he remembered none of this until 2010, after media reports prompted the church to acknowledge Rushton had been a child molester.

The royal commission did not question this testimony, or the evidence of BYA, the witness who recovered memories of being abused by five leaders of the South Australian CEBS. The commission’s interim report on the CEBS, released in May, details multiple instances of CEBS personnel in various states pleading guilty to child abuse offences, and describes BYA as one of the “survivors” of Brandenburg’s abuse. The report does not mention that BYA’s allegations were entirely based on repressed memories.

The royal commission insists that this is not a “finding of fact” about BYA’s evidence. “The royal commission has never made a finding of fact based on evidence of repressed memory,” it says in a statement. “The royal commission has never made a finding that a person has been abused by a named individual in the absence of a relevant conviction.”

John Agius SC, a Sydney criminal barrister who was counsel assisting the Wood royal commis­sion, says he would be “very surprised” if the commission accepted uncorroborated repressed memory evidence as reliable, particularly if it involved allegations from decades past. Agius says a key difficulty with recovered memories is that although they can be false or unreliable, the people experiencing them “are not lying and actually believe their recollections to be true”. “It’s an area where I would be much more cautious than the royal commission appears to be,” Agius says.

Coyle is strongly critical of the royal commission for accepting such testimony without cross-examination, and for endorsing the counselling practices of organisations such as Blue Knot Foundation, whose president, Cathy Kezelman, has written a book detailing her own recovered memories of ritualistic cult abuse.

In 2015, Kezelman appeared alongside McClellan when he addressed a Sydney conference of the International Society for the Study of Trauma and Dissociation, an organisation that played a key role in spreading satanic abuse claims in the 90s. Two of the ISSTD’s past presidents, psychiatrists Colin Ross and Bennett Braun, were sued by former patients who accused them of implanting false memories of satanic abuse, and Braun was stripped of his medical licence in Illinois.

Coyle says Blue Knot — one of many organisations that received government funding to counsel alleged victims testifying to the royal commission — is largely staffed by people with little or no forensic or clinical experience in psychology or psychiatry. He says the proposed compensation scheme will need to be staffed by far more highly qualified personnel or it will be “a disaster of such mammoth proportions that it will make the vocational education scheme pale into insignificance”.

The draft bill for the proposed redress scheme makes no mention of an evidentiary standard required but says compensation will be paid if there is a “reasonable likelihood” the claimant is eligible. The total cost of redress has been projected to reach $4 billion, including ongoing counselling ser­vices for abuse survivors, although how it will be administered and who contributes are yet to be determined. The West Australian government has already indicated it is reluctant to participate in the scheme as devised at present.

Within some church organisations there also have been murmurings of dissent about the royal commission’s methods. In a speech earlier this year to the Australian Lawyers Alliance, Jesuit priest and lawyer Frank Brennan criticised the royal commission’s report on alleged abuses in a Queensland orphanage, which he said singled out the Catholic Church for its lack of compassion “while remaining silent on the moral vice of all other participants including public servants”.

He said it was not the royal commission’s job to be judging whether the church lived up to its Christian principles, adding that “the commission will need to be very careful about taking on the mantle of royal commission infallibility and lecturing to the church about its structure, theology and doctrine”.

Among criminal lawyers there is widespread concern about the low standard of evidence the commission required, and its implications for the nearly 2000 cases that have been referred to police.

Greg Walsh, a Sydney solicitor who has represented many accused sex offenders, says dubious prosecutions are already emerging from the inquiry, citing two of his clients, both elderly and ailing former religious brothers who are charged with decades-old offences. One man is comatose and in palliative care, having already been deemed mentally unfit to face trial seven years ago on separate charges; the other is 85, suffers Parkinson’s disease and dementia, and already has served a jail term for indecent assault.

Walsh says he fails to see the public good in pursuing such cases and says the royal commission’s unquestioning acceptance of people’s allegations is creating an atmosphere in which the presump­tion of innocence is being jet­tisoned. “The public is being conditioned to accept that any allegation made by any complainant must be true,” he says. “But that can’t be right.”

O’Gorman says the royal commission’s use of the term survivor to describe anyone making allegations reflects an uncritical approach to its task of assessing whether institutions responded adequately to alleged offences.

He is particularly uneasy about the inquiry’s recommendations to curtail a number of defendants’ rights such as the option for separate trials when facing multiple accusers. He questions how the royal commission can assert that there have been a number of “unwarranted acquittals” in child sexual abuse cases given that its own testing of evidence was so limited.

“One of the extremely worrying things about the royal commission’s recommendations on the justice system is that they are based not only on contested academic evidence, including a mock-trial that was criticised for its methodology, but also on the untested allegations of people the commission calls ‘survivors’, who found the court process difficult,” says O’Gorman.

The royal commission, he adds, “has effectively been insulated from criticism by virtue of the fact that just about all the institutions that appeared before it gave their lawyers riding instructions not to cross-examine or take a critical approach.”

On December 15, the commission is scheduled to hand in its final report, more than five years after Julia Gillard as prime minister announced its formation. The commission, which is estimated to have cost $500 million, has generally not responded to specific criticisms of its work.

In September several senior figures in psychology — including Richard Bryant, director of the Traumatic Stress Clinic in Sydney — warned that the commission was endorsing counselling prac­tices and research findings that potentially could be harmful to the people it was set up to help.

McClellan has not responded to those criticisms, and the commission declined to allow anyone to be interviewed for this article, saying its approach was contained in its reports and public statements.

“Any finding made by the royal commission has followed a process whereby all relevant persons have had the opportunity to be represented and ask questions of witnesses,” the commission states. “Where witnesses made allegations against institutions in relation to their responses to com­plaints of child sexual abuse, these institutions have had the opportunity to be represented and challenge that evidence if they wish to do so.”

by Terry O'Gorman