Confronting precedent and prejudice

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Child Sexual Abuse in the Courts
By Dr. Jocelynne A. Scutt

Reproduced here with the Authors kind permission
From the Book Understanding and Managing Child Sexual Abuse
R. Kim Oates (ed) 1990
W.B. Saunders Harcourt Brace Jovanovich, Publishers.
No part of this article may be reproduced in any way without the express permission of the author.

"When no adult intervenes to acknowledge the reality of the abusive experience [that is sexual assault] or to fix responsibility on the offending adult there is a reinforcement of the child's tendency to deal with the trauma as an intrapsychic event and to incorporate a monstrous apparition of guilt, self-blame, pain and rage. Acceptance and validation are crucial to the psychological survival of the victim."
(R. Summit (1983) 'The Child Sexual Abuse Accommodation Syndrome' Child Abuse and Neglect 7, 177-193)

In 1860 Tardieu, Professor of Legal Medicine at the University of Paris, also Dean of the Faculty of Medicine and President of the Academy of Medicine in Paris, described as 'the most eminent representative of French legal medicine', published 'Etude medicolegale sur les sevices et mauvais traitement exerces sur des enfant' ('A Medicolegal Study of Cruelty and Brutal Treatment Inflicted on Children'), in the journal Annals d'hygiene publique et de medecine legale. Commenting upon the article, Jeffrey Masson in his book Freud: The Assault on Truth - Freud's Suppression of the Seduction Theory, writes:

"What Tardieu discovered, and what he had the courage to describe for the first time, in the precise terms of the legal physician working under the directions of a court of law, was the full range of abuses that adults, most often parents,' inflict on young and helpless children.(1)"

Masson also refers to Tardieti's book Etude medicolegale sur les attentats aux moeurs (A Medicolegal Study of Assaults on Decency) which recounts the frequency of sexual assaults on children, particularly girls of a young age. 'The book', writes Masson, 'in effect is about sexual abuse of children.(2) Abuse of girl children by fathers and brothers is recorded by Tardieu:

"What is even sadder is to see that ties of blood, far from constituting a barrier to these impardonable allurements, serve only too frequently to favour them. Fathers abuse their daughters, brothers abuse their sisters. These facts have been coming to my attention in increasing numbers. I can count twelve more cases since the last but one edition of this book.(3)"

Around this work, writes Masson, 'an entire literature sprang up and a tradition was established'.(4) From the beginning of October 1885 to the end of February 1886 the man who was later to become famous as founder of psychoanalysis, Sigmund Freud, studied under Tardieu and mixed in the circles developing a large body of research and writing about the realities of child sexual abuse.

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Child sexual abuse: Lies vs reality

In his early work, Freud bluntly acknowledged the truth about the sexual assault of young children, particularly girls. In 1896 when he published The Aetiology of Hysteria, Freud stated unequivocally:

"I therefore put forward the thesis that at the bottom of every case of hysteria there are one or more occurrences of premature sexual experiences, occurrences which belong to the earliest years of childhood.(5)"

Yet Sigmund Freud later repudiated this acknowledgement. His foundation for psychoanalysis rests upon the view that the patients (mostly women) he had coming to him exhibiting 'hysterical' features were victims of sexual fantasies and unmet desires. Jeffrey Masson asserts that when Freud found his earlier expressed version that women were telling the truth of sexual assaults and abuses by their fathers or other family members or family 'friends', and that it was this truth and its suppression which led to their later psychological, relationship and living difficulties was not well received by his peers, and particularly when his mentor, Wilhelm Fliess ignored or rebuffed his theory, Freud eventually succumbed; he reworked the theory. It was out of this reworking that the unrequitedness of desire for sexual activity with the father (or other family member, or family 'friend'), or indulgence in fantastical stories of consummation of that desire, became fixed. Ready in the first instance to acknowledge the reality of the sexual abuses from which women and some men suffer as children, on second thoughts Freud accepted the version palatable to the dominant culture of male adults. His career then burgeoned.

Simultaneously with Freud's repudiation, in England the newly developing discipline of sociology was finding in the lower socio-economic classes a vast field for research.(6) Just as Tardieu discovered that French fathers and brothers were responsible for sexual abuse of their children or sisters, in England it was found that lower socio-economic level fathers engaged in sexual activity with their daughters and (less often) their sons, and brothers did likewise with their sisters. This was attributed to the 'habit' of those families living in one room dwellings without sufficient space for each member of the family to sleep alone. Rather, their nightly arrangements 'led' to the incestuous activity, opined the 19thcentury sociologists.

It is useful to speculate upon the reason for the disjunctive nature of research and theorising at this time in England and Europe. While some sections of society, at least, were able to acknowledge the reality of child sexual abuse in the family, child sexual abuse was also seen as necessarily to be ignored, whether by simply refusing to accept complaints about its occurrence, or translating complaints into attention seeking behaviour and fantasy. Possibly class as well as patriarchal ideals led to the dichotomy and eventually resulted in incest being relegated again to the category of matters not spoken of. Importantly, the work of Tardieu and others in the field in France began (and mostly remained) with observation of those in the lower socio-economic strata: men with economic resources and status were less likely to have their sexually abused and brutalised children end in the morgue, there being other, less obvious, ways of dealing with the dead children of the upper reaches of society. In Britain even today research is more likely to be carried out on the poor, on those coming into contact with welfare agencies, and those who have fewer resources to deflect researchers away.(7) In the 19thcentury, it would have been astonishing for sociological research to be conducted amongst the 'upper crust'. Freud's retreat from truth was no doubt influenced by the class of his patients' fathers and family friends: of course his work was far more disruptive than that of Tardieu and his colleagues in Europe, and of the sociologists working amongst the poor in England: to accuse the fathers of daughters born into the middle and upper classes of sexually abusing those daughters or their daughters' friends was hardly likely to meet with acclaim. And in saving these men from the truth of their abusive activities by labelling their daughters' and friends' daughters' untruthful, men in the lower socio-economic strata were simultaneously likely to be presented with an escape route. For men in the lower socio-economic strata who abused their daughters or friends' daughters, the patriarchal response of 'she's making it all up' assisted in concealment, they being joined together in the cover up manufactured for upper and middle class men.

Thus, at the end of the 19thcentury in medical and sociological circles there was an acknowledgement, by various members, of child sexual abuse within families. In the world of clinicians concerned with the mind, Freud initially acknowledged the truth. But those exercising control were not ready to accept the reality of child sexual abuse in the upper socio-economic levels. The abuse therefore became 'fantasy'. Clinical arguments in favour of the fantastical nature of allegations by children of sexual assault (or allegations by their mothers of sexual assault of the children by their fathers) then provided a rationale by which all men were able to escape from the truth of their abusive activities except for a very few who could be cited as the exceptions proving the rule, that fathers do not rape and otherwise sexually abuse and exploit their daughters (or sons).

From the 1890s to the early part of the 20th century, another development affected attitudes toward sexual abuse of children by their fathers, other relatives, or friends of the family. In Britain and elsewhere Havelock Ellis, Iwan Bloch and August Forel 'founded' the new 'science' of sexology. This movement has been paraded traditionally as promoting healthy attitudes towards sexual activity. The traditional view is open to criticism.(8) Apart from general problems with the position of these theorists such as the biological determinism underlying the sexologists' writings specific difficulties arise in terms of incest. The sexologists' approach was one of acceptance that sometimes, at least, older family members might 'engage' in sexual activity with their children, nieces, nephews or other young relatives, but that this had a positive (or, at minimum, a neutral) effect upon the recipient of these attentions. Any negative results of such activity arose, in the sexologists' view, from the reactions of those discovering it, rather than from the activity itself.(9)

So, at the end of the 19th century and into the 20th century, two positions, diametrically opposed, were adopted. The first, that child sexual abuse did not happen; that it was fantastical, and the results of desires harboured by young girls for their fathers (or father figure); and that severe psychological trauma could often result from the girls' desire, lack of fulfilment, and the imaginings surrounding this. The second position was that fathers or uncles, brothers, or others closely associated with family did engage in sexual activity with their young female (sometimes male) relatives or family members., that this was for the positive good of the youngsters, or at least did them no harm; that harm results solely from intervention and the attitudes and actions of the interveners. The third position that child sexual abuse does occur, and that the doing of it creates real problems and harms for the children involved (physical as well as psychological)was not a part of dominant ideology at this time (although certainly some voices protested that this was the truth);(10) it had yet to be developed fully, although the reality of the activity and its harm were experienced by too many children in too many families.

Today, a return to the truth is occurring in a more broadly based way than was so in the 19th century. But the difference between the late 19th century approach and that of the late 20th century is that the sociologists, psychologists and psychiatrists, and other health professionals are (hopefully) being united in their acknowledgement of the truth. In the main, it is the work of feminists in various fields which has succeeded in bringing together the 19th century sociologists' view that incest occurs amongst the 'lower classes' with the Freudian experience and original acknowledgement that it occurs also amongst the middle and upper classes. The class issue has been cast aside in the face of research now showing that sexual abuse of children is not a class based, nor class biased, event: sexual abuse of children crosses class lines as well as ethnic, racial and other groupings."(11) The idea that 'incest trauma' is manufactured by the victims is equally repudiated by work, initiated in the main by women: women began listening to other women, and acknowledging the truth of the women's voices. This truth is now being accepted (albeit with some lingering reluctance on the part of some disciplines, and some individuals) in the dominant culture.(12)

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Legal 'reality' and child sexual abuse

Yet where do the courts stand in all this? Long before Sigmund Freud, the common law of England adopted the idea that allegations of sexual interference or rape should be treated differently from all other allegations of crime. Mathew Hale writing in the 17th century and regarded then and now as possessing a legal mind of the highest order, was obsessed with the idea that woman's word and girls' words - are not to be trusted where rape and other sexual offences are in question. In Chief Justice Hale's view the jury in a rape trial should be admonished to 'scrutinize the evidence of the Complainant [the woman or girl alleging rape] carefully'. The jury should be warned of the dangers of convicting an accused of rape where the evidence of a complainant is not corroborated by some other evidence.

In Hale's Pleas of the Crown it is stated that the nature of the crime of rape that it involves sexual activity between male and female is such as to promote that crime into the realm of the 'special':

"[We must] be the more cautious upon trials of offences of this nature, wherein the court and jury may with so much ease be imposed upon without great care and vigilance, the heinousness of the offence many times transporting the judge and. the jury with so much indignation, that they are over hastily carried to the conviction of the person accused thereof, by the confident testimony sometimes of malicious and false witness.(13)"

Although some suggestion has been made (14) that 'offences of this nature' includes sex crimes other than those involving only female victims, the 'malicious and false witnesses' most often alluded to in the treatises on criminal law, and in the reported cases, are of the female sex. The view appears to have been that disappointed, thwarted or simply neurotic women must be diligently guarded against in the sphere of sexual offence allegations. Girls with ideas advanced beyond their years are also a risk. These women and girls must be guarded against, and the role of the law, in the eyes of Hale and his adherents, is to effect this guard:

"It is true that rape is a most detestable crime, and therefore ought fairly and impartially to be punished with death; but it must be remembered that it is an accusation easily to be made and hard to be proved and harder to be defended by the party accused, though never so innocent.(15)"

Yet upon what grounds did Hale and his many confreres, over the centuries base his view of women and children as liars in allegations of rape and other sexual offences? The one case to which he refers as relevant in his treatise, and solely upon which he bases his thesis, is that of a young girl said to have accused a neighbour of rape. Hale reports that when the case came before his court, he averted a wrongful conviction by having a physical examination done of the accused. The accused was thereby revealed as suffering from a physical disability a growth or possible prostate gland malfunction which, in Hale's view, precluded him from being physically capable of carrying out the act of rape attributed to him. Yet even if Hale's assessment was correct, this does not necessarily mean the girl was lying. It might well be that she was victim of sexual interference of some nature by the man, not amounting to full intercourse. It is not difficult to conjure up a wholly feasible set of circumstances where the girl is accused wrongly of crying, rape', whereas her complaint has been of another sexual interference than conventional rape, as a completed act. A child's understanding of language need not equate to her understating of what has been done to her, physically. (16)

Much later, in the USA Wigmore on Evidence resorted to an even greater subterfuge (one that is both evident and obvious) in using two case reports to illustrate his thesis of pathological lying in children accusing others of sexual molestation.(17) Herman reports that Wigmore, in telling of the cases, omitted to cite clinical reports documenting that the seven and nine-year-old girls involved, who alleged incest, had vaginal infections: the seven-year-old was suffering from gonorrhoea; the vagina of the nine-year-old was inflamed and swollen.(18)

Wigmore also resorts to pejorative language to bolster his view of girls and women as untruthful. Karl Menninger is cited as saying 'fantasies of being raped are exceedingly common in women, indeed one may almost say they are probably universal' yet this statement is accompanied by no backup; it must be taken on trust alone.(19) Otto Monkmoller is quoted as authority, stating that a complainant in a rape case will show her falsity where she exhibits an 'intensely erotic propensity ... in [a] wanton facial expression.... sensuous motions, and manner of speech'. However, deceit may also be concealed by 'a Madonna - like countenance that such a girl can readily assume ... [a] convincing upturn of the eye, with which she seeks to strengthen her credibility'. Deceit of this type is apparently sex - linked, as illustrated by the case referred to by Wigmore, when a young girl alleged an act of incest by her brother, yet the 'character sustained by the brother ... was quite out of keeping with the grave accusations against him' no accompanying suggestion by Wigmore that a male person guilty of the crime of incest might seek to strengthen his credibility by assuming an innocent pose; no suggestion that a child sex-abuser might dissimulate.

Wigmore further cites Lorenz in support of the fictional nature of women's and girls' stories of rape and sexual abuse. Thus 'hysterical girls ... living through fantastic sex dramas' appear in the pages of this 'learned' tome; so, too, does the case of those women whose sex urge is 'strongly developed' so that 'if some man comes within their vicinity, they may dally with a secret wish to have some sex relation with him, and then his most harmless conduct is transformed by these sex-imaginative witnesses into acts which charge him as a criminal'; and the 'erotic imagination of an abnormal child of attractive appearance may send an innocent man to the penitentiary for life'. For the male sex, perhaps inevitably we are to accept that 'this particular sex-disposition plays a far smaller part'. Wigmore was so in awe of women's power to conceal, deceive and lie, and in fear of men being 'unjustly' treated by the courts, that he firmly concluded that no judge 'should ever let a sex offence charge go to the jury unless the female complainant's social history and mental make-up have been examined and testified to by a qualified physician'.(20)

The writings of these two 'eminent' lawyers, Hale and Wigmore, continue to found the jurisprudential approach to sexual offences, and particularly those offences involving children and women. Glanville Williams, highly regarded in English and Australian jurisprudential and criminal law circles, in his Text Book of Criminal Law" promotes the ideology that women are untruthful in the course of sexual interactions as well as during interrogation and court proceedings. The basis is that a woman says 'no' during a sexual encounter although she 'really' means 'yes'; alternatively, that while she may in fact be saying 'no', because she fails in communication, the man innocently acknowledges that 'no' as 'yes'. Thus is the onus placed on the woman to make clear beyond any (un)reasonable doubt, to a man who makes a choice not to hear, that she does not want the 'sexual attention' the man is bestowing upon her.

Glanville Williams presents the problem with masterful contradiction. At the outset of Chapter 8 in the Text Book, headed 'Sexual Aggression', he quotes Katherine Whitelaw, journalist, as saying:

"The freedom to reject or accept a man's advances is the most fundamental [freedom] a woman can have."

Then, on page 197 of that same chapter, Williams displays a certain confusion:

"That some women enjoy fantasies of being raped is well authenticated, and they may welcome a masterful advance while putting up a token resistance."

His 'authentication'? The homily:

"A little still she strove and much repented and whispering 'I will ne're consent', consented."

Williams condones this view by going on to say:

"This possibility needs consideration where the man was well known to the victim and where it is clear that she was not intimidated."(21)

Yet there's the rub: most women who are raped, are victims of men whom they know, men with whom they are acquainted. Research in Australia and elsewhere clearly shows this.(22) In sexual molestation, rape and exploitation of children by family members, acquaintances or 'friends', this is the very essence of the crime. (And what woman is not socialised to be intimidated by men?)

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Entrenching unreality in the legal system

Today, the legal system is having, and could be predicted to have, the most difficult time of all disciplines and institutions in adjusting to current acknowledgement of child sexual abuse as real. This difficulty arises out of the theoretical orientation of the legal system itself, and out of the practical operation of the system. The theoretical problems lie in rules growing up in the common law system of England, transported to Australia, North America, and other dominions. The practical problems lie in the practice founded on these rules.

Rules were laid down centuries ago which enshrined male beliefs of women's frailty. Hale's dicta became entrenched, so that in every case where a woman or child gave evidence of a sexual crime against them, the judge was under a mandatory obligation to warn the jury that they should not convict, or should be wary of doing so, without other evidence.(23) This latter proviso constitutes what is termed the 'corroboration rule in rape'. The lack of any corroborative evidence does not mean a jury lacks the power to bring in a verdict of guilty. However, it is held that where a corroboration warning has not been given to the jury, a verdict of guilty may be set aside.(24) A second traditional rule provided that if a victim did not complain promptly of the sexual abuse, then it was highly likely she was lying and not a victim.(25) At the same time, it was established that if the woman or child did complain promptly, this was no evidence that she was in fact a victim of rape or other sexual abuse; rather, it was evidence only that she had made a prompt complaint.

The legal system further provided that any and all 'evidence' which might alone consist of allegations with no substance of the woman or child's sexual history could be put before the jury to show that the alleged victim was promiscuous and therefore not raped (although at least in theory a prostitute or concubine was said to be a person to be protected by law from rape); and/or that her word was not to be trusted: the law quite clearly gave its imprimatur to the view that women's and girls' capacity for veracity is intimately linked with their sexuality or sexual activities.(26)

These standards were purportedly introduced to effect 'balance' in the system. As a general rule, they exist only in relation to sexual crimes, and in the main to sexual crimes against women and girls.(27) Yet when viewed against the reality of these crimes (which is only now being fully recognised in other disciplines) rather than balancing the rights of accused and complainant, they create a serious imbalance in favour of the accused. These imbalances exist in conjunction with biases already existing throughout the legal system: namely, that it is a system devised by men as judges and magistrates; ruled over by (now mainly) men as judges and magistrates; and operated (now mainly) by men as magistrates, judges and lawyers.(28)

The legal system also has an inbuilt guard against embracing contemporary notions of reality in the doctrine of precedent. Lawyers are trained to regard the decisions of the past as giving guidance for present cases. Where, as in the case of rape and sexual assault, precedents are based on false assumptions, false suppositions about women and children's veracity, and about men's overriding innocence in the face of accusations about rape and child sexual assault, little wonder it is difficult for lawyers, magistrates, judges, and the legal system as a whole to ascend out of a false history and into a less prejudiced present.

The legal system further professes to be neutral, unbiased, free of ideology. Judge and magistrate are alleged to give decisions in the absence of presuppositions or bias. In a contemporary world which acknowledges bias in the support of the status quo, which recognises that objectivity is the word given to male subjectivity, and that laws and legal decisions are based clearly in ideology and are political, it is evident that those trained in the conventional way will find difficulty in acknowledging the lack of neutrality in the legal system and in their own actions within it.(29)

In addition, the legal system is hampered in its dealings with child sexual assault as the system continually confirms a falsehood about child sexual assault, which is already discounted in other disciplines. That is, courts are confronted daily with offenders and accused persons from the lower economic strata. Those from higher levels rarely appear in the criminal courts, whatever their real life participation in criminal activity of various sorts.(30) Thus, although it is now clear beyond doubt that some middle class men exploit their children sexually just as some men of other class identity or origin do, the legal system is not designed to accommodate this reality. Discretion operates at every level to eliminate the middle class father from the ranks of fathers, or friends of fathers, who appear before judges and magistrates on incest or child sexual molestation charges: where a few men do appear on incest charges, these are almost invariably not from middle class backgrounds.

The courts seem most frequently to adhere to the oldest belief: namely, that incest (or rape) does not happen, and that because it does not happen, girls and women are likely to suffer from fantasies that it does. Sometimes courts are capable of accepting another view but the view adhered to is that of the early 20th century sexologists, not that of the 1980s. A headline may appear in a daily newspaper following a prosecution for incest, inferring that the crime is not of great moment; that the activity is not harmful to the child, girl or young woman; that the 'best' solution is to downplay authoritative intervention. Thus on 11 November 1982 the Sydney Morning Herald ran a story under the banner: 'Emphasis on rehabilitating the family appeal over incest sentence dismissed.' The case involved a man sentenced to a bond of 18 months where he has sexually interfered with his daughter. At the time of the sentence, the daughter was 16 years of age, and it was inferred by the court that this meant the crime was relatively unproblematic and warranted only a minor sentence. Yet even if it were true that the fact that the girl had reached the legal age at which she could consent to sexual intercourse should have an effect upon the sentence and should alter the severity of the crime (and many reasons could be found to contest this position), the girl had been 14 (and below the age of consent) when, to the knowledge of the court, the incestuous activity began.

A similar position was taken in Western Australia where in 1984 the Supreme Court considered that a change had taken place in community standards about incest, warranting the 'welfare approach' with the 1 protection of the family' taking precedence over deterrence. In R v. Boyd (31) the man was aged 35 at the time of the offence. He went to his daughter's bedroom following an argument with his wife, and after his wife had left the house. Naked, he climbed into this daughter's bed and had full intercourse with her. The daughter was aged nine years.

She immediately complained to her mother, but no formal complaint was made until almost three weeks later when she was medically examined and her father was interviewed by the police. The report of the case provides:

"Medically the child was found to be a fit looking nine year old girl with no evidence of secondary sexual development. She had no bruises of any kind but it was noted that the hymen was found to be torn. The respondent voluntarily confessed to having indecently dealt with his daughter some five or six times before the act of full intercourse took place."(32)

Comments in the judgements reveal too well the problems experienced by courts in cases of this type, particularly those arising out of failure to acknowledge the realities of child sexual abuse, and the biases existing within the legal system which support fallacious views of incest. Thus, there is considerable emphasis throughout the judgements upon the wife's role to her detriment; this shows an inability to recognise that women have a right to participate in the paid workforce and to engage in various activities, without fearing that their husbands will use their absence as an opportunity to rape their daughters; there is also a stress upon lack of any harm to girls who have been raped by their fathers. One judge, commenting upon the evidence before the trial judge, stated:

"... for some time prior to the commission of the crime the respondent's marriage had been under some strain. This was brought about by a combination of the long working hours and the respondent drinking to excess during his short leisure time, together with the further fact that his wife was working six days a week at the hotel at Nyabing for four hours each day. In addition, Mrs Boyd had numerous sporting and social commitments, played golf and was in charge of catering at the golf club. She ran dart and pool competitions at the hotel and was the lady president at the bowling club. It is not surprising that she was often out of the home when the respondent returned there ..."(33)

There is no suggestion that Ms Boyd may have been forced by financial necessity to take on her paid work and organising role although it is acknowledged that the family was 'experiencing financial difficulty as the result of which debts mounted and recovery proceedings became common'. (Of course, whatever the motive for the wife's activities, these are hardly relevant to, or absolution of, the fact that her husband is responsible for the crime he has committed namely, the sexual exploitation and abuse of his daughter.) The judge went on to comment that the position in terms of the family's living arrangements 'seems to be that not infrequently encountered where one of the partners of the marriage is very much an extrovert to the detriment of her home and the other an introvert with few friends and immersed in his employment'. (He is 'immersed in his employment', she engaging in work 'to the detriment of her home'.)

The court went on to say that 'the child did not appear traumatised by her experience' and that 'there is no evidence that she was fearful of her father'.(34) The court accepted 'nevertheless she must have experienced pain when the crime was committed' and added that it 'goes without saying that no one can be sure of the emotional effect upon the child at this stage.' However, these remarks are inadequate in view of the evidence of the Crown Prosecutor (and further evidence should surely have been called for, of an expert nature, to inform the obviously unaware court of the reality of incest for its victims) who said:

"From the papers it can be seen that the complainant was virtually at the mercy of the prisoner on many occasions although the prisoner has been charged with only one instance of/the offence."

"The reports and my learned friend seem to indicate that the Complainant appears not to have suffered any trauma as a result of the offence, however, I think it can be seen from the papers that the Complainant was experiencing at least some physical pain and, it would seem, some emotional stress by the way in which the complainant tried to explain to her mother and the social worker exactly what had taken place. When asked whether she suffered any pain she replied that she had.(35)"

One judge considered the man almost to be an exemplary father:

"The learned trial judge was fully appreciative of the family problem before him. Apart from his abuse of his daughter, which he now sincerely regrets, it cannot be said that the respondent is a bad father or husband. Indeed the contrary can be said, apart from the extent to which he failed to understand his wife's desires, but that from the evidence appears to have been a mutual fault ... "(36)

A three year sentence, with five months' non-parole period, the appeal court considered to be perfectly adequate, it being opined that the community would

"...receive little service from an extended term of imprisonment which might have the effect of destroying the possibility of this family overcoming the disruption caused to it by the commission of this offence. Indeed, the interests of the community are better served by a sentence which retains the possibility of this family being kept together as a unit."(37)

In addition to having an early 20thcentury sexologists' view of the effects of incest upon its victims, the court retained the working class analysis of the 19thcentury sociologists:

"I [am] of the opinion, as I believe modern research reveals, that those who commit the crime are mentally ill, backward, the product of poverty, isolation and marital unhappiness."(38)

Although the father concerned was a work supervisor (not, say, an unskilled labourer), and despite the debts the family was acknowledged to have a relatively substantial income, a second judge similarly accepted the 19thcentury view, citing in support a report of the Parole Board of the United Kingdom, published in 1968:

"Occurring as it [incest] does in disturbed families, often living in poor circumstances, and where the common father/daughter situation is a reflection of poor marital relationships, and of inadequacy in the father's sexual relationship with his wife, incest often calls for a welfare rather than a penological approach. The protection of children has been the first consideration, but provided that this is assured the Board has been prepared to consider parole in these cases."(39)

Commenting upon this conclusion of the report, the judge stated he would agree with the summation

'in so far as it described circumstances in which the crime of incest has occurred, and indeed in some respects the background of this case indicates that some of those circumstances were present here ...'(40)

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Current approaches to 'improve' justice in child sexual abuse

In response to the inadequacies of the legal system, three different approaches are put forward:

"Eliminating the legal system altogether by diverting child sexual abuse and incest cases into non-legal avenues to be dealt with by social workers, counsellors and the like.
Eliminating the criminal justice system from the field, dealing with child sexual abuse and incest cases through the children's court and/or family court system.

Changing the criminal justice system so that it is apparently better able to accommodate child sexual abuse and incest cases."

The problem with the first two approaches is that they are too often proposed as 'answers' to child sexual abuse or incest, and are most frequently projected in isolation from any role the criminal justice system might play. Each is often put forward as an exclusive answer, an answer in itself. The criminal justice system is seen as irrelevant, detrimental and wrong. But how valuable in themselves is each of these two approaches, and what of current proposals relating to the criminal justice system?

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Diversion from the legal system

Counselling is being portrayed, almost without exception, as the universal panacea.(41) Yet alone it offers little assistance to the child sexually abused. For the offender, who is nearly always male, it can merely serve to confirm him or her in his or her view of himself or herself having a right to sexually abuse, and being in control and exercising power over his or her victim as well as others, sometimes even the counsellors. And although there is a growing recognition amongst social workers, psychologists and others in the counselling professions, of the reality and truth of child sexual abuse, it remains true that not all counsellors and associated professionals have absorbed the critique of the past or have developed faculties critical of the once prevailing view of the child as untruthful, the perpetrator as misunderstood or maligned. And those professionals who are attuned to reality labour against odds in seeking to have the perpetrator accept responsibility for his or her own actions, particularly if the legal system sidesteps the issue by sending a man or woman off to counselling without confronting him or her with the inescapable assessment of his or her actions as 'wrong' as an offence against laws condemning child sexual abuse and exploitation.

This is illustrated by the case of Roseanne Taylor, of Bundoora, who writes:

"I have had the tragic experience recently ... of discovering first hand (and I mean first hand, as I was the person who discovered my husband 'in the act' . . .) that this shocking situation belonged not just to families one reads about and hears discussed on TV, but was right here in my own family ..."

"Being the Xmas holiday break, everything was closed for holidays, and for two weeks I had no help, and no one to turn to for advice, and as you can imagine, my husband was denying everything, and blaming the females of his family for 'blabber-mouthing'."

"When I finally got to Marriage Guidance, and eventually also to the Queen Victoria Family Psychology Clinic, and also spoke to a clinical psychologist, they all told me that there is NO cure, nor any effective therapy for the conditions of 'paedophilia' or 'incest'. EVEN THOUGH they have 'patients' who have been ordered by the courts to attend them regularly. They admitted to me that they really don't know what to do with these 'patients' whom the courts have 'washed their hands of' in complete satisfaction that they have been either cured or penalised by being forced to attend for 'therapy'."(42)

Roseanne Taylor continues:

"After three and a half months of 'counselling' I finally saw that the only person who would make my husband really look at himself and his problem was myself, and that the only way to do that was to be courageous enough to show him that there are some things that decent women do NOT tolerate, and ask for a separation. I could see that my husband considered that he was only a spectator to the counselling and the problem was not his, but mine."

Her analysis of the problem is appropriate and evidence of similar experiences and like responses is not difficult to find. An Australia wide study (between 1978 and 1982) of all forms of physical, psychological and sex abuses within the family, and consisting of 312 families, encountered similar problems for children and their mothers following child sexual abuse.(43) When children grew up and sought counselling as adults the absolution from responsibility, of their fathers as abusers, continued. Victims (and their mothers) went to family counsellors, marriage guidance counsellors, psychologists and social workers, to be met by a like response. Invariably the family unit philosophy was upheld, emphasis being placed on the right of a father to 'control' his brood (even by sexual exploitation), and the need for children to' subdue their spirits' and 'keep in their place'. As an adult, one survivor of child sexual abuse wrote:

"In later life I went to my minister for help. He said I had to be understanding of my father and of men's sexual needs. He said that little girls are often sexual and provocative and invite sexual attention from men. He made me feel more guilty than ever, so I shut it away until we all found out about my father and his grandchildren. They were only little and not 'provocative'. This now makes me realise that our minister was wrong and only protecting another man and not caning about me when I was the one seeking help!"

Doctors had a similar counselling approach condoning the abuse. One child was molested by her pensioner grandfather. When she complained to her parents and the abuse was acknowledged by other family members it was found that earlier, as a father with a fulltime profession, the man had molested one of his daughters. Consulting a doctor 'after much doubt' was found to be of 'not much help':

"He only told us to accept the situation. He said it was a common occurrence, just don't leave her alone with him. He had a general acceptance that it's been going on for years Australia wide, and who were we to get upset. He had the attitude that we were overreacting when we even mentioned in passing the possibility of court action. The doctor gave no acknowledgement that it was criminal in any way. His reaction was that we should warn the other parents of females (girls) in the family, which we did. That's when we learnt that he had abused his youngest daughter.
I had never known this and if I had would have never left her alone with him. But my youngest sister's fright and guilt stopped her from saying anything. I feel there has been a massive cover-up. We have never reacted outwardly to my father, so outwardly there is no change and he doesn't even know we have consulted a doctor. Now I am very unsure of whether we did the right thing. My daughter seems to have hate for him and the feeling that we should have exposed him. It has made her particularly angry with me, but we are able to talk about it like reasonable human beings. I do not think the doctor's advice was right, but it is some years ago now and too late to do anything."

Counsellors of this persuasion serve only to contribute to the criminal activity of fathers or other relatives against children, by enforcing a view of the family unit wherein fathers (and other authority figures such as grandfather or stepfather) can do no wrong, and whatever occurs within it, the unit must be kept together. Too often, in addition to concealing, approving and even promoting sexual abuse of a child by her father, such counselling behaviour renders vulnerable to sexual exploitation and abuse further generations of children the grandchildren and great grandchildren of the father who remains in the family to force his exploitive attentions upon the children and grandchildren of his earlier exploited and abused daughter.

So too does the 'counselling by negotiation' route adopted in some instances, and even as a preferred policy, in New South Wales, Western Australia, Queensland, and Tasmania. Duplication is kept 'to a minimum'; crises, are 'solved by negotiation rather than by litigation'.(44) Again, the perpetrator who escapes judicial recognition of his act as illegal can continue to ignore or brush aside counselling as an annoyance that simply must be endured. Without a clear backing by the legal system supporting laws that on their face do not condone sexual abuse and exploitation of children, counselling (like 'education') is only too likely to fall on deaf ears or to be incorporated as 'support' into the mindset of the perpetrator who believes (or tells himself) he has done nothing wrong.

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Family Court/Children's Court

Similarly the problem with adopting the Family Court or Children's Court route as a sole 'solution' is that it does not assist the aggressor to confront directly the violence, exploitation and abuse in which he has engaged. It diverts a problem with criminal dimensions, demanding recognition, into a wholly civilly orientated jurisdiction. A criminal jurisdiction is designed to state clearly the 'wrongness' of criminal activity. Civil jurisdictions have other purposes. In the Family Court, the issues addressed are who has (or should have) custody, what are the terms of access. Without a clear finding that the father has sexually abused his child or children, the court has problems in coming to grips with the need to support the child's right not to be exploited.(45) As one woman writes of her interaction with the Family Court.

"My son was abused as a baby to the age of four years, at which time my husband was accused of sexually assaulting the little girl across the road and I found at the time he had been in jail for this and many other sexual charges against children. On being released on probation he openly continued to abuse our son and I finally caught him in the act and left our home to live in a refuge. Over the last two and a half years the things I have found most distressing when you are in this situation are:

• the attitude of the police
• the reaction of many people, including family and friends
• the unbelievable ideas of the Family ... Court; that these people can tell you after all you have been through and all you are going to have to go through [that] your husband has the right to access and that these men are allowed access and in how many cases are the children abused again; who pays for this - not the judge, not the husband, but the child
• the waiting time to have these access cases heard in the Family ... Court is amazing; I have been waiting two and a half years to have the case heard knowing at the end whenever it may be the judge could make it go either way
• the fact that on first visit by the family law counsellor the child is mentally unfit to handle access ... so the mother continues to drag the child to Redbank, Westmead Hospital for a couple of years, goes through hell with his mood changes, nightmares, withdrawal, depression, anxiety, low self-esteem etc; get him feeling better and then the court says great he is feeling better lets send him back with his Daddy for a visit, don't worry that Mum is at home going insane with worry about him and what the psychologist has said about him regressing again.

"I watch in amazement as these children are allowed to suffer ... "(46)

The difficulty confronted by the Family Court is revealed in a study by the Women's Legal Centre of New South Wales which found that in no case where child sexual abuse was raised by the custodial parent as a problem on the part of the access parent, was access refused.(47)

Access can be ordered with supervision. But cases of this sort highlight the inadequacy some might say foolishness of existing policy. For example, in one case coming before the Family Court in an Australian jurisdiction, the mother put forward evidence of the father's sexual abuse of the child. The court figuratively rapped her over the knuckles, denying that her story was true. Yet access, when awarded, was ordered to be supervised by the man's own mother. The child now has to fly several times a year from a state in which she is living with her mother, to the state in which the father resides, for supervised access.(48) Clearly the court, although outwardly denying the mother's claim, also accepted it why else would supervised access be ordered? It is no argument to say the ruling was made 'to put the mother's mind at rest' although there was (in the court's view) no truth in the allegations. This would be an abuse of the court's authority and a misuse of its powers. The principle relating to custody and access is that what is in the best interests of the child (or children) should be followed. To pander to what the court sees as a figment of the mother's imagination can hardly be said to be in the child's best interests.

What was the purpose of denying the mother's (and child's) truth? Fear of offending the father? This again highlights the difficulty. Men who sexually abuse their children will not be diverted from doing so when they learn the Family Court is afraid to face up squarely to the activity by denying the man a right to continue doing this. His feeling of powerfulness is increased by the action of the Family Court in publicly denying the mother's story. His feelings of power are increased now he not only has power over the child who he is abusing, but over his wife and the court which is afraid to confront him with his abusive activities.

Often underlying this expansion of power for the father through the Family Court system is the problem of confidentiality. The issue of confidentiality can also arise in the forum of the Children's Court. In legal ethics there has been a concentration upon the idea that information imparted in a fiduciary relationship, lawyer/client relationship, and in certain other relationships should be regarded as confidential (unless certain considerations come into play). In social work and counselling the ethos of confidentiality also holds sway.

Family Court lawyers, counsellors and others within the system may be under a legal obligation not to disclose information obtained in the course of their work. However, far from being a positive attribute where incest and child sexual abuse are concerned, confidentiality is a hindrance. Where a child has been coerced into silence by her or his father, and therefore is afraid to reveal the truth about the abuse, where a court counsellor or other person in a confidential relationship, or the court, learns of the abuse and maintains 'confidentiality', he or she enters into the conspiracy. Now the father not only has the child or children enmeshed in a conspiracy of silence, he has (with the aid of the legal system) caught up another or others in that same conspiracy. All this says to the child is not that concrete help is at hand; rather, that father is as he or she feared 'all powerful': he can order her or him not to tell and when she or he attempts to empower herself or himself by defying that order, those whom she or he tells, from whom he or she seeks help, are overcome by daddy's power too. Father seems to be and indeed is (at least as a practical matter), in control once again as always. For the father, this notion of confidentiality confirms to him his power not only has he the child under his power, but he has the counsellors (and the court) under his control too.

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