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Time to educate our judges

By Barbara Biggs - posted Friday, 22 September 2006


Recently, Australia was fortunate enough to host one of the best child protection conferences seen in this country in recent years.

So the well-known Order of Australia Emeritus Professor of the University of South Australia, Professor Freda Briggs, told me after the second day. She is a seasoned national and international conference delegate and was one of three Protect All Children Today Conference’s keynote speakers.

Two months earlier when I was invited to be another of the conference’s speakers, I decided it would be worth paying my own return travel expenses from Europe because I was told many of the 200 delegates would be members of the judiciary.

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As power brokers in the justice system, which sorely needs better understanding of child sexual abuse, I felt my talk would have a greater than usual impact.

Having written In Moral Danger, a confronting and brutally honest book about my own story of abuse at 14 by a 42-year-old man, I’ve given more talks about my life than I’ve had hot dinners.

Mostly I address women’s groups, social workers, survivors, teachers, school kids, police, prisoners and offenders. All-important, but not people who have the power to change policy.

I felt this engagement would really count, that I’d be talking to a room full of men and decision makers. Usually not nervous about speaking, on the plane flying back to Australia, I was in the extreme. It felt like I was walking into the mouth of the wolf, my own abuser having been one of Melbourne’s top criminal barristers, Robert Vernon.

I was disappointed (financially) and relieved (emotionally) that so few members of the judiciary turned up.

Instead, once again, I found myself speaking to the converted, a room of 90 per cent women and 10 per cent men. Throughout the conference, I couldn’t help asking myself: why is it so many women are passionate about minimising child abuse and reducing its impact? And so few men?

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The main keynote speaker was one such feisty woman. As a survivor of horrendous abuse herself, her motivation is clear. She has risen from the ashes to be a national award-winning academic. It was refreshing to hear her: Dr Caroline Taylor, senior research fellow at Ballarat University and author of two books, Court Licensed Abuse and Surviving The Legal System: a handbook for adult and child sexual assault survivors and those supporting them, refer to a judge from early legal history as a “misogynistic, hoary, old fart”.

This particular British judge, she told us, enshrined in law 300 years ago, the notion that women and children are more prone to lie than men and so their testimonies should be more rigorously questioned and tested.

This, we were told, despite reams of research refuting the idea, underpins the current practice of defence barristers cross examining child witnesses through hectoring, humiliating and deliberately sharing strategies effective in confusing and alienating them to put their testimony in doubt.

In another session later in the day, an unprecedented move by one of the few men in the room, only added to my sense that this issue of child protection is a battle being fought largely by women against so many powerful men in denial of the problem.

A judge chairing the session (read supposed to be supporting the speakers) stood up to the lectern and said he had been unable to find in Queensland court transcripts any examples of badgering and humiliation of child witnesses such as Dr Taylor had so confrontingly illustrated in her opening address that morning.

Dr Taylor did not let the slight go. She said she had been approached by two Queensland magistrates after her talk, who supported her keynote address by telling her of recent examples of just such instances in courts of their colleagues.

Then, for me the highlight of the day was when a Justice Ian Coleman of the Family Court was asked by Professor Briggs, why so many fathers in recent years, had been awarded custody of their children whom they had been accused of sexually abusing.

The justification often presented to the Family Court, she told us, was that the mother was hostile to her former partner and that she and the child had collaborated in “manufacturing” the story because of Parental Alienation Syndrome.

This “syndrome” we were told, originally accepted by a US court, was the self-published brainchild of a single psychologist who suicided in 2003 by slitting his throat and repeatedly stabbing himself in the chest. The theory has never been corroborated by academic studies, on the contrary, has been refuted by many, yet is used as proven theory, Professor Briggs said.

This “syndrome”, she explained, currently underpins many such decisions of the Family Court to disbelieve mothers who accuse their former partners of sexually abusing their children. They are then considered acting against the best interests of the child and custody is taken from them.

The anger and frustration of delegates was palpable in the form of the conference’s only rousing applause for the question from the floor.

Then, in a coup de grace, a mother approached the microphone. She said her former partner had been awarded 80 days a year access to his 11-year-old son he had admitted sexually abusing. “Experts” in the case, men, had testified that since the father had not ejaculated, and therefore had not derived any satisfaction from the abuse, it was not unduly harmful.

Later that night, around canapés and wine at the Supreme Court, I spoke with Queensland Magistrate’s Court Judge Tony Pascoe, about the humbling and profound innocence of his newborn grandchild. The thought of something like what he hears every day in court happening to this innocence, is abhorrent to him. Like most of the few men at the conference, he was a good, committed warrior for child protection simply because he loves and values women and children.

As often happens as an observer in alien lands, it’s the small things that really bring the nub of an issue home.

Later, I was commending Queensland Chief Judge Wolfe for the speech she had just made. She talked from the heart, with real passion and pride, about the affected child witness suite, where children can give evidence without having to see or confront their alleged abuser - and from which they have a certain degree of protection from hectoring questions - which opened two years ago in the Supreme Court building.

This facility, which is used at the “discretion” of judges, has resulted in many accused pleading guilty on advice from their lawyers who now know that without the hectoring and humiliation that undermines the confidence of child witnesses, they are much less likely to get off.

It must be so heartening that you are able to facilitate such wonderful and important changes, I said.

There was a male magistrate standing next to us when I asked if she felt that the under-representation of women in the judiciary was the reason more and greater changes in this area of child protection were not being made.

She cast a furtive, if fleeting glance in the direction of her male colleague. Then, it was as if I hadn’t spoken. As if she didn’t hear the question. Chief Judge Wolfe changed the subject and led me along a corridor to see the remote child witness facility.

When I asked for her card, the male magistrate, from a distant country jurisdiction, said I could contact her through him. Why I thought, did a less senior, rural, male judge feel he had to mediate my contact?

Walking back to the hotel that night, I couldn’t help wondering if it had flashed through Her Honour’s mind, as it had mine, the treatment of a Chief Justice in Queensland a few years ago that shocked a nation: a woman who made it to the top, by the grace of her male colleagues, and who was toppled and jailed for a minor misdemeanour, by those same men, when she got too big for her boots or didn’t tow the line.

At the time, you just couldn’t help thinking of the abuse of power and flaunting of the law of so many judges in their courtrooms, called “discretion”, with no accountability whatsoever.

The now Supreme Court Chief Justice Higgins using his “discretion”, by telling the jury to discount the evidence of a psychologist because he said the confession of an accused was one day earlier than he had claimed.

Or a judge who recently dismissed DNA evidence saying it was “nonsense” and therefore inadmissible. It showed a 99.9 per cent certainty that the man accused of fathering his underage daughter’s child, was in fact the father. He was acquitted, of course.

So, yes, the conference in Brisbane was enlightening.

I came away feeling that the sooner this profession introduces mandatory education on child sexual abuse matters, accountability of judges and affirmative action to get more women into the job, the more ruined lives will be spared.

But, as one famous social activist once said, trying to get people to understand a need when their salary (I’d add “and power”) depends on them not understanding it is a difficult task.

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About the Author

Barbara Biggs is a former journalist and author of a two-part autobiography, In Moral Danger and The Road Home, launched in May 2004 by Peter Hollingworth and Chat Room in 2006. Her latest book is Sex and Money: How to Get More. Barbara is convenor of the National Council for Children Post-Separation, www.nccps.org.

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