This article is based on an address to the Skeptics Conference 2002. A condensed version has also been produced for the NZ Listener.
I’ve just received my first bad review of A City Possessed. It was written by Val Sim, chief legal counsel for the Ministry of Justice, on the instructions of Phil Goff. When he released the review, Goff said he had read “significant parts” of A City Possessed and had found it well argued and researched, and quite compelling. ‘Anyone who looked at the case, and the circumstances of the case, would not be objective if they did not feel unease about the atmosphere that existed and some aspects of the case,’ he said. But he added that questions of guilt or innocence are not for authors or politicians to decide.
So it seemed ironic that, after giving Sim’s review his blessing, Goff released long-suppressed documents about the 1975 Indonesian invasion of East Timor. These showed that our politicians and their advisors minimised, discredited and ignored reports of gross civil rights violations because they didn’t want to upset the Indonesian authorities.
‘There are lessons to be learned from the Timor experience,’ Goff said. Indeed there are – lessons about the damage that can be done to innocent people by politicians and bureaucrats who are more interested in covering their own backs and not rocking the boat than in doing justice.
As Edmund Burke said: ‘The only thing necessary for the triumph of evil is for good men to do nothing.’ Anyone who has tried to make bureaucrats or politicians accountable will have heard the excuses. When the first excuse – ‘there isn’t a problem’ – collapses under the weight of evidence, the second excuse – ‘I had no idea there was a problem’ – kicks in. According to historian and philosopher Tzetvan Todorov, when real, this ignorance is more or less a matter of conscious and deliberate effort. As Albert Speer put it: ‘Being in a position to know and nevertheless shunning knowledge creates direct responsibility for the consequences.’
In essence, Sim is saying that A City Possessed contains no new evidence that can justify reopening the Ellis case, and since a high court judge, two courts of appeal and a ministerial inquiry have endorsed the jury verdicts, that should be an end to the matter.
Prior to the publication of A City Possessed no outsider could effectively challenge that argument. But I’m astounded that Sim and Goff think they can get away with this self-serving obfuscation when thousands of New Zealanders have read my book. These readers know that I haven’t just disagreed with the findings of a jury, a high court judge, two courts of appeal and a ministerial inquiry, I’ve demolished them. They know that the book isn’t just about the guilt or innocence of Peter Ellis. They know that it identifies serious flaws in the justice system that need to be addressed. They know that the Court of Appeal’s “new evidence” rule is a confidence trick invented by Their Honours to save themselves from ever having to admit that they’ve made a mistake. And readers of A City Possessed also know that our Minister of Justice does have the power to instruct the Governor General to pardon Peter Ellis and establish a commission of inquiry. So who are Sim and Goff fooling? Not the readers of my book.
In the 11 months since A City Possessed was published, legal authorities nationwide have said: Lynley Hood’s got it right and the Government can’t afford to ignore this book. So I have to conclude that Val Sim is wrong. There was a miscarriage of justice in the Civic Creche case, and my book has exposed problems in the justice system that need to be addressed.
In the book, I argue that the Civic Creche case was one manifestation of an international phenomenon comparable to the great witch hunts of the 16th and 17th centuries. In the classical sense, a witch hunt is a combination of three separate, but related, phenomena: a moral panic, an epidemic of mass psychogenic illness, and an outbreak of scapegoating.
Earlier this year, a correspondent to the Otago Daily Times suggested that episodes of this sort are a force of nature, like a tidal wave or a hurricane. Everyone is a victim, nobody is to blame, and the only way to right the wrongs done to Peter Ellis is to compensate him from the Earthquake Commission.
That’s actually not a bad idea, because while there are clearly wrongs to be righted, if we want to live in a society that values compassion, tolerance and forgiveness over vengeance and retribution, and if we want to avoid setting off another witch hunt, then demanding that heads roll will solve nothing.
In my view, there are no monsters in the Civic Creche story. I think the problems arose when the winds of panic swept through Christchurch and the moral compasses of ordinary, decent, well-intentioned people became so disoriented that they ended up doing harm when they thought they were doing good.
That said, one of the lessons of the great witch hunts is that we shouldn’t under-estimate the power of the authorities to inflame or dampen down these panics.
In Salem, Massachusetts, in 1692 the governor brought that panic to an end by declaring spectral evidence inadmissible. Spectral evidence is the dreams, visions and hallucinations of people who believe themselves to be bewitched. The fact that the governor’s wife had just been accused probably helped focus his mind. And the community had been calling for an end to witch hunting for some time, so the governor’s actions weren’t all that remarkable.
James 1 of England is a more interesting case. Earlier, as James VI of Scotland, he was a rabid witch hunter. But in 1604 he moved to England and became a sceptic.
One of James I’s most famous cases was that of 20-year-old Anne Gunther, who foamed at the mouth and vomited pins. After questioning her closely, the King concluded that Anne’s real problem was a desperate need for love. So he gave her a dowry. Whereupon – according to the King’s physician William Harvey – she married and found herself miraculously cured.
In 1634 William Harvey was sent by the King to examine seven Lancashire women accused of witchcraft by an 11-year-old boy. By the time Harvey arrived three of the women had died in their cells, but the rest were acquitted when they were found to show no unambiguous signs of witchcraft. Later, the boy admitted that his father had put him up to it, and had told him they would make a lot of money.
Even in Continental Europe, where around 100,000 witches were executed in spasmodic bursts over a 200 year period, strong minded leaders could hold the panic in check.
Between 1673 and 1684, in the German town of Calw, 39 children accused 77 adults of witchcraft. But when the legal faculty at the University of Turbingen examined the evidence, they rejected the children’s stories as fantasies, and condemned the irresponsible way in which the parents had questioned their children. The faculty also insisted that no witch be condemned without reliable evidence and due process. And so, in Calw, disaster was averted.
In 1610, Dr Alonzo Salazar, a judge of the Spanish Inquisition, spent eight months conducting reality checks on the confessions and accusations of witchcraft recorded during a panic in a Basque country. Salazar’s assistants took the accusing children to the scene of the supposed witches’ sabbat one by one, secretly, in daylight. They were asked where the devil had sat, where they had eaten and danced, how they had got in and out of their own homes, whether they had travelled alone or in groups, whether they had heard clocks or bells and ‘any other circumstances which might serve to clarify the problem.’ (I’ve spelt out these details because, unlike Dr Salazar, Sir Thomas Eichelbaum did not do reality checks on the children’s evidence during his inquiry into the Ellis case.)
Salazar found that the children contradicted themselves and each other. He reported that there was not to be found ‘a single proof nor even the slightest indication from which to infer that one act of witchcraft had actually taken place’.
Salazar’s colleagues regarded his findings as convincing proof of the unreliability of witch accusations and witch confessions. At that point, the Spanish people did not stop believing in witches, but prosecutors-having realised that they could not distinguish between true and false allegations, and that false allegations were destroying the social fabric- became very wary of prosecuting them.
Witch suspects were still prosecuted when there was reliable evidence that real people had committed real crimes (and they did find the occasional crone who really had poisoned her neighbours’ well, or committed some other offence commonly regarded as the work of a witch). But Salazar’s reality checks brought witch executions in Spain to a complete halt 80 years before the panic burnt itself out throughout the rest of Europe.
Lessons to be Learned
What can we learn from all this? I don’t pretend to have any answers. Indeed, one of the lessons of A City Possessed is – beware of people who claim to have the answers.
Nonetheless, I think it’s important to challenge the pessimists who say: ‘Nothing will be done about the creche case because it’s too hard. The ripples spread too wide. Too many influential people will have their careers and reputations called into question.’
In my view, we can deal with it, and we must deal with it – not only for the sake of the past, but also for the sake of the future. Ten years on from the Civic Creche case, the sex abuse hysteria that drove it continues unabated, and the damage that hysteria is causing to the fabric of New Zealand society cannot be ignored.
Currently, children as young as ten are being labelled ‘sexual predators’. Prurient computer technicians are determining what responsible adults should be allowed to see, read and hear. Respected school teachers-who have been abusing nobody but themselves-have had their careers and reputations destroyed. A one-legged 60-year-old has lost his international sporting career over a bit of tomfoolery that harmed no one. The explosion of historic allegations against Catholic priests escalates daily. In my view, we’re as much at risk today of having our lives, our families and our communities ripped apart by false allegations of sexual abuse as the people of Christchurch were in 1992.
Overseas countries are also dealing with these panics. Earlier this year retired Canadian Judge Frederick Kaufman presented his long-awaited report into the epidemic of historic allegations of abuse in Nova Scotia youth institutions.
That scandal began in the early ’90s, when a paedophile who had worked for the province in the ’70s was convicted. Two more abusers turned up. Fearing a deluge of lawsuits, the Government hired a respected former judge to assess how deep the rot went.
The judge identified 89 cases of possible abuse that had occurred 20 to 40 years earlier. None of the claims were tested by the usual rules of evidence. But the Government concluded it was in deep trouble, and the justice minister made his pitch.
All survivors would be compensated according to the severity of their abuse. To ensure speedy justice, no one would have to prove a thing. He might as well have hung out a sign saying: Get Free Money Here.
When the 89 claims swelled to 500, the Government simply increased the compensation fund. And as the claims escalated, so did the hysteria. People who had devoted their lives to the care of troubled and needy children were pilloried by the media. Juvenile delinquents were recast as tragic choirboys. No one checked old medical records, or interviewed former employees. The Government did not want to “revictimize the victims.”
In the end, $30 million was paid out to just over 1200 claimants. Legal fees, counselling, and criminal investigations brought the cost to more than $60 million.
But Judge Kaufman found that, by 2002, it was impossible to know how much abuse there really was. The real victims (and he didn’t doubt there were some) had been discredited along with the fakes.
Meanwhile, in Britain, a select committee inquiry is under way into the police practice of “trawling”. Trawling involves police officers contacting former residents of children’s homes and asking them if they were abused, or if they witnessed incidents of abuse, and informing them of the availability of financial compensation. The inquiry was prompted by a concern that a whole new genre of miscarriages of justice may have arisen from this practice.
Also in Britain, in a case with remarkable similarities to the Civic Creche, two former child care workers were recently awarded maximum libel damages of £200,000 each. The judge found no basis for allegations that the pair were part of a paedophile ring that was exploiting children for pornographic purposes. He ruled that those responsible for spreading the allegations had ignored the principles of natural justice, and had included claims which they must have known were untrue, and which could not be explained on the basis of incompetence or carelessness.
Criminalising and Scapegoating
There are lessons from all this that we ignore at our peril. They relate to the harm being inflicted on society by current campaigns to protect children from vaguely defined sexual dangers by criminalising and scapegoating a wide range of people and behaviours.
These campaigns ignore the realities of childhood and adolescent sexuality. They distract us from serious problems related to the health, education and welfare of children. They put a destructive barrier between all adults and all children. They erode essential freedoms for us all. But the hysteria surrounding the issue is so pervasive that anyone who suggests more thoughtful discussion risks being branded a child abuser. In my view, we must insist on a more sensible and compassionate approach. So what’s to be done?
Well – laws and procedures can be changed. It happens all the time. All that’s needed is moral courage and political will. Where is Dr Salazar when we need him?
Given the will to do so, ACC could abandon its counselling guidelines that are known to induce false memories of abuse, and it could treat sex abuse fraud as seriously as it treats other sorts of fraud.
Given the will to do so, CYFS could admit that its interviewers can’t distinguish between true and false allegations of sexual abuse.
Given the will to do so, Parliament could change the laws that make it easy to convict on unreliable evidence of sexual abuse, and courts could insist on reliable evidence, no matter how great the clamour for a conviction.
Given the will to do so, the Court of Appeal could correct its own mistakes.
But these changes won’t repair the damage done by the Civic Creche case. I think what’s needed there is a royal commission headed by a robust overseas judge.
Of course we shouldn’t expect too much of such a commission. It won’t fix everything. But it will enable everyone involved to have their say. It’ll help the truth to come out. It’ll bring a degree of accountability. It’ll highlight the policies, procedures and laws that need to change.
In my view, a royal commission on the South African Truth and Reconciliation Commission model is the way to go. This would offer amnesty to those whose conduct is called into question in exchange for a full, truthful account of their roles in the case, while those whose rights have been violated would be offered the chance to be heard, and to hear the truth come out, as an alternative to expensive and divisive show trials and administrative purges, and endlessly escalating compensation claims.
In the course of researching A City Possessed I uncovered many scandals. The biggest scandal was the discovery that, since the mid-’80s, New Zealanders have been calling for a commission of inquiry into the ways in which sexual abuse allegations are handled in this country, but successive governments have simply buried the problem. Since A City Possessed was published the clamour for an inquiry has reached a crescendo. But still the Government doesn’t want to know.
So where do we go from here?
Twenty years ago, I did an interview in the US. This was when Ronald Reagan was President, and the fall of the Berlin Wall was still seven years away.
My interview was with suburban grandmother Molly Rush. Molly belonged to a group that had entered a nuclear weapons plant and damaged the nosecones of two warheads. At the time of my interview she had spent 11 weeks in jail and was out on bail awaiting appeal.
By temperament I’m slow to take sides on any issue, but I knew where I stood on the arms race. I asked Molly what her group had done, and why they had done it. I asked her what they had hoped to achieve, and whether they had achieved it. And I told her about a demonstration I had attended.
I said: ‘One of my feelings was that in no way did anything that was said or done influence any of the dignitaries at that meeting. They were so sealed off by the police and the secret service.’
I think the philosophy she conveyed in her reply can be applied to everything we do. She said:
“It’s important to counter that feeling of helplessness or hopelessness that can lead to violence or apathy. A couple of things need to be said; one is that when you participate in a public protest to assume that you’re immediately going to change those people whose whole lives are so committed to these policies is unrealistic. What you’re trying to do is galvanise public opinion.”
Peace demonstrations, large and small, have served to create a climate of public opinion that has finally made politicians address this issue. We need to take heart from that.
But beyond that you have to deal with the whole issue of effectiveness and pragmatism. I’m a pragmatic organiser at heart but what I’ve learnt in the past few years is that one can’t necessarily predict the results of one’s actions. Some of the most profound changes have come about in situations that seemed exceedingly hopeless and exceedingly unaffected by what you’re doing.
I’m instructed by the example of a young priest who climbed the fence of a nuclear weapons plant. He received no media attention and spent more than six months in jail with no apparent result. He was visited in prison by Bishop Matthieson who has since become an outspoken opponent of the arms race. Bishop Matthieson has said publicly that his meeting with the young priest in jail was part of the process that lead to his conversion. Yet if that priest had climbed the fence thinking – “I’m doing this to convert Bishop Matthieson” – that would have been absurd.
So we’re not talking about acting to achieve specific goals, what we’re talking about is trying to hang on to a vision, and to live out our lives in a way that contains truth, and to have faith in the power of truth in the Ghandian sense – faith that the power of truth can overcome wrong.