|
|
|
|
Appendix:
Some Interesting Features of Two Other Scandinavian Countries
The legal systems of the Scandinavian countries are markedly dissimilar, both as regards the formal legislation and informal legal attitudes and ideologies.
I will here describe some Norwegian phenomena that could serve as an appropriate model for many countries, and some Danish phenomena which should definitely not be replicated elsewhere.
Norway is the only Scandinavian country that has taken serious steps to prevent future miscarriage of justice, not least in cases of sexual abuse. Some years ago The Norwegian Criminal Cases Review Commission was created. It is not a fourth court at a level above the Supreme Court. The Supreme Court will continue to handle new trial motions. But when a motion has been rejected, it can be sent to (not appealed to) the Commission. The first difference is that the Supreme Court will only assess the actual text and content of the motion. By contrast, the Commission may decide that the content of the motion is not sufficient for re-opening, but that the defence nevertheless has a point. And then the Commission is entitled to perform a more comprehensive investigation of its own. In turn, it is quite possible that the Commission may decide that the new trial motion together with this supplementary investigation may constitute a sufficient ground for re-opening.
A second difference is that, if a case is re-opened by the Commission instead of by the Supreme Court, it must be handled by another court of appeal than the one that made the previous judgment.
Further differences are found in the composition of the Commission. There are eight members in all. Two of them are judges, but neither the chairman nor the vice chairman are judges. The chairman is a defence counsel, and the vice chairman is a high official outside the legal system.
We shall now turn to Denmark. It is a trivial circumstance that only Denmark has a special "new trial motion court". But a related difference is far from trivial. I wonder how many Danish citizens know that the judges of the Danish New Trial Motion Court are paid for only one hour of labour for each case. It goes without saying that no judge can perceive and evaluate the information in a new trial motion in such a minimal time. As a consequence, very few cases are re-opened in Denmark, however strong the reasons for re-opening may be.
A question should also be asked about the ethics of the profession of judges, since judges have accepted such an improper state of affairs, even for generations
Recovered memory therapy and legal trials based on the false memory syndrome reached Denmark later than the other Scandinavian countries. The reason was that some prominent psychoanalysts became very old, and they kept the normal psychoanalytic tradition alive. Until very recently psychoanalytic treatment has never resulted in re-gaining recollections of hitherto repressed events, and even today only a small minority of analysts have combined their approach with RMT.
Unfortunately, the sexual abuse craze was only postponed in Denmark. At the moment it is flourishing. Before saying more about Denmark I would like to draw the attention to the East European countries. Psychoanalysis was not welcome during Communism. But after these nations became independent, many citizens and politicians might be under the impression that anything found in the "capitalist" countries is laudable – and they might want to incorporate both psychoanalysis and recovered memory therapy. That is to say, they might belatedly experience a development that has some resemblances to the Danish situation.
As late as 2002 the Danish associations of psychiatry, psychology and child psychiatry appointed a committee, whose alleged task was to investigate how recollections that had emerged during psychotherapy (in brief: therapeutic recollections) could be used within the legal system. The committee published its report in 2004. It presented two results and one recommendation: (a) false memories indoctrinated by therapy do exist; (b) genuine memories of authentic experiences may also emerge during therapy; (c) psychotherapeutic recollections can be used in court in the same way as other recollections.
In 2002 as well as in 2004 a large number of false convictions have been documented in many countries, and the Danish committee knew that they were based on recovered memory therapy (RMT) and the false memory syndrome (FMS). But instead of examining the risk of false convictions, the committee invoked Wilsnack et al. (2002) as a way of refuting Pendergrast (1995). The committee agreed with the Wilsnack team that only a tiny minority (1-2 %) of recollections of sexual abuse have emerged during psychotherapy.
This is an excellent example of how to lie with statistics. Both the committee and the Wilsnack team were equally aware of another fact, viz. the large range of acts of sexual abuse – from, say, a brief fondling of the breasts on the top of the clothes, to brutal anal or oral rape. But both the Wilsnack team and the Danish committee have constructed watertight bulkheads between their statistical figures and the semantic range. Nothing can be found in their report that is not altogether compatible with the following pattern. 100 % of those acts of abuse that were recalled without therapy after a period of forgetting, belonged to the mildest forms; and 100 % of the coarse acts had either been continually recalled, or had emerged during psychotherapy.
Memory therapists may well start with indoctrinating the mildest variants. But I have never encountered any case in which a memory therapist had stopped the indoctrination after having implanted such mild variants. Few facts are more firmly documented than their proneness to indoctrinate the coarsest variants.
On the other hand, I have never encountered any critic of recovered memory therapy who would deny that people may forget the mild variants and then without any professional assistance recall them later.
Below I shall use many facts from the Swedish Södertälje case in order to shed further light on this statistical flaw. Here it could be gainsaid that the Wilsnack team had studied the recollections of 711 persons, while MS had studied only one case, and that MS had in turn made the most bold-hearted generalisations from such a minimal empirical material (a criticism I have actually received from Danish sources).
But this objection would be out of place. One single case in which it is known for certain what was observed, has a much larger evidential power than 711 cases in which it is not clear what was observed. It should also be noted that in the Elvira case as many as 27 judges have passed verdicts, and that most of these judges were selected by lottery. If 27 such judges make the same mistake in evaluating more or less the same body of evidence, this is certainly not "one single case".
A further fact is equally incompatible with the postulation that MS has merely generalised from one single case. In 2004 I compiled a list of 37 (thirty-seven) Swedish judicial judges who had convicted the defendants in trials that indisputably involved recovered memory therapy, and in which the injured party indisputably was suffering from the false memory syndrome. It was a sheer accident that I compiled this list at the same time as the Danish committee published its report.
I had made no systematic search for RMT/FMS cases. It was to some extent a random affair what I happened to stumble upon – although the great preponderance of the court of appeal in Stockholm to a greater extent derives from the fact that this is the town in which I live. Nevertheless, it can safely be assumed that the display as a whole constitutes no more than the tip of the iceberg.
However, such a tip could well be informative. I shall display the distribution of the 37 judicial judges over the different courts:
District courts. Huddinge = 1, Kristianstad = 1, Nacka = 1, Stockholm = 2, Södertälje = 1, Umeå = 1, Varberg = 1.
Courts of appeal. Gothenburg = 2, Malmö = 1, Stockholm = 18, Umeå = 3.
The Supreme Court = 5.
Now, what did the Danish committee have to say for the purpose of helping judges, jurors, defence counsels (and possibly also prosecutors and police officers) to distinguish authentic recollections from indoctrinated pseudo-recollections We have just seen that their first point was to state that false allegations are very rare. This statement would imply that the courts could safely convict almost all defendants without producing any miscarriage of justice.
Only one point was made, that is entirely clear. The Committee advised psychotherapists to be aware of the possibility of suggestive influence, and to be careful not to expose the patient to such influence.
But when giving this advice, the Danish Committee cannot have been ignorant of the fact that the essence of psychoanalysis, talking therapy, and recovered memory therapy has for more than a century been to influence their patients, inter alia into believing in certain interpretations. And at the same time these therapists have zealously propagated that they were very careful not to influence their patients. (A good survey and analysis of this pattern is provided by Scharnberg, 2007.) It is difficult to believe that the Danish committee was not aware of this fact. Maybe the real aim of its recommendation was that recovered memory therapists should continue to do what they had done so far, that is, to indoctrinate their patients and to falsely claim that they had never influenced them. Moreover, I am not aware of any country in which memory therapists could survive for a non-negligible period without producing many legal cases and legal convictions.
The committee made one further remark:
|
|
|
|
|
|
"Some authors think, however, that certain features can be identified which will increase the probability that a recollection is true (which means that the recollection mirrors a factual historical event, although it may not necessarily be a correct description of what, objectively, happened). Thus, Conway [1997] emphasises that true recollections will typically be recalled and presented in a fluent way, and they will become integrated with the autobiographic memory that the person has of his own life. These recollections will produce clear images and will be built on experiences that are recalled as being 'past'. By contrast, false recollections will often be difficult to construct into a coherent pattern, will be difficult to integrate into the autobiographic memory-ground, will be connected to vague images, and will provide the experience of 'being known' instead of 'being past'." (Genfundne erindringer, Internet version of the printed report published in 2004 by the Danish Associations of Psychologists.) |
|
Before pointing out the numerous and serious errors found in this brief quotation, I would like the reader to note two significant circumstances. First, the committee had worked for two years with its task. Over such a long period one has the right to request a final report that contains more than a half-truth. Second, although all relevant legal documents in Denmark are classified, the committee could easily have obtained analogous documents from a neighbouring country: Sweden.
The quotation is replete with indefinite expressions. How are judges and jurors supposed to apply such information Will they even learn about the very existence of such qualifications We are told about the view of "some" writers (hence: not all; but how many), and that they "think" (but are not sure of), viz. that there are certain features which "typically" (but not always) will "increase the probability" (but by no means ensure) that a narrative is authentic.
Such vague phrases and expressions are particularly dangerous in the present context, because the legal system in Denmark makes it exceedingly difficult for defence counsels to learn from each other.
There are much more serious errors in the above excerpt than the many verbal reservations. Within the research on lying and deception one methodological error is frequent. Just like you cannot merely give any person the task of playing the saxophone and expect him to do so with a minimum of skill, you cannot give any person the task of lying and expect him to do that with a minimum of skill. There are great individual differences when it comes to lying skills. Some people are virtuosos and others are not. For obvious reason the virtuosos will significantly more often than others appear in the courts as the injured party. Therefore it is of limited help to judges and others to learn something about how ordinary people behave when they are lying.
Moreover, patients who have undergone recovered memory therapy will have had many training sessions before they appear in court. Elvira is one example. Chapter 23 in this book has a clear bearing on the excerpt from the Danish report. From the police interrogations Elvira's longest line about sexual abuse by her father (205 words), and her longest line about ritual child murder (806 words), were quoted in toto. None of the 27 judges who passed verdicts in this case doubted that Elvira's murder allegations were false and that her sexual allegations were true. And none of the psychiatric and psychological experts who supported the prosecutor dared state before the court that they believed in the murder narratives (although at the very least one of them played a double game in this respects).
It cannot be disputed that Elviras's narratives about the ritual child murders were "recalled and presented in a fluent way". Moreover, these narratives had "become integrated with the autobiographic memory which [Elvira] [had] of [her] own life". They had produced "clear images", and they were "built on experiences that [were] recalled as being 'past'."
By contrast, Elvira's allegations of her father's sexual assaults were "difficult to construct into a coherent pattern" and "difficult to integrate into [her] autobiographic memory-ground". Moreover, they were "connected to vague images", and they provided "the experience of 'being known' instead of being past."
In other words, if we apply Conway's semi-criteria, we shall arrive at the opposite result of the 27 Swedish judges. – And I would be surprised if the Danish committee would not assess actual narrative in the very opposite way of what the semi-criteria would indicate.
The reason why Elvira's murder narratives were deemed to be false, and why her narratives about parental sex abuse were considered to be true, is not very sympathetic. The police and highly competent scientists had checked the truth-value of the murder narratives. They had verified that at those places where corpses had been buried according to Elvira, no one had dug since the Ice Age.
By contrast, the police and the prosecutor had concealed all the evidence that disproved the sexual allegations.
Another very important circumstance that should have been apparent to the Danish committee is the exceedingly low capacity of judges for assessing whether people are telling the truth in court. Scharnberg (1996) has shown in great detail that the kind of sporadic, fragmentary and contradictory concoctions that judges will deem to be exhaustive, coherent and non-contradictory, are virtually limitless.
In 2008 Elvira's foster mother published a book, according to which all accusations made by Elvira were true – including those about the numerous child murders. The book was immediately reviewed by Monica Dahlström-Lannes (2008), who was for many years considered the greatest expert on sexual abuse within the Swedish police. In her review she joined the foster mother and believed all Elvira's allegations, including the ones that had been disproved by the police. She is not the only reviewer who believed in all the accusations. However, I have been aware of Dahlström-Lannes's specific position since January 1985. But this is the first time I have seen her committing herself to the view that not only is sexual abuse is exceedingly frequent in Sweden, but that ritual child murders including cannibalism are likewise so.
Next chapter
Uppdaterad: 2009-11-19
Yakida |
|
|