Author and Attorney Katherine Hine Outlines Case For Immunity for Child Abuse Reporters

Retaliation Against Professionals Who Report Child Abuse

By Katherine Hine, J.D.

INTRODUCTION

Since before the time of Freud, professionals who report child abuse, especially child sexual abuse, have been subjected to various forms of retaliation. Although the 1970s produced federal and state legislation providing ostensible immunity to those who report child abuse, strong disincentives to reporting persist and new ones have emerged. Neither the 1970s statutory mandates nor First Amendment principles have prevented a substantial backlash against mental health professionals, attorneys, documentary participants, journalists, police officers, prosecutors, judges and child advocate volunteers. The nature of the retaliation is such that only a few individuals need be targeted before large numbers of professionals are silenced.

Historical Links Between Cycles of Child Abuse Awareness and Professional Retaliation

Reports of forensic writings concerning child sexual abuse date back to the 1550s in France, but cycles of professional retaliation repressing such information have also been in play for centuries, l Harvard's Judith Herman (1997) describes the ebb and flow of child abuse study and reporting as being "one of episodic amnesia.,,2 Olafson, Corwin, and Summit (1993) likewise describe the cyclical suppression of public and professional awareness of child sexual abuse, noting that "information about the prevalence and impact of sexual abuse may constitute unwelcome news on all shades of the political spectrum.,,3

Masson (1984) and others have described Freud's turn of the century recognition of the prevalence of childhood sexual abuse in his patients and his subsequent abrupt change of attitude. When Freud announced his "childhood seduction" theory recognizing the reality of parental abuse to the psychoanalytic establishment of Yienna, Freud's colleagues threatened to destroy him professionally (Summit, 1989). Although his "childhood seduction" theory had deep roots in the writings of European physicians Tardieu, Bernard, and Lacassagne (Olafson, Corwin, & Summit,J 993), Freud, when faced with the threat of retaliation in his profession, realigned his thinking to conform to that of his colleagues-transforming his earlier position into one in which the responsibility for incestuous longings would fall squarely on the shoulders of the child, and in which actual adult-child sexual interaction would become merely a childish fantasy. Ferenczi (1955), one of Freud's students, insisted throughout his life that Freud's original theory had been correct. Freud not only continued to adamantly disagree, he joined his colleagues in casting aspersions both as to Ferenczi's professionalism and his sanity (Masson, 1984).

Societal willingness to begin lifting the cloak of denial enveloping child physical abuse emerged in 1962 with the publication of "The Battered Child Syndrome" (Kempe et aI, 1962) in the Journal of the American Medical Association. Previous work by physicians other than Kempe and his colleagues had raised the issue of an unexplained link between multiple fractures of the long bones and chronic bleeding under the skull in children, which in turn led to much speculation about how leg fractures could be a complication of subdural hemorrhaging. Few had dared to consider the obvious by looking to traumatic causation until the 1962 publication. In describing the newly coined term, "battered child syndrome," Kempe noted that the phenomenon had likely remained unrecognized, undiagnosed and "inadequately handled by the physician because of hesitation to bring the case to the attention of the proper authorities.'>'! There is also reason to believe that Kempe had first-hand experience of the reasons that a physician would have such hesitation.s

Existing Statutory and Constitutional Mandates do not Protect Speech or Other Activities on Behalf of Abused Children

In arguing the necessity for immunity for child abuse reporters, Paulsen (1966) described possible reasons why a physician might hesitate to report accusations. An abusive father or mother, facile with explanations, often escapes discovery ... Some physicians have regarded reporting as a breach of the special confidential relationship between physician and patient, and still others have failed to report either because they did not know to whom to report, or because they had no reason to believe that reporting would result in benefit to the child.

In recognition of the growing awareness of child abuse and problems associated with its reporting, Congress enacted the Child Abuse Prevention and Treatment Act of 1974 (42 Us.e. Sec. 5101-5106). Section 4(b)(2) of the Act provided in part that as a condition for receiving federal assistance, each state would be required to enact legislation mandating immunity for those who reported child abuse. In response, all states enacted immunity provisions for good faith reporting of suspected abuse.6 The burden was never said to be upon the reporter to prove the existence of the abuse, or even probable cause. By 1978, fears of being sued unjustly for libel or other sanctions were said to be groundless, as even without the federally mandated statutory immunity provisions he common law and all of our decisional authority already confers such immunity, and there is no American case that even suggests that there may be liability for a good faith report of the kind required by battered child statutes. (Besharov, 1978)

Apart from whether Besharov's broad assertion was correct at the time, substantial recent anecdotal evidence, to be described herein, clearly refutes the notion that reporters of abuse are always safe from retaliation. Besides the problem of not knowing to whom to report--for example when government officials within the system are abusive to children/ professionals and other reporters of the 1990s are now faced with the possibility of state misdemeanor prosecutions for reports deemed to have been made in "bad faith".8

Related to concerns about liability for reporting specific instances of abuse are concerns about liability for simply discussing the issue as an intellectual pursuit. Although some might assume that the First Amendment provides absolute protections for all manner of free public and private discourse, such assumptions have historically proven to be erroneous, particularly when the topic of the speech is controversial or unpopular.9

Just as speech of certain types or by certain individuals has been historically susceptible to unlawful punishment by the states, there are emerging too many examples of such retaliation to ignore, suggesting that speech by child advocates has become an easy target during the 1990s.


Targets and Methods of Retaliation

The longest-standing target of retaliation against professional child advocates appears to be the mental health professional. An understanding of how this retaliation developed requires a certain grasp of the reactions that began to take place as reports of ch children suspected of being abused or neglected increased twenty-fold, from approximately 150,000 to 3 million, between 1963 and 1993 - this increase occurring at the same time that adult victims of child abuse were seeking healing in support groups and in the offices of mental health professionals.

It is common and usual for any reform movement, after it achieves a certain measure of public support and sympathy (as did child protection during the 1970s and 1980s) to be subjected to an opposition movement. In the context of child protection, that opposition movement has come to be known to child advocates as "The Backlash" (Myers, 1994, Conte, 1994, Hechler, 1988). As backlash movements do generally, the anti-child protection backlash presents itself as being unopposed to the publicly accepted goals of the reform movement. After all, it can be politically unwise to openly oppose the concept of child protection. Therefore, only the methods of child protection are said to be disputed by such backlash groups as the False Memory Syndrome Foundation (FMSF), the Children's Rights Council, and Victims of Child Abuse Legislation (VOCAL).

In 1988, Dr. Anna Salter, a renowned clinical psychologist, received a grant from the New England Commissioners of Child Welfare Agencies to study the research methods and conclusions of often-quoted apparent backlash psychologists Ralph Underwager and Hollida Wakefield. I I When Salter published her treatise entitled "Accuracy of Expert Testimony in Child Sexual Abuse Cases," about Underwager and Wakefield's scientific methods (or lack thereof), Salter made very specific and detailed findings indicating that Underwager and Wakefield cite research that "simply does not say what they say it does," maintain positions as factual "when there is no research evidence to substantiate their claims," "simply ignore contrary evidence," "make numerous logical errors," and use citations that "are so filled with errors it is difficult to find many of them." Worse, she found that "the inaccuracies were uniformly in the service of strengthening Underwager and Wakefield's case against children who report child sexual abuse" (Salter, 1988).

Wakefield complained about Salter's study to the Ethics Committee of the American Psychological Association which voted unanimously in July 1989 to dismiss the complaint against her "as entirely without merit" (Salter, 1998). Underwager and Wakefield then filed a defamation suit in United States District Court against Salter and others who had "come to believe" that "Underwager is a hired gun who makes a living by deceiving judges about the state of medical knowledge and thus assisting child molesters to evade punishment" (Salter, 1998, p. 20).12 The District Court for the Western District of Wisconsin granted summary judgment for Salter et al. (Attorney Patricia Toth, a co-defendant in this case was then director of the National Center for Prosecution of Child Abuse, a project of the American Prosecutors Research Institute.)

Dissatisfied, Wakefield and Underwager appealed to the U.S. Court of Appeals for the Seventh Circuit. In April 1994, the court affirmed the decision of the District Court, noting that Underwager and Wakefield's work has "not been well received in the medical and scientific press." The Seventh Circuit further ruled that Underwager and Wakefield would not be allowed to silence those who hold divergent views, no matter how adverse those views may be to plaintiffs' interests. Scientific controversies must be settled by the methods of science rather than by the methods of litigation. (Salter, 1998, p. 120)

Despite their lack of success in silencing Salter and her co-defendants, Underwager and Wakefield, and others like them, are frequent paid presenters at continuing legal education and other programs for professionals. 13 In fact, their views may be the only ones on the topic of child sexual abuse ever heard by some attorneys and judges. In any event, for reasons that go beyond the scope of this article, there always seems to be an audience for statements that minimize the seriousness of child sexual abuse.

Increasing hostility to those who advocate for children, or who simply study or discuss the credibility of children,14.15 began to be observed in the media (American Psychological Association, p. I) in the early I 990s as the FMSF began to enjoy considerable success in influencing media coverage of child abuse issues (Stanton 1997).

In 1991, the year before the formation of the FMSF, more than 80 percent of news coverage in the popular press about child sexual abuse was weighted toward histories of survivors and the nature of childhood trauma. However, by 1994 more than 80 percent of news coverage had begun to focus on "false" accusations and the newly coined concept of "false memory syndrome" (Stanton, 1997).

Mental Health Professionals

By the late eighties and early nineties, a new wave of attack upon mental health professionals began. The identified abusers of adult victims of child abuse began to avail themselves of new third party liability theories upon which they based litigation against their adult children's therapists.1617 Bowman and Mertz (1996) describe with alarm the recent emergence of these increasingly novel legal theories formulated specifically for use in lawsuits in civil court seeking damages against therapists treating adult child sexual abuse survivors - patients who are, for the most part, satisfied with the targeted therapist.

The intensity of the attack on mental health professionals escalated in 1997 with the bringing of federal indictments against Houston mental health professionals Judy Peterson, Ph.D., Richard Seward, M.D., Gloria Keraga, M.D., Sylvia Davis, M.S.W., and hospital administrator George Jerry Mueck, CPA. The defendants faced possible sentences of life imprisonment without parole apparently because the government disagreed with the diagnosis and treatment of seven patients who claimed to have been falsely convinced that they had been victims of childhood abuse.

Following five months of testimony in 1998 and 1999 by 33 government witnesses and dozens of audio and video tapes offered in evidence, a mistrial was declared in February, 1999 after the dismissals of all but II jury members. The results of an informal jury poll showed that, despite the fact that the defense had not yet presented its case, the jurors were strongly inclined toward acquittal.!8 On March 1, 1999, the government dismissed all charges against the five defendants. However, the legal costs for the defendants and the government were staggering. 19
Pennsylvania clinician Jim Singer was stripped of his professional license in apparent retaliation against his efforts to assist a 15-year-old suicidal child who had disclosed incidents of sexual abuse. His suit against various entities in the State of Pennsylvania instrumental in the removal of his license at one time reached a federal Court of Appeals.2o Singer's case prompted then Congressman (now Governor) Tom Ridge to comment in a letter asking U.S. Attorney General Janet Reno to address Singer's case:

Dr. Singer has been labeled a criminal. He has lost his license, and he has spent thousands of dollars pleading his case, thus depleting his resources. This case is a perfect example of what is quickly becoming a national problem. Child advocates have stated that although child abuse continues to increase, the number of cases reported has decreased. The reason is simple. Mandated reporters fear retaliation, and their fear is legitimate enough that they are willing to risk children's lives by ignoring the abuse.21
Although an ethics complaint filed with the American Psychological Association was dismissed, Singer continues, as of this writing, to be unable to practice as a clinician.

Other clinicians against whom apparently spurious civil suits have been filed include: Dr. Kathleen Faller,22 a well-known researcher and co-author of judicial training curriculum sponsored by the American Bar Association and the National Organization of Women Legal Defense Fund; Memory and Abuse author Dr. Charles Whitfield;23 former Treating Abuse Today editor, David Calof,24 and Dr. Laura S. Brown, former professor of clinical psychology at the University of Washington.25

Those clinicians who testify, especially if they do so repeatedly in family court, have become equally vulnerable to litigation; e.g., Linda Palmer26 and Cecilia Owens-Beckham of Oklahoma,27 and Dr. Mary Froning of the District ofColumbia.28 Even making a report apparently too favorable toward the credibility of the abuse disclosing child can provoke retaliation; i.e., Dr. Pamela Hall of New Jersey,29 Dr. Leslie Rudy of Ohio Susan Jones, formerly of New Hampshire,3! Dr. Virginia Humphrey ofCalifornia,32 and Dr. Daphne J. Timmons and Dr. J.W. Scott Wallace of North Carolina.33 Although Drs. Timmons and Wallace were vindicated, Christopher Barden, an attorney who has filed many suits against therapists, states that such victories are rare.34

Attorneys

In her 1992 testimony to Congress about the desperate need for judicial training on child sexual abuse, Attorney Joan Pennington, director of the National Center for Protective Parents in New Jersey, mentioned attorneys Garnett Harrison and Alan Rosenfeld as having either lost their licenses or been subjected to severe disciplinary sanctions in connection with representing parents trying to protect their children from child sexual abuse.35

The Oklahoma Supreme Court in April of 1997 issued a public reprimand to this author, then legal advisor for Stop Child Abuse Now (SCAN), for alleged "conduct prejudicial to the administration of justice,,36 in connection with her activities as a citizen child advocate. The United States Supreme Court summarily denied certiorari in October 1997.37 The child, on whose behalf this author had acted with "altruistic motives," according to the Oklahoma Supreme Court,38 was held to have been sexually abused, and as of December 1995, was not required to visit his abusers or their sympathizers except under supervision.39

In 1997, Georgia attorney Laura Burton, on behalf of a client, filed a federal claim against various government officials including a state court judge alleging 42 U .S.c. Sec. 1983 and RICO Act violations arising from a child custody case in which the identified child abuser received custody.40 Since that time she reports having been threatened with prosecution for wiretapping, found in contempt for publicly quoting from a public court order, assessed fines aggregating close to $100,000, and, as of this writing, is facing professional disciplinary action.41

Documentary Participants

Attorney Randy Burton, president of the Texas-based child advocacy organization Justice for Children, along with others including HBO, was sued in the early nineties for his role in a documentary entitled "Women on Trial.,,42 Produced by actress Lee Grant, the film suggested that there was corruption among Houston family court judges who frequently changed custody of allegedly abused children to their identified abusers.

Journalists

Michele Landsberg, a Toronto Star columnist who has declined to write sympathetically at the behest of individuals claiming to have been falsely accused of child abuse, has written columns criticizing the scientific claims of backlash spokespersons. Possibly because her newspaper supports her, she does not characterize her experiences as "retaliation," but indicates that the Freyds43 and other lovely people have attempted to bombard my paper with frequent, verbose, obsessive complaints, and their Canadian counterparts have done the same. At times, they've threatened to take me to the Ontario Press Council (a voluntary non-judicial tribunal for complaints against the press) but have not actually succeeded in doing so ... despite some typically false information that the Freyds attempted to spread on the Internet.44

Katy Butler, a free-lance writer who covered the Ramona v. Isabella trial for the Los Angeles Times and a contributing editor for Family Therapy Networker, was asked by Newsweek to write a story about the backlash. Butler was subjected to such "a well-organized action,,45 by FMSF proponents to block the story, that Newsweek ultimately declined to have Butler do the
piece .

The Southeast Oklahoma News reported extensively on events leading up to and including the aftermath of the March 5, 1995 murder of two-year-old Ryan Luke, the grandson of Don Luke, a rival newspaper editor. The death of the child quickly became a high-profile story throughout Oklahoma and continued to be so, even after the April 19, 1995, Oklahoma City bombing.46 News editor/publishers Kathy and Steve McGilberry found that they could no longer tolerate being boycotted by their advertisers, the pre-April 19, 1995 bomb threats to their facility, and other threats of violence they began receiving following their reporting. As they continued reporting on the trials which involved missing DHS records, alleged witness tampering, and grand jury investigations connected with Ryan Luke's death, the McGilberrys ultimately experienced pressure of such a level that by the end of 1997 they discontinued their newspaper.47

Police Officers

Police officer Art Acevedo suffered damage to his career due to another 1995 ruling of the Oklahoma Supreme Court. The Court's opinion made it clear that other interests outweighed Art Acevedo's First Amendment rights to expose and to try to rid the Department of a child molesting officer, as well as other corruption he allegedly found in the Muskogee Police Department.48

(AUTHOR NOTE: The unusual degree of danger associated with exposure of corruption in law enforcement precludes the citing of further examples.49)

Prosecutors
 

The Monahan Law Practice
300 North Pottstown Pike
Suite 210
Exton, PA 19341-2233

Phone: (610) 363-3888
Fax: (610) 363-2429