01apr13d Artikel Eriksson
by Tomas Eriksson, specialist in general and forensic psychiatry
[Translated from the Swedish newspaper "Dagens Nyheter", 13th of October 1995].
In two previous articles (Dagens Nyheter "Debatt" 28/9 and 28/10 1994) I wrote about a legal case concerning a 65 year old former teacher with an impeccable past, who was sentenced to 4 years in prison - besides the payment of a quarter of a million Swedish crowns in damages - after having been charged for rape and maltreatment against one of his son's foster-daughters. The reason why I got interested in this matter was that I, after going over the acts from the court trial, found it manifest that there was no real evidence against the man, and that he had consequently become victim of a miscarriage of justice.
After several rounds in Högsta Domstolen [the Supreme Court, transl.], and while he had begun to serve his sentence and had paid a not irrelevant part of the damage amount, he was on the 27th of September 1995 granted the possibility of a new trial in a higher court of appeal. Within a short time, a re-trial is expected to take place at the Higher Court of Stockholm, and with respect to the amount of evidence against him presently, he will very probably be completely acquitted of the terrible accusation which has been pending over him for several years [he was later indeed acquitted, transl.]. This, of course, is satisfactory. Unfortunately it is not sufficient to keep one's mind at peace by the pleasant thought that justice has managed to verify the truth, and that the current case was just a single failure in the legal system.
Precisely in sex-offense cases - and especially when children are supposed to be the victims - on the contrary it seems that the Swedish legal machinery collapsed, and has fallen back to a position where it is accepted that ordinary practice (where no one can be sentenced without guilt being confirmed beyond a reasonable doubt) no longer applies. Although sex-offenses, when really committed, are a very serious matter, and must be prevented energetically, it is also a serious matter when people are sentenced for crimes they have not committed. In cases about suspected sex offenses it seems that courts and prosecutors, as regards the evaluation of guiltiness, often choose to believe in experts instead of making a standard and independent estimate of witness and technical investigations. Although a reason for this could be that courts feel uncertain about the interpretation of circumstantial and testimonial evidence in sex offense cases, such a practice is unacceptable.
Many of the experts who participate in these court proceedings are evidently false prophets with highly preconceived ideas about sex-offenses. Among them, it is often quoted that children never lie, and furthermore that it is possible, when one has received the proper instruction and knowledge, to determine whether a specific person is telling the truth: all this with sufficient certainty enabling the expert to witness in court. This is of course impossible: there is no expert, unfortunately, with the built-in capability to act as lie detector.
A lot of misinformation is also put into circulation with respect to symptoms in a child that should make one think that the kid has been the object of a sex-crime. And concerning the reasons for these sex-crimes, too. In this way it has quite seriously been stated that, if a child is lively or extrovert, or if he/she shows signs of depression, sleeplessness, criminality or abuse, then this ought give reason to suspect that the child may be the victim of sexual abuse. That the child does not like yogurt is considered as an indication of oral sex-abuse, etc.
According to another opinion it is often suggested that sex-crimes should primarily be committed by persons who have themselves been the object of sex-crimes during their own childhood. Still another thesis imported from the States tells us that memory of having been sexually abused in one's childhood may have been repressed (forgotten) till it has become conscious again, by means of psychoanalysis, later in adulthood.
Such opinions are completely unfounded. There is no scientific knowledge explaining the motivating factors which cause some people to commit sex-offenses, nor about the symptoms which can be expected from those that have been the object of these offenses. The reported statements do not seem very probable, either. They do, however, have acquired a vast acceptance, and thus they possess all the characteristics of a myth. The courts have neither been able to keep their heads cool with respect to these groundless hypotheses, in that they are frequently presented as support for convictions.
A grave responsibility for the fact that these myths have won such wide spread approval, rests on the Swedish division of Rädda Barnen-organization [Save the Children] which has exploited these myths in a number of pseudo-scientific publications, for instance "Mot dessa våra minsta" [Against These our Little Ones] by Monica Dahlström-Lannes. This and other similar books are unfortunately presently in use as instruction manuals in police and prosecutors offices, and also as education tools for psychologists, social workers, and staff of recreation centers for children and youths. The myths that are made public in such a way by Rädda Barnen, are also frequently the basis of the activity propelled by the above-mentioned judiciary experts.
Monica Dahlström-Lannes spends her time systematically molding a single-track public opinion in these matters. As late as the 2nd of October this year, in Dagens Nyheter Debatt, she has presented a wide number of assumptions which are clearly meant to enhance the numerous rumors that threaten the judicial guarantees in this field. She affirms - without any valid reason - that "just a tiny part of the factual offenses are reported to the police", and also that "certain sexual offenses towards children are made invisible..." because of misleading statistics.
Her central attitude as regards basic judicial-safety questions is sensational, too. That she considers the fact that the suspects "are allowed to see the confidential pre-investigation" to be "a big deficiency in the judicial system" indicates her longing for a judicial system without public control and the possibility of scrutiny, which is completely unfamiliar to the Swedish juridical tradition.
Such conduct like the use of court-experts in incest trials has been commercialized in a very repulsive way. During an observed period, for instance, the courts have paid in total 624.834 crowns [approx. 100.000 $] to a regional employed child-psychologist in Skåne [South Sweden] who, in her spare time, has cooperated with several courts by producing 24 reports to investigate whether children had shown signs of presumed incestuous abuse. At the end of her investigation she illustrated in the "sakkunnigutlåtanden" [expert utterance] to the courts, that all the 24 children showed signs of sexual abuse.
Also the manner in which children are questioned, when they for some reason are suspected to have been victims of sexual abuse, is often unacceptable. For example, it's customary that several assertions about sexual encroachment are presented to the child - repeated at intervals - and that the confirmation of an encroachment having actually occurred only comes in the shape of nods or just through a couple of words. In this way it seems very easy to manipulate children to make false accusations.
My criticism about the collaboration of several experts to the passing of a sentence in sexual abuse cases does not apply to the expert's collaboration offered by people at the Vittnespsykologiska Laboratoriet [Witnesspsychological Laboratory] in Stockholm. This group does not pretend to be able to evaluate several more or less unintelligible symptoms on the victim, but they instead present to the courts a systematic combination of different witness-depositions. Such a combination can later be independently evaluated by the courts, and it may be useful in the analysis of complex material.
In the above mentioned article, Monica Dahlström-Lannes has chosen to make another kind of evaluation. She disallows the analyzing and verifiable combination of depositions presented by properly instructed and trained "witness-psychologists", but she pleads instead for the participation of child-psychologists and pediatricians which, as a result of her "clinical experience with children", constitutes an unverifiable judgment about a child's credibility.
After that I, in the fall of 1994, wrote my articles in Dagens Nyheter about the man who has now been granted a new trial, I received numerous letters and telephone calls from people who have claimed to be in the very same situation as the man I wrote about, i.e. being sentenced for sexual crimes to which they had pleaded not guilty. By request from some of the persons concerned I exanimate the court documents, but I did not have the possibility to conclude whether they were guilty or not.
On the other hand I did, however, find numerous cases in which I, as interested citizen who studied the trial papers very carefully, could not find that the presented proofs were sufficient to persuade me about the question of guilt. Of course I find it alarming that a mass of evidence which does not convince me at all, is evaluated by the court as being so grave that the accused could be found guilty beyond reasonable doubt.
A very alarming situation is thus looming. Courts that in such cases as these operate with another kind of accumulated evidence and with an evaluation of the proofs which is different from other legal cases, experts who build their opinion on myths (and make a lot of money through it) emerge as oracles in the courts, many people who have been sentenced by means of superficial evidence do time in jail and are often sentenced to pay high damages even though they are perhaps innocent, and a lot of children run the risk of suffering a lifetime, because of being conscious that they were the reason of the jailing of somebody just because they were manipulated to make a complaint.
Since much seems to point out that the handling of sexual abuse cases has hitherto been uncommon (and among other things has implied that one has disregarded current principles about proof-evaluation), uncommon measures must now be taken: in part to correct the mistakes which have been committed, in part to prevent further judicial encroachment.
Högsta Domstolen ought for a period to employ a less severe practice than normally endorsed in appeal cases. Furthermore, Högsta Domstolen ought clearly to declare that producing evidence has to be the same in incest cases as in other legal cases. It is therefore important that Högsta Domstolen gets a solid understanding with respect to the value of the collaboration of different kinds of experts to this kind of court trials. Prosecutors ought to take their responsibility and take their duties into account in order to meet demands of impartiality. The Government (having the primary responsibility as regards the judicial guarantees in this country) ought keenly to follow the situation in this field.