RAPE PROSECUTIONS, CONTRIBUTORY NEGLIGENCE, AND AFFIRMATIVE CONSENT

Josh and Eva are college sophomores who have been dating seriously for 9 months. They enjoy many sexual activities together, but neither wants to risk pregnancy or abortion. Both decided to wait until marriage before engaging in sexual intercourse.

One night while performing mutual oral sex Josh began pressuring Eva. Come on! Let’s do it! He said. You love me, don’t you? I really want to be inside you!

STOP! Eva replied. We’ve already talked about this. NO intercourse before marriage.

A fight ensued. Despite her screaming and resistance, Josh raped Eva nonetheless.

Shocked and devastated, Eva reported the crime to the police later that evening. Josh was arrested shortly thereafter.

Josh’s attorney, a middle-aged woman, posed two questions to the jury. Can you blame a man for believing that he had the green light to sexual intercourse when his partner is naked and engaging in mutual oral sex? What exactly is a man, all fired up and ready to go, supposed to think?

Even if most jurors believed that Josh was guilty of rape, would some jurors, men and women who were born in the 1940s and 1950s for instance, perceive Eva as negligent? Did she assume some of the risk, they might ask, by engaging in mutual oral sex?

These questions are significant. Juror bias in the interpretation of the facts surrounding a rape is ultimately more pernicious to alleged victims than juror bias about past sexual behavior. Statutory language prevents defendants from introducing evidence about a victim’s history or reputation, but the facts surrounding the rape itself are another matter entirely, whereby consent is the central issue therein.

If the victim of a crime, or an injured plaintiff, failed to act prudently, that failure is often assumed to have contributed to the outcome. This was especially evident, historically at least, in the prosecution of rape. Jurors would routinely rely upon an assumption of risk that was based upon a victim’s past sexual behavior. It was her fault, at least partially so, because she behaved the way she did.

Though jurors continue to incorporate non-evidentiary characteristics into their decision-making, rape shield laws now disqualify extraneous evidence that is inimical to alleged rape victims. That fact notwithstanding, our question still remains. Does pervasive bias exist when jurors evaluate evidence related to consent?

Affirmative consent means that both partners in a sexual encounter must affirmatively consent to each and every step prior to engaging in any sexual act. Only yes means yes, so to speak.

Think of a sexual encounter as a ladder where each step represents a sexual behavior. Every step, née behavior, would then need affirmative consent prior to stepping on it. Without explicit consent, it’s sexual assault. There’s no fast-forwarding where affirmative consent is concerned.

Rapists and sexual assaulting men have harmed so many women (and men) under the guise of consensual sex that affirmative consent is the necessary corrective. Keep in mind that a large percentage of sexual assaults come from sexual partners known to the victim.

As a practical matter, judges and attorneys can of course voir dire prospective jurors on affirmative consent during jury selection. Questionnaires designed for this specific purpose are ideal and will help increase awareness and acceptance for affirmative consent itself.

Unfortunately only a handful of states currently have laws enforcing affirmative consent. Until these laws become mandatory throughout the United States, and are supplemented by instruction in schools, and widely publicized in news outlets, rapists will continue to avoid convictions, needlessly extending the protracted suffering of victims.

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Tania L. Abramson, MFA

tanialoveabramson.com
artandtrauma.com
50yrslater.com

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Dr. Paul R. Abramson
Professor of Psychology, UCLA

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abramsonexpertwitness.com
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THE SEXUAL ABUSE OF CHILDREN: Perpetrators, Victims, and Bystanders

By Tania L. Abramson and Paul R. Abramson

For the most part they hide in plain sight, but are strikingly invisible too, sheltered and camouflaged as husbands, boyfriends, uncles, grandfathers, priests, teachers, coaches, neighbors, lawyers, doctors, police officers, friends of the family, boy-scout leaders; the list is long and notorious for the perpetrators amongst us. Sometimes we’re surprised by the emergence, for example, of young women perpetrators, largely middle school teachers, who make a sport of sexually abusing multiple 14 year-old boys, but more often than not, even the hardened amongst us, are shocked by the atrocity of the crimes we have investigated and the commonality of these offenses. The sexual abuse of children, like death and taxes, is implausibly a sure thing.

The victims, both female and male, deserve all the acceptance, love and support we can muster. Repeatedly violated, they bear witness to unimaginable crimes. Shocked, stigmatized, and ashamed of their misfortune, they must now find ways, often on their own – and rudimentary at best – to cope and survive. Some make it, many don’t, but not from a lack of effort. As self-destructive as it may be, their failure rests largely at the door of our indifference.

Most people can’t be bothered by the enormity of it all, and the chronic nature of its aftermath. They want to help of course, at least some of them, and they certainly want solutions, but they want them fast and cheap. They want to put this all in the past, as quickly as possible. Nobody really wants to hear about the sexual abuse of a child. The longer it takes to get over it, the more discomfort and powerless everyone feels, which is, to say it again, the reason why victims deserve all the acceptance, love and support we can marshal.

Then there are the bystanders, the voluntary servitude of the masses, as de la Boétie described them, the largest group of all. Some are the deniers, either in whole or in part, giving credence to the crime but not the criminal, or denying child sexual abuse in its entirety. More likely however it’s an unwillingness to accept that a specific person, a family member perhaps, sexually abused a child. The child must be lying, or has been pressured to do so. Revenge and financial gain are the most common excuses for this belief. What concerns us more however are the rest of the bystanders. Those who can’t be bothered by the clamor, who do everything possible to avoid the discomfort, and who want to remain, at all costs, conveniently oblivious. More than anything else, it’s their indifference to this tragedy that makes the prosecution and prevention of child sexual abuse such an intractable problem.

Now imagine this. Everyone joins together to banish child sexual abuse from the planet. No heads in the sand, no blinders on the eyes, no hands over the ears. Apathy becomes a thing of the past. This dream, and regrettably it’s only a dream, is hard to let go.

Picture what we could achieve if, at the very least, we all gave credence to the crime of child sexual abuse, and we all supported the efforts of those actively involved in the prevention and prosecution of this crime, as well as those actively involved in the support and care for victims. Though we are, sadly, a far cry from this goal, we can be comforted and inspired by the heroes amongst us – those people and organizations that have made these objectives a priority. Darkness to Light (D2L), Rape, Abuse and Incest National Network (RAINN), National Crime Victim Law Institute (NCVLI), all come to mind, the Yale University Child Sexual Abuse Clinic too. Blatt afram, Janus Rehabilitation (Iceland), the author Gerður Kristny (Iceland), plus of course the Leiden University Child Abuse and Neglect Program, and Dr. Iva Bicanic at the University Medical Center Utrecht (the Netherlands). Other organizations of note include Oregon Abuse Advocates and Survivors in Service (OASSIS), Domestic Violence Legal Empowerment and Appeals Project (DV LEAP), Child Abuse Listening Mediation (CALM), Survivors Network of those Abused by Priests (SNAP), Stop It Now, Educate4Change, and for male survivors specifically, Male Survivor, 1in6 (USA), Survivors Manchester (UK), and Living Well (Australia). For all of the other countless individuals and organizations throughout the world who are truly dedicated to this cause, but not included in this overly abbreviated list, we are equally grateful and encouraged by their devotion and efforts to treat, prosecute, and prevent child sexual abuse.

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Tania L. Abramson, MFA

tanialoveabramson.com
artandtrauma.com
50yrslater.com

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Dr. Paul R. Abramson
Professor of Psychology, UCLA

abramsonuclapsych.com
abramsonexpertwitness.com
artandtrauma.com
 

THE MUDDLE OF DOWNLOADING CHILD PORNOGRAPHY: Gawkers, psychotherapists and the priest penitent privilege

by Tania L. Abramson and Paul R. Abramson

If a California psychotherapist learns that a patient is watching child pornography, that patient must be reported to the police. Some therapists however challenged the reporting requirement, believing that it would deter patients from getting the help they needed.

California’s 2nd District Court of Appeals ruled that protecting sexually exploited children was a more compelling reason for upholding reporting laws. The appellate court also emphasized that not only is [child pornography] illegal, the conduct is reprehensible, shameful and abhorred by any decent and normal standards of society.

The clergy, as mandated reporters, also have responsibility for safeguarding children. Though spiritual counselors are exempted from reporting requirements under the priest-penitent privilege, this privilege in California does not include information concerning child abuse.

Producers, sellers and viewers all have culpability for child pornography. Viewers create the market for it. Without markets, producers and sellers vanish.

Obtaining forgiveness from holy confessions, or the prospect of curtailing child pornographic consumption as a result of psychotherapy, never mitigate accountability for this crime or eliminate the rationale for prosecution. All California mandatory reporters thus need to do their jobs.

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Tania L. Abramson, MFA

tanialoveabramson.com
artandtrauma.com
50yrslater.com

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Dr. Paul R. Abramson
Professor of Psychology, UCLA

abramsonuclapsych.com
abramsonexpertwitness.com
artandtrauma.com

THE PARENT ALIENATION SYNDROME: RESURRECTING DAUBERT IN A WAR OF ROSES

by Tania L. Abramson and Paul R. Abramson

How did psychological tests of pedophilia, and the diagnosis of Parental Alienation Syndrome (PAS), gain admissibility as expert testimony in the courtroom? The United States Supreme Court, in Daubert v. Merrell Dow Pharmaceuticals, ruled that scientific knowledge was the principle that dictates the admissibility of evidence. To now claim that psychological tests of pedophilia and PAS represent scientific knowledge makes a mockery of science itself.

There’s a long history of notorious diagnostic causation theories involving women. Nervous females were hysterics; refrigerator mothers caused autism. Vengeful mothers, under the banner of Parental Alienation Syndrome, are now believed to alienate their children from fathers who have been accused of child sexual abuse.

Are mothers more likely to be alienators in custody battles? Perpetrators of child sexual abuse are overwhelmingly male. The U.S. Justice Department estimates that approximately 30% of perpetrators of child sexual abuse are also family members. The gender disparity in protecting kids from familial sexual abusers is a byproduct of the differential probability of molesting kids. The nature of the crime itself would also dictate strong emotional reactions from the protecting parent.

Richard Gardner, a psychiatrist, coined the phrase Parental Alienation Syndrome (PAS). Based upon his impressions, Dr. Gardner concluded that spiteful mothers invented child sexual abuse claims. Those claims, Dr. Gardner believed, were designed to insure the sole custody of children in protracted custody battles. To further facilitate their objectives, vindictive mothers would then alienate their children from their fathers, hence the name of the syndrome PAS.

Dr. Gardner also believed, according to his 1992 self-published book True and False Accusations of Child Sexual Abuse, that vengeful mothers were women who were rejected by their husbands, and are now exacting retribution by inventing claims of child sexual abuse. Inventing claims of child sexual abuse may also have resulted, Dr. Gardner further noted, from women fantasizing about adult-child sex. Dr. Gardner nonetheless considered all sexual paraphilias, including pedophilia, valuable mechanisms of species survival.

It’s easy to craft a psychologically enigmatic narrative in the absence of data. Narratives that are based upon nothing more than impressions however will never amount to science. If they were purported to be science, psychology and psychiatry would crumble under the weight of cryptic storylines.

To avoid this kind of disintegration, scientists elevate impressions, hunches, and theories, by objectifying them so that predictions from the theory can then be rigorously tested. The outcome of testing is in turn used for the continued evolution of the theory. Daubert in fact promotes falsification as a cardinal element of science. Theories are elevated to science only through rigorous attempts to falsify them through testing.

Eight criteria comprise PAS. Weak, frivolous, or absurd rationalizations for the deprecation, for example. None of these criteria however have been objectively defined, nor is PAS accompanied by objective diagnostic measures. That this syndrome only arises in fierce custody battles, where experts in PAS are the only ones who can discern it accurately, is hardly reassuring as well.

One of the few empirical studies on PAS, a doctoral dissertation by Carlos A. Rueda, which was then published in The American Journal of Family Therapy, examines inter-rater concordance. Dr. Rueda is a licensed social worker with a doctorate from the online Walden University. Dr. Rueda describes his dissertation as sanctioned by Dr. Richard Gardner.

The final statement of the abstract of this paper is a curious one. The data gathered from the completed surveys was sufficiently reliable to suggest a wider study for the purpose of classification in the next edition of the DSM. As the reader will soon discover, this study was anything but that, raising questions about the propriety of this project. Was it simply to campaign for the inclusion of PAS in the DSM?

A small sample of therapists, whose degrees are never mentioned, were given 5 cases to evaluate. Were they psychiatrists, psychologists, or marriage and family therapists? In either case, it would be very useful to know. The 5 cases themselves were previewed and evaluated by a panel of experts in the field of child custody and PAS. Was Dr. Gardner one of the experts? Were family law attorneys experts too?

Most striking however was the fact that three-quarters of the therapists (44 out of 58) refused participation. If the sample was small, and not representative of the range and expertise of therapists to begin with, three-quarter attrition is so dismal that one wonders how the research was published in the first place.

Dr. Rueda also conflates inter-rater concordance with reliability, both of which have no relevance to the validity of PAS.

Presume for a moment that we have created a syndrome called Hollywood Producer Delusions (HPD) to categorize people who delude themselves into believing that they are Hollywood producers. We then create 5 sample cases of what our experts (undefined) believe are deluders, and we then ask a small number of Hollywood types (undefined) to participate in a study to see if they can agree, based upon the criteria we claim to be definitive of deluders, that our 5 cases are indeed truly deluders.

Three-quarters of our sample however refuses to participate. Nevertheless, the remaining twenty-five percent is largely in agreement. Would that finding prove that HPD is a syndrome? Or is it simply that our small group was in agreement when using our criteria? The latter is obviously the answer.

If two months later we give that twenty-five percent the five cases once again, as Dr. Rueda did as well, and asked them a second time how the cases fit our criteria, would that be a good measure of reliability? Or is it a good measure of how much our tiny sample remembered participating in our studies two months ago? Dr. Rueda nonetheless claims that a PAS diagnosis is now reliable because his truncated sample of therapists (undefined) used his expert criteria (undefined) in a similar fashion two months later when they rated the five cases again.

Reliability relates to the overall consistency of a measure. If a test indicates that a sample of children is autistic, that test is reliable if the sample is diagnosed as autistic once again in the future. It does not however prove that the test is a good measure of autism, only that the test scores are similar when repeated. Many factors can also influence reliability, including remembering a test and then responding consistently.

Complicating reliability even further is the fact that some traits vary over time, anxiety for example. Is a test unreliable if on a second assessment a subject, during summer break for example, is less anxious? Or was the subject more relaxed when tested a second time?

If one purports to have truly discovered a trait or syndrome, one obviously needs to demonstrate that it can be reliably assessed. Without more information on the reviewers, the criteria, and the 5 cases, plus a more robust sample of therapists, it’s hard to know what Dr. Rueda achieved, but it certainly wasn’t a study of the reliability of PAS.

Dr. Rueda also claims that he had conducted an initial test of content validity, though he uses this term interchangeably with reliability. Where content validity is concerned, nothing could be further from the truth.

Content validity refers to expert opinion that a measure has been designed to assess every facet of a construct. As a proxy for expert opinion, Dr. Rueda used instead the opinions of his self-selected and undefined number of experts. That Dr. Paul Fink, a past President of the American Psychiatric Association, had previously described PAS as junk science would alone make content validity of PAS impossible.

How does one objectively define and quantify absurd rationalizations for the deprecation. Even if this criterion weren’t easily reducible to a quantitative measure, one would still have to demonstrate that this criterion, in conjunction with other criteria, has predictive validity if PAS is in fact a legitimate syndrome.

To do this, one would have to first construct a valid measure of PAS (an impossible task in and of itself) and then demonstrate, for example, that the test predicts which parents, at some future date, will alienate their children from a co-parent in a bitter custody battle. Large, representative samples of newlyweds would suffice, and the predictive validity of the test could then be evaluated according to how it predicts divorcing parents behavior during custody battles. Armchair theorizing, and imprecise data may be useful in a social setting for therapists, but as soon as it is introduced into the courtroom, it must rise to the standard of scientific knowledge. The costs of misdiagnoses are extreme.

That is the real issue herein. It relates not only to PAS, but to tests of pedophilia too, both of which are often used in conjunction. PAS purports to eliminate false claims of child sexual abuse, and tests of pedophilia purport to exonerate men wrongly accused of sexually molesting a child.

If this were simply a turf battle among warring academics, an ever-present phenomenon in the academy, there would be no reason for alarm; theories and research regularly fall from grace, with no societal impact whatsoever. When theories and research are introduced in a courtroom however, it’s another matter entirely, particularly if the error rate is high.

Diagnostic value is largely determined by two factors, improving upon the base rate and the costs of errors. This is no less true of a biomedical marker than it is of a psychological one. A diagnostic test must therefore improve upon guesses that rest upon base rates alone, but more importantly diagnostic tests must also avoid catastrophic errors.

Admitting expert evidence in a court of law for a syndrome (PAS), or a psychological test of pedophilia, both of which are void of scientific credence, is an open invitation for appalling consequences for children. Pedophiles are going to gain sole custody of their kids, and they are going to be exonerated for child sexual abuse too.

This is not to say that a mother has never falsely accused a father of child sexual abuse to gain sole custody of a child. Such cases most certainly exist. Men on the other hand are more likely to hide assets in divorce proceedings, and engage in domestic violence, both of which can have devastating impacts on child welfare too. Therapists have every reason to be concerned about vicious custody battles and the psychological health of children.

It is nevertheless extremely shortsighted to use dubious diagnostic measures that never reach the threshold of scientific knowledge, and are accompanied by tragic errors, in matters involving the welfare of children. Eliminating testimony about psychological tests of pedophilia and PAS from courtroom deliberations would be a huge step in rectifying a significant problem underlying the resolution of custodial issues in divorce.

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Tania L. Abramson, MFA

tanialoveabramson.com
artandtrauma.com
50yrslater.com

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Dr. Paul R. Abramson
Professor of Psychology, UCLA

abramsonuclapsych.com
abramsonexpertwitness.com
artandtrauma.com

A MAGIC BULLET FOR PEDOPHILIA?

by Tania L. Abramson and Paul R. Abramson

Swedish scientists are hoping to cure pedophilia with a drug that lowers testosterone. Using men who’ve called an anonymous hotline to get help for their pedophilic impulses, the clinical trials have now begun.

Men who are troubled by, and seeking help with, pedophilic intentions should certainly be encouraged to pursue treatment, but such men are hardly a representative sample of pedophiles. The motivation for calling an anonymous treatment hotline is undoubtedly capricious too, including remorse over actively abusing kids. Even if such a drug proved effective with volunteers, there are no guarantees that convicted pedophiles could then be forced to take it.  

Pedophilia depends upon maximizing access to children, and relies upon grooming (constant attention, excessive flattery, etc.) to reduce the probability of disclosure. Young victims who have been sexually abused under the guise of affection rarely disclose the abuse for fear of sending the perpetrator to jail.

If we can’t easily detect pedophiles, let alone identify and treat those who sexually abuse children, perhaps the fundamental question then is how can we reduce the opportunities for adult men to sexually abuse kids? If pedophiles are rare but omnipresent, and we can’t scare them into remission with punitive measures, it’s essential that we turn instead to developing stronger and more extensive safeguards than hoping for a magic bullet to solve the problem. Strengthening the likelihood of disclosure, to teachers for example, or school counselors and pediatricians for that matter, will do a better job of protecting kids in the long run, while simultaneously insuring rapid treatment for victims of child sexual abuse. A stronger prosecutorial commitment for apprehending pedophiles is obviously necessary too. 

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Tania L. Abramson, MFA

tanialoveabramson.com
artandtrauma.com
50yrslater.com

dr-paul-at-dachau-small-frame
Dr. Paul R. Abramson
Professor of Psychology, UCLA

abramsonuclapsych.com
abramsonexpertwitness.com
artandtrauma.com