by Aidan Maloney
The codes of practice governing Therapy and the Law are very different yet there is increasing contact between these two domains due to changes in the Law and increasing crime. One needs to be clear about boundaries, stereotypes and prevalence and incidence.
Therapy and Crime
The relationship between therapy and crime was once a matter of choice about whether a therapist wished to work in the area of crime or not. Therapists could choose whether or not to enter the domain of criminality like missionaries going abroad to help the unconverted. One could argue whether therapy or at least some therapies could help in crime prevention or rehabilitation of prisoners. The two worlds were very separate with the therapist in the role of helping to transform an individual from criminal to law abiding behaviour. The therapist also encountered crime when people who had been victims of crime sought help to recover from its consequences. In contrast to psychotherapy, psychiatry has always been more involved with crime. By adopting the medical model of “experts”, psychiatrists have been prepared to advise the courts about the sanity or insanity of an individual but generally therapists do not see themselves as the arbiters of such questions. Recently however the boundaries between the two worlds of psychotherapy and crime have been been rudely breached. In some of the breaches the legal world threatens to pour in and swamp psychotherapy with its rules, practices and procedures and in other breaches the flow is in the opposite direction with proposals that courts should imitate therapy.
Proposals like mandatory reporting of sexual abuse of children would, if adopted, immediately turn therapy into a legal procedure where the rules of evidence would take precedence over therapeutic practice. The effects could not be limited to such cases since potentially any therapeutic intervention with a child could lead to such a discovery and therefore all interventions would potentially be affected by the possibility.
Some debates about the incidence and prevalence of crimes especially those of a sexual nature and proposals as to how they are legally treated suggest that a court should accept a therapeutic code of practice. For example it is advocated in cases of sexual harassment that the victim’s perspective should determine whether or not a crime has been committed. Such proposals virtually eliminate the court proceedings since the allegation becomes the proof that the crime occurred.
Currently there is a presumption that sexual crime and crimes against children are increasing much more than any other sort of crime. Much of the evidence for the incidence of sexual crime comes from agencies specialising in helping the victims of such crimes. Therapists and social workers are also vulnerable to the hazards of any occupation and as it is very easy for a police-person to become convinced that the world is populated by offenders it is also easy for therapists who specialise in particular areas of treatment to mistake incidence for prevalence. We begin to think that what we encounter each day represents the extent to which the experience is reflected in the rest of society. “in every Irish rape crisis centre the largest number of clients are adult survivors of child sexual abuse ranging in age from 17 to 70.” ¹
Due to a reluctance to acknowledge the incidence of child abuse in the past a cohort of survivors from past sexual abuse is seeking therapy now. However once those people have received the support they need, the demand for therapy specific to this area may decline relative to what it is now.
Rape Crisis Centres do not specify what definition or classification system they use. If they apply the definition that the client’s perception (in fact it would appear the first phone call) defines the crime, then their statistics do not reflect crimes but allegations. Rape Crisis Centre therapists in their counselling role are bound to support their clients, but it is a mistake to transport what happens within a counselling framework to the rest of the social system, especially the legal system. Therapists accept the client’s story as valid within a therapeutic framework. Such perceptions may or may not be validated in a courtroom. To expect that they should be automatically accepted in a legal context is to apply to a courtroom the standards and principles that govern an entirely different activity.
Finally to the extent that the abuse, they identify arises from the use of techniques to recover repressed memories then there may be doubt about the validity of some of the historical abuse, but a discussion of the validity of such techniques is beyond the scope of this article.
A recent study of crime in Britain by Charles Murray² shows that in the last thirty-eight years the number of crimes has increased twelve fold and the number entering prison increased two and a half times. Add in the effects of shorter sentences and the number of prisoners only doubled. The decline in the use of imprisonment has varied from crime to crime.
“In 1954 the number of people sentenced to prison for serious wounding, where life is endangered, represented one out of five assaults; in 1994 one out of eight – a drop of 45%. For rape, the number of people sentenced to custody went from ore than one out four rapes to fewer than one out of 12 – down 69%. Burglary went from one out of 14 to one out of 82 – down 83%. Robbery went from one out of three to one out of 19 – down 85%.” As Charles Murray says;
“This is a matter of arithmetic, not ideology, as all the data have been corrected for changes in crime definitions and reporting procedures..”
The British Home Office has been cracking the total incidence of crime as opposed to reported crime since 1981 through the British Crime Survey. The statistics show that 65% of serious crime was reported in 1981 compared with 67% in 1995. So over that period the reporting of crime is remarkably stable. The incidence of crime has however increased by 80%.
So why is it in Britain that;
“For every crime the odds that you will be found guilty have declined sharply – by two thirds or more.”?
Murray examines some of the reasons why the system, where someone reports a crime, the police catch the criminal, the prosecution obtains a conviction, the judge sentences, has broken down. The most obvious problem is that the police are overwhelmed with the increase in crime. “Cautioning” – where a perpetrator is let off with a warning rather than court action has increased from 5% in 1954 to 16 % in 1994. The introduction of the Crown Prosecution Service in 1986, replacing police prosecutors with lawyers was followed by large decreases in convictions and discontinued cases.
Prisoners serve a much smaller portion of their sentence compared to the past. In Ireland we know that on average they now serve only 20% of their sentence. Surprisingly the judiciary who are often blamed for not being severe enough on convicted felons in Britain have changed very little in their sentencing policy. In 1954, 17.5% of guilty verdicts involving indictable crimes resulted in immediate custodial sentences. In 1994 the equivalent figure is 16.9%.
Without Irish statistics one cannot draw similar conclusions but it is reasonable to assume that we have experienced a similar surge in criminality and that our system has also failed in some manner to cope.
The evidence demonstrates that overall crime has increased and that isolating particular crimes, especially gender specific crimes, from overall trends can give a distorted impression of what is happening. It would be very surprising if all the work on gender equality had resulted in the paradoxical effect of making the system less responsive to such issues. The one area according to Murray where the police in Britain do almost as well now as in 1954 is for sexual offences and other crimes of violence against the person.
Table 1 shows figures for allegations and confirmed cases of child sexual abuse from Health Boards. There have been increases in both allegations and cases confirmed since 1984. In 1983, 1984 and 1985, all allegations were confirmed. Such a correlation suggests the possibility of underreporting but the later figures with a confirmation rate of 44% suggest a possible over-reporting of alleged child abuse. This is not to say that all child abuse is reported. The nature of the crime is one of concealment and it can be difficult to detect. Nevertheless if the Health Boards which are not subject to the rigours of legal proof do not confirm 66% of the alleged cases, then there is a probability that some if not the majority of these cases represent false or erroneous allegations. These figures suggest that there is now over-reporting of alleged sexual abuse or at least mis-reporting in that so many of the cases are not confirmed.
Some Mothers and Fathers
Current media perceptions about violence suggest that men are the villains and fathers are the worst of all for abusing their children. The media tends to concentrate on the incidence of abuse as reflected in notorious cases before the courts but it seldom asks about the prevalence of abuse.
The Irish Society for the Prevention of Cruelty to Children (ISPCC) commissioned a survey, Childhood Experiences and Attitudes, where a sample of 1001 respondents were asked about their childhood experiences. The survey was controlled for sex, age, socio-economic background, urban and rural representation to ensure it was representative of the population of the country. All those who experienced physical punishment at home were asked who did the punishing?
The answers in Table 3 show that the mother alone was responsible in 39% of the cases and the father in 17%, while both were responsible in 37% of the cases. Taking both categories together shows that mothers (76%) outnumber fathers (54%) in administering physical punishment to children. Even when the question is further refined to identify constant and frequent physical punishment mothers (74%) still outnumber fathers (59%).
Table 6 shows that children are much more likely to be abused by neighbours, strangers and other persons than by relatives and one of the principal targets of the report, fathers, do not register at the 1% level in relation to sexually abusing their children.
As far as the Childhood Experiences and Attitude Survey findings are concerned, children are more likely to be physically abused by women and sexually abused by men but neither form of abuse is solely limited to one gender.
Within our current legal system the view of rape as a sexual crime is unique. The concept of rape has traditionally been specifically identified as a crime by a male against a female. This is because the crime is defined by its physical characteristics (penetration). Rape is defined in the Criminal Law (Rape) act 1981 as “unlawful sexual intercourse with a woman who at the time of the intercourse does not consent to it, where the man knows that the woman does not consent, ” or “he is reckless as to whether she does or does not consent” The Criminal Law (Rape) Amendment Act, 1990, “extended the definition of rape from vaginal intercourse only to include penetration (however slight) of the anus or mouth by the penis, or penetration (however slight) of the vagina by an object held or manipulated by another person”. The 1990 Amendment Act therefore opens the possibility for the first time of a woman committing rape under the clause, “penetration of the vagina by an object held or manipulated by another person”. Despite these changes the victim of rape is still limited to being female although the perpetrator could now also be female.
Is there not a case to be made to make rape a gender neutral crime? If as happened in the past the legislation begins by presupposing that rape is defined as penetration then the presumption is that the perpetrator is male and the victim female. However if one begins to define rape from the point of view of consent and the absence of consent as being the defining characteristic, then rape can be committed by either sex.
The Criminal Law (Rape) Act, 1981 provided no definition of consent but the 1990 Amendment Act includes the following provision, Section 9 –
“It is hereby declared that in relation to an offence that consists of or includes the doing of an act to a person without the consent of that person, any failure or omission by that person to offer resistance to the act does not itself constitute consent to the act.”
The Law Reform Commission recommended that a statutory definition of consent be as follows;
“Consent means a consent freely and voluntarily given and, without in any way affecting or limiting the meaning otherwise attributable to these words, a consent is not freely given if it is obtained by force, threat, intimidation, deception or fraudulent means.”
If rape is defined as a sexual act where consent is absent (by force, threat, intimidation, deception or fraudulent means) then men as well as women and children can be victims of such a crime.
A most revealing question regarding our present system is, what crime is a woman who has had sexual intercourse with a child charged with – rape or sexual assault? The answer is sexual assault. Rape is a felony punishable by penal servitude for life, sexual assault is punishable by a maximum term of five years imprisonment. The present system in this instance discriminates in favour of women. In the case of incest the penalty for a man is life imprisonment but the penalty for a woman is seven years.
There is a trend towards a gender neutral definition of rape but some argue that “gender neutral legislation has the unfortunate effect of neutralising the reality of unequal power relations between men and women expressed through men’s sexual violence to women….. The equal treatment of women and men within statute law does not reflect or appropriately address a socio-cultural reality in which power relations are specifically gendered and seriously unequal.”
This contravenes a basic principle that people should be treated equally before the law and suggests that past social inequity can be redressed by subsequent legal discrimination. However in Canada gender neutral definitions of crime and policies of non-discrimination have changed the profile of the rape victim from almost 95% female to a sixty:forty ratio of females to males.
Victim Impact Reports
Another area where the therapist and the law can connect is in the area of victim impact reports where a therapist is asked to state the extent of the injury or suffering undergone by a victim. While these reports may be beneficial for the victim in a legal context, their therapeutic function is much less clear since they may have consequences for delaying recovery. Some professionals have noticed that such requirements can extend the victim’s trauma and delay recovery, “Unfortunately, it (victim impact report system) may have a downside for some victims because it can encourage some people to remain ill for longer for fear that the perpetrator may get a shorter sentence if she appears to be recovered” 
Up to now the Western legal tradition has tried to reduce the “eye for an eye” approach to justice by regarding the crime as being committed against society and placing the responsibility of deciding the appropriate penalty on society and its representatives in court. It also protects the victim from the responsibility in cases of miscarriage of justice. In Saudi Arabia for example a relative of someone who is murdered has the right to recommend that the murderer should be executed or not. One wonders what the psychological consequences are if having approved the execution, the person discovers subsequently a miscarriage of justice occurred.
Children are not equal to adults. The legal and judicial process takes cognisance of this fact. For example in the case of a sexual offence against a minor, the issue of consent does not arise with regard to the guilt or innocence of the accused. The only point at issue is whether the accused committed the act6. In fact the perception of the child as to whether the act is right or wrong is not even a critical determinant of the guilt or innocence of the accused. It is possible for the child to think the act was okay and for the court to determine quite rightly that the act was a criminal offence6.
There have been a series of reforms to facilitate children giving evidence in court. In the past only sworn testimony was admissible in a criminal trial. Since very young children might not understand the significance of swearing an oath to tell the truth, their evidence was not admitted. This was amended (1908) to allow for unsworn testimony that could be corroborated. In 1992 a further amendment removed the requirement that evidence should be corroborated and a child under 14 years can give evidence as long as the court “is satisfied that he or she is capable of giving an intelligible account of events which are relevant to the proceedings.”
Most cases of child abuse are processed through the civil courts rather than the criminal courts and this is because the requirement for proof in criminal cases is “beyond reasonable doubt”: whereas the requirement in civil cases is the “balance of probabilities.”7 In a case where there is conflicting evidence and no corroboration, there is no other measure to use in deciding culpability except on the balance of probabilities. Bringing such a case into the criminal court will result more often than not in the defendant’s dismissal because the criterion of “beyond reasonable doubt” will not be satisfied.
Detection and verification are the principal issues relating to child abuse. In fact all interviews with a child in such a case should be videotaped so that any therapist who practises in this area would require such facilities as well as considerable training in eliciting information with non-directive or open questions.
The rush to use non-validated methodologies to verify suspected cases, although well intentioned, may have resulted in undermining confidence in this area. It’s like having a forensic test which detects chemicals but cannot discriminate between legal and illegal chemicals. Such an issue arose in the case of the Guildford Four where the forensic test detected a chemical that is contained in explosives and shoe polish. Unfortunately the jury were not told of the problem.
Divorce and separation arc two more areas where counselling/therapy and the law have increasing contact. Recommendations that counselling and mediation should be a prerequisite to the legal process reflect the view that counselling and therapy may be able to prevent some marriage breakdown or ameliorate the effects of breakdown and separation. However in this context counselling interventions to resolve relationship problems can have legal implications to the detriment of a spouse if the marriage breaks down and eventually ends up in court. For example a trial separation where one spouse agrees to leave the home to give breathing space and time for reflection can become evidence of desertion by the time a case comes to court. Counsellors and mediators need to be aware of the consequences of such recommendations and advise the clients of their legal implications.
At present Family Law is administered in the Family Law Court which is held “in camera”. The “in camera” rule was invoked to protect people against publicity but it also creates great ignorance about what is happening in a legal area which will affect more people than possibly any other single area of law.
The Commission on the Family summarised many submissions to them as follows;
“There was general dissatisfaction with the custody judgements with many submissions considering that the father has to prove his fitness to maintain his involvement with his children and that there is a judicial assumption that the mother is blameless.” 
It is the opinion of the legal people who deal with this court that where conflict arises over custody, unless the father can prove that the mother is either a drug addict, a spendthrift, or insane, she will be awarded custody of the children. This presumption in the interpretation of the law reveals a gross bias against fathers and in favour of mothers.. There are many fathers who are expelled from their homes, deprived of their children and financially impoverished. “There are ten thousand more fathers in this appalling situation today than there were this time last year. There are up to twenty thousand children who have been divorced from their fathers and whose rights have been totally abrogated in the last twelve months. Up to four hundred children every week enter this system.” 
As marital breakdown increases, the damage caused to spouses and children will become a major social concern and a point of contact between counselling/therapy and the legal system.
Finally, what is the prospect of eradicating violence from our society? Of course it would be desirable if it were possible. Our approach to dealing with violence will be reflected in whether or not we start with this assumption. Is it possible? Zero Tolerance policies are being increasingly recommended as a solution to violence and they have superficial attraction which may be counter productive. So in the best tradition of therapy I offer a metaphor as to the likely consequences of adopting such a policy.
Californians live in one of the most attractive places in the world. California has a beautiful climate, stunning scenery and unequaled economic prosperity. It’s only in half-jest that the inhabitants refer to it as paradise.
Californians live under two great natural threats, earthquake and fire. Those who live in the valleys are most at risk from earthquake and those who live in the mountains are most at risk from forest fires. Many Californians live in beautiful timber houses on afforested hills and mountains. On every mountain, forest rangers continuously monitor the horizon for the slightest sign of a vapour trail that might suggest a forest fire. In the past, once a sign of possible fire was detected the rangers called in land and airborne firefighters to put out the fire as quickly as possible. This eliminated forest fires for some time.
However the risk of fire began to escalate. The debris from the forest (leaves, bark and undergrowth) accumulated around the trees so that every minor fire became a potential conflagration capable of devastating the entire forest and all the houses.
Closer study of the ecology of afforested areas revealed that minor fires in the past served the function of removing the debris before it built up to such a proportion that it threatened the entire forest. Small fires are nature’s way of saving the forest from obliteration. Californians in their desire to eliminate all fires were unwittingly creating the conditions for far greater disasters than would naturally occur. The evidence of these minor fires is etched in the bark of the trees that have survived for a hundred years.
Today the rangers who monitor the horizon still call in the firefighters when there is a sign of vapour. Now they have to decide whether it is a sign of rain, or a minor fire or potential conflagration. That decision is never an easy one.
[¹] Report of the Working Party on the Legal and Judicial Process for Victims of Sexual and Other Crimes of Violence Against Women and Children, The National Women’s Council of Ireland, 32 Upper Fiizwilliam St., Dublin 2, October 1996, p.53. [²] Murray, Charles “Sentenced to a crime wave”, Sunday Times. London, 5th January 1996, p.2 [³] Dept. Of Health Statistics, I am indebted to Padraig Carroll, Secretary of the Accused Parents Aid Group for the statistics.  Childhood Experiences and Attitudes – an IMS Survey October 1993  O’Connor, Art (Consultant Forensic Psychiatrist) “Support for the victim must be the priority.” Sunday Independent, Dublin, December 29th 1996.  Problems of perception cannot be completely excluded from this area because there may be a defense which claims that the child (teenager) appeared to be older. A jury would have to decide whether this mitigated the offence or not,.  Op.cit. Report of the Working Party on the Legal and Judicial Process recognises this fact but fails to appreciate the dilemma.
 Commision on the Family – Strengthening famines for life, Interim report to the Minister for Social Welfare, November 1996, p.105. PE Inundated, Parental Equality News, November 1996, p.1