Spectral Evidence: Fear and Ignorance in the Courts

An article by Margaret Jervis originally published in The Therapist Journal 1995

In 1693 the Salem witch-hunt withered away not because the hysteria had run its course, but because a type of evidence, known as ‘spectral’, was declared inadmissible by the courts. Spectral evidence was the term used to cover the contents of dreams, visions and hallucinations related with mesmeric effect by the young girls said to have become bewitched by the devilish sympathies of the citizens of Salem. Three hundred years later, spectral evidence has again reared its head in the witness box, with no immediate prospect of its demise.

The modern secular equivalent of spectral evidence is recovered repressed memories of sexual abuse. Such evidence is usually, but not necessarily, therapeutically excavated. Its power resides in the obscene nature of its content. It is vivid, emotive and convincingly articulated with clear details to convey the picture in the listener’s mind of obscene sexual acts. External corroboration may be entirely absent and memories outside the alleged acts sparse, hazy and inconsistent with the facts; but the evidence contains a cocktail of images juxtaposed to excite disgust, and titillation which has the effect of freezing critical appraisal in the unwary.

The unwary may be members of a jury who, despite being warned of the danger of emotion clouding judgement, may not be sufficiently aware of what those emotions are and how they are created. A more measured response might be expected from the police and crown prosecution service serving the indictments, not to mention the critical discernment of the judiciary.

However, through the climate of concern about sexual abuse and the influence of purported experts who claim specialised knowledge in this area, an uncritical receptivity to spectral evidence has grown up among investigators, aided by the application of therapeutic techniques in training. Recovered memories are like demon masks or amulets – the grotesque and sometimes comical depictions of imagined demons worn to ward off the incursions of evil spirits. Their function is to exorcise fear by presenting the spirits with a mirror. In fact what they project is mortal fear through exaggerated human features and they tell us more about the psychology of their creators than the noumenal spirit world they affect to represent.

Here is an example of a recovered memory that acts as a demon mask. In the August 1993 edition of Woman’s Journal magazine, an American fashion editor tells her story of how she came to recover memories of sexual abuse. The antecedents were a series of upsetting incidents which threatened her and her family’s security. In a state of anxiety she approaches a therapist who suggests her problems might have a deeper root, to wit a sexual trauma in her childhood. Already in an excitable state she ponders this, attempting to run her household at the same time as suffering sleepless nights.

The anxiety takes its toll and one day the distraction leads to her burning potatoes for dinner. In an exhausted state she lies down and drifts in and out of sleep. Suddenly she is jolted by an image flashing before her mind. Its form is that of a burnt potato but this, we are led to believe represents something else – something large and hairy – a memory of a male scrotum held close to a very young child’s face. The rest follows naturally; armed with presumed knowledge and fear she runs to another therapist who helps her ‘recover’ the full picture of the previously unknown sexual traumas she suffered at the hands of her father.

The image is Dadaesque. Potatoes are food, they excite the sense of taste, but we gag at the image of the hair in the same way as we do when confronted with the classic Fur-lined cup by sculptor Market Oppenheim. A

device which denumbs our senses by making us aware of our reactions and unconscious expectations. Fur excites touch but, if juxtaposed with a cup, excites taste. The resulting entanglement elicits disgust.

Put this in a sexual context and the upshot is obscenity, not without, as in the case of the demon mask, unintended comic effect. Readers of the Woman’s Journal article, whose attention is drawn by the hairy potato incident quoted out of the main text, may be unaware that they have been swept along by the force of the imagination because, stunned by the power of the image, they experience a minor form of secondary trauma.

These kinds of tricks have been used inadvertently in the training of social workers and criminal justice agencies who deal with allegations of abuse. The natural response when confronted with explicit descriptions of sexual abuse is repulsion. This happens when we sense danger. If we stick around we may be drawn into illicit fantasies which, contextually, are doubly disturbing because the subject is the sexual abuse of children. But precisely because of this, workers are encouraged to ‘stay with it’; freeze their instincts and turn their minds to the rescue of ‘victims.’

When first confronted with explicit renditions of sexual abuse, many people report dreams and nightmares. They see the propensity to abuse everywhere, even in themselves. Often workers who express reservations either drop out or are forced to leave, leaving sexual abuse work to those with stronger constitutions. A few may maintain their critical faculties, others may be ensnared by a Pandora’s box of conflicting thoughts and emotions which give rise to a blinkered crusade of zealotry.

A prime example of this is in the police and social work joint training model known as Bexley (Child Sexual Abuse Bexley Experiment – HMSO 1987). The advisers to this blueprint in 1986 were a number of psychiatrists and social workers who had gained a view of sexual abuse based on imported American disclosure techniques and their own clinical experience. The project’s principal source was Great Ormond Street Hospital and the NSPCC who had pioneered British therapeutic disclosure work with children. At that point, few convictions for child sexual abuse were forthcoming and the police were sceptical of claims made about the ubiquity of sexual abuse because it did not tie in with their experience. Equipping the police with the same skills as social workers became a priority, not least because the police were anxious to portray a more sensitive and caring image in dealing with sexual crimes against women and children.

At Bexley two hitherto disparate and opposing cultures merged. Police and social workers, men and women, were led through a brainstorming session of explicit sexual terminology, role play, true confessions of sexual experiences and hypnotic regression. The regression exercise simulated a fantasy of being abused by a close and trusted relative at the age of ten. Since the fantasy was dictated by the group leader, it met with staunch resistance. The aim was to identify emotionally with the powerlessness and fear of a child victim and to realise how impossible it would be to make up stories of sexual abuse.

But the parallel was flawed; these were adults bombarded by the imagination, not children undergoing abuse. And the question of resistance to making up the story is moot. Both children and adults may be encouraged and motivated to confabulate gradually, once resistance to lying about abuse has been broken down for whatever reason; the exercise addressed only the normal resistance of the group to the ownership of the ready-made script. The exercise was described as ‘enormously powerful’ and some delegates reported the course had given them ‘magical powers’ in detecting abuse. Under the guise of sensitivity the course focused on eliciting intimate details of alleged sexual acts.

1

This was then stipulated as the yardstick of truth. This approach has been critical in framing the mounting number of prosecutions based on retrospective inference of abuse. Interviewing officers urge complainants to remember the experiential details of assaults. Very often these are specimen counts suspended in space and time without external corroboration which are not open to proof or disproof. When interviewing the alleged perpetrator, police officers dwell on ‘the details of the assault’ repeating the mantra of the training course; it’s not possible for anyone to make up these details. None of this would matter if it were not for the fact that it is at the expense of objectivity.

Insofar as these details can be made up under the right circumstances (the training officer demonstrated that) and are impossible to disprove, they are poor indicators of the reliability of evidence. In fact, they are likely to be negative indicators, since repeated sexual assaults are unlikely to be remembered like a prescription from a sex manual, as sometimes appears to be the case in retrospective complaints. It makes one wonder whether good evidence in the hands of ‘sensitive’ investigators is sometimes turned to bad.

With the distorted vision of trance logic, the police often fail to investigate critical factors when deciding to press charges. They do not properly investigate the character of the defendant to see whether the alleged heinous course of conduct is consistent with known facts, nor do they bother to find out whether some other factor in the complainant’s life, past or present, might have given rise to the allegations. They fail to investigate the effects of therapy and other forms of suggestion, including their own.

Ironically, the Home Office has issued guidelines which warn against the inadmissibility of hypnotically-induced evidence which is what many of the ‘sensitive disclosure techniques’ amount to (Home Office Circular 66/1988). The circular describes the process of confabulation, the firm conviction with which erroneous beliefs may be held and how the evidence is resistant to cross-examination.

When those guidelines were formulated the situation was not anticipated where the criminal justice system itself became spellbound. But take these examples of the lure of spectral evidence and trance logic. In the Bishop Auckland ritual abuse case in 1995, the police and social services were prepared to go to trial on the oral testimony of witnesses where the allegations included genital mutilation with fish hooks. The medical evidence was in no way commensurate with the allegations but this was completely overlooked.

In a Leicestershire children’s home trial in 1991, a witness claimed memories of abuse committed sixteen years previously “were hidden, deeply hidden. I had to be hypnotised to get it out”. In a North Wales trial in 1994 based on retrospective allegations against children’s home staff a witness claimed he had been anally penetrated by a defendant with a large hooked crowbar to such an extent that he felt virtually disembowelled. Despite the horrific ‘memory’ his medical records revealed no trace of any injury. The first and last case reveals just how insidious ‘spectral evidence’ is.

Sucked into the vortex of paranoia, the criminal justice system mounts witch hunts after phantom networks of abusers. The new provisions of the Criminal Justice Act 1994 which allow evidence of procuration to be presented in court without external corroboration may start to bite, with orchestrated tales of past vice dens coming to light without the forensic backup which should be key to any crime investigation and prosecution. Buttressed by fear and ignorance, the ‘magical powers’ of the investigators hold sway and the spell of spectral evidence casts its net ever wider.

Margaret Jervis 1995

2

3