Refuting false allegations of abuse a specialized job

It is an unfortunately common occurrence in contested matrimonial cases that one or both parties make serious accusations of physical, emotional and/or sexual abuse against the other. Even worse are cases where such allegations involve the children.

While statistics vary and the rig our of some of the studies is questionable, it is at least experientially well understood that false allegations of abuse are pervasive in contested matrimonial cases. In cases of less “tangible” allegations, perhaps the most abused word is
the word “abuse” itself. One parent’s parenting style of firm boundaries and high expectations might be experienced by (or asserted by) the other parent as “abusive.”

If one is acting for a client falsely accused, the experience is often that of “guilty until proven innocent” in a system focused on cautious protection of children. The accused parent then has to embark on a journey of “proving a negative,” often under extenuating circumstances where the specifics of the allegations are either unknown, vary or are embellished over time, or are so amorphous as to be almost incapable of refuting.

In cases of false allegations of sexual abuse of children, a parent faces the almost inevitable push for a precautionary “supervised access” regime until the matter is figured out—without any definitive timeline or criteria for the lifting of supervised access. In
many cases, this means that unless and until there is a trial to establish the truth or falsity of the accusations, that parent’s relationship with the child or children will be marginalized and impaired by the supervised access regime. In the short term, it would be important to have family supervision and unsupervised access in the community, at a minimum, in order to maintain as normal a relationship as possible and avoid the significant cost of third-party supervision.

The process of refuting false allegations involves piecing together a substantial mosaic of objectively determinable facts and observations from third parties, as well as the parties’ and children’s behaviour during the period straddling the timeline of the alleged events and showing as many discontinuities as possible. Some “smoking gun” indicia include: (1) illogical or atypical manners in which the allegations arise; (2) “recovered memories” of events supposedly having occurred decades earlier (the science and neuroscience in this regard was
substantially solidified decades ago); and (3) in particular, demon strating a conflict with the science of memory formation and suggestibility. One broadly accepted concept is that memory of events degrades and is influenced by environment, suggestion and questioning over time. Fewer details of the original event can be recalled independently over time. Many false allegation cases conflict with this principle.

In cases of false allegations of sexual abuse of children, a forensic psychiatric investigation is pretty well mandatory and phalometric testing is strongly recommended, however it is not definitive (it is a necessary, but not sufficient, part of the mosaic of evidence to bring forward).

Some actions on the part of the parent and/or child making the allegations can also be forensically important. For example, failure to contact the target of the allegation to check on a perceived incident and allow an opportunity for refuting or perspective or clarification can be indicative of a false allegation. A request that an allegation not be shared with the targeted parent can sometimes be indicative of a desire to appease one parent without having to account for the falsity to the other parent. A child outwardly exhibiting no fear or reservations of being with a parent, however in other forums attempting to display fear and anxiety, can be instructive.

It is very important to piece together as many specifics of the allegations as possible in the exact wording shared by the alleging parent or child to all of the investigating and other third parties and chart them by date, forum, specific language and content, and who was present in the interview and what background, if any, was given to the interviewer. The discontinuities will then be apparent. For example, parents making false allegations will compartmentalize information and not share the full background with each third party they sequentially make the allegations to. Family doctors, for example, may not be told that the matter being reported was already thoroughly investigated by police and child protection authorities and not verified.

If the alleging parent is in the room at the time of the child’s interview, the child may feel coerced to satisfy the demands of that parent, particularly if the parent and child have had the opportunity to practise what is to be stated to third parties. As indicated above, if there is any indication of prior discussions or probing in interviews prior to the first professionally trained non-
suggestive interview, any of the allegations brought forward might already be irreparablytainted by suggestibility.

Refuting false allegations is a complex area requiring specialized expertise and experience and a detailed review of the developing jurisprudence in this area, some of which have published assessment criteria.

False allegations will continue to vex those assisting families in crisis and understanding the tools available to “prove a negative” is essential for the legal and mental health advisers to targeted parents.

Brian Ludmer is a business law and family law lawyer in Toronto.