The DPP’s Memorandum of ” Misunderstanding”

Dublin,IRL

The DPP’s Presentation of the Case

Ruadhan Mac Cormac, Victim groups fail to engage with DPP before trials, Irish Times (21.10.13), is a fair interpretation of the Director of Public Prosecution’s remarks to the National Prosecutors’ Conference @ Dublin Castle on 19th October.  Ms Loftus implies hubris to some organisations who have not as yet signed a Memorandum of Understanding on disclosure of information about their therapy and counseling contacts with sex abuse survivors.

Speaking to a very sympathetic audience – Attorney General, Members of the Judiciary, Garda Commissioner and fellow prosecutors, Ms Loftus had the following to say :
“Unfortunately, some organisations which provide services to victims have yet to enter into MOUs with the Office or engage in the process of negotiating such MOUs. This has caused difficulty in practice. Some of the organisations take the view that even where the victim consents to furnishing documentation as part  of disclosure those who have provided counselling can decide that the material should not be handed over. While the material in all such cases has eventually been provided this has often been at the very last minute while the trial has often been about to commence. This of course is very unsatisfactory for all concerned, especially the victim.” (Claire Loftus, DPP Opening REmarks at the Annual National prosecutors Conference19.10.13, WWW.Director of PublicProsecutions.ie.

A Rebuttal 

Now subjecting those remarks to forensic evidential analysis what do they amount to?

From my personal knowledge I contend that :

1. Yes some counseling organisations have not entered into  an MOU as indicated by the the Director.

2. There is one Model of MOU, not as might be implied in the Director’s remarks more than one possible model, as promoted by her Office.

3. That one Model is presented to the relevant organisations as the the Standard which facilitates the the work of the Prosecutor.

4. The MOU as presented takes no account of the interests of the Abuse survivor or the work of Counseling and Therapeutic organisations.

5. Difficulties are created in practice for both Prosecutor and Counselor as requests for Documentation very often come years after the survivor has commenced the therapeutic work of recovery and at a point that suits the slow moving process of an adversarial criminal justice process.

6. I am not aware of any reputable counseling or therapy organisation concerned with assisting abuse survivors who willfully withhold information from the Prosecutor  for any other reason than consideration of their clients’ best interests.

7. It is my understanding that all of the principal organisations concerned have engaged in serious discussions and detailed correspondence with the Prosector’s Office, both case by case and on the general principles involved.

Those organisations who have signed up to Model MOU purveyed by the DPP are concerned with Adult survivors of abuse and not Children. I also understand, where they have done so it has been with some reluctance and with heavy hearts.

8. While indeed matters are as the Director says ” very unsatisfactory for all concerned, especially the victim”, one has to ask where does such lack of satisfaction derive from and I will put forward some considerations  which the Director did not refer to in her remarks.

In essence the DPP presented to this very specialist audience a one sided view of a serious frustration which her Office is experiencing in this part of their practice. This presentation presumes to speak to the mindset of both abuse survivors and counseling organisations without representing one case example, or inviting to such a forum any survivor or counseling organisation to present their own point of view. The Director it must be said occupies a very powerful platform. when she speaks the nation listens.

A Different Starting Point 

1. What in my experience, is VERY UNSATISFACTORY in listening to abuse survivors of, both child and adult is that :

a. At best some 5% or less of such crimes will ever be prosecuted in this country.

b. 100%  of traumatised survivors of child abuse specifically, but not exclusively, and their families and sometimes their peers will require external counsel and assistance to recover their lives.

c. While all abuse survivors may not be traumatised  it is also fair to say not all survivors will want to be witnesses in a criminal trial.

d. No child wishes to relive abuse experiences or subject themselves to the possibility of potential re abuse under cross examination in a criminal trial.

e. While there are delays and uneven provision of counseling and therapeutic services for child survivors in this country, there is at this point in time a great deal more likliehood of receiving help than there is in achieving prosecution.

f. Child survivors may wait years before they will know if matters can proceed to a criminal trial of uncertain outcome over which they have no control –  for them a dangerous mirror of previous abuse experience.

g. When a child enters a counseling setting, not withstanding limited assurances from the counselor, invariably  they experience  a further breach of trust when their information is shared with 3rd parties.

h. Children themselves are not affirmed in our system of law as themselves reliable witnesses capable of giving informed consent .

i. When a counselor is considering  releasing information, given in the helping process with a view to healing, and not evidence, the counselor is obliged to first of all recount that information to the parent or guardian about whom the child may have spoken critically and this has to be interpreted for the parent in the hope that they can cope with that criticism in a mature and reflective way, while continuing to support their child.

i. Should  a young adult survivor have developmental limitations, but technically be able to give consent for release of information, they may well have naiive and rose tinted views which do not take into account the challenge of cross examination in court.

j. Should a young adult survivor who is technically able to give consent be affected in their mental and social circumstances, influenced by their abuse and sometimes neglect experiences, they may not be in a position to give informed consent.

2. Counselor or Therapist of abuse survivors, in common with most all others of their ilk, receive and generate the sharing of information for the sole purpose of promoting healing and NOT Evidence Gathering.

3. In my experience reputable counseling organisations with children in this area take all steps necessary to see that issues of child protection and evidence gathering is attended to by the appropriate authorities prior to commencing therapy or counseling.

4. In a free flowing therapeutic conversation, in so far as that is feasible for the traumatised survivor, many matters unrelated to the child’s abuse experience but essential to their perception of themselves may be spoken of and is not shared for the purpose of transmission to multiple 3rd parties.

5. Records of counseling and therapeutic sessions are maintained for a number of reasons : as an aide memoir to assist the counsellor to proceed with the work involved; for ethical and administrative accountability.

It can be seen here that the task of the counselor/therapist and the prosecutor are by definition in conflict. The counselor is concerned primarily with the promotion of internal and external resources for the survivor with a view to promoting recovery and healthy living possibilities. The prosecutor is concerned with upholding an ideal of public order and public interest, which may or may not bring any benefit to the individual survivor.

In our legal system, the public interest takes precadence over private grief, no matter what the cost to the abuse survivor. This is a David v Goliath conflict in which David or Davida can never win  and may well be a Catch 22, in which D.. may unwillingly entertain the possibility of reabuse or bitter disappointment for the sake of the public interest.

From Misunderstanding to Understanding 

I know of no reputable counseling or therapeutic organisation who will encourage or promote a disregard of the criminal law. Therefore it is not to be unexpected, but that under different levels of duress such organisations will ultimately provide information to the prosecutor.

However it is surely an abuse of natural law to use power and differential legal status alone as a lever to extract information where the outcome is so uncertain and the consequences for the abuse survivor may be so serious.

That indeed is the corollary of the innocent until proven guilty status of an accused at trial. The irony however is that in our jurisdiction where due process is so proudly and rightly upheld for an accused, there has been little or no development of the law in the development of due process for the survivor who may also find themselves through no fault of their own in the position of being also a very ambivalent accuser.

I believe based on my knowledge and experience of survivors and their stories and my past collaboration with colleagues in the health/welfare and criminal justice systems that the existing arrangements prior to the MOU should continue with requests for information from the Office of the DPP being addressed by counseling organisations on a case by case basis, until and unless a transparent and more coequal arrangement leads to a genuine Understanding. This is possible as is evident from other jurisdictions such as Canada and New Zealand who share the common roots of our legal system. Change comes passing slow and it is notable that change in those two countries came not out of woolly feel good initiatives but out of hard won court cases, in which survivors and their advocates did not take a line of least resistance. Such judgements in turn and over many years gave rise to statute laws, which rebalance somewhat the unequal treatment of complainant and accused. One initiative which the DPP could consider in the interval before the next National Prosecutors’ Conference, might be to consider placing the present MOU in abeyance and engage in a collective and open conversation with the counseling organisations and victim awareness groups and perhaps she may have more cheery news to report at Conference 2014.

Colman Duggan trained and practiced as a Social Worker and Psychotherapist. He is a former Child Care Manager with the Health Service Executive and has over 30 years professional experience of the Cild Welfare and Health sector.

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