False Accusations of Abuse: Past, Present, and Future

May 11, 2004

Well-Meaning but Misguided Legislation

Without a doubt, the single-most devastating issue to men and fathers over the past 35 years has been that of false abuse accusations. While most if not all of us agree that genuine abuse has been and will continue to be a problem in America, and we believe there must be a system in place charged to protect children and women from physical and sexual abuse, the rise of unfounded and false accusations of child abuse and domestic violence is unconscionable.

1969 witnessed the passing of the Equal Rights Amendment and that of No-Fault (No proof - No evidence) Divorce in California. Generally speaking, now all states enjoy No-Fault Divorce. Knowing that women file first for divorce in 80% - 90% of all cases and are adjudged custodial parents 85% of the time in contested cases, and can allege anything from adultery to mental cruelty to spousal abuse without having to prove the same to obtain the equitable relief they are seeking, creates a rich environment for the making of abuse accusations.

1974 witnessed the single-most impactful federal law that has aided and abetted the child abuse establishment. Known as the Mondale Act or CAPTA (Child Abuse Prevention & Treatment Act), this well-intended legislation charged CPS (Child Protective Services) to protect our most precious resource - our children. CAPTA, which has been re-authorized by both the Clinton and Bush administrations, allows for the government to investigate complaints that are made anonymously, and at times reports that are made in bad faith - open invitations to malicious slander. Few states mete out prison-type penalties (my state of Florida is one that does so - F.S. 39.205(6)) for promulgating malicious false child abuse accusations. In addition, CAPTA immunized governmental child protection state agencies nationally from being sued for monetary damages as they enjoy sovereign immunity under the 11th Amendment.

The last 30 years have witnessed stiffer legislation against child and domestic abusers. The Adoption and Assistance Act of 1980, the VAWA (Violence Against Women's Act) of 1994, Megan's Law, and the Adoption and Safe Families Act of 1997 were intended to take children and women out of harms way. In doing so, they have placed men and fathers and children in jeopardy.

The Era of Source Misattribution Errors

Sadly, the 1980's and 90's witnessed an epidemic of false child abuse salem witch hunt-type cases. From Jordan - Scott County, Minnesota, to McMartin in California, to Kelly Michaels in New Jersey, to Amirault in Massachusetts, to Little Rascals in North Carolina, and to Wenatchee in Washington, et al, America witnessed a craze of he said - she said - and what young children said-type cases. Some of these cases were representative of actual abuse where the government caught the wrong perpetrators, but most were errors born out of naivete and ignorance - what we now know to be known as source misattribution errors. These mistakes have caused scores of non-abused children to be treated as truly molested and abused victims.

A lack of education and training in child suggestibility, memory and linguistics, child development and child pathology for child protective investigators, sex crimes detectives, sexual assault nurse examiners, guardians-ad-litem, therapists, attorneys, and judges is ever-present in the rise of false attributions, nationally. Misdiagnoses are legion. A systemic failure to examine alternative hypotheses is pervasive. Errors and mistakes made by professionals in the field in real time are commonplace. In fact, of the 2.9 million reports of alleged child abuse and neglect in 2002, approximately 2 million of the same were unfounded or without foundation. Of those 2 million unfounded reports, approximately 2% - 5% were allegations made with motive, method or opportunity to exact harm on another person.

It is well known that the SAID (Sexual Allegations In Divorce) Syndrome has been coined "divorce's atomic bomb" - "the ultimate weapon." Typically, men and fathers are on the recipient end of SAID allegations and because child sex abuse is such a reprehensible crime when it does happen the same are presumed guilty. I require all of my male clients accused of abuse to submit to expert psychosexual and psychological testing. And this process is dehumanizing, and very expensive. To my knowledge, child abuse and domestic violence are the only crimes that require fathers and men to prove their innocence - to prove a negative. The opposite maxim to our Constituitional right of innocence until proven guilty applies.

Proposed Solutions

There is no quick-fix solution to remedying the problem of unfounded and false abuse accusations. As a society it is our legal and moral duty to protect children - to protect women. That said, in the process there will be collateral damage. Sadly, most of the collateral damage has affected men, fathers, children, and families. In our headstrong attempt to keep children and women safe we have created a reverse backlash.

Here is what I propose:

1. Create a national task force to examine all of the science, data, studies and statistics relative to child abuse and domestic violence over the past 30 years.

2. Repeal CAPTA with the goal of making it more family friendly. Eradicating the government's absolute immunity, requiring all child abuse reports to be made confidentially not anonymously, and imposing stiffer penalties against false accusers should be considered.

3. Establish higher standards of education and training not only for our child protectors, but also for our
attorneys (defense litigators and prosecutors) and judges that tackle these cases in courts all across America.

4. Create VAMA (Violence Against Men's Act) to neutralize the VAWA.

5. Change the legal standard of a "preponderance of evidence" to "clear and convincing evidence" in both juvenile and family courts across America.

Dean Tong