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Jurisprudence
Wednesday, April 6, 2005
Stupid-Syndrome Syndrome
Yet more junk science to confound the
legal system.
By David Feige
 It all seemed to be going pretty well for Michael Jackson:
His accuser's testimony was all over the map; the boy's siblings were telling
inconsistent stories; there was even a late-breaking recantation to a
high-school teacher. And then, just yesterday,
one of the men allegedly abused by Jackson over a decade ago admitted under
cross-examination that he'd initially denied to investigators that the singer
ever touched him.
Sounds like a job for Dr. Anthony Urquiza.
Urquiza, called earlier in the trial as an expert witness
for the prosecution, testified about something called "child sexual abuse
accommodation syndrome" or CSAAS.
He had never examined Mr. Jackson's accuser. He didn't
need to.
As it turns out, CSAAS … explains everything.
CSAAS is a part of an ever widening matrix of
criminal-justice related mental-health syndromes whose main goal seems to be to
explain away otherwise damaging evidence. Rape trauma syndrome (or RTS),
battered woman's syndrome (or BWS), and CSAAS are all examples of this
burgeoning field. Etiologically, all three syndromes are the stepchildren of
post-traumatic stress disorder (first diagnostically validated by inclusion in
the 1980 version of the psychologist's bible—the DSM III). And much like their
parent, they all share flexible criteria easily applied to … well, pretty much
everything.
And that's the whole problem.
Unlike diseases or disorders in which signs (physical
phenomena like bruises) or symptoms (subjective complaints like "my elbow
hurts") imply a specific cause (you injured your elbow), syndromes (which
are also groups of signs and symptoms) may—but don't necessarily—imply a
specific cause. As a consequence, although syndromes may sound scientific,
their diagnostic value varies wildly.
CSAAS is, simply put, not diagnostic. First named and
described in 1983 in an article by Dr. Roland Summit that described five
general attributes of child sexual victims (secrecy, helplessness, denial,
delayed disclosure, and retraction) Summit himself has
conceded the lack of compelling empirical research support for the
syndrome. And when lawyers start importing these scientific curiosities into
the courtroom, we all have a serious problem.
Make no mistake about it: Playing the victim-syndrome card
isn't limited to rape cases, child-sex cases, or even to prosecutors. Defense
lawyers regularly use battered woman's syndrome to explain why Glenda was still
in imminent fear for her life, even though she had time to go to the shed, load
the shotgun, and blow her abusive husband away while he was quietly sipping a
beer. But while battered woman's syndrome solves an evidentiary problem in the
law of self-defense (by bolstering an argument about the nature and mechanics
of fear in abusive relationships), CSAAS and RTS solve a different and far more
insidious prosecutorial problem: the problem of witness credibility.
No one wants to believe kids fabricate allegations of
child sex abuse. And yet the behavior of some young complainants and their
descriptions of abusive acts may sometimes seem too strange to be credible.
(Remember the McMartin pre-school case?) In order to successfully resolve such
a situation, prosecutors and their experts have to figure out what to do with
the supposed victims who fail to report for years on end, present outlandish
scenarios, change their stories, or even recant the entire allegation. One way
is to question the veracity of their stories—something that may have helped in
some earlier child-sex cases that resulted in terrible miscarriages of justice.
Unfortunately, this rarely happens. More often, prosecutors and crusading CSAAS
psychologists rely on syndrome testimony to explain that being incredible is
actually the ultimate in credibility.
According to CSAAS experts, not reporting abuse is thus
consistent with suffering from child sexual abuse accommodation syndrome. So is
bad behavior, trouble in school, the failure to tell an accurate story, and
even the recantation of the entire allegation of abuse. In other words, every
criterion usually used by the defense to discredit a witness is actually
transubstantiated into evidence that is perfectly consistent with abuse.
And here's the genius: Not exhibiting these signs of CSAAS
doesn't mean a child wasn't abused—just that he or she didn't get the syndrome. In
other words, a noncredible witness is suffering from the syndrome, but a
credible one is merely a credible witness who was legitimately abused.
CSAAS is a prosecutorial silver bullet and a fabricator's
best friend. Every mistake you make is consistent with it; every mistake you
don't make further confirms your credibility. No wonder prosecutors rely on it
to bolster disintegrating cases. By making credibility tautological, CSAAS
makes it nearly impossible to present a defense or attack an incredible
witness. To make matters worse, CSAAS testimony is deeply appealing to jurors
because of its soothing reassurance that otherwise inexplicable or incredible
behavior is merely a manifestation of the actual trauma they all expect to see
in a victim.
The problem is, of course, that some complainants aren't
actually victims at all. And because CSAAS assumes abuse but can't actually
diagnose who is and who isn't a victim, it is the perfect exemplar of the
problem of bringing nondiagnostic syndrome testimony into court.
Alive to this problem, courts in several states have
wisely ruled CSAAS evidence to be inadmissible. In a long line of cases, the
Supreme Court of Kentucky, for example, has refused to allow syndrome testimony
(including CSAAS), citing the "lack of diagnostic reliability, the lack of
general acceptance within the discipline from which such testimony emanates,
and the overwhelmingly persuasive nature of such testimony effectively
dominating the decision-making process, uniquely the function of the
jury."
Unfortunately for Michael Jackson, he is being tried in
California, and Judge Rodney Melville doesn't seem to find Kentucky's reasoning
very persuasive. And that, combined with his unconscionable ruling allowing
prosecutors to admit prior bad acts to show a pattern of behavior, is likely to
sink the king of pop.
Ultimately, though, damage from this pseudoscientific
syndrome testimony undermines far more than the fairness of Michael Jackson's
trial. By creating the ability to explain away any behavior, syndrome testimony
threatens to erode our ability to hold both the alleged victims and the alleged
perpetrators to account for their actions. With syndrome testimony we find
ourselves in a frictionless world where up is down, falsehood is truth, and
there is an excuse for everything.
Ultimately, the problem with the Orwellian world of syndrome
testimony is that anything goes, and everyone goes to jail. Don't like my tone?
Blame angry author syndrome. Fail to follow my argument? Maybe you have an
abstract reasoning deficit disorder. Getting angry? Want to stab me? Fear not,
I'm sure a doctor (maybe even Urquiza himself) will be willing to testify that
you are simply suffering from overreactive reader's syndrome.
David Feige, a public defender in the Bronx and
a Soros Media Justice Fellow, is the author of the book "Indefensible", to be published in 2005.
Photograph of Michael Jackson by Frederick M.
Brown/Getty Images.
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