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The Crown keeps right on breaking the law | Justice Minister
Frank Quennell and Premier Lorne Calvert publicly place undue
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Frank Quennell is any example of what former Justice Minister
Chris Axworthy called "evolving," Saskatchewan is ready
to kiss justice good-bye! Sarah
Gibb's feature on the Klassen family | Blog
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- Sarah Gibb
feature article
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story nominated for national award
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- Another family destroyed
- Rush to lay charges
tears family apart
By Sarah Gibb for The StarPhoenix
A decade
after the Martensville and Klassen scandals, yet another Saskatchewan
family has been destroyed by sexual assault allegations.
The family's story is told
today for the first time.
It's the story of an ordinary
couple who adopted five disadvantaged kids -- four of them damaged
by Fetal Alcohol Spectrum Disorder (FASD) -- and provided them
with a loving home.
Ten years later, after two
of the kids made unsubstantiated allegations of sexual abuse,
three family members were branded as sex offenders and dragged
through the courts, forced to sell their home, cattle and land
to pay for their legal defence.
It's a story born out of the
dynamics of a blended family living under one roof in rural Saskatchewan,
where the kids occasionally played "doctor" when they
were small. As they got older, two of the girls, aged 13 and
14 -- both severely disabled by FASD -- would bug their brothers
by running into their bedroom at night and jumping under the
covers with them.
The question is whether what
happened under the covers became more than just kids goofing
around.
The girls say they had sex
with two of the boys. Although they were all teenagers, the age
difference would make the boys technically guilty of sexual assault.
The boys say they didn't have
sex with the girls, and that they were fed up being pestered
by them.
And that's where the evidence
ends.
Rather than take time to help
the family resolve the issue -- by offering counselling, or by
removing the girls or boys from the home as a last resort --
Social Services and the RCMP turned up at the family's farmhouse
without warning; took four of the children into care; conducted
videotaped interviews with the kids that show leading questions
were asked; asked one brother, aged 15, if he had witnessed or
committed sexual assault without advising him of his legal rights;
then charged two other brothers and the father with sexual assault
based solely on those interviews, with no corroborating evidence.
Information presented at one
of the subsequent trials shows that the decision to lay charges
was made within hours of the police becoming involved: before
the interviews had been completed and before anyone had even
looked for other evidence.
The parents were not allowed
to say goodbye to their children. Three of them were made permanent
wards of the province and have been moved from one foster home
to another ever since.
The charge against the father
was stayed after 15 months, although only after the Crown prosecutor
offered him a deal to plead guilty.
One brother was found not guilty
and refuses now to live in Saskatchewan because of his experience.
The second brother was found guilty, but had his conviction overturned
on March 11 by Mr. Justice Gerald Allbright of the Court of Queen's
Bench.
The final injustice is that
the family has been threatened with legal action if they take
steps to publicize their situation.
Their lawyer, Robert Borden,
recently raised the case directly with Premier Lorne Calvert.
Borden successfully represented
the Klassen-Kvellos in their malicious prosecution case after
they were falsely accused of sexually abusing three foster children
in 1991.
"My criticism of justice
officials (then) was that they were too quick to lay charges,
and that charges themselves can destroy families and individuals,"
Borden told The StarPhoenix. "I make the same complaint
today. Nothing has changed.
"I find that in this province
in particular, some prosecutors, police officers and social workers
are not prepared to stand back. They hear an allegation, then
in a cavalier and uncaring way, lay a charge."
The StarPhoenix is prevented
from publishing information that would identify the girls or
their accused brothers. The names of the family and their friends
have been changed, as have some personal details, and the name
of the town they lived in has not been used. All other names
and events are real.
"There are good reasons
to have laws that prevent the publication of names," Borden
said. "You don't want the names of young offenders or child
complainants to be out in the community. But there are times
when injustice is so rife in relation to a town or city or a
certain community, that you've got to stop it, and the only way
you can stop these practices is by letting the public know about
them."
Troubling questions
- Why was
the decision to lay charges made the same day the children were
removed from home, before the police had even completed their
interviews?
- What role did Social Services play in the decision to lay charges?
- Why did the Crown prosecutor proceed with prosecutions based
solely on the statements of two girls known to be badly affected
by FASD?
- Why was a social worker allowed to sit facing the children
during the videotaped interviews, but off-camera, so that it
can't be seen whether she inadvertently led them with non-verbal
cues?
- Why was one of the brothers, aged 15, grilled for an hour without
being told he could have a lawyer or other adult present?
- Why were the girls taken to hospital shortly after one of them
was allegedly raped by her brother, but were not examined by
a doctor?
- Why didn't police visit the scene of the alleged rape to look
for corroborating evidence, like soiled sheets or underwear?
- Why did police charge the father without even questioning him?
- Why did Social Services ask a psychologist to re-interview
the children a year later to determine whether their initial
statements were credible, yet fail to tell the court of their
doubts?
- Where angels fear to
tread
- After Martensville
and Klassen, another family torn apart
By Sarah Gibb for The StarPhoenix
Following a
seven-week investigation, The StarPhoenix today publishes the
story of yet another Saskatchewan family torn apart because a
social worker, a police officer and a prosecutor rushed to charges
after claims of sexual abuse were made by two of the family's
troubled adopted kids.
The names of
the family and their friends have been changed, as have some
personal details, to protect the identities of the children.
The parents
have lost their home, their farm, their reputations and four
of their children. Three have been made permanent wards of the
province. A fourth refuses to live in Saskatchewan now, calling
it "an evil place."
It's a story
with implications for everyone who adopts or fosters kids from
difficult backgrounds. It's the story of a judicial system that
rushes in where angels fear to tread.
***
Jessica and the kids were sitting
down to lunch when they heard the car approach.
"We were just doing our
regular stuff. Lunch was on the stove and the table was set for
five."
It was Wednesday, Sept. 19,
2001, and it had been a strange few days.
Thousands of people had lost
their lives in New York and Washington just over a week earlier.
Closer to home, Jessica's cousin had died on the Monday, then
on Tuesday, her nieces were in a car accident and it was feared
one would be left paralysed.
But a phone call early Wednesday
brought the news that both girls would recover, so Jessica remembers
that morning as a happy one.
It's the last time she can
recall feeling that way.
The chicken and salad were
ready, the potatoes nearly done. Lunch was the family's main
meal of the day. The kids were always starving and Jessica made
sure they ate well -- no junk, just lots of home-grown organic
food.
Jessica's family was a modern
blend of biological and adopted kids: five adopted, four of them
with special needs. Not that anyone paid much heed to who came
from where. All the children were adored.
"We were just family,"
says Jessica.
Eleanor, 14, Katy, 13, and
Ben, 11, had arrived 10 years earlier, along with their older
brother Jonathan, 16, as damaged refugees from the home of their
alcoholic birth mother.
The kids were affected by Fetal
Alcohol Spectrum Disorder (FASD), an organic brain condition
caused by their mother drinking during her pregnancies.
The three youngest children
had been deeply disturbed when first adopted, but under Jessica's
careful tutelage -- all her kids were home-schooled -- they'd
acquired stability and discipline, and were surrounded by love.
Adam, 15, Jessica's biological
son, had spent the morning at home doing school work. Husband
Tom and the two older boys, Paul and Jonathan, were at work.
Paul, 19, was also adopted,
but wasn't related to Jonathan and the other adopted kids. Paul
wasn't affected by FASD and Jonathan had only a few of the signs.
Both had grown into decent, hard-working young men.
"We were having a good
day," Jessica recalls. "Ben had his stuff all packed
up in the van because we were going to boy scouts. After he was
taken, we didn't move anything for the longest time, so it just
lay there."
There were four visitors at
the door: two RCMP officers and two social workers. "I let
them in, which was my first mistake. They didn't identify themselves
as social workers."
The social workers were Susan
Pasieka, who had completed her social work degree four years
earlier, and trainee Steve Olsen.
Pasieka brusquely told Jessica
she was taking the girls to the local hospital.
"I asked why, and what
was going on, and what was wrong, and they said no, no, no, they
couldn't tell me. Then one of the police officers gave me a look
and said something like, You've asked and they've said no.'
"So I co-operated. I didn't
know what else to do. It was unreal."
Pasieka took the girls to her
car and told Jessica to follow with Adam and Ben.
"I didn't get to say goodbye,
because I didn't know they wouldn't be coming back."
By the end of that day, four
of Jessica's children had been taken into care -- Adam, Eleanor,
Katy and little Ben, the baby of the family.
"Ben, I never saw again.
He was only 11 and we'd had him since he was two. We never got
to hug him. We never got to explain."
***
Eleanor told her friend she'd
had
sex with her brother the night before.
Jessica found out later that
Eleanor had been telling a friend she'd met just a month earlier
that Katy and Jonathan were having sex. The allegation made its
way back to Social Services.
It wasn't the first time Eleanor
had told stories that were hard to verify.
Chantal, 15, was friends with
Eleanor for four years. "She says a lot of things that make
you kind of wonder. It's kind of twisted," Chantal told
The StarPhoenix. "Once she's mad about something, she'll
say something to make the other person look bad."
Danielle, 16, was another friend
of Eleanor's. "Eleanor told me that Adam had sex with Katy
and got her pregnant and Katy had an abortion," Danielle
said. "I didn't believe her because I knew Adam and I knew
he wasn't like that."
But Eleanor's new friend had
only just met the troubled little girl, and was horrified by
what she was hearing.
She told a youth worker who
alerted Social Services on Aug. 20, 2001. Social worker Susan
Pasieka was on holiday when this first report came in, so nothing
happened initially.
Eleanor and her friend kept
in touch throughout August and into September. Then, during a
telephone call on Sept. 18, Eleanor told her friend another startling
story: that she'd had sex the night before with her brother Paul.
Hearing this claim -- or "disclosure"
in Social Services jargon -- the young girl was beside herself.
She'd known Paul for eight
years and regarded him as "the nicest guy ever." But
she was desperately worried about Eleanor, she told The StarPhoenix.
"I was, like, gotta tell someone'."
Eleanor didn't seem disturbed
or upset by her story.
"She didn't seem to think
there was anything wrong with it," her friend said. "She
said it wasn't important."
To make sure something was
done this time, the friend's mother talked to a more senior youth
worker, who contacted Social Services on Sept. 18 on its emergency
phone line.
Late that night, Social Services
set in motion the procedure for apprehending children jointly
with the RCMP.
Adam, Eleanor, Katy and Ben
were removed the next day.
***
Based solely on interviews
with the two girls -- interviews conducted by Const. Bonnie McLean
of the RCMP and Susan Pasieka -- the police charged brothers
Paul and Jonathan, and husband Tom, with sexual assault.
Dr. Natalie Novick Brown is
a clinical psychologist and sexual deviancy counsellor with the
University of Washington's Fetal Alcohol and Drug Unit in Seattle.
"FASD children typically
have pervasive deficits that include lying and sexual acting
out," Dr. Novick Brown told The StarPhoenix. "It is
important to note, however, that the sexual acting out behaviour
is less common than the lying behaviour.
"[In a case like this],
a thorough investigative process must include corroboration of
actual inter-sibling sexual behaviour from sources other than
an FASD child."
Tom was charged without even
being interviewed.
The charge against him was
stayed after 15 months, but not before the Crown prosecutor had
offered Tom a deal.
"If I entered a guilty
plea," Tom explains, "[the Crown prosecutor] said he
would recommend a suspended sentence.
"I said I had two concerns
about this, one of them being that I could not enter the States
with a record, which is hard for [someone in my line of work].
He said he could get an order so it wouldn't show up at the border.
"I told him the other
concern I had was that I was innocent. He had no answer for that."
Adam was allowed to return
home after five weeks in foster care. It cost Jessica and Tom
$4,500 to pay a lawyer to help them get their son back.
"One lawyer told us, How
many kids do you want back? Let me put it this way. How much
money do you have?' " says Jessica.
One of the conditions of Adam's
release from foster care, according to Jessica, was that his
dad and brothers -- now charged as sex offenders -- move out
of the family home, because social workers didn't want them discussing
the case with Adam.
They regarded Adam as a witness
for the prosecution, because he slept in the bedroom where some
of the assaults had allegedly occurred.
Jessica says she was forced
to give up her rights to Eleanor, Katy and Ben in order to get
Adam back. She signed a piece of paper in front of witnesses
in October 2001, saying she was agreeing to do this under duress.
Social Services say the arrangement
-- give up the adopted kids and get your biological son back
-- wasn't their idea but Jessica's lawyer's.
Whatever the truth, Jessica's
head was spinning. Her husband and two sons were facing trial
and the family was already running out of money.
"We had spent so much
on the children," she says. "We had no extra money
for something like this."
So she signed what she had
to sign to get Adam back, and Eleanor, Katy and Ben disappeared
into the care of the province until their 18th birthdays.
It had only been 34 days since
the kids were first removed. Already the destruction of the family
unit was complete.
***
"We have a strong faith.
We believe in helping others,
being kind to others."
Tom and Jessica met in the
early 70s as students at the University of Saskatchewan. Jessica
was completing an arts degree and Tom was studying agriculture.
"I had this deal with
three friends," Tom says. "The first one to get to
the phone got to ask Jessica out."
"And he's been regretting
it ever since," adds Jessica.
They're sitting on an old sofa
in the cramped living room of their tiny home in Saskatoon, the
piano in the corner the only reminder of their lives before September
2001. The farmhouse, pasture land, cattle, goats and chickens
have all been sold to pay the family's legal bills, which Jessica
estimates at $25,000 and mounting.
"[Not counting] all the
lost work hours and days," she says.
The couple became friends first,
discovering their mutual love of family and their deep faith
in God.
"We have a strong faith,"
says Jessica. "We believe in helping others, being kind
to others."
They married after graduating,
anxious to start a family. They also promised each other that
if God graced them with their own, they'd take in some disadvantaged
kids too, by way of thanks.
Jessica gave birth to Adam
in 1985. The first child they adopted was Paul, a handsome, affectionate
boy the couple soon fell in love with. Then they chose Katy,
two years old when they got her and stunningly pretty. Jessica
thought her brood was complete.
"But then Social Services
phoned us and told us Katy had three siblings, two brothers and
a sister, and would we take them too."
Jonathan, Eleanor and Ben had
been split up and placed in different foster homes.
"It wasn't a big deal
for us to take them. It was part of the family needs to be together'
thing Tom and I believe in so strongly."
Social Services told Jessica
that the kids had FASD. Only Katy had been diagnosed, but Eleanor
and Ben had all the signs of it too.
It made no difference to Jessica
and Tom. Family meant sticking together.
The couple adopted the kids
rather than fostering them, which meant they received no financial
support. Tom gave up work and became a stay-at-home dad, looking
after the cattle and supplementing the family income with casual
labouring and driving.
"Social Services portrayed
us as a family with rigid stereotypes about men and women. Nothing
could be further from the truth. I was the one who was out there
working," Jessica says.
Jessica was a talented woman
who had long wanted to develop her love of the arts and the stage.
When Katy's brothers and sisters arrived, she put her dreams
away and set to work earning a living for her expanded family.
The StarPhoenix is prevented from giving details of the business
Jessica ran in case it would identify the family. But with her
warm personality, she gained a reputation as someone who could
be trusted, and in no time had enough customers to keep house
and home together.
The couple threw themselves
into helping the children achieve their full potential.
Eleanor, Katy and Ben presented
the greatest challenges. For several years, they were examined
three times a year by Elizabeth Harms, director of the Hope Centre
for NeuroEducational Development, a program for kids with learning
disabilities. Harms says the children were severely disabled
by FASD.
"They had almost no self-control.
Katy would scream for many hours a day. They didn't sleep normally,
and would be awake for very long hours during the night. The
parents had to stay awake to supervise. The kids were also physically
very destructive to themselves and to their environment."
Jessica says Ben poked out
one of his permanent teeth, and Katy would try to kill small
animals, inserting things into their mouths and anuses.
They also had no appetite control.
Katy would eat out of garbage cans or try to eat the dog's food.
The most disturbing characteristic,
says Jessica, was that Katy would masturbate frequently, no matter
where she was, a trait apparently common in FASD children. Eleanor
did it too, but would try to hide it. Katy would do it anywhere,
anytime, often removing her panties regardless of who was watching.
"She was intellectually
very disabled," says Jessica. "We'd planned for her
to live with us for the rest of her life."
Using daily deep massage therapy
to keep her calm, Jessica managed to get Katy's disturbed sleep
patterns under control. Jessica would read out lists of objects
several times a day -- barn, cow, dog, house -- which Katy would
have to repeat to improve her memory. Under Harms' direction,
similar therapies were used with Eleanor and Ben. Very slowly,
all the kids' behaviour began to improve.
Academically, they couldn't
learn much, but Jessica managed to teach them how to dance and
play musical instruments, giving them skills they could be proud
of, and out of these grew some much-needed self-respect.
They couldn't read music so
they played by ear. Ben and Katy learned the piano, and Eleanor
danced, learning how to keep track of dance steps and even representing
her area in a competition.
"These children went from
an inability to learn anything, through sheer repetition and
tenacity on Jessica's part, to being able to play musical instruments,"
says Harms. "They were incredibly devoted parents, absolutely
committed to their children's welfare. Major life decisions were
made around the welfare of the kids. Where and how they would
live, lifestyle, schooling: all these decisions were based on
what would benefit the children the most. As parents, they were
extremely sacrificial."
The only thing Jessica had
to watch was Eleanor's love of making up stories and Katy's tendency
to go along with them.
"Katy was prey for this,"
says Jessica, "because she was so easily led.
"Eleanor liked to do things
that would get people into trouble. One day, she comes running
in, saying, Katy's let the chickens out and she's chasing them
down the road.' Eleanor didn't know it, but Katy was in the house
with me."
Brigit Vigne was a customer
of Jessica's, and her children became friends with Eleanor and
Katy.
"Eleanor would lie when
there was no need to lie," she said in an interview.
After the kids were taken,
Brigit gave Jessica a written statement: "My children would
often say to me that Eleanor told them her mother did not like
us, that she did not like our children many things that were
known to me to be false. [I believe] that Eleanor was delusional
and got some personal satisfaction in saying things that were
not fact. "
Eleanor's efforts to cause
trouble for others didn't stem from malice. It was just that
she didn't ever want to do anything wrong herself, Jessica explains.
A slightly raised voice would make her run and hide, even if
it wasn't directed at her.
The troubled little girl seemed
to feel that by getting others into hot water, she was somehow
keeping herself safe.
***
"What does alcohol
do to the brain?
Anything it wants. What systems does
it disrupt? All of them."
Social Services knew the girls
were suffering from FASD when they were interviewed on videotape
in their local hospital's "soft room" on Sept. 19,
2001, although it's not clear whether the investigating officer,
Const. Bonnie McLean, had been told.
The term Fetal Alcohol
Spectrum Disorder is an umbrella term for Fetal Alcohol Syndrome
(FAS), where there is brain damage and certain facial features
are present (small head size, thin upper lip, little or no groove
between upper lip and nose, a flattened mid-face); and Fetal
Alcohol Effects (FAE), where the facial features are absent but
the brain damage is just as severe.
Alcohol delivers a catastrophic
insult to the brain of the developing fetus.
One of the world's leading
FASD researchers, Prof. Sterling Clarren of the University of
Washington in Seattle, told a conference last year: "What
does alcohol do to the brain? Anything it wants. What systems
does it disrupt? All of them. It kills neurons. It disrupts their
migration. It disrupts the structuring. It changes the wiring."
In a 1988 study, Prof. Ann
Streissguth, head of the same university's Fetal Alcohol and
Drug Unit, found that teenagers with FAS functioned at the level
of six years and seven months, though the median age in the study
was 16 years and five months.
Brain damage caused by pre-natal
alcohol exposure can make sufferers hyperactive and egocentric.
They may fail to understand how their actions affect others.
They may have poor impulse control, be over-anxious to please,
and may use language in a way that indicates understanding where
in fact there is none.
Crucially for this case, when
severely affected, as the girls were, kids with FASD often have
difficulty telling fantasy from reality, in part because of memory
problems and difficulty with the concept of time.
Cross-examination of Katy in
court showed she had virtually no understanding of time. She
didn't seem to know what 15 minutes meant, or last year, or 10
years ago.
This brain damage doesn't mean
FASD kids can never be trusted, but it does mean they have to
be interviewed very carefully.
Dr. Josephine Nanson, a clinical
psychologist and expert on FASD at the Alvin Buckwold Child Development
Program in Saskatoon, says that children with FASD can be quite
accurate in their reports provided the questioner takes a great
deal of care not to suggest the answers.
"If care isn't taken,
you'll find that the children will tell you what they think you
want to know and will mix up time, mix up the sequence of events,
will say that an event that happened a long time ago happened
yesterday.
"The other part of it
is that, when children with FAS don't understand what's being
asked of them, rather than saying I don't understand,' they will
try to read the non-verbal cues from the examiner -- smiling,
nodding, whatever -- and will follow those cues into making something
up."
Saskatchewan's Provincial Child
Abuse Protocol, written in April 1995, says that child sexual
abuse investigations must be conducted jointly by the police
and a child protection worker.
Susan Pasieka was therefore
present during the interviews with Eleanor, Katy and Ben. She
sat facing the children, just out of sight of the main camera.
Const. McLean can be seen asking
most of the questions. What can't be seen is whether Pasieka
unwittingly prompted the children with non-verbal cues, perhaps
by nodding after certain answers or smiling. Any positive gestures
would have encouraged the children to offer the types of answers
they believed would elicit those responses.
There's no suggestion that
either woman deliberately led the children, but it's unlikely
they'd received a lot of training, if any, in how to interview
kids with FASD.
Const. McLean had taken part
in two relevant courses, neither of them recent: a two-week course
in Regina in 1992 on how to investigate a child abuse case, followed
by a three-day sexual abuse dynamics workshop in Prince Albert
in 1993.
"There was training around
FAS in the justice system about three or four years ago,"
says Dr. Nanson, "but nothing specific to interviewing children
with FAS."
And yet the girls' statements
to McLean and Pasieka would form the basis of the evidence presented
to the courts during the boys' trials, because there was no medical
or other physical evidence to support the allegations.
When they first arrived at
the hospital on Sept. 19, Jessica assumed the girls would be
examined by a doctor -- particularly as Pasieka had told the
RCMP Eleanor had recently been assaulted.
The girls were seen by a doctor,
but for reasons that were never explained, he didn't examine
them. Instead, he arranged for them to see Saskatoon pediatrician
Anne McKenna 20 days later, by which time any medical evidence
was hopelessly lost.
Dr. McKenna established only
that neither girl had an intact hymen. She testified later that
this is not in itself a sign of sexual activity.
"[A ruptured hymen is]
consistent with sexual intercourse, not limited to sexual intercourse,"
she told the court.
Jessica points out that the
girls were active in sports, including horse-riding, which could
have caused their hymens to break, as could their early masturbation.
A finger wouldn't rupture the hymen of an older girl, but it
would do so in a very young girl, Dr. McKenna testified.
The absence of medical or other
evidence -- the police didn't visit the family home to look for
soiled sheets or underwear -- placed the entire weight of the
prosecution's case on the videotaped interviews with the girls.
***
"The girls would run
into the boys' room
at night. It was just some dumb thing they'd
started doing to annoy the boys."
Eleanor begins her interview with an untruth, though you'd have
to know the family to spot it.
Pasieka tells Const. McLean
that Eleanor and Katy do lots of dancing. But Eleanor corrects
her, saying, "Katy does. I just play the piano."
In fact, it was the other way
round. Eleanor was the dancer. It was Katy who played the piano.
Jessica believes this was Eleanor
testing the water. "She said this to see if she'd be caught,
and she wasn't, so she thought, 'Okay'."
But Eleanor was not the only
person in the hospital soft room that day to start the interview
less than truthfully.
Const. McLean implies that
the interview is private. "[W]e need to know exactly what's
been happening and we're not going to go around telling everybody
This is between us, okay, and our supervisors and that's about
it ."
Eleanor says that Katy goes
into the boys' room to "do sex with" Jonathan.
Paul, Adam and Jonathan slept
in the master bedroom of the house, with Adam and Jonathan sharing
a bed in a side-room in what was effectively a large closet.
"The girls had started
running into the boys' room at night," Jessica told The
StarPhoenix. "It was just some dumb thing they'd started
doing that summer to annoy the boys. They'd also started going
up behind them and yanking their pants down, but again it's total
immaturity. You have a 13-year-old acting like a pre-schooler."
According to Adam, Katy would
come running into the room, pestering the boys and jumping under
the covers when they were trying to sleep. He says she usually
jumped in on Jonathan's side of the bed, just because that side
was nearest the door.
"We'd kick her out after
two minutes," Adam said. "It was annoying. It wasn't
something we wanted."
McLean asks Eleanor what she
means by "do sex." Eleanor replies that she doesn't
know how to say it.
At that point, McLean inadvertently
leads her. "Okay, private parts Everybody's got them, okay,
and sometimes people touch each other in their private parts
and they shouldn't, or it's not appropriate."
The Provincial Child Abuse
Protocol is clear on the issue of suggestion. "The information
should come from the child," it says, "not the interviewer."
McLean's reference to "private
parts" is repeated by Eleanor minutes later when McLean
asks, " what parts of the body are used when you have sex?"
and Eleanor answers, "Their private parts."
McLean asks Eleanor which private
parts are used. Eleanor says, "I don't know what they're
called."
Const. McLean produces an anatomically-correct
diagram.
Many experts agree that the
danger with these diagrams is they tell the child what kind of
thing the interviewer wants to hear.
Dr. Josephine Nanson cautions
against their use. "When a child [is] using terms that are
hard to interpret like down there,' I will have them draw that
for me but I don't do the drawing for them, because I don't want
to lead them on."
Eleanor is able to name the
penis, testicles, breasts and vagina on the male and female diagrams.
Despite knowing the words, she still can't say what she means
by "do sex."
She then says that Paul has
done to her "what Katy and Jonathan would do."
Eleanor would be doing her
chores, she tells McLean, when Paul would approach her, and "then
he's like, come on let's do it, I'm like, no, he's like, why
not, cause I don't want to and I have to do my jobs, and he's
like, well you can do that later, I'm like, no, and he'd like,
pick me up. "
Eleanor's claim that she'd
had sex with Paul two nights earlier, now changes to "when
I was younger," "four times when I was little,"
and "I think last year." She would later tell a psychologist
that it was twice a week.
In fact, she tells McLean,
it was actually Katy and Jonathan who had sex two nights ago.
She says she didn't see it, and no one told her it had happened.
"So you just think it
happened?" asks McLean.
"Ya," Eleanor replies.
It was on the basis of Eleanor's
statement alone that Paul was charged.
***
Eleanor's testimony during
Paul's trial in February 2003 was as thin on detail as her interview
with McLean and Pasieka. The judge concluded Eleanor may have
believed that "doing sex" was jumping under the covers
with a boy.
He ruled that her evidence
was confusing and contradictory. Paul was found not guilty.
The process from accusation
to acquittal had taken 17 months, a long time for a teenager
to live under the shadow of a sexual assault charge.
The experience took its toll
on him. Paul left Saskatchewan soon after his acquittal, telling
his mother he will never live in this province again.
He calls Saskatchewan "an
evil place," says Jessica.
***
"Katy lived very much in her own world."
Whereas Eleanor's confused testimony saw Paul's acquittal, the
guilty verdict against Jonathan and the charge against Tom were
based entirely on statements made by Katy during her videotaped
interview with McLean and Pasieka, and later in court during
Jonathan's trial.
Katy was severely impaired
by FASD, to an extent far greater than the other kids.
Elizabeth Harms of the Hope
Centre says that Katy "lived very much in her own world,"
unable to tell fact from fiction.
"Even in the simplest
of situations, such as if she was eating breakfast and you asked
her if she was eating breakfast, she'd say no, I'm not -- even
as she continued to eat."
Social Services would have
had access to Katy's medical records from the time of her adoption,
but it's not known whether Const. McLean was told that Katy was
disabled.
Const. McLean implies to Katy,
as she did to Eleanor, that the interview is private. "[W]hatever
we say here, we're not going to tell everybody [although] we
have to tell our bosses."
McLean tells Katy what the
interview is about. "[W]e talked to [Eleanor] and we would
like you to tell us if something happened that makes you feel
yucky."
Saskatoon psychologist Dr.
James Arnold believes McLean led Katy by referring to the previous
conversation with Eleanor.
"It's she told us -- now
you tell'," Dr. Arnold wrote in an analysis of the interviews.
"This is leading . . . I wonder if [Katy's] statement is
truly independent of [Eleanor's]."
Katy tells McLean that she
and Jonathan "do sex at home when mom's gone sometimes,
stuff like that."
Katy says she and Jonathan
"lay on top of each other and kissed and stuff" and
she "sucked his penis," and that this has happened
"100 times" in the last two years. She also said she'd
had sex with Paul once when she was 10, but had otherwise never
had sex with anyone else.
It is this claim -- that Katy
had sex with no one but her brothers -- that would later lead
to Jonathan's conviction. Because the judge found her knowledge
of sex to be convincing, and because he believed she had only
ever had sex with Jonathan (apart from once with Paul when she
was younger), he decided that the source of her knowledge must
have been her sexual relations with Jonathan.
McLean asks, "When you
have sex, what private parts are you using?" and Katy answers,
"my hole and stuff" and, of Jonathan, "his penis."
She doesn't say what Jonathan
does with his penis, if anything, until McLean asks, "What
would he do with his penis when you guys were having sex? Where
would it go?"
And Katy responds with, "In
my hole."
(The leading questions about
penetration continued during Jonathan's trial, when the Crown
prosecutor was the first to mention it, asking Katy: "Has
anyone else ever put their penis into your vagina?" -- before
Katy had testified that anyone had done so, never mind anyone
else.)
Katy then tells McLean that
her dad had once asked her to take her clothes off and do naked
"jumping jacks" in exchange for a box of crackers.
On another two occasions, he had touched her breasts, she says,
and looked at her genitals.
"Jumping jacks were part
of Katy's therapy," says Jessica. "She had poor muscle
tone and no co-ordination, so we got her to do jumping jacks.
With her clothes on, of course."
It was solely on the basis
of this claim, made almost in passing during Katy's interview,
that Tom was charged with sexual assault, a charge that still
shows up on the Canadian Police Information Centre (CPIC).
***
Katy clearly knows more about sex during her interview than Eleanor
did, but doesn't seem to understand the mechanics of it.
She can't say what an erection
is, noticing no difference in Jonathan's penis before and after
sex. She doesn't know the words "ejaculate" or "come."
By "get off," she understands "like you're done
sex." She can't explain what she means by that, and doesn't
know whether it happens to Jonathan, although she says it sometimes
happens to her.
But crucially, at Jonathan's
trial 14 months later, Katy's sexual knowledge had changed beyond
all recognition.
She was able to offer the court
detailed descriptions of an erection, ejaculation and semen.
The differences between her
sparse videotaped answers and her expansive testimony in court
could be attributed to different interview techniques. The Crown
prosecutor asked questions of Katy in a way that extracted a
lot of detail from the girl, whereas Const. McLean did not.
But another possibility is
that, after 14 months in foster care, during which time she was
in several different homes, Katy had acquired sexual knowledge
elsewhere.
Shortly after being taken into
care, Social Services arranged for the girls to be given birth
control injections because it was feared they were sexually active.
The need to protect the girls
against pregnancy is significant. If Katy was sexually active
between the time she left home and the time she testified against
Jonathan, it means the detailed knowledge of sex she displayed
in court did not necessarily derive from having sex with her
brother.
***
"I want to protect something called a family."
McLean and Pasieka interviewed Adam after the girls. He was just
15 at the time. He had been removed from his home without being
told why. He wasn't told he could have a parent or lawyer present
during the interview. Although asked whether he'd witnessed or
committed a sexual assault, he wasn't cautioned.
"It was the worst day
of my life," Adam told The StarPhoenix.
In fairness to Const. McLean,
she conducted the interview carefully, asking no leading questions.
Nevertheless, Adam appeared
to be on the verge of emotional collapse.
Adam tells Const. McLean that
the girls would run into the boys' room at night and would dive
under the covers with Paul and Jonathan. He says he doesn't know
what, if anything, happened then.
All he knows is that he didn't
have sex with the girls, and he didn't see anyone else do so
either.
He confesses to a vague memory
of something sexual when he was about seven, which McLean refers
to as playing "doctor."
Adam later told the court he
was recalling how the girls used to masturbate when they were
little.
McLean and Pasieka keep pressing
him: "This is serious, Adam. It doesn't get much more serious
than this," and "Don't zone out on us, Adam."
Adam looks humiliated and distraught,
weeping openly and begging McLean to tell him what's to become
of his family.
He told The StarPhoenix: "I
just started babbling. I couldn't think straight."
Susan Pasieka placed Adam in
foster care for five weeks after the interview, saying he was
in need of "protection," during which time he says
he was discouraged from phoning his family.
"They didn't say I wasn't
allowed to, " he later wrote to friends, "but they
strongly implied it. I learned that social workers are good at
strongly implying things."
One third of the way through
Adam's interview, Const. McLean tells him that police will be
laying charges.
Jessica was also told during
her interview that charges would be laid.
"On Sept. 19, they took
me into this room," says Jessica, "and Const. McLean
told me they were charging [my family] and taking the kids away.
At that point they would only have interviewed Eleanor and Katy."
That Const. McLean knew charges
would be laid when she was speaking to Jessica and Adam, means
she took that decision before completing her interview with Adam,
before the accused had been interviewed, before the RCMP had
a chance to look for other evidence, and before the girls had
been examined by a doctor.
Dr. Novick Brown of the Fetal
Alcohol and Drug Unit in Seattle told The StarPhoenix: "Unfortunately,
the traditional approach by the system [to sexual acting out
between FASD children] has been an assumption that the allegations
are valid, an immediate separation of alleged victims from alleged
perpetrators . . . and vigorous prosecution of the alleged perpetrators
as criminals.
"[This] is an abrupt,
knee-jerk response . . . Social workers have a duty to ensure
. . . the well-being of all the children in a family unit. To
essentially write off the welfare of some of the children to
"protect" the other children in a family on no more
than an allegation is, in my opinion, a mistake that often has
tragic results . . . Destruction of a family is the last resort,
not the first."
Despite his youth and his obvious
terror, Adam hits the nail on the head when McLean asks him if
he wants to protect his brothers.
"No," he replies.
"I want to protect something called a family."
***
Despite the many obvious differences
between Katy's videotaped interview and her later testimony,
Jonathan was found guilty of sexual assault on Dec. 13, 2002
and sentenced to 18 months probation.
Judge Ed Gosselin noted that
"the prosecution's case rests entirely on [Katy's] testimony
and videotaped statement." While he found some of the questions
during Katy's interview to be "leading and suggestive,"
he nevertheless found her evidence "convincing and compelling."
Crucially, he wrote: "The
nature and details of her description [of sex] convinces me that
it was formed from personal experience [and] that the sexual
activity she described took place with [Jonathan]."
***
Doubts had surfaced within
the department about the
children's credibility
Judge Gosselin lacked a vital piece of information when he found
Jonathan guilty. He didn't know that Social Services had commissioned
clinical psychologist Dr. Theresa Zolner, then an assistant professor
at St. Thomas More college, to assess Eleanor, Katy and Ben --
apparently because doubts had surfaced within the department
about the credibility of the children's statements.
The Zolner report contains
a crucial passage suggesting that Katy, contrary to her testimony,
had admitted being sexually active with someone other than her
brothers.
The report became the central
plank in Jonathan's appeal -- on the grounds that it constituted
"fresh evidence" -- which was heard on March 2 this
year before Mr. Justice Gerald Allbright of the Court of Queen's
Bench. Jonathan was represented by Robert Borden.
The Crown prosecutor asked
Gail Hartsook, a former regional director of Social Services,
why the department had asked Dr. Zolner to interview the children.
Hartsook replied: " to
assist us in determining what information [the children] could
realistically be expected to provide to us, given that some of
the children had been identified to have some disability. How
credible the reports might be that the children made to us."
This is an astonishing admission
-- that nearly a year after the family had been torn apart and
brought to the brink of bankruptcy, after charges had been laid,
and after the kids had been made permanent wards of the province,
all on the basis of the children's claims, Social Services still
didn't know whether to believe them.
***
The Zolner report is important
because it flatly contradicts Katy's court testimony that she'd
only had sex with her brothers, and only Jonathan recently, a
claim that led the judge to decide her sexual knowledge must
have come from Jonathan.
Katy, by now 14, told the psychologist
she'd had sex with a stranger at a swimming pool. The young man
had invited her to go with him to buy snacks, Katy said, but
after taking her to a park on his bicycle, he'd had sex with
her instead.
Yet two months after telling
Dr. Zolner this, Katy testified at Jonathan's trial that she'd
only ever had sex with Jonathan, and once with Paul.
Even if Katy made up the swimming
pool claim, it means she makes up stories about sex. True or
false, the swimming pool claim renders her court testimony unreliable.
Judge Allbright agreed. He
overturned Jonathan's conviction on March 11, writing in his
decision: "It is difficult to speculate what [the trial
judge's] assessment of credibility would have been had there
been another possibility for the source of the complainant's
knowledge of sexual matters. "
But the appeal left two important
questions unanswered:
Did anyone from Social Services
know about the swimming pool claim before Jonathan's trial?
Why did Social Services ask
a psychologist to assess the credibility of the children's statements,
but then fail to ensure they received the assessment in time
for the trial?
Dr. Zolner told Judge Allbright
that she often discusses the contents of her reports informally
with Social Services before submitting them, but without her
notes couldn't remember whether she'd done so on this occasion.
As for the timing of her submission,
she testified that the usual turnaround time for her reports
is three months. She interviewed the children in September 2002,
so Social Services would have expected her report in December.
Although social workers knew
Jonathan was standing trial in November, it seems no one told
Dr. Zolner this. When approached for comment by The StarPhoenix,
Dr. Zolner said she couldn't discuss particular cases, but indicated
the first she'd heard about the criminal proceedings was when
asked to testify at Jonathan's appeal in March this year.
In the end, she faxed her report
to Social Services two days before Christmas 2002 -- without
realizing it, too late to help Jonathan, who'd been found guilty
13 days earlier.
***
"I miss my family a lot and would
like to go home. I wish I could
see my mom and dad again."
Little Ben probably got the worst of the deal. The 11-year-old
was the adored and dependent baby of the family. Photographs
show a chubby-cheeked little boy who's always laughing. He idolized
Adam and had just become a boy scout so he could follow in his
footsteps.
"I hoped and hoped for
the longest time we'd get Ben back," says Jessica. "We
tried but none of these things go anywhere. If Social Services
doesn't want to send the kid back, it doesn't matter what you
do."
In the spring of 2002, Elizabeth
Benson, a family friend, bumped into Ben at a fair. "I asked
him how he was doing," she told The StarPhoenix, "and
he said he missed his mom and he wanted to go home.
"My heart really went
out to him because I'd been close friends with the family and
I knew what was happening.
"So I said, if you maybe
wrote a letter -- I knew of the Children's Advocate -- and [Ben]
said he would need help He told me what to say, and I quickly
wrote it for him The words are exactly his."
Ben's letter reads: "I
miss my family a lot and would like to go home. I don't want
to go to a different foster home in the summer. I wish I could
see my Mom and Dad again. I can see [Adam] but not too often.
I'd like us all to be a family again."
Elizabeth sent the letter to
the Children's Advocate in Saskatoon on Ben's behalf.
The advocate's office replied
that Ben would have to call their office personally to ask for
help. "[I]t is our practice to take direction from a child
or youth if they are able to articulate their issues related
to service they are receiving," they wrote.
In fairness to the advocate's
office, they're not able to say whether they later tried to help
Ben. All that's known for sure is that he never got to go home.
He'd had no legal representation
during the process of being removed from his family and subjected
to a videotaped interview. He wasn't involved in the sexual abuse
claims. He'd been separated from his pets, his boy scouts and
his beloved older brother.
He wasn't even allowed to say
goodbye to his mom and dad.
***
"All I know is that I loved them.
I loved all of them. And I still do."
For weeks after the kids were removed, Jessica did nothing. The
lunch table set for five stayed just as it was.
"Nothing moved in the
house," she says. "We never went in the girls' room
again, not until we had to sell our home to pay the legal fees
during Jonathan's trial."
She virtually stopped eating
and sleeping. "I kept thinking they'd talk to me, that if
they didn't talk to me today, they'd talk to me the next day
and someone would get this sorted out. But it didn't happen."
Financially, defending Tom
and the boys has cost the family everything they had, and they
didn't have much to begin with. Before they found Robert Borden
in the summer of 2002, the family had hired several lawyers.
One of them was meant to be court-appointed but he apparently
forgot to send a form in, leaving Jessica to pay his fee.
"I was paying, it seemed,
like $1,000 a week to a lawyer," says Jessica. "Many
[of my customers] paid us for the whole year . . . that fall,
and those cheques went straight to lawyers, but then I had no
money coming in for the rest of the year Jonathan paid some legal
fees himself, something that most 16-year-olds don't generally
end up doing."
They sold their home and land
to pay Jessica's mom back for money she'd advanced them. Adam
had to shelve plans to finish his education because the family
can't afford the fees.
Jessica's friends and neighbours
have rallied round, sending dozens of letters of protest and
petitions to Social Services. This much is not in doubt: the
family has the support of their community.
"I haven't cried yet,"
says Jessica. "I almost cry on Ben's birthday, but I just
can't. I haven't been able to grieve because it's not over. It
feels like it'll never be over.
"All I know is that I
loved them. I loved all the kids, all of them. And I still do."
|
Truth can never be
told so as to be understood, and not be believ'd. William Blake, The Proverbs of Hell
