8.2.1 Imagined Crimes and the Irrational

Attempts to understand and prevent wrongful convictions by early writers such Lailler and Vonoven (Reference Lailler and Vonoven1897) in France, Borchard (Reference Borchard1932) in the United States and Hirschberg (Reference Hirschberg1940, Reference Hirschberg1941) in Germany were part of a rationalist and enlightenment tradition (Morris, Reference Morris2005: 331). Although he importantly brought Freud’s writings about the importance of the subconscious into the study of wrongful convictions (Hirschberg, Reference Hirschberg1940: 40), the anti-Nazi German lawyer and scholar Max Hirschberg ultimately appealed to rationality, science and “modern criminology” (Reference Hirschberg1940: 43) as a means to prevent wrongful conviction. He dismissed the idea that wrongful convictions were inevitable as a sign of “indolence in thought and sentiment” (Hirschberg, Reference Hirschberg1941: 539). These early writers looked with admiration to Voltaire’s successful campaign against the conviction of the French Protestant Jean Calas for murdering his son, as discussed in Chapter 7.2.

Imagined crime wrongful convictions starting with witch trials, however, represent the victory of the irrational over the rational as well as a victory of the imagined over the real. Jessica Henry (Reference Henry2020: 25) has demonstrated how women are overrepresented among such no-crime wrongful convictions. It is likely that other groups vulnerable to irrational prejudice are also over-represented. Intersecting forms of irrational prejudice including against sexual, racial and religious minorities may also be in play (Roach, Reference Roach2023a).

Imagined crime wrongful convictions are especially difficult to correct. Many are only discovered when the media and state find policing or forensic misconduct. In 1718, Bishop Francis Hutchinson, a critic of witch trials, argued that “in other cases, when wicked or mistaken people charge us with crimes of which we are not guilty, we clear ourselves by showing at that time, we were at home, or some other place, about our honest business. But in prosecutions for witchcraft, the most natural and just defence is mere jest” (quoted in Hood, Reference Hood2001: 100).

Ahistorical accounts of miscarriages of justice that start with DNA exonerations obscure many truths about how larger structural factors related to irrational prejudice help explain wrongful convictions. They also suggest that the rational reforms directed at the immediate causes of wrongful convictions discussed in Chapter 3 might be unable to prevent all wrongful convictions. The reform agenda of the post-DNA innocence movement is overly optimistic and discounts the frequent success of irrational human prejudice in criminal justice systems (Friedland, Reference Friedland1984).

8.2.2 Witch Trials

There is a vast interdisciplinary literature on historical witch trials. In this chapter, I will only be able to focus on material that is most relevant to crimes that did not happen and prejudice and misogyny.

Men were convicted of being witches, but the stereotypical witches have long been described as “wicked women” associated with pagan Gods (Le Beau, Reference Le Beau2023: 9). A medieval text Malleus Maleficarum described women as “bitter and dangerousness” and “governed by carnal lusting” so that it was “unsurprising that more women than men are found to be tainted with the Heresy of Sorceresses” (Gibson, Reference Gibson2024: ch 1). About three-quarters of convicted witches were women. Many were over fifty years of age (Goodare, Reference Goodare2016: 275). Kathleen Duffy (Reference Duffy2020: 21) has explained “[a]lso suspect were eccentrics, bad-tempered or solitary women, women with a sharp tongue who were quick to scold and threaten, frightening to look at, ugly and squinty or who had pocked skin and a deformed figure that bent and bowed with age.” She added: “[o]ne suspected old woman is described as having dirty clothes, outlandish gear, long teeth and cloven feet. The kind of imagination that could create such beings was also capable of transforming old women, weighed down by their infirmities, into embodiments of malevolent power” (Reference Duffy2020: 21). Malleus Maleficarum, the first witch prosecution book, listed male impotence as the primary evil caused by witches who worked with the Devil to achieve such results (Reference Duffy2020: 52).

The first witch trial in Europe resulted in two women being burned alive in 1391 because they had supposedly made the male complainant ill (Nash, Reference Nash2008: 474). German witch trials between 1603 and 1630 resulted in 113 women and nine men being burned (Reference Nash2008: 477). The prevalence of witch trials in Germany has been related to the advancement of printing presses, which facilitated the communication of news about witches and their trials and thus helped set off a wave of panics (Goodare, Reference Goodare2016: 245). Another factor was “moral entrepreneurs” such as Mathew Hopkins, “a self-styled ‘witch-finder general,’ who between 1645 and 1647 succeeded in orchestrating a panic with several hundred victims” in England (Reference Goodare2016: 245).

Witch trials often focused on the women’s sexuality (Le Beau, Reference Le Beau2023: 19). Overlapping with gender was poverty with the poor being “easy targets” for witch trials (Reference Le Beau2023: 19). Witches were also often charged when children died of natural deaths that reflected high infant mortality rates (Reference Le Beau2023: 40–50).

After a series of witch trials, there was often some regret. Judges, especially those at the appellate level, became more cautious. France’s Paris-based Parlement reversed and acquitted 70 per cent of witchcraft convictions after 1604 (Goodare, Reference Goodare2016: 324–326). As discussed in Chapter 7.1, it was the Paris-based Parlement that eventually listened to Voltaire and acquitted Jean Calas albeit after he had been broken on the wheel after the Protestant man was wrongfully convicted of murdering his son supposedly because the son wanted to convert to Catholicism. The same court also eventually acquitted Alfred Dreyfus.

King James VI of Scotland, son of Mary Queen of Scots and who later became King James I of England, presided over a witch trial of two women, Geillis or Gillie Duncan and Agnes or Anny Sampson, who were both poor servants at Holyroodhouse. The trial ended with a guilty verdict on January 27, 1591. Anny Sampson was stripped and sexually assaulted in order to find a demonic mark. She was forced to confess to creating a sea storm that had impeded the King’s journey back from Denmark with his new wife. Faced with torture, both women falsely confessed that many other people were witches. One of these women was acquitted by a jury but convicted after King James VI threatened to have the jury tried. Another woman, Effie McCalzean, was burned alive in June 1591 because she was found to have been an “undutiful” and unfaithful wife (Gibson, Reference Gibson2024). Such was the misogyny and irrationality of witch trials.

False confessions were frequently obtained through the use or threat of torture. Bodin, another writer of a book on how to find and prosecute witches, described in 1580 what might be seen as a medieval version of the Reid interrogation technique frequently associated with false confessions (Leo, Reference Leo2008). Bodin recommended that the interrogation start in a “light and humorous” manner by inquiring about a witch’s family before, if necessary, employing strip searches and confining suspects “in a dark, narrow cell. Every lawful means must be used to induce the accused to tell the truth” (Duffy, Reference Duffy2020: 66–67). Torture in Continental Europe was generally legal at the time. Another medieval writer, Boguet, wrote in 1590 that because most acts of witchcraft were “horrible and secret crimes” committed in private without witnesses that “a less absolute proof is sufficient” (Reference Duffy2020: 74). An early critic of witch trials warned about what he called “false confessions” before King James I of England tried to have all copies of his 1584 book called the Discovery of Witchcraft destroyed (Reference Duffy2020: 7).

In his history of the Salem witch trials, Peter Charles Hoffer rejected the idea that witch trials were a “puppet show” guided by “antifeminism” (Hoffer, Reference Hoffer1997: 6). At the same time, he admits that the accused in witchcraft trials “were overwhelmingly women” especially “women who would not show submissiveness to men.” He also noted that “well over half the indictments against witches in England involved the sickness or death of children” (Reference Hoffer1997: 37). The sexist idea that women were superior in some ways to men often triggered a sense that the few women who acted in unfeminine or unmotherly ways must be condemned.

The first Salem witch to be executed, Betty Bishop, was almost sixty years of age, and she was executed in 1692 after two babies died. She was the widow of two men and alleged to have “kept a house of ill repute with her doddering third husband’s consent” (Reference Hoffer1997: 84). In this way, Betty Bishop was condemned both for failing to nurture the children successfully and for being associated with sex. She told the court, “I am innocent… I know not what a witch is,” causing the prosecutor to reply: “How do you know then that you are not a witch?” (Reference Hoffer1997: 91). This well describes the impossible position that accused find themselves in defending against allegations of crimes that never happened.

Hoffer described a process during the Salem witch trials where judges interpreted protests of innocence as confirming “the work of the Devil.” For example, Cotton Mather rejected the idea that confessions came “from the deluded imaginations of mad and melancholy persons” (Reference Hoffer1997: 81). The judges believed they were part of the Elect and avoided any “cognitive dissonance” when convicting witches by viewing them as evil (Reference Hoffer1997: 69). Today these processes would be called both confirmation bias and noble cause corruption.

Another woman convicted at Salem was Tatabe, a slave of Indigenous/Arawak and African origins who was accused of making two children sick. She was imprisoned before trial for more than a year but she was acquitted in 1693 as a general trend as courts began to reject prosecutions based only on spectral evidence (Gibson, Reference Gibson2024: ch 60). Three years later many of those accused and some of the families of those who had been executed were awarded monetary compensation (Reference Gibson2024: 151) The Salem jurors even issued a public apology in 1696 for “ignorantly and unwittingly, to bring upon ourselves, and this People of the Lord, the Guilt of Innocent Blood.” As Julian Goodare has noted, this apology was “rooted in a vision of a godly society – the kind of society to which the Devil and his witches continued to pose a threat” (Goodare, Reference Goodare2016: 317, 323). The Salem apology and compensation is also an early example of the generous American approach discussed in Chapter 6.8 to compensating those who were wrongfully convicted but were later accepted as completely innocent. Both seem to be rooted in a moralistic approach that was quicker to condemn than to forgive.

Men were convicted of being witches with 78 being executed in New England. Richard Godbeer (Reference Godbeer2017: 482) has found that the “accusations against men were mostly about their inability or refusal to carry out successfully their patriarchal responsibilities” As he notes, “failure to meet gendered expectations could prove dangerous, even fatal, for both sexes.” One of the executed men was known to abuse his wife and was also suspected of making an alliance with Indigenous tribes (Reference Godbeer2017: 488). Another was known to abuse his wife and threaten his neighbours. He was also believed not to be sufficiently devoted to God (Reference Godbeer2017: 490–492).

There is still widespread belief in witchcraft today, especially in Southern Africa, despite colonial attempts both to outlaw witchcraft and to reject witchcraft as a defence to widespread killing. As in other parts of the world, the suspected witches are often women or children, especially those with disabilities or albinism. There are estimates that thousands of suspected witches were killed in Tanzania in the 1980s, 1990s and 2000s (Goodare, Reference Goodare2016: 377). Health care workers responding to disease have also been lynched on the basis that they themselves have spread the disease. There are “witch-homes” in South Africa and Ghana that are “both a refuge and a prison” for those accused of witchcraft, often women, who are trying to avoid lynching (Reference Goodare2016: 376). A thirteen-year-old Beninese girl had to leave her home and explained: “Everyone said I was a witch. They said I ate someone, but they would not say who I ate” (Nyanyuki, Reference Nyanyuki2022). This is another reminder of the need to take a broader approach to miscarriages of justice that are not limited to wrongful convictions. People have also been executed in Saudi Arabia for being witches (Reference Nyanyuki2022: 379). Unfortunately, it is a mistake to dismiss witch trials as irrational conduct that humanity has risen above.

8.2.3 Satanic Child Abuse Panics

Just as witch trials were a global phenomenon, so too were wrongful accusations and wrongful convictions related to suspected Satanic child sexual abuses in the 1980s and 1990s. This suggests that it is not only the immediate causes of wrongful convictions discussed in Chapter 3 that are universal, but also some more complex and intractable structural causes rooted in irrational prejudice and fear.

As with witch trials, there were often wild claims of Satanic abuse in the child sexual abuse trials. These claims often reflected unease with the changing role of women as they increasingly entered the labour force and required child care for their young children, as well as increased awareness of the reality of sexual abuse of children. The panics were also related to belief in repressed memory and were more likely to be believed by therapists who had attended special workshops on satanic-inspired sexual abuse of children. The rise of evangelical Christianity in the United States also played a role (Bottoms and Davis, Reference Bottoms and Davis1997). A 1987 Geraldo Rivera special “Devil Worship: Exposing Satan’s Underground” attracted a third of television viewers (Hughes, Reference Hughes2017: 703).

The American registry of exonerations lists 60 people wrongfully convicted in what it describes as “child sex abuse hysteria cases” (National Registry). Of these 60, 25 are women and the rest are men. Johnson (Reference Johnson2020: 121) describes these cases as “by and large, ‘false rape charge’ and ‘no crime’ cases without biological or physical evidence” linking the accused to the crime. In many cases, children were subject to multiple interviews by police, parents, child protection officials and experts in child sexual abuse who sometimes engaged in “suggestive and biased interviews” (Reference Johnson2020: 123). He argued that this is consistent with a process of moral outrage and correction that ultimately influenced not only experts in the area but also judges and juries. He also relates these “no crime cases” to moral panics and “witch hunts” (Reference Johnson2020: 121).

As with witch trials, there were clusters of wrongful convictions associated with child sexual abuse panics. The American registry lists eleven cases all involving false child sexual abuse convictions from Wenatchee, a small centre in the northern part of the state of Washington. All of the wrongful convictions involved a police officer who, after receiving a week of training, took over the police sex crimes unit. He reported that first his own foster children and later around sixty children had been raped by forty-three people just under 30,000 times in a town with a population of 55,000. The officer, Robert Perez, called the suspects “the circle.” The accused included a pastor, but many were poor. The first two convictions occurred when Harold and Idella Everett, both mentally disabled and illiterate, pled guilty. Harold had been charged with 6,422 counts of rape. He pled guilty to eight counts and was sentenced to twenty-three years in prison. Idella faced 1,586 counts of rape. She pled guilty to two counts of child molestation and was sentenced to five years (National Registry, Harold and Idella Everett). Another couple, Connie and Henry Cunningham were convicted and each sentenced to forty-six years imprisonment. Henry who suffered from bipolar depression made a false confession (National Registry, Henry Cunningham).

The American cases often reflected its punitive penal culture in the sense of multiple charges and very high sentences. A twenty-three-year-old assistant at a Wee Care facility, Margaret Kelly Michaels, was convicted in 1988 of 115 counts of sexual abuse and sentenced to forty-seven years before her convictions were reversed by appellate courts. Her convictions were overturned in part because of an amicus brief from academic psychologists raising concerns about the suggestive interviewing techniques that had been used (State v. Michaels, 642 A2d 1372, 1993).

Ross Cheit (Reference Cheit2014) has argued in a book based on his examination of the American trials and published by Oxford University Press that evidence for what he calls “the witch hunt narrative” is “weak at best.” He traces the emergence of the witch hunt narrative in the media. He argued that the Margaret Kelly Michaels case was a turning point that led to declines in wrongful convictions but increases in wrongful acquittals. He argues that there were flaws in some of the research the New Jersey Supreme Court relied on to suggest that children were suggestible and that they ignored the actual interviewing techniques used in the case. He accused some of the social scientists who contributed to the Michaels case, as displaying a “disconfirmation bias” (Reference Cheit2014: 327) sceptical of claims of child sexual abuse. This debate demonstrates both the power of historical linkages to the witch trials, but also continued controversy in cases involving claims of child sexual abuse. Professor Cheit, who describes himself as a survivor of child sexual abuse, argues that some of those widely believed to have been victims of wrongful convictions in child sexual abuses are actually guilty (Cheit, Reference Cheit2022: 161). As examined in Chapter 6, the American focus on proven innocence has invited competing denials of innocence (Bazelon, Reference Bazelon2018b), and these may increase in times of political polarization.

Like the witch trials, panics over child sexual abuse were transnational. In 1987, two paediatricians in Cleveland, England, diagnosed over 100 children as sexually abused. Many child protection proceedings were brought before it was discovered that the two doctors had been misdiagnosing reflex anal dilatation as evidence of sexual abuse. A 1988 public inquiry concluded that the diagnoses had been incorrect and recommended that allegations of child sexual abuse not be based on only a medical diagnosis. The Inquiry also found both flaws in interviews of children and a lack of disclosure to the defence. This scandal revealed linkages between child protection proceedings, forensic errors and wrongful child abuse convictions, suggesting the need for a broader focus on miscarriages of justice than a focus on wrongful convictions.

The 1988 English inquiry made no findings about whether the children were sexually abused. Controversy over whether the children were sexually abused continues to this day. Debate has become polarized among “believers” and “sceptics” with some alleging the inquiry was a cover-up and perpetuated “wickedness” by suggesting that it was rare for children not to reveal that they were sexually abused without extensive interviewing (Campbell, Reference Campbell2023: 185, 188). The continued controversy over both these American and English prosecutions suggests that it may be a mistake to assume that rationality alone can eliminate wrongful convictions. It also underlines the difficulty of disproving allegations about crimes that may never have happened.

Intersecting forms of prejudice and discrimination may contribute to child abuse wrongful convictions in cases where no crime was committed. In Canada, the Motherisk laboratory associated with Toronto’s Hospital for Sick Children made false diagnoses of drug use in mothers and children that resulted in at least two wrongful convictions of women. One, Tamara Broomfield, was a Black single mother wrongly convicted of giving her two-year-old cocaine. She was vilified in the Canadian press with frequent references that she came to Canada from Jamaica. The prosecutor asked for a sentence of eight years’ imprisonment, arguing that Broomfield’s conduct was “self-serving and I dare say evil.” She received a seven-year sentence. When she was granted bail pending her successful appeal, media headlines included: “Drug Mom is out on the street” (Roach, Reference Roach2023a: 89–90). Another single mother, Joyce Hayman, was also wrongfully convicted of giving her four-year-old son cocaine in 1998. Like Broomfield, she maintained her innocence. As she subsequently explained, however, she was not believed because “drug addicts are liars and thieves, that’s what everybody thinks” (Reference Roach2023a: 89–92). Two subsequent inquiries found that faulty forensic evidence was used in many child protection proceedings sometimes to terminate parental rights, again pointing towards the need for a broader understanding of miscarriages of justice.

Some child sexual abuse wrongful convictions had allegations of Satanic influence, creating a direct line between them and the witch trials. As in the witch trials, not everyone charged was convicted. After some initial enthusiasm for convictions, there were signs of more caution. Unlike witch trials, some controversies continue today with some denials that innocent people were wrongfully convicted (Campbell, Reference Campbell2023; Cheit, Reference Cheit2014). These current controversies reflect increased polarization of political opinion as well as the difficulties of proving definitely that no crime has been committed.

8.3.1 Peter Ellis and Prejudice against Gay Men

Gay sex was only legalized in New Zealand in 1986 but a proposal in that year to prohibit discrimination on the basis of sexual orientation was defeated with New Zealand’s top police officer opposing it on the basis of his Christian beliefs and concerns about gay people working with children. This was also a year where laws were amended to make it easier to prosecute child sex abuse (Hood, Reference Hood2001: 181).

As with the witch trials, males were not immune from being charged and convicted of child sexual abuse. In 1991, Peter Ellis, an openly gay person who “wore bright clothes and make-up” (Reference Hood2001: 181), was charged, along with four female colleagues at a day care centre, with child sex abuse. Many of the parents of the child complainants worked “in the sexual abuse field” (Reference Hood2001: 179, 228) and had become aware of child sexual abuse when some of the American experts who misdiagnosed child abuse at the McMartin pre-school gave lectures in Christchurch (Reference Hood2001: 160).

The four women were committed for trial at a preliminary hearing, but the trial judge dismissed charges against them on the basis that “the evidence against them is of insufficient weight to justify the trial” and that “the potential for prejudice against the Accused is so great that they might be convicted for the wrong reasons…” (Reference Hood2001: 411).

Ellis unsuccessfully tried to stop his trial on the basis of widespread adverse pre-trial publicity including what his lawyer called “guilt by dissociation” after the discharge of the four women. The trial judge rejected that challenge observing: “Counsel have not referred me to any case where an accused has been discharged altogether because of a risk that a fair trial might not be possible at all” (R. v. Ellis 1993 3 NZLR 317). Ellis’s legal aid lawyer wanted a change of venue because in his view “Christchurch was the worst place in the world to run the trial,” but Ellis refused because he needed to look after his pets and mother (Hood, Reference Hood2001: 412).

The trial judge rejected defence submissions that the interviews of the children were conducted in a “wrong and oppressive” manner after having watched 39 hours of the videotaped interviews with 14 children. He also stressed that the interviews were “under the supervision of a psychiatrist with specialist qualifications in child sexual abuse cases” (Reference Hood2001: 257, 410). This psychiatrist, Dr. Karen Zelas, would become a key and controversial figure at trial. She told the jury about symptoms of child sexual abuse including sleep disturbances, mood swings, tearfulness, sadness, headaches, stomach aches, anxiety, vomiting, wetting, loss of concentration and reluctance to go to bed (Reference Hood2001: 445). On cross-examination, Dr. Zelas was asked, “What behaviours in young children are inconsistent with the child who has been sexually abused?” She tellingly replied: “I haven’t thought about that” (Reference Hood2001: 447). Over objections from the defence, the jury was given a table prepared by the police cross-referencing the purported symptoms of child abuse with when the specific child had expressed fear or dislike of Ellis or reluctance to attend the child care centre (Reference Hood2001: 448–449). A defence expert called to rebut Dr. Zelas was a “disaster” after he admitted he had been described as a “crusader for the rights of men” (Reference Hood2001: 458). The trial judge told the jury that Dr. Zelas has more relevant experience than the defence expert and also told the jury that they could consider the many symptoms she described as indicative of sexual abuse (Leonetti, Reference Leonetti2023b: 6). As in other cases examined in this chapter, improper expert evidence played a role in the wrongful conviction. Nevertheless, a focus on such a generic and immediate cause downplays how the expert evidence may have re-enforced homophobic stereotypes already present in the minds of the jury.

Ellis was tried before a jury of nine women and three men. It was eventually revealed that one of the juror’s partner worked with the mother of a child complainant, and another was a clergyman who married the Crown Solicitor, the chief prosecutor (Reference Hood2001: 422). As in the Donald Marshall Jr. case examined in Chapter 7.6, these types of conflicts of interest reveal that the legal system is not always able to deliver the most rudimentary elements of impartiality and fairness in wrongful conviction cases. In another Canadian case, the conviction of a gay HIV positive man for sexual assault of three other men who he claimed consented and known about his HIV status was overturned on the basis of homophobic comments including “I sentence you to five years of awesome” that the jury’s foreman made on a radio show shortly after the jury convicted the man who served six years in jail before his conviction was overturned (Roach, Reference Roach2025a: 313–315).

The trial judge allowed evidence from one of the creche workers that Ellis told her about having “golden showers” with consenting male partners. He ruled that the probative value of this evidence outweighed any prejudice it would cause (Hood, Reference Hood2001: 417–418). Ellis’s barrister called Ellis as a witness after having him cut his hair and nails. He believed that Ellis effectively had to prove his innocence to the jury (2021: 452). Ellis testified that some of the children’s allegations of sexual abuse at the childcare centre were impossible given the openness of the centre. (2021: 456). After three days of deliberation, the jury convicted Ellis on most counts but acquitted on a few counts. The trial judge sentenced him to ten years’ imprisonment, which some saw as a fairly light sentence.

Peter Ellis was partially successful in a 1994 appeal when the oldest complainant – Child A who was seven years old – retracted her statement that Ellis has abused her. The Court of Appeal, however, suggested that Child A was a “confused and troubled girl” and only overturned the counts relating to her. With Child A’s retraction, only six of the 118 children at the child care centre interviewed now were making complaints (Reference Hood2001: 486). Despite this, the Court of Appeal, including renowned jurist Sir Robin Cooke, concluded that the remaining convictions were not unreasonable or a miscarriage of justice. It dismissed concerns about the way the multiple interviews were conducted on the basis that this would have been considered by the jury in determining Ellis’s guilt. It also suggested that the more bizarre allegations in the interviews did not raise a reasonable doubt about Ellis’s guilt. The Court of Appeal did not mention Ellis’s sexual orientation but rejected his argument that the crimes were impossible given the open layout of the child care centre by concluding: “Great risks of detection may have been run, but that is not uncommon in cases of indulgence in a perversion” (R. v. Ellis (1994) 1 NZCrimC 592). When the New Zealand Supreme Court would eventually overturn Ellis’s conviction in 2022 it would reason that given the similar fact nature of the case “that the undermining of some of the verdicts necessarily calls into question all of the verdicts” (R. v. Ellis 2022 NZSC 115 at para 321) without noting that Court of Appeal in 1994 had refused to take such an approach.

Ellis maintained his innocence and refused to be considered for parole. After campaigning, a new appeal was ordered by the elected executive in 1998 as a remedy for a possible miscarriage of justice under powers related to the royal prerogative of mercy. Ellis submitted new evidence about conflicts of interest on the jury and new evidence on memory in children. The Court of Appeal refused to grant Ellis bail pending the new appeal citing concerns about public safety and his refusal to be considered for parole (R. v. Ellis [1998] 3 NZLR 555). A five-judge Court of Appeal unanimously dismissed Ellis’s second appeal. In oral argument, two of the judges had expressed concerns that the symptoms Dr. Zelas had presented of child sexual abuse were common among all children (Leonetti, Reference Leonetti2023b: 8–10), but this was not discussed in their written judgment. The Court of Appeal also stressed that it was not in a position to conduct an inquiry into the reliability of testimony given by young children (R. v. Ellis [2000] 1 NZLR 513).

The controversy would not die. A 2001 inquiry conducted by Justice Eichelbaum found that even though 80 per cent of the questions asked of the children were suggestive, the interviews matched and even exceeded international best practices at the time and that subsequent improvements would not have made a difference to the outcome. The inquiry also found that “there was much cross-talk between families. However, I am wholly unconvinced by the proposition that these events produced the detailed, similar accounts given by so many children, in separate interviews stretching over many months.” The judge concluded that “the jury was astute in identifying those counts where the supporting evidence or the method by which it emerged was open to valid criticism.” The judge also agreed with two international experts that the children’s evidence “was reliable” and concluded that the convictions were safe (Eichelbaum, Reference Eichelbaum2001).

The Eichelbaum inquiry, however, did not deal with two concerns that another New Zealand judge, Sir Thomas Thorp, had raised when asked to conduct an earlier investigation. Justice Thorp was concerned that prosecutors had sanitized the charges by excluding the more incredible allegations and also that Dr. Zela’s testimony had bolstered the credibility of the child witnesses because her “expert opinion was that no behaviour can be inconsistent” with child sexual abuse (Hood, Reference Hood2001: 536–537). Justice Eichelbaum’s inquiry also did not call an American expert Stephen Ceci that Thorp believed should be called for fear that he was too partisan for the defence. Ceci’s evidence had been accepted by the New Jersey Supreme Court in the Kelly Michaels case discussed earlier (Reference Hood2001: 538).

A third appeal was ordered by the elected executive in 2019, the same year Peter Ellis died at sixty-one years of age. The New Zealand Supreme Court decided in a 3:2 decision to allow the appeal to continue with the majority citing in support Maori law called tikanga that suggested that a person and their family’s reputation survived their death. The Court also concluded that concerns with the finality of the convictions had lost value in light of the continued controversy over the case. The minority would not have heard the case and stressed the finality of the convictions and appeals and the complainant’s interests (Ellis v. The King 2022 NZSC 114).

On the merits, all five judges of the Supreme Court agreed that the convictions should be overturned largely because of the risk of contamination in the interviewing techniques and the role played by Dr. Zelas, who both supervised the police interviews of the 118 children and testified for the prosecution. The Supreme Court criticized Dr. Zelas for engaging in “circular reasoning” and for being dismissive of alternative explanations for the common behaviours such as trouble sleeping and bed wetting. It stressed that expert witnesses should be willing to concede alternative explanations and not be driven by “a perceived need to support a preconceived outcome” and should provide more “balanced” testimony. The Court also placed some of the blame on a 1989 law (repealed in 2006) that had been introduced that allowed expert witnesses to testify more easily about common characteristics of children that had been sexually abused (R. v. Ellis 2022 NZSC 115 at paras 120, 160, 234).

Like the witch trials, the Ellis case engaged in cyclical patterns of panic followed by increased caution. Without condoning Dr. Zelas’s approach, there is a danger that courts will blame expert witnesses and use changes in expert opinion as a means to avoid dealing with their own failings and as a means to register cyclical regret. The risk of contamination in the child interviews had been previously argued and dismissed both at trial and in two previous appeals. As in the Bernard Baran case, the ultimate decision in the Ellis case seems to reflect increased sensitivity to the risk of prejudice against gay men.

There was some adverse reaction to the Court’s decision with some of the relatives of the children still maintaining that Peter Ellis was guilty (Radio New Zealand, 2023). A year after the Supreme Court’s quashing of his conviction, Peter Ellis’s brother said it was “insulting there has been no apology. It’s been over a year now” (Sumner, Reference Sumner2023). In 2024, a new conservative government in New Zealand ruled out an apology or a public inquiry into the case with the Minister of Justice stating: “Under existing compensation guidelines, a wrongly convicted person must be alive at their time of application. Therefore, no further action is being considered.” As Ellis’s lawyer pointed out, the compensation guidelines did not preclude an apology. Ellis’s brother noted that the New Zealand government has apologized for other wrongful convictions adding: “What they did to Peter was atrocious … Just give an apology. Just say: ‘It was wrong’” (Walters, Reference Walters2024).

Lynley Hood in her award-winning account of the Ellis case has argued that Ellis was scapegoated both because of his gender and his sexuality. She argues that “authoritarian Christchurch feminists had a pre-existing prejudice against men, and authoritarian Christchurch police had a pre-existing prejudice towards homosexuals” (Hood, Reference Hood2001: 209). The ultimate resolution of this case is less than satisfying both because it does not address the role of homophobia in the 1993 convictions and it seems to blame one expert for a wrongful conviction that was sustained on two separate appeals in 1994 and 1998 and by a 2000 public inquiry. Downplaying the role of prejudice in wrongful convictions can lead to an individualistic bad apple approach that ignores questions of both organizational and collective societal responsibility for miscarriages of justice (Roach, Reference Roach and Stenning1995).

8.3.2 The San Antonio Four and Prejudice against Lesbians

In 1995, two young nieces, seven and five years old, respectively, reported that their aunt, Elizabeth Ramirez, and three of her female friends had sexually abused them in San Antonio, Texas. The complainants made these claims after their father, who was physically abusive to them, demanded that they do so after being romantically rejected by Ramirez. Police learned that all four Hispanic women had recently announced to their families that they were lesbian. The four women protested their innocence and declined plea deals. Cassandra Rivera, one of the Four, explained that “during jury selection, the attorneys talk about us being gay as if it were a disease, or something to be frightened of – that we are not human…Being gay does not make us perverts or sick people…[I]t DOES NOT mean that were are going to hurt small children” (Grappo, Reference Grappo2020: 16). These comments illustrate the danger that attempts to question prospective jurors about prejudicial stereotypes will inadvertently confirm those stereotypes.

Elizabeth Ramirez was convicted in 1997 after a doctor and professor of paediatrics testified that a healed scar on one of the girls’ hymens was caused by sexual abuse, which she had recorded in her notes as satanic related. The prosecutor told the jury that the two young girls were “a sacrificial offering at the altar of lust” (Alp, Reference Alp2023: 180). The jury convicted Ramirez despite the doctor admitting on cross-examination that the child’s healed scar might have been the result of an accident. In a reflection of the United States’ punitive culture, Elizabeth Ramirez was sentenced to 37.5 years. She was twenty-two years old at the time.

The other three women were tried together and also convicted with each sentenced to fifteen years’ imprisonment. One of the children subsequently retracted their statements, and the expert at trial partially retracted her statement after another expert who examined photos taken of the children said there was no evidence of trauma. All four women were found to be innocent by the Texas Court of Criminal Appeals in 2016 because of the scientifically invalid testimony and because of the credible recantation by one of the complainants. The Court of Criminal Appeals found that the four women had “unquestionably established” their innocence, Ex parte Mayhugh 512 S.W. 3d 285 (2016). In a sense the women were lucky because establishing their innocence required new scientific evidence, which was provided. The one complainant’s recantation would not have been sufficient. Each of the four women received over a $1 million in compensation for the fifteen years they were wrongfully imprisoned (National Registry, Elizabeth Rodriguez). The immediate causes of these wrongful convictions are false testimony and false forensics, but homophobia also played a very large role.

8.3.3 Leigh Stubbs and Tami Vance and Prejudice against Lesbians

Valena Beety (Reference Beety2022) has written about how prejudice against lesbians influenced another sexual abuse wrongful conviction with similarities to those of the San Antonio Four. The case involved Leigh Stubbs, Kim Williams and Tami Vance who all meet at a drug rehabilitation centre. Kim Williams overdosed on OxyContin in the presence of Leigh and Tami who were subsequently charged with assaulting Williams when medical staff and then police discovered what they believed to be signs of sexual assault on Williams while she was hospitalized.

The case involved the infamous Michael West, a Mississippi dentist associated with a number of wrongful convictions. West testified that Kim Williams was a victim of “severe oral sex” after examining her without consent and while she was comatose. West then purported to find a “match” of a bite mark on Williams and Leigh Stubb’s teeth (Reference Beety2022: 59). He testified that while he did not have experience with “female homosexual activity…its documented that male homosexual activity is much greater in bite marks” and that it would “almost” be expected to find bite marks in all homosexual rape cases (Reference Beety2022: 117, 157) The use of unreliable bite mark analysis “dates back to the infamous Salem witch trials” when it was used to convict Reverend Burroughs of recruiting girls into witchcraft. Burroughs was eventually exonerated but only after he had been hanged in front of the people of Salem (Reference Beety2022: 73).

West was not the only expert who contributed to the wrongful conviction. Medical examiner Rodrigo Galvez testified that “homosexual crimes, all, they are very sadistic. Most violent crimes I’ve seen in my experience are homosexual to homosexual. They do what we call overkill. They do tremendous, tremendous damage…. The more repulsive crimes I’ve ever seen were homosexual to homosexual” (Reference Beety2022: 147–148). The prosecutor echoed these prejudicial comments in closing arguments by stressing that Vance and Stubbs were lovers and that “homosexual assault is the most brutal” and “involves torture” (Oliva and Beety, Reference Oliva and Beety2019: 1790).

The jury rejected the defence’s plea that it could not convict on the basis “of junk science” and convicted both women after two and a half hours’ deliberation. In another display of punitive American penal culture, they were sentenced to twenty-four years for the drugs and twenty years for aggravated assault to be served consecutively (Beety, Reference Beety2022: 154–155). Valena Beety commented that both Stubbs and the victim Williams received “more of the men’s sympathy” because of their femme appearance, but not Tami Vance “with her rocking mullet and cargo pants” that “fit some stereotypes about lesbians” and subjected her to “hostility and hate.” Even though Dr. West had identified Stubbs with the bitemark, police were more reluctant to charge her than Vance. Professor Beety concludes, “Leigh and Tami were reduced to tropes about violent and vicious predatory lesbians and Kim was reduced to a victim and her fragmented body parts” (Reference Beety2022: 137–138).

The Mississippi Supreme Court unanimously denied an appeal in 2003 while warning that in the future prosecutors should be cautious that Michael West not testifies outside his area of expertise (State v. Stubbs 846 So2d, 656 (2003)). The case reflects the continued resistance of courts to exclude unreliable forensic evidence, but it should not be reduced to such an immediate cause of the wrongful conviction (Oliva and Beety, Reference Oliva and Beety2019).

Valena Beety represented Stubbs and Vance in post-conviction relief on behalf of the Mississippi Innocence Project. They were successful based on undisclosed evidence that contradicted video analysis done by West even though he was a dentist and not trained in video analysis. They also argued that the accused’s sexual orientation was made into the motive of the crime. West and Galvez had demonstrated bias and they submitted an expert affidavit that there was “absolutely no empirical evidence” that lesbians are more inclined to bite during sexual activity and that such beliefs were based on “mere prejudice.” They called an expert witness who opined that there was evidence that jurors were biased against gay or lesbian accused (Beety, Reference Beety2022: 240–241). Habeas corpus was granted and the conviction overturned, but only on the basis of the disclosure violations and not on the basis of anti-lesbian bias or even the unreliability of the bite mark analysis (Reference Beety2022: 259). The prosecutor refiled, and after almost eleven years in prison, Stubbs and Vance took an Alford plea in which they pled guilty to the drug charges while not admitting their guilt. The case, however, is classified as a no-crime case by the American Registry (Reference Beety2022: 262–263).

Professor Beety (Reference Beety2022: 96) argues that “queer people” can only be seen as hate crime victims or sexual offenders in court, “[o]therwise, our identity is erased because queerness still equates to criminal deviance.” Beety (Reference Beety2022: 82), like Parkes and Cunliffe (Reference Parkes and Cunliffe2015), has warned that proven innocence is too difficult a standard to establish and is one of the rare American commentators associated with innocence organizations who has defended a standard based on a “miscarriage of justice” or “manifest injustice, rather than actual innocence” (Beety, Reference Beety2022). Greater attention to the role of prejudice in wrongful convictions may also lead to the use of broader concepts of miscarriages of justice that are more sensitive to the role that rights violations including discrimination play in many wrongful convictions.

8.4.1 Florence Maybrick

Florence Maybrick was a twenty-four-year-old woman from the United States who lived in Liverpool, England, with her husband, James Maybrick, a wealthy cotton merchant. They had a three-year-old son and a seven-year-old daughter. James Maybrick had many concerns about his health and often took arsenic as a remedy, as was common at that time. After his death in 1889, his wife Florence was soon charged with murdering him through arsenic poisoning. The prosecutor stressed that Florence Maybrick was having an affair with another man, Alfred Brierley, and that this provided the motive for murder. The case created a public scandal. Florence Maybrick would later claim that even before her trial “the public condemns me unheard” (Maybrick, Reference Maybrick1905: 49) and that it was “a mockery of justice” to hold the trial before a Liverpool jury. She had wanted the case moved to London, but her lawyers did not follow her wishes (Reference Maybrick1905: 51). The jury that convicted her of murder was, as was the norm at the time, all male. One letter writer at the time had argued that she would not have been convicted if she had been tried by a jury of six women and six men (Gilbert and Price, Reference Gilbert, Price, Ayres and Maier2023: 316). Mixed juries of citizens and non-citizens had a long history in English, but only a few countries in South America have recently experimented with mixed juries on the basis of gender (Roach, Reference Roach2019b: 104–110)

The prosecution’s case was based on the theory that Maybrick had poisoned her husband with arsenic that she had extracted from fly strips. Florence Maybrick maintained her innocence and explained that she had extracted the arsenic to use as a cosmetic, another practice that was common at the time. Because of her wealth, Florence Maybrick was defended by Charles Russell QC, an eminent lawyer who would later be appointed Lord Chief Justice. Russell called expert witnesses who testified that James Maybrick had not died from arsenic poisoning, but the jury did not give her “the benefit of the doubt suggested by the disagreement of expert witnesses” (Maybrick, Reference Maybrick1905: 364).

Russell knew that the jury was liable to convict Maybrick on the basis of her adultery. In his opening address, he urged them not to be influenced by “that dark cloud … upon her character as a woman and wife” (Irving, Reference Irving1912: 184–185). He returned to this theme in his closing address by telling the jury: “The lady fell. She forgot her self-respect. She forgot her duty to her husband” (Reference Irving1912: 233). Russell accurately noted that adultery in men was often tolerated, but made a woman “a leper” (Reference Irving1912: 234). Without noting that her husband gave her a black eye shortly after Florence Maybrick had returned from spending time in London with her lover, Russell praised Florence Maybrick for not leaving her marital home after being threatened by her husband by arguing that a “woman’s nature so yielding is not wholly bad” (Reference Irving1912: 233). Even her own lawyers presented Maybrick’s defence on a gendered basis.

The prosecutor’s closing address cited at length letters that Florence Maybrick wrote to her lover telling him that their affair had not been discovered and urging him to remain in the country. The prosecutor argued that a passage in the letter that stated her husband “is sick upon death” was incriminating. He urged the jury to disregard “all those feelings of sympathy of which the age and sex and the position of this unhappy woman” would engender because he had “proved a murder founded upon profligacy and adultery, and carried out with a hypocrisy and cunning which have rarely been equalled in the annals of crime” (Reference Irving1912: 273).

The trial judge James Stephen reviewed the evidence with an emphasis on the conflicting medical evidence about whether arsenic was the cause of James Maybrick’s death. He also mentioned that the black eye Florence had received from her husband was “an important fact” (Reference Irving1912: 281). The rest of the two-day charge to the jury, however, was favourable to the prosecution and included many references to Florence Maybrick’s “degrading vices” (Reference Irving1912: 352). He told the jury that Maybrick’s statement that her husband was “sick upon death” was “very much like saying ‘My husband is going to die…’” (Reference Irving1912: 331). Stereotypes and a desire to punish Florence Maybrick for her affair made ambiguous comments seem like unambiguous evidence of her guilt. The jury convicted Florence Maybrick of murdering her husband after only thirty-eight minutes of deliberation (Maybrick, Reference Maybrick1905: 54). The quickness of the decision was another sign that stereotypes may have been in play.

Despite the trial judge’s charge and the jury’s verdict, there was much public support for Florence Maybrick. Within a few weeks, the Home Secretary commuted her death sentence to life imprisonment on the basis that there was a reasonable doubt that arsenic poisoning had killed James Maybrick but that she was nevertheless guilty of attempted murder. This was done even though the trial judge had stressed that it was essential for a murder conviction that they find that James Maybrick died of arsenic poisoning. The Home Secretary’s compromise stressed Maybrick’s motive for murder. It convicted her of a crime of which she had never been charged: a point that Maybrick made herself in her autobiography (Reference Maybrick1905: 250). She also argued that the Home Secretary’s decision “completely exonerates me from the charge of murder” (Reference Maybrick1905: 229). The shifting theory of liability demonstrates how stubborn stereotypes about guilt persist in wrongful convictions for imagined crimes that did not happen.

Maybrick’s autobiography My Fifteen Lost Years was published in 1905, the year after she was released from prison in part because of American diplomatic pressure. It remains an impressive work that makes a strong case for a Court of Appeal that would finally be created in 1907. She argued it was “the climax of injustice that men and women, if sued for money, even a few shillings, can appeal” but that “a prisoner’s fate may depend on the incompetent instruction of one man, and there is no appeal” (Reference Maybrick1905: 149). She also warned that the jury was “not competent to weigh technical evidence” (Reference Maybrick1905: 236) about her husband’s cause of death and criticized the bar and bench for its “self-satisfied…ignorance on matters of medical and physical science” (Reference Maybrick1905: 322). She did not hesitate to criticize Justice Stephen’s charge to the jury as “biased” (Reference Maybrick1905: 239).

Finally, she argued for the necessity of prison reform. She had endured both solitary confinement and prison rules that required absolute silence. She wrote about how this produced “insanity and nervous breakdown” (Reference Maybrick1905: 81) among prisoners before concluding: “the innocent man who is hanged is better off than he who is called upon to endure lifelong imprisonment” (Reference Maybrick1905: 162–163). She also wrote how she had lost contact with her children, who had “been taught that their mother was guilty” (Reference Maybrick1905: 223). It will be suggested in Section 8.9 of this chapter that contemporary innocence movements should be inspired by Florence Maybrick’s example to take a greater interest in prison reform.

8.4.2 Lindy Chamberlain

Australia’s two highest-profile miscarriages of justice involved two women wrongfully convicted of murdering their children. The traditional focus on the immediate causes would classify both cases as being based on unreliable expert evidence. A deeper examination, however, suggests that while the expert evidence played a role, so too did sexist assumptions about the accused’s qualities as mothers that convinced juries to conclude on the basis of uncertain evidence that there was no reasonable doubt that both women had murdered their children despite their protests of innocence.

In 1982, Lindy Chamberlain was convicted of murdering her newborn daughter Azaria with her husband Michael Chamberlain being convicted of being an accessory after the fact to the murder. The family was camping at Uluru in 1980 when Lindy briefly left the adults to check on her children and discovered two-month-old Azaria had been taken from the tent by a wild dog or dingo. Azaria was not discovered in the search but her bloodstained jumpsuit was. The first inquest held in Alice Springs determined that a dingo had taken Azaria. When reaching this conclusion, the coroner observed that “Pastor and Mrs. Chamberlain…you have been subjected to months of innuendoes, suspicion and probably the most malicious gossip ever witnessed in this country” (Chamberlain, Reference Chamberlain1990: 159). The police remained suspicious of Lindy Chamberlain in part because of reports from a doctor that she had not acted as “a normal mother” with respect to the care and dressing of Azaria.

A second inquest committed Lindy Chamberlain for trial for murder on the basis of what turned out to be faulty expert evidence indicating fetal blood in the Chamberlain’s car and what was believed to be a small adult’s handprint on Azaria’s bloody jumpsuit. The coroner pointed to the offence of infanticide as evidence that it was not uncommon for mothers to kill their newborn. In another indication of the difficulty of disproving imagined crimes, he reasoned that there were no blood stains on the Chamberlains’ clothes because they had been washed and dry cleaned. Suspicions were also aroused when Lindy Chamberlain, on the advice of counsel, refused to allow her hand to be compared to the bloody mark found on Azaria’s recovered jumpsuit (Staines, Arrow and Biber, Reference Staines, Arrow and Biber2009: 117).

Much attention was paid to Lindy Chamberlain’s perceived emotional response to her daughter’s death, the way she dressed and the fact that she was pregnant during her 1982 trial. She later explained: “If you smiled at a joke, you were uncaring, if you cried you were acting, and either way you copped it. This was the witch that everyone knew” (British Broadcasting Company, 2023a). Dianne Johnson (Reference Johnson1984) argued that there was a “public witch-hunt” of the Chamberlains that forced them to re-locate from their home. Lindy’s husband was described in one newspaper report as “down-trodden” and “hen-pecked,” and the Chamberlains were part of an often misunderstood religious minority, the Seventh Day Adventists. Lindy Chamberlain was also blamed by some for leaving her newborn alone in the tent with another young child (Johnson, Reference Johnson1984). In an article called “Martyr to her Sex,” Kerryn Goldsworthy (Reference Goldsworthy, Staines, Arrow and Biber2009) argued that even a popular book Evil Angels arguing for Chamberlain’s innocence focused on portraying her as a selfless mother. Although “male observers from the legal profession, including her own defence counsel, have said that Lindy Chamberlain talked her way into jail” (Reference Goldsworthy, Staines, Arrow and Biber2009: 38), Goldsworthy argued that Chamberlain’s pregnancy during her trial may have played an even more important role. In other words, both her critics and some of her defenders judged Lindy Chamberlain on whether they thought she was a good mother.

At the 1982 trial in Darwin, the jury of nine men and three women heard testimony that Lindy Chamberlain was acting normally and had a “new mother glow” before the event; witnesses had seen no attempts by the Chamberlains to dispose of Azaria’s body and that dingos had been seen near the campgrounds. The prosecution accused Lindy Chamberlain that her testimony that a dingo took her baby was “mere fantasy” and accused both her and husband of not actively searching for the baby because they had killed her. In her cross-examination, Lindy Chamberlain expressed scepticism about a pathologist based in England who testified for the Crown by stating: “I didn’t know there were dingo experts in London” (Reference Goldsworthy, Staines, Arrow and Biber2009: 53). She also remained baffled about how the jury could accept the Crown’s main expert witness who testified that she could identify blood found in the Chamberlain’s case as fetal blood when her own expert had disputed that such identification could be made based on the preliminary tests used by the Crown witness. Much like Florence Maybrick a century earlier, she believed that the jury did not understand the expert evidence (Chamberlain, Reference Chamberlain1990: 269, 277). Even if the jury did understand, the expert evidence was disputed and allowed the jury freedom to select among competing narratives (Grunewald, Reference Grunewald2023). The judge warned the jury not to be influenced by anti-religious bias, but made no mention of possible assumptions about women and motherhood. After a six-week trial, the jury convicted after six hours of deliberation (Staines, Arrow and Biber, Reference Staines, Arrow and Biber2009: 130).

After her conviction, Lindy Chamberlain was sentenced to life imprisonment at hard labour. She was granted bail pending appeal with the majority of the Court stressing that the decision was made for the good of her newborn child, her fourth child. One judge dissented and argued “it strikes me as somewhat odd and incongruous that a person convicted of murdering her baby daughter should be able to obtain bail on the ground that she wishes to nurture her next born child, also a baby daughter” (R. v. Chamberlain [1982] FCA 235 at para 13). Again, much of the case was seen through the lens of Lindy Chamberlain’s role as a mother.

Lindy Chamberlain’s appeal was denied with a 3:2 decision in the Australian High Court. The majority noted many difficulties with the prosecution’s case, including the short time that Lindy Chamberlain was away with the child, the difficulties of disposing of the body and reliance on a preliminary test to detect fetal blood in the car. Nevertheless, it deferred to the jury’s decision to convict. The majority also noted the likely effects of Lindy Chamberlain’s demeanour in cross-examination and the behaviour of both Chamberlains after the event on the jury. This underlines the limits of focusing on the immediate cause of expert evidence. The majority deferred to the jury’s judgments without exploring whether they were influenced by stereotypes. The focus on immediate causes can avoid deeper and more difficult questions about how humans make decisions.

The dissenters stressed that the evidence of the fetal blood found in the car was suspect and may have been used by the jury to convict. They also concluded that the prosecutor’s theory of Lindy Chamberlain changing clothes, killing Azaria and then raising a cry about a dingo was “in its own unspectacular way, almost as unlikely as the dingo story,” especially given that “the evidence established no motive for the alleged murder; to the contrary it was to the effect that Mrs. Chamberlain was the loving mother of a normal child” (R. v. Chamberlain 1984 HCA 7 at para 30).

Despite the rejection of the Chamberlains appeals, calls for an inquiry mounted and the Northern Territory appointed one in 1986. Lindy Chamberlain was released from prison in that year. Like Florence Maybrick, she did not recall her time in prison fondly noting the bad food, bad hygiene and untreated mental health problems and suicide attempts of fellow prisoners (Chamberlain, Reference Chamberlain1990).

The inquiry concluded that there was a reasonable doubt about the Chamberlains’ guilt. It found that the preliminary test for fetal blood was not reliable, could result in false positives and could not distinguish between fetal and non-fetal blood. It also found that the English pathologist who testified for the Crown had, as Lindy Chamberlain had suggested, no experience with dingos or determining the cause of death in the absence of a corpse. Given all this, the commissioner, who was also a judge, concluded the case should not have gone to the jury. He also called for a reform to improve the delivery of forensic science in Australia (Sangha, Roach and Moles, Reference Sangha, Roach and Moles2010: 267–276). The immediate causes such as faulty forensics are easier to reform than juries being influenced by stereotypes.

Although the bulk of the inquiry’s 300-page report was devoted to forensic evidence, the judge also made some findings that were relevant to why the jury may have convicted the Chamberlains on the expert evidence, which was disputed at trial. He found that the prosecutor had challenged Lindy Chamberlain’s credibility much more forcibly than that of her husband (Morling, Reference Morling1987: 288). He also cited the dissenting judges in the Australian High Court that her testimony that she saw a dingo exit the family tent but not Azaria might have been affected by understandable trauma (Reference Morling1987: 293). The inquiry also rehabilitated Lindy Chamberlain as a mother finding her to be “a normal, loving and responsible parent” who “welcomed Azaria’s birth and was delighted to have a daughter.” She grieved and her decision not to join a search “can hardly be regarded as incriminating” (Reference Morling1987: 295, 300). The inquiry dismissed the rumours at the time of the trial that Azaria’s name meant “sacrifice in the wilderness” and that Lindy Chamberlain had not properly fed her (Reference Morling1987: 309).

The next year, special legislation was enacted to allow an additional appeal and the Northern Territory Court of Appeal quashed both of the Chamberlain’s convictions. The Court of Appeal adopted the inquiry’s critique of the scientific evidence. It also concluded:

This completed what appeared to be a necessary rehabilitation of Lindy Chamberlain as a mother even though the legal issue was murder, not motherhood.

As with the Maybrick case, the faulty expert evidence used to convict Lindy Chamberlain only tells a part of the story. The case confirms how narratives (Grunewald, Reference Grunewald2023), in this case based on Lindy Chamberlain’s perceived faults as a mother, can overpower contested expert evidence and implausible scenarios of wrongdoing.

From a legal process perspective, the case like Maybrick’s reveals the executive as taking the lead in correcting miscarriages of justice. The executive inquiry applied a standard based on reasonable doubt about guilt and not proven innocence. Lindy Chamberlain’s book (Chamberlain, Reference Chamberlain1990), like Florence Maybrick’s (Reference Maybrick1905), also points towards a broader understanding of miscarriages of justice based on their lived experience as imprisoned mothers. Both books support the idea that innocence organizations should be concerned about prison conditions.

8.4.3 Kathleen Folbigg

In 2003, Kathleen Folbigg was convicted of homicide (three murders, one manslaughter) of her young children at different times between 1989 and 1999. The deaths of the children had originally been attributed to sudden infant death syndrome in two cases, epilepsy in a third and an underdetermined cause in a fourth. As Emma Cunliffe (Reference Cunliffe2011: 3) has argued, the prosecution’s case depended on the idea “that Folbigg was a demonstrably unfit mother.” The prime evidence of this was diary entries expressing frustrations and challenges in caring for her children, depressive thoughts and concerns that her husband was not helping with the care of her children (Hum and Hemmings, Reference Hum and Hemmings2023: 187). She did not testify at her trial presumably to avoid cross-examination on her diary entries. Her estranged husband Craig Folbigg testified for the prosecution including about episodes where Folbigg has become frustrated with her young children. He rebutted other evidence from his wife’s female friends that she was a good mother. Mr. Folbigg’s testimony accounted for a quarter of the trial transcript (Cunliffe, Reference Cunliffe2011: 11). Craig Folbigg, a bit like James Maybrick, was depicted as a wronged man because of the perceived failures of his wife.

Kathleen Folbigg tried without success to have the four charges tried separately. Some of the expert evidence at the trial relied on the alleged impossibility of multiple infants dying in the same family from natural or undetermined causes. This was done despite the recognition in England by the time of the Folbigg’s 2003 trial that Sally Clark had been wrongfully convicted based on such unsupported assumptions and the collapse of two Australian cases that also relied on multiple deaths in a family (Cunliffe, Reference Cunliffe2011: 5–10). The vague diagnosis of “asphyxia” (Reference Cunliffe2011: 60–64) was uttered 208 times during Folbigg’s seven-week trial with even more references to the misleading phrase “consistent with” often in relation with the theory that the children had been smothered to death. Both terms may be interpreted by jurors as highly incriminating, whereas to an expert they may mean simply a halt in breathing and that something may or may not be consistent with a bad act such as smothering (Burridge and Cordner, Reference Burridge and Cordner2023; Cunliffe et al., Reference Cunliffe2024).

Kathleen Folbigg was convicted by a jury and sentenced to forty years even while the judge recognized that she would have to remain in solitary confinement for her own protection. The sentence was later reduced on appeal to thirty years, with no chance of parole for twenty-five years. The sentencing judge quoted extensively from the diaries. He concluded that Folbigg “will always be a danger if given the responsibility of caring for a child. That must never happen” (R. v. Folbigg 2003 NSWSC 895 at paras 97–98). The judge was explicit about Kathleen Folbigg not being a fit mother, while the jury’s guilty verdict was only an implicit verdict.

The highest court in Australia rejected Folbigg’s appeal in 2005 in a twenty-one-minute hearing without calling on the prosecutor. Justice Michael Kirby stated during this hearing that the diary entries were “chilling” and “it is the combination of the coincidences … and the diary entries which seem to me to be very powerful in combination” (Folbigg v. The Queen [2005] HCATrans 657 (2 September 2005)). These are significant statements, especially given that Justice Kirby had assisted Lindy Chamberlain’s legal team and is one of Australia’s leading commentators about the dangers of wrongful convictions and the need for a criminal cases review commission to better remedy the wrongful convictions. Associate Chief Justice McHugh similarly concluded that “apart from the coincidence evidence, there was other strong evidence, especially the diary entries made by the applicant, that was available to support the inferences that could be drawn from the tendency or coincidence evidence” (Folbigg v. The Queen [2005] HCATrans 657 (2 September 2005)).

A subsequent attempt to re-open the case because jurors had learned that Kathleen Folbigg’s father had killed her mother was rejected on the basis that the case for the prosecution was “overwhelming” (R. v. Folbigg [2007] NSWCA 371 para 64). The court cited the diary entries including one that stated: “I know I was short tempered & cruel sometimes to her & she left.With a bit of help. I don’t want that to ever happen again” (R. v. Folbigg [2007] NSWCA 371: para 39) as virtual admissions of guilt. Stereotypes about gendered ideals can help make ambiguous evidence seem like certain evidence of guilt.

Folbigg petitioned for an inquiry and one headed by retired judge Reginald Blanch, who has been the state’s first Director of Public Prosecutions (Cunliffe et al., Reference Cunliffe2024: 4), was appointed in 2018. After an adversarial inquiry where Kathleen Folbigg was subject to hostile cross-examination, the Blanch inquiry concluded in 2019 that there was no reasonable doubt about Folbigg’s convictions. This conclusion was reached in the face of evidence that there were no signs of smothering, and late-breaking research suggesting a possible genetic cause for the death of two of the children. The inquiry relied heavily on the diaries giving them “their ordinary English meaning” and concluding that they were “virtual admissions of guilt” (Blanch, Reference Blanch2019: paras 475, 494) This echoed back to Justice Stephen interpreting Maybrick’s reference to her husband being “sick upon death” as “very much like saying ‘My husband is going to die…’” (Maybrick, Reference Maybrick1905: 331). Even when considering evidence that there may have been genetic causes for the death of at least two of the children, Justice Blanch repeatedly came back to the diaries as evidence of guilt (Hum and Henning, Reference Hum and Hemmings2023: 189).

After mounting evidence of possible genetic explanations for the death of two of her children including a petition signed by 150 leading scientists including three Australian Nobel Laureates, a second public inquiry was appointed. A new book on the Folbigg case was also published that pointed out that the diary entries that were the focus of attention constituted only 3,000 words out of a total 400,000 words (Kerr, Reference Kerr2022). In the second inquiry, Folbigg was not cross-examined on her diaries. More context was provided by extensive expert psychological and psychiatric evidence about the diaries. None of the experts concluded that the diary entries were reliable admissions of guilt as many judges before them had. That said, the use of expert evidence raised concerns that women’s lived experiences will only be valued to the extent that they are confirmed by expert witnesses, a concern that feminist scholars have raised in the context of women’s claim of self-defence (Shaffer, Reference Shaffer1997).

Commission counsel in the second inquiry warned: “that that caution should be taken in respect of the idealisation of motherhood and that mother are universally patient, nurturing and kind” (Bathurst, Reference Bathurst2022 para 1883). Mr. Folbigg continued to support his former wife’s conviction during the second inquiry, but he played less of a role than in the first inquiry. He was “critical that only two days” were devoted to the diaries during the second inquiry (Reference Bathurst2022: para 1968). Unlike in the first inquiry, the Director of Public Prosecutions, as well as commission counsel, argued that there was a reasonable doubt about guilt (Reference Bathurst2022): para 1849, 1852). In the end, Justice Bathhurst, the judge conducting the second inquiry, concluded that the entries were only “the words of a grieving, depressed and traumatized mother” and that Folbigg was a “loving and caring mother who occasionally became angry and frustrated with her children” (Reference Bathurst2022: para 1884). Kathleen Folbigg was rehabilitated as a mother, just as Lindy Chamberlain had been rehabilitated in an inquiry thirty years earlier that had a reasonable doubt about her guilt.

Following this second inquiry, Kathleen Folbigg was pardoned by the executive, released from prison, and, after the complete inquiry report was released in late 2023, acquitted by the courts. The court noted that while “certain” diary entries “viewed in isolation might have a powerful effect on the jury” that in light of the new psychological and psychiatric evidence, they “were not reliable admissions of guilt” (R. v. Folbigg [2023] NSWCCA 325 at para 27). At the same time, the court saved a bit of face for the justice system by concluding that the guilty verdicts at trial “were reasonably open on the evidence then available” (R. v. Folbigg [2023] NSWCCA 325 at para 28). The new scientific evidence about possible genetic factors in the deaths played a role in Folbigg’s acquittal, but concerns had been raised about the coincidence evidence and the diaries even at the 2003 trial (Cunliffe, Reference Cunliffe2011; Cunliffe et al., Reference Cunliffe2024). As in the Lindy Chamberlain case, there is a danger that the emphasis on the immediate cause of faulty forensic evidence will disguise the role of gendered stereotypes in both wrongful convictions. The new scientific evidence in both cases can be seen as a tactical device that allowed the legal system to re-evaluate and have sober second thoughts about the original evidence.

Kathleen Folbigg told reporters: “For almost a quarter of century, I faced disbelief and hostility … The system preferred to blame me rather than accept that sometimes children can and do die suddenly, unexpectedly and heartbreakingly.” She added that the case was all about “cherry picked” words from her “private diaries” (British Broadcasting Company, 2023b). A guilty verdict tainted by sexist assumptions about proper mothering was finally overturned twenty years after it was entered, and with proper attention to the foundational importance of giving the accused the benefit of a reasonable doubt. It took two public inquiries and the willingness of the elected executive to enter a pardon to achieve this result. As in the Lindy Chamberlain case, the judiciary was more reluctant than the executive to recognize that a woman had been wrongfully convicted.

8.7.1 The United States

Cassandra Black Elk was charged with felony child neglect after her three-week-old daughter died in North Dakota in 2022. The police aggressively questioned her for three hours on the premise that either her or her partner had deliberately harmed the baby. They told her that there was no such thing as sudden infant death syndrome. Black Elk admitted to drinking after a fight with her partner. She could not make bail and pled guilty after eighty-four days of pre-trial detention and before her public defender had obtained the autopsy report about the child’s death. She was sentenced to five years in prison. The autopsy report concluded that there was no evidence of foul play or neglect and that the cause of her child’s sudden death was underdetermined. In early 2023, Black Elk was allowed to withdraw her guilty plea based on the new evidence of the autopsy report and a conclusion that she had received ineffective assistance of counsel. The state appealed, but the Supreme Court of North Dakota affirmed that Black Elk had “met her burden to show a manifest injustice” and the new evidence “would likely result in an acquittal at trial” (State v. Black Elk 994 N.W.2d 394, 2023). Despite this, the prosecution filed new charges based on Black Elk’s admission that she had been drinking, that were eventually dropped (Cassandra Black Elk, National Registry). Stereotypes about Indigenous people pervaded the whole recent and sorry affair.

8.7.2 Canada

Indigenous women constitute over half of the female prison population in Canada but are under-represented among remedied wrongful convictions. The Canadian registry only records three remedied wrongful convictions of Indigenous women. None of the three were obtained by way of a new appeal ordered by the elected federal Minister of Justice. As discussed in Chapter 5.6, one of the hopes for Canada’s new Miscarriage of Justice Review Commission is that, like the New Zealand commission, it will make special efforts to conduct outreach to Indigenous populations most at risk of miscarriages of justice. The task of the new Canadian commission will be complicated by the diversity of Canada’s Indigenous population, whereas the New Zealand commission has focused on the Maori population.

Two Indigenous women, Tammy Marquardt and Tammy Bouvette, were wrongfully convicted of killing young children in their care based on faulty forensic pathology. The wrongful conviction of Indigenous people in baby deaths is also noteworthy given Canada’s historical policy of taking Indigenous children away from their parents to live in residential boarding schools in large part on assumptions that Indigenous people were unfit parents.

Tammy Marquardt was a twenty-five-year-old single mother living in poverty in a Toronto suburb. After her son’s death, she was arrested and detained for three months on a psychiatric remand. Charles Smith’s autopsy notes reflected that Marquardt’s husband was not her son’s father. Before her 1993 murder trial, she unsuccessfully sought to question prospective jurors about bias against those charged with child murders, but not against Indigenous people, despite Canadian courts having recently allowed questions about possible racial bias. As was the case with sexual orientation (Beety, Reference Beety2022), sometimes passing for a member of a dominant group, may seem safer. Marquardt only connected with her Indigenous identity while in prison and after a suicide attempt when she was not allowed to continue to write or send gifts to her two surviving sons (Chipman, Reference Chipman2017: 214–215).

During the trial, Marquardt was cross-examined about statements she had made while drunk at her son’s grave that she had killed her son because she had been unable to remember and perform CPR on him (Reference Chipman2017: 74–75). Like Lindy Chamberlain, she was pregnant at the time of her trial. She was convicted and recalled that the truth “didn’t set me free; it gave me a life sentence.” She gave birth in prison in shackles and handcuffs. Unlike Chamberlain, Marquardt had her newborn son, Eric, and another surviving son, Keith, made wards of the Crown and permanently adopted. Marquardt served thirteen years’ imprisonment, most in protective custody before her 1995 conviction was finally overturned on the basis of new pathology evidence that challenged Charles Smith’s opinions and focused on epilepsy as a possible cause of death.

Tammy Bouvette pled guilty to manslaughter of a young child in her care and received a one-year sentence. She had been subject to domestic abuse and left home at fifteen years of age and had four children at the time she was charged with murder. Like Marquardt, Bouvette did not initially identify as Indigenous. Like Marquardt, Bouvette lost access to her children after her conviction. She was unhoused at the time that her conviction was overturned ten years after her plea. She was initially not given the benefit of an acquittal on the basis that she could have been guilty given her admissions in a gruelling interrogation that she may have momentarily left the deceased child unattended in a bathtub (Roach, Reference Roach2025a: 306–309). She was subsequently acquitted but only because of the special prosecutor’s concession (R. v. Bouvette 2025 SCC 18).

The third remedied wrongful conviction involved a Cree woman, Connie Oakes, who was convicted of murder by an all-white jury in a rural Prairie courtroom that burst into applause when the verdict was read. She was convicted on the basis of testimony by a co-accused who had a severe mental impairment and whose guilty plea has also been overturned. There was no physical evidence connecting either women with the murder. Connie Oakes did not testify because that could have resulted in the entry of her long criminal record into evidence. She has stated that a jury with even one Indigenous juror would not have convicted her. The murder of a white man remains unsolved because the local police still believe they had caught the perpetrators. The province of Alberta also resisted calls that they call a public inquiry to examine the circumstances of these connected wrongful convictions (Roach, Reference Roach2023a: 164–169). Connie Oakes’s wrongful conviction also raises the need for a broader understanding of miscarriages of justice, which extends to discrimination in jury selection, police reform and the need to re-examine laws that allow an accused’s prior criminal convictions to be introduced in a criminal trial on the purported grounds that they are necessary to judge the accused’s credibility.

Canadian Senator Kim Pate has proposed that twelve Indigenous women make a group application to Canada’s new Miscarriage of Justice Review Commission (Pate, Reference Pate2022). Two of the women, both residential school survivors, have obtained some preliminary relief after the elected executive decided to investigate their claims of miscarriage of justice in their 1993 murder convictions by an all-white jury. They were granted bail pending the completion of the investigation but one was re-imprisoned for breaching conditions (Roach, Reference Roach2025a: 329–333). The case also points towards the limits of the proven innocence approach because both women had been given mandatory life sentences under broad offences that apply to those who are parties or accessories to murder. Some of the other twelve cases may not be within the jurisdiction of the new Canadian commission because, as discussed in Chapter 5.6, the Canadian government rejected recommendations that its commission, like the commissions in England, Scotland and New Zealand, have jurisdiction to consider new facts as they affect continuing sentences. Although the new Canadian law rejects the American proven innocence approach in its focus on miscarriages of justice, it follows the example of the North Carolina Innocence Inquiry Commission discussed in Chapter 6.3 in only allowing the commission to investigate convictions and not sentences. Indigenous people will be unable to apply to the commission on the basis that their background was not properly considered by sentencing courts or parole boards.

In both Australia and Canada, concerns have been raised that women charged with killing abusive partners often plead guilty to manslaughter (Sheehy, Reference Sheehy2014; Sheehy, Stubbs and Tolmie, Reference Sheehy, Stubbs and Tolmie2014). For example, Jamie Gladue, a nineteen-year-old Indigenous woman, was planning to argue self-defence with regards to the killing of her partner who have previously been convicted of assaulting her (Roach, Reference Roach2023a; Sheehy, Reference Sheehy2014). After a jury was selected, however, she pled guilty to manslaughter and received a 3.5-year sentence. It is unlikely that the jury would have included Indigenous people at the time though Canada has subsequently abolished peremptory challenges after an all-white jury acquitted a white farmer of killing an Indigenous person who trespassed on his land (Roach, Reference Roach2019b). The Supreme Court used her appeal of her sentence to articulate a new approach to sentencing Indigenous offenders. At the same time, the case is a reminder of the pressure placed on women, especially Indigenous women, to plead guilty when charged with murder even if they have a valid defence or no crime has been committed. Self-defence cases reveal the limits of the American proven factual innocence approach when applied to women and especially Indigenous women (Beety, Reference Beety2022; Parkes and Cunliffe, Reference Parkes and Cunliffe2015).

8.7.3 Australia

In Australia, at least two Indigenous women charged with killing abusive male partners have gone to trial and been convicted, only to have their wrongful convictions subsequently corrected. Robyn Kina, an Indigenous woman who left school at twelve years of age and had a criminal record, was convicted in 1988 of murdering her non-Indigenous abusive partner after a trial that only lasted three hours. Kina did not testify at trial because she thought that was her lawyer’s wishes (Eades, Reference Eades1996). The jury convicted after deliberating for only fifty minutes. Such quick decisions may be particularly susceptible to the use of prejudicial stereotypes (Cunliffe, Reference Cunliffe2014). Although Kina’s trial lawyers, who were subsequently appointed as judges, knew that Kina had been abused by the deceased from diaries she have given them, they did not argue this as a defence explaining that Kina did not tell them of the triggering event and told them she did not want to testify (Berry, Reference Berry2014: 65). Diana Eades (Reference Eades1996) has argued that Kina would have been more willing to share the abuse she suffered if the lawyers had taken more time to establish a relationship with Kina and engaged in culturally sensitive interviews.

The Queensland Court of Appeal denied Kina’s appeal in 1988 despite recognizing that the deceased had injured Robyn Kina in the past. The Queensland Attorney General authorized a second appeal in 1993 after two television programs had raised concerns that Kina may have acted in self-defence. The conservative leader of the opposition in Queensland branded this appeal a form of “reverse racism” (Berry, Reference Berry2014: 35–36). At the second appeal, new evidence was presented about the deceased’s physical and sexual abuse of Kina, the deceased’s threat to rape Kina’s fourteen-year-old niece, Kina’s background and the linguistic difficulties she had communicating with her trial counsel. With one judge raising concerns that she defaulted those claims by not raising them at trial, the Court of Appeal quashed her conviction (Eades, Reference Eades1996). It did not decide whether Kina’s lawyer had been ineffective and ordered a new trial, but the prosecution did not proceed given that Kina had served five years’ imprisonment (Roach, Reference Roach2015a: 217–218). Robyn Kina died in 2009 at fifty years of age after assisting prisoners and legal professionals by talking about her case (Berry, Reference Berry2014: 164).

Jeanie Angel, an Indigenous woman, was convicted by an all-white jury in 1989 of murdering another Indigenous woman. She had confessed but retracted her confession. The prosecutor consented to her appeal in 1991, and she was acquitted. Angel received no compensation even though her four-year-old son died while she was in custody (Roach, Reference Roach2015a: 241–243).

8.7.4 New Zealand

Despite Maori women constituting over 60 per cent of New Zealand’s female prison population, there are very few remedied wrongful convictions involving them. The missing cases may be explained in part by a lack of access to culturally appropriate justice services (Thorp, Reference Thorp2005).

Three Polynesian teenagers wrongfully convicted of aggravated robbery of another teenage girl in 1999 were acquitted in 2001 when a witness admitted that she lied. The Court of Appeal criticized the police investigation and noted that one of the families had hired a private investigator at “considerable expense.” It added: “We have here three young persons let down by the system” (The Queen v. Akatere [2001] NZCA 221 at para 6). Many other Indigenous and racialized women would not have the same resources to address the failings of police investigations.

8.7.5 Summary

Remedied wrongful convictions of Indigenous women are most likely an even smaller tip of the iceberg than is the case with many other wrongful convictions. Indigenous women may face strong pressures to plead guilty, especially when they are detained before trial and face long sentences if convicted. Indigenous women who do not accept plea bargains may, like Tammy Marquardt, face long sentences after being convicted at trial. They may be unrepresented or under-represented by defence counsel who may not be culturally literate or trauma informed. As in the case of Robyn Kina in Australia or Connie Oakes in Canada, defence counsel may be reluctant to allow Indigenous women to testify. It will be important for the New Zealand and Canadian Criminal Cases Review Commissions to conduct outreach in a culturally and trauma-informed manner that is responsive to the circumstances that many Indigenous women face.

The wrongful conviction of Indigenous women, like those of all women (Parkes and Cunliffe, Reference Parkes and Cunliffe2015), needs to be approached through broader concerns about miscarriages of justice, including pre-trial detention, inadequate defence lawyers and fears of child welfare apprehensions of children and long sentences, and not on the basis of restrictive proven innocence requirements.

8.8.1 Brian Banks

Brian Banks was a Black sixteen-year-old charged with rape and kidnapping in relation to an encounter with a fifteen-year-old girl at his high school. The complainant was criticized by her teacher for being late coming back to class. She then passed a note to a classmate saying that Banks had raped her, something she later confirmed to her sister who then reported the allegation to school officials. Banks was arrested that night. He was tried as an adult and faced a maximum sentence of forty-one years in prison. At the urging of his lawyer, he pled no contest and was sentenced to six years’ imprisonment. He recalled that his defence lawyer told him he would likely have an all-white jury if he had a 2003 trial in Los Angleles and that the jury “will take one look at you and they will automatically think that you’re guilty – because you’re a big, black teenager. They’re going to assume you’re guilty as soon as they see you” before adding “you’re facing forty-one years to life in prison” (Banks, Reference Banks2019: 109).

Banks’ initial application to the California Innocence Project was denied because although he was excluded from DNA found on the victim, it was not new evidence (Reference Banks2019: 198). After he was released on parole, Banks secretly recorded the complainant admitting that their sexual contact was consensual but that she was afraid to admit that publicly because her family had successfully sued the school for $1.5 million. In 2012, the prosecutor agreed to the dismissal of charges. The case is well known in part because Banks was a football star who subsequently played professionally. His story was told in a 2018 movie, albeit to low box office results. Banks recalled that even when released on parole, he had to wear a tracking device even though: “I wasn’t a rapist…Yet they forced me to live like I was. An outcast. A criminal. A monster” (Reference Banks2019: 230).

8.8.2 Jarrett Adams

Like Brian Banks, Jarrett Adams was a Black teenager when he was wrongfully convicted of sexually assaulting a white female student at the University of Wisconsin. He and a co-accused were convicted in 2000 by an all-white jury after his court-appointed legal aid lawyer called no witnesses and argued that the state had not met its burden of proof. Unlike Banks who pled no contest and received six years’ imprisonment, Adams received twenty-eight years’ imprisonment. A trial of another co-accused who had a privately retained lawyer ended in a hung jury after that man’s lawyer called the complainant’s roommate who testified that after the alleged sexual assault, she saw the complainant socializing with all three Black teenagers who lived in Chicago but who were visiting the university.

In 2006, the Seventh Circuit vacated Jarrett Adams’ conviction on the basis of ineffective assistance of counsel (Adams v. Bertrand, 453 F.3d. 428). One theme that will emerge in this section is the importance of competent defence counsel in sexual cases where consent is claimed as a defence. Racial bias associating Black men with sexual violence may also have played a role in the conviction by an all-white jury. Adams was imprisoned for eight years but is now a successful and well-known lawyer who specializes in wrongful conviction cases. He has written: “according to the National Sexual Violence Resource Centre, only 2–10 per cent of women falsely claim they have been raped. My accuser falls into that 2–10 per cent.” He elaborated: “the all-white jury knew us. They’d seen ‘us’ on the news. They’d read about ‘us’ in the newspapers. We were criminals, drug dealers, gangbangers, rapists, killers. We were them. Three nameless Black men from Chicago” (Adams, Reference Adams2021).

8.8.3 Acquaintance Sexual Assault Wrongful Convictions from the European and United Kingdom Registries

It is important not to overstate the difficulties of remedying acquaintance sexual assault wrongful convictions. Johnson’s research (Reference Johnson2020) suggests that both Innocence Projects and other mechanisms do remedy some of these wrongful convictions. Both the European and United Kingdom registries differ from the North American registries in containing many cases where sexual assault wrongful convictions were remedied through successful challenges to the credibility of the complainant.

As of the end of 2024, the European Registry of 133 exonerations contained twenty-seven remedied wrongful convictions in sexual assault cases. Seven of these exonerations featured mistaken eyewitness identification, the most common immediate cause in cases of stranger sexual assaults. But twenty of them featured false accusation or perjury as an immediate cause. Most of these cases involve child or teenage complaints, with fourteen of the cases involving new expert evidence that successfully challenged expert evidence that at trial vouched for the credibility of the young complainants.

Six of the twenty false accusation cases involved adult complainants. Ez Zittouni El Karrat was wrongfully convicted of sexual assault by a Spanish court in 2001, but in 2006, the complainant described as a “young Moroccan woman” recanted her testimony. In 2009, she was convicted and sentenced to three years for providing a false statement. El Karrat was only freed in 2010 after having served almost nine years in prison. This case is striking as it involved both a racialized accused and a racialized complainant with the latter also being convicted of an offence.

Gabrielle Colella was wrongfully convicted of sexually assaulting his wife by an Italian court in 2010 and was sentenced to six years’ imprisonment. He was acquitted in 2018 on the basis of new DNA evidence indicating that DNA taken from the complainant came from another man. The Italian Supreme Court dismissed the complainant’s appeal in 2020. Thilo H. in Germany was convicted of rape in 2004 despite maintaining his innocence. At a 2008 retrial, the complainant admitted she had fabricated her original testimony. In part because of privacy restrictions, limited information is available about such cases. This may be justified to encourage reporting of sexual assaults, but can also contribute to “policy blind spots” (Hamer, Reference Hamer2023).

As of the end of 2024, the UK registry contained seventy-eight remedied sexual assault wrongful convictions with 52 or 67 per cent involving concerns about witness testimony from the complainant. The average years of imprisonment in these cases were 3.6 years. About a quarter of all applications to the CCRC involve sexual offences, “a disproportionately high rate” compared to police statistics. Hoyle and Sato (Reference Hoyle and Sato2019: 142–143) report that the vast majority of these applications involved cases where the complainant and the accused knew each other and consent was an issue. As of the end of 2024, the CCRC’s case library contained sixty-eight convictions in sexual offences that were quashed and forty-two that were upheld.

One of the quashed convictions involved a complainant who while in immigration detention claimed that her husband had sexually assaulted her. The 2015 conviction of the husband, A.M. was overturned on a 2020 appeal when new evidence supported his alibi that he was in Pakistan at the time of the alleged sexual assault. The 2007 conviction of Nadeem Aslam was overturned as unsafe on the basis of new evidence from several witnesses who said that the complainant, the accused’s wife, had told them she lied at trial because Aslam had wanted to take their children to Dubai. The Court of Appeal noted that the police was aware of this possible motive but did not pursue it (R. v. Aslam [2014] EWCA 1292 at para 36). The sexual assault conviction of Warren Blackwell was overturned on a CCRC referral on the basis that the complainant, whom he had met at a party, subsequently made false claims of sexual assault. The CCRC obtained confidential medical and psychiatric evidence about the complainant that was considered by the Court of Appeal when it quashed Blackwell’s conviction (R. v. Blackwell 2006 EWCA Crim 2185 [27]).

Another case resulted in the 2014 acquittal of a Black former police officer Trevor Gray. His sexual assault conviction was overturned on the basis of new evidence from a witness who saw the complainant kissing Gray, which was found to support Gray’s defence of consent. Sajid Ali’s (2009) sexual assault conviction was overturned on a CCRC referral on the basis of new evidence that the complainant had previously made a false claim of indecent assault. None of these cases would likely satisfy proven innocence standards, but they are consistent with the English focus on miscarriages of justice discussed in Chapter 5.

Another English case involved a 10:2 jury conviction in 2003 of a man for raping his former live-in partner. The jury rejected the man’s claim of consensual sex, and the medical evidence was consistent with both rape and consensual sex. Under English “rape shield” law, the trial judge disallowed questioning of the complainant about claims of rape she had made in relation to two other men. The CCRC referred the case to the Court of Appeal which overturned the conviction and stated: “The appeal is not resisted by the Crown, and in our view, rightly so. This is another regrettable case where, for reasons to which we will come, there has been a miscarriage of justice” (R. v. Warren [2005] EWCA Crim 659 at para 4). Consistent with the willingness of English courts to read down statutory restrictions on evidence of the complainant’s prior sexual history (R. v. A [2001] UKHL 25), the Court of Appeal indicated that previous false allegations of sexual assault by the complainant did not fall within the statutory restriction (R. v. Warren [2005] EWCA Crim 659 at para 14).

Another well-known case involved Ched Evans, a professional footballer, convicted of sexual assault in 2012 with the Court of Appeal refusing his leave to appeal. Subsequently, the CCRC referred his conviction back to the Court of Appeal in 2016 with new evidence that the complainant had a similar sexual encounter with another person that supported Evan’s claims of reasonable belief in consent. In ordering a new trial, the Court of Appeal in a controversial decision concluded this was a sufficiently “rare” case in which fairness required consideration of the complainant’s prior sexual activity with someone other than the accused (Evans v. R. [2016] EWCA 452 at para 74). Again, the Court of Appeal relied on its ability to read down a “rape shield” law in order to protect the accused’s right to a fair trial. Evans was unanimously acquitted on a re-trial by a jury of seven women and five men. The admission of the woman’s prior sexual activity and the revealing of her name on social media were widely criticized (Hoyle and Sato, Reference Hoyle and Sato2019: 142). This case illustrated how cases based on a consent defence will not yield definitive conclusions of innocence seen in stranger rape cases where there is exonerating DNA evidence. The lack of definitive evidence may increase the importance of subtext, narrative and the possibility of stereotypes disadvantaging either the female complainant or the male accused.

The English CCRC had a practice from 2006 to 2017 of almost routinely in sexual assault cases demanding private records from the police, social services and victim services relating to the complainant. This policy was motivated by a Court of Appeal decision that had accepted similar evidence (Elks, Reference Elks2008: 220; Hoyle and Sato, Reference Hoyle and Sato2019: 151). The CCRC changed its policy in 2017 because of concerns about adverse effects on the privacy of complainants and some rejection of referrals from the Court of Appeal (Hoyle and Sato, Reference Hoyle and Sato2019: 155–156). Professors Carolyn Hoyle and Mai Sato (Reference Hoyle and Sato2019: 171) have commented that the pre-2017 policy was “swimming against the political tide” with respect to sexual assault law reform but also warned that “the Commission must remain cautious about the current environment of the surround, which could lead to further wrongful convictions, in order to fulfil its function as a safety net” (Reference Hoyle and Sato2019: 174).

The CCRC’s pre-2017 policy perhaps unnecessarily infringed on complainants’ privacy. With the benefit of hindsight, the CCRC might have been better to spend its limited investigative resources, as did most American innocence organizations, in ordering DNA tests that would have corrected the stranger sexual assault wrongful convictions in the Victor Nealon and Andrew Malkinson cases discussed in Chapter 5.5 much sooner. That said, most sexual assaults are committed by people known to the complainant and consent defences are not rare. Restrictions on inquiries into or consideration of the complainants’ private records may contribute to some wrongful convictions.

8.8.4 Sexual Assault Law Reform and Moral (Over?) Correction

It is possible to apply Johnson’s “moral correction” theory to explain both remedied and unremedied sexual assault wrongful convictions in cases where complainants and the accused knew each other and the accused claims consent. Sexual assault law reform was a needed moral correction to centuries of impunity for male sexual violence and laws that placed the complainants’ sexual character and reputation in issue (Stewart, Reference Stewart2024: ch 7). As late as 1973, the English Court of Criminal Appeal accepted that it was “settled law” that complainants in rape cases could be questioned about their entire sexual history with both the accused and other men (R. v. Krausz (1973) 57 Cr. App. R. 466). As Rebecca Cook and Simone Cusack (Reference Cook and Cusack2010: 16–17) note, there was “a long history in the law of stereotypes of female witnesses as ‘inherently untruthful’ or ‘intrinsically unreliable’ and therefore more likely to lie about cases involving sexual assault.”

Canada was a leader in sexual assault law reform. It enacted a “rape shield” law as part of its 1983 reforms that expanded the offence of rape to sexual assault. In 1991, the Supreme Court in a 7:2 decision struck down this law as an infringement of the accused’s constitutional fair trial rights enacted in 1982. A strong dissent warned that use of the complainant’s prior sexual conduct would encourage rape myths including the myth of the prevalence of stranger rape (R. v. Seaboyer [1991] 2 SCR 577). The government considered re-enacting the previous law notwithstanding the accused’s fair trial rights, but decided to embark on more comprehensive sexual assault law reform to stress the need for affirmative consent and the need for a reasonable basis for a defence of mistaken belief in consent (Roach, Reference Roach2016a: 306–308). This new law contained a more flexible restriction on the admissibility of the complainant’s prior sexual conduct while extending the basic restriction to the complainant’s prior sexual activity with the accused. It prohibited the admissibility of prior sexual history when the only inferences from the evidence was that the complainant would have been more likely to have consented or less worthy of belief. To be admissible, the evidence must be of specific sexual activity and have significant probative value to an issue at trial that is not outweighed by a long list of harms including those to the complainant’s privacy and equality rights and the social interest in encouraging reporting of sexual assault (Criminal Code RSC 1985 c.C-46 s.276). This new law has survived a constitutional challenge (R. v. Darrach 2000 SCC 46). It was expanded in 2018 to apply to the complainant’s sexual communications as well as her conduct (Criminal Code s.276(4); Dufraimont, Reference Dufraimont2019).

The Canadian “rape shield” law has been applied to exclude evidence that the complainant and a man accused of sexual assault had a “friends with benefits” sexual relationship on the basis that such evidence could only lead to prohibited inferences that the complainant was more likely to have consented or less worthy of belief. Dissenting judges argued that the result was that an accused claiming consent would have to tell “an incomplete story” (R. v. Goldfinch 2019 SCC 38 [194]). The law has also been applied to prohibit the admissibility of evidence claiming that a separating couple had consensual sex the night before the alleged sexual assault (R. v. T.W.W. 2024 SCC 19 [26]). There are other Canadian cases where courts have excluded evidence of prior sexual acts between the accused and the complainant that were arguably relevant to the accused’s defence of consent (Dufraimont, Reference Dufraimont2019).

In 1997, the Canadian Parliament enacted an aggressive legislative reply to a controversial Supreme Court decision that allowed an accused Catholic Bishop to have access to the private records of four Indigenous women that he was accused of raping in a residential school (R v. O’Connor, [1995] 4 SCR 411). The legislation followed the dissent in the case by subjecting all records, whether in the possession of the prosecutor or third parties, to a balancing of the accused’s rights and the competing privacy and equality rights of the complainant and the social interest in encouraging the reporting of sexual assaults. The law also contained a long list of claims that were legally deemed insufficient to justify the relevance of the record. The Supreme Court in 1999 upheld its constitutionality, stressing that Parliament was not bound by its previous decision (R. v. Mills, [1999] 3 SCR 668). I have argued elsewhere that this decision accepted a legislative rejection of a previous decision and should have required a temporary override of the rights of the accused and that the legislation devalued the rights of the accused over those of more politically powerful women’s groups (Roach, Reference Roach2016a: 315). In 2018, Parliament extended this restrictive regime to the admissibility of private records in the accused’s possession. In 2022, the Supreme Court upheld the constitutionality of this new legislation by concluding that the accused did not have a right to call all relevant evidence but only evidence of probative value that outweighed the harms that the evidence would cause to complainants. Three judges, however, dissented. They argued that “Parliament has legislated a formula for wrongful convictions” (R. v. J.J. 2022 SCC 28 at paras 205, 307).

In Canada, there is also mandatory judicial education on sexual assault law including “myths and stereotypes associated with sexual assault complaints” that must be developed “after consultation with persons, groups or organizations the Council considers appropriate, such as sexual assault survivors and persons, groups and organizations that support them, including Indigenous leaders and representatives of Indigenous communities” (Judges Act RSC 1985 c.J-1 s.60(3)). This mandatory judicial education does not require consultation with innocence organizations or training about wrongful convictions.

Even if all these measures are justified, they create, a risk of “a policy blind spot” (Hamer, Reference Hamer2023) with respect to sexual assault wrongful convictions where the accused and the complainant know each other especially in cases where the accused is self-represented or poorly represented and cannot navigate Canada’s complex restrictions on the admission of the complainant’s private records or prior sexual conduct as they may be relevant to the accused’s defence.

8.8.5 North American Registries

The American registry has recorded declining sexual assault exonerations as DNA has increasingly been used by investigators in stranger sexual assaults. Two-thirds of its sexual assault exonerations as of 2022 were DNA exonerations for sexual assault convictions between 1973 and 1994 (Gross et al., Reference Gross2022: 30). As of the end of 2024, the American Registry records 373 sexual assault exonerations since 1989, but 245 of these involved mistaken eyewitness identification, suggesting that most exonerations involved stranger sexual assaults. This suggests that it may be more difficult to correct sexual assault wrongful convictions where the accused and the complainant know each other. That said, the Brian Banks and Jerrod Adams cases discussed earlier demonstrate that it is not impossible. American law professor Deborah Tuerkheimer (Reference Tuerkheimer2017: 19–20) has warned about discriminatory forms of not believing female complainants. Nevertheless, she accepts three studies that have estimated false allegations at 4.5 per cent, 5.9 per cent and 6.8 per cent of total sexual assault complaints, noting that they are significantly lower than estimates made by police.

As of the end of 2024, the Canadian Registry contains 22 remedied sexual assault wrongful convictions out of 89 remedied wrongful convictions. At least nine of these remedied convictions were cases where the accused and the complainant knew each other. It is not impossible to correct such wrongful convictions. Nevertheless, a number of these cases were corrected before the 1997 restrictions placed on the accused’s access to private records.

Wilfred Beaulieu, an Indigenous man, was convicted of two counts of sexual assault against two women while he was on parole and living in a half-way house in Edmonton in 1992. He was sentenced to 3.5 years in prison. Beaulieu’s appeal was dismissed with the Alberta Court of Appeal holding that while a mention of his prior sexual assault conviction at trial “was unfortunate…it did not undermine the fairness of his trial” (R. v. Beaulieu [1993] ABCA 81). With the assistance of family and at a cost of $23,000, Beaulieu subsequently sued the complainants. During discovery, a process of mandatory pre-trial questioning that can be highly invasive of privacy and is not generally available before criminal trials, one of the complainants admitted that the other complainant had instructed her to lie at the criminal trial by saying that she had witnessed a sexual assault when she had not. The lawsuit also revealed medical records that one of the complainants had a history of delusional behaviour including accusing patients that she had never met of sexual assault. This new information led to the federal Minister of Justice, a member of the elected executive, referring the case back to the Alberta Court of Appeal who acquitted Beaulieu in 1997.

Beaulieu’s lawyer after his successful second appeal argued that the legislation restricting access to the complainant’s private records could have restricted his access to the complainant’s psychiatric records in a criminal trial. The 1997 legislation, like Canada’s version of rape shield legislation, does not categorically restrict access to private information about the complainant. Nevertheless, its complex provisions require specific and particularized applications for both production and disclosure of private records to the accused. The accused must establish the record’s likely relevance balanced against the complainant’s privacy, security and equality rights (Criminal Code ss.278.1–278.91). It would restrict the ability of those in Wilfred Beaulieu’s position to access the complainant’s psychiatric records in a criminal trial. As I have written elsewhere: “Even if the idea of a delusional complainant making false allegations of sexual assault is a misogynist myth that is wrong in the vast majority of cases, it takes only one case to produce a miscarriage of justice” (Roach, Reference Roach2023a: 109).

Another of the remedied Canadian cases involved an Indigenous man, Herman Kaglik, who was twice wrongfully convicted of sexually assaulting his adult niece. He was sentenced to four and six years, respectively, in part because of his lack of remorse. He served his sentence 2,500 km away from his home in Canada’s far north. In 1997, the niece recanted her statements, which were based on memories recovered while in therapy. After this recantation, DNA testing was done on the niece’s underwear and excluded Kaglik who was acquitted after four years imprisonment. Kaglik’s received $1.1 million in compensation but also recalled that “prison is a violent place. I fought every single day. I was beaten up on many different occasions. Prisoners tried to rape me” (Roach, Reference Roach2023a: 109–111). It is possible that in a similar case today, an accused would have difficulties gaining access to the complainant’s therapy records and that DNA might not be available.

Another case involved a man A. B. who was convicted of three counts of sexually assaulting his ex-wife in 2011. The accused was self-represented at trial and was denied permission to introduce a Facebook message that the complainant had sent to A.B.’s present partner, indicating that the sexual encounters in question with her ex-husband were consensual. The accused was represented by an experienced defence lawyer on appeal. The complainant’s Facebook messages were introduced as new evidence on appeal with the prosecution’s consent. The Court of Appeal stayed the prosecution at the joint request of the accused and the prosecution (R. v. A.B. 2016 ONCA 830 at para 12). Although this case is included in the Canadian registry of wrongful convictions, it has received no press coverage in Canada (Roach, Reference Roach2023a: 319). DNA exonerations in stranger sexual assaults fit better into media discourse than the more complicated and disputed facts in cases based on claims of consent. Laws designed to protect complainant’s privacy may also inhibit media interest.

Canadian laws restrict access to evidence that may assist in preventing or remedying wrongful convictions in cases where the complainant and the accused know each other. Leaving aside the question of whether the Canadian laws strike the appropriate balance between the rights of complainants and accused and between wrongful acquittals based on rape myths and discriminatory stereotypes about women and wrongful convictions, this at least suggests the need to ensure adequate legal aid at trial and adequate post-conviction investigations and remedies.

The judges who conducted the public consultations leading to Canada’s creation of a permanent Miscarriage of Justice Review Commission recommended that the new Commission not be bound by restrictions that the Criminal Code placed on the production of the private records to a judge, but should be bound by Criminal Code restrictions on disclosing such private documents to the accused. It reasoned that the former restrictions on production apply “to adversarial attempts by the accused to have access to the complainant’s private documents. In contrast, the commission will be an impartial inquisitorial body” (LaForme and Westmoreland Traore, Reference LaForme and Westmoreland-Traore2021: 162–163). The new Canadian legislation does not address this issue. It remains to be seen whether, like the English CCRC, the Canadian commission will receive many claims related to sexual assault and how it will approach the difficult issue of whether to access the complainant’s private records or past sexual history in its investigations.

Victimization studies suggest that acquaintance sexual assault is very prevalent, and for this reason, much sexual assault law reform has been focused on these types of cases. These cases are unlikely to be amenable to correction by DNA or on proven innocence standards. This suggests it may be a mistake to think that remedied wrongful convictions, especially those remedied by DNA, have the same characteristics as unremedied wrongful convictions (Hamer, Reference Hamer2023).

Stereotypes of males, especially racialized men, as inclined to sexual violence may play a role in some wrongful convictions. Laws that may be justified to protect the privacy of sexual assault complainants and encourage the reporting of sexual assault may also increase the risk of wrongful convictions, particularly in cases where the accused and the complainant know each other and the accused claims consent or belief in consent.