Wednesday, February 2, 2011

The Use of Bad Science and No Science

By Barry Goldstein

Sharon Begley is the Science Editor for Newsweek Magazine. I enjoy reading her columns because she has a knack for taking complicated scientific material and writing with a clarity that helps make the topics understandable to a lay audience. This is why I get excited when she writes columns that I believe apply to domestic violence custody cases. I wish she would use her talents to help expose the failure of the custody court system to use current scientific research and the tremendous harm they do to children because of this mistake.

In October of 2009, Ms. Begley wrote a column about the widespread failure of psychologists to use current scientific research in treating their patients. The column was entitled "Ignoring the Evidence Why do Psychologists Ignore Science?" The column, in turn, discussed a research study by Timothy B. Baker of the University of Wisconsin which found an anti-science bias among clinical psychologists which often results in the denial of best practices for their patients.

This research supports our findings that evaluators and other mental health professionals in the custody court system routinely fail to use best practices and place children in jeopardy. One of the fundamental premises behind DOMESTIC VIOLENCE ABUSE and CHILD CUSTODY is that the failure of the courts to look to current research is one of the factors that has led to widespread mistakes and often spectacularly wrong decisions.

In one of the last cases in my legal career, I cross-examined an evaluator in a Queens, New York custody case who was unfamiliar with the specialized body of research about domestic violence and could not cite any research to support his extreme positions. At one point he said his understanding of these issues was based on speaking with his friends by which I believe he meant other psychologists. The research establishes that recommendations by evaluators say more about their beliefs and biases than it does about the parties.

These conclusions are further supported in the Begley column in which she quotes Dr. Baker that psychologists tend to "give more weight to their personal experiences than to science." If there was any basis to hear psychologists testify as experts if would have to be based on a scientific rationale. Using their clinical experience to help understand valid research would be appropriate, but if their testimony reflects just their personal beliefs, unsupported by scientific research it is inadmissible. In the Queens case, as in most custody cases, the judge did not disqualify nor discredit the evaluator's testimony for his lack of familiarity with up-to-date research and in fact blindly followed his biased recommendations to give custody to the abusive father and deny the child custody with his primary attachment figure.

She also quoted Walter Mischel of Columbia University, who wrote, "The disconnect between what clinicians do and what science has discovered is an unconscionable embarrassment," We see this all the time in custody courts when evaluators fail to recognize domestic violence and sexual abuse because they don't know what to look for, rely on the myth that women frequently make false allegations, assume the danger created by the father has ended because the relationship is over or the lack of access curtails the father's physical abuse and misunderstand the silencing or defense mechanisms of children as proof they are doing well so could not possibly have been abused.

The article explains that most psychologists lack adequate training in science and the curriculum is light on science. Nevertheless courts often place great weight on mental health degrees unaware that it includes little or no training in domestic violence. Ms. Begley points out that many patients naturally get better, but the psychologists often attribute it to their treatments. Similarly evaluators cannot tell us how their recommendations have worked for children. Courts use stare decises to avoid relitigating the same issue between the same parties. The court in effect assumes that once a decision is made (after any appeals) whatever was decided is correct. This has given judges an unjustified confidence in its decisions and discouraged court studies to see how decisions in domestic violence custody cases have worked for children.

Judge Sol Gothard who was a prominent voice in BREAKING THE SILENCE: CHILDREN'S STORIES and often trains other judges in domestic violence and sexual abuse wrote, " If the court system had commissioned research to determine how the present practices are working, the result would be the information contained in Domestic Violence, Abuse and Child Custody. The research demonstrates court practices are outdated and their confidence misplaced." Many judges and lawyers have learned from mental health professionals and they have learned a lot of misinformation because the psychologists usually relied on for evaluations and other services are not relying on current scientific research. It is worse than just providing misinformation because it also creates a false sense that there is a valid basis for the misinformation that keeps getting repeated in the custody courts.

In describing the psychologists' attitude to treatment, Sharon Begley could equally be describing the custody courts, " When confronted with evidence that treatments they offer are not supported by science, clinicians argue that they know better than some study what works. In surveys, they admit they value personal experience over research evidence." The worst example of this is Parental Alienation Syndrome concocted by Richard Gardner who admitted it was based on his personal experience. It was also based on his biases including a belief that sex between adults and children can be acceptable. PAS was often admitted into evidence because the judges and attorneys were unaware there is no scientific basis for it and courts often accepted statements by evaluators without questioning their lack of expertise. PAS has been responsible for destroying the lives of thousands of children.

In October of 2010 Ms. Begley wrote an article about the kind of science that should be taught K-12. She advocates that students be taught critical thinking and in particular how to detect bad science which she humorously abbreviates as BS. There are many factors that cause the public to believe things that are clearly wrong. Critical thinking can help someone avoid these mistakes and has been missing in the custody courts on issues revolving around mental health issues.

Repeatedly, we have seen courts and particularly evaluators fail to recognize domestic violence and sexual abuse because they don't know what to look for and then diagnose mothers as delusional or paranoid because they continue to believe what the evaluator missed. If the evaluators bothered to look they would find that the mothers are functioning well in every other part of their lives. Their employers, teachers, friends and family see the mothers coping with difficult circumstances in a healthy way. It seems these mothers have the decidedly not rare disease; delusional in the custody courts. In many of these cases the professionals engage in confirmation bias and so ignore information that undermines the expected finding, often the one they believe the judge wants to hear. A recent Department of Justice study led by Dr. Daniel Saunders found that evaluators often do not have the domestic violence training they need so are more likely to believe the myth that mothers frequently make false allegations. This reliance on misinformation regularly leads to recommendations that work poorly for children. The court "experts," expecting to find false allegations because of their belief in the myth ignore any evidence that challenges the expected outcome. When male supremacist groups claim there was no evidence of abuse, it is based on these kinds of mistakes. Of course the abuser groups are not known for critical thinking.

Sharon Begley discussed common mistakes that even professionals make because they are using bad science instead of critical thinking. One common mistake is relying on observational surveys that fail to consider important differences in the subjects. This was the basis for recommendations that women should take hormone therapy, but later research found this to be a bad idea. The original study failed to consider that the women who chose to try the therapy were not a random sample and tended to be healthier than the average woman.

Ms. Begley also wrote about the issue of regression which is a statistical principle that describes a tendency to return to the mean. One common example is that people will often wait until the worst of an illness hits before seeking remedies. They might naturally get better by letting nature take its course, but are likely to attribute the healing to whatever remedy they tried. This often leads to a false belief in the efficacy of some medicine or treatment.

One problem we have seen in responding to domestic violence is that almost everyone has had some personal connection to domestic violence whether it is as a victim or perpetrator or knowing someone who was. If you are personally involved it is hard to be objective and if you heard someone's story it may have provided only one side. Nevertheless we often see people, including professionals reaching general conclusions from such limited information and frequently the conclusions are wrong or at least misleading. This is one reason professionals in the custody court system have failed to develop the practice of looking to the specialized body of domestic violence research to help them respond to domestic violence cases.

There is logic in the various mistaken conclusions which is why they cause as much harm as they do. For many years there was an accepted belief that alcohol and drug abuse was a cause of domestic violence. Husbands would come home drunk and beat up their wives and the natural conclusion was the alcohol caused the assault. In fact this was a major impetus for the Women's Christian Temperance Movement to seek prohibition. Only after the modern movement to end domestic violence started and research was conducted did we learn the fallacy of this assumption. Certainly inebriation reduces inhibitions so that when a man is under the influence his abuse may be more severe. Nevertheless, non-abusive men do not assault women after drinking because it is something their belief system would not let them do. This is why, for instance we don't see people get drunk and commit cannibalism. Abusers often use drinking as an abuse excuse and unqualified professionals seek to stop his domestic violence by preventing his substance abuse. Certainly that would be a good thing, but there is also a need to change his belief system in terms of his treatment of his intimate partner. These are two separate issues and when court professionals fail to understand it, they place women and children in danger.

Similarly, professionals and others often seek to blame mental illness for a man's domestic violence. There is a natural tendency when we hear of a horrific domestic violence (or other) crime to want to separate ourselves from the murderer. We say he must have been crazy to have committed such a horrible act. This is true even if the murder was meticulously planned over a long period of time. The research, however demonstrates that domestic violence offenders have the same rate of mental illness as other men who as far as we know have not assaulted their partners. A man can have both a problem with committing abuse and a mental illness but they are separate issues. Unqualified court professionals often seek to treat his mental illness while ignoring his abuse. This leads to custody and visitation arrangements that place children in danger. Abusers encourage this mistake by seeking to blame their mental illness in order to avoid accountability.

When domestic violence first became a public issue there was no research to help understand the best ways to respond. Some professionals saw a group of women who were being assaulted (only physical abuse was considered at that time) and other women who as far as was known were safe. Some professionals asked what the woman was doing to cause his assault. Approaches were developed based on sending the woman for therapy, counseling or other assistance in changing her behavior in order to stop his abuse. Only after this approach failed to reduce domestic violence homicide, emergency room hospitalizations and serious injuries and research demonstrated there is no difference between women who later were assaulted and those who weren't did society move away from this blame the victim strategy. Unfortunately there are still court professionals who use this failed approach.

The Department of Justice study led by Daniel Saunders found evaluators tend to place more weight on a mother's anger and emotion than would be justified in terms of the effects on children. Over forty states and many districts have created court-sponsored gender bias commissions. These commissions have all found widespread bias against women, particularly as litigants and one of the common examples is blaming mothers for the behavior of the fathers. Despite this research custody courts continue to blame mothers if they are emotional or angry in response to the father's long history of abuse against them and their children. In contrast, abusers come across as pleasant and cooperative because they are good at manipulation. Courts often make the mistake of treating the mothers' behavior as litigants as if it were a good indication of how they act when parenting their children.

Experts in domestic violence and child sexual abuse know that it is common for battered women and abused children to recant allegations of abuse when the allegations are truthful. The recantations can be caused by threats by the offender, embarrassment, love of the offender, concern over financial issues and many other good considerations. Many prosecutors have learned this from the current research so they don't automatically dismiss a case when the victim recants. Custody courts, however, do not tend to look to current research and when a mother or child recants not only do the courts treat the allegations as if they have been proven false, but often punish mothers severely on the assumption the mothers were deliberately trying to interfere with the fathers' relationship with the children.

The research establishes that custody courts routinely get domestic violence cases wrong because they don't know what to look for to recognize domestic violence. One problem is that inadequately trained court professionals often are only willing to consider evidence of physical abuse. This prevents them from seeing the pattern of controlling and coercive behaviors abusers engage in to maintain what they believe is their privilege to control their partner and make the major decisions in the relationship. Another problem we repeatedly see in reviewing cases in which courts denied allegations of domestic violence is that they discredit these allegations based on information that is not probative. Often they use the observational method discussed earlier. A court professional will watch children interact with their father and when the children do not show fear, the untrained professionals assume this proves the abuse allegations are false. The children intuitively understand that their father would not hurt them in front of a witness and in fact they could be punished if they showed fear of their father in public. Best practices require court professionals to consult domestic violence advocates or other experts when considering cases that might involve domestic violence. A domestic violence expert would not make this kind of mistake because she would understand the family dynamics in domestic violence cases. Unfortunately, court professionals are often very confident about issues they don't understand.

The point to the Begley columns and this article (yes there is one), is to stop to ask how do we know what we know. We sometimes do an exercise in the batterer classes I teach to examine this issue. Recently a group of college presidents advocated reducing the drinking age. The impetus for this proposal were the too-frequent cases in which underage students gain access to alcohol and engage in binge drinking with tragic consequences. The question we want to consider is not whether the age should be lowered, but what kind of information should be used in making the decision.

On the one side would be the personal and observational information. Someone might say that when they were in college they were permitted to drink and they had fun times without causing any kind of problems so lowering the drinking age would save lives by allowing teens to have legal access to alcohol and they can learn to drink responsibly. Someone else might talk about a friend who drank excessively at nineteen and lost his life in a car crash. This person would conclude the age should be raised so teenagers could not have legal access to alcohol before they are mature enough to handle it.

Another way to analyze the issue would be to look at scientific research about what effect the increased age limit has had. Have there been more deaths to binge drinking on college campuses involving underage drinkers? How has the change in the law affected drunk driving fatalities and when nearby states had different age limits what was the effect? On this issue it seems clear we should be relying on statistics based on thousands of cases instead of generalizing from a few personal experiences. Nevertheless people often rely on the less useful observational approach from a limited number of cases to resolve other issues. This has been a routine mistake in domestic violence custody cases where an "expert's failure to cite scientific research to support an opinion or even be familiar with this research is often not seen by judges as discrediting.

I appreciate the writings of Sharon Begley that have helped me understand scientific issues and demonstrated connections to the crisis in the custody court system. Newsweek is one of the few members of the national media to help expose this crisis in a wonderful article by Sarah Childress in September of 2006. I hope one day soon Ms. Begley will use her talents to help expose the failure of evaluators and other mental health professionals to use current scientific research and the harm they have caused because of this failure. There are a lot of children who would benefit from such an article.

Barry Goldstein is a nationally recognized domestic violence expert, speaker, writer and consultant. He is the co-editor with Mo Therese Hannah of DOMESTIC VIOLENCE, ABUSE and CHILD CUSTODY. Barry can be reached by email at their web site 


  1. in the purple darkness
    a child in waiting stirs
    a murmur turns
    and shadow burns

  2. There is no question that the attorneys need to hold experts' feet to the fire when it comes to using "real" science. For thirty years I have had a national practice of helping attorneys to do just that. I believe the tide is turning -- however slowly.


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