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"The wicked are always surprised to find
that the good can be clever."
Luc de Clapiers de Vauvenargues, 1715-1747
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 The Deposition Of Dr. Michael Borack
Borack: "No, I do not consider myself a specialist in child sexual abuse."
Borack: "I'm sure you're going to be asking me about the famous Richard Gardner."
Borack: "Richard Gardner is completely discredited"
Ducote: "Have you ever used the term 'parental alienation syndrome' in any of your evaluations?"
Borack: "I purchased these books for the specific purpose of knowing my enemy."
Mastruserio: "Objection. Counsel has misstated Dominic Mastruserio for about the fifth time. I don't believe that I've ever used that particular phrase, and I want to note for the record that, until he can show in a recorded document that I specifically used that term, I'm going to object to it."
Ducote: "Are you saying that you're an expert in false accusations of sexual abuse?" |
Borack: "I'm not an expert, a specialist, in assessing children as to whether or not they've been sexually abused."
Ducote: "You don't see that that makes no sense?"
Borack: "Is it possible for us to determine if someone's been a sexual abuse perpetrator definitively through psychological clinical instruments, interviews, et cetera; no, that's not possible."
Ducote: "Would you also agree it's typical for men who sexually molest children to be able to pass polygraph examinations?"
Borack: "the majority of individuals would say that we need to rely upon the accounts of the children."
Ducote: "No. I'm good at separating the wheat from the sheaf, I'll put it like that." |
Ducote: "Well, do you know what the term'paranoid' means?"
Borack: "Yes, it would be inappropriate to consider custody, giving custody to a sexual abuse perpetrator."
Borack: "One of the most difficult problems I've had in my work is convincing judges that a mother who is angry and may be appearing even irrational or upset, in fact, is reacting to the abuse that she and/or her children have undergone and she is, in fact, behaving appropriately."
Ducote: "How typical is it for men who molest their children to use as a strategy to defend themselves against the charges to seek primary custody of the children?"
Borack: "I couldn't speak to the incident rate, but I would -- I am certain that it happens and happens frequently." |
As Deposed By The Mother's Attorney, Richard Ducote
November 2, 2001
Hamilton County Domestic Relations Court
Cincinnati, Ohio
This deposition ruined Dr. Michael Borack's blossoming PAS career.
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1
1 COURT OF COMMON PLEAS
2 HAMILTON COUNTY, OHIO
3 DIVISION OF DOMESTIC RELATIONS
4 - - -
5 (redacted) (redacted), :
6 PLAINTIFF, :
7 -VS- : CASE NO. DR9702118
8 TERESA (redacted), :
9 DEFENDANT. :
10 - - -
11 Deposition of MICHAEL BORACK, a witness
12 herein, taken by the defendant as upon
13 cross-examination pursuant to the Ohio Rules of
14 Civil Procedure and pursuant to agreement and
15 stipulations hereinafter set forth at the offices
16 of Dominic J. Mastruserio Co., LPA, 306 East 14th
17 Street, Cincinnati, Ohio, at 1:55 p.m. on Friday,
18 November 2, 2001, before Lisa Conley, RMR-CRR, a
19 notary public within and for the State of Ohio.
20 - - -
21
22
23
24
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1 APPEARANCES:
2 On behalf of the Plaintiff:
3 Dominic J. Mastruserio, Esq.
4 of
5 Dominic J. Mastruserio Co., LPA
6 306 East 14th Street
7 Cincinnati, Ohio 45210-2010
8 On behalf of the Defendant:
9 Richard Ducote, Esq.
10 731 Fern Street
11 New Orleans, Louisiana 70118
12 Also present:
13 Ms. Teresa (redacted)
14 - - -
15 S T I P U L A T I O N S
16 It is stipulated by and between counsel
17 for the respective parties that the deposition of
18 MICHAEL BORACK, a witness herein, may be taken as
19 upon cross-examination pursuant to the Ohio Rules
20 of Civil Procedure, and pursuant to agreement; that
21 the deposition may be taken in stenotypy by the
22 notary public-court reporter and transcribed by her
23 out of the presence of the witness; that the
24 transcribed deposition is to be submitted to the
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1 witness for his examination and signature, and that
2 signature may be affixed out of the presence of the
3 notary public-court reporter.
4 - - -
5 I N D E X
6 WITNESS CROSS-EXAMINATION
7 Michael Borack 4
8 - - -
9 E X H I B I T S
10 DEPOSITION EXHIBITS MARKED
11 No. 1, a copy of a 2-page document entitled 12
12 "How To Assess Allegations of Sexual
13 Abuse in the Context of a Custody
14 Dispute."
15 No. 2, a copy of a 3-page document entitled 12
16 "PAS."
17 No. 3, a copy of a multi-page document 15
18 entitled "Michael G. Borack, Psy.D.
19 Custody & Domestic Violence Library."
20 No. 4, a copy of a multi-page document 17
21 entitled "Michael G. Borack, Psy.D.
22 Custody & Domestic Violence Library."
23 - - -
24
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1 (Witness sworn.)
2 MICHAEL BORACK
3 of lawful age, a witness herein, being first duly
4 sworn as hereinafter certified, was examined and
5 deposed as follows:
6 CROSS-EXAMINATION
7 BY MR. DUCOTE:
8 Q. Would you state your name and
9 address, please.
10 A. Michael Borack. 636 Northland
11 Boulevard, Suite 110, Cincinnati, Ohio 45240.
12 Q. Okay. I assume you've given your
13 deposition before?
14 A. Yeah.
15 Q. Approximately, how many times?
16 A. Dozens, I don't have an exact count.
17 Q. Okay. As you know, my name is
18 Richard Ducote. I represent Teresa (redacted) in
19 this case. I'm sure you understand the purpose of
20 the deposition is to allow me to ask you questions
21 about this case. I'm going to ask you to do a
22 couple of things so that the deposition goes
23 smoothly.
24 First of all, if you would please
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1 wait until I finish asking the question before you
2 answer it. Second of all, you have to answer in
3 words as opposed to sounds and gestures. If I ask
4 you a question that you don't understand, let me
5 know, and I'll try to rephrase it. Fourth, please
6 give complete answers to questions that you
7 understand. If you have to any way qualify an
8 answer, please do so now, so at the conclusion of
9 the deposition when it's transcribed, it can be
10 assumed that you gave complete answers to questions
11 that you understood. Okay?
12 A. (Nodding head.)
13 Q. You received your doctor of
14 psychology, PSD --
15 A. Psy.D., yep.
16 Q. -- at Nova University?
17 A. Um-hmm.
18 Q. You have to answer in words.
19 A. Yes.
20 Q. Okay. Was that a -- Were you in
21 residence for that program; did you actually go
22 down to Florida and study?
23 A. Yes, yes, I did.
24 Q. How long were you actually in Florida
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1 working on that degree?
2 A. In Florida, it's just shy of four
3 years.
4 Q. Did you do a dissertation?
5 A. Yes, I did.
6 Q. What was your dissertation?
7 A. It was a meadow analysis of the
8 outcome literature for assessing the effectiveness
9 of treatment programs for abusive men.
10 Q. And was the program also a clinical
11 program?
12 A. Yeah.
13 Q. Do you consider yourself an expert in
14 the area of child sexual abuse?
15 A. In the -- No, I do not consider
16 myself a specialist in child sexual abuse.
17 Q. Have you ever treated any children
18 who have been sexually abused for the effects of
19 the sexual abuse?
20 A. No, I have not.
21 Q. You were asked to do a custody
22 evaluation in this case?
23 A. Yes, I was.
24 Q. And what questions did you attempt to
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1 answer in the custody evaluation?
2 A. What would serve the best interest of
3 the child in terms of custody and visitation
4 arrangements.
5 Q. Any other questions?
6 A. Well, there were specific components
7 to it. One of the questions that was specifically
8 asked by the Court was, would it be appropriate for
9 the children to continue in their treatment with
10 Dr. Kowalsky, and, otherwise, the order itself did
11 not specify. Now, of course, the parties came in
12 with allegations that became questions that I
13 needed to answer.
14 Q. Allegations of sexual abuse, correct?
15 A. Well, that was one component, that
16 was one allegation, yes.
17 Q. And allegations of domestic violence?
18 A. Yes.
19 Q. Did you refer out the sexual abuse
20 issue to any other professionals?
21 A. No. The work had already been
22 completed.
23 Q. In the course of your evaluation, did
24 you attempt to ascertain whether these kids had
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1 been sexually abused?
2 A. Not by directly evaluating them, but
3 yes, I did.
4 Q. What protocol did you use?
5 A. The standard recommendations from
6 experts like Phillip Stahl, et cetera, on how to
7 assess for the presence of whether or not
8 allegations in a custody dispute have validity in
9 them. I reviewed prior reports, prior
10 evaluations. There had been such a large number of
11 prior evaluations, I felt it would not be in the
12 children's best interest to be evaluated again.
13 Q. Okay. So let me go back, because I'm
14 not sure I understood the answer to the question.
15 Did you specifically in the course of your
16 evaluation attempt to determine whether or not the
17 kids had been sexually abused?
18 A. Yes.
19 Q. And did you do that by your own
20 evaluation of that question or did you simply rely
21 on something else?
22 A. I wouldn't agree with either of those
23 two options.
24 Q. What did you do?
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1 A. One of the allegations was that
2 children had been abused sexually. Another
3 allegation was that the allegations of sexual abuse
4 were false. So I investigated that matter through
5 a review of documentation, collateral witnesses and
6 interviews with the parents. I relied upon prior
7 evaluations of the children, as I felt it would be
8 unethical and inappropriate to subject them to
9 another direct sexual abuse evaluation.
10 Q. Okay. So did you conduct a clinical
11 evaluation in this case to determine if the two
12 children had been sexually abused?
13 A. It's complex because of the clinical
14 aspect. It was a central component of my
15 evaluation using clinical measures and assessment
16 tools to make a determination as to whether the
17 allegations of sexual abuse were valid or whether
18 they were false. I did not clinically assess the
19 children myself, as one would do in a sexual abuse
20 evaluation where there are allegations, to
21 determine were these children abused or not.
22 Q. Okay. Now, what protocol
23 specifically did you utilize in this evaluation to
24 any extent to address to any extent the issue of
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1 child sexual abuse?
2 A. Well, I followed the recommendations
3 of the prominent figures in the field who write
4 about how a child custody evaluator ought to
5 investigate allegations, whether allegations of
6 sexual abuse are valid or not.
7 Q. And who are those people?
8 A. Phillip Stahl.
9 Q. How do you spell that?
10 A. S T A H L.
11 Q. And what has he written?
12 A. He's written several books. He wrote
13 a chapter on this very subject in his most recent
14 book, which was titled "Complex Issues," I think,
15 "In Child Custody Evaluations." It's in my
16 listing there.
17 Q. Okay.
18 A. There's actually a whole bunch of
19 people who have written about this stuff.
20 Q. Okay. Can you tell me who the people
21 are that you rely on?
22 A. Yeah. Galatzer-Levy has a chapter in
23 their book, their '99 book. Phillip Stahl's book
24 is '99. Elizabeth Ellis writes about this in her
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1 2000 book that was published by the American
2 Psychological Association. Ney, N E Y, slightly
3 older book, but well-respected, from '95. I also
4 utilized information from my readings and trainings
5 from Sandra Hewitt, and Faller, and Sattler, and
6 Quinsey and Lalumiere, the recently published APSAC
7 published standards on this sort of stuff.
8 So there's really a lot of discussion
9 in the literature about how a child custody
10 evaluator ought to approach these issues. Had, in
11 fact, it been my opinion that a direct sexual abuse
12 evaluation of the children was appropriate, I would
13 have referred that to a colleague who had that
14 specific ability.
15 Q. Okay. Because you yourself do not
16 have that specific ability, correct?
17 A. Correct.
18 Q. Okay. Now, what were you just
19 reading from?
20 A. The notes that I made for myself.
21 Q. Okay. Can I see those, please.
22 A. (Indicating.)
23 Q. When did you prepare these notes?
24 A. Let's see, I believe that I put them
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1 together for myself prior to the appearance at the
2 domestic relations court last time that ended up
3 not occurring. I wanted to anticipate questions
4 such as this. I wanted to refresh my memory.
5 These are all books and documents from my own
6 library.
7 MR. DUCOTE: Okay. Can we make a
8 copy of this and then attach it as Borack 1 to the
9 deposition?
10 MR. MASTRUSERIO: Are you going to
11 use it to refer to, so you want to do it now?
12 MR. DUCOTE: Yeah, let's do it now
13 so I can ask about it.
14 THE WITNESS: You may as well do
15 that about this, too, because I'm sure you're going
16 to be asking me about the famous Richard Gardner.
17 MR. DUCOTE: Absolutely.
18 THE WITNESS: Yes, I anticipated
19 that. I should say the infamous Richard Gardner.
20 (Off the record.)
21 (Deposition Exhibit Nos. 1 and 2 was marked for
22 identification.)
23 BY MR. DUCOTE:
24 Q. Dr. Borack, I'm going to show you
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1 what has been marked as Deposition Exhibit No. 1
2 and ask you if you can identify that document?
3 A. Yes. This is some rough notes I
4 threw together so that I could remember when I was
5 being asked about what in my library I utilized in
6 coming up with my recommendation, et cetera.
7 Q. This is the document, if I am
8 correct, that you prepared just prior to the last
9 court hearing which did not take place?
10 A. Exactly. This is my rough
11 preparation so I could remember certain things.
12 Q. Now, at the time that you prepared
13 this document, were you aware that I had filed a
14 motion regarding your work in this case, referring
15 to our position that you are a devotee or someone
16 who relies upon the works of Richard Gardner?
17 A. Yes, I was aware of that.
18 Q. Let me attach this Deposition Exhibit
19 1 to the deposition.
20 I'll show you what I've marked for
21 identification as Deposition Exhibit 2.
22 A. Yeah.
23 Q. Ask you if you can identify that?
24 A. Yes. It's a similar document
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1 prepared by myself in regard to the issue
2 of "parental alienation syndrome" for preparation
3 for trial.
4 Q. Okay. And when you say "for trial,"
5 that was --
6 A. That hearing.
7 Q. You prepared this --
8 A. Exactly.
9 Q. Hang on one second. You prepared
10 this document, Deposition Exhibit 2, in preparation
11 for the last court hearing in this case, which
12 didn't come off, correct?
13 A. Correct.
14 Q. Now, at the time that you prepared
15 Deposition Exhibit No. 2, were you aware that I had
16 filed in the court a motion alleging that you were
17 a devotee or a fan or somebody who utilized the
18 works of Dr. Richard Gardner?
19 A. Yes, I was aware of that.
20 Q. Let me attach Deposition Exhibit 2.
21 Okay. I want to show you -- have
22 this marked the next document as Deposition Exhibit
23 No. 3.
24 (Deposition Exhibit No. 3 was marked for
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1 identification.)
2 Q. I'll show you what's been marked for
3 identification as Deposition Exhibit 3, which is a
4 document consisting of ten pages that starts off,
5 "Michael G. Borack, Psy.D., Custody & Domestic
6 Violence Library," and ask you if you can identify
7 this particular document?
8 MR. MASTRUSERIO: Do you have a copy
9 of that?
10 Q. I don't. We can share one.
11 A. This is a faxed copy -- from where, I
12 don't know. That's very interesting. To me,
13 "Hoffman Firm." But it's an actual copy of my
14 custody library. This is my own books, my own
15 holdings that I have and journal subscriptions that
16 I put together. I'm not sure if it's still current
17 because I don't remember -- You know, I update it
18 every once in a while.
19 Q. Can you look at this and, as best as
20 you can, tell me when you would have prepared this
21 document?
22 A. Oh, I couldn't even begin to tell
23 you. Obviously, this was faxed on October 31st
24 2001, so it was recent, but, you know, I update
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1 this periodically, and I couldn't really tell
2 you -- I would have to be pretty good to remember
3 which books I just recently got. Certainly, in the
4 last six months, I would imagine.
5 Q. What was the purpose of your putting
6 together this document, Deposition Exhibit 3?
7 A. I have that always preprinted and I
8 keep that, and I hand it out oftentimes to people
9 that I'm providing training to or attorneys who are
10 seeking my services just to -- as a demonstration
11 of the fact that I'm current in the literature.
12 Q. Okay. Did you bring with you today
13 for the purposes of this deposition another copy of
14 Deposition Exhibit 3 or updated version or anything
15 like that?
16 A. I brought this, yes. This is very
17 similar. It may be exactly the same.
18 Q. Let's see.
19 A. Well, you can probably just look on
20 the first page, if the first page matches up, it
21 probably fits.
22 Q. This is 11 pages here, the one you
23 just handed me with the highlighting on it is 11
24 pages, and the one I have is 10 pages, so let me go
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1 ahead and, if we could, mark the one that you just
2 handed me as Deposition Exhibit No. 4 and make
3 some --
4 A. None of these documents are part of
5 my official record in this case, by the way.
6 They're just my kind of study notes, et cetera.
7 Q. Well, that's okay.
8 A. Just wanted to clarify that.
9 Q. I haven't said they were yet.
10 A. I would like that back.
11 Q. Yeah, we'll share the copy.
12 (Deposition Exhibit No. 4 was marked for
13 identification.)
14 Q. Deposition Exhibit 4, you have a
15 number of things that are highlighted on here,
16 highlighted in yellow, and then you also have a
17 number of items that have white dots by them. Can
18 you tell me the significance of that?
19 A. White dots?
20 Q. Or yellow dots.
21 A. I can't really remember. I think
22 these were things that I anticipated you would be
23 asking me, like what works did I rely upon, et
24 cetera, as I'm obligated to rely upon scientific
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1 works and writings, and these struck me as ones
2 that I would -- instead of searching, I would
3 highlight them so my eye would go right to them,
4 people like Ackerman and the Ethical Standards put
5 out by the Association for Treatment of Sexual
6 Abusers, that sort of stuff, things that I
7 mentioned, and these, and just my professional
8 works that are more relevant. For example, there
9 are many books in here that would be very
10 irrelevant to this case, so I made this as a way to
11 remember what might be more relevant.
12 Q. But my specific question was, maybe
13 it wasn't clear, you have some that are highlighted
14 and then some that just have yellow dots next to
15 them.
16 A. Oh.
17 Q. I was just wondering if there were
18 any significance to the ones that have yellow dots
19 as opposed to the ones that are highlighted?
20 A. Yeah. It was more or less, I
21 wouldn't want to be -- Generally speaking, the ones
22 that are dotted are things that I consider less
23 important or less relevant. Yeah. Although, I
24 wouldn't want to attribute too much to that. This
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1 is just very rough preparation. When I did this, I
2 did not anticipate it having any significant
3 meaning. I can't really recall. I wanted my eye
4 to be able to go to certain things.
5 Q. Now, do you subscribe to the theory
6 known as "parental alienation syndrome"?
7 A. No, I do not, particularly not as
8 it's ascribed by Richard Gardner.
9 Q. You would agree that the Richard
10 Gardner parental alienation syndrome theory is not
11 something that's accepted as a technique to
12 determine whether or not sexual abuse allegations
13 are true or false?
14 A. Richard Gardner is completely
15 discredited, appropriately so, by the scientific
16 community that has critiqued his work in the decade
17 since it came out. I would say I'm -- The times
18 that people have questioned me about Richard
19 Gardner, it's been more along the lines of
20 something like our mutual friend David Corwin might
21 do, which would be to discredit Richard Gardner.
22 Q. Well, you used to work up in
23 Massachusetts with some other psychologists, did
24 you not?
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1 A. Yes, I did.
2 Q. And what was the name of that
3 practice?
4 A. Collaborations in Clinical Care.
5 Q. And were you doing custody
6 evaluations there?
7 A. Um-hmm.
8 Q. You have to answer in words,
9 although, you had a mouthful of water.
10 A. Yes. Sorry.
11 Q. Was that practice utilizing Richard
12 Gardner's works in its custody evaluations?
13 A. It was -- I couldn't speak to the
14 other clinicians. It was not a group practice. In
15 fact, it was really more of technically an
16 association where we all marketed and rented
17 together, but we were not responsible for each
18 other's work in any fashion, and I don't really
19 know what my colleagues who worked -- had offices
20 in that group, however you want to call it, what
21 they utilized or didn't. They weren't like my
22 partners in any sense.
23 Q. How about yourself, have you ever --
24 A. No, no, absolutely not.
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1 Q. Hang on. I didn't finish my
2 question.
3 A. Sorry.
4 Q. Have you ever used the term "parental
5 alienation syndrome" in any of your evaluations?
6 A. I would -- That would be hard, I've
7 done so many. I might have referred to it in the
8 early '90s. In the mid '90s, it was a term that
9 was being thrown about fairly loosely by everyone,
10 and until some of the major writers started saying
11 that we need to not refer to this as parental
12 alienation syndrome, it's not properly a syndrome,
13 I may have. I doubt it, but I might have.
14 Certainly, I didn't ascribe to his theories or
15 believe that his work was legitimate in any
16 fashion.
17 Q. Well, I want to refer you to
18 Deposition Exhibit 2.
19 A. Which one is that?
20 Q. That's the one that starts "PAS."
21 A. Right.
22 Q. The "PAS," does that refer to
23 parental alienation syndrome?
24 A. Mind you that is just my rough
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1 category so I could remember things. That would
2 be -- These are notes about what I felt was
3 relevant to what I anticipated was an attempt to
4 align me with a professional for whom I have a
5 tremendous disregard, disrespect, which is Richard
6 Gardner, which in fact I would concur is
7 irresponsible, nonscientific proponent of
8 pedophilic type. I completely concur with your
9 critiques and ideas about him, as do most
10 responsible professionals.
11 Q. But my question was, and maybe I --
12 You jumped ahead a little bit in your answer. What
13 was the purpose of your having this, these notes,
14 about parental alienation syndrome in this
15 Deposition Exhibit No. 2?
16 A. These were different authors -- Let
17 me back up. When I wrote my report in this case,
18 and prior to your filing a motion arguing that I
19 was a proponent of Richard Gardner's theories, I
20 had not ever thought of myself even remotely in
21 that category. And in anticipating that this would
22 be your tactic for discrediting me, I went back and
23 reviewed all of the things that I had read
24 previously on this subject that had formed my
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1 professional opinion and work related to the
2 subject of alienation, parental alienation,
3 parental alienation syndrome, however it might be
4 referred to, and these were some of the major
5 things that I relied upon, drew out, recalled, et
6 cetera. That's the purpose of this.
7 Q. So was the purpose of Deposition
8 Exhibit 2 to show how the concept of parental
9 alienation syndrome had no bearing in your
10 evaluation in this case or was it to --
11 A. No.
12 Q. I'm sorry?
13 A. No.
14 Q. -- to show that this was a case of
15 parental alienation or what?
16 A. This was not put together for the
17 purpose of showing anything. This was for the
18 purpose of reminding me in case -- In fact, this
19 was put together so that prior to my testimony I
20 could skim through it real fast so that I would,
21 hopefully, remember all of these things, because I
22 do not have a photographic memory.
23 Q. Okay. I want to go back to your
24 "Custody & Domestic Violence Library" that we have
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1 marked as Deposition Exhibit 3 and the 11-page
2 version --
3 A. Yes.
4 Q. -- as Deposition Exhibit 4.
5 A. Um-hmm.
6 Q. And I was looking through this and I
7 note that listed in here you have --
8 A. Gardner's books.
9 Q. -- three books by Richard Gardner,
10 "The Parental Alienation Syndrome," 1992; 1995,
11 "Protocols for the Sex-Abuse Evaluation"; and
12 1989, "Family Evaluation and Child Custody
13 Mediation, Arbitration and Litigation." That's
14 correct, right?
15 A. Yes.
16 Q. Okay. Do you ever use this protocol
17 for the sex abuse evaluation that Richard Gardner
18 promulgated as reflected in his 1995 book?
19 A. Absolutely not. I purchased these
20 books for the specific purpose of knowing my enemy.
21 Q. So are you aware that Mr. Mastruserio
22 in requesting this evaluation be done was arguing
23 the reason for the evaluation be done was it was a
24 case of parental alienation syndrome?
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1 MR. MASTRUSERIO: Objection.
2 Counsel has misstated Dominic Mastruserio for about
3 the fifth time. I don't believe that I've ever
4 used that particular phrase, and I want to note for
5 the record that, until he can show in a recorded
6 document that I specifically used that term, I'm
7 going to object to it.
8 Q. All right. Do you know whether or
9 not -- Let me rephrase it. Do you know whether or
10 not Mr. Mastruserio had ever represented to the
11 Court that the reason that this evaluation should
12 be done is because it was a case of parental
13 alienation syndrome and you were somebody who was
14 competent to address that question?
15 A. I cannot recall off the top of my
16 head; although, I can say that I'm quite used to
17 even very competent, well-educated attorneys
18 misusing these terms, because it is quite common in
19 the family courts for there to be confusion about
20 the specific terms, parental estrangement, parental
21 alienation, parental alienation syndrome. And so
22 in fact, part of my job is educating those involved
23 around those issues.
24 So I can tell you clearly, though,
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1 that as this case came to me, my -- it was my
2 conception of it early on, was that it might be a
3 case where a father was abusing his children, and
4 it might be a case where the mother was somehow
5 either exaggerating, distorting or fabricating
6 those allegations, and that part of my task was not
7 finding out whether or not in fact these things had
8 occurred, but whether in fact there was a
9 legitimate basis for the mother to fear, et cetera.
10 Q. Now I'm a little confused because I
11 think early on in the deposition you said that you
12 weren't an expert in the sexual abuse of children.
13 Are you saying that you're an expert
14 in false accusations of sexual abuse?
15 A. What I'm saying is that I'm an expert
16 in child custody evaluation, which is a very broad
17 topic. It requires knowledge about a large number
18 of areas, from psychco/legal aspects, local
19 jurisdictional rules, procedures of court, adult
20 mental health, child mental health, domestic
21 violence, sexual abuse, individual psychopathology,
22 parenting skills, cultural issues. It's so diverse
23 that no one clinician can be a specific expert in
24 all of those areas.
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1 It is my responsibility to be expert
2 in conducting child custody evaluations. Had I --
3 And I am trained to, and am thoroughly familiar
4 with the procedures for examining whether or not a
5 sexual abuse allegation that is made in the context
6 of a custody dispute has some validity to it, and
7 then I would go forth with procedures I think need
8 to be done to investigate it.
9 Had this case come to me and I had
10 been the first clinician involved, I would have
11 referred these children to your friend and mine,
12 Erna Olafson, or another esteemed colleague, as I
13 ultimately did, because they have that expertise.
14 But I reviewed all of the other aspects that I need
15 to for my responsibilities and discovered that
16 these children had been worked over numerous times
17 and that it would be inappropriate, it would be
18 improper, and it would be unethical to subject them
19 to further evaluation.
20 Q. Okay. But my specific question was:
21 Do you consider yourself an expert in false
22 allegations of abuse, although, you don't consider
23 yourself an expert in child sexual abuse?
24 A. I'm not an expert in treating child
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1 sexual abuse, and I'm not an expert in assessing
2 whether or not sexual abuse has occurred.
3 Q. Or if -- Does it follow, then, that
4 you're not an expert in whether the allegation is
5 false?
6 A. No, because in fact, many
7 professionals who have a great deal of expertise in
8 assessing whether or not a child has been sexually
9 abused do not have the proper training to make a
10 determination, if in the context of a custody
11 dispute, if that might be a false allegation. So
12 we have procedures for examining children as to
13 whether or not they've been sexually abused, and
14 that is not something that I do.
15 Q. Okay. So let me see if I understand
16 you correctly.
17 A. Um-hmm.
18 Q. You do not consider yourself an
19 expert in assessing whether or not a child has been
20 sexually abused, but you do consider yourself an
21 expert in assessing whether or not an allegation of
22 sexual abuse is false?
23 A. Well, let's see if I can clarify the
24 confusion. I'm not an expert, a specialist, in
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53
1 (redacted) has a third child besides (the girl) and
2 (the boy)?
3 A. Yes.
4 Q. Okay. And do you know how old that
5 child is?
6 A. I can't recall. Significantly older
7 than the (redacted) children who are the subject of
8 this litigation.
9 Q. Were you aware that that child was a
10 product of, was born of, a relationship that he had
11 in New Orleans with a woman that he didn't marry?
12 A. That sounds approximately correct.
13 Q. Okay. Do you know what Dr.
14 (redacted) relationship with that child is?
15 A. I believe he has no relationship with
16 that child.
17 Q. Okay. And do you know if he ever had
18 a relationship with that child?
19 A. I don't know for certain. I was
20 given the indications from both Mrs. (redacted) and
21 Dr. (redacted) that he had not ever had a
22 relationship with that child.
23 Q. Do you know if that child ever had a
24 father figure in his life?
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1 MR. MASTRUSERIO: Objection on the
2 basis of relevancy. You may answer, Doctor.
3 A. All I know is that Dr. (redacted)
4 stated that there was a stepfather who is very
5 involved, et cetera, who had become the father
6 figure. I have no way of knowing if that's true.
7 Q. Do you believe that regarding that
8 child, setting aside (the girl) and (the boy) for a
9 second, but regarding that son, whether Dr.
10 (redacted) has acted in that child's best interest
11 over the course of that child's life?
12 A. I did not evaluate that question. I
13 cannot provide an answer.
14 Q. Well, do you think it would be
15 relevant if you look at it from a custody
16 perspective to see what the father has done
17 vis-a-vis another child that he had?
18 MR. MASTRUSERIO: Objection to the
19 question on the basis that the witness has answered
20 the question in the negative before, so the
21 question is repetitious and it's irrelevant.
22 Q. Well, he said he didn't do it, but
23 I'm asking him if he thinks that would be
24 relevant.
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1 A. I felt it was appropriate to collect
2 some information regarding the circumstances of
3 that child. However, it was not practical,
4 possible or in this case I believe appropriate to
5 have gone to such lengths as to say interview that
6 child or really analyze that situation in depth.
7 Q. Okay. Well, I'm not suggesting that
8 you had to interview that child. Would you agree
9 that, if we're trying to figure out what kind of
10 father Dr. (redacted) is, that you as a clinician
11 should look at what kind of father he is to all of
12 his children other than these two children?
13 A. In this circumstance, this "father"
14 had never met this child, had allegedly been
15 informed that this child had a father figure. Now,
16 neither of these parties voiced to me any question
17 or concern about that child having say, for
18 example, been sexually abused by Dr. (redacted) or
19 having been mentally or emotionally abused. The
20 question was Dr. (redacted) somehow immoral,
21 incorrect or inappropriate to not provide for this
22 child would require an investigation as to whether
23 his statements about that were true, et cetera.
24 Now, given that, there was really
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1 virtually no dispute that he was engaged with his
2 children, these children, involved with them, in
3 their lives, providing for them, and those
4 questions which might be applicable to this older
5 child weren't applicable here.
6 Q. So do you think that it's an
7 appropriate, responsible father who has a child
8 from some relationship that then doesn't support
9 and doesn't establish a relationship with that
10 child?
11 MR. MASTRUSERIO: There will be an
12 objection to the question. I note my objection for
13 the record for later on that the witness has
14 already answered the question. He doesn't have the
15 information from which to give a response anyway.
16 This is the third or fourth time you asked the
17 question, so there will be an objection. If it
18 continues, I'll direct the witness not to answer
19 the question and you can certify it for the
20 record.
21 MR. DUCOTE: They're different
22 questions each time.
23 MR. MASTRUSERIO: That's your
24 opinion.
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1 BY MR. DUCOTE:
2 A. The allegations and the statements
3 about this child would need to be investigated,
4 which would require an order of the court from that
5 jurisdiction and the involvement of another child
6 and another parent, so that was not feasible,
7 practical or appropriate, certainly not for me to
8 undertake proactively.
9 As to whether or not this was
10 relevant in this case because -- According to Dr.
11 (redacted), he was unaware that this child had
12 actually been born until after the child had been
13 born. He was informed by the mother that this
14 child had a father figure. He was not invited into
15 the child's life. He felt that it would be
16 inappropriate for him to insinuate himself into
17 this child's life, and he provided financially. I
18 don't know if any of those things are true, now.
19 Q. Have you seen Dr. (redacted)
20 deposition that we've taken?
21 A. That you've -- Oh, no. I saw some
22 things or I may have seen a deposition of his from
23 before I wrote my report, but not since.
24 Q. Do you know what Dr. (redacted) says
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1 about Teresa's role in his having a relationship or
2 not having a relationship with that other son?
3 A. I don't know what he said in his
4 deposition.
5 Q. Okay. I want to go back to
6 something, those other exhibits that we talked
7 about for a second, Deposition Exhibit 1, 2 and 3.
8 Now, I'm looking at 1 here and --
9 A. Which one is that? Mine aren't
10 numbered.
11 Q. "How to Assess Allegations of Sexual
12 Abuse in the Context of a Custody Case."
13 A. Okay.
14 Q. I was just kind of during a little
15 break here looking at no. 3, which was your
16 library.
17 A. Okay.
18 Q. And I'm going down to this Ney, N E
19 Y, 1995, "True and False Allegations of Child
20 Sexual Abuse: Assessment and Case Management."
21 A. Yes. It's not in there because you
22 apparently have an older version and, you know, I'm
23 pretty lazy about updating my list, but there it
24 is.
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1 Q. Was this list -- You're talking about
2 no. 4 there, I believe this is no. 4. Was this
3 list updated after you saw the pleadings that I had
4 filed regarding your work in this case?
5 A. I don't think so, but I don't really
6 know.
7 Q. Okay. And what about this article by
8 Kuehnle, K U E H N L E --
9 A. That's a book.
10 Q. Okay, you have that. That's the
11 Professional Resource Press book. Is this a book
12 that you rely on; you like that book?
13 A. No, not particularly, a little bit,
14 but it's not really addressing the topics as
15 thoroughly as the others.
16 Q. Is that a book -- Is Professional
17 Resource Press a publisher of respectable
18 psychological publications; do you know? Who are
19 they?
20 A. It's not a major, by any sense, a
21 major publisher, so I couldn't tell you. Like I
22 said, I don't really rely upon that book as much.
23 It's certainly enjoyed some popularity and was
24 being discussed by people, but I didn't find it as
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1 highly useful here.
2 Q. Going back to this Deposition Exhibit
3 1, the second page, you have "Other Important
4 Titles."
5 A. "Other Important Titles" --
6 Q. And --
7 A. -- yeah.
8 Q. -- I see you list two books by
9 Faller, Kathleen Faller, that aren't in your
10 "Custody & Domestic Violence Library" as reflected
11 in Deposition No. 3.
12 A. Um-hmm.
13 Q. I wanted to see if they're listed in
14 no. 4.
15 A. They may be, but I'm not offering
16 either of these lists as somehow complete,
17 certified, dated, et cetera, listings of my library
18 holdings. And, furthermore, by the way, I
19 oftentimes check out books and read them at the
20 library at UC or whatever, and then ultimately
21 decide that it's a lot less trouble to buy them, so
22 when I have them and when I do and don't own them
23 isn't always the most relevant issue, by the way,
24 either.
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1 Q. I'm just asking you questions. Then
2 I see Anna Salter's book, "Treating Child Sex
3 Offenders and Victims" in 1988, and that's not on
4 your library list, is it?
5 A. I don't know. I don't have them
6 memorized.
7 Q. Then this other one --
8 A. All of these figures, by the way,
9 have written chapters in other books, by the way,
10 as I'm sure you know, and I bet given your
11 speciality, you've met these people. They've
12 written extensively all over the place.
13 Q. I've trained with Kathleen Faller and
14 Anna Salter.
15 A. They've published all over the place.
16 Q. You're the one who have given me
17 these papers.
18 A. I didn't give them to you. You're
19 making an issue out of my personal notes, not me.
20 Q. If you need to take a break to calm
21 down or something, we can do it.
22 A. No, I don't need a break.
23 Q. Now, is it correct that Anna Salter's
24 book "Treating Child Sex Offenders and Victims"
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1 reflected in Deposition Exhibit 1 is not in 3 or 4?
2 A. You can answer that sitting there. I
3 don't have it in front of me.
4 Q. Well, let's see, it is in front of
5 you and I'll reach over you and get it, but
6 whatever.
7 A. Oh, that.
8 Q. Okay. I see in no. 4 you do have the
9 Quinsey and Lalumiere's "Assessment of Sexual
10 Offenders Against Children" listed.
11 A. Um-hmm.
12 Q. You don't have it in the no. 3.
13 A. All right. So?
14 Q. Let's see if you have Anna Salter's
15 book here. You do, you have it in no. 4 and you
16 didn't have it in no. 3. Okay. Well, that answers
17 the question.
18 Have you belonged to APSAC, the
19 American Professional Society on the Abuse of
20 Children?
21 A. Yes, I do.
22 Q. How long have you belonged to that
23 organization?
24 A. I don't recall. I mean, I couldn't
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1 tell you off the top of my head.
2 Q. More than two or three years, you
3 believe?
4 A. No. I got a mailing from them
5 sometime recently.
6 Q. So you just joined within say the
7 last six months?
8 A. Year or year and a half. I don't
9 know. I really couldn't tell you. I'd have to
10 look.
11 Q. Okay. Is this -- Whenever you did
12 join recently, is that the first time that you have
13 belonged to that organization?
14 A. Yes.
15 Q. Okay. Now, are you familiar with the
16 protocol that APSAC has put out for addressing
17 sexual abuse allegations in custody cases?
18 A. Um-hmm.
19 Q. You have to answer in words.
20 A. Yes. Sorry.
21 Q. And is that a protocol that you
22 followed in this case?
23 A. I'm -- I cannot recall if I had it at
24 the time, but I can assure you, whenever any of
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1 these books were acquired, my work in this case is
2 consistent with all of them.
3 Q. Are you familiar with the protocol
4 put out by the American Psychological Association?
5 A. Um-hmm.
6 Q. You have to answer in words.
7 A. Yes. Sorry. Which one? I mean,
8 there's so many. I assume you're referring to
9 something specific.
10 Q. Which ones are you familiar with?
11 A. Specially for forensic psychologists,
12 for custody abuse, for investigating children that
13 have been abused and/or neglected, I mean, there
14 are just so many that are relevant.
15 Q. Did you diagnose Teresa (redacted)
16 with having any sort of mental illness?
17 A. I don't believe I did, no. It's in
18 my report.
19 Q. Did you diagnose her of anything?
20 A. No, I don't believe that I did.
21 Q. Did you diagnose Dr. (redacted) with
22 anything?
23 A. No.
24 Q. I'm looking at Deposition Exhibit 2,
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1 and I see something on here "Darnell Divorce
2 Casualities"; what is that a reference to?
3 A. A psychologist named -- I think it's
4 Phillip, but I'm not sure, Darnell anyways, he
5 wrote a book about the -- sort of updating the
6 concept of parental alienation, a popular trend for
7 parents.
8 MR. MASTRUSERIO: Gentlemen, do you
9 need anything?
10 (Off-the-record discussion.)
11 BY MR. DUCOTE:
12 Q. Is that a book that's on your list
13 here?
14 A. Yeah, should be.
15 Q. Yes, okay. Now, do you ever conduct
16 any training for any professionals in the area of
17 child sexual abuse allegations?
18 A. No.
19 Q. Have you ever conducted any training
20 like that?
21 A. About child sexual allegations?
22 Q. Yeah.
23 A. No.
24 Q. Have you ever conducted any training
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1 for professionals in or about custody evaluations?
2 A. Yes.
3 Q. And who have you trained?
4 A. I train the social work staff at the
5 Hamilton County Court of Domestic Relations and the
6 social work staff at the Norfolk County Probate,
7 Family and County Court.
8 Q. Who is on the social work staff at
9 the Hamilton County court?
10 A. I can't remember all of their names.
11 I'm not even sure I would accurately remember any
12 of their names. It's just they have a staff that
13 does parenting investigations, and they asked me to
14 do some training.
15 Q. Have you ever testified in Judge
16 Panioto's court before?
17 A. Yes.
18 Q. How many times?
19 A. I haven't added that up. Certainly,
20 at least five or six times, I would guess.
21 Q. Have you ever testified in his court
22 regarding the parental alienation syndrome?
23 A. I don't believe I have, no.
24 Q. Okay. Have you ever had any
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1 discussions with Judge Panioto about this
2 particular case?
3 A. No, I haven't.
4 Q. Do you know Betty Gilman?
5 A. No, I don't.
6 Q. You don't know that name, Betty
7 Gillman?
8 A. I know the name. I don't know her.
9 Q. Have you ever had any discussions
10 with her about this case?
11 A. No. I reviewed her -- As reviewed
12 per my report, but otherwise, I've had no
13 connection with her.
14 Q. Is her report something that you
15 relied on?
16 A. A piece, yes.
17 Q. Are you aware that Betty Gillman
18 settled a civil lawsuit brought on behalf of
19 children who alleged malpractice for her diagnosing
20 parental alienation syndrome and that she was
21 subjected to disciplinary proceedings for
22 diagnosing parental alienation syndrome in
23 children?
24 A. Wow, no, I was not aware of that.
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1 Q. Now, you relied a lot on another
2 psychologist, a gentleman who had had his own
3 little problems with the licensing board, did you
4 not, Michael?
5 A. No. Jim Kelly.
6 Q. Dr. Kelly?
7 A. I did not rely upon him, I think you
8 said "a lot," so I would disagree with that.
9 Q. James Kelly, okay. Do you know Dr.
10 James D. Kelly?
11 A. I know him, yes.
12 Q. Do you consider him a friend?
13 A. No, I don't.
14 Q. Do you have -- What sort of
15 relationship do you have with him?
16 A. I met him when the both of us worked
17 at the Lebanon Correctional Center.
18 Q. When was that?
19 A. Let's see. I started there in the
20 fall of '97, and I believe he started in somewhere
21 in early to mid '98, and I work there for several
22 months in the same department with him until I left
23 toward the end of '98.
24 Q. How did he get involved in this case;
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1 do you know?
2 A. My understanding is that Dr.
3 (redacted) was referred to him by the Children's
4 Services social worker, at least that's what Dr.
5 (redacted) told me.
6 Q. Have you talked to him about this
7 case?
8 A. Dr. Kelly?
9 Q. Yes.
10 A. No.
11 Q. Now, to what extent did you rely on
12 Dr. Kelly in this case?
13 A. Very minimally.
14 Q. Okay. And how would you define -- Or
15 let me rephrase that.
16 What did you think that he
17 contributed that you thought was important in this
18 case?
19 A. I thought that his psychological
20 testing data was reliable, probably. I did not
21 feel that the concerns and issues about him would
22 have led him to falsify psychological testing data,
23 so I felt that it was probably valid, although,
24 that was a partially because it matched up with
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1 other testing data that had been conducted as well.
2 Q. And what did the testing data address
3 from your perspective?
4 A. Impulse control, psychological
5 stability, presence of any major mental health
6 questions, that sort of thing.
7 Q. Okay. But you would agree, would you
8 not, that that sort of psychological testing data
9 is not reliable to determine if someone molested
10 their children?
11 A. As there's absolutely nothing that
12 does that. That's why everything needs to be
13 considered together, and certainly different
14 psychological tests can contribute, but they cannot
15 be used exclusively.
16 Q. Because isn't it true that a lot of
17 sexual -- or men who sexually molest their
18 children, that their problem isn't "impulse
19 control"?
20 A. Correct.
21 Q. Okay. Now, I see on your CV and
22 whatnot that you profess to have expertise in
23 domestic violence; is that correct?
24 A. Yes.
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1 Q. Do you know if there's any
2 similarities between the dynamics of domestic
3 violence and the dynamics of sexual abuse of
4 children?
5 A. There are some, very definitely some,
6 similarities and there are some areas where they
7 are divergent.
8 Q. How are they similar?
9 A. Typically, not always, a perpetrator
10 of domestic violence and perpetrators of sexual
11 abuse show characterological problems, lack of
12 empathy, lack of a concern or adherence to social
13 rules, narcissistic features in their personality,
14 deceit, manipulativeness, et cetera.
15 Q. Okay. But specifically the dynamics
16 of the act of -- Well, let me back up a little
17 bit.
18 What is the motivation for a
19 perpetrator of domestic violence; what is it that
20 that person is seeking to achieve?
21 A. There's a difference of opinion as to
22 that, and there probably are differences from
23 person to person and case to case, but the general
24 consensus would be that that person is looking to
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1 assert control.
2 Q. Okay. And is that a typical reason
3 that men sexually abuse their children as well?
4 A. Both of those questions are so
5 complex and there are so many different types of
6 abusers and different, you know, what we
7 theoretically believe to be motivations or
8 characterological elements that attribute to, this
9 is awful hard to make an answer to that in a global
10 sense.
11 Q. Let me be more specific. Does the
12 professional literature, particularly Kathleen
13 Faller and Anna Salter, those other people that you
14 listed as I think you called them "Other Important
15 Titles," do you know if they discuss whether or not
16 there are men who sexually molest their children
17 specifically to punish their wives because of anger
18 and that these men typically are men who commit
19 domestic violence and that sort of thing?
20 A. Certainly, that is discussed in the
21 literature, you know. There's different opinions,
22 and I don't believe that there's any solid research
23 that can discern motivations, but it's certainly a
24 plausible theory that's been floated and ascribed
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1 to by many.
2 Q. Um-hmm. Do you have a professional
3 opinion as to whether or not Teresa (redacted) is
4 mentally ill or emotionally disturbed?
5 A. I cannot -- I don't have sufficient
6 data to diagnose her.
7 Q. Well, I think your report was
8 something like -- all put together I think we
9 counted 82 pages in the first report and there were
10 11 pages then, and that's accurate, that even with
11 all of this data reflected in all of these reports,
12 you have no diagnosis of her as being mentally ill
13 or emotionally disturbed, correct?
14 A. Child custody evaluators are not
15 always in a good position to make a specific
16 diagnosis, and most of the major writers in the
17 field would say that a specific diagnosis is not
18 highly relevant to the issue of custody. It's more
19 relevant to treatment questions. To get an
20 accurate diagnosis is important in forming some
21 sort of treatment. What's important in regard to
22 child custody issues and evaluations is behavior.
23 Q. So would you agree that men who
24 molest their children typically don't have a
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1 diagnoseable mental illness or emotional
2 disturbance, except to the extent that sexually
3 molesting your children is a behavioral diagnosis?
4 A. Right. I think that there's a
5 reasonable co-occurrence of mental illness, but
6 it's not by any stretch a strong correlation.
7 There are plenty of sexual abuse perpetrators who
8 show no signs of mental illness or anything
9 diagnosable, yes.
10 Q. And there are physicians who molest
11 their children, correct?
12 A. Absolutely, there are.
13 Q. Did you attempt to determine in this
14 evaluation if Teresa (redacted) was mentally ill or
15 emotionally disturbed?
16 A. I collected the information that had
17 been, you know, obtained by prior psychologists
18 indicating that there were problems in the
19 direction of effective regulation, possibly
20 personality issues, et cetera, but I did not
21 organize those into a diagnostic picture.
22 Q. So you didn't diagnose any
23 personality disorder with her, did you?
24 A. I don't believe I did, but you read
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1 the report, so it's in there if I did.
2 Q. Something -- I was just flipping
3 through these pages here, and I see you talking
4 about Dr. Kowalsky. Who do you believe has more
5 experience in treating sexually abused kids, you or
6 Dr. Kowalsky?
7 A. I don't know.
8 Q. Well, I believe you testified that
9 you --
10 A. I don't recall anyways.
11 Q. I believe you testified that you have
12 none, right?
13 A. I have treated children who have been
14 sexually abused. I have not treated the sexual
15 abuser, per se.
16 Q. Do you know whether Dr. Kowalsky has?
17 A. I don't recall much about her
18 professional career. I leave that to the trier of
19 fact to decide.
20 Q. But you did, in fact, recommend to
21 the Court that her relationship with her clients be
22 terminated, right?
23 A. Yes, I did. Not on that basis.
24 Q. How many times have you testified in
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1 court that you believe children have been sexually
2 abused?
3 A. I don't even know that I could answer
4 that question. I would never actually testify that
5 I know for certain either way, and I can't recall.
6 Q. Have you ever rendered an opinion in
7 any court of law that you believe --
8 A. That a child was at risk or might
9 have been molested, et cetera?
10 Q. Yes.
11 A. Yes.
12 Q. Do you know about how many times?
13 A. I couldn't begin to count.
14 Q. Do you know when the last time was?
15 A. Not off the top of my head, no.
16 Q. You were a founding member of the
17 Massachusetts Association of Guardian Ad Litems,
18 and that was in what year?
19 A. In '93, '94, something like that.
20 Q. Did you have a lot of responsibility
21 for developing the guardian ad litem program in
22 Massachusetts?
23 A. No.
24 Q. Let's see, you were appointed
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1 guardian ad -- Were you appointed guardian ad litem
2 in Massachusetts 60 times?
3 A. Yes.
4 Q. Do you know if there were other
5 guardians ad litems who were more active in the
6 program than you were?
7 A. Oh, yes, certainly.
8 Q. Okay.
9 A. Are you talking about MAGAL, Mass
10 Association of Guard Ad Litems; is that what you
11 mean?
12 Q. No. Who did more guardian ad litem
13 work than you did?
14 A. Oh, I would have no way of knowing
15 that.
16 Q. Did you happen to see the report that
17 the Massachusetts Senate did on that guardian ad
18 litem program?
19 A. I don't believe so. When was it
20 issued?
21 Q. Well, it was issued last year as a
22 result of a study that was commissioned by the
23 state Senate.
24 A. Well, I left Massachusetts in 1997
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1 and did not -- have never been active there since.
2 Q. So you're not aware whether or not
3 that report says that that guardian ad litem
4 program of Massachusetts was a disaster and exposed
5 abused children to continued abuse?
6 A. Oh, well, that's a pretty different
7 category. I think that that's referring to in the
8 Commonwealth of Massachusetts custody evaluators
9 are almost uniformly appointed, exactly what I did
10 in this case, except for instead of just being
11 chosen by order, I would be appointed as a guardian
12 ad litem.
13 But they're referring to probably, I
14 would imagine, the overall system which was charged
15 with protecting children, and those were usually
16 attorneys, and there were serious problems with
17 those attorneys.
18 Q. I'll send you a copy of it, but I
19 don't think that was just attorneys.
20 A. Sure, I'd be curious. But as I said,
21 I had no involvement with Massachusetts in that
22 sense since '97.
23 Q. Okay. Would you agree that
24 perpetrators of domestic violence also present
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1 themselves as very together and very calm and
2 appropriate in custody evaluations?
3 A. Oftentimes, not always.
4 Q. There are physicians who are
5 perpetrators of domestic violence, are there not?
6 A. Absolutely.
7 Q. And to what extent should domestic
8 violence in your opinion be considered in deciding
9 custody decisions?
10 A. Should be a very significant factor.
11 Q. And to what extent should it be a
12 significant factor? I mean, how should it weigh,
13 should the abuser get custody or not get custody or
14 should --
15 A. Well, I hesitate to make black and
16 white statements, but I would find it hard to
17 imagine a situation in which it would be in the
18 children's best interest to be put in the custody
19 of someone who -- a parent who had been abusive and
20 violent toward them or the other parent.
21 Q. Do you know whether or not there is a
22 considerable body of professional literature from
23 the American Psychological Association, the
24 National Council of Family Court Judges, the
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1 American Bar Association, APSAC, all saying that
2 there's a real problem in the country with abusers,
3 sexual abusers and domestic violence perpetrators
4 getting custody of their children?
5 A. Yes, and I concur. To me it's one of
6 the most significant problems facing the family
7 courts today.
8 Q. And that it is a very common
9 occurrence in this country for mothers of children
10 who have been sexually abused, because they try to
11 protect their children in custody cases, to end up
12 with supervised visitation with the abusers having
13 custody?
14 A. Typically, in my responsibilities as
15 a child custody evaluator, I am being attacked by
16 attorneys because I am advocating for women who are
17 in that position. This is the first time that I
18 have actually had someone come at me from the other
19 direction.
20 Q. But you would agree that that is a
21 problem nationwide?
22 A. I think it's the major problem.
23 Q. Right. Would you agree that very
24 often that a mother's anger at an abusive father is
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1 assessing children as to whether or not they've
2 been sexually abused. There are specific protocols
3 for that, there are techniques, there are methods.
4 One needs to have a great deal of practice and
5 expertise in doing that.
6 Q. Which you do not have?
7 A. I do not.
8 Q. Okay.
9 A. Most custody evaluators don't because
10 it's a very highly specialized area. Had I --
11 However, I am trained and fully competent and
12 capable of examining the larger context of the
13 custody dispute, the allegations, the timing, the
14 nature, the consistency, the plausibility, all the
15 factors that custody evaluators are responsible for
16 looking at to make a determination whether there's
17 a possibility that this was a false allegation or
18 not.
19 Now, had there been any confusion
20 about whether or not these -- If these children had
21 not been assessed by an expert previous to me, I
22 would have sent them there, but they had been
23 numerous times.
24 Q. Okay. What I'm trying to get is a
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1 specific answer to my question.
2 A. I know, but you're not going to get
3 it.
4 Q. I know, because I think you realize
5 the --
6 A. Because it's an inane question and
7 it's just a little trap.
8 Q. As I understand it, you say you're
9 not expert in assessing whether or not a child has
10 been sexually abused, in fact, but you are an
11 expert in assessing whether or not sexual abuse
12 allegations are false; is that a fair statement?
13 A. An incomplete statement, but fair in
14 its statement.
15 Q. You don't see that that makes no
16 sense?
17 A. Well, clearly, I see it makes no
18 sense to you.
19 Q. Okay.
20 A. But I think that it makes perfect
21 sense to someone who understands the overall
22 situation.
23 Q. Okay. Now, let's focus in on that.
24 Let me ask you this, what does the research show
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1 about the prevalence of false allegations and
2 sexual abuse allegations in the context of a
3 custody case?
4 A. They're extremely infrequent. It's
5 very rare.
6 Q. And what are the studies that have
7 been done that you have read?
8 A. Well, be a little difficult to quote
9 it off the top of my head. I believe that Barbara
10 Bode, which I referred these children to, is one of
11 her major areas of publication. There is David
12 Corwin, her prior colleague, who you presented
13 yourself on different issues. Those are the people
14 that I referred these children to, and I know
15 perfectly well, as they do, that these type of
16 cases are very rare.
17 Q. What is very rare?
18 A. I would hate to be, you know -- I
19 don't have every piece of data from the literature.
20 Q. I understand. But what is --
21 A. Less than 10 percent or something
22 like that.
23 Q. And I wasn't clear, I didn't mean
24 statistically what's the definition of rare, but I
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1 was just clarifying for the record.
2 A. Okay.
3 Q. What event is considered to be rare?
4 A. For example, Richard Gardner made a
5 claim that it's a common situation in child custody
6 disputes for false allegations of sexual abuse to
7 be made and also that allegations appeared. Well,
8 research shows that not only are allegations
9 infrequent, relatively infrequently made, but that
10 the number of them that are proved to be false are
11 extremely small.
12 Q. Okay.
13 A. So this type of situation is very
14 rare, though, it does exist and research shows
15 that.
16 Q. Okay. And you would agree with that
17 premises?
18 A. Yes, I would agree that it is rare.
19 Q. And when you say "it," being?
20 A. Most allegations are legitimate,
21 truthful or at least have some serious element of
22 truth to them.
23 Q. Okay. Now, did you assess (redacted)
24 (redacted) to determine if he was a sexual abuser
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1 of children?
2 A. I did not conduct a sex offender
3 evaluation on him. I referred him to our top
4 expert in our city on that.
5 Q. Who is that?
6 A. Stuart Bassman.
7 Q. Now, is it possible for a
8 psychologist to conduct an assessment using any
9 variety of tests or interviews or any kind of
10 psychological techniques to determine whether or
11 not somebody has sexually abused these children if,
12 in fact, the abuser doesn't admit that he did it?
13 A. Well, there are no psychological
14 instruments that would definitely answer that.
15 There are a number of procedures that can be
16 utilized, the majority of which had been at one
17 point or another -- As I remind you, I was -- There
18 were probably close it a dozen psychologists and
19 social workers who had been previously involved in
20 this case, so he had been evaluated on a number of
21 occasions, and I sent him to the top expert in the
22 field --
23 Q. Well, my --
24 A. -- just to make sure.
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1 Q. But my question is -- Well, let's
2 start from this because I tend to try to follow
3 things in sort of logical sequence and sometimes
4 I'm not clear.
5 You sent Dr. (redacted) (redacted) to Dr.
6 Stuart Bassman to answer what question?
7 A. I made the recommendation that he go
8 so that Dr. Bassman could monitor him and provide
9 treatment for him and let us know if he saw, Dr.
10 Bassman saw, any signs that this man might be an
11 individual who has or could sexually molest his
12 children. It says that in my report.
13 Q. Okay. Now, is it possible for a
14 psychologist to make that sort of assessment
15 through any variety of testing and interviewing if
16 the person doesn't admit to doing it?
17 A. Is it possible for us to determine if
18 someone's been a sexual abuse perpetrator
19 definitively through psychological clinical
20 instruments, interviews, et cetera; no, that's not
21 possible.
22 Q. In fact, I noticed in your library
23 that you have the Association for the Treatment of
24 Sexual Abusers, 1997, "Ethical Standards and
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1 Principles for the Management of Sexual Abusers,"
2 do you not?
3 A. Yes.
4 Q. Have you read that?
5 A. Um-hmm.
6 Q. You have to answer in words.
7 A. Yes.
8 Q. Okay. Do you know whether or not
9 that those ethical standards dictate that it is
10 unethical for a psychologist or anybody assessing
11 or treating an alleged perpetrator to render a
12 professional opinion whether or not that person
13 did, in fact, commit any particular act?
14 A. Could you restate that for me?
15 Q. Yeah. Do you know whether or not the
16 ethical standards and "Principles for the
17 Management of Sexual Abusers" published by the
18 Association for the Treatment of Sexual Abusers
19 takes the position that it's unethical for a
20 psychologist to render an opinion about whether or
21 not any particular person committed sexual abuse
22 based upon their evaluation, interviewing, testing
23 of that individual, if the individual doesn't just
24 simply admit that he did it?
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1 A. Well, I can only answer -- because I
2 don't recall the specifics of those guidelines,
3 that I reviewed them and found my work in this case
4 to be consistent with those guidelines in every
5 aspect.
6 Q. Well, do you think it's ethical for a
7 psychologist to evaluate a man who's accused of
8 sexual abuse and perform any variety of
9 interviewing, testing and clinical protocols on
10 that man and give an opinion that he -- based on
11 whatever amount of work was done, that the man was
12 unlikely to have committed a particular act?
13 A. The Ohio statute reads that a
14 psychologist will not make an opinion about an
15 individual without substantial professional
16 information on that individual, and it is -- My
17 behavior in this case has been consistent with the
18 guidelines of the State of Ohio, the American
19 Psychological Association and all other governing
20 bodies.
21 I believe that with substantial
22 professional information, which is what I had, that
23 I could ethically and appropriately make statements
24 as to the probability and the likelihood that the
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1 abuse had occurred, which is what I did. I did not
2 declare that it hadn't happened or that it had.
3 Q. So it's your professional opinion
4 that as a psychologist it is ethical for you to
5 give an opinion as to the probability that an
6 individual such as Dr. (redacted) committed or
7 didn't commit certain alleged acts based on your
8 evaluation as a psychologist?
9 A. Based on all of the information I
10 obtained, not just my own individual evaluation of
11 him. I mean, I would not make the recommendations
12 or statements that I had in regard to him based
13 simply upon my own interview of him. I had, as you
14 might remember reading, a rather lengthy report
15 with a lot of information. Based on that
16 information, I feel it was ethical and appropriate
17 for me to make the statements that I made.
18 Q. Do you believe as a psychologist that
19 it is your role to make assessments of people's
20 credibility?
21 A. It depends on the context. To make
22 an appropriate clinical assessment in the areas of
23 abuse perpetration where one of the hallmark
24 clinical symptoms is manipulation, denial, deceit,
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1 et cetera, then it becomes an important aspect of
2 your clinical assessment to look at external
3 consistency, plausibility, et cetera, so that the
4 question of the parties's credibility as
5 recommended by Phillip Stahl and all the others
6 that do evaluations becomes a component of it.
7 Individual judges differ as to whether or not they
8 will admit statements about credibility.
9 Q. Do you know what the law is in Ohio
10 on that?
11 A. No, I don't, off top of my head.
12 Q. Do you have the ability as a
13 psychologist to determine who's telling the truth
14 about something?
15 A. No, I don't. I can speak -- As a
16 psychologist, I can speak to questions of
17 credibility based on, you know, psychological
18 information, but I cannot make a determination as
19 to whether they are actually telling me the truth
20 or not in any one situation.
21 Q. Would you agree that men who sexually
22 molest children are usually very good manipulators
23 and con artists and can fool a lot of people?
24 A. As I stated previously, that's a
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1 hallmark feature, which is why it's important to
2 assess.
3 Q. Would you also agree it's typical for
4 men who sexually molest children to be able to pass
5 polygraph examinations?
6 A. I wouldn't quote the research, but
7 that would be my own anticipation, that yes, many
8 of them would be able to pass.
9 Q. Did you conduct any -- Let's break
10 down this. Okay. You had (redacted) (redacted), right,
11 he's the father; you have Teresa (redacted), she's
12 the mother; and you've got (the girl) (redacted) and
13 (the boy) (redacted), the children, right?
14 A. Um-hmm.
15 Q. You have to answer in words.
16 A. Yes. It's hard.
17 Q. Let's start with the children first.
18 Did you do any clinical testing, interviewing or
19 any clinical work whatsoever on (the girl) or (the boy)
20 to determine if they were sexually abused by (redacted)
21 (redacted)?
22 A. I made some very superficial attempts
23 to engage them in the conversation, a clinical
24 interview, around that topic, but felt it was
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1 inappropriate for me to press that subject further
2 with them.
3 Q. Okay. So the answer would be no?
4 A. Minimally, yes.
5 Q. So a superficial interview?
6 A. An attempt to begin -- Had they
7 responded openly, had they been responsive to me, I
8 would have continued, but given that they weren't,
9 I felt it would be harmful to them, that it would
10 be stressful to them and psychologically
11 potentially damaging to once again submit them to
12 further questioning about this topic.
13 Q. Okay. Now, did you do any clinical
14 testing, interviewing, psychological wizardry or
15 any other sort of psychological techniques? And by
16 wizardry, I mean this sort of panoply of clinical
17 protocols that are available to you, did you do any
18 of that with (redacted) (redacted) to determine whether
19 or not he had sexually molested the children?
20 A. Yes.
21 Q. And what things did you do that are
22 accepted as reliable techniques to determine if
23 this man molested his children?
24 A. I interviewed him. I reviewed prior
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1 MMPI testings of him. Let's see, that may be the
2 extent of it. The prior clinical records on him,
3 et cetera, I looked back on those, and then I
4 referred him to Stuart Bassman to be sure.
5 Q. To be sure what?
6 A. If there was any possibility that he
7 had done this, that he was being as closely watched
8 as one could be.
9 Q. Now, is there any literature,
10 professional literature, that can -- that says that
11 the MMPI is a reliable and valid technique to
12 determine if someone molested their children?
13 A. No. It's just one. There is no
14 instrument like that, there isn't one. Even penile
15 plethysmography, which is extremely rare, not done,
16 not available in this city, et cetera, is not a 100
17 percent accurate guarantee. There is really no
18 way. What we do to make some sorts of
19 determination is, we look at a large body of
20 information, including issues about credibility,
21 plausibility. An important component is looking at
22 the credibility and plausibilities of the
23 allegations, who made them, when they were made,
24 all those other things. We have no way of being
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1 certain in making a complete, 100-percent accurate
2 determination unless there's medical evidence.
3 Q. What is generally considered -- Well,
4 interesting you said "medical evidence." What
5 percentage of child sexual abuse cases have medical
6 evidence, what is the research there?
7 A. Very small.
8 Q. Okay. So would you agree that, if we
9 look and have to have medical evidence of sexual
10 abuse, that the vast majority of sexually abused
11 kids won't be protected?
12 MR. MASTRUSERIO: Objection to the
13 form of the question, assumes facts not in
14 evidence, but you can answer the question.
15 A. If I perceived your question
16 correctly, if we were to rely only upon the
17 presence of medical evidence to confirm the
18 presence of sexual abuse, it's my opinion that a
19 large number of children would then, therefore, be
20 exposed to continued sexual abuse or risk.
21 Q. Okay. Now, what does the literature
22 say about the most compelling or the most important
23 data -- Back up a little bit.
24 If you are going to determine if kids
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1 have been sexually abused by a parent, does the
2 literature say whether the most important data in
3 that regard comes from the accused parent, the
4 nonaccused parent or the children?
5 A. Does the literature speak to what
6 source of information you gave the most weight to,
7 would that be proper paraphrasing of your question?
8 Q. I think so.
9 A. I would say in my broad review of the
10 literature that there's some disagreement, though,
11 probably the majority of individuals would say that
12 we need to rely upon the accounts of the children.
13 That would be a component piece.
14 Q. Would you agree, then, that if you
15 want to find out if kids have been sexually abused,
16 that the focus has to be on the children rather
17 than the parents?
18 A. Depends on where in the process you
19 are. Not in this case, not at all.
20 Q. Because other people had done work
21 with the kids?
22 A. Children's Services had been involved
23 several times. Several professionals had already
24 evaluated these children. A very unqualified,
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1 inappropriate private investigator had already
2 contaminated the evidence with these children. You
3 know, it's the abuse of this process by attorneys
4 who can make it more difficult for children, you
5 know that. You know you put children in jeopardy
6 when you take this kind of tactic.
7 Q. When I take what kind of tactic?
8 A. The kind of tactic that you're taking
9 in this case.
10 Q. In the deposition?
11 A. Because when you undermine and when
12 you attempt to undermine creditable, plausible
13 work, then you're taking out the only tool that we
14 do have.
15 Q. Are you talking about yourself?
16 A. I'm just one.
17 Q. This deposition, by this deposition
18 I'm undermining some sort of --
19 A. Well, if you are willing to state
20 that you stipulate that I am an acceptable expert
21 in these matters and that you believe my work is
22 appropriate, that would be great.
23 Q. The first three questions of the
24 deposition proved to me that you're not, so I --
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1 A. You're not, either, so how would you
2 know?
3 Q. I don't know. I just came back from
4 training with the American Bar Association on how
5 to cross-examine --
6 A. So you're an attorney who knows how
7 to maybe undermine a psychologist who might be
8 easily intimidated or who might not remember every
9 last detail, that's what you are.
10 Q. No. I'm good at separating the wheat
11 from the sheaf, I'll put it like that.
12 MR. MASTRUSERIO: Gentlemen, let's
13 move on with the deposition.
14 Q. Okay. Now, do you know what the
15 professional literature says about whether or not
16 Child Protective Services when investigating
17 allegations of sexual abuse in a custody case
18 suffers from false negatives to any frequency?
19 A. I most certainly believe that they do
20 suffer false negatives as well as false positives.
21 I can't quote the literature exactly on incident
22 rate.
23 Q. Would you agree that the literature
24 says that within the legal system and the child
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1 protection system that very often it's very
2 difficult for mothers of kids who are in fact
3 sexually abused when there's a custody case to be
4 able to protect them because of the biases against
5 the mothers and the validity of the allegations?
6 A. I absolutely 100 percent agree with
7 that statement.
8 Q. Okay.
9 A. Which is why it's important for
10 lawyers not to exploit that.
11 Q. Well, do you know what the term
12 "paranoid" means?
13 MR. MASTRUSERIO: Gentlemen.
14 MR. DUCOTE: Let me get some water
15 here.
16 (Off the record.)
17 BY MR. DUCOTE:
18 Q. What does the professional literature
19 that you rely on say about the most important data
20 that comes from kids, other than the medical
21 evidence, which is rarely found?
22 A. Obviously, their statements.
23 Q. What else?
24 A. Behaviors that they might engage in.
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1 Q. Such as?
2 A. Although, the research is very
3 inconsistent and it's difficult to ferret out, but
4 there are numerous behaviors that tend to be
5 associated with children who have been abused
6 sexually.
7 Q. Such as?
8 A. Although, it's not a 100-percent
9 correlation, sexualized behavior, aggressive,
10 acting out, noncompliance with adult directives,
11 disorganized and agitated behavior, anxiety. In
12 fact, the laundry list is so long and it matches so
13 much what we see in also so many other diagnostic
14 syndromes that mostly the research agrees that you
15 cannot rely upon sort of a coincidence rate of
16 symptomatology to make an assessment.
17 Q. Right. But wouldn't you agree that
18 the literature does say that, while there are
19 nonspecific behavioral indicators such as
20 bedwetting, nightmares, anxiety, stress, acting
21 out, that particularly sexualized behaviors that
22 are performed by kids that are outside the range of
23 the sort of behaviors that you see in kids that age
24 is considered highly indicative of sexual abuse
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1 when the kids are reporting sexual abuse?
2 A. Well, it is, has much more
3 significance and importance. Unfortunately, we see
4 that children will do sexualized behaviors when
5 they are anxious and when they are caught in
6 custody conflicts and other things that can confuse
7 that patient, but certainly, that is a very
8 important factor.
9 Q. What literature says that kids who
10 are simply in the midst of a custody dispute engage
11 in sexualized behavior?
12 A. That's discussed widely throughout.
13 I'm sure you've read enough.
14 Q. I'm asking you.
15 A. I'd refer you to probably Elizabeth
16 Ellis would be a good one, Ney, Kuehnle. I mean,
17 all you have to do is listen to Sandra Hewitt and
18 you'll know that children engage in those types of
19 behaviors when they're anxious. They also -- By
20 the way, we have no way of really knowing because I
21 can't conduct research on it, but it's certainly
22 very reasonable and plausible to think if a child
23 has been subjected to a parent treating them as if
24 they were sexually abused, speaking with them in a
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1 very sexualized manner and emphasizing sexual
2 elements, that they may in fact start engaging and
3 displaying some of these same behaviors.
4 Q. And what literature --
5 A. Like you said, you can't study that
6 and there isn't, but it's been discussed as a
7 possibility in all of those same things I'm
8 citing. I'm surprised you don't know that.
9 Q. Maybe I don't know because maybe it's
10 not true.
11 A. Well, if you read it, then you'll see
12 that it is.
13 Q. Let's ask this, what sexualized
14 behavior do kids (the boy) and (the girl)'s age engage
15 in simply because they're in a custody dispute?
16 A. We don't have research that
17 specifically categorizes what behaviors occur under
18 what circumstances. We don't know that. The fact
19 that there are some mildly sexualized behaviors
20 being exhibited does not necessarily by any stretch
21 mean the child has been abused, and there's no way
22 to differentiate a custody conflict from false
23 allegations being propagated upon them consistently
24 over a period of time. We can't sort out the
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1 differences, which is why it's so important that
2 adults, children and the lawyers involved don't
3 contaminate the process.
4 Q. Well, let me ask you this. Did you
5 conduct any psychological testing of Teresa
6 (redacted)?
7 A. I reviewed extensive psychological
8 testing that had been conducted on her in the past.
9 Q. What psychological testing is
10 established in the literature to be able to
11 determine whether or not a mother is falsely
12 accusing the father of sexual abuse?
13 A. None.
14 Q. Now, wouldn't you agree that there's
15 a difference between doing a sexual abuse
16 evaluation and doing a custody evaluation?
17 A. Yes.
18 Q. And that if there are allegations of
19 sexual abuse that are valid, then the custody issue
20 then becomes moot, for example -- Let me rephrase
21 that.
22 A. Okay.
23 Q. If in fact Dr. (redacted) did molest
24 the children, okay? You know, you have to answer
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1 in words.
2 A. I wasn't answering. I was just --
3 Q. But still, those kind of things --
4 A. Yes, in that theoretical situation
5 you're asking me.
6 Q. Then if that determination would be
7 or would have been made, then would you agree that
8 there would have been no point in then doing a
9 custody evaluation to see which parent should have
10 custody because -- well, let me ask you that?
11 A. Yes, it would be inappropriate to
12 consider custody, giving custody to a sexual abuse
13 perpetrator. That's been established.
14 Q. When that has been established, what
15 in your opinion would be the proper disposition of
16 the case?
17 A. Had I received a referral of that
18 nature?
19 Q. Yes.
20 A. We're questioning who should have
21 custody, the proven sexual abuser or --
22 Q. Yeah.
23 A. I would say I'm not willing to
24 conduct such an evaluation. It's inappropriate.
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1 You'll have to handle that with the trier of fact
2 and make decisions about those matters.
3 Q. But is there any sort of clinical
4 protocol for what -- say if you have a father who
5 molests his child, the parents are divorced, what
6 sort of visitation and treatment would then be
7 utilized to further serve the best interest of the
8 children?
9 A. That would depend entirely upon other
10 factors. I can't imagine any circumstance where
11 unsupervised visitation would be appropriate. So
12 at the minimum, it would need to be supervised.
13 However, if concurrent with this sexual abuse the
14 father also was damaging in other ways and not
15 having an established relationship with the
16 children, et cetera, then I would be against any
17 kind of visitation whatsoever.
18 Q. Okay. Would you agree that, even if
19 there's supervised visitation, the father would
20 have to be in an appropriate treatment program?
21 A. Absolutely.
22 Q. Now, let's kind of jump off to this
23 topic of custody for a second. When you were doing
24 your custody evaluation, were you aware that Dr.
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1 taken as a reason by custody evaluators to
2 discredit them and assume that, because they're
3 angry, that they shouldn't be believed?
4 A. One of the most difficult problems
5 I've had in my work is convincing judges that a
6 mother who is angry and may be appearing even
7 irrational or upset, in fact, is reacting to the
8 abuse that she and/or her children have undergone
9 and she is, in fact, behaving appropriately.
10 Q. Would you also agree that mothers in
11 custody situations where the kids are being
12 sexually abused are in a damned if they do, damned
13 if they don't position; that if they don't act to
14 protect the kids, then they can be viewed as
15 neglectful, but if they do act to protect the kids,
16 then they can be viewed as vindictive, and that's a
17 problematic situation?
18 A. That's extremely problematic, and
19 that's why women in this community have a
20 professional like myself.
21 Q. Did you take notes of your sessions
22 or whatever discussions you had with (the girl) and
23 (the boy)?
24 A. (the girl) and (the boy)'s statements?
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1 Q. Yes.
2 A. I jotted down notes, yes.
3 Q. Do you have notes, handwritten notes,
4 of everything?
5 A. I have no handwritten notes.
6 Q. Did you take handwritten notes during
7 the course of your evaluation?
8 A. I don't believe I ever took
9 handwritten notes, no.
10 Q. What was your process for compiling
11 your data?
12 A. Typing.
13 Q. Well, but did you type as you
14 conducted the interviews?
15 A. Um-hmm. (Nodding head.)
16 Q. You have to answer in words.
17 A. Yes. Sorry. Much as she's doing
18 right now.
19 Q. And is your report the contemporary
20 typing of the interviews as it progressed or did
21 you take what you typed down and then put it all
22 together and synthesize it or what was the process?
23 A. My report is the product of a wide
24 variety of information.
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1 Q. But I'm just asking you about the
2 process.
3 A. Right.
4 Q. You told me every time you did
5 something, you had -- I take it you have a laptop?
6 A. Um-hmm.
7 Q. You have to answer in words.
8 A. Yes.
9 Q. So you sit there typing on your
10 laptop, right?
11 A. Yes.
12 Q. And then would it be that, when you
13 finished interviewing everybody, you just hit print
14 and this 82-page report came out?
15 A. No.
16 Q. Or did you have to edit, move things
17 around, and cut and paste or whatever?
18 A. Those notes and along with all of the
19 drafts of this report are professional work
20 products.
21 Q. Do you have those with you?
22 A. No, I don't.
23 Q. Will you provide those to me, please?
24 A. No, I won't.
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1 Q. And why is that?
2 A. They're professional work product and
3 your client signed a contract with me that they
4 would not be available.
5 Q. Well, can you specify specifically
6 what you are not making available?
7 A. Yes, my notes that you're referring
8 to that I typed out as I sat with them.
9 (Off-the-record discussion.)
10 BY MR. DUCOTE:
11 Q. When you went down to Ms.
12 (redacted) house to talk to (the girl) and
13 (the boy) --
14 A. Um-hmm.
15 Q. -- did you have at the time that you
16 talked with them your laptop or did you go back
17 after you interviewed in a different part of the
18 house and type into your laptop computer?
19 A. I believe that I recall that I
20 interviewed the children and I then came upstairs
21 and typed. When I interview children, I don't ever
22 type because I feel that it creates an unpleasant
23 or strange environment for them.
24 Q. Now, why would you -- Let me ask you
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1 this. Was this contract for this evaluation
2 negotiated or was it this is how it has to be done?
3 A. It was offered to them, and there's a
4 caveat at the end that, if they do not want to sign
5 this, that they do not have to, that they can
6 return to their attorney or court for further
7 direction.
8 Q. Isn't it true that one Massachusetts
9 court had declared your contract to be contrary to
10 public policy and unenforceable?
11 A. That's not true.
12 Q. That's not true?
13 A. Not true.
14 Q. Your contract has never been the
15 subject of litigation in Massachusetts?
16 A. That's a different question. Yes, it
17 has been the subject of litigation.
18 Q. And what was the issue of that
19 litigation?
20 A. The issue that was litigated was that
21 the party claimed that, because I was appointed as
22 a guardian ad litem, that my proffering of a
23 contract placed them under duress and that was
24 their claim.
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1 Q. And what did the Court rule?
2 A. The Court never ruled.
3 Q. Well, didn't the Court not find --
4 Did any Court ever find that your contract was
5 unenforceable or any clause of your contract was
6 unenforceable as contrary to public policy?
7 A. My contract -- None of my contracts
8 have ever been brought before or presented to any
9 court of law.
10 Q. Okay. So are you saying that, if Ms.
11 (redacted) would have said, look, Dr. Borack, I'm
12 not going to agree about this clause with work
13 product not being accessible, that you would have
14 said, fine, we'll cut that out and you would have
15 still done exactly what you did in this case?
16 A. No. I would have said that, well,
17 then we need to discuss that further, maybe bring
18 this issue before the Court, et cetera. I'm not
19 under any legal obligation to provide an
20 evaluation. Those are the terms that I put forth
21 for my willingness to participate.
22 I explained them to her verbally and
23 went through the entire contract with her
24 verbally. I asked her if she had any questions. I
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1 gave her the opportunity to review it, which I
2 believe she did. I pointed out to her that she did
3 not have to sign it. She signed it.
4 Q. Well, so in other words, if she
5 wouldn't have signed that, you wouldn't have done
6 the evaluation?
7 A. If she had not signed the report --
8 my contract at that point, I have in the past, I've
9 been willing to do one session where I would or we
10 would ink out that one clause and initial it, and
11 then I would proceed with the interview so that we
12 wouldn't lose that, make the person have to come
13 back or et cetera, until we could resolve how we
14 would deal with it.
15 Q. But it's your position regarding the
16 accessibility of the parties to your "work
17 product" --
18 A. Professional work product.
19 Q. -- that if they don't agree to waive
20 their access to your professional work product, you
21 will not do the type of evaluation that the Court
22 wanted done in this case; is that what you're
23 saying?
24 A. My actions speak for themselves. I
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1 presented her with a contract and she signed it.
2 Q. That's not my question. My question
3 is different because she's going to tell you right
4 now, and we'll do it on the record, that she now
5 wants you to produce the work product.
6 MS. (redacted): Yes.
7 MR. DUCOTE: Do you understand --
8 And do you want Dr. Borack to produce the work
9 product of all of his notes of all of the sessions
10 that were done?
11 MS. (redacted): Yes, I do.
12 THE WITNESS: Well, then you'll have
13 to reissue a subpoena and we'll take the matter to
14 the Court.
15 BY MR. DUCOTE:
16 Q. But my question was, going back, is
17 if she had taken this position and had not signed
18 that provision of the contract, would you have
19 still done the evaluation?
20 A. I can't answer that question.
21 Q. Have you ever taken that position
22 before in a case, hey, look, if people will not
23 waive my -- their access to my "work product," then
24 I'm not going to do the evaluation?
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1 A. I've never refused to do an
2 evaluation based on that, no.
3 Q. Has anybody ever refused to sign it
4 and you have still done the evaluation?
5 A. Have I ever had -- Yeah, I've had a
6 party through their attorney, you know, decide to
7 ink out large portions of my contract, and I after
8 much debate decided to go ahead, as I have the
9 prerogative to do.
10 That's why I can't answer that
11 question now. I don't know if in retrospect, had
12 she refused, would I have agreed to go ahead anyway
13 or not, I can't answer that question now.
14 Q. Let me be a little more specific
15 because I think you answered a question, but it
16 wasn't my specific question.
17 Have you ever had a situation where
18 you were going to do a custody evaluation and you
19 presented the parties with your standard
20 contract -- And as I appreciate your standard
21 contract has this clause about waiving access to
22 the "work product", right?
23 A. Um-hmm, yes.
24 Q. Have you ever had a situation where
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1 parties said, no, I want that part out of the
2 contract, I will not waive my access to your "work
3 product"?
4 A. Have I ever had a party say that?
5 Q. Yes.
6 A. No.
7 Q. Okay. Now, what -- Is there anything
8 in the professional ethical guidelines for
9 psychologists that address a patient's or a
10 client's access to the notes that you take in the
11 course of your evaluation?
12 A. Specifically to the notes that I
13 take?
14 Q. Yes.
15 A. I don't believe so. I believe that
16 there's plenty of reference to the records in
17 general, but --
18 Q. But you're required to take notes as
19 a psychologist, are you not?
20 A. I'm required to keep a record.
21 Q. Well, you're required to make a
22 record of --
23 A. Keep and maintain a record.
24 Q. Okay. Why is it that you take this
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1 position regarding -- Well, let me ask you this.
2 What do you define as your work
3 product?
4 A. When I am sitting taking these notes,
5 I am blurting out anything that might come out in
6 my head. I might observe something. I might have
7 a thought that might not be true that I might want
8 to check up on later, things that would make these
9 hypothesizes or potentially changeable. So those
10 along with my drafts of reports are professional
11 work products, and they do not constitute -- they
12 are not officially a part of the record.
13 And I feel the main reason, as you
14 asked, that I don't feel it's wise to hand those
15 over, though, ultimately I would, is because
16 attorneys will hemorrhage their clients for three
17 or four days' worth of additional depositions and
18 testimonies over that material when it's really
19 pointless, but it's there and I could release it.
20 Q. But that's your --
21 A. I think it's irresponsible to release
22 professional work products, just as I would not
23 hand you three or four different drafts of my
24 report. When I reach my conclusion, I write my
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1 report and that is my official statement.
2 Q. Well, I'd point out that we have a
3 couple of versions of or two versions of your
4 library materials.
5 A. No, I don't.
6 Q. Well, I do have two, I have Exhibit 3
7 and Exhibit 4.
8 A. But those aren't --
9 MR. MASTRUSERIO: Objection. The
10 client already said that he updates it from time to
11 time.
12 MR. DUCOTE: I understand, but I'm
13 just saying --
14 MR. MASTRUSERIO: Excuse me, I'm not
15 finished. Counsel is getting argumentative with
16 the witness, and I'll point out to counsel that
17 he's only got about 15 more minutes.
18 MR. DUCOTE: I'm quite aware of the
19 passage of the time.
20 BY MR. DUCOTE:
21 Q. Let me ask you this. Is the term
22 "work product" addressed anywhere in the ethical
23 standards for psychologists?
24 A. Professional work product?
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1 Q. Yeah.
2 A. I couldn't answer that question off
3 the top of my head.
4 Q. Now, when you say the "official
5 record," what are you talking about, the official
6 record of what?
7 A. Of my work in this case.
8 Q. Well, what do you mean, official;
9 there's a court file, right?
10 A. Um-hmm. Well, it's been
11 well-established, and I'm not a lawyer, so I'll
12 leave it up to you lawyers, that for example,
13 clinicians can and do sometimes keep what are
14 considered to be thought notes, you know, their
15 musings, their questions that may be about their
16 own emotional reactions, maybe they're thinking,
17 boy, I'm feeling angry with this client, but maybe
18 that's me because I've gone through something, and
19 those are not considered a professional part of the
20 record.
21 I don't keep those with the record
22 and they've never been with the record. I don't
23 consider them part of it. I simply submit that you
24 submit a subpoena and we'll take that before the
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1 Court. If the judge orders me to release them, I
2 certainly will.
3 Q. Did you bring the official record
4 with you?
5 A. Yes, I did.
6 Q. Can I see that, see what you
7 brought.
8 A. (Indicating.)
9 Q. Okay. Is it your position that
10 you've never made a transcription error between
11 your work product and the final report that you
12 write up in the report?
13 A. Could you repeat or rephrase that?
14 Q. Yeah. Have you ever made a
15 transcription mistake between the "work product"
16 and the final report?
17 A. Have I ever improperly, incorrectly,
18 accidentally transcribed or carried something
19 forward?
20 Q. Yeah, right.
21 A. Are you asking if I've never done
22 that?
23 Q. Have you ever done that?
24 A. I could not, I could not represent
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1 that I've never made a mistake, no.
2 Q. Well, would you agree that the
3 accuracy of the stuff in your report is an
4 important question?
5 A. Yes, I would.
6 Q. And that's something that would be
7 appropriate for everybody to be concerned about,
8 right?
9 A. Yes.
10 Q. And would you agree that the best way
11 to check the accuracy of what you have written
12 would be to double check it against your original
13 notes?
14 A. Not if they're sloppy, basic, memory
15 products, that's all they are, they're memory
16 products. They're no more discoverable than my
17 memory.
18 Q. Well, you're not an attorney and I
19 guess --
20 A. Well, that's the position I'm taking,
21 and I will submit, of course, to any decision made
22 by the judge.
23 Q. Okay. Have you ever talked to Dr.
24 Kowalsky?
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1 A. Yes, I have.
2 Q. How many times?
3 A. I believe I spoke with her twice.
4 Q. And did she tell you her opinion
5 about whether the kids have been abused by Dr.
6 (redacted)?
7 A. Yes. Her statements to me are
8 contained in my report.
9 Q. Um-hmm. Did you participate in the
10 Catholic marriage court proceedings involving the
11 annulment of the marriage between Dr. (redacted)
12 and Teresa (redacted)?
13 A. No, I did not. I received materials,
14 but I had no idea why I received them, so I kept
15 them.
16 Q. Did you respond to them?
17 A. No, I did not. I don't believe I did
18 anyways, but I don't recall at the moment. I
19 received them after I wrote my report, I believe.
20 Q. Did you have an opinion as to whether
21 or not there's any evidence whatsoever in this case
22 that these children had been molested by (redacted)
23 (redacted)?
24 A. Can you rephrase that question?
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1 Q. Do you have an opinion as to whether
2 there's any evidence that supports the --
3 A. Any evidence that supports, got you.
4 Q. -- the contention that (redacted)
5 (redacted) molested these children?
6 A. There was some evidence supportive of
7 that contention, yes.
8 Q. And what was that evidence?
9 A. Well, apparently the children had
10 made statements at various times to psychologists
11 and social workers who were involved, so there was
12 a question as to whether or not those might be
13 legitimate statements on their part.
14 If you could put that back in the
15 order that you got it, it would be quite helpful
16 for all of us in the future.
17 Q. I'm going to try to do that,
18 actually. Do you know the different types of
19 categories of men who molest children, do you know
20 what they're called?
21 A. There are several different
22 typologists that have been put out from different
23 professionals. So that would depend on what system
24 you're talking about, and I don't have all of them
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1 broken down and memorized, but I'm aware of the
2 differences, yes.
3 Q. Do you know what Nicholas Groth, G R
4 O T H, the typology he used?
5 A. Is he the one who divided them first
6 by child and adult and then by molester versus -- I
7 think he used the word rapist or aggressive versus,
8 you know, seducing, but I don't remember which one
9 he is.
10 Q. Well, he talked about fixated
11 offenders and regressed offenders.
12 A. Oh, yeah, right.
13 MR. MASTRUSERIO: What's the second
14 word you used, fixated versus what?
15 Q. Regressed.
16 Do you know what the difference is
17 between fixated and regressed offenders?
18 A. Yes.
19 Q. What is that?
20 A. A fixated offender is an offender who
21 displays a fairly consistent preference and intent
22 in terms of molesting behavior. Regressed offender
23 is someone who has not a necessarily history or has
24 offended in the past, but under certain
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1 circumstances has "regressed" and engaged in those
2 type of activities.
3 Q. And what typically does the regressed
4 offender cyclically attempt to accomplish by
5 molesting his children?
6 A. Well, that's theoretical.
7 Q. Well, what does the literature talk
8 about that?
9 A. The desire to be competent, to be
10 viewed -- you know, by offending against a child,
11 there's a younger, more innocent, less powerful, I
12 believe. There are so many different theories
13 proffered, but I think that's what you're talking
14 about. Gratifying, you know -- I'm sorry, ask me
15 that question again.
16 Q. Yeah. What is it that the regressed
17 offender attempts to cyclically achieve by
18 molesting his children?
19 A. I don't recall specifically what the
20 literature states about that.
21 Q. Okay. Does the fact that a child in
22 the presence of a father to observers displays
23 affection, appears to enjoy being with the father
24 and interacts with the father mean that the child
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1 was not sexually abused by the father?
2 A. No.
3 Q. And why is that?
4 A. Because we know from cases in which
5 abuse has been clearly substantiated that the
6 children behave in that fashion with the offender,
7 the perpetrator.
8 Q. Does the fact that the father shows
9 an interest in the school activities, in the
10 extracurricular activities, et cetera, mean that
11 that he didn't molest his child?
12 A. No.
13 Q. How typical is it for men who molest
14 their children to use as a strategy to defend
15 themselves against the charges to seek primary
16 custody of the children?
17 A. I couldn't speak to the incident
18 rate, but I would -- I am certain that it happens
19 and happens frequently.
20 MR. DUCOTE: Okay. Go off the
21 record.
22 (Off-the-record discussion.)
23 MR. DUCOTE: He's going to read and
24 sign. And you don't have any questions?
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1 MR. MASTRUSERIO: No.
2 MR. DUCOTE: That concludes the
3 deposition.
4
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8 MICHAEL BORACK
9 DEPOSITION CONCLUDED AT 3:58 P.M.
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1 C E R T I F I C A T E
2 STATE OF OHIO :
3 : SS
4 COUNTY OF HAMILTON :
5 I, LISA CONLEY, RMR-CRR, the undersigned, a
6 duly qualified and commissioned notary public
7 within and for the State of Ohio, do hereby certify
8 that before the giving of his aforesaid deposition,
9 the said MICHAEL BORACK was by me first duly sworn
10 to tell the truth, the whole truth and nothing but
11 the truth; that the foregoing is the deposition
12 given at said time and place by the said MICHAEL
13 BORACK; that said deposition was taken in all
14 respects pursuant to agreement; that said
15 deposition was taken by me in stenotypy and
16 transcribed by computer-aided transcription under
17 my supervision; that the transcribed deposition is
18 to be submitted to the witness for his examination
19 and signature; that I am neither a relative of nor
20 attorney for any of the parties to this cause, nor
21 relative of nor employee for any of their counsel,
22 and have no interest whatever in the result of the
23 action.
24
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1 IN WITNESS WHEREOF, I hereunto set my hand
2 and official seal of office at Cincinnati, Ohio,
3 this
4 day of , 2001.
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8 MY COMMISSION EXPIRES: LISA CONLEY, RMR-CRR
9 JULY 29, 2004. NOTARY PUBLIC-STATE OF OHIO
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1 COURT OF COMMON PLEAS
DIVISION OF DOMESTIC RELATIONS
2 HAMILTON COUNTY, OHIO
- - -
3 (redacted) (redacted), :
PLAINTIFF, :
4 -VS- : CASE NO. DR9702118
TERESA (redacted), :
5 DEFENDANT. :
- - -
6
Lisa Conley, RMR-CRR, a court reporter,
7 first duly cautioned and sworn, testifies and
affirms that MICHAEL BORACK, a witness herein, was
8 notified by forwarding a letter to Dominic
Mastruserio, Esq., via U.S. Mail on Monday,
9 November 12, 2001, that the transcript was ready
for review and signature in the offices of Spangler
10 Reporting Services.
11 Within seven days (pursuant to Rule (30)E
of the Ohio Rules of Civil Procedure), MICHAEL
12 BORACK, a witness herein, did not present signature
of said deposition.
13
The original transcript is now being
14 tendered into the hands of Richard Ducote, Esq.
15 Further affiant sayeth naught.
16
________________________________
17 Lisa Conley, RMR-CRR
18 Sworn to me and subscribed in my presence this
day of , 2001.
19
20 _______________________________
Susan M. Sharp
21 Notary Public: State of Ohio
My commission expires: 08/04/2004
22
23
24
Spangler Reporting Services, Inc.
PHONE (513) 381-3330 FAX (513) 381-3342
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"I know no safe depository of the ultimate powers of society but the people themselves; and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion."
Thomas Jefferson, 1820
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You are 1/4 through. That was quick. 