The marathon litigation surrounding the case of Poppi Worthing, the 13 month old infant who died in hospital in December 2012, has finally come to an end. Mr Justice Peter Jackson confirmed his conclusion this week that Poppi’s father sexually assaulted her in the hours before her death. The case has triggered some to call for the criminal standard of proof to be lowered in cases involving child sex abuse.
This case brings to mind the death of 10 year-old Charlene Makaza in New Zealand. On the evening of January 5, 2007 she returned home after a day out with her family, and went to bed. The next morning, she was found unconscious in bed in a pool of diarrhea. She was rushed to hospital, where doctors tried unsuccessfully to resuscitate her. Owing to what were said to be evident anal injuries, treating physicians developed a theory that her uncle and adoptive father, a veterinary surgeon named George Gwaze, had anally raped and then tried to suffocate her.
Mr Gwaze was arrested and tried twice for her rape and murder. On the first occasion in 2008, he was acquitted. The Crown appealed and, in a legal first for New Zealand, the Supreme Court there overturned the acquittal. So Mr Gwaze faced a retrial. The jury acquitted Gwaze again, after fourteen hours’ deliberation.
There are important differences between his case and that of the Worthington family. Charlene, a migrant from Zimbabwe, had HIV. She was never prescribed anti-retrovirals. She had a history of being unwell; in fact, her bodily systems were slowly collapsing under the onslaught of HIV-infection. When Charlene was brought into hospital, doctors (who had never seen such a seriously sick child with untreated HIV before) did not understand what they were dealing with. They misinterpreted signs of a prolapsed anus, part of physical deterioration caused by advanced HIV, as evidence of traumatic injury caused by a sexual assault. The real cause of her death was infection. To make matters worse, forensic scientists then discovered some miniscule fragments of Gwaze’s sperm on her underwear.
In this instance, Gwaze’s wife confirmed that she would hand-wash family underwear, which would explain the apparition of her husband’s sperm on Charlene’s underwear. The case has been written up by Professor Felicity Goodyear-Smith, who assisted the defence team in their hunt for experts, in Murder That Wasn’t: the Case of George Gwaze.
Back to Poppi. The family was large, and the home overcrowded. The mother has had seven children, by four different fathers. Her eldest girl was adopted. Poppi, the youngest, was one of twins. Three other elder girls had one bedroom, and two boys slept in the couple’s bedroom. Poppi slept alone in a box-room (it is not clear why). Mr Worthington finally moved in with the family in September 2011.
Her father claimed that he was awoken by a cry and found her sitting in her cot, in a rigid state. He removed her nappy and informed her mother, who was downstairs. He took her into his bed, and then found her to be limp. He carried her downstairs and tried to revive her, while her mother called an ambulance. The police were alerted and also arrived. A paramedic noticed a mixture of blood and faeces on the stretcher sheet, after Poppi was taken into hospital. Her aunt stated that she threw away a nappy, which had a lot of runny diarrhea in it. The receiving doctor, a locum whose first language is not English, noticed some blood “dribbling” from her anus, where some small tears and bruising were found on post-mortem. It’s unclear how much blood loss there was.
After death, Poppi’s father was taken to the police station and swabbed. DNA testing later found some of Poppi’s DNA on the shaft (but not the tip) of his penis. He sought to explain this by pointing out that he had used the toilet whilst she was being treated in the hospital.
At the retrial (if that is what it was), three experts disagreed with Dr Armour, the pathologist who did the post-mortem, and who maintained throughout that this was a case of anal assault. The post-mortem did not show any sign of upper gastric tract bleeding. Equally, there was no finding that Poppi had died of massive internal injuries, of the kind inflicted on the Delhi gang rape victim in 2012. There was no diagnosis of haemorrhage, or shock.
Poppi’s death remains a mystery. However, this has not stopped scare mongering by the child-protection lobby, including a call by the Children’s Commissioner for the criminal standard of proof to be lowered, in cases involving child sex abuse.
This is a recipe for confusion. Not every death can be explained. Not every allegation of assault can, or should be provable beyond reasonable doubt. This does not mean the justice system is defective: merely that some cases are intractable.
Barbara is a barrister practising at 1 Gray's Inn Square. She specialises in public and administrative law; human rights & civil liberties; and professional discipline and regulatory law. Her practice includes mental capacity and court of protection work, judicial review, inquests, healthcare law, professional discipline and employment law.