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Confronting Precedent and Prejudice
Child Sexual Abuse in the Courts
By Dr. Jocelynne A. Scutt

Reproduced here with the Authors kind permission
From the Book Understanding and Managing Child Sexual Abuse.
R. Kim Oates (ed) 1990
W.B. Saunders; Harcourt Brace Jovanovich, Publishers.
No part of this article may be reproduced in any way without the express permission of the author.

Where it is acknowledged that action must be taken in accordance with criminal justice principles, what is compelling about the current moves for reform is that they are concentrated upon such questions as how it can be made easier for young children to give evidence say by way of audiotape, videotapes, or behind a two-way mirror. Some difficulties are immediately discernible.

In South Australia and New South Wales reports have proposed changes including videotaping of child witness' evidence. In Victoria these proposals have also been considered. In Queensland in 1988 proposals were put forward for the amendment of the Criminal Code, the Evidence Act, and related Acts to deal more adequately with sexual offences, and in particular with sexual offences involving children. The Evidence Act was to be amended by introduction of a new section 93B covering the evidence of 'special witnesses'. Special procedures were proposed, including a power in a criminal court to make orders of its own motion or on application by a party to a criminal proceeding that, where a special witness (including a child under 12 years of age), is to give evidence:

• the person charged can be excluded from the room in which the court is sitting, or be obscured from the view of the special witness (when the witness gives evidence, or is required to be in court for any other purpose)
• while the special witness is giving evidence, all persons other than those specified by the court be excluded from the room in which the court is sitting the special witness give evidence in a room:
• other than that in which the court is then sitting; and
• from which all persons other than those specified by the court are excluded
• a person approved by the court be present while the special witness is giving evidence or is required to appear in court for any other purpose in order to provide emotional support to the special witness
• a video tape of the evidence of the special witness or any portion of it be made under such conditions as are specified in the arder and that the video taped evidence be viewed and heard in the proceeding instead of the direct testimony of the special witness
• a person appointed by the court communicate to the special witness the questions of the court or any party to the proceeding

An Order could be made to exclude the person charged from the room where a special witness gives evidence only if there is provision (by way of an electronic device or otherwise) for that person to see and hear the special witness during the giving of the evidence. If videotaping of a special witness' evidence is to be undertaken, the amendments meant other persons could be excluded from the court or room where the taping is done. However, where the person charged is ordered to be excluded in this circumstance, if the trial is by jury the accused is to be permitted to see and hear the videotape before it is shown to the jury unless provision is made (by means of an electronic device or otherwise) for the accused to see the special witness and hear the evidence during the making of the videotape.

With the making of a videotape of a special witness' evidence, the new provisions meant that if the court orders a person be appointed to communicate to a special witness questions of the court or any party to the proceeding, the court is entitled, under the proposals, to:

• empower the person appointed not to put a question that, in her or his opinion, will adversely affect the health of the special witness or will not be understood by the special witness
• then make a ruling on the question can be put, and if so, the way in which it can be put
• give such directions as it thinks fit concerning the functions of the persons appointed to communicate the questions to the special witness

Yet are such proposals sound? In the case of child sexual abuse or exploitation, a child is taken advantage of by a person in a position of authority. The child is frequently told lies by the perpetrator. The trust the child has in that person (and very possibly in other adults and authority figures) is encroached upon, even destroyed. The child stands in the relationship in a position where he or she is unable to exercise any autonomy. The child is deceived by the adult who professes his 'love' for and 'caring' of the child, while at the same time exploiting and abusing that child. The perpetrator frequently issues a series of threats, many of which are designed to force the child into 'accepting the sexual abuse and exploitation', and which remove autonomy from the child. The child may be told 'Mummy likes this, and you should like it too' thereby placing the child in a position where she or he believes the mother is somehow implicated or condoning. Another approach is to say 'if you tell anyone about this, you'll be sent to a home', or 'if you tell your mother about this, she won't like you any more' or 'if you tell anyone about this I won't like you any more', or 'I'll send you away'. This puts the child in a powerless position: the child does not have the latitude that should attach to childhood, a sphere of certainty, an assurance and security to which a child is entitled.

With videotaping provisions, what is apparent is that yet again the child is placed in a position, by an authority or authority figures (the criminal justice system, the personnel within it particularly the judge and the person doing the video interview) of being deceived, of lacking autonomy, certainty, security and the assurance of childhood. Is the child to be told that a videotape is being made of her or his evidence? Or is it that the child should not be told a videotape is being made (the camera being concealed) because a video camera may impinge on the child's consciousness, frighten her or him, or make the child likely to act in an artificial rather than a natural way? If concealment is the path taken, the child is deceived about the nature of the interview.

Deception also arises with questions being put to the child, through the court-appointed interviewer, by an accused person or his or her defence counsel, or by the court. In the Queensland proposal, the idea was that a videotape should be made with defence counsel, accused behind a two-way mirror, and an electronic linkup between defence counsel and the person putting questions during the video interview to the child (or other special witness). Is the child to be told that questions are indeed being put by someone other than the person who, ostensibly, is conducting the interview with the child? If not, then again the child is being deceived by authority. Importantly, the immediate deceiver is the interviewer who presumably is chosen specifically because of a rapport with the child, or with a brief to build such a rapport. Just like the abuser or exploiter, any such 'rapport' is built on a trust which is misplaced.

Where the proposal is that the child gives evidence in court with the accused person being removed from the room, or hidden behind a screen, is the child to be told that the accused is in fact behind the screen, or that the accused has been removed from the room, but is looking at the child through a two way mirror? It may be more disconcerting to the child to have a screen erected in the courtroom, which would very likely be a makeshift arrangement, relatively intrusive and obvious in today's courtrooms. Is the child to be informed that the accused is sitting behind a two-way mirror and therefore has the child fully in view, where he or she cannot see him? At least if the child has the accused person fully in view the child is aware of the accused and knows the parameters of his presence where he is sitting, how he is sitting and what restraints he is under (for example, the rail or rails of the dock where he sits or stands). Knowing that a person is concealed behind a screen or two-way mirror may raise fears in the child's mind of just what the accused might do, just when the accused might suddenly break out from behind the screen or crash his way through the two-way mirror. Yet not telling the child the accused is there is again deceit on the part of yet another authority figure, a person whom the child should be able to trust. How, under these circumstances, can the child have any confidence in the justice system, or in those whose ostensible role it is to help, reassure, treat fairly, deal with justly?

The response may be that the child has no cause to know that he or she is being or has been deceived by the criminal justice system, interviewer or court authorities into giving evidence on a videotape; into answering questions that have been directed truly by somebody external to the room in which the videotape is being made, and not solely by the persons whom that child believed was conducting the interview and from whom the child believed the questions to be coming independently; into making a permanent record (or as permanent as videotape can be) of the question and answer session. But it is nonsense to suggest that if these factors are concealed from the child, the child will never learn of the deception. Children do not remain children. A three year old grows up. A 10 year old eventually becomes 20, 30, 52. The trauma may indeed be great where a child, upon growing up, learns that he or she was deceived in this way, and that somewhere in the court archives or elsewhere lies a videotape interview of the child about the sexual molestation, abuse, exploitation. And anyway, whether or not the child can or does discover the deceit, is deceit at and in the making of the videotape acceptable in the justice system?

Who owns the videotape? What will be done with these when they have been used in court proceedings and are no longer relevant? How many copies will there be? Does the child or child's custodian have the only copy? Does the child or child's custodian have any one of the copies made? In one Australian state it has been suggested that some videotaped interviews with child victims of sexual assault are being used by police for training purposes. What are the rights of the child over the videotape created specifically and purely around the child's story, and the child being victim of sexual abuse by another person? Typed interviews are kept on file in the ordinary course, but a videotape (especially one created in deceptive circumstances), seems more graphic and more disturbing to the child who grows up to discover its making and its continuing life.

And what of the child who in fact wishes to confront the accused person, who wishes to see the accused person when he or she, the child, is giving his or her evidence. This is not fanciful. Children are capable of indicating their wishes, and some have expressed, and expressed strongly, such a wish. Is the child's autonomy again to be ignored?

The proposals are open to criticism, whatever the motivation of the proponents. (And motivation in the compass of 'protection' is always suspect. Women in particular, so often victims of 'protection', 'chivalry' and 'protective' legislation should recognise this.) It is vital that the negative nature of the court system be overcome so that children are more readily able to give their evidence, whilst at all times being mindful of the proper rights of accused persons.(50) But the problems outlined cannot be ignored. Even if these can be overcome it is extraordinary that there should apparently be a belief, at least in some quarters, that these sorts of measures alone are what is needed to correct the system.(51) There is a crucial avoidance of other issues, and perhaps the basic issues. Not only children under 12 are sexually abused; not only children experience real difficulty in dealing with the legal system; children alone are not disadvantaged by antediluvian or anachronistic precedents; biases and prejudice, fear of authority, acquiescence to dominance are real problems for most (or all?) victims of sexual abuse and exploitation.

What of the children of 13, 14 or so who are being sexually abused by fathers, or otherwise sexually exploited in family setting or otherwise and who would be called upon to give evidence in the traditional setting: it would be unusual if provisions were suggested to be made for them to give their evidence in untraditional ways, and indeed that is not generally being suggested.(52) What of the difficulties the legal system has for all victims of child (and adult) sexual abuse? What has to be asked is why are those cases, where the problems of the three, four and five-year-old giving evidence do not arise, not generally coming into the criminal courts? Other factors must be operating to keep them out.(53) And even if these cases were coming in, there is no assurance they would be dealt with as meritorious: they would continue to confront a legal system which adheres to unconscionable precedent, age old prejudice, lack of neutrality (particularly in relation to women and girls), and class bias. Until these factors are addressed, and judges, magistrates and lawyers working within the system are required to undergo training raising their consciousness to the level of reality of child sexual abuse and other forms of sexual abuse and exploitation now being accepted in other disciplines, the court system will not operate as it should, in acknowledging clearly to the accused that children and young women are not for sexual exploitation, and to the child and young woman (as well as the general community) that same unequivocal message.

There can be no doubt that the legal system as it currently is, inadequate to deal with child sexual abuse, particularly where the aggressor is the father or other relation of the child, or even a family 'friend'. Yet it is equally clear that current efforts to deal with the inadequacies of the legal system are inappropriate, not thought through, or ill designed to deal effectively with the problem of child sexual assault. The inadequacies are not peculiar to this area of sexual abuse; they are not limited to children.

The most compelling issue to be faced is the line of attack being taken on child sexual exploitation, in times that women in particular have become outspoken about sexual assault and other violence against women, demanding and enforcing a reassessment of the reality of these crimes. In the past women were forced into silence, or where women spoke, the words were ignored or denied by those in authority. The Women's Liberation Movement process of consciousness-raising meant that many women came together, talking of sexual and other abuses suffered at the hands of men, as adults and as children. This discussion meant that women realised they were not alone, as victims, in the abuse. Rather, many women were victimised in this way, and many women survived, despite it. The recognition of sexual assault as a universal issue of concern to all women, with effects on all women, rather than a personal problem for individuals raped or molested, prompted changes in various disciplines. It uncovered the silences of children currently undergoing sexual abuse.

This uncovering has not led to all, or even many crimes of child sexual abuse (or, for that matter, rape and sexual assault of adult victims) being dealt with publicly, through the courts. Rather, the effort has been to hide the cases away in counselling sessions, or in closed children's courts or 'private' family courts. Where cases are allowed to come into the criminal justice system, a considerable effort is being expended to have these cases heard in closed court, or otherwise, covered up', the reality of the child's hurt concealed.(54) Yet the privatisation of child sexual abuse in the (so called) public arena simply duplicates the problems of child sexual abuse in the privacy of the home.

Child sexual abuse is not a private matter. It is a matter for community concern, and for the community through the justice system to recognise as detrimental to the whole of society. Turning child sexual abuse into a personal, individual problem in (what should be) the 'public' arena compounds the personalised, individualised problems of child sexual abuse within the family. There is no question but that the criminal justice system is not the whole answer to sexual exploitation and abuse of children, young or older. Steps taken in the public arena of the criminal courts must be matched, and more, by steps taken in the public arena of the Parliament, through laws designed to effect equal rights and economic independence for women and men so that children are less likely to be in, or remain in, abusive situations; it must be matched by efforts in the area of funding and resources to ensure that children's refuges are established to provide positive support for those running from incest and other sexual abuse; it must be met with real efforts to end inequalities in wealth, power, income, access to jobs, services and other aspects of our society, so that the power differentials upon which exploitation of women and children is based are eliminated. However, without a firm, clear commitment through the criminal justice system to acknowledging the wrong of child sexual abuse, the need for aggressors to confront their wrongdoing, and the essential requirement that the child (and other victim) of sexual exploitation and assault is vindicated by a pronouncement through the criminal courts of the responsibility of the aggressor for his or her acts and the lack of responsibility of the victim and survivor, child sexual abuse will continue, and society will continue to condone even encourage that continuance.

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