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Home: Workers: Useful Articles: Confronting precedent

From: 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.

1. Masson, J.M. (1984) Freud: The Assault on Truth - Freud's Suppression of Seduction Theory. London: Faber & Faber, p.15.

2. Masson, J.M. (1984), ibid. p.23.

3. Tardieu, A. (1878 edn) Etude medicolegale sur les attentats aux moeurs, p.62, quoted J.M. Masson, 1984, p.23.

4. Masson, J.M. (1984) p.25.

5. Freud, S. (1896) The Aetiology of Hysteria. Further on Freud's seduction theory, see Scutt, Jocelynne A. (1979) Sexism and Psychology: An Analysis of the 'Scientific' Basis of the Corroboration Rule in Rape. Hecate 35-48; Ward, Elizabeth (1985) Father-Daughter Rape London: Women's Press.

6. See generally Wilson, Elizabeth (1977) Women and the Welfare State. London: Tavistock.

7. See generally Ungerson, Clare (ed.) (1985) Women and Social Policy. London: MacMillan. The same is true for Australia. See generally Baldock, Cora, v. and Cass, Bettina (1983) Women, Social Welfare and the State. Sydney: Allen & Unwin.

8. See, for example, Jeffreys, Sheila (1985) The Spinster and Her Enemies Feminism and Sexuality 1880-1930. London: Pandora Press.

9. The basic thesis was a misogynist one: all that needed to be put 'right' in terms of male-female sexual relations was, in the sexologists' views, women's attitudes toward heterosexual sexual activity, and women's reaction to male and other family members. If only women were not such 'prudes' or 'wowsers' went the theory, then all sexual relations would be positive. As long as women remained prudish then, in this view, they would overreact to the discovery of sexual relations of their male relatives with children of the family. According to the sexologists this overreaction caused difficulties if children engaged in sexual relations with father or other family members. It created trauma that would be absent (so said the sexologists) if there was no discovery, or on discovery women could react positively, seeing the 'value' to child or children of the sexual activity. Yet again, women are to blame for sex problems, not men who exploit their authority position.

10. The 19th and early 20th century Women's Movement certainly saw this truth and protested about it. Members of the Movement were classed as prudes and their own sexuality called into question. However, they were not against loving sexual relations. These women were against exploitive, abusive and authoritarian or dominating sexual relations, and most particularly were opposed to the sexual exploitation and abuse of children and young persons.

11. See, for example, Ward, Elizabeth (1985) op. cit. Scutt, Jocelynne A. (1983) Even in the Best of Homes Violence in the Family. Melbourne: Penguin; O'Donnell, Carol and Craney, Jan (1982) Family Violence in Australia. Melbourne: Longman Cheshire; Virginia Wolfe was one child of the times who suffered sexual abuse at the hands of a step-brother (Gerald Duckworth), a truth which was concealed for many years, until Quentin Bell wrote of it publicly in his biography of her.

12. Resistance to the acceptance of women's and girls' reality remains. However, it is instructive that government reports now written are in support of the truth that sexual molestation of children crosses class, ethnic, racial and other lines; that incest is real for many young women (and some young men) and girls (and boys); and that the psychological damage arising from incest is real. See, for example, NSW Government Child Sexual Assault Task Force (1984) Community Consultation Paper, Government Printer, Sydney; NSW Child Sexual Assault Task Force (1985) Report, Government Printer, Sydney; Community Welfare Victoria, (1986) Child Sexual Assault Discussion Paper (written by Lesley Hewitt, consultant). Melbourne: CSV; a similar report has also been produced for government in South Australia. There has, however, been a backlash from (some) male lawyers-for example, in the setting up of the Criminal Bar Association at a conference in Adelaide in 1985 the stated purpose by its founder was to counter the 'influence of feminists' in the reform of rape and other sexual offences laws in various Australian jurisdictions. At the Bar Association Conference in Brisbane in 1988 a particularly vitriolic attack against 'feminist influence' in such reforms was launched by a former Chief Justice of Australia. Gibbs, who at, the time had been appointed by the Federal Government to look at Federal criminal laws with a view to advising on necessary reforms. See also Crisp, Lydall (27 September 1988) 'The Child Abuse Backlash' The Bulletin, 50-56.

13. Hale's Pleas of the Crown, vol. 1, p.636.

14. SeeWatson, R. and Purnell, H. (197 1) Criminal Law in New South Wales. Sydney: Law Book Company, pp. 120-131, SS340. (Although the cases cited relate to males involved in the crime of buggery as accomplices rather than as victims: R v. Tate [1980] 2KB 680; Davies v D [1954] AC 378. It is indeed instructive that rules surrounding sexual offences, particularly rape, often have parallels in the area of accomplices-as if a victim in a complaint of rape somehow is placed on a similar footing with a person who engaged in a criminal act with another person. See Scutt, Jocelynne A. (1984) Consent versus Submission: Threats and the Element of Fear in Rape, 13(1) 52-76. University of Western Australia Law Review.)

15. Hale's Pleas of the Crown, vol. 1, p.636.

16. See, for example, Deland, Cathy (1987) Paper presented to South Australian Magistrates Conference. (Copy held by present author.) In the paper, her Worship gives an example akin to the problem that could have arisen in the case referred to by Matthew Hale. She writes:

• It is important when dealing with children to ensure that you [as Magistrates] understand their terminology. It is no use insisting that a child calls a vagina or a penis by those names unless they are familiar with the word. Always allow them to use their own expressions.

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However, one needs to be very careful to ensure that one knows exactly what is being referred to. I was involved in a case with a young boy about 11 [years of age]. His statement of witness said that the accused put his penis up his bum. The police officer when he interviewed the Defendant put to the Defendant 'X says you put your penis into his anus'.

There was no medical evidence to support any allegation of anal penetration and the doctor said he would have expected such evidence. Accordingly, on that interpretation, there was medical evidence which could have been contradictory to what the child said. But after further questioning I established that what the boy called his 'bum' was in fact the cleft between the cheeks of his backside. He did not mean his anus at all.

A similar problem often arises when young girls refer to their 'vagina'. What is medically a vagina and what a child calls her vagina [may be] two completely different things. Often young children have no comprehension that there is an internal canal and they simply refer to the entire area between the uppermost part of their legs as their vagina. So, when penetration is in issue, that must be clarified. (p. 11)

17. See generally 3A Wigmore on Evidence (1940 edn) p.737, SS.924a.

18. See commentary Herman, Lisa (1981) Father-Daughter Incest. Cambridge, Massachusetts: Harvard University Press, p.11.

19. Menninger, K.A. cited 3A Wigmore on Evidence (1970 edn) p.744, SS.924a; Monkmoller, 0. cited ibid. p.745, SS.924a; Lorenz, F.W. cited ibid., p.744, SS.924a; see also Healy, W. and Healy, M.T. cited ibid., p.742, SS.924a.

20. 3A Wigmore on Evidence (1940 edn), p.737, SS.924a.

21. Williams, Glanville (1982) Text Book of Criminal Law. London: Sweet and Maxwell.

22. See for example re women mainly being raped by persons whom they know, Wilson, Paul (1978) The Other side of Rape. University of Queensland Press,St Lucia; see Henry, Lee (1980) Hospital Care for Victims of Sexual Assault, in Rape Law Reform Scutt, J.A. (ed.) Canberra: Australian Institute of Criminology. On the issue of Glanville William's picture of the crime, according to this scenario, rape is mostly not rape -it is mostly a case of women playing some extraordinarily foolish game. According to his view, there is a problem of 'communication'-for we all know that when a woman says 'no', she means 'yes'! In fact, recent research shows that women mean 'no' when they say 'no', and men know women mean 'no' when they say 'no'. Subjects in a study by Byers, E.S. and Wilson, P. (1985) Accuracy of Women's Expectations Regarding Men's Responses to Refusals of Sexual Advances in Dating Situations. International Journal of Womens Studies 8, 4, 376-387 listened to audio tapes of sexual interaction in a dating situation in which the level of sexual activity, and the type of refusal message by the women, were varied. The mode used was a plain 'no', and a 'no', together with an excuse, and a 'no' with the reason being given that the relationship was not sufficiently developed. Males were instructed to mentally role play that they were the male, and females were instructed to mentally role play that they were the female. The single most common interpretation by both males and females was that the female's' no' response meant .no'. The level of sexual intimacy involved and the type of refusal had no effect on interpretation of what the female's refusal meant. Men and women subjects did not differ in how they perceived the woman's refusal and females were accurate in their expectation about how men viewed the female refusal.

23. R v. Graham (1910) 4 Cr.App.Rep.218; Watson, R. and Purnell, A. (1971) Criminal Law in New South Wales Sydney: Law Book Company, vol. 1, p. 103.

24. See generally Ligertwood, A. (1976) Failure To Warn Criminal Cases Where Corroboration May Be Required. Australian Law Journal 50, 158-164; R v. Graham (1910) 4 Cr.App.Rep. 218.

25. Further on this issue see Scutt, Jocelynne A. (1987) Sexual Assault and the Criminal Justice System in Chappell, Duncan and Wilson, Paul (eds) The Australian Criminal Justice System (2nd edn). Sydney: Butterworths, pp.57-83.

26. See, for example, South Australian Criminal Law and Penal Methods Reform Committee (1976) Report on Rape and other Sexual Offences. Adelaide: Government Printer; Ploscowe, M. (1951) Sex and the Law. New York (Ploscowe was a member of the Criminal Law Advisory Committee set up to take part in the drafting of the model of the Penal Code). This is clearly revealed in the Report of the Victorian Law Reform Commissioner (1976). Rape Prosecutions (Court) Procedure Rules and Evidence. Melbourne: Government Printer, where the rape complaint accepted as genuine and those accepted by the police as false were taken to be appropriately classified, without question or criticism, or even analysis-critical or otherwise. The Royal Commission into Human Relationships (1979) in vol.4 of its Final Report Canberra: AGPS, reported:

• Forty-four experienced Queensland police officers were interviewed. Twenty-eight said that when they first received a rape complaint, the possible falsity of the complaint was uppermost in their minds; [we] do not have precise figures for complaints rejected by the police, but the Victorian Rape Investigation Squad report that of 22 complaints during its first five months of operation, only 12 were accepted as rape cases. This is consistent with the Victorian Law Reform Commissioner's analysis into the job books of four districts, covering the period between January 1974 and November 1975, which showed that 50% of rape complaints were accepted as genuine: p. 178.

See also Note (1973) Rape Laws: Sexism in Society and Law California Law Review 16, 919-969; Bohmer, Carol and Blumberg, R. (1974) The Rape Victim and Due Process. Case Comment 80.

27. See Watson, R. and Purnell, A. (1971) Criminal Law in New South Wales. Sydney: Law Book Company, pp.120-121, S8.340.

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28. See, for example, Sacks, Albie and Wilson, Joan Hoff (1980) Sexism in Law. Robinson, Martin, London; Mathews Jane (1982) The Changing Profile of Women in the Law. Australian Law Journal 56,12 634-640.

29. See, for example, Maher, Laurence, W. and Sexton, Michael (1982) The Legal Mystique. Sydney: Angus & Robertson, Griffith, J.A.G. (1985) The Politics of the Judiciary (3rd edn). London: Fontana Press.

30. See, for example, McCabe, Patrick, W. and LaFranchi, D.J. (1982) Report of Inspectors appointed to investigate the particular affairs of Nabillus Pty. Ltd. and 922 other companies, Melbourne: Government Printer, (Victoria Parliament Parliamentary Paper No. 24-28 vol. 2; Editorial comment (1983) Crime Commission Debate Reform 5,1 5-7; Reid, Alan (21 September 1983) Liberal Gloom over Tax Evasion Demons The Bulletin pp.30-31; Royal Commission on the Activities of the Federation Ship Painters & Dockers Union, (1984) Final Report, Canberra: AGPS vol. 1; Redlich, Robert Frank (1984) The Costigan Royal Commission in Annual Report of the Special Prosecutor 1983-1984. Canberra: AGPS; Royal Commission into the Activities of the Federated Ship Painters & Dockers Union (1983) Interim Report No. 5, vol. 1, Canberra: AGPS; Royal Commission on the Activities on the Federated Ship Painters & Dockers Union (1984) Final Report vol.2 (Investigatory Techniques). Canberra: AGPS; Royal Commission on the Activities of the Federated Ship Painters & Dockers Union (1983) Interim Report No. 3, Canberra: AGPS.

31. R v. Boyd [1984] WAR 236.

32. R v. Boyd [1984] WAR 236, 237.

33. 237.

34. 238.

35. Quoted R v. Boyd [1984] WAR 236, 242-243.

36. 239.

37. 241.

38. 241.

39. Quoted R v. Boyd [1984] WAR 236, 240.

40. 240.

41. See, for example, papers presented at the Alternative Dispute Resolution Conference, Australian Institute of Criminology, Canberra (2124 July), Mugford, Jane (1986) Alternative Dispute Resolution. Canberra: Australian Institute of Criminology.

42. Letter dated June 1984 received by the present writer. (In the interests of confidentiality, personal names and place names have been changed.) The immediately following quotation comes from the same source.

43. See Scutt, Jocelynne A. (1983) Even in the Best of Homes - Violence in the Family. Melbourne: Penguin Books The two next immediately following quotations come from the same source, pp. 210 and 84 - 85.

44. See Crisp, Lydall (17 September 1988) The Child Abuse Backlash. The Bulletin p.52; Privatisation of Justice: Power Differentials, and Medication in Alternative Dispute Resolution. Mugford, Jane (ed) Canberra: Australian Institute of Criminology.

45. On this issue see, for example, Editorial (1986) County Court Judge Queries Family Judges Views on Child Abuse Australian Law News, p. 9; also study cited at note 47.

46. Letter dated 31 July 1986 held by the present writer.

47. Study carried out by Julie Stewart and Marion Brown of the Women's Legal Centre of NSW, 9 Carroll Street, Lidcombe, NSW 2141, Australia. In South Australia the Family Court in 1988 assigned one judge to deal solely with custody and access cases involving allegations of child sexual abuse. See Crisp, Lydall (27 September 1988) Child Abuse Backlash. The Bulletin pp. 50 - 54. In 1987 Julie Stewart found the first case of access being denied by the Family Court in New South Wales in a case involving child sexual abuse.

48. Personal communication to the present author, July 1985.

49. See sources at note 12 and Criminal Code, Evidence Act and other Acts, Amendment Bill 1988 (Queensland).

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50. It is vital that in seeking to redress the balance in relation to the rights of victims of sexual crimes, the rights of accused persons not be over-ridden. However, as previously stated, it is clear that the rights of accused persons in sexual offences have been interpreted at a far wider level than the rights of accused persons in relation to other offences. It is notable that in relation to sexual offences, women are most often the victims. It is here that the law seems to be able to accommodate far more avidly rights of accused persons which abuse the rights of the victims. Where men are more likely, or equally likely, to be victims of crimes, the law is less eager to bend to extending privileges to accused persons. For a review of legislative initiatives ensuring that rights of accused persons are preserved, while at the same time working effectively to protect the rights of victims of sexual offences see Note (1985) The Testimony of Child Victims in Sex Abuse Prosecutions: Two Legislative Innovations Harvard Law Review 98, 806; Note (1981) Parent-Child Incest: Proof at Trial without Testimony in Court by the victim. Michigan Journal of Law Reform 15, 1-41.

51. A survey of proposals for reform or introduction of reforms in the area of child sexual abuse shows that the concentration has been on the giving of evidence by children under about 12 years of age. Less (sometimes no) attention has been paid to the problems surrounding child sexual abuse cases and to the court system where victims are above this age, and particularly where victims are in the age range 13 and up to about 15 or 16 years of age. See generally Harrison, Nicholas (1986) Child Sexual Assault-Social and Legislative Change Law Society Journal 26. Yet it is notable that if 'danger ages' can be selected out, these appear around three, four and five; and 11, 12, and 13. Child sexual abuse can occur at any age, just as women and girls generally are vulnerable to rape and other sexual assault at any age. On this issue, see, for example, Scutt, Jocelynne A. (1983) Even in the Best of Homes-Violence in the Family Melbourne: Penguin Books; Wilson, Paul (1978) The Other side of Rape. St Lucia; University of Queensland Press. With rape, all women and children are vulnerable. Where exploitation and abuse of authority are concerned, children, adolescents and young women are particularly vulnerable to varying authority figures-father, teacher, uncle, family friend, and so on.

52. The Queensland proposals defined 'special witness' in broad terms, to include:

• a child
• a person who, in the court's opinion:
• would, as a result of intellectual impairment or cultural differences, be likely
• to be disadvantaged as a witness; or
• would be likely to suffer severe emotional trauma; or
• would be likely to be so intimidated as to be disadvantaged as a witness if required to give evidence in accordance with the usual rules and practice of the court.

The definition of 'special witness' and the provisions about evidence raised questions of the perception by the criminal justice system and legislatures of the capacity of children (and in the Queensland case, other 'special witnesses') to cope with court process. They reveal, simultaneously, a lack of understanding of the rights of victims of alleged criminal offences. 'Protective' legislation of this type should render women, in particular, wary. Who is to be classed as 'likely to be disadvantaged as a witness' due to 'cultural differences'-is it wrong to be suspicious that Aboriginal women, for example, may be likely to be shunted off to a video room without an opportunity to confront this white male attacker? (The provisions extend to all offences.) All women are vulnerable as being classified as 'likely to be so intimidated' or 'likely to suffer emotional trauma' so to be refused or denied the right of confrontation with their sexual abuser.

53. Relevant factors would appear to be the broad discretion granted to police in not carrying out investigations or prosecutions of various crimes; the fact that incest cases in most jurisdictions, as least in Australia, are required to have permission of a superior judicial officer - the Director of Public Prosecutions or the Attorney-General, before a prosecution can go ahead. Notably, a man who has sexually molested or otherwise abused his child could be prosecuted for offences such as rape or unlawful carnal knowledge. However, there does seem to be some reliance on the part of authorities on the fact that provisions exist requiring permission for prosecutions to go ahead for incest. Where there may be a reluctance to pursue these crimes, this means that delays occur and eventually those who have been prepared to give evidence are no longer prepared to do so, or have been discouraged. The 'corroboration rule' also enables police to escape from prosecuting these particular crimes. Notoriously, women who approach the police to have action taken against their husbands who have sexually abused their children are told that without 'corroboration' no prosecution can go ahead. Investigation shows these women receive a definite impression, whether explicit or implicit, that 'corroboration' means an eyewitness-and that a fellow child who is a victim is not sufficient to corroborate another child's evidence whether or not capable of understanding the oath. There is also a lack of attention paid to possibilities in terms of medical evidence being corroborative, or other elements of corroboration being present.

54. Provisions exist for courts to be closed under certain circumstances. It is notable that in all discussions of closed court provisions, there is a concentration upon matters relating to 'morals' or sexual issues. For a brief commentary on these provisions in Australia see Scutt, Jocelynne A. (1984) 'Ward and Kelly, Summary Justice - West Australian commentary by PM. Nichols; Victorian commentary by Nash, Gerard; Tasmanian commentary by Sikk, E. and Matherson, I. R., Law book Co. Ltd (1983)' ANZJ Criminology 17,280-283. Those advocating closed courts for sex crimes should always remember that a 'closed court' contains numerous personnel-12 members of a jury; a judge, at least one court attendant, a judge's associate, two counsel on either side. Those who are likely to give most support to a victim- women from a rape crisis centre, for example- may not be present in a closed court, and may be unlikely (at least in present courts) to be permitted by the judge to remain.

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