Children in the legal system

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This article is written for women and assumes a male offender, however SECASA acknowledges that both men and women can be survivors of sexual abuse and that offenders can be male and female.

by Jan Breckenridge and Moira Carmody.

Reproduced here with the Publishers kind permission
Appeared in crimes of violence: Australian response to rape and child sexual assault. 1992. Allen & Unwin
No part of this article may be reproduced without the express permission of the publisher.

The legal system plays a vital role in the protection of children. The law provides a framework in which child protection work can, take place, and allows for coercive intervention wherever this is necessary to protect a child, whether through care and protection proceedings or through the prosecution of suspected offenders. It endeavours to safeguard the rights of both the children and adults, by ensuring that legal sanctions are only invoked where there is appropriate proof of the matters alleged. It also protects children and families from the despotic benevolence of which child welfare authorities have sometimes been guilty.

In recent years, however, the legal system has been widely perceived as failing to protect children. Most attention has been focused upon the criminal justice system, in cases where child sexual assault has been alleged. Rules of evidence and procedure which in another age were seen as essential, to protect a suspect's rights, have been attacked as violating the rights of victims, especially young children. Courts have not been accustomed to dealing with such young (and crucial) witnesses; still less have they been used to taking such evidence seriously. The new awareness of child sexual assault, from child welfare professionals and the wider community, has led to demands for changes in the law and in the attitudes of legal personnel. Such calls for change have often been met with resistance. Common law protections which have evolved over centuries are not lightly to be abandoned, and the legal profession has needed to be convinced that changes to law and procedure serve the interests of justice.

Structural changes, however, are only part of the answer. Just as important perhaps is the fostering of respect and cooperation between lawyers and other professionals, and the sharing of different perspectives and insights. The means by which a paediatrician or social worker diagnoses child abuse cannot always satisfy the lawyer for whom proof is not the same as the alleged offender. The child complainant can rarely recall specific details of any one act of sexual intercourse from among the many which she has come to regard as part of family life.

However, the accused is entitled to know the case he has to meet. The child must be able to supply sufficient details of the circumstances surrounding each offence charged against the accused. These factors are capable of influencing the testimony of the child so that she or he appears vague, evasive and is easily contradicted. These are traits which are also indicative of an untruthful witness and juries are invited by defence counsel to draw that conclusion.

Corroboration

It is against this background that the corroboration warning came to apply to sexual assault proceedings. Corroboration, according to the law, is evidence from a source other than the complainant which tends to confirm both the allegation of sexual assault and that it was the accused who was the assailant. Medical evidence is capable of supporting the complainant's evidence that she was sexually assaulted. It is rarely capable of establishing the identity of the assailant, unless the prosecution has access to a sample of hair, blood, skin or semen from the accused with which to compare like material taken from the complainant or the scene of the assault. The accused is under no obligation to provide such samples. Corroboration of the complainant's evidence is therefore uncommon.

The rule sprang from an assumed knowledge of the female psyche and the fact that sexual intercourse invariably takes place in private:

"... there is often a very great temptation to a woman to screen herself by making a false or exaggerated charge and supporting it with minute details of evidence of a kind which the female mind seems particularly adapted to invent. Unless therefore, the story of the prosecutrix is corroborated, it becomes a mere question of oath against oath, and although the law does not in these cases technically require corroborative evidence judges are in the habit of telling juries that it is not safe to convict the prisoner upon the unsupported statements of the woman. (Wills 1902)"

And further:

"... human experience has shown that in these courts, girls and women do sometimes tell an entirely false story which is very easy to fabricate, but extremely difficult to refute. Such stories are fabricated for all sorts of reasons, which I need not now enumerate, and sometimes for no reason at all. (R v Henry and Manning 1968 Cr. App. R. 150 at 153)"

Some of the reasons for the fabrication of such stories are, according to Heydon, that a woman may be 'frustrated and unconsciously (desirous of) sexual experience of (may be) afraid of men (and) ... may desire notoriety on the basis that it is better to be raped than ignored'. The usually formidable skills of the most able crossexaminer are apparently not sufficient to demonstrate to a Jury when 'some bizarre motive of this kind is operating' (Heydon 1975).

A practice developed whereby judges warned the jury against accepting the complainant's evidence unless they had subjected it to the most careful scrutiny. The passage of time saw the warning harden into what is commonly thought of as the traditional form, namely that it is dangerous to convict on the uncorroborated evidence of the complainant. The jury were further told that, while they must give full weight to the warning, if they came to the conclusion that the complainant was telling the truth, they were entitled to convict the accused even if there was no support for her evidence. The warning applies equally to the evidence of the male or female complainant, even though it was originally formulated with women in mind.

In 1989 the Australian High Court recognised the invalidity of such a warning:

"The main problem is that the universal proposition embodied in such a rule is simply unjustified. Particularly in cases of sexual assault within a family unit where there are likely to be powerful influences favouring concealment rather than complaint, neither wisdom nor experience be it judicial or otherwise justifies the unqualified proposition that, in any case, where the evidence of the complainant is uncorroborated about any element of the offence, it would be dangerous to convict on that uncorroborated evidence."
(Longman v. The Queen 64 A.L.J.R. 73)

In New South Wales, Victoria, South Australia and Western Australia it is now a discretionary matter for the trial judge whether to give a warning or not. This is a welcome and long overdue adjustment to the laws of evidence. Any adherence to the traditional form of the warning, particularly the reference to danger, perpetuates the myth in the minds of the jury and in the community at large that sexual assault complainants as a class of witness are suspect.

When the sexual assault complainant is a child, other doubts come into play. Assumptions about the suggestibility of children and their tendency to blur the line between reality and imagination may not be well founded. Juries assess child witnesses without the benefit of the knowledge gained through recent studies in child development. Current research indicates that children are no less accurate than adults in reporting eyewitness events which are of special significance to them. Nor are they less capable of recalling details in response to an open-ended question, when allowed free recall. The older the child the more descriptive the response and there is a corresponding resistance to suggestion from about the age of four (Goodman et al. 1984; Goodman & Michelli 1981; Marin et al. 1979; Johnson & Foley 1984; Berliner 1985; Goodman & Helgeson 1985; King & Yuille 1987; Goodman et al. 1989).

Evidence of complaint

The second rule of evidence, which applies only to sexual assault proceedings, allows evidence of complaint to be given before the jury by the person who heard it. The complaint must be made at the earliest reasonable opportunity and be spontaneous i.e., not in response to questioning. Evidence of complaint cannot be used by the jury to determine whether or not the offence occurred. It can only be used to demonstrate the complainant's consistency.

The law assumed that a woman who had been sexually assaulted would raise a 'hue and cry'. Indeed, the law originally assumed that any victim of an assault would do so, but there were powerful reasons why a woman whose marriage prospects had been ruined by a rape would refrain from complaint.

While the law no longer looks for evidence of prompt complaint by victims of other types of assault, it continues to insist that absence of or delay in complaint by a sexual assault complainant is something which the jury can take into account when deciding whether to believe her or not.

The New South Wales legislature introduced a provision which obliges the trial judge to direct the jury, where delay in or absence of complaint is suggested, that there may be good reasons why a complainant hesitates or refrains from making a complaint. The former direction, viz. the jury, should take into account a failure to complain or delay in complaint in determining whether to believe her, may nevertheless also be given.

A law which was formulated for adult victims who were presumed to appreciate the consequences of complaining or not complaining could not be less appropriate to children or to people with an intellectual disability. The direction applies in exactly the same form regardless of whether the alleged sexual assault is committed in a domestic context or not. The courts have observed that when sexual assault occurs in the home, there are more reasons in favour of not complaining than in favour of complaining (Longman v. The Queen).

Conclusion

In conclusion, the application of these laws of evidence is no longer justifiable, if it ever was. The basis upon which they relied, that is, a tendency on the part of female complainants to falsely accuse innocent men of rape, has never been supported by anything other than the say so of men themselves. That is not to say that people accused of sexual assault are less entitled to the protections afforded by the law to accused people generally. The circumstances of the alleged offence may give rise to concerns about the credibility of the prosecution's main witness, but these are matters for counsel to comment upon in their respective addresses to the Jury. This is the procedure adopted in every trial of a nonsexual offence.

A judge is also permitted to comment on the evidence in the course of the summing up to the jury and to express a view about the evidence, but the jury is always told to disregard that view if it does not agree with their own. It is customary for Judges to impress upon a jury that where there is only one witness to the commission of a crime, the evidence of that witness should be carefully considered before a verdict of guilty is brought in. This does not imply that the witness is unreliable. There is no reason in principle why this general procedure should not be sufficient for trials of sexual offences, without any further special directions.

Bibliography

Berliner, L. (1985) 'The Child Witness: The Progress and Emerging Limitations' University of Miami Law Review vol. 40

Bonney, R. (1985) 'Crimes (Sexual Assault) Amendment Act 1981 Monitoring and Evaluation, Interim Report No. 1' Bureau of Crime, Statistics and Research NSW Dept. of the Attorney-General

Goodman, Gail S., Golding and Haith (1984) 'Jurors Reactions to Child Witnesses' Journal of Social Issues vol. 40, no. 2

Goodman, Gail S. and Helgeson (1985) 'Child Sexual Assault: Children's Memory and the Law' University of Miami Law Review vol. 40

Goodman, Gail S. and Michelli (1981) 'Would You Believe a Child Witness?' Psychology Today Nov.

Goodman, Gail S., Rudy, L., Bottoms, B.L. and Aman, C. (1989) 'Ecological Issues in the Study of Children's Eyewitness Testimony', in R. Fivush and J. Hudson (eds) What Young Children Remember and Why New York: Cambridge University Press

Heydon, J.D. (1975) Cases and Materials on Evidence London: Butterworths Johnson, M.K. and Foley, M.A. (1984) 'Differentiating Fact from Fantasy: The Reliability of Children's Memory' Journal of Social Issues vol. 40, no. 2

King. M.A. and Yuille, J.C. (1987) 'Suggestibility and the Child Witness', in S.J. Ceci, M.P. Toglia and D.F. Ross (eds) Children's Eyewitness Memory New York: Springer-Verlag

Marin, Holmes, Gaith and Kovac (1979) 'The Potential of Children as Eye-Witnesses' Law and Human Behaviour vol. 3

Wills (1902) The Principles of Circumstantial Evidence 5th edn Jan Breckenridge and Moira Carmody, 1992.

This book is copyright under the Berne Convention.
All rights reserved. No reproduction without permission.

First published in 1992, Allen & Unwin Pty Ltd 8 Napier Street, North Sydney, NSW 2059 Australia

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