Children's Evidence
Sexual assault, rape and child abuse cases are notoriously harrowing for the survivors, as their word is pitted against that of their assailants. For many, facing the world after their assault can be an equally traumatic experience. Many authorities lament the difficulties faced in prosecuting and convicting offenders, especially when the victim is very young or disabled.
A child's evidence must meet the same legal standards as that of an adult. An almost impossible task as discussed below.
Child Protection laws vary from State to State. An offence committed in one State, may not be prosecutable if the victim normally resides in another. The methodology of evidence collection, the way that the alleged perpetrator is approached is also variable between state agencies. Protective persons have no clear guidelines as to how to preserve and present facts for police and judicial consideration.
A collation of National Child Protection Laws, Strategies and Guidelines for protectors ( parents, family, community members) and Professionals is well over due. The articles below confirm this.
The Evidence of Children
Many voices are heard to say when discussing Family Court issues regarding residency and contact of young children, that allegations of abuse should be dismissed, unless such allegations can be ‘proved to be true in a court of law’.
The traditional view of children was that they were unreliable witnesses, prone to fantasy, easily manipulated with incomplete and inaccurate memories of what they have experienced.A collation of National Child Protection Laws, Strategies and Guidelines for protectors ( parents, family, community members) and Professionals is well over due. The articles below confirm this.
The Prosecution of Child Sex Offences: To Specialise or Not
After years of research, my national committee has come to the conclusion that the adversarial system is not designed to deal with the uniqueness of child sex offences. Rather than being a process that aims to protect the victim (or other children) from future abuse, the adversarial system has a well documented history of transforming a child sexual assault trial into an inquiry about the credibility of the complainant and every acquittal (can be viewed as) a false complaint by the child in question. This is an unsatisfactory and problematic way to understand the problem of CSA in the Australian community. Yet this idea of false complaint permeates the child sexual assault trial.
Guilty outcomes in reported sexual assault and related offence incidents
This paper examines the path of sexual assault incidents through the criminal justice system. An interesting paper and useful when addressing issues raise about false allegations against and convictions of sexual assault.
Is the Child's ‘Best Evidence’ being achieved in alleged sexual abuse cases?
Brenda Robinson, a child forensic specialist, presents preliminary findings arising from her research into the practice and effectiveness of Achieving Best Evidence in child sexual abuse cases.
Orkopoulos stepson tells: how he led me astray
This article gives clear indication of why children do not tell of abuse especially when the perpetrator is in a position of authority. This article is also a clear example of 'false denials' by the perpetrator of abuse, given that Orkopoulos was found guilty on numerous child abuse and drug charges.
Guilty of Daughters Assault Three Decades Ago
A 79-YEAR-OLD man admitted in Newcastle District Court yesterday that he indecently assaulted his daughter four times more than 30 years ago, when she was aged 16.
This news excerpt is included to highlight the reality that many abused children have to wait until they are adults to be able to present an acceptable case, while many never see justice at all.
Child Sexual Assault Cases
In the mid 1980s changes were introduced relating to the prosecution of child sexual assault offenders, which included easing competency to testify requirements, removing the warnings about corroboration, and removing the prohibition against conviction on the uncorroborated unsworn evidence of a child.
The majority of alleged offenders were known to their victims, either as a member of their family or household (33.5% local court). Just over a quarter were unknown to their victim, and it appears that cases involving defendants outside the family were more likely to be prosecuted.
The Quest for Truth: Substantiating Allegations of Physical Abuse in Criminal Prosecutions and Care Proceedings
The protection of children from violence is increasingly being placed on national and international societal and political agendas throughout the world. When an allegation of abuse is contested, the conflict must be resolved before these punitive or protective measures can be implemented.. This article explores the concept of proof and illustrates the challenges faced in substantiating allegations of physical abuse in criminal prosecutions and care proceedings in England and Wales. (Restrictions on availability of full article)
Evidence of abuse of a child - discounted
This is a summary of a longer document wherein injuries to a child were documented by a paediatrician, psychologist, photos etc , yet the police said there was insufficient evidence to prosecute.
Man on Child Sex Charges
This small excerpt has been included to encourage thought as to why these children waited as long as 13 years before they saw the alleged perpetrator of abuse against them before the court. We can only wonder if they had to wait until they were old enough to articulate, in an acceptable manner, what had happened to them, before legal action could be undertaken
Rougher than usual justice
Rape victims can throw up or be brought to tears by the tactics of opposing lawyers, writes Edmund Tadros. Katy's stepfather had sexually abused her from the age of nine until she left home at 21. He was initially found guilty of indecent assault and rape, but the conviction was overturned on appeal and a retrial ordered.
"The defence barrister's style was deplorable," Katy says of the retrial. " He intimidated me the whole time. He would yell at me and come up really close to question me. I was surprised at his level of animosity. He called me every name under the sun. I was just a piece of shit to him."
Katy describes the trials flatly, without emotion. She says she is describing incidents from a past life: the "younger Katy" who was repeatedly sexually assaulted and had to go through the trauma of multiple court cases.PERSPECTIVES FROM THE COMMISSIONER ON ALTERNATIVE MODELS FOR PROSECUTING OFFENDERS
Children and young people take an enormously difficult step when they disclose sexual assault.
Yet we are told that from their experiences in the criminal justice system that the system lacks appropriate levels of sensitivity and compassion.
'It's a waste of time and it hurts a lot' is how one 16 year old from NSW described how she felt the criminal justice system responded to her disclosure of assault.
Sadly, this view1 encapsulates the common experiences of many children and young people who have had the courage to speak up.
Evidence of Children and Other Vulnerable Witnesses
In February 1989 the Commission was given a reference to review the law and practice governing the giving of evidence by children and other vulnerable witnesses in legal proceedings.
Prompted by prevailing controversy in many jurisdictions about whether there should be special procedures or rules allowing children and other vulnerable witnesses to give evidence without the necessity of physically appearing in court or confronting the accused. This was perceived to be of particular importance in cases of child sexual abuse, where the sight of the accused often had a powerful negative effect on the witness.
PROSECUTING SEXUAL ASSAULT The Complexities and Difficulties
Sexual assault trials have become the most complex matters which come before the criminal courts. They have always presented their own peculiar problems. Unlike the case in murders, thefts and non-sexual assaults, the prosecution must establish the threshold proposition that a crime has indeed been committed. Only then does it become necessary to inquire who committed it.
It has always been the case that the proportion of sexual assault cases in which there is a plea of guilty is extremely low. This is undoubtedly largely to do with the far greater degree of shame and opprobrium attaching to offences of this kind. It follows that the allegations in these cases are stridently and strenuously denied throughout.
Filial dependency and recantation of child sexual abuse allegations.
Controversy abounds regarding the process by which child sexual abuse victims disclose their experiences, particularly the extent to which and the reasons why some children, once having disclosed abuse, later recant their allegations. This study examined the prevalence and predictors of recantation among 2- to 17-year-old child sexual abuse victims.
A 23.1% recantation rate was observed. Multivariate analyses supported a filial dependency model of recantation, whereby abuse victims who were more vulnerable to familial adult influences (i.e., younger children, those abused by a parent figure and who lacked support from the non offending caregiver) were more likely to recant. An alternative hypothesis, that recantations resulted from potential inclusion of cases involving false allegations, was not supported.
Child Sexual Assault - Are There Alternatives to Court Action?
Children who come before the courts are disadvantaged and will continue to remain so, irrespective of changes which may be brought about in procedure from time to time. Adult victims of unprovoked attacks do not blame themselves for the assault but respond spontaneously and retaliate, or report the assault demanding justice and retribution.
Living Within the Law -Margaret Cunneen's Sir Ninian Stephen Lecture
This is recommended to understand the complexities of the criminal trial.
Margaret Cunneen, a Crown prosecutor in New South Wales, observed that there seems to be a fashion in the criminal justice system for a kind of misplaced altruism that it is somehow a noble thing to assist a criminal to evade conviction.
Our criminal trials in New South Wales are conducted under the adversary system. Unlike the inquisitorial system of the European model, the object of which is to ascertain the truth, the adversarial system is an inquiry into whether the prosecutor has discharged the burden of proof beyond reasonable doubt.
Sir Daryl Dawson in a judgment of the High Court in Whitehorn v The Queen (1983) 152 CLR 657 at 682 said:
"A trial does not involve the pursuit of truth by any means. The adversary system is the means adopted, and the judge's role in that system is to hold the balance between the contending parties without himself taking part in their disputations. It is not an inquisitorial role in which he seeks himself to remedy the deficiencies in the case on either side. When a party's case is deficient, the ordinary consequence is that it does not succeed.
The Experiences of Child Complainants of Sexual Abuse in the Criminal Justice System.
The criminal justice system continues to present governments courts, the judiciary, legal profession and community with the vexatious issue of encouraging child complainants of sexual abuse into a system which results in further trauma and abuse of the child
Case decision
This is a link to a a case where it was discussed as to how much weight to give to a child's evidence. It is quoted often in submissions.
Surviving the Legal System: a handbook for adult and child sexual abuse survivors and their supportersBy Dr S. Caroline Taylor
Sexual assault, rape and child abuse cases are notoriously harrowing for the survivors, as their world is pitted against that of their assailants. For many, facing the world after their assault can be an equally traumatic experience. However, for those survivors who are courageous enough to step forward, seeking redress through the criminal justice system remains vital for their sense of closure after the assault.
Surviving the Legal System is much-needed handbook the will prove invaluable to survivors of rape and sexual assault, their counsellors, friends, family members and community professional. It is also compelling reading for all member of the community who care about justice. Written in a way that makes it clearly accessible to any reader, the book provides essential information for all survivors:
Court Licensed Abuse Patriarchal Lore and the Legal Response to Intrafamilial Sexual Abuse of Children
This book is based on award winning research that analyses transcripts of intrafamilial child sexual abuse trials. The reader is taken on a virtual walk through 4 entire trials and is privy to evidence and legal arguments withheld from juries. These trials, presented as textual case studies show the legal mechanism through which victim/survivor accounts of abuse are transmuted into forms that facilitate both the theoretical and legal acquittal of the alleged abuser, thus replicating the power relations inherent in the original abuse. The work presents hitherto uncharted terrain in explicating the response of the judicial system when confronted with allegations of child sexual abuse.
UN Special Session on Children:Freda Briggs
In signing the UN Convention, the Australian Government did not agree to restrict protection to mature, intelligent children who possess the sophisticated communication skills needed to withstand cross-examination by a barrister for several hours or even days in an adult criminal court but that is the reality of the Australian justice system in the 21st.C. To survive the trial, children must be able to tolerate insults and accusations that they are lying or worse, that they seduced their abuser. They must be able to cope with the tricks that lawyers play to confuse them, bearing in mind that the aim of the defence is to discredit victims.
Sex victims protected from aggressive questioning in court
The Daily Telegraph -
RAPE victims will be protected from aggressive questioning by defence barristers under a voluntary new legal code. Barristers have caved in to demands that they stop intimidating and humiliating rape victims in the witness box.
Lawyer under scrutiny after questioning teen rape victim
A FEMALE barrister who cross-examined an alleged child rape victim for three days has been referred to the legal regulator by the New South Wales DPP.The girl was just 13 when she was allegedly sexually assaulted - and not yet 16 when she was cross examined for a marathon three days by high-profile defence counsel Tania Evers in the New South Wales District Court trial.