Court System Is Unfair and Traumatic for Child Sexual Abuse Victims, Inquiry Chair Says
By Calla Wahlquist
The court process is unfair and often traumatic for child victims of sexual abuse, the chair of the royal commission into institutional child sexual abuse has said. In a speech delivered at a conference in Sydney on Wednesday, Justice Peter McClellan said that reliance on cross examination in criminal trials, which was intended to help juries determine the truth of any particular witnesses’ claim, was damaging to vulnerable witnesses like children or victims of sexual abuse. The royal commission is expected to recommend changes to the trial process when it hands down its final report on 15 December. Among the options being considered, McClellan said, are introducing to all states and territories the Queensland crime of persistent sexual offences, which does not require the victim to recall the details of specific incidents. Other options under consideration are providing a standard document to all complainants and witnesses explaining the process of giving evidence; introducing victim intermediary schemes; and recommending the further use of special hearings that would allow complainants to give evidence and be cross-examined several months before the jury is empanelled. McClellan said victims of sexual assault were often “the only source of direct evidence in the trial,” which meant that it was the job of lawyers for the defendant to discredit them. “Their credibility will loom large in the trial,” he said. “It is almost always the central issue. “As this audience knows our criminal justice system is designed so that the trial is effectively a contest between the state and the accused, from which there emerges a winner and a loser. There is a real danger that, in the eyes of the community, the legitimacy of the criminal justice system will be undermined if the system is not concerned with revealing the truth as to what really happened but rather the winner of a contest.” Unless uncovering the truth is at the heart of the process, he said, there was “little encouragement” for survivors to participate. “Why risk potential re-traumatisation, a risk which materialises in many cases, to merely be a player in a sophisticated lawyers’ game?” he said. Child sexual offences have low rates of conviction. Data from the New South Wales Bureau of Crime Statistics and Research found that the conviction rates for all offences in NSW between July 2012 and June 2015, whether by contested hearing or guilty plea, was 89%. For child sexual offences, the conviction rate was 60%. Only sexual assault against adults, which unlike child sexual offences must deal with the issue of consent, was lower, with a conviction rate of 50%. McClellan said the mother of one survivor told the royal commission that the trial process “forces parents of child abuse victims to decide between two options. Parents can either expose their children to the trauma of participating in the criminal justice system in order to achieve justice by putting paedophiles in jail to prevent harm to further children. Alternatively, parents can allow paedophiles to remain free in order to prevent the criminal justice system from causing further harm to their own child. In my mind, that will never be a fair and just system. “There is little encouragement for survivors to participate in the criminal justice system if it does not have truth as its fundamental objective,” McClellan said. “Why risk potential re-traumatisation, a risk which materialises in many cases, to merely be a player in a sophisticated lawyers’ game?” Research produced by the commission also found it was not the most reliable way to get a truthful account from child witnesses. It found that leading, yes or no questions routinely asked by defence counsel “may impair a witness’s ability to recall events as accurately as they might otherwise,” and that the most reliable method for getting a true account was through the free recall of complainants. That meant asking open-ended questions, like “tell me what happened.” The commission also found that the need for complainants to provide specific details about their sexual assault – the dates, time, location, and what the victim was wearing – was difficult for child victims, particularly those who had sustained repeated abuse and were unable to differentiate between different occasions. “The result is a cruel paradox: the greater the regularity with which a child is offended against, the more difficult it can become to charge and prosecute the offender,” he said. McClellan’s comments echoed previous research reports by the commission, which have recommended taking a child-focused approach to investigating and preventing sexual abuse. Since you’re here … … we have a small favour to ask. More people are reading the Guardian than ever but advertising revenues across the media are falling fast. And unlike many news organisations, we haven’t put up a paywall – we want to keep our journalism as open as we can. So you can see why we need to ask for your help. The Guardian’s independent, investigative journalism takes a lot of time, money and hard work to produce. But we do it because we believe our perspective matters – because it might well be your perspective, too. I appreciate there not being a paywall: it is more democratic for the media to be available for all and not a commodity to be purchased by a few. I’m happy to make a contribution so others with less means still have access to information. Thomasine F-R. 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