Justice Peter McClellan: Assumptions about victims colour judges’ decisions

Sydney Morning Herald

Jane Lee

Sexual assault victims’ testimony has been called into question by judges ignorant of relevant psychological research, the chairman of the royal commission into child sexual abuse says.

In a rare and frank appraisal of Australian judges to be presented on Tuesday at an international conference in New Zealand, Justice Peter McClellan said, “Judicial assumptions about human behaviour are still, in relatively contemporary times, informing the content of the law.”

While some of these assumptions “may be sound”, he says it is difficult to know whether they are correct, given the law largely prevents judges from consulting “authoritative professional material” on “ordinary human behaviour”.

Judges had historically said things in sexual assault trials that revealed their ignorance of relevant psychological research, including that allegations of sexual abuse should be doubted if victims’ reports were delayed, and that children’s memories of abuse were unreliable, Justice McClellan said.

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