NCJ Number
202774
Date Published
May 2003
Length
22 pages
Annotation
Based on an analysis of some trial transcripts of child sexual abuse cases and the attrition rate of child sexual abuse cases as they proceed through Australian courts, this paper proposes a new way for managing child-sexual-abuse cases in the courts.
Abstract
The cases reviewed went to trial between July 1995 and April 2003. There were 18 cases that involved alleged offenses of rape, unlawful sexual intercourse, indecent assault, and gross indecency. In all cases, the child victim/witness was 15-years-old or less when the trial occurred. The analysis focused on three aspects of the trial: the testing of a child to determine whether he/she could give sworn testimony, the prosecution examination, and the defense cross-examination. All children but one were assessed as being competent to give sworn testimony, and all children had access to closed-circuit television for their testimony, except for one, who used a screen. Children were on the witness stand between 1/2 hour and 8 hours, with the average time being 2 hours and 18 minutes. One case in particular convinced the author of the rigidity of the legal process and the need for children to be further protected from the harms caused by the criminal justice system. This was a case that involved a 10-year-old girl who spent approximately 8 hours on the witness stand over 3 days. Prior to one exchange between the prosecutor and the child, she had been crying intermittently for more than 1 hour as the examination-in-chief was proceeding. The testimony involved detailed questioning by the prosecutor regarding every act and response involved in her sexual assault. The accused was ultimately found "not guilty." There was also evidence of language use that was confusing for children. All court personnel were guilty of not making accommodations to the child's vocabulary. There was no evidence in the transcripts of abusive cross-examination of the child witnesses. Still, the very nature of the adversarial system is intimidating for children, regardless of the sensitivity with which evidence is elicited and challenged. This paper proposes an exploration of an inquisitorial system for cases that involve child sexual abuse victims/witnesses. Under such a system, the rights of the accused would be preserved in the course of a child-appropriate inquiry conducted by a special judge alone. The judicial officer would call upon the expertise of people who are trained and accredited in the forensic questioning of children and the interpretation of their evidence. The level of proof required would be "reasonable satisfaction" (Brigginshaw level of proof). If found guilty, the offender would have access to a range of therapeutic, noncustodial, and custodial options, as well as a range of incentives for engaging in this distinctive inquisitorial processing of the case. Appended supplementary data and a case study