Children blamed, badgered
Children in sex assault trials are blamed for their own abuse, criticised for keeping secrets and accused of lying by defence lawyers, causing extreme distress and undermining their ability to give evidence, a study has found.
Judges either failed to stop such questioning or failed to cut off inappropriate lines of crossexamination too late, trial transcripts revealed, despite the fact that the judges worked in specialist sexual violence courts and received extra training.
Fifteen child sex abuse trials were examined in the report That’s a Lie, commissioned by Chief Victims Adviser Kim McGregor after she received complaints from children and their families about cross-examination in the courts.
The study is considered valuable because it shows in black and white what actually happened in child abuse trials, which are usually closed to the public.
‘‘We hear about this all the time,’’ said Kathryn McPhillips, the director of Help, a sexual abuse agency.
‘‘But no matter how many times I hear from families what goes on – and I have examples I will take to my grave – when I read these transcripts and what people are saying to children, it makes my stomach fall to the floor. What is it about a society that thinks this is OK? What is it that stops a judge intervening?’’
The study, written by Dr Isabel Randell, concluded that the way children are questioned relies on the use of misconceptions and stereotypes about sexual violence, including myths about how ‘‘real’’ victims complain straight away, or that children regularly lie about abuse.
Most of the questioning that included such myths focused on the behaviour of the child complainants (ages ranged from 6 to 17) before, during and after the alleged offending.
Failing to tell someone immediately was a common example relied on by defence lawyers in arguing that the child’s version of events wasn’t plausible.
The child continuing to have a relationship with the alleged abuser, or highlighting positive aspects of the relationship, was also used to cast doubt on the child’s story.
Many questions also centred on why children didn’t work to prevent the abuse, such as by locking doors or yelling out or preventing abusers coming to their homes if they knew abuse might occur.
Further tactics included portraying the young victims as emotional or delinquent, asking leading questions, and repeatedly accusing the children of lying.
Paulette Benton-Greig, a criminal law academic from the University of Waikato, said while an accused person was entitled to run a defence that the accusations were untrue, repeated accusations of lying achieved little for the jury.
‘‘The intent of challenging the evidence here isn’t to test truthfulness, but does undermine the witness by drawing on misconceptions about the prevalence of false accusations, or the precociousness of young adolescents,’’ she said. ‘‘Badgering won’t make a liar confess, but it will feed the idea that false accusations are common.’’
Such cross-examination might even harm the evidence, the study said. Research has found that allegations of lying may increase distress, impede concentration, interfere with participation in questioning, and risk a young complainant becoming ‘‘erroneously compliant and suggestible’’.
The study said that meant the quality of evidence the jury was getting to base decisions on was inherently flawed.
‘‘If the judge allows the lawyer to run that question, the jury will think that’s a legitimate challenge. They don’t realise it’s not OK,’’ McPhillips said. ‘‘If it looks like the lawyer has won the battle, the jury will assume the complainant’s evidence is faulty. That’s bad for victims and for justice.’’
McGregor said the study proved New Zealand urgently needed to address the way children were being cross-examined. She suggested providing communication assistance to defence lawyers to help ask questions of children in an age-appropriate way.
The report also recommended judge-alone trials, pre-recorded crossexamination, in-court experts to provide education to counter rape myths, or an alternative justice process that wasn’t adversarial.
Some of those changes were under consideration in the Sexual Violence Legislation Bill, which continues its passage through Parliament today.
Justice Minister Kris Faafoi said the experiences captured in the report were not acceptable. He said the bill would ‘‘go a long way’’ to addressing the issues identified.
‘‘The duty for judges to intervene in improper questioning and the ability to access communication assistance will also be of significant benefit for children,’’ Faafoi said.
‘‘Children are some of the most vulnerable people in the courts system and we need to do better to ensure they are not retraumatised.’’