The Post

Children blamed, badgered

- Kirsty Johnston kirsty.johnston@stuff.co.nz

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.’’

 ?? DAVID WHITE/ STUFF ?? Chief Victims Adviser Kim McGregor says urgent change is needed to protect child victims from experienci­ng further harm in the court system.
DAVID WHITE/ STUFF Chief Victims Adviser Kim McGregor says urgent change is needed to protect child victims from experienci­ng further harm in the court system.

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