Do reforms for child complainants in sexual assault cases actually reform?

By Rebecca Strati

This post is one in a series of posts on this blog written by students studying Non-Adversarial Justice at the Faculty of Law at Monash University. Students were invited to write blog posts explaining various complex areas of law relating to the justice system to ordinary readers. The very best post on each topic is published here.

The concern about the treatment of child complainants in sexual assault cases is still as evident today as it was in the 1980s. And since then a range of reforms have been introduced which aim to reduce the stress and trauma experienced by children in criminal proceedings regarding sexual assault. Therefore, it may be assumed that the situation would have improved. Sadly, this is not necessarily the case. The poor utilisation of these reforms in practice has limited their ability to overcome the difficulties faced by these children and hence more needs to be done to adequately address this issue.

Even Robert Hulls, former Attorney-General of Victoria, was shocked by the state of progress in the Victorian courts, expressing that more action needs to be taken to address the needs of victims of sexual assault. He comments that the adversarial system is not appropriate for sexual assault cases involving child complainants and suggests that more non-adversarial approaches should be introduced to ensure better outcomes for these children.

In order to understand how these reforms may not suffice in assisting child complainants in cases of sexual assault they will each be discussed below, followed by a consideration of what more can be done.

The current status of reforms regarding child complainants

The struggles that children face when they come into contact with the criminal justice system have been well-documented and as a result a number of reforms have been implemented. These reforms aim to foster a more positive experience for child complainants by adapting the criminal process to limit the stress and trauma experienced by these children. However, as it will be shown, some of these reforms have not necessarily met these objectives. To demonstrate this, the following reforms will be considered: the restrictions on cross-examination, the use of closed-circuit television (CCTV) and pre-recording of evidence.

Restrictions on Cross-Examination

The criminal procedure of cross-examination is a traumatising even for the average adult in a criminal proceeding, let alone for a child complainant in a case of sexual assault. As a result legislation was introduced that restricted the process of cross-examination. In particular Victoria enacted legislation which prohibited cross-examination by an unrepresented accused and gave the court discretion in regards to allowing a witness to be present at a committal hearing.

Nonetheless, since the enactment of these amendments children continue to be cross-examined in Victoria. This is also the case in Queensland where similar provisions were passed, and judicial officers were reluctant to comply. Thus, lack of compliance has rendered this reform ineffective. However, evidence from Western Australia indicated that if this reform had been adequately implemented it would have had beneficial impacts on the victim. Therefore, this further insinuates that current practices need further improvement.

CCTV

The trauma associated with child complainants having to physically see the accused in a courtroom may be addressed through the use of CCTV. This enables the child complainant to be removed from the courtroom to another room where they are able to provide evidence in a more relaxed environment.

Although in theory this reform purports to improve the experiences of child complainants by minimising the stress associated with the criminal process, poor implementation undermines its effectiveness. For example, in Queensland this legislative reform has made limited contributions to assisting child complainants as technical issues have prevented the equipment from being fully utilised. Therefore, children are left to give evidence in court as if the reform had never been implemented.

Additionally, the limited use of CCTV for child complainants in criminal proceedings may also be attributed to the attitudes of judicial officers. There is a belief that the rights of the accused to a fair trial will be challenged by the implementation of this practice. Moreover, it was also understood that the use of CCTV would undermine the likelihood of a conviction and therefore it was considered that it would be more beneficial to have the child testify in court. This completely negates the fact that it is well-known that children are not equipped for the court environment. Accordingly, this reform has failed to meet its aims.

Even though this reform has been poorly implemented, this does not necessarily suggest that it cannot be successful. As mentioned above, Western Australia have punctually adopted these reforms and can attest to the fact that the use of CCTV can enhance the experiences of child complainants of sexual assault cases. In engaging in this practice it may be recognised that the use of CCTV is able to foster an environment that enables the child to comfortably provide evidence and enable a better quality of information to be ascertained as a result.

This reveals that more can be done to implement reforms that effectively assist child complainants of sexual assault cases.

Pre-recorded Evidence

The introduction of the use of pre-recorded evidence may be considered the most controversial reform with regard to considering the needs of child complainants and also the impact this may have on the rules of criminal procedure. Legislative amendments have been implemented to permit the use of video-recorded or audio-recorded interviews when they are first reported to police which can form evidence that may be used in court. Ideally, this overcomes the difficulties that child complainants have previously faced in regards to memory loss and having to repeatedly portray and thereby re-live the traumatic event/s. However, the implementation of this reform has been questioned on the basis that it challenges the rules of criminal procedure. The reluctance to adopt this measure is also grounded in the outcome that may ensue in the event that the evidence is considered inadmissible, and thus this reform is under-utilised.

Again Western Australia has successfully implemented the use of pre-recorded evidence which indicates the ability of these reforms to significantly improve the experiences of child complainants.

 What (more) needs to be done

Children are disadvantaged in the criminal justice system due to their lack of understanding of the process, thus reforms in this area are extremely important. The ineffectiveness of the abovementioned reforms may amplify the trauma and stress suffered by child complainants and perhaps, a different approach should be taken. However, it has been clearly established that the severity of sexual assault offences renders the adoption of restorative justice practices inappropriate. Thus, a broader approach should be taken that considers the issue as a whole in order to address the underlying needs of children. This may be achieved by reinstating specialised courts and promoting greater use of intermediaries.

It is well known that the use of specialised courts provide an effective means of promoting more positive outcomes by catering for the individual needs of children in this particular case. And despite the low prosecutorial success, the development of this approach to justice should be taken into greater consideration as it has great potential.

The use of intermediaries may actually offer a means to override the issues of poorly implemented reforms. An intermediary is a qualified individual that may address the language barrier experienced by child complainants. David Caruso and Timothy Cross suggest that the use of intermediaries may overcome the problems that pertain to the other failed reforms. By improving communication, the child can become better equipped to participate in the criminal justice system, thereby providing a more comprehensive approach to assist child complainants.

In conclusion, it is clear that the introduction of a number of reform demonstrate the significance of the issue. However, their limited success demonstrates a failure to create a more positive experience for child complainants. Thus, further reforms are required in order to actually reform.

About Rebecca Strati
Rebecca Strati is currently a law student, undertaking a Bachelor of Law(Honours)/Bachelor of Arts at Monash University. She has recently undertaken the unit, Non-Adversarial Justice, whereby her passion for increasing access to justice has grown significantly.

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