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VLRC : Child support

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Cite as: (2003) 77(3) LIJ, p.81

Appropriate reforms can make the criminal justice process a less traumatic experience for child sexual assault complainants.

As reported in last month’s column, the Victorian Law Reform Commission (VLRC) is working on a reference on sexual offences (see February 2003 LIJ, page 85 and October 2002 LIJ, page 79). The focus of the reference is to review the types of legislative, administrative or procedural changes that might be necessary to ensure the criminal justice system is more responsive to the needs of victims/survivors of sexual assault.

One focus of the forthcoming interim report is the experience of child victims of sexual assault. Several aspects of the criminal justice process pose particular difficulty for child complainants in sexual assault cases and the VLRC has developed some proposed legislative and procedural reforms specifically aimed at improving the experience for this group. Issues which will be addressed in the report include the need for appropriate support services to assist children involved in the criminal justice process and measures to make it easier for children to testify, including an increased emphasis on alternative arrangements as well as changes to the competency and hearsay provisions of the Evidence Act 1958.

Reporting rates of child sexual assault are very low. The fact that the crime almost always occurs in secret, the perpetrator is often someone with a relationship to the child, and the shame and lack of understanding often experienced by the child victim are all factors that contribute to the low rates of disclosure of child sexual assault. The factors that hinder disclosure also make prosecutions difficult to conduct and prove.

Virtually all complainants in sexual offences cases find the criminal justice process an ordeal. The difficulties experienced by adult complainants are compounded for children and young people. When sexual assault is reported, every stage of the criminal justice process is fraught with difficulty for the child complainant. From the initial interview with the police, through the investigation process, preliminary hearings and eventual trial, children are questioned repeatedly by a series of strangers about difficult and intimate matters, in language which they may find difficult to understand.

Evidence shows that when the criminal justice experience is a less traumatic one, children and their families are more likely to contemplate reporting sexual assault.[1] Over the past two decades, measures have been introduced to make it easier for children to participate effectively in the process.

Currently, when children report sexual assault to the police, their statement is usually videotaped. The videotape of their evidence is sometimes introduced in court instead of (or as well as) their evidence in chief given in person. However, a child witness will always have to take the stand in order to be cross-examined by the defence. The VLRC is considering the possibility of introducing a system of special pre-hearings before the trial judge at which all the child witness’s evidence is led by the prosecution and the child is cross-examined by the defence. All the testimony would be pre-recorded and then the tape of the evidence introduced at the trial as the entirety of the child’s evidence. This process is available in Western Australia, where more than 50 per cent of child witnesses testify in this manner. The children who use this process seem to find the small, relatively informal hearing a less intimidating experience than that reported by children who testify in court. The relative lack of stress and the opportunity to record the evidence before the trial, closer in time to the relevant events, may also improve the quality of the child’s evidence.[2]

Another aspect of the criminal justice process that causes particular difficulty in child sexual assault cases is the rule against hearsay. The hearsay rule prevents people to whom children have disclosed sexual assault testifying as to what they were told, as well as the children themselves testifying to the fact of those disclosures. In cases involving very young or very traumatised children who will not be able to testify themselves, this evidence may be crucial. Even when the child is able to give evidence, the inability of the prosecution to introduce the whole narrative of what the child may have told a third party can make it very difficult to establish the case.

The South African Law Reform Commission has pointed out that a child’s disclosure of sexual assault is a process rather than an event[3] and the whole narrative is significant. The justification that hearsay evidence is not the best evidence is not necessarily valid when child witnesses are involved. The passage of time and the stress of legal proceedings may mean that the evidence given in court gives a less accurate account than the child’s earlier statements. Various jurisdictions have introduced exceptions to the hearsay rule specifically addressed at allowing the admission into evidence of earlier accounts of a child victim’s disclosure of sexual assault, provided certain indications of reliability are satisfied. The VLRC is considering whether similar changes should be recommended in Victoria.

These and other measures aimed at improving the experience of child complainants of sexual assault will be discussed in detail in the forthcoming interim report.


Contributed by the VICTORIAN LAW REFORM COMMISSION, tel 8619 8619, website http://www.lawreform.vic.gov.au.

viclawreform@liv.asn.au


[1] Christine Eastwood and Wendy Patton, The Experiences of Child Complainants of Sexual Abuse in the Criminal Justice System, 2002, Queensland University of Technology, 43.

[2] Andrew Palmer, “Child sexual abuse prosecutions and the presentation of the child’s story” (1997) 23 Monash Law Review, 171–199, 188.

[3] South African Law Commission, Sexual Offences: Process and procedure, Project 107 (2002), Executive Summary, 39.

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