The experiences of child complainants of sexual abuse in the criminal justice system

This paper presents a summary of findings from a report to the Criminology Research Council on the experiences of child complainants of sexual abuse in the criminal justice system in three Australian jurisdictions. The aim of the research was to investigate the processes surrounding, and the consequences of involvement in, the criminal justice system from the perspective of the child complainant. Interviews were conducted with children, their parents/guardians, crown prosecutors, defence lawyers and judicial officers. When asked if they would ever report sexual abuse again following their experiences in the criminal justice system, only 44 per cent of children in Queensland, 33 per cent in New South Wales and 64 per cent in Western Australia indicated that they would. The paper suggests that legislative and procedural reform, and a more child-centred policy focus, are required in order to prevent damage being done to the child by the justice system. Such damage may contribute to non-reporting of sexual abuse by children, allowing abusers to act with impunity. Adam Graycar Director The criminal justice system continues to present governments, courts, the judiciary, legal profession and community with the vexatious issue of encouraging child complainants of sexual abuse into a system which results in further trauma and abuse of the child (ALRC & HREOC 1997; Eastwood, Patton & Stacy 1998). Most Australian jurisdictions have been slow to implement critical reforms that provide substantial protection for the child. Instead, legislators have enacted superficial changes. In doing so, they have failed to address the real issue of abuse inflicted by the justice system itself and the manner in which children as a group are disadvantaged in the legal process (ALRC & HREOC 1997). In many jurisdictions, policies have emanated not only from a lack of understanding of the developmental perspective of the child, but also the more complex issue of "centuries of disbelief and suspicion of children who accused adults of sexual crimes" (Kelly 2002, p. 364). Legislative reforms have been piecemeal and provide protections which are invoked at the discretion of the court despite evidence that discretionary provisions permit inconsistent application and add more stress and uncertainty for the child (Easteal 1998; Plotnikoff & Wollfson 2002). Two decades ago, when the extent of sexual abuse was reignited in public awareness, the importance of "believing" the child was established as a cornerstone of the child's psychological survival. Prominent researchers (Berliner & Barbieri 1984; Finkelhor 1984) emphasised the crucial importance of "acceptance and validation" to the child (Summit 1983, p. 179). There was an implicit assumption that the truth children struggled to tell would be self-evident in the legal system. This optimism rapidly diminished when it became clear how legal practices and procedures systematically disadvantaged children, and the extent to which lawyers used their adult and professional status to intimidate the child. The strongest tactic was to undermine the child's credibility-and using the worst excesses of the adversarial court system, it became "open season" on child witnesses. These abusive practices continue, although some well accepted adversarial practices in Australian courts would be unlikely to comply with the UN Convention on the Rights of the Child which protects children's rights and dignity in court (Kelly 2002). There is a growing awareness and articulation that substantial legislative and procedural reform has not given children the belief, respect, protection or justice they deserve and to which they are entitled, and that a cultural shift is needed (Easteal 2001; Kelly 2002). There is also increasing frustration that despite decades of reform, children's court experiences continue to be "lessons in injustice, inhumanity and disrespect" (Kelly 2002, p. …