This paper examines the experiences of twelve female children in the prosecution of childhood sexual abuse and is based on research into the significant criminal justice processes as well as the consequences of involvement in the justice system for the adolescent female. In order to reflect accurately the depth of the stories of the children, the methodology involves a six-stage interview process with each participant, and also incorporates data gathered from parents, fresh complaint witnesses, court support workers and legal personnel. It is argued that the criminal justice system is not only unable to deal with the psychological and developmental needs of the female child who has been sexually abused, but indeed the process itself further abuses the child. In an area fraught with ethical and legal difficulties, the groundbreaking nature of this study emanates from the experiences of the sexually abused female children as told from their own perspectives.
If the principle of preventing harm to others is central to criminal law (Feinberg, 1984; Myers, 1996) then the widespread sexual abuse of those most vulnerable in our culture represents an immense challenge to the criminal justice system. Perhaps the world of childhood victimisation is strange and unfamiliar to those adults who are entrusted with presenting and overseeing the child's case (Brennan & Brennan, 1988). However, it is those very adults who have the responsibility to ensure all possible steps are taken to ensure that the legal process does not add further to the suffering of the child who has been sexually abused.
As a result of societal recognition and increased reporting, the justice system has become increasingly involved in allegations of child sexual abuse and in the 80s and 90s a number of legislative and procedural reforms were introduced (Bulkley, 1992; Cashmore, 1995). Nonetheless, court and police practices vary considerably between Australian jurisdictions and the actual implementation of many reforms is impossible to measure (Australian Law Reform Commission, 1996) with only limited statistical information on the effects of these reforms (Cashmore, 1995; Cashmore & Horsky, 1988; Goodwin, 1989).
Significant issues in the process such as the decision to report (Cashmore & Horsky, 1987; Eastwood, 1993; Finkelhor, 1991, 1994; Whitcomb, 1992), the effects of waiting for trial (Cashmore & Horsky, 1987; Cashmore, 1995; Martone, Jaudes & Cavins, 1996), issues in the trial process such as implications of the Rules of Evidence and cross-examination (Australian Law Reform Commission, 1997; Rathus, 1995); the use of videotaped evidence (Davies & Noon, 1991; Macfarlane & Elias, 1993); closed circuit television (Cashmore & DeHaas, 1992; Morgan & Zedner, 1992); expert testimony (Myers, Bays, Becker, Berliner, Corwin & Saywitz, 1989; Myers, 1991) and judicial attitudes (Mahoney, 1993; Saunders, 1988); have been examined in the literature. The causes of stress and trauma for the child and the credibility of child witnesses have been thoroughly explored (Goodman, Rudy, Bottoms & Aman, 1991). In recent years the criminal justice system has been subject to persistent and ongoing claims of indifference and distrust of child witnesses (Bulkley, 1992; Spencer & Flin, 1993; Whitcomb, 1992). In addition, it is argued that the system 'puts special barriers in the path of prosecuting their claims to justice' (Hill & Hill, 1987, p. 810).
The current study builds on past research and argues that despite some superficial reforms, attitudinal and procedural problems remain. The consequence for the child is that they are further abused - except this time by the justice system.
However, Australian studies that provide detailed data from the perspective of children on their experiences in the criminal justice process are non-existent. There is no doubt that this lack of research is due, at least in part, to significant ethical and legal considerations, and also to the considerable difficulties with gaining access to research participants. The need for such research is both timely and relevant given recent inquiries (Australian Law Reform Commission, 1997; Wood Royal Commission, 1997) and the review the Criminal Offences (Victims) Act 1995 (Qld).
The aim of the study was to investigate significant processes in the criminal justice system that impact upon complainants, and to investigate the range of consequences of involvement in the criminal justice system as described by adolescent females. The research concentrated solely on females given the higher incidence of sexual abuse for females and to enable a gendered perspective to be examined.
Originally intended as a longitudinal study, the particularly sensitive task of accessing young witnesses throughout legal proceedings that involved a number of agencies could not be overcome. Therefore, the study gathered in-depth interview data from twelve female adolescents who had been sexually abused about their experiences with the criminal justice process.
The study adopted the definition of a child used by the United Nations Convention on the Rights of the Child (1989) which defines 'a child as a person under 18 years of age unless the relevant national law specifies an earlier age of majority' (Article 1). The Australian Law Reform Commission also adheres to this definition. The children involved in the current study were between 12 and 17 years of age at the time of the research.
Ultimately the research method emerged from three issues: from the literature on child sexual abuse and the criminal justice system and feminist jurisprudence; from constructivist and praxis-oriented paradigm considerations; and from systemic constraints on access to adolescent complainants. Given the difficulty of accessing participants from reporting to police through to trial completion, most of the data gathered was retrospective in nature.
The principal participants were twelve adolescent females who had suffered childhood sexual abuse. Given the in-depth nature of the interview process and the need to articulate experiences, the age group of the children was between 12 and 17 years of age at the time of the study. In order to add depth and triangulate research data gathered from complainants, six experienced court support workers who had been present with the girls during the entire court process were interviewed. Further triangulation was added with the inclusion of four children who were fresh complaint witnesses. These children were the first to be told of the abuse by the complainants. Informal interviews were also conducted with parents of all complainants except one, and data was also gathered from key legal personnel.
Interviews with all complainants, fresh complaint witnesses, parents, court support workers and legal personnel were transcribed verbatim, and in conjunction with case notes formed the base data. Although the broad chronological categories of the legal process, such as reporting to police, the committal, the time between committal and trial, and finally the trial process and its outcomes were identified prior to data analysis, the codes, categories and themes which emerged within these broad categories were determined inductively rather than by imposing predetermined classifications on the data (Glaser, 1978). These working categories and themes were then further analysed in terms of the children's experiences in the criminal justice process. Emerging themes were documented and examined for tacit biases and assumption, and further analysed.
Second, given that a number of complainants were approached to be involved in the study but declined because 'it was so horrible that they just wanted to forget it (the court process)', it should also be recognised that those children most severely traumatised were not included in the study due to understandable reluctance to relive their experiences. This fact in itself only draws further attention to the serious nature of the effects of the entire process on children.
Third, given the inability to access participants between initial reporting and trial, the resultant lack of longitudinal data must also be considered a limitation. Until gatekeepers within the criminal justice system allow access to participants to enable longitudinal studies to be undertaken, more extensive data will remain inaccessible.
Fourth, based on a constructivist approach, the stories of the children were taken at face value as their own phenomenological realities. While triangulation of data from other sources (such as parents, fresh complaint witnesses and PACT workers) were incorporated wherever possible, essentially the constructivist view aligns with 'assessing the viability (utility) as opposed to the validity (truth) of an individual's unique world view' (Neimeyer & Neimeyer, 1993, p. 2).
Fifth it may be considered that the inclusion of female complainants only is a limitation. However, given the gendered focus of the analysis, it would have been inappropriate to include male complainants in the current study. Further research involving male complainants may need to be undertaken by researchers wishing to explore this area.
Second, confidentiality was ensured through a number of procedures: interview tapes were securely locked; pseudonyms appeared on written transcripts; and informed consent included the right to withdraw from the study at any time. Participants were reassured that all measures would be taken to protect confidentiality and all questions asked concerning the research were answered fully.
Third, recognising that research procedures themselves can traumatise participants (Finkelhor, 1986b), every effort was made to provide a supportive and reciprocal environment. When attention was drawn to a particular need of the complainants, participants were referred to appropriate agencies or support structures that had been established prior to the commencement of the interview process.
Wherever possible, some degree of control was given to complainants at various stages of the research process: in the structure and content of the interview; in modifications to transcripts; and in seeking their input in the discussion of analysis and findings. Overall, the aim was to create an interview process that was an affirming experience for all child participants.
I thought by going to police I could stop him from doing it to other girls. (Tracey)While it may be argued that the gender of the investigating officers is irrelevant, and indeed it may be beneficial for the child to deal with a male officer, the preferred choice of the children is for female officers. No matter how friendly or caring the male officer presented, the children felt humiliated, embarrassed and intimidated at having to discuss intimate details of the assaults with males. The responsiveness of the police in these cases must focus on the needs of the child and beyond resourcing or administrative constraints. As children who have been sexually assaulted, their needs and wants have been continually contravened or ignored. Wherever possible, police attention to the child's preference of the gender of investigating officers seems one feasible strategy for meeting the needs of the female child.
I didn't want to go to the police station ... I was scared ... it was very hard for me to go there. (Kerin)
I had to go into detail about what happened and stuff, and because it was sexual, I felt really awkward talking to a male. That was why I couldn't tell my Dad because I felt really awkward. So having to tell a male police officer was just horrible ... and you had to go into real detail. I was just petrified - and I felt really humiliated because I didn't know much about male private parts and I couldn't describe things, and I felt really intimidated. I would have preferred it to be a female. (Tara)While all the children found the interview process with police a gruelling procedure, it is interesting to note that where officers allowed some sort of control to the child, the pressure was somewhat alleviated. Police training needs to involve the incorporation of strategies for empowering the child and providing as many opportunities as possible for them to control certain aspects of the interview process.
They kept telling me I was running the show and if I wanted to stop they would stop ... it made me feel in control. (Sarah)There was also indication that participants found some questions difficult to understand. Questioning appropriate to the age level of the child is important and police need to be informed in the use of language relevant to the age of the child.
Sometimes they would say these really long words and I'd be thinking ... what does that mean. (Lyn)Both parents and children expressed the desire to be kept better informed by police about the progress of the case.
When I tried to ring police, they were never in and they never returned my calls ... They kept saying that I must realise that your child is not the only child, until I was ready to scream down the phone that I didn't care less about any other child - she was my concern! (Mother)While limited police resources seem to contribute to this problem, the non-offending parent is often under enormous stress in providing their child with support during the court process. The frustration of being ignored or uninformed by an investigating officer adds further to the stress placed on the family usually already under enormous pressure, particularly when the alleged offender is family member.
I felt left out ... I wanted to know details but they wouldn't tell us anything. I wanted to know what was going on, it was really important to me. (Tara)
Initial intersection with the criminal justice process for these children was with the police. Characteristic of this stage of the intersection among participants was a certain naivety and gullibility. During this early stage, which significantly was prior to any involvement in the court processes, these child complainants genuinely believed that all they had to do is tell the truth in some television-like scenario and the defendant would be pronounced guilty and sentenced to jail. At this particular point, we found these children relatively naive about the system, and particularly vulnerable to the attitudes exhibited and the information provided by police. Although police may be familiar with the adversarial nature of the courts and the treatment of child witnesses, the child is not. Currently, police who deal with child complainants of sexual abuse are not required to receive training specific to the needs of children. Unless police are trained to provide for the developmental needs of the child, the cost may continue to be considerable harm to the child.
It was really hard, because I would get a date to go to court and it would get changed. It was adjourned four times - so I got so I didn't believe it was ever going to happen. (Sarah)Although the problem of the wait for trial appears to be a procedural one, it is not. Strategies to make any significant reduction to the delay appear to have been ineffectual (at least in Queensland). The problem may be the inability of the justice system to adequately focus on the needs of the child victim who has been sexually abused.
It was hard, because he was coming around and giving me death threats at work, saying he was going to kill me for having him charged .... he was allowed to walk around as if nothing had happened. I was scared he was going to kill me for having him charged ... he was allowed to walk around as if nothing had happened. I was scared he was going to hurt my friends. (Jo)
Because it took so long, it totally affected my work, it affected my life - because that was the direction my life was ... I was just counting down the days till I had to go to court. Everyday I thought about it. (Melanie)
I had nightmares that I would be left in there (in court) by myself ... and he would do it to me again. (Kerin)
The process of cross-examination is considered the centrepiece of the criminal trial. When the case involved child sexual abuse and the child is the only witness to these offences, successful prosecution can rest almost entirely on the evidence of the child. Brennan and Brennan (1988) maintain that under cross-examination conditions 'the child is placed in an adversarial and stressful situation which tests the resilience of even the most resourceful of adults' (p. 91). All eleven children who faced cross-examination described the hostile questioning as the worst ordeal of the entire process. The views of defence counsel involved in the study support the adversarial nature of cross-examination and demonstrates it is little wonder that the process traumatises children.
It would be considered cowardly not to go for the jugular when cross-examining a child. (defence counsel)In addition, as long as defence barristers display erroneous knowledge about child development and insist that 'because the child has the same IQ as an adult, they can largely be treated as an adult' (defence counsel), treatment of the child in court will continue to be based on ignorance rather than knowledge. Based on this study, it can be strongly argued that all too often this trial centrepiece - the cross-examination - is in itself, child abuse. The following examination of the specific tactics and styles of hostile cross-examination to which the child complainants were subject provides the basis for such a claim.
If in the process of destroying the evidence it is necessary to destroy the child - then so be it (defence counsel)
At the start he was really sweet ... smiling and asking me questions. Then he just went red in the face as if I stuffed up or something. ... He just turned really nasty - he didn't give me any warning. (Tara)A court support person also describes the use of this tactic and its effect on the young witness.
He was a really two-faced man ... one minute you think he is nice and the next minute he is saying I wanted it and I couldn't stop crying. (Nicole)
The defence counsel gets up to ask their questions and they start off and they are very friendly ... lots of smiles ... and this child trusts this person and is answering all the questions and thinks they are doing a really good job, and then part way through he will change his tactic ... And I believe that is the worst thing - seeing this child destroyed. They are so confused and puzzled that suddenly this person who has been nice and friendly is now accusing them of lying.This approach is far from harmless. Indeed the process of building up the child's trust and then destroying them is a mirror image of their experiences at the hands of the abuser.
I was getting tired ... it just got really exhausting to have to sit there and repeat myself over and over. (Melanie)To supplement this tactic, one barrister constantly pretended not to hear the response of the child in order to force them to repeat their answer. One child endured two and a half days of cross-examination undergoing the same questions over the same abuse experiences for the third time, before she broke down unable to continue.
After two days of cross-examination I had explained every incident twice. He was going through it a third time. He just kept going through it over and over and over again. He was repeating things all the time ... There should be a law against it - they shouldn't be able to question you for that long - two and a half days is beyond a joke. (After vomiting in the witness box a number of times on the afternoon of the third day she could not continue) ... I couldn't do it ... I couldn't even have done another hour ... that is when I withdrew. (Sarah)The effects of gruelling repeated questioning can be significant in impeaching the credibility of the child witness. Eventually, the young witnesses have difficulty in thinking straight, become bored, exhausted, or completely worn down. As reported by court support workers, repetitive questioning is frequently used to the point where the child is being harassed to such an extent that they will begin to agree with anything. As their concentration wanes, they become more easily confused and in the eyes of the jury, the child is less credible.
Confusion is also engendered in the young witnesses by the use of questioning which demands particulars of time, dates and other details. Many of these questions are impossible for the complainant to answer, as in the case of one child (abused for more than four years) who could not recall when asked, what she wearing on the day in question. The inability to answer is then construed as the witness is lying. A defence barrister described his task as 'to confuse as to who and what really matters'. It appears this goal of masking the real issue, which is determining if a child has been sexually assaulted, is in direct conflict with the task of law to examine the facts of any matter placed before it in order to discern the truth (Naffine, 1990). Indeed, how can the truth be discerned when officers of the court set out to deliberately confuse and disguise the facts in matters of child sexual abuse. It is a great shame that the cross-examination procedures are allowed to mask precisely that - who and what really matters.
He (the defence barrister) yelled at me and called me a liar ... I just wanted to get up and throw something at him, but I couldn't. He made me feel like I had done something wrong, or maybe it was my fault. (Melanie)All participants reported being upset and angry when directly accused of lying on many occasions during cross-examination. The effect on the children is psychologically destructive (Summit, 1983). They describe feeling as though the abuse was their fault, that they had done something wrong and, most importantly, 'that no-one believed you'. Failure of judges or prosecution counsel to intervene was also interpreted by the children as belief that other adults also believed they were lying. The view of Hale (1713) that the child and the female are likely to lie about sexual assault is still prevalent in intersections with the justice system today. Surely, in view of the legislation and professional guidelines surrounding cross-examination, there is ample basis for prohibiting this kind of intimidatory and insulting cross-examination.
He was calling me a liar all the whole time ... he just kept asking all sorts of questions and you would say something ... but it was like no-one believed you. (Susan)
The findings in the current study indicate that there are two methods used to include sexual history of the complainant in the testimony of the children - one direct, another slightly more indirect. A number of complainants reported direct questioning concerning matters of sexual history.
... he made me out to be the biggest slut and asked me all these questions about different people I had been with and how many boyfriends I had had. I had to tell him but I didn't think it was of any relevance to it. (Jo)Other complainants and all court workers report a more subtle method of implying 'promiscuous' sexual history, which leaves the child saying 'the jury must think I am a slut'. This type of questioning implies behaviour which is sexually inappropriate and is often more difficult for the witness to deal with because it relies more on insinuations and rhetorical comments made during cross-examination.
He said to me, 'you have had a few boyfriends in the past haven't you'. And I said 'yes'. And he asked me how many of those I had slept with. (Tracey)
Unfortunately defence counsel too often achieves the desired effect. While the sexual history of the children clearly has no bearing on the charge of sexual abuse, it undoubtedly serves to discredit the child in the eyes of the jury. Unfortunately, it also feeds societal misconceptions of female sexuality, that is, that women behave in such a manner as to incite the assault and are therefore to blame for the abuse (Edwards, 1987). The protection offered by the legislation must be applied to all sexual offences - particularly to those involving adolescent complainants of child sexual abuse. The indignity suffered by the children who were subject to cross-examination about their sexual history only served further to humiliate and degrade them, and to highlight the particular difficulties of intersecting with the justice system as a female child who has been sexually assaulted.
He was starting to make me cry and everything ... he started saying 'I wanted it', and that is when I started getting an asthma attack (Nicole).The fact that this type of cross-examination is even permitted calls into serious question the understanding of legal personnel of the dynamics of sexual abuse and also demonstrates that age and developmental considerations of the child complainant are ignored. They ignore the fact they are dealing with children, not adults. It is indeed an indictment against the criminal justice system that when females who have been sexually assaulted intersect with the system, instead of recognising the abhorrent nature of their experiences, they are only told that they 'wanted it'.
He kept saying 'You wanted to have sex with him' ... I got to the point where I was just crying and crying ... and I thought I am sick of this, he is just degrading me. (Katie)
Although in cases of child sexual abuse the issue of consent is considered irrelevant, this tactic deems the child insufficiently adult to tell the truth, but sufficiently adult to consent to sexual activity. This paradox is quite unfair and represents another area of inconsistency in the criminal justice process.
A court may disallow a question that, in the opinion of the court is indecent or scandalous unless the question relates to a fact in issue in the proceeding or to matters necessary to be known in order to determine whether or not the facts in issue existed (s21).
I'm finding it hard to fit back in and get on with my life sometimes. Sometimes I feel like a failure because I couldn't go all the way (with my evidence), but I'm slowly getting on with things trying to fit in again. I let so much go while I was waiting to go to court, that now it's too late to pick everything back up. I go to counselling once a week, which is good I suppose ... there's a lot of stress ... but it still feels like I am in that courtroom letting people judge and humiliate me. I s'ppose life's like that ... (Sarah)
... take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s), or any other person who has the care of the child ... (Article 19)In Australia, the justice system has not adequately addressed this requirement of the Charter. Many of the changes to evidentiary laws and procedures for giving evidence have been haphazard measures, which do not operate in all jurisdictions, nor apply to all children (Scutt, 1991). More specifically, when a female child who has been sexually abused intersects with the justice system, the courts become the lawfully sanctioned contexts in which the child is further abused. Despite provision within both professional guidelines (Australian Bar Association, 1992, Rule 6.1) and the Evidence Act 1994 (Commonwealth) (s41) for the prevention of 'unduly annoying, harassing, intimidating, offensive, oppressive or repetitive' questioning, as well as cognisance of relevant witness characteristics such as age, the process of cross-examination appears to ignore the developmental and psychological needs of the young victims of sexual assault and cause further trauma for the child. Education of judicial officers and legal personnel in the dynamics of sexual abuse and child development may be a key area for reform.
Future studies in this area that employ a qualitative longitudinal research design remain an area of need. Such an analysis would provide a better understanding of the precise effects of court processes and contribute to knowledge of the long-term effects of the justice process on both female and male child complainants of sexual abuse. However, for this to occur, a number of difficulties will need to be overcome. This will include the need for interagency and bureaucratic co-operation as well as willingness on the part of legal personnel to be open and accountable. Given the manner in which the criminal justice system sets itself apart, this will be no easy task.
This study investigated significant procedures in the criminal justice process which impact upon female child complainants of sexual abuse, as well as the range of consequences of their involvement. The research breaks new ground in that the study seeks to understand the procedures and consequences from the perspective of the children themselves and provides evidence that the criminal justice system is not only unable to deal with the psychological and developmental needs of the female child who has been sexually abused, but indeed the process itself further abuses the child. The words of one thirteen year old girl are a sad but indicative reflection on the manner in which the legal process abuses these children and denies them the care and support to which every child is entitled:
... it still feels like I am in the courtroom letting people judge and humiliate me ... I s'pose life's like that ... (Sarah)In their struggle to seek justice, these children have not only survived childhood sexual abuse but also survived the abuse of the criminal justice system.
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|Author details: All of the authors are at the Queensland University of Technology. Dr Christine Eastwood and Dr Wendy Patton are in the Faculty of Education and Dr Helen Stacy in the Faculty of Law.
Dr Christine Eastwood
School of Learning and Development
Faculty of Education
Queensland University of Technology
Locked Bag 2, RED HILL Qld 4059
Please cite as: Eastwood, C., Patton, W. and Stacy, H. (2000). Children seeking justice: Surviving child sexual abuse and the criminal justice system. Queensland Journal of Educational Research, 16(2), 158-182. http://education.curtin.edu.au/iier/qjer/qjer16/eastwood.html