Child sexual abuse on trial

Abstract

Child sexual assault prosecutions in New Zealand are typically committed to trial by jury. Provisions exist for expert psychological evidence to educate and assist jurors during such trials. In the first part of this thesis the use of expert psychological evidence is examined by way of analysis of Court of Appeal decisions, retrospective analysis of child sexual assault trial files and a survey of crown prosecutors' past and intended use of the relevant provisions. Results show that expert psychological evidence has fallen into disuse, with Court of Appeal decisions previously ordering retrials predominantly on the basis that experts have given evidence that has addressed the credibility of the child complainant, this being the "ultimate issue" the determination of which is solely for the jury. Prosecutors generally expressed no intention to lead expert psychological evidence in the near future. At issue is whether jurors have adequate knowledge and/or common misconceptions that are exploited in the conduct of trials. Empanelled jurors from 23 criminal trials were interviewed post trial, including 60 who had served on trials involving charges of child sexual assault and a control group of 60 who served on trials not involving sexual offences or child complainants. Results indicated that some jurors had accurate knowledge, others subscribed to common misconceptions and others expressed a lack of knowledge. Participation in a child sexual assault trial was associated with more accurate knowledge on questionnaire scores but not in relation to other interview data. Also associated with greater accurate knowledge was being female, younger than 40 years, having a tertiary qualification and personal knowledge of a victim of child sexual abuse.In addition, jurors' responses to the use of court technology (CCTV, EVI) used in child sexual assault trials, and in relation to the utility and credibility of expert witness testimony, were examined. Consistent with international literature juror participants found the use of technology enhanced their understanding of the evidence, and -such use was considered "fair" to the complainant, and not prejudicial to the defendant. Most 111 jurors from sexual assault trials indicated that they would have been assisted by expert psychological evidence.Analysis of trial data suggested that the conviction rate was low (33%) and that defence counsel most commonly utilised common misconceptions about child sexual abuse to discredit child complainants' testimony, and frequently used leading, misleading, confusing and age inappropriate questions during cross examination of child complainants. Judges' rate of intervention during such questioning was low. There appeared to be nine variables that were associated with trial outcomes. Data suggested that the presence of three or more of these might be associated with conviction on at least one sexual offence charge per trial. This was confirmed in a final study of 137 child sexual assault cases. This study also confirmed the findings of the previous study in relation to behaviour of defence counsel and judges. These results are discussed with respect to whether the adversarial system of law is both appropriate and ethical in relation to the disposition of charges of sexual offences against children.