Judging Children's Credibility–Cracks in the Culture of Disbelief, or Business as Usual?

Abstract

The child complainant of sexual abuse is widely regarded as the paradigmatic vulnerable witness who is most likely to encounter difficulties in giving evidence. Most adversarial jurisdictions have introduced a range of statutory measures designed to protect and support child complainants throughout the legal process and to assist them to give evidence to the best of their ability. Nonetheless, critics claim child complainants still face a culture of disbelief, largely sustained by continuing adversarial practices intended to protect the rights of the accused. Tis accounts for persistent representations of children as tending to fabricate, exaggerate, or imagine the abuse that they allege, despite the recognition of their needs as complainant-witnesses. Such representations indicate a disjuncture between progress in policy and in law reform and the appearance that it is business as usual within the courts. Tis paper explores this disjuncture. It acknowledges that, while the terms for the reception of children's evidence into the courtroom have changed, the repositioning that has occurred has not yet eliminated misgivings toward children's evidence. The lightest of inferences can call up a history of doubt–a powerful reminder of the tenacity of the dynamics of discounting in sexual offenses. Even so, the paper argues that the judicial language used to describe child witnesses is more nuanced and balanced than in previous decades, suggesting a more complex appreciation of the child's capabilities is developing, one which holds the potential for an enhanced accommodation of the conflicting interests surrounding adversarialism and vulnerability.