Child Sexual Abuse Trials Research Articles

“The Child Needs to Tell it to Me in Words”

Abstract Much research on child witnesses in child sexual abuse trials is focused on children’s performance in legal proceedings. Witness competency, that is predicated on the adversarial justice system’s principle of orality, is core to child witness testimony, and is determined at the pre-trial stage. However, this article highlights the need to consider child witness competency as a dynamic concept, that varies in response to the ecologies of the trial processes as they unfold. Set in a low-middle-income country, this qualitative study describes and analyzes trial processes through a child-inclusive lens, identifying barriers and facilitators to child witness competency. The results were mixed, yielding three major conclusions for consideration: (i) the importance attributed to physical infrastructure, and the creation of vulnerable deposition rooms; (ii) the role of judicial discretion in issues of child witness competency and (iii) role of intermediaries, with regard to enhancing child witness competencies.

Attorneys' Questions and Children's Responses Referring to the Nature of Sexual Touch in Child Sexual Abuse Trials.

Eliciting clear descriptions of sexual body parts and abusive touch in child sexual abuse trials is challenging because of children's immaturity and embarrassment. This study examined references to sexual body part knowledge and sexual touch in attorneys' questions and 5- to 10-year-old children's responses (N = 2,247) in 113 child sexual abuse trials. Regardless of children's age, attorneys and children primarily used unclear colloquialisms to refer to sexual body parts. Questions asking children to name sexual body parts elicited more uninformative responses than questions about the function of sexual body parts. In turn, questions about the function of sexual body parts were more likely to increase the specificity of body part identifications than questions about the location of sexual body parts. Attorneys predominantly used option-posing (yes-no and forced choice) questions to ask about sexual body part knowledge, the location of touch, the method or manner of touching, skin-to-skin contact, penetration, and how the touching felt. Generally, wh- questions were no more likely than option-posing questions to elicit uninformative responses, and consistently elicited more child-generated information. The results question the legal assumption that children's uninformative responses when testifying about sexual abuse should be overcome by asking option-posing questions.

Using item response theory modelling to understand criminal justice professionals’ perceptions of cross-examination in child sexual abuse trials

The need to educate criminal justice professionals about best practices to cross-examine complainants of child sexual abuse is widely acknowledged. Yet, a dearth of empirical information about their perceptions has hindered development of targeted professional education programmes. The present study compared perceptions of the quality of cross-examination of a child and an adolescent complainant between judges, prosecutors, defence lawyers, police officers and witness support staff. Questioning type (appropriate/inappropriate) and judicial intervention (present/absent) were varied. Results of two-parameter Item Response Theory modelling showed that defence lawyers perceived significantly less unfairness to the complainant than the other professional groups. Judges’ views of unfairness were driven by the potential for confusion more than the age-inappropriate questioning. Police officers and witness support staff more likely rated the cross-examination as deleterious to the credibility and reliability of the complainant. Topics to include in professional development programmes around eliciting best evidence from vulnerable witnesses are discussed.

An examination of implementation of special measures in child sexual assault trials and the problems that arise

ABSTRACT Giving evidence from the witness stand is often distressing for complainants of child sexual abuse. Technology-based special measures (eg, CCTV/AV link) enable complainants to give evidence from a location outside the courtroom, making the process less intimidating for complainants, which in turn enhances the quality of their evidence. Although the implementation of these measures has increased in prevalence over the preceding decades, little is known about the frequency and nature of problems that arise when special measures are utilised. In this study, we systematically coded transcripts from Australian child sexual assault trials to examine how (if at all) the implementation of special measures varied across child, adolescent and adult complainants. We also explored how often problems arose when special measures were used, and the nature of these problems. Our findings revealed that technology-based measures were regularly used for complainants in all age groups, but problems using these measures arose in the majority of trials. These results highlight the need for adequate training of professionals who are involved in operating special measures, as well as the need to outfit courts with appropriate equipment and facilities.

An evaluation of the question types used by criminal justice professionals with complainants in child sexual assault trials

The way that complainants of child sexual assault are questioned about their experiences can profoundly influence the accuracy, credibility, and consistency of their evidence. This is the case for all people, but especially children whose language, social, and cognitive capacity is still developing. In this study, we examined the questions used by a representative sample of Australian prosecutors, defense lawyers, and judges/magistrates to determine if this is an area that warrants improvement. Our focus was the type of questions used by the different professionals and how (if at all) these varied across complainant age groups (children, adolescents, and adults, total N = 63). Our findings revealed that each complainant group was questioned in a manner known to heighten misunderstanding and error (e.g., complex and leading questions were used frequently by all professional groups). There was also little indication of question adaption according to age (e.g., prosecutors asked children more complex questions than they asked adults). When the results are considered in the context of the broader literature on the impact of different question styles, they suggest that professional development in questioning would improve the quality of trial advocacy and judicial rulings.

Special Measures in Child Sexual Abuse Trials: Criminal Justice Practitioners’ Experiences and Views

Special measures have been implemented across the globe to improve evidence procedures in child sexual assault trials. The present study explored the day-to-day experiences and views on their use by five groups of Australian criminal justice practitioners (N = 335): judges, prosecutors, defence lawyers, police officers and witness assistance officers. Most practitioners reported routine use of pre-recorded police interviews and CCTV cross-examination of child complainants, but rare use with vulnerable adults. Despite persistent technical difficulties and lengthy waiting times for witnesses, high consensus emerged that special measures enhanced trial fairness and jury understanding. The perceived impact of special measures on conviction rates diverged widely. Defence lawyers disputed that this evidence was as reliable as in-person testimony. All practitioner groups endorsed expanded use of expert witness evidence and witness intermediaries. Ongoing professional development in all practitioner groups will further enhance justice outcomes for victims of child sexual abuse.

Other misconduct evidence in appeals against conviction in child sexual abuse trials

Child sexual abuse (CSA) trials may feature evidence relating to behaviours beyond the charges laid. This ‘other misconduct’ evidence can add context to the offending and may relate to more than one complaint or victim, indicating a pattern of thinking and behaviour, or that multiple incidents are unlikely to be coincidental. Directions to the jury regarding such evidence are complex and error prone, giving grounds for appeal. This study investigates successful appeals against conviction based on other misconduct evidence by analysing child and adult sexual assault cases listed in the Supreme Court of Appeal (Victoria) between 2004 and 2014. The appeals were equally successful in child and adult cases and equally likely to result in retrial. Specific errors in directions were identified and explanations are presented. Jury directions continue to be a source of error in sexual assault trials and can result in further attrition from the criminal justice system.

Intersectionality and Credibility in Child Sexual Assault Trials

Children remain largely absent from sociolegal scholarship on sexual violence. Taking an intersectional approach to the analysis of attorneys’ strategies during child sexual assault trials, this article argues that legal narratives draw on existing gender, racial, and age stereotypes to present legally compelling evidence of credibility. This work builds on Crenshaw’s focus on women of color, emphasizing the role of structures of power and inequality in constituting the conditions of children’s experiences of adjudication. Using ethnographic observations of courtroom jury trials, transcripts, and court records, three narrative themes of child credibility emerged: invisible wounds, rebellious adolescents, and dysfunctional families. Findings show how attorneys use these themes to emphasize the child’s unmarked body, imperceptible emotional responses, rebellious character, and harmful familial environments. The current study fills a gap in sexual assault research by moving beyond trial outcomes to address cultural narratives within the court that are inextricably embedded in intersectional dimensions of power and the reproduction of social status.

Effect of criminal defendant's history of childhood sexual abuse and personality disorder diagnosis on juror decision making.

This study investigated whether a defendant's history of childhood sexual abuse (CSA) and/or personality disorder (PD) diagnosis affected juror decision making in a child sexual abuse trial. The PDs in the study were borderline PD and antisocial PD. Participants were 385 college students, 121 men and 264 women, who read a summary of a mock criminal trial and then made various juror decisions. Trial summaries were prepared by the principal investigator and were all uniform in content, length and detail. For the trial, both the defendant's gender and victim's gender were specified. The defendant was male, and the alleged victim was female. When the verdict was assessed, the results yielded that when the defendant's CSA history was presented, juror guilt ratings were higher than when there was no history of CSA. Similarly, when the defendant had a PD diagnosis, there were higher guilt ratings than when there was no PD diagnosis. CSA history and PD diagnosis were significant predictors of guilt ratings, suggesting that jurors perceive defendants more negatively if they have either been sexually abused as a child or have borderline or antisocial PD.

Prediction of Jury Verdicts in Child Sexual Assault Trials

Child sexual abuse allegations are typically resolved by jury trial. The presence of a number of variables, known before a trial commences, may play a significant part in trial outcomes beyond jurors’ assessment of witness credibility. New Zealand Crown Prosecutors completed survey questionnaires for 137 trials related to charges of sexual offending against children. Nine trial variables were recorded along with other trial data. The hypothesis was confirmed that the presence of any three or more of the nine evidential variables was significantly predictive of conviction on at least one sexual offence per trial. The results were similar for the total sample and the two subgroups of historical cases and the child cases with complainants aged younger than 17 years at the time of trial. The three variables most strongly associated with conviction were similar fact evidence, evidence from a witness to the offending, and positive medical evidence or DNA evidence.

Counterintuitive Expert Psychological Evidence in Child Sexual Abuse Trials in New Zealand

The Evidence Act 2006 came into law in New Zealand in 2007. Among the many reforms was an amendment to the law pertaining to expert opinion evidence. In keeping with other jurisdictions, New Zealand adopted the “substantial helpfulness” test in relation to the admissibility of expert evidence. Since 2008, the courts have regularly admitted what has been termed “counterintuitive” expert psychological evidence in child sexual abuse trials, and appellate courts have upheld the use of this evidence. Such evidence has the purpose of educating juries, with particular reference to commonly held misconceptions about child sexual abuse. We discuss what is meant by the term counterintuitive evidence, why such evidence has been deemed helpful and the types of counterintuitive evidence currently given by psychologist expert witnesses in the New Zealand courts.

A comparison of expert evidence and judicial directions to counter misconceptions in child sexual abuse trials

Studies on the influence of expert evidence and judicial instructions in child sexual abuse (CSA) cases have produced mixed outcomes. Using repeated measures, we tested the effectiveness of expert evidence and judicial directions in challenging common misconceptions about children’s memory and responses to sexual abuse. A CSA Misconceptions Questionnaire was administered to 118 psychology undergraduates who later served as virtual jurors in a simulated criminal trial. Specialized CSA knowledge was provided by a psychologist or via judicial directions. Expert evidence had two levels: clinical versus scientific testimony. Timing of judicial instructions had two levels: directions presented before the child testified versus during the judge’s summing up. In a fifth control condition, no specialized CSA information was included. After reading a trial transcript, mock-jurors assessed witness credibility, rendered verdicts and again completed the CSA Misconceptions Questionnaire. All four interventions significantly increased jurors’ CSA knowledge. The more they knew, the more likely they were to convict. Perceived victim credibility fully mediated the effect of CSA knowledge on verdict: information presented via expert testimony or judicial directions enhanced perceptions of victim credibility, which in turn increased convictions. Conviction rates were significantly higher in response to expert testimony from a clinical psychologist and a judicial instruction provided in the trial summation. These results are promising for courts and policy-makers grappling with low conviction rates in CSA jury trials.

The Effects of Evidence, Coherence and Credentials on Jury Decision-Making in Child Sexual Abuse Trials

Expert testimony is being used increasingly in child sexual assault cases. This study extended a prior study that examined factors related to expert testimony (evidence strength, coherence and credentials of the expert) on ratings of guilt and overall verdict. Specifically, we replicated our prior study but with two modifications: we used community samples as opposed to university students, and participants made their decisions in groups of 12 (as in the case of juries where one decision represents the overall group) rather than having participants decide and submit their verdicts and guilt ratings individually. Consistent with the prior (less ecologically valid) study, credentials of the expert had negligible impact. Evidence that was high in strength elicited a relatively high guilt rating even when the testimony was low in coherence. Further, it appears that when participants deliberate in a group (as in the case of juries) they are more conservative in their judgements (i.e., they are less likely to give a guilty verdict) compared to individual jurors who make their decisions alone. These findings suggest that caution must be exercised when drawing conclusions about the generalisability of prior research findings where participants did not engage in group deliberation.

Enhancing the credibility of complainants in child sexual assault trials: The effect of expert evidence and judicial directions

This study investigated the knowledge and misconceptions of jury-eligible citizens about children's reliability as witnesses and responses to child sexual assault (CSA), and examined the influence of expert evidence and judicial directions in challenging common misconceptions. Community volunteers (N = 130) read one of five versions of a simulated jury trial, and completed a pre- and post-trial questionnaire to provide measures of their knowledge of children's responses to sexual abuse, perceptions of victim credibility, and verdict. Results revealed that endorsement of CSA misconceptions negatively impacted ratings of complainant credibility and verdicts. Judicial directions provided before the child complainant testified enhanced complainant credibility, which in turn predicted guilty verdicts. Comparisons of the effectiveness of two procedural legal mechanisms to manage juror misconceptions and improve knowledge about CSA provide guidance for future researchers investigating ways to increase fairness in cases of CSA.

Understanding Children's Medium for Disclosing Sexual Abuse: A Tool for Overcoming Potential Misconceptions in the Courtroom

Complainants in child sexual assault trials are often questioned by the defence about disclosure of the alleged abuse. The defence will often ask the child how they disclosed the alleged sexual abuse, including to whom the initial disclosure was made. Such questions are legitimate and directed towards testing the complainant's allegations. Sometimes, such questions are used to impeach the complainant's credibility. It is not uncommon in such instances for the defence to suggest that certain modes of disclosure are more consistent with having been sexually victimized and that a complainant who has disclosed otherwise is more likely to have fabricated the allegations of abuse. This article reviews the findings of empirical research on whom victims of child sexual abuse most commonly disclose their abuse to and by what means such disclosure is commonly made. This understanding is important to challenge misconceived views about how victims disclose child sexual abuse.

Children, Sexual Abuse and Suggestibility: What Laypeople Think They Know and What the Literature Tells Us

This article summarizes the extensive research literature on laypeople's and jurors' beliefs about children's memory, suggestibility and responses to child sexual abuse. In particular, it discusses the extent and types of misconceptions held by laypeople/jurors, as well as the effects of age, education and gender on those misconceptions. The results from an analysis of mock jury studies where different types of expert testimony were presented are then considered in order to understand the types of expert testimony that would be admissible in courts in Australia, with a particular focus on the Uniform Evidence Act. As a result of this analysis, particular reform options are discussed and recommended in order to counter juror misconceptions in child sexual abuse trials.

Juror Perceptions of Child Eyewitness Testimony in a Sexual Abuse Trial

ABSTRACT A mock child sexual abuse trial was used to study juror perceptions of child eyewitnesses. The child's age (5, 11, or 16) and level of involvement (victim or bystander) were varied across conditions in order to test their impact on juror perceptions and verdict. Results indicated a significant effect of level of involvement on the verdict; defendants in trials involving a bystander witness received higher guilt ratings than defendants in trials with a victim-witness. In addition, jurors perceived the child's eyewitness testimony to be more believable when the child was younger. Implications for the impact of these findings on real-life child sexual abuse cases are discussed.

The Impact of Mock Jury Gender Composition on Deliberations and Conviction Rates in a Child Sexual Assault Trial

This study investigated how the gender composition of mock juries affects deliberations and conviction rates in a child sexual assault (CSA) trial. As opposed to studies in which mock jurors make decisions as individuals, mock jury research allows for investigation of how individual decisions translate into group verdicts. Gender composition within mock juries was varied to examine whether well-established gender differences in individual judgments affect the jury-level decision-making process. Three hundred men and women, in 6-member mock juries, heard a fictional CSA trial. During deliberations, proprosecution/ prodefense statements by women were approximately equal, whereas men made more prodefense statements. Women switched votes during deliberations more than did men; jurors in woman majority mock juries changed from not guilty to guilty more often than did jurors in nonwoman majority juries, and vice versa; and woman majority mock juries convicted most often. Findings indicate that predeliberation gender differences led to unique jury deliberation strategies and voting patterns.

Judicial Perceptions of Jurors' Understanding of How Children Respond to Sexual Victimisation

This article examines judicial views in Australia and overseas on juror understanding of the behavioural responses of children to sexual victimisation. The article highlights that some judges in Australia perceive jurors as being sufficiently knowledgeable on this subject matter so as not to warrant the use of expert opinion evidence in child sexual assault trials. In contrast, many judges in the United States and Canada have concluded to the contrary, that jurors lack sufficient understanding of the behaviour of sexually abused children and the underlying dynamics of child sexual abuse so as to necessitate the use of expert evidence at trial. Such stark differences in judges' assessment of jurors' understanding of this subject matter give rise to questions regarding the basis upon which judges are making such conclusions and the validity of these conclusions. This article points to the fact that judges in Australia and overseas have seemingly reached decisions in relation to this issue on the basis of their own subjective views without any recourse to more objective data, such as the findings of empirical research. Such subjective decision-making introduces potential bias into the trial process.

Effects of Interview Style and Witness Age on Perceptions of Children's Credibility in Sexual Abuse Cases

The present study concerned effects of interview style and victim age on perceptions of child victim/witnesses and defendant guilt. In 2 experiments, participants read written scenarios of child sexual abuse trials. The scenarios included a transcript of the child victim/ witness's forensic interview, in which questioning varied from less leading to highly leading. In Experiment 1, child age (4 years vs. 7 years) did not significantly influence guilt ratings, but mock jurors were less likely to convict the alleged perpetrator and less likely to rate the child as credible and reliable when testimony was elicited through a highly leading vs. an intermediately or less leading interview. The effect of interview style on guilt ratings replicated in Experiment 2 for a 4-year-old victim/witness but not a 7-year-old victim/witness. In both studies, women compared to men were more likely to convict the defendant and to believe the child. Implications for understanding jurors’ reactions to child victim/witness testimony are discussed.