Child sex-abuse victims are being failed by the courts as lawyers bully young witnesses and jurors misunderstand abuse, ground-breaking research suggests.
Juries are increasingly wanting corroborative evidence before convicting an accused even if they believe the child. Conviction rates for alleged assaults on adults and children remain low, with only 6 per cent of all cases reported to police resulting in a conviction.
The research, done by forensic psychologist Suzanne Blackwell, shows the court process is particularly fraught for children, as many defence lawyers use aggressive, misleading cross-examination and play on myths about child abuse to get their clients off.
Some lawyers also appear to engineer delays, knowing that juries are less likely to believe older children, especially teenagers.
Critics say that, rather than seeking truth and justice, child sex-abuse trials are simply a fight to win. And it is the child victims who are losing out.
"I do think that the public and jurors think that the point of the criminal justice system is to determine the truth," Ms Blackwell says. "But it becomes an unequal game between a scared court-naive complainant and a practised defence counsel."
Children's Commissioner Cindy Kiro agrees. "If the purpose is to extract the truth from a situation and for children to be able to be confident and able to give evidence in a way that makes sense to them, then I think we have to find another way. We certainly need to do better."
Ms Blackwell, a former Justice Department consultant psychologist, finds that jurors seem to require corroborative evidence to convict the accused, even if they believe the child.
The increasing demand for corroborative evidence to convict has been termed the CSI effect, linked to the popularity of crime television shows that have convinced the public there will be a raft of forensic evidence in any crime. When it is not there, they tend to acquit.
Ms Blackwell found she could predict the outcome of a child sex-offence trial before it began, with statistically significant accuracy, based on a set of nine variables. If three of these were present, the accused would be convicted on at least one charge. If not, the accused would be acquitted, even if the jurors believed the child.
"Does this mean if these factors are not present, accused should not be prosecuted? No, not in a just and civil society."
Ms Blackwell says sexual offences should be treated differently from other crimes. She acknowledges it is a complex issue, but advocates a more inquisitorial approach, whereby judges inquire into the facts to seek the truth rather than lawyers for both sides fighting to win.
"I think at the moment we have a system that has a fair process for the accused, but not fair process for the victim. I don't think we are always getting accurate determinations in these trials."
Barrister Frances Joychild wants a review of the way all rape and sexual violation cases are tried and also supports the inquisitorial model. She says the way victims are treated in the trial process is "brutal".
But Auckland University senior law lecturer Scott Optican says it is problematic to change procedures to win more cases.
"It's not clear how you could change trial processes to simply create more evidence in a child sex-abuse case to sway the jury. If it's not there, it's just not there."
- The Dominion Post
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