Eleanor Prince, Samantha Andrews, Michael Lamb and Juliet Foster (2018) The construction of allegedly abused children’s narratives in Scottish criminal courts. Psychology, Crime & Law, Vol 24(6), p 621-651
Why we are sharing this article
Research and practice in child sexual abuse is not for the feint hearted. It requires you to throw yourself into some of the worst stories of human behaviour and suffering. Over time we begin to find a way to cope with the stories we hear, but some will always cut even closer to the bone. This article captured one of those stories, which was important to share not because it is a particularly traumatic example of sexual abuse - but because it is a devastating example of the emotional abuse of victims by the current legal system.
In a majority of child sex abuse cases, the victim’s testimony is the only evidence available. So prosecutors and defence lawyers have developed a range of tactics to address the strength of this particular evidence, with reference to reliability and credibility. Frequently, cross-examination tactics leverage existing myths jurors may have about child sexual abuse in an effort to undermine the reliability and credibility of the victim.
This study aimed to explore how these tactics may differ based on the age of the child and their relationship to with the perpetrator.
While this research may not be immediately relevant to your day to day practice, the stories it tells provides a chilling insight into the likely experience clients have when giving evidence of abuse in court.
The study included 66 cases that went to trial in Scotland between 2009-2014 for victims between 5-17 years. Thematic analysis was undertaken to explore how children were questioned by prosecutors and defence.
Findings for age
5-12 year olds likely to be depicted as confused or lying.
13-15 year olds were likely to be depicted as naively engaging in adult behaviours - thereby giving implicit consent when the relationship progressed to sexual abuse.
16-17 year olds were most likely to be subject to victim blaming such as accusation of consent or questioning why they didn’t fight off the perpetrator.
Interestingly - age related tactics were based on the age of the victim at trial NOT at the time of the abuse. A perverse example of this is when a 16/17 year old was asked “Did you try to push him?” even though she was 4 at the time of the abuse.
Findings for relationship
Where the perpetrator was a father/step father, the defence often accused children of being coached or lying due to a custody battle.
Where the perpetrator was a relative, often the child would be depicted as the instigator of the abuse.
Where the perpetrator was a non-relative, defence would suggest the child consented to the abuse. In at least one case the child was below the age of consent, yet the defence still raised it.
Often a combination of tactics would be used over the course of cross-examination simultaneously depicting the child as psychologically immature, physically developed and willingly engaging in adult behaviours
Every defendant has the right to test the evidence presented against them at trial, but the questioning style of child victims may amount to secondary victimisation. While the legal system has begun to address the well-being of child witnesses at court, cross-examination practices remain unchanged and not only undermine the potential for justice, but may significantly compound the trauma these children have experienced.
This is evident in the following case included in the research:
The victim was aged 16/17 years at the time of trial and there was video footage of the perpetrator having intercourse with the teenager. This level of evidence is unusual in a case and hard for a defence lawyer to challenge… this is some of the transcript from the cross-examination:
Defence: Did you ask him to come downstairs and act out a rape fantasy in his house?
Child: Absolutely not.
And later in the cross-examination
Defence: Why were you having sexual relations with a rapist?
Surely such a line of questions is the ultimate disrespect to the court process? The fact that a Defence lawyer can ask a child victim such questions and not be censured, let alone held in contempt of court - highlights the fundamental problems with the cross-examination process.
But it got worse…
Later in the transcript came this:
Defence: My Lord, I wish for us to have a look at certain parts of the legal production which is video three.
(Video of alleged abuse playing)
Child: Can I have a break?
(No response form the court)
Child: Can you stop that please?
(No response from the court)
SERIOUSLY? “No response from the court”?
Those six lines break our hearts.
These cases all come from a progressive Western common-law jurisdiction within the past 10 years. In the pursuit of ‘justice’ - this child victim was accused of having a rape fantasy and lying about the rape fantasy to falsely accuse the perpetrator, and was then forced to watch her own rape in front of everyone else in court …. and there is No response from the court. The idea that a group of well educated, professional people sat in a court and allowed this scene to play out is heart breaking…. and not acceptable.
Implications for practice
If you are working with a client that is going through the court process, you cannot talk with them about their evidence or coach their testimony, but you can let them know about the types of tactics typically used in cross-examination. Warning them ahead of time that the defence lawyers use a range of tactics - regardless of the facts of the case - may assist them to understand that it is not a personal reflection of their credibility or reliability. Rather, it’s a reflection of an inherent problem in the justice system.
If you are working with a client that has gone through the process in the past, then hopefully this research provides insight into how traumatic the experience can be and may be worth exploring as a treatment target.