Complaints of Child Sexual Abuse: Too Easy to Make or Too Difficult to Prove?
| Author | Anne Cossins |
| Published date | 01 August 2001 |
| DOI | 10.1177/000486580103400204 |
| Date | 01 August 2001 |
| Subject Matter | Article |
Complaints
of
Child
Sexual Abuse:
Too
Easy
to Make or Too Difficult to Prove?
Anne Cossins
University
ofNew
South
Wales
ThiSarticle analyses the social context in which the corroboration
warning became
entrenched
in
the
child sexual
assault
trial,
its historical
legacy
in terms of present
Iday
practice and the theoretical
implications
of
this
history
and
practice
in
terms
of
the
sexed
and gendered constructions of the female child complainant. In light
of this analysis. the article discusses the implications for law reform
of the child sexual assault trial, in particular the need
to
address the
unique problems associated with prosecuting child sex offences.
This paper challenges the rationale for the continued use of the corroboration
warning
in
child
sexual
assault trials
given
that
it is widely
accepted
in Australia that child sexual assault is one of
the
most difficult crimes to prosecute
(Brereton
&
Cole,
1991;
Cashmore,
1995;
Parliament
of
Victoria,
Crime
Prevention Committee, 1995; Royal Commission into the New South Wales Police
Service, 1997).
In undertaking this challenge, it is important to recognise
that
child sexual
assault was, historically, treated by legislators and
the
criminal justice system
as a crime committed by men against female children (Allen, 1990; Cossins, 2000)
and, like the crime of rape, this historical sex and gender specificity has affected
the
way that child sex offences are prosecuted. In particular, the prosecution of
child sex offences takes place within a context in which the complainant is faced
with the criminal justice system's historical desire to protect the accused man from
false accusations because of the entrenched cultural belief that girls commonly lie
about being sexually assaulted (Allen, 1990; Bavin-Mizzi, 1995; Boniface, 1994).
Complainants are also faced with the contemporary cultural belief
that
child sexual
abuse is committed by "deviant" men (Cossins, 2000), all of which suggests that
the truth/fiction dichotomy will
be
central
to
the sexed and gendered constructions
of the complainant within the trial.
Although there is a view
that
"[clases involving young children are probably
harder to prosecute successfully" merely because the case involves a child witness
(Cashmore, 1995, p. 49), such an assumption obscures the sexed
and
gendered
context in which such cases are heard and, hence, the possible impact of warnings
Addma for
correspondence:
DrAnne
Cossins,
Faculty
of
Law,
The University of NewSouth
Wales,
Sydney
NSW
2052,
Austtalia.
THEAU51'RAlJAN
ANDNEW
ZEAlAND
jOl.JRNAL
OF
CRIMINOLOGY
'O.UI"E 34
......
11001 ...
149-168
14'
ISO
ANNE COSSINS
that
have historically created apresumption of unreliability in relation to female
children's evidence. In NSW, for example, conviction rates for child sex offences
have been found to be relatively lower
than
conviction
rates for
the
category
combining all other criminal offences (Cashmore, 1995; Cossins, 1998) (see Table
1). Indeed,
the
above assumption is undermined by the fact that
the
conviction
rates in Table 1 are similar to the conviction rate of 31 %obtained in a one year
study of
adult
sexual assault trials
(NSW
Department for Women, 1996) where
issuesof age and competency to give evidence do
not
generally arise.
Such data suggest
that
the
age of
the
complainant may
not
be as significant
in its effect on outcomes in sexual assault trials compared to other factors such
as
the
corroboration warning which is the subject of this article. In fact,
the
avail-
able data on
the
relationship between conviction rates and age of complainant
is equivocal
(Cashmore
&Horsky, 1988;
Cashmore,
1995) in
that
it
cannot
be
concluded that the younger the age of the complainant, the less likely a conviction.
TAllE 1
Conviction
Rotes
for
Child
Sex
Offences
in NSW
Higher
Courts,
April
1991
-
April
1992
and January 1992 -
December
1996
Conviction
Conviction
Overall
Overall
Rote
of
Trial
Rote
of
Trial
Conviction
Rote
Conviction
Rote
(CSOs)
(AOOs)
(CSOs)
(AOOs)
(%1
(%) (%)
(%)
.
-_._-----_
..
_._~._.
-.,- -
._.,_._._------.~---_._
....
_-_.
__
.--------_._--_..
_---
.'_.'.'._"'-
-------
April
1991
to April 1992 38.0 46.7(*) 66.5 Nodoto
(Cashmore,
1995)
Jon 1992 to
Dec
1992 39.8 43.6 72.6 80.0
(Cossins.
1998)
Jon 1993 to
Dec
1993 36.5 39.4 70.6 77.5
(Cossins,
1998)
Jon 1994 to
Dec
1994 28.6 41.7 67.0 80.3
(Cossins,
1998)
Jon 1995 to
Dec
1995 33.5 37.9 71.6 79.4
(Cossins.
1998)
Jon 1996 to
Dec
1996 33.3 37.9 67.6 77.9
(Cossins,
1998)
Jon 1992 to Dec 1996 34.1 40.3 69.7 79.1
(Cossins,
1998)
~--"
..
_.-._-~-----_
.....
_._---_._--_
..
__
._-_._-~-,--_._~-_._-_._-_._-_
..
_--------~_.-
NolIIIo
Tablt:
1.
CSOs:
child
IP
offwnall
2.
MX>a:
all
other
oJr.-.
exduding
child
IlIlC
offences
3.
Conviction
rate at
mol
represents
those
caMS
where
the
accused
pltoded
not
guilty
but
_I
found
guilty
at
mol
101 0
proportion
01
011
co
...
~nolisedl.
A. 0-011
conviction
ralt
reprtsents
those
easel
that
mulledin
guilty
by
vwdict
and
guilty
pilOt
(01 a
pr0por-
tion
01
all
CONI
~nolised).
5. In
the
atudy
by
eo
..inl
119981
outcome
ofchorg.
data
_I
lupplitdby
the
NSW
Burtllll
ofCrillll,
Slotiatia
ondR_rch.
6. NoM
thot
thecoltgory 01
011
other
oFfencel
will
include
lOme
oJr.-.
that
art _
mort
difficult
to
proIICU"
!han
child
IlIlC
oHtncta,
luch
01
ollOults
by
policelAndtraon.
19951.
7. 1°'
This
~gurt
il
based
ona
calendar
year
period.
THE
AUSTRALIAN
AND NEW
ZEALAND
JOURNAL
OFCRIMINOlOGY
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