Delayed Complaints in Childhood Sexual Abuse Prosecutions—A Comparative Evaluation of Admissibility Determinations and Judicial Warnings
| Author | Penney Lewis |
| Date | 01 May 2006 |
| DOI | 10.1350/ijep.2006.10.2.104 |
| Published date | 01 May 2006 |
| Subject Matter | Article |
DELAYED COMPLAINTS IN CHILDHOOD SEXUAL ABUSE PROSECUTIONS
Delayed complaints
in childhood sexual
abuse prosecutions—a
comparative evaluation
of admissibility
determinations and
judicial warnings
By Penney Lewis*
Reader in Law, King’s College London
Abstract This article reviews legal responses to delayed complaints in child
sexual abuse prosecutions in Australia, Canada, the United States, Ireland, and
England and Wales, focusing on recent legislative and judicial modifications
to the historical common law requirement for early or recent complaint.
Consideration is given to three legal mechanisms regulating the jury’s access to
information about delayed complaints: cross-examination of the complainant
on the issue of delay, the admissibility of a late complaint for the prosecution,
and judicial warnings indicating how, if at all, jurors should incorporate the
fact of late complaint into their deliberations.
Introduction: the prevalence of delayed complaints
udging from the plethora of appellate decisions emanating from
England and Wales, Ireland, Canada, Australia and New Zealand, the
number of cases of alleged childhood sexual abuse which are only
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF (2006) 10 E&P 104–127 104
J
* Email: penney.lewis@kcl.ac.uk. I am grateful to Jill Hunter, Raymond Emson, Jeremy Gans and
Terese Henning for discussing these issues with me and to Jill Hunter and Paul Roberts for helpful
comments on earlier versions. All responsibility for the content remains my own. This article
appears in P. Lewis, Delayed Prosecution for Childhood Sexual Abuse (Oxford University Press: Oxford,
2006) ch 5, 93–111 and is reproduced by permission of Oxford University Press.
reported and prosecuted many years after the abuse was alleged to have occurred
appears to be rising.1There is, however, very little evidence about the number of
such cases in each jurisdiction.2Only a very small proportion of childhood sexual
abuse (CSA) is ever officially reported.3While rates of disclosure (for example, to a
parent, teacher or friend) are higher than reporting rates, they are still extremely
low.4Although we do not yet know the causes of delay in disclosure and report, it
is clear that substantial delays are common.5While studies have shed some light
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DELAYED COMPLAINTS IN CHILDHOOD SEXUAL ABUSE PROSECUTIONS
1 See Penney Lewis, Delayed Prosecution for Childhood Sexual Abuse (Oxford University Press: Oxford,
2006). This article draws on chs 1 and 5 of the book.
2 Although in addition to the evidence from the volume of cases, there is anecdotal evidence. For
example, the Metropolitan Police in London indicated in their evidence to the Home Affairs
Committee that ‘significant numbers of victims ... are aged between 30 to 40 years’ at the time of
report. House of Commons Home Affairs Committee, The Conduct of Investigations into Past Cases of
Abuse in Children’s Homes, Fourth Report of Session 2001–02, HC836, 31 October 2002, Vol. II,
Memorandum 41. See also, Lord Rodger in J[2004] UKHL 42, [2005] 1 AC 562 at [54](‘in recent years,
especially in the area of sexual offences, there have been many prosecutions for offences that came
to light only decades after they were committed when, for the first time, the victim or victims
revealed what had happened’); D. Stephen Lindsay and J. Don Read, ‘Psychotherapy and Memories
of Childhood Sexual Abuse: A Cognitive Perspective’ (1994) 8(4) Applied Cognitive Psychology 281, 327
(describing a ‘large increase in delayed accusations of incestuous abuse in the last five years’). A
study in the Australian jurisdiction of Victoria revealed that between 1994 and 2002, over one-
third of all reports of rape ‘were made at least two years following the offence. Approximately 31%
of these reports related to events that occurred more than five years ago’. Victorian Law Reform
Commission, Sexual Offences: Law and Procedure—Interim Report (2003) [2.35], Graph 3. For penetrative
offences other than rape, over 40 per cent of all reports were made at least two years following the
offence: ibid. at Graph 4. Porter et al. report a similar trend in North America, although their
evidence basis is unclear: ‘the number of allegations of historical abuse coming before North
American courts has been steadily increasing as more people have chosen to report earlier
victimizations’ (see Stephen Porter et al., ‘‘He Said, She Said’: A Psychological Perspective on
Historical Memory Evidence in the Courtroom’ (2003) 44(3) Canadian Psychology 190, 191).
3 Estimates of reporting rates based on surveys of adults range between 2 per cent and 18 per cent.
See Lewis, above n. 1 at 3–4; Kamala London et al., ‘Disclosure of Child Sexual Abuse: What Does the
Research Tell Us About the Ways That Children Tell?’ (2005) 11(1) Psychology, Public Policy and Law
194, 203 (reviewing four retrospective studies which reported rates of reporting to the authorities
of 10, 12, 13 and 18 per cent).
4 A recent review of a number of retrospective studies of adults describing CSA disclosure estimated
that only one-third of CSA victims disclose during their childhood, while only 10–18 per cent of
CSA is officially reported. London et al., above n. 3 at 199, 201 (looking at 11 retrospective studies, 10
of which substantiated this figure, and observing that ‘[g]iven the differences in methodology,
definitions of abuse, and sample characteristics, the general consistency of these findings across
these studies is noteworthy’). The disparity between disclosure and reporting rates is due to a
combination of factors. See Lewis, above n. 1 at 5.
5 D. W. Smith et al., ‘Delay in Disclosure of Childhood Rape: Results from a National Survey’ (2000)
24(2) Child Abuse & Neglect 273, 283 (28 per cent of adult CSA victims had not disclosed prior to the
survey; 47 per cent did not disclose within five years of childhood rape). Similar evidence of
delayed disclosure exists amongst studies involving children. London et al., above n. 3 at 204;
Thomas D. Lyon, ‘Scientific Support for Expert Testimony on Child Sexual Abuse Accommodation’
in Jon R. Conte (ed.), Critical Issues in Child Sexual Abuse (Sage Publications: Thousand Oaks,
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