Emma Davies: Children denied justice in court

COMMENT


Imagine this. A child is repeatedly raped and beaten by her uncle. She tells a teacher, who rings Child Youth and Family. She is then questioned on videotape by a child interviewer.

This videotape is given to the police. After weighing up all the evidence, the police decide to prosecute the uncle. So this child becomes one of the minority of such cases that make it into our criminal courts.

The child's videotaped interview is shown in court more than a year after it was made. The prosecuting lawyer then asks her a few questions. The defence lawyer then cross-examines her. In this cross-examination, she is bombarded with questions designed to confuse. When the child, unsurprisingly, says something inconsistent with previous statements made more than a year earlier, the defence lawyer is pleased.

Adults elsewhere find comfort in the confirmation of their prejudice that children are necessarily unreliable witnesses.

A University of Otago study of children as witnesses in criminal proceedings was reported recently. According to the researchers, their findings demonstrate that cross-examination-style questioning is inappropriate for young children.

But in keeping with the common prejudice, the Herald's headline read: "Flaws in children's evidence says study".

A photo of Peter Ellis, the Christchurch creche worker convicted of child sexual abuse, and Judith Ablett-Kerr, his lawyer, accompanied the article, to underline the point that children's testimony is suspect.

The Otago study did, in fact, show that three-quarters of children changed an aspect of their testimony in cross-examination. But we should not be surprised. Defence lawyers are taught to ask child complainants leading questions with the clear intent of testing their testimony. The main purpose of cross-examination is to discredit the competence and credibility of complainants' evidence.

The flaws in children's evidence are not located in children. The flaws are in a justice system that marginalises children.

The Otago study replicated and extended research that I conducted with Fred Seymour in 1996. We analysed 26 transcripts of children's testimony in child sexual abuse trials. We found that child interviewers responsible for taking videotaped statements were sensitive and careful when interviewing children. Defence lawyers were not.

If children are to communicate accurately in the court, they must be asked questions they can understand. Despite media attention on child interviewers' practices, we found their questioning techniques were more appropriate to a child's level of understanding. They helped children to tell their accounts more than lawyers.

Defence lawyers ask more complicated questions than either prosecution lawyers or child interviewers. According to the most recent research, children's age has no effect on the types of questions these lawyers ask.

During cross-examination, lawyers muddle the order of questions, unwittingly or deliberately to confuse children. This is recommended practice in legal textbooks.

It's not just incomprehensible language that is used against children in court. Some defence strategies are reliant on accusing children of being liars or attention-seekers, with no evidence to support their allegations; others present false dynamics of child abuse to suggest to children and the jury that the allegations could not be true.

Myths about child abuse that are used in this way include the ideas that genuine victims feel only hatred for their abusers and that children will necessarily struggle if they are sexually violated. But abuse usually occurs in the context of a relationship. It regularly involves a man on whom the child is dependent and with whom they sometimes have a good time.

So children often have mixed feelings towards the adults who violate them. Indeed, interviews with paedophiles who abuse outside their family reveal how they systematically win the confidence of vulnerable children before engaging in sexual acts.

Confronting children with allegations that they are lying or asking them incomprehensible questions in our courts cannot possibly be in the interests of justice. The Rules of Professional Conduct for Barristers and Solicitors emphasise lawyers' wider duty to fairness and the administration of justice above the interests of his or her client. Fairness to children does not equate to unfairness to the accused.

"Misconceptions are, in effect, prejudices. No judge would conclude a trial without instructing the jury that they are to put all prejudices to one side, and specifically refer to those prejudices relevant to the particular case. So, too, any misconception should be addressed and corrected. At times, debunking a myth may be as critical to a fair deliberation of the charge as instruction on the law," wrote Justice Thomas in his indictment of the legal system's treatment of adult rape complainants.

It is equally important to expose prejudices about children and myths about the dynamics of child abuse.

Judges have responsibility for the overall conduct of a trial. According to the Evidence Act, the trial judge is obliged to ensure that no question is intimidating or overbearing, given the age of the witness. But our results showed no evidence of a judge intervening on these grounds to prevent a child from trying to answer an incomprehensible question or one based on myth.

Current practice with child complainants does not seem to be consistent with a justice system that seeks the truth. As one lawyer says: "You want to look like the truth is the issue, even if it is not. The truth is that you're not after the truth at all. The jury system's not about truth, it's about proving the guilt of the person beyond reasonable doubt."

We can increase the likelihood that children can accurately recall and honestly relate their experience of events in our criminal courts. But judges may be reluctant to intervene for fear of a retrial, and it is not in the interests of defence lawyers' clients to change their practice.

So there may be a need for an intermediary, someone who translates questions for children. This happens in South Africa. But it is not a popular job. It is so stressful that intermediaries do not stay long.

Some would argue it is the adversarial nature of our justice system that is not suited to children. There may be merit in exploring how other kinds of legal systems operate, for example the inquisitorial approach in France.

The Ministry of Justice has begun an Education for Court programme for children who give evidence in a criminal trial. A pilot programme was successful. Child witnesses will be offered a basic understanding of some of the rules of the criminal court. But it is clearly not enough.

Children's and adults' memories fade over time. We are quick to discredit children's credibility. We are slow to address the year-long delays between children making their videoed statements and cross-examination at trial.

In the context of the Ellis case, some are loud in their demand for justice and truth. Their focus is highly selective. There is deafening silence about the injustice of the way children are treated in our courts.

* Dr Emma Davies lectures in the Auckland University of Technology's institute of public policy.