© The Author(s) 2020
A. CossinsClosing the Justice Gap for Adult and Child Sexual Assaulthttps://doi.org/10.1057/978-1-137-32051-3_10

10. The Problems Facing Reformers of the Sexual Assault Trial

Anne Cossins1  
(1)
Honorary Professor and former Professor of Law and Criminology Faculty of Law, University of New South Wales, Sydney, Australia
 
 
Anne Cossins
Email: a.cossins@unsw.edu.au

1 Introduction: The Problems Facing Reformers of the Sexual Assault Trial

While law reform in the area of sexual assault has traditionally been ‘far removed from the values and politics of the women’s movement’ (Smart, 1989: 164), feminist academics in recent years have had much more input into the process than in earlier decades. However, as discussed in Chapter 1, some believe that ‘these significant social, political and legal reforms have resulted in little practical improvement in the operation of the criminal justice system’ (Naylor, 2010: 662; see also Daly & Bouhours, 2010; Pether, 2009; Smith & Skinner, 2017). Certainly, low reporting rates, high attrition rates and relatively low conviction rates (see Chapter 1) do not appear to have been affected by legal reforms to the sexual assault trial.

When a former UK Director of Public Prosecutions, Sir Keir Starmer, retired in 2013 he believed that there was much more to be done in relation to the prosecution of sex offences because of inaccurate assumptions:

about what ‘real’ victims do: a real victim goes straight to the police; a real victim will give a coherent and consistent account, in chronological order; a real victim would never go back to the perpetrator; a real victim wouldn’t dress in a particular way, or drink or take drugs. Over time, those tests or assumptions have ended up ringfencing some of the most vulnerable victims from criminal justice protection. (Williams, 2013)

Indeed, the experience of a juror in a CSA trial in NSW in 2018 highlights the profound inadequacies of jurors in assessing the behaviours of victims:

[the jury is a] combination of genders, ages, backgrounds, religions and life experiences. What became clear over the three weeks of deliberation that followed a six-week trial is that the general public does not have the ability to do its job properly … [and does] not have the emotional intelligence to understand the psychology of victims and how their responses vary. Many of my fellow jurors found the girls and women unreliable. They could not fathom how the victims continued to place themselves in harm’s way. Girls between 10 and 16 years of age at the time of their assault, many of whom had been abused over a number of years, by a man who was either their uncle or foster father. That lack of empathy among so many on the jury undermined the facts of the case and left room for doubt.

Sitting around that table, I realised just how broken the system and society is when it comes to sexual assault. When you hear statements such as, ‘two fingers in a vagina wasn’t sexual assault in my day’ or ‘maybe they enjoyed it’ you realise we are fighting a battle that cannot be won. People like that, are never going to understand sexual assault and it’s impossible to convict a man with a jury that holds that mindset. … If my sister, or a friend or colleague came to me now and confided in me they had been sexually assaulted, I would encourage them not to report it. I realise how … that perpetuates the cycle of abuse, but I could not encourage anyone to go through the process I have just witnessed. (Cole, 2018)

The premise of this book is that juries’ verdicts and credibility assessments are influenced by a number of extra-legal factors, including individual jurors’ adherence to rape myths, the influence of which is likely to be ameliorated or exaggerated based on the extent to which rape myths are reproduced within the trial process, with various points within the trial that activate jurors’ heuristic reasoning (that is, reasoning based on intuitive ‘short cuts’, such as myths and inherent biases), as discussed in Chapter 6.

If complainants of sexual assault do not report or drop out of the criminal justice system because of the arduous nature of being interviewed by police and/or warnings about how they will be treated at trial then:

[t]he key to making the trial process meaningful to victims is the early acknowledgement of guilt by defendants who are in fact guilty. All of the current features of the trial militate against this. … In a contested trial, the victim will have to testify, running the gauntlet of … rape myths, of women as sexual temptresses and liars and men as hapless automatons. (Naylor, 2010: 663)

Legal reform is rarely informed with reference to the gendered cultural space represented by the sexual assault trial, leading to the question, ‘why have the waves of rape law reform … not made a difference to the law’s ability to do justice in the case of rape?’ (Pether, 2009: 244). In raising this question, however, it is necessary to interrogate the monolith called ‘the law’ and the meaning of ‘justice’.

Historically, rape laws were premised on ‘the logic that the law can tell the difference’ between consensual sex and sexual assault (Pether, 2009: 244) but this logic was in turn premised on the moral regulation of women (Cossins, 2015)—those worthy of protection and those who were not—which explains why a number of rules of evidence and procedure developed that were unique to the sexual assault trial, including evidence of sexual history and reputation, the delay in complaint rule, and jury warnings about the dangers of convicting in the absence of corroborating evidence (Rumney, 2006). Over the centuries many legal mechanisms were introduced to protect men from false complaints of sexual assault (see e.g. Boniface, 1994; Cossins, 1999, 2001; Kelly, 2010; Quilter, 2015).

Reform of this gendered cultural space is the mammoth task facing law reformers. The cultural context of the sexual assault trial is one of victim blaming with the underlying message that the complainant is responsible for the defendant’s sexual behaviour. The moral regulation of women’s and girls’ behaviours and reputations, historically, promoted the sexual access of men to women and reinforced the gendered power relations between the sexes. As discussed in Chapter 5, the moral worth of the complainant has always been on trial so that measures of her moral worth—active versus passive resistance, abstemious versus drunken behaviour, demure versus lascivious dress and behaviour—were and still are used to determine the credibility of her allegations.

As a result, female bodies became legally sexed into two categories—the chaste victim (who had no sexual history or reputation, who complained immediately and whose violation could be corroborated) and the unchaste victim (who had an immoral sexual history/reputation, delayed her complaint and whose complaint could not be corroborated), so that the law did not protect the latter from non-consensual sexual relations. The chaste victim’s lack of consent is implied while the immoral behaviour and/or reputation of the unchaste victim implies her consent.

In this way, the sexual relationship has been one of the key sites for the social control of women. Historically, men have controlled women’s bodies through the legality of physical violence, the criminalisation of abortion, the illegality of contraception, and the lack of recognition of rape in marriage as a crime. The sexual assault trial reflects this historical moral regulation by constructing the complainant as moral or immoral through various rules of evidence, the use of stereotypes and rape myths during cross-examination, measures of credibility and judicial directions.

Thus, the sexual assault trial takes place within an existing set of power relations represented by the power of the state through the police, prosecutorial agencies, judicial authority and the rights accorded to defendants. The complainant is situated within this hierarchical arrangement in a relatively powerless position. While she has no power to instigate a prosecution or to represent herself, she is not just a complainant of a crime, she is a sexed body—sexed according to the values associated with the female body and the behaviours expected of a chaste victim (Cossins, 2003). Only in recent times has the sexual assault complainant been recognised as a possible victim of trauma, a topic covered in Chapter 11.

For example, hearsay evidence of a complainant’s recent complaint was only ever relevant to boost a complainant’s credibility1 while evidence of a delayed complaint can still be used to undermine a complainant’s credibility (see Chapter 7). Legislative and common law protections for defendants based on delay in complaint and judicial warnings regarding the dangers of delayed complaint constitute forms of moral regulation of complainants. Many children and adults experience sexual abuse that is ongoing, rather than one-off, and is ‘frequently accompanied by psychological trauma, threats and other forms of abuse’ (Royal Commission in the NSW Police Service, 1997: 613) which ensures that victims will not report to the authorities for months or years (see Chapter 1). In other words, the delay in complaint warning penalised complainants for not responding to sexual assault in atypical ways since, as summarised in Chapter 1, psychological studies reveal that delay is a typical response to sexual assault.

Although the crime of rape began to be treated ‘as a crime of sexual violation’ during the eighteenth century—when a ‘woman’ was defined as a female over the age of 10 years (Hale, 1736/1971: 628)—this was ‘a period in which a number of … dubious “requirements” … made their way into the legal category of “rape”’ (Quilter, 2015: 104–105). Quilter (2015: 111) found that ‘the emphasis on resistance and injury, which has persisted through decades of attempts at statutory erasure, was the product of re-writings of the elements of “rape” from the older marriage and property laws’. Despite the conversion of rape into ‘a crime of sexual violation … requirements drawn from rape’s history as a property crime’ persisted (Quilter, 2015: 111) because of the status of women in previous centuries who had few political and legal rights and the entrenched moral regulation of women’s bodies (Cossins, 2015).

These requirements included:
  1. (i)

    Proof of the use of force against a woman’s will (formerly elements of the offence of rape) (Hale, 1736/1971);

     
  2. (ii)

    Proof of physical resistance (originally an element of the offence of rape);

     
  3. (iii)

    Immediate complaint (Hale, 1736/1971) which meant that delay in complaint was relevant to credibility and later became the subject of a judicial warning;

     
  4. (iv)

    Evidence of corroboration (resulting in the development of a corroboration warning if lacking);

     
  5. (v)

    Evidence of sexual history and sexual reputation; and

     
  6. (vi)

    A defence of mistaken belief as to consent in the substantive law of rape (see Chapter 7).

     
The problem for women was the cultural distinction made between ‘common strumpets’ (those of ‘evil fame’) and women whose chastity was worth preserving:

the party ravished … is in law a competent witness; but the credibility of her testimony, … [depends] upon the circumstances … that concur in that testimony. For instance: if the witness be of good fame; if she presently discovered the offense, and made search for the offender; if the party accused fled for it; … give greater probability to her evidence. But … if she be of evil fame, and stands unsupported by others; if she concealed the injury for any considerable time after she had opportunity to complain; if the place … was where it was possible she might have been heard, and she made no outcry; these and the like circumstances carry a strong … presumption that her testimony is false or feigned. (Blackstone, 1765–1769; emphasis added)

In fact, Blackstone (1765–1769) relays a cautionary tale told by a judge, a comment that has passed down the centuries from judge to judge:

but it must be remembered, that it is an accusation easy to be made, hard to be proved, but harder to be defended by the party accused, though innocent.

Remarkably, all of the above historical factors for assessing a false complaint are still evident in RMA studies and simulated jury studies of sexual assault trials (‘evil fame’ or moral worthiness, lack of immediate complaint; failure to cry out or resist and lack of supporting evidence). For example, when Burgin and Flynn (2019: 297) examined the transcripts of five sexual assault trials in depth, she found that ‘the attempts of law reform to date to remove the expectation that victims actively resist a violent attack have not been completely successful’. She reported that these trials revealed the reliance by defence counsel and judges on ‘the expectation that women demonstrate or “perform” active resistance … in constructing narratives of consent’ (ibid., 304). This occurred despite the enactment of jury directions in Victoria (s 47(3)(d), Jury Directions Act 2015), that allows a judge to inform a jury that ‘people who do not consent to a sexual act may not protest or physically resist the act’ (ibid., 303).

By the beginning of the eighteenth century, case law indicated that the failure to raise a ‘hue and cry’ had evolved into a presumption of fabrication so that evidence of a speedy complainant was admissible to boost the complainant’s credit as a witness (Gobbo, 1970: 245). Rape complainants, thus, became a special category of witness whose credit could be boosted by evidence of recent complaint but the converse was also true—the credit of rape complainants could be undermined by evidence of a delayed complaint, no matter how short.

Because it is common in Western cultures to blame the victim of an alleged sexual assault as a result of her perceived immoral behaviour, or, in the case of children, their supposed propensity for lying or fantasising, the prosecution must also prove the complainant’s moral worthiness, a difficult task, according to the jury studies discussed in Chapters 4 and 5.

In no other criminal trial is the moral worthiness of a victim or complainant a de facto fact in issue, in addition to the elements of the charge(s) that the prosecution must prove beyond a reasonable doubt. Since it is likely to remain so for the foreseeable future, the structure of the sexual assault trial requires reform to ameliorate this unfairness to complainants of sexual assault, both adults and children.

But reform of these rules only gets us so far. Even if the rules disappear, the myths behind them linger in the minds of fact-finders and also in modern benchbooks and judicial directions. For example, the UK Crown Court Compendium (Judicial College, 2017: 10-4) states:

Although corroboration in the strict sense is now no longer required in support of … [the evidence of children and sexual assault complainants], circumstances may nevertheless require the judge, as a matter of discretion in summing up, to give a warning to the jury about the need for caution in the absence of supporting evidence.

These circumstances can include the mere fact that there is no supporting evidence (the typical situation for historical sexual assault cases where the complainant has delayed her report to police):

Where there is no independent supportive evidence, it may be appropriate to remind the jury of that fact, and possibly to suggest that the jury may have wished for such evidence. In that event the jury should also be directed that they may nevertheless rely on the evidence of W if, having taken into account the need for caution and the absence of any independent supportive evidence, they are sure that W is telling the truth. (Judicial College, 2017: 10-7)

Similarly, in NSW, a corroboration warning can still be given despite abrogation of the requirement that it be mandatory.2

Any effective reform of the adversarial sexual assault trial must address the relations of power constructed by the sex-specific rules and procedures that have characterised complainants of sexual assault as an unreliable category of witness and which deny the reality of sexual assault—a crime that arises out of institutional, social and cultural relations of inequality and exploitation.

Law reform attempts will be limited unless they address this power imbalance and recognise that the criminal justice system is an institutional site for the reproduction of particular relations of power. Without addressing the gendered context in which sex offences are prosecuted, reforms can be easily ignored (Burgin & Flynn, 2019; Connolly, Coburn, & Chong, 2017) or undermined by old-fashioned reasoning about the unreliability of sexual assault complainants, both adults and children.

Some will argue recent law reforms have fixed the problem of myths and prejudice against sexual assault complainants since they highlight the modern sensitivity to the unique problems associated with prosecuting sexual assault (Connolly et al., 2017). These reforms include:

  • the abrogation of corroboration warnings which are no longer mandatory in relation to the evidence of children and sexual assault complainants;

  • the abrogation of delay in complaint warnings;

  • the enactment of rape shield laws which prevent admissibility of a complainant’s sexual reputation but still permit the admissibility of evidence of her sexual experience (depending on the jurisdiction);

  • the enactment of a legal privilege which prevents the admissibility of a complainant’s communications to her counsellor; and

  • courtroom innovations that enable a complainant to give pre-recorded evidence or evidence via CCTV (Cossins, 2010a).

However, Connolly et al. (2017) argue that it can take several years before such reforms result in changes in practice. When they examined 3035 historical CSA cases from 1986 to 2012, they found that, 17 years after the delay in complaint rule was abrogated in Canada:

the average length of delays to court began to decrease as did the average age of complainants … The late 1990s to early 2000s also marked the beginning of an increase in guilty pleas, [and] an increase in trial convictions. (Connolly et al., 2017: 172)

For example, the particular adversarial contortions that are required when evidence of a delayed complaint is admitted is evidenced by the extraordinarily long and misleading judicial direction that judges are required to give juries in E&W. Such a direction does everything to highlight the apparent significance of a delayed complaint to a group of laypeople even though there is sound evidence that the majority of complainants of sexual assault delay their complaint (see Chapter 1) and there is no evidence to prove a relationship between delay and fabrication.

The UK Crown Court Compendium (Judicial College, 2017: 10-4) states that ‘[w]here there has been a substantial delay between the alleged offence(s) and the making of the complaint that led to the current criminal proceedings’, the jury should be directed as follows:
  1. (1)

    The jury should consider the length of and the reasons for the delay in making the complaint and ask whether or not the delay makes the evidence in court of V more difficult to believe.

     
  2. (2)

    In a sexual case: the courts have found that victims of sexual offences can react in different ways. Some may complain immediately. Others may feel, for example, afraid, shocked, ashamed, confused or even guilty and may not speak out until some time has passed. There is no typical reaction. Every case is different. …

     
  3. (3)

    The jury should not assume that a late complaint is bound to be false, any more than an immediate complaint would definitely be truthful. The jury should consider the circumstances of the particular case.

     
  4. (4)

    The matters to be considered are (depending on the evidence and issues in the case):

    1. (a)

      Any reason(s) given by V for not having complained earlier.

       
    2. (b)

      Any reasons why V may have been put off from speaking out earlier (about which V did not give evidence) such as:

      1. (i)

        V felt afraid of D;

         
      2. (ii)

        V was shocked and/or ashamed and/or confused;

         
      3. (iii)

        V blamed himself;

         
      4. (iv)

        V had mixed feelings for D;

         
      5. (v)

        V was worried that no-one would believe him;

         
      6. (vi)

        V was worried about what would happen to him/D/the family if he spoke out.

         
       
    3. (c)

      Whether or not D is said to have put pressure on V to keep quiet and if so, how;

       
    4. (d)

      What triggered the eventual making of the complaint.

       
    5. (e)

      The age and degree of maturity and understanding of V at the time/s it is said that the offence/s was/were committed.

       
    6. (f)

      The difference in age and the relationship (if any) between V and D.

       
    7. (g)

      The physical and/or emotional situation in which V was living at the time.

       
    8. (h)

      Whether V had made earlier complaints that did not lead to criminal proceedings and if so when and, briefly, if relevant why they were not proceeded with.

      1. (i)

        Any reasons for the delay suggested by or on behalf of D.

         
       
     
  5. (5)

    It is for the jury alone to weigh up all these matters when deciding whether they are sure that V has given truthful and reliable evidence.

     

The question raised by the above analysis is, what is the reason for the entrenched relationship between delay, lack of corroboration and credibility? Clearly the issue is cultural and based on historical gendered power relations. As the above judicial direction states, if everyone reacts differently to sexual assault and a delayed complaint is not bound to be false just as an immediate complaint is not bound to be true, then why allow evidence of delay to be adduced at trial? How can delay be relevant to the facts in issue in a sexual assault trial, and why should a complainant be required to explain her reasons for delay, when the most common reaction to sexual assault is delayed complaint (see Chapter 1)?

A case study, TJ v R,3 illustrates how important reforms can be undermined in practice since ‘legal and attitudinal changes to CSA prosecutions … may take decades to observe real and substantial change’ (Connolly et al., 2017: 173). As happened in Canada (see Connolly et al., 2017), it may take an appeal case delivered some years later to endorse a particular legal reform and result in a change to prosecutorial and judicial practice.

TJ was a joint trial involving allegations of child sexual assault by two complainants, KB and PD. KB was first sexually abused at the age of 6 years. The case included a typical, lengthy direction to the jury about the ‘significance’ of delay in complaint, as well as lack of corroboration, which was worded in such a way that it could have been interpreted as a message to acquit:

There is no independent, objective evidence confirming the relevant complainant’s testimony … Therefore, in relation to each charge you should scrutinise the evidence of the complainant, KB or PD, very carefully before determining whether you are prepared to accept her evidence … .

You should consider the delay between the alleged events and the first complaints … [and] whether any of those delays may have meant that the recollection of K … could in any way be flawed and therefore unreliable … [since] human recollection is often inaccurate and the likelihood of inaccuracy increases as time passes. That is something you need to consider in terms of whether recollection was an honest but mistaken recollection.

Because of the delay in the accused learning of these allegations, he has been prejudiced in the conduct of his defence. I therefore caution you that it may be wrong for you to convict on either complainant’s evidence, unless, after scrutinising her evidence very carefully indeed, you are well satisfied that her evidence was both truthful and accurate.4

At the time of the joint trial involving KB and PD, which began in August 2007, the mandatory corroboration warning requirement had been abrogated and s 294 of the Criminal Procedure Act 1986 (NSW) was applicable, a provision that deals with delayed complaints. It was enacted to overcome the common law presumption that a delayed complaint could be used by the jury for its credibility purpose, that is, as evidence of false complaint.5

Where a question is asked of a witness that tends to suggest delay in, or an absence of, complaint, trial judges are required to give a s 294(2) warning juries in sexual assault trials in NSW, although in TJ, the trial judge ignored that requirement:
  1. (a)

    … that absence of complaint or delay in complaining does not necessarily indicate that the allegation that the offence was committed is false, and

     
  2. (b)

    … that there may be good reasons why a victim of a sexual assault may hesitate in making, or may refrain from making, a complaint about the assault.

     

This and other cases discussed in Chapter 7 reveal the limitations of law reform in the gendered context of the sexual assault trial where entrenched suspicions of the evidence of sexual assault complainants have existed for centuries. One only has to consider the realities of CSA in the TJ case: how likely is it that an offender would sexually abuse a six-year-old (the age of KB at the time) in front of witnesses? How likely is that a six-year-old would head down to her local police station and report the sexual abuse or even know that what had been done to her was a crime?

Indeed, it is one of the peculiarities of the criminal justice system that the innate vulnerability of children and the strategies used by sex offenders to groom victims and maintain their silence (O’Leary, Koh, & Dare, 2017) remain largely unrecognised so that this silence is allowed to be used as ‘evidence’ of the unreliability of the evidence given by child complainants.

On appeal, it is the habit of defence counsel to argue that the strength of the warning given in relation to a delayed complaint is too weak. Such an argument formed one of the grounds of appeal in TJ which resulted in a discussion of semantics by the appeal judges, that is, whether or not ‘caution’ was a synonym for the word, ‘warning’, a discussion that misses the point.6 The question is, why does a sexual assault complainant’s evidence require any warning in circumstances of delay or lack of corroboration when there is no evidence to prove that delay is indicative of fabrication, or that lack of corroboration is proof of unreliability? Some elucidation comes from McCallum J in TJ who said about warnings in general:

The essence of the distinction between … a caution and a direction framed as a warning lies in the requirement for a warning to identify and explain the risk or danger inherent in the trial as one the recognition of which derives from the Court’s specialised or accumulated experience.7

But individual judges’ experiences are anecdotal only, rather than specialised knowledge, and do not amount to research that would enable them to make any conclusions about the meaning of delay, generally, or in a particular case. In fact, judges rarely refer to the psychological literature which reveals that delay is a typical, not aberrant, feature of sexual assault, as discussed in Chapter 1.

Because of the ignorance within the criminal justice system about the phenomenon of sexual assault as a power-based crime which, typically, is not accompanied by corroborating evidence (such as eyewitnesses) and results in trauma-like symptoms, leading to underreporting and delayed complaints, the context for considering the reform measures in this chapter and the next is trauma-informed care of the complainant from the time her case is set down for prosecution.

The legacy of powerlessness for victims of trauma is repeated within the sexual assault trial since the complainant is a mere witness with no legal representation, and no other professional to monitor the effects of re-traumatisation on her ability to give her best evidence. Typically, the complainant is subject to traps set by defence counsel during the cross-examination process in order to produce confusion and inconsistencies in her evidence, and is subject to rape myths about her moral worth. Few complainants are prepared for the fact that their moral worth is on trial and that fact-finders’ assessments of her moral worth will likely determine the defendant’s guilt or innocence.

As discussed in this chapter, studies show that the use of gender and victim stereotypes within sexual assault scenarios can negatively influence perceptions of complainant credibility (Masser, Lee, & McKimmie, 2010; McKimmie, Masser, & Bongiorno, 2014; Schuller, McKimmie, Masser, & Klippenstine, 2010). One study found that ‘92 per cent of defence counsel … utilised one or more of the misconceptions about child sexual assault as the platform for the defence case during cross-examination of the child complainant and in opening or closing addresses to the jury’ (Blackwell, 2008: 15). Similarly, when 120 transcripts of complainant evidence from 94 child sexual abuse cases were analysed, Powell, Westera, Goodman-Delahunty, and Pichler (2016: 198, 202; footnotes omitted) found that:

defence lawyers used strategies that were inconsistent with the three key robust findings from psychological research, namely that:

  • children are capable of giving reliable evidence

  • errors about minor details do not indicate the central allegation is wrong

  • victims respond to abuse in many ways. …

Of greatest concern were questions implying poor complainant reliability or credibility based on incorrect and antiquated concepts of human memory and reactions to sexual abuse.

By focusing on the traumatic nature of sexual assault, the next chapter aims to shift understandings of sexual assault from a crime defined by rape myths to a historical cultural phenomenon with profound psychological consequences for victims. Unless the court environment is trauma-informed, a trauma survivor is likely to respond to triggers which re-enact her original experiences of trauma, thus setting off a range of emotions that can interfere with the ability to remember events and provide consistent answers. The sexual assault trial requires an understanding of justice from a trauma-informed perspective, which requires reform of the status of a complainant within a sexual assault trial. Only by recognising the gendered relations of power within the sexual assault trial, is it possible to explain why the evidence given by children and adults who have been sexually assaulted (who are often vulnerable as a result of age, social disadvantage and/or trauma symptoms) is treated as inherently suspicious. Reform options will be considered from these perspectives.

2 Special Measures for the Protection of Vulnerable Witnesses

While there has never been a better time for complainants of sexual assault, given the range of protective strategies that have been implemented in E&W and various Australian jurisdictions, their behaviours and credibility are still filtered through the misconceptions of laypeople.

The jury is the metaphorical elephant in the room that seems to be an intractable problem that is not able to be reformed. Paradoxically, the myths and misconceptions of jurors are allowed to sit side-by-side the many reforms in Australia and E&W that have focused on defining children and sexual assault complainants as ‘vulnerable witnesses’, thus providing a range of protective measures to ameliorate the traumatic nature of the sexual assault trial by facilitating the reception of their evidence in ways that aim to minimise re-traumatisation.

Although this chapter is not about already existing special measures to protect vulnerable witnesses since they are adequately dealt with elsewhere (Baverstock, 2016; Bowden, Henning, & Plater, 2014; Charles, 2012; Cossins, 2006, 2010a; HM Government, 2018; Ministry of Justice, 2012; Spencer & Lamb, 2012; Royal Commission into Institutional Responses to Child Sexual Abuse, 2017b, 2017c), a summary of the measures to improve complainants’ experiences in court reveals the legislative changes that have been designed to lessen the trauma of giving evidence of sexual assault. The availability of these measures varies from jurisdiction to jurisdiction, depending on eligibility requirements (such as age or disability). These measures include:

  • Video-recorded police interviews as the complainant’s evidence-in-chief in court which is then played at trial so the complainant is not required to give evidence in court8; or

  • Pre-recording of the complainant’s evidence-in-chief at a pre-trial hearing9;

  • Pre-recording of cross-examination in a pre-trial hearing10; or

  • CCTV and remote rooms (outside of the courtroom) for streaming the complainant’s ‘live’ evidence into the court11;

  • Screens between the complainant and defendant if the complainant chooses to give evidence in court12;

  • A support person for the complainant while she gives evidence;

  • The conduct of sexual assault trials in camera13;

  • Non-publication of the name(s) of complainant(s) and other identifying information14;

  • Mandatory obligations on judges to disallow improper questions by counsel, with legislation in NSW defining an improper question to include the manner or tone in which a question is asked15;

  • Enactment of provisions that prevent general judicial comments being made about the reliability of the evidence of sexual assault complainants and children16;

  • Preventing unrepresented defendants from personally cross-examining complainants17;

  • Removal of wigs and gowns by court personnel18;

  • Use of intermediaries at the police interview stage and at trial (see Chapter 9);

  • Training of specialist prosecutors and judges.

Other interventions such as court dogs which are relatively common in US states (Caprioli & Crenshaw, 2017; Courthouse Dogs Foundation, 2015; Crenshaw, Stella, O’Neill-Stephens, & Walsen, 2016; Gerkey, 2016) are becoming more common in Australia (Royal Commission, 2017b). However, such interventions, which are designed to ameliorate the emotionally abusive nature of the adversarial system, do not take place within a trauma-informed system. While Crenshaw et al. (2016), for example, recognise the ‘inhospitable’ court environment in the USA in which children are required to give evidence in their discussion of the need for court dogs, they do not canvass trauma-informed principles and their application to the adversarial trial.

In fact, the introduction of special measures for protecting vulnerable witnesses implicitly condones the traumatising impact of the adversarial system, resulting in the paradoxical situation whereby a complainant may be allowed a court dog, support person or other measures to reduce her stress and re-traumatisation within a system that is designed to traumatise her and prevent her from giving her best evidence. Indeed, the VLRC (2016) recently recognised this trauma in its one of its recommendations for greater protection of vulnerable witnesses:

Recommendation 37 (emphases added)

The Criminal Procedure Act 2009 (Vic) should be amended to include a definition of protected victim. A protected victim should be defined as a victim who is likely to suffer severe emotional trauma or be so intimidated or distressed as to be unable to give evidence or give evidence fairly.

As argued below, all sexual assault complainants ought to be treated as vulnerable or protected witnesses. But with no recognition of the need for trauma-informed principles within the sexual assault trial, definitions such as the above are mere words on paper. In the absence of specific reforms to prevent re-traumatisation, reforms to date are limited in preventing a complainant from ‘suffer[ing] severe emotional trauma or be so intimidated or distressed as to be unable to give evidence’ (as per Recommendation 37 above).

Generally, the approach of reformers is to institute reforms that are based on ameliorating the effects of the adversarial trial rather than changing the adversarial system to prevent harm to vulnerable victims. For example, Caprioli and Crenshaw (2017) recommended that children should be exposed to aggressive and hostile questioning to practice their responses in order to prepare them for trial. But how appropriate is it to emotionally abuse a child in order to prepare her or him for the emotional abuse s/he will experience during a criminal trial?

In another example, the Home Affairs Select Committee (2013) in E&W argued for reforms to ensure that traumatised child victims are able to give their best evidence in court. It made a number of recommendations (2013: 62–70) including that all victims of child sexual exploitation be offered the services of a trained Independent Sexual Violence Advisor (ISVA) (prior to the child’s ABE interview), as well as support services in the form of pre-trial therapy, a pre-court familiarisation visit and a meeting with the prosecutor in the presence of the ISVA. The aim was to ensure that a child would be supported by the same ISVA throughout the trial process.

There was also a view that ‘the balance is skewed too strongly in favour of protecting the defendant’s rights as opposed to the very vulnerable witnesses in cases of child sexual exploitation’ (Home Affairs Select Committee, 2013: 45). The Committee stated that reforms were needed to ensure that a child witness is capable of giving clear and effective evidence in court, such as immediate implementation of pre-recorded cross-examination and re-examination of a child witness and a nominated person in each court with responsibility for ensuring that these and other special measures were implemented as required.

Training was recommended to educate the judiciary about the effects of cross-examination on child witnesses, in particular the problem of cross-examination by multiple defence counsel in cases with multiple defendants and how judges might allocate issues between counsel, and impose time limits.

Since then the British Government has adopted further reforms, including the piloting of a ‘Child House’ to improve support services for CSA victims. The Child House pilot will be tested in London over a two-year period by ‘bring[ing] multiple services together in a child-friendly environment to minimise’ trauma for victims (HM Government, 2018: 24). But nowhere in the British Government’s Victims Strategy document of 2018 was there a mention of trauma-informed services and specialist courtroom processes for vulnerable witnesses, despite acknowledgement of the need for enhanced services and support for victims prior to court.

On a broader perspective, the House of Commons, Committee of Public Accounts (2016: 3, 5) said that the British criminal justice system:

is close to breaking point. Lack of shared accountability and resource pressures mean that costs are being shunted from one part of the system to another and the system suffers from too many delays and inefficiencies. There is insufficient focus on victims, who face a postcode lottery in their access to justice due to the significant variations in performance in different areas of the country. … The Government is implementing reforms to improve the system but we are concerned that users of the system won’t see the full benefit for another four years. … Around two-thirds of trials in the Crown Court are delayed or do not go ahead at all.

If 45% of the victims and witnesses who gave evidence said they would not be prepared to give evidence again (House of Commons, Committee of Public Accounts, 2016: 5) and if ‘the court environment can be challenging’ for vulnerable witnesses, it is time to challenge the appropriateness of that environment for giving evidence and consider reforms beyond special measures and refurbishment of court buildings so that victims/witnesses will not encounter the defendant (HM Government, 2018: 34, 35).

The aim of this book is not to review all of these above innovations, many of which have been introduced on an ad hoc basis over many years in the genuine hope of improving the experiences of sexual assault complainants in court. This book endorses these attempts at genuine goodwill towards victims but considers whether reform has gone far enough. The key question is: is it time to change the adversarial system to cater for the needs of vulnerable witnesses?

Like inquiries in Australia (for example, NSW Joint Select Committee on Sentencing of Child Sexual Assault Offenders, 2014; NSW Standing Committee on Law and Justice, 2002), the Home Affairs Select Committee (2013) also recommended that specialist courts be introduced to prosecute CSA or all sexual offences, including designated courtrooms with the most up-to-date technology and appropriate access and waiting facilities. In order to ensure the most serious cases would be guaranteed the most experienced court team delivering best practice, it was recommended that the specialist court should have a team of specialist child sexual exploitation judges, prosecutors, police, witness support and ushers who are trained and linked into local Multi-Agency Safeguarding Hubs which house a range of professionals and services for victims.

The implementation of specialist courts was to be reviewed at the end of 2014, however, the Ministry of Justice (2014) did not see the need for specialist courts in light of other reforms, even though it acknowledged:

One of the potential benefits of ‘specialist courts’ for child sexual abuse cases or for all sexual violence cases, would be the ability to join everything up and provide a wrap-around service strongly oriented around the victim and witnesses. (Ministry of Justice, 2014a: 14)

Although specialist domestic violence courts are in existence in E&W, the Ministry believed that an alternative approach based on case management would suffice ‘to ensure that [sexual assault cases] are progressed and actively managed through all stages of the criminal justice system and by people who are specialised’ (ibid., 15). Such an approach ignores the fact that case management is entirely different to the traumatising practices of the courtroom which involve the cross-examination effect and the unregulated use of rape myths to gain acquittals.

By and large, special measures for vulnerable witnesses do not directly address the cross-examination effect since the same type of ‘inappropriate questioning occurs regardless of the mode of evidence-giving’ (Smith, 2017: 3) unless innovations like intermediaries are used, as discussed in Chapter 9, or judges are trained to recognise and actively intervene to prevent improper and age-inappropriate questions, thus producing cultural change. The fact that cross-examination is the key cultural site for creating unfairness to complainants in a sexual assault trial is reinforced by the Royal Commission’s (2017b: 27) observation that if the videotaped police investigative interview is:

not well conducted … it may adversely affect the jury’s view of the complainant’s reliability and credibility. This is particularly a problem if the interview includes many peripheral details which lead to extensive cross-examination on inconsistencies that are not central to the offences charged.

Although some special measures fall within the concept of therapeutic jurisprudence (King, Freiberg, Batagol, & Hyams, 2014) since they have been introduced to prevent the re-traumatisation of complainants, no evidence-base in terms of their effects on reducing trauma informed their introduction with few, if any, evaluations of most of these measures. Thus, the mere existence of special measures does make criminal courts in E&W or Australia trauma-informed systems. Although there is evidence from E&W (Hamlyn, Phelps, Turtle, & Sattar, 2004) that some measures improve satisfaction rates of complainants, there is no evidence that these reforms ameliorate the cross-examination effect, or reduce fact-finders’ reliance on myths and misconceptions or improve actual trial outcomes.

3 Victims’ Rights: A Panacea to the Adversarial Trial?

Even if a conviction is the outcome in a sexual assault trial, the costs and benefits to the complainant need to be taken into account in terms of the degree of re-traumatisation she has suffered as a result of the hostile environment of the courtroom. In other words, what constitutes complainants’ justice interests?

The rights of victims might be conceptualised in a document setting out victims’ rights, such as the NSW Charter of Rights of Victims of Crime (Appendix 2) enacted under the Victims Rights and Support Act 2013 (NSW) and the UK Code of Practice for Victims of Crime (Appendix 3) (see Ministry of Justice, 2015b).

Probably the most detailed charter is the Canadian Victims Bill of Rights enacted in 2015 (Appendix 1). A perusal of this statute reveals that every victim has a right to certain information (ss 6–8) such as ‘the status and outcome of the investigation into the offence; and the location of proceedings in relation to the offence, when they will take place and their progress and outcome’ (s 7). Victims also have rights to (ss 10–13):

  • protection from intimidation and retaliation;

  • privacy;

  • identity protection; and

  • request testimonial aids.

Victims have a right to put their views about decisions that will affect their rights under the Canadian Victims Bill of Rights and to have them considered by appropriate authorities (s 14) which does not seem to amount to much more than lip-service to victim consultation. Victims also have the right to present a victim impact statement and to have it considered (s 15). In relation to compensation, a victim can apply to a court for a restitution order against the offender (s 16) presumably after the offender is found guilty.

Certain remedies are available to protect the above rights. If a victim wishes to complain that any of their rights ‘have been infringed or denied by a federal department, agency or body’, they have the right to file a complaint (s 25) under the ‘complaints mechanism’ (s 25(3)) that every department, agency or body involved in the criminal justice system must establish. However, this complaints mechanism is qualified by the fact that victims do not have a cause of action or a right to damages if a right has been infringed or denied (s 28) and they cannot appeal a decision or order that has infringed or denied one of their rights (s 29).

Victims’ rights are similar in other jurisdictions. In NSW the Charter of Victims’ Rights (Appendix 2) was enacted under the Victims Rights and Support Act 2013 and applies to all NSW government agencies who deal with victims of crime. Like Canada, the NSW Charter of Victims’ Rights mostly deals with rights to information but there is little recourse for victims if an agency infringes or denies one of their rights other than a complaint, although there is no legislated complaint mechanism for filing a complaint.

In E&W, victims’ rights are set out in a statutory Code of Practice for Victims of Crime (Appendix 3). The requirement for such a code was enacted under s 32 of the Domestic Violence Crime and Victims Act 2004, with the Secretary of State for Justice under a duty to ‘issue a code of practice as to the services to be provided to a victim of criminal conduct’. The Code is set out in a 104-page document (Ministry of Justice, 2014a). Like the case in Canada and NSW, a failure to uphold the Code or perform a duty imposed by the Code does not give rise to criminal or civil proceedings. However, a failure to comply with the Code may be admissible in civil proceedings in relation to any of the facts in issue; for example, if a complainant seeks redress against the police or the CPS.

Furthermore, the Ministry of Justice provides updates for victims about what the government has achieved and plans for further assistance. For example, in 2014 the Ministry of Justice (2014b: 10) reported that it had achieved the following:

  • published a new Victims’ Code which gives victims of crime clearer entitlements from criminal justice agencies and better tailors services to individual need so they get the right support at the right time;

  • published a revised Witness Charter, which sets out the standards of service all witnesses should receive, from the time of reporting a crime through to trial;

  • improved the complaints process for victims and witnesses so that they know who to contact and what to expect if things go wrong;

  • begun piloting pre-trial recorded cross-examination to help vulnerable witnesses give their best possible evidence—without subjecting them to the full atmosphere of the courtroom. The first such cross-examination took place in Liverpool on 28 April 2014;

  • opened 13 new rape support centres since 2010; …

  • created a Victims’ Panel, which met for the first time on 7 May 2014, so that Ministers can hear first-hand from victims about what we can do better to help them come to terms with and recover from the traumatic effects of crime; and

  • adopted the TrackMyCrime IT system … which enables victims to view information about the progress of their case, and exchange messages with the investigating officer.

Clearly, the above victim rights and services are not equivalent to the rights conferred by either statute or the common law on defendants (such as a right to legal representation, the presumption of innocence and the right to silence) because the defendant is the person on trial who, if his/her rights are not protected, may end up being wrongly convicted. But as Chapter 5 clearly showed, the complainant is also ‘on trial’ in a sexual assault case. While she cannot be convicted of an offence, she can have her experience completely undermined by defence counsel, and her reputation shredded through accusations of lying and promiscuity, leading to emotional trauma both during and after the trial. If the defendant is acquitted, the complainant has no appeal rights, even if lies were told about her or inculpatory evidence about the defendant was deemed inadmissible.

Broadly, victims’ rights charters are designed to provide information to victims about the progress of their case and contain various ‘motherhood’ statements about being treated with courtesy, respect and compassion. But what does it say about our criminal justice systems that personnel need to be reminded about common human decency towards victims? Apart from these issues, charters of victims’ rights do not extend to the trial itself since there is no such code or charter for the treatment of victims/complainants in court so that victims remain subject to all the rules and procedures of the criminal trial with no rights to protect them from defence attacks, the cross-examination effect or the myths and misconceptions of fact-finders. In Australian and E&W, they also have no rights to legal representation (as discussed below).

While victims’ charters or codes of practice might ensure that complainants are provided with information about the court process, they do not guarantee fair treatment within the trial itself, that is, treatment free of gender and victim stereotypes, free of bias and free of re-traumatisation. They do not inform victims that they are likely to have their experiences and behaviours compared with the mythical ‘real’ rape scenario and that they will be judged negatively if their behaviours do not match those of the ‘chaste’ rape complainant. They do not provide for mechanisms to complain about unfair treatment such as bullying, sexism, racism and other forms of bias and prejudice within the trial process.

In E&W, the Code of Practice for Victims has been criticised on the grounds that the Code is not delivering entitlements to victims (Victims’ Commissioner Office, 2017a, 2017b; see also Burton, Evan, & Sanders, 2007; Payne, 2009). For example, after 12 young victims (and in some cases their families) were interviewed about whether they had been informed about, and received their entitlements under the Victims’ Code, the Victims’ Commissioner Office (2017b: 6) found:

a mixture of experiences … There were some examples of good practice … but on the whole the young victims who were interviewed were not informed about or did not receive all of their entitlements under the [Victims’] Code. Many … did not feel that they were treated with dignity and respect by criminal justice agencies, with some feeling that they were not believed nor taken seriously because of their age. … In particular the children, young people and their families expressed confusion and frustration because of a lack of accurate and timely information and communication. Some children and young people reported a perceived lack of procedural justice in which they were made to feel like criminals themselves. … This review concluded that the provision of a professional victims’ advocate service would help alleviate many of the frustrations and difficulties that children, young people and their families reported in this review.

Overall, victims’ rights are limited and do not address the gendered power relations of the adversarial trial in that they offer no substantive rights to protect complainants from gendered assumptions about their behaviour and character. In essence, they do not protect complainants’ moral worth from being on trial.

If there is a failure to uphold any of the victims’ rights, or there is a breach, denial or infringement of one of those rights, there is no civil or criminal redress by the victim. None of these rights amount to the legal rights which would grant a complainant in a sexual assault trial legal personhood.

By contrast, limited substantive rights in relation to the criminal trial for victims exist in Canada and Ireland. A right to legal representation in Canada arises if an accused seeks access to a ‘record’ relating to a complainant, that is:

any form of record that contains personal information for which there is a reasonable expectation of privacy and includes, … medical, psychiatric, therapeutic, counselling, education, employment, child welfare, adoption and social services records, personal journals and diaries, and records containing personal information the production or disclosure of which is protected by any other Act of Parliament or a provincial legislature, but does not include records made by persons responsible for the investigation or prosecution of the offence. (Criminal Code of Canada, s 278.1)

Under s 278.4(2) of the Criminal Code of Canada, ‘The person who has possession or control of the record, the complainant or witness, as the case may be, and any other person to whom the record relates may appear and make submissions at the hearing’. Under s 278.4(2.1), ‘The judge shall, as soon as feasible, inform any person referred to in subsection (2) who participates in the hearing of their right to be represented by counsel’.

The enactment of a similar right was recommended in Australia by the VLRC (2016: xxiv) in relation to challenging a defence subpoena seeking access to a complainant’s confidential communications (usually with their counsellor) (Recommendation 25). Thus, amendments were recommended to Division 2A of Part 2 of the Evidence (Miscellaneous Provisions) Act 1958 (Vic) as follows:
  1. (a)

    requiring the prosecution to notify the victim of their right to appear and the availability of legal assistance in relation to an application to subpoena, access and use their confidential communications;

     
  2. (b)

    requiring the court to be satisfied that the victim is aware of the application and has had an opportunity to obtain legal advice;

     
  3. (c)

    prohibiting the court from waiving the notice requirements except where the victim cannot be located after reasonable attempts or the victim has provided informed consent to the waiver;

     
  4. (d)

    providing victims with standing to appear;

     
  5. (e)

    permitting victims to provide a confidential sworn or affirmed statement to the court specifying the harm the victim is likely to suffer if the application is granted.

     

Nonetheless, this recommendation would not affect the trial process since it pertains to a pre-trial hearing in which the prosecution challenges the terms of the subpoena seeking access to confidential communications. In any case, the Victorian Government did not subsequently enact this recommendation.19

In Ireland, a right to legal representation for the complainant arises when a defendant seeks leave to adduce evidence or cross-examine a complainant ‘about any sexual experience of [the] complainant with a person other than that accused’ (Criminal Law (Rape) Act 1981, ss 3 and 4A).

Is there an inequality of arms for victims, as proposed by the Ministry of Justice (2014a)? Hoyano (2015: 116) describes such a proposition as a fallacy and criticised the Ministry of Justice for its consideration of the idea of legal representation for victims. Various arguments have been made over the years in favour of legal representation for both adult and child witnesses in sexual assault trials (Braun, 2013; Cossins, 2004, 2010a; Kirchengast, 2013; Raitt, 2010; Shapland & Hall, 2010; Spencer, 2012; cf Royal Commission into Institutional Responses to Child Sexual Abuse, 2017b, 2017c; VLRC, 2016). The idea of representation for complainants comes from civil jurisdictions in Western Europe in which some or all victims of crime have a right to legal representation at the time of complaint and trial.

One of the main reasons for proposing representation for complainants in an adversarial context is to protect them, particularly during the cross-examination stage of the trial. In a review of the role of victims’ lawyers, Kirchengast (2013: 572) writes that they:

may now present for certain pretrial matters for federal offenses in the United States … and to a more limited extent, for family members of homicide victims in the Crown Court in England and Wales, and rape or sexual assault victims in [NSW in order to challenge defence access to confidential counselling notes]. Such reforms have proven controversial, however, and debate abounds about the extent such lawyers may jeopardize the state’s control of the prosecution process, or otherwise jeopardize a defendant’s right to challenge the state case … Further concern resides in the integration of a ‘third party’ into an otherwise two-party process. Although it is commonly agreed that various parts of the criminal trial process … may significantly impact upon the victim and their family, the extent to which the victim ought to contribute to decision-making processes or contest substantive principles of law remains uncertain.

There is a strong belief that the introduction of legal representation for complainants would undermine ‘the accused’s right to a fair trial and the impartial and independent conduct of prosecutions’ (Royal Commission into Institutional Responses to Child Sexual Abuse, 2017b: 226, 228; see also Hoyano, 2015). While I do not subscribe to this view, I believe that, because of cost, governments would not be prepared to provide legal aid to fund the legal representation of all complainants both pre-trial and during trial proceedings. An alternative, conferring a right to self-funded legal representation, would be unjust in that it would create a two-tier system of justice for victims of sexual assault—those with and without the means to afford a lawyer.

Even if complainants had a right to legal representation, the fundamental structure of the adversarial system would remain unchanged. Thus, I believe that more radical reform of the sexual assault trial is required to address its inherent gendered power imbalance and to change the status of a complainant from a morally unworthy subject to a person who is vulnerable and requires protection from re-traumatisation.

I now turn to the issue of trauma and its effects on those who must battle trauma-like symptoms, including memory recall, at the same time as defending their moral worth in a hostile court environment. This discussion raises the issue that we have created a morally flawed system, which permits the use of myths, biases and prejudice, to undermine the evidence of traumatised individuals.

4 The Effect of Trauma on Memory Recall: The Myths and the Evidence

There is a considerable amount of psychological research on eyewitness memory, including:
  1. (i)

    The effect of emotional arousal;

     
  2. (ii)

    Rates of forgetting;

     
  3. (iii)

    The misinformation effect; and

     
  4. (iv)

    Trauma and memory (ALRC, NSWLRC & VLRC, 2005: [8.86]–[8.112]; see also The British Psychological Society Research Board, 2010).

     

For the purposes of this and the next chapter, it is important to consider the effects of trauma on the memory recall of complainants of sexual assault, given the fact that CSA and sexual assault are known to cause PTSD or trauma-like symptoms, although these effects are rarely taken into account when a complainant is giving evidence.

In fact, Hohl and Conway (2017: 249) consider that a ‘significant proportion’ of reports to police that do not proceed to court ‘may be wrongly dismissed because the criteria criminal justice agents use to judge the reliability and veracity of a victim’s complaint of rape are, from a memory research perspective, flawed’.

As discussed previously, both jurors and mock jurors distrust the evidence of witnesses that reveals inconsistencies or inaccuracies or where the witness cannot recall particular details, however peripheral they are to the events in question (Cashmore & Trimboli, 2006; Hohl & Conway, 2017). Several studies that have surveyed lawyers, judges, jury-eligible citizens and law enforcement personnel about how memory works reveal clear inconsistencies between people’s common knowledge and scientific understandings of the nature of human memory.

For example, there is a widespread belief that human memories are akin to a video-recording (Houston, Hope, Memon, & Read, 2013) while jurors, judges and police officers have a poor understanding of eyewitness memories. When Benton, Ross, Bradshaw, Thomas, and Bradshaw (2006: 125) were the first to compare the knowledge level of these three groups with that of experts, they found that there was:

  • only 13% correspondence between jurors and experts about eyewitness evidence; and

  • 40% correspondence between judges and experts, and between police officers and experts.

Research shows that inconsistencies in evidence are associated with acquittals and case attrition (Cashmore & Trimboli, 2006; Kelly, Lovett, & Regan, 2005; Pichler, Sharman, Powell, Westera, & Goodman-Delahunty, 2019) which means that the ‘internal consistency’ of a complainant’s story of sexual assault as well as the amount of ‘often insignificant peripheral detail … are key criteria the police and prosecution use to assess the veracity of a complaint’ (Hohl & Conway, 2017: 249).

For example, in their study of 2284 cases reported to police, Kelly et al. (2005) found an association between the presence of inconsistencies and case attrition. Of the 30 cases that had been classified as false allegations and dropped by police, all were characterised by inconsistencies in evidence, according to the police (ibid., 49). Most recently, a study of 69 trial transcripts found that the greater the number of inconsistencies within a child complainant’s police interview or between that interview and other statements, the more likely the case resulted in an acquittal (Pichler et al., 2019: 1).

While there is ‘no research on the amount and nature of inconsistencies … that is likely to put the complaint below the credibility threshold and into danger of attrition’ (Hohl & Conway, 2017: 261), in a study of all rape complaints reported to the London Metropolitan Police Service (MPS) during April and May 2012 (N = 679), Hohl and Conway (2017: 259–260) found that ‘attrition through police and CPS decisions to drop the case is significantly higher when inconsistencies are noted in the case file’. In other words, only ‘half as many cases with inconsistencies are referred to the CPS’. They also found an interaction effect between complainant consumption of alcohol and inconsistencies: ‘the odds of the case being no-crimed increase[d] from 2.5 if the victim [was] not intoxicated to 13.9 if the victim had consumed alcohol prior to the attack’ (ibid., 260; see further Chapters 4 and 7).

Of all the cases referred to the CPS, ‘no complaint with an inconsistent victim account resulted in a prosecution’ whereas more than 50% of referred cases with no inconsistencies resulted in a prosecution. However, the authors had no way of knowing whether the inconsistencies noted by police were due to errors of recall by the complainant, deliberate omissions, a result of ‘[p]oor rapport between the interviewing officer and the complainant’, poor interviewing techniques (Hohl & Conway, 2017: 261), or, something not considered by the authors, the result of trauma-like symptoms affecting complainant recall.

Hohl and Conway (2017: 250) discuss the fundamental flaw in the criminal justice system when it comes to witness memory—the lack of awareness of how human memory works. Even without trauma, memory recall is imperfect. Memories are ‘fragmented remnants of what happened in the past, pieced together in a “sensible” manner according to the rememberer’s current world view’ (Howe, 2013: 869), rather than a complete, literal record of events and experience:

The consistent, detailed narratives that are considered ‘good’ evidence … are at odds with the nature of human memory – memories are always fragmentary, time-compressed and prone to errors of omission and commission. While inconsistencies, lack of detail, errors and omissions … undermine [the credibility of a complainant] … and put the complaint at risk of attrition, the modern view of human memory considers all of these [to be] typical features of a normal memory. (Hohl & Conway, 2017: 261)

Because memory is the brain’s re-construction of an event, it is subject to both internal and external influences which can cause gaps in memory, distortion and error. These influences include: psychological distress, the use of alcohol and drugs both before and after an event, ageing and mental illness. In addition the memory of a person who has suffered a traumatic event, such as sexual assault, is likely to be ‘fragmented into several key “hotspot” moments … [which] are typically the ‘worst moments’ for the person during the trauma, and are also those points that tend to come back, as intrusive memories’ (The British Psychological Society Research Board, 2010: 25).

While ‘hotspots’ are generally ‘very vivid and clear’, they may be recalled randomly, rather than sequentially, while the intrusiveness and longevity of hotspot memories means that ‘other parts of the trauma can be more difficult to recall (e.g. details that were less important to the person at the time)’ (ibid.), inevitably leading to gaps in memory.

Because inconsistencies and lack of detail are typical features of all witness memories, they are ‘poor indicators of reliable memory or any sort of intention to deceive’ (Hohl & Conway, 2017: 254). Indeed, The British Psychological Society Research Board (2010: 2) emphasises that gaps in memory are a normal part of all human memory because of their reconstructed nature:

Memories for experienced events are always incomplete. … Any account of a memory will feature forgotten details and gaps, and this must not be taken as any sort of indicator of accuracy.

This is a critical issue in a sexual assault trial where the child or adult complainant is the prosecution’s chief, and often only, witness, and where there is little or no corroborating evidence. One of the main defence tactics, therefore, is to discredit the complainant by focusing on apparent gaps or flaws in her memory, including every apparent inconsistency about even the most minor details.

For example, a study of 94 CSA trials ‘found that defence lawyers used strategies which questioned robust findings from [the] psychological research’ including:

  • children are capable of giving reliable evidence;

  • errors about minor details do not indicate the central allegation is wrong;

  • victims respond to abuse in many ways. (Royal Commission, 2017b: 136; citing Powell et al., 2016: 198)

Powell et al. (2016: 201–202) found that suggestions of impaired memory and inconsistencies were routinely used by defence counsel to undermine child complainants’ sexual abuse allegations. In particular, inconsistencies relating to peripheral details were raised more frequently than inconsistencies about matters central to proving the offence (98.4% vs 72.4% of complainants). Defence counsel also exploited common misconceptions held by laypeople that suggest an allegation is false, including lack of resistance, delayed complaint, lack of emotional display by a complainant and a complainant’s continued relationship with the defendant. As Hohl and Conway (2017: 262) ask, ‘[w]hy are the criteria criminal justice agents use to judge the credibility of victim memory – such as consistency and rich detail – so at odds with the scientific understanding of human memory?’

Because the adversarial trial is based on attack and defence, rather than truth-seeking, vulnerable witnesses are most susceptible to the effects of defence strategies around memory. Indeed, because gender stereotypes (the chaste victim vs the unchaste victim) characterise the sexual assault trial so that the moral worth of the complainant is on trial, inconsistencies in evidence ‘confirm’, for the layperson, the gender stereotype that is constructed by the defence because of the link made between inconsistencies in evidence with lying and moral unworthiness.

Another relevant question is why the criminal justice system permits a complainant’s credibility to be judged against common rape myths, given their clear inconsistencies with the documented effects of sexual assault on human behaviour, such as the belief that a ‘real’ victim will resist her attacker versus psychological evidence of the freeze response (see Chapter 4, Table 1).

In light of what we know from the literature, is ‘the nature of human memory evidence … fundamentally incompatible with the evidentiary demands of the criminal justice system’ (Hohl & Conway, 2017: 262)? More particularly, is the nature of human memory fundamentally incompatible with the evidentiary demands of the criminal standard of proof in a sexual assault trial because of the insidious influence of cultural beliefs about ‘chaste’ and ‘unchaste’ victims of sexual assault? Would a system that recognises the vulnerabilities of traumatised complainants ameliorate the worst aspects of adversarialism as played out in the sexual assault trial? Why do we tolerate the questioning of vulnerable and traumatised witnesses in a way that is incompatible with the nature of human memory?

The focus of the criminal justice system is on the management and control of defendants who are brought to trial, a culture that extends to witnesses but is in conflict with the principles of trauma-informed care (discussed in the next chapter), leaving witnesses open to various forms of emotional abuse that would not be condoned in the workplace or in public. For complainants in sexual assault trials there is little or no recognition of the basic principles of trauma-informed care which informs the treatment of trauma survivors.

In the next chapter, I consider the efficacy of trauma-informed theory for the development of trauma-informed criminal justice processes, such as specialist sex offences courts and restorative justice.