Delayed Prosecution for Childhood Sexual Abuse

By Penney Lewis
Oxford, England: Oxford University Press, 2006

Victims of sexual abuse, especially those who were abused in childhood have been poorly served by justice systems. Allegations have been regarded with disbelief; accounts have been dismissed as fantasies, and myths that children can corrupt adults have been allowed to deflect blame from perpetrators. Children, and others complaining of sexual abuse, were viewed as unreliable informants whose testimony required corroboration, as a consequence, both prosecution and conviction rates were low. Recognition of child abuse as a social problem and of sexual abuse both within and outside the family raised questions about the adequacy of laws to protect children and punish abusers. Re-examination of the rules of evidence and the beliefs which underlay them by academics and psychologists fuelled campaigns for reform in the Common Law world and elsewhere.¹Evidence law was reformed, typically by removing requirements for corroboration and warnings to juries about evidence from complainants of sexual abuse. Consequently, previous inhibitions on criminal proceedings relating to these offences were removed, making prosecution possible even in respect of ‘historic’ abuse. Even where abuse has occurred more recently it is common for victims, particularly children, to delay before disclosing it and some repress memories only recalling incidents much later.

This text explores the developments in criminal procedure and evidence in response to the phenomenon of delayed prosecution of child sexual abuse, through a detailed analysis of statute and case law in Australia, Canada, England and Wales, New Zealand and the United States of America. In each of these jurisdictions there have be many cases; the abusive regimes in residential homes and schools have provoked public inquiries and claims for compensation as well as prosecutions. The author examines the different responses in these jurisdictions, questioning the extent to which they maintain the presumption of innocence and secure a fair trial for the defendant. Whilst both the legislature and the judiciary in all these states are concerned to achieve fair trials, the mechanisms they have adopted vary, reflecting the different balances between law-makers and the extent to which statute is used to control judicial discretion. The author’s analysis is extremely thorough and perceptive. She carefully compares and contrasts the differing approaches taken in different states and tracks the developments between and within states. Whilst the chosen states have the same goals, the author identifies the routes they take towards them as more or less legitimate in terms of the principles of justice. She is particularly critical of analysis which involves a presumption that allegations are true, or of approaches which require the judge to determine matters which should be left to the jury. Overall, she makes a strong case for retrospective rather than prospective assessment of the evidence that is for use of stays within trials rather than prohibition before them. Stays allow the trial judge to hear arguments about the difficulties faced by the defendant in challenging the prosecution evidence within a context which provides a basis for evaluating their importance to the defence case.

The focus of the text is very much a comparative analysis of procedure and evidence but this is discussed with reference to the (limited) empirical evidence. Jury simulation research provides some information about the effects on juries of providing or withholding material such as past convictions. There is clearly room for further analysis which examines these differences in terms of their wider effects, for example on prosecution and conviction rates and the victims’ experience of justice and fairness in the trial of their complaints.

¹ Spencer, J., Nicholson, C., Flin, R. and Bull, R., Children’s evidence in legal proceedings: An International Perspective (1990)