Closing the Justice Gap for Adult and Child Sexual Assault

Rethinking the Adversarial Trial

Anne Cossins

• Publisher: Palgrave Macmillan
• Year: 2020
• Print ISBN:
  9781137320490
• eBook ISBN:
  9781137320513
• Topic: Social Sciences
• Subtopic: Civil Rights in Law
• Index: Social Sciences

This book examines the justice gap and trial process for sexual assault against both adults and children in two jurisdictions: England and Wales and New South Wales, Australia. Drawing on decades of research, it investigates the reality of the policing and prosecution of sexual assault offences – often seen as one of the 'hardest crimes to prosecute' – across two similar jurisdictions. Despite the introduction of the many reform options detailed in the book, satisfactory outcomes for victims and the public are still difficult to obtain.

Cossins takes a new approach by examining the nature and effects of adversarialism on vulnerable witnesses, jury decision-making and the structures of power within the trial process, to show how, and at what points, that process is weighted against complainants of sexual assault, in order to make evidence-based suggestions for reform. She argues that this justice gap is a result of a moralisticadversarial culture which fosters myths and misconceptions about rape and child sexual assault, thus requiring the prosecution to prove a complainant's moral worthiness. She argues this culture can only be eliminated by a radical replacement of the adversarial system with a trauma-informed system. By reviewing the relevant psychological literature, this book documents the triggers for re-traumatisation within an adversarial trial, and discusses the reform measures that would be necessary to transform the sexual assault trial from one where the complainant's moral worthiness is 'on trial' to a fully functioning trauma-informed system. It speaks to students and academics across subjects including law, criminology, gender studies and psychology, and practitioners in law and victim services, as well as policy-makers.    

© The Author(s) 2020

A. CossinsClosing the Justice Gap for Adult and Child Sexual Assaulthttps://doi.org/10.1057/978-1-137-32051-3_1

Begin Abstract

1. Introduction

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: [email protected]

End Abstract

1 Introduction

Rape and sexual assault are unique crimes because they are mostly perpetrated against female children, female adolescents and women.¹ In addition, both male and female victims are most likely to be abused by men or male adolescents with whom they are acquainted or related and most often in relationships of intimacy, trust and/or authority (Australian Bureau of Statistics [ABS], 2018; Held & McLaughlin, 2013; Office for National Statistics [ONS], 2018).

These relationships mean that perpetrators not only have relatively easy access to groom their victims but also are able to commit their crimes in circumstances of privacy and secrecy with few, if any, eyewitnesses or earwitnesses. Even the presence of forensic evidence is unusual due to the relatively fast degradation of bodily fluids (Cossins, Jayakody, Norrie, & Parkinson, 2016) and the common tendency for victims to delay their complaints to authorities. For adult sexual assault, in a word-against-word case, the issue of lack of consent can be impossible to prove beyond reasonable doubt, as several recent high-profile cases have shown.²

For these and other reasons, sexual assault against both adults and children have been the focus of numerous inquiries, independent reviews, Royal Commissions, media inquiries and feminist campaigns (see, for example, Angiolini, 2015; Australian Law Reform Commission, 2010a, 2010b; Cossins, 2010; Home Office, 2010; Jay, 2014; Royal Commission into Institutional Responses to Child Sexual Abuse, 2017a; Topping & Barr, 2018). As the data in this chapter shows, sexual assault requires considerable resources to investigate and prosecute (Angiolini, 2015). For example, sexual assault is the most common crime prosecuted in the higher courts of Australia’s largest jurisdiction (New South Wales (NSW) (Cossins & Goodman-Delahunty, 2013), yet is characterised by high attrition rates and relatively low conviction rates at trial (ABS, 2019b; Fitzgerald, 2006; Royal Commission, 2017).

In this book, the term, ‘sexual assault’, is used to describe the range of sex offences that are committed against both adults and children since the term covers both penetrative and non-penetrative offences (such as non-consensual sexual touching), as well as sex offences committed with and without the use of force or threat of force. Sexual assault is not confined to penile penetration and may involve penetration by any other part of the body as well as by objects. Rape, on the other hand, usually refers to vaginal, anal or oral sexual penetration depending on the jurisdiction. Sometimes rape is restrictively defined as penile penetration only (see further Chapter 2).

One of the difficulties with prosecuting sexual assault against adults is the fact that the alleged sexual behaviours can involve sexual conduct that one day is legal, the next criminal, because unlike other criminal offences, the crime includes activities that most adults engage in for much of their adult lives. Historically, the line between consent and non-consent has always been influenced by stereotypical expectations of how women and men ‘naturally’ behave so that rape is an offence that has pitted ‘malicious’ women and girls against men obeying their ‘natural’ urges. A considerable amount of research has shown that the investigation and prosecution of rape and sexual assault is plagued by rape myths that have been shown to influence the perceptions and decisions of police officers, prosecutors, lawyers, judges and jurors (Hohl & Stanko, 2015; Temkin & Krahé, 2008; see further Chapter 2).

The prevalence of rape and sexual assault and the historical lack of criminal justice sanctions for offenders has led to countless reforms in all adversarial jurisdictions since at least the 1970s. Many of these reforms are considered to be ‘feminist-inspired, with the aim of redressing the criminal justice system’s traditional gender bias in relation to rape’ (Larcombe, 2011: 27). It could be a ‘feminist success story’ (Larcombe, 2011: 27) that so much reform has occurred after sexual assault law reform became part of the legislative agenda. However, more than a decade ago, Kelly, Lovett and Regan (2005: 30) reported that conviction rates had fallen even after significant law reform measures in England and Wales (E&W):

despite widespread reform of statute law and, in many jurisdictions, procedural rules, the 1990s witnessed declining or static conviction rates. … Remarkably little research or legal commentary has, as yet, attempted to explain these common—and unexpected—international similarities.

They concluded that ‘the two patterns in reported rape cases … over the past two decades … [are] a continuing and unbroken increase in reporting; and a relatively static number of convictions’ (Kelly et al., 2005: 25). This chapter will investigate whether this is still the case.

Over the years many options and suggestions have been made regarding improvements to the way sexual assault is investigated and prosecuted. Larcombe (2011: 32) notes that the most sound reason, empirically, for low conviction rates is relatively low guilty plea rates which result in relatively high acquittal rates. Thus, it is necessary to focus on fact-finders and why they are prone to acquit rather than convict in both adult and child sexual assault trials, the subject of lengthy discussion in Chapter 2 in a review of the literature on jury decision-making in sexual assault trials.

Pether (2009: 240) has also observed that ‘the contemporary data establish that statutory rape law reform, whether substantive … or procedural … including reform of police practices and judicial education, has had no effect on improving the rates of the prosecution of and conviction for rape’. Similar statements were made by the NSW Criminal Justice and Sexual Offences Taskforce (2005) about the situation in Australia’s largest jurisdiction, New South Wales (NSW).

The question is, is this still the case in 2019? Even if conviction rates have continued to be low for child and adult sexual assault,

for what purposes would … an increase [in conviction rates] be sought? And is the sole measure of future reforms to be their impact on conviction rates? (Larcombe, 2011: 29)

In other words, conviction rates are only one measure of the effectiveness of reforms that are focused on the investigation and prosecution of sexual assault. Other measures for assessing success include:

• Rates of reporting to police;
• Police investigations and police practices;
• Prosecution rates;
• Attrition rates;
• Guilty plea rates;
• Conviction rates at trial;
• Overall conviction rates (guilty pleas plus convictions at trial);
• Sentencing; and
• Victims’ and complainants’ satisfaction levels with the criminal justice process.

For example, Larcombe (2011: 29) argues that:

while the current legal impunity for rape cannot be condoned, increasing conviction rates is not itself a valid objective of reform. … [S]trategies designed solely to increase rape conviction rates are more likely to work against, rathe...

Table of contents

• Cover
• Front Matter
• 1. Introduction
• 2. The Nature and Effects of Adversarialism: Jury Decision-Making in Sexual Assault Trials
• 3. Factors That Predict Outcomes in Sexual Assault Trials
• 4. ‘Commonsense’ or ‘Life Experience’: Jurors’ Perceptions of Guilt
• 5. ‘No Means Yes and Yes Means Anal’: The Cultural Climate in Which Sex Offences Are Prosecuted
• 6. The Nature and Effects of Adversarialism: Sites of Activation for Heuristic Reasoning Processes
• 7. Modernisation of the Substantive Law of Consent
• 8. Cross-Examination in Sexual Assault Trials: Evidentiary Safeguard or an Opportunity to Confuse?
• 9. Contemporary Reforms to Cross-Examination
• 10. The Problems Facing Reformers of the Sexual Assault Trial
• 11. Achieving Best Evidence for Vulnerable Witnesses: The Use of Trauma-Informed Theory to Reform the Sexual Assault Trial
• 12. Reform Measures: The Devil Is in the Detail
• Back Matter