The note comments that
it has been recognised that child complainants in the criminal justice system can experience difficulties over and above those of other complainants and that children can experience the court process as extremely traumatising. This can be exacerbated if children are complainants in child sexual offence matters and if they have to give evidence against a family member. This paper [first] outlines the major factors that contribute to making court processes harrowing for child complainants. Second, it outlines some of the main initiatives that have been introduced to address these factors. Finally, it weighs up the evidence about initiatives designed to assist child complainants and concludes that such initiatives have had only limited practical impact for child complainants in the criminal justice system. The limited impact is attributed to the need to balance the rights of the accused with consideration for the complainant, a failure to translate legislative changes into practice, the impact of judicial discretion and/or a focus on protecting child complainants at the expense of increasing convictions.The note highlights crimes against children as typically being crimes against the person, with children comprising "substantial proportions" of victims of sexual offences. The highest rate of recorded sexual assault in Australia during 2007 was thus for 10 to 14-year-old females (at 544 per 100,000 population). For males in the 10 to 14 year cohort the rate was 95 per 100,000 population, with a reported 78 per 100,000 boys aged under 10 years experiencing a sexual assault. Contact with the court system is especially traumatic for child complainants, who may experience high levels of stress and 're-traumatisation'.
Reforms to address that problem (and increase a child's capacity to provide reliable evidence) since the 1980s are founded on expectations that children need special assistance in court because of their age and lack of life experience; that, more broadly, sexual offences require special assistance for complainants in court proceedings regarding those matters; and that consideration for child complainants must be balanced against providing a fair trial for the accused.
The note identifies problems facing child complainants as giving evidence and being cross-examined (in particular where English is not a first language, a notable concern given that Indigenous children were more than six times as likely as non-Indigenous children to become the subjects of child protection substantiations); poor perceptions of child witnesses (jurors tend to view child witnesses as unreliable because, for example, complainants often delay reporting sexual abuse given fear of the perpetrator, self-blame and shame); and the low likelihood of trials resulting in conviction.
Responses have included -
+ modifying the physicality of the courtroom (eg use of screens to block the accused from the complainant's view)
+ use of closed-circuit television (CCTV)
+ use of pre-recorded evidence for child complainants
+ providing for support persons to be present when children give evidence, either in court or via CCTV
+ restrictions on committal hearings
+ restrictions on cross-examination by the accused
+ improved techniques for interviewing and child witness statements
+ new offence categories such as 'maintaining a sexual relationship with a child' (in cases where an adult is alleged to "have sexually offended against a child on at least three separate occasions but the individual occasions of offending or acts cannot be individually identified and particularised with precision")
+ specialist jurisdictions and services for child witnesses.
The note concludes that
Although a variety of initiatives have been introduced to address the problems faced by child complainants, evidence currently suggests that ... these have achieved only limited success. Certainly, it appears that such initiatives are under-utilised. Their increased acceptance and use may, in the future, result in more positive outcomes.
