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Abstract
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"When children's allegations of abuse were discounted out of hand, they were victimised not only by their abusers but by a society that neither believed nor protected them. Conversely, when allegations that have no basis in fact are believed, innocent adults can face a lifetime of imprisonment, shame, ostracism, and devastation." [Shanks 'Cross-Examination of a child witness' 2009-2010 Legal Research Paper Series 32.]
This quotation outlines the current dilemma with regard to the prosecution of child sexual abuse (CSA) cases. Prior to 1980, CSA was a secretive and private issue and allegations of CSA were received with disbelief. Disbelief in CSA was compounded by myths: that children lie about being sexually abused; they fantasise about being sexually abused; all child sexual abuse cases have to be supported by medical evidence; children are abused by strangers; they report CSA immediately; and they scream during the abuse. These myths have consistently been challenged as lacking empirical backing and, consequently, there is an ongoing shift in how society and the justice system view CSA allegations. Presently, CSA receives significantly heightened social and legal awareness. This awareness has brought with it a zealous attempt by criminal justice systems (CJSs) to hold offenders to account. This shift in attitude is a welcome development, but sometimes gives rise to a dogmatic belief in all CSA allegations - with limited effort on the part of concerned professionals to meaningfully substantiate these allegations. The increasing incidence of false CSA allegations and wrongful convictions arguably indicates that the pendulum has swung too far: such allegations of CSA are accepted as true without any real or meaningful investigation.
Presently, CSA presents the prosecution with innumerable challenges in proving that CSA occurred; equally the accused in CSA cases are confronted with the challenge to prove that the allegations against them are false. The myth that children lie about being sexually abused must be laid to rest. Equally, overzealous attempts to hold child sexual offenders to account must not cause CJSs to rule out the possibility of false CSA allegations. Otherwise a new myth would be created: that children never lie or are never mistaken about being sexually abused. Therefore, there is an urgent need to strike a proper balance between discarding the myths about CSA and ensuring that the swing of the pendulum does not lead to wrongful convictions. This article underscores the role of mental health professionals (MHPs) and meaningful cross-examination in striking this balance. Equally, it underscores the need for an appropriate forum in which new evidence is discovered with the effect of proving the innocence of wrongly convicted persons.
Even the most vehement critics of the CJS concede that the conviction of those who are innocent is rare. Wrongful conviction in CSA cases, although extremely minimal and occasional, can undermine public respect for and confidence in the legal system and law enforcement. These risks suggest a greater call for objectivity and a need to take claims of wrongful conviction more seriously. Human error is inevitable and no CJS can purport to be perfect. However, it is critical, as much as possible, that CJSs make the best of available mechanisms to improve their accuracy. In CSA cases in which there is often hardly any medical evidence, the role of MHPs is critical in evaluating CSA allegations and assessing the competence of children to testify. Furthermore, over the years, the ideal essence of cross-examination has been undermined. Often defence attorneys fail to make the process meaningful in furtherance of the truth. Therefore, it is critical for legal practitioners to get back to the 'real' essence of cross-examination. A more inquisitorial approach in furthering this process seems inevitable. Equally, if new evidence with the effect of proving innocence has been discovered long after conviction and sentence, it is particularly important that the doors to proving innocence are not closed. Where new evidence has since been discovered, that backs stronger claims of innocence, it is recommended that those falsely-accused of CSA be afforded a judicial platform to prove their innocence.
If they are to take the incidence of false CSA allegations and wrongful conviction more seriously, legal professionals are faced with obligations. Defence attorneys need to reconsider their technique of cross-examination in testing the evidence of children - the process should, preferably, be inquisitorial with the aim of unravelling the truth as opposed to it being used as a weapon to confuse and traumatise children. Judges are vested with the power to arrive at decisions about the competence of children to testify, and it is therefore critical for competence assessments not to be reduced to mechanical processes. Judicial officers should see to it that the competence assessment is meaningful to ensure that convictions are not based on the evidence of incompetent child witnesses. Defence attorneys should play a more active role in the competence assessment process and, where need be, make use of MHPs to challenge the competence of child witnesses to testify, particularly if their competence is in question. Prosecutors bear the obligation to call witnesses. In this regard MHPs should be increasingly incorporated in their witness lists in CSA cases. The task of prosecutors should not merely be to secure convictions - as officers of the court and administrators of justice, prosecutors should ensure that 'justice' is done.
Language: en |