Discussion

On the basis of the research discussed above, it appears that many of the respondents interviewed used or believed defences to child sex abuse which research says are actually unlikely in the absence of very special circumstances.

I have argued that the defences correlate with two ways of defending child sex abuse charges. First, the defence might blame the child explicitly, alleging that he or she lied deliberately and with understanding of the moral quality of the act. Conversely, the defences of suggestion, coaching, fantasy and that the child lied deliberately but without comprehending the moral nature of the act all exculpate the child from blame for making a false allegation and blame either Machiavellian adults or the child's own developmental deficiencies.

Defences which include a claim that the child is not to blame for the allegedly false accusation are qualitatively different from those which present the child as acting with deliberate evil intent. On one level, it may be preferable that the child is not viewed as morally blameworthy. However, exculpating defences deny the child has agency or indeed a meaningful level of sentience. The evil child at least is a powerful figure in his or her own life. More practically, the lawyers interviewed, especially the New Zealanders, chose to use the exculpating defences because they saw them as more palatable and less likely to alienate juries. Thus the very inoffensiveness of such defences renders them more harmful to the child under attack.

Overall, however, whether children are exculpated or excoriated by individual defences, all of these defences present children as less than fully rational, fully functioning humans. Children, in either set of arguments, are not merely developmentally limited but are presented as fundamentally irrational and/or amoral, without ability to participate in (courtroom) discussions of their own lives at any meaningful level. Three of the defences—suggestion, coaching and fantasy—all suggest that the child complainant is not responsible for the accusations but has made them due to a mental deficiency, either unable to withstand adult manipulation or unable to distinguish reality. Conversely, the idea that a child has lied maliciously, or, another scenario suggested by respondents, because he or she does not realise lying is wrong, suggests that the child complainant is morally deficient. A further correspondence occurs between the defences of malicious lies and fantasy: in both the child is presented as dominated by overwhelming emotions—sexual or vengeful—to the point of irrationality.

These negative images of childhood stand in sharp contrast to the view of children given by psychological research in which they appear as developmentally limited but still capable of understanding and articulating their experiences.

Just why these lawyers appear to adhere to these older, derogatory stereotypes about children and disregard advances in psychological knowledge is an interesting question. I suggest that there are three reasons. First, lawyers often do not know that such advances have been made. Second, they distrust psychology to such a degree that they are unlikely to accept its information. Third, and most fundamentally, lawyers do not work in laboratories finding facts, but in theatres of persuasion: they aim to persuade their audience, be it judge or jury. Until their audiences are no longer persuaded by outdated stereotypes lawyers will continue to find such stereotypes useful.

A reading of the main journals for legal practitioners shows that these do not often publish psychological research on children. Even where there is literature readily available to lawyers, they do not necessarily absorb enough to change their practice significantly. For example, almost every lawyer interviewed understood there was a need to modify their language to accommodate young children. However, their understanding of what modifications were required was simplistic and they tended to believe that the need for modification ceased when a child of normal intelligence reached 10 or 12. When lawyers research outside their field they research only as part of a case and that research will be limited to finding material to support the client's position. If lawyers are to be educated, writers need to focus on disseminating information where lawyers are likely to stumble across it.

The second reason I suggest that psychology's concepts of children have not filtered through to lawyers is that lawyers often distrust psychology and see it as having little relevance to their work. There is not space in this chapter to detail the growing literature documenting the conflicted relationship between lawyers and psychologists (e.g. Wrightsman, 1999; Kassin and Wrightsman, 1985; Jackson, 1995; Carson and Bull, 1995; Kennedy, 1992). However, many of the respondents were suspicious of psychology professionals (including diagnosticians, evidential interviewers and therapists). Criticisms ranged from lack of training—a greater concern to New Zealanders than to the English—to bias and overzealous interviewing.

There can be suggestion from overzealous professionals, particularly departmental social workers who are appallingly badly trained; blunder in; trample all over the evidence as much as a rookie cop, and by that stage, the damage is done.

Another New Zealand respondent was critical of clinicians' failure to differentiate between the roles of therapist and evidential interviewer.

Evidential interviewers, particularly social workers, really are not sorted out about their role as evidential interviewer That's just totally unsatisfactory. ...If you've got the kind of therapy and lots of positive reinforcement and that sort of thing being given to a child during the course of an evidential interview then it looks like there's amazing rapport being built up... and she's just moulding the child to say whatever they want them to say.

The English respondents had similar criticisms to make of evidential interviewers, criticising them for creating suggestion through bias, credulity and insufficient challenge.

[Q]uestioning now by and large is very good. There are still rare examples, and I have got a case at the moment where the child is very reluctant to disclose and in fact says time after time 'can I stop now' and the officer simply doesn't stop. It's a very serious case and the officer is determined to try and get something and says 'well, didn't you tell so and so x, y & z?' and in the end the child eventually says 'yes, well, alright then'. Now that's the kind of prompting you will see on video.

The English saw the problem as stemming from ignorance rather than malice and believed the police were better trained than social workers.

Further, there was a perception that there is an inherent bias in the role of social worker.

It is almost always in my experience not done deliberately to persuade the child into a worse story or different story. It is done with warmth and enthusiasm with a gut belief that the child is telling the basic truth and it is just, really, ignorance of how easy it is to suggest to a vulnerable witness what the answer is or what the next answer should be.

A strong characteristic of the New Zealanders' criticisms of parents and mental health professionals was the tendency to see support for a child's allegations as a MacCarthyite witch-hunt against defendants.

I don't want to get hung up in a sex attack; men against women; women against men; but there are too many people out there that want to turn the issue into that, and divert it away from its true focus ...to find [whether there is] reasonable doubt So I'm sorry, I'm very cynical about the way these things are dealt with It's a clique of women that have—unfortunately, it is women—that have the hold on the purse-strings.

Whether women—whose control over the major institutions of our society is notoriously weak—really monopolise control of psychological services and court-ordered appointments in the field of sexual abuse in New Zealand or anywhere else is questionable, however.

There was also a strong feeling among some respondents that the involvement of clinicians or psychological researchers, male or female, as expert witnesses disadvantages defendants. Such witnesses were seen as coming up with answers to every objection, of manipulating data, of manipulating or exploiting a position of power.

According to the so-called experts, a child will either disclose and retract partially or fail to disclose ... [and] the child has actually told the truth but then she retracted because she felt guilty or whatever, and then they'll say she refused to disclose because she feels guilty about what he's done to her. What that doesn't leave [room for] is what happens if someone actually isn't disclosing because it didn't happen They've got you boxed in, and that's sort of playing with a loaded deck I just see it as inherently unfair.

Both the allegations of bias and of ineptitude are serious and, if true, they threaten the outcome of child sexual abuse trials and may invalidate many evidential interviews and expert testimonies. However, I suggest that the lawyers' views are based on their long-established distrust of psychologists and in many instances on their misunderstanding of the dynamics of children's suggestibility, as shown in their overly anxious discussions about what might constitute suggestion.

The final reason, I suggest, that lawyers appear so divided from psychologists' concepts of children is that lawyers are fundamentally disinterested in providing a factually correct view of the evidence. This is not to say that lawyers deliberately deceive the courts. To do so would contravene legal professional ethics. My point is that in the theory of the adversarial system espoused by most of the legal profession, the task of advocacy is not to present the scenario that the lawyer believes, on objective examination, is most probably true. The lawyer's task is to make a convincing presentation of the scenario most favourable to his or her client in order to suggest reasonable doubt (Henderson, 2000). That the probable truth coincides with this scenario is, under this theory, largely irrelevant, so long as the lawyer does not actively seek to mislead the court. Thus, even if, for example, all evidential interviews were very substantially improved lawyers would continue to suggest bias, etc., because in their eyes their task is to manufacture criticism.

Thus the crucial element in advocacy is what is convincing to public opinion. One example of its effect are the two nationalities' different approach to the defence of malicious lying. Whereas the New Zealanders preferred to avoid accusing children of lying, the English were relatively unconcerned about doing so. This discrepancy appears to relate to the respondent's perception of the jury's view of children. Many New Zealand lawyers viewed juries as heavily biased in favour of child witnesses:

[B]y the time you come to cross-examine the child, you, the lawyer, and your client are definitely the villains of the piece. The jury look at you with contempt. How could you ask this beautiful little girl, this lovely little child, this sweet little boy about these things?

Conversely, the English thought there was little or no such bias. They therefore apparently felt confident in blaming the child because they did not believe the jury would be offended. One English woman barrister commented that there had been a backlash in public opinion against child complainants:

[Juries] once were [overly sympathetic to children]. Now they are much more amenable to defence suggestions that there's been overkill. Now they are kicking back against it. They've seen it on the TV, they've seen it portrayed in soap operas, they've seen it in the media, and they are up to saturation point with it. And you don't have to push them much harder than that to make them nod in agreement with you: 'Well, there's a lot of it about, isn't there, ladies and gentlemen?'

This rather unfortunate example at least suggests that a swing towards children in public opinion would cause lawyers to abandon some of their more negative portrayals of children in the witness box.

In conclusion, despite the fact that the legislature has made significant advances to bringing psychological research to bear in the courtroom, enhancing the opportunities children have to give evidence, it appears that some practising counsels continue to employ outdated stereotypes of those children in their arguments to the court. Psychology has had a significant impact on the legislature but not on the practitioners.

It is not the purpose of this chapter to suggest what should be done about this situation. It could be said that nothing should be done since within an adversarial system defence counsel have to be free to do their duty to advance all arguments likely to advance their client's interests, provided counsel does not actually know that an argument is false. However, it can also be argued that where a defence is exceptionally unlikely and yet might have great influence over the jury, its use should be controlled unless counsel can show some foundation. Something similar has already been done in relation to the questioning of rape complainants about their sexual history on the grounds that juries gave undue weight to that information in assessing the complainant's credibility (Sexual Offences (Amendment) Act 1976, s. 2). There is also the question of whether it is economic to allow lawyers to carry excess baggage into the system in the form of irrelevant defences. In these days of overloaded court calendars, this is perhaps not a minor consideration. Overall, however, we may have to wait until the public is more accepting of children's capabilities before lawyers stop using these outdated and damaging stereotypes.

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