In recent months historical abuse cases have hit the headlines such as the Rochdale child abuse case involving many defendants, abuse at North Wales care homes and the case of Jimmy Saville. The deputy prime minister Nick Clegg said the government would reach out to victims of abuse and their “suffering would be atoned for”.
One of the most emotive and controversial aspects of sexual offences defence work concerns these type of cases.
This is a complex, unsettled area, where prosecutions are often based on the complainant’s word against that of the defendant. There is no statute of limitations on these offences, as in other jurisdictions. A good example of one of the oldest cases concerning these type of allegations originated 63 years ago (R v Davies).
The police frequently receive reports of historic sexual offending, often involving abuse over a number of years within a family, at a school or in residential care homes. It is now widely accepted that delay in reporting is not indicative of a false allegation, therefore cases arising out of allegations of distant events such as claims of sexual abuse from a long time ago can be challenging for the accused.
A false allegation of historical sexual abuse is an accusation that a person committed one or more acts of sexual abuse when in reality there was no perpetration of abuse by the accused person as alleged. Such accusations can be brought by the alleged complainant, or by another person on the alleged complainant’s behalf. From these type of allegations determined to be false, only a small portion originated with the child, most false allegations originated with an adult bringing the accusations on behalf of a child, and of those, a large majority occurred in the context of divorce or some other form of retribution. There is also strong indications as with other alleged sex offences that our legal system of paying compensation, (quite substantial), can provide a motive for allegations being made.
More often than not, there is little in the way of physical evidence leaving the court with little more than the ”evidence” of the complainant alleging the historical abuse.
Complainants in historical abuse cases can appear to be sincere, truthful, and honest in giving their evidence. However, that does not necessarily make their evidence reliable. Memories are far from perfect. Even a witness that appears confident and convincing may not be accurate or reliable in the evidence they give. Where the evidence contains contradictions and inconsistencies, it is dangerous to place too much emphasis on the witness’ demeanour. It is possible for an honest witness to convince their self of the correctness of their account though, in fact, it may be inaccurate. Such witnesses can be extremely persuasive in the manner they give their evidence.
By the term “credibility”, the courts are often referring to a witness’ honesty or sincerity. On the other hand, “reliability” relates to the evidence itself and has more to do with the accuracy of that evidence. There are numerous factors that can affect the reliability of a witness’ evidence.
In cases involving historical allegations of sexual abuse, the passage of time may make it difficult for a witness to recall the incidents that they are giving evidence about. However, this should not be used as a blanket excuse for accepting the evidence of such a witness. Rather, the court should be paying attention to the consistency of the evidence. In other words, “Is the evidence consistent throughout or are there significant inconsistencies?”
These inconsistencies may exist within the evidence of the witness or between what the witness is now saying and has said in the past. The court should also carefully consider the issue of extrinsic (meaning: Extrinsic motivation refers to motivation that comes from factors outside an individual) evidence. Whatever extrinsic evidence does exist should be examined carefully. It should also consider what extrinsic or confirmatory evidence should be expected to exist as well as the absence of extrinsic evidence that would support major or significant areas of the complainant’s evidence.
There are also other issues in these historical cases that the court must keep in mind. In cases where there has been a significant passage of time between the alleged incident (historical abuse) and the trial, the court should also be aware that even a detailed account of an event from the distant past does not mean that it is an accurate account, as the passage of time may have distorted the memory of the witness. In addition, the passage of a significant period of time can make it difficult to accurately assess an apparent lack of motive.
Once false allegations of historical child abuse make their way in court, the challenges for the accused of the false accusations only increase. The emotional atmosphere that is generated by an allegation that a child has been deliberately harmed creates a hostile climate for defending against the allegation.
Public backlash from historical child abuse cases has resulted in special laws and rules designed with the intention of giving child-witnesses an equal footing in court. Toward that end, these laws allow prosecutors to introduce evidence that would not be allowed in other types of cases. Good intention’s aside, the reality is that child-witnesses and prosecutors in historical child abuse cases have been given a tremendous advantage in the courtroom.
Presenting an aggressive defense against false allegations is crucial in determining the truth and, ultimately, prevailing at trial. Since there are so many issues involved in historical child abuse cases, and since the issues cover such a wide range of professional fields, it is extremely difficult for any defence team to keep abreast of the current research, data, case law, etc. that is crucial in providing that aggressive defense. Many professionals who give evidence that abuse has occurred base their “opinion” primarily on the opinions of other like-minded professionals. Many times they will say there are studies by other “experts” that support their opinions. Rarely is that true. Yet, if the defense does not know the research or that flaws in the data exist, then the prosecutor can and will be convincing. Challenging these professionals is critical to any defense strategy.
The analysis of evidence in cases involving historical allegations of sexual abuse must be a careful and considered one, where the reliability of the evidence itself must be the paramount consideration.
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