Closing the Justice Gap for Adult and Child Sexual Assault: Rethinking the Adversarial Trial

722 Pages·2020·6.129 MB·English

by  Anne Cossins

A N N E C O S S I N S
Closing the Justice
Gap for Adult and Child
Sexual Assault
Rethinking the Adversarial Trial
Closing the Justice Gap for Adult and Child
Sexual Assault
Anne Cossins
Closing the Justice
Gap for Adult
and Child Sexual
Assault
Rethinking the Adversarial Trial
Anne Cossins
Honorary Professor and former Professor of Law and Criminology
Faculty of Law
University of New SouthWales
Sydney, Australia
ISBN 978-1-137-32050-6 ISBN 978-1-137-32051-3 (eBook)
https://doi.org/10.1057/978-1-137-32051-3
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Contents
1 Introduction 1
2 The Nature and Effects of Adversarialism: Jury
Decision-Making in Sexual AssaultTrials 95
3 Factors That Predict Outcomes in Sexual Assault
Trials 121
4 ‘Commonsense’ or ‘Life Experience’: Jurors’
Perceptions of Guilt 153
5 ‘No Means Yes and Yes Means Anal’: The Cultural
Climate inWhich Sex Offences Are Prosecuted 171
6 The Nature and Effects of Adversarialism: Sites
of Activation for Heuristic Reasoning Processes 245
7 Modernisation of the Substantive Law of Consent 277
v
vi Contents
8 Cross-Examination in Sexual Assault Trials:
Evidentiary Safeguard or an Opportunity to Confuse? 339
9 Contemporary Reforms to Cross-Examination 425
10 TheProblemsFacingReformersoftheSexualAssault
Trial 479
11 Achieving Best Evidence for Vulnerable Witnesses:
The Use of Trauma-Informed Theory to Reform
the Sexual AssaultTrial 533
12 Reform Measures:The Devil Is in the Detail 577
References 651
List of Figures
Chapter 1
Fig. 1 Progress of a sexual offence through the criminal justice
system 14
Fig. 2 Convictions for incidents of sexual assault & rape as a
proportion of the estimated number of victims (3-year
average E&W: 2009/2010, 2010/2011, 2011/2012) 38
Fig. 3 Convictions for incidents of sexual assault & rape as a
proportion of police-recorded incidents (3-year average
E&W: 2009/2010, 2010/2011, 2011/2012) 39
Fig. 4 Attrition of CSA offences prior to prosecution in E&W,
yearendingMarch2016(datatakenfromKelly&Karsna,
2017) 45
Fig. 5 The progress of sexual offences through NSW criminal
justice system, 2014 (NSW Bureau of Crime Statistics and
Research [NSWBOCSAR]) (https://www.scribd.com/doc
ument/273468462/Sexual-Attribution-Diagrams#) 50
Fig. 6 Progression of reported CSA cases with respect to the
complainant’s Indigenous status: Jurisdiction A (Australia)
(Bailey et al., 2017) 66
vii
viii List of Figures
Fig. 7 Progression of reported CSA cases with respect to the
complainant’s Indigenous status: Jurisdiction B (Australia)
(Bailey et al., 2017) 67
Chapter 2
Fig. 1 From individual processing to group processing (based on
Kerr et al., 1996) 111
Chapter 6
Fig. 1 The parts of a criminal trial that encourage
hypothesis-testing by the jury 253
Fig. 2 Sites of activation: heuristics within a criminal trial 254
Fig. 3 ‘Director’s cut’ model linking juror and defendant
characteristics to juror decisions (Adapted from Devine &
Caughlin, 2014: 112; with additions by author) 262
Fig. 4 Adaptation of the ‘Director’s cut’ model linking juror,
defendant and victim characteristics to juror decisions in
sexual assault trials (Adapted from Devine & Caughlin,
2014: 112) 266
Chapter 7
Fig. 1 The relational concepts of consent and belief as to consent 330
Chapter 11
Fig. 1 Comparison of adversarial trial and trauma-informed
system 558
Chapter 12
Fig. 1 ‘Director’s cut’ model linking juror and defendant
characteristics to juror decisions (Adapted from Devine &
Caughlin, 2014: 112; with additions by author) 590
Fig. 2 Trauma-informed, specialist court 616
List of Tables
Chapter 1
Table 1 Australia: victimisation rates for sexual assault for
different age groups, per 100,000 (2017) 8
Table 2 The victimisation rate, by sex of victim, for recorded
victims of sexual offences compared to victims of select
personal violence offences in Australia, 2018 16
Table 3 Australian students’ reasons for not reporting sexual
assault to university 17
Table 4 Reasons for not reporting rape to police: CSEW (adults
16–59 years) 18
Table 5 The proportion of sexual offences, by sex of victim, for
police-recorded crimes against the person in England
andWales, year ending March 2018 19
Table 6 Recorded sexual offences against children in the UK
and Number of sexual offences per 10,000 Children
(2016/2017) 20
Table 7 Recordedsexualassaultrates(per100,000)forEngland,
Wales and Australia 21
Table 8 Patterns of disclosure of sexually abused children 23
ix
x List of Tables
Table 9 Police-recorded incidents of sexual offences, E&W,
April 2017–March 2018 40
Table 10 Sexual assault incidents reported to NSW police
involving child and adult victims, 2006–2014
(NSWBOCSAR) 54
Table 11 Selected defendants finalised in all Australian criminal
courts by principle offence, 2016–2017 to 2017–2018 59
Table 12 Selected defendants finalised by principle offence in
NSW higher courts, 2016–2017 to 2017–2018 60
Table 13 Outcomes of all child sexual assault matters in NSW
courts, July 2012 to June 2016 62
Table 14 All defendant appearances for all child sexual assault
matters in NSW courts, July 2012–June 2016 63
Table 15 Comparison of conviction rates for child sexual assault
matters with other offences in all NSW courts, July
2012–June 2016 64
Chapter 4
Table 1 Comparison of symptoms of sexual victimisation with
rape myths 163
Chapter 5
Table 1 Recent rape myth studies categorised according to the
seven IRMAS categories 187
Table 2 Cultural expectations of victims’ responses to rape
compared to documented responses of victims to trauma 218
Table 3 Laypeople’s and jurors’ misconceptions about children’s
responses to sexual abuse and suggestibility as witnesses 222
Chapter 7
Table 1 Scope of the mental element for prosecuting sexual
intercourse without consent in different jurisdictions 294
Table 2 Dubowski’s stages of acute alcohol intoxication 308