The way in which children give evidence at their own abuse cases is detrimental to their mental health — and to justice, writes Linda Watson-Brown

Suffer the children

In Edinburgh, Scotland, last week (October 2001), Lord MacLean ended a trial in which two children had accused a group of men of appalling instances of abuse. The jury in the case, which had been going on for some weeks, had heard of how a gun was allegedly held to one of the children’s heads as threats were made to kill their mother.

They heard claims of rape, buggery and years of sustained attacks. At the centre of the case was an 11-year-old girl and an eight-year-old boy. After being cross-examined by the legal teams of six men for more than 25 hours in total, the girl was allowed to leave the witness area. Her brother did not have her composure. After breaking down twice, the judge decided, on the findings of a child psychologist that the child was unable to be cross-examined without further psychological damage, that the case could not continue.

The circumstances have caused a storm of criticism from those working in the fields of abuse and child protection, as well as raising questions about how we treat any threatened or non-conformist witness within the current system.

Fiona Raitt is a lecturer in law at the University of Dundee. "When I first heard this news I was in England at a conference looking at how we take evidence from rape victims. I was very much aware of how the Scottish system was looked at from the perspective of being out of the country at that time. Police officers and others in the field were absolutely shocked that we still do this to children. There was talk of how such a barbaric practice can be allowed to continue, and why measures which could protect children are not being utilised."

One of Raitt’s concerns is that video evidence has only been used once in Scotland since 1990 in cases of this nature. Why does she think this is the case, given that many of those who spoke out against the outcome of last week’s trial pointed to the use of such tapes as one of the main ways forward?

"I think there are, with some people, worries that videotapes are not weighty enough or credible enough in the eyes of juries. If that is the case, then we don’t throw out the possibility of using it, we simply get on with training juries that different types of evidence are appropriate in different types of cases."

Forensic psychologist Dr Mairead Tagg has been involved with Greater Easterhouse Women’s Aid for some years. She believes that juries are too keen to believe myths about abuse and rape which make it difficult for the voices of children — and women — to be heard.

"We currently have judges who are untrained to be knowledgeable about gender crime. We have juries who believe the myths and look for what they think are the right ‘signs’. We have prosecutors who have little time to prepare. Where within all of this do children get justice? We desperately need to get over a better understanding of how children are affected. We need expert witnesses who can talk to juries and explain things that aren’t necessarily obvious."

As Tagg points out, in Scotland the current system does not allow for this. "The survivor is only treated as a witness. There is no-one there to act as an advocate for them. In fact, if a child details what they have experienced, they cannot then have an expert witness support what they say. The children need an advocate, and they need their own lawyer."

Experts were concerned about a number of the points in last week’s trial. The young boy who was being cross-examined had previously displayed a tendency to dissociate from his alleged experiences when questioned in traumatic surroundings, and yet his mother was prevented from verbally reassuring him of her love or of grounding him if this happened. "That is child abuse all over again. For that little boy to have his mother hold him for 25 minutes and for her to have to refuse to talk to him or reassure him that she was there for him is absolutely appalling," says Tagg. "If the child had been diabetic and suffered a hypo, would we have stopped him getting glucose because it interfered with the process? That is how ridiculous it is. There is a huge difference between grounding a dissociated child and fiddling with evidence."

The mother herself believes that had she been allowed to respond naturally, the case could have continued. "I know how to bring my son back again. I only needed to emphasise to him where we were, some obvious things, and he could have gone on." As it was, the child was returned to cross-examination only to break down again. At this stage, the judge halted proceedings.

There are also concerns about the amount of time his sister was questioned. Each defence lawyer was allowed a separate opportunity to interrogate her . "If I were this family, I would be looking for compensation for that child. Under European Human Rights legislation she has had her rights denied. She has been further damaged and she should not have had to suffer that," says Raitt.

The potential to utilise European legislation to recompense the child raises the question of why other nations have addressed this problem more effectively than Scotland. Holland has an inquisitorial system which results in the judge fielding many questions from defence teams and reducing the numbers of times a child is asked the same thing.

This is important given that the cumulative effects of continued questioning are so much more pronounced on a child witness than an adult. In Israel, children are appointed a lawyer who is their own advocate. In Northern Ireland and the US, videotaped evidence is used as a matter of course. Even in England, there is more likelihood of a commission being set up which will work within the social work system to test the child’s evidence in a more informal, less threatening way.

Even if Scotland finds these methods of empowering children too challenging, there are other practical issues which should be considered.

Dr Nick Fyfe has recently completed a Scottish Office project which looks at the protection of vulnerable and intimidated witnesses. He believes that even the set-up of courts leads to problems for children in these situations. "When you look at how courts have been designed, it is clearly unacceptable to have the number of ‘accidental’ encounters which occur. Children will be afraid if they think they are going to bump into someone from the other side if they go to the toilet or when they go for a break, and yet these are avoidable problems.

"For example, in Paisley, the layout has been redesigned to take account of this and the witness rooms are straight across from the court so that there are no surprises. They also have toilets in each so that there is no reason to meet associates of the accused at any point.

"Other points which should be addressed are the ways in which some courts close at lunch, meaning that everyone spills into the street at the same time. We could also change the practice whereby prosecution and defence witnesses are asked to arrive at the same time."

Fyfe also believes that many of the practices which have been set up for protected witnesses in drug or murder cases could be adapted for children.

"Protected witnesses do not have to use public entrances — why can’t we do that for child witnesses? These are basic considerations. Appearing in court is intimidating for everyone, irrespective of the particulars of guilt and innocence. So much could be changed which would not involve tackling legal precedents, but would make a big difference to how children felt."

Even if these logistical problems are ironed out, there remain many deeper issues with the Scottish legal system which have become glaringly obvious since last week. Tagg believes that the clear division between theories of justice and actual outcomes is too conspicuous to be accepted any longer.

"We have a conviction rate of less than 10 per cent in these cases. That is intolerable. Where is the justice in it? That isn’t even a conviction rate at all in most senses of the phrase. Unless we accept that everyone takes in information differently when they’re traumatised, nothing will change. We can’t expect children to go into an adult court and give evidence in an adult way and then dismiss everything when they don’t live up to standards adults have problems with. As things stand, survivors are no more than witnesses in their own abuse cases. It can’t be allowed to continue."

Raitt says: "It is no good saying these are the rules and we just have to accept them. You can change rules."
 

http://www.thescotsman.co.uk/index.cfm?id=94047&keyword=the
9 October 2001