Adult survivors of child sexual abuse have long complained about police disinterest in so-called “historical” sexual abuse complaints: when a report is made years after the alleged offence. The experiences of child and adult complainants in child sexual abuse trials have also been inconsistent. Often, they are alienating and retraumatising.
Against this backdrop, the Royal Commission into Institutional Responses to Child Sexual Abuse’s report on criminal justice has powerfully reasserted the rights of survivors to pursue and obtain a criminal justice response. The report recognised this benefits survivors individually and as a group, and is in society’s best interests.
The recommendation from the report that has received the most attention is that priests should be obliged to report to authorities information about child sexual abuse they receive during confession.
The royal commission recognised the religious significance of confession practices in many faiths. However, the evidence presented to it indicated that children have disclosed their abuse in confession, while clergy and other offenders have used the confessional to exculpate themselves of guilt.
For this reason, the commission argued the failure to report knowledge about child sexual abuse gained in the confessional should be a criminal offence. It is calling for the creation of a new offence of failing to report sexual abuse in institutions.
The Australian Catholic Bishops Conference has responded by declaring the inviolability of the confessional seal a matter of “freedom of religion”. It thus framed the expansion of its child protection obligations as a form of religious oppression. And Melbourne archbishop Denis Hart has said he would rather go to jail than report a sexual abuse allegation arising from confession.
But given the declining popularity of confession, and the likelihood that perpetrators will avoid disclosure if confession is not confidential, debates over this issue are largely symbolic.
However, this particular recommendation’s prominence should not overshadow the substantive changes the commission proposed to the culture and process of criminal justice intervention into child sexual abuse. This is particularly so in relation to “historical” cases.
Improving police responses
The royal commission has understood the critical importance of a respectful response from police from the moment of an initial report of child sexual abuse.
Police act as the “gatekeepers” of the criminal justice system. They can formally or informally obstruct survivors from pursuing complaints in several ways.
Submissions to the commission suggested there has been a general reluctance within police to investigate historical complaints of child sexual abuse. Survivors described police discouraging them from making a formal statement, telling them it was unlikely their allegations could be proven in court.
Survivors flagged issues with policing culture, and described situations in which police told survivors they were culpable for their abuse and should “get over” it.
Survivors felt that some abuse complaints were not investigated due to disbelief, while others were only investigated after sustained pressure and repeated inquiries from survivors.
The commission noted an apparent improvement in police responses to abuse reports over the past 15 years. However, it recommended police develop clear standards that lay out what adult survivors can expect when they approach police, with a focus on ensuring consideration and respect.
Importantly, the commission suggested increased police accountability and outcome reporting for child sexual abuse investigations.
Criminal justice culture and processes
Perhaps the report’s most consequential recommendation is in relation to tendency and coincidence evidence – that is, evidence of other acts of misconduct – and joint trials.
When an offender has abused multiple children, the charges relating to each child are frequently heard in separate trials. Corroborating testimony from other alleged victims is often not admitted at trial, and juries may not be informed if the defendant has prior convictions or charges relating to child sexual abuse.
These exclusions significantly decrease the likelihood of successful prosecution.
In response, the commission has recommended law reform to facilitate the admission of tendency and coincidence evidence at trial, and to increase the number of joint trials.
These changes will provide judges and juries with vital contextual information related to the alleged offending, and improve – not prejudice – decision-making.
Another valuable recommendation is that adult survivors of child abuse should be understood as vulnerable witnesses in the criminal justice system. They should gain access to provisions such as the pre-recording of their full evidence, including cross-examination and re-examination.
These provisions have previously only been available to children or adults with a cognitive impairment.
Improving continuity and communication
Reporting child sexual abuse to police, and any subsequent investigation or trial, is a time of profound instability for victims and their families.
What may appear – to police, prosecutors or criminal justice staff – as the justice system’s normal operations can be entirely new and disconcerting for victims and allies.
The commission has highlighted the importance of providing accessible information and educational resources to survivors about police and justice processes, and training police and prosecution staff in the nature and impact of child sexual abuse.
This is why a non-judgemental approach to the mental health effects of abuse is vital to promoting a culture of respect and shared understanding.
The recommendations also emphasise the importance of staffing continuity and communication throughout the investigation and prosecution process. Survivors would be regularly in contact with the same representatives, keeping them up-to-date with their case. Key decisions in the direction of an investigation and prosecution need to be transparent and accountable.
After decades of feeling marginalised by policing and justice processes, survivors of child sexual abuse now have a document that not only articulates their key concerns, but maps out a practical and achievable strategy for addressing them. The question now is whether governments will act.