The Hearsay Rule and Delayed Complaints of Child Sexual Abuse: The Law and the Evidence
Cossins, Anne, Psychiatry, Psychology and Law
This article discusses the implications of two recent High Court cases on the admissibility of hearsay evidence of a child's delayed disclosure of child sexual abuse. It compares and contrasts the traditional legal significance of delayed disclosure (as being evidence of fabrication) with prevalence studies from the psychological literature which show that a majority of children delay disclosure and that, rather than being an aberrant feature of child sexual abuse, delay is a typical response of sexually abused children as a result of confusion, denial, self-blame and overt and covert threats by offenders. In addition, several self-report studies of offenders confirm that grooming processes create a relationship of power between the child and offender such that delayed disclosure appears to reflect the position of powerlessness of the sexually abused child within that relationship. In light of what the psychological literature tells us, this article challenges the narrow legal approach to the admissibility of hearsay evidence of delayed disclosure and suggests that a special exception should be made for hearsay statements of a child's delayed disclosure in child sexual assault trials.
The accepted wisdom about the rules of evidence that apply in the criminal trial is that they "ensure that the trial process is fair for [both] parties" to the proceedings (Australian Law Reform Commission (ALRC) and Human Rights and Equal Opportunity Commission (HREOC), 1997, p. 322). Contrary to this accepted wisdom, however, child sexual assault has been identified as one of the most difficult crimes to prosecute (Brereton and Cole, 1991; Cashmore, 1995; Parliament of Victoria, Crime Prevention Committee, 1995; Royal Commission into the New South Wales Police Service, 1997) (1), not least because the rules of evidence in the adversarial trial have the potential to prevent a child complainant from fully explaining their evidence and to prevent that evidence from being assessed in the actual context in which the assault is alleged to have occurred. In particular, children can be effectively silenced as witnesses due to the existence of common law "[c]ompetency rules, judicial warnings regarding children's evidence, rules against hearsay and prohibitions on expert testimony and on tendency and coincidence evidence" (ALRC and the HREOC, 1997, p. 322). In fact, the Royal Commission into the New South Wales Police Service (1997, p. 1090) commented that the sexual assault trial has always been "peculiarly weighted" against a child complainant for these reasons, as well as the expectation that a child witness should give evidence in the same ways as adults in the witness box in the presence of the accused.
Whilst a number of reforms have been introduced in recent years to address some of these problems, such as legislation which enables a child, in some jurisdictions, to give evidence from a remote room via CCTV (ALRC and HREOC, 1997, p. 304-352), a review of the NSW case law indicates that the traditional common law approach to issues such as lack of corroboration, delays in complaint and tendency evidence (Cossins, 1999; 2001; R v OGD (No.2)  NSWCCA 404) still operates to de-contextualise the unique circumstances surrounding the sexual abuse of children.
This article examines two recent decisions by the High Court of Australia which concern the admissibility of hearsay statements of recent and delayed complaint in sexual assault trials and discusses the implications of these cases for the reception of such evidence in child sexual assault trials in NSW. The article then contrasts the legal approach to the perceived problems of admitting the hearsay statements of a child's delayed complaint with a number of psychological studies that have documented the frequency of, and reasons for, delayed disclosures of child sexual abuse. Finally, the article discusses the implications of these studies for the admissibility of hearsay evidence of a child's delayed disclosure in a child sexual assault trial. …