By Rita Shackel. This article is part of our July focus on the rights of children and youth. Read our Editorial for more on this theme.
The sexual abuse of children is a global problem – it occurs in every country and cuts across all socio-economic, educational and ethnic groups in society. According to the World Health Organization, approximately 20 per cent of women and five to 10 per cent of men report being sexually abused as children. Despite such figures, which consistently reveal child sexual abuse is an extensive problem throughout communities world-wide, it is generally recognised that such statistics likely represent merely the tip of the iceberg of the actual incidence and prevalence of child sexual victimisation in society.
Child sexual abuse encompasses a wide range of sexual misconduct perpetrated against children and may occur in a wide range of situations and contexts. In general terms child sexual abuse is
“considered to be any sexual activity between a child and an adult, or older person … [and may] include fondling genitals, masturbation, oral sex, vaginal or anal penetration by a penis, finger or any other object, fondling of breasts, voyeurism, exhibitionism and exposing or involving the child in pornography”.
Thus child sexual abuse may involve actual touching or direct sexual contact with a child as well as sexual misconduct without any direct or actual physical contact with the child victim. Moreover, child sexual abuse may be directed towards the commercial sexual exploitation of children, but also and indeed more frequently, occurs for the personal sexual gratification of a sole adult abuser. Some recent research suggests that “situational and environmental factors” or simply “the opportunity” to sexually offend against a child may represent a key factor in the commission of such crimes.
However, irrespective of the precise nature, form or situation of such abuse, child sexual victimisation is usually strongly characterised by a hidden dimension or element(s) of secrecy. Child sexual abuse in its varied forms usually occurs in private and typically is not corroborated or evidenced by medical or other types of physical evidence. In cases of intra-familial child sexual abuse, this dimension of secrecy is often key to the abuse remaining hidden from others and thus continuing undetected over a protracted period of time. Moreover and not surprisingly, rarely will there be any witnesses to this type of misconduct. In most cases the victim’s allegations of abuse constitute the only evidentiary basis for proof of the alleged abuse. Thus the victim’s credibility is often central to authorities pursuing and proving an alleged case of child sexual abuse.
Accordingly, in investigation of such allegations, and later if a case is pursued for prosecution, disclosure of the alleged abuse by the victim will often be a paramount focus and a matter closely scrutinised by investigators and prosecutors. The disclosure of alleged child sexual abuse is undoubtedly a key dynamic of this type of sexual victimisation, but unfortunately the dimensions of victims’ disclosure are commonly misconstrued or distorted by the legal process. This creates barriers to the successful prosecution of such cases and may also result in the victims of such abuse being treated in ways that fail to properly recognise their emotional needs and especial vulnerability.
The underlying dynamics of disclosure of child sexual victimisation are complex. How and when a victim of child sexual abuse will disclose their victimisation depends on the interaction of a complex matrix of factors that arise in the individual case, such as, for example the age of the child, the nature or seriousness of the abuse and the child’s relationship with the perpetrator. In forensic contexts the underlying dynamics of disclosure of child sexual abuse by a victim, are still generally not well understood or realised in a way that is sufficiently nuanced. The individual nature and circumstances of child sexual victimisation are often not recognised and thus the unique dynamics of disclosure of this type of crime tend also to be homogenised by the legal process. This process of homogenisation of crimes of child sexual abuse by legal processes creates difficulties for the investigation and prosecution of such crimes and will often thereby compromise the rights and dignity of the victims.
A prime aspect of disclosure of child sexual abuse that continues to be poorly understood by the legal process is the fact that victims of such abuse will commonly delay in disclosing and reporting their victimisation. Indeed many victims never disclose their abuse at all, but for many victims who do disclose child sexual abuse, delay in disclosure will often be protracted. The findings of research suggest that the majority of victims of child sexual abuse will not disclose their victimisation in childhood but rather are more likely to reveal their experiences of abuse in adulthood.
It is thus surprising that there is still so much for us, particularly as agents of the legal process and the criminal justice system, to discover why some victims decide to disclose their abuse as children and others do not do so until they are adults. We also need to better understand what factors might be predictive of, or at least associated with, earlier rather than later disclosure by victims. One of the most comprehensive national studies on delayed disclosure in child sexual abuse cases undertaken in the United States found that few variables successfully predicted disclosure behaviour. The authors did report, however, that the older age of a victim and abuse by a stranger were associated with more rapid disclosure. Ultimately though, research findings which do not delineate clear patterns of disclosure indicate that the myriad of variables that impact the dynamic of abuse, although complex, must be recognised by the legal process. Any bright-line presumptions concerning the disclosure behaviour of victims of child sexual abuse are unjustified and unwarranted.
Another aspect of disclosure of child sexual abuse that also continues to be poorly understood within the forensic context, which is often misconstrued in investigation and prosecution of such crimes, is the medium and the mode of disclosure of such abuse by victims. Legal processes tend to presume that victims of child sexual abuse will not only disclose such victimisation promptly but that disclosure will occur via certain predictable and clearly identifiable pathways. Namely, disclosure by child victims will most often be to a significant non-offending adult such as a parent or other close relative and such disclosure will be deliberate and purposeful on the part of the victim. Psychological research, however, has revealed that other pathways of disclosure are also common. For example, a considerable body of empirical research has shown that many victims of child sexual abuse disclose their abuse accidentally rather than in a purposeful or in a direct manner. Similarly, in contrast to common expectations that disclosure by a victim will be made to an adult, research suggests that many victims of child sexual abuse instead disclose to a peer or a sibling.
In the investigation of child sexual abuse offences, questions pertaining to disclosure of the allegations of such abuse are commonly configured around misconceived expectations about modes of disclosure. When disclosure is exposed as having occurred via an alternate pathway, questions about the legitimacy of such pathways then arise and such perceived incongruences between the victim’s allegations of abuse and disclosure of such abuse, often will fuel suspicions about the victim’s credibility. Put very simply, when a victim of child sexual abuse discloses in a way contrary to the expectations of the legal ideal, i.e. soon after the alleged abuse and via purposeful and direct disclosure to a trusted adult, the veracity of the allegations tends to be called into question. Ultimately such views may drive decision-making in the case in directions that precipitate bias and which are prejudicial and unfair.
The fact that legal processes homogenise the responses of victims of child sexual abuse suggests that such processes are not sufficiently attuned to the individual needs of victims. Moreover, the focus in investigation and prosecution of certain types of cases may thus end up being misplaced and may therefore risk perpetuating or indeed even generating ill-based presumptions around victim behaviour that are simply not valid in certain types of cases. An example of this problem can be seen by examining what should arguably be recognised as two distinct and different groups of cases involving allegations of child sexual abuse; those on the one hand that involve allegations of abuse made when the complainant is still a child, and those cases of alleged child sexual abuse involving disclosure and/or reporting when the complainant is an adult. Unfortunately, although many cases of child sexual abuse are only finally and for the first time investigated when the victim is in adulthood, there is a surprising paucity of information and appropriately nuanced understanding of how these cases differ from those in which the victim is a child. Simply understanding how and why the dynamics of the abuse situation may have impacted and inhibited disclosure/reporting of the abuse is important in terms of building a case for prosecution and dealing with relevant issues of evidence and proof that may arise in the case.
Understanding the key dynamics and dimensions of a crime is important in order to ensure that the legal process responds appropriately to the needs of the victims of particular crimes, but such understandings are also an essential part of properly shaping how legal processes respond to certain crimes. Without these understandings there is a risk that in investigation and prosecution of such cases an improper focus will manifest and irrelevancies will assume an inappropriate or disproportionate significance. If this occurs, issues within the case may be wrongly construed as being relevant to adjudging the substance of the allegations and/or the credibility of the complainant. Consequently the interests of the administration of justice and of society generally will not be served.
Rita Shackel is a Senior Lecturer and the Associate Dean (Learning and Teaching) at the University of Sydney Law School. Her research areas include children and the law, with a focus on the prosecution of child sexual assault cases, and psychological testimony in those cases.