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

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Anne Cossins

Closing the Justice Gap for Adult and Child Sexual Assault

Rethinking the Adversarial Trial

1st ed. 2020

Anne Cossins

Honorary Professor and former Professor of Law and Criminology Faculty of Law, University of New South Wales, Sydney, Australia

ISBN 978-1-137-32050-6 e-ISBN 978-1-137-32051-3

https://doi.org/10.1057/978-1-137-32051-3

The author(s) has/have asserted their right(s) to be identified as the author(s) of this work in accordance with the Copyright, Designs and Patents Act 1988.

The Editor(s) (if applicable) and The Author(s) 2020

This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed.

The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use.

The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations.

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This Palgrave Macmillan imprint is published by the registered company Springer Nature Limited

The registered company address is: The Campus, 4 Crinan Street, London, N1 9XW, United Kingdom

Contents

List of Figures

Chapter 1

Fig. 1 Progress of a sexual offence through the criminal justice system

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)

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)

Fig. 4 Attrition of CSA offences prior to prosecution in E&W, year ending March 2016 (data taken from Kelly & Karsna, 2017)

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/document/273468462/Sexual-Attribution-Diagrams# )

Fig. 6 Progression of reported CSA cases with respect to the complainants Indigenous status: Jurisdiction A (Australia) (Bailey et al., 2017)

Fig. 7 Progression of reported CSA cases with respect to the complainants Indigenous status: Jurisdiction B (Australia) (Bailey et al., 2017)

Chapter 2

Fig. 1 From individual processing to group processing (based on Kerr et al., 1996)

Chapter 6

Fig. 1 The parts of a criminal trial that encourage hypothesis-testing by the jury

Fig. 2 Sites of activation: heuristics within a criminal trial

Fig. 3 Directors cut model linking juror and defendant characteristics to juror decisions (Adapted from Devine & Caughlin, 2014: 112; with additions by author)

Fig. 4 Adaptation of the Directors cut model linking juror, defendant and victim characteristics to juror decisions in sexual assault trials (Adapted from Devine & Caughlin, 2014: 112)

Chapter 7

Fig. 1 The relational concepts of consent and belief as to consent

Chapter 11

Fig. 1 Comparison of adversarial trial and trauma-informed system

Chapter 12

Fig. 1 Directors cut model linking juror and defendant characteristics to juror decisions (Adapted from Devine & Caughlin, 2014: 112; with additions by author)

Fig. 2 Trauma-informed, specialist court

List of Tables

Chapter 1

Table 1 Australia: victimisation rates for sexual assault for different age groups, per 100,000 (2017)

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

Table 3 Australian students reasons for not reporting sexual assault to university

Table 4 Reasons for not reporting rape to police: CSEW (adults 1659 years)

Table 5 The proportion of sexual offences, by sex of victim, for police-recorded crimes against the person in England and Wales, year ending March 2018

Table 6 Recorded sexual offences against children in the UK and Number of sexual offences per 10,000 Children (2016/2017)

Table 7 Recorded sexual assault rates (per 100,000) for England, Wales and Australia

Table 8 Patterns of disclosure of sexually abused children

Table 9 Police-recorded incidents of sexual offences, E&W, April 2017March 2018

Table 10 Sexual assault incidents reported to NSW police involving child and adult victims, 20062014 (NSWBOCSAR)

Table 11 Selected defendants finalised in all Australian criminal courts by principle offence, 20162017 to 20172018

Table 12 Selected defendants finalised by principle offence in NSW higher courts, 20162017 to 20172018

Table 13 Outcomes of all child sexual assault matters in NSW courts, July 2012 to June 2016

Table 14 All defendant appearances for all child sexual assault matters in NSW courts, July 2012June 2016

Table 15 Comparison of conviction rates for child sexual assault matters with other offences in all NSW courts, July 2012June 2016

Chapter 4

Table 1 Comparison of symptoms of sexual victimisation with rape myths

Chapter 5

Table 1 Recent rape myth studies categorised according to the seven IRMAS categories

Table 2 Cultural expectations of victims responses to rape compared to documented responses of victims to trauma

Table 3 Laypeoples and jurors misconceptions about childrens responses to sexual abuse and suggestibility as witnesses

Chapter 7

Table 1 Scope of the mental element for prosecuting sexual intercourse without consent in different jurisdictions

Table 2 Dubowskis stages of acute alcohol intoxication

Chapter 8

Table 1 Frequency of leading and closed questions during cross-examination by different examiners

Table 2 The cross-examination effect: degree of changes to evidence by children subject to cross-examination-type questions

Chapter 11

Table 1 Studies on the impact of testifying in court on children in CSA cases

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