Friday, 26 June 2015

How valid is a child’s credibility?                        

In alleged child sexual abuse cases before the courts, there is seldom any corroborating evidence and the cases hinge on the statements of young children. Although the sexual abuses alleged sometimes seem bizarre and improbable, adults are inclined to accept them as true since to them, it seems impossible that a child would lie or fantasize such detailed accounts of sexual abuse by an adult.

When children are subjected to multiple formal and informal interviews, sessions of therapy, and interactions with police and social; workers along with their parents who believe that the abuses are real, the adults inadvertently shape, mold, and reinforce the stories and drive children into believing their own stories of abuse. When this happens, the child is likely to internalize the details and believe in the truth of the stories. Understanding this process of social influence is central to assessing the credibility of children's testimony. Of course, a great many of children’s accounts of sexual molestation on them by adults are actually true.      

In cases involving allegations of sexual abuse of children, there is seldom any corroborating evidence and because of that fact, such cases hinge on the statements of the young victims. Although sometimes the sexual abuse alleged appears to be highly improbable, adults must consider that the allegations might actually be true. In evaluating such cases, it is necessary to carefully have the child explain the sequence of events. The circumstances surrounding the original disclosure and the contact the child has had with the suspected adult must be recorded in writing along with the statements reportedly made by the child as the case progresses.                             

There was a time in Canadian history that any allegation of sexual abuse by an adult against a child had to be witnessed by a third person before an criminal charge could be brought against the suspected abuser. That no longer applies anymore. The law in Canada now is that the word of the child (if believed) is sufficient.

Now I am going to tell you of a Canadian case in which the children who claimed that they were sexually abused by their father weren’t believed by the trial judge. The names of the children and their mother are not written in this article for the children’s protection. I will only identify the children with initials. The accused father however will be identified as “the accused” and the children’s mother as “the mother”.

The accused initially began a relationship with the mother in the summer of 2001. He had two children of his own from a prior relationship with another woman. They were JG, a daughter and HG. a son. The mother had two daughters: TF, born in 1995, (now 20) and KF, born in 1996, (now 19). She brought her daughters, TF and KF, to live with the accused on his ranch in 2002. The ranch was also the location of the accused’s family peat moss business. Throughout the cohabitation, the accused saw his two biological children; JG and HG every second weekend. They stayed overnight with the accused and the mother and her two daughters, TF and KF.

The relationship between the accused and the mother ended in October of 2003. At the time of their separation, the mother was three months pregnant with the accused’s child. The mother and her two daughters, TF and KF left the shared home and moved into a condominium. The accused no longer resided with them, but he did see the children often, particularly after his son (CG) with the mother was born. In November of 2004, the mother’s daughter, KF, who was by then eight years old, began exhibiting changes in her behavior. She became anxious, difficult and often angry. She moved in with her biological father in 2006. The accused continued to have contact with the mother’s other daughter, TF and his biological son, CG.  He also had contact with his two other children (JG and HG) on weekends. The two families lived in various residences between 2003 and 2010.  

The children complained about this man’s sexual abuse against them many years later and he was put on trial.

TF testified about a number of incidents that occurred while the family was residing together between 2001 and 2003. TF stated that on one occasion the accused was lying on a bed watching a film with TF, KF, JG and HG. At one point she reached back to touch what she thought was KF’s foot, but it was in fact the accused’s erect penis. The accused also touched her side and her hips and placed his hand between her legs during this incident.

At the accused’s ranch, he would operate a track-hoe to recover peat moss from the fields. TF said that she would go with the respondent in the track-hoe to gather peat moss, and as there was only one seat in the machine, she would sit in front of him between his legs. On more than one occasion, he ground his erect penis against her while he was operating the track-hoe.        

TF said that she also accompanied the accused on delivery trips, during which he drove a semi-trailer truck to deliver peat moss. Inside the truck during these trips he would take out his penis and ask TF to touch it and look at it. TF also said that she put the accused’s penis in her mouth on his instructions on more than one instance and that he ejaculated in her mouth on at least on one occasion.

TF further testified that the abuse against her occurred at a house the accused was renovating. The house belonged to the accused’s sister and was unfinished. He would leave TF in one room in the house while he was renovating other parts of the structure. When he was finished working for the day he would come into the room and kiss and touch TF over her clothes. This happened on more than one occasion.       

TF also said that the respondent touched her vaginal area on three or four occasions when he tucked her into bed. There were also an indeterminate number of occasions when he asked TF to remove her clothes or removed her clothes himself, had her lay down on the bed and performed cunnilingus on her. The respondent also took baths with TF and touched her breasts and vaginal area. TF also said that the respondent had a purple metal vibrator and would ask TF to touch her vaginal area with it. This only occurred when TF and the accused were alone in the home together.            

TF recalled being in a house with the accused at some point between 2004 and 2006. She testified that he played pornographic videos and asked her if she had any questions about what she was seeing. She did not believe they were wearing any clothes when this happened. She also testified that on one other occasion in this house, the accused put pudding on her nipples and stomach and tried to lick it off.

Finally, TF testified to an incident after late 2004 or early 2005. TF said that one evening while the respondent was babysitting her and his son, CG, the accused followed TF to the laundry room in the basement and told her he wanted to try something. He then pulled her pants down, turned her against the washer, undid his pants and tried to put his erect penis into her anus. She told him to stop because it hurt a lot and she was bleeding. He stopped and they returned to babysitting as if nothing had happened.

KF, who is TF’s sister, was the second complainant. She testified that the accused also assaulted her in the home he was renovating. She testified that this occurred on one occasion when she was eight or nine years old. The respondent performed cunnilingus while she was lying on a bed in a room of the house.

KF also testified to another incident that happened either once or twice when she was eight or nine years old and living on a farm. KF claimed that the respondent touched her while he was babysitting her at the farm house.

The final complainant was JG, the accused’s biological daughter. JG claimed that when she was about five years old and at the accused’s house, he would lie down behind her when she went to bed and grope her crotch area over her pajamas.

At some point in the fall or winter of 2009, TF and KF were at their mother’s house in a hot tub with friends. They discussed the fact that both of them had been touched inappropriately by the accused. KF apparently first told her sister, TF, who then acknowledged that she too had suffered similar abuse. TF encouraged KF to speak out and to tell their biological father, but she did not want to be involved and did not want to be mentioned as a victim.  

In September 2010, the two victims finally informed their biological father of the abuse. Shortly thereafter they went to an RCMP detachment to provide separate statements. The accused was arrested on October 1, 2010.          

 In May of 2011, TF returned to the RCMP to give a second and more detailed statement. She had left out what she felt were the most embarrassing details in her first statement.

In court during the preliminary inquiry,  she admitted that she suspected the statements provided up to that point “were not enough” and “would not amount to anything”, and that failing to give the full details “would hinder everything we were trying to accomplish.” She clarified that they were trying to get the accused to realize that what he did was not right and he should never do it again.

TF also testified at the preliminary inquiry that she heard something about the charges “going out the window” and returned to the RCMP for the second statement in order to ensure the authorities had the full story. At trial she could not recall whether she actually heard anyone say that the charges were going “out the window” or if she drew that conclusion based on the fact that her sister had not spent much time with the RCMP when she gave her statement. In any event, TF wanted to provide the full details because her sister had not given a very long statement, and because she felt that it was not right to hold back as much as she had.

Five months later, in October 2011, JG provided a statement to the RCMP. She disclosed that she was also a victim of sexual abuse. She testified that the reason for the timing of her statement was because she was no longer afraid of the consequences of disclosing the abuse.

The accused testified and denied all the incidents as never happened.

As you are probably aware by now, this is a case in which there were no witnesses to the abuses so it came down to who the judge should believe. If the judge believed the victims, then the judge would remand the accused and set the matter down to a full trial. If on the other hand, he didn’t believe the victims, then he would dismiss the charges and the accused would be free to go.

The judge carefully reviewed the evidence before him in his written reasons. He noted that the case came down to issues of credibility between the accused and the three complainants who had been testifying about events that took place when they were very young.  

 At the first step of his analysis, the judge had concerns with the accused’s credibility. He concluded that he was not left in reasonable doubt by the accused’s evidence, and suggested that he must move to the second step in the analysis. However, the first two steps in analysis had already been completed at this point. The judge then went on to consider the remainder of the evidence and expressed a number of concerns with it. 

He noted that TF’s allegation of being ground against in the peat moss track-hoe was disproven by photographic evidence of the track-hoe’s interior. He also noted that there was no medical evidence to support the complainants’ allegations, although he acknowledged that this was normally the case in historical sexual assaults and that the only incident that could have given rise to such evidence was the attempted anal penetration of TF.

 The judge also found troubling TF’s statement that not providing a second statement to the RCMP “would hinder what they wanted to accomplish.” The judge stated that there was no clarification of who “they” were, or whether “their” goal was more important than telling the truth.

The judge further noted inconsistencies between the complainants’ description of the homes they lived in and the actual set-up of those homes at the time the abuse was occurring. He found that they were unable to recall some of the more “innocuous things” such as when they lived at certain places, or where they were going to school at the time of the events.

Keep in mind that when those events took place, the complainants were very young.

Finally thejudge stated: (and this is the crux of this matter before the court)

“With the alleged number of sexual assaults that the accused allegedly committed over a period of time, one would have thought that any one of the complainants might have mentioned the incidents to someone in passing. None of them testified that the accused threatened them if they said anything. Nor did any of them testify that the accused said not to tell anyone. Accordingly, one might have reasonably thought that something might have come out. If they thought it was a game (or playing), or if they were confused, or if they were uncomfortable, one would have thought they might have mentioned this to their mothers or some other care giver. They said absolutely nothing to anyone while these events were allegedly happening.” unquote

It is not unusual for young children who have been sexually abused to keep silent about what happened to them. I know a man who when he was young, was sexually molested by his father and later when he lived with a foster father, he was sexually abused by that man also.  When the Children’s Aid asked a psychiatrist to interview the boy, he refused to tell the psychiatrist anything whatsoever about the abuse he has been subjected to. It wasn’t until he was in his late twenties that he finally told someone.

The trial judge concluded that of all the evidence he heard, he was left with reasonable doubt and he acquitted the father of his victims.  The judge’s decision was subsequently appealed.

The main issue in the appeal was; “Did the judge apply the wrong legal test in his assessment of the timing of the complainants’ disclosure of the abuse?” In other words, was the fact that the children chose not to report the incidents of sexual molestation to anyone when they were young mean that they were not to be believed?

The judge was wrong when he came to that conclusion. He relied on discredited myths and stereotypes about the timing of disclosure of sexual abuse, particularly by children. Their delay in disclosure, standing alone, is not an appropriate credibility consideration and subsequently, the judge erred in concluding that the delay affected the complainants’ credibility. 

The doctrine of “recent complaint” established a presumption against the credibility of a sexual assault complainant who failed to disclose the assault immediately after it occurred. That presumption has been criticized for relying upon the stereotype that victims of sexual abuse should have reported the incidents of sexual abuse soon after they occurred. That was also the view of the Supreme Court of Canada. That doctrine has long been removed from Canadian law by section 275 of the Criminal Code. The law is clear that no presumptive adverse inference may be drawn against a complainant who does not disclose sexual abuse immediately. 

This does not mean that no consideration whatsoever can be given to the timing of the disclosure of abuse. There can be exceptions. But generally, delays in reporting the sexual abuses are not held against the victims who are seeking justice. Recently in Canada, a famous radio host of a radio  show was accused of molesting women and when the disclosure became public, other women who were abused years earlier  were asked to go to the police and tell their stories to them also. He has subsequently been charged with those crimes also.

No inference should be drawn regarding a complainant’s credibility that is based on assumptions about how a victim of sexual assault is supposed to react to the assault. The Supreme Court of Canada has made it very clear that sexual assault cases should be decided without resorting to folk tales about how sexual abuse victims are expected to act after suffering from the trauma by people who have never suffered from the trauma of sexual abuse. That is because itt cannot be assumed that sexual assault victims will react to abuse in any objectively identifiable way. 

Further, The Supreme Court of Canada has ruled that while recognizing that courts must carefully assess the credibility of child witnesses, a flaw, such as a contradiction in a child’s testimony should not be given the same effect as a similar flaw in the testimony of an adult. As well, the Supreme Court of Canada has recognized that some inconsistencies are minor and some are more significant. As well, it said that “many of the inconsistencies may be explained by reference to the fact that a young child might not be paying particular attention to certain details that occurred during the time of the sexual assault.”

Although the trial judge stated the correct legal principles for assessing the evidence of children, he did not apply them. He stated that he was not concerned about the details, such as a description of the places where the events occurred or how they occurred. And yet, he nonetheless found the complainants less credible for failing to recall ‘innocuous things’, such as precisely when they lived at certain places or where they went to school at specific times. Although the complainants were young adults at the time of the trial, their recollection of specific details regarding their lives as children should not have weighed so heavily in the trial judge’s assessment of their credibility. This error also may well have affected the outcome.

I should also point out that in Canada, there is no statute of limitations with respect to crimes of a sexual nature.

The court of appeal in considering the same position I have reached in this article has subsequently ordered a new trial for the father. I don’t intend to suggest how much of the evidence of the complainants will be accepted at the new trial before a different judge but I am convinced that some of it will be accepted and the father will serve considerable time in prison for his egregious conduct against his children. 

When I learn the outcome of that new trial. I will publish the verdict at the bottom of this article as an UPDATE.

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