The Interaction Between Children's Developmental Capabilities and the Courtroom Environment: The Impact on Testimonial Competency

1. INTRODUCTION (continued)

1. INTRODUCTION (continued)

1.2 The Reception of Child Witnesses in Court

Our reliance on a legal remedy to combat child abuse has translated into a reality where young children's testimony against their alleged abusers has become the cornerstone of our prosecution efforts (Woolard, Repucci, & Redding, 1996). In the absence of a guilty plea, children are routinely expected to testify about their alleged victimization at both preliminary hearings and trials.

An increase in the participation of children in the Canadian court system was found in a four-year review of Bill C-15 (Standing Committee on Justice and the Solicitor General, 1993). This was seen to be encouraging, as it was felt that the steady increase in the number of children testifying was a sign that the Criminal Code amendments intended to facilitate the reception of children's testimony were effective. More cases of child abuse were definitely being heard across the country.

In a multi-site study involving child witnesses entitled I'm doing my job in court, are you? Questions for the Criminal Justice System, over 900 cases of child abuse prosecuted across South Western Ontario were examined retrospectively (South-Western Ontario Child Witness Network, 1999). The researchers found that children testified in 80% of the preliminary hearings that were held and in 88% of the trials. These numbers indicated clearly that children's involvement in the court process was critical to the prosecution of their cases.

In another more recent study of child witness involvement in criminal court, just over half of the 251 completed child abuse cases tracked by the Nova Scotia Department of Justice Victims' Services, testified in court, many more than once (Nova Scotia Department of Justice Victims' Services, 2000). The remaining children who were referred to the Victim Services Department were waiting to testify. The statistics quoted in the Ontario and Nova Scotia studies on child witness involvement in court proceedings, confirm the trend described by the Standing Committee on Justice and the Solicitor General seven years earlier.

What has not been affected to the same extent by the amendments however is the qualitative experience of most children who testify in court. Several research studies have highlighted the secondary trauma, which occurs when children venture into the courtroom arena (Bala, 1993; Park & Renner, 1998; Sas et al. 1993, 1995; Department of Justice Canada, 2001). Despite the legislative amendments, researchers have reported negative experiences for children on the stand.

The negative experiences are attributed in large measure to reluctance on the part of the judiciary, the prosecuting crown attorneys and most notably the defense lawyers, to handle children in a more sensitive manner. In Canada, a failure to routinely implement the legislative provisions designed to ameliorate the stress of testifying for children, such as the use of screens and closed circuit television, or making support persons available to accompany children to the stand, has meant that many children are intimidated and highly anxious in court when they testify (Bala, Lindsay, et al., 2001; Park & Renner, 1998; South-Western Ontario Child Witness Network, 1999).

Child advocates have suggested that the marked difficulties children experience on the stand are not the result of simply a reluctance to change the way business is done in court, but are symptomatic of an underlying negative courtroom culture that remains insensitive to children's emotional vulnerabilities and misinformed about their capabilities and their limitations. On the surface, children are permitted access to court because of the changes to the legislation. Once they are there however, this negative courtroom "culture" prevails and there are little or no accommodations made available for child witnesses. Court observers note that what happens in court can often undermine children's testimonial competencies.

There are many stressors facing child witnesses. Challenging and intimidating crossexamination of children is permitted and fairly routine. The language employed in the courtroom is sophisticated and formalized. Very few children have the benefit of testifying behind a screen or using closed circuit television, despite being very frightened by the presence of the accused in the courtroom. Children often have to testify twice, once at a preliminary hearing and again at trial. There are extended delays between hearings, which result in long periods of anticipatory anxiety. All this occurs in spite of the stated spirit of the legislation, which recognizes children's vulnerabilities and provides progressive amendments to the law, which can reduce the stress of testifying.

Park and Renner (1998) have described our current legal system as one which creates procedures and tactics that promote stress and push child witnesses beyond their level of competency, thereby preventing them from testifying fully and truthfully. Others have documented the fact that ignorance about children's abilities still prevails in court, and as a result children are routinely exposed to inappropriate questions and complex procedures that they do not understand (Bala, Lee, Lindsay, & Talwar, 2001).

The Canadian experience for child witnesses has not been unlike that described in other countries around the world. In describing the experience of child witnesses in Britain, Bull and Davies (1996) cited an article in the 1994 Daily Telegraph in England, which described how one eleven year old child testifying in a child sex-gang prosecution "endured six days of crossexamination and frequently broke down in tears" (pp. 97). Many child advocates around the world have contended that the Criminal Justice System ignores the special vulnerabilities of child witnesses (Davies, 1991; Dent & Flin, 1992; Freshwater & Aldridge, 1994; Goodman et al., 1993; Hamblen, Leibergott, & Levine, 1997; Maunsell, 2000; Pipe, Henaghan, Bidrose, & Egerton, 1996; Whitcomb, 1992).

Around the same time that Bill C-15 was enacted in parliament in Canada in 1988, other countries were instituting changes to their legislation in respect of child witnesses2. In 1996, in a book entitled International Perspectives on Child Abuse and Children's Testimony edited by Bette Bottoms and Gail Goodman, it was noted that implementation of the various legislative changes has been slow to develop around the world (Bottoms & Goodman, 1996). Canada, as it turns out, is no different than other countries in its reluctance to implement the new provisions.

1.3 Post-Disclosure Stressors on Children

In order to understand the difficulties that a child might experience in the courtroom when testifying, one needs an appreciation not only of the child witness's role in court, but of the typical events that occur in a child's life in the post-disclosure pre-court time period. Once a disclosure is made, children and their families are swept up in a complex process that most do not understand. Children have no idea that they will be testifying months or years later in court about what has happened to them. Depending on their age, they may not even know what a court is!

This lack of understanding on the part of children about the stages of criminal prosecution was highlighted in a three-year follow-up study of child witnesses who had testified in criminal court in London, Ontario. The study was carried out by the Child Witness Project at the London Family Court Clinic in Ontario (Sas et al., 1993). In this study, follow-up interviews of child witnesses were carried out in order to determine children's views of their past court experience and their recommendations for improvements to the system. It was discovered that children who disclosed their victimization were generally unaware that the police were going to be called, let alone that they would have to testify in court. Even older children were remarkably naive in their understanding of the process that was started as a result of their disclosures.

Children were also not prepared for the significant personal life changes that ensued. This was especially the case if the accused was a family member or someone close to their family and in their circle of community acquaintances. In cases where teachers were the accused, children often had to change schools, or if the accused was a member of their church or neighborhood, this could mean a move as well.

The most striking finding, however, was that most child witnesses simply wanted the abuse to stop and did not foresee a witness role for themselves once they had disclosed. Children were not prepared for the intrusive questioning that took place by mandated authorities, the physical examinations that were sometimes carried out, and the reactions of their loved ones and others to their disturbing information. They were most definitely not prepared for the aggressive questioning they were submitted to on the stand, or the fact that in most cases their parents could not be in the courtroom when they testified. During court preparation sessions, children often shook their heads in disbelief when they heard that they would be just a few feet away from the accused when they testified. For most children under twelve in this study, it never occurred to them that the accused would even be in court!

Children in this study found themselves involved in a lengthy court process, which was emotionally taxing, as it was not unusual for cases to take up to two years from the first hearing through to the trial. This follow-up study of child witnesses discovered that the entire experience was distressing for many children and there were many unexpected stressors.

Other researchers have also documented the fact that the months leading up to the child's court testimony either at a preliminary hearing or a trial is often marked by anticipatory anxiety regarding the expected testimony (Goodman, Bottoms, Schwartz-Kenny, & Rudy, 1991; Runyan, Everson, Edelsohn, Hinter, & Coulter, 1988; Whitcomb, Runyan, Devos, & Hunter, 1991). By the time most child witnesses enter the courtroom, months have passed, during which time many changes have occurred in their lives. Their lives have been in limbo and they have relived their abusive experiences over and over again in their minds in preparation for their testimony.

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