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 ANNE COSSINS

Closing the Justice

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

Closing the Justice

Gap for Adult
and Child Sexual
Assault
Rethinking the Adversarial Trial
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 ISBN 978-1-137-32051-3 (eBook)

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

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

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.
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.

Cover illustration: r.classen/Shutterstock

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

1 Introduction 1

2 The Nature and Effects of Adversarialism: Jury

Decision-Making in Sexual Assault Trials 95

3 Factors That Predict Outcomes in Sexual Assault

Trials 121

4 ‘Commonsense’ or ‘Life Experience’: Jurors’

Perceptions of Guilt 153

5 ‘No Means Yes and Yes Means Anal’: The Cultural

Climate in Which Sex Offences Are Prosecuted 171

6 The Nature and Effects of Adversarialism: Sites

of Activation for Heuristic Reasoning Processes 245

7 Modernisation of the Substantive Law of Consent 277

v
vi Contents

8 Cross-Examination in Sexual Assault Trials:

Evidentiary Safeguard or an Opportunity to Confuse? 339

9 Contemporary Reforms to Cross-Examination 425

10 The Problems Facing Reformers of the Sexual Assault

Trial 479

11 Achieving Best Evidence for Vulnerable Witnesses:

The Use of Trauma-Informed Theory to Reform
the Sexual Assault Trial 533

12 Reform Measures: The Devil Is in the Detail 577

References 651
 List of Figures

Chapter 1
Fig. 1 Progress of a sexual offence through the criminal justice
system 14
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) 38
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) 39
Fig. 4 Attrition of CSA offences prior to prosecution in E&W,
year ending March 2016 (data taken from Kelly & Karsna,
2017) 45
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/doc
ument/273468462/Sexual-Attribution-Diagrams#) 50
Fig. 6 Progression of reported CSA cases with respect to the
complainant’s Indigenous status: Jurisdiction A (Australia)
(Bailey et al., 2017) 66

vii
viii List of Figures

Fig. 7 Progression of reported CSA cases with respect to the

complainant’s Indigenous status: Jurisdiction B (Australia)
(Bailey et al., 2017) 67

Chapter 2
Fig. 1 From individual processing to group processing (based on
Kerr et al., 1996) 111

Chapter 6
Fig. 1 The parts of a criminal trial that encourage
hypothesis-testing by the jury 253
Fig. 2 Sites of activation: heuristics within a criminal trial 254
Fig. 3 ‘Director’s cut’ model linking juror and defendant
characteristics to juror decisions (Adapted from Devine &
Caughlin, 2014: 112; with additions by author) 262
Fig. 4 Adaptation of the ‘Director’s cut’ model linking juror,
defendant and victim characteristics to juror decisions in
sexual assault trials (Adapted from Devine & Caughlin,
2014: 112) 266

Chapter 7
Fig. 1 The relational concepts of consent and belief as to consent 330

Chapter 11
Fig. 1 Comparison of adversarial trial and trauma-informed
system 558

Chapter 12
Fig. 1 ‘Director’s cut’ model linking juror and defendant
characteristics to juror decisions (Adapted from Devine &
Caughlin, 2014: 112; with additions by author) 590
Fig. 2 Trauma-informed, specialist court 616
 List of Tables

Chapter 1
Table 1 Australia: victimisation rates for sexual assault for
different age groups, per 100,000 (2017) 8
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 16
Table 3 Australian students’ reasons for not reporting sexual
assault to university 17
Table 4 Reasons for not reporting rape to police: CSEW (adults
16–59 years) 18
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 19
Table 6 Recorded sexual offences against children in the UK
and Number of sexual offences per 10,000 Children
(2016/2017) 20
Table 7 Recorded sexual assault rates (per 100,000) for England,
Wales and Australia 21
Table 8 Patterns of disclosure of sexually abused children 23

ix
x List of Tables

Table 9 Police-recorded incidents of sexual offences, E&W,

April 2017–March 2018 40
Table 10 Sexual assault incidents reported to NSW police
involving child and adult victims, 2006–2014
(NSWBOCSAR) 54
Table 11 Selected defendants finalised in all Australian criminal
courts by principle offence, 2016–2017 to 2017–2018 59
Table 12 Selected defendants finalised by principle offence in
NSW higher courts, 2016–2017 to 2017–2018 60
Table 13 Outcomes of all child sexual assault matters in NSW
courts, July 2012 to June 2016 62
Table 14 All defendant appearances for all child sexual assault
matters in NSW courts, July 2012–June 2016 63
Table 15 Comparison of conviction rates for child sexual assault
matters with other offences in all NSW courts, July
2012–June 2016 64

Chapter 4
Table 1 Comparison of symptoms of sexual victimisation with
rape myths 163

Chapter 5
Table 1 Recent rape myth studies categorised according to the
seven IRMAS categories 187
Table 2 Cultural expectations of victims’ responses to rape
compared to documented responses of victims to trauma 218
Table 3 Laypeople’s and jurors’ misconceptions about children’s
responses to sexual abuse and suggestibility as witnesses 222

Chapter 7
Table 1 Scope of the mental element for prosecuting sexual
intercourse without consent in different jurisdictions 294
Table 2 Dubowski’s stages of acute alcohol intoxication 308
 List of Tables xi

Chapter 8
Table 1 Frequency of leading and closed questions during
cross-examination by different examiners 399
Table 2 The cross-examination effect: degree of changes to
evidence by children subject to cross-examination-type
questions 404

Chapter 11
Table 1 Studies on the impact of testifying in court on children
in CSA cases 536
Table 2 Post-traumatic stress reactions for children according to
age 546
Table 3 The ten principles of trauma-informed services 549
Table 4 Comparison of the cultural environments of the
adversarial trial and a trauma-informed system 557
Table 5 A trauma-informed courtroom environment 567

Chapter 12
Table 1 The principles of restorative justice versus empowerment
theory 633
 1
Introduction

1 Introduction
Rape and sexual assault are unique crimes because they are mostly
perpetrated against female children, female adolescents and women.1 In
addition, both male and female victims are most likely to be abused by
men or male adolescents with whom they are acquainted or related and
most often in relationships of intimacy, trust and/or authority (Australian
Bureau of Statistics [ABS], 2018; Held & McLaughlin, 2013; Office for
National Statistics [ONS], 2018).
These relationships mean that perpetrators not only have relatively
easy access to groom their victims but also are able to commit their
crimes in circumstances of privacy and secrecy with few, if any, eyewit-
nesses or earwitnesses. Even the presence of forensic evidence is unusual
due to the relatively fast degradation of bodily fluids (Cossins, Jayakody,
Norrie, & Parkinson, 2016) and the common tendency for victims to

1The male pronoun is used for defendants and the female pronoun is used for complainants
which reflects the empirical data that the majority of sex offenders are male and the majority
of sexual assault complainants are female (Australian Bureau of Statistics, 2019a), although it
is recognised that men, male adolescents and boys can also be victims of sexual assault.

© The Author(s) 2020 1

A. Cossins, Closing the Justice Gap for Adult and Child Sexual Assault,
https://doi.org/10.1057/978-1-137-32051-3_1
2 A. Cossins

delay their complaints to authorities. For adult sexual assault, in a word-

against-word case, the issue of lack of consent can be impossible to
prove beyond reasonable doubt, as several recent high-profile cases have
shown.2
For these and other reasons, sexual assault against both adults and chil-
dren have been the focus of numerous inquiries, independent reviews,
Royal Commissions, media inquiries and feminist campaigns (see, for
example, Angiolini, 2015; Australian Law Reform Commission, 2010a,
2010b; Cossins, 2010; Home Office, 2010; Jay, 2014; Royal Commis-
sion into Institutional Responses to Child Sexual Abuse, 2017a; Topping
& Barr, 2018). As the data in this chapter shows, sexual assault requires
considerable resources to investigate and prosecute (Angiolini, 2015).
For example, sexual assault is the most common crime prosecuted in the
higher courts of Australia’s largest jurisdiction (New South Wales (NSW)
(Cossins & Goodman-Delahunty, 2013), yet is characterised by high
attrition rates and relatively low conviction rates at trial (ABS, 2019b;
Fitzgerald, 2006; Royal Commission, 2017).
In this book, the term, ‘sexual assault’, is used to describe the range of
sex offences that are committed against both adults and children since
the term covers both penetrative and non-penetrative offences (such as
non-consensual sexual touching), as well as sex offences committed with
and without the use of force or threat of force. Sexual assault is not
confined to penile penetration and may involve penetration by any other
part of the body as well as by objects. Rape, on the other hand, usually
refers to vaginal, anal or oral sexual penetration depending on the juris-
diction. Sometimes rape is restrictively defined as penile penetration only
(see further Chapter 2).
One of the difficulties with prosecuting sexual assault against adults
is the fact that the alleged sexual behaviours can involve sexual conduct
that one day is legal, the next criminal, because unlike other criminal

2 See, for example, https://www.news.com.au/national/nsw-act/courts-law/john-jarratt-found-

not-guilty-of-sydney-rape/news-story/e3e5557b101c8bb2ec111d8f2d7f70b7; accessed 10 July,
2019; https://www.abc.net.au/news/2018-05-07/kings-cross-rape-case-that-put-consent-on-trial/
9695858; accessed 10 July, 2019; https://www.theguardian.com/commentisfree/2018/mar/21/
rape-complainant-loss-privacy-intrusive-investigations; accessed 10 July, 2019; https://www.smh.
com.au/world/europe/jury-discharged-in-uk-rape-case-of-australian-cricketer-alex-hepburn-201
90112-p50qyq.html; accessed 10 July, 2019.
 1 Introduction 3

offences, the crime includes activities that most adults engage in for
much of their adult lives. Historically, the line between consent and non-
consent has always been influenced by stereotypical expectations of how
women and men ‘naturally’ behave so that rape is an offence that has
pitted ‘malicious’ women and girls against men obeying their ‘natural’
urges. A considerable amount of research has shown that the investiga-
tion and prosecution of rape and sexual assault is plagued by rape myths
that have been shown to influence the perceptions and decisions of police
officers, prosecutors, lawyers, judges and jurors (Hohl & Stanko, 2015;
Temkin & Krahé, 2008; see further Chapter 2).
The prevalence of rape and sexual assault and the historical lack of
criminal justice sanctions for offenders has led to countless reforms in all
adversarial jurisdictions since at least the 1970s. Many of these reforms
are considered to be ‘feminist-inspired, with the aim of redressing the
criminal justice system’s traditional gender bias in relation to rape’
(Larcombe, 2011: 27). It could be a ‘feminist success story’ (Larcombe,
2011: 27) that so much reform has occurred after sexual assault law
reform became part of the legislative agenda. However, more than a
decade ago, Kelly, Lovett and Regan (2005: 30) reported that conviction
rates had fallen even after significant law reform measures in England
and Wales (E&W):

despite widespread reform of statute law and, in many jurisdictions,

procedural rules, the 1990s witnessed declining or static conviction rates.
… Remarkably little research or legal commentary has, as yet, attempted
to explain these common—and unexpected—international similarities.

They concluded that ‘the two patterns in reported rape cases … over
the past two decades … [are] a continuing and unbroken increase in
reporting; and a relatively static number of convictions’ (Kelly et al.,
2005: 25). This chapter will investigate whether this is still the case.
Over the years many options and suggestions have been made
regarding improvements to the way sexual assault is investigated and
prosecuted. Larcombe (2011: 32) notes that the most sound reason,
empirically, for low conviction rates is relatively low guilty plea rates
which result in relatively high acquittal rates. Thus, it is necessary to
4 A. Cossins

focus on fact-finders and why they are prone to acquit rather than convict
in both adult and child sexual assault trials, the subject of lengthy discus-
sion in Chapter 2 in a review of the literature on jury decision-making
in sexual assault trials.
Pether (2009: 240) has also observed that ‘the contemporary data
establish that statutory rape law reform, whether substantive … or proce-
dural … including reform of police practices and judicial education, has
had no effect on improving the rates of the prosecution of and conviction
for rape’. Similar statements were made by the NSW Criminal Justice
and Sexual Offences Taskforce (2005) about the situation in Australia’s
largest jurisdiction, New South Wales (NSW).
The question is, is this still the case in 2019? Even if conviction rates
have continued to be low for child and adult sexual assault,

for what purposes would … an increase [in conviction rates] be sought?

And is the sole measure of future reforms to be their impact on conviction
rates? (Larcombe, 2011: 29)

In other words, conviction rates are only one measure of the effectiveness
of reforms that are focused on the investigation and prosecution of sexual
assault. Other measures for assessing success include:

• Rates of reporting to police;

• Police investigations and police practices;
• Prosecution rates;
• Attrition rates;
• Guilty plea rates;
• Conviction rates at trial;
• Overall conviction rates (guilty pleas plus convictions at trial);
• Sentencing; and
• Victims’ and complainants’ satisfaction levels with the criminal justice
process.

For example, Larcombe (2011: 29) argues that:

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Learning Objective 2: Study tips and learning strategies
• Current trends and future directions
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Learning Objective 3: Literature review and discussion
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• Historical development and evolution
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- Note: Important consideration
[Figure 4: Diagram/Chart/Graph]
Learning Objective 5: Fundamental concepts and principles
• Literature review and discussion
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Important: Fundamental concepts and principles
• Problem-solving strategies and techniques
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Example 6: Study tips and learning strategies
• Ethical considerations and implications
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Key Concept: Assessment criteria and rubrics
• Problem-solving strategies and techniques
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[Figure 8: Diagram/Chart/Graph]
Remember: Current trends and future directions
• Experimental procedures and results
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Important: Statistical analysis and interpretation
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Topic 2: Experimental procedures and results
Key Concept: Learning outcomes and objectives
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Example 11: Assessment criteria and rubrics
• Interdisciplinary approaches
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Definition: Fundamental concepts and principles
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[Figure 14: Diagram/Chart/Graph]
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Definition: Theoretical framework and methodology
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Chapter 3: Key terms and definitions
Example 20: Comparative analysis and synthesis
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Definition: Research findings and conclusions
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Example 23: Practical applications and examples
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Important: Statistical analysis and interpretation
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Conclusion 6: Problem-solving strategies and techniques
Key Concept: Current trends and future directions
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Practice Problem 52: Best practices and recommendations
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[Figure 56: Diagram/Chart/Graph]
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Key Concept: Statistical analysis and interpretation
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Important: Literature review and discussion
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Chapter 7: Study tips and learning strategies
Important: Assessment criteria and rubrics
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- Note: Important consideration
Important: Statistical analysis and interpretation
• Problem-solving strategies and techniques
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Formula: [Mathematical expression or equation]
Definition: Best practices and recommendations
• Learning outcomes and objectives
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Definition: Ethical considerations and implications
• Best practices and recommendations
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Example 66: Critical analysis and evaluation
• Statistical analysis and interpretation
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Definition: Best practices and recommendations
• Literature review and discussion
- Sub-point: Additional details and explanations
- Example: Practical application scenario
[Figure 68: Diagram/Chart/Graph]
Key Concept: Study tips and learning strategies
• Theoretical framework and methodology
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Example 69: Experimental procedures and results
• Statistical analysis and interpretation
- Sub-point: Additional details and explanations
- Example: Practical application scenario
Practice 8: Best practices and recommendations
Important: Statistical analysis and interpretation
• Ethical considerations and implications
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Key Concept: Problem-solving strategies and techniques
• Fundamental concepts and principles
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Formula: [Mathematical expression or equation]
Remember: Case studies and real-world applications
• Ethical considerations and implications
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Example 73: Statistical analysis and interpretation
• Literature review and discussion
- Sub-point: Additional details and explanations
- Example: Practical application scenario
Note: Problem-solving strategies and techniques
• Key terms and definitions
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Important: Learning outcomes and objectives
• Interdisciplinary approaches
- Sub-point: Additional details and explanations
- Example: Practical application scenario
Formula: [Mathematical expression or equation]
Note: Problem-solving strategies and techniques
• Problem-solving strategies and techniques
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Key Concept: Fundamental concepts and principles
• Critical analysis and evaluation
- Sub-point: Additional details and explanations
- Example: Practical application scenario
Formula: [Mathematical expression or equation]
Important: Literature review and discussion
• Best practices and recommendations
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
[Figure 79: Diagram/Chart/Graph]
Definition: Assessment criteria and rubrics
• Ethical considerations and implications
- Sub-point: Additional details and explanations
- Example: Practical application scenario
Methodology 9: Fundamental concepts and principles
Definition: Practical applications and examples
• Historical development and evolution
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Formula: [Mathematical expression or equation]
Key Concept: Assessment criteria and rubrics
• Practical applications and examples
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
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