Closing the Justice Gap for Adult and Child Sexual Assault, 1st ed. 2020 Rethinking the Adversarial Trial
Langue : Anglais
Auteur : Cossins Anne
This book examines the justice gap and trial process for sexual assault against both adults and children in two jurisdictions: England and Wales and New South Wales, Australia. Drawing on decades of research, it investigates the reality of the policing and prosecution of sexual assault offences ? often seen as one of the ?hardest crimes to prosecute? ? across two similar jurisdictions. Despite the introduction of the many reform options detailed in the book, satisfactory outcomes for victims and the public are still difficult to obtain.
Cossins takes a new approach by examining the nature and effects of adversarialism on vulnerable witnesses, jury decision-making and the structures of power within the trial process, to show how, and at what points, that process is weighted against complainants of sexual assault, in order to make evidence-based suggestions for reform. She argues that this justice gap is a result of a moralistic adversarial culture which fosters myths and misconceptions about rape and child sexual assault, thus requiring the prosecution to prove a complainant?s moral worthiness. She argues this culture can only be eliminated by a radical replacement of the adversarial system with a trauma-informed system. By reviewing the relevant psychological literature, this book documents the triggers for re-traumatisation within an adversarial trial, and discusses the reform measures that would be necessary to transform the sexual assault trial from one where the complainant?s moral worthiness is ?on trial? to a fully functioning trauma-informed system. It speaks to students and academics across subjects including law, criminology, gender studies and psychology, and practitioners in law and victim services, as well as policy-makers.
CHAPTER 1: INTRODUCTION
1. Introduction
2. What do we know about the prevalence of sexual assault?
(i) Australia
(ii) England and Wales
3. The importance of prevalence rates
4. Recorded Rates of Sexual Assault by Police
(i) Australia
(ii) England and Wales
5. Child sexual abuse: delayed reports to police
(i) The consequences of delayed disclosure of CSA
6. Attrition rates of sexual assault: the ‘justice gap’
(i) England and Wales
(ii) Attrition of CSA cases
(iii) Summary of data in England and Wales
(iv) Australia: New South Wales
(v) Comparison of finalised sexual offences with other offences: what happens at trial?
(vi) The Royal Commission into Institutional Responses to Child Sexual Abuse
(vii) Summary: the similarities and differences between NSW and E&W
7. What to do about the attrition problem?
8. The contents of this book
CHAPTER 2: THE NATURE AND EFFECTS OF ADVERSARIALISM: JURY DECISION MAKING IN SEXUAL ASSAULT TRIALS
1. Introduction
2. Jury Behaviour: understanding sexual assault trials
(i) The majority effect
(ii) The leniency asymmetry effect
(iii) Leniency asymmetry effect: is there a difference between mock and real juries?
(iv) Severity or leniency effect: how do real juries actually behave?
(v) Systematic biases in jury decision-making
(vi) Is the leniency effect more pronounced in sexual assault cases because of jurors’ adherence to rape myths?
CHAPTER 3: FACTORS THAT PREDICT OUTCOMES IN SEXUAL ASSAULT TRIALS
1. Introduction
2. Factors that predict outcomes in sexual assault trials: physical evidence
3. Factors that predict outcomes in sexual assault trials: other corroborating evidence
4. The impact of extra-legal factors on outcomes in sexual assault trials: victim, defendant and juror characteristics
5. The impact of the emotionality of the victim/complainant on case outcomes
6. The influence of victim gender, victim race and other extra-legal factors on case outcomes
7. Summary
CHAPTER 4: ‘COMMONSENSE’ OR ‘LIFE EXPERIENCE’: JURORS’ PERCEPTIONS OF GUILT
1. Introduction
2. The effect of alcohol consumption on perceptions of guilt
3. What jurors do not know about the vulnerability of women and children to sexual assaultCHAPTER 5: ‘NO MEANS YES AND YES MEANS ANAL’: THE CULTURAL CLIMATE IN WHICH SEX OFFENCES ARE PROSECUTED
1. Introduction
2. Rape myth acceptance studies
(i) Prevalence of rape myths: general population surveys
(ii) Rape myth acceptance (RMA) studies
(iii) The factors influencing victim blame
(iv) The independent effects of victim and participant characteristics on victim blaming
(v) Investigating the independent effects of victim stereotypicality and gender stereotypicality
(vi) Summary
6. Interactions between offence, victim and perpetrator stereotypicality
7. Mock jurors’ beliefs about victims of child sexual abuse
8. The heuristic-systematic processing model of juror decision-making
9. Summary: jury decision-making in sexual assault trials
CHAPTER 6: THE NATURE AND EFFECTS OF ADVERSARIALISM: SITES OF ACTIVATION FOR HEURISTIC REASONING PROCESSES
1. Background: the role of evidence and procedural laws in sexual assault trials
2. Activation statements in sexual assault trials
(i) Prosecution and defence opening addresses
(ii) Jurors’ narrative framework
(iii) The story model and pre-decisional distortion
CHAPTER 7: MODERNISATION OF THE SUBSTANTIVE LAW OF CONSENT
1. Introduction: modernisation of the substantive law of consent
2. The fact-finder’s task in an era of modernisation
3. The problems with a statutory definition of consent
4. Proving the mental element of the offence
5. Looking at ‘all the circumstances’6. Case study one: sexual assault in the context of a professional relationship
7. Case study two: sexual assault in the context of a ‘one night stand’—proving the impossible?
(i) Alcohol intoxication
(ii) Honest belief and reasonable grounds
(iii) The first appeal
(iv) Was the jury’s verdict unreasonable?
(v) The re-trial
(vi) The second appeal
8. Discussion and conclusion
CHAPTER 8: CROSS EXAMINATION IN SEXUAL ASSAULT TRIALS: EVIDENTIARY SAFEGUARD OR AN OPPORTUNITY TO CONFUSE?
1. Introduction
2. A culture of adversarialism: ‘legitimated bullying’?
3. The impact of cross-examination on children’s evidence
4. Attempts to improve the cross-examination process for children
5. Defence cross-examination versus forensic interviewing
6. The right to cross-examine: an absolute right?
(i) The position in E&W
(ii) The position in Australia
7. Juror beliefs and biases: the impact of rape myths and stereotypes during cross-examination
8. The ‘strange language’ of the courtroom: are leading questions and confusion the way to the truth?
(i) A case study of the cross-examination effect: what price fairness?
9. Studies on the types of questions used in the cross-examination of children
10. Studies on the impact of the cross-examination effect on children’s evidence: inconsistent evidence or false inaccuracies?
11. The effect of cross-examination on the evidence of adults
CHAPTER 9: CONTEMPORARY REFORMS TO CROSS-EXAMINATION
1. Judicial intervention: the best control of cross-examination?
2. Contemporary reforms to cross-examination
(i) Controlling improper questions
(ii) Intermediaries
(iii) Evaluation of the role of intermediaries
(iv) Intermediaries: Europe and elsewhere
(v) Intermediaries: Australia
(vi) Comparison of different intermediary schemes
(vii) Research on the effectiveness of intermediaries
(viii) Conclusion: Should the intermediary adopt the role of cross-examiner?CHAPTER 10: THE PROBLEMS FACING REFORMERS OF THE SEXUAL ASSAULT TRIAL
1. Introduction: the problems facing reformers of the sexual assault trial
2. Special measures for the protection of vulnerable witnesses
3. Victims’ rights: a panacea to the adversarial trial?
4. The effect of trauma on memory recall: the myths and the evidence
CHAPTER 11: ACHIEVING BEST EVIDENCE FOR VULNERABLE WITNESSES: THE USE OF TRAUMA-INFORMED THEORY TO REFORM THE SEXUAL ASSAULT TRIAL
2. The need for trauma-informed care within the sexual assault trial: balancing competing goals
3. The principles and philosophy of trauma-informed care
4. The compatibility of trauma-informed care with the adversarial system
5. What are the triggers for traumatised victims within the adversarial criminal trial?
6. What are the requirements for creating a trauma-informed adversarial system?
7. Summary
CHAPTER 12: REFORM MEASURES: THE DEVIL IS IN THE DETAIL
1. Introduction
2. Equal treatment: reconceptualising the concept of fairness
3. Where to from here?
4. A trauma-informed trial: a best practice model
(i) Rape myth busting and judicial warnings
(ii) Opening and closing addresses
(iii) Mandatory training
(iv) Child- and complainant-friendly environments
(v) Pre-recording of evidence
(vi) Time limited cross-examination and vetting of questions
(vii) Changing the cross-examination process: the use of a specialist examiner trained in the principles of trauma-informed care
5. Where does restorative justice fit in?
(i) Restorative Justice for sex offenders as a pre- or post-sentencing option
(ii) The compatibility of restorative justice theory and trauma-informed care
6. Conclusion
Anne Cossins is Professor of Law and Criminology in the Faculty of Law, University of New South Wales, Australia. She is the pre-eminent Australian expert on legal reform in the area of sexual assault and a scholar in theoretical criminology. She was the founder and Convenor of the National Child Sexual Assault Reform Committee in Australia and has been, and still is a member of various government committees, boards and councils dealing with sexual assault and domestic violence issues.
Presents decades of research including the 2019 NSW Law Reform Commission report
First book of its kind to examine key reform issues associated with trial processes specifically
Appeals to academics, students and policy makers in the area of sexual assault and legislative reform
Date de parution : 10-2020
Ouvrage de 719 p.
14.8x21 cm
Thèmes de Closing the Justice Gap for Adult and Child Sexual Assault :
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