Chief investigators: Assoc Prof Annie Cossins, UNSW Prof Jane Goodman-Delahunty, CSU

1. Countering Misconceptions in Child Sexual Assault Cases with Expert Evidence and Judicial Directions Chief investigators: Assoc Prof Annie Cossins, UNSW Prof Jane Goodman-Delahunty, CSU

2. Background • Child sexual assault (CSA) cases exhibit very lowreporting rates, highattrition rates and lowconviction rates at trial. • In the NSW higher courts, the most frequently charged offence of all cases finalised is sexual assault; sexual offences against children constitute two-thirds of all sexual assault offences. • Yet in the NSW higher courts, conviction rates at trial for CSA cases average 26% (Fitzgerald, 2006). • Low conviction rate may be due to juror misconceptions about CSA and children’s behaviour.

3. Expert opinion evidence Expert opinion evidence appears to be underutilised in CSA cases due to: • lack of information about who qualifies as a CSA expert • under s79 of the Uniform Evidence Acts • lack of time to organise an expert witness where • prosecutors are assigned to a case on the day of the trial • lack of information about its likely admissibility under the • new Uniform Evidence Acts provisions: ss 79(2) and 108C • lack of information about the impact of such evidence at • trial

4. Our ARC study Aim: • To examine the effect, if any, of two different legal • interventions: (i) expert opinion evidence about children’s behaviour and about the impact of CSA; and (ii) a judicial direction (JD) containing the same information, on trial outcomes and jurors’ credibility perceptions • This is the first international and Australian study to • analyse and compare these two different legal • interventions in a simulated CSA case (based on an • actual case).

5. Methodology We are testing 12 different trial conditions: • Control (no expert witness/no JD) • Trial with educative expert witness (evidence designed to counter common CSA misconceptions) • Trial with clinical expert witness (who in addition gives an opinion about whether the complainant has been sexually abused) • Trial with a JD given before the child gives evidence • Trial with the JD given after the child testifies (during the summing up) • Trial with a much shorter JD • All of the above conditions are tested in a weak evidence case and a strong case evidence (includes corroborating evidence of the child’s complaint) • All conditions are tested with deliberating juries and non-deliberating juries

6. Innovative design • Participants: • Discharged New South Wales jurors • Measures: • Jurors complete a pre-trial and a post-trial questionnaire to test their misconceptions about children and CSA before and after the trial • This allows us to measure: • changes in jurors' knowledge • their perceptions of witness credibility • differences in individual versus group verdicts  Precise measure of influence of each intervention

7. Pilot study results • Before our ARC grant, we conducted a pilot study with 118 undergraduate students using a written trial transcript • Using our 26 item CSA Misconceptions Questionnaire we asked mock jurors questions about five major topics: (a) children’s reactions to sexual abuse, (b) children’s reliability as witnesses, (c) children’s ability to accurately recall experienced events, (d) children’s susceptibility to suggestive questioning, and (e) the typical offence characteristics of CSA. • After students were assigned to different trial conditions, we found our two legal interventions significantly affected mock-jurors’ endorsement of CSA misconceptions, compared to the control condition.

8. Figure 1: Pretrial and posttrial misconception scores, by trial intervention (mean) Figure 1 Pre-trial and post-trial misconception scores, by trial intervention (mean) (neither legal intervention was more effective than the other)

9. Effect on verdict • Significantly more mock-jurors convicted the defendant when the specialised JD was presented in the summing up, and following testimony by a clinicalexpert, compared to the control condition. • The proportion of mock jurors who voted guilty when they heard testimony from an educative expert was only marginally higher than that in the control condition. • Overall, the more mock jurors learned during the trial, the more likely they were to convict the defendant.

10. Effect on credibility • 1. The more mock jurors learned during the trial presentation, the more the complainant’s credibility increased. • 2. Ratings of victim credibility significantly predicted verdicts—the more credible the victim was perceived to be, the more likely mock-jurors were to convict the defendant. • 3. The direct effect of CSA knowledge change scores on guilt ratings was not significant. Instead, we found that victim credibility completely mediated the effect of CSA knowledge change scores on verdict. • 4. These results confirmed our hypothesis that our two legal interventionsenhanced perceptions of victim credibility, which in turn, increased the conviction rate.

11. Figure 2: Simple mediation model for direct and indirect effects of CSA knowledge gains on conviction rates(*p < .05). Figure 2 Simple mediation model for direct and indirect effects of CSA knowledge gains on conviction rates(*p < .05).

12. Preliminary results from ARC study:verdictsWe found a significant association between experimental condition and verdict; that is, significant differences in verdict between the weak and strong conditions (W1/S1 and W2/S2) and the controls and legal interventions (e.g. W1/W4) (not all cells are full)

13. Pre-trial and post-trial misconception scores, by trial intervention (mean):Statistically significant differences exist between the controls (W1/S1) and some of the trials involving legal interventions (W2, S2, W3, S3 and W4) (some cells not full)

14. Example of a deliberation: S1 • Juror 2: ... I just wish there was more evidence, I am sure a normal trial would have more, as far as a testimony from the policeman et cetera, so I think it makes it very difficult with the evidence that we’ve been given to go beyond reasonable doubt. • Juror 6: I think it’s important as you say to know that we can’t go beyond what we’ve been given and make any assumptions. We have to operate on the basis of the information that was presented as evidence by the prosecution. • Juror 6: But it is also worth keeping in mind that medical evidence of the occurrence or non-occurrence of any sort of penetration can’t actually be 100 per cent, so even if we had that, we still couldn’t use it as concrete evidence. • Juror 3: I’ve had a personal experience of my daughter, who was 17, had to give evidence in court, and she was just so scared that she might have misled them by telling something that wasn’t true, she was totally honest. ... So I think kids that age, although my daughter is a bit older, I don’t know how much they can be manipulated by grandparents.

15. Continued • Juror 2: ... In actual fact, I work with eleven and twelve year old girls and I give them sex education, and in general, she did look quite honest, but they get very grossed out by the use of the word ‘vagina’, and she did say it very comfortably so I don’t know whether that has a bearing on anything. • Juror 2: But if we’re sending him to goal for ten years because – I don’t know what the penalties are for this – but it has to be beyond reasonable doubt, that seems to be the problem. And you’re quite right, though, I think there can be inconsistencies with a twelve year old girl’s evidence and that doesn’t mean that they’re lying; it’s just inconsistency, it’s part of being twelve. ... • Juror 3: I would have thought that was [not] normal, ... to continue to live there with your grandfather.   • Juror 2: I mean you might not have any choice. Sometimes you don’t know what the situation is, you might not be able to------  • Juror 3: So they made arrangements to keep him away, things like that. •  Juror 6: And one would think that the grandmother wouldn’t have immediately moved the child from contact. •  Juror 2: If she’s at risk, yeah.

16. Acknowledgements:We are grateful to the Director-General of the NSW Attorney-General’s Department, Chief Justice Bathurst and Judge Blanch for permission to conduct this study in the NSW Courts. Our thanks to Sandra Huer, Manager of Jury and Court Administration in NSW for her generous assistance in making the study possible. • REFERENCES • Cossins, A, Goodman-Delahunty, J & O’Brien, K (2009) “Uncertainty and Misconceptions about Child Sexual Abuse: Implications for the Criminal Justice System”, Psychiatry, Psychology & Law, 16: 435-452. • Goodman-Delahunty, J, Cossins, A & O’Brien, K (2010) “Enhancing the Credibility of Complainants in Child Sexual Assault Trials: The Effect of Expert Evidence and Judicial Directions”, Behavioral Sciences & the Law, 28: 769-783. • Goodman-Delahunty, J., Cossins, A., & O’Brien, K. (2011) “A Comparison of Expert Evidence and Judicial Directions to Counter Misconceptions in Child Sexual Abuse Trials”, Australian and New Zealand Journal of Criminology, 44: 196-217. • Cossins, A. (2008) “Children, Sexual Abuse and Suggestibility: What Laypeople Think They Know and What the Literature Tells Us”, Psychiatry, Psychology and Law, 15: 153-170.