Cross-Examination in Child Sexual Assault Trials: Evidentiary Safeguard Or an Opportunity to Confuse‪?‬

[A central feature of the Australian court system is the use of cross-examination as the main means by which eyewitness evidence is tested The ability to test evidence by cross-examination has come to be viewed as a right of an accused. This right, however, is not absolute--it is qualified by the interests of the community, which include the protection of victims of child sexual assaults. Recent studies have shown that cross-examination, far from ensuring that the truth is revealed, often causes inaccuracies in the evidence of children. This is due to the strange language of the courtroom (usually completely foreign to children), the linguistic techniques and other tactics employed by defence counsel and the true purpose of cross-examination in child sexual assault cases: an attempt by the defence to create confusion and inconsistencies. Studies also show that jurors tend to apply their preconceived views on sexual assaults when evaluating the evidence of children. Despite the power to do so and despite training, judicial officers are often reluctant to intervene to protect child sexual assault victims when giving evidence. All of this means that cross-examination in child sexual assault trials can be as traumatic for the victim as the sexual assault itself. This article thus argues that the questions that can be asked of child sexual assault victims should be limited so as to make their experience less traumatic and maximise the accuracy of their evidence. It concludes by suggesting provisions that could be enacted in all Australian jurisdictions to achieve these aims, through the elimination of repetitive and suggestive questions, limits on accusing child witnesses of lying, and the use of professional intermediaries who evaluate children's ability to answer a question.] I INTRODUCTION