Prosecutors’ perceptions of the utility of ‘relationship’ evidence in sexual abuse trials

Abstract

For successful prosecution of sex offences, defined elements that comprise each charge (such as the acts that occurred and offenders’ identities) need to be established beyond reasonable doubt. This study explored the potential benefit (from a prosecution perspective) of eliciting another type of evidence; evidence regarding the relationship between the victim and perpetrator that may explain the victim’s responses. Fourteen prosecutors representing every major Australian jurisdiction participated in individual interviews or a focus group where they were asked to reflect on the perceived relevance of relationship evidence in sex offence trials, and the potential impact of this evidence on court process and outcomes. All prosecutors gave strong support for the premise of including relationship evidence in victim and witness statements, as well as in suspect interviews; however, this type of evidence was not routinely being included in interviews or admitted in trials. The majority of the discussion centred on: (a) the benefits and prevalence of eliciting relationship evidence; (b) how relationship evidence is best elicited in police interviews; and (c) challenges in presenting relationship evidence at trial. Each of these areas, their practical implications and directions for future research are briefly discussed.

Keywords

grooming investigative interviewing police prosecutors sexual abuse

The high number of reported cases of sexual assault that drop out of the criminal justice system without going to trial is a major concern documented in the literature (Daly and Bouhours, 2010; Kelly et al., 2005). On average, global estimates suggest that fewer than 35 per cent of reported sexual abuse cases involving adults or children are authorised by police, and only 12 per cent lead to conviction (Daly and Bouhours, 2010; Heenan and Murray, 2006; Kelly et al., 2005). These rates are consistent across both adversarial and inquisitorial criminal justice models (New Zealand Law Commission, 2012). The likelihood that cases of sexual abuse will proceed to trial is determined, in most part, by investigators’ and legal professionals’ perceptions of the credibility of the allegations, and the sufficiency of the ‘evidence’ contained in the victims’ (complainants’) police statements. Heavy reliance is placed on the victim interviews, because with sex crimes most offending occurs between persons who know each other, where victims submit to the sexual act(s), and where there is rarely any probative physical evidence or other witnesses to the abuse (Lievore, 2003; Victorian Law Reform Commission [VLRC], 2004).

Research on stakeholder perceptions and victims’ satisfaction with the criminal justice system indicates that high attrition and low conviction rates of sexual assault must be addressed (albeit in part) by improving decision makers’ (e.g. police, jurors, legal professionals’) understanding of the nature of sexual assault and the contextual factors that underpin victim behaviour (Daly and Bouhours, 2010; Ullman, 2010; VLRC, 2004). There is currently major incongruence between people’s expectations of how victims would or should respond before, during and after an incident of sexual assault and what happens in reality (Bouffard, 2000; Devine et al., 2001; Frazier and Haney, 1996; McLean and Goodman-Delahunty, 2008; Page, 2008, 2010). For example, two common misconceptions among community members and professionals are that adult victims will report abuse immediately to authorities and will put up a physical struggle (Suarez and Gadalla, 2010; Ullman, 2010). Victims whose behaviour is not consistent with these misconceptions are perceived as less credible, and their reports (when made to authorities) are less likely to result in a charge being laid, compared to cases where victims have behaved in an expected way (Bottoms et al., 2007; Brown et al., 2007).

Direct education of the public, via the media, may provide one avenue for tackling misconceptions about sexual assault (e.g. see Brady, 2012), although myths can just as easily be propagated via this medium as well (e.g. Killick, 2013). Another method of tackling misconceptions is to elicit more detail from actual victims in their formal statements of abuse to police – detail about the nature of their relationship with the alleged offender and their reasons for responding the way they did throughout the abuse and the relationship. This proposition formed the basis of a recent concept paper by Tidmarsh et al. (2012) who defined the offender–victim relationship as any and all elements that lead to and link the offences, including all sexual and non-sexual interaction related to the commission of the offence(s), for example grooming – the process in which the offender manipulates the victim into compliance and possible secrecy, gaining power and control over them, before gradually engaging in sexualised behaviour (Craven et al., 2006; Tidmarsh et al., 2012). The relationship exists whether the victim is a child or adult, and whether the offending lasted two minutes or 20 years. Preliminary evidence for the benefit of including relationship evidence in police interviews was provided in the study by Darwinkel et al. (2013), who found that the judgements of police detectives regarding the appropriateness of case authorisation increased, and judgements of victim responsibility decreased, after the officers participated in intensive training targeted at improving knowledge of victim behaviour and sexual assault relationships.

Despite empirical support and acceptance among some academics for Tidmarsh et al.’s (2012) proposition (e.g. Blackwell, 2012; Neave, 2012), it may be premature to routinely incorporate relationship evidence into investigative interviewer training programmes and protocols on a widespread scale. At this point, detailed feedback in relation to the utility of relationship evidence is needed from a representative group of prosecutors, who are the end users of police interviews, using these interviews to compile evidence for trial, and using recorded statements (with children and other vulnerable witnesses) as evidence in chief at the trial (Powell and Wright, 2009; Westera et al., 2012). There is little point in eliciting relationship evidence if it is not perceived by prosecutors to meet the legal requirements for admission of evidence, and has little impact on court processes and outcomes. The issue of police attitudes of scepticism towards victims would need to be addressed, but as Darwinkel et al. (2013) showed, this does not necessarily require changes to interview protocols which currently do not specify the need to elicit relationship evidence.

The current study addresses the need for further research on the utility of relationship evidence in police interviews by eliciting detailed feedback from a representative sample of prosecutors who have considerable experience in cases of adult and child sexual abuse. The prosecutors’ perspectives were elicited through the use of an in-depth focus group and individual interviews. Our rationale for adopting this qualitative methodology is that we wanted to understand the nature (if any) of the experts’ concerns about, and their practical suggestions for, eliciting relationship evidence, as opposed to examining the prevalence of various opinions.

Method

Participants

The sample comprised 14 participants: nine crown prosecutors, one police prosecutor and four solicitors. As a group, the prosecutors represented every Australian State and Territory with the exception of one small jurisdiction. Participants were interviewed either individually or in a group forum, and were recruited with the assistance of managerial staff in their work places who directed the researchers to those professionals who would be in the best position to participate. The selection criteria were that they specialised in sexual assault, and had sufficient authority and experience within their respective fields. All prosecutors who were approached agreed to participate. These included 11 female and three male prosecutors, with a group mean of 9.75 years of prosecution experience (range = 1.5–20 years) and 217 sexual abuse cases prosecuted (range = 10–300). More specific information regarding the profile of these professionals has not been provided to ensure anonymity.

It is important to note that while there are minor differences in legislation across Australian jurisdictions, the process of conducting and using recorded interviews is consistent. Soon after a disclosure or report of abuse is made, an interview with the victim/witness is conducted and a statement taken. For child victim/witnesses and those with a cognitive impairment, this process is audio-visually recorded. For adults, a written statement is taken. Suspect interviews are also audio-visually recorded. Narrative based protocols (whereby open-ended questions are used to elicit a detailed free narrative account) are prescribed in each jurisdiction, although in reality, interviews often tend to adhere to the format typically reported in prior research, which consists of mainly specific cued-recall and closed questions, rather than open-ended questions (Kebbell and Westera, 2011; Powell et al., 2005; Westera et al., 2012). Where the case involving a child complainant proceeds to trial, the trial prosecutor may choose to admit one or more recorded interviews as the child’s evidence in chief, and may lead additional evidence from the child. Adult witnesses provide live evidence at the trial.

Procedure

The interviews and focus group were held between July and December 2012. The focus group (N = 9 prosecutors) ran for 2.5 hours, whereas the individual interviews (N = 5 prosecutors) ranged in duration from 15 to 30 minutes. At least one week prior to participation, each prosecutor was sent a copy of the concept paper by Tidmarsh et al. (2012), as well as a summary of the purpose and process of the interview, which adhered to the following standard format. First, the facilitator invited prosecutors to reflect on the proposition of including relationship evidence in investigative interviews and witness statements. When reflecting on their experiences and concerns, prosecutors were encouraged to articulate what is currently considered ‘relevant’ in sexual abuse trials. Second, prosecutors were asked to reflect on how relationship evidence does or could potentially influence their practice, as well as court outcomes.

Analysis

All sessions were audio-taped and transcribed. Thematic analysis was conducted, involving the identification of common themes or ideas within each discussion (Browne and Sullivan, 1999). The first two authors independently read the focus group transcript and interviews, making notes about key themes and differing opinions between prosecutors. These authors then met and discussed emerging themes. There was strong agreement in their interpretation of the content. The prosecutors were highly articulate in expressing their viewpoints, which were largely consistent within and across jurisdictions. The key themes that emerged are described in the following section. Quotes have been edited for grammar and readability, and to de-identify all parties.

Results

All prosecutors showed support for the premise of including relationship evidence in police statements about sexual assault. However, they acknowledged that this was not often happening in practice. Further, despite the perceived benefits of utilising relationship evidence during the trial, the prosecutors reported that this type of evidence, even when present in statements, was not routinely being admitted at trial. The majority of the discussion centred on three issues: (a) the benefits and prevalence (from a prosecution perspective) of eliciting relationship evidence; (b) how relationship evidence is best elicited in police interviews; and (c) challenges in presenting relationship evidence at trial. The results related to each of these three areas are now discussed in turn.

The benefits and prevalence of eliciting relationship evidence

Consistent with the central premise outlined in the introduction of this paper, relationship evidence was deemed by the prosecutors to be important for improving judges and juries’ understanding of sexual offending. This was especially true when the detail addressed how the relationship first developed and how it progressed into sexual offending.

Anything that gives the jury and judge the full picture is valuable in forming decisions. Understanding the relationship is important because the evidence is often being presented to people who do not understand sexual offending, and who have strong preconceptions about what happens in these crimes. The more information we have, and the more complete the complainant’s story, the more receptive courts are.

A lot of the time we get statements containing an incomplete story – fragments of a puzzle that we’ve got to try and put together in an ad hoc fashion. People are more receptive to hearing the whole story; it’s human nature. Courts don’t want the fragments – they need to know how one piece fits with another. To put the pieces together, the story must be grounded in the context of everyday experiences and the nature of offending. For example, if the offending happens regularly then the jury will understand why specific contextual details are difficult for the complainant to remember. If a child victim is groomed over a long period, the jury will understand why the child appears complicit in the offending.

The prosecutors unanimously agreed, however, that relationship evidence was better elicited (in the first instance) at the investigative interview, as opposed to the trial stage. Not only is it better to have this evidence in the interviewee’s own words (i.e. in the form of an uninterrupted chronologically-ordered narrative account), to be of most benefit at the trial, the evidence needs to be elicited early in the justice process. For example, the ability to scrutinise evidence early in their case management process gives prosecutors more time to prepare their argument for why relationship evidence should be admitted at trial. Relationship evidence, as with any evidence, is more likely to be detailed and accurate when it is elicited soon after the offence, as opposed to during a trial held months or years later. Further, prosecutors reported that it is not so easy to introduce relationship evidence at a trial without it looking ‘tactical’ and ‘controversial’, and without objection from the defence counsel. The evidence is far more likely to be accepted if it is woven throughout the police interview.

The more that this evidence is contained in the interview the more chance we’ve got of getting it in the trial. There are many reasons. If a prosecutor is leading relationship evidence at trial because it hasn’t been done as part of the interview, it can look like it is being used in a way that the witness didn’t intend it to be. You also lose the coherence because it’s not fitted into the appropriate places in the story; it’s delivered at the beginning or the end of the victims’ evidence in one big chunk, and in that case, the judge is more inclined to make the prosecutor edit the material out compared to when it is spread out in a police interview.

In an interview you can see what the complainants’ responses are before you get to trial. In court if you are asking the victim for relationship details the defence will object, because we don’t know what the answer is going to be, and when you don’t know what you’re going to get it’s harder to say whether or not it is relevant. When it’s on paper in the police interview or the statement, it is much easier to argue relevance because you can see the answer.

We elicit grooming and relationship details when we’re having a conference with the complainant, to explain delay, acquiescence et cetera. But it would be better if that was already done for you. We can’t easily add a lot more information after the police have done the interview. For example, it’s not appropriate for us to ask victims why they didn’t complain unless the victims have been cross-examined on the way they behaved, in which case the evidence has to wait till re-examination to be raised. We’re usually stuck with what we get, so the more relationship details in there the better.

Further, relationship evidence was deemed important in a range of interviews – in victim and witness as well as suspect interviews. Since the majority of suspect interviews are held soon after victim interviews, relationship details (when raised in the initial complaint interviews) can be used as cues in the suspect interviews to foster communication, create the impetus for a suspect to give their own account of the offending, elicit admissions and/or confessions, promote self-incriminating (non-verbal as well as verbal) responses, or elicit other details that will bolster the victim’s credibility. Since the majority of suspects choose not to testify at court, prosecutors rarely have the chance to question them directly. Even if relationship evidence is refuted by the suspect it could potentially lead to the elicitation of exculpatory evidence, such as an alibi for an offence, saving the need for a trial at all.

How relationship evidence is best elicited in police interviews

Whilst the prosecutors all agreed on the importance of eliciting relationship or grooming detail, the majority stated that they were not currently provided with enough of this evidence in police interviews and statements. The prosecutors perceived that eliciting relationship detail is a highly specialised and difficult skill, and will require considerable education, training and expertise compared to what interviewers are currently receiving.

There are two purposes to the recorded interview with a child witness; there’s the investigative purpose and then the prosecution purpose, rolled into one. The police interviewer takes the place of the prosecutor at the trial which makes their job a particularly tough one. To do their job effectively, they really have to be aware of the rules of evidence and what we need to prove each charge. It’s a big ask.

Police need to be carefully directed in the elicitation of relationship evidence because of the risk of eliciting extraneous material, which can be distracting and can make it very difficult to put the case together. It’s an incredibly difficult task to balance the interview effectively; to allow a person to tell a detailed background story, but at the same time making sure they get a coherent narrative that is focused enough to be relevant. It’s extremely challenging, and requires very careful training and experience.

With regards to the way relationship evidence should be elicited in police interviews with victims, witnesses and suspects, several recommendations were made. First, for a prosecutor to effectively argue the relevance of relationship evidence at court, the evidence needs to be elicited in such a way that it is linked to the offending. For example, physical abuse displayed by the suspect and threats of secrecy could only be argued as relevant if these explained the reason why the victim did not fight back or complain.

If the complainant makes the evidence relevant in the interview, then it’s hard for a judge to throw it out. Sure we can try to make it relevant, but you really need the complainant to make it relevant by linking it to the offending and tying it to their feelings and thought processes.

The High Court’s complaining that relationship and grooming evidence isn’t relevant because it’s not made relevant in the interviews and linked to the offending.

Second, prosecutors emphasised that for interviewers to effectively elicit relationship evidence, careful planning is needed in respect to the timing of the interview. Specifically, the ability to elicit this evidence is constrained by the time available to conduct the interview, the developmental level and mental state of the interviewee, and the time since the offence(s). While these factors also need to be considered in standard (i.e. purely offence-focused) interviews, remembering relationship details is an added dimension that is particularly taxing on the interviewees’ cognitive and emotional resources.

Third, interviewers need to be skilled at asking age-appropriate, non-judgemental, open-ended questions that maintain rapport, cast the net wide, and thus elicit contextual details about the offending process, even when victims do not understand the offending process, or are not able to articulate why they behaved in a given way. Questions about seemingly counterintuitive behaviour could be perceived by the victim as interrogative. It is often only when a child witness reaches a certain age of cognitive maturity, or an adult has engaged in many years of therapy, that they can understand and explain the offender’s manipulations and the impact on their own behaviours. However, even if victims are unable to understand the complexities of the offending relationship, careful and skilled questioning by police may be able to prompt victims to recall details that can later be explained in the context of a relationship at court by the prosecutor or an expert witness. Additional witnesses (such as a non-offending friend, neighbour, sibling, or parent) who may have been unaware of the offending itself may be able to support relevant details of the victim’s narrative.

Grooming works because complainants don’t understand what grooming is. A child, in particular, won’t understand what the fly on the wall might have seen, like that special treat and staying up late. As an adult reflecting back, they might see the grooming but as a child they wouldn’t think to say it. If a police officer is trained to get that extra information, it can really enhance your prosecution.

I had a case where the mother would be away at least a week to 10 days every month, leaving her children with their step-dad, who she didn’t know was abusing them. While she was away he wouldn’t discipline the kids, so when she came back he would complain to the mother, and get her to enforce the children to comply with his requirements, whatever he wanted done. So the mother would come in and say ‘You got to do what step-daddy wants, he’s the boss …’. That way he made it appear as if she was complicit. And that was really powerful to lead that evidence from the mother.

Questioning about relationship detail was deemed more important with older, rather than younger children, as juries were more likely to expect that younger children often act in counterintuitive ways.

A jury will more readily accept that a very young child will do what they’re told, and won’t tell compared to older children. If a grown-up says to a young child ‘Don’t tell’, the child does what the grown-up says, and you can say that to a jury as a prosecutor. So that information about the grooming of a very young child is less important because as an advocate, you can make those sort of motherhood statements or truisms, and a jury will go ‘Oh yeah, that’s right. Little kids do what they’re told. If they’re told not to do it, they don’t. If they’re told to keep quiet, they keep quiet. If they’re told to come here, lick this or touch that, they do it.’ And then they’ll move on. As a prosecutor, you can say ‘A little kid will fall over and scrape their knee and be screaming to high heaven and red in the face, and then five minutes later they’ll be skipping around.’ The jury will go ‘Oh yes, so that’s why nobody noticed they were upset.’ So while young children are less able to provide relationship evidence, it is also less necessary.

The importance of using open-ended questions to elicit relationship details was highlighted by the discussion about problems that have arisen in past cases due to inappropriate and excessive specific questioning.

It’s frustrating when you see interviewers flogging the dead horse in their attempt to get details; going over and over the same stuff. A long interview is not a problem if you’re getting new material and the witness is coping okay. If they’re clearly fatigued and the interviewer is haranguing the witness to try and get them to say what they want them to say, that’s a problem. Interviewers need to recognise when their own expertise or the abilities of the interviewee are exceeded by the task demands.

Numerous examples were given of questions deemed to be inappropriate. Questions such as ‘Tell me everything about your relationship with Joe’ were criticised as being too broad. Direct questioning about thoughts and feelings at the time of the abuse were considered problematic because these were complex and difficult to answer (especially for children), and were based on potentially false assumptions (e.g. that sex abuse always hurts, or that victims were conscious of what they were thinking). Merely asking these highly focused questions, therefore, can help propagate myths of sexual offending and reduce victim credibility by making victims react defensively or invent a response.

According to the prosecutors, the most problematic form of question invited speculation about another person’s behaviour, thoughts or actions. Examples of these questions included the following; ‘How did [the alleged offender] get away with this for so long?’, ‘Who was the first person who found out about what happened? How did they find out?’, ‘What did [alleged offender] do to make you feel like you should come back and see him [after initial offence]?’, ‘What do you think Joe was thinking?’, and ‘How did he feel after he touched you?’ The prosecutors perceived that complainants (particularly children) should not be expected to answer for another person’s actions or thoughts. Speculating or guessing the answers would be useless at best and harmful to the case at worst. If thoughts and feelings were elicited, they needed to be those of the victims, and were best elicited through the narrative, where the victim can elaborate on previously reported actions, such as why abuse was disclosed at a particular (delayed point in) time. For example, one prosecutor described a case where a child victim reported abuse by her father only after she became aware that her father was starting to groom her younger sister. The reason for the delayed disclosure made sense to the jury when explained in this context.

Interestingly, skill in asking non-judgemental, open-ended questions that maintain rapport with the interviewee was deemed just as important in suspect interviews where contextual and relationship details may be critical in getting the suspect to start talking. In particular, discussion of the suspect’s relationship with the complainant was perceived to have utility when the suspect acknowledges some involvement in the alleged events, or acknowledges having a relationship with the victim, but denies committing any offence. Even when the suspect exercises his/her right to silence, the interviewer may still be able to obtain helpful confirmation of broader contextual/relationship details.

Challenges in presenting relationship evidence at trial

The greatest hurdle raised by prosecutors for admitting relationship evidence at court was the argument of relevance; all evidence must be argued as ‘relevant’ to a fact in issue to be admitted.¹ Whilst the relevance of relationship and grooming details was accepted by the prosecutors as a general principle, the legal relevance of specific relationship details is an issue for live court debate, on a case-by-case basis. The prosecutor’s job is to articulate the probative value of the evidence for the jury, weighed against the prejudicial risk to the suspect. For example, consider a case where evidence was provided of a suspect buying a complainant a sex toy; the evidence can be probative to the prosecution case, as it demonstrates grooming and shows sexual interest, but it can be prejudicial to the suspect, as it may be misused by the jury to mistakenly infer guilt of the offences. The prosecutors reported considerable inconsistencies both within and across jurisdictions in their success at having relationship and grooming evidence admitted at court.

Relevance is a question of which Judge you get. I know of a case where a colleague tried to lead evidence of the defendant buying a sex toy for the child victim and that was not allowed in. Other judges would allow that in. As a general rule we as prosecutors all want to lead relationship and grooming evidence, but articulating the relevance at court, and getting the judge to understand and admit it, is the issue.

A sexual offence is not just a straightforward one-off incident. There is so much historical information that goes into the grooming aspect. It is only logical that grooming detail is relevant to the admission of the crime. But to change the process, courts need to change the way they think. The number of times that I’ve had an argument with the judge and the judge has said ‘There is an innocent explanation that is consistent with buying an ice cream, or favouring a particular child over another. Every parent would be guilty of doing that at some stage. How is that possibly probative to a jury? The jury may misuse it, and say that he is treating a child in that way to sexually abuse them.’ I argue ‘But that’s our case! It’s prejudicial because that’s our case!’ And the judge says ‘Well, I don’t accept that’.

If we have a relationship sort of offence then a fact in issue is: what was the relationship like? Was it one of a sexual nature? And if you’ve got facts that affect the probability of that fact in issue, which is a sexual relationship, then it should be allowed in. For example, the buying of ice creams, the discipline, and those sort of grooming things should generally be allowed in on the test of relevance.² You go before the courts – sometimes you don’t meet resistance and other particular judges exclude it.

One explanation for the inconsistencies in admitting relationship evidence at court relates to the specifications of the legal rules of relevance. Prosecutors explained that the rules are vague and invite considerable discretion in the trial judge’s interpretation and application at court. Prosecutors reflected on the ongoing legal debate among Australian High Court judges about the relevance of grooming details in appealed sexual offence trials. They speculated that trial judges may have become overly cautious with regards to the evidence they are willing to admit because of cases where the High court had overturned decisions and asked for a retrial due to acceptance of inappropriate relationship evidence. The prosecutors explained that judges may have difficulty understanding how elements of the relationship are linked to the commission of the offences, and consequently they may not accept relationship details, such as an uncharged act, as relevant.

If there’s a sexual offence that’s not particularised during the course of offending, then of course it’s relevant. But as prosecutors we have to, at starting point, argue its relevance. So that’s at a questionable level, whether or not it’s admissible, and it is a live issue for the court, for the judge to decide. So to then move to a step where what the court might see as a totally non-sexual act, we as a prosecutor might be talking about it as being relevant to the behaviour of an offender – for us to turn around and say ‘well it is clear that the influence of the accused over a particular complainant has allowed the offending to continue for a period of time’, that’s a big leap for a lot of judges to make. I think that’s going to be our biggest problem.

A second explanation for the inconsistencies in admitting relationship evidence at court is the sheer pervasiveness of stereotypes and rape myths about how sexual offences occur. When misconceptions are held by trial court judges, it is harder to argue the relevance of relationship evidence. This creates a Catch 22 situation, where the current lack of relationship detail being admitted at court is reinforcing community misunderstandings of victim’s behaviour and the nature of sexual offending. Indeed, several prosecutors had noted that judges and jurors were becoming more accepting of counterintuitive victim behaviour in courts and jurisdictions where the relevance of relationship detail had been aired in trials.

I think the jurors still come to the jury table with this preconceived idea that the complainant should have fought and told someone. ‘How could this have happen in a room next door to where mum is?’, ‘Why didn’t they tell mum?’ A jury just doesn’t understand that a paedophile or a predator has these grooming mechanisms. We prosecutors understand it because we live and breathe these cases, but normal day-to-day people have got no idea.

Relationship detail converts the evidence into a real story juries can understand. People learn from experience. It’s only exposure to the full facts in stories that make you start to understand. If you don’t get the relationship, they just get isolated incident, really nice dad, isolated incident, and nothing else, and they go ‘It doesn’t make sense. This is weird. Not guilty.’ Quite often you have these cases where in the past a judge would have sentenced and said ‘Well the child consented, the child was up for it, a bit precocious’, but when you look at the lead up you can see very clearly that the offender was slowly breaking down the victim’s barriers, and convincing the victim that sexual activity with this person was not only something that was good, but something they should want. It is only when you hear these details that people can start to understand how sex offences occur.

Despite some broad changes in community awareness, sexual offence stereotypes were still a common hurdle, particularly in cases of child sexual abuse (a particularly confronting crime) and in complex cases, such as where the victim was in a loving relationship with the offender, where the victim became physically aroused during the abuse, or where the victim continued to see the offender after the abuse.

The prosecutors reported that getting juries (in the initial address) to acknowledge that people sometimes behave differently to others or in ways we do not expect them to, is an important step in the process of helping juries to put their biases about victim behaviour to one side. Using expert evidence to explain a victim’s counterintuitive behaviour to the judge and jury was also reported to be potentially beneficial; however, none of the prosecutors had successfully used the expert evidence provision. Several explained that when they attempted to use expert evidence at court, trial judges had been unwilling to admit the evidence in the face of objections by the defence. Expert testimony was perceived as more likely to be admitted when the expert was called to educate the jury as to the general nature of sex offending, as opposed to drawing conclusions about why the victim in a particular case behaved in a certain way.

The expert evidence provision would be helpful, but no judge has yet been prepared to let it in. I had 11 trials before the same judge, and I kept wanting to lead it and he kept saying ‘No, not unless the defence raises it’. I kept saying ‘But I’m not trying to lead “This is why the complainant acted the way he did”, I’m trying to lead “This is the spectrum of the way that people can react, to try to disabuse the jury of some of those myths”’. They won’t have it and I don’t think that they will ever have it.

For children it’s very hard to say why they didn’t complain or how they felt or whatever. It’s very rare that they’re going to be able to say ‘I didn’t tell mum who was in the next room because of the power and control of my abuser, dah dah dah’. So if you’ve got your expert, who may not even know about that case, but can talk generally about why children often don’t tell, then that can help. I think you need someone who says ‘We see this, we do the research and we find there is a pattern’.

Finally, just as considerable skill and specialised training is deemed necessary for investigative interviewers with regard to relationship evidence, prosecutors also require expertise in this area. Contextual and relationship detail in interviews provides additional fodder for cross-examination by the defence – a matter that needs to be addressed by prosecutors during re-examination.

One downside to eliciting more relationship detail is that the witness could potentially be cross-examined about all the extra details, adding considerable time in the witness box. Also if the witness can’t remember details they are being cross examined about, or they make mistakes trying to remember the specific details, defence will argue they are unreliable.

Importantly, the cost of relationship detail was not perceived to outweigh the benefit, especially if the jury had heard a coherent and comprehensive story from the complainant first. Cross-examination, it was argued, is gruelling for witnesses in all situations, even without the additional focus on relationship evidence.

Discussion

The issue of relationship evidence in adult and child sexual offence trials, incorporating details that lead to and link the offences, is clearly an important and contentious one. According to the prosecutors, relationship evidence is highly debated at court and the degree to which it is admitted in trials differs within and across jurisdictions, due to variable interpretations and practices in the application of legal rules. As a whole, the prosecutors we interviewed, who work on a daily basis with sexual offence matters, hold the strong view that relationship evidence is relevant for these trials, and the court needs to hear these details in order to understand counterintuitive victim behaviour. In fact, the prosecutors argued that there were widespread benefits of eliciting relationship evidence in police interviews. Such evidence, for example, enhances the court’s understanding of the essence of criminality, and improves the attitudes and decision-making of professionals involved at all stages of the justice system.

The importance of having relationship evidence at the police investigative interview stage was emphasised for several reasons. First, in police interviews (which are scheduled soon after disclosures) the most accurate and comprehensive material can be obtained because relationship evidence (like all evidence) is vulnerable to memory decay. Second, relationship evidence that is elicited in the police interview can be explained in the victim’s own words, which is more persuasive compared to when a prosecutor delivers it. Third, relationship evidence elicited in victim interviews is more likely to be admitted at court because it can be linked to the offending directly by the victim. Fourth, relationship evidence that explains counterintuitive victim behaviour can eliminate the detrimental effect of stereotypes about sexual assault on victim credibility. Fifth, raising victim-reported relationship details in suspect interviews could lead to additional evidence to support the victim’s story, or exculpatory evidence, such as an alibi for an offence. Overall, on the basis of the prosecutors’ conclusions, trainers in investigative interviewing of both victims and suspects of sexual assault should prioritise the development, maintenance and evaluation of interviewers’ skill in eliciting relationship evidence.

Eliciting reliable and useful relationship evidence, however, is not easy. The prosecutors highlighted the importance of eliciting relationship evidence in narrative format. Narrative-based protocols are prescribed in each jurisdiction, for the eliciting of offence details, but are not being adhered to. Further, open-ended questions vary considerably in their utility (see Guadagno and Powell, 2008) and there is currently little specific guidance in the literature as to the best form of open-ended questions to use when eliciting this new form of evidence. Unlike offence details, which target episodic memories located in a single time and place, memories of relationship details target schematic memory (i.e. routines, rituals and household rules and chores that underpin offences). As research on repeated event memory shows, this memory detail would require different types of questioning strategies and, in the case of child witnesses, different types of exercises in the rapport development/practice interview phase to maximise recall (Brubacher et al., 2010, 2011). Interview protocols which currently focus on offence-related details will need to be modified to accommodate this new type of evidence.

In conclusion, the current study provides strong support for including relationship evidence as a focus of future investigative interviewer research, interview protocols and training programmes. The utility of this evidence will be maximised if guidance also focuses on assisting courts in the admission of more relationship evidence, in determining how expert evidence about relationships can be effectively used in these trials, and to assist prosecutors in addressing inconsistencies and errors arising in cross-examination about relationship evidence. Given the prevalence of misconceptions about sexual assault and the high attrition and low convictions rates of sexual offences, the importance of reform in this area, enabling admission of more relationship and grooming details at trial, cannot be overestimated.

Footnotes

Acknowledgements

We thank the prosecutors, Superintendent Rod Jouning and the SOCIT Specialist Development Unit, and Kimberlee Burrows, for their support and assistance.

Notes

References

Blackwell S (2012) Misperceptions and realities about complainant behaviour and convictions. In: Truth, testimony, relevance: improving the quality of evidence in sexual offence cases, 15–16 May 2012, Victoria. Melbourne: Australian Institute of Criminology. Available from: http://www.aic.gov.au/events/aic%20upcoming%20events/2012/ttr.html#presentations.

Bottoms

Golding

Stevenson

Wiley

TRA

Yozwiak

(2007) A review of factors affecting jurors’ decisions in child sexual abuse cases. In: Toglia

Read

Ross

Lindsay

RCL

(eds) The Handbook of Eyewitness Psychology, Vol I: Memory for Events, Mahwah, NJ: Lawrence Erlbaum Associates, pp. 509–543.

Bouffard

(2000) Predicting type of sexual assault case closure from victim, suspect, and case characteristics. Journal of Criminal Justice 28: 527–542.

Brady N (2012) Telling the whole truth. The Age, 30 September. Available from: http://www.theage.com.au/victoria/telling-the-whole-truth-20120929-26sft.html.

Brown

Hamilton

O’Neill

(2007) Characteristics associated with rape attrition and the role played by scepticism or legal rationality by investigators and prosecutors. Psychology, Crime and Law 13: 355–370.

Browne

Sullivan

(1999) Analysing in-depth interview data using grounded theory. In: Minichiello

(eds) Handbook for Research Methods in Health Sciences, Reading, MA: Addison-Wesley, pp. 576–611.

Brubacher SP, Glisic U, Roberts KP and Powell MB (2010) Children’s ability to recall unique aspects of one occurrence of a repeated event. Applied Cognitive Psychology. Article first published online 8 April 2010. DOI: 10.1002/acp.1696.

Brubacher

Roberts

Powell

(2011) Effects of practicing episodic versus scripted recall on children’s subsequent narratives of a repeated event. Psychology, Public Policy, and Law 17: 286–314.

Craven

Brown

Gilchrist

(2006) Sexual grooming of children: Review of literature and theoretical considerations. Journal of Sexual Aggression 12: 287–299.

10.

Daly

Bouhours

(2010) Rape and attrition in the legal process: A comparative analysis of five countries. Crime and Justice 39: 565–650.

11.

Darwinkel E, Powell M and Tidmarsh P (2013) Improving police officers’ perceptions of sexual offending through intensive training. Criminal Justice and Behavior 40: 897–910.

12.

Devine

Clayton

Dunford

Seying

Pryce

(2001) Jury decision making: 45 years of empirical research on deliberating groups. Psychology, Public Policy, and Law 7: 622–727.

13.

Evidence Act 2008 VIC (s. 55).

14.

Frazier

Haney

(1996) Sexual assault cases in the legal system: Police, prosecutor, and victim perspectives. Law and Human Behavior 20: 607–628.

15.

Guadagno

Powell

(2008) An examination of the limitations in investigative interviewers’ use of open-ended questions. Psychiatry, Psychology, and Law: An Interdisciplinary Journal of the Australian and New Zealand Association of Psychiatry, Psychology and Law 15(3): 382–395.

16.

Heenan

Murray

(2006) Study of Reported Rapes in Victoria 2000–2003: Summary Research Report, Melbourne, Victoria: Office of Women’s Policy, Department for Victorian Communities.

17.

Kebbell

Westera

(2011) Promoting pre-recorded complainant evidence in rape trials: Psychological and practice perspectives. Criminal Law Journal 35: 376–385.

18.

Kelly

Lovett

Regan

(2005) A Gap or a Chasm? Attrition in Reported Rape Cases, London: Home Office Research, Development and Statistics Directorate.

19.

Killick

(2013) No jail time over hotel sex assault. The Mercury 28 March, p. 21.

20.

Lievore

(2003) Non-reporting and Hidden Recording of Sexual Assault: An International Literature Review, Canberra: Australian Institue of Criminology.

21.

McLean

Goodman-Delahunty

(2008) The influence of relationship and physical evidence on police decision-making in sexual assault cases. Australian Journal of Forensic Sciences 40: 109–121.

22.

Neave M (2012) Improving the justice response to sexual offending. In: Truth, Testimony, Relevance: Improving the Quality of Evidence in Sexual Offence Cases, 15–16 May 2012, Victoria. Melbourne: Australian Institute of Criminology. Available from: http://www.aic.gov.au/events/aic%20upcoming%20events/2012/ttr.html#presentations.

23.

New Zealand Law Commission (2012) Alternative Pre-trial and Trial Processes: Possible Reforms, Wellington, New Zealand: New Zealand Law Commission.

24.

Page

(2008) Gateway to reform? Policy implications of police officers’ attitudes toward rape. American Journal of Criminal Justice 33: 44–58.

25.

Page

(2010) True colors: Police officers and rape myth acceptance. Feminst Criminology 5: 315–334.

26.

Powell

Wright

(2009) Professionals’ perceptions of electronically recorded interviews with vulnerable witnesses. Journal of the Institute of Criminology 21(2): 205–218.

27.

Powell

Fisher

Wright

(2005) Investigative interviewing. In: Brewer

Williams

(eds) Psychology and Law: An Empirical Perspective, New York, NY: Guilford Press, pp. 11–42.

28.

Suarez

Gadalla

(2010) Stop blaming the victim: A meta-analysis on rape myths. Journal of Interpersonal Violence 25: 2010–2035.

29.

Tidmarsh

Powell

Darwinkel

(2012) ‘Whole story’: A new framework for conducting investigative interviews about sexual assault. Investigative Interviewing: Research and Practice 4: 33–44.

30.

Ullman

(2010) Talking about Sexual Assault: Society’s Response to Survivors, Washington, DC: American Psychological Association.

31.

Victorian Law Reform Commission (VLRC) (2004) Sexual Offences Final Report, Melbourne, Victoria: VLRC.

32.

Westera NJ, Kebbell MR and Milne B (2012) It is better, but does it look better? Prosecutor perceptions of using rape complainant investigative interviews as evidence. Psychology, Crime and Law. Article first published online 2 March 2012. DOI: 10.1080/1068316X.2012.656119.