Royal Commission into Institutional Responses to Child Sexual Abuse
The Royal Commission was established to inquire into the sexual abuse of children within Australian institutions in 2013. The Hon. Justice Peter McClellan AM was the Chair of the Royal Commission and the other five Commissioners were Mr Bob Atkinson AO APM, Justice Jennifer Coate, Mr Robert Fitzgerald AM, Professor Helen Milroy and Mr Andrew Murray.
The Royal Commission into Institutional Responses to Child Sexual Abuse investigated how institutions like schools, churches, sports clubs and government organisations have responded to allegations and instances of child sexual abuse. The Royal Commission was concerned to uncover where systems failed to protect children; and recommend how to improve laws, policies and practices. It was empowered to look at any private, public or non-government organisation that is, or was in the past, involved with children.
An Interim Report was released on 30 June 2014. On 15 December 2017 the Royal Commission presented a Final Report to the Governor-General detailing the culmination of a five-year inquiry into institutional responses to child sexual abuse and related matters. The Final Report made recommendations to support and inform Australian governments, institutions and the general public in preventing and responding to child sexual abuse in institutional contexts.
See the Final Report at: www.childabuseroyalcommission.gov.au/final-report
[8-100] Criminal Justice report
On 5 September 2016, the Royal Commission published the Consultation paper: Criminal justice (the Consultation Paper). A wide range of submissions were received in response to the Consultation Paper. In November and December 2016, all six Commissioners sat for the public hearing in relation to issues raised in the Consultation Paper. Responses to the Consultation Paper and the public hearing helped to inform the final recommendations on criminal justice. As recognised in the Letters Patent, while the Royal Commission did not specifically examine the issue of child sexual abuse and related matters outside institutional contexts, the recommendations of the Royal Commission are likely to improve the response to all forms of child sexual abuse in all contexts.
See the Criminal Justice report at: http://childabuseroyalcommission.gov.au/about-us/our-reports
[8-200] Jury reasoning in joint and separate trials
This study investigated the extent to which joint trials with cross-admissible tendency evidence infringed defendants’ rights, and the extent to which joint trials posed a risk of unfair prejudice to the defendant. In particular, the Royal Commission investigated the reasoning processes of juries in a simulated joint trial of sex offences involving three complainants versus a separate trial involving a single complainant. This jury deliberation and reasoning study investigated these issues by presenting 10 different versions of a videotaped trial involving the same core evidence to a total of 1,029 jury-eligible mock jurors. The study tested the impact of evidence strength, the number of charges and the presence of specific judicial directions on jury decision-making in joint versus separate trials. See an article about this study at (2016) 28(5) JOB 45.
See the report at: www.childabuseroyalcommission.gov.au/policy-and-research/our-research/published-research/jury-reasoning-in-joint-and-separate-trials.
[8-300] The impact of delayed reporting on the prosecution and outcomes of child sexual abuse cases
This report examines how the criminal justice systems in NSW and South Australia deal with complaints of child sexual abuse reported to the police in childhood compared with those in which the report is delayed until adulthood, which is often referred to as historical child sexual abuse. The research investigates the trends in delayed disclosure and reporting of child sexual abuse, and maps the prosecution process and outcomes associated with varying degrees of delay in 18 cases reporting to the police, together with other case characteristics such as the age of the complainant victim, and the relationship between the complainant and the alleged offender.
See the report at: www.childabuseroyalcommission.gov.au/policy-and-research/our-research/published-research/the-impact-of-delayed-reporting-on-the-prosecution.
[8-400] An evaluation of how evidence is elicited from complainants of child sexual abuse
Child sexual abuse is difficult to prosecute and has one of the highest attrition rates of all criminal offences. Part of the difficulty in prosecuting these cases is that offending is often hidden from public view, leaving only the complainants’ evidence to establish the defendants’ guilt beyond reasonable doubt. The ability of child sexual abuse complainants to give quality evidence is crucial for successful prosecution, but it can be problematic for complainants to give such evidence. For both child and adult complainants, a willingness to engage in the justice process, and the accuracy and usefulness of the evidence they give, can be affected by anxiety and stress, delays in the trial process and how professionals question them. Over the past two decades, jurisdictions have attempted to address these concerns by introducing alternate measures and guidelines for eliciting evidence from child sexual abuse complainants.
See the report at: www.childabuseroyalcommission.gov.au/policy-and-research/our-research/published-research/how-evidence-is-elicited-from-complainants-of-chil.
[8-500] Empirical guidance on the effects of child sexual abuse on memory and complainants’ evidence
This transdisciplinary report reviews contemporary scientific psychological research on memory of child sexual abuse and how these experiences affect complainants’ evidence in legal proceedings. This report is particularly relevant for police officers, legal practitioners, judges and juries who must assess child sexual abuse victims’ memory capabilities and the reliability of their memories. The purpose of the report is to summarise what is known about how victims remember experiences of abuse, how victims optimally remember their experiences, and how this affects their reporting and the evidence given at trial.
This report aimed to gather contemporary psychological scientific research evidence that police, lawyers and juries should be aware of when responding to victims of child sexual abuse, in general, and to victims of child sexual abuse in institutional contexts, in particular. The report summarises what victims can be expected to remember about experiences of child sexual abuse, how they can be assisted to optimally remember those experiences, and how these experiences affect their reporting to police and their evidence in legal proceedings.
This empirical guidance on memory in cases of child sexual abuse applied a transdisciplinary approach to optimise the way in which the scientific and psychological research was translated for use by police, legal practitioners, judges, juries and law reformers. Based on this empirical review, a stand-alone summary of key guidance on the effects of child sexual abuse on memory and complainants’ evidence was prepared, presenting the main findings derived from the report. This guidance was fully cross-referenced to evidence-based sources in each of the substantive chapters of the report.
See the report at: www.childabuseroyalcommission.gov.au/policy-and-research/our-research/published-research/the-effects-of-child-sexual-abuse-on-memory-and-co.
This commentary is substantially derived from the Royal Commission website at www.childabuseroyalcommission.gov.au
[8-520] Bugmy Bar book — the impact of child sexual abuse
The Royal Commission into Institutional Responses to Child Sexual Abuse found that the impacts of child sexual abuse are “interconnected in complex ways”, making specific impacts difficult to isolate.1 A “robust body of research evidence now clearly demonstrates the link between child sexual abuse and a spectrum of adverse mental health, social, sexual, interpersonal and behavioural as well as physical health consequences”.2
The Bugmy Bar Book Committee has developed an online resource summarising key research relating to experiences of disadvantage and deprivation. The purpose of this resource, for practitioners, is to assist in the preparation and presentation of evidence to establish the application of the Bugmy v The Queen (2013) 249 CLR 571 principles.
Childhood sexual abuse has been taken into account by sentencing courts in relation to persons convicted of child sexual assault offences, as well as other types of offences, such as contextualising substance addiction considered to have contributed to the relevant offending. The potential relevance of evidence of childhood sexual abuse in sentencing proceedings includes an assessment of moral culpability; moderating the weight to be given to general deterrence; and determining the weight to be given to specific deterrence and protection of the community. There may also be issues relating to the likelihood of hardship in custody, a finding of special circumstances and the shaping of conditions to enhance prospects of rehabilitation.
The resource is hosted on the Public Defender’s website and the chapter relating to childhood sexual abuse can be accessed at https://publicdefenders.nsw.gov.au/Pages/public_defenders_research/bar-book/childhood-sexual-abuse.aspx.
An article explaining the background and how to use the resource has been published in the Judicial Officers’ Bulletin. See Nicholas Cowdery AO QC, Jill Hunter and Rebecca McMahon, “Sentencing and disadvantage: the use of research to inform the court” (2020) 32 JOB 43.
[8-600] Further reading
L Mc Donald and P O’Leary, “Issues of justice in mediated outcomes for survivors of sexual abuse in State care?” (2020) 30 ADRJ 105.
A Freiberg, “Institutional responses to the sentencing recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse” (2020) 44 Crim LJ 127.
A Mackay and J Giuffrida, “Implications of the Royal Commission into Institutional Responses to Child Abuse for the protection of vulnerable witnesses: Royal Commission procedures and introduction of intermediaries and ground rules hearings around Australia” (2020) 29 JJA 136.
J Maxwell, “Liability of educational institutions for child abuse” (2019) 93 ALJ 477.
1Royal Commission into Institutional Responses to Child Sexual Abuse, Final Report (2017) vol 3, 11.
2Australian Institute of Family Studies, The Long-term Effects of Child Sexual Abuse (CFCA Paper No 11, 2013) 23 at https://aifs.gov.au/cfca/publications/long-term-effects-child-sexual-abuse, accessed 5 August 2020.