Until the late 1980s, the justice system in Canada regarded children as inherently unreliable and their rare appearances in court were often extremely stressful. Since then, there have been dramatic changes in the awareness of child abuse and growing recognition that children can be highly reliable witnesses, if questioned appropriately. There have been legal reforms and changes in professional practices that have allowed many more children, especially victims of abuse, to testify in criminal court. There remain, however, many challenging issues in in balancing the need to protect children with respecting the rights of accused persons.
The Context: Ending the myth of the unreliability
The old laws about child witnesses (and female victims of sexual assault) were based on the belief they were inherently untrustworthy and prone to fantasy about abuse. The Supreme Court of Canada required that jurors were to be warned of the ‘inherent frailties’ of a child’s evidence, even if the child was a sworn witness. No efforts were made to modify the court process to facilitate children’s testimony. In this social and legal environment, the police and healthcare professionals continued to receive few reports of child abuse.
The women’s movement of the 1970s helped create an environment where adult survivors of childhood abuse began to come forward with accounts of their experiences. By the 1980s, encouraged by media reports and growing professional sensitivity, larger numbers of adult survivors began to overcome their feelings of fear, guilt and shame to disclose what they had suffered in childhood. The Canadian public was shocked by detailed disclosures from survivors of child abuse in schools, juvenile institutions and sporting organizations across the country. Many of the cases involved some of society’s most vulnerable children, those without parents to protect them, placed by the state in child welfare institutions and in the now-closed residential schools for Aboriginal children. There was also a growing awareness that much child abuse is perpetrated by family members or trusted community figures.
Canadian law has come to recognize that children can be reliable witnesses, and that it is unfair and inappropriate to have general rules discounting their evidence. As such disclosures became more commonplace, there was more psychological research into the reliability of child witnesses. Studies revealed that, when questioned in an appropriate way, children can be reliable witnesses and that even young children can distinguish fantasy from reality. With the growing awareness of the realities of abuse a more receptive environment for disclosures of abuse by children developed. Children were encouraged to report abuse, resulting in a dramatic increase of such reports. It became clear that fundamental legal reforms were required to allow children to testify effectively. Canada’s Parliament responded by enacting significant reforms.
Competence to testify
Before a child can testify, the judge must be satisfied that the child is ‘competent’ to be a witness. Historically, witnesses could only testify under oath and children were expected to be able explain that they would ‘burn in the eternal fires of hell’ if they lied under oath. Canada enacted its first legislation on child witnesses in 1893, permitting children to testify even if they could not explain ‘the nature and consequences’ of an oath, but only if they demonstrated their understanding of the “duty to speak the truth.”
Their ‘unsworn testimony’ required independent evidence or corroboration if there was to be a conviction. This was often impossible to obtain in sexual abuse cases. In 1988, the law was amended to eliminate the requirement for verification of ‘unsworn evidence’. Children who did not understand the nature of an oath could testify upon ‘promising to tell the truth’, provided they had the ‘ability to communicate’. A judicial inquiry, an investigation ordered by a judge looked into children’s understanding of such concepts as ‘truth’, ‘lie’ and ‘promise’. Often young children, who think in concrete terms, had great difficulty answering questions about these abstract concepts, and inquiries tended to be longer and more confusing for younger children.
The sole test for competence is whether the child is able to understand and respond to questions. There is now a growing body of psychological research into lying and lie detection. Children begin to lie starting around age 3. Almost as soon as they start to lie, children learn that it is morally wrong to do so. There is no evidence that younger children are generally more likely to lie than older children or adults. In fact, a series of studies found no evidence to support the belief that children’s ability to correctly answer questions about the meaning of ‘truth’ and ‘promise’ is related to whether or not they will actually lie. However, research has established that having a child promise to tell the truth before answering questions significantly increases the likelihood that a child will tell the truth, even if the child cannot explain the significance of this. The results of this research is consistent with child development theory and research, which establishes that young children have a great deal of difficulty in correctly answering abstract questions about the meaning of a complex concept like the ‘promise to tell the truth’. It is, however, clear that young children understand the social importance of truth telling and of promising well before they can answer questions about these concepts. Children (and often adults) may be able to understand and correctly use words without being able to define them. For both adults and children, the process of promising or swearing an oath is intended to impress on the witness and others in the court the social significance of the occasion demonstrates their commitment to tell the truth. Accordingly, while a child’s promise to tell the truth provides no guarantee of the honesty of the witness, it may however do some good.
In 2006, a new law came into force. It requires children to ‘promise to tell the truth’ before being permitted to testify, but it also specifies that no child shall be asked any questions regarding their understanding of the nature of the promise to tell the truth for the purpose of determining whether they are competent to testify. The sole test for competence is whether the child is able to understand and respond to questions. Under this test, the focus of the inquiry is on the child’s basic memory and communication abilities. In a significant portion of cases, a child is now qualified to testify without inquiry, often based on video interview material disclosed to the defence before the hearing. If there is a concern, the child’s ability to communicate can be assessed by asking the child questions about an event unrelated to the allegations, such as what they do to celebrate their birthday.
In 2006, a new law came into force. It requires children to ‘promise to tell the truth’ before being permitted to testify. The inquiry required by the old law upset children, wasted court time and did nothing to promote the search for the truth. Some children who could have given honest, reliable evidence were prevented from testifying, resulting in miscarriages of justice. The present provision, focusing on a child witness’s ability to understand and answer questions. It creates a much more meaningful test to use to determine whether a child is competent to testify. Asking the child to promise to tell the truth, but not expecting the child to explain the significance of this undertaking, is the same as how adults who testify under oath are treated.
Recognizing the reliability of child witnesses
Psychological research about the memory, suggestibility, and communication capacity of children has now established that they can be reliable witnesses, though children’s memories are less well developed than adult memories. Children as young as 4 years of age can provide accurate information about events that happened to them a year or even two years earlier. While adults can give more information about an incident than children, adults are also more likely to provide inaccurate information about past events than children. All witnesses are more likely to consistently and accurately recall information about the core elements of their experiences, rather than about peripheral or secondary elements, such as the physical setting.
Historically, witnesses could only testify under oath and children were expected to be able explain that they would ‘burn in the eternal fires of hell’ if they lied under oath. A significant concern with child witnesses is their potential suggestibility. As a result of repeated or misleading questions, the memory of a witness may become distorted. A person who has been subjected to repeated, suggestive questioning may develop ‘memories’ of events that did not in fact occur. While children, especially very young children, are more suggestible than adults, there is great variation between individuals of the same age in their suggestibility. Adults as well as children can have memories distorted or even created by suggestive questioning or interviews. In practice there is a greater likelihood that a child will be repeatedly questioned about an event, both by professional investigators and sometimes by a parent.
The way that children are questioned can also affect how accurately they are able to communicate what they know about events. Children, especially young children, have not developed clear concepts of time, distance or space. For example, they will not be able to accurately answer questions about the number of times that an often-repeated event occurred, because they lack counting and computation skills. However, young children often feel socially compelled to attempt to respond to a question and are likely to guess when they are unsure of the correct answer. Further, children, especially young children, who are asked questions that they do not fully understand, will usually attempt to provide an answer based on the parts of the question that they did understand, so that their answer to a question may seem unresponsive and may even be misleading. There are questioning techniques that can increase the accuracy and completeness of the testimony of children, such as
- mimicking the vocabulary of the child;
- avoiding legal jargon;
- confirming meanings of words with children;
- limiting use of yes/no questions; and
- avoiding abstract conceptual questions.
Canadian law has come to recognize that children can be reliable witnesses, and that it is unfair and inappropriate to have general rules discounting their evidence. In 1992, Justice McLachlin in the Supreme Court of Canada observed that there is in now an
‘appreciation that it may be wrong to apply adult tests for credibility to the evidence of children… Since children may experience the world differently from adults, it is hardly surprising that details important to adults, like time and place, may be missing from their recollection … Every person giving testimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed by reference to criteria appropriate to her mental development, understanding and ability to communicate.’
In 1997, the Supreme Court upheld the validity of legislation that allows a court to consider a video-recorded police investigative interview with a child. In that decision, Justice Cory acknowledged ‘that the peculiar perspectives of children can affect their recollection of events and that the presence of inconsistencies, especially those related to peripheral matters, should be assessed in context.’
Facilitating children’s testimony
Until relatively recently, there were no services available to support children who came to court to testify and no legal provisions for their accommodation in court. As a result, the experience of testifying was often deeply traumatic for children, and their ability to participate in the proceedings was often compromised. Laws have now been enacted and services established that are intended to recognize the vulnerabilities of children, and allow them to participate more effectively in the criminal process.
By the 1980s, encouraged by media reports and growing professional sensitivity, larger numbers of adult survivors began to overcome their feelings of fear, guilt and shame to disclose what they had suffered in childhood. The law now presumes that children who are witnesses will testify from behind a one-way screen or from another room via closed circuit TV, limiting the stress of speaking about potentially traumatic events in public or being intimidated by the presence of the accused. Court-related support services for victims and witnesses have been established in many communities with special focus on children, and a support person or even a support dog may accompany the child. Children who are adequately prepared and supported during the court process are more likely to be effective witnesses, and less likely to be traumatized by the experience of testifying.
Accommodating Children in Criminal Court
The criminal justice system is not only concerned with ascertaining or determining the truth, but also with fairness and protection of the constitutional rights of the accused. There is an onus on the state to prove the guilt of an accused beyond a reasonable doubt and inevitably there will be some true allegations of child abuse that cannot be proven in court. Further, while most disclosures of child abuse are true, there are also a relatively small number of unfounded allegations: a child may be mistaken about what occurred, have identified the wrong perpetrator, or have been induced by inappropriate questioning into making a false allegation. More rarely, children may fabricate allegations on their own.
The role of the justice system, starting with the police investigation and ending in court, is to balance the rights of the accused with the desire to ascertain the truth. Over the past thirty years, there have been significant increases in understanding of the capacities and needs of child witnesses and victims of child abuse, which have led to dramatic improvements in how the Canadian criminal justice system treats children. In many locales, programmes have been established to provide support for children and other vulnerable witnesses involved in the justice system. There remains, however, significant concerns with how children are treated in the courts.
Police, prosecutors and judges generally have a much better understanding of how to treat child victims and witnesses than in the past, but there is a need for more training and education for professionals in the justice system. There is also a need for more resources to provide adequate services for child witnesses. Such services include ensuring that only one Crown prosecutor deals with a child, rather than having different prosecutors at each court appearance, and resolving cases within a reasonable time frame. Delay in the resolution of cases in the justice system may increase a child’s emotional trauma, and result in a child’s memory fading and being a less effective witness. While the technology and access to equipment for video-recording of investigative interviews and closed circuit television for child witnesses have significantly improved, there are many locales where this type of equipment is not accessible, or there is a lack of adequate training in its use. Too many places have long waiting lists for therapeutic services for victims of child abuse.
There are also areas where legislative reform is still needed. For example, while the common law rules governing the admission of a child’s disclosures of abuse have been significantly improved, there are still many cases in which the judge or jury may not hear evidence of the child’s initial, often graphic, disclosures of abuse, and the court is left to hear only the statements that are video-recorded.
Legal changes have both reflected and contributed to a better understanding of the nature and effects of child abuse. Canadian society now deals more effectively with this devastating problem. We must, continue to reform the justice system to find a better balance between the rights of the accused and the interests of children and society. Further improvements will require consideration of experiences in other countries, as well as more empirical research in Canada about the experiences of children in court and the long-term effects of involvement in the justice system.
About Nicholas Bala
