Recent years have seen a surge in the amount of sexual abuse allegations being made.
A broad community acceptance over the past decade that sexual abuse exists has led to an increased willingness of victims to speak out which, in turn, has led to a significant rise in cases being brought before the courts.
The NSW Director of Public Prosecutions (“the DPP”) believes that sexual abuse cases, especially child sexual abuse should be dealt with in specialist courts.
With a growing collection of alternative programs and specialist courts such as drug courts, there is a corresponding growth in support for those catering to sexual abuse cases; especially considering that a range of special rules apply to how sexual assault cases are run.
Calls for specialist courts have also been made in the UK by British MPs and they already exist in some jurisdictions in the US.
Challenges faced in sexual abuse cases
Sexual assault courts could be tailored more appropriately to deal with sexual abuse, and the challenges faced in this particularly sensitive area of the law.
Cases involving sexual assault allegations may often have lengthy court delays and cause distress if the complainant and alleged perpetrator have to come into contact.
Child complainants may be subjected lengthy and complex questioning, which heightens the chance of them giving unreliable evidence.
Sexual assault is an area of law that must be dealt with sensitively, and the DPP believes that some people are just better at conducting these kinds of cases.
Some judges have undergone training on victims of sexual abuse in the witness box and their ability to give evidence, especially child complainants.
However some judges carry on as normal, making no adjustment or distinction on whether the person in the witness box is a child or an adult.
Another issue raised in relation to sexual assault cases is the jury – specifically, the potential limitations on their understanding of how sexual assault might affect a complainant and their evidence, and also substantial prejudices that jurors may have against alleged perpetrators.
In fact, the convenor of the National Child Sexual Assault Reform Committee, Annie Cossins, believes that only a stand alone specialist judge, without a jury, is necessary to preside over sexual assault cases.
There was a pilot plan in 2005 which investigated the possibility of a NSW Child Sexual Assault jurisdiction.
The pilot included a remote witness facility which was found to be successful but no other major changes were observed between the pilot and normal court proceedings.
A remote facility is essentially a room from which a vulnerable witness such as a child can give testimony without having to see their alleged abuser.
Several court houses now already contain remote witness facilities for that purpose.
At the moment, funding is a critical issue likely to hinder specialist sexual assault courts – money is tight and there are simply not the funds available at the moment to fund such a project at the moment, Lloyd Babb, SC told the Sydney Morning Herald.
He notes that programs to help victims were resource intensive.
However specialist courts for sexual assault charges are not about new buildings, says Annie Cossins, but the need for extra training to be provided to those who would be dealing specifically with sexual cases.
Attorney-General Brad Hazzard says he will consider the proposal after the Royal Commission has published its findings.
Others say the evidence is already clear – with or without these findings and that we should get to work on the specialist courts right away.
Long and drawn out trials are stressful for both complainant and defendant.
Coupled with potentially unreliable evidence by child witnesses in trials of child sexual assault, the benefits of a specialist court are clear.
Ideally, specialist courts would provide more support to complainants while offering fairness to defendants.
With prosecutors, judges and juries educated and trained to deal with the sensitive issues arising from allegations of sexual abuse and child evidence, both complainants and defendants are more likely to receive a fairer deal.