Child sexual assault (CSA) allegations are some of the most difficult to prosecute in court, as there is often insufficient corroborating evidence. As such, conducting fairer trials for victims and those accused of these crimes is a significant concern for the criminal justice system. Consequently, jury attitudes and prejudices of victims and offenders may influence legal decision-making processes (Taylor & Joudo, 2005), as was found in a review of the justice outcomes of adult sexual assault by the Victorian Law Reform Commission (2004, p. 38). These juror perceptions may be particularly influential on verdicts when evidence is weak or non-existent.
Research has indicated that attitudes can influence verdict outcomes (Cutler, Moran, & Narby, 1992). Specifically, a study found that jurors' attitudes accounted for 30% of variance in verdicts when the evidence was ambiguous (Moran, Cutler, & De Lisa, 1994), and while other factors can contribute to verdict outcomes (e.g., the strength of evidence and expert testimony), juror attitudes can still make a significant impact. The focus of this article is to examine factors that might influence this variance in verdicts when evidence is weak. Accordingly, juror attitudes may be an influential factor in determining the credibility of victims in CSA cases.
Credibility and age of the victim
Conceptually, credibility incorporates competence, or the perceived ability to accurately recall an event, and trustworthiness, the perceived ability to tell the truth (McCauley & Parker, 2001; Rogers & Davies, 2007). Child witnesses have typically been judged on their memory and suggestibility (Castelli, Goodman, & Ghetti, 2005; Leippe, Manion, & Romanczyk, 1993), sexual naiveté, and truthfulness (Goodman, Bottoms, Herscovici, & Shaver, 1989) in research studies. Additionally, children over the age of 12 have been regarded like adult rape victims (Klettke & Simonis, 2011) because they are perceived as able to resist an assault (Waterman & Foss-Goodman, 1984) and have better recall ability, but are more capable of lying (Bottoms & Goodman, 1994). Conceivably, verdicts may be influenced by juror perceptions of child witness credibility if older children are seen as more competent but less trustworthy. As such, the way in which jurors perceive child witnesses in these cases, particularly when there is little corroborating evidence available, is still of concern for the justice system today.
Studies investigating perceptions of credibility and child witness age during trial have led to inconsistent results. While a substantial review is not possible here, some studies suggest that younger children tend to be perceived as more credible than older children (Isquith, Levine, & Scheiner, 1993; Rogers & Davies, 2007) while others have found no differences at all (Golding, Sanchez, & Sego, 1999). For example, because of the child's sexual naïveté, younger child witnesses have been identified by jurors as less likely to invent false accusations of sexual victimisation (Goodman et al., 1989). Yet, elsewhere, younger child witnesses have been shown to be more suggestible (Goodman & Reed, 1986) and less capable (Leippe et al., 1993).
Given that in many CSA cases there is often little corroborating evidence, the perceptions of a child's age may influence how jurors make decisions about guilt. For example, when a child is preadolescent, he or she is often perceived as more credible than an adolescent, as was explored by Rogers and Davies (2007) who examined victim credibility, victim responsibility, and the perceived severity of non-consensual touching, and found that a 10-year-old child was perceived as more credible than a 15-year-old.
Conversely, McCauley and Parker (2001) asked university students to read either a simulated robbery or sexual assault trial vignette, but there was no physical evidence presented, and the age of the child victim was either 6 or 13 years old. No differences were found between the younger and older child's credibility, honesty, or verdict, suggesting that juror judgements were not impacted by the age of the child victim. However, research regarding credibility of child witnesses in sexual assault cases has been inconsistent, particularly in relation to perception of age differences. As such, a number of other factors may play a role, such as victim blaming and strength of evidence.
Research has identified that when there is little corroborating evidence presented in court, a number of beliefs about sexual assault may influence victim blaming in CSA cases (see Cossins, 2008), such as that only physical evidence is indicative of abuse (Calvert & Munsie-Benson, 1999), or children's evidence is generally unreliable (Eastwood & Patton, 2002). That these, and other perceptions, such as children are more suggestible (Goodman & Reed, 1986), and less capable of giving evidence in court because of inferior cognitive abilities (Leippe et al., 1993), or that an older child should have been able to resist (Morrison & Greene, 1992), can still contribute to blaming the victim, is concerning (Hammond, Berry, & Rodriguez, 2011).
‘Blaming the victim’ describes the propensity for individuals to assign some degree of responsibility to a victim for his or her own victimisation, and has been studied extensively in attitudes towards adult rape and sexual violence (Burt, 1980; Klettke & Simonis, 2011). Rape myths, or ‘prejudicial, stereotyped, or false beliefs about rape, rape victims, and rapists’ (Hammond et al., 2011, p. 243), have been particularly influential in studies of attitudes towards sexual assault (Taylor, 2007). Given that pre-existing beliefs may influence juror decisions when evidence is weak or ambiguous (Pennington & Hastie, 1992), myths related to rape and blaming the victim may be highly influential, particularly when evidence is difficult to acquire (Hammond et al., 2011). While convictions of alleged child sexual abusers are low, they are even lower in alleged adult sexual assault cases (Victorian Law Reform Commission, 2004). This poses a problem as CSA research has found that older child victims (e.g., 15 years old) are more likely to be perceived like adult rape victims (Duggan et al., 1989; Klettke & Simonis, 2011) and thus are susceptible to similar misconceptions and even greater lack of convictions (Waterman & Foss-Goodman, 1984).
Much research has demonstrated that older children, such as adolescents, are more likely to be perceived as responsible (Rogers & Davies, 2007), more able to resist (Waterman & Foss-Goodman, 1984), and more capable of lying or delaying police reports (Quas, Thompson, & Clark-Stewart, 2005), which is aligned with studies of adult rape victims (Finkelhor, Hotaling, Lewis, & Smith, 1990; Sorensen & Snow, 1991). However, research based on actual victims has indicated that victims usually do not disclose immediately (Smith et al., 2000) and may not resist or cry for help (Taylor, 2007). While some changes have been made to the degree of information the jury receives in rape trials, such as reasons for delayed reporting, these stereotypes still exist within the community and thus are likely to be present in jury deliberations (Bronitt, 1998). Although research has shown that child victims may be viewed as partially to blame for their own assaults (see Davies & Rogers, 2009; Graham, Rogers, & Davies, 2007), perceptions of blame for younger child victims may be quite different to older victims. Given these findings, participants in the current study may exhibit a similar pattern of victim blaming when the child is older (e.g., 15 years old).
Jury deliberation and evidence
Research in jury deliberations has been limited because of restrictions of the Australian legal system. To circumvent this, researchers have typically used mock jurors and extrapolated the findings to juries. However, a significant threat to both construct and ecological validity in mock juror studies is the lack of deliberation (Diamond, 1997; Nunez, McCrea, & Culhane, 2011). A few studies have utilised mock juries to examine various legal constructs (Klettke & Powell, 2011; Weiner, Krauss, & Lieberman, 2011); however, there is still a paucity of this kind of research in jury decision-making literature. In particular, little research has addressed how mock juries engage in deliberations when considering a CSA case.
In addition to perceptions of witness credibility, the strength of evidence presented to the jury has been shown to be one of the main factors in jury deliberations and verdict outcomes (Hans & Vidmar, 1986; Vidmar & Hans, 2007), and has been positively associated with successful convictions in sexual assault cases (Devine, Clayton, Dunford, Seying, & Pryce, 2001; Klettke & Simonis, 2011). For example, Visher (1987) examined post-trial interviews with real jurors and found that the type of evidence presented (e.g., physical or evidence of force) during the trial was particularly influential, and that seven evidence factors and case characteristics, such as use of a weapon and testimony, accounted for 34% of the variance in individual juror judgements. This emphasise the significant impact of evidence on juror judgements and how strongly evidence might affect jury deliberations. Thus, it may be reasonable to expect that in cases in which the evidence is weak, ambiguous, or even lacking, jurors may be more likely to rely on extra-evidentiary factors, such as the attributes and characteristics of victims and defendants.