National Post

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Monday, October 25, 1999

He said, she said
Hearsay is better than no evidence at all in cases of child sexual abuse
Ronda Bessner
National Post

A five-year-old girl was allegedly sexually assaulted on several occasions during an eight-month period. She disclosed the acts to her mother, father and aunt and subsequently provided a detailed account on videotape to the police. But at trial, the child, then six, was paralyzed by the court proceedings and provided no meaningful testimony. Without introducing the child's statements to relatives into evidence, the case would collapse. These facts led to the case of R. v. F., decided on Oct. 15, in which the Supreme Court ruled on the question of how courts must balance the wish of the Crown to introduce hearsay evidence, and the accused's right to a fair trial.

In Canada, approximately 80% of sexual crimes are committed against children. The vast majority of abusers are people the children know and trust -- parents, step-fathers, teachers, neighbours and uncles. Serious concern has been raised that despite the rise in child sexual assault prosecutions since the early 1980s, the conviction rates for such criminal acts have remained significantly low.

Child testimony is often undermined by the rules governing criminal proceedings -- such as strict competency rules, the requirement of corroboration for children's evidence and the lack of protective devices to accommodate children in the courtroom. As a result, many of those guilty of child sexual assaults have gone unpunished.

In the mid-1980s, Parliament attempted to address these issues. The competency laws were liberalized to enable a greater number of children to provide evidence in court; the corroboration rule was repealed; and, in limited circumstances, children were permitted to testify behind a screen or by closed-circuit television. Yet, as the Supreme Court has stated, the barriers to justice faced by child victims in the 1990s "remain almost as steadfast today as they have for decades."

Children continue to be traumatized by the court process itself. Psychologists and legal academics have described this phenomenon as "double-victimization." The imposing atmosphere of the courtroom, the child's lack of understanding of court procedures and her forced contact with the accused can be extremely stressful. In this environment, the child must recount intimate sexual acts to strangers. Canada's adversarial system of justice then requires the child to undergo cross-examination. Like all witnesses, the child may be accused of having a poor memory, of being confused about what actually occurred or of outright lying.

The goal of our legal system is to ascertain the truth. As the Supreme Court has stated, rules of evidence should not be "interpreted in a restrictive manner which may essentially defeat their purpose of seeking truth and justice." It is increasingly recognized that hearsay evidence in child sexual abuse cases, traditionally excluded by the courts, may be the best evidence available. A spontaneous statement of a child to a third party after the event occurred is likely to be of more evidentiary value than statements made by the child in a courtroom several months later. Also, the hearsay statements of the child may be the only evidence, as typically there are no other witnesses to crimes of sexual assault. If the child's statements to a third person are held to be inadmissible, potentially valuable evidence will not be considered by the court.

Following the reasoning in Khan, a 1990 case in which a three-year-old girl was sexually assaulted by her doctor, the Supreme Court in R. v. F. held that two requirements must be fulfilled in order for the child's hearsay statements to be admissible. It must be established that the child's statement is "reliable" (by examining such factors as the child's reasons to fabricate, her demeanour and the timing of the reported statements) and that it is "reasonably necessary" for the statements to be admitted into evidence. The court held that if it is self-evident to the trial judge that the traumatized child is unable to provide meaningful testimony, the hearsay statements may meet the necessity test and the statements of the child to others may be admissible. The judge must then assess the weight of the evidence.

The Supreme Court in this case and in other decisions rendered in the past few years should be commended for taking such a balanced and sensitive approach to the serious problem of child sexual abuse.

Ronda Bessner teaches at the University of Toronto Law School and is a legal and policy consultant.

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