Sexual assault complainants on the stand: a historical comparison of courtroom questioning

Westera, Nina; Zydervelt, Sarah; Kaladelfos, Andy; Zajac, Rachel

doi:10.1080/1068316x.2016.1217334

Cited by 13 publications

(12 citation statements)

References 33 publications

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“…It is possible that direct examination questioning has undergone a similar pattern of change over time to cross-examination questioning; examination of court transcripts in countries that have not implemented this reform would be illuminating. We note, however, that our work on adult sexual assault complainants shows that the nature of direct examination questions has actually improved over the same period—that is, complainants are now asked more open questions and fewer leading and closed questions during direct examination than they were during the 1950s (Westera, Zydervelt, Kaladelfos, & Zajac, 2017).…”

Section: Discussionmentioning

confidence: 84%

The “Good Old Days” of Courtroom Questioning: Changes in the Format of Child Cross-Examination Questions Over 60 Years

2017

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Recent decades have seen an explosion of research into children's eyewitness capabilities and resulted in legal reform to render the adversarial trial process more child friendly. Many, however, have been left with the feeling that the most intimidating legal process for child complainants-cross-examination-has not changed meaningfully despite its potential to distort children's evidence. To test this possibility, we compared the cross-examination questioning of Australian child sexual abuse complainants in the 1950s to that used in contemporary cases. We found that the format of cross-examination questions has remained largely consistent over time, with leading questions still making up the bulk of the questions asked. The changes that we did observe, however, are concerning. Cross-examination questions posed to contemporary child complainants were less likely to be open-ended and more likely to be complex, relative to those asked in the 1950s. Crucially, contemporary complainants were asked 3 times as many cross-examination questions as they were 60 years ago. These changes are likely to have detrimental effects on child complainants and their evidence and could reduce the ability of jurors to reach just outcomes in these cases.

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Section: Discussionmentioning

confidence: 84%

The “Good Old Days” of Courtroom Questioning: Changes in the Format of Child Cross-Examination Questions Over 60 Years

2017

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“…Defence advocates have long been criticised for using stereotypes to undermine complainants and a combative questioning style (Lees 1996;Smith and Skinner 2017;Zydervelt et al 2017). Adversarial justice requires a defendant to be represented to the best of an advocate's ability and in practice this takes the form of discrediting the complainant's reliability and credibility during cross-examination (Westera et al 2017). A number of the difficulties faced by complainants are therefore inherent in the justice process (Zydervelt et al 2017).…”

Section: Applying Dirty Work To Barristers Groupsmentioning

confidence: 99%

“…In practice then, the upholding of adversarial justice, which demands complainants be discredited and defendants' interests 'fearlessly' protected (Westera et al 2017;Bar Standards Board 2018), was difficult work to do. Such work could 'destroy part of your humanity' (Drew 2007: 28) and leave advocates haunted by the prospect of defendants going on to reoffend, including targeting the barrister, once released from prison.…”

Section: Emotionally Demanding Defence Practicementioning

confidence: 99%

The Emotional Particulars of Working on Rape Cases: Doing Dirty Work, Managing Emotional Dirt and Conceptualizing ‘Tempered Indifference’

Gunby

Carline

2019

The British Journal of Criminology

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This paper asks: In what ways are the work of rape barristers dirty, with a particular focus on emotional dirt? What impact do clients’ burdensome emotions and affects have on barristers and what mechanisms are used to manage this taint? Based on 39 interviews with advocates from four English cities, we argue that emotional dirt is central to the taint of the role. Barristers must distance themselves from emotional dirt in order to maintain objectivity, yet simultaneously invest in those emotions in order to convince a jury. In these contradictory circumstances, barristers employ what we term ‘tempered indifference’, a form of emotional work premised on strategically turning emotions down. However, the subsequent ability to turn them back on remains debatable.

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“…During the trial, survivors will likely experience two forms of questioning: evidence-in-chief and cross-examination (Westera, Zydervelt, Kaladelfos, & Zajac, 2017). Evidence-in-chief is when the prosecution will likely aid the survivor in establishing the facts of the case: the events, the timeline, etc.…”

Section: Findings and Discussionmentioning

confidence: 99%

“…Evidence-in-chief is when the prosecution will likely aid the survivor in establishing the facts of the case: the events, the timeline, etc. The cross-examination is the opposing counsel's right to also question the witness, test its validity and accuracy, and/or try to build an opposing narrative (Westera et al, 2017). The cross-examination is often where rape myths are relied upon to invalidate a survivor's story-to suggest the incident did not happen at all, or to suggest the incident did happen but was consensual and the survivor is misremembering or is a liar.…”

Section: Findings and Discussionmentioning

confidence: 99%

(De)Constructing the "Perfect Rape Victim" : an Analysis of Sexual Assault and Survivor Discourses in the Canadian Criminal Justice System

Dhawan¹,

Fink²

2022

Preprint

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The Canadian criminal justice system has seen many progressive changes to the way sexual assault cases are investigated and prosecuted over the past several decades. From the acknowledgement of spousal rape to the introduction of rape shield provisions, the law has seemingly changed to broaden the definition of what is considered a sexual assault. However, sexually-based offences are still vastly underreported and have the lowest attrition rates of indictable offences. Larger societal discourses around sexual assault and survivor-hood consist largely of rape myths, such as the idea that “real rape” only occurs when an “undeserving” woman is sexually assaulted by a “stranger in the dark.” These discourses permeate the Canadian criminal justice system, negatively influencing the experience of survivors who do not fit the narrow mould “real rape.” Drawing from Norman Fairclough’s Critical Discourse Analysis and Stuart Hall’s Discursive Approach, this Major Research Paper traces the effects of these discourses on constructions of sexual assault and survivor-hood in the legal system. Through a theoretical analysis of existing literature on the experiences of sexual assault survivors, this paper also examines the ways in which the language we use to describe sexual assault serves to cement rape myths and invalidate survivor experiences in every stage of the Canadian criminal justice system.

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Sexual assault complainants on the stand: a historical comparison of courtroom questioning

Cited by 13 publications

References 33 publications

The “Good Old Days” of Courtroom Questioning: Changes in the Format of Child Cross-Examination Questions Over 60 Years

The “Good Old Days” of Courtroom Questioning: Changes in the Format of Child Cross-Examination Questions Over 60 Years

The Emotional Particulars of Working on Rape Cases: Doing Dirty Work, Managing Emotional Dirt and Conceptualizing ‘Tempered Indifference’

(De)Constructing the "Perfect Rape Victim" : an Analysis of Sexual Assault and Survivor Discourses in the Canadian Criminal Justice System

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