Justice Peter McClellan: Assumptions about victims colour judges' decisions

By Jane Lee
Sydney Morning Herald
March 30, 2015

http://www.smh.com.au/national/justice-peter-mcclellan-assumptions-about-victims-colour-judges-decisions-20150330-1mb4ib.html

Sexual assault victims' testimony has been called into question by judges ignorant of relevant psychological research, the chairman of the royal commission into child sexual abuse says. 

In a rare and frank appraisal of Australian judges to be presented on Tuesday at an international conference in New Zealand, Justice Peter McClellan said, "Judicial assumptions about human behaviour are still, in relatively contemporary times, informing the content of the law." 

 While some of these assumptions "may be sound", he says it is difficult to know whether they are correct, given the law largely prevents judges from consulting "authoritative professional material" on "ordinary human behaviour".

Judges had historically said things in sexual assault trials that revealed their ignorance of relevant psychological research, including that allegations of sexual abuse should be doubted if victims' reports were delayed, and that children's memories of abuse were unreliable, Justice McClellan said.

Currently, judges can draw on their own knowledge of the world without referring to a particular source when deciding facts in a case. This is an exception to the rule that they must only rely on evidence before the court.

Justice McClellan said that when judges use observations about human nature to decide how the law should apply, "judges must work to ensure these observations are accurate". 

"Where science progresses and the law lags behind, the criminal justice system risks inflicting injustice on either complainants or the accused," he said. "However, it is apparent that the law, at least in Australia, has not yet identified the rules which will allow the scientist to speak effectively to the judge."

State laws were now in place requiring judges to warn juries that delays in abuse complaints did not mean allegations were false and some High Court judges had embraced psychologists' research to help them understand human behaviour.

However, Justice McClellan said clearer rules were needed on how judges should refer to such research: "The random nature of these references emphasises the need for some agreed rules about the appropriate approach ... rules which are not informed by science run the risk of undermining community confidence in the law."