Counterintuitive evidence considered "substantially helpful" in child sexual abuse cases

The use of "counterintuitive evidence" in child sexual abuse cases has been supported by the Supreme Court in two recent appeal decisions.

Following the enactment of the Evidence Act 2006, New Zealand courts have regularly admitted and upheld the use of "counterintuitive" expert evidence, which is used to correct erroneous beliefs regarding complainant conduct so the jury may better understand and evaluate evidence.

The Law Commission describes counterintuitive evidence as; "[...] not diagnostic. Rather, the purpose of the evidence is educative: to impart specialised knowledge the jury may not otherwise have, in order to help the jury understand the evidence of and about the complainant, and therefore be better able to evaluate it. Part of that purpose is to correct erroneous beliefs that juries may otherwise hold intuitively. That is why such evidence is sometimes called "counter-intuitive evidence": it is offered to show that behaviour a jury might think is inconsistent with claims of sexual abuse is not or may not be so; that children who have been sexually abused have behaved in ways similar to that described of the complainant; and that therefore the complainant's behaviour neither proves nor disproves that he or she has been sexually abused. The purpose of such evidence is to restore a complainant's credibility from a debit balance because of jury misapprehension, back to a zero or neutral balance. This is similar to the use of expert evidence to dispel myths and misconceptions about the behaviour of battered women." (Report 55, Vol 2, s24)

Counter-intuitive evidence was given at the appeals DH (SC 9/2014) v R and Abraham Eparaima Kohai v R. In the first, the Crown case was that appellant had sexually violated and assaulted his daughter on numerous occasions from the age of 11 to 15. In the second, the appellant was convicted of 14 counts of sexual offending against three children. Counterintutive evidence given at the appeals addressed:

• "Analysis of delays in disclosure of sexual abuse
• Reasons for delayed reporting
• Retractions of allegations of sexual abuse
• Continuing contact between victims and perpetrators
• Incremental disclosure of details of sexual abuse
• Denial of sexual abuse."

The Supreme Court of New Zealand unanimously upheld the Court of Appeal's decisions to dismiss both appeals. The court found that counterintuitive evidence can be "substantially helpful because it corrects erroneous assumptions about the likely conduct of victims of abuse and allows a fact-finder to assess a case free from the influence of such assumptions."

Further resources:

Counterintuitive Expert Psychological Evidence in Child Sexual Abuse Trials in New Zealand (Seymour, Blackwell, Calvert & McLean, 2013).

Counter-intuitive evidence: should neutrality be sought? (Mathias, 2013)

Media

Supreme Court backs use of victim behaviour evidence, NZ Herald, 16.04.2015

Image: 'A little justice' by Orange Sparrow. Licence Creative Commons Attribution-NonCommercial-NoDerivs 2.0 Generic (CC BY-NC-ND 2.0)