The legal system in Australia needs to learn from psychologists or risk inflicting grave injustices on child sex assault victims, the chair of the child sexual abuse royal commission says.


In a keynote address in Auckland to the 14th Australasian Conference on Child Abuse and Neglect on Tuesday, Justice Peter McClellan will say judges are working off what they thought they knew about how “genuine complainants” behaved and how memory works.

“Assumptions that turned out, with the benefit of empirical research, to be erroneous,” he says.

He will trace the historical legal approach to sex assault cases and cite relatively recent warnings by judges about delayed reporting affecting credibility and the fallible nature of human recollection making evidence about childhood events particularly susceptible to error.

Justice McClellan says these legal propositions were put without a scientific source, yet they became embedded in the fabric of the common law and proved difficult even for parliament to dislodge.

The commission has found it can take more than 20 years for a person to report a childhood sex attack but psychological research has found children are reliable witnesses about stressful events.

“They had profound consequences for complainants in sexual assault cases; particularly complainants who were children at the time at which they were assaulted.”

Justice McClellan says where observations are made about human nature, and these observations go on to inform the law and its practical application, “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 says judges of the High Court had on occasion embraced the work of psychologists to assist their understanding of human behaviour but this happened randomly and there were no agreed rules.

“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,” he says.

Rules which were not informed by science ran the risk of undermining community confidence in the law.

These matters are of particular concern to the Royal Commission into Institutional Responses to Child Sexual Abuse and it will address them.