This description of the grounds for objection and appeal are based on Canadian case law. Similar arguments should apply in the US. As soon as a legal brief can be prepared or obtained based on US case law, this section will be replaced with US materials. Contributions are actively solicited!
Note: For a concise summary of the legal issues in child sexual abuse see the
Symposium also on this web site
Children are afforded special legal status by virtue of being children.
This special legal status prohibits adults from exploiting children, sexually
or otherwise, thus fixing total accountability for the welfare of the child
as the responsibility of the adult. For example, a child cannot corrupt
the morals of an adult, and it is the responsibility of adults not to
sell alcohol or cigarettes to children.
The basis for the objections to be raised in child cases is that the court procedures -- the legal doctrine itself -- allows adults, in particular the defense lawyer, to exploit child witnesses. This is a breach of fundamental justice; a child does not stop being a child when they leave the play ground to enter the courtroom as a witness. Thus, the very proceeding designed to protect children from exploitation permits them to be directly exploited by the adults who are given the legal responsibility to protect them from exploitation. For example, in one case the defense on two occasions introduced wrong information into the testimony of an 8 year old child by asking leading questions, and then admonished the child for not being truthful:
Defense: She walked in the room, Mr. M. was bend over you with his mouth on your penis...
Victim: NO, no. I had my mouth on his penis. He made me put my mouth on his penis and he was kneeling... [starting to cry and getting very upset]
Defense: And you were laying on the bed?
Victim: Yes [barely answers, crying uncontrollably]
Defense: What end of the bed?
Victim: It wasn't on the bed it was on the floor. [Still crying]
Defense: I thought you said you were on the bed?
Victim: No, I meant on the floor.
Defense: Be careful with your answers it is very very important [very harsh tone!]
Victim: Yes [Crying uncontrollably now]
There is ample legal precedent grounded
in case law and federal legislation available for use by Prosecution attorneys
to object to such age inappropriate questioning of child witnesses, some
of which will be referenced in this document. Prosecution attorneys can and should
argue against such court room practices which are themselves abusive of
child witnesses. The first argument to be made concerns the special legal
status of children, and the second concerns the destruction of evidence
and obstruction of justice by the legal process itself. If resistance is
met by the Judge and Defense council, then the appeal process must be used
to pursue justice.
A great deal of legislation has afforded children special legal status and deemed them worthy of protection in a number of legal arenas. This is an important point because the courtroom can not become a place where the special legal status of children is ignored. Children, by virtue of being child, have special legal status, and it is the courts which must insure this protection.
Family Law Legislation
Canadian family law is premised on the "best interests of the child" doctrine such that all decisions should be governed by the child's welfare and best interests. The Child Welfare Act1 and the Child and Family Services Act2 are two statutes which reinforce that in the legal arena, the welfare of the child is always the foremost consideration. It was from the presumption that young children do not have the emotional maturity to decide what is in their best interests from which the "best interest" focus arose in family law. In section 33 of the Child Welfare Act, and section 39 of the Child and Family Services Act, judges are given instructions to exclude children from hearings unless the court is satisfied that the hearing is understandable and not injurious to the emotional health of the child3. For example, in Re A.B.S.,4 the Judge chose to exclude a 13 year old boy from a part of the proceedings in which his mother's past wrongs and negligence towards her son would be discussed. Clearly, there is a trend towards excluding children from all or parts of a hearing which may be traumatic and harmful to them (see also Re A.S.5; Re R.H.6 for similar cases). This same concern for making the examination questions understandable to the child witness must be upheld in criminal proceedings.
Children and Contract Law
In Canadian civil courts, a person cannot enter into a contract with a young person unless that contract is beneficial to the youth7. In this case, a pedestrian was hit by a car. The victim accepted money from the defendant in full settlement and signed a release of all claims. The victim later discovered that his injuries were more severe than originally diagnosed, thus the plaintiff sued. Being three weeks short of the age of legal majority when the agreement was signed, the court ruled that the terms of the contract were not beneficial to the plaintiff and declared the contract void.
Case law abounds in the area of voided and disadvantageous child contracts (see also Toronto Marlboro Major Junior "A" Hockey Club v Tonelli et al8; Sheddon et al v Ontario Minor Hockey Association et al9; Gretzky et al v Ontario Minor Hockey Association10; and Chantler v Metropolitan Toronto Hockey League et al.11 for more cases). This legal qualifier is afforded children due to their limited legal personality12. Because children are not mature individuals, they are perceived to lack the legal capacity to act on their own behalf and because of this legal incapacity, the child is protected by legal restrictions which do not apply to adults. These restrictions protect the child from activities which may be injurious to the child's health, morals or well-being13. Based on this premise, child witnesses should also be protected from participating in legal procedures in which cross examination tactics that promote stress and push witnesses beyond their level of cognitive competency are permitted.
Young Offenders Act
The juvenile justice system accommodates
the reality that children have not achieved the same cognitive level of
development as adults and affords children related protection as evidenced
in Section 56(2) of the act. When a young person provides a statement to
an authority or peace officer, b) "the person to whom the statement was
given must, before the statement was made, clearly explained to the young
person, in language appropriate to his age and understanding, that..."14
The Young Offenders Act maintains an implicit value that justice cannot
be served if the child cannot understand the process. Several cases exist
in which new trials were ordered due to inadmissable evidence and statements
obtained without conformity to section 56(2). In R v M.A.M.15,
a sixteen-year-old boy with a learning disability was charged with gross
indecency. The officer who interviewed the young man only read him his
rights but, failed to provide a clear explanation of his choices to have
a lawyer, parent, relative, or adult friend present. Therefore, the statements
made by the appellant were inadmissable and his conviction was quashed
by the B.C. Court of Appeal (see also R v C.M.D.16; R v B.S.M.17;
R v B.C.W.18; R v M.D.19 for more cases). Clearly,
children do not achieve a level of maturity significant with that of adults
when taking the witness stand, therefore, the courts must not limit the
assurance of understanding and protection in the YOA to this statute alone.
The Canadian Justice system will not stand
for the willful destruction of evidence nor the willful obstruction of
justice. Section 139 of the Criminal Code of Canada reads as follows:
"Every one shall be deemed willfully to attempt to obstruct, pervert, or defeat the course of justice who in a judicial proceeding existing or proposed, dissuades or attempts to dissuade a person by threats, bribes or other corrupt means from giving evidence"20Clearly, the law does not allow anyone to destroy evidence or assist the offender in any way in order to, and for the purpose of, enabling that offender to escape. The irony in child abuse cases is that the court knowing ensures that evidence essential to the well-being of a child will not be disclosed. Children are directly deprived of their rights under Section 7 of the Charter:
"Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice"21.
Destruction of Evidence
An accessory after the fact to an offense
is one who, knowing that a person has been a party to the offense, receives,
comforts or assists that person for purpose of enabling that person to
escape. In R v Vinette22, the accused was charged with an "accessory
after the fact" offense relating to the murder of a young girl. The accused
helped the murderer dispose of the body, although he claimed he was under
duress and unaware of his actions. The Supreme Court found that the accused
was guilty as the manner of which the corpse was disposed was proof enough
to suggest that the accused was aware of his actions and cognizant of the
fact that he was dealing with a homicide. Further, in R v McAvoy23,
a taxi driver aided a shoplifter in his escape from store authorities giving
chase. The cab driver was acquitted at trial, however, on appeal, the Ontario
Court of Appeal held that the accused could be tried and found guilty even
though the shoplifter was never apprehended.
Obstruction of Justice
One of the defining cases under this section
is that of R v Kotch24. The accused was a client of a lawyer
who was charged with shoplifting. In turn, for a donation of $20 000 to
a charity on the store's behalf, the accused asked the shopkeeper to withdraw
the charge against his lawyer friend. Although the Defense argued that
there was no evidence that the accused had the specific intent to obstruct
justice, the court of appeal affirmed the conviction and ruled that any
attempt to pay compensation, in any form, to a witness, that has the purpose
of influencing the witness not to give evidence in a judicial proceeding
is a corrupt attempt to obstruct justice.
Sanctions are particularly harsh for lawyers
who impede the course of justice. In R v Hearn25 and R v Doz26
, counsel attempted to obstruct justice by advising witnesses to give false
testimony. Both lawyers were convicted at trial and all appeals were dismissed.
The judgment of the Court of Appeal in R v Doz clearly shows the gravity
of contempt held by the court for counsel who violate the principles of
"There can be no doubt that the appellant's conduct was an attack on the fundamental integrity of our system of criminal justice. That system, to a very great degree, depends upon the ability of the court to accept as honourable men and women the counsel who appear before it. They have a privileged position before the court and so are in a position of trust not only in relation to the clients they serve but also to the court itself and, indeed, to the whole system of administration of justice. A breach of that trust is a most serious offence since of necessity it undermines public confidence in the system."27Further, attorneys are forbidden by the Canadian Bar Association from any "attempt to deceive or participate in the deception of a tribunal or from offering false evidence, suppressing what ought to be disclosed or otherwise assisting in any fraud, crime, or illegal conduct."28 Given these guiding principles, many attorney's violate the discovery of truth and obstruct justice through strategies that are developmentally inappropriate, and thus prevent children from testifying fully and truthfully.
The position we have outlined is neither
complicated nor difficult to defend. In child sexual abuse cases the court
itself is engaged in a criminal act of destroying evidence and obstruction
of justice. This is especially troublesome because it is the court which
is responsible for ensuring that children receive special legal protection
by virtue of being children. The procedures allowed in the courtroom are
not in accordance with the principles of fundamental justice. They result
in an abridgement of life, liberty and the security of person for children
by the guardian agency responsible for the protection of children. This
breach of justice is an abuse that is conceptually indistinguishable from
the sexual abuse with probable cause which brought the child before court
as a witness in the first place.
The problem is with the legal doctrine itself, and
it is fundamental. The rules of evidence are simply that; they are rules.
They are arbitrary procedures put in place to try to ensure that the courts
render decisions based on objective, factual information. If those rules
are known to consistently fail to protect the integrity of the evidence
in child sexual abuse cases, then it is necessary to change the rules to
fit the children, because the children cannot be changed to fit the rules.
As long as the fundamental principle is that the evidentiary rules should
be truth seeking, not truth destroying, appropriate standards easily can
be set for gathering testimony from children.
1 Child Welfare Act,
R.S.O. 1980, c.66
2 Child and Family Services Act, S.O. 1984, c.55
3 supra note, 1
4 Re A.B.S. (No.2)  OJ No.588 Quicklaw
5 Re A.S.  OF No.645. Quicklaw
6 Re R.H.  OJ No. 953. Quicklaw
7 Butterfield v Sibbitt and Nipissing Electrical Supply Co. Ltd.  OR (2d) 504-511.
8 Toronto Malboro Major Junior "A" Hockey Club v Tonelli et al  23 OR (2d) 193.
9 Sheddon et al v Ontario Minor Hockey Association et al  19 OR (2d) 1.
10 Gretzky et al v Ontario Minor Hockey Association et al  10 OR (2d) 759.
11 Chantler v Metropolitan Toronto Hockey League et al  44 OR (2d) 85.
12 Boyle and Percy, Contracts: Cases and Commentaries. Thomson Canada Ltd. 1994 p.671.
13 supra note, 1
14 Young Offenders Act R.S.C. 1985.
15 R v M.A.M. (1986) 32 CCC (3d) 566. P. 573.
16 R v C.M.D. (1996) 113 CCC (3d) 56.
17 R v B.S.M.  MJ No.85. Quicklaw
18 R v B.C.W. (1986) 27 CCC (3d) 481.
19 R v M.D.  OJ No.1162. Quicklaw
20 Criminal Code of Canada R.S.C. 1985. C.46, section 603.
21 Constitution Act 1982, section 7.
22 R v Vinette (1975) 19 CCC (2d) 1.
23 R v McAvoy (1981) 60 CCC (2d) 95.
24 R v Kotch  AJ no.1029. Quicklaw
25 R v Hearn  SCJ no129. Quicklaw
26 R v Doz (1984) 12 CCC (3d) 200
27 Ibid, para 47
28 Stuart and Delisle, Learning Canadian Criminal Law. Thomson Canada Ltd. 1993.
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