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New Zealand Law Students' Journal |
Last Updated: 24 September 2015
PAEDOPHILIC PROCLIVITIES AND THE ASSUMPTION OF HOMOGENEITY
- A PSYCHOLOGICAL CRITIQUE OF THE COURT OF APPEAL JURISPRUDENCE CONCERNING
THE
PROPENSITY EVIDENCE IN CASES OF CHILD SEX ABUSE
IAN KO
Introduction
At the time this paper was written, a barrage of high-profile paedophile
cases assailed media headlines. One such case, dubbed “the
worst in New
Zealand”, involved Aaron John Ellmers and his sexual abuse of children
aged 13 months to 13 years.[1] Further
examples include primary school teacher James Parker, confessing to 74 sex
crimes against 20 young boys over a 10-year
period,[2] and businessman Daniel
Taylor, charged with over 20 instances of sexual offending against
children.[3] Though shocking, this is
not surprising: child sex abuse is not unknown in New Zealand, with the number
of incarcerated child sex
offenders almost double that of adult sex
offenders,[4] and nearly a third of
New Zealand women reportedly having been subject to some kind of unwanted sexual
contact at a young age.[5]
One
of the defining features of child sex is the repetition of sexual violation.
Accordingly, ordinary human experience would dictate
that in a criminal trial, a
jury’s knowledge of the alleged paedophile’s prior sexual
misconduct, or “propensity
evidence”, would help to ascertain the
likelihood of similar offending. In other words, the probative value of the
propensity
evidence justifies its admission. On the other hand, the sporting
theory of justice calls for the exclusion of this evidence in order
to prohibit
jurors from conveniently generalising the defendant on the basis of adverse
traits. Propensity evidence and child sex
abuse are a potent mix, one that
produces the most severe “knee-jerk” reactions amongst
jurors.[6] In a United States
Department of Justice survey, the sexual abuse of children, deemed the most
vulnerable and innocent in society,
was ranked second in heinousness, coming
only after the crime of murder.[7]
Paradoxically, it is in these emotionally-charged cases of paedophilia that
evidence of prior offending is most useful, but also
where the reminder of Lord
Loreburn LC rings most true: “you cannot convict a man of one crime by
proving that he had committed
some other crime; that, and all other safeguards
of our criminal law, will be jealously
guarded”.[8]
New Zealand
courts, though, have not paid heed to the Lord Chancellor’s warning. Our
courts have allowed decisions of admissibility
to be grounded on artificial
assumptions which are indefensible with regard to scientific realities. This
paper seeks to identify
and question these assumptions. It argues that the New
Zealand Court of Appeal jurisprudence, since the enactment of the Evidence
Act
2006, has wrongly assumed child sex offenders to be a homogenous class when
assessing the probative value of propensity evidence,
leading to an
overestimation of probativeness when comparing similarities in age between the
proposed propensity evidence and the
trial at hand. The result is an
unjustifiable admission of otherwise inadmissible evidence. This paper
substantiates its assertion
by pointing to recent psychological research
demonstrating the heterogeneous nature of child sex offenders, especially in
regard
to distinct sexual preferences for victim age.
First, in order to
establish its argument, this paper will identify the parameters of analysis by
defining the concept of child sex
abuse. By way of background, Part III will
give a brief overview of the relevant propensity provisions in the Evidence Act
2006.
Part IV will then focus on how these propensity provisions have been
applied by the Court of Appeal in a child sex abuse context.
Closer examination
of the Court of Appeal’s application reveals an underlying assumption of
homogeneity, which will be identified
and formulated in Part V. Part VI will
then use a psychological framework to critique the assumption
identified.
II.
Parameters of Analysis - The Definition
of Child Sex Abuse
The term “child sex abuse” is non-exhaustive, and encompasses
various criminal acts of indecency or violation. Legally,
part 7 of the Crimes
Act 1961 is typically invoked in relation to child sex abuse, which includes
charges of sexual violation by
unlawful sexual connection, incest and rape.
Historical abuse may involve now-repealed charges of sodomy or indecency with a
child
under 12. However, this paper first accepts a more general and
non-exhaustive clinical definition, with child sex abuse being described
as
“the involvement of adults, older children, or adolescents in sexual activities with children who cannot give appropriate consent and who do not understand the significance of what is happening to them. Such activities violate family and societal taboos. Sexual abuse includes, for example, sexual touching of genitalia, oral sex, attempted or actual sexual intercourse, or including children in child pornography.”[9]
Secondly, for the purposes of this paper, general references to children
will be limited to those under the age of 16 to reflect the
statutory age of
consent to sexual conduct.[10]
However, to differentiate between stages of maturity in children aged 0 to 16
years, the Tanner scale of physical development will
be
adopted.[11] This scale ranges from
1 (prepubertal) to 5 (fully mature), and categorises, using established
criteria,[12] sexual maturation with
reference to such as breast development in females, genital development in
males, and pubic hair growth in
both sexes.
Finally, since sexual
offending may span over several years or even decades, the age serving as a
comparison between various victims
of the same offender must be identified. The
most appropriate identification is the age the defendant allegedly commenced the
abuse
against the victim, as this manifests the earliest age at which the
offender was prepared to abuse victims. Not only have clinical
studies used this
method of
classification,[13]
but courts have likewise done so when comparing similarities in ages between two
sets of offending. In R v
L(CA276/2009),[14] the abuse
against a prior complainant occurred over one year (5 to 6 years of age). The
abuse at trial, however, lasted for five
years (5 to 10 years of age). The Court
of Appeal nonetheless held the defendant’s propensity to be a tendency to
engage in
“sexual behaviour with a girl of about
five.”[15] This method
of classification will be essential in later discussions concerning how courts
have erroneously framed defendants’
propensities.
III.
The Propensity Provisions - Section 40
and 43 of the Evidence Act 2006
Prior to the enactment of the Evidence Act 2006, the common law doctrine of
“similar fact” evidence allowed admission,
in a criminal trial, of
any evidence probative of disreputable aspects of the defendant’s
character.[16] Application of the
doctrine involved a balancing of competing interests: a weighing of the
probative value of the proposed evidence
against the unfair prejudice the
evidence may have on the fact-finder’s
reasoning.[17] The Evidence Act has
largely retained the common law analysis relating to propensity
evidence.[18]
However, the Supreme Court in Mahomed v R confirmed that any inquiry
regarding interpretation of the propensity provisions must “focus firmly
on the terms of the
Act”.[19]
A “clean state” approach, with little to no reliance being placed on
pre-Act case law, is therefore
preferred.[20]
Where
the Crown wishes to adduce propensity evidence against the defendant, the
evidence must first qualify as “propensity evidence”
within s 40(1)
of the Act. Section 40(1) acts as a mechanism to define the types of evidence to
which the following propensity provisions
apply.[21]
Assuming the proposed evidence falls within s 40(1), the probative-prejudice
calculus in s 43 is engaged. Where, having regard to
enumerated discretionary
factors, the probative value of the evidence outweighs the risk of unfair
prejudice to the defendant, the
propensity evidence is then admissible.
A. Section 40(1): Definition of “Propensity” Evidence
Propensity evidence is evidence “that tends to show a
person’s propensity to act in a particular way or to have a particular
state of mind”.[22] Concepts
of linkage and coincidence form the rationale of propensity evidence. The
Supreme Court in Mahomed recognised that the greater the linkage between
the propensity evidence and the present charge, the greater the probative value
of
the propensity
evidence.[23]
Nonetheless, the linkage identified must not only have some sort of specificity,
but that specificity, though must also be connected
to the conduct or mental
state alleged to constitute the litigated
charge.[24] The threshold for
specificity, though, in acts or conduct is not extremely high, and courts have
even found a propensity to have
no relevant
convictions.[25]
B. Section 43: The Probative-Prejudice Calculus
1. Section 43(1): the overarching test
Assuming the evidence is defined as “propensity” under s
40(1) and is offered by the prosecution, the s 43(1) test is
engaged to
determine admissibility of the propensity evidence, which is possible
“...only if the evidence has a probative value in relation to an issue in dispute in the proceeding which outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant.”[26]
The statutory test therefore aims to address the tension inherent in
propensity evidence by balancing two competing interests: that
of probative
value to a material issue in the proceeding, and that of unfair prejudice to the
defendant.
2. Section 43(2): framing the relevant issue
Section 43(2) makes clear that the nature of the issue in dispute must
first be
identified.[27]
How that material issue is framed largely impacts the assessment of probative
value, and in turn whether the evidence should be admitted
at all. The 3-2
Supreme Court split in Mahomed, a case concerning parents charged with
murder of their child, stemmed from a divergence in the definition of the
material issue.
Whereas the majority confined the issue to being one of
intention for murder, [28] the
minority argued that the issue was one of “hostility” and
“indifference towards the child’s exposure
to
risk.”[29] It must be noted
that in cases of child sex abuse, however, there are rarely disputes as to the
material issues: since consent is
not a valid defence, most cases concern the
defendant’s identity or whether the conduct in question actually took
place.
3. Section 43(3): factors in determining probativeness
The first step of the s 43(1) balancing test is a s 43(3) inquiry into
the probative value of the propensity evidence, which is the
tendency of any
evidence to prove or disprove a material issue in the litigated
trial.[30] In doing so, the court
may have regard to the factors outlined in s 43(3). Though these factors are not
a “checklist”
concluding with “some sort of arithmetical
‘totting up’ of what is present against what is
not”,[31] the majority of
judgments have methodically worked through these factors when determining
probative value. These factors, to paraphrase,
are as follows (emphasis
added):
(a) Frequency of offending;
(b) Connection in time between proposed evidence and present charge;
(c) Extent of similarity between the proposed evidence and present charge;
(d) Number of persons making allegations against the defendant;
(e) Whether such allegations in (d) may stem from collusion or suggestibility;
(f) Extent to which the acts are unusual.
Section 43(3)(a)
indicates that the more acts done which demonstrate the specific propensity
(frequency of offending), the higher the probative value of the
propensity
evidence.[32]
Evidence that a defendant committed rape on 10 prior occasions is clearly
stronger evidence of a propensity than if a defendant had
merely committed one
rape. Section 43(3)(b) indicates that probative value is heightened the closer
in time the prior conduct had
been committed to the litigated charge.
Section 43(3)(c) has been central to judicial analyses of probativeness.
Similarities in the prior acts and the litigated charge are
to be identified,
and the greater the extent of similarity between the two, the more probative the
propensity evidence. However,
the jurisprudence relating to paragraph (c) has
been criticised, both judicially[33]
and academically.[34] Commentary has
argued that there is an over-emphasis on similarities, often to the exclusion of
blatant differences. This is particularly
true in cases of child sex abuse, and
forms the basis of the current assumption of homogeneity argued in this paper.
Sections 43(3)(d) and (e) concern an examination of the complainants.
According to paragraph (d), the probativeness of propensity
evidence increases
with the number of complaints. However, paragraph (e) warns against the
possibility of collusion between those
complainants, and against the potential
for particularly suggestible complainants (for example, children). Finally,
section 43(3)(f)
notes that the sharing of unusual features between the two sets
of offending may serve to increase probative value.
4. Section 43(4): Considerations of unfair prejudicial effect on the defendant
Considerations of probativeness are fundamentally connected with notions
of fairness. Unfair prejudice may be where the jury risks
adopting an emotional,
“knee-jerk” reaction to evidence as opposed to rationally applying
it to the facts. Accordingly,
the determination of the propensity
evidence’s probativeness under s 43(3) must be balanced against any
illegitimate prejudice
to the defendant (s 43(4)). As noted by Baragwanath J in
R v B (CA459/06),[35] s 43(4)
signifies Parliament’s recognition that jurors are human, and human nature
is essentially guided by simplistic reasoning,
such as “no smoke without
fire”, or “he’s a bad man, he’s done it
before”.[36] Sections 43(3)(a)
and (b) therefore compel considerations of the risk of an unfair predisposition
against the defendant, or possibilities
that the jury may accord
disproportionate weight to the propensity evidence. Thus, for any evidence
defined as “propensity
evidence” under s 40(1) to be admitted, it
must pass the high threshold balancing test in s 43(1), being deemed more
probative
to a material issue than unfairly prejudicial to the
defendant.
IV.
An Overview of Court of Appeal
Jurisprudence: Propensity Evidence in Cases of Child Sex Abuse
Child sex abuse proceedings have almost invariably required judicial
consideration of propensity evidence and its admissibility. Guidance
from the
highest court is scarce: the only Supreme Court decision concerning s 43 and
child sex abuse involved consideration of whether
evidence presented in trials
culminating in an acquittal could be adduced as propensity
evidence.[37]
A unanimous Court held that even prior acquittal evidence may be adduced if it
satisfies the requirements of s 43(1) of the
Act.[38]
On the other hand,
the New Zealand Court of Appeal has grappled extensively with the issue of
admission or exclusion of propensity
evidence relating to alleged paedophiles.
The s 43 balancing test has been invoked in the context of severance
applications,[39]
appeals against conviction,[40] or
pre-trial interlocutory proceedings relating to
admissibility.[41]
An examination of the Court of Appeal’s position when applying propensity
evidence to circumstances of child sex abuse circumstances
will subsequently
reveal an assumption of homogeneity.
A. The Definition of a Paedophilic Propensity: Section 40(1)
The Court of Appeal has generally defined a
propensity for paedophilia by reference to victims in the two sets of offending.
Propensities,
though, have ranged in specificity. Where the proposed evidence
and the present charge are more alike, the Court frames the propensity
as a
specific one. This is highlighted in the pre-trial ruling of Rhodes v
R,[42]
which concerned the admissibility of previous relevant convictions where similar
sexual activity involving vaginal and anal penetration
was carried out. The
defendant was held to have the specific propensity to “engage in diverse
forms of sexual activity with
young persons... [particularly inserting] objects
in the vagina and/or anus of a young person in his
care.”[43]
Alternatively, propensities have been defined in general terms where the
proposed evidence and the litigated charges are different,
the Court
endeavouring to admit the evidence without straining its propensity definition,
as in Lindsay v
R.[44]
The defendant was appealing against conviction on counts of unlawful sexual
connection and attempted sexual violation against two
adolescent girls. The
propensity evidence proposed by the Crown concerned a sexual grooming
conviction. The majority, in admitting
the propensity evidence, framed the
defendant’s propensity generally as a tendency to “act upon his
sexual interest in
young girls in his
care.”[45] Mackenzie J
dissented, criticising the lack of specificity in the majority’s
formulation of the defendant’s propensity.
He argued that having a broad
“sexual interest in young girls” does not cover the minor offence of
grooming and allegations
of outright sexual violation, being actions which are
significantly different. [46]
B. Determining the Probativeness of Prior Instances of Sex Abuse: Section 43(3)
Admission of propensity evidence hinges upon its
probative weight.[47] Like in other
non-sexual cases, courts, in determining probativeness, have applied the factors
enumerated in s 43(3) to proceedings
involving child sex
abuse.[48]
1. Frequency and connection in time: paragraphs (a) and (b)
An analysis of the frequency of offending under s 43(3)(a) in child sex
abuse proceedings has usually uncovered prolonged and sustained
abuse by the
defendant. In O v R for
example,[49]
the Court of Appeal identified the alleged offending as occurring almost weekly
over eleven and three years for the first and second
complainants respectively,
and over three years for the propensity witness. These were clearly not
“isolated
incidents”.[50] Alternatively,
the s 43(3)(b) factor of connection in time is discussed mostly in historic
offending cases, where probative value
is typically weakened by a wide gap in
time between the two sets of offending. In Lowe v R,
[51] the
Court of Appeal held that a gap of at least 32 years between the present charge
and the prior evidence lessened its probative
value.
Nonetheless, the probative value of propensity evidence under paragraph
(b) comes down to judicial selection of comparable events.
The Court of Appeal
O v R preferred to place more emphasis on the time elapsed between the
first and second complainants, and the first complainant and the
propensity
witness, but not the second complainant and the propensity witness. In doing so,
it avoided connection in time issues
which would have amounted to a gap of at
least 39 years.[52]
2. Extent of similarity: paragraph (c)
The s 43(3)(c) factor concerning extent of similarity undoubtedly
engenders the most judicial debate. This is unsurprising: the very
nature of
propensity evidence is based on coincidence and linkage
principles,[53] involving an
identification of similar aspects present in both the allegation and past
conduct, which ultimately feeds into formulation
of the defendant’s
propensity. However, Court of Appeal jurisprudence is unsettled as to whether
analysis of similarities necessarily
includes analysis of comparable
differences. Traditionally, the Court has focused exclusively on
similarities,[54] thereby admitting
incidents of prior child sex abuse even in the face of notable dissimilarities.
The Court in Rhodes, for example, first acknowledges that a charge of
rape and unlawful sexual connection against two 6-year-olds is quite different
to that of inserting a vibrator or beads into the anus/vagina of a propensity
witness.[55] However, it then
comments that in such contexts, “the emphasis is not so much on
differences between separate events...as on
similarities between them”,
going even further to say that “an approach that focuses on differences
rather than similarities
runs the risk of being unduly
narrow.”[56]
The
approach of Glazebrook J in Vuletich v R, a rape case against two female
adult complainants, may be contrasted to Rhodes
above.[57]
In Vuletich, “obvious differences” between the two sets
of offending, including the different degrees of consent (equivocal consent
in
the first offending, as opposed to outright disgust in the second) outweighed
the similarities, ultimately rendering the propensity
evidence
inadmissible.[58]
Her Honour’s approach is supported by commentators, who deem that analysis
of the “extent of differences” is inherent
in the paragraph (c)
analysis.[59]
The reasoning
of Glazebrook J has been applied in the context of child sex abuse. In
S(CA567/2011) v R,
[60] an
opportunistic offending against a 19-year-old male was not cross-admissible as
propensity evidence in other offending against
three other males, who were 13 to
16 years of age. The Court, in severing the complaint brought by the 19 year
old, recognised that
there were indeed similarities, especially concerning the
nature of the offending (oral and anal sex) and the presence of
alcohol.[61] However, it stated that
“the ‘extent’ of similarities can only be fully appreciated by
an assessment of their strengths
and weaknesses”, and that
“material differences...cannot be ignored in [the] assessment
process.”[62] Therefore, at
least in some cases of child sex abuse, differences between the two sets of
offending are identified to ensure the
evidence is not unfairly
admitted.
3. Number of complainants and the potential for collusion or suggestibility: sections 43(3)(d) and (e)
The majority of cases which have come before the Court of Appeal have
involved multiple complainants who were unaware of the existence
of one
another.[63]
However, even where complainants were previously acquainted with one other or in
some way connected, that was not enough, as the
allegations of child sex abuse
had to be the result of collusion or
suggestibility.[64]
4. The unusualness of the propensity evidence/present charge: section 43(3)(f)
Generally, the Court has found child sex abuse to be inherently unusual:
“the interest of a mature male in sexual activity with
very young girls
is, itself, an unusual
factor”.[65]
However, it is not sufficient for merely one of the alleged propensity incidents
to be unusual, as the unusual features “must
be common to both sets of
offending for this factor [of unusualness] to be
met.”[66] Therefore, in R v
S(CA567/2011), the performance of oral sex and sodomy by an older man
against younger men in one set of offending was unusual, but oral sex and adult
homosexual sex in the other set was not inherently unusual. Since both sets of
offending did not share the same unusual features,
this factor was not
met.[67]
C. Concerns of Unfair Prejudice to the Alleged Paedophile: Section 43(4)
While evidence of prior sexual abuse may be
highly probative, the propensity evidence must still be excluded if there is
risk of an
unfairly prejudicial effect on the
defendant.[68] Juror simulation
studies have proved, in relation to prior paedophilic conduct, that “more
is worse, more is
believable”.[69] The Court has
also recognised this special and inherent prejudice experienced by defendants in
trials involving child sex abuse,
since “the existence of previous
convictions might of itself lead the jury to conclude ‘once a paedophile,
always a
paedophile’.”[70] In
most cases, prejudice may be overcome by a judicial direction to the
jury.[71]
However, in other cases, the Court has found that unfair prejudicial effect
would remain notwithstanding any direction given by the
trial judge. This is
particularly where allegations involve historic sex
abuse,[72] or where the propensity
evidence adduced led to an acquittal in a previous
trial.[73]
Overall, s 43(1) considerations of probativeness and prejudice in child
sex abuse proceedings are inextricably tied. Where probativeness
is slight, it
would clearly be unfairly prejudicial to the defendant to admit the propensity
evidence. As such, correct evaluation
of the probativeness of prior sexual
abuse, free from any invalid assumptions, is essential if the defendant is to be
protected under
the 2006 Act.
V.
Identifying an Assumption of
Homogeneity
A. The Assumption of Homogeneity in the Court of Appeal Jurisprudence
A critical examination of the current approach
outlined above reveals a misunderstanding regarding the behaviour of
paedophiles. The
Court of Appeal overestimates the probative value of propensity
evidence involving paedophilia by relying on the assumption that
paedophiles
constitute a homogenous class of offenders, whereas in reality, there is no
“classic personality pattern for p[a]edophilia
because of the various
sub-groups that
exist.”[74]
The assumption of homogeneity is therefore the judicial misunderstanding that
child sex offenders do not discriminate between pre-pubescent
and pubescent
victims. This assumption goes further than the above criticisms of
Vuletich[75] and
S(CA567/2011) v R.[76] It
does not centre on the fact, as noted by Glazebrook J, that judges are failing
to consider significant differences under paragraph
(c). It instead highlights
that, in cases of child sex abuse, the very process by which those similarities
and differences are assessed
is grounded on an assumption unjustifiable in light
of psychological evidence. Judicial failure to recognise this distinction has
resulted in wrongful admission of inaccurately weighted evidence.
Nonetheless, before the assumption can be critiqued, it must first be
exposed. The assumption of homogeneity can be seen clearly,
simply by comparing
the ages of child complainants in the two or more sets of offending in cases
mentioned above. The Court of Appeal
in R v Shaw framed the
defendant’s propensity as a tendency to indecently assault “young
girls”, a tendency which “most
obviously” justified five
charges of indecent assault being heard by the jury against five different
complainants.[77]
In that case, the youngest of these complainants was 6 years old,
whereas the eldest was 12 years old.
[78] The Court of Appeal equates the
youngest child as similar to the eldest, and effectively assumes that the
defendant would have the
propensity to sexually abuse all children in that age
range. Similarly, in the severance application of O v R, the Court of
Appeal accepted the trial judge’s observations regarding the ages of the
child victims, in that they were “young”
at the time of
offending. [79] This was even though
their ages ranged from 7 years to 12 years of age.
Lindsay v R
concerned a prior grooming conviction involving an 8-year-old being adduced in
the trial of two 14-year-old complainants.
[80] The fact that the majority allowed
the propensity shows their understanding that having a sexual interest in
“young girls”
meant having one that encompassed the ages of 8 to 14.
The same type of reasoning is evidence in Rhodes, where the Court of
Appeal allowed the admission of propensity evidence involving an 11-year-old in
a trial involving two 6-year-old
claimants. The Court noted that it would not
“mechanically identifying points of similarity and dissimilarity”
between
the two sets of offending. By reasoning that considerations of the
“extent of similarity” under s 43(3)(c) should not
encompass
considerations of differences, the Court of Appeal effectively side-stepped the
complication regarding the obvious difference
in age.
Various other
cases not noted above also show this underlying assumption. The defendant in
Rompa was charged with indecent assault, inducing an indecent act, and
sodomy on a 5-year-old male. [81]
The Crown sought to adduce propensity evidence of a female witness alleging that
the defendant had sexually abused her when she
was 10 years old. While the Court
did highlight the discrepancies between the age and sex of the two complainants,
one being a 5-year-old
male and the other being a 10-year-old female, it did not
attach much weight to these differences, and promptly dismissed the appeal
without further discussion regarding its
admission.[82] The Court of Appeal
adopted the propensity formulated by the trial judge, which was to engage in
“conduct relating to young
children, whether male or
female”.[83]
Finally,
in R v Davidson,[84] which
involved a severance application on representative charges of unlawful sexual
connection and indecent assault, the Court recognised
that there were
“some differences” in the offending. This included an “age
difference” between the two sets
of offending. However, such a difference
was ignored by the Court of Appeal, which deemed both female complainants were
“pre-adolescent”,
and therefore sufficiently
similar.[85] It must be noted that
the propensity victim was a child of 5 years, whereas the trial at hand
concerned a 12-year-old. Like the five
other examples identified above,
Davidson demonstrates the assumption of the Court of Appeal that the
alleged paedophiles have a sexual interest in a broad range of victims,
regardless of age.
The fact that the Court of Appeal permits evidence of
a 6-year-old to be tried on the same indictment as a 12-year-old, as in
Shaw, or when the Court allows a prior conviction involving an 8-year-old
to be adduced into a trial brought by two 14-year-olds, highlights
an underlying
conception that child sex offenders have a uniform sexual preference for all
children under the age of 16. Alleged
paedophiles are therefore assumed to
sexually violate victims indiscriminately, with no regard for differences in age
and varying
degrees of physical or sexual maturity. This is the assumption of
homogeneity.
B. Can the Current Approach be Rationalised?
While the judicial assumption that all
paedophiles share sexual preferences for a broad range of child victims may be
disproved by
clinical research, there may nonetheless be reasons why courts have
admitted such dissimilar evidence.
1. Rationalisation #1: the unique nature of child sex abuse proceedings
Judges are tasked with viewing disputed evidence in a global manner to
account for the implications of admissibility on the entire
trial. Therefore,
the special characteristics of child sex abuse would inform and shape the final
decision on admissibility. First,
child sex abuse occurs in familial contexts or
positions of trust, frequently taking place in secluded locations. In
Lowe for example, the indecent assault, whereby the defendant allegedly
placed his hand down the front of the complainant’s jeans,
took place in
the private and isolated setting of the defendant’s
bedroom.[86] As such, independent
witnesses are unavailable to testify in favour of the complainant’s
allegations, meaning the only directly
incriminating evidence is that of the
victim’s testimony, which the defendant would invariably deny. Like in
many sexual violation
trials, proceedings then essentially devolve into
assessments of credibility, as to whether the child complainant or the defendant
is more
believable.[87]
Another unique feature to child sex offences is that child victims are
typically plied with treats or money to conceal the sexual
nature of the
relationship,[88] or are forced to
stay silent and refrain from reporting the offending by verbal or physical
threats.[89] When the sexual abuse
is ultimately disclosed, sometimes years or decades after the alleged offence,
there is a lack of medical evidence
otherwise corroborating the victim’s
account of abuse.[90] This undue
delay in bringing proceedings, caused by fear of threats or by a failure to
comprehend the nature of the indecent
touching,[91] then paradoxically
becomes a factor weighing against the victim. Thus, in Lowe, historical
acts of offending occurring between 1976 and 1978, more than 40 years prior to
the trial, led to the inability of prior
complainants to correctly recollect the
time and circumstances of the original abuse. The Court held that this risked
unfair prejudice
to the defendant and accordingly the propensity evidence was
excluded to the detriment of the
complainants.[92]
These
factors, at times collectively appearing in an individual case, render it
difficult for the prosecution to prove beyond reasonable
doubt its case against
the defendant. Therefore, when faced with cases involving a disparate gap
between the ages of the prior victim
and the complainant at trial, the Court may
find it justified to decide in favour of the Prosecution. This is simply to
redress issues
of trial fairness, and to ensure that juries receive the benefit
of the propensity evidence in order to gain a more complete picture
of the
defendant.[93]
2. Rationalisation #2: propensity evidence as necessarily broad to be flexible and fact-specific
The current assumption of homogeneity may also be rationalised by arguing
that propensity evidence should not be unduly constrained
by attempts to create
a blanket, “consistent” approach. Child sex abuse often involves
abuse of a multitude of victims
in a variety of circumstances, which
demonstrates the need for a flexible and fact-specific approach under s 43.
Distinguishing propensity
evidence and present charges on the basis of victim
age could thus be viewed as inappropriate quibbling over minor details. McGrath
and William Young JJ, when criticising the Mahomed majority, warned
against an “atomistic” analysis of individual events focusing on
“substantial discrete and independent
incremental probative value in the
associated evidence.”[94]
However, while flexibility is paramount to a fair trial and underlies
the fundamental role of the judge as gatekeeper for evidence,
wrongful
assumptions must be corrected to ensure that the Court’s
“discretionary” analysis under s 43 is exercised
in accordance with
psychological realities. This is the case for the judicial misconception that
paedophilic offenders are a homogenous
category. Thus, the many occasions where
the Court of Appeal has explicitly conceded the differences in victim ages, but
ultimately
dismissed those differences, stems not merely from a wrongly-held
assumption regarding the compulsive behaviours of paedophiles,
but also from
judicial cognisance of the unique character of child sex abuse proceedings and
the fundamental necessity of flexibility.
Nonetheless, although the assumption
of homogeneity may be rationalised, it cannot remain tenable when viewed in
light of empirical
research.
VI.
A Psychological Critique of the
Assumption of Homogeneity
A. Paedophilia vs. Hebephilia:
Hebephilia as Distinct from Paedophilia
1. Historical recognition
of hebephilia
Social sciences literature has repeatedly underscored the heterogeneous
nature of child sex
offenders.[95]
Heterogeneity in paedophilia includes categorisations and subdivisions according
to age, sexual orientation and typological
distinctions.[96] Clinical
phallometric assessments employing penile plethysmography, where subjects are
interviewed regarding their sexual history
then presented with audio-visual
stimuli to measure arousal states, have substantiated this heterogeneity. For
example, a study published
in 1986 comparing erection responses to slide and
audiotaped stimuli showed delineation between homosexual and heterosexual
paedophiles,
incest cases, and a miscellaneous diagnostic group, measured with
regard to the differing degrees of
arousal.[97] As a result of the
extant literature, convenient generalisation by therapists and law enforcement
agents of paedophiles as consisting
of a single category has been berated as
displaying “ignorance” and drawing “premature
conclusions” regarding
the characteristics of child sex
abuse.[98]
While there are
many subcategories of child sex offenders, the distinction which has been most
problematic for the Court of Appeal
has been that relating to victim age (and
the corresponding physiological development). Examination of the jurisprudence
above shows
appellate judges to perceive paedophiles as predators attracted to
“children”, whether infants or adolescents. The prevalence
of this
misplaced perception may, however, be linked to the relative novelty of the
delineation between offenders who sexually prefer
pre-pubescent children and
those who prefer pubescent children. Victim age as a factor to discriminate
amongst the general class
of paedophiles did not emerge until the 1950s, where
psychiatrist Bernard Glueck studied and categorised 200 sex offenders based
on
their offence history: incest, rape, paedophile and hebephilia. Glueck defined
“hebephilia” as “sexual activity
with adolescents...as
distinguished from paedophilia, which we limit to children below
puberty”.[99]
Later, Czech sexologist Kurt Freund, the developer of the penile plethysmograph,
invoked Glueck’s terminology of “hebephilia”
as describing the
heterosexual attraction of paedophiles to
adolescents.[100] It was also
Freund who defined the “hebephilia” as the erotic preference for
pubescent victims, corresponding to the age bracket of 11 to 14 for girls
and up to 16 for
boys.[101]
2. Blanchard’s definitive study on hebephilia
Professor Ray Blanchard, incumbent director of the Centre for Addiction
and Mental Health in Toronto, conducted a study, published
in 2009, validating
the existence of hebephilia as a distinct
preference.[102]
The study consisted of a large-scale examination of 881 patients over a decade,
and involved analysis of the correlation between
subjective self-reports and
objective psychophysiologically-assessed erotic responses, the latter evaluated
by volumetric
plethysmography.[103] This is a
phallometric procedure measuring penile blood volume change when exposing
subjects to audio and visual stimuli. Blanchard’s
research was to discern
whether “men who report maximum sexual attraction to pubescent
children have greater penile responses, in the laboratory, to depictions of
pubescent children than to depictions of younger
[persons]?”[104]
Methodologically, stimuli to which a particular subject was exposed
distinguished explicitly between pre-pubescent and pubescent narratives
according to the Tanner classification outlined above. The particular age of the
photographic models was made explicit to the subject
in the audio stimuli, while
also being manifested in their physical maturity (breast, genital, and pubic
hair development proportional
to their classification on the Tanner stages).
Fictional pre-pubescent children were defined as being 5 to 9 years of age
(Tanner
stage 1) whereas pubescent children were 11 to 13 years (Tanner stage
3).[105] This is identical to the
parameters adopted by Freund in his 1981 studies on
hebephilia.[106]
The
results of the study indicated the overwhelming majority of subjects had
attractiveness ratings profiles (gathered from the surveys)
matching the age of
the group to which they were assigned (discerned from the volumetric
plethysmography indexes). Comparisons of
hebephiles within their respective
groups demonstrated that greater penile responses resulted when exposed to
depictions of pubescent
children as opposed to depictions of younger or older
persons.[107] Between-group
comparisons distinguished between men who reported maximum sexual interest to
pre-pubescent children from those who
reported maximum sexual interest to
adults.[108] Although the same
trend was not observed for homosexual hebephiles, this was attributed to this
category’s smaller sample size,
which lessened statistical
power.[109] Blanchard observed
that the study “showed that hebephilia exists, and – incidentally
– that it is relatively common
compared with other forms of erotic
interest in children”, and therefore recommended that the definition of
“paedophilia”
in the Diagnostic and Statistical Manual V be expanded
to include erotic attraction to pubescent
children[110] Whereas he notes
there may be divergences in physical maturation and onset of puberty between
pubescent girls and boys, using the
age range of 11 to 14 years as the
definition for hebephilic preference would not “lose much
precision”.[111]
3. Other studies substantiating the existence of hebephilia
(a) Other biological assessments
Blanchard and other researchers have also conducted various biological
assessments proving the existence of hebephilia as a distinct
disorder to
paedophilia. Paedophiles and hebephiles have been discriminated in terms of IQ,
where those with greater phallometric
responses to younger, pre-pubescent
children (paedophiles) corresponded to a lower IQ than those with a greater
response to pubescent
children (hebephiles) or adults
(teleiophiles).[112] Other
measures separated the two groups by reference to differences in completed
education[113] and
stature.[114] Comparisons using
these factors have shown that hebephiles differ from average population
controls, being intermediate in the academic
qualifications and in stature
relative to paedophiles and teleiophiles.
(b) Implicit Association Test
Implicit measurement techniques have also demonstrated the existence of hebephilia. Such techniques are based on a “response interference paradigm”, which involves subjects rapidly sorting images of models according to age and sexual preference. The associations between child versus adult and sex versus non sex are then examined.[115] Brown and others, in an Implicit Association Test published in 2009, hypothesised that paedophilic would show “distinct patterns of implicit associations between children and sex”.[116] In that study, subjects were required to classify quickly and accurately as possible non-erotic pictures as either adult or child, and words as either sex or non-sex related.[117] “D-scores” would be generated, where scores less than zero demonstrated a greater association between child and sex, while scores greater than zero indicated a greater association between adult and sex.[118] The results of the study confirmed the “large” differences hypothesised between paedophiles and hebephiles, with paedophiles showing an implicit association between concepts of children and sex (D-scores for paedophiles were negative), and hebephiles failing to do so (D-scores for hebephiles were positive).[119]
(c) Analyses of criminal and personal history
Literature examining the criminal and personal histories of paedophiles
and hebephiles has also attempted to prove the difference
between paedophiles
and hebephiles, especially when ascertaining the most appropriate treatment
options for the two. [120]
Generally, paedophiles are older than other sexual offenders, and engage in less
nonsexual criminal conduct.[121]
They are often described as lacking in self-esteem, highly defensive, and
possess a background of dysfunctional
relationships.[122] However, they
have a specific erotic preference for pre-pubertal children and feel the need to
please the victim as opposed to just
pleasing
themselves,[123] which would lead
to a high rate of recidivism against similar
victims.[124] Hebephiles, on the
other hand, are likely to have age-appropriate relationships, a stable family
life, and often even having children
at the same age of their
victims.[125] Causes of offending
are unlikely to stem from true sexual preference, but may be caused by external
stressors.[126] Since the
characteristics of offenders are reflective of and congruent with the
developmental period of their victims, treatment
options for the two classes
should be distinguished accordingly.
B. Criticisms of the Paedophilia-Hebephilia
Distinction
1. Critics of Blanchard’s findings
The above studies show, therefore, that Blanchard’s recognition of
hebephilia is not a novel finding, nor is it unsupported
by other empirical
studies. However, the clinical studies undertaken by Blanchard and his team were
ultimately a means to achieve
the goal of re-defining paedophilia in the DSM-V
to account for hebephilic
offenders.[127] This has not been
without controversy, and indeed the thrust of critical literature has revolved
around the notion that, by defining
hebephilia as a mental disorder, psychiatry
is wrongly pathologising something which is commonplace and even normal.
Critics have argued that sexual preference for adolescent children does
not necessarily imply the existence of a mental disorder,
simply because both
the physiology of a pubescent and adult individual is relatively
similar.[128]
The only reason why sexual conduct with 14-year-olds is condemned by society is
due to the artificiality when determining the legal
age of consent to sexual
intercourse – for example, the Spanish age of consent is 13
years.[129] Accordingly, the
arbitrary manner in which consent has been criminalised consent should not be
the basis upon which a novel mental
disorder is
founded:[130] hebephilia is not a
“dysfunction”, and therefore should not be classified as a mental
disorder.[131] The corollary to
this argument is that difficulties may be experienced by clinicians when
attempting to apply an objective age at
which sexual attraction is considered
“normal”.[132]
2. Responding to Blanchard’s critics
While criticisms of Blanchard’s study may be well-founded in a
psychiatric context, their applicability is limited in a legal
context. First,
the legal age of consent in New Zealand is 16
years.[133] A higher level of
imprisonment is imposable if the child is under 12 years at the time of the
offending.[134] The answer to the
first criticism, therefore, is that at least in New Zealand, any discussion on
propensity evidence is necessarily
constrained by the relevant legislative
provisions. Judges are obliged to apply this threshold, even if deemed arbitrary
or contrary
to what is considered appropriate sexual conduct by psychiatrists:
finding the existence of a mental disorder and criminalisation
of sexual conduct
are vastly different inquiries.
Secondly, in terms of the corollary
argument, potential psychiatric difficulties in demarcating the upper range of
adolescents and
adults also do not translate into legal difficulties. Using the
age of consent as a reference point, courts have correctly recognised,
for
example, that propensity evidence involving a 19-year-old male is inadmissible
in a severance case concerning three other defendants
aged 12, 13 and 16
years.[135] Likewise, in R v
Taua,[136] the Court of Appeal
deemed propensity evidence of a 19-year-old inadmissible in the case against a
12-year old. Thus, psychiatric
difficulties in drawing the line at which
hebephilia ceases to become abnormal does not apply to courts, which are capable
of drawing
at least general distinctions between child sex abuse and non-child
sex abuse.
Finally, such criticisms do not negate the proposition crucial
to this paper’s argument. This paper does not purport to argue
that
hebephilia is a distinct mental disorder or that it should be integrated into
the DSM-V. It simply asserts that there is a fundamental
difference between a
preference for pre-pubescent and pubescent children for the purposes of
propensity evidence. This is enough
if proved empirically, which has been done
by Blanchard and other researchers. Clearly, a difference in sexual preference
for a propensity
analysis does not need to amount to a psychiatric disorder,
before it can be termed a “difference”. The identification
by
Blanchard’s critics of peripheral issues relating to the hurdles
associated with a new clinical diagnosis of
hebephilia[137] does not,
therefore, detract from the essential finding that hebephilia is a distinct
sexual preference and is of high relevance
to the determination of probative
weight in propensity evidence.
C. Application of the Paedophile-Hebephile Distinction to the Court of Appeal Jurisprudence
Recent empirical evidence has demonstrated that hebephilia, defined as a
sexual preference for pubescent children, male or female,
between the ages of 11
to 14 years, is distinct from paedophilia, involving sexual preference for
pre-pubescent children. Since hebephilia
and paedophilia denote different sexual
preferences, it is evident that the current jurisprudence of the Court of
Appeal, outlined
above, fails to account to accord with psychological reality
and developments. However, to reinforce this argument, Blanchard’s
findings may be explicitly applied, by way of example, to the three cases of
Shaw, Lindsay, and Davidson.
In the severance case
of R v Shaw,[138] the
youngest complainant, a 6-year-old, was to be tried in the same case as the
eldest, a 12-year-old. This was because the Court
of Appeal deemed the evidence
of both sets of offending to be cross-admissible against the other. The
defendant in Shaw was assumed by the court to prefer both 6-year-olds and
12-year-olds. An application of Blanchard’s findings to this case
would mean that the Court of Appeal wrongly assigned a higher probative
value when determining the cross-admissibility of evidence:
the eldest
complainant there would comfortably be defined as pubescent, whereas the
youngest is clearly a pre-pubescent child.
The defendant in Shaw
would not be both a paedophile and a hebephile, as they constitute different
sexual preferences. Thus, the fact that the defendant
abused the 6-year-old
complainant at Tanner stage 1 of sexual maturity cannot tend to prove that the
same defendant abused the 12-year-old
complainant, presumably categorised as
Tanner stage 3. While it is difficult to speculate the weight placed on this
similarity in
age by the Court of Appeal when determining probativeness, it is
clear that the Court viewed it as trite and undeserving of attention:
“most obviously, all the alleged offending was against young
girls.”[139]
Blanchard’s findings therefore challenge this banality and dismissive
attitude of the Court when assuming homogenous characteristics
of child sex
offenders, epitomised here as the defendant in Shaw.
The case of
Lindsay v R may also be critiqued in a similar
manner.[140] The majority’s
finding that the propensity evidence involving a 9-year-old was admissible
allowed the jury to consider that
evidence in a trial concerning pubescent girls
aged 14 years. The prior complainant, at 9 years of age, would still be
considered
pre-pubescent, whereas the older female complainants would surely
have begun to show signs of sexual maturity. The majority’s
justification
of the difference once again displayed the assumption of homogeneity: it
amalgamated paedophilia and hebephilia, two
distinct sexual preferences, as a
single propensity, and then ascribed it to the defendant. Quoting
Solicitor-General v Rudd that the “key similarity is the sexual
misconduct between an adult man and a young
girl,”[141] the
Lindsay majority applied Rudd to the facts and held that
“all were young girls in [the defendant’s] care as a trusted
caregiver”.[142]
Mackenzie J, the minority in Lindsay, dissented and argued that
the acts were not sufficiently similar to display a propensity to sexually abuse
young girls. However,
his Honour, like the majority, still assumed that child
sex offenders prefer both pre-pubescent and pubescent children: “any
similarity arises only because of the...age of the
victims.”[143] If
Blanchard’s findings were to be taken into account when deciding
Lindsay, the Court of Appeal would have had difficulty reconciling the
two sets of offending, and perhaps would have reconsidered the probative
value
assigned to the propensity evidence. Further, given Mackenzie J’s strong
dissent regarding the other obvious dissimilarity
relating to the nature of the
two charges, which involved a contrast between sexual grooming and sexual
violation offences, the Court
of Appeal should have given less weight to
probative value in light of the differences in the two charges and the ages of
the complainants.
This is because instead of serving as evidence tending to show
the defendant’s propensity to sexually abuse young girls, the
evidence of
the prior 8-year-old complainant actually militates against the finding of a
propensity, assuming Blanchard’s findings
of heterogeneity are
accepted.
Finally, in the severance application of R v
Davidson,[144] the evidence of
a 5-year-old complainant was deemed cross-admissible against another complainant
aged 12 years (and vice versa).
Again, the Court of Appeal, when engaging in the
s 43 analysis, wrongly based its finding on the assumption of homogeneity,
calling
both children
“pre-adolescent”.[145]
In effect, the Court deemed that all offences against children aged between five
and twelve years were sufficiently similar, though
one of the victims was
clearly a pre-pubescent child, and the other a pubescent one. Accordingly, the
physical differences pertaining
to sexual maturity between the two victims meant
that the defendant would likely prefer one over the other, and is actually
evidence
which does not tend to show the defendant sexually abused one or
the other. The Court of Appeal should have allowed the appeal and severed the
charge
so that the two counts could be assessed separately, given the lack of
probativeness and the heightened risk of unfair prejudice
on the defendant. This
judicial assumption in Davidson (and other cases) occasioning unfair
prejudice clearly shows the need for solutions to be found. Awareness must be
drawn to this
oft-cited but quickly demonised area of law.
VII
Conclusion
The fundamental tenet of the common law is the presumption of innocence.
Detractions from this presumption must be justified. The
current statutory test,
under the Evidence Act 2006 for admitting propensity evidence against the
defendant by the Crown demonstrates
an awareness of this need for justification.
To avoid trial by character, s 43(1) dictates that the probative value of the
propensity
evidence must outweigh the risk of unfair prejudice. Although the
risk of inflaming the jury is inherent in the admission of any
prior misconduct,
such a risk is compounded when abuse involving the innocence of society’s
most vulnerable victims is concerned.
Due to this overwhelming risk of unfair
prejudice, any assumptions upon which a decision of admissibility is based must
be valid
and truly reflect the actual propensity of the defendant.
This
paper has argued that the Court of Appeal holds an invalid assumption regarding
the homogeneity of offenders, an assumption which
does not accurately reflect
the true propensity of paedophile defendants and ultimately leads to artificial
exaggeration of probative
value. It has examined the jurisprudence relating to
the admissibility of propensity evidence in cases of child sex abuse, pointing
out in the jurisprudence an underlying judicial assumption that pre-pubescent
and pubescent children herald the same attractiveness
for sex offenders. It has
shown that this assumption is untenable in light of recent psychological
research, which demonstrates that
child sex offenders have distinct sexual
preferences according to victim age.
Propensity evidence in general is
an area attracting surprisingly sparse literature. Propensity evidence in cases
of child sex abuse
attracts even fewer commentators still. This is despite the
vast amount of litigation revolving around s 43 of the Evidence Act 2006
and the
frequent media publications involving paedophilia. Nonetheless, this does not
relieve the New Zealand judiciary from failing
to take into account evidence,
this time of a scientific nature, crucial to the liberty of New Zealand citizens
faced with allegations
of paedophilia.
[97] William D Murphy and others “Differential Sexual Responding Among Four Groups of Sexual Offenders Against Children” (1986) 8 Journal of Psychopathology and Behavioral Assessment 339 at 350–352.
[103] At 339–340.
[108] At 346–347.
[109] At 348.
[118] At 172.
[131]Bruce Rind and Richard Yuill “Hebephilia as Mental Disorder? A Historical, Cross-Cultural, Sociological, Cross-species, Non-Clinical Empirical, and Evolutionary Review” (2012) 41 Archives of Sexual Behaviour 797 at 803.
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