According to Whittam and Ehrat (2003) children are ‘a vulnerable group in our society, if merely developmentally’. This vulnerability plus sexual or violent abuse puts child witnesses/victims at a bigger disadvantage in court. According to Eastwood (as cited in Whittam and Ehrat, 2003) common concerns in the criminal justice system are delays, the possibility of seeing the accused, embarrassment when disclosing details and the distress of cross examination. All of these factors contribute to an increase in stress for children inside the courtroom.
Howitt (2006) states that the courtrooms have always been adult environments and generally ‘have lacked orientation to the needs of children’. The number of children witnesses has increased over the years; so protecting them from stressful court experiences has become more important (Tobey, Goodman, Batterman- Fauce, Orcutt & Sachensenmaier, 1995). The use of CCTV technology in the recent years has helped in reducing stress and trauma and helping the child give more accurate testimony (Tobey et al., 1995). A CCTV arrangement usually has children testify in a room close to the courtroom. Their testimony is viewed instantaneously in the courtroom. In a two way CCTV arrangement, the child is able to see what is happening in the court. When a one-way CCTV arrangement is used, the child is not able to see the courtroom (Tobey et al, 1995).
James aged 9, witnessed his mother murder his siblings in 1989. A year later, at age 10, he was asked to testify against his mother. The use of CCTV was denied, and James had to testify in front of his mother. Tobey et al, (1995) question the legal system’s decision. As a result of the court’s refusal of the usage of CCTV, James was possibly re-victimized and suffered greater trauma at the hands of the court. Tobey et al, (1995) pose the question- ” Was justice served?”. The issues raised in this case pertain also to child sexual abuse. When a child takes the stand facing the accused, this can be very traumatic. If the child does not have to face the defendant, the trauma of testifying will be drastically minimized.
The use of protective measures for children who testify has recently increased in the legal system. Confronting the accused is one of the toughest experiences for the child (Flin, Davies, & Tarrant, 1988; Goodman, Taub et al., 1992; Whitcomb, Shapiro, & Stellwagen, 1985 as cited in Tobey, Goodman, Batterman- Fauce, Orcutt & Sachensenmaier, 1995). More often than not, usually in cases of sexual abuse, the offender would have threatened or bribed the child to keep ‘ the abuse a secret’ (Bander, Fein & Bishop, 1981 as cited in Tobey, Goodman, Batterman- Fauce, Orcutt & Sachensenmaier, 1995). This makes testifying even more frightening to the child facing the accused. What is worse is that seeing the accused again may ‘…reactivate memories of the negative experiences…’(Tobey et al, 1995). According to Tobey et al, (1995), testifying in front of the accused can have two effects on child witnesses. The first consequence is that the child may suffer from more psychological trauma and secondly may be so traumatized and intimated that his/her testimony may be inaccurate due to the confusion and intense emotions.
In 1969, Libai (as cited in Tobey, Goodman, Batterman- Fauce, Orcutt & Sachensenmaier, 1995), started to promote child friendly courtrooms. Protective measures have been employed since then and these include screens (that shield the child’s view of the offender), CCTV, videotaped testimony and in certain places the introduction of hearsay has also been accepted in court (Whitcomb 1992, Cashmore 1992, Davies and Noon 1991 as cited in Tobey, Goodman, Batterman- Fauce, Orcutt & Sachensenmaier, 1995). CCTV technology removes children from ‘having to testify in the physical presence of the accused’ (Tobey et al, 1995). Fear is a predominant emotion that children experience in the courtroom scenario as witnesses. In 1992 Goodman, Taub et al as further (cited in Tobey, Goodman, Batterman- Fauce, Orcutt & Sachensenmaier, 1995), interviewed children waiting or having just testified. The majority of the children stated that the worst part was having to testify facing the defendant. In Coy vs Iowa 1988, Justice Blackman, argued that fear and trauma resulting in testifying in front of the defendant traumatized the child further and inhibited the child from saying the whole truth (Tobey, Goodman, Batterman- Fauce, Orcutt & Sachensenmaier, 1995).
Recent years have increased children as witnesses being recognized widely in legislation as being vulnerable and requiring protective measures. One can find these measures in Canada, the UK, the USA, Australia, Scotland, New Zealand, Hong Kong and South Africa as well as in some non- common law jurisdictions. (Scotland.gov.uk, 2007). In England and Wales children under the age of 17, automatically qualify for a range of special measures including CCTV whilst in the USA protection is given to all those under the age of 18 who have experienced physical or sexual abuse. In the USA the decision regarding what kind of protection is used is done on a case-by-case basis. For example, CCTV is not permitted in all states. In all jurisdictions in Australia, protection is offered to children in court, which include CCTV and screens and also the use of videotaped evidence. In 1989, New Zealand introduced measures to make it easier for children to communicate in court and reduce the trauma. Where the offence is sexual, children up to the age of 17 are provided for in the Evidence Amendment Act of 1989. The courts have also extended it to other crimes were child witnesses are included (Scotland.gov.uk, 2007).