The Christchurch Civic Crèche Case

Law Reform Index

Law of Evidence - Section 23G

COSA Casualties of Sexual Allegations
Vol 4 No 6
Newsletter July 1997

The use of the Child Sexual Abuse Accommodation Syndrome in evidence, a talk by Ian Freckleton, 12 Jun 1996, Human Rights Commission.

Freckleton opened by explaining how both prosecution and defence have recently begun using "syndromes" to explain why or why not a person has responded in a certain manner. Some of the syndromes used in this way are the Rape Trauma Syndrome ( a sub-set of PTSD); the Battered Woman Syndrome; Pre-Menstrual Tension Syndrome; Repressed memory syndrome; and False Memory Syndrome. For example, the defence might use the Battered Woman or PMT syndrome to explain why a woman might murder her partner in cold blood but still argue that she is not responsible for his death; or use Rape Trauma Syndrome to explain why she told no-one about an alleged sexual attack until 30 years after it happened, but then tries to pursue a conviction.

The most widely used syndrome over the past decade, however, has been the Child Sexual Abuse Accommodation Syndrome (CSAAS). This was first described by Roland Summit in 1983. Summit claimed that sexually abused children typically exhibited this syndrome. It required the pre-conditions of helplessness and secrecy about the abuse, and he claimed that the characteristic sequelae are children who accommodate to the abuse; make delayed, conflicting and unconvincing disclosures and later retract these.

This ‘syndrome’ became known to the courts in the late 1980s, and was used by the prosecution to explain why a child who made contradictory illogical allegations about long distant events and then later said it had never happened, should still be considered to have been abused. In NZ when psychologists first started giving evidence that such behaviour in a child supported the allegation of abuse, several judgements were made that considered that such evidence was inadmissible because it was covert evidence supporting the child’s credibility (something that was supposed to be left for the jury to decide). However, despite these judgements, legislation was passed through intense political lobbying, in the form of the amended Sect 23g, that allows a professional (eg psychologist or psychiatrist) to give evidence that such behaviour is consistent with abuse, even if this is counter-intuitive to what might be expected. Without such evidence, a jury might assume that it is likely that a child who temporarily has made allegations of long-ago sexual abuse but given contradictory confusing testimony, and then has said that actually nothing ever happened, has indeed never been abused.

In Australia, the Appeal Court went the other way from NZ, and has said that significance cannot necessarily be attached to the fact that the child has made a delayed disclosure and later retracted.

It is of interest that the inventor of the CASAAS, Roland Summit, became increasingly alarmed by the use of his syndrome in courts throughout the English-speaking world. In 1992 he retracted his syndrome, admitting that it was based solely on his clinical impressions and was not empirically research-based. He said that it should not be used in diagnosis, and that it was not a syndrome but rather a pattern he had observed, and that although it might be useful therapeutically it should not be transported into a forensic setting. There is no unique pattern of the effects of sexual abuse, and behaviours cannot be easily referable to the occurrence or non-occurrence of past abuse.

Unfortunately, it appears entrenched in the legal system and Freckleton observed that while CSAAS was often used in court, he had never come across a case where Summit’s retraction was mentioned.