A Pragmatic Approach to Adjudicating Childhood Sexual Abuse - Jenna Symons

As the conversation around childhood sexual abuse grows, so does the knowledge that the impact this type of abuse has on the victim is lifelong. A misunderstood aspect of this lifelong impact is the time it may take a child to come forward and disclose the sexual abuse to someone they can trust. Historically, this time to process and to ask for help has worked against the victims of childhood sexual abuse as the courts were guided by a strict limitation periods informed by how much time had passed since the last instance of relevant conduct and the victim’s coming forward. In the case of R v KDM (“KDM”), the Manitoba Court of Queen’s Bench (“the MBQB”) affirmed the move away from the prior limitation period’s strict numerical calculation and towards a pragmatic approach that sees that victims of childhood sexual abuse attain justice in order to begin or continue their lifelong healing journey.

In KDM, a child suffered physical and sexual abuse by her father from the age of five to eight years old. To provide an understanding of the pain and fear that ruled the child’s life during this time, the charges her father faced in KDM were, assault, assault with a weapon, sexual assault, sexual interference, incest, and sexual assault causing bodily harm. The issue in KDM was whether the video confession of the child should be admitted as evidence when it was recorded some five years after the last incident occurred. In considering whether the video should be allowed, the MBQB continued a trend of expansion of the idea that matters such as childhood sexual assault cannot be dealt with by strict numerical calculations. The MBQB’s analysis instead detailed a great number of factors and considerations that should be addressed when determining if a confession was obtained too long after the last incident occurred.

The section of the Criminal Code (“the Code”) at play in KDM was section 715.1(1), which states that:

Evidence of victim or witness under 18

715.1(1) In any proceeding against an accused in which a victim or other witness was under the age of eighteen years at the time the offence is alleged to have been committed, a video recording made within a reasonable time after the alleged offence, in which the victim or witness describes the acts complained of, is admissible in evidence if the victim or witness, while testifying, adopts the contents of the video recording, unless the presiding judge or justice is of the opinion that admission of the video recording in evidence would interfere with the proper administration of justice.

Applicable Law the Courts Expanded Upon

The Crown in KDM provided a review of the law as it pertained to section 715.1(1) of the Code. First, the Crown asserted that the purpose of section 715.1(1) of the Code was to address the barriers child victims are faced with while at the same time not interfering with the rights of an accused to a fair trial. Second, there are three primary objectives:

1. preserve an earlier account of the child’s disclosure;

2. minimize the stress and trauma incurred by the child; and,

3. balance the first two with the accused’s right to a fair trial.

Third, a video statement would provide the MBQB with the child’s most accurate and best recollection of events, compared to what the child would be able to recall at trial. Fourth, the quality and reliability of testimony obtained in a smaller, more intimate environment, such as being videotaped, was significantly enhanced. Lastly, the child was required to adopt the videotaped statement such that he could testify and be subject to cross examination at trial.

While not an exhaustive list, some factors the courts consider when considering whether a video statement is appropriate include the following:

• The age of the child: In KDM, the physical and sexual abuse of the child occurred when the child was between the age of five to eight years old;

• The child’s relationship to the accused: The accused in KDM was the child’s biological father. As in most relationships between a parent and a child, it was one that placed the accused in a position of trust. The child lived with both the accused and her mother during the time the alleged abuses occurred;

• The length and frequency of the alleged offence(s): The child in KDM detailed ten accounts of abuse which took place over the span of approximately three years;

• The seriousness of the offence(s): The alleged offences in KDM encompassed two categories: physical abuse and use of violence and fear to control the child as well as sexual abuse ranging from inappropriate touching of the child to vaginal and anal rape;

• Any developmental stages the child may have gone through since the last alleged offence(s): The last alleged offence in KDM occurred when the child was eight years old while the videotaped disclosure occurred when the child was thirteen years old; and,

• The child’s emotional makeup and any evidence of intervening events that might affect the reliability of the evidence: The MBQB noted that the child in KDM was able to understand aspects of the alleged abuse as a thirteen year old that would have been unavailable to a child of five to eight years old, but that this did not impact her statement. The courts also determined that the videotaped interview was conducted professionally and did not influence the child in her testimony.

Time as a factor

Instead of focusing on the amount of time after the last incident occurred and the confession was made, the MBQB looked at reasons why the delay in the child’s disclosure of abuse occurred. This is particularly important when the abuse is of a sexual nature, the alleged offender is in a close relationship with the child, and the alleged offender is in a position of trust. As mentioned above, both these concerns were relevant in KDM.

Children sometimes disclose abuse in a piecemeal fashion, this was the case for the child in KDM as the child was first able to disclose the alleged physical abuse to a teacher she trusted before becoming comfortable enough to disclose the sexual abuse. The explanation for the overall delay in the child’s disclosure to her teacher was classic, the child was afraid. She was afraid of the accused, her biological father whom she lived with, and she was afraid either her mother or herself would be hurt.

Although the video-recorded statement in KDM occurred five years after the last alleged incident, the child provided detailed and unwavering accounts of the alleged abuse that would allow the accused an opportunity to respond.

An appropriate move towards a pragmatic approach

The MBQB was satisfied that the Crown had met its onus for the admissibility of this provision, section 715.1(1), on a balance of probabilities and found no reason to exclude the video-recorded statement.

The MBQB’s affirmation of the move away from a numerical calculation of time to a pragmatic approach to disclosure was fundamental in providing children, a vulnerable group, with a better chance for justice. This understanding, that it takes time to come forward regarding childhood sexual abuse, has been adopted in civil courts as well under the idea of “reasonable discovery”, which mandates that “[t]he limitation for a sexual battery based upon incest did not begin to run until the incest victim discovered the connection between the harm she has suffered and the incest”. Several jurisdictions have amended their respective Limitations Act to eliminate the limitation period for cases of a sexual misconduct nature when, at the time, the complainant would have been a minor.

Although time-consuming, the case-by-case approach the court system has adopted to review the facts of each case demonstrates the courts’ commitment to a pragmatic approach. With a case-by-case review, the courts will be able to better refine, add to, and provide examples of the factors to be considered when determining if a video-recorded statement meets the onus of section 715.1(1) of the Code. Lastly, the more the courts distance themselves from a strict numerical calculation, the more the potential for individuals to come forward increases and from this increase naturally flows the increased potential for healing.