The “Perfect” Victim: The Reliance on Demeanour Evidence in Child Sexual Abuse Cases

Author: Tesia Romaniw & Brittany Windsor-Brown

“The way in which child victims and witnesses have been viewed by the justice system has changed dramatically over the years. Some early views can be traced back to the Salem witch trials in 1692.”¹

Introduction

Several factors must be considered when assessing the credibility of a witness or victim during a trial, one of which is their demeanour.² Demeanour evidence is behavioural observations made by either the trier of fact or jury during witness testimony. Triers of fact analyze a witness’s demeanour for sincerity and honesty in determining credibility³ However, how the trier of fact interprets this behaviour may be contentious.⁴ We’ve been warned that demeanour evidence is of little value in the courts. This is because culture, stereotypes, disabilities, and external pressures associated with being in a courtroom influence a person's “normal behaviour,” thereby affecting their “demeanour.”⁵ This blog post explores the use of demeanour evidence in relation to child sexual abuse victims by examining literature and recent Canadian cases. We argue that despite the range of considerations affecting one’s behaviour, the courts continue to rely on demeanour evidence in cases with child victims.

Literature Review

 Demeanour evidence is used to both establish and challenge a child’s credibility.⁶ There is evidence of the court using demeanour to compare and find discrepancies between the child’s initial pre-trial statement, forensic interview, direct examination, and cross-examination.⁷ When there is insufficient evidence or there is a disagreement on thefacts, the outcome of the trial often rests on testimonial evidence.⁸ Thus, rendering the judge or jury to rely solely on assessments of credibility, despite the courts repeatedly stating that trials should not be a credibility contest.⁹ The Supreme Court of Canada states “nonverbal behaviour serves two purposes, namely, helping the judges assess witness credibility and providing cross-examiners ‘valuable insights that may uncover uncertainty or deception, and assist ingetting at the truth.”¹⁰ Certain behaviour is assessed when a child is confiding in police or counsellors. Behaviour is also considered by prosecutors when determining whether to file charges.¹¹ Given the fact that “when disclosing sexual abuse, child victims are expected to display specific emotional behaviour;” ¹² there are prejudices in place atevery stage of the process. Ultimately, “when assessing credibility in actual courtrooms, judges make a variety of inferences from the demeanour of child victims who testify live.”¹³

The use of demeanour evidence is particularly troubling during trials by jury. Juries do not provide explanations for their decisions,¹⁴ therefore, they may weigh demeanour evidence differently, even when cautioned by a judge against it. The Department of Psychology in Kentucky conducted an experiment in 2003 to examine this very phenomenon. In this study, 133 undergraduates served as jurors in a simulated sexual assault trial. The primary independent variable to be examined was the demeanour of the child witness.¹⁵ The experiment demonstrated that jurors consider the demeanour of the child to be salient information. Moreover, while the “mock jurors may have expected a certain amount of emotion from the alleged victim, too much crying was detrimental to the alleged victim’s credibility.”¹⁶

In 2020, the University of Birmingham examined how a child victim’s emotional presentation influences mock juror credibility judgements. They found “. . . child victims who displayed a sad emotional demeanour were rated as more credible by adult mock jurors than other emotional presentations such as anger, happiness, or neutral expressions.”¹⁷ Practically speaking, it is important to note that children who have experienced sexual violence are subject to forensic interviews before testifying in court, naturally resulting in a calmer disposition when asked comparable questions during a trial.¹⁸ Undeniably, a victim is expected to be emotional when testifying during a trial. In examining the results of both studies, one may infer that for a trial to result in a guilty verdict, the judge and jury must see the victim behave in a uniform and stereotypical manner.

Case Analysis

 Through the examination of various cases involving child abuse, we have discovered a few trends regarding demeanour assessments of child witnesses. The trial judge in R v C,¹⁹ stated, “during the course of [the victim’s(N.B.)] evidence-in-chief, as well as her cross-examination, N.B. was remarkably composed and, for the most part, had an extremely good recall for dates, times, and place.”²⁰The judge went on to contradict himself by appreciating the behaviour of the victim while she testified after previously stating that he would not rely on demeanour evidence. He commented on the alleged victim’s behaviour several other times, stating: “I was able to observe her smiling and smirking in response to questions put to her in cross-examination.”²¹ In the judge’s conclusion, although there were other considerations in the reasoning for his decision, he included demeanour evidence in his assessment. The judge then acquitted the accused.

The Ontario Court of Appeal noted in R v D(R)²² that in “assessing K.Y.'s [the victim’s] evidence and finding it credible, the trial judge did say she ‘sounded authentic’ and she ‘sounded like she was recalling real events.’”²³ The Court of Appeal determined that the trial judge did not err by unduly relying on the victim's demeanour to assess credibility. Nevertheless, the trial judge did acknowledge the demeanour of the victim, and it begs the question: if the victim did not sound authentic by the judge’s assessment, would the verdict have been the same?

Interestingly, defence counsel in R v QT²⁴ contested the victim testifying via CCTV, arguing that demeanour evidence is an essential component in assessing and challenging a witness’s credibility. Counsel further proposed that doing otherwise would contradict trial fairness, a constitutionally protected right.²⁵ The court rejected counsel’s argument, stating that the use of CCTV technology is important to reduce the revictimization of children when making a statement.”²⁶ Thus, the court allowed the child witness to testify using CCTV in the presence of a support person. It is admirable that the court acknowledged the need to protect the victim, but it raises an important question and potential point of future study. If a witness’s demeanour is not a valuable and credible piece of evidence, why are the victims unable to elect to testify via CCTV or behind a screen? The accused has the right to face their accuser and, in this sense, if a screen is used, that right is still being upheld.

In R v M.A.R.-S,²⁷ the judge placed significant weight on the complainant's demeanour to determine the victim’s credibility. During cross-examination, the judge commented on the victim’s composure, noting the witness was visibly “discomforted” and “embarrassed,” but was clear in her responses. The judge said: “I took this behaviour as an indication of her credibility and authenticity.”²⁸ In contrast, the accused criticized that the complainant’s demeanour should have been indicative of her lack of credibility, stating that “her evidence should be treated with suspicion.”²⁹

For the dissent, Honourable Justice Steel, as she was then, stated in R v Ramos,³⁰ that “the trial judge relied heavily on demeanour evidence. For example, [the trial judge] stated, ‘the complainant struck me as a polite, intelligent and honest child without any motivation to lie about these incidents.’”³¹ Justice Steel concluded she would have set aside the conviction and ordered a new trial. Regardless of whether the child witness’s demeanour favours the Crown or Defence, there is a serious concern when the courts rely too heavily upon demeanour evidence when assessing the credibility of a witness.

Judge Garg in R v JH³² “caution[ed] [himself] to not place undue reliance on [the complainant's] demeanour.”³³ Despite this caution, the judge commented on several demeanour factors that supported the complainant’s credibility, including: the complainant not being shaken when describing the abuse; providing testimony in a clear and direct manner; and the complainant having authentic emotions.³⁴ In this case, less significance was attributed to the witness's demeanour than in other cases we have seen. The judge noted that he could not determine the credibility of the witness solely based on the expected stereotypical behaviour of a victim of sexual assault. Despite this acknowledgement, the demeanour remained a factor, albeit less prevalent.

Conclusion

 Demeanour evidence is widely criticized for being inconsistent; it is thus particularly troubling when the court uses a child’s demeanour to determine credibility. One notable statement comes from R v W(R), “it may be wrong to apply adult tests for credibility to the evidence of children.”³⁵ Furthermore, the SCC stated, “we approach the evidence of children not from the perspective of rigid stereotypes, but on a ‘common sense’ basis.”³⁶ Given that behavioural responses are subjective, especially those of children, the courts should adhere to the principle emphasized in R v W(R) above.

Despite the court’s emphasis on placing a lower value on demeanour evidence, as exemplified in many of the above cases, they continue to rely on it. Children (especially younger ones) do not necessarily understand the severity of the sexual acts committed against them. Therefore, it is unreasonable for adults to expect child witnesses to display certain behaviours consistent with the “typical victim.” Upon the review of literary sources as well as several Canadian cases, we argue that despite the wide range of factors affecting behaviour, the courts continue to rely on demeanour evidence in cases of sexual abuse against children.

Looking toward the future, there should be changes in how child victims are scrutinized and treated in the justice system. Factors such as culture, cognitive ability, and age impact how children respond to trauma and exhibit behaviour; thus, an assessment of their demeanour may have little correlation to credibility. Realistically, even if we completely removed demeanour evidence as a consideration in the court’s analysis, it would nevertheless exist. Individual biases inherent in our observations are part of human nature and thus unavoidable. Therefore, transparency regarding how much weight is given to demeanour evidence in a courtroom is necessary to assess a fair process.

Endnotes:

¹ Joanna Pozzulo, Adelle Elizabeth Forth, Craig Bennell, Forensic Psychology (Toronto: Pearson Prentice Hall, 2006) at 162.

² R v White, 1947 SCR 268.

³ R v HC 2009 ONCS 56 at para 41.

⁴ R v Salai, 2007 ABCA 30.

⁵ R v Rhayel, 2015 ONCA 377 at para 85.

⁶ Kathryn Rowsell and Melissa F Colloff. “Are Sad Children More Believable? A Systematic Review of the Relationship between Emotional Demeanour of Child Victims and Juror Credibility Judgements.” in Psychology, Crime & Law: PC & L 28:10 (2022) 943.

⁷ R v GJ, 2024 ABKB 548 at para 16.

⁸ Vincent Denault and Victoria Talwar, “The Use of Demeanour to Assess the Credibility of Child Victims in Sexual Interference Trials.” in Child Abuse Review (Chichester: England, 2024) at 2.

⁹ R v GJ, 2024 ABKB 548 at para 21, citing R v W(D), 1991 1 SCR 742.

¹⁰ R v N.S, 2012 SCC 72, p 743–744 in Denault, supra at 2.

¹¹ Ibid.

¹² Ibid.

¹³ Ibid at 10.

¹⁴ Criminal Code, RSC 1985, c C-46, s 649.

¹⁵ Jonathan M Golding et al, “Big Girls Don’t Cry: The Effect of Child Witness Demeanour on Juror Decisions in a Child Sexual Abuse Trial.” in Child Abuse & Neglect (Kentucky: University of Kentucky, 2003) 1311.

¹⁶ Ibid at 1319.

¹⁷Rowsell, supra at 955.

¹⁸Ibid.

¹⁹ In R v C, 2024 ONSC 5073, C (the defendant) was charged with sexual interference, child luring and indecent act in relation to his stepdaughter. The inappropriate touching included: attempted and actual digital penetration; oral sex; inappropriate exposure of his genitals; and the texting of a sexually explicit message.

²⁰ R v C, supra at para 59.

²¹ Ibid at 59.

²² A clear credibility analysis for sexual abuse cases is offered in R v D (R), 2016 ONCA 574. The appellant was convicted for the sexual interference, sexual exploitation, and sexual assault of his stepdaughter over a ten-year period. The complainant testified that the abuse occurred once or twice a year. The accused appealed his convictions on the basis that the trial judge erred by finding him guilty solely by relying on the complainant's evidence as credible.

²³ R v D (R), supra at para 25.

²⁴ In R v QT 2024, MBPC 24, the accused was charged as a youth with sexual assault and incest for incidents against his sister, the complainant.

²⁵ Ibid.

²⁶ R. v. Levogiannis, 1993, 4 SCR 475 at para 14 cited in R v QT, supra at para 8.

²⁷ In R v MAR-S, 2021 MBQB 154, the accused was alleged to have sexually abused his niece when she was between the ages of 9 and 11 years old. The accused was charged and convicted with sexual assault, sexual interference, and sexual touching.

28 Ibid at para 63.

²⁹ Ibid at para 74.

³⁰ In R v Ramos, 2020 MBCA 11, the accused was tried by in a judge-alone trial for sexual assault and sexual interference of his girlfriend's daughter (the complainant) when she was between six and 10 years of age. The complainant testified that accused repeatedly sexually touchedher vagina with his penis, fingers, and tongue, as well as ejaculating on her body.

³¹ Ibid at para 157.

³² In R v JH, 2024 ONCJ 494, the respondent was charged with committing four counts of sexual assault and sexual interference against his biological daughter, the complainant. The victim was eight years old at the time of the offences, which occurred between June 1 and September 10, 2017. Although the complainant was found to be credible, the accused was found guilty on only four of the eight counts; this determination was not due to the complainant’s demeanour but rather was an issue of similar fact evidence.

³³ Ibid at para 38.

³⁴ Ibid.

³⁵ R v GJ, 2024 ABKB 548 at para 19, citing R v W(R), 1992 2 S.C.R. 122 at 132-134.

³⁶ R v GJ, 2024 ABKB 548 at para 19, citing R v W(R), 1992 2 S.C.R. 122 at 132-134.