Children's Consent in Sexual Abuse

Discourse & Society
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(Un)reasonable Doubt? the Invocation of Children's Consent in Sexual Abuse Trial Judgments
CLARE MACMARTIN Discourse Society 2002 13: 9 DOI: 10.1177/0957926502013001002 The online version of this article can be found at: http://das.sagepub.com/content/13/1/9
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A RT I C L E
(Un)reasonable doubt? The invocation of childrens consent in sexual abuse trial judgments
Discourse & Society Copyright 2002 SAGE Publications (London, Thousand Oaks, CA and New Delhi) Vol 13(1): 940 [0957-9265 (200201) 13:1; 940; 020609]
C L A R E M AC M A RT I N
UNIVERSITY OF GUELPH
A B S T R A C T . The techniques of discursive psychology were used to analyze the discourse of offence descriptions in criminal trial judgments in recent cases of child sexual abuse in Canada. In certain cases, descriptions of the complaints provided resources that judges mobilized as a warrant for doubt by contrasting childrens negative reception of sexual abuse with the innocuous or positive character of subsequent social contact with offenders. This argument emphasizes the agency of children in consenting to afliate with offenders, presuming that authentic victims can and would avoid further involvement. Although a childs consent to sexual contact is no longer a possible defence under Canadian law, these ndings show how the notion of consent can enter current trial decisions. Recommendations suggest ways of incorporating alternative conceptions of abuse in which repeated contact with offenders is viewed as consonant with childrens dependent relationships with familiar (and often familial) abusers. KEY WORDS:
child sexual abuse, discourse analysis, discursive psychology, fact construction, judicial decision-making, law/legal, social justice
Child sexual abuse has become a pressing social issue over the past 20 years (Hacking, 1992). In Canada, growing public awareness (Painter, 1986), mandated reporting laws and the related commitment of the federal government to address the problem have resulted in a dramatic surge in the number of ofcial reports of child sexual abuse (see R. Rogers, 1990). Part of the governments commitment was expressed in its sponsorship of a national research initiative to investigate the problem of sexual abuse. In 1984, a report by the Badgley Committee suggested that about one half of surveyed females and one third of surveyed males had experienced at least one unwanted sexual act during their lives; about four-fths of these experiences occurred when the informants were
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Discourse & Society 13(1)
children or youths. Few had reported their abuse as children. About one in four offenders was a family member or a person in a position of trust, about half were friends or acquaintances, and about one in six perpetrators was a stranger. To facilitate prosecution of those who sexually abuse children, the recommendations of Badgley (1984) were incorporated in the form of legal amendments to the Canadian Criminal Code and to the Canada Evidence Act (Bill C-15 in 1988 and Bill C-126 in 1993) (Standing Committee on Justice and the Solicitor General, 1993). Reforms have addressed both the evidentiary rules by which sexual offences can be proven and the substance of the offences themselves (Young, 1992). For example, the prevalence of delayed disclosures by victims was recognized through the removal of a one-year statue of limitations for the prosecution of certain sexual offences (Sas et al., 1996). An expanded, gender-neutral denition of abusive behaviour was also implemented to promote justice for male victims and to acknowledge the wide range of activities by which children may be sexually victimized. One change especially relevant to the current article was the extension of protection to children under 14 years of age by voiding their consent to any sexual activity with an adult (Sas et al., 1996). The amendment removed archaic sections of the law that had provided a defence in cases of coercive sex between adult caregivers and children. This alteration is important given the frequency of intrafamilial sexual abuse and extrafamilial cases involving familiar persons such as teachers or counsellors. Similar accommodations, especially in the relaxation of evidentiary requirements for child witnesses, have been enacted in other western countries (Myers, 1996). There has been a concomitant increase in the number of such cases coming before criminal courts. But adjudicative challenges persist in Canada and abroad. Child sexual abuse is difcult to prove in the criminal justice system (DeJong and Rose, 1991). Sexual abuse is typically perpetrated in secrecy (Sgroi et al., 1982). The unavailability of corroborative eyewitness testimony, the frequent lack of medical evidence (Bays and Chadwick, 1993) and the limitations of behavioural indicators of abuse (Poole and Lindsay, 1998) mean that the successful conviction of the offender often relies solely on the oral evidence of the child complainant. It is not surprising, then, that the credibility of child witnesses is frequently a key issue in trials involving sexual abuse. In these aspects, cases of child sexual abuse resemble those involving adult sexual assault (see Renner et al., 1997). However, social justice for child victims may be especially difcult to achieve. Persistent assumptions about childrens incompetencies as witnesses and about the nature of sexual abuse itself may mitigate the potentially salutary effects of both recent legislative reforms and landmark decisions by the Supreme Court of Canada. Young (1992: 16) has claimed that such conventional legal notions, which often have truth-defeating consequences, are deeply embedded into our social and legal fabric. The network of rules in evidence law and the assumptions underpinning such rules constitute a microcosm of societys attitudes toward children and child abuse (Young, 1992: 15). These quotations paint a picture of
MacMartin: (Un)reasonable doubt? 11
the law and of society as distinct entities that somehow inhabit and constitute each other (Fitzpatrick, 1992) in a mutually interpenetrating fashion (Henry and Milanovic, 1996). One reason why legal reforms may not have uniformly emancipatory effects is because of the frequent gap between the law-as-legislation and the law-aspractice (Smart, 1986). In criminal cases of child sexual abuse, this inconsistency may be partly attributable to the circulation of practical social theories about the expected behaviour of children in the wake of victimization. This article focuses on trial judgments in which judges have oriented to the doubt-constructive implications of a particular defence argument. That is, evidence that a child actively sought and/or enjoyed social contact with a known offender following alleged abuse has been marshalled either to acquit the accused or to overturn a prior conviction on appeal. The success of this argument is of concern for two reasons. First, the argument appears to y in the face of legislative reforms. Second, it ignores the ndings of social science research (e.g. Badgley, 1984) which report that abuse typically occurs in the context of childrens dependent, ongoing relationships with known adults. One way of understanding the gap between law as legislation and as practice that is exemplied in judicial decisions about such abuse is in terms of a lack of wider cultural resources for representing sexual violence when it is perpetrated by familiars rather than by strangers. The formulation of sexual crimes is located at the nexus of law and broader social discourse.
DISCOURSE ANALYSIS AND THE LAW
One means of studying the interplay between law and society is the discourse analysis of legal language. The law would not exist without language (Danet, 1980; Gibbons, 1994). Discourse analysis permits the examination of legal decision-making as the instantiation of political ideological positions (Philips, 1998). Written judgments not only express current law, but also shape future law and society itself (Coates et al., 1994). Potentially drawing on the discourse of lawyers, witnesses, previous judgments or the discourse of the broader society, the language of legal judgments represents a public discourse (and not uncommunicated thoughts, attitudes or motivations) that has an impact and is acted upon (Coates et al., 1994: 189). One benet of such an approach is that it bypasses the problems associated with cognitivist research on legal decision-making. Conventional studies in the psychology of law treat legal decisions (public assessments of credibility, determinations of guilt, etc.) as being caused or inuenced by pre-existing cognitive phenomena (attitudes, schemas, beliefs, etc.). For example, survey research has measured the attitudes of legal practitioners or prospective jurors towards offenders, child witnesses and/or child sexual abuse (e.g. Bumby and Maddox, 1999; Saunders, 1986, 1988; Vidmar, 1997). Such attitudes are conceived of as stable, preformed cognitive entities, existing prior to the legal activities they are assumed to predict and shape. It is presumed that carefully constructed questionnaires can
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reliably and neutrally harvest legal decision-makers enduring underlying attitudes. But the constraints of standardized surveys and scales underestimate the complexity and variability of actual legal decision-making (MacMartin, 1999). Moreover, the assumption that one can ever tap attitudes as pure abstract entities, prior to and divorced from situated rhetorical use, has been challenged by discursive psychology. Discourse-analytic studies have made a strong case for respecifying attitudes as discursive practices, as evaluative actions that are not preformed but rather performed (Potter, 1998).1 A discursive re-specication of judicial decision-making focuses on the discursive practices and resources that judges use in their rulings. Such discourse constitutes a site at which the construction of sexual violence might be analyzed. I now turn to a consideration of studies that testify to the challenge of adequately representing sexual assault in judicial discourse.
ANOMALOUS THEMES IN JUDICIAL DISCOURSE
Discourse analysts have reported the presence of anomalous themes in judicial decisions concerning the sexual assault of women and/or children. Coates et al. (1994) analyzed a random sample of Canadian judicial judgments in the Yukon and British Columbia. A computerized database called QuickLaw (which included judgments between 1986 and January 1992) was used to examine 12 judgments involving six women and six children as complainants. Cases involved two acquittals, ve convictions and ve guilty pleas. The guilty cases, by denition, were sentencing decisions. The ve convictions appear to have included one trial judgment (the phase of a trial during which acquittal or conviction is decided) and four sentencing decisions. One case involved a stranger assailant. Five anomalous themes were identied: the characterization of sexual assault in erotic or affectionate terms; mention of appropriate resistance by the victim; judicial orientation to the good character of the offender (which was sometimes accomplished by depicting the criminal act as an isolated event); the grammatical omission of the agent of the assault; and the separation of sexual assault from violence in terms of the impetus for the assault. Judicial distinctions between sexual assault and violence were also reported in an analysis of 63 British appeals against sentence in cases of fatherdaughter incest. Mitra (1987) noted that judges treated sexual abuse and the presence of violence as separate and unconnected in situations in which the offenders used force. Analysis of some judgments raised questions about whether the court accepts violence as an aggravating factor in sentencing. Coates et al. (1994) reported two differences between judgments involving child complainants and adult (female) complainants. The few cases in which decisions contained descriptions of sexual assault as intrinsically violent had child complainants. Furthermore, unlike women, children were not criticized for failing to resist their assailants. The authors suggested that, in the case of women victims, a model of assault involving male-to-male combat is mobilized. This argument dovetails with that of Renner and Yurchesyn (1994) regarding the inappropriateness of a legal expectation of resistance by victims. These
authors disagreed with the decision to redene rape as sexual assault under an amendment to the Criminal Code in 1983. A comparison of cases of physical assault, sexual assault and robbery in Nova Scotia, Canada showed that the severity of sexual assault is measured by the level of physical violence in a manner analogous to the crime of physical assault. Legal and social expectations thus demand that women be visibly injured to be seen as victims. But because sexually assaulted women and children, like victims of theft, generally choose not to resist (as a means of preserving their lives and preventing further injury), the analogy to physical assault disadvantages victims. The metaphor of sexual robbery was offered as an alternative. A womans sexuality is reframed as property (her own, rather than that of a male partner or father) so that the absence of resistance and lack of physical injury characteristic of sexual assault cannot be used to undermine the severity of this crime (Renner and Yurchesyn, 1994). We might understand the anomalous themes and their troubling ideological effects reported by Coates et al. (1994) in terms of the institutional actions performed by judicial language. That is, the problematic features of such discourse may partly be a product of judicial adherence to legal requirements underwriting the judges decisions. Constructions such as nominalizations (e.g. the assault occurred rather than he assaulted her) may be viewed as having the exculpatory effect of obscuring the identity and agency of offenders. Yet the use of a nominalization may also permit the treatment of an event as a crime (and concomitantly facilitate conviction) by allowing for the separation and satisfactory demonstration of the necessary elements of the offence under criminal law: The act that is said to be required before there can be criminal conduct is known as the actus reus (Mewitt and Manning, 1994: 129). The identity of the offender is an element separate from the establishment of the criminal act. With respect to the judges use of a sexual lexicon in Coates et al. (1994), the law requires that in proving that a sexual assault occurred, the sexual or carnal context of the assault [be] visible to a reasonable observer (Martins Annual Criminal Code, 1992: 431). In Coates et al. (1994), judicial orientation to the presence or absence of resistance by women may have been directed at defence claims of complainants consent to sexual activity.2 Furthermore, judicial distinctions between sexual assault and violence in sentencing decisions given in Coates et al. (1994) may be bound up with differentiations among three levels of sexual assault in Canadian law, and the different sentencing limits applied to each. The rst level of sexual assault (which involves the intrinsic violence of the assault itself ) is distinguished from the second level (which involves use of a weapon, threats to a third party, the causing of bodily harm to the victim, or participation as a party to an offence committed with other accused) and the third level (involving wounds, maiming, disguring or endangering the life of the victim) (Ruby, 1994). Beyond these legal considerations, however, there may be even more basic challenges involved in the representation of sexual violence. Judicial language in decisions of this kind may reect a false dichotomy between consensual sex and stranger rape, according to Coates et al. (1994). They used the concept of
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interpretive repertoires (Gilbert and Mulkay, 1984; Potter and Wetherell, 1987, 1995) to suggest that there are cultural narratives or vocabulary for consensual heterosexual sex and for stranger rape but none for the more typical cases in which the assailant is known by the victim. Analytic attention to the deployment of discourses of stranger rape and consensual sex highlights a possible lack of alternative discourses to describe many victims experiences of sexual assault. Insight is thus offered regarding the possible limits on contemporary conceptualizations of victimization. Although Renner and Yurchesyn (1994) did not employ discourse analysis, they make a similar contribution by examining legal metaphors and scripts of victimization in order to articulate taken-for-granted cultural assumptions that may have oppressive consequences for victims. What can we make of some of the differences reported by Coates et al. (1994) in judicial decisions involving women and children as complainants? As suggested previously, a judicial focus on womens failure to resist their assailants may revolve around a common defence argument in cases involving the sexual assault of adult women: that the complainants sexual activity with the accused was consensual and, therefore, lawful (see Coates, 2000). Testimony about physical resistance on the part of a woman underscores her lack of consent to sex. In this regard, the dichotomous discourses of stranger rape and consensual sex, and the absence of available alternative discourses to represent sexual assault by an acquaintance or a partner, might themselves be implicated in the raising of reasonable doubt about such allegations. When considering the child complainant, however, it is important to note that no sexual contact of any kind between an adult and a child is permitted under the law. In criminal trials involving child sexual abuse, a prevalent defence argument is that no sexual contact occurred (MacMartin, 1999). Children cannot legally give consent to sexual activities with adults (Sas et al., 1996). Thus, evidence that a child resisted abuse is not germane because the issues of consent and nonconsent are moot. Nevertheless, the discourse analyses of child sexual abuse judgments reported in this article demonstrate that the notion of consent can still be mobilized to raise doubt, albeit in an alternative form. In such cases, the implausibility of a complaint of sexual abuse is tied to a different aspect of a childs capacity to give consent not to sexual abuse, but to ongoing and repeated social contact with a familiar, or even familial, accused. Reasonable doubt has been raised in cases in which there is evidence that, in the wake of alleged abuse, children willingly seek out or fail to avoid contact with those accused. This warrant for doubt invokes a rhetorical contrast between the childs negative reception of the sexual offence itself and the childs apparently neutral or positive experience of the relationship with his or her alleged perpetrator, freely chosen in the aftermath of alleged abuse. Certain judges appear to draw on a practical theory that innocuous or positive social contact with alleged abusers is incompatible with allegations of prior abuse. The purpose of this article is to report on analyses of such judicial discourse. The analysis of recent written trial judgments shows how the sequence and
details of certain judges descriptions of sexual offences may offer rhetorical resources for reasonable doubt. The specic goal of the analysis is to demonstrate how the descriptions of the complaints work to establish or undermine as common knowledge the idea that social contact between the accused and the complainant is inconsistent with previous abuse.
Materials and analytic procedures

The analyses reported here represent one set of ndings from a larger discourseanalytic study of recent judicial decisions in Canadian criminal trials involving child sexual abuse (MacMartin, 1999). The judgments come from two sources. Quicklaw, a regularly updated set of on-line electronic databases of written Canadian legal judgments, was used (as inspired by Coates et al., 1994) to draw trial judgments in criminal cases involving child sexual abuse in Ontario, Canada from 1993 to 1997.3 Judges, not juries, were the triers of fact.4 Each judgment contained a description of the offence(s) and the judges reasons and decision (acquittal or conviction) regarding each offence. A second set of (supplementary) data consisted of two published decisions on appeals against trial in the Ontario Court of Appeal (Regina v. M.G., 1994; Regina v. W.S., 1994). These decisions were cited in one of the trial judgments from Quicklaw and addressed the same defence argument arising in the Quicklaw sample. This study uses discourse-analytic techniques for the study of fact construction within discursive psychology (Edwards, 1997; Edwards and Potter, 1992; Potter, 1996; Potter et al., 1993). The goal of a criminal trial is to decide what really happened (Philips, 1993); the goal of the analysis of fact construction is to examine how fact and doubt are constructed in and through descriptions and accounts. The project of fact construction is allied with, overlaps, and is inuenced by rhetorical psychology (Billig, 1989, 1996 [1987]), which stresses both the logical and persuasive features of argumentation (Antaki, 1994). In making their rulings, judges give reasons that promote, for a variety of audiences, certain versions of the world as factual or persuasive. The study of fact construction also draws upon conversation analysis and studies of talk-in-interaction. Nevertheless, the analysis of monologic texts, such as newspaper reports, gures strongly in discursive psychology (e.g. Edwards, 1997; Edwards and Potter, 1992; MacMillan and Edwards, 1999; Potter, 1996).5 The current analysis focused on the situated character and action orientation of judicial texts, examining how offence descriptions were linked to evaluations of the plausibility of the abuse, given the evidence of complainants post-abuse contact with those accused.
Analysis
Candidate instances were identied in which judges oriented to the potential implausibility of the alleged offences on the basis of testimony about complainants post-abuse contact with those accused. Attention was given to the
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judges narrative constructions of the complainants allegations: how did such descriptions make available inferences regarding the reasonableness of the practical theory that children who had actually been abused would avoid further contact with their offenders? In discursive psychology, one aspect of the practical use of narrative construction is to show the inevitability of actions through narrative sequencing (Edwards, 1997; Edwards and Potter, 1992; Potter, 1996). The plausibility of an account can be enhanced by situating it within a narrative sequence of events in which the account seems necessary or inevitable. Conversely, the plausibility of an account can be undermined by placing it within a narrative trajectory in which the account appears to be unexpected and, therefore, dubious. Judges third-person descriptions of the alleged sexual offences, including details of how complainants reacted to the experience of abuse, offered resources for assessments of credibility in light of evidence that complainants permitted, sought and/or enjoyed post-abuse contact with their alleged perpetrators.6 A judicial report of the testimony of the complainant works up the stance of the complainant toward the abuse and the abuser, which permits key inferences regarding the plausibility of post-abuse contact. The analysis featured below focuses on two sample cases of intrafamilial abuse involving contrasting decisions of acquittal and conviction. These ndings are supplemented by analysis of another case in order to illustrate the range of rhetorical variations in the judgments. Cases 1 and 2 both involve female complainants of similar age at the time of their alleged abuse. The allegations consist of physically intrusive sexual acts perpetrated by the complainants stepfathers. However, in Case 1 the judge denies the plausibility of the childs post-abuse contact with her stepfather and, concomitantly, the complaint of sexual abuse. In Case 2, the judge afrms the plausibility of both the abuse and of post-abuse contact. Discursive-psychological concepts enrolled to illuminate the analysis of fact and doubt construction in the judgments include internal focalization, category entitlements, script formulations, emotion discourse and rhetorical contrasts. It will be seen that the action orientation of offence descriptions can be explicated in terms of the themes of extrematization, normalization and/or abnormalization (see Potter, 1996). Excerpt One is from Case 1 of the Quicklaw sample. The judgment reports that the complainant M. alleged two episodes of sexual abuse by her stepfather when she was 11 years of age.
Excerpt One, Case 1, acquittal 1 2 3 4 5 6 7 [para5] The evidence reveals that during these periods, the accused from time to time baby sat all three children. On two occasions, one in the 1991 period and the other in the month of November 1992, the complainant says that her step-father the accused, sexually assaulted her or touched her with an object for a sexual purpose. It was her evidence that while playing with the accused in the living room, and that
MacMartin: (Un)reasonable doubt? 17 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 playing involved some tickling and also may have involved the other children according to the accused, at a certain stage M. says that her step-father forced her into her bedroom on the pretext of conducting an examination to see if she had intestinal worms. On both occasions, according to her testimony, he used force to rstly, bring M. into her room and then to hold her hands and at times her head down while he inserted his nger, penis or some other object into her anus. He was holding her, on both occasions, over the bed and was in a position where he was located behind her as he held her. According to M., she resisted both the movement into the bedroom and then secondly, the events that took place while she was held over the bed. She said he was simply too strong. [para6] Although, it is her testimony that she did not have an opportunity or did not observe the object that was inserted into her, it caused her sharp pain and she described the pain like that from a needle. She did not at any time before or after observe her stepfather dressing partly or fully or undressing. [para7] She said that the pain continued following each assault, but she did not consult her mother or the doctor because she attributed it to growing pains. M. says she did not tell anyone for a time until she eventually told her best friend and then hereafter her mother. She said that her step-father told her not to say anything after each event, as he would get in trouble with her mother C. [para8] Following each of the alleged assaults, both the accused and the complainant returned to the living room and resumed watching television and talking.
Excerpt Two is from Case 2 of the Quicklaw sample. It describes experiences of long-term abuse beginning when the complainant M.L. was about 10 years old. She alleged multiple episodes of vaginal rape.
Excerpt Two, Case 2, conviction 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 [para8] The complainant testied that in January or February 1991, the accused began touching her chest under her clothing and hugging her when no one else was within sight. She said she did not like him doing that and she felt weird about it. She was then ten and a half years of age. [para9] She said the touching changed in the summer of 1991. She awoke one night to nd the accused pushing himself into her when she was sleeping on a comforter on the oor. There was no bed at the time in her bedroom, and that was later conrmed by her mother. She said she felt scared and it hurt a lots [sic] in her vagina. His penis was inside her. She could not recall what she did, if anything. She said he nally took out his penis and left and she felt very scared. She subsequently noticed blood on the comforter. She had not started to menstruate until April 1992, and so she did not
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Discourse & Society 13(1) 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 know why blood was there. She said she did not know then what sexual intercourse was, but it happened again regularly three or four times per week until October 1991 when she left to live with her father. For the rst two months she felt pain during and after these incidents. Under cross-examination she placed the start of sexual intercourse at June of 1991. The accused would touch her vagina and breasts before and after intercourse and a few times he told her to touch his penis. She said that these sexual acts continued on weekend visits to her mothers residence after December 1991. [para10] In October 1992, M.L. returned to her mothers home. When asked why, she said her father was beating her and she could be with her friends and sisters again. She used the bed which was now in her bedroom, and the accused continued to have intercourse with her, now almost daily, until about November 10th, 1992.
EXTREMATIZATION AND COMPLAINTS OF ABUSE
Let us begin by considering discursive features common to both excerpts, despite the contrasting decisions enacted in the judgments. Both trial judgments include judges third-person descriptions of the sexual offences alleged by complainants. The discursive concept of footing is relevant here. In terms of footing, people may make their own claims, or they may report claims of others; and when they report claims they can display varying degrees of distance from what they are reporting (Potter, 1996: 122). All of the judgments included constructions that footed the judges as the animators or relayers of testimony authored by the complainants and other witnesses (see Levinson, 1988): for example, the complainant says (Excerpt One, Case 1, l. 4); The complainant testied (Excerpt Two, Case 2, l. 1). Before judges evaluate the credibility of the evidence, they must listen to it.7 Their initial role in hearing the evidence is displayed in this type of third-person reporting. Indeed, this sequencing of the different roles of the judges at different stages of the trial is reected in the textual organization of the judgments in which descriptions of the evidence usually preceded judges evaluations and ndings. Besides the footing of the descriptions as third-person reports, the accounts of the two offences in Excerpts One and Two share other characteristics. Both narratives contain elements that extrematize the sexual offences in terms of their coerciveness, physical intrusiveness and their multi-episodic character. On the one hand, extreme case formulations (Pomerantz, 1986) are often a useful feature in the rhetorical design of event descriptions, including complaints; on the other hand, the very extremeness of such constructions makes them susceptible to ironization or doubt (Edwards, 2000).8 This tension is bound up with a consideration of the ways in which judicial descriptions of the offences contribute to assessments of credibility given that the complainants had post-abuse social contact with their alleged offenders. Consider lexical details attesting to the violence perpetrated by the accused in
both cases. In Excerpt One, Case 1, multiple variations on the word force (forced, l. 10; used force, l. 13) and hold (he was holding her, l. 16; he held her, l. 17) use repetition to underscore the coerciveness of the acts allegedly perpetrated by the accused. Furthermore, the extreme case formulation he was simply too strong (l. 20) indicates that whatever the complainant tried to do to avoid the abuse had no effect. The strength of the perpetrator, and the danger that his superior strength poses to her as a child, is emphasized in this judicial report. In Excerpt Two, Case 2, the force of the accuseds actions similarly promotes the inherent violence of rape, begun when the complainant was utterly defenceless in a state of sleep: She awoke one night to nd the accused pushing himself into her (ll. 78, italics added). Furthermore, these experiences are alleged to have occurred more than once. In Excerpt One, Case 1, there are references to two occasions (l. 3) and the repetition of both occasions (ll. 12, 16). In Excerpt Two, Case 2, sexual intercourse is described as a regular, frequent occurrence: it happened again regularly, three or four times per week (ll. 1718) and, later, almost daily (l. 30). Another way in which the accounts of the offences are extrematized is through references to the physical pain experienced by the complainants. Excerpt One underscores the intensity and duration of the complainants pain in Case 1. The abuse is described as causing the complainant sharp pain (l. 23) using the simile like that from a needle (l. 24), pain that continues after the assaults (l. 27). In Excerpt Two, the judge reports the complainants testimony that it hurt a lots [sic] in her vagina (l. 11) and that subsequent to the assault the complainant saw blood on the comforter (l. 14). The trauma of the rape is partly conveyed by the description: he nally took out his penis, ll. 1213). The adverb nally marks the unbearableness of this painful, violent act for the victim by depicting the rape as seemingly interminable. Such subjective details build up the violent, intrusive nature of the alleged offences.
INTERNAL FOCALIZATION
A report based on tactile perception, especially physical pain as an embodied, involuntary response to violence, grounds the authority of the account as the rst-hand experience of victimization.9 The subjective perspective of the complainants is preserved in the offence descriptions not only in terms of judges orientation to the sensory experiences of the witnesses but also to limits on those perceptions. In Excerpt One, Case 1, for instance, tactile sensations constitute the limited sensory information available to the complainant who did not have an opportunity or did not observe the object that was inserted into her (ll. 2123). An extreme case formulation, not at any time (l. 24), afrms the inability of the complainant to observe her stepfathers state of dress. Such visual details might have specied the exact nature of the intrusive acts reported in the allegation. The absence of visual information no doubt potentially undermines the precision and persuasiveness of the complaint; however, its ironizing potential is hedged by its position within a subordinate clause (Although, l. 21), the effect of which is
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to afrm the complainants experience of pain and therefore of an intrusive assault. The limitation of the narrative to that which is perceptually available to the complainant promotes the internally focalized character of the complaint. Potter (1996) has shown how the reporting of subjective details can augment the authoritativeness of a witnesss account. He used the narratological concept of internal focalization (Bal, 1985; Genette, 1980) to indicate how a narrative constructed from the point of view of an individual character accesses that persons thoughts and feelings. A reader exposed to such an internally focalized account watches with the characters eyes and will, in principle, be inclined to accept the vision presented by that character (Bal, 1985: 104). In the courtroom, the acceptability of evidence is predicated on the general rule that a witness must have perceived the fact about which he or she is testifying with his or her own senses (Sopinka et al., 1992: 8667). Such subjective details build up a sense of the complainants as witnesses and authentic victims of sexual abuse. The notion of category entitlements acknowledges that certain categories of persons (e.g. witnesses, victims) have entitlements to experience or knowledge, and are treated as experienced or knowledgeable (Potter, 1996). Although category entitlements can be deployed exibly, that is, at times being taken for granted (Edwards and Potter, 1992; Potter, 1996), the contested nature of the complaint in a trial means that the experience claims of the complainant must be demonstrated rather than assumed. In this sense, the category entitlement of a complainant to report on his or her own victimization is constructed through the provision of subjective details derived from the experience of abuse.
SCRIPT FORMULATIONS OF ABUSE
It was previously noted that the two descriptions of abuse in Excerpts One and Two are extrematized through their representation of more than one episode of sexual assault. This is particularly relevant with respect to Excerpt Two, Case 2. The judges description of the complaint uses temporal adverbs (regularly, l. 17; now almost daily, l. 30), references to extended time frames (until October 1991, l. 18; until about November 10th, 1992, ll. 3031), quantication terms (three or four times per week, ll. 1718) and modal verb forms (would touch her vagina and breasts, l. 22) to underscore the quantity and regularity of the assault episodes and the actions that comprise them. In terms of fact construction, frequent events are robustly reportable; descriptions of regular events may constitute script formulations, ways of describing actions as routine and expectable (Edwards, 1994). Although the depiction of routine actions may normalize them in many contexts, this effect is not inevitable. Indeed, the formulation of sexual abuse in Excerpt Two, Case 2 represents a pathologizing script that underscores the transgressiveness of the offence (see Edwards, 1994). However, the repetitive, formulaic character of accounts of multiple episodes of abuse may open up such allegations to challenge. Scripted descriptions that work
up the invariance of assaultive actions may be undermined on the basis of their articiality. The ironizing implications are connected to a practical theory that authentic multiple episodes of assault typically involve a variety of kinds of sexual activities perpetrated by offenders (Frohmann, 1991). That is, the very multiplicity of events projects the likelihood of episode-to-episode variability. In the event description in Excerpt One, Case 1, references to both occasions, (ll. 12, 16) and Following each of the alleged assaults (l. 34) mark the actions of the accused and the complainant as invariant across the two instances. The pretext ascribed to the accused in initiating the assaults (ll. 1012), and the actions occurring immediately before (ll. 68) and after them (ll. 3436), are constructed as identical on both occasions. In contrast to the case featured in Excerpt One, the case appearing in Excerpt Two constructs variability in terms of a sequence of escalating sexual activities that begin with the gradual grooming of the child by the accused (the accused began touching her chest, l. 2). In terms of the rape scenarios contained in the description, the judges report of the complainants evidence refers to variations in the kinds of abusive actions perpetrated (a few times he told her to touch his penis, l. 23). Such details promote the authenticity of the allegations.
CONSTRUCTING COMPLAINANTS ( NON ) COMPLIANCE
In the judges description in Excerpt Two, Case 2, we saw how script formulations can emphasize the aversive character of routine abuse. But it is the conjunction of the aversive with the routine that potentially problematizes an allegation of abuse with respect to the management of the complainants accountability. The argument goes as follows: if abuse is both unpleasant and predictable, wouldnt the victim be resolved to avoid it by either disclosing the abuse or severing contact with the accused? A key difference in the offence descriptions in Excerpts One and Two concerns the absence and presence, respectively, of emotion discourse. A closer look at Excerpt Two, Case 2 demonstrates how the emotion discourse of trauma can operate as a resource for upholding the plausibility of the complaint. It was mentioned earlier that the detailing of subjective thoughts and feelings is a resource in the building of internally focalized accounts (Potter, 1996). Emotion discourse is frequently deployed in narrative and rhetoric: emotion terms occur not merely as one-off descriptions of specic acts or reactions but as parts of interrelated sets of terms that implicate each other (syntagmatically) in narrative sequences, and also (paradigmatically) in rhetorically potent contrasts between alternative descriptions (Edwards, 1999: 279). Excerpt Two, Case 2 includes the judges report of the complainants subjective response to the accused and to the abuse in its initial stages: she did not like him doing that and she felt weird about it (ll. 45). The mention of dislike and the inclusion of the adjective weird depict the negative reception of the abuse by the complainant, possibly implicating future self-protective actions on her part. However, weird is systematically vague (see Edwards and Potter, 1992). Its lack of specicity promotes the inchoate discomfort of the complainant while denying her a developed
22
moral awareness about the transgressive nature of the offenders actions. The age-based description (see Wooftt, 1992) of the complainant in the very next sentence, She was then ten and a half years of age (l. 5), ties the limitations of the complainants understanding to her extreme youth. The complainants response is thus worked up as an unconscious, automatic reaction rather than as a sophisticated social judgment that might compel action on her own behalf (see Edwards, 1999). The muted construction of discomfort is upgraded to fear in that portion of Excerpt Two in which the judge reports the complainants testimony about the initial rape. The complainant wakes up to nd the accused raping her: She said she felt scared (l. 10, italics added); She said he nally took out his penis and left and she felt very scared (ll. 1213, italics added). The addition of very in this second reference intensies her fear, even after the assault is over and the perpetrator has left. This narrative sequencing constructs her traumatized reaction both as externally caused by the accused and as a general, ongoing state. This construction is accomplished in part on line 13 by the absence of an explicit reference to the accused as the intensional object of the complainants fear. Moreover, the judge reports the complainants fear as a private, internal state rather than in terms of a public display (see Edwards, 1999). There is a double aspect to this extrematization of the complainants fearfulness. Her fear of the accused is so great that she appears to have been too afraid to express her feelings overtly. The judges repeated mention of the complainants resulting fear works back rhetorically on the actions of the accused, constituting them in no uncertain terms as traumatic for the complainant (see Buttny, 1993; Edwards, 1999). At the same time, her fear operates prospectively in shutting down inferences that she could reasonably be expected to take action on her own behalf. Following the initial reference to the complainants fear and pain (ll. 1011) and the mechanics of the rape itself (His penis was inside her, l. 11), the judge reports that the complainant could not recall what she did, if anything (l. 12). A professed inability to remember, though potentially undermining of the persuasiveness of accounts, is here an emblem of authentic victimization. Difculty in the recollection of the details of a traumatic event, when constructed as an effect of that trauma, can promote its facticity (MacMartin and Yarmey, 1999). The category entitlement of the complainant as a traumatized victim is thereby advanced. In Excerpt Two, the paralyses of both mind and body are mutually implicated in working up the complainants state of shock. The construction of shock and trauma provides a warrant for the complainants compliance, not just during the initial rape, but in relation to the many subsequent episodes of sexual assault. A very different version is constructed in Excerpt One, Case 1. The complainants reception of the abuse is grounded in terms of public action rather than private affect. Unlike the offence description in Excerpt Two, Case 2, no report is given of the emotional reactions of the complainant in Case 1. The judges description in Excerpt One, Case 1 extrematizes the complainants noncompliant response: According to M., she resisted both the movement into the
bedroom and then secondly, the events that took place (ll. 1819, italics added). This kind of itemizing emphasizes the sustained nature of the physical resistance displayed by the complainant in her refusal to cooperate with the violent actions of the accused. The judges depiction of her physical resistance marks her incontrovertible noncompliance with the abuse, implying her cognitive assessment of the actions of her stepfather as transgressive and something to be avoided at all costs. This brings us to a consideration of the way in which judicial descriptions of the complaints construct the cognitive states and related knowledge entitlements of the complainants. Such descriptions constitute resources for evaluating the credibility of the allegations.
KNOWLEDGE CLAIMS AND CATEGORY ENTITLEMENTS
In Excerpt Two, Case 2, the judges report of the complainants testimony attests to her limited knowledge of sexual matters. For instance, in the aftermath of the initial episode of rape in 1991, the complainant is described as noticing blood on the comforter (l. 14). We might assume this blood to result from hymenal rupture during the sexual assault. Interestingly, the very next sentence orients to the sexual immaturity of the complainant as the reason for her lack of understanding: She had not started to menstruate until April 1992, and so she did not know why blood was there (ll. 1416, italics added). At rst glance, this statement seems confusing. We might conclude that the judge is reporting an incorrect assumption on the part of the complainant, that is, an assumption that blood comes only from menstruation. But here the judges reference to the fact that the complainant had not yet achieved menarche works up her category entitlement as a witness lacking knowledge about reproduction and other sexual matters at the time of the initial rape. This reference to the complainants sexual immaturity may provide a warrant for her lack of understanding of the social meaning or moral signicance of the actions perpetrated by the accused. Possibly implied is the cultural assumption that only once girls have started to menstruate are they informed by adults about the physical, social and moral aspects of sexual intercourse, including the physiological signs of the loss of virginity. The judge then reports another limitation of the complainants knowledge at the time of the rst rape: She said she did not know then what sexual intercourse was (ll. 1617). This construction could be called a hindsight insertion. The temporal deictic marker then (see OConnor, 1995) connes to a certain point in time the complainants lack of requisite knowledge to label these events. Presumably, a claim of ignorance on the part of a witness may work to undermine the facticity of her testimony on the basis that she is incapable of providing an informed account. But the report in Excerpt Two does not represent an admission that the complainant was unable to bear witness to these events in an accurate manner, as we can see from the clause that follows: but it happened again regularly three or four times per week until October 1991 when she left to live with her father (ll. 1719). The adversative conjunction but signals a rhetorical
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contrast (Edwards and Potter, 1992; Potter, 1996) between the complainants lack of knowledge of the cultural terminology of sexual intercourse and the fact of its regular occurrence. The use of it draws authoritatively on the prior mention of sexual intercourse while simultaneously providing a nameless gloss for the experiences that the complainant could not meaningfully categorize at the time of the assaults. The unmodalized it happened uses an empiricist style of discourse (see Edwards and Potter, 1992; Gilbert and Mulkay, 1984; Potter, 1996) that promotes the complainants certainty regarding the commission of the physical acts. The judges summary thereby grounds the objective reality of the actions of the accused in the complainants sensory perceptions which are distinguished from her concurrent inability to interpret these actions as sexual intercourse, and more generally, as something transgressive that should be stopped. The hindsight insertion interpolates into the course of the narrative knowledge or awareness gained subsequent to the episode of abuse. This discursive device operates retrospectively on the state of knowledge or awareness possessed by the complainant at the time of the alleged event.10 Its design shores up the credibility of the complainant in making sense of why she did not disclose the abuse until late 1992. Such a construction, in tandem with the earlier reference to the complainants sexual immaturity, depicts her as an innocent (that is, sexually unsophisticated) victim. Her inaction on her own behalf is thereby treated as reasonable, especially in light of her traumatized, fearful reactions mentioned in the judicial summary of her testimony. Thus, the notion of category entitlements can, in the discursive invocation of the category of an unknowing child, include ignorance entitlements (as opposed to knowledge entitlements). Ignorance entitlements not only excuse a child witnesss lack of understanding but work up her ignorance as an authentic feature of her experience. A different picture emerges of the complainant in Excerpt One, Case 1. Paragraph 7 points to the complainants misunderstanding of the cause of her lingering pain (l. 29). This description of her testimony may resemble that of Excerpt Two, Case 2 in that it refers to the lack of knowledge of the complainant. This mention may explain her failure to report the pain to her mother or doctor (and concomitantly provides an account for the lack of physical evidence due to the delayed time frame between the abuse and the subsequent medical examination). But earlier in Excerpt One, the offence description of the complainants resistance stresses her sophistication and assertiveness. Implied in the stepfathers use of force (l. 10) is the failure of his pretext to elicit cooperation from the complainant. The extrematization of her resistance, as analyzed earlier, indicates that she is not readily tricked by the accused. The description of resistance indexes the complainants cognitive assessment that what is happening is wrong and something to be avoided. Moreover, mention of her active and sustained resistance displays her agentic capacity, the construction of which proves pivotal in the judges evaluation of the complaint in light of the complainants post-abuse conduct.

THE ( IM ) PLAUSIBILITY OF POST- ABUSE CONTACT
We can see how the two offence descriptions in Cases 1 and 2 provide different rhetorical affordances for the discursive constructions of acquittal and conviction respectively in these two judgments. In Excerpt One, Case 1, a rhetorical contrast is created between the assault scenario in paragraphs 5 and 6 (including the perpetrators use of force, the complainants pain and her resistance as an unwilling victim) and its peaceful aftermath in paragraph 8. A temporal deictic framer, Following each of the alleged assaults (l. 34), orients explicitly to the chronology of the assaults and the next actions of the participants: both the accused and the complainant returned to the living room and resumed watching television and talking (ll. 3436). The adjective both and the construction of the accused and the complainant as the dual subject render the actions of the accused and M. identical in terms of the agency of both parties and the content of their actions. A seemingly innocuous picture is painted of neutral social activities, apparently consensually undertaken by both interactants after the abuse. It is this aspect of the complainants oral evidence that the judge foregrounds as a key reason to acquit the accused.
Excerpt Three, Case 1, acquittal 1 2 3 4 5 6 7 8 9 10 11 [para16] In this case, I am left with a reasonable doubt. It is not that I disbelieve M, but her evidence when examined in the light of her mothers evidence, the medical testimony, the evidence that the accused gave, and when coupled with the fact that there is no supporting evidence, has left me in a state of uncertainty. In particular, doubt has arisen in my mind because of the conduct of the complainant in rst, returning to the living room and talking to the accused after each event as though nothing had happened. In my view, that is exceptional conduct on the part of an 11 year old who has been sexually molested and dragged into the bedroom.
We may rst note the carefulness and cautiousness of the judge in working up the acquittal. The opening nding, I am left with a reasonable doubt (l. 1, italics added), minimizes the agency of the judge through the use of an externalizing device (see Potter, 1996; Woolgar, 1988). Doubt here and on line 6 is not a verb constituting the action of the judge. Instead, it is a nominalized presence attributed in an external fashion to the state of the evidence rather than to any contingencies associated with the judge. His negative evaluation of the complainants credibility is hedged through the use of a litotes formulation (not. . . disbelieve, l. 2). Expressed here in the form of a double negative, such a device of understatement displays caution or defensiveness on the part of the speaker (Bergmann, 1992). The judge avoids declaring outright disbelief that abuse took place but instead questions the plausibility of the version of abuse provided by the complainant. The reference to reasonable doubt orients to the stringent threshold of proof in a criminal trial. This move allows the judge both to afrm the likelihood that abuse occurred and to reject the particular complaint before the court.
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A three-part list (see Jefferson, 1990) of other pieces of evidence (ll. 34) works up the comprehensiveness of the testimony contradicting the statement of the complainant. This list is linked to the fact that there is no supporting evidence, (ll. 45, italics added) the mention of which suggests the soundness of the decision to dismiss the charges on the grounds that the Crown (i.e. prosecution) has failed to prove its case. The phrase In particular (l. 6) stresses the distinctiveness of one piece of testimony for the raising of reasonable doubt, the complainants post-abuse behaviour (l. 7). The plausibility of the abuse is thrown into question rst by the complainants action of returning to the living room (l. 8). The second item of questionable conduct is enumerated implicitly as talking to the accused after each event as though nothing had happened (ll. 89). The agency of the complainant is advanced through the description of her talking to the accused (l. 8). Her behaviour is thereby treated as incompatible with a history of abusive contact with the accused as described. And though the implausibility of this account is related to the content of the complainants conduct, the depiction of the consistency of this conduct across two episodes (after each event, ll. 89) may work up the brittle, articial character of the account. The phrase In my view (l. 9) projects what is to follow as the judges opinion. This particularization might seem to make his assessment contingent on his own personal idiosyncrasies, a move that renders his projected claim vulnerable to potential counterarguments that would dismiss his evaluation as subjective or peculiar. But the noun view also draws on visual-perceptualist inferences compatible with an empiricist style of discourse that promotes the facitity of claims. Moreover, what follows is expressed in the form of a generalization that appeals to commonly held assumptions about normal behaviour. The judge categorizes the complainants actions as exceptional conduct on the part of an 11 year old who has been sexually molested and dragged into the bedroom (ll. 1011). This construction constitutes an anomaly or breach formulation (Edwards, 1994) that represents a deviation from expectable behaviour. The adjective exceptional renders M.s behaviour abnormal and, therefore, suspect. The age-based description, an 11 year old (l. 10), includes the indenite pronoun to make a general claim about what may normally be expected from this age-category of persons. It makes available the inference that this same conduct would not be remarkable were the complainant a younger child who had neither the understanding of the transgressive nature of the abuse nor the agency to resist. The developmental competency of the witness to do both has been demonstrated by her own testimony. The complainants cognitive assessment of the events as something wrong, as sexual molestation, is made explicit on line 11. Her interpretation is tied to her physical resistance of the violent acts she alleges, formulated in the judges use of the word dragged (l. 11). The inference is that the complainant treats these activities as clearly transgressive, which makes reasonable the assumption that the accused, cast as someone violent and untrustworthy, should be avoided. Reasonable doubt is mobilized through the deployment of a rhetorical contrast
between the picture of M. as a patient, a victim of molestation during the two assaults by the accused, and the subsequent depiction of M. as an agent choosing to afliate with the accused after his attacks. We may recall that in Excerpt Two, Case 2 the judge summarizes the complainants testimony that she returned to live in her mothers home, even though this move resulted in the increased frequency of rape by her stepfather. The provision of multiple warrants for her actions on lines 2728 supports the reasonableness of her actions. We can see below how the judges evaluation of her credibility orients to the earlier depiction in the offence description of the complainant as a legitimate trauma victim.
Excerpt Four, Case 2, conviction 1 2 3 4 5 6 [para29] As to returning to her mothers house knowing the accused was still there, she explained how she was caught between a rock and a hard place a battering father and an abusing companion to her mother but that the presence of her friends and her brothers and sisters with her mother was more important.
The judge discounts the implicit argument of defence counsel that the complainant would not have decided to live with her stepfather if there was a real history of sexual abuse by him. The complainant is constructed as unable to exercise the kind of agency that would permit her to avoid abuse; what choices she has are those of an abused child with few resources and little freedom. The idiomatic formulation caught between a rock and a hard place (l. 3) is used to refer to the complainants situation. According to Drew and Holt (1988), idioms are difcult to challenge because they invoke taken-for-granted cultural knowledge and are general or vague. The aphorism captures metaphorically the complainants dilemma. The verb caught represents her entrapment in an abusive scenario. The semantic equivalence of a rock and a hard place asserts that there is no difference between being physically abused by ones father and being sexually abused by ones stepfather. The equating of physical and sexual violence makes reasonable the complainants choice to return to the solace of companionship. The facticity of the sexual violence is thus embedded in the judges evaluation of the evidence. The deployment of an informal, idiomatic saying in this institutional context constructs the judges sympathetic understanding of what a reasonable course of action is for a dependent child victim. This evaluation is consistent with the offence description in Excerpt Two in which the discourse of shock, trauma and ignorance provides rhetorical affordances for the management of the complainants accountability with respect to her return to the abusive situation. The two sample judgments involve scenarios of victimization in which the alleged abuse takes place in the home in which both the accused and the complainant reside. In other judgments, the accused does not live with the complainant. Abuse in such cases is alleged to have occurred in the context of social
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contact between offender and victim, such that judges can draw on the rhetorical contrast between the complainants aversive experiences of abuse and the apparently pleasant activities shared in the aftermath of victimization. In one of the appeal cases, Regina v. W.S. (1994), the complainant reported experiencing up to 200 episodes of sexual touching by the appellant, her uncle by marriage. A key feature of this case is that the assaults were alleged to occur during voluntary overnight visits to the home of the appellant and his family when the complainant was between the ages of 9 and 13. The judge delivering the appeal courts decision summarizes the complainants allegations in the judgment. Similar to the offence description in Case 2 (see Excerpt Two), the abuse in Regina v. W.S. is extrematized in terms of the number of episodes, their frequency and predictability. As in Case 2, the emotion discourse of trauma is drawn upon, though in the appeal case the extrematization of the complainants fear has ironizing implications: She said she was terried of the appellant and described this feeling with language which I nd to be immoderate, in the circumstances, in her victim-impact statement detailing the effects of the assaults upon her (Regina v. W.S., 1994: 245, italics added). Unlike Case 2, the reference to the terror of the complainant in this appeal case is worked up as inconsistent with her apparent eagerness to visit the farm where her uncle lives.
Excerpt Five, Regina v. W.S. (1994: 244), appeal from conviction 1 2 3 4 5 6 7 8 9 10 11 12 13 . . . While the fact that the complainant did not tell anyone immediately of the alleged abuse is not necessarily signicant, I cannot ignore the fact that she continued to visit the appellants farm and sleep over with undiminished enthusiasm for several years and demonstrated no discomfort or fear around the appellant during her numerous visits. No expert evidence was adduced at trial that such behaviour was consistent with the appellants [sic] allegations and, in its absence, common sense leads me to conclude that a young girl who was being regularly abused by her uncle would not insist on spending as much time as possible in the very situation where the abuse could be continued. I do not think this is a safe conviction. The case cries out for a nding of reasonable doubt. . .
We can see how externalizing devices treat the decision of the appeal court as compelled. Common sense is an agent leading the judge to his conclusion; it necessitates the substitution of the verdict of not guilty (ll. 811). The inevitability of the decision is also constructed through anthropomorphization: The case cries out for a nding of reasonable doubt (ll. 1213, italics added). The judges evaluation draws on other witnesses testimony about the complainants undiminished enthusiam (l. 4) in spending time at her uncles, and evidence of a complete absence of displayed fear (no discomfort or fear, l. 5) occurring over a protracted period (several years, l. 4) and multiple episodes (during her numerous visits, ll. 56). The authenticity of the complainants displayed lack of fear may rest on the assumption that her previously reported feelings of terror should
not be easily subject to conscious control in the presence of her abuser (see Edwards, 1999). Moreover, the use of hypothetical reasoning and extrematization on lines 811 makes clear the undeniable agency of the child. She is portrayed, not as merely wishing or desiring to spend time in the abusive situation, but as insisting on spending as much time as possible (l. 10) there. The aversive aspects of regular, frequent abuse and feelings of terror described by the complainant are ironized in relation to her avid pursuit of apparently enjoyable experiences in close proximity to her alleged offender. The judgments that worked up the implausibility of post-abuse contact constructed the capacity of the children to consent to contact (and implicitly to refuse contact) with their offenders in a variety of ways. We may recall that the agency of the complainant in Case 1 was depicted in terms of her sustained resistance toward her abuser. The agency of the child in Regina v. W.S. (1994) is worked up explicitly in relation to her repeated insistence on spending time in the home of her alleged perpetrator. In Case 3, one of the Quicklaw cases, the complainant JR is described as assertively leaving the bed of the accused during an overnight visit after JR experiences genital touching by the accused. The judge reports the testimony of the complainant that he retired to the sofa for the rest of the night. Defence evidence consisting of photographs and eyewitness accounts indicated that, the day after the alleged abuse, JR joined the accused, his sons and the accuseds estranged wife in an outing that he apparently enjoyed. Case 3 cites appeal decisions in which evidence of the complainants active enjoyment in the allegedly abusive situation provides a warrant for reasonable doubt. As suggested earlier, this argument occurs in cases in which complainants and their alleged abusers do not live together but rather associate with each in the context of shared social activities. Of analytic signicance here are the multiple meanings of the term active (versus passive) enjoyment. In one sense, active implies the public, observable nature of overt action, that is, that the enjoyment of the complainants is outwardly visible. This aspect works to counter the rhetorical treatment of emotions as private experiences (see Edwards, 1999) that may not be readily accessible to observers. In a less obvious sense, the notion of active underscores the agency of the complainants in choosing to afliate with their alleged abusers. This type of argument constructs doubt on the basis of two parallel sets of contrasts. First, the aversiveness of the abuse as indexed by the complainants testimony is contrasted with the innocuous or enjoyable nature of subsequent interactions between the complainant and the alleged offender. Second, the agency of the complainant in choosing post-abuse contact with the accused is contrasted with the coercive dynamics of the abuse. The implicit argument is that if the complainants were indeed abused they would not willingly agree to subsequent social contact with their abusers or enjoy those interactions. The lynchpin of such an argument is the assumption that the child possesses the capacity to refuse later contact with the accused. It is presumed that a child who experiences sexual abuse as aversive would reasonably refuse to have subsequent social
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relations with the accused. The exception was Case 2 in which the aversiveness of the abuse was causally tied to the childs traumatized state. These details, in combination with judicial orientation to the sexual innocence or ignorance of the complainant, built up her category entitlement as a victim who could not reasonably expected to protect herself. In this regard, discursive psychology treats age-based categories as exible rhetorical resources. For instance, we might presume in an abstract sense that the developmental capabilities of a 10-year-old and an 11-year-old are comparable. But the offence description in Case 2 worked up the youth and innocence of the 10-year-old victim, whereas the account in Case 1 treated the complainant as a sophisticated, assertive 11-year-old who should not reasonably have agreed to accompany her abuser to the living room after the assaults. Despite the indexicality of these age-related references, analysis of all of the judgments suggests there may be limits on cultural suppositions about childrens developmental capacities. Indeed, the judges evaluation of the complainant in Case 2 seems designed to counter the common-sense expectation that she would report the abuse or manage to refuse further contact with her abuser. The developmental competencies of an older, knowledgeable child project the potential presence of cognitive and moral capacities by which the child evaluates an episode of abuse as transgressive and undesirable. A collateral presumption is that this older child is simultaneously capable of exercising the only sensible choice: to refuse to spend time with the accused in the post-abuse period. These developmental resources are either implied or worked up explicitly in the judgments. It might be hypothesized, then, that very young complainants would not be treated as able to avoid post-abuse contact with their abusers, perhaps in part because very young children may lack the social awareness that sexual abuse is wrong (see Bussey and Grimbeek, 1995). Indeed, analysis showed that none of the judgments in the Quicklaw sample involving very young complainants referred to post-abuse involvement with the accused as a warrant for doubt.
SUMMARY
This analysis illustrates the use of the contrast between persons as agents and patients, not as a philosophical distinction but as a practical resource employed by participants (the judges). The rhetorical contrast between the agency or desire of the child complainant, exercised in the choice to afliate with the accused, and the patient or victim status of the complainant, displayed in the report of prior unwanted and aversive sexual contact, provides a warrant for treating the allegation as incredible on the assumption that a genuine victim would sever contact with the offender. Doubt hinges on the operation of incompatible inferences made available through the chronological and logical juxtaposition of sexual assault and innocuous social contact. Construction of the identities of abuser and victim in the act of sexual assault projects certain category-incumbent activities expected of a victim (see Sacks, 1995, Vol. 1: 17981; 33440). The transformative implications of that construction are assumed to erase the plausibility of
innocuous social contact and its invocation of canonical (i.e. nonabusive) relations between child and adult. The contrast between the complainants negative depiction of the abuse and the complainants neutral or apparently positive stance toward the accused in the aftermath of the abuse is crucial to this argument. Analyses of the offence descriptions show how abuse that is extrematized in terms of its intrusiveness, frequency and/or regularity can provide rhetorical affordances that project the childs avoidance of subsequent contact as the expected response. The exceptions are those cases in which the aversiveness of the abuse is linked to the traumatic reactions of the complainant and the invocation of the passivity of the authentic child victim. The centrality of the knowledge and agency of the child in the practical theory about the implausibility of post-abuse contact was demonstrated in one judgment in which the credibility of the complaint was upheld through the minimization of both the complainants sexual knowledge and her ability to avoid the abuse. The presumed developmental capacities of older, rather than younger, complainants to label the abuse as transgressive and to avoid contact with offenders were tied to the deployment of this argument. Although consent to sexual activity by a child is no longer a possible defence argument under Canadian law, the foregoing analysis shows how the notion of consent can enter current trial decisions. Two kinds of troubling asymmetries emerge in the judicial treatment of consent. First, judges reports of the childrens complaints of abuse in these cases worked up the allegations as aversive and negatively received from the perspective of the complainants. Although we saw how the rhetorical extrematization of abuse provided by such internally focalized constructions of the aversiveness of these events can promote the facticity of the allegations, the question of whether sexual contact with an adult is assessed by a child as desired or undesired, aversive or innocuous is beside the point. Under the law, all such contact is prohibited. Second, certain judges treated children who are legally unable to consent to abuse as simultaneously capable of consenting to (and, implicitly, of refusing) social contact with their abusers. This second form of asymmetry oversimplies child abuse by failing to treat it as consonant with the structural oppression of children as enacted in their dependent relationships with adults (see J. Kitzinger, 1997).
Discussion
We have seen how evidence of a childs post-abuse contact can be deployed to discount a complaint of sexual abuse. However, it must be stressed that when postabuse contact was taken up by judges as a warrant for either acquittal or the ordering of a new trial, this was not the only reason given. Part of how judges displayed their reasonableness was by offering multiple reasons for their decisions. In four cases that resulted in acquittal or a new trial (the latter in Regina v. M.G., 1994), the judges afrmed the presence of fatal inconsistencies in the complainants allegations.11 Contradictions between key witnesses testimony were
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also mentioned in certain judgments as doubt-inducing (e.g. Excerpt Three, Case 1). It should be noted that references to post-abuse contact as a reason for doubt did not occur frequently in the sample of Quicklaw trial judgments (3 of 25 cases), and that such references did not always result in acquittal (e.g. Case 2).12 But clinicians who are familiar with the dynamics of child sexual abuse might comment that what is striking about these judgments is that this argument succeeded at all. In insisting that an event may be described in a variety of ways (see Schegloff, 1972), the discursive perspective allows for the consideration of alternative constructions of sexual victimization. We may recall that the judge in the appeal decision appearing in Excerpt Five oriented to the absence of expert evidence that might have potentially assisted the court in making sense of the complainants repeated requests to visit the home of her abuser. Clinical research has lled in gaps in cultural knowledge of the dynamics of sexual abuse. Jenkins (1997) argued that sexual abuse should be viewed as a process unfolding over time rather than as an event or series of events as it is treated in the legal system. Most sexual abuse entails the development of a relationship that both precedes and persists after a discrete incident of abuse. Similar depictions have been provided by others (e.g. Elliott et al., 1995; G. Rogers and Renshaw, 1993; Singer et al., 1992). Covert communication between abuser and child may develop over many interactions. An abuser may initiate a child into abusive experiences by strategically blurring together nontransgressive and transgressive actions. Incestuous abuse can involve an admixture of ambivalence and affection intertwined with coercion. Long-term intrafamilial abuse has been likened to the relationships between hostage and terrorist, concentration camp victim and guard. Abusers are not only people who threaten life and integrity. They are at the same time the perverted provider of life, maintenance and external care, and even of positive emotional attention (Furniss, 1991: 30).13 Discourse analysis encourages us to notice what may be missing from an account (Billig, 1999). A story may seem not right as much because of what is absent as what is present. One way to promote coherence between two incompatible elements in a story of abuse is to add details that build up the narrative transition from pre-assault to post-assault relations between abuser and victim. In Case 2, for instance, the discourse of traumatization makes plausible the complainants conduct by building up her category entitlements as a victim. The predominant representation of the innocent, passive victim of child sexual abuse in our culture undermines a longstanding history of victim blaming; however, this representation simultaneously stigmatizes the knowing child (J. Kitzinger, 1997). We saw in Case 1 how problems of implausibility crop up when the knowing child is also the resistant child. Perhaps one of the reasons Coates et al. (1994) found that physical resistance was not treated as expected in cases of child sexual assault is that active resistance by a child is not easily reconciled with the our typication of the child victim. In Case 1, the judge afrmed the likelihood of abuse while doubting the narrative of physical force and struggle supplied by the
complainant. Clinical research suggests that the issue of resistance to violence is an extremely complicated and subtle business, as nuanced and intricate as the relationships between abusers and victims (J. Kitzinger, 1997; Wade, 1997). One possible recommendation is that judges and lawyers be educated about the complex dynamics of sexual abuse, including the nding that genuine victims may have repeated contact with their abusers. This recommendation does not assume that post-abuse contact may never be relevant to judicial evaluations of credibility; rather, it attempts to reformulate the information that judges may categorize as common sense (see Excerpt Five) to include scenarios of post-abuse afliation. However, the adversarial system in Canada and other countries embracing the common law draws distinctions between general knowledge that is assumed to be within the experience of the trier of fact and technical knowledge, the dissemination of which may require the assistance of expert opinion evidence (see Regina v. A.K. and N.K., 1999). As we saw in Excerpt Five, information about the dynamics of sexual abuse is likely to be deemed clinical knowledge that must be adduced from an expert. Another recommendation, then, would encourage Crown prosecutors to seek leave from trial judges to call expert opinion evidence. But there are signicant challenges involved in the use of expert testimony.14 An alternative recommendation is that prosecuting attorneys routinely extract child witnesses own explanations for post-abuse contact with offenders. We saw how the judge in Case 2 reported the complainants own reasons for her behaviour. This recommendation follows the ironic observation that Canadian evidence law makes it easier to evaluate the evidence of children than it is to evaluate the evidence of the experts who testify in order to help us evaluate the evidence of children (Paciocco, 1996: 387). Despite some of the possible differences between depictions of child and adult sexual assault, defence arguments in sexual abuse trials regarding childrens post-abuse contact with offenders resonate with justications for doubting adult sexual assault. A study using grounded theory found that some womens allegations were discredited at the time of complaint-ling because the women reported post-abuse contact with suspects (Frohmann, 1991). Prosecutors expectations were that if coercion or violence occurs, the appropriate response is to sever the relationship, at least for a time (Frohmann, 1991: 219). One prosecutor rejected a case for adjudication because of the complainants willingness after the rape to allow the suspect into her apartment. A similar argument in a university tribunal on acquaintance rape treated a womans repeated returns to the bed containing the defendant as the (mis)communication of consent to sexual activity (Ehrlich, 1998). Alternative understandings of such actions must be pursued.15 A general recommendation is that we acknowledge the difculty of formulating sexual violence perpetrated by familiars rather than strangers (Coates et al., 1994; Wood and Rennie, 1994). This challenge may be tied to the inadequacy of current cultural resources for constructing the experience of assault by someone who occupies a membership category (e.g. spouse, parent, teacher) whose
34
category-bound activities undermine the very description of such offences. Renner and Yurchesyns (1994) replacement of the legal metaphor of sexual assault with one of sexual robbery does not confront this problem. A metaphor of sexual robbery makes plausible a victims lack of physical resistance while being sexually robbed but it does not overcome the hurdle of representing theft when perpetrated by an offender to whom the victim is connected by a bond of trust and possible dependence. The analysis of fact construction encourages us to interrogate the taken-for-granted in our cultural representations of sexual abuse and other categories of victimization. It is my hope that this exercise will open up new ways of talking about and thereby responding to child sexual abuse.
AC K N OW L E D G E M E N T S
An earlier version of this article was presented in July 2000 in J.B. Bavelas (chair), Language in Legal Judgments about Sexual Offenses. Symposium conducted at the 7th International Conference on Language and Social Psychology, Cardiff, Wales, UK. I would like to thank Rolf O. Kroger and Linda A. Wood for their comments on various drafts of this article. For their help in revising it for publication, thanks also go to Jonathan Potter, an anonymous reviewer and the editor. This research was supported by a Social Sciences and Humanities Research Council of Canada Doctoral Fellowship.
NOTES
1. For example, see Speer and Potter (2000) for a re-specication of attitudes in terms of the management of heterosexist claims in talk. 2. The cases in Coates et al. (1994) predate a 1992 amendment to the Canadian Criminal Code. In a case of adult sexual assault, the accused must now show that the complainant actively consented to sexual activity. Coates (2000) conducted a quasiexperimental study comparing cases of adult sexual assault tried before and after changes to the legal denition of consent in Bill C-49. She found that even after the passing of the bill, the onus remained on Crown prosecutors to prove lack of consent rather than on defence counsel to prove that defendants had taken reasonable steps to ascertain consent by complainants to sexual activity. 3. Recent judgments were chosen to facilitate exploration of judges orientations to the legal reforms previously outlined. Complainants were either children (in legal terms, age 13 or younger) or young persons (ages 1417) at the time of their trials. The complainants were children at the time of the alleged offences. Judgments consisted of acquittals, convictions or mixed verdicts. 4. Only judges, not juries, provide explicit reasons for their decisions. One particular Ontario database in Quicklaw was chosen because it contained a wide range of ordinary judicial decisions of social-psychological interest. Such decisions are not typically published in the law reporters whose editors usually select cases because of their legal signicance only (Bark and Sheehy, 1986). 5. Conceptual resources can be identied at work in a range of discourse types (Edwards, 1997). The analyst can locate conversation-analytic devices in monologues (Wooftt, 1992) because the construction of monologs relies on the same linguistic resources as those used in conversational turns (Antaki, 1994). 6. In a criminal trial, information about surrounding circumstances may be treated as
MacMartin: (Un)reasonable doubt? 35 crucial to the interpretation of the actions in question as a sexual assault (Martins Annual Criminal Code, 1992: 431). However, if we accept that there is no such thing as pure description, we might consider the possibility that the distancing of a judge through footing constructions from the authorship of evidence may undermine its facticity. Let us consider Excerpt One, Case 1, which resulted in the acquittal of the accused. The judge marks specic portions of the narrative as the oral evidence of the complainant: the complainant says (l. 4), It was her evidence (l. 6), M. says (ll. 910), according to her testimony (ll. 1213), According to M. (l. 18), She said (ll. 20, 27, 31), it is her testimony (l. 21). These portions of the narrative can be distinguished from those provided by the accused (ll. 89). The footing of the narrative as the complainants particular version of events may appear to ironize her complaint, especially in light of the eventual acquittal of the accused. But we would be mistaken if we conclude that the presence of such footing devices inevitably indexes reasonable doubt. If we look at Excerpt Two, Case 2, which leads to a conviction, we see similar footing devices at work: The complainant testied (l. 1); She said (ll. 4, 6, 10, 12, 16, 24, 27). What can be said is that this type of this footing marks the contested character of complainants allegations in the adverse context of the trial. This aspect becomes apparent when we examine a contrasting footing of one portion of the narrative in Excerpt One: The evidence reveals (l. 1). We should note its position as the subject of the sentence on ll. 12; moreover, the use of the denite article avoids identifying this testimony as the product of any particular person. This construction constitutes the evidence, not as an object requiring legal scrutiny, but as an active agent unproblematically revealing or displaying an uncontested portion of the evidence: the fact that the accused occasionally looked after the children, including the complainant. This is an instance of an empiricist style of discourse (see Edwards and Potter, 1992; Gilbert and Mulkay, 1984; Potter, 1996). In this context, it afrms that the accused had access to the complainant, and hence possible opportunities to commit the alleged offences. The question of access is not, therefore, a matter at issue in the trial. Further analysis shows that the footing of other witnesses testimony in the reported evidence of the complainants can potentially undermine or uphold the complaints. For example, Excerpt One, Case 1 (an acquittal case) incorporates an element of the accuseds version of initial events: that his play with the complainant may have involved the other children according to the accused (ll. 89). Such evidence may work to counter the assumption that he had the opportunity to commit the offences with which he was charged. In contrast, Excerpt Two, Case 2 (a conviction) appears to uphold the facticity of one portion of the complainants evidence by including reference to corroborating evidence about the absence of a bed in the room in which the alleged offences took place: that was later conrmed by her mother (ll. 910). This design feature is not, however, directly germane to the argument of post-abuse contact as a warrant for reasonable doubt. Extreme case formulations identied by Pomerantz (1986) consist of expressions employing extreme terms (e.g. all, none, most, every, best, least, absolutely). I use the discursive concept of extrematization in the more inclusive sense employed by Potter (1996: 18694). Of relevance to the current analysis is his demonstration of how quantication terms can maximize or minimize phenomena (e.g. deaths from cancer) and how specic lexical choices can maximize or minimize violence in event descriptions. See Potter (1996: 222) for a discussion of pain and pain display as an appropriate arena for the analysis of fact construction. A different discursive device for addressing alterations in states of knowledge is that
7.
8.
9. 10.
36
Discourse & Society 13(1) identied by Jefferson (1984): at rst I thought. . . but then I realized. . . . This device was used by speakers who reported their experiences of unusual events such as kidnappings and hijackings. The contrast between the rst thought assumption (which involves an innocuous interpretation of a certain state of affairs) and the second thought realization (about a statistically rare, extraordinary event that is actually transpiring) promotes the normality of the speakers reasoning and assumptions about the world. The hindsight insertion similarly marks news-to-consciousness phenomena reported in accounts. But Jeffersons (1984) device constructs as an integral part of the unfolding event the speakers dawning realization of the actual type of event constituted in the narrative. In contrast, a hindsight insertion represents awareness that is available only subsequent to the course of the events in question. Consisting of temporal references such as I/She didnt know then/at the time, this device for managing accountability addresses the uncertainty, confusion or other states associated with the sense-making efforts of protagonists. In this case, the child complainant cannot access a certain state of awareness during the actual event of sexual abuse because such understanding is contingent on the possession of sexual knowledge, maturity or experience only subsequently available to him or her. But features such as inconsistencies in the allegations of sexual abuse by complainants were not inevitably associated with acquittal. Analysis showed considerable pragmatic exibility in the uptake of such aspects by judges, some of whom treated inconsistencies as emblematic of authentic victimization. Similar ndings concerning the evaluation of childrens demeanour have been reported in a qualitative analysis of Swedish judgments of sexual abuse trials (Cederborg, 1999). One Quicklaw case resulting in acquittal included the judges report that there was no evidence that the complainant did not want to visit the home of the accused or appeared upset during visits. But this lack of evidence was not included as a reason to dismiss the charge of sexual assault. It could be argued that this use of clinical studies violates the discursive psychologists assumption of methodological relativism toward participants versions. I might be accused of engaging in ontological gerrymandering (Potter, 1996; Woolgar and Pawluch, 1985), that is, of accepting these clinical narratives as the way things really are. A realist promotion of the clinical accounts as factual would undermine the social-constructionist position that there is no such thing as pure formulation or mere description. My intention is not to make this move but rather to enlarge the prospects of social justice for victims by stressing the analytic and ideological importance of noticing what may be critically absent from a text or a courtroom interaction. Expert testimony is expensive in terms of both money and the time necessary for lawyers to prepare the presentation of such evidence (Paciocco, 1996). Further, judges must evaluate the admissibility of expert evidence in the context of each trial, rather than rely on precedent (Regina v. A.K. and N.K., 1999). Finally, restrictions on the scope of the experts evidence create further difculties in the legal assessment of such testimony. Opinion evidence is considered inadmissible unless its probative value is judged to outweigh its prejudicial effect. The expert evidence must be deemed relevant and necessary in assisting the trier of fact to form a proper judgment about a matter at issue. There is probative value in expert testimony demonstrating that more than one inference may be drawn from evidence that a child had ongoing contact with the accused. That is, one can infer either the absence or presence of a history of abuse from such evidence. But there could be a prejudicial effect should expert testimony be misused to suggest that evidence of a childs repeated contact with the accused enhances the likelihood that abuse actually occurred (Regina v. A.K. and N.K., 1999).
11.
12.
13.
14.
MacMartin: (Un)reasonable doubt? 37 15. Wood and Rennie (1994) reported that two women victims of date rape in their study tried to make sense of what had happened by subsequently seeking feedback from their rapists. C. Kitzinger and Frith (1999) argued that womens use of indirectness to refuse sex is consonant with conversational norms regulating the performance of refusals in our culture.
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Discourse & Society 13(1) Abuse, in S.M. Sgroi (ed.) Handbook of Clinical Intervention in Child Sexual Abuse, pp. 937. Lexington, MA: Lexington Books. Singer, M.I., Hussey, D. and Strom, K.J. (1992) Grooming the Victim: An Analysis of a Perpetrators Seduction Letter, Child Abuse & Neglect 16: 87786. Smart, C. (1986) Feminism and Law: Some Problems of Analysis and Strategy, International Journal of the Sociology of Law 14: 10923. Sopinka, J., Lederman, S.N. and Bryant, A.W. (1992) The Law of Evidence in Canada. Toronto: Butterworths. Speer, S.A. and Potter, J. (2000) The Management of Heterosexist Talk: Conversational Resources and Prejudiced Claims, Discourse & Society 11: 54372. Standing Committee on Justice and the Solicitor General (1993) Four-Year Review of the Child Sexual Abuse Provisions of the Criminal Code and the Canada Evidence Act (Formerly Bill C-15) (Issue No. 101). Ottawa: Supply and Services Canada. Vidmar, N. (1997) Generic Prejudice and the Presumption of Guilt in Sexual Abuse Trials, Law and Human Behavior 21: 525. Wade, A. (1997) Small Acts of Living: Everyday Resistance to Violence and Other Forms of Oppression, Contemporary Family Therapy 19: 2339. Wooftt, R. (1992) Telling Tales of the Unexpected: The Organization of Factual Discourse. Hemel Hempstead: Harvester Wheatsheaf. Wood, L.A. and Rennie, H. (1994) Formulating Rape: The Discursive Construction of Victims and Villains, Discourse & Society 5: 12548. Woolgar, S. (1988) Science: The Very Idea. Chichester: Ellis Horwood; London: Tavistock. Woolgar, S. and Pawluch, D. (1985) Ontological Gerrymandering: The Anatomy of Social Problems Explanations, Social Problems 32: 21427. Young, A.H. (1992) Child Sexual Abuse and the Law of Evidence: Some Current Canadian Issues, Canadian Journal of Family Law 11: 1140.
is a discursive psychologist conducting post-doctoral research on sexual abuse/assault at the University of Guelph. She received a BSc and an MA in Psychology at the University of Toronto, and for six years worked in a childrens mental health clinic before obtaining a PhD in Applied Social Psychology at the University of Guelph. She has published on childrens disclosures of sexual abuse in Theory & Psychology. Co-authored work includes articles with A. Daniel Yarmey on the recovered memory debate in Expert Evidence and Canadian Psychology, and an article on discourse analysis in historiography with Andrew S. Winston in the Journal of the History of the Behavioral Sciences. She also has a chapter on facework with Linda A. Wood and Rolf O. Kroger in W. P. Robinson and H. Giles (eds) The New Handbook of Language and Social Psychology (Wiley, 2001). A D D R E S S : Department of Psychology, University of Guelph, Guelph, Ontario, Canada N1G 2W1. [email: cmacmart@uoguelph.ca]
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Discourse & Society

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MacMartin: (Un)reasonable doubt? 33

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Discourse & Society 13(1)

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