A special children's court to deal with child abuse cases, a new offence of child sex abuse, and an option of an early admission of guilt from abusers in return for a non-prosecution are among the proposals made by a European report on the issue.
The report surveyed the legal systems in Ireland, the Netherlands and Spain to identify problems in successfully prosecuting child sex abuse. Ireland was chosen as an example of the adversarial, common law tradition; the Netherlands because it has the continental, inquisitorial system; and Spain a mixture of the two. It found the inquisitorial system to be much more child-friendly.
In all three countries it was found that the level of reporting of child sex abuse was far lower than the incidence found in retrospective studies.
The reasons for this were complex, but they included the fact that many children were afraid of the police, and that sometimes the child did not want the perpetrator to get into trouble because they cared about him. From the point of view of professionals, there was a fear of reporting allegations because of worry about defamation proceedings.
However, the main issue identified was that the experience of going to court was very stressful for child witnesses. In Ireland, this is compounded by delays and, sometimes, deferral of the court hearing because something goes wrong with the trial or because the video-link court-room is not available.
"Eventually, all these factors work to the benefit of the perpetrator and have the effect of encouraging him to deny the abuse, since the odds are stacked in his favour," states the report. "Just by waiting and letting the legal process run its course, the interaction of psychological factors and legal impediments/ bureaucracy combine to act against children."
The report was critical of the emphasis in Ireland and Spain on the need to make the child's evidence "stand up" in court, as this led to multiple interviews with the child, and sometimes multiple medical examinations. This could make the child regret reporting the abuse in the first place.
The absence of compulsory treatment as an alternative to prison was found to be a disincentive to offenders admitting their crimes. Admission at an early stage would, almost certainly, lead to a criminal conviction and a prison sentence.
This is likely to get worse, according to the report, under a section of the Criminal Justice Act 1999 which stipulates a mandatory sentence for such offences, regardless of the plea entered. There would then be no incentive to enter an early guilty plea.
In the Netherlands there is a wide range of treatment services for offenders, including treatment in residential institutions other than prisons, though the report states there is a need for more. Offenders also had access to probation officers in police stations, which made an early admission more likely as all the options could be pointed out to them.
In all three countries it was found that there was need for better inter-agency co-operation and better training for all parties, including judges. The delays common in Ireland should be eliminated either by "fast-tracking" child abuse cases, or by special children's courts.
Certain forms of sexual abuse are not defined by law in Ireland, and it was suggested that a new offence of "child sexual abuse" be created to remedy this.
The report also suggested introducing incentives for adult offenders to have their sentences reduced if they successfully complied with treatment programmes in prison, and ways of diverting adolescent offenders out of the criminal system into treatment. This would involve the provision of more and better treatment facilities.
It recommended an overhaul of the adversarial system and a review of the rules of evidence to make them more child-centred. In both Spain and Ireland, there should be a special children's court where all cases involving children, either as victims or offenders, could be tried. This could facilitate the use of specially trained professionals, the adjustment of the courtrooms for children, etc.
However, some of these proposed reforms are likely to meet resistance, as they would require a fundamental shift in our legal system and, possibly, constitutional amendment.
The authors acknowledged that judges and lawyers in Ireland feel the adversarial system serves the interests of justice. They are concerned that the inquisitorial system is based on specially trained judges who do not have experience of defending. The judge interviewed for the report said a change would require a constitutional amendment and he did not envisage this taking place.
Ms Mary Ellen Ring, who is involved both with prosecuting and defending child sex abuse cases, agrees that the system is not child-friendly. However, she feels the solution is to avoid, where possible, bringing young children into court.
She agrees that the suggestion in the report of an early admission of guilt to police, combined with compulsory treatment but no prosecution, might be a way forward.
However, she says some of the problems that exist at the moment arise from the fact that many of the cases being heard related to offences committed many years ago.