Questioning complainants of sexual offences in court must be done with more care: Chief Justice

The process of cross-examination in sexual offence trials should be handled with more care and sensitivity, Chief Justice Sundaresh Menon said in a recent judgment in an outrage of modesty case on Dec 3.

There is a need to protect complainants from undue harassment while still safeguarding the accused’s right to a fair trial – a balance that can be difficult to achieve, he said.

“Given the heightened sensitivities at play when a complainant of a sexual offence gives evidence in court, it is imperative that the process of cross-examination be approached with greater care,” said the Chief Justice, who called for greater judicial involvement during this process.

The experience of cross-examination can often feel like re-traumatisation for victims, many of whom describe the process as the most distressing part of their entire interaction with the criminal justice system, he said.

Cross-examination can mirror the suspicion and disbelief that the complainant felt during the offence itself, potentially exacerbating the trauma.

“Complainants of sexual offences should be protected from undue and insensitive harassment in cross-examination as much as possible; and they should not be penalised for speaking out against their alleged attackers, much less be forced to relive their trauma,” the Chief Justice added.

He was speaking at a judgment of a case where a software engineer was charged with one count of outrage of modesty. Following a trial, the man was convicted and sentenced to six months’ imprisonment.

The incident occurred in September 2021, when the man and a 16-year-old girl boarded a bus. The 42-year-old sat next to the girl and initiated unwanted physical contact, which included pressing his elbow against her body and later stroking her thigh and knee.

After alighting from the bus, the girl called a close friend and told her what happened.

She later texted her teacher, who accompanied her the next day to a police station to make a police report.

In written grounds of decision, the Chief Justice laid out his reasons for dismissing the man’s appeal against his conviction and sentence. He said that one line of questioning that may not have been allowed in the present case would have been asking why the complainant did not seek help on the bus immediately after the incident took place.

This seems to be irrelevant to the issues disputed at trial, such as whether the touching was accidental or intentional, he said. It also assumed that victims of sexual offences would make immediate reports and/or react in a uniform way, that being what they were taught in school. 

“There was no need to press (her) on the reasons why she had failed to act in a manner which she ostensibly must have known was ‘correct’ or ‘reasonable’,” he said.

“To do so would be to ignore the prevailing understanding that victims react to the occurrence of sexual offences in different ways and to insinuate that it was (her) fault that she did not react in the ‘right’ manner.”

A spokesman for The Law Society of Singapore said the Chief Justice’s guidelines will be judicial precedent for sexual offence trials going forward.

Courts can take on a more active supervisory role

While complainants of sexual offences must be protected from being unduly harassed or re-traumatised, this protection must not come at the expense of the accused’s right to challenge the testimony, said the Chief Justice.

The system must ensure that cross-examination does not unjustly hinder the ability of those accused to properly defend themselves, especially in cases where credibility and consistency of the complainant’s account are central to the trial, he said.

He called for a greater judicial role in managing and supervising the examination and cross-examination of complainants of sexual offences. 

He recommended that judges convene pre-trial conferences with both the prosecution and the defence to discuss potential areas of contention and the cross-examination strategy. This step would help the court to flag areas where careful questioning would be necessary.

Judges must carefully assess the relevance of each question posed during cross-examination, and whether the question serves to illuminate the central issues in the case, rather than insulting or confusing the complainant. 

The Chief Justice noted the harmful stereotypes that often arise during the cross-examination of sexual offence complainants. 

These include the idea that victims should report the crime immediately, react in a specific emotional manner, or dress in a certain way to avoid provoking assault. 

“Reliance on these stereotypes in the course of cross-examination re-traumatises victims of sexual offences by unfairly insinuating responsibility on their part for the offences and may, in doing so, negatively affect the recovery and treatment for such victims,” the Chief Justice said.

“This may also discourage other victims from reporting offences committed against them, thereby creating a culture of blaming and consequently of silencing victims.”

He pointed to the enactment of the Evidence Rules as a legislative step designed to counteract these stereotypes by preventing the introduction of irrelevant or prejudicial information about the complainant’s sexual history or physical appearance.

While the court has an essential role in overseeing the conduct of cross-examination, the Chief Justice made it clear that the responsibility does not rest solely with the judiciary. 

He pointed out that legal practitioners also have an ethical duty to conduct cross-examination in a respectful and dignified manner. 

According to the Legal Profession (Professional Conduct) Rules 2015, lawyers must not ask questions that are scandalous, intended to vilify or annoy the complainant, or otherwise abuse their role. 

The Chief Justice said: “Ultimately, it is the responsibility of counsel to exercise his or her own judgment to perform cross-examination in a respectful and honourable manner – this duty is not lessened in any way by the existence of the court’s powers to forbid irrelevant or improper questions.”

Lawyer Sarah-Mae Thomas, managing director of Sarah-Mae Thomas law firm, said survivors of sexual assault often face not only the trauma of the assault itself but also the emotional and psychological burden of recounting the incident, reporting it to the authorities and enduring court proceedings. 

“This can also be immensely distressing when the assault happens within the family unit like we see in some family law matters. The trauma goes on to impact their personal and family lives, even long after proceedings conclude,” she said.

She said Chief Justice Menon’s recent comments on sexual assault trials are a step towards humanising and dignifying legal proceedings around assault. 

“A framework is the necessary barometer to ensure only appropriate lines of questioning and deter inappropriate lines of questioning during said proceedings,” she said.

Ms Debby Lim, partner at Dentons Rodyk and Davidson, said: “I cannot emphasise enough the importance of such a framework to avoid the perpetuation of harmful ‘victim-blaming’ stereotypes.

“Otherwise, other victims may be discouraged from reporting offences committed against them, thereby creating a culture of blaming and consequently of silencing victims, as was acknowledged by Chief Justice Menon in his recent decision.”

A previous move to avoid irrelevant and distressing lines of questioning in court was the amendment of the Evidence Act in 2018, which laid down rules to prevent defence counsel from asking alleged victims of sexual offences about their physical appearance or sexual behaviour without the court’s permission. 

“It is possible to mount a robust defence that is fair to the accused person without crossing these lines,” Ms Lim said. 

Source: Straits Times © SPH Media Limited. Permission required for reproduction.

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