THE recent acquittal by the Appeal Court of a security guard who had been convicted for sexually assaulting and buggering a child has resurrected concerns about the experience of children before the courts in sex crimes.
The man, who was convicted in 2019, was freed on Friday, November 24, 2023, after the Appeal Court ruled that “the strength of the case presented by the prosecution was undermined by the obvious difficulties in eliciting evidence from the complainant”.
Speaking on the issue in the wake of the ruling, author, scientist, educator, and workshop curator Dr Karla Hylton said the outcome was deflating.
“It is extremely distressing to me, personally and professionally, to witness the failure in our justice system to uphold the rights of our children â€” whether slow, normal or fast learners. In a society characterised by neuro-diversity, it is imperative that the legal and justice system ensures equality. Every individual, regardless of their learning pace, is a human being and as such deserves the right to a fair legal defence,” Hylton told the Jamaica Observer.
Hylton, who is the author of 10 books and the founder and CEO of Your Empowerment Solutions (YES) Institute, said, “In cases where a child, particularly one with learning difficulties, is subject to abuse of any form, ensuring justice involves recognising and accommodating the child’s unique communication needs in a court setting.”
According to Hylton, “the challenges faced by such children may include difficulty expressing themselves verbally, understanding social cues, or navigating sensory sensitivities”.
“Therefore, it becomes crucial for the legal system to adopt strategies that facilitate effective communication and ensure the child’s testimony is considered valid and reliable,” she stated.
In recommending solutions, the respected educator said: “Legal professionals, including prosecutors, should be trained to understand the diverse ways in which neuro-diverse children communicate.
“This may involve working closely with experts such as child psychologists, speech therapists, or special educators who can provide insights into the child’s communication style and offer guidance on how to create a supportive environment,” she told the Sunday Observer.
Hylton said accommodations in the courtroom may include use of visual aids such as pictures, diagrams, or written materials; supportive intermediaries which include trained professionals such as communication facilitators to help bridge the communication gap between the child and the court, ensuring accurate and clear testimony.
She said there should also be recognition of sensory sensitivities, such as sensitivity to bright lights or loud noises in the courtroom and the use of structured questioning.
“Prosecutors should employ clear and concise questioning techniques, avoiding ambiguous or open-ended questions that might be challenging for a child to answer,” Hylton noted. She further called for flexible court procedures, noting that “courts may need to adapt their procedures to accommodate the unique needs of the child witness, potentially allowing for breaks, shorter sessions, or alternative methods of testimony”.
“By incorporating these considerations into the legal process, the justice system can better uphold the rights of children with disabilities and learning difficulties, ensuring their voices are heard and that they can actively participate in the pursuit of justice. This approach not only facilitates fair legal proceedings but also contributes to a more inclusive and supportive judicial system,” she told the Sunday Observer.
A prosecutor, during the hearing of the appeal, had contended that there was no evidential basis to say that the complainant was inherently unreliable as there was no medical evidence that he was a slow learner, and even if that was so, there was no special legal provision in that regard.
The judges of the Court of Appeal, however, noted that “there were numerous occasions when Crown counsel, the defence counsel, and the learned trial judge herself” called on the boy to answer the questions he was asked, to stop being distracted, and to pay attention.
“At one point he seemed to have even placed the microphone in his mouth and the learned trial judge was compelled to intervene, warning him of the possibility of germs,” the Appeal Court said, noting that a guidance counsellor who was called as a witness for the Crown “formed the opinion that he was a slow learner with a possible mental challenge which was undiagnosed because of the school’s inability to do the necessary assessment”.
“It is noted that the complainant spent two years in the class of a teacher who was a literacy specialist,” the court said.
Based on the testimony of the mother of the child, who took the stand during the trial, the boy was between eight and 11 years old at the time of the incident and was 10 days short of his 15th birthday at the time of the trial.
The boy, in taking the stand, told the court that he had no idea what caused him to be there and admitted that he was unable to spell his last name, even though he was then a high school student. He also said he did not know his mother’s surname.
Asked whether he had something to tell the courtroom he said, “Miss, I get rape”, before going on to say the man, whom he knew for “one week” but did not know his last name, had raped him. According to the child, the man locked the door and drew the curtain, told him to pull down his pants and then sexually assaulted him, which caused bleeding from his buttocks.
He told the court that on the day in question he was in the man’s yard picking guineps when the man called him and asked him to purchase bread and butter for him. He said after that, the man told him to perform oral sex on him and then told him not to tell anyone. The boy said he did not know what the man meant when the man, using a vulgar colloquial term, instructed him to perform the act.
Under cross-examination, however, the boy’s testimony varied from what he said in his evidence in chief. He, among other things, said he had not told the police that he had been tied up or that someone had kicked off the door when he cried for help.
Under probe from the attorney for the accused man, the boy, when asked if he was tied up said, “No, sir.” Asked if he made up his story about his hands being tied he said, “No, sir.” And asked if he knew what a lie was he said, “No.” He, however, maintained that the man had told him to perform oral sex and had placed his penis into his buttocks.
The sole witness called by the defence, a medical doctor who had examined the boy, said what he observed was “an intact anus” but that there was “slight farrowing”. Under re-examination the doctor said the probability he had come up with was that it was “unlikely that penetration had occurred”.
The Appeal Court, in ordering that “the convictions are quashed, sentences set aside, and a judgment and verdict of acquittal entered instead”, further dismissed a notice of application by the Crown which had been filed in 2022 for court orders to increase the sentence of the man who was sentenced to 10 years’ imprisonment at hard labour for the offence of grievous sexual assault and five years’ imprisonment at hard labour for the offence of buggery.
The appeal judges, in turning the man loose, pointed to areas of the boy’s testimony which were treated as inconsistencies by the original trial judge, stating that these were variations that amounted to lying under oath.
“The cumulative effect of the recognised deficiencies in the quality and content of the complainant’s evidence, together with the admitted lies, were such that the jury ought to have been invited to exercise caution in determining whether to accept the complainant’s evidence and the weight to attach to it,” the Appeal Court said further.
According to the court, “In the absence of such a warning, it cannot be said that the appellant received a fair trial and thus his conviction is rendered unsafe.”
“In the circumstances it is difficult to say that, had the jury been properly directed, they would inevitably have convicted the appellant,” the appeal judges said.