Continuous Child Sexual Abuse

• Author: Dayna M. Woiwod,Deborah A. Connolly
• DOI: 10.1177/0734016817704700
• Published date: 01 June 2017
• Date: 01 June 2017
• Subject Matter: Articles

Article

Continuous Child Sexual

Abuse: Balancing Defendants’

Rights and Victims’ Capabilities

to Particularize Individual Acts

of Repeated Abuse

Dayna M. Woiwod

1

and Deborah A. Connolly

1

Abstract

Due to calls for reform of legislation that accounts for the difficulties complainants of repeated child

sexual abuse (CSA) face when asked to particularize individual acts, jurisdictions in the United States

and Australia have adopted continuous CSA statutes. Continuous CSA statutes allow for reduced

particularity of individualinstances when abuse is repeated. In this article, we discuss particularization

requirements and how they are adapted in current jurisdictions in the United States and Australia

with continuous CSA statutes. We then discuss the relevant research on children’s memory for

repeated events and frequency to discuss how current andfuture research can inform the criteria for

the charge. Our goal in this article is to inspire thoughtful discussion of continuous CSA legislation,

and how current and future psychological research can advance the criteria for the charge. As more

jurisdictions consider adopting these statutes, it would be helpful for psychologists and legal pro-

fessionals to work toward developing a consensus on the criteria for the charge that balances both

the victim’s capabilities to particularize repeated CSA and various rights of the accused.

Keywords

sex crimes, criminal victimization, family/domestic violence

Child sexual abuse (CSA) is often a repeated offense and prosecution in CSA cases usually depends

largely or entirely on the complainant’s episodic memory. Research on judicial decisions in Canada

indicated that approximately half o f CSA allegations included repeated CS A (D. A. Connolly,

Chong, Coburn, & Lutgens, 2015). Regardless of whether abuse is experienced one time or repeat-

edly, complainants in most jurisdictions are expected to particularize an offense and give unique

details about one or more discrete instances of the alleged abuse for the allegation to meet the

threshold for prosecution (e.g., Guadagno, Powell, & Wright, 2006). To help a complainant

1

Simon Fraser University, Burnaby, British Columbia, Canada

Corresponding Author:

Dayna M. Woiwod, Simon Fraser University, 8888 University Dr., Burnaby, British Columbia, Canada V5A 1S6.

Email: dgomes@sfu.ca

Criminal Justice Review

2017, Vol. 42(2) 206-225

ª2017 Georgia State University

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DOI: 10.1177/0734016817704700

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particularize an allegation, forensic interviewers direct the complainant to tell him or her everything

about a discrete number of incidents (e.g., Lamb, Orbach, Hershkowitz, Esplin, & Horowitz, 2007).

It is challenging for complainants of repeated abuse to recall a complete instance of abuse because

memory for instances of a repeated event tend to become integrated into a general event memory

representation for what usually occurs rather than what specifically occurred one time (e.g., Danby,

Brubacher, Sharman, Powell, & Roberts, 2017; Hudson & Mayhew, 2009).

Courts have recognized that particularization of CSAis an exceptionally difficulttask for complai-

nants when CSA is repeated(e.g., People v. Jones, 1990; Podirskyv. The Queen, 1990). Legal profes-

sionalshave speculated that stringentparticularization requirements of discreteacts in cases of repeated

CSA may account fora lack of prosecutorial successin CSA cases relative to other criminal cases.

1

A

child who experienced frequent repeated abuse may be unable to recall incidents of abuse with the

requisitelevel of particularity forcharging each instance of abusediscretely (Sturgess,1985, para. 7.6).

Due to concerns over the undue burden particularization requirements may place on complainants of

repeated CSA, some jurisdictions have adopted continuous CSA statutes

2

—an offense specific to

repeated CSA that allows for reduced particularity of individualacts (Sturgess, 1985, para. 7.9).

All jurisdictions in Australia have continuous CSA statutes, and there has been an increase in the

adoption of continuous CSA statutes in the United States over the past few decades (see Table 1).

Some legal scholars in the United States have raised concerns over possible violations of defendant’s

rights resulting from relaxed standards of particularization (Bah, 2013). In the limited discussion of

continuous CSA statutes in the relevant psycholegal literature to date, psychologists have noted that

some continuous CSA statutes fail to alleviate the burden on complainants because complainants

must still provide some particulars of a number of individual acts (e.g., Powell, Roberts, & Gua-

dagno, 2007). Additionally, Shead (2014) speculated that the continuous CSA statutes in Australia

may not achieve their aim because they are complex and underutilized.

3

Our goal in this article is to discuss the relevant research and inspire further discussion between

psychologists and policy makers about continuous CSA legislation. As more jurisdictions around the

globe begin to adopt continuous CSA statutes, it is timely and important for psychologists to enter

into a discussion with legal professio nals about the criteria for the charge th at is informed by

psychological research on memory for repeated events and the relevant CSA literature.

This article is divided into four major sections. In the first section, we review particularization

requirementsgenerally and discuss how they havebeen interpreted in CSA cases when discreteacts of

repeated CSAare charged rather than continuousabuse. Particularizationrequirements exist to protect

the constitutional rights of the accused, and we discuss how particularization requirements meet that

objective. In the second section, we introduce continuous abuse statutes and discuss how particular-

ization rulesare adapted when continuous abuse is charged. The purpose of the firsttwo sections is not

to present a thoroughlegal analysis of particularizationrequirements. Rather, our aim is to identifythe

seminal principles and provide examples of how those principles have been applied in different

jurisdictions depending on whether acts of repeated abuse are charged discretely or as a continuous

offense. In the third section, we discuss relevant research on children’s frequency memory and

memory for repeated events to inform continued development of the charge as more jurisdictions

consider adoptingcontinuous CSA statutes.In the final section on policy and futureresearch, we apply

the researchto continuous abuse criteriaand make recommendationson how to construct these charges

in a way that considers the capabilities of victims of repeated CSA to particularize individual acts and

the rights of the defendant to receive proper notice of what he

4

must defend.

The Particularization Requirement

Particulars are the material facts of an alleged crime that make a complaint or indictment specific

rather than general. The sufficiency of the particulars of charging information is determined on a

Woiwod and Connolly 207