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(Un)reasonable Doubt? the Invocation of Children's Consent in Sexual Abuse Trial Judgments

UNIVERSITY OF GUELPH cmacmart{at}uoguelph.ca

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 children's 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 affiliate with offenders, presuming that authentic victims can and would avoid further involvement. Although a child's consent to sexual contact is no longer a possible defence under Canadian law, these findings 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 children's 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

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