Evidence Law and 'Credibility Testing' of Women: A Comment on the E Case

Elizabeth Sheehy, “Evidence Law and the ‘Credibility Testing’ of Women: A Comment on the E Case” (2002), 2 Queensland University of Technology Law and Justice Journal, pp. 157-174

18 Pages Posted: 8 May 2013

See all articles by Elizabeth A. Sheehy

Elizabeth A. Sheehy

University of Ottawa - Common Law Section

Date Written: 2002


Evidence law is not simply a body of “neutral rules” of general application: its doctrines have been developed to reflect particular interests and understandings of the social world in which we live. Nowhere is its partiality more exposed than in the rules governing the use of evidence in the prosecution of rape, which was itself a sex specific crime, where men's power to define and deny allegations of rape historically weighed more heavily than women's word. Science and particularly psychiatry proclaimed truths about women and girls that were used to justify sex specific practices and legal principles in the criminal law governing rape.

Women's changed legal and social status has been mirrored in doctrinal shifts in evidence law in the past thirty years in both Australia and Canada, but underneath the surface, the “old” rules to test women's credibility bubble to the surface in new practices and legal doctrines as a broadening group of men, has become vulnerable to rape prosecution. The legislative retreat from the old doctrines, such as recent complaint and the corroboration requirement, has opened up the possibility of prosecuting historic sexual assault cases, and the need to carefully scrutinize women’s evidence has been vigorously reasserted. A woman's word is tested against her actions and their socially ascribed meanings (did she resist vigorously? did she report immediately?), against her history and reputation (has she consented in similar circumstances? has she ever lied?), against the evidence provided by her own body (does the Rape Evidence Kit indicate any tears or bruising consistent with forced intercourse? has she ever been pregnant before?), against her “records” (what did the counsellor say she said about the rape? what did she say about the accused in her diary?), and against her unconscious (could she have imagined the assault? could she be mistaken that it was her stepfather who assaulted her?).

Most testimony in court cases, both criminal and civil, relies upon memory, but with the possible exception of challenges to eyewitness testimony, only in the area of sexual assault prosecutions have we seen such an extraordinary effort to undermine the reliability of memory through “science.” The claim that a complainant is suffering from “False Memory Syndrome” [FMS], may coincide with an application of disclosure of a woman’s private counselling records, another recently emerged credibility-testing device. Like the demand for disclosure of women’s records, FMS claims permit the reassertion of obsolete credibility-testing devices; reproduce the same pernicious myths about women; demonize the feminist community and its knowledge; and alienate women from their therapists and counsellors by generating anxiety and distrust. The sex discrimination inherent in disclosure applications and perpetrated through the use of therapeutic records to discredit women is compounded when a FMS label is attached to a complainant: a psychiatric or therapeutic history facilitates the inference that women may falsely allege rape or they may have “fantasized” a rape. Psychiatric definitions of normalcy tend to reinforce sex roles, archetypes of “good” and “bad” women and male standards of mental health such that it is relatively easy to use psychiatric labels and records to portray a “bad” woman who is not worthy of law’s protection.

In this case comment I hope to illustrate, using the 1997 decision of the New South Wales Court of Criminal Appeal in E,mthat the strategy of using the pseudo-science of FMS to discredit women's accounts of sexual violence is reliant on the same old “truths” about women and rape that have long been officially repudiated in law's doctrines. This relatively new strategy has great appeal, in spite of its questionable lineage, since it is cloaked in the objective language of science, echoes our collective disbelief that the ruthless sexual abuse of children by normal, adult men could really be this widespread, and perhaps most importantly, avoids calling women liars. Its subtext is strategic, since women and girls may abandon prosecution when confronted with the high price to their privacy, dignity and sanity exacted by intrusive defense tactics.

My comment firsts summarize the facts and ruling in the E decision. I then set the case in the context of some of the feminist literature on FMS discourses, and particularly the one study to examine its use in criminal and civil litigation in Canada. In the next section I situate E against the history of rape law reform by briefly reviewing the rules of evidence that were specific to rape prosecutions. In doing so, I will rely mainly upon the secondary literature in Australia and Canada, since the failure of these reforms to dramatically shift the terrain of rape prosecutions has been amply documented and theorized in both jurisdictions. I will then return to the E case in order to illustrate the many ways in which FMS discourse revives discarded doctrine and discredited myths.

Keywords: evidence law, partiality, false memory syndrome, fms, discredit sexual violence, women, rape, history of rape law reform, rape prosecution Australia, rape prosecution Canada

Suggested Citation

Sheehy, Elizabeth A., Evidence Law and 'Credibility Testing' of Women: A Comment on the E Case (2002). Elizabeth Sheehy, “Evidence Law and the ‘Credibility Testing’ of Women: A Comment on the E Case” (2002), 2 Queensland University of Technology Law and Justice Journal, pp. 157-174. Available at SSRN: https://ssrn.com/abstract=2261987

Elizabeth A. Sheehy (Contact Author)

University of Ottawa - Common Law Section ( email )

57 Louis Pasteur Street
Ottawa, K1N 6N5

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