His Story, Her Story: Sexual Miscommunication, Motivated Remembering, and Intoxication as Pathways to Honest False Testimony Regarding Sexual Consent

in R. Burnett, ed., Vilified: Wrongful Allegations of Sexual and Child Abuse. (Oxford: Oxford University Press, 2016, Forthcoming).

Univ. of San Francisco Law Research Paper No. 2014-33

20 Pages Posted: 18 Aug 2014 Last revised: 15 Dec 2015

See all articles by J. Guillermo Villalobos

J. Guillermo Villalobos

University of Nevada, Reno

Deborah Davis

University of Nevada, Reno

Richard A. Leo

University of San Francisco - School of Law

Date Written: August 1, 2014

Abstract

This chapter aims to provide a general review of factors that can lead to honest false testimony by either party to cases involving disputed sexual consent. We focus on three issues. First, we review the inherently and deliberately ambiguous nature of many sexual communications. That is, sexual communication often takes place indirectly, in ways that allow for multiple interpretations of meaning (e.g., via hints, nonverbal communication, lack of resistance rather than explicit consent, etc.). Second, we discuss the vagaries of memory for consent interactions. Given the ambiguity of initial consent interactions and the context in which they are later recalled, memory can be predictably distorted such that each party honestly remembers the same interaction differently. Third, we consider the implications of the involvement of intoxication in many disputed sexual encounters. Collectively, these factors pave the way for misinterpretation, miscommunication and false "gist" (or fully fabricated) memories for what took place: a state of affairs that can lead both parties report honest, but completely different accounts of the events in question.

Keywords: rape, sexual coercion, alcohol, memory, consent

Suggested Citation

Villalobos, J. Guillermo and Davis, Deborah and Leo, Richard A., His Story, Her Story: Sexual Miscommunication, Motivated Remembering, and Intoxication as Pathways to Honest False Testimony Regarding Sexual Consent (August 1, 2014). in R. Burnett, ed., Vilified: Wrongful Allegations of Sexual and Child Abuse. (Oxford: Oxford University Press, 2016, Forthcoming).; Univ. of San Francisco Law Research Paper No. 2014-33. Available at SSRN: https://ssrn.com/abstract=2480049

J. Guillermo Villalobos

University of Nevada, Reno ( email )

Reno, NV 89557
United States

Deborah Davis

University of Nevada, Reno ( email )

Reno, NV 89557
United States

Richard A. Leo (Contact Author)

University of San Francisco - School of Law ( email )

2130 Fulton Street
San Francisco, CA 94117
United States

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