Overcoming Bias against Women Witnesses
By Marjory D. Fields
Justice, Supreme Court, and Judge Family Court, New York
Special Counsel, Beldock Levine & Hoffman, LLP, New
York City, and
Special Counsel, International Family Law Chambers, London
This article was written for a workshop
at the National Crime Victim Bar Association (U.S.A.) annual
conference, 20th - 22nd June 2005. The purpose of the workshop
was to discuss ways to counter bias against women witnesses
testifying in court proceedings.
In the beginning there was the 1680-commentary
by Matthew Hale: Rape is “an accusation easily to
be made, and hard to be proved, and harder to be defended
by the party accused tho never so innocent.” Without
any scientific basis or social science study to support
that statement, it remains part of the mythology of sexual
Rape was unique among crimes in that it
was defined as a crime against women only, and the behavior
and character of the complainant were the focus of the trial.
The complainant’s utmost resistance, corroboration
of the complainant’s testimony, and the complainant’s
prompt complaint were statutory elements of the prosecutor’s
case in chief, in addition to forced vaginal penetration.
Historically, women were excluded from
creating the rape laws and the rules of evidence. Male perceptions
of women’s credibility and sexuality, male concerns
for their property rights in their wives and daughters,
and male wishes to protect their privileges were the bases
for the definition and prosecution of the crime of rape.
Rape laws were drafted and enforced in ways that protected
the rapist and exacerbated injury to the victim.
The first, comprehensive revision of a
rape statute in the United States was enacted in Michigan
in 1975. The crime of rape was replaced by the gender-neutral
crime of “criminal sexual conduct.” Corroboration
of the complainant’s testimony and proof of the complainant’s
resistance were excluded by the express provisions of the
statute. Michigan enacted also a rape-shield provision prohibiting
inquiry into the complainant’s sexual history, unless
the court determines that it is essential to a fair trial.
Unfortunately, 30 years of reform legislation
and improvement in women’s political, legal, and social
positions failed to remove from sex offense cases those
ancient requirements based on myths about women and rape.
We have changed the language but not the substance of criminal
and civil court proceedings for sex offenses. The myths
persist under the veil of changed laws and gender-neutral
language. Overcoming the myths requires that we identify
them, the problems they cause, and ways lawyers may respond.
“Just because he beats his wife does
not mean he is a bad father.”
Women provoke domestic violence by nagging.
Women provoke rape by wearing provocative
clothing and going to risky places (bars; men’s apartments).
Women make false accusations of rape to
avoid responsibility for their sexual behavior, and for
Women and girls imagine they have been
raped and make accusations based on fantasies.
The 1980 Commentaries to a proposed United
States Model Penal Code stated:
Often the woman’s attitude may be
deeply ambivalent. She may not want intercourse, may fear
it, or may desire it but feel compelled to say “no”….
Some have expressed the fear that a woman who subconsciously
wanted to have sexual intercourse will later feel guilty
and “cry rape.
In 1960, Professor Morris Ploscowe, author
of Sex and the Law (1951), wrote
Complaints of sex offenses are easily made….
the dangers involved to innocence where the law makes it
possible to imprison a man on the uncorroborated testimony
of a disturbed child or a spiteful woman outweigh the necessity
for obtaining convictions in sex offense cases.
These quotations articulate without inhibition
what remains “common sense.” I suggest, however,
the bias is veiled by gender-neutral language and political-correctness.
Hidden gender bias is more difficult to overcome because
it is denied. (This is not a criticism of gender-neutral
language, which I support.)
Myths Continue to Influence Court Proceedings
Judicial decisions show the tenacity of
assumptions about women and our response to violence. For
example judges in the United States have held that rapes
were “not violent” when the complainants did
not suffer physical injury, and imposed light sentences
because defendants are executives and caring fathers.
As the noted Canadian legal scholar, Elizabeth
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’.
Since 1982, 40 states and seven United
States federal court Task Forces on Women in the Courts
have documented the pervasive bias against women in the
courts. “Women are often denied equal justice,”
concluded the New York Task Force on Women in the Courts
Following the reports of the Task Forces,
there is continuing work to implement reforms and monitor
institutional change. In 2002, the New York State Judicial
Committee on Women in the Courts reported that the testimony
of rape victims is accorded less credibility than the testimony
of victims of other crimes. Often, domestic violence victims
are not believed. They are accused of provoking the violence
and penalized “for failing to proceed with court cases
despite the difficulties and even dangers of pursuing abusers
through legal processes.” Protection order applications
are denied as “merely tactical maneuvers” when
matrimonial cases are brought. Frequently, domestic violence
is ignored when judges make decisions regarding access to
The decision of the United States Supreme
Court in U.S. v. Morrison striking down the civil rights
remedy in the Violence Against Women Act shows that women’s
rights are not civil rights. Also, compare the “strict
scrutiny” Constitutional standard applied to racial
discrimination, Grutter v. Bollinger, with the “heightened
scrutiny” Constitutional standard applied to gender-based
discrimination, J.E.B V. Alabama ex rel. T.B.
Overcoming the Myths
In the U.S., expert testimony is the accepted
tool for making judges and jurors aware of social science
and medical research that disproves the myths regarding
sex crimes and domestic violence. Expert witnesses help
triers of fact resist the tendency to rely on stereotypical
assumptions in reaching their verdicts.
Social framework testimony regarding the
incidence, demographics, dynamics, and impact of domestic
violence is admitted in most U.S. jurisdictions. It may
be used to counter popular misconceptions regarding the
prevalence of false allegations, “why she stayed,”
victim provocation, and the behaviors of battered wives
and wife beaters.
In sexual assault cases, testimony recounting
sociological and psychological scholarly literature and
government data may be introduced to overcome the myths
of “normal or proper” victim conduct and reactions,
and that real rape victims resist and suffer physical injuries,
and to document that most rapes are perpetrated by men known
to the victims.
Mental health evaluations, however, are
costly and delay trials. They are unnecessary when there
is no issue of mental illness or disorder. The determination
of the child’s best interests and parental relative
fitness should be decided by the court based on the testimony.
Another weakness of clinical mental health
evaluations is that mental health professionals rely on
self-report by the parties being interviewed. Often, the
statements are taken at face value. Collateral sources may
not be available to test the impressions created in the
Abused women may be fearful, anxious, tearful,
depressed, or angry during mental health evaluations. Mental
health professionals often conclude women who present these
feelings are hysterical or vengeful. They do not recognize
these feelings are reasonable responses to prolonged abuse
By contrast, the abusive spouses may present
as calm during clinical assessments. The mental health professional
may therefore conclude that abusive partners are stable
and the more appropriate parents. This demeanor, however,
may be a manipulative veneer or an expression of their sense
of power and entitlement.
The current literature on “high-conflict”
divorce cases fails to differentiate money disputes from
domestic violence cases. There is support for mandatory,
court annexed divorce and custody mediation as the way to
resolve difficult divorce cases. This process places domestic
violence victims at risk of continued harm and at a negotiating
Expert witnesses presenting social framework
testimony and mental health professionals evaluating or
treating the victim of domestic violence or rape have a
duty to testify honestly in accordance the ethical guidelines
which govern their professions. They may not allow their
roles in the movement against violence or their alliances
with their clients to interfere with accurate descriptions
of the scholarly literature, their clinical observations,
and the condition of their clients.
Opening and Closing Statements
Openings and summations can be used to
build empathy: help the triers of fact to stand in the shoes
of the sexual assault or domestic violence victim. For example,
asking them to consider making life changes. Have you ever
attempted to stop smoking? Exercise consistently? Lose weight?
Wake up earlier? Were these goals difficult to achieve in
Now, imagine changing your entire existence:
taking your children and leaving your home and everything
in it for an uncertain existence in a time of extreme crisis,
with the reasonable fear that the person you are trying
to escape will follow you. It is like the aftermath of an
earthquake, where you await the after shocks: like the problems
faced by the survivors of the tsunami. A domestic violence
victim lives with a criminal everyday.
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