Overcoming Bias against Women Witnesses
By Marjory D. Fields
Justice, Supreme Court, and Judge Family Court, New York State,
retired
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.
History
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 assault prosecutions.
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.
The Myths
“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 revenge.
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
Sheehy, wrote
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 in 1986.
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 children.
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
Expert Testimony
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 interviews.
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 and degradation.
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 disadvantage.
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 ordinary circumstances?
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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