Queensland University of Technology Law and Justice Journal
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ELIZABETH SHEEHY[*]
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.[1] 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,[2] 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.[3]
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 re-asserted. 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?[4] 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[5] 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,[6] FMS claims
permit the re-assertion of obsolete credibility-testing devices; re-produce 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.[7]
The sex discrimination inherent in disclosure applications and perpetrated
through the use of therapeutic records to discredit
women[8] 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.[9]
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.[10]
In this case
comment I hope to illustrate, using the 1997 decision of the New South Wales
Court of Criminal Appeal in
E,[11] that 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,[12] and perhaps most
importantly, avoids calling women liars. Its sub-text is strategic, since women
and girls may abandon prosecution
when confronted with the high price to their
privacy, dignity and sanity exacted by intrusive defence
tactics.[13]
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.
The E case was decided by the Court of Criminal Appeal in New
South Wales in 1997. The case had been tried in 1995 and resulted in a
conviction
of E. In fact, this was the second prosecution of E for crimes of
sexual violence against his step-daughter M and his third set
of charges for
crimes of sexual violence against a child, since he had also been charged but
acquitted of sexual assault against
his daughter R.
The first set of
charges was based upon the statements of M, who had, when she was nine years old
in 1988, disclosed sexual assaults
involving sexual touching perpetrated against
her by her stepfather E during the past year when she was eight or nine years of
age.
He was charged by police with those assaults and he entered guilty pleas;
he was released on a three-year recognizance bond and not
jailed. Thereafter, in
1989, a doctor found evidence of severe damage to M's anus—‘a huge
split’-- as well as older
damaged tissue, and suggested to M and to her
therapist that since constipation had been ruled out, the injuries were
consistent
with repeated anal intercourse.
In1993 M's half-sister R
disclosed sexual assaults perpetrated against her by E when she was five years
old by inserting his penis
into her mouth, removing her clothes and rubbing his
penis over her body, attempting to insert his penis into her vagina, and
inserting
straws and pencils into her anus. E’s acts of sexual violence
against R were the subject of a second set of charges. Soon thereafter
in 1993,
M made further disclosures to police, and gave a statement describing a series
of assaults from the time she was five until
she reached eight years of age that
involved E inserting his fingers and straws in her vagina. She dated these
assaults by reference
to a medical visit to investigate blood in her faeces. She
made a further statement to police in 1995, before E was actually tried
on the
charges relating to R, describing anal penetration perpetrated by E and vaginal
penetration when she was eight. Charges for
the assaults against R subsequently
resulted in an acquittal at trial.
The evidence led by the prosecution
at the trial of M’s two further sets of allegations in1995 included M's
testimony, the medical
records documenting the physical damage to M's body, the
fact that E was an acknowledged pedophile and testimony from M’s mother
that E had confided to her in 1987-88 that he was ‘attracted’ to M,
that he should not be left alone with the child and
urging her to quit work so
that she could ensure that he was never left alone with M.
M was
cross-examined with respect to her failure to disclose these assaults in 1988 to
police when she disclosed sexual touching by
her step-father, and her failure to
reveal these assaults to her counsellor. She was also asked to explain how she
could have forgotten
such a brutal and injurious attack. Her responses to the
defence lawyer’s repeated demand for an explanation were ‘I
don't
know,’ ‘I really can't explain it,’ ‘I just
didn’t know at the time,’ ‘I didn’t
remember until
then,’ ‘I had put out of all my mind about him and everything about
my past,’and ‘probably
...I’d put it at the back of my head
and not thought about it.’[14]
She was cross-examined with respect to possible collusion in making her second
set of allegations because she had stated to the prosecutor
that when she read
her sister's statement to the police, she found that all of her memories came
back. She admitted under cross-examination
that she was upset about the fact
that her stepfather had not received a sentence of incarceration with respect to
his earlier convictions,
that her half-sister R received ‘a lot of
attention’ during the trial of R’s allegations and that she was
distressed
when he was acquitted of sexually assaulting R.
The
prosecution attempted to call expert evidence to explain M’s late and
piecemeal recovered memory. The trial judge denied
the motion but went on to
accept that recovered memory is possible and in fact within common experience
and common sense:
You see a small child is in a very difficult position if the allegations are true. Little children do not commit suicide, they have to adopt some other stratagems to deal with a totally unbearable situation and one of those, and this is a matter of common sense not psychiatric lore, they must try to put in place some sort of defence mechanism whether that is by way of denial or blocking out one does not know.[15]
The
Court of Appeal quashed the conviction on the basis that the verdict was unsafe
and unsatisfactory and entered an acquittal, with
one justice dissenting. The
majority held that on the whole of the evidence the trial judge should have had
a reasonable doubt about
the accused’s guilt because the case was
dependent on M's recovered memories, whose reliability could not be tested:
‘the
point in the appeal then turns on the reliability of MH’s
evidence as distinct from her
honesty.’[16] The majority
held that there is no common or accepted knowledge about children and recovered
memory and the judge was therefore not
entitled to take judicial notice of this
proposition:[17]
I do not accept as common knowledge that, in the case of children, memory of abuse is frequently lost and later reliably recovered. The content of the ostensible memories in this case is beyond common experience. There is no common knowledge on which to draw for guidance. To generate false memories of this kind is not commonplace. To lose memories of this kind for 10 years or so and then to recover them is not commonplace. The case is remote from common experience. There is no common knowledge which is applicable to such a case.[18]
On the
other hand, without the benefit of any expert evidence, the Court of Criminal
Appeal said ‘[f]alse memories are common
knowledge.’[19] There is
‘no guarantee that the event occurred that way or even that it occurred at
all...particularly...when motivations for
having such a memory are
apparent.’[20] Hinting at
these ‘motivations’, the majority said ‘His Honour did not
appear to regard it as being a matter of
significance that the 1995 complaint
was made when her step-sister was very much the centre of
attention.’[21] Further, the
court found that the trial judge’s conclusions contradicted the premise of
repressed memory as a subconscious
process: ‘it is difficult to see how
anything said by MH about her own mental processes could be of
relevance.’[22]
Having
put the possibility of memories being either true or false on the same basis,
the court found that there was no other evidence
on which to conclude here that
M’s memories were true. The court reasoned that although E was an
‘admitted pedophile’,
there was no proof regarding which damage had
been caused by E given that it was reasonably possible that M had been raped by
another
person.[23] As an aside, the
majority also remarked in reference to E’s convictions and his attraction
to the five-year-old M, ‘This
evidence makes plausible conduct which one
would think to be highly unlikely absent such a
disposition’.[24] Finally, the
court questioned the trial judge’s assessment that E was not a credible
witness because he testified without emotion
and simply categorically denied the
allegations. While unprepared to disturb this finding, the court expressed
skepticism about the
adequacy of the foundation for the conclusion that
E’s account lacked credibility, and said that the case must be assessed
putting the ‘appellant’s denials out of
account’.[25]
The
court concluded that there was necessarily a reasonable doubt about the
accused’s guilt in light of the fact that there
was nothing to compel one
to the conclusion that M’s memories were true as opposed to falsely
remembered. At the same time,
it stated that ‘it does not follow that a
case of sexual abuse of a child can never be made out where a memory of events
is
absent for some time and later comes to be experienced. Every case must turn
on its own
facts’.[26]
The
E decision, at first glance, may appear relatively unproblematic. Neither
the trial judge nor the New South Wales Court of Appeal explicitly
relied upon
expert evidence or the “science” of FMS. Neither level of court has
suggested that the young woman was mendacious,
nor has her credibility been
directly attacked through efforts to portray her as promiscuous. It is also true
that the court has
disavowed an intention to set a precedent by stating that the
ruling in E does not mean that a prosecution relying on woman’s
recovered memory regarding crimes committed against her as a child could
never
result in a reliable finding of guilt.
However, by situating this case in
the context of a study that examined the legal understanding of recovered memory
and claims of
FMS in a sample of Canadian cases, one is struck by some common
themes that suggest adherence to FMS discourse and its sex discriminatory
stereotypes. Furthermore, when E is placed in historical context of the
reform of rape law, one sees more clearly the continuity between abolished rules
and emerging
practices that rely on precisely the same beliefs about women, men,
and rape.
As a starting point, it must be noted that the mere hint of FMS in
E was able to overpower a substantial amount of evidence that supported
the trial judge’s verdict of guilt. While it is difficult
to assess
whether E represents any sort of trend in the legal treatment of FMS
discourse in sexual assault prosecutions in Australian courts since I
am unaware
of any studies of this nature, E is worth our attention for the broad
claims to knowledge made by the court, its precedential value as an appellate
decision and its
surprising consistency with trends observed by the available
Canadian research on the use of this evidence in criminal and civil
litigation.
FMS is defined by the False Memory Syndrome
Foundation[27] as operative where a
woman's identity and relationships are centred around the memory of trauma that
is objectively false and that
was created by her therapist. FMS is premised on
the notions that sexual abuse is too serious to be “forgotten,” that
accounts of recovered memories are highly suspect and that therapists
“implant” memories in complainants. This “diagnosis”
is
not recognized by the Diagnostic and Statistical Manual of Mental
Disorders[28] [DSM] or by the
scientific community generally since there is no systematic, recognized study of
a phenomenon of alleged false memory
of sexual
abuse.[29] The claims made by the
FMS Foundation are based upon anecdotal accounts by some parents accused of
historical sexual assault, recantations
by complainants, criticism of specific
methods used by individual therapists and the fact that some portion of the
population is
susceptible to suggestion.
In contrast, the broader
scientific community and the DSM have provided a more reputable research basis
for women’s recovered
memories of sexual violence at the hands of adult
men while they were children. The DSM recognizes dissociative amnesia as a
medical
condition arising from severe
trauma,[30] and sexual violence
experienced by a child is agreed to be one such traumatic event. Indeed,
Canadian courts have relied upon this
knowledge and built doctrine on it by, for
example, extending the limitation period for sexual assault civil claims to run
from the
time when a woman recovers her memory and is able to link it to her
ongoing
dysfunction.[31]
Although the
FMS Foundation has not managed to achieve scientific accreditation for its
theories, its claims have clearly resonated
in public discourses and in some
courtrooms in Canada. For example, two conviction appeals have resulted in new
trials because trial
judges were held to have wrongly refused to admit expert
evidence regarding FMS;[32] one
acquittal has been squarely based upon reasonable doubt grounded in
FMS;[33] and one accused man managed
to achieve acquittal by successfully arguing that his confessions of his crimes
were due to his FMS, due to his wife’s therapy and the stresses he
faced at the time![34]
Beyond these overt adoptions of FMS theory, several Canadian researchers
have found that even judges who have denied expert witness
status to proponents
of this theory on the basis of its lack of scientific reliability have gone on
to rely on FMS claims in their
scrutiny of the evidence. In their study,
Katharine Kelly, Connie Kristiansen and Susan Haslip used a random sample of 10%
of the
170 sexual assault judgments that they found on the Quick Law database in
Canada, both criminal and civil, wherein “false memory”
or
“FMS” was referred to in a sexual assault case, in order to examine
the judicial treatment of this type of
evidence.[35]
The analysis
derived from the work of Kelly et al identifies several common themes
that emerge in the legal treatment of FMS. First, FMS may be accepted as
“fact” by judges
who either repeat its premises or affirm its
“common sense” logic: some say, for example, that careful scrutiny
is required
for all recovered memory and caution that a woman's demeanour is an
unreliable indicator of her credibility because while she may
be honest, equally
she may be deluded.[36]
Interestingly, this basic acceptance of the risk of false memories flies in the
face of judicial acknowledgment that FMS is not
a “science” and is
not accepted by the medical community as a recognized syndrome. Furthermore,
Kelly et al note that in none of the cases they examined did the judge
put the spectre of false allegations or false memories in statistical
context,[37] leaving the erroneous
impression that it is a widespread phenomenon.
Second, the introduction
of FMS discourse in court narrows the issues for adjudication by maintaining
rape prosecutions as single-issue
trials limited to scrutinizing the
woman’s credibility.[38] At
the same time, of course, this focus obscures the issue of the credibility of
the accused man in those cases where he testifies.
It may even elide the
significance of the additional evidence that corroborates the
crime.
Third, FMS discourse generates new myths that discredit women and
deny men’s responsibility for rape. These myths are deeply
gendered and
some are specifically anti-feminist. In the cases, the FMS premises that women
are highly suggestible to implanted memories,
that abuse is too traumatic an
event to ever be “forgotten,” and that the real perpetrators of
abuse are feminist therapists
who have brainwashed their clients, appear in many
forms. For example, Kelly et al note cases that consider whether a woman
has FMS simply by having seen “too many therapists,” having read a
single line
in one book, or having participated in group
therapy.[39] They also identify
judgments that struggle to assess the accused’s guilt or innocence by
reference to whether he can be characterized
as “bad” or
abnormal.[40] Erin Brady in her work
and Kelly et al note intimations in the cases where FMS is raised that
women whose evidence is reliant upon recovered memory are delusional or
psychotic.[41]
So successful
has been the public campaign to convey the “truths” of FMS that
considerable slippage appears in some of
the case law between the definition of
FMS and its application by lawyers and judges. FMS can be inappropriately used
to discredit
large categories of complainants, even though only a small portion
apparently recover memories in
therapy.[42] “False
memory” attacks are launched against women simply because they have used
therapists, whether or not they ever
“forgot” the
rapes,[43] and even in cases where
the rape was not historic, but happened only months earlier. For example, one of
the important records cases
decided by the Supreme Court of Canada concerned
disclosure of records suggesting possible “false memories” where the
woman sought counselling at a rape crisis centre only after she reported
the crime to police (by two months) and only eleven months after the
assault.[44]
Returning to the
E decision, it appears first, at a very basic level, that the
“truths”of FMS have permeated the judgment even in the absence
of an
accepted scientific or research base. The appeal court did not question the
trial judge’s decision to exclude the proposed
expert evidence regarding
recovered memory proffered by the prosecution, and at the same time ruled that
he was wrong to have taken
judicial notice of repressed memory as a survival
device for children. On the other hand, without any expert evidence for the
contrary
proposition, the court simply declared false memories to be common
knowledge. The court did not interrogate the source for this
“knowledge”
or its precise dimensions. As noted by Frank Bates in
his comment on the case, reliance on “common knowledge” instead
of
reliable expert evidence is disturbingly ‘vague and
unsatisfactory’.[45] It also
has a discriminatory impact upon women when the rejected expert evidence
provides support for women’s accounts over
men’s
denials.
More importantly, the court has created a new rule that will
have its greatest impact for appeals of sexual assault convictions because
it
permits appellate reversal of any conviction involving a woman who testifies
based on recovered memory. This is so because the
court stated that while
ordinarily it must defer to a trial judge’s factual findings and verdicts
since the trial judge has
had the advantage of seeing and hearing the witnesses,
it held that where an appellate court experiences a doubt as to the
accused’s
guilt it must act on this doubt to set aside a verdict of guilt
if the doubt does not arise from the witness’s honesty but
rather from the
reliability of her evidence in certain circumstances. Here the court
distinguished assessments of reliability that
depend upon demeanour where, for
example, a witness’s difficulties in recalling events might lead the trier
of fact to reject
the evidence from the kind of unreliability it claimed to see
in this case, which ‘arises in a more abstract way, namely, the
degree of
reliability or unreliability to be accorded to honestly experienced
memories’.[46]
Second,
the E decision on appeal focuses almost exclusively on the
complainant’s credibility and reliability as a witness as opposed to the
character and credibility of the accused, let alone the other evidence in the
case. While it could be claimed that E stands for a narrow proposition
that trial judges’ verdicts can be interfered with by appellate courts
where they depend entirely
on uncorroborated testimony based in recovered
memory, this optimistic view is difficult to sustain in light of the additional
evidence
available in this prosecution and discounted by the appeal court. Bates
comments, for example, that M’s account was substantiated
by the medical
evidence of the extensive trauma to M’s anus: ‘Once the reliability
of one item of evidence had been established,
it was open to the tribunal of
fact to accept the allegations of the complainant that it was the respondent who
was responsible’.[47] It
should be noted here that in addition to the accused’s prior convictions
for sexual assaults against M, his acknowledged
pedophilia and his confessed
attraction to M also corroborated her account. Very few allegations of sexual
assault against children
are supported by this much evidence, such that the
E case, when read with its facts, may effectively provide criminal
immunity for adult men who assault children.
Finally, the E case
supports the myth that normal men do not rape children. This myth is pronounced
through the court’s assertion that in
the absence of E’s prior
convictions, attraction to M, and his pedophilia, it would be difficult to
believe that an adult man
would commit such acts against a helpless child. The
E case also contributes to the exaggeration of FMS, which has been
propagated far beyond its original paradigm. The risks of FMS are
seen as
applicable even though some of E’s assaults were never forgotten and in
fact were reported and prosecuted within a
year of their perpetration: this was
not a child who completely buried the trauma and suddenly recalled the whole of
it years later.
As well, it is clear on these facts that no therapist was
involved in M’s recovered memories so that there was no legitimate
claim
that someone else’s agenda or therapeutic techniques generated false
memories.
E conforms with an overall pattern of resistance, by
lawyers and judges, to the unmasking of sexual assaults committed by
“normal
men” against dependent children, with the assistance of FMS
rhetoric. Furthermore, rape myths that fit with cultural and legal
disbelief of
rape claims but that have been abandoned in our recent history are coded into
FMS “truths”, thus allowing
judges to use “common sense”
to re-present these same myths,[48]
as I hope to illustrate below.
The E decision illustrates the tenacity of the historical
practices and specific rules that governed the prosecution of crimes of male
violence and that were designed to test the suspect credibility of women and
girls. Christine Boyle argues that the male gaze has
shaped the rules of
evidence in the interests of the legislators and judges who placed themselves in
the shoes of the man accused
of
rape,[49] such that the legal
principles addressed the anxieties of powerful
men.[50] These rules of evidence
mirrored women’s subordinate legal status, their exclusion from government
and law and the conceptualization
of rape as a wrong against the property rights
of a father in the case of a previously chaste and marriageable daughter and a
wrong
against the possessory interests of a husband in the case of his wife.
Thus the rape of a woman who was neither chaste nor a wife
was not a crime and a
husband could not rape his own
wife.[51]
The modern
incarnation of the crime of rape in many common law jurisdictions is now more
clearly framed as a crime against the
person,[52] thus reflecting women's
changed legal status and a commitment to protecting women's personal
autonomy.[53] In most jurisdictions
it is no longer lawful for men to rape their
wives;[54] an expanded definition of
the offence frequently encompasses different forms of
penetration;[55] and many sexual
assault laws are now framed in strictly gender neutral terms, including those of
Canada's Criminal Code. However, substantive reform has done little to
alter the practices of credibility testing of women who allege rape as measured
by
unfounding[56] (or “no
criming”) rates and the outcomes of rape prosecutions.
Specific
evidentiary rules were developed for rape allegations in spite of the fact that
there has never been any evidence demonstrating
that allegations of rape carry a
higher risk of false reporting than other
crimes.[57] Rather than responding
to any unique risk of fabrication, these rules reflected women's and girls'
inferior social status and lack
of
credibility,[58] as well as common
myths about women, men and rape. Some of the beliefs that undergird
discriminatory evidentiary practices were set
out and refuted by Justice
L'Heureux-Dubé in R v
Seaboyer[59] in her
dissenting judgment regarding the constitutionality of Canada’s
Criminal Code bar against the admissibility of complainants’ sexual
history evidence. These include the myths that women and girls are likely
to lie
about sexual assault because they are vindictive, motivated to fabricate, and
mendacious; only “bad” women and
girls can be or are raped;
“good” women and girls cannot be raped; if not complained of
immediately and to the first
available person, a rape has likely been
fabricated; women and girls are often mistaken or confused about men's sexual
assaults;
and, without additional evidence, it is dangerous to convict a man of
sexual violence based solely on the word of a girl or a woman.
Current
practices of credibility-testing of women who allege sexual assault find their
origins in three rules of evidence that manifested
women's inequality: the
doctrine of recent complaint, the requirement of corroboration and the use of
sexual history. All three
of these devices can be traced in the E
decision, albeit in more subtle forms than their predecessors.
The invocation of the rule of recent or fresh complaint is implicated in
E by the defence’s emphasis on M’s failure to report all of
E’s sexual attacks at the time she first disclosed when
she was nine years
old. The common law doctrine of recent or fresh complaint held that if a genuine
sexual attack had occurred, the
injured girl or woman would immediately raise a
“hue and cry” to any listener at the first available opportunity.
The
complainant's failure to meet this standard had to be drawn to the jury's
attention by the trial judge as suggestive of
fabrication[60] and jurors were
directed to draw an adverse inference from such a failure. This rule applied
regardless of the complainant's age,
the context in which the attack occurred,
or the nature of the opportunity available to her to report the
assault.[61] Her capacity to
articulate what had happened and the impact of trauma were irrelevant: her
failure to complain immediately to the
first available person indicated her
mendacity.
This rule constituted an exception to the usual rule of
evidence that generally prohibits the introduction of prior consistent
statements
by a witness.[62] Here,
however, prior statements by the complainant amounting to a
“complaint” of rape were required to rebut the assumption
that the
woman or girl was lying. The doctrine of recent complaint has been modified or
repealed in its formal guises in many jurisdictions,
including Canada in
1983[63] as well as in several
Australian states, including New South Wales, Victoria, Western Australia and
the ACT.[64]
Implementation
of these reforms has been partial at best. Kathy Mack and Sharon Anleu report
that although New South Wales law, among
others,[65] requires that a judge
tell the jury that there may be good reasons for a delayed disclosure of sexual
assault in order to counteract
common assumptions about how someone who has been
raped would react, the caution is given in only half of the cases where it is
warranted.[66] Furthermore, the High
Court has muted the potential impact of law reform in this area by ruling that
the trial judge may be obliged
to warn jurors that delay may reflect on
credibility, in order to “restore balance” to the trial
process.[67] In Canada Lorenne
Clark's thorough study of the impact of repeal of the doctrine of recent
complaint has demonstrated that judges
continue to convey the same warnings to
jurors although they do so without using the explicit language of the old
doctrine.[68]
In E
recent or fresh complaint takes a somewhat more sophisticated form. Although
the judges’ focus on M’s selective or incomplete
disclosure may seem
to be a less crude form of scrutiny of the complainant’s evidence, I would
suggest that the court’s
skepticism relies upon precisely the same
assumptions and myths (if it really happened it would be natural for a child to
spontaneously,
immediately and fully disclose the assaults; the gap between
assault and disclosure suggests a motive to fabricate, etc) as does
the simpler
claim of fresh or recent complaint. It is true that recent or fresh complaint in
E is not a mandatory rule requiring a warning as to likely fabrication,
yet in practical effect it counsels acquittal in the absence
of recent or fresh
complaint since there must necessarily be a reasonable doubt if the prosecution
relies upon recovered memories.
These observations may form part of a larger
pattern: the study by Kelly et al also notes that preoccupation about
recent or fresh complaint emerges in eight of the 19 cases sampled where FMS was
alleged and
where, most commonly, judges referred to the presence or absence of
recent complaint.[69]
The corroboration requirement is also at play in the E decision,
in both the majority and dissenting judgments. Historically, this common law
rule held that a conviction should not be
entered in the absence of independent
evidence corroborating an account of rape by a woman or a girl, and some
statutory versions
of the rule actually prohibited such a
conviction.[70] The testimony of
women and girls was presumed dishonest or mistaken, and independent,
“objective” evidence was required
for a conviction to be entered
against the accused.[71] This rule
was uniquely applicable to specific sexual offences in many jurisdictions like
Canada[72] and was not a principle
widely applicable to other criminal offences or even to other
victims.[73] The common law version
of this doctrine did not bar convictions without corroboration, but required
judicial warnings as to the danger
of convicting in such circumstances. However,
Western Australia’s governing statute in 1902 prohibited a conviction for
unlawful
carnal knowledge based on the uncorroborated testimony of one witness,
defined as ‘testimony which is not corroborated in some
material
particular by other evidence implicating the accused
person’.[74]
In Canada
the statutory version of the corroboration requirement was repealed by statute
in 1976.[75] Judges continued,
however, to rely on common law doctrines and to warn juries that it was
dangerous, although not prohibited, to
rely upon the uncorroborated testimony of
a woman or a child regarding a sexual attack. The legislature then explicitly
prohibited
judicial exhortations regarding the dangers of uncorroborated
evidence in 1983.[76] The
requirement for a corroboration warning has been abolished by statute in several
Australian states, including Victoria, Tasmania,
South Australia, Western
Australia and the ACT.[77] The
Australian reforms tend to echo that enacted in New South Wales in 1981, which
abolished the requirement for a corroboration
warning and essentially left it
within the discretion of the presiding
judge.[78]
These reforms
have been undercut in Australia by the High Court in a decision that held that
repeal of this rule did not affect the
requirement to give a warning in the
particular circumstances of a sexual assault
prosecution.[79] The Department for
Women's study of New South Wales cases found that in 40% of the cases studied in
1994-95, a strong corroboration
warning was given by the judge; in 59% of the
cases a more moderate warning was given, suggesting to the jury that they
scrutinize
uncorroborated evidence with “great care;” and in only
12% was no warning provided by the
judge.[80] Equally disturbing were
some of the judicial comments made that demonstrate tremendous resistance to
discarding the corroboration
warning.[81]
In E, the
dissenting opinion commented that ‘If the complainant’s newly
retrieved consciousness of [her memories of the alleged
events] were unsupported
by independent corroborative evidence I would share the concerns of the majority
about the safety of the
verdict’.[82] The majority
opinion did not focus on the corroborative evidence identified by the dissent
(the medical evidence, E’s strong
attraction to the child) and instead
focused on the lack of evidence corroborating M’s allegation that E was
the perpetrator
of the assault against her:
His Honour could not and did not find, on the evidence, that the accused had been the perpetrator of all of the damage to the anus. The corollary of that finding was that it was reasonably possible that much of the damage had been done by some other person. As to the consistency mentioned by His Honour between MH’s complaint and Dr Small’s findings, it is true that Dr Small’s evidence established that the complainant had suffered anal penetration by some person or persons. That was consistent with MH’s evidence, but the evidence went no further than that. ... His Honour mentioned that there was no direct corroboration of MH’s evidence as to the facts charged in the three counts.[83]
It
will be noted here that the majority in E relied upon a much narrower
understanding of corroboration hearkening back to older statutory versions of
corroboration that required
evidence that went to a significant aspect of the
crime alleged and that directly implicated the accused. In other words, evidence
that supports aspects of the allegation or supports the complainant’s
credibility and reliability may not be adequate to the
task of corroboration,
particularly in cases where the woman relies upon recovered memory. For example,
in the Canadian context,
one appellate court stated that ‘this type of
case, perhaps more so than others, carries with it the potential for a serious
miscarriage of justice’[84]
but upheld the conviction, because, ‘having recognized the inherent
frailties associated with the complainant’s evidence,
the trial judge
quite properly recognized the need to proceed with caution before acting upon
it. To that end, he ... sought out
confirmatory evidence designed to restore his
trust in the complainant’s
testimony’.[85]
In E the court’s reliance upon the complainant’s
sexual history as part of her discreditation is even more subtle, but I would
suggest that her previous victimization was used against her in this case. One
might think that the accused’s prior guilty
pleas with respect to assaults
upon M and the extensive damage to her body would only help, not hurt the
prosecution. Instead this
evidence was used in E to obfuscate the
identity of the perpetrator and to undermine M’s credibility.
Historically, the law of evidence permitted
the questioning of women
complainants in rape prosecutions regarding their reputations for chastity and
their past sexual experiences
in order to suggest consent, dishonesty and
unreliability. It is extremely rare for defence to use a victim's past acts to
argue
that no crime has occurred outside of the context of a rape
trial[86] and the rule is very
difficult to justify based upon ordinary evidence law because witnesses' past
sexual acts would normally be
seen as extremely collateral to the issue of an
accused's guilt.[87]
Canadian
legislators have introduced legislative measures on two prior occasions to limit
defence access to women’s sexual history
and both have failed miserably.
The first law, passed in 1976,[88]
resulted in judicial interpretations that expanded instead of restricting
defence access,[89] and the
second[90] was declared
unconstitutional in 1991 in Seaboyer as in violation of men's
constitutional rights to a fair trial and to the benefit of the presumption of
innocence: the Court held
that the legislative bar on most forms of sexual
history evidence would prevent the trier of fact from hearing relevant and
critical
evidence that might favour the
accused.[91] Parliament responded to
Seaboyer in 1992 with new
legislation[92] that attempts to
guide the judicial exercise of discretion with respect to applications to admit
women's sexual history evidence.
In Australia, statutory reforms in most states
have been enacted that place some limits upon the elicitation of complainants'
sexual
history evidence, yet still permit judges to exercise their discretion to
admit the evidence in certain circumstances. For example,
South Australia,
Western Australia, Tasmania, Victoria, New South Wales and the ACT have
introduced reforms of this
nature.[93]
In spite of many
different legislative attempts to curb defence efforts to discredit women
through cross-examination on their sexual
pasts, no jurisdiction can claim any
clear success. Studies in Tasmania, Victoria and New South Wales indicate that
the evidence
is raised in 38, 30 and 35% of the cases respectively without even
making the required application to
court.[94] Other work suggests that
the criteria for admission are not being applied even when proper application is
made,[95] and that there is judicial
resistance to legislative guidelines that curb their
discretion.[96] One Canadian study
sponsored by the Department of Justice has found a fairly high rate of admission
of sexual history evidence as
well as judicial reliance upon discredited myths
about women and rape since the 1992 enactment of Canada's post-Seaboyer
law regulating the use of women’s sexual history
evidence.[97]
It is, of
course, a contentious claim to argue that M’s prior victimization is her
sexual history for the purpose of evidence
law and to support the point that FMS
is being used to displace rape law reforms. However, in the Canadian context,
defence lawyers
attempt to secure the admissibility of prior victimization of a
given complainant in order to undermine her testimony by suggesting
that: she
was damaged by prior trauma such that she is an unreliable witness who may have
imagined additional assaults; even if she
was assaulted she may be confused and
thus mistaken as to who injured her; her earlier rape allegations were not
substantiated such
that her current disclosure is tainted by her earlier
statements; or if the complainant is a child, her detailed knowledge of sexual
matters should not be relied upon as evidence corroborating guilt on the part of
the accused because her experience was acquired
through prior
victimization.[98] In other words,
M’s past victimization was in fact her “sexual history” in the
sense that it was highly prejudicial
evidence that rendered her vulnerable to
the “calling up” of the pernicious myths about women and rape. In
E, the prior victimization of the complainant was used overtly to suggest
that her evidence was either dishonest or unreliable because
she had not earlier
disclosed all of E’s crimes against her. Her prior victimization may also
have affected the credibility
of her evidence since her traumatic experiences
were seen to have undermined her identification of E as the perpetrator.
The link between M’s sexual history of victimization at the hands
of her step-father and her discreditation is perhaps made
more obvious given the
specific myths that were invoked to justify judicial doubt as to E’s
conviction. Here it is important
to note the inherent conflict between these
myths and the FMS theory that M may have honestly, but erroneously, recalled
attacks
by her step-father, as this conflict shows that FMS claims are not
benign. The appeal court identified two classic “motives
to
fabricate”–revenge exacted against M’s step-father and a
craving for attention– and suggested that such
motives may subconsciously
shape recovered memories. The attribution of motives of this sort relies upon
deeply gendered beliefs
about mendacious, self-centred and cruel women and
girls. The court thus reinforced the notion that reports by women and girls of
male violence must be treated as inherently unreliable and suspect, even when
other evidence supports their accounts, and did so
under the guise of
“common knowledge” about female subconsciousness. Again, E
does not seem to be an isolated example: Kelly et al’s analysis
points out a disturbing tendency in the FMS case law to use women's sexual
history, as gleaned from their therapeutic
records, to discredit their memories
if they are sexually dysfunctional, “promiscuous,” or if the details
of the sexual
abuse are viewed as
“bizarre.”[99]
Every law reform in evidence law that has been generated to overcome sex
discrimination in the adjudication of rape has been met with
counter-moves by
the defence bar and the re-emergence of myths and stereotypes about women, men,
and rape in the guise of new legal
practices and judicial discourses. The
explicit and implicit use of FMS discourse to justify this continuing
resurrection of discredited
beliefs should perhaps not be surprising, although
it is ironic. When science is, for a rare moment, offered in support of
women’s
credibility and reliability, as it has been through the
DSM’s acceptance of recovered memory for traumatic experiences, a
pseudo-scientific
theory that resonates with long-held myths suppressed only
superficially through legal reforms is bound to be far more appealing
for the
players in the criminal law as they struggle to re-assert what they see as the
“balance” in the rape trial. In
fact we have not come so far from
the medieval reliance on the ordeal as a way of testing women's evidence,
according to Marilyn
MacCrimmon:
Ordeals were used in cases of adultery because the witness was believed to not be oathworthy and there was often an absence of visible evidence. Modern sexual assault trials are also viewed by many as battles of credibility and use of therapeutic records to assess credibility may be seen as providing a litmus test which will identify who is telling the truth. This belief assumes, among other things, that rational methods of fact determination developed over the centuries are not reliable and valid measures of the credibility of sexual assault complainants. It is a belief that inflicts severe harm on the victims of sexual assault.[100]
At
the same time as the continuities between historical and modern evidentiary
practices in the treatment of women’s evidence
in rape trials emerge, it
is clear that women’s social and legal status has changed since the
medieval period, even though
women continue to experience oppressions and many
forms of inequalities. This trite observation has implications for rape law
reform
over the longer term, particularly when the presence of women judges and
their dissenting voices is brought into focus. For while
most of the majority
judgments written on rape law in the higher courts are authored by men, a
significant number of the dissents
in these cases are written by women
judges,[101] some who scrutinize
the facts without abstraction or reliance on hypotheticals, and who confront
legal doctrine with rigour and with
full recognition of the responsibility of
judicial choice. In the E case, as is the case in many appellate
decisions in Canadian rape
law,[102] the sole dissenting
justice was a woman. Her Honour Justice Simpson took a much more methodical
approach to the totality of the evidence
against E than did her colleagues,
viewing the doctor’s evidence as reliable support for the
complainant’s evidence based
in recovered memory and adhering to the
principle of deference to a trial judge’s findings on the credibility of
the witnesses
and the
accused.[103]
In
conclusion, the E case shows us both how fragile are feminist victories
in rape law in the face of women’s relative lack of credibility both
socially and legally, and how far we have come in this particular struggle.
Although FMS was successfully conjured up and used to
echo discredited sex
discriminatory myths, an alternative rendering of the truth and the law is on
record in the dissent of Justice
Simpson. Twenty years of feminist activism,
research, publication, litigation and law reform have not failed to leave a
trace.
[*] LLB (Osg H) LLM (Col), Professor, Faculty
of Law, University of Ottawa. The author gratefully acknowledges the tremendous
administrative
support that she received from Dean Malcolm Cope, Warwick Smith,
Peter Rankin and Julie Osborne at the QUT Faculty of Law during
her appointment
as an Adjunct Professor to the Research Concentration in Women, Children and the
Law in May-June 2001; the financial
support that she received from the QUT
School of Law and School of Justice Studies that made her visit possible; the
warm welcome
and collegial support extended to her by members of both Schools,
and specifically Terry Hutchinson, Director of the Research Concentration,
Sue
Currie, Barbara Hocking, Barbara Hamilton, Vivienne Levien, Fiona Martin, Sally
Kift, Geraldine Mackenzie and Helen Stacy; and
the incisive comments of an
anonymous reviewer that greatly improved this comment. All errors remain my
responsibility.
[1] See generally
M MacCrimmon, ‘Developments in the Law of Evidence: The 1995-96 Term:
Regulating Fact Determination and Commonsense
Reasoning’ (1997) 8
Supreme Court Law Review
367.
[2] In Canada it was not
until 1983 that rape was rendered ‘gender neutral’ in statutory
language: Criminal Law Amendment Act, SC 1980-81-82, c 125. Rape and
sexual assault remain, however, crimes that are overwhelmingly committed by men
(99%) against women
and girls (90%): R v Osolin [1993] 4 SCR 595,
669; R v Conway [1993] 2 SCR 872, 877. See also S Bond,
‘Psychiatric Evidence of Sexual Assault Victims: The Need for Fundamental
Change in the Determination
of Relevance’ (1993) 16 Dalhousie Law
Journal 416, 417-418.
[3]
For an example of a very influential text see John Wigmore, who wrote:
‘Modern psychiatrists have studied the behaviour of
errant young girls and
the women coming before the courts in all sorts of cases. Their psychic
complexes are multifarious and distorted
... One form taken by these complexes
is that of contriving false charges of sexual offences by men.’ He went on
to recommend
that no charges proceed to court unless a psychiatrist testified as
to the woman's ability to tell the truth: J Wigmore, Evidence
(3rd ed, Little, Brown, Boston, 1940) s
924a.
[4] G Feldberg,
‘Defining the Facts of Rape: The Uses of Medical Evidence in Sexual
Assault’ (1997) 9 Canadian Journal of Women and the Law 89.
[5] One basis for arguing that
records are likely ‘relevant’ for the purposes of disclosure is that
the rape was reported
to police within a time frame that either corresponded
with or followed upon a course of therapy, and cases where sexual assault
was
disclosed for the first time in therapy: R v O’Connor [1995]
4 SCR 411.
[6] The defence
strategy of seeking access to women's records --school, birth control, abortion,
truancy, child welfare, health, tax,
telephone, diaries, criminal injuries
compensation, letters, counselling, and therapy-- in order to challenge the
complainant’s
credibility, emerged only in the 1990s in common law
countries, but quickly gained the legitimacy of a constitutional right to make
‘full answer and defence’ in 1995 in Canada in
O’Connor, ibid. This defence strategy emerged in the same period in
Australian courts and in December 1995 Australia boasted the first rape
crisis
counsellor to resist disclosure of a woman’s confidential records such
that she was jailed for refusing to obey the
subpoena: M Kingston,
‘Privacy issue as rape therapist jailed’, The Sydney Morning
Herald, 15 December 1995,
1.
[7] A Cossins and R Pilkinton,
‘Balancing the Scales: The Case for the Inadmissibility of Counselling
Records in Sexual Assault
Trials’ (1996) 19 University of New South
Wales Law Review 222, 226 and 230-31 discuss the experience of one crisis
clinic and several therapists who recount that some women decline support
services for fear of disclosure of their records and that the parameters of the
counselling relationship and trust therein are difficult
to establish in the
context of a legal regime that permits the therapeutic relationship to be used
as a weapon against a
complainant.
[8] Ibid 236-40. In
addition to facilitating the resurrection of the old evidentiary rules,
women’s health and counselling records
can be used in a multiplicity of
ways to discredit the complainant because in addition to containing information
about women’s
sexual practices, they may cover a much wider terrain:
women’s struggles with mental illness or depression, any addictions,
criminal misbehaviour or moral failings, such as lies, sexual infidelities or
deceptions, any statements that she made that may suggest
consent on her part or
honest mistake on his, including the self-blaming statements that all survivors
of trauma must work through
in coming to terms with life-threatening attacks, as
well as any statements allegedly made by the complainant, as reported in her
records, that might contradict statements she makes in court. See also K Busby,
‘Discriminatory Uses of Personal Records in
Sexual Violence Cases’
(1997) 9 Canadian Journal of Women and the Law 148 and S Bronitt and B
McSherry, ‘The Use and Abuse of Counseling Records in Sexual Assault
Trials: Reconstructing the ‘Rape
Shield’?’ (1997) 8
Criminal Law Forum
259.
[9] Bond, above n 2,
424-27.
[10] Ibid
430.
[11] R v E
(1997) 96 A Crim R 489 (NSW
CCA).
[12] For example, Roberts
notes that in 1993 in Canada, two-thirds of reported sexual assaults had been
committed against a victim who
was a child, and one-third of victims were under
10 years of age: J Roberts, ‘Sexual Assault in Canada: Recent Statistical
Trends’ (1995-96) 21 Queen’s Law Journal 395,
420.
[13] While we do not know
how FMS allegations affect complainants’ decisions, women subjected to
disclosure applications may decide
not to report or, having reported, to
withdraw from the prosecution rather than submit to this modern
“ordeal:” Cossins
and Pilkinton, above n 7, 226 report the Sydney
Rape Crisis Centre’s estimate that 25% of their clients have made
decisions
not to proceed to court based on the potential for disclosure of their
confidential records. For the argument that disclosure of
records is the modern
form of trial by ordeal for women, see M T MacCrimmon, ‘Trial by
Ordeal’ (1996) 1 Can Crim LR 33.
[14] R v E (1997) 96 A
Crim R 489 (NSW CCA),
491-92.
[15] Ibid
497.
[16] Ibid
501.
[17] Ibid
497.
[18] Ibid
500.
[19]
Ibid.
[20]
Ibid.
[21] Ibid
497.
[22] Ibid.
[23] Ibid
498.
[24] Ibid
498.
[25] Ibid
501.
[26]
Ibid.
[27] S Vella,
‘Recovered Traumatic Memory in Historical Childhood Sexual Abuse Cases:
Credibility on Trial’ (1998) 32 University of British Columbia Law
Review 91, 108-12; SM Vella, ‘Credibility on Trial’
[hereinafter Vella] in M Rivera (ed), Fragment by Fragment. Feminist
Perspectives on Memory and Child Sexual Abuse [hereinafter
Fragment-by-Fragment] (Gynergy Books: Charlottetown, 1999) 135, 136.
Vella notes that the Foundation is an American, non-profit, private
corporation.
[28] (American
Psychiatric Association: Washington D.C., 4th ed,
1994).
[29] The studies
commonly cited by FMS proponents are those conducted by Campbell Perry et
al and Elizabeth Loftus, involving the implantation of false memories in
adults of having awakened during the night through hypnosis
and the implantation
of false memories in children of having been lost in a shopping mall through
persistent prompting by their parents.
For a discussion of these studies and
analysis of the limits of their predictive value with respect to traumatic
memories of childhood
sexual abuse see S Park, ‘Re-Viewing the Memory
Wars. Some Feminist Philosophical Reflections’ in
Fragment-by-Fragment, above n 27, 283, 285-87. More targeted studies have
not been pursued because of serious ethical concerns: D A Poole, SD Lindsay
and
R Bull, ‘Psychotherapy and the Recovery of Memories of Childhood Sexual
Abuse: U.S. and British Practitioners’ Opinions,
Practices, and
Experiences’ (1995) 63 Journal of Consulting and Clinical
Psychology 426, 427 [hereinafter Poole et
al].
[30] Vella, above n
27, 139.
[31] Ibid 145, citing
M (K) v M(H) [1992] 3 SCR
3.
[32] R v
SCH [1995] BCJ No 2538 (S Ct); R v Bel, [1997] NWTJ
No 18 (CA).
[33] R v
GDD [1995] NSJ No 529 (S
Ct).
[34] R v
HWO [1997] OJ No 2287 (Gen
Div).
[35] K Kelly, C
Kristiansen and S Haslip, ‘Memory on Trial: The Use of False Memory
Syndrome in Court’ in Fragment by Fragment above n 27, 155 and 156
[hereinafter Kelly et al]. The authors state at 159 that ‘While the
study is reliable (it could be replicated), the data do not necessarily reflect
all cases where recovered or false memories are at
issue’.
[36] Kelly et
al, ibid 162-63, discussing five of the cases
sampled.
[37] Ibid
165.
[38] Vella, above n 27,
136.
[39] Kelly et al,
above n 35, 171.
[40] Ibid
172-73.
[41] E Brady,
‘False Memory Syndrome: “The Female Malady”’ (1996) 5
Dalhousie Journal of Legal Studies 69, 82-87; Kelly et al,
ibid 168-73.
[42] Poole
et al, above n 29, 432 found in their survey of clinicians that among
adult female clients who initially denied having experienced childhood
sexual
abuse, approximately 15% recovered such memories during the course of
therapy.
[43] R v
JL [1994] OJ No 3262 (Gen
Div).
[44] R v
Mills [1999] 3 SCR 668, as discussed in K Busby, ‘Third Party
Records Cases Since R v O'Connor (2000) 27 Manitoba Law
Journal 355, para 28.
[45]
F Bates, ‘Case and Comment: Eishauer’ (1998) 22 Criminal
Law Journal 233, 234.
[46]
R v E (1997) 96 A Crim R 489 (NSW
CCA).
[47] Bates, above n
45, 236.
[48] Kelly et al,
above n 35, 173.
[49] C
Boyle, Sexual Assault (Carswell:Toronto, 1984)
4-6.
[50] Sir Matthew Hale made
his famous statement in 1734 that is still quoted today suggesting that rape was
‘an accusation easily
to be made, and hard to be proved, and harder to be
defended by the party accused, though never so innocent.’ M Hale,
Historica Placitorum Coronae, vol. 1 (Nott and Gosling: London, 1734)
635-636.
[51] L Clark and D
Lewis, Rape: The Price of Coercive Sexuality (Women’s Press:
Toronto, 1977).
[52] C Nowlin,
‘Against a General Part of the Criminal Code’ (1993)
27 University of British Columbia Law Review 291. He describes the
paradigms that have shaped criminal law have been first protection of male-owned
private property, which was in
turn extended to include male-owned sexual
property. He argues that a further transformation of the paradigm to one that
protects
women’s security of the person in their own right is incomplete
and contradictory.
[53] I
Leader-Elliott and N Naffine, ‘Wittgenstein, Rape Law and the Language of
Consent’ [2000] MonashULawRw 3; (2000) 26 Monash University Law Review 48,
64-65.
[54] In Canada this
reform was part of the 1983 amendments referenced above n 2; in Australia the
High Court abolished men's marital
immunity for rape in R v L [1991] HCA 48; (1991) 174
CLR 379.
[55] See for example
Chapter five of the proposed Model Criminal Code for Australia discussed by
Leader-Elliott and Naffine, above n
53,
66.
[56] Roberts, above n 12,
412. Roberts reports that the unfounding rate in Canada for sexual assault
remains significantly higher than
that for other offences and that sexual
assault has the highest attrition rate among fifteen categories of offences (at
417).
[57] Bond, above n 2,
423; MT MacCrimmon, ‘Consistent Statements of a Witness’ (1979) 17
Osgoode Hall Law Journal 285,
309-13.
[58] C Backhouse,
‘Skewering the Credibility of Women: A Reappraisal of Corroboration in
Australian Legal History’ (2001)
29 Western Australia Law Review
79, 80.
[59] [1991] 2 SCR
577.
[60] C Backhouse,
‘The Doctrine of Corroboration in Sexual Assault Trials in Early
Twentieth-Century Canada and Australia’
(2001) 26 Queen's Law
Journal 297, paras
35-36.
[61] R v Bodechon
[1964] 3 CCC 233 (P EI SC) discussed in Boyle, above n 49,
155.
[62] Boyle, ibid 152
ff.
[63] Criminal Law
Amendment Act, SC 1980-81-82, c 125, s
246.5.
[64] See Leader-Elliott
and Naffine, above n 53, 66, n
93.
[65] K Mack and SR Anleu,
‘Resolution Without Trial, Evidence Law and the Construction of the Sexual
Assault Victim’ in
M Childs and L Ellison (eds), Feminist Perspectives
on Evidence (Cavendish Publishing: London, 2000) [hereinafter Feminist
Perspectives] at 127, 133, n
39.
[66] Ibid 133, n 40, citing
Department for Women, Heroines of Fortitude. The Experiences of Women in
Court as Victims of Sexual Assault (Department for Women: Sydney, 1996)
219.
[67] R
v Crofts [1996] HCA 22; (1996) 88 A Crim R 232; Mack and Anleu, above n 65,
133, n 41.
[68] L Clark,
Evidence of Recent Complaint and Reform of Canadian Sexual Assault Law: Still
Searching for Epistemic Equality (Canadian Advisory Council on the Status of
Women: Ottawa, 1993).
[69]
Kelly et al, above n 35,
168.
[70] Backhouse, above n
60, paras 32-33.
[71] Ibid para
5.
[72] See, however, Scottish
law: although there is a general corroboration requirement for all crimes, it
has a very specific impact
upon the prosecution of crimes of sexual violence: P
R Ferguson, ‘Corroboration and Sexual Assault in Scots Law’ in
Feminist Perspectives, above n 65,
149.
[73] For example Boyle
reports that although there was in the Canadian Code a long list of
sexual offences to which this rule applied, notably absent was indecent assault
on a male: above n 49, 156.
[74]
Backhouse, above n 60, 17, quoting The Criminal Code 1902 (WA) s
188(1).
[75] SC 1974-75-76, c
93, s 8.
[76] Criminal Law
Amendment Act, SC 1980-81-82, c 125, s 246.4: ‘the judge shall not
instruct the jury that it is unsafe to find the accused guilty in the
absence of
corroboration.’
[77]
Leader-Elliott and Naffine, above n 53, 65, n
91.
[78] Heroines of
Fortitude, above n 66, 185-86, discussing s 405C of the Crimes (Sexual
Assault) Amendment Act
1981.
[79] R v
Longman [1989] HCA 60; (1989) 168 CLR 79 as discussed by Backhouse, above n 58, 81, n
5.
[80] Heroines of
Fortitude, above n 66,
188-90.
[81] Ibid
192-94.
[82] R v E
(1997) 96 A Crim R 489 (NSW CCA)
493.
[83] Ibid
498.
[84] R v EFH
[1996] OJ No 553 (CA). para
26.
[85] Ibid para 10. Busby,
above n 44, para 29 suggests that this ruling effectively discourages
prosecution of sexual assaults based
on recovered
memory.
[86] R Pattenden,
‘The Character of Victims and Third Parties in Criminal Proceedings Other
Than Rape Trials’ (1986) Crim L Rev 367,
368-69.
[87] S Easton,
‘The Use of Sexual History Evidence in Rape Trials’ in Feminist
Perspectives, above n 65, 167,
175-77.
[88] Criminal Law
Amendment Act, SC 1974-75-76, c
93.
[89] Until 1976 in Canada
the law permitted the accused to ask the complainant questions about her sexual
past and character, but the
collateral issue rule prohibited him from compelling
her to answer and from introducing evidence to rebut her answers. However,
simply
being asked insinuating questions about one’s sexual past worked to
discredit the complainant. Parliament aimed to restrict
such questions by
requiring a voir dire process and vesting the judge with discretion to
prohibit the application. A 1976 judicial interpretation of the new law resulted
instead in an expanded right on the part of the accused to attack the woman's
credibility by forcing her to answer degrading questions
about her past and
permitting the introduction of evidence to contradict her responses. See R
v Forsythe [1980] 2 SCR 268, discussed in C Boyle, ‘Section 142
of the Criminal Code: A Trojan Horse?’ (1981) 23 Criminal Law
Quarterly 253.
[90]
Criminal Law Amendment Act, SC 1980-81-82, c 125, s
276.
[91] At the same time, the
Court held that the accused cannot use a woman's sexual history evidence for the
purpose of “twin myths”
reasoning, without more, eg, not to baldly
assert she has had sex with some other man previously and is therefore more
likely to
have consented to the accused or that, simply because she has been
sexually active, she is more likely to lie: Seaboyer [1991] 2 SCR
577.
[92] An Act to Amend
the Criminal Code, SC 1992, c
38.
[93] Leader-Elliott and
Naffine, above n 53, 66, n
92.
[94] The studies are T
Henning, Sexual Reputation and Sexual Experience Evidence in Tasmanian
Proceedings Relating to Sexual Offences (Tasmania UP: Hobart, 1996) 24-28; M
Heenan and H McKelvie, Evaluation of the Crimes (Rape) Act 1991
(Department of Justice: Melbourne, 1997) 153; and Heroines of Fortitude,
above n 66, 230, all cited in Mack and Anleu, above n 65, 133, n 34, 35,
36.
[95] T Henning and S
Bronitt, ‘Rape Victims on Trial: Regulating the Use and Abuse of Sexual
History Evidence’ in P Easteal
(ed) Balancing the Scales: Rape, Law
Reform and Australian Culture (Federation Press: Sydney, 1998)
90.
[96] K Mack,
‘Continuing Barriers to Women's Credibility’ (1993) 4 Criminal
Law Forum 327, cited in Easton, above n 87, 187, n
65.
[97] C Meredith, R Mohr
and R Cairns Way, Implementation Review of Bill C-49 (Department of
Justice: Ottawa, 1997) 15-16,
30.
[98] See, for example,
R v Ross [1996] OJ No 1361 (Gen Div); R v
OB [1995] NSJ No 499 (CA); and R v Eyre [1995] BCJ No 1377
(S Ct).
[99] Kelly et
al, above n 35, 172.
[100]
MacCrimmon, above n 13,
56.
[101] See C
L’Heureux-Dubé, ‘The Dissenting Opinion: Voice of the
Future?’ (2000) 38 Osgoode Hall Law Journal 495, 512, where Madame
Justice L’Heureux-Dubé notes that the first four women justices of
the Supreme Court have written
or supported dissenting opinions more frequently
than the men of the
Court.
[102] See, for
example, the dissenting judgment of Justice Abella in R v
Osvath (1996) 87 OAC 274 (CA); the dissenting judgments of Justices
L’Heureux-Dubé and McLachlin in Osolin [1993] 4 SCR 595
and R v Esau [1997] 2 SCR 777; the dissenting judgment of
Justice Fraser in R v Ewanchuk (1998) 57 Alta LR(3d) 235
(CA); and the dissenting judgment of Justice Lane in R v Ecker
(1995) 128 Sask R 161
(CA).
[103] R v E
(1997) 96 A Crim R 489 (NSW CCA), 493.
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