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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