Abstract
In this case comment on the E decision, a 1997 appeal from conviction overturned by the New South Wales Court of Appeal, Elizabeth Sheehy argues that the defence strategy of using the pseudo-science of False Memory Syndrome to discredit women's accounts of crimes of sexual violence perpetrated against them, revives the discredited myths about women, rape and credibility underpinning the evidentiary rules governing rape prosecutions that have been abandoned or reformed in both Australia and Canada. After setting out the facts and ruling in E, she situates it in the context of feminist analyses of FMS discourses invoked in defence of criminal and civil litigation initiated by women, and in the context of the historical rules of fresh complaint, corroboration, and sexual history. In her last section Sheehy demonstrates the continuities between the discarded doctrine and myths and their re-presentation through FMS in E.
Highlights
Evidence law is not 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]
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
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
Summary
Evidence law is not 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]. Evidence Law and ‘Credibility Testing’ of Women 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. I will return to the E case in order to illustrate the many ways in which FMS discourse revives discarded doctrine and discredited myths
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