The incredible woman: A recurring character in criminal law

Abstract

The legal system generally as been sceptical of women's ability to tell the truth. In law, honesty appears to be a ‘sex-linked characteristic.’ This is evident in rape law, wherein common law systems (deriving from Britain) have long considered women are prone to making false complaints, so that the legal system must protect men from this possibility. A rule that a woman's word in court that she was a victim of rape should be corroborated by other evidence before an accused man could be convicted placed the woman in the same category as an accomplice to a crime. Even so- called reforms to the law relating to criminal assault at home and other forms of domestic abuse of women are imbued with the notion that women are not to be trusted, and that women are not as worthy of the concern of the criminal law as other victims—namely, men. Thus laws now provide that a woman (or the police) can make an application for a non-molestation order, an injunction, or an intervention order against her husband or de facto husband. The idea here is that the law will say to the man, through the order, that having once beaten her, harassed and molested her, he ‘shouldn't do it again.’ If he does, he will effectively be in contempt of court: having defied an order of the court. This means that women who are beaten and are thus the victim of criminal acts, have to go through a procedure which effectively decriminalises the abuse they have suffered. Any one who suggested a bank, having been robbed, should go to court to seek an order that the robber ‘not do it again,’ as the only remedy, would be regarded as a fool. Yet this is the position taken by governments which purport to have women's interests (and women's lives) in mind. Lacking credibility as victims of the criminal acts of husbands, women now remain victims of crimes which are defined as ‘no crime.’ Women sex workers are perhaps at the nadir of credibility in the criminal justice system. Decisions in Australia indicate that according to the law when a prostitute is raped, she suffers little. Somehow, her work ‘conditions’ her to rape. Women are also rendered ‘incredible’ through a definition of the accused woman as ‘ill’—the ‘raging hormones theory.’ Because she has an identifiable menstrual cycle (which makes her different from men), women are defined as more like men: more likely to commit crimes. This notion underlies the laws of infanticide and pleas of ‘pre-menstrual tension,’ or the notion that the menopause ‘makes women shoplift.’ There is a credible future for women in the legal system, through the work of the Women's Movement, in high- lighting the inadequacies and prejudices of the system, encouraging women to report crimes of rape, assault and the like, and supporting women through the system. Feminist jurisprudence is making changes to the system. Meanwhile, too many women are abused by the law, through being classed as ‘incredible.’