Evidence Law and 'Credibility Testing' of Women: A Comment on the E Case

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.