Impartiality Versus Advocacy
In 1987 I co-authored the first New Zealand text for doctors performing
sexual assault examinations (Lawton, Goodyear, & Stringer, 1987). In
this book I identified the two roles a doctor must perform when called by
the police to examine an alleged victim of sexual assault: "firstly
therapeutic, as a medical practitioner with responsibilities to a patient,
and secondly, forensic, to provide unbiased evidence for criminal
investigation." When instructing doctors in this work I taught that
when sexual touching was alleged, normal findings should be reported as
"neither confirming nor denying abuse."
In 1988 an organization called Doctors for Sexual Abuse Care (DSAC) was
formed to take over the role of training and coordinating doctors
performing sexual assault examinations, which I had been performing in a
less formalized manner for several years. I was made an honorary member of DSAC in acknowledgement of my pioneering work in this field.
In the intervening years, however, there has been an increasing
divergence between DSAC's perspective and my own. In a recent DSAC text
for doctors performing these examinations (Fancourt, Shand, Broadmore,
& Milford, 1991), the forensic role has been expanded from not only
collecting the forensic data but also to "assessing [the physical
findings] carefully in relation to the given history." DSAC
emphasizes that they believe false allegations are extremely rare, and
that they see their role as police medical officers as advocates for the
complainant. DSAC doctors giving evidence in court in cases involving
alleged sexual touching commonly describe normal findings as
"consistent with abuse."
Despite mounting evidence to the contrary, sexual abuse workers in many
disciplines, including police, DSAC doctors, social workers,
psychologists, and therapists, are instructed that it is extremely
unlikely for a sexual allegation to be false. At the recent DSAC
conference on rape (DSAC Inter-disciplinary Conference: Rape: 10 Years' Progress?, held in Wellington on March 27-30, 1996),
there was continual emphasis on the importance of police and other
professionals believing a complainant. Indeed, the main criticism of the
police was when they approached a case skeptically and focused on looking
at gaps in the evidence rather than supporting the victim. It is now
accepted police policy to treat every sexual allegation as genuine and to
minimize the distress of the complainant by avoiding critical examination
of her testimony.
Frequently, the words "victims" and "offenders" are
used synonymously with "complainants" and "accused" in
pretrial and courtroom settings, seldom qualified by reference to an "alleged victim" or "alleged
offender," even when the initial complaint is being discussed. In his
two-part paper suggesting ways to make the rape trial a less brutalizing
experience for complainants, the Honorable Justice Thomas similarly
assumes that all complainants are victims (Thomas, 1994a, 1994b). The
person who accompanies a complainant to court is called a "victim
advocate" rather than a "complainant spokesperson."
Approximately 45% of sexual offense cases reported to the police are
considered unfounded — that is, cleared by police as disclosing no offense
(Young, 1996). But the audience at the recent rape conference was assured
that this was not because the police did not believe the complainant, but
because there was insufficient evidence to proceed.
Of cases which go to trial, about 50% result in acquittals. Even in
this situation, there is a presumption of guilt by many professionals and
agencies. Chief Justice the Right Honorable Sir Thomas Eichelbaum recently
offered a number of reasons why defendants might be found not guilty,
including juries not being prepared to go far enough and the public
perception with respect to sentencing, but he did not include the
possibility that one reason might be that some of those charged are truly
innocent (Eichelbaum, 1996). Whilst some who are acquitted may actually be
guilty; this prevailing attitude means that once rape allegations have
been made, even a successful defense in court does not allow the accused
to fully clear his name.
This practice of advocacy for sexual offense complainants, which has
been adopted by people working in forensic roles, seriously undermines the
impartiality of the investigation and trial procedures. Inherently
believing that all allegations are genuine means there is a presumption of
guilt, and that police, doctors, counselors and lawyers have therefore
already effectively conducted the trial in their heads. The effects of
confirmatory bias are well documented, and an initial belief in the guilt
of the accused can color how the police, the doctors, and other
professionals conduct their investigations and look for evidence which
might demonstrate the defendant is innocent (Ceci and Bruck, 1995).
In many cases, the police, in fact, find cases unfounded because
evidence indicates the allegations could not have happened; likewise in a
number of trials the accused can mount a defense to prove that he could not have done
what he was accused of. In some instances, charges against a guilty man
might be considered unfounded through insufficient evidence to proceed or
he might be acquitted at trial because it failed to be proved beyond
reasonable doubt. There is, however, considerable evidence to demonstrate
that many allegations are unfounded or result in acquittals because the
man accused is actually innocent of the alleged crimes.
Abolition of the Requirement for Corroboration
Removal of the requirement for judges to caution juries about the
dangers of conviction in the absence of corroboration has resulted in many
cases coming to trial and resulting in convictions which the police
acknowledge would not have got beyond the front counter 10 years ago. Statistics indicate that allegations of violent stranger rape where the
woman goes to the police straight away, a medical examination is
performed, and the police conduct an investigation looking for the
perpetrator are likely to be genuine allegations and are also likely to
result in a guilty verdict.
However, there has been a huge increase in historical claims of rape
(in 1995 more than a third of sexual offense convictions were for events
alleged to have happened more than 5 years prior to the complaint [Spier,
1995]) where there is no corroborative evidence and, frequently, where the
issue rests on whether the complainant consented to sexual intercourse. Some of these charges are based on memories recovered or enhanced in
counseling, others where a relationship has soured and the allegations are
fueled by anger towards a boyfriend or husband. It is these sorts of cases
where false accusations are more likely to occur.
A number of senior legal counsel in New Zealand have also expressed
grave concerns that the legal safeguard of corroboration has been thrown
away. Nigel Hampton QC laments the loss of "that sensible rule built
up over centuries about corroboration: a time-honored and solemn warning
given by judges to juries that it is dangerous to convict without the
presence of corroboration, that is evidence coming from a source
independent from the complainant's own mouth." (Hampton, 1995).
Issues of Consent and an Expanded Definition of Rape
The new legislation says that "consent is negated if the victim
submits or acquiesces because of the application or fear of force to that
person or another." Consent must be "genuine" and
"freely given" and it is not consent if the complainant was not
in a position to make a decision of her own free will. It is no longer
enough for an accused to have believed the complainant consented to sexual
intercourse; the new law now requires that his belief must be based on
reasonable grounds. For example, it has been ruled by the courts that if
the complainant is under the influence of alcohol, she is not able to give
free consent, and it is unreasonable for the defendant to assume that her
acquiescence and participation indicates consent if she is intoxicated.
Justice Thomas (Thomas, 1994b) believes the law has not yet gone far
enough, and that a woman has only consented if she actively and freely
gives her agreement. Participating in sexual activity without saying
"no" or showing any sign of resistance would not constitute
consent, and a defendant would have to be able to demonstrate that consent
had been "positively communicated in an unequivocal manner" to
avoid a conviction for rape.
The current changes in the law have resulted in convictions for rape in
cases where both parties were drunk and the complainant did not indicate
her unwillingness at the time, a case where neither the defendant nor the
complainant could remember whether or not she consented (Crown v Coffey,
1994), and another case where the complaint did not indicate unwillingness
at the time (Crown v Foord, 1991).
Several cases have also come before the courts involving rape within
marriage and the situation categorized as "date rape. No one would
dispute that sexual intercourse which occurs under duress, coercion, or
force constitutes rape. But where there has been no demonstrated
reluctance at the time the issue of consent is clearly very open to
The current rendering of what constitutes consent does not acknowledge
the nature of interactions between men and women. Although the double
standard which condones promiscuity for men but not women was challenged
by our society in the 1960s and 1970s, we have seen its return in the last decade (Goodyear-Smith,
1993). Women are constantly being told by the media and advertising how to
appear sexually attractive to men, with make-up, sexually-alluring clothes
and many other consumer products. The process continues to treat them as
objects and they are given powerful instructions to pay close attention to
their body shape and appearance.
Although women are given the message that they should be sexually
attractive to men, they are not supposed to engage in sexual activity
outside of monogamous marriage. Our society does not encourage women to
enjoy their sexuality as active participants and initiators. Such behavior
can earn a woman the label of "easy lay" or "slut." Presented with opposing messages of sexual allurement and rebuff, it is in
no way surprising that many men are confused as to what constitutes
consent. From a woman's perspective, she may feel pressured into a sexual
experience. But from his viewpoint, her holding back or lack of active
initiation might be seen as modesty, and he might believe she really wants
sexual activity (Goodyear-Smith, 1995). Girls are taught how to say
"no" but not how to say "yes." In a survey of 610
American female college students (average age 19 years), 39% said they had
said no to sex when they meant yes, and 69% said they had said no when
they meant maybe. Of sexually experienced women surveyed, 61% said they
had engaged in token resistance (Muehlenhard & Hollabaugh, 1988).
A woman might actively participate in the heat of the moment, and this
is especially likely to be true when inhibitions are lifted under the
influence of alcohol. But she may later regret her actions and feel she
was taken advantage of. As many allegations are now made historically, she
may decide many months or years later that an episode was rape, often when
the relationship has ended and hostility has developed between the
parties. The issue of consent then becomes a value judgment. He may have
interpreted her actions as "freely given consent." She, however,
may retrospectively interpret his sexual advances. as unsolicited and
subsequently believe that the experience constituted sexual assault.
Rape workers commonly talk about women's rights and men's
responsibilities. If a couple have sexual intercourse whilst drunk, and
the woman freely participated in or even initiated sexual activity at the time, but
later regretted her behavior, the man can be charged with rape because she
was unable to give consent by virtue of intoxication (and it might be said
that "he got her drunk"). In other words, she is not responsible
for her behavior because she was drunk, but he is held responsible not
only for engaging in intercourse but also for her drinking.
Such an attitude disempowers women. Whilst rape is never to be
condoned, women should learn to take responsibility for their own behavior
and to avoid situations where unsolicited sex is more likely to happen. Feminist dogma says that just because a woman kisses and cuddles with a
man, goes back to his flat alone with him, takes off her clothes and gets
into bed with him, this does not mean she has given permission to engage
in sexual intercourse. No matter how sexually provocative a woman's
clothing is, no matter how freely and enthusiastically she engages in
sexual foreplay, she has the right not to engage in unwanted sex. Whilst
this is true, women should take responsibility for behaving in ways that
maximize the chances of their rights being maintained. Similarly,
pedestrians can claim the right not to be run over by a motor vehicle, but
they can significantly reduce the chance of that occurring by not stepping
onto a busy highway in front of oncoming traffic. One of our primary
objectives should be the development of a society where men and women
enjoy equal rights and responsibilities.
The broadening of the definition of rape results in a corresponding
expansion of the reported incidence. Amongst other things, this has
implications regarding the perception of the extent of the problem and the
need for resources when various bodies apply for funding.
A commonly cited study looking at the incidence of rape at 32 American
colleges found that, according to the definition of rape used by the
director of the survey, Mary Koss, 17% of 6,159 female students had been
victims of rape or attempted rape an average of twice between the ages of
14 and 21. Koss was, however, appalled that most of these women did not
know they had been raped — in fact, 73% whom Koss categorized as victims did
not think that they had been raped, and 42% had subsequently had sex again
with the man who supposedly raped them (Koss, Gidycz, & Wisniewski,
1987). Some feminist authors, for instance Catherine MacKinnon (1987) and
Andrea Dworkin (1988) even suggest that because of the power imbalance between
men and women, women can never freely give consent, and all acts of sexual
intercourse are effectively rape.
Exploring one's sexuality as an adolescent in the 1990s, whether as a
girl or as a boy, is a difficult and sometimes painful task. Most
teenagers will have sexual experiences they do not like, or later feel bad
about in some way. Defining all unwanted experiences as sexual offenses
and encouraging reporting to the police places men and women in
Teaching communication skills to young people in their interpersonal
relationships is far more productive in preventing sexual assault than
defining incidents involving misinterpretations of each other's behaviors
as criminal offenses. Men and women need to be able to effectively make
known to each other what their expectations are in a given situation, 'and
express what they want and what they do not want to happen.
Evidence that False Allegations are Occurring
In the last two years I have documented evidence of sexual assault
allegations being made in New Zealand which have been proven to be untrue
or are extremely unlikely to have occurred. These include cases in the
following circumstances, although this list is in no way exclusive:
I have spoken with several families where one of their members has been
shown to be wrongfully accused of rape. These are ordinary New Zealand
folk who have suddenly had their lives torn upside down and who have
sustained grave losses from these false allegations. A recurring theme is
how they trusted the justice system and how their faith in society's
social and judicial institutions has been shattered. The stories they tell
are of a presumption of guilt by the police, doctors, social workers, and
mental health professionals who were being paid to investigate the
allegations and of a failure to take into account their side of the story
or to check for evidence which might demonstrate their innocence.
The Backlash Argument
Any criticism of the practices and legislation that have been
introduced this decade is routinely dismissed as "backlash" from
people with reactionary sexual politics. At the DSAC conference mentioned
above, my offer to present the arguments contained in this paper was
declined, and this perspective was not addressed in the meeting. I know
many professionals who share my views, including lawyers, judges, police,
doctors and psychologists, but they, like myself, were not invited to
address the conference. DSAC executive members say that I should not be
allowed to speak because I "do not give a balanced view." Anyone
challenging the prevailing ideology is subject to considerable hostility
and ad hominem attacks.
In the past two years DSAC has actively campaigned to prevent my
speaking to professional audiences or publishing in journals on recovered
memory issues. They have not taken up my invitation to engage in open
debate and, when a psychotherapy tutor agreed to such a meeting, DSAC
tried to have the dean of the school cancel the engagement. Many other agencies and institutions, such as
Rape Crisis and the Clinical School of Psychology at Auckland University,
similarly try to portray me and other professionals who express their
concerns as extreme representatives of the backlash.
I fully acknowledge that women are being raped in our society and have
witnessed first hand the trauma they can suffer. There is no argument that
reforms were needed to reduce the brutality of a rape trial for a woman
making a complaint. As a witness for the Crown, the complainant was often
lost sight of as the legal machinery ground slowly but relentlessly on. It
was certainly important to introduce practices which treated complainants
with sensitivity, but this courtesy should be similarly accorded to all
accused. The hallmark of justice in Western society is "innocent
until proven guilty" and a judicial system is supposed to operate
from a place of neutrality, examining the evidence for an allegation
objectively and deciding whether a crime has been proved "beyond
reasonable doubt." But the impartiality of this system has been
seriously compromised by the practices of validating and supporting
complainants at the expense of the accused.
Clearly, one's perception of balance is affected by where one stands,
but the perspective now appears to be weighted almost exclusively in favor
of the (female) rape complainant against the (male) defendant. The
pendulum has swung to one extreme. Whilst broadening the net might allow
for more genuine offenders to be caught by the system, it has also
resulted in an unacceptable number of innocent people being trapped in the
Rape allegations should always be taken seriously. All complainants
should be treated with sensitivity, compassion, and respect. All those
accused should be treated in the same manner. The police should be
skeptical: they should neither believe nor disbelieve the complainant but
ask, "What is the evidence?" and conduct an impartial
Men and women have equal capacity for both good and evil. Some men do
rape, but some women also cry rape when it has not happened. Deliberate
false allegations are sometimes made for revenge or for monetary gain. Some teenagers knowingly make false allegations to avoid trouble or to get back at overly strict parents or
those who have scorned their sexual advances.
Most false allegations, however, are not intentional lies, but result
from women and children coming to wrongly believe they have been victims
of sexual attacks. The last two decades have seen the development of a
"sexual abuse industry" with a rapid proliferation of workers
involved in its detection and management (Goodyear-Smith, 1993). Children
are coached by suggestive questioning to believe their fathers have
molested them. Concerned adults who suspect a child's stress behavior
indicates sexual abuse set in place an investigatory machine which refuses
to accept the child's denial and results in the child believing she (or
he) must have been a victim, with extensive harm to all involved. Psychotherapists who believe their adult client's problems are due to
childhood sexual abuse contribute to the "recovery" of
pseudo-memories of horrendous childhood traumas, including ritualistic
torture and perversions.
That genuine sexual attacks occur, and the potential damage these
wreak, is not to be denied. However, exaggeration of the incidence of
sexual offenses, the payoffs obtained from sexual abuse "victimhood,"
and contemporary social hypersensitivity and hysteria about sexual abuse
all contribute to people being wrongfully accused of sexual crimes.
Professional denial of the rising tide of false allegations and an
operating premise to always believe the complainant means the accused is
presumed guilty from the outset. Current practices, policy, and
legislative reforms all reflect this. What began as a useful and necessary
process to sensitize police and other workers to the emotional needs of
genuine rape victims has lead to an erosion of the impartiality of
investigation and court procedures in sexual allegations. The principles
of the presumption of innocence, the requirement of corroboration, and
concerns about the ability of children to be credible witnesses all have a
time-honored legal tradition with which we tamper at our peril.
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Fancourt, R., Shand, C., Broadmore, J., & Milford, R. (Eds.)
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Dworkin, A. (1988). Letters from a war zone. London: Secker &
Eichelbaum, T. (1996, March). Overview of the court process of the rape
trial and case-load management: Have we improved in the Last ten years?
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forsaken? New Zealand Law Journal, 23~233.
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offending — the "recovery" of "repressed" memories.
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McKinnon, C. A. (1987). Feminism unmodified Discourses on
life and law.
Cambridge, MA: Harvard University Press.
Muehlenhard, C., & Hollabaugh, L. (1988). Do women sometimes say no
when they mean yes? The prevalence and correlates of women's token
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Spier, P. (1994, November). Convictions and sentencing of
New Zealand 1984 to 1994. Ministry of Justice.
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Goodyear-Smith is a family physician at 380 Wright Road RD2
Albany, Auckland, New Zealand and is the executive director of
COSA (Causalities of Sexual Allegations Incorporated.)