Gender and Expert Witnesses – Part 1

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Part 1: The Role of Experts in Gender Sensitive Trials

Gender issues play a large role in court room dynamics. On one hand, certain types of criminal trials such as sexual assault and domestic violence enshrine strong gender power imbalances and reflect broader social gender struggles. On the other hand, certain civil trials may centre on industries stereotypically dominated by a certain gender, such as the construction and fashion industries. What role do experts play when utilised in gender sensitive trials? Does the gender of an expert witness play a role in the persuasiveness of their evidence in single-gender dominated industries?

The role of experts in domestic violence trials

Experts play a critical role in domestic violence trials. Accepted by both criminal and civil courts as a mechanism for overcoming societal misconceptions about the nature of domestic violence, expert witnesses highlight the nature of the issue as complex and unable to be easily summarised using psychological or medical diagnosis.

The role of experts in domestic violence trials is multifaceted, and includes providing direct testimony on issues such as the consequences, prevalence, and dynamics of domestic violence. Experts also inadvertently aid in the dispelling of myths and common misconceptions about domestic violence such as: why women stay in violent relationships, why women fail to report violence, and why women may drop charges and reunite with their abusive partner.

However, the use of experts can also work against victims in domestic violence cases, particularly in custody disputes. At the recent Victorian Royal Commission into Family Violence, for example, it was noted that since the psychological effects of abuse continue for a significant period of time after the victim leaves an abusive relationship, victims may often appear erratic and mentally unwell at custody hearings. The perpetrators, on the other hand, appear calm and rational. Expert evidence given by court-appointed psychologists and psychiatrists on the mental state of the victims of domestic violence based on their behaviour may subsequently detriment their cases when deciding on the ultimate question of custody.

The US National Resource Centre on Domestic Violence provides guidance on the ideal qualifications for expert witnesses in domestic violence trials (albeit in the US context), noting that experts should “ground their testimony in an established body of knowledge rather than in popularised notions or ideological slogans”, as courts will often require witnesses to cite peer reviewed research which has been accepted into the scientific community. Experts should also be knowledgeable of domestic violence within the context of different cultures, as the nature and consequences of domestic violence differ significantly across cultural borders.

The role of experts in sexual assault trails

As in domestic violence trials, experts play a vital role in sexual assault trials, particularly with respect to reducing societal misconceptions about sexual assault. Particularly, they provide explanations for the counterintuitive behaviour often displayed by victims such as: delayed complaint, lack of resistance, and lack of emotion following the assault or at trial. Research by Annie Cossins of the University of New South Wales noted that sexual assault trials are unique in that in no other trial can a defence attorney tap into so-called “gender based double standards” based on societal expectations about how women and men should behave. Consider, for example, the pervasive belief that a female who consumes drugs or alcohol, wears provocative clothing or acts flirtatiously is partially responsible for the assault.

The use of experts can assist in highlighting these often ingrained gender stereotypes and dispel misconceptions about how “real victims” should behave, bringing such issues to the forefront of juror’s minds. Experts can also corroborate the testimony of a victim by providing a scientific context against which the victim’s account can be assessed. Evidence provided by experts can stem from research and scientific literature or take the form of clinical evidence form, for example, a psychiatrist specialising in the treatment of sexual assault victims. Clinical evidence may also include an opinion such as whether the expert believes the victim has been sexually assaulted, though such evidence is often criticised as replacing the role of the jury. Careful consideration of the opinion and credibility rules under the relevant Uniform Evidence Act is required before determining whether or not such evidence will be admissible.

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