Academic

Simon-Kerr on "Honor," Gender, and Impeachment of Witnesses

By Lawrence Solum

Julia Ann Simon-Kerr (Yale University - Law School) has posted Unchaste and Incredible: The Use of Gendered Conceptions of Honor in Impeachment (Yale Law Journal, Vol. 117, No. 1854, 2008) on SSRN.  Here is the abstract:

This paper demonstrates that the American rules for impeaching witnesses developed against a cultural background that equated a woman's "honor," and thus her credibility, with her sexual virtue. The idea that a woman's chastity informs her credibility did not originate in rape trials and the confusing interplay between questions of consent and sexual history. Rather, gendered notions of honor so permeated American legal culture that attorneys routinely attempted to impeach female witnesses by invoking their sexual histories in cases involving such diverse claims as title to land, assault, arson, and wrongful death. But while many courts initially accepted the notion that an unchaste woman might be a lying witness, most jurisdictions ultimately rejected unchastity impeachment as illogical or irrelevant. In the process, the gendered notion of honor may have influenced judicial preference for reputation evidence over evidence regarding specific acts as a form of impeachment. The unchaste/incredible equation remained viable in the law of rape as courts continued to insist that the victim's sexual history was relevant to credibility, consent, or both. Although legal reforms have narrowed the use of sexual history evidence in rape trials, the concept that a woman's sexual virtue signifies her credibility survives today in moral turpitude law and in the treatment of prostitution as a crime that bears on credibility.

Full post as published by Legal Theory Blog on December 05, 2008 (boomark / email).