This publication describes the means for legally challenging the mechanisms for "discounting" in adult sexual assault cases.
© Copyright 1998 K. E. Renner. This is a pre-publication copy of a working manuscript; it is intended for critical comments and feedback. Individual copies may be reproduced for use in direct support of the National Action Program Against Sexual Assault. For further information on this research series see: www.napasa.org
Is logic optional in the court room?
On the surface, this questions seems like an oxymoron. The credibility
of the courts rests on careful judgements based on reason. If one is in
a courtroom, surely logic is not optional. The goal of the justice process
is to uncover the truth through an impassioned analysis of facts (Davis,
Lloyd-Bostock, McMurran & Wilson, 1995). Yet, when the qualifier "in
sexual assault trials" is added, the issue becomes problematic. For example,
the analysis of the language of sexual assault trials has made clear that
myths about rape and stereotypes about perpetrators and victims of rape
enter into the legal process such that logic is overshadowed (Coates, Bavelas,
Gibson, 1994; Matoesian, 1993). Further, the justice system is perceived
by victims of sexual assault as unfair to them as revealed in the evaluation
sponsored by the Department of Justice (Roberts, Grossman & Gebotys,
1996), as well as by victim-witnesses (Konradi, 1997, 1998). The magnitude
of the problem is documented by the Statistic Canada (1993) finding, that
of the women who self-report having been sexually assaulted, in only .008
of the cases did the offender receive a jail term. This is an exceeding
small proportion of cases that eventually find their way to trial and are
both convicted and sentenced, given both the seriousness of the offense
and the fact that in 85% of sexual assault cases the offender is known
to the victim and easily identifiable (Gregory & Lees, 1994). In sum,
the data is overwhelming that there is a fundamental flaw in the legal
system that creates a social problem of massive proportions.
In this paper, we aim to document that not only are the legal procedures
necessary for a free and democratic society flawed, but these procedures
systematically discriminate against an identifiable group (women and children
who are victims of sexual assault) for whom the legal process is the official
means of recourse. Our objectives are to illustrate the distortions of
the truth that commonly occur in the courtroom by way of myths and stereotypes
about rape, and to identify the techniques of persuasion, frequently based
on illogical arguments, that serve to deny justice to victims of sexual
In our on-going studies of sexual assault and sexual abuse, we have
collected and analyzed quantitative data about the outcomes of cases from
court records (Yurchesyn, Keith & Renner, 1992; Renner, Alksnis &
Park, 1997) and obtained qualitative data about the court process from
court transcripts (Park & Renner, 1998; Parriag & Renner, 1998).
For adults, there are 24 categories that capture the type of questions
that sexual assault victims are asked when they give testimony (Parriag
& Renner, 1998). These categories can be collapsed into two groups:
tactics (methods of questioning) and themes (content of questioning). Tactics
are well-known techniques for distorting communication that come directly
from the psychology of social influence. Themes refer to specific subject
matter that reflects common myths and stereotypes about sexual assault
(e.g., sexual assault "requires" that there be torn clothing, active resistance
on the part of the victim and a complaint filed soon after the incident).
In all, the present analysis draws upon 1,709 clear examples of the 24
themes and tactics that were detected in the testimony provided by 58 victim
witnesses in a total of 54 trials (some trials had more than one victim
witness).Exemplars from each of the 24 categories were analyzed to determine
the degree to which the substance of sexual assault trials were composed
of logical fallacies which prevented the determination of the truth. This
paper examines whether the questioning that occurs in sexual assault trials
meets the standard of logic.
The branch of philosophy known as logic provides rules which establish
when an argument may be considered true or false. These rules comprise
the only valid standards for evaluating whether an argument rests upon
sound reasoning. A logical argument requires accuracy in both structure
and content -- we have found that many of the arguments presented in sexual
assault trials are lacking on one or both of these counts. This paper documents
four ways in which the arguments advanced in sexual assault trials can
fail to adhere to the standards of logic.
An argument based on false premises may not be easy to recognize. It
is rare that the false premise is as obvious as it is in the following
The error in this argument hinges on the false premise that a horse
can be a cow. No one would be misled by this particular argument. Clearly,
the conclusion that a horse in the barn can be milked is false, even though
the argument conforms to the formal structure dictated by the rules of
However, propaganda, advertising and deliberate distortions of communication
frequently incorporate more subtle (yet false) premises within arguments
that have the correct formal structure, and which give the appearance of
a logical conclusion. This technique has been detected in sexual assault
trials whereby false assumptions based on myths and stereotypes about the
nature of sexual assault are incorporated into lawyer's arguments. For
example, the assumption is frequently made that all women at a bar who
are drinking and dancing are available for sex. When a sexual assault victim
reports that she was drinking and dancing at a bar, she is seen as having
consented to sex. When false premises are accepted as part of an argument,
membership in a category is sufficient to reach a false conclusion. This
point can be illustrated by substituting "women" for "horse," "sexually
available" for "cow" and "consent" for "milk" in our original example:
So prevalent is this basic logical error regarding implied consent,
that in 1992 legislation (Bill C-49) was passed in Canada to make consent
to sexual activity an explicit requirement, rather than an implied default
based on some circumstance, such as drinking and dancing. This change in
the law was required because judicial decisions frequently cited the stereotyped
belief that consent could be reasonably (although sometimes mistakenly)
assumed if there was no evidence of non-consent (Sheehy, 1996).
As a further example, Florida passed a special law in 1997 which stated
that the act of providing a condom to an assailant was not evidence of
consent. The law was passed in response to a case involving a stranger
who broke into a single woman's home in the night, and threatened her with
harm if she struggled or screamed. This man was acquitted of sexual assault
because the woman's request that he use a condom, so as not to be further
injured, was viewed by the jury as a reasonable basis for mistakenly assuming
consent. The outcome of this particular case is shocking given that it
is illogical (based on a false premise) to assume that a woman who protects
herself from potential additional harm has actually consented to sex with
a stranger who unlawfully entered her home.
Similarly outrageous examples of false premises occurred in the 54 trials
we analyzed. In one particular case, a defense attorney asked a woman why
she did not object to the sexual advances made by her alleged attacker.
The victim had been forcibly dragged to an isolated location on the waterfront
at 2 a.m. on a cold winter night and forced to disrobe and perform oral
sex on her assailant while he remained fully clothed:
Defense: And in fact when he said "I want you to go down on me," you sat up on your knees and proceeded to perform oral sex on him, is that not correct?
Witness: Yes, yes.
Defense: Now during that time, before doing that, did you ever say to [the accused], "No, I don't want to do that."
Witness: I... no, I was afraid. I was...
Defense: Please, [victim's name]! If you could answer the question.
Witness: I said no.
The Defense asked the victim whether she protested or made clear to
the accused that she was not a willing participant just before performing
oral sex. However, the defense glosses over the relevant circumstances
that the incident occurred in a deserted area where the victim had no hope
of capturing the attention of passers by and that the accused was much
larger and stronger than the victim and had already threatened to throw
her in the frigid water. Any display of resistance by the victim, verbal
or otherwise, was clearly futile. It is reasonable to expect that the victim
was concerned for her own safety and fearful of doing anything to further
provoke her attacker. Yet when the victim answered truthfully that she
did not protest at that particular point in the chain of events, the conclusion
that was drawn by the Defense (and evidently by the jury -- the defendant
in this case was acquitted) was that she did not make it sufficiently clear
to the accused that she was not consenting to the sexual activity. This
conclusion is outrageous and unsupportable. The unfortunate fact is that
this line of questioning is considered fair from a legal perspective.
The logical errors detailed in this section hinge on errors related
to the structure of an argument rather than its content. Formal logical
arguments are frequently presented as categorical syllogisms in which there
are three propositions and three terms. Each of the terms is used twice
and the argument involves explication of how all, some or none of the elements
belong or do not belong in a particular category. In all, there are 256
different relationships among terms that can be delineated within these
parameters, most of which comprise invalid deductive arguments (Copi, 1968,
p.156) according to the rules of logic. For example, whenever the two premises
each contain a negative the conclusion must necessarily be false as is
evident in the following argument:
However, it is possible to present the elements of this invalid argument
in a form that appears logically correct. In sexual assault cases, this
invalid argument might be expressed in the following way:
The conclusion in this argument does not follow from the two statements
that precede it. Although some nonconsensual sex acts result in torn clothing,
some nonconsensual acts do not, thus the lack of torn clothing is not indicative
of consensual sex. To understand the reason why this false conclusion is
often accepted in a courtroom setting, we must reconsider rape myths and
One of the myths about sexual assault is that torn clothing and physical
resistance resulting in injury must occur in order for a sexual act to
be truly nonconsensual. However, many sexual assault victims report that
they try to avoid incurring physical injury (Lonsway & Fitzgerald,
1994; Renner & Yurchesyn, 1994). As a result, their resistance efforts
are either strictly verbal or involve physical exchanges that stop short
of inflicting serious injury. Nevertheless, our previous research shows
that the false argument outlined above appears repeatedly in sexual assault
trials in the form of a line of questions about whether the woman's clothing
was torn and whether she resisted to the point of incurring physical harm
(Parriag & Renner, 1998). Women who do not have torn clothing and who
do not suffer physical harm while resisting a sexual advance are perceived
as having implicitly consented to sex.
So far, we have reviewed how illogical arguments that are categorically
false, either due to false premises or false deductions, are in fact accepted
in the courtroom. The problem does not stop with faulty formal logic, however.
Our analysis of court transcripts reveal examples of many questions based
on informal logical fallacies.
In addition to formal errors of logic involving arguments expressed
in the form of categorical syllogisms, there is a second category of logical
errors involving informal fallacies. Eighteen such fallacies have been
delineated by philosophers (Copi, 1968); see Table 1 for fuller descriptions.
Arguments that are based on fallacies can still be very compelling and
may effectively sway listeners' opinions, especially if those arguments
are passionately presented. For instance, political campaigns frequently
include examples of such logical errors. One example of an argument involving
an informal fallacy is an argument that attacks the character of a person,
but does not address the merits of the case (formally known as argumentum
ad hominem). An example from the political arena would be:
In sexual assault cases, similar attacks are made of the character of
the victim that do not address the merits of the case, but draw attention
to other factors that may cause some observers to evaluate the woman negatively.
In categorizing the content of sexual assault trials, we found many examples
of attacks on the victim's character. Consider this example taken from
a case involving an 18 year old woman:
Defense: On this particular night you were drinking at St. Mary's when
you arrived. That was orange juice and ...?
Victim: Peach Schnapps.
Defense: And later on you were drinking Tia Maria and milk?
Defense: You were of course eighteen and you knew the drinking age in Nova Scotia was 19?
Victim: Yes I did.
Defense: And then you went out and you went dancing? And you said that your usual practice is to go up to people, go up to men, and ask them to dance?
It appears that the Defense is presenting two fallacious arguments simultaneously.
The first argument points to the fact that this woman was actually too
young to be in the bar legitimately:
The second argument incorporates a false premise in addition to an attack
on the victim's character. It hinges on the acceptance of common myths
and stereotypes about sexual assault:
This second personal attack is doubly faulty because it is based on
the false premise that women who go to bars to dance are sexually available
-- women who drink and dance all evening are NOT necessarily seeking to
engage in sexual activity with someone that they meet at the bar.
Another frequently used informal fallacy is when an argument that purports
to establish a particular conclusion is actually applicable towards proving
a different conclusion (Ignoratio Elenchi). Frequently this type
of argument involves focusing on some small detail which is irrelevant
to proving whether a sexual assault took place, and using the witness'
inability to remember this irrelevant detail to imply that their memory
about the assault itself may not be accurate. For example in one case the
witness had been threatened with a wrench during her sexual assault and
was asked about the weapon.
Defense: " You have indicated today that the wrench . . . can you say
that THAT is the wrench that was in the van on that particular night or
is it just a wrench that looks like it?"
Victim: "It was a silver adjustable wrench."
Defense: "So you wouldn't be in a position to tell one silver adjustable wrench from another?"
Victim: "Um, well, when he had it in his hand, I, you know, all I saw was a silver adjustable wrench."
Defense: "But, I mean, you couldn't really tell one adjustable wrench from another adjustable wrench could you?"
Although the witness could not conclusively say THAT specific wrench
presented in the courtroom was the one used in her attack, it does not
negate the fact that a wrench was used in her attack. The important facts
were that she told the police she was threatened by an silver adjustable
wrench, she was able to correctly name the type and color of the wrench,
such a wrench was found in the accused's van, and the wrench found in the
van was an exhibit in the courtroom. However, her inability to positively
identify the wrench in the courtroom was used by the defense attorney to
question the accuracy of her testimony about the facts of her assault.
Clearly, this line of questioning is not logical.
It is not possible in the space available to give a detailed example for each of the types of informal logical fallacies identified by philosophers. The list of fallacies most often found in the courtroom are shown in Table 1 (adapted from Copi, 1968), along with a brief definition and example as applied to sexual assault. The disturbing finding from the standpoint of justice is that exemplars of each of the themes identified in our earlier research on the substance of sexual assault trials can be used as illustrations of formal or informal logical fallacies.
Deductive and Inductive Reasoning
In the courtroom, either a judge or jury must evaluate the answers the
witness gives in response to the questions asked by the Crown and the Defense.
Court proceedings are not deductive exercises designed to find categorical
truth -- seldom, if ever, do the arguments presented in court fit the format
of formal deductive reasoning. Rather, a trial involves reducing the events
in question to a collection of individual scenarios, the content of which
has been captured by our 24 categories (Parriag & Renner, 1998). These
scenarios are connected together in narrative form; the Crown and the Defense
each weave a different version of the events in their closing statements
in an attempt to lead the judge or jury toward a conclusion of guilty or
not guilty. For the judge or jury listening to the versions presented by
the Crown and Defense, the task of reaching a conclusion about whether
a sexual assault took place is an inductive reasoning process.
Logicians distinguish between deductive and inductive reasoning
in the following way:
Inductive arguments do not always explicitly acknowledge that their
conclusions are inferred only with "probability." Furthermore, the premises
of inductive arguments are not demonstratively valid, nor do the conclusions
of such arguments follow with "necessity" from their premises. In the behavioral
sciences, the confidence with which one can make statements about the likelihood
of a particular outcome is reflected in calculations of statistical probability
-- only when the probability of making an error is low enough (e.g., p<.05)
do researchers feel justified in drawing conclusions about a phenomenon
of interest. However, in a courtroom setting, the judge or jury cannot
calculate a statistical probability that can serve to guide their decisions
regarding the likelihood that a particular sexual act constitutes sexual
assault. Rather, they must make a mental approximation of whether the interpretation
of "guilty" can be reached "beyond a reasonable doubt" (i.e., is statistically
The difficulties with estimating probability are not restricted to the
final decision about whether a defendant is guilty or not guilty of perpetrating
sexual assault. There are decision points all the way through the narrative.
The probability of each event in the chain must be considered in order
to arrive at a conclusion regarding whether a given woman was the victim
of sexual assault rather than a willing participant in consensual sex.
Unfortunately, rape myths and stereotypes may lead judges and juries to
underestimate or overestimate the probability of different events in the
chain. As an example of inductive reasoning, consider the rape myth surrounding
torn clothing which we used to illustrate a false deduction. If the victim's
clothes were torn, the Crown attorney introduces them as evidence of the
sexual assault; if not torn, the Defense introduces them as evidence of
consensual sex. The torn/untorn distinction is based entirely on the myth
that a sexually assaulted woman will actively resist having her clothing
removed. Research has shown, however, that a sexual assault victim will
usually submit to the assault rather than risk any further injury, often
removing her own clothing on demand (Lonsway & Fitzgerald, 1994). Statistically,
most women who are victims of sexual assault tend to behave like robbery
victims -- they usually try to avoid being physically harmed in addition
to having something of value taken from them (Renner & Yurchesyn, 1994).
Thus it is actually more probable that a sexual assault victim will
not have her clothing torn. However, the myths regarding what constitutes
"real" sexual assault are powerful enough that the issue of non-torn clothing
remains an integral part of the defense in a sexual assault trial.
The breakdown in the inductive reasoning process that results in miscalculation
of the probability that a particular sexual act was indeed sexual assault
is transparently obvious when the crime in question is a robbery (there
are actually quite a few similarities in the two types of crimes). Consider
When the typical questions asked of sexual assault victims are applied
to the crime of robbery, they are clearly inappropriate. Women who claim
they have been sexually assaulted are routinely asked questions about clothing,
resistance and recency of complaint, the answers to which are used by judges
and juries to reach the conclusion that the sex was consensual and no crime
occurred. If these same questions were asked of in the context of a robbery,
they would not be sufficient to draw the conclusion that the victim voluntarily
gave his money away and that no crime had occurred. In short, sexual assault
victims must meet a different (higher) standard of resistance in order
for their allegations to be taken seriously:
"You were wearing an expensive suit on the street? How much was the
suit worth? And you had money in your wallet? Your wallet was in
your pocket on that street! Is that correct?"
"And when a total stranger asked for directions you stopped in front
of a doorway by an alley, didn't you? You didn't look around to assess
the situation! You didn't move to curb! You stepped into the doorway with
"At the point you were in the doorway, did you say 'No, I do not want
to give you my money.' Did you do anything to let him know you did not
want him to have your money, such as run or shout? No!"
"How many people did you pass on your way to the meeting? Did you tell
anyone 'I was robbed!' Did you go in any store and say 'Phone the police,
I was robbed!' Did you tell anyone at the meeting 'I was robbed!' No! Only
after the meeting did you decide to phone the police, isn't that a fact?
When robbery is the reference point, the differential standard in what
is seen as reasonable questioning in these two kinds of cases is clear.
Robbery victims are never actually asked about their clothing choices,
or about their motivations for interacting with their assailant, or about
why they did not put up more of a fight when their assailant's intention
to harm them became obvious. It is rarely suggested that the robbery victim
provoked the crime; sexual assault victims are not given the same benefit
of the doubt. It is outrageous that women who experience sexual assault
are required to justify their choice of clothing and are subjected to the
victim-blaming inherent in having their responses to the unfolding crime
second-guessed. Few women would go to a social occasion dressed in a manner
that does not match the social standard for that occasion, or would allow
themselves to be physically harmed if they felt that a sexual assault could
not be prevented. Unfortunately, the behaviors which would be viewed as
reasonable and non-provocative in other crime contexts lead to the erroneous
conclusion that women actually invite the sexual acts that are forced upon
them when the crime in question is sexual assault.
Another illustration of improper inductive reasoning in sexual assault
cases involves the argument that if a woman spends time in a bar, has social
contact with a male, and then invites him into her apartment, that any
ensuing sex must have been consensual. We have already illustrated that
this particular argument is based on false premises. Nevertheless, the
defense lawyer often asks questions about the chain of events leading up
to the assault as though they were part of the victim's master plan for
engaging in consensual sex on the occasion in dispute. Yet, at any night
spot, most men are there with the intention of meeting women, just as women
are there with the goal of meeting men. Most women have something to drink,
as do the men. Most men and women do not assume that they will necessarily
have access to sex with people they meet at the night spot simply because
they have engaged in dancing and drinking together. But the improbable
event of dancing leading directly to sex is treated as if it were probable
when the case reaches the courtroom:
Defense: "You found Mr. L. to be an attractive man?"
Victim: "Yes I did."
Defense: "And that is one of the reasons why you danced with him so often, as opposed to the other men that night?"
Defense: "And you were quite content to spend the evening with him weren't you?"
Defense: "You found him attractive, pleasant, polite, interesting?"
The probability of consensual sex when drinking and dancing have occurred
or when the woman's clothing is not torn are greatly miscalculated in sexual
assault cases. Both events are insufficient to draw the conclusion that
consensual sex occurred. Rather, drinking and dancing is the most probable
outcomes of attendance at a night spot -- it is the socially normative
response to being at a night club. On the other hand, lack of torn clothing
is the most probable outcome of sexual assault -- choosing to avoid a physical
confrontation resulting in torn clothing and/or injury is the most frequent
response to being attacked. The practice of treating the improbable event
of consensual sex under these conditions as though it was the probable
outcome of normative social behavior only serves to enhance the existing
In short, inductive reasoning in everyday life is very difficult because
the decision-making process can not be facilitated by the calculation of
statistical probabilities associated with different events. However, there
exists sufficient descriptive statistical research on sexual assault such
that it is possible to ascertain what events are probable and improbable.
Dancing, drinking and untorn clothing at the end of the evening are all
highly probable outcomes resulting from normative social behavior -- these
occurrences cannot be used to imply consensual sex. At the most basic level,
most consensual sex does not result in torn clothing. Thus if a woman's
clothing is torn and damaged, probability favors the belief that the sex
was not consensual. However, it does not follow that because a woman's
clothing was not torn that the sex was consensual. The argument
that lack of torn clothing is indicative of consensual sex is a formal
categorical logical fallacy based on two negative premises that usually
goes unchallenged during the court process. This faulty argument is then
used as an element in the inductive reasoning process by judges and juries
and plays a role in their reaching a verdict (often unjust) in sexual assault
The correct use of inductive reasoning must take into account the simultaneous
probability of many events. To illustrate, the odds of flipping a coin
and getting "heads" is .5 but the odds of getting ten heads in a row is
only .0001, a statistically rare event. If ten heads in a row occur, we
may conclude beyond a reasonable doubt that the coin is loaded. Yet in
sexual assault cases the most basic features of simple probability are
reversed such that improbable events are inferred as probable. These erroneous
probabilities are then combined in a way that often leads to a false and
unjust conclusion regarding whether a particular sex act was consensual
As a final example, consider this case involving a victim who had dinner
with her fiancé's friend. Following dinner, they both had a few
drinks and after the drinks, and she offered to give him some frozen fish,
courtesy of her fisherman fiance. After a few moments of small talk on
the couch in her apartment, the friend sexually assaulted the victim. The
defense lawyer in this case went through the chain of events leading up
to the assault in an effort to lead the jury to the conclusion that the
victim must have wanted sex (the jury accepted this version of events and
found the accused not guilty). In this example, it is improbable that consensual
sex would have happened on the couch rather than the bedroom. In other
trials in which the accused was acquitted, the sex acts in question took
place on the bathroom floor and a concrete hallway even though there was
a bedroom available, and on a frigid water front and a gravel road when
the back seat of a car was available. That these circumstances lead judges
and juries to the conclusion that the disputed sex acts were "probably"
consensual (or in the words of one judge, just "raw sex"), is not justifiable
from the perspective of logic.
Our previous research (Parriag & Renner, 1998) on sexual assault
provided an exhaustive set of 24 categories for classifying the types of
questions that comprise the direct and cross-examination of a witness.
Every case we examined was comprised of an average of 30 distinct scenarios.
Exemplars of the 24 categories consistently double as examples of formal
and informal logical fallacies. Fallacious arguments are then woven together
to lead judges and juries toward a conclusion that is actually based on
faulty inductive reasoning. Of particular importance to explore in sexual
assault cases are the reasons why false arguments have such power, the
mechanisms though which the legal doctrine permits logic to be optional
in the courtroom, and the prescriptive implications for legal reform for
the achievement of greater social justice.
The Power of Myths
The courts are inherently conservative institutions, and they are influenced
by popular myths and stereotypes about the nature of sexual assaults. Unfortunately,
because the courts are the only means of legal recourse available to citizens,
any failure by the courts to ensure just outcomes for sexual assault victims
that results from accepting myths and stereotypes actually serves to reinforce
male sexual violence. But as the sole means of legal recourse, the courts
could potentially be a powerful force for instrumental change. Thus far,
this potential has gone largely unfulfilled in the context of sexual assault
-- law reform in this area has most often occurred in response to pressure
from women's groups rather than from pressure from within the legal system
to correct a fundamental flaw in the legal procedure itself. Thus, while
the courts are far from being the first to recognize the distorting effects
of myths and stereotypes, this recognition must occur so that justice and
fairness may be achieved by women who are the victims of male sexual violence.
The legal mechanism of "discounting" operates in a two-fold fashion.
First, as we have shown in our previous research (Renner, et al., 1997),
the myths and stereotypes operate through selectivity and disparity to
limit the number and types of cases in which victims will receive recourse
through the legal process. Specifically, whenever there is a relationship
between the offender and victim, when there is no physical harm, and when
the offender is not otherwise criminally dangerous, the legal process discounts
the seriousness of an offense through lower rates of prosecution, conviction
and reduced sentences (Frohman, 1991; Gregory & Lees, 1996; Kerstetter
& Van-Winkle, B, 1990). In cases of male sexual violence, there is
almost always a relationship, seldom physical harm, and the offender is
from the family or social network of the victim. Thus, the conditions under
which male sexual violence is excused are identical with the normative
relationships between men and women, resulting in systematic bias against
victims of the crime of sexual assault (Renner, et al., 1997).
The second mechanism, identified and discussed in the present paper,
explains how this discounting takes place. The myths and stereotypes actually
enter into the formal deliberations of the court in ways which violate
the rules of logic. In other words, false premises are accepted as if they
were true, formal and informal logical fallacies are frequently advanced,
and improbable events treated as if they were probable. Because the myths
and stereotypes are so widely accepted, these failures of logic are construed
as reasonable. Given our findings, women are quite right to be skeptical
that their experiences will be validated in court (Gregory & Lees,
1994; Konradi, 1997, 1998). In short, the legal doctrine has failed to
address the phenomenon which it was intended to remedy.
What Can Be Done?
The first issue, the confounding of the nature of male sexual violence
with the excusing conditions, will require a redefinition of the nature
of sexual offenses (Renner, et al., 1997). Sexual assault is a crime that
is distinctly different from other crimes and the courts must take this
difference into account when considering the issues of relationship, harm
and danger. The second issue, the failure of courtroom questioning to meet
the standard of logic, also requires a direct intervention. Responsibility
rests with the official actors in a trial; the Defense, Crown and Judge
each has special legal and ethical obligations for which they should be
The role of the Defense is problematic but not ambiguous. The task of
the Defense is to protect the accused. Many books have been written on
how to effectively cross examine a witness to diminish the effectiveness
of their testimony. Although there is broad latitude given to the Defense
for aggressive cross-examination of witnesses, there are legal and ethical
limits to how far the Defense may go to protect an accused. No party is
allowed to hide or destroy evidence that is germane to the trial. However,
using tactics that are known means of distorting the truth, and knowingly
advancing illogical arguments certainly compromises the integrity of the
legal process. In order for a just and democratic society to flourish,.
the legal process must serve rather than pervert the ends of justice. Yet
in the case of sexual assaults, this goal is not being met as the legal
system fails to bring forward cases which represent the true nature of
sexual assault and facilitates the Defense in conducting an inquiry that
distorts the victim's experience through permitting the use of fallacious
reasoning in the courtroom (Spencer, 1987).
In contrast, the role of the Crown is neither problematic nor ambiguous.
In an adversarial system it is the responsibility of the Crown to prevent
any miscarriage of justice. Typically, this responsibility includes the
requirement that the Crown disclose all evidence to the Defense, even evidence
that may prejudice the Crown's own case, in order that the accused may
have an opportunity to counter all charges. However, this commitment to
defend the ideal of justice has two sides -- it also requires that the
Crown avoid a miscarriage of justice by passively failing to challenge
the introduction of false reasoning by the Defense. The Crown must be encouraged
to adopt a more aggressive role and to actively raise objections to the
obvious logical fallacies.
The role of the Judge is problematic simply because the Judge must deal
with the ambiguity of arguments. While the examples we presented are obvious,
others will be ambiguous. A definitive line between what should be judged
reasonable or unreasonable has yet to be drawn. As a result, a considerable
degree of legal debate will be necessary to clarify what is required to
protect women based on principles of fundamental justice and to protect
and preserve the integrity of the justice process. What is categorically
true, however, is that the Judge has considerable authority over the proceedings
within a trial, and that logic cannot be optional. The difficulty
of the task is no excuse for avoiding the reiterative process necessary
to define the guidelines that judges must follow in order to uphold the
fundamental principle that reason must prevail if justice is to be served.
This process must start with Judges who will not permit the inquiries in
their courtrooms to be a verbal recapitulation of the sexual assault itself
The confounding of the excusing conditions and the defining conditions
of sexual assault (i.e., the existence of a relationship, absence of physical
harm, and a non-criminal background of the accused), results in selectivity
and disparity of social justice. Thus the cases that the courts address
are a small subsample of sexual assault phenomena. By focusing legal attention
on an atypical portion of male sexual violence, a large percentage of women
are excluded from legal protection. The inclusion of the same set of myths
and stereotypes that promote selectivity and disparity into the courtroom
arguments create a situation where arguments based on logical fallacies
are frequently advanced in the relatively small number of cases that reach
The combined effect of these two failures of the legal doctrine exact
a heavy price that has at least three civic consequences: First, women
tend to refrain from reporting sexual assaults. This choice reflects good
judgement on the part of many women, who quite accurately expect the court
to "discount" the seriousness of the offense through distortions of its
actual nature. Paradoxically, women are often blamed for their failure
to make use of the legal system. What seems to be overlooked is that justice
not served is justice denied, and denial of justice weakens the civic pillars
of democratic society. The catch-22 that victims of sexual assault face
is a contradiction for which the legal system, not women, must be held
socially and politically responsible.
Second, fixing responsibility on the legal system requires public and
political recognition that the law and legal doctrine itself is one of
the major sources of the very problem for which it is the intended remedy.
The existence of this type of vicious circle is compelling evidence for
the necessity of a new round of law reform. The law must address the actual
nature of male sexual violence and acknowledge the seriousness of sexual
violence in ways which do not confound the offense of sexual assault with
the conditions that render most other offenses "not serious."
Third, there must be greater reliance on evaluation research, rather
than case law, as the path to achieving higher levels of social justice.
Justice is an ideal, it is not embodied in the technical procedures
and doctrines designed to achieve the ideal. The degree to which the ideal
is approached can only be known through an examination of the outcomes
of the legal process. Thus, constructive social changes that will contribute
to a strong civic foundation require a reiterative process of application,
evaluation, and re-definition of what constitutes justice. Continued reliance
on case law will not lead to social change; the re-definitions must be
based on reason, and each revised application must be evaluated to ascertain
whether greater justice has been achieved. As a continuous reiterative
process, the cycle may be broken at any link. The current paper is quite
specific about the legal mechanisms that are now responsible for failures
of social justice in the context of sexual assault. Our claims that the
current law does not serve women and children well is based on empirical
evidence, not simply on abstract theoretical arguments. We are at a point
where continued resistance to change may be seen as a broken link such
that legal doctrine is an impediment to evolutionary progress toward greater
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|Type||Explanation||Example from Sexual Assault Content Categories|
|1. Argumentum ad Baculum
(appeal to force)
|Use of "strong-arm" methods to coerce another into compliance, e.g., lobby groups remind a politician that they represent a substantial number of voters so the politician will endorse their position.||The defense suggests to the victim that if she wants
to be helpful and avoid lengthy questioning, then she should respond in
a particular manner.
Q: Mrs. M., if you'd answer the question then we'll go on to the next one in a logical fashion. I know you are wanting to be helpful.
|2. Argumentum ad Hominem
(abusive, also known as the "Genetic Fallacy")
|Instead of attempting to disprove the truth of an opponents argument, one attacks the opponent, not the argument itself.||The victim is a blamable person because she drinks on
the weekend. Therefore her testimony about the sexual assault is suspect.
Q: On that weekend, was there drinking every weekend when
you went up?
|3. Argumentum ad Hominem
|Instead of attempting to prove the truth of an argument, the "special circumstances" of the opponent are highlighted which require acceptance of the argument.||Because of the victim's special circumstance, i.e., she
is religious and her faith dictates it is wrong to have sex outside of
marriage, she is unable to "admit" what "really" happened was consensual
Q: You are a very religious person, are you not?
|4. Argumentum ad Ignorantiam
(argument from ignorance)
|Argument that a premiss is true simply because it has not been proved false, or vice versa, i.e., often used with psychic phenomena, telepathy.||One rape myth asserts that if a woman does not actively
physically resist the sexual assault, the sex was consensual . The defense
will introduce evidence whenever possible that active resistance did not
take place to substantiate the claim of consensual sex.
Q: "You didn't hit him at any time did you?"
|5. Argumentum ad Misericordiam
(appeal to pity)
|Attempt to win compliance by appealing to sentiment, i.e. a boy accused of murdering his parents appeals for leniency on the grounds that he is an orphan.||This is a fine young man whose career would be ruined by substantiating such a questionable charge. Often heard in closing arguments by the Defense.|
|6. Argumentum ad Populum||Attempt to win popular acceptance of a conclusion by arousing the emotions of the audience (i.e., jury).||False accusations of rape are made often and are damaging and unfair to the accused.|
|7. Argumentum ad Verecundiam
(appeal to authority)
|Attempt to use obtain agreement by having an "expert" endorse a particular view on a topic that is actually outside the experts field of expertise, i.e., Michael Jordan endorses orange juice.||Probably not applicable to sexual assaults; at least not common.|
|8. Accident||Applying a general rule to a particular case whose "accidental" circumstances render the rule inapplicable, assuming that the rule is true universally, without qualification or context.||Because the victim did not resist the assault (as all
victims should), the defense implies that it was not an assault. He glosses
over the specific facts that the victim was pulled into the room, frightened,
and that resistance may have been useless.
Q: You indicated then that you did not wish to go into
|9. Converse Accident
|Using an atypical case to generate a rule that is supposed to apply generally (but does not). For example, because this person in pain is on morphine everyone in pain should be on morphine.||Although it is true that the presence of weapons would
suggest that coercion had occurred, it is not true that no weapons means
there was no coercion.
Q: Did he every say look 'I have a gun, I have a knife,
you better cooperate, I am going to hurt you with this?'
|10. False Cause
||Mistaking coincidence or temporal succession for causal connection, i.e, going outside in winter gives you a cold.||The defense suggests a lesser form of intimacy had already
occurred (which it had not), and that this activity was causally connected
to the incidents of oral sex and attempted intercourse.
Q: Is it not correct that prior to getting to the parking
lot that you and the accused had embraced and in fact had kissed.
|11. Petitio Principii
(begging the question)
|Premiss and conclusion are identical but worded sufficiently differently that this fact is obscured, i.e., a circular argument.||Regardless of the victim's responses, the defense maintains
his premiss and conclusion that the victim was fabricating her testimony
in the courtroom.
Q: And your memory at that time would have been fresh
with respect to the events that occurred earlier that evening? Would they
not have been?
|12. Complex Question||Several questions rolled into one, presupposes that a definite answer has been given to an unasked prior question., e.g., "When did you stop beating your wife?" implies the prior question, "Were you beating your wife?" Answering the complex question has the effect of answering the prior unasked question as well.||The phrasing used by the defense leaves the witness with
no reasonable answer to his question.
Q: Isn't it true that in the statement you tell the police
of only three incidents?
|13. Ignoratio Elenchi
|An argument that purports to establish a particular conclusion is actually applicable towards proving a different conclusion. For example, the prosecution may argue the abhorrence of murder while trying a murder case, but this does not imply that the defendant is guilty of murder.||The victim has already testified that she was attracted
to the accused and expected that there would be some kissing. The defense
takes each facet of the evening of the sexual assault, and strings them
together to create the impression that consensual sex, rather than kissing,
Q: Miss B., I suggest to you that you met Mr. L. that night and you found him to be an attractive male. And as the evening went on, you found yourself in a romantic situation with him. There was the rose, there was the drink, and there was some touching. I suggest to you that when it was suggested, at 3 o'clock in the morning or whenever it was, that you went together to see the sights, that you were going to further that romantic engagement. And you knew that!
|14. Equivocation||Confusing the different meanings of a word within the same argument, i.e., some dogs have fuzzy ears, my dog has fuzzy ears, therefore my dog is some dog!||By getting the victim to admit that the "sole reason"
intercourse did not occur was because the accused did not have an erection,
the defense implies intercourse would have been a desirable outcome. The
victim meant that she believed she would have been raped otherwise.
Q: You would agree with me then, according to your evidence
that the sole reason there was not intercourse was that the accused never
attained a hard enough erection?
|15. Amphiboly||The premiss of an argument is ambiguous because of its grammatical construction, i.e., the wartime slogan, "Save soap and waste paper".||Probably not applicable to sexual assaults; at least not common.|
|16. Accent||Different meanings can be attributed to a statement depending on which words/phrases are stressed and whether any words/phases are taken out of context. For example, the statement "Woman without her man would be lost" has two distinct meanings depending on which part of the sentence is accented, making it acceptable to members of both sexes.||In this instance, the victim was a strong witness, able
to correct the fallacious conclusion to her statement when the defense
attorney reinterpreted her innocent statement made in a very general context.
Q: He arrived and it was in fact your idea that you go
out for dinner?
|17. Composition||Reasoning from the attributes of the parts of a whole to the attributes of the whole itself, e.g., each scene in the play was a model of artistic perfection therefore the play as a whole was artistically perfect.||The defense outlines each separate fact of the case to
imply that they lead to consensual sex between the victim (a prostitute)
and the accused (her john) rather than sexual assault.
A: I helped him with it any ways because I just wanted
to get it over with.
|18 Division (reverse of #17)||Arguing that what is true of the whole (or collection of elements) is true of its parts (or elements themselves), e.g., IBM is a very important company, Mr. X works for IBM therefore Mr. X. is very important.||The defense is making the point that since the witness
gave graphic, detailed testimony about the sexual assault in the courtroom,
that she should have given the same description to her friend immediately
after the assault.
Q: In fact, what you had told R. of what had happened
wasn't all this great gory detail we've heard today about this horrible
frightening experience, but you merely told him you'd been raped.