Thursday, August 28, 2014
J. Guillermo Villalobos , Deborah Davis and Richard A. Leo (University of Nevada, Reno , University of Nevada, Reno and University of San Francisco - School of Law) have posted Honest False Testimony in Allegations of Sexual Offences (in Ros Burnett, ed., Wrongful Allegations of Person Abuse (Oxford Univ. Press, 2015 Forthcoming)) on SSRN. Here is the abstract:
This chapter aims to provide a general review of factors that can lead to honest false testimony by either party to cases involving disputed sexual consent. We focus on three issues. First, we review the inherently and deliberately ambiguous nature of many sexual communications. That is, sexual communication often takes place indirectly, in ways that allow for multiple interpretations of meaning (e.g., via hints, nonverbal communication, lack of resistance rather than explicit consent, etc.). Second, we discuss the vagaries of memory for consent interactions. Given the ambiguity of initial consent interactions and the context in which they are later recalled, memory can be predictably distorted such that each party honestly remembers the same interaction differently. Third, we consider the implications of the involvement of intoxication in many disputed sexual encounters. Collectively, these factors pave the way for misinterpretation, miscommunication and false "gist" (or fully fabricated) memories for what took place: a state of affairs that can lead both parties report honest, but completely different accounts of the events in question.