Leigh Buchanan Bienen: Works

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Title: A Question of Credibility: John Henry Wigmore’s Use of Scientific Authority in Section 924a of the Treatise on Evidence
: Leigh B. Bienen
Publisher: California Western Law Review
Issue: Vol. 19, Issue 2 (Winter 1983), pp. 235-268
Description: Prior to the movement of the mid-1970’s to reform the rape laws, and the passage of the first rape reform legislation in Michigan in 1974, the law, as expressed in statutes, reported appellate opinions, and legal commentaries, typically expressed denial, suspicion, and disbelief when confronted with allegations of incest or sexual abuse of young girls. Although the incest cases which received the attention of the legal authorities overwhelmingly involved young female children, the legal system seemed unwilling to recognize the offense. The credibility of the complaining witness was the primary object of the law’s scrutiny: legal authorities often found reasons to disbelieve or, more importantly, discredit and discount reports of incest and sexual assault. This Article will discuss a celebrated example of the legal system’s official denial of the sexual abuse of young girls: section 924a of John Henry Wigmore’s treatise on evidence, which specifically deals with the credibility of female witnesses in sex offense cases.

The law prides itself on being objective and disinterested. An important justification for intervention by a court of law is the introduction of an impartial decision maker. However, the law has not been without its blind spots. Wigmore’s section 924a can charitably be designated one of the law’s more conspicuous blind

spots. Under the guise of arguing on the basis of objective, scientific authority, this section of Wigmore’s treatise simply states that all females who allege sexual assault should be assumed to be ly- ing, a repressive and misogynist position. More important than the characterization of Wigmore’s position is the fact that its author was so wholeheartedly committed to his view that he deliberately misrepresented the supposedly objective, scientific authorities upon which he relied.
In a court of law the question of a witness’ credibility is always material. However, Wigmore seems to have been so convinced that female children fantasize about sexual assault that he went out of his way to recommend a special, radical change in the rules of evidence to discredit their complaints. He was not alone in this conviction. Sigmund Freud went to considerable effort to suppress his own patients’ allegations of sexual abuse as children…



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