ABSTRACT

This chapter explores the role of speech and communication in the hearsay rule of evidence. It does so by arguing that the hearsay rule-a rule of apparently universal application and irrelevant to gender-masks a hidden gender bias that works to the disadvantage of women. This disadvantage particularly manifests itself in the courtroom where female complainants in criminal cases may be unable to draw on the testimony of confidantes to enhance their credibility or to provide corroborative support of crucial facts, because such testimony would be regarded as hearsay

What is meant here by ‘gender bias’? I have borrowed the model adopted by sex discrimination legislation in the US and Europe, namely that a bias is considered to exist if the effect of the application of the rule is directly or indirectly to discriminate against one sex. As Fredman explains, ‘the concept of indirect discrimination addresses situations in which equal treatment leads to unequal results’.2 It may well be that some of the arguments that follow in this chapter demonstrate a problem that is applicable to both men and women. However, if it can be shown that the problem proportionately discriminates against women more than men, then the feminist spectre of a gender bias will have been raised. It is my argument that this is precisely the effect of the hearsay rule, owing to gender differences in the use of language.