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The Repeal of the Requirement of Corroboration in Sex Offences*

Published online by Cambridge University Press:  16 February 2016

Leslie Sebba
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Israel Law Review , Volume 18 , Issue 1 , Winter 1983 , pp. 135 - 149
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Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1983

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References

1 Evidence Ordinance (Amendment no. 6) Law, 1982 (S.H. 1057, p. 197).

2 This Article is entitled “Offences against Morality” and deals with various forms of coercive or deviant sexual acts.

3 Aricha v. A.G. (1951) 5 P.D. 1200; Harnon, E., Law of Evidence (Jerusalem, 1977) Vol. II, p. 12Google Scholar.

4 See the explanatory note to the Evidence Ordinance (Amendment no. 6) Bill, 1980, H.H. 1477 (1980) pp. 397–8.

5 Shvili v. A.G. (1953) 7 P.D. 438, 445.

6 Cohn J. in Ben Homo v. A.G. (1963) 17 P.D. 2857, 2866.

7 See also the judgment of Ben Porat J. in the more recent case of State of Israel v. Bachar et al. (1980) (III) 44 P.D. 517, 523.

8 See the Evidence Ordinance (Amendment no. 6) Bill, op. cit., p. 396.

9 Packer, H., The Limits of the Criminal Sanction (Stanford, 1969)Google Scholar.

10 Report of the Committee of Inquiry on the Subject of Crime in Israel (Jerusalem, 1978)Google Scholar.

10a Now the Criminal Procedure Law [Consolidated Version], 1982 (S.H. 1043, p. 43).

11 Criminal Procedure (Amendment no. 15) Law, 1981. There is no general provision for preliminary proceedings in criminal trials in Israel, but a party may in certain circumstances (e.g., where it is feared that a witness will subsequently be subjected to pressure) request that testimony may be heard before the trial takes place or even before an indictment has been filed.

12 See the Evidence Ordinance (Amendment no. 4) Law, 1979, which added section 10A to the Ordinance. For a digest and English translation of this amendment, see “Digest: Legislation and Cases” (1980) 15 Is. L.R. 570Google Scholar.

13 Criminal Procedure (Amendment no. 8) Law, 1976 (30 L.S.I. 236); see also below.

14 See “Proposed Evidence Law”, (1981) 34 HaPraklit 137–158Google Scholar; and see E. Harnon, “A New Draft of an Evidence Code: Are Revolutionary Changes Desirable?” in this issue, supra p. 99.

15 The repeal of this requirement was, however, ultimately more limited than the change adopted in relation to sex offences; see below.

16 See, generally, Rose, V., “Rape as a Social Problem: A By-product of the Feminist Movement,” (1977) 25 Social Problems, 75–89CrossRefGoogle Scholar.

17 See, e.g., Berger, V., “Man's Trial, Woman's Tribulation: Rape Cases in the Courtroom,” (1977) 77 Colum. L. R. 1–103CrossRefGoogle Scholar; Sasko, H. & Sesek, D., “Rape Reform Legislation: Is it the Solution?” (1975) 23 Clev. S.L.R. 463–503Google Scholar; Shapira-Libai, N., “The Requirement of ‘Something Else’ in Sexual Offences: An Unjustified Exception” (1981) 33 HaPraklit 422–430Google Scholar.

18 See, e.g., Brownmiller, S., Against Our Will (New York, 1975)Google Scholar; Clark, L. & Lewis, D., Rape: The Price of Coercive Sexuality (Toronto, 1977)Google Scholar.

19 The legal situation in Israel is governed by sec. 2 of the Amendment of Procedure (Examination of Witnesses) Law, 1957, which states as follows: “In the examination of a witness before it, a court shall not permit any questioning which, while irrelevant to the case and unfair, is insulting, intimidating, misleading or humiliating” (see 12 L.S.I. 21). A Bill was put before the Knesset in 1980 to amend this Law (as well as to redefine sex offences generally). The proposed new sec. (2A) would preclude cross-examination of a victim regarding prior sexual conduct, unless the court is of the opinion that a miscarriage of justice will thereby result. (Penal Law (Amendment no. 14), 1980, H.H. 1476 (1980) pp. 387, 393. This Bill was dropped at its first reading: Divrei HaKnesset, 1980, p. 4341Google Scholar). It should be pointed out, however, that the explanatory note to the Bill describes such crossexaminations as “not relevant to the defendant's case” and “embarrassing for the victim”. Since these are very similar to the expressions which appear in sec. 2, it could be argued that even today the courts should exclude such questioning under this section. It seems that the present practice is to permit cross-examination as to prior conduct with the defendant, but not with others. (Information supplied by prosecuting attorney.) This represents a departure from previous practice, where questions were permitted regarding sexual conduct with other persons too. (Salant, E., Evidence (Sifrei Ben-Yoseph, Tel Aviv, 1963, in Hebrew) 320)Google Scholar.

20 How far sexual assault legislation should be defined to relate to a particular sex is itself a controversial issue. The government bill referred to in the previous note advocated a “genderless” definition of victims.

21 Cross, on Evidence (London, 5th ed., 1979) 203Google Scholar.

22 See Sebba, L., “The Requirement of Corroboration in Sex Offences” (1968) 3 Is. L. R., 67, 75–81Google Scholar.

23 Ibid. This development was particularly surprising in view of the explicit decision of the Mandatory authorities in 1936 (reflected in legislation) to eliminate the general requirement of corroboration in criminal cases and retain it only for civil cases. See Ginossar, S. and Harnon, E., “The Need for Corroboration in Civil Matters” (1964) 21 HaPraklit 19–37Google Scholar. This development followed from the “crime control” problem of the 1930s in this region, namely, the difficulties encountered by the authorities in securing convictions, at the time of the Arab riots.

24 This survey was conducted by the present author in conjunction with A. Wagman of the Ministry of Justice. A summary of the results appears in Sebba, op. cit., supra n. 22.

25 Sebba, op. cit., at 69–73.

26 This is of course only an impression, since the veracity or otherwise of the complainants in these cases could not be established scientifically on the basis of the files. As to the issues which arise in this context, see below, n. 33.

27 See the judgment of Conn J. in Ben-Hamo v. A.G. (n. 6 above). The Ministry of Justice was presumably contemplating such a change when it commissioned the study referred to above in 1963.

28 It should be noted that the feminist movement developed later in Israel than in the United States.

29 See E. Harnon, Law of Evidence, op. cit., supra n. 3 at 13. This problem may be more acute in Israel than in some other societies, since there are cultural groups in Israeli society in which a revelation of a consensual extramarital sexual relationship could have dire, indeed fatal, consequences for the parties (particularly the female party) involved.

30 Wigmore did not, however, favour the corroboration rule, but rather advocated alternative methods for testing the complainant's veracity. See Wigmore on Evidence, Chadbourn Revision, Vol. III A, 1970Google Scholar, sec. 924a, and Vol. VII, 1978, sec. 2061; see also Sebba, op. cit., at 81–2.

31 See L. Sebba, op. cit., at 86.

32 See Williams, G.L., “Corroboration — Sexual Offences” (1962) Crim. L. R. 662Google Scholar.

33 See especially Shapira-Libai, op. cit., supra n. 17. These refutations were echoed during the course of the legislative process: see the explanatory note to the proposed amendment, H.H. no. 1477 (1980) pp. 396, 398, and Divrei HaKnesset, Nov. 1980, pp. 308 ffGoogle Scholar. The present comment does not purpor t to deal with the substantive issues involved in the above controversy, i.e., with the merits and demerits of having a corroboration rule or other special provision applying to the proof of sexual assaults. It may be helpful, however, to differentiate three separate questions which tend to be confused—and thus in turn to confuse the corroboration debate: (a) Are there special circumstances and motivations for the filing of false or fabricated complaints in connection with sexual assaults, which do not apply to other offences? (b) Are false allegations more frequent in these cases in comparison with other offences? (c) Are false allegations of sexual complaints more difficult to detect than other types of false allegation? While most of the discussion in the literature on the corroboration question seems to relate to the first two issues, it is arguable that only the third issue is truly relevant to the question of whether special rules of evidence are required for convicting of a sexual offence.

34 See the Conclusions of the Joint Committee in the Matter of Changing the Treatment of Rape Offences, Ninth Knesset, June 1978. The Committee's Interim Conclusions were published in February 1978.

35 The Chamber of Advocates, in the evidence submitted on their behalf to the Aloni Committee, also proposed the abolition of the corroboration requirement in relation to the identity of the accused, while leaving the corroboration rule intact in other cases. This differentiation is presumably based on the view that most of the arguments voiced in favour of the corroboration rule, such as fantasy, malice, defence of honour, etc., do not arise where the fact that the rape or other involuntary assault has been established, and the doubt only relates to the identity of the assailant. It is also possible that much publicity was given at that time to a case in which a high ranking military officer was acquitted of a sexual assault for lack of corroboration of identity.

36 See Harnon, op. cit., p. 18 and pp. 282–286.

37 Ploni v. A.G. (1960) 14 P.D. 1489; Harnon, op. cit., p. 282. See also below.

38 The discussion attached to the preliminary draft again differentiated between the issue of identity and other issues; but this differentiation was not expressed in the draft provision or in the version incorporated in the Bill.

39 See Shapira-Libai, op. cit. Dr. Shapira-Libai made reference to a Government draft Bill of 1979, but the content appears to have been identical with the version discussed here.

40 Shapira-Libai, op. cit., p. 423; cf. above.

41 Shapira-Libai, op. cit. However she failed to mention the other situation to which the legislature had recently applied the same standard, namely, the witness who made a statement out of court (see above)—presumably a less offensive bedfellow!

42 See “Foreword,” Status of Women, July 1982, No. 2, p. 1Google Scholar.

43 By a majority of 37 to 29: See Divrei HaKnesset, Temp. Protocol, July 1982, p. 188Google Scholar.

44 The full text of the new section appears at the beginning of this article.

45 This formula, however, had been proposed by Professor Harnon as a substitute for the corroboration rule, at least in respect of accomplices: see Harnon, op. cit., Vol. II, p. 36.

46 The anomalous situation whereby there was a general requirement of corroboration in civil but not in criminal cases, followed from the repeal of corroboration in criminal cases on grounds of expediency during the events of the late 1930s (see above, n. 23).

47 Law of Evidence (Amendment) Law, 1968 (22 L.S.I. 222).

48 That provision specifically exempted cases in which corroborative evidence was available. Under the new provision relating to sex offences, corroboration is not specifically mentioned, but would doubtless be considered an adequate “inducement” to the court to rely upon the sole testimony of the complainant.

49 See Harnon, op. cit., pp. 22–29 (on corroboration) and pp. 282–286 (on “something additional”).

50 Custodian of Absentee Property v. Polak (1973) (I) 27 P.D. 768, 771.

51 Almalieh v. Zuta et al. (1973) (I) 27 P.D. 679.

52 Binyamin v. Eliahu (1981) (I) 35 P.D. 547, 550.

53 Plonit v. Almoni (1977) (I) 31 P.D. 203, 213.

54 Custodian of Absentee Property v. Polak, op. cit., supra n. 50.

55 ibid., at 771 (per Landau, J.). This passage was cited in Plonit v. Almoni (op. cit.).

56 This evaluation, however, is contingent on the apdotion of the Supreme Court's' opinion in Custodian of Absentee Property v. Polak rather than more flexible interpretations of sec. 54 of the Evidence Ordinance which the Court applied in the other cases cited above. The more stringent interpretation is supported by the fact that under the new formula adopted in Israel the court must identify a specific ground (which must be noted in writing) for its decision to rely upon a single witness, whereas under the English rule it is sufficient to issue a warning. However there is some indication that the Israeli formula is seen to be the direct equivalent of the English warning rule: see, e.g., the explanatory note to the Ministry of Justice proposal referred to in n. 14 above, at p. 156.

57 It is true that in other cases, too, the courts are encouraged to exercise caution when relying on the testimony of a single witness (Harnon, op. cit., supra n. 3 at p. 8); but this must be differentiated from a statutory rule applying specifically to sex offences.

58 This was implicitly acknowledged by Aloni M.K., on presentation of her proposal to the plenary session of the Knesset on the second and third Reading of the Bill, when she described her proposal as a “compromise”: Divrei HaKnesset, Temp. Protocol, op. cit., supra n. 43 at p. 186.

59 This outcome may be achieved “by the back door”, if the government's proposed new Evidence Law (see above, n. 14) is adopted; for sec. 52 of that law would introduce the formula adopted in the recent legislation for sex offences in all cases (both civil and criminal) in which reliance was placed on the testimony of a single witness. See “Proposed Evidence Law”, op. cit., supra n. 14 at 151.

60 See Horovitz, Y., “Corroborative Evidence in Criminal Law — New Trends” (1979) 9 Mishpatim 249–273Google Scholar; Harnon, op. cit., supra n. 3 at p. 24. Other jurisdictions in the common law world have also endeavoured to develop new interpretations of the corroboration rule in sex offences: see Clarke, A., “Corroboration in Sexual Cases” (1980) Crim. L. R. 362–371Google Scholar.

61 Harnon, op. cit., p. 23.

62 See above, n. 13.

63 The discretionary power of the police to refrain from conducting investigation or to close a file is limited to cases of suspected misdemeanours or contraventions. In cases of felony the power is vested in the District Attorney. The sample of cases included in the survey referred to here comprised mainly felonies. (See on this point, Sebba, op. cit., supra n. 22 at p. 69, n. 7.)

64 See Sebba, L. & Cahan, S., “Sex Offences — The Genuine and the Doubted Victim”, in Drapkin, J. & Viano, E. (eds.), Victimology: A New Focus (Lexington, 1975), Vol. V, pp. 29–46Google Scholar.

65 Cf. sec. 56 of the Criminal Procedure Law, 1965.

66 See Gilchrist, K. and Horney, J., Assessing the Impact of Changes in the Nebraska Rape Statute: Effect on Prosecution, paper presented at the Western Society of Criminology, Newport Beach, 1980Google Scholar.

67 Lafree, G. D., “Official Reactions to Social Problems: Police Decisions in Sexual Assault Cases” (1981) 28 Social Problems 582CrossRefGoogle Scholar.

68 Cobb, K. and Schauer, N., ’Michigan's Criminal Sexual Assault Law”, in Chappell, D., Geis, R. & Geis, G. (eds.), Forcible Rape: The Crime, the Victim and the Offender (New York, 1977) 170, 181Google Scholar.

69 Some of these reforms were advocated by the Aloni Committee and published in the framework of its interim report: See above, n. 34.