Still a Signpost of Inequality: An Update on Hysteria in the Courts

Abstract

More than twenty years ago, I examined the use of the label “hysterical” to discredit the testimony of witnesses in several areas of the law, including personal injury, criminal law – especially sexual assault crimes – and child custody cases. The labels were quite effective, especially against the testimony of women and girls who did not conform to cultural expectations about how individuals in their situations should behave. This study updates that research and asks whether anything has changed. Is the use of hysteria as a label still gendered? Does its use still successfully suggest that women and girls are not credible or reliable witnesses? The results of this study give little reason for optimism. Eighty percent of all of those labelled hysterical are still female. The proportion of female witnesses found to be credible and reliable despite being labelled hysterical remains at just over one-half of those women and girls. Most changes have been in the wrong direction. While thirty percent of the predominantly female victims of crime were dismissively labelled hysterical two decades ago, that proportion has increased to forty-five percent. The gendered paradigm of when hysteria is seen as rational because it conforms to cultural expectations—and when it is seen as irrational for not conforming—seems entrenched in Canadian law and Canadian society.