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Rape Trauma Syndrome

Compiled by Yan Yu Yip and Mei Yuen

Introduction

Forcible rape is one of the four major violent crimes in the United States. Victims, mostly women, are often misunderstood by juries who have little knowledge about the common responses to rape. Rape trauma syndrome ("RTS") is described by psychiatrist Ann Wolbert Burgess and sociologist Lynda Lytle Holmstrom in 1974 (Burgress & Holmstrom) as "the acute phase and long-term reorganization process that occurs as a result of forcible rape or attempted forcible rape. This syndrome of behavioral, somatic, and psychological reactions is an acute stress reaction to a life-threatening situation." RTS encompasses a broad range of symptoms and varied patterns of recovery. Some women are better able to cope with the aftermath of sexual assault than other women. Although some symptoms of RTS and Post-Traumatic Stress Syndrome ("PTSD") overlap and each can have long devastating effects on rape victims, the latter is insufficient to explain the former, as it does not include key symptoms rape victims experience, e.g. sexual dysfunction.

Today, more experts are allowed to testify in courts regarding RTS, in particular to explain for behaviors that are seemingly inconsistent to what people expect of victims of rape. However, RTS testimony in court is still controversial for reasons including its probative value and potential prejudicial effect, its real helpfulness, and whether or not it is a subcategory of PTSD. Moreover, as a form of expert testimony, the criteria set out in Daubert may be considered by courts in their decision to admit RTS evidence.

Case Studies:

People v. Taylor, Court of Appeals of New York, 1990 75 N.Y.2d277, 552 N.T.S.2d 883, 552 N.E.2d 131 (1990)

The court considered the cases of People v Taylor and People v Banks together to decide whether expert testimony that a complaining witness has exhibited behavior consistent with RTS is admissible at criminal trial of person accused of rape. In People v Taylor, an expert with experience in counseling sexual assault victims testified about rape trauma syndrome to explain (1) why the alleged victim was unwilling during the first few hours after the alleged attack to name the defendant, (2) that it is common for rape victim to appear quiet and controlled following an attack. In People v Banks, the prosecution sought to introduce expert testimony about the symptoms associated with RTS in order to show behavior that the alleged victim exhibited (including nightmares, sweating in the middle of night, afraid to return to school) was consistent with symptoms associated with women being forcibly attacked.

After concluding that evidence of RTS is generally accepted within the relevant scientific community, the Taylor court considered whether the expert testimony would aid a lay jury in reaching a verdict. It held that in Taylor, the testimony is relevant to explain why the alleged victim may act in a way which is not within the ordinary understanding of the jury and it assists the jury in determining what effect to give to her initial failure to identify the defendant. In contrast, in the Banks case, the court held the admission of expert testimony describing RTS in Banks was clearly error as it was not offered to explain behavior that might appear unusual to a lay juror, but only to prove that a rape occurred.

State v. Kinney Supreme Court of Vermont, 2000 171 Vt. 239, 762 A.2d 833 (2000)

State v. Kinney illustrates how the Daubert standard is applied. The Defendant explained the alleged rape as consensual and pointed out that the alleged victim went to sleep immediately after intercourse. The prosecutor called an expert to testify that it is not unusual for victims of severe trauma to (1) delay in reporting due to feelings of guilt and shame, and (2) fall asleep immediately after the assault, due to physical exertion and psychological responses. The defendant's appeal argued that the court failed to conduct a proper Daubert inquiry and the expert testimony is not admissible under Daubert.

The Supreme Court of Vermont affirmed the judgment, holding that the expert testimony was admissible to assist the jury in understanding RTS, and to respond to defense claims that the victimís behavior after an alleged rape is inconsistent with the rape. The trial court had properly performed its gatekeeper function finding the RTS expert testimony admissible because its reliability equals that of other technical evidence courts have discretion to admit and the evaluation of other courts regarding the admissibility of RTS is complete and persuasive. The danger of improper usage or excessive prejudice was minimal since the expert never interviewed the alleged victim and offered no opinion as to whether she suffered from RTS.

Henson v. State Supreme Court of Indiana, 1989 535 N.E.2d 1189 (1989)

The defendant met the alleged victim at a bar. They exchanged name and did nothing else. Later after she got into her car, the defendant approached her with a knife, drove to a secluded place and forced her to have sexual intercourse with him. The alleged victim returned to the same bar the next evening and drank and danced.

The defendant called an expert in the study and treatment of PTSD and asked him a hypothetical question: "whether a person who has allegedly been raped will go back to the same place and drink and dance on the same day of the alleged act?"

The Supreme Court of Indiana held that the testimony is relevant to prove that the alleged victimís behavior was inconsistent with that of a rape victim. However, for opinion testimony in the form of an answer to a hypothetical question, in addition to mere relevance, a 2-fold proper foundation is needed to render the evidence admissible. First, the expert has to have the ability to give such an opinion, although first hand knowledge of the facts in question is not required. Second, there must be proper evidentiary foundation supporting the facts in the hypothetical. For the admissibility of RTS evidence per se, it is recognized in ample case law. It would be unfair to allow the prosecution to use RTS evidence but to disallow the defendant to use it. Thus, the expert testimony was admissible.

Should courts restrict the use of RTS evidence?

The courts' treatment of RTS evidence
In People v. Bennett, 2008 NY Slip Op 05120 [52 AD3d 1185], at trial the prosecution asked the expert hypothetical questions, thereby used RTS evidence to explain the alleged victimís behavior during the assault. On appeal, the New York Court of Appeals held that such use is different from the way in which testimony had been used in the past, which was to explain post-rape victim behavior. A Frye hearing is required to determine if it is legally acceptable to use RTS evidence to explain victim behavior during the rape.

In fact, most courts held that RTS evidence is inadmissible to prove that the alleged victim was in fact raped, but that it is admissible to explain behavior of the alleged victim. RTS evidence is most properly used when its purpose is to educate the jury about the rape itself, not to prove rape, as held in People v Banks. Note that although some states might have found expert testimony on RTS inadmissible, that does not preclude the court from admitting lay testimony regarding the emotional or psychological trauma suffered by the alleged victim after an alleged rape. Justification for such a distinction between lay and expert testimony is raised in State v Saldana 323 N.W.2d 227 (Minn. 1982), where the court is of the view that admission of expert testimony has risk of (1) creating aura of special reliability and (2) placing a stamp of legitimacy to the truth of alleged victim’s testimony that may hinder a fair trial.

Probative value of RTS evidence as against unfair prejudice caused by its admission
RTS meets the requirements for admissibility only when it is used for the proper purpose and with adequate safeguards to prevent any unfair prejudice. Some social scientists argue that RTS is relevant since (1) women who engaged in consensual sexual intercourse do not exhibit RTS, and (2) most women forced to have sexual intercourse exhibit RTS. However, in Ernest S Grahamís Rape Trauma Syndrome: is it Probative or Lack of Consent? (see link below), he argues that no empirical data supports the presumption that all reports of rape should be treated as functionally equivalent as there may be different variable factors causing the alleged RTS symptoms for each case. Also, there is a fear of inherent prejudice when the evidence itself seems to suggest there is no consent by the complainant.

Tension with Rape Law Reform in US
In order to accomplish rape law reform, most jurisdictions in the United States put rape shield statutes in place by the early 1980s. Rape shield statutes severely restrict defence inquiries into thepersonal history of alleged victims.

However, RTS evidence may potentially undermine important accomplishments of rape law reform (see Robert Lawrence’s article: Checking the Allure of Increased Conviction Rates: the Admissibility of Expert Testimony on Rape Trauma Syndrome in Criminal Proceedings below). As defendants can exercise the right to admit RTS evidence, they often seek court appointed psychiatrists to examine the alleged victim. The Supreme Court of Illinois in People v Wheeler held that the defendant had a right to have his own expert examine the alleged victim and make his own determination if the alleged victim suffered from RTS, independent of the examination of an expert called by the prosecution. If the doctor concludes the complainant does not suffer from RTS, the defendants may introduce testimony to that effect as evidence of consent, or even probe into the alleged victim’s history to establish another cause of PTSD. By shifting the focus from the defendant’s conduct to the psychological state of the alleged victim once again, this goes contrary to the goals of rape shield statutes and takes legal reform a step backwards.

Patricia Frazier, a professor in the University of Minnesota, also noticed the tension between RTS evidence and rape shield statute. In her view, some control over defense use of RTS should be exerted. The courts need to strike a balance between protecting alleged victims from abuse that was commonplace prior to rape shield statutes and guaranteeing the defendant due process. She suggested that the defense use of RTS evidence should be limited only to rebuttal of the prosecution's use of this evidence.

Conclusion

States have their own rules in governing the admission of expert testimony regarding RTS. Testimony utilizing RTS can aid jury understanding and potentially reduce jury bias.

Other References

Patricia A. Frazier, Rape Trauma Syndrome, in Modern Scientific Evidence: The Law and Science of Expert Testimony, 2008-2009 ed. (D. L. Faigman, M.J. Saks, J. Sanders, and E. K. Cheng eds., 2008)

Robert Lawrence: Checking the Allure of Increased Conviction Rates: the Admissibility of Expert Testimony on Rape Trauma Syndrome in Criminal Proceedings, 70 Virginia Law Review 1657 (1984)