Forensic Psych

Rape Trauma Syndrome: Admissibility of Expert Testimony

This is a paper I just finished. It discusses rape trauma syndrome and whether or not it should be admissible in court or not. Hope it’s informative! As always, this is my work so please don’t steal. Thanks!

Abstract

Rape trauma has been controversial since the 1970s when it was first described (Burgess & Holmstrom, 1974; Lauderdale, 1984; Frazier & Borgida, 1985; Trowbridge, 2003). RTS testimony in court is controversial for many different reasons, including its ability to be probative and not prejudicial, its helpfulness to the jury, its admissibility in cases where consent is questionable, and whether or not it should be its own diagnosis or a subcategory of PTSD (Frazier & Borgida, 1992; Trowbridge, 2003). However, an examination of the research and the opinions of other experts have shown that RTS is generally accepted, it is helpful to the jury, and diagnosing RTS as PTSD is too limited (Lauderdale, 1984; Tetreault, 1989; Biggers & Yim, 2003; McGowan & Helms, 2003). Rape trauma syndrome should therefore indeed be admissible in court.

Keywords: rape trauma syndrome, expert testimony, PTSD, admissibility, acceptance

 

Rape Trauma Syndrome: Admissibility of Expert Testimony

Introduction

            In the 1970s, Burgess and Holmstrom (1974) studied 92 adult women who came into aBostonarea hospital claiming that they had been raped. Based on their observations and analyses, they coined the term rape trauma syndrome to describe some of the symptoms that were common among these women. Rape trauma syndrome is defined by Burgess (1983) as the psychological, cognitive, somatic and behavioral symptoms seen as a reaction to a life-threatening situation, which in this case would be participation in nonconsensual, forced sexual activity. Rape trauma syndrome (RTS) has been a controversial topic in theUnited Statesjudicial system for over the 30 years since it first was documented (Lauderdale, 1984; Frazier & Borgida, 1985; Trowbridge, 2003). RTS testimony in court is controversial for many different reasons, including its ability to be probative and not prejudicial, its helpfulness to the jury, its admissibility in cases where consent is questionable, and whether or not it should be its own diagnosis or a subcategory of PTSD (Frazier & Borgida, 1992; Trowbridge, 2003). RTS expert testimony in court is still evolving and being researched (Cling, 2004). However, RTS should still be admissible in court because it can provide helpful, informative information to the jury.

Literature Review

Rape Trauma Syndrome Symptomology

            When an individual claims to have been raped, she will be observed and her symptoms will be compared to those of rape trauma syndrome (Keogh, 2007). Some of the symptoms present in rape trauma syndrome are difficulty sleeping, exaggerated startle response, nightmares, outbursts of anger, persistent and invasive memories of the rape, feeling detached, and a numbing of general responsiveness. There are specific requirements for a diagnosis of RTS (see Keogh, 2007, for discussion). Quite a few of these symptoms are similar to those seen in individuals who suffer from PTSD (Frazier & Borgida, 1992).

RTS and Rape Myths

Research has shown that the more an individual believes rape myths to be facts, the likelihood they are to label an event as a rape decreases and the likelihood that they believe the victim must have caused the assault increases (Tetreault, 1989). Some examples of rape myths are: rape is more traumatic for respectable women, such as a nun, than it is for an unrespectable woman such as a prostitute or an exotic dancer; rape victims are more likely to make a false accusation of rape; the most common reaction to rape by a victim is anger; rape victims provoke the rape by the way they are dressed or behave; and only a few women will have multiple sexual victimizations (Frazier & Borgida, 1988; Tetreault, 1989). Oftentimes, expert testimony about rape trauma syndrome is used in order to help combat the effects that these kinds of myths have on jury decision-making (Tetreault, 1989). Many experts believe that testimony on RTS can help jury members because it provides them with information about the typical behavior and responses of a rape victim after victimization (Lauderdale, 1984). Jury members may be aware that rape victims experience trauma, but they are likely to be influenced by common societal myths and misperceptions about rape. Juror misperceptions and beliefs in myths influence their decisions about whether or not the victim consented to the sexual activity. Expert testimony was determined to be helpful in exposing these rape myths and in helping improve the accuracy of juror deliberations in rape cases in the California Supreme Court (Lauderdale, 1984). This type of expert testimony using RTS can help educate the jury on these misperceptions and therefore limit the negative impact they have on decision-making in order to help jurors to make the most accurate decisions possible. Others also report that advocates of RTS and experts in the scientific community assert that RTS testimony should be admissible in court because it can help to dispel the common misconceptions about a rape victim’s behavior after the rape (Biggers & Yim, 2003). It has also been reported that RTS testimony was often admissible in cases in which these common misconceptions about rape might have “tainted” the juror’s beliefs about whether or not a rape occurred (Biggers & Yim, 2003, p. 67). One forensic psychologist has explained that the purpose of allowing RTS testimony in court is for its helpfulness to the jury; to refute the misconceptions and myths that juries tend to believe about rape (Trowbridge, 2003). However, despite these studies and suggestions by experts and courts, one author has suggested that expert testimony on rape myths is not related to expert testimony on RTS, but rather something completely separate (Tetreault, 1989). Based on her personal examination of the research, the author believes that these two types of testimony differ because RTS testimony discusses the victims’ reactions to his/her victimization and his or her behavior before and after the alleged assault occurred which she seems to separate from rape myths. However, from 1984 and beyond, others were claiming that RTS evidence was helpful to the jury in order to help juries understand the facts about rape victimization rather than basing their decisions on cultural myths (Wilk, 1984; Boeschen, Sales, & Koss, 1998; McGowan & Helms, 2003). The issue with rape myths and rape trauma syndrome is that rape myths are widely known and accepted as needing to be addressed in front of a jury while RTS is not widely accepted for a number of other reasons and may or may not allow rape myths as part of the testimony (McGowan & Helms, 2003).

Consent and Biases

One of the other controversies about RTS is whether or not testimony should be admissible in cases where the issue is proving consent to the sexual activity. Each jurisdiction must decide if RTS testimony is admissible or not, and some courts have decided that it is not admissible (Lauderdale, 1984). For example, courts inOregon,Ohio,Kansas,Montana, andNew Yorkhave ruled that RTS testimony is admissible when the case is attempting to show that the sexual activity was not consensual. However, courts inMissouri,MinnesotaandCalifornia, according to Lauderdale, ruled this type of evidence inadmissible because it would not help the jury to decide if the sexual activity was consensual or not. The issue of consent is controversial because it is believed by some that testimony about rape trauma syndrome will bias the jury, especially in regards to proving consent (Lauderdale, 1984). Some courts do not accept RTS expert testimony because it has been suggested that this testimony on RTS implies that the complainant did not consent to the sexual activity and was indeed raped. This would create a bias against the defendant, but jurors can easily be biased against the defendant or the victim when it comes to consent, and a number of other issues (Boeschen, Sales, & Koss, 1998). For example, some research suggests that jurors have little understanding of the psychological effects that could influence how a rape complainant behaves in court (Ellison & Munro, 2009). In one trial scenario, Ellison and Munro (2009) discuss mock jurors’ reactions to a complainant who froze and did not fight back against her attacker. Many of the mock jurors believed that a victim of a sexual assault would have fought back at all costs, and this seemed to lead them to select a not guilty verdict for the defendant. This bias against the complainant is influenced by consent in that the complainant struggled to convince the jury that she did not consent to the sexual activity because she did not fight her alleged attacker. Another study suggests that juror attitudes toward rape, such as believing that a victim could have prevented the rape, are likely to lead to the jury giving a more lenient sentence to the defendant (Tetreault, 1989). Even with these possible biases, many courts have still decided that jurors are able to determine whether or not the complainant consented without hearing expert testimony. However, studies suggest that juries are not knowledgeable enough to determine whether a complainant consented or not (Brekke & Borgida, 1988; Frazier & Borgida, 1988). One study suggests that when jurors hear an expert make a general testimony and then apply it to the victim and case at hand, jurors tend to believe that the complainant did not consent to the sexual behavior and therefore are more likely to convict the defendant (Brekke & Borgida, 1988). Furthermore, another study found that experts in both rape and PTSD related fields believed that jurors were not very knowledgeable about rape and therefore that expert testimony would be helpful for juror decision-making (Frazier & Borgida, 1988). Experts, researchers, and the judicial system all seem to suggest different ideas about the admissibility of RTS expert testimony in consent cases. Some courts do not support RTS testimony in consent cases; others do (Lauderdale, 1984). There currently seems to be no consensus, but future research will certainly help.

RTS and PTSD

RTS is considered a subcategory of PTSD, but is not specifically mentioned in the fourth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV-TR), or in any other version of the DSM (Wilk, 1984; Frazier & Borgida, 1992; Boeschen, Sales, & Koss, 1998; McGowan & Helms, 2003). RTS is often diagnosed as a type of PTSD because there are common symptoms between the two, such as hypervigilance, recurrent and intrusive memories, and irritability/anger (Frazier & Borgida, 1992; McGowan & Helms, 2003). This topic has become rather controversial as well because some experts believe RTS should be a separate diagnosis while others believe it is rightfully included under PTSD because it is more helpful to the jury and less prejudicial than RTS (Biggers & Yim, 2003; Cling, 2004). Some members of the community believe that RTS should be included under PTSD because RTS is often considered to fall short of the Frye test of admissibility in the eyes of many courts and is therefore not admissible (McGowan & Helms, 2003). However, PTSD will pass the Frye test in court and because RTS overlaps some of the symptoms from PTSD, courts are more likely to admit expert testimony about PTSD. One issue that has been suggested, however, is that a diagnosis of PTSD will not include symptoms of RTS seen in many rape victims such as sexual dysfunction, long-term depression, fear, anxiety, social maladjustment, and humiliation (Frazier & Borgida, 1992; McGowan & Helms, 2003). These are symptoms that have been found in a number of studies of rape victims. There is quite a bit of variability of symptoms within rape trauma victims, but anxiety, fear, social maladjustment, depression, and sexual dysfunction have all been consistently found among rape victims (Frazier & Borgida, 1992). These symptoms will not be included in a PTSD diagnosis, however, which may limit the effectiveness of the diagnosis when presented in court according to some experts.

However, other research would suggest that PTSD is the best way to diagnose someone with RTS because RTS is not deemed acceptable by the field in the eyes of many courts because it is not mentioned in the DSM (Biggers & Yim, 2003; McGowan & Helms, 2003). In one study, experts were given a short survey to assess their opinion on admissibility of RTS evidence and its helpfulness to jury members (Frazier & Borgida, 1988). This study showed that experts believed that rape trauma syndrome was properly diagnosed as a subcategory of PTSD, but that RTS evidence should be admitted in court. Biggers and Yim (2003) have further suggested that PTSD is a better diagnosis because RTS is burdened by prejudicial language, in that the language used to describe RTS implies that the victim has indeed been raped, while PTSD simply describes the person’s behaviors and feelings without necessarily relating it to rape. There is extensive knowledge about PTSD and it is has been suggested that many people believe rape victims are viewed as having more credibility in court when they qualify for a PTSD diagnosis (Boeschen, Sales, & Koss, 1998). However, no research was found by the author on this belief. Overall, there is certainly a controversy about a PTSD diagnosis when discussing RTS and more research would certainly be beneficial.

Critique

            There are certainly a number of controversies regarding RTS, some of which were examined in this paper. However, despite these controversies, the author would argue that RTS is generally accepted in one way or another, it is helpful to the jury, and diagnosing RTS as PTSD is too limited (Lauderdale, 1984; Tetreault, 1989; Biggers & Yim, 2003; McGowan & Helms, 2003). Frazier and Borgida (1988) surveyed a sample of experts in both the rape and PTSD-related fields and found that they tended to believe that generally accepted knowledge about rape and reactions to rape victimization, which is typically labeled as RTS, was available and that expert testimony about this knowledge is certainly acceptable. In fact, they also agreed that RTS testimony should be admissible in court. Rape trauma syndrome is also still generally accepted in the field, one could argue, because it is currently diagnosed as a subtype of PTSD (McGowan & Helms, 2003). RTS may not be specifically mentioned in the DSM, but the DSM-IV-TR does include sexual assault as one of the traumatic events that can lead to PTSD as well as mentioning that the PTSD may be even more severe when the stressor is “of human design” such as rape (American Psychiatric Association, 2000, p. 464). Research has also shown that rape victims with PTSD tend to have more severe symptoms than others who have been diagnosed with PTSD caused by other stressors (Cling, 2004). This all suggests that rape related PTSD, which many would refer to as RTS, is likely to be even more serious than other types of PTSD (Lauderdale, 1984). However, the effectiveness of the PTSD diagnosis may be limited when presented in court because victims of other crimes are also often diagnosed with PTSD (McGowan & Helms, 2003). McGowan and Helms (2003) suggest that this is problematic because this overreliance on the PTSD diagnosis equates the trauma that rape victims experience with that of the victims of other crimes. However, rape victims tend to experience higher levels of fear, depression, and anxiety than victims of other crimes, so this tendency to equate the experiences of a victim of one crime to those of a rape victim may lessen the impact of testimony in rape cases. This overreliance on PTSD will more than likely negatively impact rape cases because the emotions and feelings are much more intense with a rape victim, but the court is not presented with that fact (McGowan & Helms, 2003). Boeschen, Sales, and Koss (1998) suggest that,

Unless an expert clarifies that rape survivors often suffer from symptoms other than PTSD, jurors and judges may have a more difficult time associating the described distress with alleged trauma and ultimately regard the rape survivor as less credible. Thus, the current PTSD diagnosis could cause problems in the courtroom for women who do not meet the diagnostic criteria… (p. 418)

Rape trauma syndrome would be a better diagnosis because it is more specific to the symptoms that rape victims experience. For example, common symptoms seen in RTS, but not usually diagnosed in PTSD, include sexual dysfunction, long-term depression, fear, anxiety, social maladjustment, and humiliation (Frazier & Borgida, 1992; McGowan & Helms, 2003). These symptoms are important in rape trauma diagnoses and cases because they are common symptoms seen in rape victims that may not be seen in an individual suffering from PTSD caused by other stressors (Frazier & Borgida, 1992). In fact, PTSD can be caused by many different types of stressors other than rape, such as natural disasters, robbery, or military combat, and it may therefore be difficult in some cases to determine whether or not the PTSD diagnosis is due to the alleged rape or due to another stressor which is problematic in a rape case (American Psychiatric Association, 2000; Frazier & Borgida, 1992). Expert testimony on RTS would present all the appropriate symptoms, not just the ones limited to PTSD.

However, one point that has been discussed as potentially problematic is that RTS testimony may bias the jury due to its prejudicial language (Lauderdale, 1984; Biggers & Yim, 2003). It has been suggested that expert testimony about the emotional and psychological behaviors tends to make the inference that the complainant was raped either more probable or less probable (Lauderdale, 1984). This could potentially be problematic in that this may bias or prejudice the jury by implying that the defendant did indeed rape the complainant and therefore “…unfairly prejudice fact finders [jurors] in determining guilt or innocence without proper due process” (Biggers & Yim, 2003, p. 70). This would go against the very ideals of the American judicial system. One solution to this prejudicial language could be to discuss the RTS symptoms during the testimony, but not label them as RTS, therefore avoiding the inference that the defendant indeed raped the complainant (Wilk, 1984). Courts often admit testimony about the psychological conditions of victims after other crimes or stressful events, and Wilk (1984) suggests that this is “…analogous to rape trauma syndrome because, like rape trauma syndrome, they represent reactions to an event” (p. 441). This is a valid point because the RTS name certainly may bias the jury, but describing the victim’s behaviors, emotions, and mental state after the alleged rape is purely informative if not labeled as a result of rape by the expert. Researchers and experts in the field have suggested that in order to avoid these biases experts testifying in court should be prepared to present general facts about rape and rape victimization that can be verified, and to avoid discussing the victim’s personal behaviors and emotions (McGowan & Helms, 2003). If experts present their testimony according to these guidelines, there will fewer risks of the supposed prejudicial language of RTS leading to a biased jury (Biggers & Yim, 2003; McGowan & Helms, 2003).

There are, however, also societal myths about rape victims that are likely to bias the jury which must be addressed by expert testimony (Lauderdale, 1984; Tetreault, 1989; Biggers & Yim, 2003). This must be done in order to demonstrate that the complainant’s seemingly counterintuitive behaviors following the alleged rape were actually a rather typical response by rape victims suffering from RTS. Some courts have ruled that RTS testimony was admissible in order to help dispel the common myths and misconceptions that jurors tend to have about a rape victim’s behavior after the rape (Lauderdale, 1984). Research has shown that jurors are not knowledgeable about the common responses to rape, but are rather influenced by these misconceptions, and experts have suggested that RTS expert testimony may help to educate the juries about what a typical rape victim’s behavior post-rape may be and allow the jury to make the most informed decision possible (Tetreault, 1989; Brekke & Borgida, 1988; Frazier & Borgida, 1988; Trowbridge, 2003; Ellison & Munro, 2009). This is simple, logical reasoning based on research that has shown that jurors are indeed biased by societal rape myths such as the study by Frazier and Borgida (1988) in which a sexual assault questionnaire was given to a group of non-experts, namely university students and nonacademic faculty. They found that these non-experts did indeed believe some rape myths, such as the belief that delaying the report of a rape by a victim was a suspicious activity, when in actuality it is quite common. Frazier and Borgida suggest that belief in these myths could certainly have a negative impact on jury decision-making. Rape trauma syndrome testimony could be very beneficial in rape cases because it would serve to educate the jurors about the common misconceptions and help them to make decisions based on research rather than societal myths (Lauderdale, 1984; Trowbridge, 2003; Ellison & Munro, 2009). This type of RTS testimony could certainly be helpful to juries and also lead to more sentences based on informed decisions.

Conclusion

            Rape trauma syndrome (RTS) has been controversial since the 1970s when it was first described (Burgess & Holmstrom, 1974; Lauderdale, 1984; Frazier & Borgida, 1985; Trowbridge, 2003). RTS testimony in court is controversial for many different reasons, including its ability to be probative and not prejudicial, its helpfulness to the jury, its admissibility in cases where consent is questionable, and whether or not it should be its own diagnosis or a subcategory of PTSD (Frazier & Borgida, 1992; Trowbridge, 2003). However, an examination of the research and the opinions of other experts have shown that RTS is generally accepted within the field, it is helpful to the jury, and diagnosing RTS as PTSD is too limited (Lauderdale, 1984; Tetreault, 1989; Biggers & Yim, 2003; McGowan & Helms, 2003). RTS is currently diagnosed as PTSD, which is accepted by the community because it is part of the DSM-IV-TR (American Psychiatric Association, 2000; McGowan & Helms, 2003). However, PTSD is a limited diagnosis because it does not include key symptoms that rape victims experience such as sexual dysfunction and depression (Frazier & Borgida, 1992; McGowan & Helms, 2003). These are essential to understanding the rape victims’ seemingly counterintuitive reactions and behaviors after the alleged rape, and diagnosing this as PTSD will limit and inhibit the jury’s understanding of these behaviors and

lead them to potentially be biased by the societal myths that they likely hold about rape victims (Lauderdale, 1984; Tetreault, 1989; Boeschen, Sales, & Koss, 1998; Biggers & Yim, 2003; McGowan & Helms, 2003). This can be avoided, however, by discussing the symptoms and behaviors in a general manner rather than discussing the victim’s personal reaction and behaviors (Biggers & Yim, 2003; McGowan & Helms, 2003). This type of testimony utilizing RTS would be helpful in reducing juror bias and in more informed decision making by jurors. Rape traum
a syndrome should be admitted in court without using the terminology that implies that the victim was indeed raped and instead focus on describing the victim’s behavior and the behaviors of other rape victims (McGowan & Helms, 2003). This will allow the jury itself to decide whether or not the victim’s symptoms are analogous to other rape victims’ behaviors and symptoms. Rape trauma syndrome is not overly prejudiced if discussed in the right manner (Wilk, 1984; McGowan & Helms, 2003). In addition, it is helpful to the jury to combat the effects of myth biases and removes the limitations that have been placed upon it by a PTSD diagnosis (Boeschen, Sales, & Koss, 1998; McGowan & Helms, 2003). Rape trauma syndrome has been confirmed by research and it should be admissible in court (Cling, 2004).

References

American Psychiatric Association. (2000). Diagnostic and statistical manual of mental disorders (4th ed., text rev.).Washington,DC: Author.

Biggers, J. R., & Yim, C. I. (2003). Rape trauma syndrome: An examination of standards that determine the admissibility of expert witness testimony. Journal of Forensic Psychology Practice, 3, 61-77. doi: 10.1300/J158v3n01_06

Boeschen, L. E., Sales, B. D., & Koss, M. P. (1998). Rape trauma experts in the courtroom. Psychology, Public Policy, and Law, 4, 414-432.

Brekke, N., & Borgida, E. (1988). Expert psychological testimony in rape trials: A social-cognitive analysis. Journal of Personality and Social Psychology, 55, 372-386.

Burgess, A. W. (1983). Rape trauma syndrome. Behavioral Sciences & the Law, 1, 97-113.

Burgess, A. W., & Holmstrom, L. L. (1974). Rape trauma syndrome. The American Journal of Psychiatry, 131, 981-986. Abstract retrieved from http://psychiatryonline.org

Cling, B. J. (2004). Rape and rape trauma syndrome. In B. J. Cling (Ed.), Sexualized violence against women and children: A psychology and law perspective (pp. 13-34). Retrieved from http://books.google.com/books?id=eLSfxOiTsTkC&printsec= frontcover&source=gbs_ge_summary_r&cad=0#v=onepage&q&f=false

Ellison, L., & Munro, V. E. (2009). Reacting to rape: Exploring mock jurors’ assessments of complainant credibility. British Journal of Criminology, 49, 202-219. doi: 10.1093/bjc/azn077

Frazier, P. A., & Borgida, E. (1992). Rape trauma syndrome: A review of case law and psychological research. Law and Human Behavior, 16, 293-311.

Frazier, P., & Borgida, E. (1985). Rape trauma syndrome evidence in court. American Psychologist, 40, 984-993.

Frazier, P., & Borgida, E. (1988). Juror common understanding and the admissibility of rape trauma syndrome in court. Law and Human Behavior, 12, 101-122.

Keogh, A. (2007). Rape trauma syndrome – Time to open the floodgates? Journal of Forensic and Legal Medicine, 14, 221-224. doi: 10.1016/j.jcfm.2006.08.005

Lauderdale, H. J. (1984). The admissibility of expert testimony on rape trauma syndrome. The Journal of Criminal Law and Criminology, 75, 1366-1416.

McGowan, M. G., & Helms, J. L. (2003). The utility of the expert witness in a rape case: Reconsidering rape trauma syndrome. Journal of Forensic Psychology Practice, 3, 51-60. doi: 10.1300/J158v3n01_05

Tetreault, P. A. (1989). Rape myth acceptance: A case for providing educational expert testimony in rape jury trials. Behavioral Sciences & the Law, 7, 243-257.

Trowbridge, B. C. (2003). The admissibility of expert testimony in Washingtonon post traumatic stress disorder and related trauma syndromes: Avoiding the battle of the experts by restoring the use of objective psychological testimony in the courtroom. Seattle University Law Review, 27, 453-523.

Wilk, P. A. (1984). Comment: Expert testimony on rape trauma syndrome: Admissibility and effective use in criminal rape prosecution. The American University Law Review, 33, 417-462.

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