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Behavior in Domestic Violence and Sexual Assault Cases

VoiceThe NationalCenter for theProsecution ofViolence Against WomenTHEE xplaining Counterintuitive VictimBehavior in Domestic Violence andSexual Assault CasesAmerican ProsecutorsResearch InstituteVolume 1 Number 4 HelpingProsecutors GiveVictims a Voice When a victim alleges a domesticor Sexual Assault , the prevalenceof myths surrounding domesticand Sexual Violence causes the publicto search for a reason to doubt theallegation rather than to search for thetruth. The public often looks to victimbehavior, either during or after anassault, to determine if that Behavior isconsistent with its expectation of howa real victim of Domestic Violence orsexual Assault would behave. Membersof the public who are uneducatedabout victim responses to trauma mayview a victim s counterintuitive behav-ior as evidence of her lack of credibili-ty. Experienced prosecutors and oth-ers familiar with victim Behavior , how-ever, understand that victims have indi-vidual responses to trauma that areoften counterintuitive to public attorneys are eager tocapitalize on the public s lack ofknowledge about victim Behavior andoften fuel the public s suspicion ofdomestic and Sexual Violence victimsby presenting arguments in the mediaas well as in the courtroom thatreinforce the popular myth that coun-terintuitive victim Behavior is indica-tive of a victim s lack of can counter defenseattorneys mischaracterizations ofcounterintuitive victim Behavior byeducating j

voice The National Center for the Prosecution of Violence Against Women THE Explaining Counterintuitive Victim Behavior in Domestic Violence and Sexual Assault Cases

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Transcription of Behavior in Domestic Violence and Sexual Assault Cases

1 VoiceThe NationalCenter for theProsecution ofViolence Against WomenTHEE xplaining Counterintuitive VictimBehavior in Domestic Violence andSexual Assault CasesAmerican ProsecutorsResearch InstituteVolume 1 Number 4 HelpingProsecutors GiveVictims a Voice When a victim alleges a domesticor Sexual Assault , the prevalenceof myths surrounding domesticand Sexual Violence causes the publicto search for a reason to doubt theallegation rather than to search for thetruth. The public often looks to victimbehavior, either during or after anassault, to determine if that Behavior isconsistent with its expectation of howa real victim of Domestic Violence orsexual Assault would behave. Membersof the public who are uneducatedabout victim responses to trauma mayview a victim s counterintuitive behav-ior as evidence of her lack of credibili-ty. Experienced prosecutors and oth-ers familiar with victim Behavior , how-ever, understand that victims have indi-vidual responses to trauma that areoften counterintuitive to public attorneys are eager tocapitalize on the public s lack ofknowledge about victim Behavior andoften fuel the public s suspicion ofdomestic and Sexual Violence victimsby presenting arguments in the mediaas well as in the courtroom thatreinforce the popular myth that coun-terintuitive victim Behavior is indica-tive of a victim s lack of can counter defenseattorneys mischaracterizations ofcounterintuitive victim Behavior byeducating jurors and judges about vic-tim responses to trauma.

2 Dependingupon the laws of a particular jurisdic-tion as well as the specific circum-stances of each case, prosecutors canaddress and explain counterintuitivevictim Behavior either through a vic-tim s direct examination or throughthe introduction of expert deciding whether to presentexpert testimony, prosecutors shouldfirst find out if the victim can effective-ly articulate a reasonable explanationfor her counterintuitive so, an expert may not be , prosecutors should determinewhether their jurors or judges will bereceptive to expert testimony explain-ing victim , prosecu-tors who choose to present experttestimony on victim counterintuitivebehavior should (1) identify the coun-terintuitive victim Behavior to beexplained; (2) articulate the relevanceand admissibility of expert testimonyon counterintuitive victim Behavior ;and (3) choose the appropriate expertto explain counterintuitive victimbehavior to the AND EXPLAINING COUNTERINTUITIVE BEHAVIORThe first step in presenting expert tes-timony to explain counterintuitivebehavior is to identify the counterintu-itive Behavior in your case.

3 Whenpreparing a case, prosecutors shouldreview all evidence, including policeand medical reports and witness state-ments for descriptions of victim behav-ior that may appear counterintuitive tothe jury. Although each Domestic vio-lence or Sexual Assault case presentsunique facts, there are common victimbehaviors which, if present in a case,may cause jurors or judges to disbe-lieve the BYJENNIFER GENTILE LONG1 Domestic ViolenceVictimsThere are common counterintuitivereactions to Domestic Violence thatcan be explained with expert example, many people expectdomestic Violence victims to leavetheir abusers, report the abuse andtestify on behalf of the state in theprosecution of their abusers, followingthe first battering incident. The actualbehavior of many Domestic violencevictims, however, is quite different fromthe public s expectations. Specifically, victims often stay with their abusers,regularly minimize their abuse, recant,request the dismissal of charges againsttheir batterers, refuse to testify for theprosecution, or testify on behalf oftheir batterers.

4 Because of their expe-rience, experts can help explain a vic-tim s seemingly irrational Behavior tothe jury as a reasonable response , experts can explain thatthis Behavior commonly results fromvictims sense of loyalty towards theirabusers; their shame or feeling ofresponsibility for their abuse; theirbelief that they can change theirabusers behaviors, or their inability toreach out for help due to isolation andfear of disbelief. Other victims mayremain with their abusers out of fearfor their own safety4or the safety offriends, family or othersstay with their abusers in an attemptto gain control over the severity orfrequency of their Assault VictimsThe behaviors of Sexual Assault victims particularly nonstranger sexualassault victims also frequently conflictwith the Behavior the public behaviors are particularlycounterintuitive to the type of behav-ior the public would expect from a real victim and, without explanation,are easily transformed into reasons todoubt a victim s account of her , the public expects sexualassault victims to scream during theirrape or forcefully resist their attackers;to report their rapes immediately; andto remain vigilant following theirattacks.

5 victims , however, often do notscream or resist during a rape; theyfrequently delay in reporting theirrape; and they often do not experienced expert can explainbehaviors that jurors often find baf-fling. Specifically, an expert can explainthat a victim s failure to scream out orresist during her attack may resultfrom her shock and subsequent inabili-ty to focus. Experts can also explainthat rape victims seldom report theirassaults immediately because of theirconfusion, guilt or shock about theassault. Some may not identify thetraumatic experience they justendured as rape, especially if theirattacker did not use a weapon. It isalso common for victims to blamethemselves for their rapes if they weredrunk, engaged in some consensualsexual Behavior with their offenders ortraveled to an isolated area with may also fail to report immedi-ately out of a fear that they will not bebelieved, particularly if their rapist is a respected member of the communi-ty. victims may also become recklessand promiscuous after a Sexual assaultin an attempt to regain control overtheir lives.

6 Finally, although the publicwould not expect rape victims tocome into contact with their perpetra-tors after an Assault , it is not uncom-mon for victims to seek out theirassailants in an attempt to master theirsituations or to regain control overtheir RELEVANCE AND ADMISSIBILITYOF EXPERT TESTIMO-NY ON COUNTERIN-TUITIVE VICTIMBEHAVIORThe jury s ability to understand avictim s Behavior is intertwined with itsability to judge a victim s behaviors described above, if leftunexplained, can cause judges andjurors to disbelieve a victim s allega-tions. For example, the public oftenmischaracterizes a Domestic violencevictim s coping mechanisms as evi-dence of her complicity in or responsi-bility for her abuse. As a result, victimswho recant are viewed as liars whoseoriginal reports to police were base-less accusations concocted to manipu-late the system, or, in the alternative,they are perceived as pathologicalwomen with low self-esteem whoenjoy or perhaps deserve their interpretation has equally devas-tating consequences as both oftenresult in a not guilty verdict in a crimi-nal testimony on the generaldynamics of Domestic Violence andcommon behaviors of Domestic vio-lence victims has been ruled relevantin order to explain a victim s conductor , somecourts have recognized that the publicholds beliefs and attitudes aboutabused women which are at odds withexperts testimonythat it is not uncommon for victims tolater deny or minimize their abusers conduct, therefore.

7 Is relevant toexplain the possible reasons for anyinconsistencies between a victim s tes-timony on the stand as compared withher statements to police and courts have recognizedthat although witness credibility is rou-tinely judged by the consistency [of awitness statements], willingness to aidthe prosecution and straightforwardrendition of the facts , these elementsare often lacking in abuse victims forgood courts haverecognized that this Behavior is oftenattributed to inaccuracy or deception11because of widely held misconcep-tions .. and popular myths. 12 The rationale for the admission ofexpert testimony on counterintuitivevictim Behavior in Sexual Assault casesis also based upon the negative impactof prevailing Sexual Assault myths on ajury s assessment of victim , the reactions of rape vic-tims, when contrary to the publicexpectation, are often exploited by thedefense to demonstrate a victim s lackof credibility. As a result, the juryrequires expert testimony to explainhow a victim s fear, shame and guilt,commonly result in her failure tospeak of or report her ANEXPERTThe prosecutor s decision to use anexpert to explain counterintuitive vic-tim Behavior depends on the law of hisor her jurisdiction, facts of the caseand victim s Behavior .

8 It also dependson the prosecutor s assessment that anexpert can address and explain a vic-tim s counterintuitive Behavior to ajury more effectively than the a prosecutor has determinedthat expert testimony is admissible andnecessary, he or she must choose theappropriate expert. In Domestic vio-lence and Sexual Assault Cases , themost qualified and effective experts inexplaining counterintuitive victimbehavior are individuals with clinical orhands-on experience working with vic-tims. Allied professionals who fre-quently fall into this category are vic-tim advocates, Sexual Assault orForensic Nurse Examiners (SANEs andFNEs) and law enforcement order to protect a victim s confiden-tiality, it is critical that prosecutors notselect individuals from these categorieswho have any involvement with thecase. An individual from one of thesecategories may then be qualified as anexpert based upon his or her trainingand experience in working with qualified, these expertsmay testify to the general dynamics ofdomestic Violence as well as domesticviolence and Sexual Assault victims common and counterintuitive respons-es to should also be aware ofa potential conflict which may arise indomestic Violence prosecutions whenthe victim is not cooperating in theprosecution of her abuser.

9 Specifically,a non-participating victim may view anadvocate s participation as a state switness in the trial of her abuser as abetrayal, even though the advocate hasnot worked with her and is not affiliat-ed with the community advocacyorganization from which she may havereceived assistance. Therefore, prose-cutors should consider the impact ofthis conflict when deciding whether topresent expert testimony in a particu-lar testimony on counterintuitivevictim Behavior helps juries navigatethrough the confusing maze of mythsand misinformation constructed bydefense attorneys prior to and duringdomestic Violence and Sexual assaulttrials. Although the admissibility of thisevidence varies among jurisdictions,wherever possible, prosecutors shouldconsider that offering expert testimo-ny to address and explain counterintu-itive victim Behavior to a jury is oftenthe only way to procure a fair and Center for the Prosecution of Violence Against WomenTeresa P. Scalzo DirectorJennifer G.

10 LongSenior AttorneyErin S. Gaddy Senior AttorneyKate M. RyanStaff AttorneyFOOTNOTES1 Jennifer Long is a Senior Attorney in APRI s National Center for the Prosecution ofViolence Against Women (NCPVAW). The author wishes to give special thanks to AnaMaria Hernandez, a third-year law student at American University, who provided invalu-able research on this ,Cynthia Lynn Barnes,Admissibility of Expert Testimony Concerning Domestic ViolenceSyndromes to Assist Jury in Evaluating Victim s Testimony or Behavior ,57 315(October 2005); Gregory G. Sarno,Admissibility, at Criminal Prosecution, of Expert Testimonyon Rape Trauma Syndrome,42 4th 879 (July 2005). Confusion exists because theterm Battered Woman Syndrome (BWS) is often incorrectly used interchangeably withcounterintuitive reactions to Domestic Violence . The same is true with respect to RapeTrauma Syndrome (RTS). The similarities and distinctions will be explained more fully inWorking with Experts to Explain Counterintuitive Victim Behavior in Domestic Violence andSexual Assault Cases (anticipated release December 2006).


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