voice

The NationalCenter for theProsecution ofViolence Against Women

THE

Explaining Counterintuitive VictimBehavior in Domestic Violence andSexual Assault Cases

American ProsecutorsResearch Institute

Volume 1Number 4

Helping

Prosecutors Give

Victims a Voice

�

When a victim alleges a domesticor sexual assault, the prevalenceof myths surrounding domestic

and 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 expec-tations.

Defense 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 credibility.Prosecutors can counter defenseattorneys’ mischaracterizations ofcounterintuitive victim behavior byeducating jurors and judges about vic-tim responses to trauma. 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 through

the introduction of expert testimony.2

When deciding whether to presentexpert testimony, prosecutors shouldfirst find out if the victim can effective-ly articulate a reasonable explanationfor her counterintuitive behaviors.If so, an expert may not be needed.Next, prosecutors should determinewhether their jurors or judges will bereceptive to expert testimony explain-ing victim behavior.3 Finally, 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 jury.

I D E N T I F Y I N G A N D E X P L A I N I N G C O U N T E R I N T U I T I V E B E H A V I O RThe first step in presenting expert tes-timony to explain counterintuitivebehavior is to identify the counterintu-itive behavior in your case. 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 victim.

continued ➢

B YJ E N N I F E R G E N T I L E L O N G 1

D o m e s t i c V i o l e n c eV i c t i m sThere are common counterintuitivereactions to domestic violence thatcan be explained with expert testimo-ny. For 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. Because of their expe-rience, experts can help explain a vic-tim’s seemingly irrational behavior tothe jury as a reasonable response totrauma.

Specifically, 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 safety4 or the safety offriends, family or pets.5 Still othersstay with their abusers in an attemptto gain control over the severity orfrequency of their abuse.

S e x u a l A s s a u l t V i c t i m sThe behaviors of sexual assault victims–particularly nonstranger sexualassault victims—also frequently conflictwith the behavior the public expects.Certain 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 assault.Specifically, the public expects sexualassault victims to scream during theirrape or forcefully resist their attackers;to report their rapes immediately; andto remain vigilant following their

attacks. Victims, however, often do notscream or resist during a rape; theyfrequently delay in reporting theirrape; and they often do not remainhypervigilant.

An 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 them.Victims 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. 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 lives.

T H E R E L E V A N C E A N D A D M I S S I B I L I T YO F E X P E R T T E S T I M O -N Y O N C O U N T E R I N -T U I T I V E V I C T I MB E H A V I O R

The jury’s ability to understand avictim’s behavior is intertwined with itsability to judge a victim’s credibility.6

The 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 abuse.Either interpretation has equally devas-tating consequences as both oftenresult in a not guilty verdict in a crimi-nal prosecution.

Expert 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 testimony.7 Significantly, somecourts have recognized that the publicholds beliefs and attitudes aboutabused women which are at odds withexperts’ studies.8 Expert testimonythat it is not uncommon for victims tolater deny or minimize their abusers’conduct, therefore, is relevant toexplain the possible reasons for anyinconsistencies between a victim’s tes-timony on the stand as compared withher statements to police and prosecu-tors.9 Some 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 reason.10 Indeed courts haverecognized that this behavior is oftenattributed to inaccuracy or deception11

because 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 credibility.Specifically, 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 rape.13

C H O O S I N G A NE X P E R TThe 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. 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 victim.

Once 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 officers.In 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 vic-

tims.14 Once qualified, these expertsmay testify to the general dynamics ofdomestic violence as well as domesticviolence and sexual assault victims’common and counterintuitive respons-es to trauma.

Prosecutors should also be aware ofa potential conflict which may arise indomestic violence prosecutions whenthe victim is not cooperating in theprosecution of her abuser. 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 case.

C O N C L U S I O NExpert 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 justdisposition.

National Center

for the Prosecution of

Violence Against Women

Teresa P. Scalzo Director

Jennifer G. LongSenior Attorney

Erin S. Gaddy Senior Attorney

Kate M. RyanStaff Attorney

F O O T N O T E S1 Jennifer Long is a Senior Attorney in APRI’s National Center for the Prosecution of

Violence Against Women (NCPVAW). The author wishes to give special thanks to Ana

Maria Hernandez, a third-year law student at American University, who provided invalu-

able research on this article.2 See, Cynthia Lynn Barnes, Admissibility of Expert Testimony Concerning Domestic Violence

Syndromes to Assist Jury in Evaluating Victim’s Testimony or Behavior, 57 A.L.R.5th 315

(October 2005); Gregory G. Sarno, Admissibility, at Criminal Prosecution, of Expert Testimony

on Rape Trauma Syndrome, 42 A.L.R. 4th 879 (July 2005). Confusion exists because the

term Battered Woman Syndrome (BWS) is often incorrectly used interchangeably with

counterintuitive reactions to domestic violence. The same is true with respect to Rape

Trauma Syndrome (RTS). The similarities and distinctions will be explained more fully in

Working with Experts to Explain Counterintuitive Victim Behavior in Domestic Violence and

Sexual Assault Cases (anticipated release December 2006).3 It is important to remember that even when a prosecutor decides not to use an expert

at trial, it may be useful to use an expert during case preparation to identify and explain

counterintuitive victim behavior.4 See Margo Wilson and Martin Daly, Spousal Homicide Risk and Estrangement,Violence and

Victims,Vol. 8, No. 1 (1993); Neil Websdale, Lethality Assessment Tools: A Critical Analysis

(1999) available at http://www.vawnet.org/DomesticViolence/Research/VAWnetDocs/

AR_lethality.php (discussing the significance of a separation or attempt to separate by

the female party in a domestic homicide).5 See Allie Phillips,“The Dynamics Between Animal Abuse, Child Abuse and Domestic

Violence: How Pets Help Children”. THE PROSECUTOR,Vol. 38, No. 5 (September-October

2004) (discussing the interrelationship between domestic violence and pet abuse).6 The admissibility of expert testimony on counterintuitive victim behaviors is dependent

upon the laws of a particular jurisdiction. In addition to the articles previously cited, pros-

ecutors should also refer to Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993);

Kumho Tire Co. v. Carmichael, 526 US 137 (1999); and In re Paoli R.R. yard PCB Litig, 35 F.3d

717, 744 (3d Cir. 1994) (interpreting the test under Daubert as incorporating 7 factors);

see also Kenneth Winchester Gaines, Rape Trauma Syndrome:Toward Proper Use in the

Criminal Trial Context, 20 American Journal of Trial Advocacy 227 (1996-1997).7 Id.8 State v. Borelli, 629 A.2d 1105, 1112 (1993) (discussing jurors’ potentials to believe in

domestic violence myths); See also, State v.Townsend (2006 N.J. Lexis 644) at 33-34 (stating

“[w]e have no doubt that the ramifications of a battering relationship is still a subject that

is beyond the ken of the average juror.”).9 See Barnes, supra n. 2, at Sec. 3a (discussing abuse victims’ common recantations).10 Id.11 Id.12 Id.13 See Sarno, supra note 2, at 3 (citing Delia S. v Torres (1982, 2d Dist) 134 Cal App 3d 471,

184 Cal Rptr 787) (finding that expert testimony on victim behavior “provided a back-

ground against which the jury could assess the relevance of the defense theory that the

victim’s conduct was not typical or expected of rape victims.”)14 See Barnes, supra note 2, at Sec. 8; see Sarno, supra n. 2, at Sec. 6.

�

American Prosecutors Research InstituteNational Center for the Prosecution of Violence Against Women99 Canal Center Plaza, Suite 510Alexandria,VA 22314

This project was supported by Grant No. 2004-WT-AX-K047 awarded by the Officeon Violence Against Women, U.S. Department of Justice. The opinions, findings, conclu-sions, and recommendations expressed in this publication are those of the authors anddo not necessarily reflect the views of the Department of Justice, Office on ViolenceAgainst Women, the American Prosecutors Research Institute or the National DistrictAttorneys Association.

Non-profitUS Postage

PAIDMerrifield,VA

Permit No. 768

THEvoice is published by the American Prosecutors Research Institute’s National Center for the Prosecution of Violence Against Women. Items may be reprinted if attributed to

APRI’s National Center for the Prosecution of Violence Against Women. Please provide copies to The Voice. Contact us if you have inquiries or article suggestions at (703) 549-4253.

S AV E T H E S E D AT E S

National Institute on the Prosecution of Domestic Violence (in collaboration with the Battered Women’s Justice Project)

July 18–21, 2006 Seattle,WA

September 12–15, 2006 San Diego, CA

December 5–8, 2006 Charleston, SC

National Institute on the Prosecution of Sexual Violence (in collaboration with the Pennsylvania Coalition Against Rape)

August 15–18, 2006 Las Vegas, NV

September 26–29, 2006 Denver, CO

�

To request a copy of our new Monograph

Working with Experts to

Explain Counterintuitive

Victim Behavior

in Domestic Violence and

Sexual Assault Cases

Please send an e-mail to ncpvaw@ndaa-apri.org

(anticipated release December 2006).