Rape Trauma Syndrome
A Brief History
The earliest iteration of counterintuitive behavior was Rape Trauma Syndrome (RTS). In 1976 Ann Wolbert Burgess (a nurse) and Lynda Lytle Holmstrom (a sociologist) proposed that rape victims experience symptoms related to physical, emotional, cognitive, and interpersonal behaviors. RTS reactions were believed to occur for months or years after the initial assault. RTS eventually morphed with post-traumatic stress disorder (PTSD), with many symptoms in common.
Prosecutors began using RTS behaviors to persuade jurors that unusual behaviors on the part of the victim were actually an adaptive reaction to their trauma. But criticisms by the scientific community began to challenge the validity of the RTS concept.
- Despite its popularity, there was no subsequent scientific validation of the theory since its introduction in 1976.
- It was vague in important details and proponents used ambiguous terms that did not have a basis in science.
- It was unclear what its boundary conditions were.
- It failed to articulate relationships between different variables (i.e., how would RTS for a victim of a single rape compare to a victim of a prolonged series of rapes?).
- Psychological research had difficulty distinguishing symptoms of rape-related PTSD from those potentially created by previous traumatic events (abuse in childhood, earlier sexual assaults).
- Proponents of RTS demonstrated allegiance effects (bias) in favor of purported victims so as to conform victim behaviors as symptoms of RTS.
- RTS never achieved consensus in the scientific community.
- It was not falsifiable.
- It ignored possible mediators (race, gender, extent of the sexual assault).
- RTS was not culturally sensitive.
- RTS was being used by prosecutors as a dispositive tool (truth-telling instrument) to infer that rape had occurred.
- PTSD eventually became a superior argument since empirical examination of the PTSD model had been extensive, unlike RTS.
By the early part of this century, Rape Trauma Syndrome started to fall into disfavor in the courtroom. The astute reader will note that many of the criticisms of RTS listed above are applied to the concept of Counterintuitive Behavior in this paper (because they are essentially the same concepts). Please see Appendix B for an overview of research on RTS.
The Rise of Counterintuitive Behavior
While RTS testimony had faded in popularity the concept found its rebirth as Counterintuitive Behavior (CIB). The American Prosecutor’s Research Institute describes the role of expert witness testimony regarding counterintuitive behaviors as follows.
“An experienced expert can explain behaviors that jurors often find baffling. Specifically, an expert can explain that a victim’s failure to scream out or resist during her attack may result from her shock and subsequent inability to focus. Experts can also explain that rape victims seldom report their assaults immediately because of their confusion, guilt or shock about the assault. Some may not identify the traumatic experience they just endured as rape, especially if their attacker did not use a weapon. It is also common for victims to blame themselves for their rapes if they were drunk, engaged in some consensual sexual behavior with their offenders or traveled to an isolated area with them. Victims may also fail to report immediately out of a fear that they will not be believed, particularly if their rapist is a “respected” member of the community. Victims may also become reckless and promiscuous after a sexual assault in an attempt to regain control over their lives. Finally, although the public would not expect rape victims to come into contact with their perpetrators after an assault, it is not uncommon for victims to seek out their assailants in an attempt to master their situations or to regain control over their lives. . .
The jury’s ability to understand a victim’s behavior is intertwined with its ability to judge a victim’s credibility. The behaviors described above, if left unexplained, can cause judges and jurors to disbelieve a victim’s allegations. For example, the public often mischaracterizes a domestic violence victim’s coping mechanisms as evidence of her complicity in or responsibility for her abuse. As a result, victims who recant are viewed as liars whose original reports to police were baseless accusations concocted to manipulate the system, or, in the alternative, they are perceived as pathological women with low self-esteem who enjoy or perhaps deserve their abuse. Either interpretation has equally devastating consequences as both often result in a not guilty verdict in a criminal prosecution.” Jennifer Gentile Long, (2006). Explaining counterintuitive victim behavior in domestic violence and sexual assault cases. American Prosecutors Research Institute, Vol 1, number 4, p.2.
More recently experts have dropped the label “Counterintuitive Behaviors.” Having learned from the past, prosecutors and CIB experts are reticent to use the actual phrase and will tend to refer to specific victim behaviors as the focus of their testimony. These behaviors can include:
- Not fighting or resisting during the assault (Tonic Immobility, Freeze-Flight-Fight).
- Acting “normal” the next morning; shopping, partying, going to work.
- Not telling, delayed telling, or “piecemeal” disclosure.
- Continued contact with the offender (“Trauma Bonding”; having sex, positive texting, dates after the instant event).
- Inconsistent, piecemeal, changing, or incomplete memories.
But “a rose by any other name would smell as sweet.” Whether in whole or in part, overstating the dynamic of CIB can introduce significant challenges on cross.
Case Law related to Rape Trauma Syndrome
Rape trauma syndrome. United States v. Carter, 26 M.J. 428 (C.M.A. 1988):
Rape trauma is a subcategory of PTSD in the DSM-IV. The psychiatric community recognizes it as valid and reliable. Evidence may assist factfinder by providing knowledge concerning victim’s reaction to assault. Rape trauma syndrome evidence will also assist the trier of fact in determining the issue of consent. This would be particularly true where members would likely have little or no experience with victims of rape. See also United States v. Cox, 23 M.J. 808 (N.M.C.M.R. 1986); United States v. Hartford, 50 M.J. 402 (C.A.A.F. 1999).
Impermissible Testimony. United States v. Bostick, 33 M.J. 849 (A.C.M.R. 1991):
Psychologist impermissibly expressed an opinion concerning the rape victim’s credibility by discussing the performance of the victim on a “Rape Aftermath Symptoms Test” (RAST) and by stating that the victim did not fake or feign her condition. The expert thus became a “human lie detector.” The RAST failed to meet the requirements for admissibility of scientific testimony (lack of foundation). Despite lack of defense objection, the court finds plain error and sets aside findings and sentence.
United States v. Rynning, 47 M.J. 420 (C.A.A.F. 1998):
Not plain error for expert to testify about characteristics of sexual abuse victims in carnal knowledge, sodomy, indecent acts case where the accused raised issues of late and incomplete reporting and other counterintuitive behavior, such as continued affection toward her father, by victim.
United States v. Flesher, 73 M.J. 303 (2014):
Expert testimony about the sometimes counterintuitive behaviors of sexual assault victims/rape trauma syndrome is admissible because it assists jurors in disabusing themselves of widely held misconceptions. However, expert testimony cannot be used solely to bolster the credibility of the government’s fact witnesses by mirroring their version of events.
Research on Rape Trauma Syndrome
Coping behavior of the rape victim
Ann Wolbert Burgess, Lynda Lytle Holmstrom
American Journal of Psychiatry, 133: 4, April 1976
Abstract:
The coping behavior of rape victims can be analyzed in three distinct phases – the threat of attack, the attack itself, and the period immediately thereafter. The authors analyzed the reported coping behavior of 92 women diagnosed as having rape trauma. Most of the women used verbal, physical, or cognitive strategies when threatened, although 34 were physically or psychologically paralyzed. The actual rape prompted coping behaviors in all but 1 victim. Escaping the situation or the assailant is the primary task immediately after the attack. In counseling the rape victim, it is important to understand her indivicual style of coping, to be supportive of it, and to suggest alternative for future stressful situations.
Of slithy toves, Rape-Trauma Syndrome, burn-out, etc.
Wright, Rogers H.
Psychotherapy in Private Practice, Vol 3(1), Spr 1985. pp. 99-108.
Abstract:
Discusses the diagnosis of rape trauma syndrome (RTS). It is argued that RTS is indistinguishable from posttraumatic shock syndrome. The inconsistency of symptomatology and the posttraumatic course of RTS limit its usefulness as a clinical diagnosis. The nonprofessional uses of the RTS diagnosis, discovered in a review of 35–45 articles, included attempts to provide objective verification that a rape occurred. It is concluded that mental health professionals have an obligation to speak out against the misuse of the diagnostic process by unqualified individuals or agencies.
Rape trauma syndrome: Is it probative of lack of consent?
Graham, Ernest S.
Law & Psychology Review, Vol 13, Spr 1989. pp. 25-42.
Abstract::
Argues that research on the rape trauma syndrome is not probative of consent to prior sexual intercourse, and cannot be used in courtroom settings to corroborate an alleged victim’s accusation that prior sexual intercourse with a defendant was nonconsensual. The question of the admissability of rape trauma syndrome is discussed in terms of 3 facts examined in research (consent, prior trauma, and the cause of the alleged victim’s current behavior). Analysis of these facts involves the distinction between structural and functional analyses and between experimental and correlational research designs.
Rape trauma syndrome: A review of case law and psychological research.
Frazier, Patricia A., Borgida, Eugene
Law and Human Behavior, Vol 16(3), Jun, 1992. pp. 293-311.
Abstract:
Reviews recent case law on the admissibility of rape trauma syndrome (RTS) evidence and psychological research relevant to concerns raised about its scientific reliability, helpfulness, and prejudicial impact. Results indicate that (1) specific concerns raised by the courts about the reliability of RTS evidence may not be warranted, (2) expert testimony on RTS could be helpful in educating jurors, and (3) expert testimony on RTS does appear to exert some influence on jury decision making in rape trials, but does not appear to unfairly prejudice the defendant.
Rape trauma syndrome in the military courts.
Young, Stephen A.
Bulletin of the American Academy of Psychiatry & the Law, Vol 23(4), 1995. pp. 563-571.
Abstracts:
Indicates that the military courts have developed a rich case law tradition in the area of rape trauma syndrome testimony. These cases are particularly important in the context of a military that is both increasingly female and increasingly sensitive to mixed gender relationships. The military court’s approach to rape trauma testimony over the past 15 yrs is reviewed. The approach to testimony at one military medical center is analyzed and a testimony model for the forensic psychiatrist who testifies in a military setting is offered.
Effects of a defense psychological expert witness in acquaintance rape trials.
Burnstein, Victor Joel.
Dissertation Abstracts International: Section B: The Sciences and Engineering, Vol 56(10-B), Apr, 1996. pp. 5830.
Abstract:
This study explored the ramifications of the prosecution’s use of a rape trauma syndrome psychological expert in an acquaintance rape trial. Subjects were 207 (92 females, 115 males) University of Texas undergraduates, who listened to one of four versions of an audiotaped simulated acquaintance rape trial. Subjects in the Control Condition listened to the direct and cross-examination of the complainant, several prosecution witnesses, and the defendant. Subjects in a One-Expert Condition also heard the testimony of a prosecution psychiatrist who testified that he had conducted a psychological examination of the complainant and that in his opinion she suffers symptoms consistent with a diagnosis of rape trauma syndrome. Subjects in the Narcissistic Condition heard the testimony of the prosecution expert and a defense psychiatrist, who testified that he had conducted a psychological examination of the complainant and that in his opinion she does not suffer from rape trauma syndrome but rather suffers from a Narcissistic Personality Disorder that might well cause her to bring false rape charges against a man who has rejected her. Subjects in the Borderline Condition heard the testimony of the prosecution expert and a defense psychiatrist, who testified that he had conducted a psychological examination of the complainant and that in his opinion she does not suffer from rape trauma syndrome but rather suffers from a Borderline Personality Disorder that might well cause her to bring false rape charges against a man who has rejected her. Subjects in the Narcissistic Condition and in the Borderline Condition were significantly more likely to render not guilty verdicts and reach defense-oriented decisions than subjects in the Control Condition. There were no significant differences between Control and One-Expert Condition subjects. These results indicate that the prosecution’s introduction of a psychological rape trauma expert may backfire and may result in an increased lik
Rape trauma experts in the courtroom.
Boeschen, Laura E., Sales, Bruce D., Koss, Mary P.
Psychology, Public Policy, and Law, Vol 4(1-2), Mar-Jun, 1998. Special Issue: Sex Offenders: Scientific, Legal, and Policy Perspectives. pp. 414-432.
Abstract:
This article analyzes the scientific legitimacy of using expert testimony relating to psychological sequelae of rapevictimization in the courtroom and attempts to determine boundaries within which such testimony should remain to respect the limitations of current knowledge. Descriptions of the rape-related diagnoses currently used in expert testimony are followed by a discussion of the problematic issues associated with using rape trauma syndrome in the courtroom and a review of the validity and reliability issues associated with diagnosing posttraumatic stress disorder in forensic settings. The authors consider the scientific appropriateness of admitting different levels of rape expert testimony on the basis of the limitations of the scientific knowledge discussed
Reactions to rape: A military forensic psychiatrist’s perspective.
Ritchie, Elspeth Cameron.
Military Medicine, Vol 163(8), Aug, 1998. pp. 505-509.
Abstract:
Discusses rape allegations in the military legal system from a psychiatric perspective. The original definition of ‘rapetrauma syndrome’ and subsequent psychiatric thinking about the diagnosis are briefly outlined. Common reactions seen in military victims in this era are described. A prototypical military case is presented. An adequate evaluation of an alleged victim is outlined. Credentials and preparation of an expert witness are also briefly discussed, with cautions about the use of expert testimony in cases of alleged sexual assault and rape trauma syndrome
Rape trauma syndrome: An examination of standards that determine the admissibility of expert witness testimony.
Biggers, Jacquelyne R., Yim, Chong I.
Journal of Forensic Psychology Practice, Vol 3(1), 2003. pp. 61-77.
Abstract:
Specialized literature on women’s reactions to rape was virtually non-existent before the emergence of the women’s movement in the early 1970s. By speaking out publicly, however, advocates of the civil rights reform compelled the conception of rape trauma syndrome and a proliferation of research regarding the psychological reactions of rape traumavictims. This growth of psychological knowledge regarding the reaction of rape victims forced the courts to reexamine the standards relating to the admission of expert testimony as developed in the case Frye v. United States. As a result of this reexamination, courts have relied upon opposing standards of proof to determine the admissibility of rape traumaevidence such as those developed in section 403 and 702 of the Federal Rules of Evidence and those outlined in the case of Daubert v. Merrell Dow Pharmaceuticals, Inc. The purpose of this paper is to examine rape trauma syndrome as it is commonly understood by both the psychological community and the judicial system and to assess its applicability to the admissibility of expert testimony.
Pathways to false allegations of sexual assault.
Engle, Jessica., O’Donohue, William.
Journal of Forensic Psychology Practice, Vol 12(2), Mar, 2012. pp. 97-123.
Abstract:
Not all allegations of sexual assault are true. Unfortunately, there has been little work on understanding the prevalence offalse allegations or pathways to these. This paper proposes 11 pathways to false allegations of sexual assault: (a) lying, (b) implied consent, (c) false memories, (d) intoxication, (e) antisocial personality disorder, (f) borderline personality disorder, (g) histrionic personality disorder, (h) delirium, (i) psychotic disorders, (j) dissociation, and (k) intellectual disability. These pathways originate in the psychological diatheses of the individual. Further research is needed into the frequency of these pathways, ways to accurately detect these, and whether other pathways exist.
Examining the scientific validity of rape trauma syndrome.
O’Donohue, William, Carlson, Gwendolyn C., Benuto, Lorraine T., Bennett, Natalie M.
Psychiatry, Psychology and Law, Vol 21(6), Nov, 2014. pp. 858-876.
Abstracts:
Rape trauma syndrome (RTS) was first described by Burgess and Holmstrom (1974) who argued that there was little information that described the physical and psychological effects of rape, associated therapy and provisions for protection of the victim from further psychological harm. Since then, there have been several critiques of RTS and empirical evidence exists that RTS is not generally accepted by the relevant scientific community. Despite this, RTS is still used in courts. As such, in this article, we comprehensively evaluated RTS and determined that it is vague and imprecise, its evidential status is questionable, it is inconsistent with the most common sequelae of trauma, it ignores important mediating variables and it may not be culturally sensitive. In light of these critiques, we recommend no further use of this model in courts or in clinical practice.
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