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1997

Rape Trauma Syndrome

Paul C. Giannelli Case Western University School of Law, [email protected]

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Repository Citation Giannelli, Paul C., "Rape Trauma Syndrome" (1997). Faculty Publications. 346. https://scholarlycommons.law.case.edu/faculty_publications/346

This Article is brought to you for free and open access by Case Western Reserve University School of Law Scholarly Commons. It has been accepted for inclusion in Faculty Publications by an authorized administrator of Case Western Reserve University School of Law Scholarly Commons. Forensic Science

Rape Trauma Syndrome

Paul Giannelli*

Theuse of social science research lustration is rape trauma syndrome, in law is now commonplace, al­ the subject of this column.3 though not without controversy. The phrase "social frameworks" was Initial Research. coined to describe a new us.�of. tljis ' research.1 The term refers to the use The phrase "rape trauma syn- drome" (RTS) was coined in of social science research to provide 1974 to describe the behavioral, somatic, a context for assisting a jury in de­ and psychological reactions of rape ciding specific factual issues.2 For and attempted rape victims.4 Based examjHe, social science r�search on interviews with 146 women, re- concerningthe problems associated with eyewitnessidentifications pro­

vides background information that 3 See generally Freckelton, "When assists a jury in deciding whether the Plight Makes Right: The Forensic eyewitness's account in a particular Abuse Syndrome," 18 Crim. LJ 29 (1994); Mosteller, "Legal Doctrines case is accurate. Similarly, evidence Governingthe Admissibility of Expert of the battered woman syndrome Testimony Concerning Social Frame­ provides a context in which to view work Evidence," 52 Law & Contemp. Probs. 85, 125-128 (Autumn 1989); a self-defense claim. Yet another il- Stefan, "The Protection Racket: Rape Trauma Syndrome, Psychiatric Label­ ing, and Law," 88 Nw. U. L. Rev. 1271 (1994); Vidmar and Schuller, "Juries * Albert J. Weatherhead ill and Ri­ and Expert Evidence: Social Frame­ chard W. Weatherhead Professor of work Testimony," 52 Law & Con temp. Law, Case WesternReserve University, Probs. 133, 155-160 (Autumn 1989); Cleveland, Ohio. This column is based Comment, "Making the Woman's Ex­ in part on P. Giannelli and E. Imwink­ perience Relevant to Rape: The Admis­ elried, Scientific Evidence (2d ed. sibility of Rape Trauma Syndrome in 1993). Reprinted with permission. California," 39 UCLA L. Rev. 25 1 1 Walker and Monahan, "Social (1991); Annot., "Admissibility, at Frameworks: ANew Use of Social Sci­ Criminal Prosecution, of Expert Testi­ ence in Law,'' 73 Va.L. Rev.559 (1987). mony on Rape Trauma Syndrome," 42 ALR 4th 879 (19S5). 2 "We therefore propose a new cat­ ./' ' egory, which we term social framework; 4 Burgess and Holmstrom, "Rape to refer to the use of general conclu­ Trauma Syndrome," 131 Am. J. Psy­ sions from social science research in chiatry 981 (1974). See also Burgess, determiningfactual issues in a specific "Rape Trauma Syndrome," 1 Behav. case." Id.at 570. Sci. & L. 97 (Summer 1983).

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searchers found that victims usually search problems includ_ed (1) unrep­ progress through a two-phase pro­ resentative samples; (2) failure to cess, an acute phase and a long-term distinguish between victims of reorganization phase. Impact reac­ rapes, attempted rapes, and moles­ tions in the acute phase involve ei­ tation; and (3) failure to account for ther an "expressed style" in which individual idiosyncratic and inci­ fear, anger, and anxiety are mani­ dent-specific reactions.6 In 1989, a fested, or a "controlled style" in psychologist concluded that "re­ which these feelings are masked by search on the rape trauma syndrome a composed or subdued behavior. is not probative on prior consent, Somatic reactions include physical prior trauma, nor the cause of the trauma, skeletalmuscle tension, gas­ complainant's current behavior."7 trointestinal irritability, and geni­ tourinary disturbance. Inaddition, a wide gamut of emotional reactions, Later Research ranging from fear, humiliation, and embarrassment to anger, revenge, "Subsequent research,· which is and self-blame are exhibited. much more rigorous, conceptualizes The second phase, the reorgani­ rape trauma in terms of specific zation phase, typically begins two to symptoms rather than more general six weeks after the attack and is a stages of recovety."8 The sy:ndrome period in which the victim attempts is now recognized as a type of post­ to reestablish her life. This period is traumatic stress disorder (PTSD), characterized by motor activity, such and such disorders are included in as changing residences, changing the most recent edition of the Ameri­ telephone numbers, or visiting fam­ can Psychiatric Association's Diag­ ily members. Nightmares and nostic and Statistical Manual of dreams are common. Rape-related Mental Disorders. 9 This approach to phobias, such as fear of being alone RTS, however, does not focus on the or fear of having people behind one, two-stage model of recovery posited and difficulties in sexual relation­ by the early researchers, but rather ships also are prominent. on specific symptoms. Critics questioned the scientific basis for RTS evidence. After sur­ veying the literature, one writer con­ cluded that "defmitional problems, 6 Id. at 1678-1680. biased research samples, and the in­ 7 Graham, "Rape Trauma Syndrome: herent complexity of the phenom­ Is It Probative Of Lack of Consent?" 13 enon vitiate all attempts to establish L. & Psych. Rev. 25, 41-42 (1989). empirically the causal relationship 8 Frazier and Borgida, "Rape Trauma implicit in the concept of a rape Syndrome: A Review of Case Law and Psychological Research," 16 Law & trauma syndrome."5 Some of the re- Hum. Behav. 293, 299 (1992). 9 A.P.A. Diagnostic and Statistical Manual of Mental Disorders 247 (3d ed. 5 Faigman, "Checking the Allure of rev. 1987) ("Post-traumatic Stress Dis­ Increased Conviction Rates: The Ad­ order"). Another disorder sometimes missibility of Expert Testimony on mentioned in these cases is "conversion Rape Trauma Syndrome in Criminal disorder." ld. at 257. See State v. Hall, Proceedings," 70 Va. L. Rev. 1657, 412 SE 2d 883, 891 (NC 1992) (discuss­ 1678 (1984). ing conversion disorder and RTS).

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Although victims of RTS experi­ victim, not to evaluate a victim's ence a range of symptoms, only a reactions in order to establish the few symptoms have been studied fact that a rape had occurred, which consistently: fear and anxiety, de­ is how RTS evidence is sometimes pression, social maladjustment, and used at trial. There is an accepted sexual dysfunction. Recent studies body of research concerning the af­ also document symptoms identified tereffectsof rape. The critical issue, for PT SD-recurrent nightmares, however, is how the research is used irritability,· and hypervigilance.10 in court. Two researchers concluded:

In our opinion, although early JExpeJr�'fes�Jimi[J)IlllY studies were plagued by numer­ Researchers have also reviewed ous methodological problems ... , expert testimony in the reported several studies have since been cases. In several instances, they conducted that are much more so­ found testimo1JY that was unsup­ phisticated methodologically .... ported by research.For example, in These studies have assessed vic­ Lessard v. State, 12 the expert testi­ tim recovery at several points af­ fied that it is "very common" for a ter the assault using standardized victim to ask an assailant not to te11 assessment measures and have anyone about the assault. 'i\friters employed carefully matched con­ have concluded that "this particular trol groups. This research has es­ behavior has not been documented tablished that rape victims in the research 1iterature."13 Their experience more depression, conclusions concerning court testi­ anxiety, fear, and social adjust­ mony are noteworthy: ment and sexual problems than women who have not been vic­ In sum, experts in recent cases timized. Research on PTSD have described a broad range of among rape victims is more re­ symptoms and behaviors as con­ cent but consistently suggests that sistent with RTS, some of which many victims experience PTSD do not appear to be based on re­ symptoms following an assault. search. Testimony that is not re­ Initially high symptom levels gen­ search based often seems to be erally abate by 3 to 4 months post­ prompted by a defendant's claims assauli, although significant levels that a complainant's behavior was of distress continue for many vic­ inconsistent with having been tims.11 raped. If virtually any victim be­ havior is described as consistent In evaluating this research, its with RTS, the term soon wi!l have underlying purpose is criticaL The little meaning.Indeed, some crit­ focus of much of the research was ics have argued that this already to understand the victim's reactions is the case . . . . 14 in order to provide assistance to the

1" 719 P2d 227, 233 (Wyo. 1986). 10 Frazier and Borgida, supra note 8, 13 Frazier and Borgida, supra note 8, at 300. at 304.

11 Id. at 301. 14 Id. at 304-305.

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Jury Studies Expert testimony, when presented early in the trial, may serve as a Social scientists have also at­ powerful organizing theme or tempted to determine whether the basis for a juror's initial impres­ typical jury is generally lmowledge­ sion of the case.When presented able regarding the aftereffects of later in the trial, by contrast, the rape, and what the impact of expert expert testimony may be treated testimony concerning this subject merely as additional information wiU have on a jury. One study ad­ to be integrated into an existing, ministered an 18-item questionnaire well-organized impression.19 concerning sexual assault to two groups of experts: rape and PTSD A second fmding was that expert experts.15 The responses of the ex­ testimony had a greater impact if it perts were then compared to those was "concretized " through the use of two nonexpert groups (students of a case-specifichypothetical ques­ and nonacademic university staff). tion. The more general testimony The nonexpert groups scored mark­ consisted of an attempt to debunk edly lower on the questionnairethan many of the common myths con­ did the experts-near chance levels cerning rape. The expert in the ex­ (57 percent and 58 percent cor­ periments testified that: (1) few rect).16 Significantly,the nonexperts women falsely accuse men of rape; were unaware of the behavioral (2) rape is a highly underreported changes a victim often experiences crime; (3) a large proportion of rapes following a rape.17 This study sug­ involve casual acquaintance of the gests that jurors often need to be in­ victim ratherthan strangers; (4) rape is a crime of violence rather than a formed about this subject to crime of passion; and (5) it is often understand the evidence. better for a woman to submit than Otherstudies18 have focused on the to risk the additional violence that impact RTS testimony has on jurors. could result from ineffective resis­ These experiments suggest that RTS tance. When this testimony was fol­ testimony has a greater impact when lowed by a hypothetical question . introduced early in trial rather than incorporating the important features 20 later. The writers concluded: of the case, it had a greater impact. The studies also indicated that jurors did not automatically accept 15 Frazier and Borgida, "Juror Com­ mon Understanding and the Admissi­ the expert's testimony, and that ex­ bility of Rape Trauma Syndrome pert testimony was important in ac­ Evidence in Court," 12 Law & Hum. quaintance rape and lack of physical Behav. 10 1 (1988). resistance situations. 16 ld. at 112. 17 ld. at 114. Evidentiary Use 18 Brekkeand Borgida,"Expert Psy­ chological Testimony in Rape Trials:A RTS evidence may be offered at Social-Cognitive Analysis," 55 J. Per­ trial to prove lack of consent by the sonality & Soc. Psycho. 372 (1988); Borgida andBrekke, "Psycholegal Re­ 19 Brekkeand Borgida, supra note 18, search on Rape Trials," in Rape and at 383. Sexual Assault: A Research Handbook 2o 313 (A. Burgess ed., 1985). Id.

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alleged victim, and to explain testimony regarding the e:r..istence postincidentconduct by a victim that of rape traumasyndrome is relevant

a jury might perceive as inconsis- · and admissible in a case such as this tent with the claim of rape. The where the defense is consent.23 courts divide regarding the first use, but generally accept the second.In Other courts follow this prece­ addition, RTS evidence has been deni. 24 In addition, Illinois enacted a statute that permits the admission offered by the defense to prove a of evidence of posttraumatic stress lack of rape"; Defendants have -also syndrome it1illegal sex acts prosecu­ sought to have alleged victims ex­ tions. 25 mninedpsychiatrically to determine Different courts have imposed a RTS symptoms. variety of limitations on this use of RTS evidence. Some courts permit the expert to testify that the victim's A«:llmnu1ssnlbility: ILack of ComeRll� behavior was consistent with RTS A number of courts permit RTS but not that the. victim had been c evidence to be introduced at trial to raped. 26 Other ourts prohibit (1) establishlack of consent, an element of the crime of rape. The inference 23 Id. at 1299. may be stated as a syllogism: (1) 24 E.g.,State v. Huey, 699 P2d 1290, certai.11 Rape victims manifest char­ 1295 (Ariz. 1985); State v. Gettier, 438 acteristics kilO""vVn as RTS; (2) the NW2d 1, 6 (Iowa 1989); State v. alleged victim has these symptoms; Allewalt, 517 A2d 741,751 (Md. 1986); and (3) therefore she has been raped. State v. Liddell, 685 P2d 918,922-923 (Mont. 1984); State v. Whitman, 475 lil 1982, in State v. Marks,21 the NE2d 486, 488 (Ohio Ct. App. 1984); Kansas Supreme Court became the State v. Schumpert, 435 SE2d 859, 862 first state supreme court to uphold (SC 1993) ("[E]xpert testimony and be­ the admission of RTS evidence. A havioral evidence are admissible as rape psychiatrist, who examined the vic­ trauma syndrome to prove a sexual of­ tim two weeks after the attack, tes­ fense occurred where the probative value of such evidence outweighs its tified that the victim had suffered a prejudicial effect."). "frightening assault" and was "suf­ 25 725 Ill. Con. Stat. 5/115-7.2 (West fering from the post-traumatic stress 1992). :iisorderlmown as rape trauma syn­ 26 E.g.,People v. Eiskant, 625 NE2d jrome."22 The court concluded: 1018, 1021 (Ill. App. Ct. 1993) ("The preferred testimony- is whether or not An examination of the literature the victim exhibited symptoms, behav­ clearly demonstrates that the so­ iors, or characteristics consistent with called "rape trauma syndrome" is the syndrome in question."); State v. generally accepted to be a common Alberico, 861 P2d 192,210 (NM1993) ("[Post Traumatic Stress Disorder] tes­ reaction to sexual assault. ... As timony is admissible for establishing such, qualified expert psychiatric whether the alleged victim exhibits symptoms of PTSD that are consistent with rape or sexual abuse"; however, 21 647 P2d 1292 (1982). this testimony may not be offered to 22 I d. See also United States v. Carter, show victim is telling the truth and ex­ 2 MJ 771, 775 (ACMR 1986) (RTS pert may not testify regarding identity 1tisfies F1ye ), aff'din part, 26 MJ 428 of perpetrator or mention rape trauma �MA 1988). syndrome).

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comment concerning the credibility Court ruled that "[r]ape trauma syn­ of the alleged victirn,27 (2) use of the drome is not the type of scientific term "rape trauma syndrome, "28 or test that accurately and reliably de­ (3) any reference to the accused.29 termines whether a rape has oc­ Still other courts have demanded curred."32 Other courts exclude RTS rigorousqualifications for experts in evidence because it has not been this context.30 generally accepted by the scientific Courts rejecting RTS as proof of community as required by the Frye lack of consent dispute the scientific test.33 For example, in People v. validity of the syndrome when of­ Bledsoe,34 the California Supreme fered for this purpose. In State v. Court noted that "rape trauma syn­ Saldana,31 the Minnesota Supreme drome was not devised to determine the 'truth' or 'accuracy' of a particu­ lar past event-i.e., whether, in 27 E.g., State v. Brodniak, 718 P2d fact, a rape in the legal sense oc­ 322, 326--329 (Mont. 1986) (RTS evi­ curred_o:._but rather was developed dence admissible, but expert may not comment on victim's credibility); Tay­ by professional rape counselors as lor v. Commonwealth, 466 SE2d 118, a therapeutic tool, to help identify, 122 (Va. Ct. App. 1996) (The expert predict and treatemotional problems "did not testify about any details of the experienced by the counselors' cli­ attack, give the victim's version of the ents or patients."35 Thus, according offense,or testifythat she believed that victim was telling the truth.. ..We hold to the court, although generally ac­ that evidence of an emotional or psy­ cepted by the scientific community chological injury such as posttraumatic for a therapeuticpurpose, expert tes­ stress disorder, like medical evidence timony concerning RTS was not of physical injury, is relevant as circum­ generally accepted "to prove that a stantial evidence of the occurrence of a traumatizing event."); State v.McCoy, rape, in fact, occurred."36 The court 366 SE2d 731, 737 (W. Va. 1988). commented: 28 State v. Allewalt, 517 A2d 741 , [A]s a rule, rape counselors do not 751 (Md. 1986) (avoiding term RTS is "more than cosmetic"). probe inconsistencies in their cli­ ents' descriptions of the facts of 29 E.g., State v. Huang, 394 SE2d 279, 284 (NC Ct.App. 1990) (RTS evi­ the incident, nor do they conduct dence admissible, but expert's repeated independent investigations to de­ implication of defendant was prejudi­ termine whether other evidence cial error), rev. denied, 399 SE2d 127 corroborates or contradicts their (NC 1990). clients' renditions. Because their 30 In State v. Willis (888 P2d 839 function is to help their clients (Kan. 1995)), the Kansas Supreme Court ruled that a licensed social worker was not qualified "to diagnose medical and psychiatriccon ditions such as post­ 32 Id. at 229. Accord State v. McGee, traumaticstress disorder.. ..Such tes­ 324 NW2d 232, 233 (Minn.1982). timony should be limited to experts with 33 For a discussion, see 1 Paul training in the field of post-traumatic Giannelli and Edward Imwinkelried, stress disorder and rape trauma syn­ Scientific Evidence ch. 1 (2d ed. 1993). drome and possessing the professional qualifications to make appropriate di­ 34 681 P2d 291 (Cal. 1984). agnoses thereof." Id. at 845. 35 Id. at 300.

31 324 NW2d 227 (Minn. 1982). 36 Id.at 301.

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deal with the trauma they are ex­ Most courts accept this position. periencing, the historical accu­ For example, expert testimony has racy of the client's descriptions of been admitted to explain a victim's the details of the traumatizing (1) passive resistance during a events is not vital in their taskY rape,40 (2) delay in reporting the crime,41 and (3) calm demeanor af­ Other courts accept this reasoning. 38 ter an attack.42 RTS evidence has also been introduced to explain that Admissibi!Uy:� Eipla�ning "ill t1ie context of a trust relation­ JBehavioJr ship, such as a doctor-patient rela­ tionship, some victims may return As noted previously, the Califor­ to uie trusted relationship for further nia Supreme Court in Bledsoe re­ jected RTS evidence when offered and sexual assault case that complain­ to prove lack of consent. The court, ant's conduct (e.g., failingto make es­ however, approved the admissibil­ cape attempts) was consistent with that ity of RTS evidence when the de­ of other assault victims). fendant suggested to the jury that the 40 E.g., United States v. Houser, 36 conduct of the victim after the inci­ MJ 392, 400 (CMA 1993) (Expert tes­ dent was inconsistent with the claim tified"that in some rape cases the vic­ of rape. In this situation, the court tim would fail to report the offense imm�giately, fail to resist and show no wrote, "expert testimony on rape appearance of anxiety."), cert. denied, trauma syndrome may play a par­ 114 S. Ct. 182 (1993); Perez v. State, ticularly useful role by disabusing 653 SW2d 878, 882 (Tex. Ct. App. the jury of some widely held mis­ 1983) (in rebuttal, expert explained al­ conceptions about rape and rape vic­ leged victim's passive resistance dur­ ing rape). tims, so that it may evaluate the evidence free of popular myths."39 41 E.g., DeLuca v. Lord, 858 F.Supp. 1330, 1340 (SD 1994) (expert testi­ mony that "rape victims often do not 'cry out' to the first person they see fol­ 37 !d. at 300. See also People v. lowing a rape, and initially tryto resume Coleman, 768 P2d 32, 48-49 (Cal. their normal activities with no mention 1990) (reaffirming Bledsoe). of the assault" held inadmissible in ho­ 38 E.g., Spencer v. General Elec. Co., micide trial because the justification 688 F. Supp. 1072, 1075-1077 (ED Va. defense was not offeredat triai);United 1988); People v. Taylor, 552 NE 2d 131, States v. Peel, 29 MJ 235, 241 (CMA 138 (NY 1990) (RTS "is inadmissible 1989) (RTS evidence admitted to ex­ when it inescapably bears solely on plain postattack behavior-delay in re­ proving that a rape occurred"); State v. porting and attempts to normalize life),. Hall, 412 SE2d 883, 890 (NC 1992); cert. denied, 493 US 1025 (1990); People v. Pullins, 378 NW2d 502, 505 People v. Hampton, 746 P2d 947,951- (Mich. Ct. App. 1985) (RTS fails Frye 952 (Colo. 1987) (RTS evidence admis­ test); State v. Taylor, 663 SW2d 235, sible to explain delay in reporting). 240 (Mo. 1984); State v. Ogle, 668 42 E.g., People v. Taylor, 552 NE2d SW2d 138, 143-144 (Mo. Ct. App.), 131, 138 (NY 1990) ("[H]alf of all cert. denied, 469 US 845 (1984); State women who have been forcibly raped v. Black, 745 P2d 12, 15-18 (Wash. are controlled and subdued following 1987) (RTS fails Frye test). the attack"); State v. Robinson, 431 39 681 P2d at 298. See also State v. NW2d 165,172 (Wis. 1988) (many vic­ Freeney, 637 A2d 1088, 1093 (Conn. tims are "emotionally flat" immediately 1994) (expert testimony in kidnapping after assault).

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contact with the perpetrator of the Here, Dr. Gover's testimony assault."43 would have tended to prove that In People v. Yates,44 the court ap.:. J.O.'s behavior after the incident plied the New York rule admitting was inconsistent with that of a RTS evidence to explain a male victim who had suffered a trau­ defendant's reaction to an alleged matic rape such as that J.O. re­

_ homosexual attack.The court noted: counted. The evidence therefore "A review of literatUre describing would have a tendency to make the effectof sexual assault' on men it less probable that a rape in fact 8 reveals that male victims, both bet­ occurred .. . .4 erosexual and homosexual, exhibit a well defined trauma syndrome This result is a logical extension similar to and parallel to that found of those cases. that admit RTS evi­ in female victims of rape."45 The dence to show lack of consent.If the - court also commented that a "com­ evidence is reliable enough for that mon characteristic of male and fe­ purpose, it is also (so the argument male rape victims is delay in goes) to show consent. Theproblem reporting the crime."46 is that it should not be admitted for either purpose. As one court has noted: Admissibility: Offered by the Defense While it appears that testimony regarding rape trauma syndrome In Henson v. State,41 the Indiana can be useful in explaining the Supreme Court held that a defendant unusual behaviors that the syn­ may offerRTS evidence to show that drome comprises, especially the victim had not been raped. The where those behaviors would alleged victim claimed that she had mislead the jury, it does not fol­ been raped at knife point after leav­ low that the converse is true .... ing a bar. She returned to the same [S]ome victims exhibit few, if bar the next evening for two hours any, symptoms, and ...different and a drink. The defendant offered victims exhibit symptoms during the testimony of an expert to com­ vastly different time frames.49 ment on her postattack conduct.The trial court excluded the evidence, but the Supreme Court reversed, saying: Psychological Examinations of Victims

Another Consequence of admit­ 43 Commonwealth v. Mamay, 553 ting RTS evidence concerning the NE2d 945, 95 1 (Mass. 1990). See also issue of consent is the defendanCs Simmons v. State, 504 NE2d 575, 579 1987) (Ind. (initial false report· consis- tent with RTS). 48 Id. at 1191. See generally Note, 44 637 NYS2d 625 (NY Sup. Ct. ''Defense Expert Testimony on Rape 1995). Trauma Syndrome: Implications for the Stoic Victim," -42 Hastings LJ 1143 45 Id.at 627. (199 1). 46 Id. at 628. 49 Statev. Jones, 615 NE2d 713, 718- 47 535 NE2d 1189 (Ind. 1989). 719 (Ohio Ct. App. 1992).

277 CRIMINAL lAW BUllETiN right to have the victim examined Defendants have challenged the by a defense expert to determine refusal to order an examination on whether RTS is an accurate diagno­ constitutional grounds. The Ninth sis.50 Some courts hold that trial Circuit, however, has ruled that a courts lack the authority to order trial court's refusal to order psychi­ such examinations.51 Others use a atric examinations of two young "substanti� need" test. 52 sexual assault victims to determine whether they exhibited signs of § 5o ee-Montoya, "A Theory of Com­ ,_ Rape Trauma Syndrome did not vio­ pulsory Process Clause Discovery late due process.53 A different issue Rights," 70 Ind. LJ 845, 884-888 (1995); Comment, "A FourthAmend­ may be presented, however, if the ment Approach to Compulsory Physi­ prosecution uses an expert. TheNe­ cal Examinations of Sex Offense vada Supreme Court has held: Victims," 57 U. Chi.L. Rev. 873 (1990); . Annot., "Necessity or Permissibility of [U]nless competent evidence pre­ Mental Examination to Determine Competency orCredibility of Com­ sents a compelling reason to pro­ plainant in Sexual Offense Prosecu­ tect the victim, it is error to deny tions," 45 ALR 4th 310 (1986). a defendant the assistance of a 51 E.g., State v. Gabrielson, 464 defense psychologist or psychia­ NW2d 434, 436 (Iowa 1990). In State tiist to examine the child-victim v. Horn (446 SE2d 52, 53-54 (NC and testify at trial \Vhen·theState 1994)), the North Carolina Supreme is provided such assistance. 54 Court ruled that a trial court lacks au­ thority to compel an unwilling witness to submit to a psychiatric examination. Basing its decision on due pro­ The court, however, did note that the cess, the Illinois Supreme Cqurt has trial court has other alternatives: (1) held that "unless the victim consents appointment of a defense mental health to an examination by an expert cho­ expert to review findingsof psychologi­ cal evaluations already performed on sen by the defenda.nt, the State may the victim; (2) preclusion of admission not introduce testimony from an ex­ of prosecution's psychological evi­ amining expert that the victim of an dence; and (3) dismissal of case. alleged sexual assault suffers from 52 In Keeney v. State (850 P2d 311, 315 (Nev. 1993)), the court stated that, "it would be error to preclude a defen­ ("'substantial need' criterion is an am­ dant from having an alleged child-vic­ plification of, and is not inconsistent tim examined by an expert in psychiatry with, Delaware's 'compelling' reasons or psychology if: (1) the State has em­ standard"); State v. Camejo, 641 So. 2d ployed such an expert; (2) the victim is 109, 113 (Fla. Ct. App. 1994) (per not shown by compelling reasons to be curiam) ("Florida law accords with the in need of protection; (3) evidence of majority rule in other jurisdictions that the crime has little or no corroboration t1ial courts have the inherent power to beyond the testimony of the victim; and order psychological examinations .. .. (4) there is a reasonable basis for be­ [C)redibility may be a reason to order lieving that the victim's mental or emo­ such an examination, but only if there tionalstate may have affectedhis or her is strong and compelling evidence."). veracity." See also Virgin Islands v. LeonardA., 922 F2d 1141, 1143-1144 53 Gilpin v. McCormick, 921 F2d (3d Cir. 1991); State v. RW, 514 A2d 928, 931 (9th Cir.1990). 1287, 1291 (NJ 1986); State v. Redd, 54 Lickey v. State, 827 P2d 824, 826 642 A2d 829, 835 (Del. Super. 1993) (Nev. 1992).

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a 'recognized and accepted form of layed reporting) is not inconsistent post -traumatic stress syndrome.' "55 with the crime of rape. Under this Again, this issue is avoided if theory of admissibility, there is no RTS evidence is restricted to its need to examine this victim. proper use: to explain that the victim's postrape behavior (i.e., de- Conclusion

Rape remains one of the most un­ 55 People v. Wheeler, 602 NE2d 826, reported crimes. Only slowly is the 833 (Ill. 1992). See also State v. Maday, public recognizing that it is a crime of 507 NW2d 365, 372 (Wis. Ct. App. 1993) ("When the state manifests an violence, which in its most profound intent during its case-in-chief to present sense has little to do with.humim sexu­ testimony of one or more experts, who ality. The evidentiary use of RTS evi­ have personally examined a victim of dence offers an important way to an alleged sexual assault, and will tes­ dispel some of themyths concerning tify that the victim's behavior is con­ sistent with the behaviors of other rape victims. In contrast, to use this victilps of sexual assault, a defendant research to establish lack of consent, may request a psychological examina­ rather thanto explainbehavior, iswith­ tion of the victim."); State v. Schaller, out scientific support and also opens 544 NW2d 247, 252 (Wis. Ct. App. the door to defense proffersof the lack 1995) (Maday distinguished; prosecu­ tion witnesses here did not examine the of RTS to show consent and to re­ alleged victim, but simply described quests for psychiatricexaminations of characteristics of battered women). victims.

279