Overcoming the Consent Defense Is Come the Victim’S Resistance

The National Center for the Prosecution of Violence Overcoming the Against Women Consent Defense

BY TERESA P. SCALZO, ESQUIRE1

any Americans believe that rape2 do three things to assist the victim in is only committed by strangers testifying in a competent and credible Mwho use lethal force or the manner: (1) support, (2) protect, and threat of it, and that victims always suf- (3) prepare the victim.Additional fer from serious physical injury.As a strategies that will corroborate the result, many jurors rush to the judg- victim’s testimony and therefore bol- ment that a rape victim who does not ster her credibility include: (4) present fit the stereotype of a “real” rape vic- witnesses in an order that builds a vic- tim is not credible and must have con- tim’s credibility; (5) explain any injuries sented to intercourse, especially when or lack thereof; (6) explain any coun- the defendant does not fit the stereo- terintuitive behavior exhibited by the THE type of a “real” rapist.The reality of victim; and (7) explain any inconsisten- rape is often quite different from the cies in the victim’s testimony.These myth of “real rape,”3 and frequently strategies are discussed ad seriatim. voice involves an acquaintance of the victim claiming consent by the victim as a Helping Support the Victim defense to the charge of rape.The Support can be provided in a number Prosecutors Give prosecutor can overcome the consent of ways. For example, a multidiscipli- defense with a two-pronged strategy. Victims a Voice nary Sexual Assault Response Team First, the prosecutor must show the (SART)5 can support and comfort the jury why the victim is credible, and victim, especially when the team therefore, a “real” victim. Second, he or includes victim advocates who can she should show the jury why the work with prosecutors to ensure that defendant is a “real” rapist. the victim is comfortable on the wit- ness stand.A SART can empower the PROVING VICTIM victim and give her the support she6 CREDIBILITY needs to make it through the investiga- Jurors’ negative perceptions of victims’ tion and trial process. If a SART does credibility can be a significant barrier not exist in your community, consider to success. In rape cases, credibility of starting one. Other ways to support the victim and provability of the case the victim include: creating a Sexual are inherently intertwined, in large Assault Nurse Examiner (SANE)7 pro- part because rape is a crime of secre- gram, working with victim advocates, cy.There are almost never eyewitness- and providing a safe and comfortable es to a rape. Moreover, rape cases place for the victim to wait to testify. rarely have physical evidence that con- A victim who feels supported is more clusively proves that a rape occurred. likely to feel comfortable on the American Prosecutors Prosecutors are left with the victim’s witness stand, which will enable the Research Institute word, which means that jurors must jury to focus on her credibility. The Research and find the victim credible before they will 4 Development Division of NDAA convict the defendant. To be found Protect the Victim Volume 1 credible, a victim must testify well in Protect the victim to the best of your the eyes of the jury. Prosecutors can Number 7 continued on page 2 ➢ ability.A victim who feels protected is to be truthful.Tell her to be honest For example, consider starting with a through the process is less likely to about all details of the event, even if the witness who saw the victim immedi- become defensive or angry on the wit- details are embarrassing. Explain to the ately after the incident in a highly ness stand.When a victim becomes victim that if she attempts to hide or emotional state or a medical witness angry or defensive, jurors are likely to exaggerate small details, the defense will who treated an injury.10 believe that she has something to hide, probably be able to show this on cross- rather than recognizing these reactions examination.The defense will then Explain Any Injuries or as normal human behavior. argue in closing that the victim is a liar Lack Thereof • Utilize pretrial motions to protect the and cannot be believed about the rape Many jurors believe that all women victim’s physical safety and privacy. if she cannot be believed about the who are raped sustain serious physical For example, file a motion to revoke small details. Instruct the victim on the injuries.They do not understand how a bond if the defendant contacts the importance of accuracy. For example, a rape can occur without injury.The victim or file a motion to clear the victim may be inclined to say that the reality is that very few rape victims courtroom of individuals who might defendant “ripped” her panties off, sustain any physical injuries other than threaten or attempt to intimidate the when in fact, he pulled them off, but did the rape itself.11 When a medical exam- victim.You may not always succeed, not rip them.The slightest imprecision ination is done, it is important to pres- but the victim will see that you are opens the door for cross-examination ent it thoroughly, even if it shows that fighting to protect her. and may call the victim’s credibility into no injury occurred. If a sexual assault • Do your best to protect the question.Ask her to try to stay calm, forensic examination was done, do not victim’s identity. since a victim who becomes angry will stipulate to testimony about the exam. If possible, use her initials and date of be unable to think clearly.Working with Have the nurse or doctor who per- birth in court documents as opposed victim advocates can make the prepara- formed it explain it in as much detail to her full name. tion for testifying more comfortable for as possible.The procedure is long and • Oppose frivolous defense motions the victim and thus, more productive very invasive. Jurors who understand intended to harass and intimidate for the prosecutor. what the victim had to endure in the victim. In cases where the consent defense order to prosecute the case will be For example, oppose motions is used, cross-examination may be par- more likely to find her credible. If the requesting a psychological examina- ticularly harsh.Victims who are pre- jurisdiction allows, corroborate the tion of the victim or asking for the pared in advance for the challenge of victim’s statement about her reaction victim’s counseling records. the experience will be better witnesses to the rape by having the nurse or • Oppose attempts to pierce the rape when they testify. It will also be easier doctor testify to the victim’s 8 shield law in your jurisdiction. for them to endure the trial process if demeanor throughout the exam.The • Finally, if the victim is afraid for they understand that they are not nurse or doctor will have spent hours her physical safety, do your best being asked difficult questions because with the patient in many cases, due to to protect her. they are a bad person or because they the length of the exam. For example, request extra deputies did something wrong. Instead, if they In addition to explaining the details for the courtroom or arrange for a are being cross-examined harshly, it is of the examination, it is important to deputy or police officer to escort her because the defense attorney is pro- present expert testimony explaining between her car and the courthouse tecting his or her client.An advocate any injury or lack thereof.12 When before and after any hearings.The may be extremely helpful to the victim injury exists, use an expert to explain defendant or his friends or family fre- and to the prosecutor by being present that the victim’s description of how quently take these opportunities to during preparation for cross-examina- the injury occurred is consistent with intimidate the victim. tion and during the trial itself. the examiner’s findings. If there is no injury, use the expert to explain how it Prepare the Victim Think Carefully About is possible that a woman could be Testifying in court can be as traumatic Witness Order raped but have no physical injuries. as the original rape because the victim Witnesses do not necessarily need to Have the expert testify that in his/her is forced to relive the rape mentally.9 be presented in chronological order. If training, practice and experience, signif- Prepare victims not only for direct there is a witness who supports the icant physical injury from a rape is examination but also for the harsh real- victim’s testimony in a way that makes extremely rare. ity of cross-examination.To prepare a the victim appear more credible, pres- It must be remembered that rape victim, discuss her substantive testimo- ent that witness before the victim. victims who do not suffer immediately ny as well as basic rules for testifying. With this approach, when the jury apparent injury may still suffer severe Tell the victim that the most important hears the victim’s testimony, they will long-term consequences.“A number of rule for her to follow in the courtroom already be inclined to find her credible. long-lasting symptoms and illnesses 2 have been associated with sexual vic- and who delayed in reporting because Explain Any timization including chronic pelvic pain; she knew she would lose her scholar- Inconsistencies in the premenstrual syndrome; gastrointesti- ship if her college found out that she Victim’s Testimony nal disorders; and a variety of chronic was using cocaine. Before explaining In rape cases, inconsistencies in the pain disorders, including headache, the cocaine use to the jury, explain victim’s statements and testimony tend back pain, and facial pain.”13 If any of that the victim was the first in her to take on gigantic proportions. these symptoms or illnesses are pres- family to attend college and that, with- Members of the public who are unwill- ent by the time the case goes to trial, out her scholarship, she would have ing to admit that they believe that evidence of them may be presented. been unable to afford to continue her women lie about rape will often freely schooling.When the jurors appreciate admit that they would hesitate to con- the impact of losing the scholarship, Explain Any vict a defendant of rape without some Counterintuitive form of corroboration, even though Behavior14 this is not required for a conviction. Victims often behave in ways that are Prosecutors must review all victim counterintuitive to jurors’ expecta- statements, identify any inconsistencies tions. Jurors expect “real” rape victims or partial revelations and address to resist their attackers to the utmost National Center them with the victim and other wit- of their ability, report the rape imme- for the Prosecution of nesses prior to trial. Prepare the vic- diately and be hysterical in court. In Violence Against Women tim to answer the defense’s inevitable reality, victims behave in any number questions about the inconsistencies. of ways, many of them counterintu- When the jurors understand that the 15 itive. When victims do not behave in Te r esa P.Scalzo inconsistencies were not deliberate ways that are consistent with jurors’ lies on the part of the victim, they will Director expectations, jurors tend to assume be more likely to find her credible. that the victims are lying. To explain a victim’s counterintuitive Jennifer G. Long SHOWING THE JURY response to rape to a jury, the prose- THE DEFENDANT IS cutor must first understand it. Identify Senior Attorney A “REAL RAPIST” any behaviors that appear counterintu- To overcome the consent defense, the itive, such as not screaming during the Erin S. Gaddy prosecutor must not only convince rape, failing to immediately report the Senior Attorney the jury that the rape victim is a “real” rape, or continuing to socialize with victim, he/she also must convince the the rapist.Work with the victim and jury that the defendant is a “real” any of her counselors or advocates to Kate M. Ryan rapist.To do so, the prosecutor must understand these behaviors. For exam- Staff Attorney prove to the jury that the behavior ple, if a victim delayed in reporting the attributed to the defendant was not rape to the police, ask her why. normal sexual behavior; rather, it was Remember that it is not uncommon rape.18 The prosecutor should begin by for victims to recognize that something (1) conducting an offender-focused horrible happened to them without investigation and prosecution. Next, labeling it as rape.16 Often, a victim may they will be more likely to understand the prosecutor should (2) introduce not acknowledge the traumatic experi- why she did not report a rape. prior bad acts whenever possible. ence as rape until after a discussion Finally, consider presenting expert tes- Finally, the prosecutor can (3) show with a friend, law enforcement officer timony to explain the victim’s counterin- the jury how the defendant became a or medical personnel. tuitive reactions.An experienced expert stranger to the victim.These strategies When explaining any counterintu- can explain behaviors a jury might other- are discussed ad seriatim. itive behavior to a jury, a prosecutor wise not understand.An expert need not must present the jury with enough be expensive. For example, a community- Conduct an Offender- evidence of the victim’s background to based victim advocate who has worked enable them to understand that her with many victims and can articulate the f ocused Investigation reaction, while counterintuitive to various behaviors victims commonly and Prosecution them, was absolutely natural to many engage in, including those that are coun- Utilizing an offender-focused investiga- rape victims. Consider the example of terintuitive, would be a competent tion and prosecution can show a jury a college student who was using expert who might not charge a large fee why the defendant before them is a 17 cocaine on the night she was raped for testifying. predator as opposed to a nice guy 3 caught through no fault of his own in a convince her to keep drinking when their rapists.24 As a result, it is common bad predicament.19 Although prosecutors she wanted to stop? for a victim of nonstranger rape to be generally focus on the offender when Another challenge that can be over- with the defendant voluntarily at the trying any other criminal case, they tend come with an offender-focused prose- time of the rape. Prior to the rape, the to focus on the victim and any of the cution is delayed reporting by the vic- defendant was not a stranger, so it was victim’s flaws or vulnerabilities in rape tim. Rather than viewing the delayed not unreasonable to trust him. Because cases. Rape cases must be tried in the report as vulnerability on the part of she trusted the defendant, the victim same way that other criminal cases are the victim, consider whether the did not recognize the danger until it tried–with a focus on the offender. defendant played a role in delaying the was too late. Prosecutors must show Instead of viewing a victim’s vulnerabili- report. Did the defendant do some- the jury why the victim initially trusted ties as weaknesses, show the jury why thing as part of his “exit strategy”22 to the defendant and how he was able to a predator would target a person with keep the victim quiet? Did he threaten trick her and take advantage of her those vulnerabilities. Generally, the her, either with force or blackmail (by trust.At what moment did the victim worse a victim initially appears to be as threatening to get her into trouble for recognize that she was in danger? Very a witness, the better a target the victim any bad decisions she made that he often, victims do not recognize the probably was for the predator who took advantage of)? Did he make her danger until it is too late because they raped her. For example, an offender question her own judgment by telling perceive the defendant to be safe. might select a victim voluntarily under her she had led him on, thereby caus- At trial, first have the victim explain the influence of drugs because the ing him to rape her? If so, explain the who the defendant appeared to be, and offender recognizes that drug users are delayed report in terms of the defen- then explain who he really was. going to be less credible in the criminal dant’s exit strategy and how it was Ask her to describe for the jury the justice system. Remind the jury that almost successful in keeping the victim moment she realized that she was in defendants select their victims with the quiet. In these kinds of situations, the danger and that he was going to rape intention of not getting caught. prosecutor could argue,“He tried to her.Ask her to describe any changes in Using an offender-focused approach shame her into silence.” his demeanor, speech or behavior.The to the investigation and prosecution of contrast will show the jurors that sex crimes can overcome a number of Look for Prior Bad Acts although the defendant did not initially common challenges in rape cases. For All too often, in nonstranger rape fit their stereotype of a “real” rapist, he example, a prosecutor may be able to cases, the investigation looks only at is, nevertheless, guilty. Show the jury explain how a defendant was able to the current case and does not look for that it was the defendant who tricked rape a victim without using a traditional prior rapes.When possible, ask police the victim into believing that he was weapon. Jurors generally expect that a officers to interview the defendant’s someone who would not hurt her. rapist will use a weapon, or at least use friends, prior girlfriends, and others Argue that the defendant became a some form of excessive force. who might know about prior acts. stranger to the victim when he raped However, in 2004, only 8% of rapes Although these people may have a rea- her. involved the use of a knife or other son to lie, they may also be willing to weapon.20 Nonstranger rapists generally assist. If the defendant has any prior CONCLUSION use only the force necessary to over- cases, review those cases, even if they Overcoming the consent defense is come the victim’s resistance. In many were dismissed. Further investigation extremely difficult, especially when the cases, this may equate to nothing more might be warranted. Do not only look jury believes in the myth of “real rape.” than lying on top of the victim and pin- for completed rapes; also look for evi- The two-pronged strategy provided in ning her arms down. Nonstranger dence that can be used to demon- this article will allow the prosecutor to rapists are also far more likely to gain strate the defendant’s pattern of behav- rebut the myth and show jurors that control of their victims through the use ior towards women. Prior bad acts the defendant is guilty of rape, regard- of deception, manipulation, planning, stopping short of actual rape may sup- less of whether the victim fits their premeditation, and betraying their trust. port the argument that he deceived stereotype of a “real” victim or the One of the most common tools used the victim, manipulated her, or planned defendant fits their stereotype of a 21 by nonstranger rapists is alcohol. Look and premeditated the rape.23 “real” rapist.As a result, the prosecu- for evidence of all of these tools. Did tor will be able to overcome the con- the defendant lie to the victim by Show the Jury How the sent defense and move the jury from promising her a safe ride home and searching for doubt to believing the Defendant Became a then driving her to a field where he victim. ■ raped her? Did he trick her by asking Stranger to the Victim to come inside her home to use the The myth of “real rape” portrays the bathroom? Did he buy her drinks, or rapist as a stranger to the victim. However, in reality, most victims know 4 FOOTNOTES 1 Ms. Scalzo is the director of APRI’s National Center for the Prosecution of Violence 13 National Research Council, Understanding Violence Against Women 77 (Nancy A. Against Women. Previously, she served as an assistant district attorney in Crowell & Ann W. Burgess eds., 1997). Northampton County, Pennsylvania, where she was the chief of the Sexual Assault Unit. The author would like to thank Erin Gaddy and Kate Moriarty Ryan of NCP- 14 See,Jennifer Long, Working with Experts to Explain Counterintuitive Behavior in Domestic VAW, Jenifer Markowitz, ND, of the DOVE Program of Akron, Ohio, Diane Moyer, Violence and Sexual Assault Cases,The Voice,Vol. 1, Issue 4 (APRI,Alexandria,VA); legal director of the Pennsylvania Coalition Against Rape, M. Elaine Nugent-Borakove, Explaining Counterintuitive Victim Behavior in Domestic Violence and Sexual Assault Cases, director of APRI’s Office of Research and Evaluation,Veronique Valliere, PsyD, and APRI (anticipated release date December 2006).To request a copy, please contact Paula Wulff, director of APRI’s DNA and Forensics Program for their insightful com- APRI’s National Center for the Prosecution of Violence Against Women at ments and suggestions. [email protected] or 703.549.4253.

2 In this article, the terms rape and sexual assault are used interchangeably. 15 16% of rape victims report being raped to the police.Approximately 25% of the rapes reported were reported over 24 hours after the assault. National Victims 3 The term “real rape” was originally defined by Susan Estrich as the stereotype of an Center & Crime Victims Research & Treatment Center, Rape in America:A Report assault committed by an armed stranger with a great deal of force. Susan Estrich, to the Nation (1992). Real Rape (1988). 16 The National College Women Sexual Victimization Survey showed that almost half 4 Note that a victim’s word need not be corroborated in a rape case before the of the women who were characterized as victims of a completed rape did not con- defendant can be convicted. sider themselves to be victims of rape. Michael Rand & Callie Rennison, U.S. Dep’t of Justice, Nat’l Inst. of Justice, How Much Violence Against Women is There? 8 5 A multidisciplinary SART should include prosecutors, police officers, victim advo- (NCJ 199701) (Bonnie S. Fisher ed., 2004). cates, and Sexual Assault Nurse/Forensic Examiners, among others.These allied pro- fessionals must be involved from the beginning of the case. 17 Do not use an advocate who has worked with the victim. Instead, consider calling an advocate from the state coalition or another local rape crisis center. 6 From 1992 to 2000, females accounted for 94% of the victims of all completed rapes, 91% of the victims of all attempted rapes, and 89% of the victims of all completed 18 Note that although the focus of the investigation and trial should be on the offend- and attempted sexual assaults. In single-offender rapes and sexual assaults, the per- er’s actions, the response to sexual assault must remain victim-centered. centage of male offenders is nearly 99%. Lawrence A. Greenfeld, U.S. Dep’t of Justice, Bureau of Justice Statistics, Sex Offenses and Offenders 4 (1997). For this reason, the 19 To ensure that the evidence enables them to conduct an offender-focused pronoun she is used when referring to a victim and the pronoun he is used to refer prosecution, prosecutors should train police to conduct offender-focused to the perpetrator; however, the principles discussed apply regardless of the sex of investigations in rape cases. the victim or the perpetrator. 20 Shannan M. Catalano, U.S. Dep’t of Justice, Bureau of Justice Statistics, 7 SANE programs have different names, including Sexual Assault Forensic Examiner Crime Victimization,2004 4 (2005). Program. For the purpose of this article, the abbreviation SANE is used. 21 In a study that assessed 1,882 men for acts of interpersonal violence, 120 of the 8 Prosecutors are encouraged to be proactive in filing motions to preclude informa- men self-reported acts that met the legal definitions of rape or attempted rape but tion barred by rape shield laws.A sample motion can be obtained from NCPVAW’s were not prosecuted by criminal justice authorities.“A majority of these men, Prosecution Toolkit at http://www.ndaa.org/phpdocs/prosecution_toolkit.html. 80.8%, reported committing rapes of women who were incapacitated because of drugs or alcohol; 17.5% reported using threats or overt force in attempted rapes; 9 The public setting, the presence of the offender and the difficulty of cross-examina- 9.2% reported using threats or overt force to coerce sexual intercourse and 10% tion may be very stressful and can return a victim to a state of crisis. Robert R. reported using threats or overt force to coerce oral sex.” David Lisak & Paul Hazelwood & Ann Wolbert Burgess, Practical Aspects of Rape Investigation: A Miller, Repeat Rape and Multiple Offending Among Undetected Rapists, 17 Violence Multidisciplinary Approach 39 (3rd ed. 2001). Looking at the perpetrator may remind and Victims, No. 1, 78 (2002). a sexual assault victim of the circumstances underlying the crime and may thereby produce psychological trauma. Richard P.Wiebe, The Mental Health Implications of 22 “Exit strategy” refers to the defendant’s plan for getting away with the crime. It Crime Victims’ Rights, in Law in a Therapeutic Key: Developments of Therapeutic includes steps he takes to keep the victim quiet and to destroy evidence, as well as Jurisprudence 216 (David B.Wexler & Bruce J.Winnick eds., 1996). anything else done to preclude getting caught.

10 If the prosecutor intends to introduce any statements through this witness, he or 23 “Evidence of other crimes, wrongs, or acts is not admissible to prove the character she should be prepared to overcome potential hearsay objections. of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, prepara- 11 From 1992–2000, approximately 67% of victims of completed rapes sustained no tion, plan, knowledge, identity, or absence of mistake or accident, provided that physical injury other than the rape itself, and only 5% sustained severe physical upon request by the accused, the prosecution in a criminal case shall provide rea- injuries. Callie Marie Rennison, U.S. Dep’t of Justice, Bureau of Justice Statistics, Rape sonable notice in advance of trial, or during trial if the court excuses pretrial notice and Sexual Assault: Reporting to the Police and Medical Attention, 1992–2000 on good cause shown, of the general nature of the evidence it intends to introduce (2002). at trial.” Fed. R. Evid. 404(b).

12 If the court will not accept the medical person who performed the exam as an 24 In 2004, 67% of rapes/sexual assaults against women were perpetrated by someone expert, bring in a separate medical expert to explain the victim’s injuries or lack known to the victim. Catalano, supra note 20. 90% of college women who are vic- thereof. tims of rape or attempted rape know their assailant. Bonnie S. Fisher & Francis T. Cullen & Michael G.Turner, U.S. Dep’t of Justice, Nat’l Inst. of Justice,The Sexual Victimization of College Women 17 (2000).

5 NCPVAW can provide additional resources to assist prosecutors in overcoming the consent defense, including the following:

• Sample voir dire questions • Tips for testifying • Sample direct examinations of victims and experts • Sample pretrial motions

Please check our online prosecution toolkit for a complete listing at http://www.ndaa.org/phpdocs/prosecution_toolkit.html or contact NCVPAW at [email protected] or call 703.549.4253.

Look for NCPVAW’s Sexual Assault Prosecution Trial Manual (expected release date December 2006). To r equest a copy, contact NCVPAW at [email protected] or call 703.549.4253.

THE voice is published by the American Prosecutors Research Institute’s National Center for the Prosecution of Violence Against Women.The American Prosecutors Research Institute is the research and development division of the National District Attorneys Association. Items may be reprinted if attributed to NDAA and 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.

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This article was supported by Grant No. 2004-WT-AX-K047,awarded by the Office on Violence Against Women, Office of Justice Programs, United States Department of Justice. This information is offered for educational purposes only and is not legal advice. The points of view, opinions, findings, conclusions, and recommendations expressed in this publication are those of the author and do not necessarily reflect the official position of the Office on Violence Against Women, the U.S. Department of Justice, or the National District Attorneys Association and the American Prosecutors Research Institute.