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Rape Trauma Syndrome in the Military Courts

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Rape Trauma Syndrome in the Military Courts Rape Trauma Syndrome in the Military Courts Stephen A. Young, MD 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. This article reviews the military court's approach to rape trauma testimony over the past 15 years. The author notes that military courts have been accepting of this testimony within certain well defined limits. The author analyzes the approach to testimony at one military medical center and offers a testimony model for the forensic psychiatrist who testifies in a military setting. Background icant percentage of women on active duty Women in the Military The military (Table 1). has increasingly become a two-gender or- The growing number of women in the ganization over the past 20 years, with active duty force has created a number of greater and more varied opportunities for logistical and social changes. The mili- female soldiers. From 1980 to 1990 the tary, like any other large organization, has percentage of women in the Army in- had to deal with the many issues that arise creased from 6.6 to 11.2 percent of the when men and women are working force.' At the end of October 1994, they closely together. Sexual relationships and comprised 12.9 percent of active duty roles have been a source of complex dif- Army soldiers.* More than 26,000 ficulties for the military law enforcement women were deployed to Southwest Asia and legal e~tablishrnent.~.~Recent U.S. during Operation Desert Storm (8.6% of Court of Appeals for the Armed Forces all deployed Army forces), and of these 4 (USCAAF) opinions576have addressed were killed in action, 21 wounded in ac- issues of sexuality to include rape trauma tion, and 2 were taken prisoner.' The syndrome (RTS)~and date rape.' In a other military services also show a signif- dissenting opinion in a decision involving the importance of rehearing a case that involved an acquaintance rape (US v. Dr. Young was formerly affiliated with Walter Reed Pierce), the court noted particular con- Army Medical Center, Washington, DC. Address corre- spondence to: Stephen A. Young, MD, Psychiatric As- cern about the necessity of force to prove sociates, 235 Carrnel Dr., Ft. Walton Beach, FL 32548. a rape and stated: Bull Am Acad Psychiatry Law, Vol. 23, No. 4, 1995 563 Young Table 1 consent required, however, is more than mere Women Serving in the Armed Forces, by lack of acquiescence. If a woman in possession Servicea of her mental and physical faculties fails to make her lack of consent reasonably manifest Branch of Service Actual Number % of Force by taking such measures of resistance as are Army 69,284 12.9 called for by the circumstances, the inference Air Force 65,755 15.6 may be drawn that she did consent. Consent, Navy 52,317 11.3 however, may not be inferred if resistance Marine Corps 3,671 4.4 would have been futile, where resistance is aData provided by the Defense Manpower Data overcome by threats of death or great bodily Center, Monterey, CA.2 harm, or where the female is unable to resist because of the lack of mental or physical fac- ulties.' In the absence of executive or legislative clar- Rape in the Military In 1992 the ification, the burden historically falls to the Orange County (California) Register ob- judiciary to confront important legal issues. .in a manner which provides clear and meaningful tained data on rapes in the U.S. Army via guidance. Viewed in this light, the facts of the Freedom of Information Act. Num- every military rape case, particularly "acquain- bers widely reported at the time9 stated tance rape" cases, whose central issue is suffi- that women serving in the military were ciency of the evidence, become exceptionally important. They help define the permissible 50 percent more likely to be raped than a limits of relationships between male and female civilian (e.g., the military rate of reported soldiers. rapes was l29/lOO,OOO compared with This article addresses the issue of RTS in 8 111 00,000 for civilian women). Unpub- the context of a military in which female lished data collected from the Clerk of the soldiers are now commonplace and in Court, U.S. Army Judiciary, reveal that which the judiciary is examining the ad- the number of rape charges brought for equacy of statutes concerning sexual be- adjudication in fiscal years 1992, 1993, havior among soldiers. and 1994 were 120, 1 16, and 99, respec- Statutes and Rules Regarding Rape tively. The conviction rate for all three Article 120 of the Uniform Code of Mil- years was around 40 percent. Notably, the itary Justice (UCMJ) defines rape as fol- percentage of victims who were active- lows: duty female soldiers was nearly 37 per- (a) Any person subject to this chapter who cent. commits an act of sexual intercourse, by force and without consent, is guilty of rape and shall be punished by death or such other punishment Rape Trauma Syndrome as a court-martial may direct.' RTS has been defined as "a type of The Manual for Courts-Martial de- posttraumatic stress disorder (PTSD) or scribes the role of physical force and the reaction that concerns typical reactions a issue of lack of consent in some detail, rape victim could exhibit due to the trau- stating that: matizing impact of rape."I0 First de- scribed in 1974 by Burgess and Holm- (c)(l)(b) . Force and lack of consent are nec- essary to the offense. Thus, if the female con- strom," RTS consists of "behavioral, sents to the act, it is not rape. The lack of somatic, and psychological reactions to 564 Bull Am Acad Psychiatry Law, Vol. 23, No. 4, 1995 Rape Trauma Syndrome in Military Courts the attack."12 The syndrome is generally when discussing the usefulness of RTS described as a series of phases, beginning testimony in the courtroom. with an acute response to the trauma fol- The research has continued to develop lowed by stage(s) leading to eventual re- over the last 20 years. Research is diffi- covery and integration. Victims are de- cult in part because, although the original scribed as initially experiencing a period description implies an illness character- of disorganization, characterized by so- ized by phases, much of the research has matic complaints (muscle tension, head- equated RTS to PTSD. This is a difficult aches) and fear." Burgess and Holm- comparison, because PTSD is not gener- strom later published data that also ally described in a phase model, but described sleep pattern disturbances (ini- rather the diagnosis is made by the pres- tial and middle insomnia), eating pattern ence or absence of a complex of symp- disturbances (decreased appetite), and so- toms. matic symptoms focused on the area of In addition, other studies have focused the body that was attacked.13 This initial on other important symptoms that may be phase can last from a few days to weeks. missing from both models, such as the The reorganization phase generally oc- impact of marital status15 or specific vic- curs over the next several months to years tim vulnerability factors.16 Studies have and is characterized by victims frequently been consistent with the concept of a spe- moving away from home, nightmares, cific set of symptoms in the aftermath of various phobias (particularly of things assaults in general17 and specifically after reminiscent of the rape. e.g., being in- a rape.I6 Other studies have shown that doors and especially being alone), and these symptoms appear independent of sexual difficulties. The nightmares can be premorbid psychiatric diagnoses. 16. l9 of both the attack itself and less specific More recent studies have supported the dreams in which the victim is being idea that the most significant factor in the chased by an unspecified assailant or is in development of PTSD symptoms after a a situation where she feels unable to act in crime is the trauma itselfI6 and that PTSD the face of a threat. Rogers has described symptoms are highly prevalent in rape this quality (e.g., the varied nature of the victims.20 Frazier and ~orgida,~'in their dreams of trauma victims) as one way to review on this subject, succinctly state: distinguish between true PTSD sufferers "It seems most appropriate, however, to and malingerers.I4 Sexual difficulties base assessments on scientific reliability consist of fears of sexual activity itself, or on the entire, evolving body of research feelings of isolation and anger in the vic- on rape." tim's ongoing significant relationships. One-half of the women described in the Rape Trauma Syndrome in original article demonstrated a "con- the Courts trolled" reaction to the rape, characterized RTS testimony is primarily used to es- by a "calm, composed, or subdued af- tablish the lack of consent to a sexual act. fect."' These descriptors become critical The use of this testimony sprang from a Bull Am Acad Psychiatry Law, Vol. 23, No. 4, 1995 565 Young number of concerns about rape trials that to the presentation of expert testimony. traditionally required "corroboration of The U.S. Supreme Court, in the recent the charge, utmost resistance by the vic- landmark decision Daubert v. Merrell tim, a prompt complaint, cautionary jury Dow ~harrnaceuticals,~~supported this instructions, and a 'chaste' victim."22 The relevancy or helpfulness standard in lieu central issue that surrounds RTS testi- of the Frye test. mony in the courts is admissibility.
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