Will Pennsylvanie Become The Last State To Allow For The Admission Of Rape Trauma Syndrome Evidence?

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According to an article on the CBS21 news site, “[t]wo very important bills are sitting in committees right now.” One of those bills is House Bill 1264, which allows for the admission of expert testimony regarding rape trauma syndrome. Yes, that’s right. Pennsylvania courts are the last holdout against the admission of RTS evidence. According to Pennsylvania Coalition against Rape CEO Delila Rumburg, “I think it’s really mind-boggling that the expert witness testimony has not been moving because we are the only state in the nation that doesn’t recognize expert witness testimony.”

Why not? The key(stone) case is Commonwealth v. Gallagher, 547 A.2d 355 (Pa. 1988), which held that RTS evidence is inadmissible because “[d]eterminations of credibility…are exclusively the province of the jury.” So, what was the RTS evidence at issue? According to the court,

The crux of the testimony appears to be that the victim’s failure to identify the appellant two weeks after the rape is unremarkable, as she was in the acute phase of RTS in which a victim has difficulty performing even normal functions, and the in-court identification five years later is particularly credible, as it results from a flashback, with the mind operating like a computer.

The Pennsylvania Supremes held that “[i]t is clear that the only purpose of the expert testimony was to enhance the credibility of the victim.” And for the court, this made the evidence inadmissible because

The question of whether a particular witness is testifying in a truthful manner is one that must be answered in reliance upon inferences drawn from the ordinary experiences of life and common knowledge as to the natural tendencies of human nature, as well as upon observations of the demeanor and character of the witness…. [T]he question of a witness’ credibility has routinely been reserved exclusively for the jury.

But here’s the problem with this quote: A rape is not an ordinary life experience. In fact, it is probably about as far from ordinary as you can get. And that’s exactly the point of RTS evidence. It is to inform jurors, many of whom have not been raped (or have not come to terms with being raped) that they can’t apply inferences from the ordinary experiences of human life and reach an accurate understanding of how rape victims act. All of this is contained in the General Assembly’s findings connect to House Bill 1264 (reprinted below), and we can only hope that the Pennsylvania legislature relies upon these findings rather than “common knowledge as to the natural tendencies of human nature”:

The General Assembly finds and declares as follows:

(1) Research indicates that victims of sex crimes behave in many different ways, but because of the prevalence and persistence of myths and misunderstandings regarding sex crimes, jurors often perceive common victim behaviors as counterintuitive and mistakenly believe that they are compelling evidence of a victim’s lack of credibility.

(2) One of the misconceptions of jurors is that a sexual assault victim would ordinarily be expected to make a prompt complaint to law enforcement authorities. As such, jurors often incorrectly draw an adverse inference against the credibility of a sexual assault victim.

(3) Jurors bring their biases into the jury room and the process of jury selection often fails to reveal jurors’ mistaken beliefs about crimes of sexual violence and victim responses to sex crimes.

(4) To overcome these myths and misunderstandings related to victim behavior, many courts have recognized that expert testimony is necessary to provide jurors with the proper context in which to evaluate a victim’s behaviors.

(5) Counselors, psychiatrists, psychologists, victim advocates, social workers and others who work with sexual assault victims possess specialized knowledge about common victim behaviors and victim responses to trauma and that expertise is beyond the experience and knowledge of the average juror.

(6) Without an accurate context in which to evaluate victim behaviors, it is common for jurors to fail to recognize a victim’s behavior as a common response to trauma.

-Colin Miller

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