DEMYSTIFYING VICTIM COUNTERINTUITIVE BEHAVIOR IN ADMINISTRATIVE HEARINGS “The great enemy of the truth is very often not the lie-deliberate, contrived and dishonest-but the myth-persistent, persuasive and unrealistic.” (JFK)

The Myths Most perpetrators are strangers “Real” victims report promptly “Real” victims scream or forcibly resist “Real” victims act like victims If an alleged victim recants, that means he/she was lying

Counterintuitive Behaviors Defined Behaviors that conflict with the public’s expectations of how victims “should” behave Represent common victim responses If left unexplained, may undermine the victim’s credibility in the eyes of the factfinder

Expert Testimony to Explain Counterintuitive Behavior “[T]he victim’s behavior will not necessarily undermine his or her credibility if an expert can explain that such patterns of counterintuitive behavior often occur in sexual abuse cases.” -U.S. v. Rynning, United States Court of Appeals for the Armed Forces 1998

Purpose of Expert Testimony Provide an accurate context in which the factfinder can evaluate the victim’s behavior by: Dispelling myths and misperceptions Explaining common victim responses Purpose is not to prove that abuse occurred

Effects of Expert Testimony Mock jurors have provided more guilty verdicts when experts testified about the general dynamics of sexual assault and its effects on victims Expert testimony focused on behaviors relevant to the case more influential than general information Expert testimony more impactful when provided early in trial

Step 1 Identify the Behavior

Identify the Behavior Review all the evidence for descriptions of victim behavior that may appear counterintuitive to the factfinder Consider consulting an expert to help identify counterintuitive behaviors and develop a strategy Talk to the victim Determine if expert testimony is the most effective method of explaining the victim’s behavior

Determine Admissibility of Expert Testimony Step 2 Determine Admissibility of Expert Testimony

Admissibility Expert testimony must (1) come from a qualified expert, (2) be reliable, (3) aid the factfinders in evaluating and understanding matters not within their common experience, and (4) have probative value that outweighs its prejudicial value All 50 states allow expert testimony to explain victim behavior in sexual assault cases Rules are typically relaxed in administrative proceedings

Limitations Some jurisdictions limit only to rebutting those behaviors raised by defense; others do not require defendant to attack victim’s credibility before allowing expert testimony Expert must not state an opinion regarding the credibility of any witness, including the victim, or whether the victim was abused Some jurisdictions limit or exclude testimony concerning RTS, PTSD and/or CSAAS

Step 3 Explain the Behavior

Choose the Most Effective Expert Psychiatrists/psychologists/psychological counselors Social Workers Victim Advocates Rape Crisis Center Counselors Sexual Assault Nurses Law Enforcement Officials Avoid someone who has treated the victim

Qualify the Expert Must be qualified by knowledge, skill, experience, training or education Most effective qualification is extensive experience working with or observing victims Do not offer as an expert in “counterintuitive behavior” Examples of areas in which an expert may be qualified: “common sexual violence myths”; “common victim responses to sexual violence ”; “common victim behaviors in sexual violence cases”; “common victim and offender dynamics”

General vs. Specific Testimony Expert focuses on dynamics of sexual violence and common victim behaviors that are relevant to the case Based on research and/or professional experiences with victims Expert does not interview the victim or discuss the victim’s specific behaviors Objective/fact-based Less vulnerable to attack Expert relates victim’s specific behaviors to typical behavioral patterns (i.e., victim’s behavior is consistent with that of other victims) Behavior may be described in terms of a syndrome such as RTS, PTSD or CSAAS (i.e., victim suffers from a syndrome or exhibits behavior consistent with someone who suffers from a syndrome) Exposes victim to examination by defense expert Subjective/easily countered by defense expert Pathologizes victim (“See, she is crazy!”) More vulnerable to attack

Other Strategies Have victim explain behavior Demeanor testimony Prior consistent statements Expert testimony concerning grooming

Resources “Introducing Expert Testimony to Explain Victim Behavior in Sexual and Domestic Violence Prosecutions” Jennifer G. Long, National District Attorneys Association (2007) http://www.ndaa.org/pdf/pub_introducing_expert_testimony.pdf “Victim Responses to Sexual Assault: Counterintuitive or Simply Adaptive?” Patricia L. Fanflik, NDAA (2007) http://www.ndaa.org/pdf/pub_victim_responses_sexual_assault.pdf

Resources “The Use of Expert Witnesses in Cases Involving Sexual Assault” Kimberly A. Lonsway, Ph.D. (2005) http://www.ncdsv.org/images/useexpertwitnessessexassaultcases.pdf “She Didn’t Scream, So She Must Have Wanted It: Explaining Counterintuitive Victim Behavior” A. Ann Ratnayake-The Voice, Volume 4, Number 2, July 2016 http://www.ndaa.org/ncpvaw_the_voice_newsletter.html