06/22/07 (PA):
Rape Expert Debate: Part 1. PA Law To Change?
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Most states in the U.S already allow expert evidence to be given regarding rape victim behavior. Pennsylvania is the only state where such moves have been resisted by the judiciary and legislators. However, following a recent case, there is a groundswell of opinion that may well bring PA into line with the rest of the country.
After the case was concluded the accuser gave some interviews to the press which make for interesting reading. She said that being on the witness stand was every bit as traumatic as she'd feared it would be.
"I was really nervous," said the 30-year-old pharmaceutical rep, who testified about being drugged and raped by the defendant, Mr X.
"My palms were sweating, my heart was beating and it was hard to even get words out. I almost felt like I was hyperventilating."
But - with the exception of one woman who seemed visibly hostile - most of the jurors smiled and gestured in support.
"I felt like the jury was compassionate and they were going to do the right thing," she said.
When she found out otherwise - last week, the jury acquitted the defendant of all charges in her case, and most of the others, she was devastated - and puzzled.
Why didn't the prosecutor, who was otherwise so thorough and diligent, present an expert witness to explain what seemed to be illogical behavior on the part of herself and the other six women?
Why didn't they use a witness to explain why they - like most date-rape victims - didn't call the police? Didn't go to the hospital? And had contact with Mr X afterwards?
"I remember reading the testimony and thinking, 'Oh, my God, what that jury must be thinking. They're not going to understand that.'
"I figured they'd have a psychologist or psychiatrist there," said the victim.
Apparently, Prosecutor Joseph Khan would, indeed, have used an expert witness - if he could have. Now there are moves to change the law.
Diane Moyer, legal director of the Pennsylvania Coalition Against Rape, said she's begun the effort to overturn the anachronistic rule that allows rape myths to persist.
"To think that after 30 years of rape law reform, we still have to talk about the misconceptions about how rape victims react," she said.
And that defense attorneys are still using those myths to discredit the credibility of witnesses - as Mr X's lawyer did, so effectively, in this case.
The state Supreme Court's ban on expert testimony, issued in several rulings over recent decades, presupposes that rape-victim behavior is not beyond the understanding of the average lay person.
"You ask jurors to bring their life experience to the job and knowledge of human nature," said assistant D.A. Chris Mallios, former chief of the sexual assault unit.
"But if they don't know someone who's been raped, they don't have their own life experience to apply it to."
They may try to apply the reaction of victims of other types of crimes, he said, but "there is no crime that affects the victim the same way sexual assault does."
Mallios, who's now assistant chief of the legislative unit, said presenting expert witnesses to explain victim behavior is not without its peril.
"It's a little bit of a double-edged sword. If we can introduce this kind of evidence, a defense attorney can get an expert to say a victim isn't suffering from rape-trauma syndrome."
But when victims act in ways that make jurors skeptical, many think that it's important to put that behavior in context, despite the potential for conflicting testimony.
The Supreme Court rule can be overturned either by state legislation or by appealing a new case that elicits a change of opinion.
Moyer said several legislators "mentioned it to me as an issue for me to pursue."
© X-Pro 2007
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