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Court Discusses Ability to Consent

The complainant, a 19-year-old woman, reported to the town police that she had been raped and sodomized at gunpoint on a deserted beach near her home. The complainant testified that at about nine that evening she had received a phone call from a friend, telling her that he was in trouble and asking her to meet him at a nearby market in half an hour. Twenty minutes later, the same person called back and changed the meeting place. The complainant arrived at the agreed-upon place, shut off the car engine and waited. A New York DWI Lawyer said she saw a man approach her car and she unlocked the door to let him in. Only then did she realize that the person who had approached and entered the car was not the friend she had come to meet. According to the complainant, he pointed a gun at her, directed her to the nearby beach, and once they were there, raped and sodomized her.

The complainant arrived home around 11:00 P.M., woke her mother and told her about the attack. Her mother then called the police. Sometime between 11:30 P.M. and midnight, the police arrived at the complainant’s house. At that time, the complainant told the police she did not know who her attacker was. She was taken to the police station where she described the events leading up to the attack and again repeated that she did not know who her attacker was. At the conclusion of the interview, the complainant was asked to step into a private room to remove the clothes that she had been wearing at the time of the attack so that they could be examined for forensic evidence. While she was alone with her mother, the complainant told her that her male friend had been her attacker. The time was approximately 1:15 A.M. The complainant had known her friend for years, and she later testified that she happened to see him the night before the attack at a local convenience store.

Her mother summoned one of the detectives and the complainant repeated that the accused friend had been the person who attacked her. The complainant said that she was sure that it had been her friend because she had had ample opportunity to see his face during the incident. The complainant subsequently identified her friend as her attacker in two separate lineups. A New York DWI Lawyer said he was arrested and was indicted by the Grand Jury on one count of rape in the first degree, two counts of sodomy in the first degree and one count of sexual abuse in the first degree.

The woman’s accused friend’s first trial ended without the jury being able to reach a verdict. At his second trial, the Judge permitted an instructor at the City University with experience in counseling sexual assault victims, to testify about rape trauma syndrome. The prosecutor introduced the testimony for two separate purposes. First, the instructor’s testimony on the specifics of rape trauma syndrome explained why the complainant woman might have been unwilling during the first few hours after the attack to name the accused friend as her attacker when she had known her friend prior to the incident. Second, the instructor’s testimony that it was common for a rape victim to appear quiet and controlled following an attack, responded to evidence that the complainant woman had appeared calm after the attack and tended to rebut the inference that because she was not excited and upset after the attack, it had not been a rape. At the close of the second trial, the accused friend was convicted of two counts of sodomy in the first degree and one count of attempted rape in the first degree and was sentenced to an indeterminate term of 7 to 21 years on the two sodomy convictions and 5 to 15 years on the attempted rape conviction.

On July 7, 1986, the accused friend approached an 11-year-old complainant, who was playing with her friends in the City of Rochester. A Nassau County DWI Lawyer said the complainant child testified that the accused friend told her to come to him and when she did not, he grabbed her by the arm and pulled her down the street.

According to the complainant child, the accused friend took her into a neighborhood garage where he sexually assaulted her. The complainant returned to her grandmother’s house, where she was living at the time. The next morning, she told her grandmother about the incident and the police were contacted. The accused friend was arrested and charged with three counts involving forcible compulsion–rape in the first degree, sodomy in the first degree and sexual abuse in the first degree–and four counts that were based solely on the age of the victim–rape in the second degree, sodomy in the second degree, sexual abuse in the second degree and endangering the welfare of a child.

At trial, the complainant child testified that the accused had raped and sodomized her. In addition, she and her grandmother both testified about the complainant child’s behavior following the attack. Their testimony revealed that the complainant child had been suffering from nightmares, had been waking up in the middle of the night in a cold sweat, had been afraid to return to school in the fall, had become generally more fearful and had been running and staying away from home. Following the introduction of this evidence, the prosecution sought to introduce expert testimony about the symptoms associated with rape trauma syndrome.

Clearly, the prosecution, in an effort to establish that forcible sexual contact had in fact occurred, wanted to introduce this evidence to show that the complainant child was demonstrating behavior that was consistent with patterns of response exhibited by rape victims. The prosecutor does not appear to have introduced this evidence to counter the inference that the complainant child consented to the incident, since the 11-year-old complainant is legally incapable of consent. The evidence was not offered to explain behavior exhibited by the victim that the jury might not understand; instead, it was offered to show that the behavior that the complainant child had exhibited after the incident was consistent with a set of symptoms commonly associated with women who had been forcibly attacked. The clear implication of such testimony would be that because the complainant child exhibited the symptoms, it was more likely than not that she had been forcibly raped.

The Judge permitted an obstetrician-gynecologist on the faculty of the University of Rochester who has special training in treating victims of sexual assault, to testify as to the symptoms commonly associated with rape trauma syndrome. After the expert had described rape trauma syndrome, he testified hypothetically that the kind of symptoms demonstrated by the complainant child were consistent with a diagnosis of rape trauma syndrome. At the close of the trial, the accused was acquitted of all forcible counts and was convicted on the four statutory counts. He was sentenced to indeterminate terms of 3 1/2 to 7 years on the rape and sodomy convictions and to definite one-year terms on the convictions of sexual abuse in the second degree and endangering the welfare of a child.

As noted, the complaining woman had initially told the police that she could not identify her attacker. Approximately two hours after she first told her mother that she had been raped and sodomized, she told her mother that she knew her friend had done it. The complainant woman had known her accused friend for years and had seen him the night before the assault. Under the circumstances present, expert testimony explaining that a rape victim who knows her attacker is more fearful of disclosing his name to the police and is in fact less likely to report the rape at all was relevant to explain why the complainant woman may have been initially unwilling to report that the accused had been the person who attacked her. Behavior is not within the ordinary understanding of the jury and testimony explaining the behavior assists the jury in determining what effect to give to the complainant’s initial failure to identify the accused. The evidence provides a possible explanation for the complainant’s behavior that is consistent with her claim that she was raped. As such, it is relevant.

Rape trauma syndrome evidence was also introduced in response to evidence that revealed the complainant child had not seemed upset following the attack. The reaction of a rape victim in the hours following her attack is not something within the common understanding of the average lay juror. Indeed, the defense would clearly want the jury to infer that because the victim was not upset following the attack, she must not have been raped. The inference runs contrary to the studies cited earlier, which suggest that half of all women who have been forcibly raped are controlled and subdued following the attack. Thus, the evidence is relevant to dispel misconceptions that the jurors might possess regarding the ordinary responses of rape victims in the first hours after their attack. The evidence of rape trauma syndrome, when admitted for purpose, is unduly prejudicial.

Women and children are often the victims of sex related crimes. Instead of protecting them and making sure that they are safe, they are being the center of abuse. If you feel unsafe and taken advantaged off, consult a NY Sex Crime Lawyer together with the New York Criminal Attorney from Stephen Bilkis and Associates.

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