Can Victims of Sexual Trauma Get Justice in the Criminal Justice System? Can the Suspect?

Procedural rules and rules of evidence are the means by which the court is helped to stay focused on its primary concern: justice for the victim/society and a fair trial for the accused.

The goal of the prosecutor and the defense attorney is to collect enough evidence to present to the court that the prosecutor will apply to prove the suspect committed the crime and the defense lawyer will apply to prove that he or she did not.

It is possible that we have seen enough court-room dramas to understand that evidence collected illegally cannot be considered by the court when determining guilt or innocence. For example:

• the search was conducted before a search warrant was obtained
• the confession was elicited by torture or otherwise illegal means
• the suspect was questioned without being informed of his or her right to legal representation
• documents or other physical evidence were tampered with
• witnesses were threatened or promised rewards for their testimony

What may seem to the lay person to be evidence may not be evidence at all.

When I first began giving expert testimony in rape and sex abuse trials, I was shocked at the way things played out in court. Justice seemed the thing least on people's minds. Winning was apparently the most important aspect of the trial.

To my senses, unfamiliar with the legal world, it seemed more like a game of chess than a search for truth.

What bothered me most was that it seemed everyone in the room knew that the accused had raped the complainant. So the question was not if he had done it, but rather how to prove he had done it.

At that time I naively thought that just knowing it was true was enough. But, just like beauty, truth is sometimes in the eyes of the beholder.

The problem in getting a conviction is not necessarily because of lack of evidence but because of lack of motivation on the part of lawmakers to collect that evidence. Sometimes it is laziness, sometimes it is inability to conceive that the accused person could actually be a sex offender. Sometimes it is because they do not like something about the complainant. When this happens, it is a miscarriage of justice.

Sex crimes are not really about sex but about power and control. Therefore, the motive behind the commission of a sexual assault, molestation, harassment or ongoing abuse are connected to the need to feel strong, and perhaps even omnipotent, more than the need for sexual release.

Similarly, if the defense claims that the complainant is lying, there needs to be a motive for the false accusation. Divorcing spouses may accuse the former spouse of sexually abusing the child; in some cases there may be a motive of cutting the ex-spouse off from the child in order to have full control over the child's life and upbringing. Or, because the ex-spouse really is or was abusing the child! In order to determine it is a false accusation, the need for control and power on the part of the complaining parent needs to be shown to occur in other areas of life as well.

An angry employee may falsely accuse a boss of having sexually harassed him or her. The costs of making a false accusation must be compared with the benefits, as well as with the costs of not making any accusation at all. It needs to make sense.

False accusations do occur. Someone may claim that a sexual offense happened and it did not; someone may claim that one person committed the offense when it was really somebody else. Therefore, the court needs to consider the veracity of the alleged crime. Not only must the physical and circumstantial evidence support the theory of false accusation, but it also must fit the psychological and behavioral make-up of the accuser.

Evidence that is admissible in court must be relevant to the case before the court. Sexual history of an alleged rape victim has been determined not relevant to whether or not she agreed to have sex at the time in question. On the other hand, previous sex offenses by the accused may or or many not be relevant depending on the particular details of the case. The judge would decide on relevance.

Physical evidence, such as a weapon, semen, DNA, torn clothing, bruises, etc would be admissible in court. Some of these facts may prove that the accused was present and possibly even had sex with the complainant, but not necessarily that he or she raped him or her; facts may prove that a rape occurred but not necessarily by the suspect.

Witnesses to the crime would be admissible evidence if they are deemed to be telling the truth and under no inducement to lie or fabricate any part of their testimony.

The statements provided by the complainant and the accused during their forensic investigations would also be offered as evidence. Here consistencies and inconsistencies in their statements would be examined and possible hints to other explanations for what happened.

Survivors of sexual abuse, assault, harassment and rape deserve justice. They do not get justice if the wrong person is found guilty and his or her life and family are destroyed.

Many who were later found truly 'not guilty' or for whom the charges were dismissed before trial, cannot wipe themselves clean of the stain of the allegation. Forever more, people will wonder, "Did he or she really do it?"

In Israel, we do not have juries, but a panel of three judges sit on criminal cases. I have found that most of the players in the real court-room dramas are sincere and doing the best they can.

Prosecutors try to put away the bad guys and the defense lawyers do what they were hired to do - get the accused off or with the lightest possible sentence. Defense lawyers are not defendants of justice but of accused men and women, some of whom are truly guilty. As such, when I have been approached by defense lawyers asking if I would serve as an expert witness, most do not call me back when I tell them that I will only testify to what I see and I will not bend the truth of what I see even a smidgen.

When I have been brought into court as expert witness, I have found that the judges do want to understand the psychological elements at play and they weigh what I say up against traditional legal evidential rules. Given my clinical experience with survivors of sexual trauma, perpetrators, and their families, I have been able to point out to the court aspects of survivor and perpetrator behaviors to which they would not have paid any attention.

Lawyers and judges are people with their own individual histories, biases and beliefs. I wonder how many of them have, themselves, or someone close to them, experienced sexual trauma. I wonder how their own experiences with sexual trauma affects their decision making processes in court.

It is true that lawyers, whether for the defense or the prosecution, will work harder for people they like and may even be lazy when they do not like the individual on whose behalf they are supposed to be working.

I have seen judges find a defendant not guilty, and a head prosecutor not take a case to trial, just because they were not yet able to conceive that, on the one hand, a father could sexually abuse his son and, on the other hand, a mother could sexually abuse her children.

These happened many years ago and the courts today are more prepared to handle such cases. Just as they are more able to run calm and thoughtful trials of sexual harassment in the workplace (even involving famous suspects), cases of wife rape and acquaintance rape - issues that were not well handled in the past.

In Criminal Courts of Justice, justice does seem, sometimes, to be merely a coincidental outcome of trials rather than the goal. However, the rules of evidence and procedure are in place to make it more likely that this happy coincidence happens somewhat more than by a random flip of a coin.