Social Science Evidence Part 3: Even more room for putting your foot in your mouth and sounding like a misogynistic racist
Reading over my last post I feel like it came off sounding a bit too 1950’s. This is partly because of the material and the time in which it was developed and partly because I was trying to inject minor amounts of my own emotions and humor into the materials. BWS was developed in a time when it was extremely difficult for a woman, even a repeatedly abused woman with good undisputable documentation, to argue that it was self-defense when she gave both barrels to her husband when her husband was coming at her with a knife. Prosecutors would point to the fact that she stayed with her husband after he broke her leg, that she refused to testify against him, that she came back to her husband after running away to her mother as evidence that she was not in imminent danger of harm. They would point to the medical records and say, “Look he beat the shit out of you all the time but he never killed you so there was no way you can say you were in fear for your life.” This is completely outrageous and everyone should be super angry about it. The acknowledgement of the trapping of the abused spouse in the relationship has done leagues for all areas of law – criminal defense & prosecution, housing, protection orders, divorce, parenting plans/custody. Everyone should be grateful for the effort put into the field.
Now, let’s get onto some new material that has even more room for accidentally coming off like a total ass!
Rape Trauma Syndrome – PTSD By Any Other Name
Rape Trauma Syndrome (RTS) exists for mostly the same reasons as BWS – explaining the non-intuitive behavior of rape victims. Much like how BWS explains the unique psychology of an abused partner, RTS explains the somewhat unique psychology of a rape victim. Developed in the mid 70’s, RTS is now better defined as Post Traumatic Stress Disorder as acted out by rape victims. I will still call it RTS because we are dealing with PTSD as acted out and felt by a certain subset of people, not all PTSD.
RTS is simpler than BWS because there are only two phases. The “acute” phase and the “long-term reorganization” phase. The acute phase can occur in two ways – the “expressed style” and the “controlled style.” In the expressed style, the victim openly manifests all the symptoms all the time. In the controlled style, the victim attempts to hide their symptoms behind a calm and composed exterior. Also in the controlled style, emotions may be overly subdued or deadened! Fun! No matter which style the acute phase is characterized by fear, anger and anxiety, physical trauma, severe muscle tension, GI distress, and “genitourinary disturbance” a fancy phrase for your bladder and genitals not working like they normally do. You pee yourself, you can’t pee, you can’t get erections/aroused, you get pain with no physical cause – that kind of thing.
The reorganization phase is when the victim tries to recover and reestablish their normal life. Victims will move, change phone numbers, and get in closer contact with family. They will also have crippling nightmares, and phobias related to rape – fear of being along, fear of having people behind you, and fear of sexual intimacy.
I’ll just toss out that dudes have the same symptoms when they are raped.
The studies which originally came up with RTS were awful – unrepresentative, and poor methodology. However, a bunch of follow up studies confirmed many of the big aspects and PTSD is unassailable scientifically. Areas of RTS that overlap with PTSD (pretty much all of them) are totally confirmed, those that do not are probably made up. The biggest issue is that some experts were testifying that a person was raped no matter how they behaved. Being happy was evidence, being sad was evidence, being hyperactive was evidence, being sedate was evidence. If they changed their habits they were raped, if they kept everything the same they were raped. Luckily, modern PTSD scholarship has dispelled many of the shadows lurking over RTS as well as putting tighter limits on who is qualified to testify about rape victim’s behavior and symptoms.
The biggest question is, “What do you do with this knowledge?” Use it in court of course! But HOW!? Well, here’s a hot tip about any kind of evidence: lawyers will try to use it for every single remotely relevant application. RTS evidence is used to prove that a rape occurred, to prove that a rape didn’t occur, to explain post-attack victim behavior, to prove that a sex act was consensual, and to prove a sex act wasn’t consensual. That’s right, lawyers wanted to use it for everything to do with criminal charges of rape!
Evidence For the Prosecution – There was a Rape, There was no Consent, The Victim’s Behavior is Understandable in Light of RTS
There Was a RAPE (or no consent)!
The logic goes like this. Victims suffer from RTS after they are raped. A person suffers from RTS. Therefore, that person was raped. This is reasonable logic as long as RTS is unique enough to result in specialized diagnoses. Everyone who was RTS was raped, and no one developed RTS from consensual sex. I genuinely do not know if these things are true. PTSD research is not done to further criminal prosecutions but to treat people whose lives have been turned upside down. Psychiatrists are, frankly, ill equipped to claim such a strong relationship. Their job is to help people through the allaying of their symptoms, not to determine the truth or falsity of some outside event. Some courts are down with using RTS for this purpose, some are not. Illinois, which is extremely liberal in its criminal procedure, is down with RTS proving a rape occurred. A lot of other states are not. Many states put a lot of limitations on this kind of evidence: it can’t be used to comment on the credibility of the victim, or use the phrase “rape trauma syndrome” or make ANY reference to the accused to name a few examples. It’s not a counselor’s job to interrogate patients or prove the veracity of underlying trauma and courts have generally recognized this.
The Victim’s Behavior is NOT contrary to a rape victim!
This kind of evidence is generally universally admissible. Defendants will often attempt to allege that a victim’s behavior is inconsistent with a claim of rape. See: The Kobe Bryant Trial (where he almost definitely raped that girl). There are a LOT of attitudes out there about how a rape victim should act. Rape victims should fight back, immediately call 911, try to escape at every opportunity and FREAK THE FUCK OUT afterwards. In addition, rape victims should shun their rapists forever and ever no matter the necessity or special relationship the victim and rapist had prior to the rape. WRONG ASSHOLES! DON’T TALK ABOUT SHIT YOU KNOW NOTHING ABOUT! Victims of rape are often passive during the attack, during “breaks” between immediate attacks, and after the attack itself. Almost all victims have a substantial delay in reporting their attack. Many victims try to keep it together after an attack, appearing calm and collected even after a brutal attack. Finally, if the rapist is your doctor and you need more treatment you are probably going back to the doctor even though he raped you! Crazy that someone will suffer the humiliation and distress of confronting their rapist when more suffering will result if they do not!
Evidence for the Defense
Defendant’s occasionally attempt to offer RTS evidence to show that a victim’s behavior is inconsistent with a rape victim’s behavior. Sometimes rape victims kill their attackers and use RTS to try to prove they were raped. Well, defense lawyers already used “common sense” to attack victim behavior so why not use evidence that is actually based on some science. Generally, defendants can use this evidence.
Child Sex Abuse – A Special Case of RTS/PTSD
When kids are molested it’s way trickier to prosecute. Generally, the assault is done by a trusted adult, there’s no physical force, no injury, and the abuse is extremely private/secret. So, you’ll generally never have physical evidence of abuse. Bummer.
Instead, you have to rely almost exclusively on the testimony of psychiatrists and the child. Like RTS, a child victim is prone to non-intuitive behavior when abused. There is a pretty big delay between the abuse and any emotional display, the child will internalize the abuse and develop most of the severe personality disorders you can imagine, and even if the kid comes forward it’ll be so long after they won’t have their story straight so no one will believe them. Lastly, the kid, seeing the damage their disclosure causes in the family, will often retract their allegations in an attempt to undo the harm. Shit.
To cap off all these issues, children are highly suggestible and eager to please authority figures! So maybe they did make it all up because the police/their counselor/their parent encouraged them to! GOD DAMNIT.
Like RTS, the prosecution offers this kind of evidence to show that abuse occurred and to explain the behavior of children. The problem is that recanting your accusation is not just a “behavior” under rules of evidence but a form of untruthful behavior. This kind of behavior is totally admissible for the defense to impeach the witness. However, the person offering the evidence is, as a general rule, forbidden from offering evidence to prove the witnesses capability for truthfulness or honesty. This is considered an issue for the jury alone. So, you have kind of a perfect storm for child witnesses to be torn apart on the stand.
Fortunately, there are proper techniques to interview children to avoid suggestion. The use, or lack thereof, of these techniques is crucial at trial in determining if a child’s testimony has been coached. Famously, the satanic abuse cases were discovered to be entirely coached and suggested by interviewers.
You know the now famous scenario of a teen mom hiding her pregnancy, giving birth at prom and drowning her baby right after birth? Well, it’s a syndrome now. Courts are reluctant to allow psychological evidence about the “syndrome.” I am pretty sure most medical professionals do not think it is “a thing.”
Premenstrual Dysphoric Disorder
It is a real thing – basically PMS so severe it qualifies as almost a psychosis. The DSM recognizes it but no one knows what causes it. If it is really PMDD, some states would allow you to use it in an insanity defense. Although other courts might argue it actually harms the defense, as the person knew they had severe PMS related mental disturbances but did X anyways in that time period. If it is just severe PMS but not to the level of PMDD then pretty much no one thinks it should be a valid defense to a crime.
Black Rage – I mean Urban Rage! (Actually has been called Urban Rage not just a clever joke!)
The theory goes like this: a lifetime of racism and discrimination generates a mental disorder similar or the same as PTSD. Therefore, if you are subject to a bad racial environment for long enough you should be able to claim a defense of insanity for whatever it is you did. Lawyers have raised it as a defense but it has never ever been allowed as far as I’m aware.
As a subset, cultural defenses – my culture made me do it – are sometimes admissible, sometimes not. If it is relevant and non-prejudicial then sure, it is admissible. Most of the time cultural evidence is totally irrelevant though.
Munchausen’s by Proxy
It is a real thing. It is in the DSM-IV. You make your kid sick so you can get sympathy from others. In theory then you could use it as part of a psychological defense. That’s about all I know!
Everyone has seen some stupid show about profiling. Here’s the secret: there are many disputes about whether they ever help investigators and they are rarely if ever admissible at trial because they have no scientific backing! Profiles are so non-scientific that courts have even disputed whether they are subject to the mandatory disclosure of expert opinions required by the Federal Rules of Civil and Criminal Procedure! Ha!
Determinations of future dangerousness are important in a lot of different contexts. It is used in death penalty trials and sentencing hearings as a justification for execution. It is used especially heavily in civil commitment as the major basis of civil commitment is, broadly, whether the defendant poses an immediate danger to themselves or others. Typically this revolves around expressed suicidal thoughts but more rarely you’ll find someone who is going to track down and kill the target of their psychosis. Somewhat overlapping with civil commitment are sex offender determinations of future dangerousness and the related determination of “likelihood to re-offend.” These determinations are often done based on personal interviews by psychologists and psychiatrists. These are called “clinical” determinations. However, the occasional quack will make these determinations “clinically” with no interview and just a review of their file and recorded statements. More recently there have been some decent statistical models based on many factors but relying heavily on age, prior acts and type of mental illness.
If you loved that prior “paragraph” on profiles, you’ll love this one even more! Clinical determinations of future dangerousness, especially long term risk of dangerouness, are bunk. The APA doesn’t support them, no reputable scientific authority thinks it’s possible. Some professionals think it’s even unethical to offer the testimony (for lawyers and psychiatric experts).
However, unlike profiles, future dangerousness determinations are often admitted at trial! Even people who claim 100% accuracy of their future dangerousness positions are admitted at trial! On the other hand, there has been a lot of work on statistical modeling of future dangerousness that do a reasonable job of predicting future dangerousness. These models are often inadmissible! Ha HA!