By Gary Lee Walters, Editor-in-Chief
As a legal academic with an interest in sexual offences, specifically consent in rape, I have witnessed many elements of a rape case from different perspectives. An issue that becomes evident in most, if not all, cases are jurors’ attitudes to a complainant whilst being questioned by defence or prosecution.
I am reminded that the purpose of any case is to test the evidence put before the court and that any complainant suffering from Post-Traumatic Stress Disorder (PTSD) is not likely to have it raised as an issue of a rape or attempted rape. In R v E, 2011 (recently considered by Felicity Gerry) PTSD was admitted only to rebut the presumption of fabrication. Rape does not require injury, Professor David Ormerod analysed R v Olugboja and concluded rape was an offence against consent, not one requiring proof of violence.
That in mind, questions, sometimes unpleasant ones, need to be asked. The defendant will naturally instruct counsel to thoroughly dissect the events leading to and during the complaint and during. The complainant will therefore be tested as to his/her recollection of events. This may be difficult to deal with. I have seen complainants’ breakdown in the witness box under such questioning and I have witnessed those that seem more in control than some of the officials reading out the evidence. Could it be argued that jurors punish complainants for being strong willed? Control is vital for some complainants to ensure that they get through the court case. For some, PTSD may be triggered post-court appearance.
In America, the statistics are revealing: “Nearly one-third of all rape victims develop Rape- related Posttraumatic Stress Disorder (RR-PTSD) sometime during their lifetimes, and more than eleven per cent still suffers from it.”
The statistics for the UK are similarly alarming:
“[a research study] showed that 70% of the victims had PTSD and further suggested that PTSD was likely to be a long-term problem for these women. The results supported the view that psychological treatment approaches to rape victims should take into account the posttraumatic nature of the response. The incidences of rapes by strangers, of physical force being used, of weapons being displayed and of injuries being sustained by the victim were all higher in the group of women who had PTSD.”
How does each of the above demeanours contribute to the negative or positive thought process of a juror? Is it human nature to immediately make a judgement call and feel empathy toward a complainant sobbing incessantly? As someone who has seen such sobbing, it still hits me hard but I remain objective, knowing the dangers of not doing so. The danger is that if a complainant is in control, for whatever reason, and is not visibly upset, human nature suggests less empathy is given. Clearly this clouds judgement and objectivity may be lost.
So how is it recognised whether or not a complainant has post-traumatic stress disorder? A traumatic event such as rape “poses a risk for the development of post-traumatic stress disorder”. It is immensely difficult to analyse whether or not a particular complainant will develop PTSD. However, a brief look at peritraumatic responses (during attack) may indicate how a complainant reacts during court. Some are ‘active’ during an attack. For example, they may kick, spit, and swear at the perpetrator, whilst others may demonstrate a non- active behavioural response which is thought of as consent but is in fact what is commonly referred to as rape induced paralysis. The complainant is numb, an attempt to disassociate his/herself with the attack. The symptoms of PTSD can be the same. A numbness and loss of deep feelings to name but a few. These characteristics could well be evident in the court room and would appear prima facie, that the complainant appears almost unnerved by court procedures but in fact is numb to them.
Is this misunderstood by some jurors as ‘control’? It could be. I would suggest complainants are in fact treated differently by jurors if they seem inconsolable, more credible perhaps. Whereas a complainant with the opposite demeanour (in control) already has an uphill battle to convince the jury they are equally as disturbed by events. Perhaps more needs to be considered for such complainants during a rape case. We are, as a society, told to express our feelings as it makes us feel better, in this context those that control their inner feelings are potentially at more risk of a biased jury which may result in their counsel having to convince a jury otherwise.
Originally published at Halsbury’s Law Exchange, 01 August 2011
© Gary Lee Walters, 2011