Copyright©W.E. Hovdestad 2002. Speaking notes from a paper presented at a symposium entitled "Redefining The Legal Issues Of Sexual Assault And Abuse" sponsored by the Society for the Psychological Study of Social Issues (SPSSI), 2002 SPSSI Convention, Toronto, Ontario, Canada, June 28-30. This paper may be freely reproduced and reprinted with full acknowledgement of the source. For more information see www.napasa.org .
Wendy E. Hovdestad[1]
Sexual assault of women and children is a complex social problem. There are many negative effects, not just on those assaulted and on those who love them, but also throughout society. For example, many women are reluctant to trust men, and parents fear that their children will be abducted and assaulted.
Many remedies to this problem have been and are being tried. Law reform (in terms of re-writing legislation) is one, public education campaigns to change attitudes toward sexual assault are another (e.g., "No means no"), campaigns intended to change the behaviour of potential victims are yet another (e.g., self defense courses for women, "street-proofing" children). There are others. All of these have something to contribute. But none of them have solved the problem.
I'll take a few minutes today to sketch out some ideas about how new strategies might be more successful. The realm of action is sexual assault and sexual abuse trials: the public phase of legal processing. (Note that I use "sexual assault" to refer to assaults against women and "sexual abuse" to refer to assaults against children.) Arguments have been made elsewhere about the extremely problematic legal processing of sexual assault and abuse cases (e.g., Sahjpaul & Renner, 1988). Attempted remedies to the problem of sexual assault and abuse that target the everyday conduct of trials are thus strategic, direct, public, and focused closely on a potentially-changeable target.
My talk is divided into three areas that outline potential solutions to the social, legal, and psychological aspects of the problem of sexual assault and abuse: Document the Outrageous, Challenge the Legal System, and Support Adult Victims.
The first part of the strategy is at the social level of action (see Renner & Park, 2002; Renner & Parriag, 2002a). Let me first define "outrageous." What I mean differs somewhat for children and adults, but the unifying idea is that what are usually treated as normal and necessary aspects of questioning of victim-witnesses can and should instead be seen as outrageous.
When children are being questioned about sexual abuse they have experienced, they are often asked questions about who it was who initiated the social or physical contact. Did they? Did the accused? They might also be asked about the clothing that they were wearing at that time. A defense lawyer's intent is to suggest that the child sought sexual contact through his or her actions and clothing. A Crown counsel's intent with the same questions is to show that the child was chaste. The line of questioning, no matter from whom it originates, is outrageous. First, it is irrelevant to the legal question at the heart of the trial: Did the accused have sexualized contact with the child? If so, the accused is guilty as charged, even in the highly unlikely situation that the child sought the sexual contact. Second, it is outrageous because it invokes the myth of the seductive child. Trying of legal cases based on myth is highly problematic (e.g., L'Heureux-Dubé, 2000).
As well as the inappropriate content of the questions, children are also questioned at an intellectually inappropriate level, as described in detail by Laura Park (2002). Examples of this are asking a child on two occasions to estimate the number of times that a specific type of abuse occurred, or asking her or him to give very specific details of the context in which the abuse occurred (e.g., the number of windows in the room). If the second answer differs from the first, or differs from known facts, because the child is confused or does not know the answer, the child has been impeached and his or her credibility as a witness is brought into question.
When adult women are being questioned about sexual assaults they have experienced, the content of those questions is outrageous, as it is for the questioning of children. Whether it is the defense or Crown posing the questions, it is likely that they will be asked about initiation of social and sexual contact with the accused, attractiveness of the clothing they were wearing, and the time delay between the assault and their reporting of it. In this way, myths about the nature of sexual assault define the content of the trial.
A second way that the everyday processing of sexual assault trials is outrageous has to do with the use of social influence tactics (Renner & Parriag, 2002a). A woman's testimony about the sexual assault she experienced is re-stated in "polite" terms, appropriate to consensual sexual activity. For example, questions are phrased in terms of "intercourse" or "fondling."[2]Renner and Parriag call this the use of "word pictures," and Bavelas and Coates (2000) also discussed the cognitive distortions that the use of "polite" terms creates.
In earlier work, Renner and Park (2002) and Renner and Parriag (2002a) developed coding system that can be used as a framework to observe sexual assault and abuse cases. This framework is available, free of charge, at this website: http://www.napasa.org/ , in the "Document the Outrageous" sections. Activists working within communities can use this framework to record instances during a trial where a child is held responsible for his or her sexual abuse, questioned at an inappropriate level, rape myths are introduced, and so on. The framework can then be used to communicate the content of the trial to the local media, which are most likely already covering the trial. The advantage to using this framework is the development of a shared language structure with a common vocabulary (e.g., "outrageous," "held responsible for sexuality," "questioned at inappropriate level"), to describe systemic problems in the courtroom processing of sexual assault and abuse, brought to life by up-to-the-minute, real-life courtroom examples. Repeated use of this framework to redefine the ordinary as outrageous may help to shift popular opinion about the processing of sexual assault and abuse cases such that this processing is seen as requiring immediate and fundamental change.
Challenge the Legal System
The second part of the social action strategy involves action at the legal level (Park & Renner, 2002; Renner & Parriag, 2002b). Key partners for this part of the strategy are community activists who can work to gain the cooperation of local prosecutors.
There are many legal precedents that recognize children's special need of protection. Prosecutors have grounds to raise objections when the special legal status of children is not respected. Let me give two examples. As I have already indicated, there are grounds to raise an objection if defense attorneys attempt to impeach a child by asking for developmentally inappropriate estimates of place, time, distance, and so on. This is akin to asking an adult a question in a language foreign to him or her, and then taking nonsensical or contradictory answers as evidence of unreliable testimony. As well, prosecuting attorneys could raise objections if a line of questioning confuses a child to the extent that she or he can no longer provide testimony. An adult using his or her superior mental capacities and social power to upset and intimidate a child in this way is tantamount to destroying evidence. This destruction of evidence within the courtroom should also be a basis for objections. There are procedures in place that govern the handling of objections, judges' rulings on those objections, and appeals. Given the cooperation of a local prosecutor, these existing legal procedures can be used to draw attention to and challenge the usual, problematic way of legally processing cases of child sexual abuse.
The recommended approach for cases of adult sexual assault is somewhat different because women do not have, and should not need, any special legal status, parallel to that of children. Instead, simply increasing their level of pre-trial preparation, accompanied by a corresponding change in the prosecutor's critical commentary, should lead to change. The task here is for community activists to convince local prosecutors to do two things. Before the trial, the prosecutor can give a few basic instructions to a woman regarding her testimony. And, during the trial, the prosecutor can name illogical arguments for what they are.
The purpose of the prosecutor's instruction of the witness is to minimize the chances that her testimony will be distorted during the trial. Briefly, the witness should be instructed that her direct testimony is best delivered with a great deal of detail about what she thought and felt before, during, and after the assault. This detail should include real words that she spoke or that were spoken by her assailant, even if those words are obscene or impolite. Concerning cross-examination by the defense lawyer, the witness might benefit from a prosecutor's warnings that the cross-examination is likely to be unpleasant and upsetting. Rather than answering questions quickly in order to "get it over with," answering slowly and carefully, using genuine and descriptive rather than polite terms, might lead to trial content that better reflects the witness' experience. For example, a witness could answer: "No, it was at about 11:00 that he raped me. We didn't have sex at 11:00, nor at any other time." Although more difficult, this answer might be more truthful than a quick and instinctive reply such as: "Yes. It happened at about 11:00."
The second task for prosecutors is to draw attention to the illogical nature of any rape-myth based arguments made by the defense. For example, a prosecutor could explicitly note that evidence about alcohol consumed at a party, or attractive clothing worn to the party has no bearing on the question of consent to sexual activity. This could be done during a witness' direct testimony, re-direct, or during the summation.
Support Adult Victims
The legal aspects of this three-part strategy, then, require only the use of existing legal procedures, such as objections and appeals. The third and last part of the strategy involves action at the psychological level, to support adult witnesses during their testimony (Renner & Parriag, 2002c). What I'm proposing here is to use both psychological knowledge and the results of research studies reported by Renner and Parriag, and others (e.g., Renner, Alksnis, & Park, 1997). Adult witnesses can enter the courtroom better prepared for what they might face in court, and how to most effectively present their evidence. Victim-witness support persons or prosecutors could do this work. Renner and Parriag (2002c) have written a booklet for women who have decided to use the courts after sexual assault. Like the other resources I've described here, it's available on the website that I gave earlier. I'll state briefly the three things that it involves. The "Support Adult Victims" part overlaps with part of the "Challenge the Legal System", but most of it does not require a prosecutor's co-operation.
(Note that supporting child witnesses in sexual abuse cases is not part of this three-part strategy. Suggestions of ways that children might try to protect themselves on the witness stand from adults' attempts to upset or confuse them are misguided because they ignore children's right to special protection. Children should not be expected to protect themselves from adults, on or off the witness stand.)
One way to support adult victims is to explain, before the trial, the protection that might be provided by self-inoculation. A woman can be informed that, when she first takes the stand, she will be questioned by the prosecutor. During this questioning, she can choose to do all she can to state all the facts of what happened to her, including what she thought and said. This painful, complete disclosure is likely to protect her in the longer-term, just like a medical inoculation, because completeness will make it harder for the defense lawyer to distort her testimony during the cross-examination.
Another way to support adult victims is to discuss the types of social influence tactics that the defense lawyer might use. These might include illogical arguments, presented as if they were reasonable. Or, they might involve the use of language that is similar to a woman's actual testimony, but a sanitized version of events. This sanitizing process can significantly distort the facts of the case, leaving the false impression that a witness testified about consensual sexual activity, rather than sexual assault. A strategy to deal with either of these is to make critical, explanatory answers to any illogical or distorted questions, rather than answering with a simple "yes" or "no" that leaves unchallenged the faulty premise of the question.
A prosecutor can support adult victims by calling them back to the stand after cross-examination for re-direct. During re-direct, the prosecutor can query the witness about any distortions that were introduced during cross-examination so that she can clarify her testimony. This requires good communication between victim-witness and prosecutor, so that the prosecutor knows in advance that the witness is willing to re-take the stand, no matter how upset she seems, and so that the appropriate questions are asked of the witness.
In summary, the purpose of the psychological aspect of this three-part strategy is to as fully as possible inform women who choose to use the courts after they have been sexually assaulted what it is they will face in court, and ensure that she is aware of all of her options for answering difficult, distorting, or misleading questions. The ultimate goal is to ensure that the content of each sexual assault trial is facts about sexual assault, rather than a distorted, rape-myth contaminated version of a woman's experience.
Conclusion
Any of the three parts of this strategy could be used individually. For example, community activists or psychology, law, or journalism students could use the "Document the Outrageous" framework. Similarly, without either of the other two parts of the strategy in place, prosecutors could choose to object to developmentally inappropriate questions asked of children, or destruction of a child's evidence. And victim-support workers could use Renner and Parriag's booklet as an additional tool in their work with victim-witnesses, even without any other part of the strategy in place.
However, the advantage that this strategy could confer is that problematic aspects of legal processing of sexual assault and abuse are addressed, publicly, in three domains: social, legal, and psychological.
References
Bavelas, J. & Coates, L. (2001). Journal of Social Distress and the Homeless, Vol. 10.
The Honourable Claire L'Heureux-Dubé, "Beyond The Myths: Equality, Impartiality And Justice" Social Distress 2000
Park, L. (2002). Legal Disparities and the Child Witness. Available at http://www.napasa.org/ .
Park, L., & Renner, K.E. (2002).Challenging the Legal System for Children. Available at http://www.napasa.org/ .
Renner, K. E., Alksnis, C., &Park, L. The standard of social justice as a research process. Canadian Psychology, 1997, 38 (No. 2, May), 91-102.
Renner & Parriag, (2002a). Documenting the Outrageous for Adults. Available at http://www.napasa.org/ .
Renner, K. E., & Parriag, A. V. (2002b). Challenging the Legal System for Adults. Available at http://www.napasa.org/ .
Renner, K. E., & Parriag, A. (2002c). Supporting Adult Witnesses: How you can present yourself effectively. Available at http://www.napasa.org/ .
Renner & Park, (2002). Documenting the Outrageous for Children. Available at http://www.napasa.org/ .
Sahjpaul, S., & Renner, K. E.The new sexual assault law: The victim's experience in court. American Journal of
Community Psychology, 1988, 16(4), 503-513.