There are two outrageous issues pertaining to adults which need to be documented and discussed in the media. The first is that the content of most sexual assault trials bears little resemblance to the nature of the victim-survivor's actual experience. This outrageous distortion created by the legal process results from confounding two sets of conditions: the conditions under which the court does not take an offense seriously, with the common social conditions under which men and women interact with each other. On one hand, women are expected to act like women; on the other hand, if they do, they are blamed for male sexual violence. The second issue is that women who testify in court are subjected to tactics of "social influence," which are known means for distorting the truth, and which go uncorrected and unchallenged. Not only do these tactics go unchallenged, but lawyers are encouraged and taught to use these tactics.
Prevalence of these two issues results in the courts -- the legal
doctrine itself -- distorting both the official nature of sexual assault
from what it is to something different, and to allow women to be re-victimized
through treating unreasonable questions as reasonable. Both issues must
be documented and reported at the local level, to hold local Prosecutors
accountable for stopping this abuse of women by the legal process.
For adults, distortions of content is the most important. The court
accepts myths and stereotypes about sexual assault and allows them to form
the back bone of most trials. Obviously, if when women fulfill commonly
accepted normative social standards for interactions with men, and the
court uses this as the basis for excusing male sexual violence, then the
court becomes an accessory after the fact to the male sexual violence.
This is the message to get across to the media, documented by examples
based on the themes that make-up the content of sexual assault cases.
In our research with adult victim-survivors, we identified a set of 16 themes (shown in Table 1, attached to the end of this document) which are used by both the Prosecutor and the Defense to try to assign responsibility for the sexual assault to either the accused or the victim, respectively. For example, in a particular case, if the victim-survivor's clothing was torn, the Prosecutor would present the evidence; if her clothing was not torn the Defense would present the same article as evidence. In the same manner, if the victim-witness was physically injured, the Prosecutor would point out her injuries; however, if she were not, the Defense would point out that she was not injured. Both lawyers acted in a complementary fashion using the same categories, seldom coming into direct conflict with each other.
As a net result, sexual assault trials are a script waiting to be played out, dictated by 16 pre-determined themes. The actual circumstances of the case will determine which ones are selected by Prosecutor and Defense, thus insuring that the trial will bear little resemblance to the woman's actual experience and close resemblance to popular myths and stereotypes.
These themes are relatively easy to identify. When isolated as brief scenarios from the flow of the trial they stand out in stark contrast to what makes sense. Yes, the women had on a tight sweater; so too did numerous other people at the party, all dressed to the expected social standard. What does that fact have to with consent? Nothing, unless we are also prepared to defend that proposition that any one who dresses in a attractive way has pre-consented to sex. Men do not support flour sack fashions, nor do they dress that way themselves. The fact that 16 such categories dominate the content of a sexual assault trial is outrageous, particularly the fact that both the Prosecutor or Defense operate off of the same script, seldom in conflict with each other.
The distortions of the true nature of the experience can be effectively illustrated when the individual themes are isolated as scenarios and are placed in the larger context of the physical facts of the case. It does not make any sense that a women who had been forced to disrobe in the winter, on the water front, beyond an isolated parking lot, would scream for help when there was no one to hear, or say "no, I don't want to do that" at the exact moment the actual assault took place in order to verify that the act was not consensual. The victim's resistance came much earlier in the sequence, at the point of the rape she was negotiating her safety, like anyone does who is in danger. Yet, this is how the Defense argued the case. To introduce whether "at that point" the woman screamed or objected distorts the issue. As an extreme example, in one case the Defense argued that the fact that the victim had provided a condom to a stranger who broke into her apartment was evidence of consent, rather than good judgment for simple self-protection.
The scenarios are one means for documenting both how trials are dominated by a few myths, and how unsubstantial they are when placed in the large context provided by normative social standards and by simple good judgment. These examples provide a clear point of reference, rather than relying on general assertions, such as "women are victimized by social attitudes." The scenarios show how a real person is re-victimized by a silly argument. Counting them is important, because that shows that the examples are not an isolated exceptions but the actual substance of sexual assault trials.
1. Learn the Categories
The first step is to learn the categories that are defined in Tables 1 and 2, and which make up the data sheet attached to the end of this document. It is useful for each court watcher to have a copy of the table and initially for several individuals to watch the same case so that they may discuss with each other when examples of the categories occurred. At first, this is a difficult process, but after watching several trials the pattern becomes clear and the task is easier. We recommend that two types of data to be recorded when observing cases in the courtroom: these are frequency counts and excerpts.
2. Frequency Counts
We use a two-paged data sheet that lists each of the categories (Data Sheet 1). When a lawyer asks a question or makes a comment that fits into one of the categories, the observer puts a tick mark in the box opposite that category. For example, if the Defense says "were you drunk", this would be an example of victim credibility, and you would place a tick mark in the "victim credibility" category. In this way, at the end of each trial it is possible to say that a lawyer discussed material which fit into a particular category "x" number of times. This is a good way to have a quantitative summary of each case and to document consistency over a series of cases.
There is space on the right-hand side of the page for the observer to make notes. You might makes notes on the way in which the lawyer asked the question ("screamed at her", "was sarcastic" etc.), whether the Prosecutor objected to the question, and so on. One useful note is the time when a particular example happened. Most transcriptions use clock time to mark the spots on a tape recording of the trial from which the transcripts are prepared. This may be useful if there is an appeal of the case based on objections made by the Prosecutor. In those cases, a written transcript will most likely be prepared, and the notes will enable the critical examples to be located more easily.
Frequency counts do not capture the truly outrageous things which are said. To do this requires a verbatim (or nearly so) record of what was asked and how the victim-witness responded. These are hard to do on the spot. It is much easier to work from a transcript when they become available. But, for immediacy of response an on-the-spot approximation is necessary. If the example causes enough concern, then that alone may be grounds for the court ordering a transcript of that segment of trial for further consideration, or for grounds of appeal. When that happens, the excerpt can be corrected to be a verbatim account. We have found that each excerpt is best recorded on a separate page. In that way examples from different cases that illustrate the same issue can be filed together; this facilitates talking to the media about the categories (rather than the case). It is important that the media make the point that the central issue is that the court process is wrong in this and many other cases, not simply about how a particular case was argued. A copy of our sheet (Data Sheet 2) for recording excerpts is also attached at the end of this document, along with some illustrative examples from our files of completed sheets.
Table 1 Conceptual Map of Content of
Sexual Assault Trials
|Previous Sexual History||Avoids the issue.
Treats as irrelevant.
|Introduces when possible.
Treats as relevant
|Previous Non-Sexual History||Avoids the issue.
Presents positive view or challenges
|Drinking habits, relationship with other men.|
|Previous relationship with the accused||Avoids the issue.
Presents a positive view, i.e., had good reason to be trustful.
|Previous dates and previous sex.|
|Adjustment Before||Good=this person does not use sex or relationships to
satisfy other emotional needs
Bad=a vulnerable person, emotionally unstable, has been exploited before, should know better, often older man/young girl
|Bad=Sick, unstable person, bizarre.
Must counter. Show person is not "naive" or vulnerable, but manipulative, e.g. bad seed, seductive child
|Adjustment After||Good- must explain or ignore
i.e. was a strong person to begin with
Bad- Rape trauma syndrome
|Good- Did not seek counseling, was not upset, was cold
or calm - no emotion or maladjustment after=no rape
Bad-Must explain or ignore.
|Feelings at the time||How bad she felt, how emotional she was = assault||If not upset, no sexual assault.|
1. Injury (physical)
|Injury = no consent
No injury = must explain or ignore
|Injury = must dispute or ignore
No injury = consent
|2. Resistance (either explicit physical or verbal resistance; proposed new law makes explicit statement necessary)||Resistance = no consent
No resistance = must explain or ignore
|Resistance = must dispute or ignore
No resistance = consent
|3. Removed/Torn Clothing||Removed/torn = no consent
Not removed/torn = must dispute or ignore
|Removed/torn = must dispute or ignore
Not removed/torn = consent
|4. Violence/Intimidation (degree of intimidation through level or threat of force)||Foolish to resist, would only get hurt.
If no coercion must challenge or explain
|Dispute or ignore.
No coercion=no assault / with child did not ask not to tell = no assault
|5. Place||Unusual = not consent because people do not have sex
on a gravel road, bathroom floor, or stairwell when car seats and beds
Usual, normal = must contest or ignore
|Unusual = must contest or ignore.
Usual, normal = consent
|6. Culpability/Character (was the act in keeping with the victim's past character or present behavior, i.e., a blamable person?)||Clothing non-sexual, does not drink, trusted accused
like a friend. Uses good judgment. Victim exploited/trust used
Opposite. Must explain or ignore
|Must challenge the good character and make victim
blamable or ignore
Sexual clothes, drinks, is not naive about relationships and sexual behavior, etc.
|7. Recency of Complaint (to police, hospital, others)||Recent = an assault
Not recent = must explain the delay
|Recent = must contest or ignore
Not recent = no assault
|8. Initiation||Victim = must explain or ignore
Accused = stalked, planned, lured
|Victim = led on, asked for it
Accused=must challenge or ignore
|9. Misunderstanding||Affection is weird = child
Not a reasonable belief = adult
|Child misinterpreted affection
Adult honestly believed
|Consent not given||Consent given|
|B. Mistaken id||Correct person||Mistaken ID is part of Defense|
|Word Pictures (which affect the victim and their testimony, usually in a negative light)||Positive - e.g. "raped by"..
Negative by Defense, Prosecutor must challenge
|Positive by Prosecutor, Defense must challenge
Negative e.g. "had sex with"..
|Impeachment (the victim contradicts Previous testimony)||Inoculation- deal with upcoming
contradictions in testimony
Antidotes-explain the contradiction
|Itemize discrepancies with preliminary hearing-negative implications about victim credibility|
|Over-Generalizations||Inoculations-deal with upcoming
Antidotes-explain the overgeneralization
|Expand on a commonly used phrase to imply more than was intended: e.g., "or something", "never had a chance"|
good character, no reason to lie
Antidotes-explain the implied fabrication
|Coached (not her real story)
Ulterior motives (revenge, money)
Must object that Defense is using "X" to harass witness *
|Must object, say Prosecutor is
Pin Down, Rapid Fire Questions
|Credibility of witness (all
beyond personal motivation of fabrication which address whether evidence is credible)
|There was enough light to see, not too drunk, etc to give accurate account||Victim was too drunk, too old, etc. to give an accurate account|
|Credibility of accused||Accused is known to have a bad character, has prior record, etc.||Accused has good character, etc.|
|Column||Variable Name||Frequency Counts|
|1||Previous Sexual History/Prosecutor|
|2||Previous Non-sexual History/Prosecutor|
|3||Previous Relate Accused/Prosecutor|
|4||Previous Sexual History/Defense|
|5||Pre Non-sexual History/Defense|
|6||Previous Relate Accused/Defense|
|9||Feelings at time/Prosecutor|
|12||Feelings at time/Defense|
|1||Negative Word Picture/Defense|
|5||Victim not credible/Defense|
|8||Positive Word Picture/Prosecutor|
|13||Accused not credible/Prosecutor|
|1||Objections by Prosecutor|
|2||Objections by Defense|
|4||Redirect by Prosecutor|
|Major heading from Table||Prosecutor or Defense||Category name from the Table.||Name of the defendant.||Adult age in ( )|
Explain why the excerpt has been made. Be brief, but explicit.
On the following pages are examples from
our files illustrating several of the categories.
|Type||Lawyer||Category||Case ID||Victim Age|
The Defense wants to show that the victim did not suffer any adjustment
problems after the assault, thereby casting doubt that there was an assault
in the first place.
D: When you reported this matter to the police it was in fact on June 9th that you told...so, 11 days afterwards, is that not correct?
D: When you told...about all this horrible frightening, disgusting experience that you were put through, you weren't upset when you were talking to him, you didn't break down and cry and carry on on that occasion did you?
A: I don't remember.
D: No. When you saw Dr. F. on June 11th you weren't upset at that time when you told him about the events...
A: I remember starting to cry as soon as I started talking about it.
D: You say that you were upset, did you cry in his office?
A: I did start to cry when I started talking about it.
D: But you stopped?
|Type||Lawyer||Category||Case ID||Victim Age|
The Defense is using the myth that if the clothes are not torn, there
was no sexual assault.
D: Okay. At the time the nylon was pulled off with one hand you were lying on your back in the van?
D: On the floor.
D: On the tarp or the carpet or whatever it was.
A: I helped him out with it anyway because I just wanted to get it over with.
D: Okay. And your clothing wasn't damaged.
A: No it wasn't
D: Okay. In any way what so ever.
|Type||Lawyer||Category||Case ID||Victim Age|
The Defense establishes that the accused did not carry out threats uttered to the victim. Therefore, no assault took place.
D. Now you told me earlier that you really didn't think he would do anything because there were so many people handy, isn't that right?
Q: Did you at the time that you were in the washroom think that he was going to carry out a threat with all those people handy including your friends?
A: You never know.
Q: But he never actually did carry out any threats in terms of physically striking you or hitting you, injuring you or pulling a weapon on you for example?
|Type||Lawyer||Category||Case ID||Victim Age|
The Defense is attempting to portray the victim as a party animal.
D: Miss M. is it fair to say that this started out as a regular Saturday evening for you?
A: Yes it did.
D: Typical for you and your friend to go downtown perhaps to the Dory first and when it closes to go down to the Misty Moon?
A: No, I mean I don't go to a draw party every night and I don't go drinking every night. It's like the odd time if we were drinking all together we would go downtown.
D: Ok and you however had been in the Green Dory on quite a few occasions prior to November 18th, 1988?
A: The Green Dory or the Brass Rail, yes.
The following are additional examples of the snippets of testimony which fit into the various categories.
Previous sexual history
The Defense attempts to show that the victim-survivor was promiscuous, therefore this was not a sexual assault.
D: So, was it true that your nickname was
" Juicy Lucy?"
A: I'm not sure.
D: Is it not true that you got this nickname because you had a reputation for having sex with many men?
The Defense tries to show that since they were at her house, it must have been consensual sex.
D: So where were you when the intercourse
A: We were sitting on my couch.
The Prosecutor tries to inoculate for no complaint being made immediately after the event took place.
C: Did you call the police at anytime?
This is the same Saturday is it? Did you call the police that day?
C: Was there a reason why you didn't call the police?
A: I was scared.
The Defense tries to show that the victim-survivor has initiated all forms of contact with the accused.
D: Now in terms of spending time together,
it's absolutely clear that it was your idea to get together in the first
D: That is was not M r. M.'s idea?
The Defense is asking the victim-survivor questions which are difficult to answer consistently, making it look as though she is lying.
D: Do you remember at the preliminary inquiry,
when you told us that one window was open and one was closed?
D: Why is it then today that you are saying that one window was open and one was partially closed? Which is it, that one was open and one closed, or was one open and one partially closed? Are you making this testimony up?
A: No, no, I don't remember... I think that one was open and one closed but there was some light, so...I don't know.
The Defense is suggesting that the victim-survivor had consensual sex, and then lied about it.
D: And in the middle of this forceful struggling
by you, by somebody trying to get your arms free, trying to get out of
there, it's your evidence that he stops and asks you what color or what
kind of condom you prefer.
D: I see, and I take it that it is your evidence, that...in spite of all of this vigorousness on your part, the pushing away, that he was able to either get off you, or reach over in some manner and take a condom out of a dresser drawer?
Victim-survivor not credible
The Defense tries to establish the victim-survivor was drinking that evening, therefore she probably did not have very good recall of the events as they happened.
D: And you would have had some beer at
D: Would it have been about 4 or 5 beer at the Derby?
A: No about 3.
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