(c) Copyright 2002 K. E. Renner. This material may be freely reproduced and reprinted provided the source and authorship are acknowledged: www.napasa.org.
 
Documenting the Outrageous for Adults
By
K. Edward Renner
and
Amanda Parriag
 

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. 

The 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.
 

Distortions of Content

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.
 

Distortions of Truth
 
In our research with adult victim-survivors, we identified a set of 7 tactics (shown in Table 2, attached to the end of this document) which are used largely by the Defense to distort the victim-survivor's testimony. These come largely from the psychology of social influence, advertising and propaganda. They are known in advance to be "techniques," many of which are regulated under "truth in advertising" legislation, but which are allowed free reign in sexual assault trials. In other instances they are based on formal and informal logical fallacies; that is, they are known ways to advance an illogical argument and make it seem reasonable.

The paradox, of course, is that the rules of evidence administered by the court are supposed to be truth seeking. Permitting the use of known techniques for the distortion of truth is the same as deliberately destroying evidence -- which is a criminal offense. The court can not be the agency responsible for seeking truth and at the same time an instrument for the destruction of evidence.

The power of these techniques of distortion rests, as do the themes, on the acceptance of common myths and stereotypes about sexual assault that are continually reinforced by the court process. Thus, the myths so damaging to women victims are to a large degree perpetrated by the very system intended to protect women. This is the message to get across to the media, documented by examples based on the tactics that make-up the proceeding of sexual assault cases.

Rarely does the Prosecutor do any thing to stop these tactics, although we have proposed in our companion booklet "Challenge the Legal System" that the Prosecutor be encouraged to do so. We suggest that a record be keep of how often the Prosecutor challenges these seven deadly tactics by raising objections in court, and by placing the victim back on the witness stand after cross examination to address the distortions introduced by the Defense.

The most common tactic used by the Defense is that of a "word picture." Because a sexual assault is a "dirty" experience, as when some one get fucked, there is reluctance on the part of victims to use words that are appropriate to their actual experience. However, if the words which are used are from the vocabulary of consensual sex, such as "had intercourse," or performed "oral sex," then the interpretation of the event is contaminated by words more appropriate for describing the exact opposite of what is being claimed. Often the Prosecutor sets the stage for the effective use of this technique by the Defense by failing to establish during the initial testimony a vocabulary appropriate to the experience. Bringing out these issues, with good examples, can help to sensitize the courts to the issue and to raise public awareness of its importance.

A common logical fallacy, often seen in political campaigns, is to attack the person when you cannot refute their statement. This is commonly known as an argument ad hominem, and it happens over and over again in sexual assault cases. The character of the witness is put on trial rather than the facts of the case. Often these involve whether the woman had anything to drink at the night spot, and how many. The fact that nearly everyone had something to drink at the night spot does not seem to matter in sexual assault cases. The inference is made and often accepted that the drinking and dancing were some how "bad," rather than normative social behavior. The viciousness of these attacks and their unreasonableness need to be documented. It is simply not a reasonable argument that women who drink and dance at night spots are indicating a willingness for sex. Consensual sex is, by definition, an explicit understanding between two people and not an inference based on normal social behavior.

A final illustration is impeachment. The Defense at the preliminary hearing will often asked many apparent "factual" questions about dates, times, distances and physical characteristics of the setting. At the trial, similar questions are commonly asked, often in the form of leading questions, such as: "Then about two hours would have elapsed between event A and B. Isn't that correct!" In these instances the Defense knows in advance that in a previous statement, to the police or at the preliminary hearing, maybe a year or longer ago, that the witness had guessed that maybe an hour at elapsed. If the woman agrees with the leading statement at the trial the Defense will read out the previous statement, ask if the women lied than or now, and imply that if her testimony about this time lapse is in error, there is a reasonable doubt about her other recollections. These "facts" can be about the number of windows in the room, the number of people at the party, or any irrelevant detail for which conflicting testimony can be elicited. On the one hand, this is an example of another informal logical fallacy. Lack of knowledge about the number of windows in the room does not mean that the individual cannot remember an intrusive, harmful physical event. These are cheap tricks, and need to be exposed as deliberate efforts to destroy evidence using an irrelevant argument.
 
Documenting the Distortions

Observing and recording cases in the court room takes practice. Because the exchange of dialogue sometimes takes place too fast for one person to get it all recorded, it may be desirable to have two observers who can combine their notes later into a single record. If individuals work in pairs, one person can write down what the Defense says and the other the victim's response and then paste the two together. You will not be able to get every thing recorded, nor should you try. With experience, you will be able to see a significant run of questions starting to develop (e.g., regarding torn clothing); this is the signal to get a transcription. Between these "runs" of questions lawyers often ask "filler" questions that set the stage for the next run, often they seem to buy time while the lawyer gets his mind set for the next hard run at the victim. At first, it is difficult to see this pace. However, with the categories as a frame of reference, the pattern starts to emerge and it is often possible to anticipate what will be next. Sexual assault trials are largely a script waiting to be acted out based on the circumstances of the case. There are three elements to developing a court watch process.

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.

3. Excerpts

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

A. History
 
Category
 Prosecutor Defense
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.
 
 
B. Psychological
 
Category
 Prosecutor Defense
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.
 
C: Themes
(Both Prosecutor and Defense Use Same Myths About Consent)
 
Category
 Prosecutor Defense
A. Consent 

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 are available

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
10. Communication 

(of consent)

 Consent not given Consent given 
B. Mistaken id Correct person Mistaken ID is part of Defense
  

 

Table 2: Conceptual Map of Strategies and Social Influence Techniques
 

Category
 Prosecutor 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 generalizations

Antidotes-explain the overgeneralization

 Expand on a commonly used phrase to imply more than was intended: e.g., "or something", "never had a chance"
Fabrication Inoculations-victim credibility, good character, no reason to lie 

Antidotes-explain the implied fabrication

 Coached (not her real story)
 

Ulterior motives (revenge, money)
Tactics/Style Repetition
Supportive, non-directive
 

Must object that Defense is using "X" to harass witness *

 Must object, say Prosecutor is "leading" 
 

Pin Down, Rapid Fire Questions
Tag Questions, Intimidating Tone
Sarcasm, and Suggestive Questions (I suggest...)
Credibility of witness (all factors

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.
 
 

Data Sheet 1 (two pages)
 

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
7 Psych Adjustment/Before/Prosecutor
8 Psych Adjustment/After/Prosecutor
9 Feelings at time/Prosecutor
10 Psych Adjustment/Before/Defense
11 Psych Adjustment/After/Defense
12 Feelings at time/Defense
13 Clothing Torn/Prosecutor
14 Clothing Torn/Defense
15 Victim Injury/Prosecutor
16 Victim Injury/Defense 
17 Violence/Prosecutor
18 Violence/Defense
19 Resistance/Prosecutor
20 Resistance/Defense 
21 Place/Prosecutor
22 Place/Defense
23 Character/Prosecutor
24 Character/Defense
25 Recency/Prosecutor
26 Recency/Defense
26 Initiation/Prosecutor
28 Initiation/Defense
29 Misunderstood/Prosecutor
30 Misunderstood/Defense
31 Communication/Prosecutor
32 Communication/Defense
1 Negative Word Picture/Defense
2 Impeachment/Defense
3 Overgeneralization/Defense
4 Fabrication/Defense
5 Victim not credible/Defense
6 Accused Credible/Defense
7 Negative tactics/Defense
8 Positive Word Picture/Prosecutor
9 Impeachment Inoculation/Prosecutor
10 Generalization Inoculation/Prosecutor
11 Not Fabrication/Prosecutor
12 Victim Credible/Prosecutor
13 Accused not credible/Prosecutor
14 Positive tactics/Prosecutor
1 Objections by Prosecutor
2 Objections by Defense
3 Judge Intervention
4 Redirect by Prosecutor
 

Data Sheet 2
 

Type
Lawyer
Category
Case ID
Vic Age
Major heading from Table  Prosecutor or Defense Category name from the Table. Name of the defendant. Adult age in ( )
Description

Explain why the excerpt has been made. Be brief, but explicit.
 
 
 
 
 
Transcript of the Excerpt
 
 
 
 
 
 
 
 
 
 
 
 
 

Examples

On the following pages are examples from our files illustrating several of the categories.
 
 

Type Lawyer Category Case ID Victim Age
theme Defense  adjustment after 11756 adult
 

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?

A: Yes.

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?

A: Yes.
 

  
Type Lawyer Category Case ID Victim Age
theme Defense  removed/torn clothing 10088 adult
 

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?

A: Yah.

D: On the floor.

A: Yah.

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.

A: No.
 
 

 
Type Lawyer Category Case ID Victim Age
theme Defense  violence/intimidation 09937 adult
 

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?

A: Yes.

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?

A: No.

 

Type Lawyer Category Case ID Victim Age
theme Defense  culpability/character 11033 adult
 

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?
 

Place

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 happened?
A: We were sitting on my couch.
 

Recency

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?
A: No.
C: Was there a reason why you didn't call the police?
A: I was scared.
 

Initiation

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 place?
A: Yes.
D: That is was not M r. M.'s idea?
A: No.
 

Impeachment

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?
A: Yes.
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.
 

Fabrication

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.
A: Yes.
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 the Derby?
A: Yes.
D: Would it have been about 4 or 5 beer at the Derby?
A: No about 3.
 

Return to "Document Outrageous" Page

Home Page