In a sexual assault case, the Prosecutor represents the justice system -- not you, the survivor-witness. Because of your ordinary status as one witness in the case against the accused, the Prosecutor can only offer you limited protection on the witness stand, both in presenting the case and in defending you. However, the defense lawyer has considerable latitude and will do everything possible within his/her power to discredit you, minimize the assault, and shift blame to you.
In contrast, there are limitations on what the Prosecutor can do, both in
presenting your case and in directly defending you as a witness. Because
no lawyer can protect you, it is up to you to present yourself effectively
on the witness stand. We can give you information on how to do this competently,
given that we now know that what takes place in the court room during a
sexual assault trial is highly predictable. For example, there are specific
steps which you can take to assist the Prosecutor in making an efficient presentation
of your case. You can also protect yourself against common tactics used
by the defense lawyer during cross examination.
There are three goals for your testimony. The first is to provide an inoculation during your initial testimony against anything the defense will try to do during cross examination. The second is to resist common defense tactics in order to give a clear and consistent version of your story and to give the Prosecutor attorney time to come to your defense by objecting to the Judge about what the defense is doing. The third is to provide an antidote for things the defense has done during cross examination by providing enough resistance such that the Prosecutor will be able to return to these issues during redirect. You do not want to get off the stand without having an opportunity to undo the distortions the defense may have introduced.
1. Inoculations
The Prosecutor will ask you questions first. He/she will be fairly sympathetic. Tell as much as you can about exactly what happened, what your attacker said, and how you felt. Take your time, and remember that it is okay to use words like "cock" and "fuck" in the court. When the Prosecutor asks you questions, if you say very little, it will be easier for the defense distort what happened and to make you look bad. Telling as much as you can to the Prosecutor in graphic detail is an inoculation against the things the defense will try to do latter. It is something that is a little painful in the short term, but it will protect you later in the long term.
The content of the trial seldom has any resemblance to the nature of what you or any victim actually experienced. This is because the content of the trial is distorted through the language that is used to discuss the events. For example, the term "sexual intercourse" is the normal term used to describe consensual sex between two individuals who both want to engage in the activity. It is not an appropriate term for describing a rape. Effective survivor-witnesses tell specifically what happened. In two of our cases which resulted in convictions the witness used the actual words spoken by accused. In one case the witnessed testified:
W: "And that is when he said, 'have you ever been bum-fucked. Well, I am going to bum-fuck you.' "
D: "By that you mean anal intercourse."
W: "No! I mean bum-fucked. That is what he did to me."
And in the other case:
W: "And he said I am going to F-U-C-K you."
C: "Did Mr. L spell the word or say it?"
W: "He said it. He said I am going to F-U-C-K you, so don't give me a hard time."
Another common example is "oral sex," again implying a consensual act of mutual cooperation. If what actually happened is that the accused held you by the head, pulling your hair so that it hurt, and said, "You are going to suck my cock!" then that is what your testimony should be. Do not assist the defense by changing the reality of your experience with terms that are appropriate for a consensual act. Do not be embarrassed in the courtroom to use the actual words spoken to you during the assault. If you can't say the actual words tell the court that, and the Prosecutor will find a way to help you, perhaps by asking you to write down what was actually said and then reading the words to the court and asking you to confirm that it is correct.
When giving testimony do not feel rushed. Whenever there is a clear recollection of what happened describe it in as great a detail as you have a clear memory. For example, if you were holding on to your panties so they could not be pulled down, be sure to describe the incident in detail, such as:
"I had a hold of my panties with my left hand, holding them up. Then he pushed his forearm under my chin and leaned on my throat so that it was hard to breathe. In a very mean sounding voice, he said: 'Pull off your pants!' I remember thinking, he is really going to hurt me! So, I did what he ordered, and just hoped he wouldn't hurt me any more than he already had."
When you give this kind of answer, with full details of what happened, including what the accused said and what you were thinking, the Prosecutor is then allowed to asked you follow-up questions about what you said, for example, about "feeling like he was going to hurt you", and the Prosecutor can use those exact words. If you did not use those words, the Prosecutor would have to ask a neutral question, such as "how did you react to that" or "what happened next." Thus, considerable responsibility rests with you to get into the record the nature of your experience, as it happened and as it was actually experienced. Take all the time you need to be descriptive, in as much graphic detail as you can. You may have waited for over a year for the trial, don't hurry now!
The reason for being fully descriptive is to anticipate those things the defense will ask, and to create a context for how that event is to be discussed. For example, if your panties were not torn you can be sure the defense will hold them up in court later during cross examination and ask a series of yes or no questions: "Are these your panties." "Are they torn or soiled?" The implication is that if they are not torn or soiled that you must have wanted them off and the sex was therefore consensual. The detailed description of "holding on to them and being ordered to let go of them" given during direct testimony is now part of the story of the panties and explains in advance why they were not torn, that you did not consent to their removal, and that the accused knew it.
This is an effective inoculation against predictable actions by the defense. You can be certain you will be asked a series of "yes/no" questions later about resistance, recency of complaint, lack of explicit non-consent, and clothing. For example, the defense might say "did you at that point, ever say, 'no, I do not want to do that'? Answer yes or no!" If you have already explained the circumstances in such detail so that any reasonable person would know that at that point you had already established non-consent (e.g., by holding on to your panties) and were now trying not to get hurt, a question asked in that way by the defense will lose much of its force -- indeed it may even seem unreasonable and will weaken the defense if the lawyer continues in that way.
Examples of effective inoculations.
The survivor-witness tells all the details of the sexual assault.
C: "Alright, so the gag is placed on you and then you are told to lie on the floor."
W: "Yes, on my stomach...and I do not turn my head to look at him...he locked the door and put the chain...the window was already closed, the curtains were already pulled, and he told me to put my hands behind my back. Then he used some kind of prickly rope that cut into my skin..."
The survivor-witness effectively explains her feelings and fears.
C:" Did you hear anything when he went to the back of the van?"
W: "Just a bit of noise, but I didn't think anything, right...then I started getting a bit nervous."
C: "Why was that Miss. L.?"
W: "Because I didn't know what was going on and he had stopped, and uh...I could just tell by the look in his eyes and I was going to jump out of the truck, but if I...I knew that if I jumped out he would have chased me and I knew that and I didn't know where the hell I was and it was dark."
The survivor-witness repeats exactly what her attacker said.
C: " at the point in time in which Mr. B. goes back to the back of the van, what happens then, Miss L."
W: "He came forward and he had the wrench and he said to me, 'Cock or Die.' "
C: " And what did that mean to you, Miss L.?"
W: "I thought to myself that I wasn't going to mess with this guy so I went to the back with him."
2. Resistance to Defense Tactics
There are two major strategies used by the defense against which you must be ready to defend yourself. These are: (a) using distorted language to ask questions based on rape myths and stereotypes, and (b) making illogical arguments. Here is some more information about these two strategies.
(a) Language.
The first defense strategy has to do with myths and stereotypes about sexual assault and the language used when questioning you about these. For example, one rape myth is that a real sexual assault only happens when a stranger tears the clothes off you. The defense will ask you questions about your clothes, your drinking, how well you know the accused, and so on. By using these questions the defense will try to make it seem that you willingly had sex. The defense will also use words like "had sex" instead of words like "rape". You have to answer the questions the defense asks you, but you don't have to answer yes or no. You can explain what actually happened.
For example, if the defense asks, " ...and that is when you performed oral sex on the accused?", you might answer, "You mean when he lifted my head by my hair and, shoved "IT" in my mouth, and said 'Suck my cock'? That was hardly oral sex!". This is not a yes or no response, yet it does answer the question and keeps the distinction clear that this not a consensual act and therefore not oral sex.Don't let the defense put his words in your mouth. Give the Prosecutor time to object to the defense. The Prosecutor should say that you never testified that there was "oral sex" and that the defense is harassing you. It is all right to make the judge work by responding to the prosecutor's objections. Raise enough fuss about these misleading types of question so that everyone will remember the issue. Only give a yes or no answer if the Judge orders you to. Once you have done this, you have given the Prosecutor the opportunity to object and the opportunity to return to the issue after the defense's questions are completed.
The defense will be very pleased if you lose your composure when asked such misleading questions as: "Is that when you performed oral sex on the accused" or "Did you at that point say 'no I do not want to do that.' " If you remember that your only objective is to resist the defense, then keeping your composure will give the Prosecutor the opportunity to let you explain yourself later, in as much detail as you want and you will have the last word. Be patient and wait. When you do this you are programing the trial and are the one in control. At some point the defense may back off, simply because the net effect is giving you THREE opportunities to describe in graphic detail how you were abused.
Putting up resistance is not easy. One reason why it is important to establish a slow thoughtful pace in giving your answers during the initial direct examination by the Prosecutor is to gain composure and set the stage for a thoughtful response, not an emotional response, during cross examination. The tone is one of moral indignation that anyone would think or imply that THAT was oral sex -- "Hardly! It is when HE did that horrible thing to me."
Examples of resistance on the stand
(b) Reason.The survivor-witness stands her ground.
D: "And you let him fondle down there a little bit."
W: "Oh, I doubt it! I think if I remember correctly ma'am, and it's coming back very clearly, as soon as he got his hand down there it didn't feel good, and I stopped again and that's when he got mad again."The survivor-witness refuses to be baited by the defense.
D: Miss S, I put it to you that things didn't happen the way you said they did, and it's perhaps because of your previous dislike for Mr. C. that you are perhaps elaborating a little bit much....
W: " No, I'm not!"
D: "I put it to you that Mr. C., was perhaps more of a spectator than a participant in this matter, and that because of your previous dislike for him you decided to include him in these activities."
W: "He was there. And he did. So why wouldn't I include him?"The survivor-witness deals with an outrageous question.
D: " Yet you said in your testimony that he shoved four fingers in your vagina. Can you explain how you would have seen that?"
W: " Well, if it wasn't four fingers, it was two or three, and I felt it!"
The second strategy used by the defense is very difficult to deal with. It involves the defense making an argument that is based on an illogical fallacy, yet one which often appears on the surface to be reasonable. When this happens, the court is presented with a false line of reasoning and is tricked into accepting it as if it were reasonable.
As an example, consider the argument: All women at the bar who are drinking and dancing are available for sex. You were at the bar drinking and dancing. Therefore, you were available for sex. The error is a fallacy based on a false premise that every woman at a bar drinking and dancing is available for sex. Yet this argument is accepted in sexual assault trials time after time, because it is based on rape myths and in addition, it gives the appearance of being a correct argument.
Lawyers are actually trained in using known techniques such as this for distorting the truth, and the court allows them to do so, unless they are challenged. In sexual assault trials the distortions are seldom challenged, apparently because their illogical nature has never been adequately recognized due to commonly held myths and stereotypes about sexual assault. To challenge them will be difficult, and not always successful; however, it is better for them to be challenged in every individual case, and, over time, these challenges should have a cumulative effect of supporting future survivor-witnesses.
In order to deal with this strategy, you will need to resist the distortions of your experience, rely on the Prosecutor to help by raising objections to the defense, and you must assume that you will get an opportunity later to undo any damage done by the defense.
One technique is to answer in a way that exposes the fallacy. Answer in a way that show that the question is illogical and the defense's argument is unreasonable. Simply saying, "Yes, like most women at my university do, I called him to ask him out for the date," or "Yes, like most of the other women at the bar, I was wearing a tight short blouse that night," may be enough to point out the illogical argument being made, that you somehow asked to be sexually assaulted by your actions. If you simply say "Yes, I was wearing the skimpy shirt", you are not challenging his illogical argument or insinuation. Challenging it, even if not successful on the spot, gives the Prosecutor time to come to your defense at best, or, at the very least to return to the incident during redirect and give you a chance to explain the distortion in your own words, rather than as a debating opponent of the defense lawyer.
Examples of resistance to illogical arguments
The illogical argument used here is that if you can't identify a wrench, a wrench was not used in the sexual assault.
D: " You have indicated today that the wrench . . . can you say that THAT is the wrench that was in the van on that particular night or is it just a wrench that looks like it?"
W: "It was a silver adjustable wrench."
D: "So you wouldn't be in a position to tell one silver adjustable wrench from another?"
W: "Um, well, when he had it in his hand, I, you know, all I saw was a silver adjustable wrench."
D: "But, I mean, you couldn't really tell one adjustable wrench from another adjustable wrench could you?"
W: " Unless they all look the same, I'm not sure. (sarcastically) I never really studied wrenches."
The survivor-witness deals effectively with a question which has no real answer.
D: "Isn't it true that in the statement you tell the police of only three incidents?"
W: "Yes I believe there are only three".
D: ..."Now, you go through the first incident and then you allude to the second incident...and the second incident if I take what's shown there ... (reading) "everything for a few days was fine, ..and then he asked me to cuddle with him...I didn't know what he meant"...and then you go through the second incident on the couch ...(reading) "a few days after the first incident"... so were you wrong then or are you wrong today again?"
W: "I was right both times. There were four incidents, but I mentioned three to the police because I didn't remember the last one until later."
3. Antidotes
Every Prosecutor should meet with a survivor-witness well before a trial to review the court proceeding and what she should expect. Unfortunately, this often does not happen. As a survivor-witness, you have this right and should demand the session if it is not offered. At this meeting you have two goals:
We have selected some examples of tricks used by lawyers and of effective
testimony by survivor-witnesses. Notice in particular that effective survivor-witnesses
are not intimidated by the defense. Do not be deferential or feel any need
to treat the defense in any other way than as someone intent on doing you
further harm. Period. They are not your friend, and there is very little
they are not free to do to discredit you.
The defense tries to intimidate and confuse the survivor-witness.
D: "So I take it that you are basically telling us that, uh, you're going to tell us what you want to tell us and what you don't want to tell us, you're not going to tell us."
W: "No, that's not what I am saying at all!"*
This survivor-witness corrects the defense's attempts to put words in her mouth.
D: So, ah, you said that you went into the bedroom, correct?"
W: "I didn't go in, I was pushed into the bedroom."
D: "Alright, okay, you were pushed into the bedroom."*
The survivor-witness challenges the defense and makes it clear that his question is unreasonable.
D: "You weren't crying."
W: "No."
D: "No you weren't. You didn't appear angry. You weren't yelling."
W: "Why would I yell?"*
The survivor-witness is graphic and clear.
C: "You stated that Mr. B. put his penis in your vagina."
W: "Yes."
C: "How did that feel?" (after a pause). "I don't know if you understand what I am getting at but did it hurt or not?..."
W: "I hated it. And I felt it."*
One survivor-witness explains how she dealt with confusing questions.
"He would ask leading questions and compound questions and she (the DA) would object...He would ask questions in a way where if you answered "yes" you mean 'yes to the last three questions in a row', and I finally just said, 'well, what question do you want me to answer?' And everyone in the courtroom just went quiet..." **
The survivor-witness describes focusing her anger.
"...it was time to quit feeling sorry for myself and I was mad, you know. If I allowed them to do this to me (reduce her to tears), he might get off, so I had to stop it. I hadn't been very strong up to that point, I kept breaking down and breaking down, and I was bound and determined that I was gonna get it over with and it was gonna be my way."***
This survivor-witness found it helpful to keep eye contact with her supporters during her cross-examination.
"I was looking at (the DA). I kept eye contact with the DA, and when I started to get a little upset, I would look at my sister and she would like do this (making a fist with one hand over her stomach area). You know, like, 'Right on Susan!', and stuff like that. And so when I started crying, I looked up at her.***
(*from case files used in our previous research
** from Konradi, A. (1998). Information Management (pp.258-284). Taking the Stand: Rape Survivors Agency Reporting, Preparing, and Testifying in the Criminal Justice Process.
*** from Konradi, (unpublished), I don't have to be afraid of you:
Rape survivors'emotion management in court.)
In addition to being an effective witness, there are two other social actions that can be taken to help you. Both are based on research we have carried out on sexual assault trials.
1. Documenting the Outrageous
In adult cases, the court "discounts" the seriousness of male sexual violence. The courts distort the true nature of sexual assaults so that court cases bear little resemblance to the actual nature of male sexual violence, thus invalidating women's experiences. And, the mechanism of discounting and invalidation take place through errors of logic in which the unreasonable is accepted as if it were reasonable. We have developed a classification system for describing the content of actual cases through court room observations for discussing cases (including yours) with the media. If possible, get a local group organized to use this material for you and others in order to raise public awareness and to re-define the issues for a new debate on the need for law reform.
2. Challenge the Legal System
We have a social action kit for use by
Prosecuting attorneys to support survivor-witness
when they resist the defense. This material provides the Prosecutor with examples
of typical errors of logic used by the defense and the grounds for formal
legal objections and appeals, and how to assist survivor-witnesses to give
effective testimony. Work to get a specialised Prosecuting attorney who can become
skilled at using this information, or give the Prosecutor in your case the material
to help him or her help you.