Expert Testimony on Victim's Behavior Allowed in Pennsylvania Sex Assault Trials

September 22, 2012

Gov. Tom Corbett signed a law that will permit expert testimony in criminal sexual assault trials on victim's response to assaults. Pennsylvania was the last state to approve such legislation.

The recent high-profile trials involving Jerry Sandusky and Msjr. William J. Lynn helped with the passage of the law, according to one prosecutor quoted by the Philadelphia Inquirer. At the Governor's signing of the bill, the prosecutor noted without those cases, "[W]e would not be here this afternoon."

Victim's Response

The law is designed to address the problem of juror's perception of how sexual assault victims behave. Many jurors expect after a traumatic event that the victim will immediately call the police or other authorities.

The expert, in the words of the statute, can help the jury with "understanding the dynamics of sexual violence, victim responses to sexual violence and the impact of sexual violence on victims during and after being assaulted."

Some victims react unexpectedly, and the use of experts is seen by the prosecution has giving them a powerful tool to help explain this behavior to a jury.

Unfair Advantage?

Criminal defense attorneys generally opposed the bill, as they see it as providing an extra witness for the prosecution. While the law prohibits the use of the expert witness's opinion to assess the credibility of the victim, there is clearly a fear that that could happen by implication.

The concern is twofold. The expert, often a doctor or psychologist, carries the weight of their profession, and their statements bolstering the reaction of the victim may be interpreted by the jury as supporting the credibility of the victim.

The other concern is many defendants would not be able to afford an expert to counter the prosecution's witness. This would leave some jurors with the impression that the state's expert must be correct, as the defense failed to provide a rebuttal witness.

A defense attorney will need to clarify to the jury the expert's role. The attorney needs to ensure that the jury understands the testimony only supports how an alleged victim could behave, and that the question of the actual behavior of the alleged victim and their credibility remains an open question.

Article provided by The Law Offices of David S. Shrager
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