Over the last several years, expert testimony concerning rape trauma syndrome has been widely employed by prosecutors to refute a defense of consent asserted by the accused in rape trials. Recognizing the probative value of syndrome evidence, some courts have concluded that when the state relies on rape trauma syndrome to resolve issues of consent, principles of fundamental fairness require that the accused be permitted to defend with the same evidence. However, when the accused is permitted to use rape trauma syndrome offensively, the social science intended to benefit victims of rape may be used to justify the resurrection of compelled psychological examinations and searching inquiry into a woman's sexual past. Liberal admissibility of rape trauma syndrome proffered by the accused substantially undermines core values embodied in protective rape shield laws-laws designed to protect victims from the invasion of privacy, potential embarrassment, and sexual stereotyping endured by women who publicly prosecute rape. However, the author argues that allowing unlimited prosecutorial use of syndrome evidence while categorically precluding defendants access to the same social science is fundamentally unfair and unconstitutionally deprives those accused of rape the right to present a complete defense. In proposing a principled framework of admissibility, the author considers the social science supporting syndrome research, while balancing legitimately protected privacy interests of rape victims against the Sixth Amendment rights of the accused.
Kathryn M. Davis,
Rape, Resurrection, and the Quest for Truth: The Law and Science of Rape Trauma Syndrome in Constitutional Balance with the Rights of the Accused,
49 Hastings L.J. 1511
Available at: https://repository.uchastings.edu/hastings_law_journal/vol49/iss5/4