The Journal of Psychiatry & Law/Summer 1983 203

Rape trauma syndrome as

circumstantial evidence of rape

BY BERNARD A. RAUM, ESQ.

One of the more perplexing problems in the prosecution of a

rape case is the corroboration of a rape victim's testimony when
the defendant and the victim have just met casually and the rape
itself was not forcible. The defendant usually admits the
intercourse but defends by saying that the victim consented to a
casual act of sex. Juries are understandably reluctant to convict
under such circumstances without some corroboration of the
rape, i.e., the lack of consent. The recent recognition of the rape
trauma syndrome as a diagnostic condition not only may be a
therapeutic breakthrough, but also may provide the necessary
corroboration. The rape trauma syndrome identifies and isolates
psychological symptoms of a sudden traumatic incident such as a
rape.

The prosecution of a rape case is difficult at best, usually

because of the lack of eyewitnesses other than the victim. As
Lord Chief Justice Hale said,

It is true, rape is a most detestable crime, and therefore ought

severely and impartially to be punished with death; but it must be
remembered that it is an accusation easily to be made and hard to
be proved; and harder to be defended by the party accused, the
never so innocent. 1

© 1984 by Federal Lego/ Publications, Inc.

204 RAPE TRAUMA SYNDROME

When those words were written, concepts so familiar to

modern medicine, physiology, forensic science, psychology,
and psychiatry were nonexistent. Yet those words are still
true today because, although science has changed not only
our view of the world but the very world itself, the same
method of the trial of facts in a court of law is in use, i.e.,
the accuser faces the accused and out of this confrontation
the jury or the judge decides who is telling the truth. At
common law, the testimony of the prosecutrix, the rape
victim, was sufficient standing alone, if believed, to convict.
This was so because of the general rule of evidence still
viable today that no particular number of witnesses was
required in virtually all criminal prosecutions in order to
support a verdict of guilty. 2

In an attempt to protect innocent persons from the truly

false but undefendab le rape charge, a rule of corroboration
arose, either by statute or by case law in a number of states, 3
while still others continued to follow the common law and
impose no specific requirement of corroboration,• relying
instead upon the facts in each case for the measure of
believability. There are, to be certain, legitimate, identifiable
policy reasons for the creation of a corroboration rule.' The
rule requires a minimum of independent evidence, i.e., not
from the words of the victim, which evidence is inculpatory.
In some states the corroboration must go to prove "every
material fact essential to constitute the crime." 6 Even those
states which do not require de jure corroboration nonethe-
less rely upon the inherent truthfulness of the surrounding
facts in a given case to lend credibility to the prosecutrix'
story. Thus, if the story is improbable in the factual context,
so too must be the charge of rape. In essence, then, a de
facto corroboration rule applies.' To the extent that the
surrounding facts lend verisimilitude to the prosecutrix'
testimony, that testimony is corroborated.
 205

In many rape cases, corroboration is provided by evidence

recovered in medical examinations at a hospital, by physical
descriptions of the prosecutrix as she appeared to the attend-
ing emergency room physician, and by the results of labora-
tory tests upon evidence samples such as vaginal smears and
hair cuttings. All of these are merely circumstantial evidence
of the fact of a rape, but because of their significance, in the
context, they are strong proof of a rape. As a part of their
observations, physicians typically make notes of the victim's
emotional state and testify as to it. Unfortunately, this last
item ceases to become a part of the gathering of prosecution
evidence and crosses over into the realm of treatment and
long-term therapy once the initial examination is over. It is
to this last area of observations that more attention should
be devoted. To understand the significance of this last
statement, a very brief review of some basic legal concepts is
in order.

In all rape cases, three essential elements must be proven by

the evidence in order to convict an accused: the identity of
the defendant as the criminal agent, the fact of penetration
of the victim's vagina by the accused's penis, and the lack of
consent of the victim. As elements of corroboration, one
court listed the following circumstances which tend to sup-
port the rape complaint.

Among the circumstances we have deemed corroborative are the

following: (I) medical evidence and testimony, (2) evidence of
breaking and entering the prosecutrix' apartment, (3) condition of
clothing, (4) bruises and scratches, (5) emotional condition of
prosecutrix; (6) opportunity of the accused, (7) conduct of accused
at time of arrest, (8) presence of semen or blood on clothing of
accused or victim, (9) promptness of complaints to friends and
police, (IO) lack of motive to falsify. This list, of course, is not
exhaustive and the corroboration in such cases must be evaluated
on its own merits. 8

Of the items listed by the court in Allison, some go to

establishing the identity of the defendant, some go to proof
206 RAPE TRAUMA SYNDROME

of penetration, some go to proof of lack of consent or the

presence of force, and some tend to establish more than one
of these elements. Finally, circumstantial evidence itself has
been described as:

The proof of various facts or circumstances which usually attend

the main fact in dispute, and therefore tend to prove its existence,
or to sustain, by their consistency, the hypothesis claimed. Or as
otherwise defined, it consists in reasoning from facts which are
known or proved to establish such as are conjectured to exist. 9

It is within this framework that the balance of the presenta-

tion must be examined.

Oddly enough, yet surprisingly accurate on close examina-

tion, is the concept that circumstantial evidence may be
infinitely stronger than direct evidence in terms of its weight
and credibility, because no human testimony is superior to
doubt in a given case for a variety of reasons. However, a
chain of independent bits of circumstantial evidence is less
likely to be falsely prepared and arranged among several
witnesses from several sources. io So strong is this concept
that the evidence referred to in the Allison case might be
sufficient to prove the existence of a rape, even if the victim
were dead and therefore unable to testify as to the identity
of her assailant or to the events of the incident itself. 11 In
essence then, the conviction could rest wholly upon circum-
stantial evidence.

Nowhere is the issue of circumstantial evidence more critical

than in the case of an allegation of rape by a woman against
a man after they either have been out on a date or have met
casually in a cocktail lounge or discotheque and gone else-
where afterwards. Typically, there are no witnesses in these
cases as to the actual incident and, equally typically, there is
no question as to the identity of the accused. Furthermore,
the accused may even admit that intercourse took place,
especially if there is semen present when the victim is
examined by a physician. In such cases, the defense is almost
 207

always that of consent, which asserts that the victim freely

consented to the intercourse; the accused thereby admitting
both his identity and the acts of intimacy. In the absence of
some form of demonstrable physical trauma, a jury in
today's pseudosophisticated society is more likely to disbe-
lieve the victim and find that she did in fact consent, in so
many words, to the intercourse. In fact, she may have
merely wished for a nice evening out and a comfortable
conversation with her new acquaintance. How does she go
about convincing anyone that she was forced into inter-
course; that she did not consent? The circumstantial evi-
dence may help to corroborate her testimony as to lack of
consent.

Sexual intercourse, despite our notions of enlightenment as

to sexual activity, is still a very personal relationship to most
individuals, so personal that, early on, courts, while recog-
nizing the value of the credibility of a report of rape if it was
made immediately after the event, nonetheless allowed a
leeway in the definition of "recent" to take into account the
sensibilities of a woman too shy to discuss a rape with
anyone other than her husband. 12 So, too, the psychological
impact of uninvited and nonconsensual sexual intercourse
can have a profound, even observable effect upon the victim
of a rape, 13 which effect can be described in clinical terms. 14
In fact, in recent years the medical literature has abounded
with articles directed toward identifying and diagnosing the
signs of a psychological rape trauma for the purposes of
providing appropriate emergency rape crisis intervention
and ultimate long-term therapy. 15 The victim's psychological
reaction to rape is so strong that the latest edition of the
Diagnostic and Statistical Manual of the American Psychiat-
ric Association lists as a diagnostic category the following:
"309.81, Post-traumatic stress disorder, chronic or de-
layed."16 The entry also includes diagnostic criteria.

To the extent that post-traumatic stress disorder is generally

recognized by the psychiatric and psychological experts, it
208 RAPE TRAUMA SYNDROME

can be the subject of their testimony, as experts, in a judicial

proceeding, much the same as they could testify to the
existence of a mental disorder as part of an insanity de-
fense.11 As is the case with all such evidence, it is admissible
for such weight as the trier of fact will assign to it. Thus the
judge or the jury will assess the credibility of that evidence
based upon its ultimate source, the accuracy of the measur-
ing devices, and the psychiatric/psychological basis for the
diagnosis itself-exactly the same questions asked in a
criminal trial where the defense of insanity is an issue. At the
same time, it is not to be suggested that such evidence is
conclusive, in and of itself, nor that the expert witness can
or should be called upon to tell the judge or jury that he has
reached a conclusion that the victim was raped; that is to
say, that there was no consent. Rather, the jury or judge is
merely presented with the concept of the rape trauma syn-
drome, the empirical findings, and their significance to the
diagnosis. 18 The trier of fact then will decide whether this
circumstantial evidence is sufficient to corroborate the vic-
tim's version that she did not consent to the act of inter-
course. 19 This testimony is also consistent with the concepts
of admissible evidence as described in the Allison case by the
D.C. Circuit Court of Appeals. Such evidence has been
admitted to show that a defendant does not exhibit the
psychological profile of a child abuser, a wife abuser, etc., 20
as well as the psychological profile of the victim in a
homicide case to establish a suicidal propensity. 21

Needless to say, the observable emotional state of the victim

is something about which anyone could testify. 22 However,
the significance of those observations in the context of
post-trauma is beyond the experience of the average person
and thus such evidence needs to be explained to a trier of
fact. 23 This is especially important since it may well be that
some of the observations of the victim's emotional state are
provided through the testimony of independent witnesses
and only received and considered by the expert in his
diagnosis as a result of reports from third persons. The
 209

expert may then bring together threads of testimony and

evidence which mount up to a diagnosis of a rape trauma
syndrome. 24

In recent years, a few courts have been called upon to decide

whether rape trauma syndrome evidence is admissible within
the context suggested herein. California, 25 Michigan, 26 New
Hampshire, 27 Oregon, 28 Kansas, 29 and the United States Dis-
trict Court for the eastern district of Michigan30 have all
admitted such testimony in one form or another. The evi-
dence has been admitted to show the psychological effects of
rape upon the victim; 31 to show penetration against the will
of the victim; 32 to show memory loss due to the trauma of
rape rather than intoxication, as claimed by the defendant; 33
and to show that a child's reaction was consistent with
sexual abuse. 34 One court has refused to admit such testi-
mony, suggesting that not only has the rape trauma syn-
drome not reached a level of reliability that surpasses
commonsense evaluation, but also that it is a therapeutic
tool and not a fact-finding device. 35 Such a view not only
ignores the existence of the authorities cited herein as to the
viability of the diagnosis, 36 but also demonstrates a lack of
appreciation for the use of the rape trauma syndrome to
corroborate the victim's testimony once her credibility is
placed in issue.

What has been suggested here is that there is another source

of evidence available to assist the victim of a rape in
establishing her claim. The concept of the rape trauma
syndrome should be added to the other forensic tools em-
ployed by the medical profession in assisting in the prosecu-
tion of criminal cases. Once again, the expert cannot and
should not be permitted to testify that there was a lack of
consent on the part of the victim based upon his diagnosis of
post-traumatic stress disorder, but rather that such a disor-
der is typical and consistent with the post-rape trauma
syndrome. Once other causes of the disorder are eliminated
by clinical examination and history, the trier of fact may
210 RAPE TRAUMA SYNDROME

consider the existence of the syndrome as circumstantial

evidence of a lack of consent and, thus, a rape.

Notes l. HALE, PLEAS OF THE CROWN, 633, 635 (1680).

2. 7 WIGMORE, EVIDENCE § 2061, at 354 (3d ed. 1940); see also, 65

AM. JuR. 2d Rape at 819 et seq.

3. See generally, 7 Wigmore, supra, note 2, § 2061, at 346-54; Com-

ment, Corroborating Charges of Rape, 67 COLUM. L. REV. 1137 n.3
(1967); Comment, The Rape Corroboration Requirement: Repeal
not Reform, 81 YALE L. J. 1365 (1972); and 65 AM. JUR. 2D Rape
§ 96, at 821 et seq.

4. 7 Wigmore, supra note 2, at 342 (Moore v. State, 23 Md. App. 540,

329 A.2d 48 (1974)).

5. Comment, The Corroboration Rufe and Crimes Accompanying a

Rape, 118 u. PA. L. REV. 458, 460-61 (1970).

6. 7 Wigmore, supra note 2, at 342, (citing and quoting People v.

Page, 162 N.Y. 272, 274 et seq., 56 N.E. 750, 751 (1900)). The
harshness of the New York rule was overcome when it was repealed
and reenacted several years ago.

7. See R.A. Hibey, The Trial of a Rape Case: An Advocate's Analysis

of Corroboration, Consent and Character, 11 AM. CRIM. L. REV.
309, 313-14 (1973).

8. Allison v. United States, 409 F.2d 445, 448 n.8 (D.C. Cir. 1969); and
see Evans v. United States, 299 A.2d 136 (D.C. Ct. App. 1973).

9. BLACK'S LAW DICTIONARY 309 (14th ed. 1951); and see 29 AM. JUR.
2D Evidence§ 264, at 312 et seq.

10. See Commonwealth v. Harmon, 4 Pa. 269 (1946); Commonwealth

v. Webster, 59 Mass. (5 Cush.) 295, 52 Am. Dec. 711 (1850); and
McCann v. State, 13 Smedes & M. 471 (Miss. 1850).

11. See, e.g., Kier v. State, 216 Md. 513, 140 A.2d 896 (1958), a murder
during an attempted rape, a felony murder conviction.

12. See, e.g., Legore v. State, 87 Md. 735, 41 At!. 60 (1898).

13. D.G. Kilpatrick, L.J. Vernon & P.A. Resick, The Aftermath of
Rape: Recent Empirical Findings, 49 AM. J. 0RTHOPSYCHIATRY 658
(1979); and see the dissenting opinion In re Pittsburgh Action
Against Rape, 494 Pa. 15, 428 A.2d 126, 138-43 (1981), for a
 211

judicial description of the elements considered in a rape trauma

syndrome.

14. See THE RAPE VICTIM chs. 9, 10 passim (D.R. Nass ed. 1977);
Holmstrom & Burgess, Assessing Trauma in the Rape Victim,
reprinted from 75 AM. J. NURSING; Burgess & Holmstrom, Rape
Trauma Syndrome, reprinted from 131 AM. J. PSYCHIATRY; 0.
Knopf, Sexual Assault: The Victim's Psychology and Related Prob-
lems, 45 MT. SINAI J. MED. I (1977); S. Sutherland & D.J. Scher!,
Patterns of Response Among Victims of Rape, 40 AM. J. ORTllO-
PSYCHIATRY 503 (1970); M.T. Notman & c.c. Nadelson, The Rape
Victim: Psychodynamic Considerations, 133 AM. J. PSYCHIATRY
408 (1976); C.A. Martin, M.C. Warfield & G.R. Braen, Physician's
Management of the Psychological Aspects of Rape, 249 J. AM.
MED. A. 501 (1983).

15. See the articles collected supra note 14, and Burgess & Holmstrom,
Coping Behavior of the Rape Victim, 133 AM. PSYCHIATRY 413
(1976); Resnick et al., Social Adjustment in Victim of Sexual
Assault, 49 J. CONSULTING & CLINICAL PSYCHOLOGY 705 (1981);
E.M. Mann, Self-reported Stresses of Adolescent Rape Victims, 2
J. ADOLESCENT HEALTH CARE 29 (1981); Norris & Feldman-Sum-
mers, Factors Related to the Psychological Impacts of Rape on the
Victim, 90 J. ABNORMAL PSYCHOLOGY 562 (1981); Atkeson, et al.,
Victims of Rape: Repeated Assessments of Depression Symptoms,
50 J. CONSULTING & CLINICAL PSYCHOLOGY 96 ( 1982); Ellis et al.'
An Assessment of Long-term Reaction of Rape, 90 J. ABNORMAL
PSYCHOLOGY 263 (1981); HILBERMAN, THE RAPE VICTIM (1976);
Halpern et al., RAPE: HELPING THE VICTIM (1978).

16. Pp. 236-38 (3d ed. 1980).

17. See Martin, Warfield & Braen, supra note 14, as to this specific
issue.

18. See, however, People v. Leporte, 103 Mich. App. 444, 303 N. W.2d
222 (1981), where a physician was permitted to testify that the
prosecutrix was a "legitimate rape victim" based upon the physical
and emotional state of the prosecutrix when she was examined
shortly after the alleged rape.

19. See, e.g., State v. Staples, 120 N.H. 278, 415 A.2d 320 (1980),
where the court actually stated that the testimony was corrobora-
tion of the victim's testimony.

20. See State v. Baker, 120 N.H. 773, 424 A.2d 171 (1980); State v.
Wilkerson, 295 N.C. 559, 347 S.E.2d 905 (1978); Waine v. State, 37
Md. App. 222, 377 A.2d 509 (1977); United States v. Staggs, 553
F.2d 1073 (7th Cir. 1977).
212 RAPE TRAUMA SYNDROME

21. Bartram v. State, 33 Md. App. 115, 364 A.2d 1119 (1976).

22. See, e.g., John Hancock Mut. Life Ins. Co. v. Dutton, 585 F.2d
1289 (5th Cir. 1978); Mealer v. State, 242 Ala. 682, 8 So. 2d 178
(1942); Kubicek v. Slezak, 119 Neb. 542, 230 N.W. 248 (1938);
Annotation, Testimony by Witness as to Emotions of Fear or Other
Mental State Manifested by Another, 69 A.LR. 1168 (1930); and
see generally, 31 AM. JUR. 2D Expert and Opinion Evidence, § 161,
at 723-24.

23. As to the permissibility or the need for expert testimony, see State v.
Wilkerson, supra note 20; Mangione v. Snead, 173 Md. 33, 195 Atl.
329 (1937).

24. The concept is illustrated in the fictional literature of a hundred

years ago in an exchange between Sherlock Holmes and Doctor
Watson.

Holmes: I have notes of several similar cases though none, as I

remarked before, which were quite as prompt. My whole examina-
tion served to turn my conjecture into a certainty. Circumstantial
evidence is occasionally very convincing, as when you find a trout
in the milk, to quote Thoreau's example.

Watson: But I have heard all that you have heard.

Holmes: Without, however, the knowledge of pre-existing cases

which serves me so well. DOYLE, The Adventures of the Noble
Bachelor, quoted in THE COMPLETE SHERLOCK HOLMES 294 (1960).

But see, People v. Bledsoe, 140 Cal. 3d 267, 189 Cal. Rptr. 726
(1983), which required the testimony to be based upon personal
observations and not upon the reports of others.

25. People v. Rance, 106 Cal. 3d 245, 164 Cal. Rptr. 822 (1980).

26. People v. Leporte, supra note 18; People v. Wells, 102 Mich. App.
558, 302 N.W.2d 232 (1980).

27. State v. Staples, supra note 19.

28. State v. Lebrun, 37 Or. App. 411, 587 P.2d 1044 (1978); and
compare, State v. Harwood, 45 Or. App. 931, 609 P.2d 1321 (1980);
and State v. Middleton, 294 Or. 427, 657 P.2d 1215 (1983).

29. State v. Marks, 231 Kan. 645, 647 P.2d 1292 (1982).

30. Redmon v. Baxley, 475 F. Supp. 1111 (D.C., E.D. Mich. 1979).
 213

31. Id. This was a civil rights case as a result of a homosexual rape in a
state prison.

32. People v. Wells, supra note 26; State v. Marks, supra note 29.

33. State v. Staples, supra note 19.

34. State v. Middleton, supra note 28.

35. State v. Saldana, __ Minn. __ , 324 N.W.2d 227 (1983). This

case is distinguishable in any event because the "expert" who gave
an opinion was a rape counselor with a bachelor's degree in
psychology and social work, rather than a physician. While the
witness in Saldana might have been an excellent source for any
eyewitness observations of the victim after the rape, the qualifica-
tions certainly did not permit the witness to assess the observations.
Furthermore, the witness was allowed to express an opinion that the
victim was telling the truth. This was a usurpation of the jury's
function by an unqualified witness (but compare the effect of the
decision in People v. Leporte, supra note 18, upon this last
question).

In a companion case, State v. McGee, __ Minn. __ , 324

N.W.2d 232 (1982), the Minnesota Supreme Court relied upon its
decision in Saldana. In McGee the witness was a physician who had
experience with rape victims in a hospital setting. The physician did
not render an opinion as to whether a rape took place. Rather, he
only discussed the victim's psychological symptoms, finding them
to be consistent with a rape. Two judges of the Minnesota Supreme
Court dissented in the McGee case and would have allowed the
testimony. Saldana and the majority opinion in McGee appear to be
out of step with the majority of decisions.

36. See, e.g., Martin, Warfield & Braen, supra note 14.