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1987

“Syndrome” Evidence
Paul C. Giannelli

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Giannelli, Paul C., "“Syndrome” Evidence" (1987). Faculty Publications. Paper 403.
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 I
Vol. 10, No. 2 Spring 1987

"SYNDROME" EVIDENCE
Paul C. Giannelli
Professor of Law
·Case Western Reserve University
and
Donna Mitchell . 4f1~26
Class of 198~A n
C.WR.U. Law Sc/fflrnR? 81981
The last decade has seen an increased use of scientif- second time, and she remains in the situation, she is
ic evidence in criminal prosecutions. As part of this defined as a battered woman~ L. Walker, The Battered
development the courts have been faced with the admis- Woman xv (1979).
sibility of evidence based upon the social sciences. The The violence associ?ted with this type of relationship is
latest edition of McCormick contains the following neither constant nor random. Instead, it follows a pattern.
commentary: Dr. Walker has identified a three stage cycle of violence.
In a growing number of cases, litigants have sought to /d. at 55-70. The first stage is the "tension building"
introduce expert testimony as to the scientifically phase, during which small abusive episodes occur.
constructed or validated profiles. Women accused of These episodes gradually escalate over a period of time.
murdering their husbands have pointed to the The tension continues to build until the second stage-
"battered wife syndrome" to support a plea of self- the acute battering phase- erupts. During this phase, in
defense. Prosecutors in sexual abuse cases have which most injuries occur, the battering is out of control.
relied on the "rape trauma syndrome" to negate a Psychological abuse in the form of threats of future harm
claim of consent or to explain conflicting statements of is also prevalent. The third phase is a calm loving period
the complainant. In child abuse and homicide cases, in which the batterer is contrite, seeks forgiveness, and
prosecutors have called witnesses to establish that promises to refrain from future violence. This phase
defendants exhibited the "battering parent syndrome." provides a positive reinforcement for the woman to
C. McCormick, Evidence 635 (3d ed. 1984). continue the relationship in the hope that the violent
rhis article briefly examines several issues relating to behavior will not recur. The cycle then repeats itself. In
vhat may be called "syndrome" evidence. addition, the batterer is often extremely jealous of the
woman's time and attemtioll, a factor that further isolates
her from friends and outside support. Note, Self-Defense:
BATTERED WOMAN SYNDROME Battered Woman Syndrome on Trial, 20 Cal. W.L. Rev.
The battered woman syndrome (BWS) describes a 485, 487-88 (1984). Numerous obstacles, both psycholog-
1attern of violence inflicted on a woman by her mate. Dr. ical and economic, often prevent the battered spouse
.enore Walker, one of the principal researchers in this from leaving her mate; she feels "trapped in a deadly
eld, describes a battered woman as follows: situation." Walker, Thyfault & Browne, Beyond the Juror's
A battered woman is a woman who is repeatedly Ken: Battered Women, 7 Vt. L. Rev. 1, 12 (1982). Caught
subjected to any forceful physical or psychological in this cycle, the battered woman sometimes strikes back
behavior by a man in order to coerce her to do some- and kills.
thing he wants her to do without any concern for her Courts and scientists have accepted the validity of the
rights. Battered women include wives or women in any battered woman syndrome. See Fennell v. Goolsby, 630
form of intimate relationships with men. F. Supp. 451,459 {E.D. Pa. 1985)("The general accep-
Furthermore, in order to be classified as a battered tance of expert testimony on the battered woman
woman, the couple must go through the battering syndrome has been acknowledged by legal authorities
cycle at least twice. Any woman may find herself in an as well as the scientific community."). One commentator,
abusive relationship with a man once. If it occurs a however, has challenged its scientific basis:

)lie Defender Hyman Friedman Telephone {216) 443-7223

vahoga County Public Defender Office, 1200 Ontario Street, Cleveland, Ohio 44113

' views expressed herein are those of the author and do not necessarily reflect those of the Public Defender.
)yright (c) 1987 Paul Giannelli
 The work of Lenore Walker, the leading researcher on woman's state of mind be accurately and fairly under-
battered woman syndrome, is unsound and largely stood." State v. Kelly, 97 N.J. 178, 196,478 A.2d 364, 372
irrelevant to the central issues ...The Walker cycle (1984). In addition, another court has admitted BWS
theory suffers from significant methodological and evidence for the purpose of explaining a battered
interpretive flaws that render it incapable of explaining woman's conduct after killing her mate. People v. Minnis, (
why an abused woman strikes out at her mate when 118 Ill. App. 3d 345, 356-57, 455 N.E.2d 209, 217-18
she does. Similarly, Walker's application of learned (1983).
helplessness to the situation of battered women does A second issue is whether BWS evidence is a proper
not account tor the actual behavior of many women subject for expert testimony. Several courts have held
who remain in battering relationships. Note, The that this subject is "within the understanding of the jury"
Battered Woman Syndrome and Self-Defense: A Legal and thus inappropriate for expert testimony. Fielder v.
and Empirical Dissent, 72 Va. L. Rev. 619, 647 (1986). State, 683 S.W.2d 565, 594 (Tex. Grim. App. 1985); State
v. Thomas, 66 Ohio St. 2d 518, 521, 423 N.E.2d 137, 140
Admissibility (1981). Most courts disagree, finding that "a battering
The admissibility of evidence of the battered woman relationship embodies psychological and societal
syndrome has divided the courts. See generally Annat., features that are not well understood by lay observers."
Admissibility of Expert Opinion Testimony on Battered State v. Kelly, 97 N.J. 178, 209, 478 A.2d 364, 379 (1984).
Wife or Battered Woman Syndrome, 18 A.L.R.4th 1154 See also lbn-Tamas v. United States, 407 A.2d 626,
(1982). An analysis of the admissibility of such evidence 634-35 (D.C. 1979), on remand, 455 A.2d 893 (D.C. 1983);
raises several issues. The first issue concerns the Smith v. State, 247 Ga. 612, 618-19, 277 S.E.2d 678, 683
relevancy of BWS evidence. Typically, the evidence is (1981); People v. Torres, 128 Misc. 2d 129, 134, 488
a
offered in support of self-defense claim in a homicide N.Y.S.2d 358,362 (Sup. Ct. 1985); State v. Hill, 287 S.C.
398, 339 S.E.2d 121, 122 (1986); State v. Allery, 101
prosecution. A few courts have declared BWS evidence
to be simply irrelevant to a self-defense claim. See Field- Wash. 2d 591, 597, 682 P.2d 312, 316 (1984).
er v. State, 683 S.W.2d 565, 593 (Tex. Grim. App. 1985); A final issue relates to the scientific basis for BWS
People v. White, 90 Ill. App. 3d 1067, 1072, 414 N.E.2d evidence. Some courts have excluded expert testimony
196, 200 (1980); State v. Necaise, 466 So. 2d 660, 663-65 on this subject because its scientific validity has not been
(La. Ct. App. 1985); State v. Thomas, 66 Ohio St. 2d 518, sufficiently established. lbn:ramas v. United States, 455
521, 423 N.E.2d 137, 140 (1981). See also State v. Martin, A.2d 893 (D.C. 1983); State v. Thomas, 66 Ohio St. 2d
666 S.W.2d 895, 899 (Mo. Ct. App. 1984)(expert testimo- 518, 521-22, 423 N.E.2d 137, 140 (1981) (BWS not suffi-
ny not admissible since prima facie case of self-defense ciently developed as scientific knowledge); Buhrle v.
not made); State v. Moore, 72 Or. App. 454, 459, 695 P.2d State, 627 P.2d 1374, 1378 (Wyo. 1981)(record did not
985,987-88 (1985)(witness not qualified to testify about establish scientific basis). Rejecting this argument, other
BWS). courts have concluded that a "sufficient scientific basis"
has been established. State v. Kelly, 97 N.J. 178,211,478
Being a battered woman, by itself, is no defense to A.2d 364, 380 (1984). For example, one court has written:
homicide. State v. Walker, 40 Wash. App. 658, 665, 700
[T]he theory underlying the battered woman's
P.2d 1168, 1173 (1985)("That the defendant is a victim of a
syndrome has indeed passed beyond the experimen-
battering relationship is not alone sufficient evidence to
tal stage and gained a substantial enough scientific
submit the issue of self-defense to a jury."). Neverthe-
acceptance to warrant admissibility ... [N]umerous
less, the BWS may explain two elements of a self-
defense claim: (1) the defendant's subjective fear of seri- articles and books have been published about the
battered woman's syndrome; and recent findings of
ous injury or death and (2) the reasonableness of that
researchers in the field have confirmed its presence
belief. See generally W. LaFave & A. Scott, Criminal Law
and thereby indicated that the scientific community
§ 5.7 (2d ed. 1986); 2 P. Robinson, Criminal Law
accepts its underlying premises. People v. Torres, 128
Defenses § 132 (1984). A number of courts recognize the
Misc. 2d 129, 135, 488 N.Y.S.2d 358, 363 (Sup. Ct. 1985).
relevancy of BWS evidence for this purpose. E.g., Terry v.
State, 467 So. 2d 761, 763-64 (Fla. Dist. Ct. App. 1985); Accord State v. Hodges, 239 Kan. 63, 716 P.2d 563, 569
Hawthorne v. State, 408 So. 2d 801, 806-07 (Fla. Dist. Ct. (1986); State v. Gallegos, 104 N.M. 247, 719 P.2d 1268,
App. 1982); State v. Hundley, 235 Kan. 461, 467, 693 P.2d 1274 (N.M. App. Ct. 1986).
475, 479 (1985); State v. Anaya, 438 A.2d 892, 894 (Me.
1981); State v. Kelly, 97 N.J. 178, 202-05, 478 A.2d 364, Related Issues
375-77 (1984); State v. Leidholm, 334 N.W.2d 811, 820 The battered woman syndrome has generated a
(N.D. 1983); People v. Torres, 128 Misc. 2d 129, 134, 488 number of incidental issues. One court has held
N.Y.S.2d 358, 362 (N.Y. Sup. Ct. 1985). See also May v. evidence of the defendant's prior aggressive behavior
State, 460 So. 2d 778, 78.5 (Miss. 1984)("the battered wife toward the victim inadmissible to rebut BWS evidence.
syndrome has important informational and explanatory State v. Kelly, 102 Wash.2d 188, 685 P.2d 564 (1984).
power ..."). For example, BWS evidence is relevant to Another court found that defense counsel's failure to
explain why the battered woman has not left her mate. introduce expert testimony on the battered woman
According to one court, "[o]nly by understanding these syndrome did not constitute ineffective assistance of
unique pressures that force battered women to remain counsel. Meeks v. Bergen, 749 F.2d 322, 328 (6th Cir.
with their mates, despite their long-standing and 1984). In the trial of a man for the attempted murder of hi!
reasonable fear of severe bodily harm and the isolation wife, a New Hampshire court upheld the introduction of
that being a battered woman creates, can a battered BWS evidence to rebut an insanity defense. State v.

2
 Baker, 120 N.H. 773, 775-76, 424 A.2d 171, 173 {1980). In psychological and demographic profile of typical abusing
Jahnke v. State,· 682 P.2d 991, 997 (Wyo. 1984), the court parents. It is offered to show that the defendant, the
rejected the admissibility of "battered son" testimony parent, fits the profile and thus is more likely to have
because the evidence showed that the defendant was battered the child. In sum, the battered child syndrome
not under attack at the time of the killing. focuses on the child's physical condition, while the batter-
ing parent profile focuses on the parent's characteristics.
References
The battering parent profile is an offshoot of the
The admissibility of expert testimony on BWS has research on the battered child syndrome. See McCoid,
produced much commentary. See generally Acker & The Battered Child and Other Assaults Upon the Family:
Tach, Battered Women, Straw Men, and Expert Testimo- Part One, 50 Minn. L. Rev. 1, 18-19 (1965); John, Child
ny: A Comment on State v. Kelly, 21 Crim. L. Bull., 125 Abuse-The Battered Child Syndrome, 2 Am: Jur. Proof of
(1985); Buda & Butler, The Battered Wife Syndrome: A Facts 2d 365, 404-07 (1974). Researchers have not only
Backdoor Assault on Domestic Violence, 23 J. Fam. L. attempted to identify the physical attributes of an abused
359 (1984-85); Crocker, TheMeaning of Equality For child but also the characteristics of parents who abuse
Battered Women Who Kill Men in Self-Defense, 8 Harv. their children. One expert testified that the profile of a
Women's L.J. 121 (1985); Eisenberg & Seymour, The Self- battering parent consists of the following characteristics:
Defense Plea and Battered Women, 14 Trial34 (July (1) the parent herself is the product of a violent, abusive
1978); Rosen, The Excuse of Self~Defense: Correcting a. environment; (2) the parent is under some kind of chronic
Historical Accident on Behalf of Battered Women Who Ktll, environmental stress, caused, for example, by money or
36 Am. U.L. Rev. 11 (1986); Tinsley, Criminal Law: The housing problems, and is frequently a single parent; (3)
Battered Woman Defense, 34 Am. Jur. Proof of Facts 2d 1 the parent has a history of poor social judgment, tending
(1983); Vaughn & Moore, The Battered Spouse Defense in to be impulsive or explosive under stress; (4) the abused
Kentucky, 10 N. Ky. L. Rev. 399 (1983); Schneider, Equal child is the product of an unplanned or difficult pregnan-
Rights to Trial for Women: Sex Bias in the Law of Self- cy; and (5) the abused child is a chronically difficult child.
Defense, 15 Harv. C.R.-C.L. L. Rev. 623 (1980); Note, The Sanders v. State, 251 Ga. 70,73-74, 303 S.E.2d 13, 16
Battered Wife's Dilemma: To Kill or To Be Killed, 32 Hast- (1983). A commentator summarized the profile as
ings L.J. 895 (1981); Note, The Admissibility of Expert follows:
Testimony on Battered Wife Syndrome: An Evidentiary
[A]busing parents seem to have low self esteem, poor
Analysis, 77 Nw. U.L. Rev. 348 (1982); Note, Battered
impulse control, low empathy, low frustration tolerance,
Woman Syndrome: Admissibility of Expert Testimony for
and inadequate knowledge of basic child development
the Defense, 47 Mo. L. Rev. 835 (1982); Note, Partially
and of parenting skills. In addition, they are more likely
Determined Imperfect Self-Defense: The Battered Wife
than non-abusers to manifest diagnosable psycho-
Kills and Tells Why, 34 Stan. L. Rev. 615 (1982); Comment,
pathology, or other serious emotional problems.
Expert Testimony on the Battered Wife Syndrome: A
Question of Admissibility in the Prosecution of the Apart from such personality characteristics, abusing
Battered Wife for the Killing of Her Husband, 27 St. Louis parents in the reported studies were themselves al-
U. L.J. 407 (1983); Note, The Expert as Educator: A Pro- most universally abused or neglected as children. As
posed Approach to the Use of Battered Woman Syn- adults, they tend to social isolation, and are likely to be
drome Expert Testimony, 35 Vand. L. Rev. 741 (1982); under environmental stress, often belonging to lower
Comment, The Battered Spouse Syndrome as a Defense socio-economic groups. Note, The Battering Parent
to a Homicide Charge Under the Pennsylvania Crimes Syndrome: Inexpert Testimony as Character Evidence,
Code, 26 Viii. L. Rev. 105 (1980). 17 Mich. J. L. Reform 653, 658-59 (1984).

BATTERING PARENT PROFILE Admissibility

The battering parent profile must be distinguished Only a few courts have considered the admissibility of
from the battered child syndrome. Both issues arise in the battering parent profile. Several courts have treated
cases in which a parent is prosecuted for inflicting injury the profile as evidence of the defendant's character; that
to or causing the death of a child. Typically, evidence of is, to show that the defendant matches the profile and
the battered child syndrome involves medical testimony therefore is more likely to have committed the particular
based on the victim's medical history and injuries; it is abuse charged. Generally, character evidence is inad-
admissible to show that the injuries to the child were missible unless the defendant first introduces evidence
intentional rather than accidental, State v. Tanner, 675 of his own good character. See Fed. R. Evid. 404(a)("Evi-
P.2d 539, 543 (Utah 1983)("the pattern of abuse is rele- dence of a person's character or a trait of his character is
vant to show that someone injured the child intentionally, not admissible for the purpose of proving that he acted in
rather than accidentally."); or to show that "the parent's conformity therewith on a particular occasion ..."). Since
explanation of the child's injuries is a fabrication." United the defendants in these cases had not introduced char-
States v. Bowers, 660 F.2d 527, 529 (5th Cir. 1981). Many acter evidence, the courts have excluded expert testimo-
courts have permitted this type of expert testimony. E.g., ny concerning the battering parent profile:
State v. Durfee, 322 N.W.2d 778, 783-84 (Minn. 1982); [U]nless a defendant has placed her character in issue
State v. Holland, 346 N.W.2d 302, 307-08 (S.D. 1984); or has raised some defense which the battering parent
Annat., Admissibility of Expert Medical Testimony on syndrome is relevant to rebut, the state may not
Battered Child Syndrome, 98 A.L.R.3d 306 (1980). introduce evidence of the syndrome, nor may the state
In contrast, the battering parent profile involves the introduce character evidence showing a defendant's

3
 personality traits and personal history as it$ found~tion two-phase process - an acute phase and a long-term
for demonstrating the defendant has the characteris- reorganization process. Impact reactions in the acute
tics of a typical battering parent. Sanders v. State, 251 phase involve either an "expressed style" in which fear,
Ga. 70, 76, 303 S.E.2d 13, 18 (1983). anger and anxiety are manifested, or a "controlled style"
Accord State v. Durfee, 322 N.W.2d 778, 785 (Minn. in which these feelings are masked by a composed or
1982); State v. Loebach, 310 N.W.2d 58, 64 (Minn. 1981}. subdued behavior. Somatic reactions include physical
Other courts have held such testimony inadmissible trauma, skeletal muscle tension, gastrointestinal irritabili-
because it lacks probative value and entails a risk of ty, and genitourinary disturbance. In addition, a wide
unfair prejudice. As one court has noted, such "evidence gamut of emotional reactions, ranging from fear, humilia-
invites a jury to conclude that because the defendant has tion, and embarrassment to anger, revenge, and self-
been identified by ari expert with experience in child blame are exhibited, The second phase, the reorganiza-
abuse cases as a member of a group having a higher tion phase, typically begins two to six weeks after the
incidence of child sexual abuse, it is more likely the attack, andjs.a Qer:!9_cl_inwhich the victim attempts to
defendant committed the crime." State v. Maul, 35 Wash. reestablish her life. This period is characterized by motor
App. 287, 293, 667 P.2d 96, 99 (1983). Accord Duley v. activity, such as changing residences, changing tele-
State, 56 Md. App. 275,281,467 A.2d 776,780 (1983). phone numbers, or visiting family members. Nightmares
and dreams are common during this phase. In addition,
None of the reported cases has explicitly excluded
victims often suffer rape-related phobias, such as fear of
evidence of the profile on the ground that it is unreliable. being alone, fear of having people behind them, and
One court, however, indicated that it would reconsider its difficulties in sexual relationships. Burgess & Holmstrom,
decision to exclude profile evidence if "further evidence Rape Trauma Syndrome, 131 Am. J. Psychiatry 981,
of the scientific accuracy and reliability of syndrome or 981c84 (1974}.
profile diagnoses can be established." State v. Loebach,
310 N.W.2d 58, 64 (Minn. 1981}. Numerous other studies elaborated on the initial
The Maine Supreme Court has held expert testimony research, sometimes confirming the earlier studies and
on the battering parent profile admissible. The evidence, sometimes adding to them. The focus of this research,
however, was offered by the defense in this case. In State however, was to understand the victim's reactions in
v. Con Iogue, 474 A.2d 167 (Me. 1984}, the defendant order to provide assistance to the victim. The focus was
attempted to show that the mother of the child, and not not to evaluate a victim's reactions in order to establish
he, had injured the child. The mother had initially admit- the fact that a rape had occurred, which is how RTS is
ted that she had injured the child but later recanted and sometimes used at trial. The legal commentators
testified as a prosecution witness. A prosecution expert disagree about the value of RTS for this latter purpose.
testified that the child was a victim of the battered child Some believe that RTS evidence should be admissible.
syndrome and on cross-examination stated that the See Massaro, Experts, Psychology, Credibility, and Rape:
mother had admitted striking the child. The defense, The Rape Trauma Syndrome Issue and Its Implications for
however, was preciiJ<:led from eliciti_ngadditional testimo- Expert Psychological Testimony, 69 Minn. L. Rev. 395
ny from the expert which would have shown that the (1985); Ross;-TheGverlooked Expert in Rape Prosecu-
mother had also admitted that she herself had been tions, 14 U. Tol. L Rev. 707 (1983); Comment, Expert
abused and that abused children often become abusive Testimony on Rape Trauma Syndrome: Admissibility and
parents. The Maine Supreme Court reversed, holding Effective Use in Criminal Rape Prosecution, 33 Am. U.L.
that the evidence was relevant to show that the mother Rev. 417 (1984). Others question the scientific basis for
and not the defendant had committed the crime: "[A] RTS evidence. One commentator, after surveying the
description of battered child syndrome and the likelihood literature, concluded that "definitional problems, biased
that [the mother's] own history of child abuse would research samples, and the inherent complexity of the
predispose her to abuse her own child, would have phenomenon vitiate all attempts to establish empirically
allowed the jury to weigh the credibility of [the mother's] the causal relationship implicit in the concept of a rape
confession against the credibility of her later retrac- trauma syndrome." Note, Checking the Allure of
tion."ld. at 173. Increased Conviction Rates: The Admissibility of Expert
Testimony on Rape Trauma Syndrome in Criminal
RAPE TRAUMA SYNDROME Proceedings, 70 Va. L. Rev. 1657, 1678 (1984). Some of
The phrase rape trauma syndrome (RTS) was coined the research problems include (1) unrepresentative
by Burgess and Holstrom to describe the behavioral, samples, (2) the failure to distinguish between victims of
somatic, and psychological reactions of rape and rapes, attempted rapes, and molestation, and (3) the fail-
attempted rape victims. Burgess & Holmstrom, Rape ure to account for individual idiosyncratic and incident-
Trauma Syndrome, 131 Am. J. Psychiatry 981 (1974). See specific reactions. /d. at 1678-80.
also Burgess, Rape Trauma Syndrome, 1 Behav. Sci. &
Law 97 (Summer 1983}. Rape trauma.syndrome can be Admissibility
viewed as a type of post-traumatic stress disorder. See The courts have divided on the admissibility of RTS
generally Erlinder, Paying the Price for Vietnam: Post- evidence to establish the fact of rape, i.e., lack of
Traumatic Stress Disorder and Criminal Behavior, 25 consent. See Annat., Admissibility, at Criminal Prosecu-
B.C.L. Rev. 305 (1984}; Symposium, Post-Traumatic Stress tion, of Expert Testimony on Rape Trauma Syndrome, 42
Disorders, 1 Behav. Sci. & Law 7-129 (Summer 1983). A.L.R.4th 879 (1985). The Minnesota Supreme Court has
Based on interviews with 146 women, Burgess and ruled that "[r]ape trauma syndrome is not the type of
Holmstrom found that victims usually progress through a scientific test that accurately and reliably determines

4
 whether a rape has occurred." State v. Saldana, 324 · 922-23 (Mont. 1984); State v. Whitman, 16 Ohio App. 3d
N.W.2d 227, 229 (Minn. 1982). Accord State v. McGee, 246, 247, 475 N.E.2d 486, 488 (1984).
324 N.W.2d 232, 233 (Minn. 1982). See also Allewalt v.
State, 61 Md. App. 503, 516, 487 A.2d 664, 6l0 (1985) References
(limited probative value of RTS evidence outweighed by
For other articles on rape trauma syndrome, see
prejudicial effect), cert. granted, 493 A.2d 351 (1985).
Buchele & Buchele, Legal and Psychological Issues in
Other courts have excluded RTS evidence because it has
the Use of Expert Testimony on Rape Trauma Syndrome,
not been generally accepted by the scientific community.
25 Washburn L.J. 26 (1985); McCord, The Admissibility of
For example, the California Supreme Court lias noted that
Expert Testimony Regarding Rape Trauma Syndrome in
rape trauma syndrome was not devised to determine Rape Prosecutions, 26 B.C. L. Rev. 1143 (1985); Note,
the "truth" or "accuracy" of a particular past event- Rape Trauma Syndrome, 50 Mo. L. Rev. 947 (1985);
i.e., whether, in fact, a rape in the legal sense occurred Comment, The Use of Rape Trauma Syndrome as
- but rather was developed by professional rape Evidence in a Rape Trial: Valid or Invalid?, 21 Wake Forest
coun_selors as a therapeutic tool, to help identify, L. Rev. 93 (1985); Note, The Footprints of Fear: Prosecu-
predict and treat emotional problems experienced by tion Use of Expert Testimony on Rape Trauma Syndrome,
the counselors' clients or patients. People v. Bledsoe, 33 Wayne L. Rev. 179 (1986).
36 Cal. 3d 236, 249-50, 681 P.2d 291, 300, 203 Cal.
Rptr. 450, 459 (1984).
CHILD SEXUAL ABUSE
Thus, according to the court, although generally accept- ACCOMMODATION SYNDROME
ed by the s_cientific community for a therapeutic purpose,
The phrase "Child Sexual Abuse Accommodation
expert testimony on RTS was not generally accepted "to
Syndrome" was coined by Dr. Roland Summit in an arti-
prove that a rape in fact occurred." /d. at 251, 681 P.2d at
cle by that title in 7 Child Abuse & Neglect 177 (1983) to
301, 203 Cal. Rptr. at 460. See also People v. Hampton,
describe five categories of reactions typical of child sexu-
728 P2d 345, 348 (Colo. Ct. App. 1986); State v. Taylor,
al abuse victims. The first two are preconditions to child
663 S.W.2d 235, 240 (Mo. 1984).
s~x~~l abuse; t_he last three are "sequential contingen-
The California Supreme Court, however, apparently ~~e~ th~t_vary 1n both form and degree. The five categor-
approved the admissibility of RTS where the defendant Ies Identified by Dr. Summit are:
suggests to the jury that the conduct of the victim after (1) Secrecy: The child receives the message, either
the incident, such as a delay in reporting the assault, is
explicitly through threats or admonishments or
inconsistent with the claim of rape. In this situation, the
implicitly, that the subject is to be kept secret. An
court wrote, "expert testimony on rape trauma syndrome
aura of danger and secrecy surrounds the inci-
may play a particularly useful role by disabusing the jury
dent(s)./d.181.
ot s?me widely ~eld misconceptions about rape and rape
(2) Helplessness: The imbalance of power that exists
vJctJms, so that 1t may evaluate the evidence free of ...
popular myths." 36 Cal. 3d at 247-48, 681 P.2d at 298, 203 between child and adult makes the child feel power-
Cal. Rptr. at 457. Several courts have admitted RTS less to resist. The feeling of helplessness is
evidence for this latter purpose. E.g., Commonwealth v. increased when the abuser is a trusted friend or
Gallagher, 353 Pa. Super. 426, 433-35, 510 A.2d 735, family member.ld. at 182-83.
7~8~39 (1986) (RTS syndrome admitted to explain why (3) Entrapment and Accommodation: The child who
VJCtJm could Identify defendant four years after assault does not seek or receive intervention learns to live
when she could not do so two weeks later); Perez v. State, with the sexual abuse in order to survive. In addition
653 S.W.2d 878, 882 (Tex. Ct. App. 1983)(in rebuttal to submitting to the sexual abuse, other examples of
ex~ert explained alleged victim's conduct of passive s~rvival mechanisms include turning to imaginary
resistance during rape). fnends~ developing multiple personalities, taking
refuge 1n altered states of consciousness, substance
Other courts, however, have gone beyond this limited
abuse, running away, promiscuity, hysterical
use of RTS evidence and permitted its use to establish
lack of consent. For example, the Kansas Supreme Court phenomena, delinquency, sociopathy, projection of
rage ahd self-mutilation./d. 184-86.
has written:
(4) Delayed, conflicting and unconvincing disclosure:
An examination of the literature clearly demonstrates
that the so-called "rape trauma syndrome" is generally Rarely will the child report incidents of sexual abuse
immediately upon their occurrence. Because of the
accepted to be a common reaction to sexual
assault ... As such, qualified expert psychiatric time lapse before report occurs and the emotional
~pheaval experienced by the child, the disclosure is
testimony regarding the existence of rape trauma
syndrome is relevant and admissible in a case such as likely to contain contradictions and misstatements.
Often the disclosure is greeted by disbelief. /d. at
this where the defense is consent. State v. Marks, 231
186.
Kan. 645, 654, 647 P2d 1292, 1299 (1982).
The Arizona Supreme Court has reached the same (5) Retraction: "Whatever a child says about sexual
abuse she is likely to reverse it." /d. at 188. Particu-
concl~~ion: "[IJf properly presented by a person qualified
larly if the abuser is a family member, the child will
by trammg and experience such as a psychiatrist or
attempt to undo the disintegration of the family
psychologist, ... such evidence is admissible to show
caused by the disclosure. /d.
lack of consent. This testimony would not invade the
province of the jury." State v. Huey, 145 Ariz. 59, 699 P.2d . Typically, testimony concerning the syndrome is
1290, 1294 (1985). Accord State v. Liddell, 685 P.2d 918, Introduced to explainthe contradictory behavior, such as

5
 delayed disclosure or retraction, of child sexual abuse the evidence or determine a fact in issue, and the qualifi-
victims. However, with varying results, experts have cations of the witness.
given opinions relating to whether children lie about Often in child sexual abuse cases, there is no indepen-
sexual abuse (State v. Brotherton, 384 N .W.2d 375, 379 dent evidence that the sexual abuse occurred:
(Iowa 1986) (excluded), Lantrip v. Commonwealth, 713 The sexual offender is often a relative or a trusted adult (
S.W.2d 816, 817 (Ky. 1986) (excluded), State v. Myers, 382
with whom the child spends time alone. Eyewitnesses
N.W.2d 91, 97 (Iowa 1986) (excluded), State v. Raye, 73 to the molestation are therefore rare. In addition, sexu-
N.C. App. 273, 276-77, 326 S.E.2d 333, 335 (1985) (admit-
al abuse is typically a nonviolent crime. Children who
ted)); whether the child is a victim of sexual abuse
are abused by a trusted adult usually are manipulated
(People v. Draper, 105 Mich. App. 481, 485-88, 389 psychologically and do not resist their abusers. Physi-
N.W.2d 89, 92 (1986) (admitted), Allison v. State, 179 Ga.
cal injury can provide valuable medical evidence of the
App. 303, 346 S.E.2d 380, 382-85 (1986) (admitted}, State
sexual abuse, but this evidence often is lacking because
v. Jackson, 239 Kan. 463, 721 P.2d 232, 237-38 (1986) the abuse is committed without force. Furthermore, the
(excluded), State v. Butler, 256 Ga. 448, 349 S.E.2d 684, sexual abuse may involve an act other than penetration
68!5 (1986) (admitted), State v. Fitzgerald, 39 Wash. App.
of the vagina or anus. Crimes such as petting, fondling
652, 656-57, 694 P.2d 117, 1121 (1985) (excluded), State v.
or oral copulation usually do not involve forceful physi-
Kim, 64 Hawaii 598, 601-09, 645 P.2d 1330, 1338-39 cal contact and do not leave physical scars. A lapse of
(1982) (admitted), State v. Lairby, 699 P.2d 1187, 1200-01 time between the sexual abuse and disclosure may
(Utah 1984) (admitted), People v. Roscoe, 168 Cal. App. also contribute to the lack of medical evidence. Note,
3d 1093, 1098-1101,215 Cal. Rptr. 45,48-50 (1985) The Admissibility of Child Sexual Abuse Accommoda-
(excluded for this purpose)); whether a child's behavior is
tion Syndrome in California, 17 Pac. L.J. 1368-69 (1986).
consistent with abuse (Russell v. State, 712 S.W.2d 916,
916-17 (Ark. 1986) (excluded), State v. Lindsey, 149 Ariz. Additionally, the typical response of child sexual abuse
472, 720 P.2d 73, 75-76 (1986) (excluded)); the profile of victims are counter-intuitive in manyJespects. Delayed
the child sexual abuse perpetrator (People v. Wilder, 146 disclosure, conflicting testimony, and retraction suggest
Ill. App. 3d 586, 496 N.E.2d 1182, 1185 (1986) (admitted), fabrication on the part of the child complainant unless an
State v. Maule, 35 Wash. App. 287, 293, 667 P.2d 96, 99 explanation is offered for this anomalous behavior. In
(1983) (excluded for this purpose), Hall v. State, 15 Ark. those cases where there is no independent evidence that
App. 309, 316-17, 692 S.W.2d 769, 773 (1985) (excluded)); the abuse occurred, the jury's determination of the credi-
and even, whether the defendant sexually abused the bility of the child complainant and the defendant will be
child complainant (Keri v. State, 179 Ga. App. 664, 347 dispositive. In the words of one court:
S.E.2d 236, 238 (1986} (admitted), State v. Logue, 372 It would be useful to the jury to know that not just this
N.W.2d 151, 157 (S.D. 1985) (excluded), State v. Jackson, victim but many child victims are ambivalent about the
239 Kan.463, 721 P.2d 232, 237-38 (1986) (excluded)). forcefulness with which they want to pursue the com-
plaint, and it is not uncommon for them to deny the act
Admission ever happenl:l_ci. Explaining this superficially bizarre
Most of the courts which have considered the admissi- behavior by identifying its emotional antecedents could
bility of child sexual abuse accommodation syndrome help the jury better assess the witness' credibility. State
evidence have permitted experts to describe and explain v. Middleton, 294 Or. 427, 436, 657 P.2d 1215, 1220 (1983).
typical reactions of child sexual abuse victims. United Another court wrote:
States v. Azure, 801 F.2d 336, 340-41 (8th Cir. 1986); Unit- We cannot assume that the average juror is familiar
ed States v. Binder, 769 F.2d 595, 602 (9th Cir. 1985); with the behavioral characteristics of victims of child
State v. Lindsey, 149 Ariz. 472, 720 P.2d 73, 74-76 (1986}; molesting. Knowledge of such characteristics may well
People v. Roscoe, 168 Cal. App. 3d 1093, 1098-1101,215 aid the jury in weighing the testimony of the alleged
Cal. Rptr. 45, 48-50 (1985); State v. Kim, 64 Hawaii 598, child victim. Children who have been the victims of
607, 645 P.2d 1330, 1338 (1982); State v. Myers, 382 sexual abuse or molestation may exhibit behavioral
N.W.2d 91, 97 (Iowa 1986); State v. Myers, 359 N.W.2d patterns (e.g. recantation, conflicting versions of
604, 609-610 (Minn. 1984); State v. Middleton, 294 Or. events, confusion or inarticulate descriptions) which
427, 432-38, 657 P.2d 1215, 1219-21 (1983); State v. jurors might attribute to inaccuracy or prevarication,
Petrich, 101 Wash. 2d 566, 573-76, 683 P.2d 173, 178-80 but which may be merely the result of immaturity,
(1984). psychological stress, societal pressures or similar
The admissibility of expert testimony concerning child factors as well as of their interaction. Jurors, most of
sexual abuse accommodation syndrome is analyzed whom are unfamiliar with the behavioral sciences, may
under Federal Rule of Evidence 702 or the state equiva- well benefit from expert testimony of the general type
lent, which provides: offered in the present case ... State v. Lindsey, 149
If scientific, technical, or other specialized knowledge Ariz. 472, 720 P.2d 73, 74-75 (1986).
will assist the trier of fact to understand the evidence or
However, the Arkansas Supreme Court excluded an
to determine a fact in issue, a witness qualified as an
opinion that the complainant's statements were consis-
expert by knowledge, skill, experience, training or
tent with sexual abuse, because the evidence was not
education, may testify thereto in the form of an opinion
beyond the jury's ability to understand and draw its own
or otherwise.
conclusions. Russell v. State, 289 Ark. 533, 712 S.W.2d
The keys to admissibility under Rule 702 are the likeli- 916, 917 (1986). Two facts distinguish Russell from the
hood that the testimony will assist the jury to understand other cases which admitted similar testimony. First, the

6
 testimony came from the state's first witness and on expert's opinion would not be helpful. In the words of the
direct examination. Thus, the defendant had not had Arizona Supreme Court:
even the opportunity to attack the complainant's credibili- Thus, even where expert testimony on behavioral
ty. Second, it does not appear that the child complainant characteristics that affect credibility or accuracy of
had displayed the bizarre behavior of the type requiring observation is allowed, experts should not be allowed
explanation. to give their opinion of the accuracy, reliability or credi-
The conditions of admissibility have not yet developed bility of a particular witness in the case being tried ...
sufficiently to provide well-defined guidelines. For Opinion evidence on who is telling the truth in cases
instance, whether testimony on child sexual abuse such as this is nothing more than the expert's opinion
accommodation syndrome will be permitted only after on how the case should be decided ... [SJuch testimo-
the credibility of the complaining witness has been ny is inadmissible, both because it usurps the jury's
attacked is not clear. However, the nature of the child traditional functions and roles and because, when
sexual abuse defense is a denial and necessarily entails given insight into the behavioral sciences, the jury
an attack on the credibility of the complaining witness' needs nothing further from the experts. State v. Lind-
testimony. sey, 149 Ariz. 472, 720 P.2d 73, 76 (1986).
At least one court of appeals has limited the admissi- In addition to Federal Rules of Evidence 702 and 704,
bility of child sexual abuse accommodation syndrome some courts have considered the effect of Federal Rule
evidence to circumstances similar to those presented in 608. United States v. Azure, 801 F.2d 336, 341 (8th Cir.
the state supreme court case in which it was held admis- 1986); State v. Heath, 316 N.C. 337, 341 S.E.2d 565, 567-68
sible. In State v. Hall, 392 N.W.2d 285 (Minn. App. 1986), (1986). Rule 608 limits the form which rehabilitation of
the Minnesota Court of Appeals interpreted State v. credibility may take to opinions as to the witness' charac-
Myers, 359 N.W.2d 604 (Minn. 1984), to permit child ter for truthfulness. Thus, Rule 608 precludes an expert
sexual abuse accommodation syndrome evidence only from testifying that a witness is telling the truth on a par-
"in cases involving (1) the intra-familial sexual abuse (2) ticular occasion.
of a young child where (3) the expert's knowledge would However, in State v. Kim, 64 Hawaii 598, 645 P.2d 1330
help the jury to evaluate the credibility of the (1982), the Hawaii Supreme Court permitted an expert to
complainant." State v. Hall, 392 N.W.2d 285, 289 (Minn. testify that he found the compiaining witness believable.
App. 1986), rehearing granted. The court analyzed the admissibility of the testimony
People v. Roscoe, 168 Cal. App. 3d 1099, 215 Cal. Rptr. under Rules 403 and 702 and admitted the testimony
45 (1985), analogized child sexual abuse accommoda- because its probative value outweighed its prejudicial
tion syndrome to rape trauma syndrome evidence, and effect, and the testimony would be helpful to the jury. It
limits expert testimony to rehabilitate the complainant's should be noted that even the Hawaii Court expressed
credibility "to a discussion of victims as a class, support- some discomfort in permitting the expert to testify that he
ed by references to literature and experience (such as an found the complaining witness believable: "The opinion,
expert normally relies upon) and does not extend to in itself, appears to encroach upon the heart of the jury's
discussion and diagnosis of the witness in the case at f(.!nction of assessing credibility." /d. at 609, 645 P.2d at
hand." /d. at 1100, 215 Cal. Rptr. at 50. Accord United 1338. The court, however, evidently found that the limita-
States v. Binder, 769 F.2d 595, 602 (9th Cir. 1985). tions on such opinion testimony were more a matter of
form than substance, stating, "we hesitate to simply
Exclusion exclude all such testimony insofar as it may, upon occa-
Many of those courts that admit expert testimony sion, serve the simple purpose of clarifying and consoli-
explaining or describing typical reactions of child sexual dating the gist of the expert's testimony, thereby avoiding
abuse victims exclude conclusions drawn by the experts 'awkward and confusing circumlocutions.' " /d.
as to whether the children involved are telling the truth, In State v. Butler, 256 Ga. 448, 349 S.E.2d 684, 685-86
whether the children involved are victims of sexual (1986), a pediatrician was permitted to testify that, based
abuse, and whether children in general lie about sexual on a physical examination of the child and statements
abuse. United States v. Azure, 801 F.2d 336, 340-41 (8th made by the child to the pediatrician, the child was a vic-
Cir. 1986); State v. Lindsey, 149 Ariz. 472, 720 P.2d 73, tim of sexual abuse. This case is distinguishable from the
76-77 (1986); People v. Roscoe, 168 Cal. App. 3d 1093, others discussed in that the expert was a pediatrician, and
1099-1101, 215 Cal. Rptr. 45, 50 (1985); State v. Myers, the opinion was based in part on a physical examination
382 N.W.2d 91, 95-97 (Iowa 1986); State v. Jackson, 239 of the child which revealed evidence of sexual abuse.
Kan. 463, 721 P.2d 232, 237-38 (1986); State v. Myers, 359
N.W.2d 604, 611 (Minn. 1984); State v. Middleton, 294 Or. Related Issues
427, 438, 657 P.2d 1215, 1221 (1983). An issue related to child sexual abuse accommodation
The reasoning the courts use to exclude expert syndrome is whether an expert should be permitted to
testimony on the issue of credibility is that such conclu- testify that the defendant fits a child sexual abuser
sions usurp the tact-finding/credibility determining func- profile, or exhibits characteristics identified with higher
tion ot the jury. Federal Rule of Evidence 704 permits incidence of child sexual abuse. Hall v. State, 15 Ark.
some opinion evidence that embraces ultimate issues of App. 309, 692 S.W.2d 769 (1985); People v. Wilder, 146 Ill.
tact. However, Rule 704 must be read in conjunction with App. 586, 496 N.E.2d 1182, 1185 (1986); State v. Petrich,
the requirement of Rule 702 that the opinion be helpful to 101 Wash. 2d 566, 683 P.2d 173 (1984). Such testimony is
the trier of fact. Because there is no proven method for subject to the balancing analysis of Federal Rule of
determining whether a witness is telling the truth, the Evidence 403, and is excluded if the court determines

7
tnanlie prejudicial effect of identifying the defendant as a About Child Complainants in Sexual Abuse Prosecutions:
member of a class with a higher rate of child sexual A Foray into the Admissibility of Novel Psychological
abuse outweighs the probative value of the testimony. In Evidence, 77 J. Grim. L. & Criminology 1 (1986); Summit,
Hall v. State,J5 Ark. App. 309, 316-17, 692 S.W.2d 769, The Child Sexual Abuse Accommodation Syndrome, 7 l.
773 (1985), and State v. Petrich, 101 Wash. 2d 566, 576, Child Abuse & Neglect 177 (1983); Note, The Admissibility 1!
683 P.2d 173, 180 (1984), the testimony which matched of "Child Sexual Abuse Accommodation Syndrome" in
defendant's characteristics with traits of child sexual California Criminal Courts, 17 Pac. L.J. 1361 (1986); Note,
abusers was deemed overly prejudicial and was, there- The Unreliability of Expert Testimony on the Typical
tore, excluded. Characteristics of Sexual Abuse Victims, 74 Geo. L.J. 429
(1985); Wells, Child Sexual Abuse Syndrome: Expert
' Testimony- To Admit or to Not Admit, 57 Fla. B.J. 672
References
(December 1983); A.B.A. National Legal Resource
For articles on the child sexual abuse accommodation CenterforGhild Advocacy and Protection, Child Sexual
syndrome, see McCord, Expert Psychological Testimony Abuse and the Law. (J. Bulkley ed. 1981).