New York Criminal Lawyer Blog
The Facts:
Defendant is charged with two counts of grand larceny in the third degree arising out of a homosexual incident between the complainant and defendant.
The People allege that the incident was consensual in nature and that defendant thereafter extorted money from the complainant by threatening to expose him as a homosexual and to bring charges of homosexual rape.
Defendant contends that the complainant in fact raped him and that defendant’s subsequent actions were lawful efforts to obtain compensation for the wrong done to him.
The People concede that New York law permits expert testimony of rape trauma syndrome without a Frye hearing. However, the People argue, assuming the truth of defendant’s factual contentions, that rape trauma syndrome evidence is inadmissible without a Frye hearing because defendant was sodomized and not raped; that there is no precedent in New York or in any other jurisdiction for accepting expert testimony of a male sexual victimization syndrome; and that because the victim is male, defendant’s proffered testimony would be, at best, a variation on rape trauma syndrome, his reaction to sexual assault would be different from that of a female victim, and the scientific acceptance of such testimony would need to be tested.
Defendant asserts that male victims of sexual assault suffer essentially the same posttraumatic stress symptoms as do female rape victims and that disparate treatment of defendant’s proposed expert testimony would deny him equal protection of law.
The Issue:
Whether or not a male defendant who has been sexually assaulted can introduce expert testimony at trial regarding rape trauma syndrome, which defendant exhibited symptoms of that explains why defendant failed to report a sexual assault to the police, without first establishing that such testimony has attained acceptance within the scientific community.
The Ruling:
Pursuant to the Frye rule, which governs in New York State, expert testimony relating to scientific evidence is admissible at trial only if it is generally accepted as reliable by the relevant scientific community. However, a Frye hearing to determine acceptance in the scientific community is not needed in every case in which scientific evidence is proffered. In a similar case, the Court of Appeals affirmed convictions based on drug test results admitted at trial, finding that neither expert testimony nor detailed findings by the scientific community are essential before scientific tests or procedures are recognized. The court may find scientific tests reliable based on the general acceptance of the procedures as shown through legal writings and judicial opinions.
In another similar case, New York’s highest court analyzed the scientific literature on rape trauma syndrome and held that although there is no single typical profile of a rape victim, the relevant scientific community has generally accepted that rape is a highly traumatic event that will, in many women, trigger the onset of certain identifiable symptoms. The case affirmed the propriety of admitting expert testimony concerning the syndrome at a rape trial to explain the conduct of the victim after the attack.
Should the aforesaid ruling be applied in a case where the victim of the sexual assault is a man? Do the case law, legal writings and scientific literature support the conclusion that the scientific community accepts a male rape trauma syndrome about which expert testimony might assist a jury?
For purposes of the instant motion, the Court must assume that the facts are as defendant alleges and that the defendant was sexually assaulted.
Penal Law defines rape in the first degree as forcible intercourse between a man and a woman. Deviate sexual intercourse by force where a man is the victim of another man is proscribed by another provision of the Penal Law defining sodomy in the first degree. However, it is clear that the rape statute does not define the victims who may claim to have suffered rape trauma syndrome in the courts of New York. Rape trauma syndrome is a therapeutic and not a legal concept. Although the therapeutic concept of a posttraumatic stress syndrome associated with sexual assault was developed by studying women rape victims, New York courts have held that other victims of sexual assault may exhibit an analogous syndrome. Female children who are the victims of rape or attempted rape may suffer from what scientists label as the “child sexual abuse syndrome” which, under appropriate circumstances, can be explained by expert testimony.
By approving the admission of expert testimony as to the syndrome without a Frye hearing, the appellate courts have implicitly found the syndrome generally accepted in the scientific community.
Judicial acceptance of a syndrome associated with sexual assault is not limited to cases involving rape or attempted rape. Expert testimony of child sexual abuse syndrome has been accepted in cases where the victim is male as well.
In one case, the court convicted defendant of aggravated sexual abuse, sodomy in the first degree and second degree based on sexual assault of a male child. The Third Department approved the admission of testimony by a child therapist to explain the victim’s behavior.
New York courts have not addressed the issue of the applicability of rape trauma syndrome to adult male victims of sexual assault. It would appear that the question has arisen only in Minnesota, where, on the appeal of a murder conviction, the Minnesota Supreme Court held that the trial court did not err in excluding expert testimony on male sexual victimization syndrome. The trial court had held a pre-trial hearing and found that the defendant’s witness did not establish that the theory of male sexual victimization reached the required level of scientific acceptance.
Nonetheless, the Minnesota case is of limited value in deciding the issue before the herein Court. At the time, rape trauma syndrome had not been recognized as scientifically accepted in Minnesota. No review of the scientific literature was undertaken and the trial court based its ruling on the testimony of one psychologist/family therapist. The appellate court paid deference to the trial court’s broad discretion to make evidentiary rulings and found that the opinion of the proposed expert would not have assisted the jury in any case. Moreover, the case was decided in 1991 and the subsequent body of research since that time further diminishes its persuasive value.
Notably, a review of literature describing the effect of sexual assault on men reveals that male victims, both heterosexual and homosexual, exhibit a well-defined trauma syndrome similar to and parallel to that found in female victims of rape. No article or study has been cited by the People that suggests otherwise.
Moreover, the statistics on male sexual assault tell only part of the story. Rape is a notoriously under-reported crime and male victims of sexual assault are even less likely than female victims to report their assault. Not surprisingly, studies of the effects of sexual assault on men are based on relatively small numbers of victims.
Male rape trauma syndrome is described as a common reaction in which depression, anger, guilt, fear of being homosexual, sexual malfunctioning, flashbacks and suicidal feelings are experienced from weeks to years after assault. Like women, male rape survivors experience a disruption in their biopsychosocial functioning. Studies have shown that the reactions and feelings expressed by male victims of sexual assault were found to be similar to those of females traumatized by rape.
A common characteristic of male and female rape victims is delay in reporting the crime. In one study of male victims, most men did not report the sexual assault to anyone in the immediate aftermath. A study comparing survivors of male sexual assault with Vietnam veterans found common characteristics of trauma and noted that delayed response has been observed in a significant number of male rape survivors.
There are other similarities between male and female sexual assault. A number of authorities state that male sexual assault, as in the case of female rape, is an expression of anger, power, dominance and control over another.
Further, there are studies that comment on differences between male and female victims of sexual assault. Men are likely to be abused more violently and by multiple attackers, to sustain more serious injuries, to feel more stigmatized and, as noted, supra, men are less likely to report the crime against them. Male victims appear to be more reluctant to report their assaults for a number of reasons. Heterosexual male victims may feel that their sexual orientation is called into question and homosexual male victims fear that their sexual preference may be revealed. There is a societal belief that a man should be able to defend against sexual assault. Homosexuals may perceive the police to be unsympathetic.
Also, commentators have found two emotional styles of response to the trauma of sexual assault. Fifty percent of women in a well-known study reacted in a controlled style and were calm, composed, subdued, and withdrawn. Fifty percent were found to react in an expressive style with crying, sobbing, smiling, restlessness. By contrast, in 79% of the male sample studied exhibited a controlled reaction. The predominance of a controlled reaction among men may reflect society’s view that it is unmanly for men to express emotion.
Clearly, the differences noted in the literature between male and female victims of sexual assault demonstrate that male victims tend to be more traumatized, less likely to report, and less likely to be openly emotional. Some men may even question their sexual identity. These differences between the reactions of men and women do not cast doubt on the reliability of expert testimony as to male rape trauma syndrome any more than would differences in the reactions of individual female rape victims. The essential and underlying fact remains that victims of trauma suffer predictable psychological harm and that traumatic syndromes have basic features in common. Traumatic events overwhelm the ordinary human adaptations to life. They confront human beings with the extremities of helplessness and terror, and evoke the responses of catastrophe.
In Fact, the American Psychiatric Association in its current Diagnostic and Statistical Manual of Mental Disorders lists sexual assault as one of the extreme traumatic stressors that can result in characteristic symptoms of posttraumatic stress disorder. The response to the traumatic event will involve fear, helplessness, horror, persistent re-experiencing of the traumatic event, persistent avoidance of stimuli associated with the trauma, numbing of general responsiveness and persistent symptoms of arousal. The diagnostic criteria for posttraumatic stress disorder contained in the Diagnostic and Statistical Manual were influential in persuading the court that the scientific community has accepted that rape, as a stressor, can have marked and identifiable effects on a victim’s behavior. Indeed, the Court of Appeals went on to note that victims of rape will often exhibit peculiar symptoms like a fear of men that are not commonly exhibited by victims of other sorts of trauma. Nothing in the peculiar reactions of male victims of sexual assault places them outside the medical definition of posttraumatic stress disorder or diminishes the validity of the conclusion that a syndrome of male sexual victimization is accepted in the scientific community. The scientific literature amply supports the conclusion that expert testimony regarding sexual assaults against men comes within the ambit of the holding as abovementioned.
Here, although the Court need not reach the equal protection issue raised by defendant, the conclusion drawn is consistent with the trend away from gender based classifications. In short, legal authorities, scientific writings, constitutional doctrine and logic all favor acceptance of the principle that expert testimony concerning rape trauma syndrome as applied to male victims is scientifically reliable and may, when appropriate, be admitted to aid a jury in understanding the sequelae of sexual assault against a man.
Henceforth, no Frye hearing is needed and the People’s motion is denied.
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