A Linn County prosecutor is proposing legislation that would allow expert testimony in sexual assault cases to address the many “misconceptions” about victims — an issue highlighted during U.S. Supreme Court Justice Brett Kavanaugh’s confirmation hearings — to help jurors better understand how victims react to trauma.
First Assistant Linn County Attorney Nick Maybanks said the discussion following Christine Blasey Ford’s testimony before the Senate Judiciary Committee, in which she accused Kavanaugh of sexually assaulting her at a party in the early 1980s, brought out some “dangerous” misconceptions about how victims should act and report such crimes.
Maybanks thinks some of the progress made over the years — in getting the public and jurors to understand that sexual assault survivors may not react by crying or that they may not have physical scars but instead have psychological scars — is now threatened.
“There is so much victim bias — about how they are supposed to act or behave and blaming the victim for not reporting it,” he said.
Maybanks has been prosecuting sexual assault cases for the past 20 years and said he has come to understand some basic concepts or behaviors of victims and abusers by consulting with victim advocates, forensic interviewers, medical experts and law enforcement.
A lot of time and work goes into such cases to get to the truth, Maybanks said.
Maybanks, a member of the Iowa County Attorneys Association’s legislative committee, had proposed the statute to clarify the use of expert witnesses in sexual assault cases just before the September Kavanaugh hearings,
The hearings, he said, confirmed the need for a change in the law.
The proposed statute still is being refined, but it would basically clarify what is allowed into testimony, Maybanks said.
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The status of Iowa law right now is unclear, with judges deciding if supporting testimony is relevant. Some judges have not allowed expert testimony because, he said, they think it can be viewed as “vouching” for the victim’s credibility.
Two of the “myths” that stood out to him from the Kavanaugh hearings were:
• Sexual abuse is immediately disclosed in full to law enforcement immediately after it occurs.
• A suspect’s denial immediately turns a sexual assault case into “he-said, she-said” and, therefore, no decision can be reached.
In the majority of his adult sexual abuse and assault cases, disclosure is almost always delayed and when the victim tells someone, it’s usually a friend, family member or a counselor, not law enforcement, Maybanks said. The victim may reveal the abuse intermittently and over time.
An expert witness, he said, could testify about how victims don’t report out of fear, embarrassment, shame and humiliation.
Many victims are afraid they may not be believed, he noted.
In his experience, a victim’s statement is also heavily scrutinized, as it should be, but a suspect’s statement is rarely scrutinized in the same way because a suspect is expected to deny an accusation, Maybanks said.
The victim’s action or reaction on the witness stand also is scrutinized, and if the victim isn’t tearful or upset, as most think they should be, then that goes against the victim’s credibility.
In a recent sexual assault case where the defendant was acquitted, Maybanks said he talked to a juror a few days after the verdict, and the juror said he didn’t like the victim and felt sorry for the defendant, who cried while testifying.
“Sometimes, it’s a moral compromise for the jury,” Maybanks said. “They believe that sexual assault occurs and may believe the victim but not beyond a reasonable doubt.”
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Again, an expert — such as an investigator who has received substantial training on interrogation, assessing credibility and interviewing — could testify about how they have been trained to detect signs of deception, Maybanks said.
Some of these elements can be discussed during jury selection, but an expert, supported by science and experience, could testify and possibly “even the playing field,” he added.
Maybanks said the number of sexual assault cases his office prosecutes are only a portion of those referred because there are credibility issues, proof problems or lack of corroboration and, sometimes, victims are unwilling to testify.
“But it doesn’t mean the sexual assault didn’t happen,” Maybanks said. “It’s just that we don’t have enough evidence to prosecute.”
Of the charges that are filed, he said, most end up in plea agreements because of issues like those.
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