1. DEMYSTIFYING VICTIM COUNTERINTUITIVE BEHAVIOR IN ADMINISTRATIVE HEARINGS
“The great enemy of the truth is very often not the lie-deliberate, contrived and dishonest-but the myth-persistent, persuasive and unrealistic.” (JFK)

3. The Myths Most perpetrators are strangers
“Real” victims report promptly
“Real” victims scream or forcibly resist
“Real” victims act like victims
If an alleged victim recants, that means he/she was lying

4. Counterintuitive Behaviors Defined
Behaviors that conflict with the public’s expectations of how victims “should” behave
Represent common victim responses
If left unexplained, may undermine the victim’s credibility in the eyes of the factfinder

5. Expert Testimony to Explain Counterintuitive Behavior
“[T]he victim’s behavior will not necessarily undermine his or her credibility if an expert can explain that such patterns of counterintuitive behavior often occur in sexual abuse cases.” -U.S. v. Rynning, United States Court of Appeals for the Armed Forces 1998

6. Purpose of Expert Testimony
Provide an accurate context in which the factfinder can evaluate the victim’s behavior by:
Dispelling myths and misperceptions
Explaining common victim responses
Purpose is not to prove that abuse occurred

7. Effects of Expert Testimony
Mock jurors have provided more guilty verdicts when experts testified about the general dynamics of sexual assault and its effects on victims
Expert testimony focused on behaviors relevant to the case more influential than general information
Expert testimony more impactful when provided early in trial

8. Step 1
Identify the Behavior

9. Identify the Behavior
Review all the evidence for descriptions of victim behavior that may appear counterintuitive to the factfinder
Consider consulting an expert to help identify counterintuitive behaviors and develop a strategy
Talk to the victim
Determine if expert testimony is the most effective method of explaining the victim’s behavior

10. Determine Admissibility of Expert Testimony
Step 2
Determine Admissibility of Expert Testimony

11. Admissibility
Expert testimony must (1) come from a qualified expert, (2) be reliable, (3) aid the factfinders in evaluating and understanding matters not within their common experience, and (4) have probative value that outweighs its prejudicial value
All 50 states allow expert testimony to explain victim behavior in sexual assault cases
Rules are typically relaxed in administrative proceedings

12. Limitations
Some jurisdictions limit only to rebutting those behaviors raised by defense; others do not require defendant to attack victim’s credibility before allowing expert testimony
Expert must not state an opinion regarding the credibility of any witness, including the victim, or whether the victim was abused
Some jurisdictions limit or exclude testimony concerning RTS, PTSD and/or CSAAS

13. Step 3
Explain the Behavior

14. Choose the Most Effective Expert
Psychiatrists/psychologists/psychological counselors
Social Workers
Victim Advocates
Rape Crisis Center Counselors
Sexual Assault Nurses
Law Enforcement Officials
Avoid someone who has treated the victim

15. Qualify the Expert
Must be qualified by knowledge, skill, experience, training or education
Most effective qualification is extensive experience working with or observing victims
Do not offer as an expert in “counterintuitive behavior”
Examples of areas in which an expert may be qualified: “common sexual violence myths”; “common victim responses to sexual violence ”; “common victim behaviors in sexual violence cases”; “common victim and offender dynamics”

16. General vs. Specific Testimony
Expert focuses on dynamics of sexual violence and common victim behaviors that are relevant to the case
Based on research and/or professional experiences with victims
Expert does not interview the victim or discuss the victim’s specific behaviors
Objective/fact-based
Less vulnerable to attack
Expert relates victim’s specific behaviors to typical behavioral patterns (i.e., victim’s behavior is consistent with that of other victims)
Behavior may be described in terms of a syndrome such as RTS, PTSD or CSAAS (i.e., victim suffers from a syndrome or exhibits behavior consistent with someone who suffers from a syndrome)
Exposes victim to examination by defense expert
Subjective/easily countered by defense expert
Pathologizes victim (“See, she is crazy!”)
More vulnerable to attack

17. Other Strategies Have victim explain behavior Demeanor testimony
Prior consistent statements
Expert testimony concerning grooming

18. Resources
“Introducing Expert Testimony to Explain Victim Behavior in Sexual and Domestic Violence Prosecutions” Jennifer G. Long, National District Attorneys Association (2007)
“Victim Responses to Sexual Assault: Counterintuitive or Simply Adaptive?” Patricia L. Fanflik, NDAA (2007)

19. Resources
“The Use of Expert Witnesses in Cases Involving Sexual Assault” Kimberly A. Lonsway, Ph.D. (2005)
“She Didn’t Scream, So She Must Have Wanted It: Explaining Counterintuitive Victim Behavior” A. Ann Ratnayake-The Voice, Volume 4, Number 2, July 2016