Petition for Writ of Certiorari — Houser v. United States

Supreme Court brief1993

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IN THE TERRE AR BA

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Suprenve Curt of the United States

OCTOBER TERM, 1993

ALPHONSO QO. HOUSER,

SPECIALIST, United States Army,

¥. Petitioner,

THE UNITED STATES OF AMERICA,

Respondent.

Petition for a Writ of Certiorari to the

United States Court of Military Appeals

PETITION FOR A WRIT OF CERTIORARI

JAMES H. WEISE

Lieutenant Colonel, Judge

Advocate General’s Corps (JA)

United States Army

Defense Appellate Division

5611 Columbia Pike

Falls Church, VA 22041

(703) 756-0580

Counsel of Record

and

FRAN W. WALTERHOUSE

Major, JA

United States Army

DAVID L. THOMAS

Captain, JA

United States Army

ALISON L. BECKER

Captain, JA

United States Army

i eel te ee

QUESTIONS PRESENTED

Whether the use of Rape Trauma Syndrome evidence

in a criminal proceeding violated petitioner’s Fifth Amend-

ment rights to due process of law and a fair trial by (a)

allowing the use of unreliable and Overly prejudicial

scientific evidence in a criminal contest, (b) not limiting

the use of such evidence in proving that the victim was

raped, and (c) encouraging the use of expert testimony

in personalizing evidence of the syndrome to the victim

even though the expert had never conducted an examina-

tion or interview of the victim in the case.

Whether the use of Rape Trauma Syndrome evidence

in a criminal proceeding impairs an accused’s right to

confrontation under the Sixth Amendment, in light of

current “Rape Shield”’ laws.

(i)

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES... iv

OPINIONS BELOW ............. ieielicbatiekice cece 1

TTS ae 2

CONSTITUTIONAL PROVISIONS INVOLVED ......... 2

STATEMENT OF THE CASE... 2

REASONS FOR GRANTING THE WRIT .......___. 4

Ee 18

APPENDIX A

Opinion of the U.S. Court of Military Appeals—

a a SEE SEE FALE RARE Ee la

APPENDIX B

Unpublished Decision of the U.S. Army Court of

Military Review—Houser 0. 24a

(iil)

TABLE OF AUTHORITIES

Cases: Page

Bachman v. Leapley, 953 F.2d 440 (8th Cir. 1992).. 13

Commonwealth v. Gallagher, 547 A.2d 355 (Pa.

| AE Ie NR PM k as Si 5 ann RRR 11

Commonwealth v. Jenkins, Va. 82-761-F (8 Mar.

I ee citi accel ee eee hn 11 )

Commonwealth v. Mamay, 407 Mass. 412, 553

| RI RR aie 0 cas a i 12

Commonwealth v. Zamarripa, 379 Pa. Super. 208,

Be ee ee I een a, il

Farley v. State, 324 So.2d 662 (Fla. 1975) _........... 11

Frye v. United States, 293 F. 1013 (D.C. Cir.

NC Gen ea ee eS ere 4

Gilpin v. McCormick, 921 F.2d 928 (9th Cir.

DE cet a eh ee eee eas 13

Greenberg v. United States, 280 F.2d 472 (1st Cir.

RR Se eee carrie ems /esnN SATE ee ANS eae Op 13

Hilburn v. State, 765 P.2d 1382 (Alaska 1988) _._.. 10

Hali v. State, 692 S.W.2d 769 (Ark. 1985) _............ 10

In Re Pittsburgh Action Against Rape, 489 Pa. 15,

Be Be NE dinette atmos 14

Kruse v. State, 483 So.2d 1383 (Fla. 1986) _.......... 14

People v. Bledsoe, 140 Cal. App.3d 267, 189 Cal.

Rptr. 726 (Ct. App. 1983), aff’d, 681 P.2d 291

tt RNS eR Ceres te se Rk ark Le ae 9,10,13

People v. Hampton, 728 P.2d 345 (Colo. App.

a cr lines 10, 14

People v. Housley, 6 Cal. App.4th 947, 8 Cal.

Ie SO CUED descent ncccenenntcovapersisaniensrensenrsinnens 14

People v. Petrella, 424 Mich. 221, 380 N.W.2d 11

I aaa etree asia haart ie dal aad daecanghdidanic 11

People v. Pullins, 145 Mich. App. 414, 378 N.W.2d

i ieee aie cannons cesbesscaaiansiine 11

People v. Reid, 123 Misc.2d 1084, 475 N.Y.S.2d

Be I, Nes I. siocarn Gesecbcelcancetss iesnatetcnnntestaononsion 12

People v. Taylor, 75 N.Y.2d 277, 552 N.E.2d 131

6 ER TIRRIAR Ti RES Pars Dae 14

Rodriguez v. State, 741 P.2d 1200 (Alaska 1987).. 13

Scadden v. State, 732 P.2d 1036 (Wyo. 1987) ........ 14

ee |

TABLE OF AUTHORITIES—Continued

Simmons v. State, 504 N.E.2d 575 (Ind. 1987) _.....

Spencer v. General Electric Co., 688 F.Supp. 1072

RUINS WANs IE td Gr

State v. Allewalt, 308 Md. 89, 517 A.2d 741 (1986)..

State v. Black, 109 Wash.2d 336, 745 P.2d 12

NE bog ete renee tea ae rer eae

State v. Brodniak, 221 Mont. 212, 718 P.2d 322

RI ai ce ee ere

State v. Bubar, 146 Vt. 398, 505 A.2d 1197 (1985)...

State v. Kim, 64 Haw. 598, 645 P.2d 1330 (1982)..

State v. Goodwin, 573 N.E.2d 895 (Ind. 1991) ......

State v. Hill, 121 N.J. 150 (1990) —....000000 0.

State v. Huey, 145 Ariz. 59, 699 P.2d 1290 (1985)..

State v. Jackson, 97 N.M. 467, 641 P.2d 498

| RR sR ane e tar Mar etna sae ees nv ene fare aR UR RST

State v. LeBrun, 37 Or. App. 411, 587 P.2d 1044

Gs Snes, SEW TR eee te cass ee SO OS BN is: Ree Me Or EPI

State v. Liddell, 685 P.2d 918 (Mont. 1984) _.........

State v. Mackie, 622 P.2d 673 (Mont. 1981) _........

State v. Marks, 231 Kan. 645, 647 P.2d 1292

FRR ame LAAT Speman Hen NR eek Re ee Oe

State v. McCoy, 179 W.Va. 223, 366 S.E.2d 731

6 eae a Bieta A Mea oe IAS ee I PU PIE Se AR

State v. McGee, 323 N.W.2d 232 (Minn. 1982) ......

State v. McQuillen, 239 Kan. 590, 721 P.2d 740

Sf Sey eee eheepincee Nae ARLENE REISS aed tre ON

State v. Middleton, 294 Or. 427, 657 P.2d 1215

4 SCRE Faeyr cS OO Se NEN CORE

State v. Milbradt, 305 Or. 621, 756 P.2d 620

9. | Rg RRRCEIDR meee ponte oe BS VS SEER CDRS, ts OO

State v. Pittman, 174 Wis.2d 255, 496 N.W.2d 74

| A EE Pera rca! ot ee eee ESI OEE ONE eae Oeen

State v. Ross, 152 Vt. 462, 568 A.2d 335 (1989) ....

State v. Saldana, 324 N.W.2d 227 (Minn. 1982) ....

State v. Staples, 120 N.H. 278, 415 A.2d 320

(SRSA ee a rs eee eU aca CER ROIS Oe em

State v. Taylor, 663 S.W.2d 235 (Mo. 1984) (en

I ae eas care Ae Ld Le TAR POM

TABLE OF AUTHORITIES—Continued

Page

State v. Ward, 207 Ill. App.3d 365, 565 N.E.2d 740

1, RD SN NI RP TELE AIR oN UNS esa Ce EL 12

State v. Wheeler, 151 Ill.2d 298, 602 N.E.2d 826

I i aa Pace ee a 12,14

United States v. Barnard, 490 F.2d 907 (9th Cir.

1973), cert. denied, 416 U.S. 959 (1974) 0.00000... 13

United States v. Cameron, 21 M.J. 59 (C.M.A.

I is aesacin ic cnth vadubie desssueibcibuavecedinaseeeeeead cae eT 6

United States v. Carter, 26 M.J. 428 (C.M.A.

I io: essai asst ea talcaeraa a as a eS 7

United States v. Gipson, 24 M.J. 246 (C.M.A.

ET so vnsn5s chs cnamaneonnuansnge dias suueede kde anaes 4

United States v. Houser, 36 M.J. 392 (C.M.A.

IIE Cisdscosicnssiecsiaa senishiasducaneksddnnabissaia nina ae Crea ana passim

United States v. Johnson, 35 M.J. 17 (C.M.A.

sR nee BPR ems x Nee re 8

United States v. Reynolds, 29 M.J. 105 (C.M.A.

UIE conch nics ticles dce-hh laps tetispsunahicteae ebesssananiadeee niacbedeiaiae 7

United States v. Riley, 657 F.2d 1377 (8th Cir.

SE en nee Mame E MC Heys eMEE RAPE Nr Wc kninss te 14

United States v. Rohrer, 708 F.2d 429 (9th Cir.

1983) ........ FOC RE UN ET Ce a LN ne Oe 14

United States v. Peel, 29 M.J. 235 (C. M.A. 1989)... 8

United States v. Scop, 846 F.2d 135, rev’d in part

on reh’g, 856 F.2d 5 (2d Cir. 1988) ........00..0000000... 13

United States v. Sloan, 811 F.2d 1359 (10th Cir.

I ch ead ee ren 10

United States v. Snipes, 18 M.J. 172 (C.M.A.

| RO em eS AID Se Des tsa oe ee eu 6

United States v. Stark, 30 M.J. 328 (C.M.A. 1990)... 8

United States v. Suarez, 32 M.J. 767 (A.C.M.R.

| PERE nr ayn A otra tne nee De SEE 8

United States v. Williams, 583 F.2d 1194 (2d Cir.

1978), cert. denied, 439 U.S. 1117 (1979) ~......... 4

Constitution and Statutes:

United States Constitution Amendment V ................ 2

United States Constitution Amendment VI _............. 2

sain a

vii

TABLE OF AUTHORITIES—Continued

Page

Uniform Code of Military Justice, 10 U.S.C. § 801

et seq.:

Article 120, 10 U.S.C. § 920... 2

Article 134, 10 U.S.C. § 934......... 2

Rules of Evidence:

Military Rules of Evidence et seq.:

a Se oe a er 4

SII casos daa cancitcscenaeseinabdees ikea eed a mieimaataediatdk aden meee 4

GREP EMCO R ERE TOTAL A A EIRENE DT 16

Other Authorities:

American Psychiatric Association, Diagnostic and

Statistical Manual of Mental Disorders 309.81

Se GE, ROUTE sci dikcatenecnsclsbicgenciosmaaneaae iapeamsehialmaiaosin 12

Black, A Unified Theory of Scientific Evidence,

56 Fordham L. Rev. 595 (March 1988) _............. 13

Borgida & Brekke, Psychological Research on Rape

Trials, Ch. 20 (A. Burgess ed.) ............................. 13

Burgess & Holmstrom, Rape Trauma Syndrome,

131 Am. J. Psychiatry 981 (1974) _............02...... 12

Calhoun, Resick & Ellis, Victims of Rape: Re-

peated Assessment of Depressive Symptoms, 50

J. Counseling & Clinical Psychology 96 (1982).. 11, 16

Diamond & Louisell, The Psychiatrist as an Ex-

pert Witness: Some Ruminations and Specula-

tions, 68 Mich. L. Rev. 1335 (1965) —.................. 11

Dwyer, Expert Testimony on Rape Trauma Syn-

drome: An Argument for Limited Admissibility,

63 Wash. L. Rev. 1063 (Oct. 1988) _....... ilasteuen 12

Ennis & Litwack, Psychiatry and the Presumption

of Expertise: Flipping Coins in the Courtroom,

2) a a RG | | econo 11

Faust & Zisken, The Expert Witness in Psychology

and Psychiatry, 241 Sci. 31 (1988) _..................... 11

Giannelli, The Admissibility of Novel Scientific

Evidence: Fyre v. United States, A Half Cen-

tury Later, 80 Colum. L. Rev. 1197 (1980) ....... 4

viii

TABLE OF AUTHORITIES—Continued

Page

Horowitz, Post-Traumatic Stress Disorder, Behav.

ee 9,11

Kilpatrick, Resick & Veronen, Effects of a Rape

Experience: A Longitudinal Study, J. Soc.

BE Fe Ce OIE envecencesccevecccamiceomsscosaeece 11, 16

Massaro, Experts, Psychology, Credibility and

Rape: The Rape Trauma Syndrome Issue and

Its Implications for Expert Psychological Test-

ing, 69 Minn. L. Rev. 395 (1985) ...........000000000..... 11

McCord, Syndromes, Profiles, and Other Mutual

Erotica: A New Approach to the Admissibility

of Nontraditional Psychological Evidence in

Criminal Cases, 66 Or. L. Rev. 19 (1987) ........... 13

C. McCormick, McCormick on Evidence, 29-31 (E.

i SOR: eae er en eR 4

Note, Post-Traumatic Stress Disorder—Opening

Pandora’s Box?, 17 New Eng. L. Rev. 91

EEE sssccoussakixcdeaiaanathadandntoadpeaemameinesenismacdamete 9,12

R.R.L., Chicking The Allure of Increased Convie-

tion Rates: The Admissibility of Expert Testi-

mony on Rape Trauma Syndreme in Criminal

Proceedings, 70 Va. L. Rev. 1657 (Nov. 1984)..passim

Schulz, Trauma, Crime, and Affirmative Defense,

toy Re SF OURS | eee 9,12

T. Szasz, Law, Liberty, & Psychiatry, 123 (1963).. 11

Wilk, Comment: Expert Testimony of Rape

Trauma Syndrome: Admissibility and Effective

Use in Criminal Rape Prosecution, 33 Am. U. L.

mt, Gee See SO ec 12,14

Zisken, Psychological Expert Testimony called Un-

scientific, N.Y. Times (Oct. 11, 1988) ................ 11

IN THE

Sipreme Court of the United States

OCTOBER TERM, 1993

No. -

ALPHONSO QO. HOUSER,

SPECIALIST, United States Army,

. Petitioner,

THE UNITED STATES OF AMERICA,

Respondent.

Petition for a Writ of Certiorari to the

United States Court of Military Appeals

PETITION FOR A WRIT OF CERTIORARI

The petitioner, Alphonso O. Houser, respectfully prays

that a writ of certiorari issue to review the decision of

the United States Court of Military Appeals entered in

this proceeding.

OPINIONS BELOW

The opinion of the United States Court of Military

Appeals is reported at 36 M.J. 392 (C.M.A. 1993)

(Appendix A). The unpublished memorandum opinion

of the United States Army Court of Military Review is

attached (Appendix B).

JURISDICTION

The judgment of the Court of Military Appeals was

entered on April 19, 1993. The jurisdiction of this Court

is invoked under 28 U.S.C. § 1259(3) (Supp. 1992).

CONSTITUTIONAL PROVISIONS INVOLVED

The Constitution of the United States provides:

Amendment V: “No person shall . . . be deprived

. life, liberty, or property, without due process of

ree

Amendment VI: “In all criminal prosecutions, the

accused shall enjoy the right ... to be confronted

with the witnesses against him... .”

STATEMENT OF THE CASE

On April 11 and May 8 and 9, 1989, Specialist [here-

inafter SPC] Alphonso Houser was tried at Fort Camp-

bell, Kentucky, by a general court-martial composed of

officer and enlisted members [hereinafter “the jury”].’

Contrary to his pleas, SPC Houser was convicted of rape

and adultery, in violation of Uniform Code of Military

Justice [hereinafter U.C.M.J.] arts. 120 and 134, 10

U.S.C. §§ 920 and 934 (1982) respectively. The jury

sentenced SPC Houser to a dishonorable discharge, con-

finement for 40 years, forfeiture of all pay and allow-

ances, and reduction to the lowest enlisted pay grade.

The convening authority approved the sentence, but re-

duced the confinement portion from 40 years to 30 years.”

On July 30, 1991, the United States Army Court of Mili-

tary Review set aside the adultery conviction, but reat-

firmed the sentence in its entirety. Thereafter, the United

1 Court-martial members are analogous to jurors.

2The commanding general, who initially convenes the court-

martial, is also the accused’s first avenue of appeal and clemency.

States Court of Military Appeals affirmed the remaining

rape conviction and the sentence.

At trial, the defense counsel representing SPC Houser

objected to the use of Rape Trauma Syndrome [herein-

after RTS] evidence because it was overly prejudicial to

SPC Houser, it confused the jury, placing it in the posi-

tion of making judgments on scientific theory which it was

not prepared to make, and was not relevant to the issue of

guilt because the government’s expert had not examined

the alleged victim. The military judge overruled the de-

fense objection.

On appeal, the United States Army Court of Military

Review ignored the RTS issue and instead focused only

upon the multiplicity of the rape and adultery charges.

The Court of Military Appeals did address the RTS

issue, and indicated that this type of evidence was not so

overlv-prejudicial as to make it inadmissible in courts-

martial. United States v. Houser, 36 M.J. 392, 399-400

(C.M.A. 1993). That court stated that the “reliability”

of the testimony concerning RTS had not been challenged

and concluded that a) RTS could be used for a wide

variety of reasons, and b) there is no requirement that

the expert physically examine the victim prior to testifying

on the merits. /d. at 399.

In a concurring opinion, Judge Gierke disagreed in

part with the majority and opined that although generally

admissible, the use of RTS evidence in the instant case

was too unreliable and prejudicial toward SPC Houser.

Id. at 401-03.°

8’ Judge Gierke, however, concluded without detailed explanation,

that as a result of the other evidence in the case, this error was

harmless.

REASONS FOR GRANTING THE WRIT

Overview

The use of Rape Trauma Syndrome evidence in crim-

inal proceedings is not a well settled issue in this country.

Prosecutors advocate that RTS evidence is both probative

and relevant in corroborating the occurrence of a rape

and hence is a valuable tool in bringing rapists to justice.

The defense bar proffers that evidence of the syndrome is

unreliable, tends to mislead the jury, and improperly bol-

sters the credibility of the alleged rape victim. The de-

fense view centers on the strong belief that RTS is a

dubious psychological device which converts inconsist-

encies in the victim’s story into corroboration of her

truthfulness by making anything the victim says scien-

tifically correct.

These competing philosophies and interests are meas-

ured by trial courts, depending upon the jurisdiction, using

one of three differing standards of admissibility: Frye v.

United States, 293 F. 1013 (D.C. Cir. 1923); United

States v. Williams, 583 F.2d 1194, 1195-96 (2d Cir.

1978), cert. denied, 439 U.S. 1117 (1979); United

States v. Gipson, 24 M.J. 246 (C.M.A. 1987). These

standards for admissibility have in common an insistence

upon reliability * and assurance that probative value will

outweigh prejudicial effect.° The varying outcomes de-

rived from these standards and the lack of any general

4 Both the Feder:’ and Military Rule of Evidence 401 refer to

reliability as a question of relevancy. Legal scholars agree that

“for evidence to contribute to the truth-determining function of

a trial, it must be reliable,” and that is what makes it relevant.

Giannelli, The Admissibility of Novel Scientific Evidence: Frye v.

United States, A Half Century Later, 80 Colum. L. Rev. 1197, 1200

(1980). See also C. McCormick, McCormick on Evidence, 29-31

(E. Cleary ed., 3d ed. 1984).

5 Both Federal and Military Rule of Evidence 403 contemplate

this weighing analysis.

consensus among the jurisdictions give rise to the con-

fusion within the various federal, military, and state

courts on the highly debated issue of the admissibility of

evidence of this syndrome.

SPC Houser respectfully requests that this Court resolve

the confusion by answering the following questions: (a)

whether RTS evidence is inherently so overly-prejudicial

and unreliable that it should be held inadmissible in all

criminal proceedings; and (b) if it is admissible, under

what circumstances should it be used?

Application to United States v. Houser

Statement of Facts

In early August of 1988, Tina Williams, then 15 years

old, was staying with SPC Houser and his family at Fort

Campbell, Kentucky. She was babysitting his four chil-

dren on August 7, 1988 when she asserted that SPC

Houser raped her while she was half-asleep. There were

no other witnesses to this attack; the physical evidence

was inconclusive.

The primary evidence of the rape was the testimony of

Doctor Pamela P. Remer, who was presented as an expert

on rape trauma. The defense predicated its objection to

her testimony on four general arguments: (a) Doctor

Remer “has not seen or diagnosed the alleged victim,

[and] cannot say that she particularly has any symptoms

of rape trauma syndrome.” (b) Doctor Remer’s hypo-

thetical testimony would confuse the jury. (c) Doctor

Remer’s testimony would force the jury to diagnose the

victim based only upon Dr. Remer’s description of the

victim’s symptoms rather than through the use of other

more reliable evidence, and (d) the use of RTC evidence

was more prejudicial than probative of the rape. The

military judge overruled the defense objection and _per-

mitted the testimony.

Doctor Remer’s testimony concerned the six stages of

her model depicting the experiences of a typical rape

victim. With each stage, she fit the facts given by Ms.

Williams into her model through four hypotheticals prof-

fered by the prosecutor.

Doctor Remer indicated that anyone displaying a major-

ity of these symptoms, which she had previously hypo-

thetically personalized to the facts of the instant case, was

suffering from rape trauma syndrome. Doctor Remer

opined that “since the symptoms come from research

on thousands of victims, you can make the reasoned

assessment, that this person has been raped.”’

Doctor Remer had never personally examined any of

the evidence in this case, had not known the victim, much

less tested or evaluated her, nor Gid she have any par-

ticular expertise in the psychology of juveniles.

Analysis of the Decision of the

U.S. Court of Military Appeals

In finding that the RTS evidence presented by Dr.

Remer was admissible, the majority held that the prejudi-

cial effect of the evidence was minimal as compared to its

probative value. Houser, 36 M.J. at 399-400. Further,

that court did not find any requirement that an expert

should examine the victim prior to testifying in court. /d.

The significance of Houser lies in its modification of

previous military law. In United States v. Snipes, 18

M.J. 172 (C.M.A.) 1984) and United States v. Cam-

eron, 21 M.J. 59, (C.M.A 1985), the Court of Military

Appeals took a cautious view of RTS evidence. It had

“grave reservations about the admissibility of an expert’s

opinion that the victim’s behavior after the alleged trauma

demonstrates that [her] account of the trauma must be

true,’ Snipes, 18 M.J. at 180, and stated that “‘an expert’s

qualification to suggest a witness was raped because she

suffers from RTS is at best questionable.” Cameron, 21

M.J. at 65. Those decisions were based, in part, upon

iit ici alanine

the Missouri Supreme Court’s inquiry into the issue in

State v. Taylor, 663 S.W.2d 235, 241 (Mo. 1984) (en

banc).

Nevertheless, the Court of Military Appeals modified

its stance a few years later in United States v. Carter,

26 M.J. 428 (C.M.A. 1988) and United States v.

Reynolds, 29 M.J. 105 (C.M.A. 1989). In those cases,

the court changed its position to reflect a middle ground

approach noting that RTS evidence could only be used

to dispel general cultural myths about rape and prove

lack of consent whenever consent was at issue.

In Houser, consent was not at issue and the evidence

of RTS was not used to clear up general misconceptions

about rape. It was used instead to personalize the char-

acteristics of RTS to the testimony of the alleged victim,

Ms. Williams. The obvious purpose of the RTS evidence

was to prove the existence of the alleged rape by cor-

robating the truthfulness of Ms. Williams’ statement. The

prosecution’s expert accomplished this by systematically

setting up a six stage RTS model, fitting Ms. Williams

into that model through personalized hypotheticals, and

then implicitly opining that when the hypothetical facts

matched up with the model, a rape had been proven in

the case. Hence, the holding in Houser is a departure

from the previous limitations and presents a case for un-

limited use of RTS evidence in criminal cases.

In SPC Houser’s case, RTS evidence effectively bol-

stered Ms. Williams’ dubious credibility by giving an

“aura of infallibility” to the expert’s testimony.

In his concurrence, Judge Gierke criticized the major-

ity Opinion in part and cautioned that there were grave

dangers in allowing RTS evidence to be used without

limitations. He further commented that the expert’s testi-

mony “was unfairly prejudicial, not very probative, and

very misleading.” Houser, 36 M.J. at 401-03.°

Additionally, prior military case law suggests that be-

fore RTS-type evidence is admissible, the expert should

have examined the victim. United States v. Peel, 29 M.J.

235, 241 (C.M.A. 1989); United States v. Stark, 30

M.J. 328 (C.M.A. 1990); United States v. Suarez, 32

M.J. 767 (A.C.M.R. 1991). Houser extended a trend

away from this suggested requirement, which began with

the court’s dicta in United States v. Johnson, 35 M.J. 17,

18 (C.M.A. 1992).

In this case, the prejudice to the accused of not requir-

ing the expert to examine the victim is clear, yet its

impact was never assessed by the Court of Military Ap-

peals. Since the expert witness did not personally examine

the alleged victim, the expert could not make a proper

diagnosis. Nevertheless, she did assert a diagnosis.‘ The

military judge’s instructions to the jury compounded the

error by suggesting that, through hypothetical analysis

and comparison with the expert’s model, the jury could

effectively diagnose and apply RTS to the instant case.

Jurisdictional Diversity and Due Process

The impetus of the problem surrounding RTS evidence

is found in the differing jurisdictional views on its use

and their respective impacts on the Fifth Amendment.

The confusion can best be observed by looking at the

use of RTS evidence throughout both the federal and

state judicial systems.

6To a lesser extent, Judge Wiss, in his concurrence, also cau-

tioned restraint. Houser, 36 M.J. at 401.

7 The expert’s comments were the subject of numerous defense

objections on the grounds of relevancy and reliability.

———e

Jurisdictions Opposing RTS

Many jurisdictions have held that evidence of the syn-

drome is unreliable in judicial proceedings. Specifically,

these courts note:

(a) RTS theory was not developed as a tool for

ferreting out the truth, but was instead a_thera-

peutic technique used to help victims of trauma. It

was never intended for use in judicial, much less

criminal, proceedings.*®

(b) Experts have noted at least nine major scien-

tific flaws in the development, methodology, and

data base of the RTS theoretical model.®

roboration of the elements of rape, fear exists that

use of this type of evidence will confuse and mislead

the jury into thinking that evidence of RTS is evi-

dence bearing upon the guilt of the accused.”

8 This is the primary distinction between RTS and Battered

Child Syndrome. Although the two have similar criteria in the

Diagnostic and Statistical Manual of Mental Disorders [hereinafter

DSM-III], they are distinct scientific processes. The former was

devised as a counseling tool only, while the latter was created for

the express purpose of proving child abuse in criminal proceedings.

People v. Bledsoe, 681 P.2d 291, 300 (Ca. 1984).

®R.R.L., Checking the Allure of Increased Conviction Rates:

The Admissibility of Expert Testimony on Rape Trauma Syndrome

in Criminal Proceedings, 70 Va. L. Rev. 1657, 1667-72 (Nov. 1984)

(among the flaws listed were an inadequate sample size for the

study, no control group, nonobjective interviews, no isolated treat-

ment of rape as opposed to other sexual assaults, and no long term

tracking of the alleged victims.)

10 For example, someone who was abused as a child could have

all of the symptoms of RTS and not be the victim of rape. See

generally, Horowitz, Post Traumatic Stress Disorder, Behav. Sci.

& L. No. 3, 9, 16 (1983); Schulz, Trauma, Crime, and Affirmative

Defense, 11 Colo. L. Rev. 2401, 2402 (1982) ; Note, Post Traumatic

Stress Disorder—Opening Pandora’s Box? 17 New Eng. L. Rev.

91, 114-17 (1981).

(d) The use of DSM-III to diagnose RTS is not

reliable because the criteria are broadly construed,

and act as an expansive “umbrella” under which any

inconsistency in any alleged victim’s testimony can

somehow be placed.

(e) The psychological diagnosis of RTS is itself

considered unreliable in the context of a criminal

case because it is considered by medical experts as a

best guess and subject to change.

(f{) The jury may use the evidence as a “scientific

stamp of reliability” to corroborate the events of the

alleged rape as the victim portrays them to be.

(g) The speculative “clinical diagnosis” from the

expert may be interpreted as a legal conclusion of an

ultimate issue of fact, namely, that the victim was

raped.

(h) The expert’s testimony is likely to improperly

bolster the credibility of the alleged rape victim.

(i) A “battle of the experts” may ensue, which

would only serve to further confuse the jury.

(j) If the defense cannot present an expert to refute

and challenge the government expert, the adversarial

process will be detrimentally affected and the process

by which evidence of the syndrome can be ade-

quately tested in court will be thwarted.

See Spencer v. General Electric Co., 688 F.Supp. 1072

(E.D. Va. 1988)"; United States v. Sloan, 811 F.2d 1359

(10th Cir. 1987); Hillburn v. State, 765 P.2d 1382

(Alaska 1988); Hall v. State, 692 S.W.2d 769 (Ark.

1985); People v. Bledsoe, 140 Cal. App.3d 267, 189

Cal. Rptr. 726 (Ct. App. 1983), affd, 681 P.2d 291

(1984); People v. Hampton, 728 P.2d 345 (Colo. App.

11 This federal court found RTS inadmissible in civil proceedings

where the standard of proof is far less stringent than proof beyond

a reasonable doubt.

1986)”; Farley v. State, 324 So.2d 662 (Fla. 1975);

People v. Petrella, 424 Mich. 221, 380 N.W.2d 11

(1985); People v. Pullins, 145 Mich. App. 414, 378

N.W.2d 502 (1985); State v. McGee, 323 N.W.2d 232

(Minn. 1982); State v. Saldana, 324 N.W.2d 227 (Minn.

1982); State v. Taylor, 663 S.W.2d 235 (Mo. 1984)

(en banc); Commonwealth v. Gallagher, 547 A.2d 355

(Pa. 1988); Commonwealth vy. Zamarripa, 379 Pa.

Super. 208, 549 A.2d 980 (1988); State v. Bubar, 146

Vt. 398, 505 A.2d 1197 (1985); State v. Ross, 152 Vt.

462, 568 A.2d 335 (1989); Commonwealth v. Jenkins,

Va. 82-761-F (8 Mar. 1983); State v. Black, 109 Wash.

2d 336, 745 P.2d 12 (1987).

The concerns of these courts are shared by members of

the psychological profession and legal scholars who tout

both the unreliability of evidence of the syndrome and

fear of unfair prejudice from its use in criminal proceed-

ings.’*

12 A few state court decisions are listed in several sections of

this petition, denoting the conflict and confusion not only between,

but also within jurisdictions and individual panels of the state

courts.

13 See R.R.L., Checking The Allure of Increased Conviction Rates:

The Admissibility of Expert Testimony on Rape Trauma Syndrome

in Criminal Proceedings, 70 Va. L. Rev. 1657 (Nov. 1984) ; Zisken,

Psychological Expert Testimony called Unscientific, N.Y. Times

(Oct. 11, 1988) ; Faust & Zisken, The Expert Witness in Psychology

and Psychiatry, 241 Sci. 31 (1988); Calhoun, Resick & Ellis, Vic-

tims of Rape: Repeated Assessment of Depressive Symptoms, 50

J. Counseling & Clinical Psychology 96 (1982); Kilpatrick, Resick

& Veronen, Effects of a Rape Experience: A Longitudinal Study,

J. Soc. Issues 105 (Winter 1981); T. Szasz, Law, Liberty, & Psy-

chiatry, 123 (1963); Ennis & Litwack, Psychiatry and the Pre-

sumption of Expertise: Flipping Coins in the Courtroom, 62 Calif.

L. Rev. 693 (1974); Horowitz, Post-Traumatic Stress Disorder,

Behav. Sci. & L. No. 3 (1983); Massaro, Experts, Psychology,

Credibility and Rape: The Rape Trauma Syndrome Issue and Its

Implications for Expert Psychological Testing, 69 Minn. L. Rev.

395 (1985); Diamond & Louisell, The Psychiatrist as an Expert

Jurisdictions Favoring RTS

Other jurisdictions allow unlimited use of RTS evidence

to corroborate and prove rape. These courts have noted

the necessity of improving the rape conviction rates so as

to persuade victims to report rape, the great probative

value in corroborating the victim’s story, and the indicia

of reliability derived from the DSM-III model. See State v.

Kim, 64 Haw. 598, 645 P.2d 1330 (1982); State v. Ward,

207 Ill. App.3d 365, 565 N.E.2d 740 (1991)"*; State v.

Wheeler, 151 Ill.2d 298, 602 N.E.2d 826 (1992); State

v. Goodwin, 573 N.E.2d 895 (Ind. 1991); Simmons vy.

State, 504 N.E.2d 575 (Ind. 1987); State v. Allewalt,

308 Md. 89, 517 A.2d 741 (1986); Commonwealth y.

Mamay, 407 Mass. 412, 553 N.E.2d 945 (1990); State v.

Brodniak, 221 Mont. 212, 718 P.2d 322 (1986); People

v. Reid, 123 Misc.2d 1084, 475 N.Y.S.2d 741 (Sup. Ct.

1984); State v. LeBrun, 37 Or. App. 411, 587 P.2d 1044

(1978).

Numerous psychological professionals and legal schol-

ars subscribe to this reasoning as well, noting the scien-

tific reliability of the syndrome evidence for purposes of

criminal proceedings.’°

Witness: Some Rumination and Speculations, 638 Mich. L. Rev.

1335 (1965); Schulz, Trauma, Crime, and Affirmative Defense,

11 Colo. L. Rev. 2401 (1982); Note, Post-Traumatic Stress Dis-

order—Opening Pandora’s Box?, 17 New Eng. L. Rev. 91 (1981),

and Dwyer, Expert Testimony on Rape Trauma Syndrome: An

Argument for Limited Admissibility, 68 Wash. L. Rev. 1063 (Oct.

1988).

14 Tllinois has a statute allowing the use of RTS in criminal pro-

ceedings where the victim has been properly examined and diag-

nosed by an expert in the field of RTS.

15 See Burgess & Holmstrom, Rape Trauma Syndrome, 131 Am.

J. Psychiatry 981 (1974) ; American Psychiatric Association, Diag-

nostic and Statistical Manual of Mental Disorders 309.81 (3d ed.

1980) ; Wilk, Comment: Expert Testimony of Rape Trauma Syn-

drome: Admissibility and Effective Use in Criminal Rape Prose-

Jurisdictions Favoring Limited

Use of RTS

A middle ground proposes that RTS evidence is ad-

missible only for the limited purpose of dispelling general

cultural myths concerning rape or proving the lack of

consent where consent is at issue. Those jurisdictions

favoring this limited use note the unreliability of RTS in

corroborating or proving the actual rape, the unfair prej-

udice in allowing an expert to bolster the credibility of

the victim, and the danger of invading the province of the

jury by imposing upon them unreliable scientific evidence

which may overwhelm their ability to fairly weigh the

evidence presented by the accused. These jurists limit or

restrict RTS use to effectively balance the competing

risks and benefits. See Bachman vy. Leapley, 953 F.2d

440 (8th Cir. 1992)"; Gilpin v. McCormick, 921 F.2d

928 (9th Cir. 1990)""; Rodriguez v. State, 741 P.2d 1200

(Alaska 1987); State v. Huey, 145 Ariz. 59, 699 P.2d

1290 (1985); Bledsoe, 189 Cal. Rptr. at 726; People vy.

cution, 33 Am. U. L. Rev. 417 (Winter 1984) ; McCord, Syndromes,

Profiles, and Other Mutual Erotica: A New Approach to the Ad-

missibility of Nontraditional Psychological Evidence in Criminal

Cases, 66 Or. L. Rev. 19 (1987); Black, A Unified Theory of Scien-

tific Evidence, 56 Fordham L. Rev. 595 (March 1988); Borgida &

Brekke, Psychological Research on Rape Trials, Ch. 20 (A. Burgess

ed.).

16 This case was reviewed on writ of habeas corpus and limited

the use of RTS evidence to corroboration of credibility. The use

of expert testimony to judge credibility represents a departure from

the general federal common law principle which prohibits such use.

See United States v. Scop, 846 F.2d 135, 138, rew’d in part on reh’gq,

856 F.2d 5 (2d Cir. 1988); Greenberg v. United States, 280 F.2d

472 (1st Cir. 1960).

17 This case was also reviewed on writ of habeas corpus and

limited the use to the issue of credibility. It marks a departure from

prior 9th Circuit decisions which expressly prohibited this practice

with psychological expert testimony. United States v. Barnard, 490

F.2d 907 (9th Cir. 1973), cert. denied, 416 U.S. 959 (1974).

Housley, 6 Cal. App.4th 947, 8 Cal. Rptr. 431 (1992);

People v. Hampton, 746 P.2d 947 (Colo. 1987); Kruse v.

State, 483 So.2d 1383 (Fla. 1986); State v. Marks, 231

Kan. 645, 647 P.2d 1292 (1982); State v. McQuillen,

239 Kan. 590, 721 P.2d 740 (1986); State v. Liddell,

685 P.2d 918 (Mont. 1984); State v. Mackie, 622 P.2d

673 (Mont. 1981); State v. Staples, 120 N.H. 278, 415

A.2d 320 (1980); State v. Hill, 121 N.J. 150 (1990);

People v. Taylor, 75 N.Y.2d 277, 552 N.E.2d 131 (1990);

State v. Middleton, 294 Or. 427, 657 P.2d 1215 (1983);

State v. Milbradt, 305 Ore. 621, 756 P.2d 620 (1988);

In Re Pittsburgh Action Against Rape, 489 Pa. 15, 428

A.2d 126 (1981); State v. McCoy, 179 W.Va. 223, 366

S.E.2d 731 (1988); State v. Pittman, 174 Wis.2d 255,

496 N.W.2d 74 (1993); Scadden v. State, 732 P.2d 1036

(Wyo. 1987).

Some psychological and legal scholars have agreed with

this limited use policy. Wilk, supra at 447. However,

these same scholars also note that even when abiding by

the limitations and avoiding conclusions about rape, the

inference to the jury will be clear: the expert has opined

that the victim was raped. /d. at 450-51.

Agreement Among Federal and State Jurisdictions

on the Examination of the Victim

Exclusive of the Court of Military Appeals’ decision in

Houser, all courts_which allow the admission of RTS evi-

dence, as well as proponents of RTS in legal literature,

require that the expert have actually examined the alleged

victim. United States v. Riley, 657 F.2d 1377, 1387 (8th

Cir. 1981); United States v. Rohrer, 708 F.2d 429 (9th

Cir. 1983); State v. Wheeler, 151 Ill.2d at 298, 602

N.E.2d at 826; State v. Jackson, 97 N.M. 467, 468, 641

P.2d 498, 499 (1982); Wilk, supra at 444-46.

Houser, Other Jurisdictions, and Due Process

The evolution of the use of RTS evidence in military

courts has run the entire gambit of viewpoints starting

with the narrow view that the evidence was overly preju-

dicial, moving on to limited use, and now endorsing a very

broad view in Houser. The military’s treatment of this

issue is demonstrative of the confusion within all jurisdic-

tions in dealing with this type of evidence. In this respect,

the military is no different than any other jurisdiction and

does not rely upon any special exigency exempting itself

from the nation at large.

Specialist Houser contends that the conservative view

initially held by the military courts, as well as many other

federal and state courts, is the correct one. Simply put,

RTS evidence is of dubious reliability, and is more preju-

dicial than probative in nature. Although the Court of

Military Appeals held that reliability was not one of the

bases for the defense’s objections to RTS evidence, Houser,

36 M.J. at 399, reliability is part and parcel of any

prejudice analysis. Hence, the test’s reliability and use at

trial determine the prejudicial effect. The Court of Mili-

tary Appeals apparently did not consider the scope of SPC

Houser’s objection or its implications.

Moreover, military courts have departed from the re-

quirement that the expert must examine the victim prior

to testifying as to whether the victim suffers from RTS.

Virtually all other jurisdictions require such an examina-

tion to ensure reliability prior to the admission of the

evidence. In Houser, the defense objection to Dr. Remer’s

testimony, in spite of her failure to examine the victim.

was ignored by the trial and appellate courts.

Specialist Houser asserts that the Court of Military Ap-

peals’ decision to admit RTS evidence for unlimited pur-

poses without requiring the expert witness to examine the

alleged victim prior to testifying is incorrect and violative

of his right to due process of law and a fair trial under

the Fifth Amendment.

Houser, Public Policy, and the

Right to Confrontation

Specialist Houser further asserts that the future policy

considerations resulting from the admittance of RTS evi-

dence in Houser make its use dangerous to the legitimacy

of justice within the common law and military jurispru-

dential systems. Specifically, SPC Houser points to two

troubling consequences to the use and proliferation of

RTS evidence in future criminal cases in the United States

generally and. more specifically, in military courts-martial,

post-Houser.

First, use of such evidence questions the viability and

constitutionality of “Rape Shield” laws,"* for once the

court admits RTS evidence, the door will be left wide-open

to defense attacks on the victim’s character by the accused.

The defense wili make early attempts to pry into the

victim’s entire past life experiences because RTS is de-

pendent upon “pre rape characteristics, including pre exist-

ing life stresses of the victim and the victim’s coping

mechanisms.” R.R.L., supra at 1676; Calhoun, supra at

101; Kilpatrick, supra at 119. Scrutiny of the rape vic-

tim’s life, beyond her prior sexual history, is mandated

by the accused’s Sixth Amendment right to confrontation.

The ultimate consequence of the use of RTS evidence will

not be to enhance prosecutions, but rather will likely be

to scare true rape victims away from the justice system,

thus depriving them of the justice that they deserve.

R.R.L., supra at 1703.

Second, the use of RTS evidence will open the flood-

gates to the use of evidence of all kinds of syndromes to

18 Federal and Military Rules of Evidence 412 (Rape Shield

Laws).

snore up weak prosecution cases. /d. at 1704. As the

studies previously noted clearly show, many acute reactions

in the RTS model “mirror” those reactions experienced by

all victims of violent crime. /d. at 1667-1672. Logical

questions follow: How far will this Court allow such un-

proven and unverified evidence to go? Will all alleged

victims of violent crime be allowed to bolster their testi-

mony through syndrome evidence?

Both of these policy considerations deserve attention

before any final conclusions about the admissibility of RTS

evidence can be made. This Court’s supervisory responsi-

bilities include settling the dispute over the use of RTS

evidence in criminal proceedings.

CONCLUSION

The petition for certiorari should be granted. This

Court is now given the opportunity to rule on the admis-

sibility of Rape Trauma Syndrome evidence, an issue of

first impression, which bears directly on the constitutional

rights of accuseds and the future of “Rape Shield” laws

in the military and throughout the United States. Fed-

eral, state, and military jurisdictions are split as to the

full, limited, or prohibited uses of Rape Truama Syn-

drome evidence in criminal proceedings. These conflicting

views should be settled and placed under one uniform

standard to ensure fairness to the accuseds and victims

of rape. The questions presented are both substantial

and of crucial public significance.

Respectfully submitted,

JAMES H. WEISE

Lieutenant Colonel, Judge

Advocate General’s Corps (JA)

United States Army

Defense Appellate Division

5611 Columbia Pike

Falls Church, VA 22041

(703) 756-0580

Counsel of Record

and

FRAN W. WALTERHOUSE

Major, JA

United States Army

DAVID L. THOMAS

Captain, JA

United States Army

ALISON L. BECKER

Captain, JA

JULY 1993 United States Army

APPENDICES

APPENDIX A

U.S. COURT OF MILITARY APPEALS

No. 67,326

CM 8901522

UNITED STATES,

Appellee,

ALPHONSO O. Houser, Specialist

U.S. Army,

Appellant.

Argued Oct. 2, 1992

Decided April 19, 1993

For Appellant: Captain David L. Thomas (argued) ;

Lieutenant Colonel James H. Weise and Captain Michael

P. Moran (on brief).

For Appellee: Major Samuel J. Smith, Jr. (argued);

Colonel Dayton M. Cramer, Lieutenant Colonel Joseph

A. Russelburg, Captain Donna L. Barlett (on brief);

Lieutenant Colonel Daniel J. Dell’Orto and Major Ken-

neth T. Grant.

Opinion of the Court

CRAWFORD, Judge:

The issue in this case is whether the military judge

erred in overruling a defense objection to the testimony

of a government expert on rape trauma, when the expert

had not interviewed the victim.

Appellant was convicted by general court-martial com-

posed of officer and enlisted members of rape and

adultery, in violation of Articles 120 and 134, Uniform

Code of Military Justice, 10 USC §§ 920 and 934, re-

spectively. He was sentenced to a dishonorable discharge,

confinement for 40 years, and total forfeitures. The con-

vening authority reduced the confinement to 30 years

and otherwise approved the sentence. The Court of Mili-

tary Review set aside the findings on adultery and af-

firmed the remaining findings and the approved sentence.

FACTS

The victim, 15-year-old W, knew appellant’s spouse for

9-10 years and appellant for 5 to 6 years. She stayed

with appellant and his family during the first few weeks

of August 1988 to care for their children. She looked

upon appellant and his spouse as her uncle and aunt.

On the evening of August 6, 1988, appellant’s spouse

went out for the evening. W testified that she fell asleep

watching TV in the den; and that appellant woke her and

asked her why she was asleep. Thereafter, she fell back

asleep. She was awakened with appellant on top of her

inserting his penis into her vagina. W testified that she

told him to get off and tried to push him away, but he

pushed harder and penetrated her. Appellant pulled his

penis out of W’s vagina only when he heard his spouse’s

car pull up outside the home. He immediately ran up-

Stairs and got into the shower.

Mrs. Houser knocked on the door and W got up,

unlocked the door, and unlatched the chain to let her in.

Mrs. Houser testified that she thought it was unusual that

the door was chained. W did not immediately tell Mrs.

Houser that she had been raped by appellant. Rather,

she waited until appellant and Mrs. Houser had gone to

bed and then went to the bathroom to wash herself off.

The next morning W told Mrs. Houser what had hap-

pened. When confronted, appellant denied raping W

both to his spouse and the victim.

In his opening statement civilian defense counsel

raised questions concerning the victim’s failure to report

and to resist the alleged rape. He further commented that

She did not appear anxious. Additionally, he conducted

a rigorous cross-examination of W, questioning her about

inconsistent acts and statements.

Shortly after this cross-examination the prosecution

offered in rebuttal the testimony of an expert, Dr. Pamela

P. Remer, a counseling psychologist and associate pro-

fessor at the University of Kentucky, to explain rape

trauma syndrome to the members. The defense objected

to this testimony on the grounds that it “would be more

prejudicial than probative.” Defense counsel argued Dr.

Remer “has not seen or diagnosed the alleged victim, can-

not say that she particularly has any symptoms of rape

trauma syndrome.” Moreover, the defense asserted that

Dr. Remer’s testimony “can only serve to confuse and

mislead the panel.”

Defense counsel went on to argue that “the only evi-

dence that could help the jury is a qualified expert on rape

trauma, who has studied Ms. [W] and has diagnosed her

condition, as consistent with rape trauma. ... These

charges are too serious to risk the jury deferring to the

judgment of an expert who has no meaningful knowl-

edge of this case.” ?

1 We view the express objections in this case to be raised under

Mil.R.Evid. 703 and Mil.R.Evid. 403, Manual for Courts-Martial,

United States, 1984. We will address admissibility under Mil.R.

Evid. 702. Rather than for us to guess, it would be far better if

military judges would ask counsel to state the rule that constitutes

the basis for the objection.

The judge overruled the defense objection and _per-

mitted Dr. Remer to testify. After the prosecution ques-

tioned Dr. Remer about her qualifications, the defense

conceded that she was “an expert.”

Dr. Remer testified as to six general stages of a rape

trauma model. She labeled the first stage the “pre-rape

stage” wherein: “Some of the common myths are things

like that the victim is to blame, that rapes are committed

by strangers.” She continued:

The major picture under the rape myth is of a stran-

ger coming up to a woman in a dark alley who

rapes her at gun point, and the typical rapist is not

like that at all. The typical rape is more likely to be

by an acquaintance, about 60% of rapes are done

by an acquaintance, that is someone the victim

knows. They are more likely to be done indoors

than outdoors, and often in the victim’s home, or in

someone’s home. And so we don’t have—in lots of

cases we don’t have a stranger doing something awful

and brutal to a woman with the use of a weapon.

Most rapes are [by] someone the victim knows, the

threat of force and in a protected place.

* * *

[I]f it is more than a [sic] just a passing acquaint-

ance, especially if she knows the rapist fairly well,

there will usually be a good amount of trust in that

relationship, and all of their interactions will be in-

terpreted by the victim within that context of trust.

[I]n acquaintance rapes, when the victim and

perpetrator [are] in a trusting relationship, the victim

is much less likely to recognize she is in danger,

because she will be viewing what happens from the

aspect of having trust in this person. So that is one

thing that—also if you are in an environment that

you deem to be safe, your own home, a friend’s

home, . . . they are more likely not to recognize that

—_—_- See

it is a dangerous situation, because you have a trust

in the situation.

When the attack itself starts, she would then have a

period of trying to make sense of what is going on,

especially an acquaintance rape, where it is not ex-

pected at all, or it is against what she would nor-

mally expect from this person. So there would be

now and actually throughout a period of—or a lot

of confusion on the victim’s part about what is hap-

pening to me; and of trying to make sense about that.

This is happening at the same time that the victim

is trying to figure out what to do, how do I get

myself out of this situation. There may be a period

of struggling here for victims. There usually is a

point at which the victim makes the decision, or

realizes that she is not going to be able to stop the

rape....

Q. Might they experience some kind of paralysis

or feeling of helplessness or—

A. About 45% of the victims in the recent sur-

vey that we did, said that they felt motionless; it is

often described as a paralysis, [an] easy way to

understand is being overwhelmed with fear and un-

able to move. And as I said, that coupled with the

disassociation and the confusion makes it hard to

respond.

Dr. Remer testified that the second stage “is the rape

. itself” and that the third stage is the “crisis stage and

it is the immediate period that follows the rape.”

She explained that during the third stage the victim is

faced with getting her safety and “how is she going to

go about handling the aftermath of the rape.” Because of

what the victim has read or watched on television or in

the movies about victims being “to blame,” it is “diffi-

cult to tell anybody.” She continued:

[V]ictims of acquaintance rapes are much less likely

to tell anyone, to tell anyone at all, much less to tell

more than one person. And again I think it is be-

cause the acquaintance rape doesn’t fit society’s myth

of what rape is; and because the victim expects to be

blamed for it more, because it doesn’t fit that defini-

tion. So delays are not uncommon; delays of days,

weeks, months, even can occur before the victim—

and that some studies, a victim 10 years, 15 years

later, have never told.

Q. In the crisis stage .. . what are the victim’s re-

actions, what does she want to do?

Q. [Sic] Well, she is still in shock, and somewhat

still in disbelief about what has happened to her;

and, [there is] very much a sorting out process about

what just happened. She will be feeling overwhelm-

ing amounts of fear still; afraid that the attacker

might come back; afraid that she will be punished-

if she tells; afraid others will judge her; and, is just

reliving often, over and over again in her own head

the events of the attack that just took place; and, so

that is the predominant reaction, is fear, and anxiety,

and that leads to the victim not wanting to talk

about what happened. There are two ends of a con-

| tinuum, there is no one response to rape. I think

one of the myths is we have is, that rape victims

would be crying hysterically, and that is not the

case. There are a variety of responses to rape. On

one end of the continuum, would be a super con-

trolled state; that is the victim showing absolutely no

emotion; and in fact, she would be characterized by

the lack of emotion on her, be that kind of a [taut],

not letting anything out, to the other end of the

continuum which can be somebody crying uncon-

trollably, unable to talk to anybody, that kind of

thing.

eae eimai a i

Q. Within the third stage, would it be uncommon

Or common that the person would feel unclean after

an attack?

A. Another major response, again, I fail to hear

from any survivor, in other words, all survivors have

said this, that following an attack they feel very un-

clean; that they have a sense of the rapist being on

them and around them, and of wanting to get clean;

it is part of needing to put the rape behind them and

it is also a part of needing to reaffirm, hey I’m me

again, and so it is very common for survivors to bathe,

shower, wash clothes. If the attack for instance,

occurred in their apartment or something, they

would tidy the place up, often, unless they know—

get some directions from somebody, the police or

rape crisis center that says don’t touch anything. The

human response, I think, is to get clean, to do

something.

Q. And in the second stage, would the victim’s re-

actions to the rape be at all [a]ffected if the rape

began while she was asleep?

A. Yes, and I’m going to hedge a little bit here,

in terms of saying that it would depend on which

Stage of sleep the victim was awakened during [sic].

So there is some speculation here. But regardless of

the stage of sleep, the victim would not have any

forewarning of what was going to happen, if they

were awakened while being raped. In other words,

they wouldn’t have any—see any behaviors of the

other person that would give them warning about

maybe I’m being in danger here; they wouldn’t have

any red flags to go for them. I think if a person is

awakened out of sleep, again it doesn’t matter what

stage, they are going to be even more confused about

what it is that is happening to me. And finally, if

they are awakened in either REM sleep or in stage 4

EAEeVOVOT

of sleep, which is a deeper sleep, they are likely to be

cognitively disoriented, have trouble processing their

thoughts for a few moments, but it would add to the

confusion that is normally a part of a rape, and if

they are awakened in REM sleep they would even

experience a temporary physical paralysis that all

of us would experience if we are awakened while we

are in REM sleep. That is, our body is unable—

physically unable to respond for a few seconds.

Dr. Remer further explained that the third stage “lasts

anywhere from a few minutes to up to a year, and it

involves a bunch of crisis reactions by the victim in her

immediate coping with rape.” She also described the

other stages. “The fourth stage is called a denial or a

getting your life back together stage.” The fifth stage

is a “reliving stage.” She testified that during this stage,

there may be “flashbacks” to “the rape itself.” She called

the sixth stage “an intergration or resolution stage, and at

this point the victim has resolved most of the negative

issues that come from rape. . . .”

Dr. Remer then testified in response to hypotheticals

as follows:

1. A good caretaker would not want the children “to

witness the attack.”

2. If there is “a trusting relationship,” the victim

would hesitate reporting the attack.

3. If the victim woke up during an attack, she might

fail to resist.

4. The victim’s first account may be distorted.

The concluding testimony was as follows:

Q. Doctor, if a person were experiencing the

majority of the symptoms that you have talked about

in your model, would they be suffering from a rape

trauma syndrome?

A. Yes. Most likely. And it is the constellation

of symptoms. .. .

* * *

Some of the typical symptoms in the crisis stage are:

I talked about the fear: it is very usual for clients

to be—for clients—for victims to be depressed and

under depression[;] there are a whole bunch of symp-

toms, including: often there will be a change in

their eating habits, either they eat a whole lot more

or they are eating a lot less. Often there will be a

change in their sleeping pattern; inability to sleep,

nightmares especially, or they are sleeping all the

time, and then it is an avoidance of being awake and

thinking about the rape that is happening there.

They feel sad, that is a part-of depression; feel hope-

less about the future, often, or feel helpless. They

usually have some loss of interest in activities or a

loss of energy from their normal way of being; they

may be suicidal. The third major area of problems

in the crisis stage and then on throughout is, some

kind of sexual dysfunction. In one study, 60% of

the rape survivors had some kind of sexual difficulty

at the time the study took place, so it may be even

higher than that actually, if you kept measuring over

time. There is usually a disruption in interpersonal

relationships, that has to do with the ability to trust

others; and I’ve already talked about work disrup-

tion. Those are the major ones.

Q. And again, if the person is experiencing the

majority of those type of symptoms, would they be

suffering from a rape trauma—

A. What you do is look for a constellation of

symptoms, and then assess that in terms of how this

person [sic] from when the trauma occurred, how

has this person changed, which makes the symp-

toms and—since the symptoms come from research

10a

on thousands of victims, you can make a reasoned

assessment, that this person has been raped.

On cross-examination, Dr, Remer admitted that her

model was different from the original rape trauma syn-

drome model set up by Burgess and Holstrom,” that there

are a number of models, and that these models do not

contradict her model. Dr. Remer did not evaluate the

victim and in fact never met the victim. Dr. Remer ad-

mitted that the rape trauma syndrome was not recog-

nized in Diagnostic and Statistical Manual III. She also

admitted that a number of the symptoms she had men-

tioned are caused by other disorders such as post-

traumatic stress disorder and that many of these symp-

toms may also be the result of normal adolescent prob-

lems. She further testified that she did not know if the

symptoms in her model were experienced by the victim

and that she developed her model “to treat clients” so

that she might “tailor” her counseling to better help what

she termed “rape trauma survivors.”

In its closing argument the prosection said the follow-

ing about Dr. Remer’s testimony:

Dr. Remer, talking about Dr. Remer, you heard

her, she was qualified as an expert in rape trauma,

and she—and you heard her testimony concerning

that there is acceptable reactions to rape, concerning

whether you scream out; how much you resist; what

sort of symptoms you are going to exhibit after-

wards and every one of the symptoms that defense

talks about, Dr. Remer said it was a possible re-

action and acceptable reaction to being raped.

The judge instructed the court members on assessing

the credibility of expert witnesses (there were two) as

follows:

_ 2Burgess & Holmstrom, Rape Trauma Syndrome, 131 Am.J. of

Psychiatry 981 (1974).

lla

While Dr. Remer was qualified as an expert in the

treatment of rape victims, and rape trauma, and she

has testified concerning her model and the stages

that victims go through and the need to look and

see if there is a constellaton of symptoms and then

try to determine what is the cause for these symp-

toms.

Now, these witnesses are known as expert wit-

nesses, because their knowledge, skill, training, or

education may assist you in understanding the evi-

dence, or in determining a fact in issue. Now, you

are not required to accept the testimony of an expert

witness, or give it more weight than the testimony of

an ordinary witness; but you should consider the

qualifications of the expert as an expert witness.

Now, during the course of her testimony, Dr.

Remer answered several questions in regards to a

hypothetical question. Now, when an expert witness

answers a hypothetical question, the expert assumes

[a]s true every asserted fact stated in that question.

Therefore, unless you find that the evidence estab-

lished the truth of the asserted facts in the hypo-

thetical question, you cannot consider the answer of

the expert witness to that hypothetical question.

DISCUSSION

We now turn to the question of admissibility of Dr.

Remer’s testimony. For expert testimony to be admis-

sible, certain factors must be established under the Mili-

tary Rules of Evidence in Manual for Courts-Martial,

United States, 1984: (A) the qualifications of the expert,

Mil.R.Evid 702; (B) the subject matter of the expert

testimony, Mil.R.Evid. 702; (C) the basis for the expert

testimony, Mil.R.Evid. 703; (D) the legal relevance of

the evidence, Mil.R.Evid. 401 and 402; (E) the reli-

ability of the evidence, United States v. Gipson, 24 MJ

12a

246 (CMA 1987), and Mil.R.Evid. 401; and (F)

whether the “probative value” of the testimony outweighs

other considerations, Mil.R.Evid. 403. The burden is on

the proponent to establish each of these factors.

In reviewing each of these factors, the standard on

appeal is whether the military judge has abused his or her

discretion. To establish this, appellant must come “for-

ward with conclusive argument” that there was an abuse

of discretion. See United States v. Mukes, 18 MJ 358,

359 (CMA 1984). As Judge Magruder once observed:

“Abuse of discretion” is a phrase which sounds

worse than it really is. All it need mean is that,

when judicial action is taken in a discretionary mat-

ter, such action cannot be set aside by a reviewing

court unless it has a definite and firm conviction

that the court below committed a clear error of

judgment in the conclusion it reached upon a weigh-

ing of the relevant factors.

Magruder, J., The New York Law Journal at 4, col. 2

(March 1, 1962), quoted in Quote It II: A Dictionary

of Memorable Legal Quotations 2 (1988).

A. Qualifications of the Expert

Mil.R.Evid. 702, like Fed.R.Evid. 702 provides that a

witness may be qualified as an expert by reason of “knowl-

edge, skill, experience, training, or education.” The quali-

fications of the expert are to be determined by the trial

court whose decisions are reviewable on appeal only for

an abuse of discretion. Salem v. United States Lines Co.,

370 U.S. 31, 35, 82 S.Ct. 1119, 1122, 8 L.Ed.2d 313

(1962). See also United States v. Stark, 30 MJ 328, 330

(CMA 1990); People v. Stoll, 49 Cal.3d 1136, 265 Cal.

Rptr. 111, 112, 783 P.2d 698, 699 (Cal.1989); Byrd v.

State, 579 N.E.2d 457 (Ind.App. 1 Dist.1991).

Dr. Remer’s qualifications are not at issue as defense

counsel conceded that she was an expert.

13a

B. Subject Matter of Expert Testimony

Mil.R.Evid. 702 provides that the expert testimony is

admissible when “scientific, technical, or other specialized

knowledge will assist the trier of fact to understand the

evidence or to determine a fact in issue.” Mil.R.Evid. 702

is a very liberal standard. As was said regarding its twin

Fed.R.Evid. 702: “[T]he test is not whether the jury could

reach some conclusion in the absence of the expert evi-

dence, but whether the jury is qualified without such testi-

mony ‘to determine intelligently and to the best possible

degree the particular issue without enlightment from those

having a specialized understanding of the subject... .’”

State v. Chapple, 135 Ariz. 281, 292-93, 660 P.2d 1208.

1219-20 (1983), quoted in P. Giannelli and E. Imwinkel-

reid, Scientific Evidence § 5-2 at 152 (1986).

Our analysis would not be complete without a review

of our prior case law. In United States v. Carter, 26 MJ

428 (1988), we held that “rape-trauma syndrome evi-

dence is probative . . . on the issue of consent by the

victim. .. .” Id. at 429. In Carter, the Government quali-

fied an expert on the treatment of rape victims to testify

on “rape trauma syndrome,” as a type of post-traumatic

stress disorder (PDSD). The expert testified that she

diagnosed the victim as having PDSD and the victim mani-

fested rape trauma syndrome. See 22 MJ 771, 772

(ACMR 1986).

In United States v. Reynolds, 29 MJ 105, 111 (CMA

1989), we held that “the plain rule of law is that an

expert’s testimony concerning ‘rape-trauma syndrome’ ”

was admissible.

In United States v. Peel, 29 MJ 235, 241 (CMA 1989),

cert, denied, 493 U.S. 1025, 110 S.Ct. 731, 107 L.Ed.2d

750 (1990), we held it was permissible for an expert to

testify that the victim’s failure immediately to report the

crime “was not inconsistent behavior for a rape victim”

and that a victim may act as if the rape never happened.

l4a

Occasionally, this evidence has been limited to presenta-

tion by rebuttal. See, e.g., People v. Biedsoe, 36 Cal.3d

236, 203 Cal.Rptr. 450, 459, 681 P.2d 291, 300 (Cal.

1984); United States v. Peel, supra (evidence introduced

in response to cross-examination of victim); United States

v. Carter, supra (evidence introduced during Govern-

ment’s rebuttal).

In a parallel area, child sexual abuse, we have permit-

ted experts to testify about the behavior of child victims of

sexual abuse. See, e.g., United States v. Suarez, 35 MJ

374, 376 (CMA 1992) (why a child may render incon-

sistent statements, recant allegations, fail to report or delay

reporting abuse); United States v. Nelson, 25 MJ 110

(CMA 1987), cert. denied, 484 U.S. 1061, 108 S.Ct.

1016, 98 L.Ed.2d 982 (1988). Such testimony assists

jurors in disabusing themselves of widely held misconcep-

tions. Likewise, where there is a long-term relationship

between the suspect and the victim, he or she is less likely

to report the crime or appear upset. See People v. Taylor,

75 N.Y.2d 277, 552 N.Y.S.2d 883, 890, 552 N.E.2d 131,

138 (1990).

Thus rape-trauma-syndrome testimony by a properly

qualified expert may be admissible to assist the trier of fact

to understand the evidence. While in some cases it may

be preferable that the prosecution wait until rebuttal, this

Court has never limited rape-trauma-syndrome evidence to

rebuttal because this would shift the focus to the question

of appropriate rebuttal.*

8 Cf. United States v. Trimper, 28 MJ 460, 467 (CMA), cert.

denied, 493 U.S. 965, 110 S.Ct. 409, 107 L.Ed.2d 8374 (1989), where

this Court stated:

Thus, if a witness makes a broad collateral assertion on direct

examination that he has never engaged in a certain type of

misconduct or if he volunteers such broad information in re-

15a

C. Basis for Expert Testimony

Under Mil.R.Evid. 703, like Fed.R.Civ 703, an ex-

pert’s opinion may be based upon personal knowledge,

assumed facts, documents supplied by other experts, or

even listening to the testimony at trial. See generally

United States v. Johnson, 35 MJ 17, 18 (CMA 1992).

Thus, there was no requirement for Dr. Remer to inter-

view the victim before she could testify as to her six-stage

model and the symptoms of typical rape survivors.

D. Relevance

Section IV of the Military Rules of Evidence defines

legal and logical relevance. Mil.R.Evid. 401 provides that

the evidence is logically relevant if the evidence has “any

tendency to make the existence of any fact that is of con-

sequence to the determination of the action more probable

or less probable than it would be without the evidence.”

Certain behavioral patterns such as failure to resist or

delay in reporting a rape could be confusing to the fact-

finders because these may be counter-intuitive. See gen-

erally United States v. Suarez, United States vy. Johnson,

and United States v. Peel, all supra. See at 398. It is

logically relevant for an expert to explain that certain

behavior patterns occur in a certain percentage of rape

sponding to appropriately narrow cross-examination, he may

be impeached by extrinsic evidence of the misconduct.

See also United States v. Pantone, 609 F.2d 675, 683 (3d Cir.

1979); United States v. Bowling, 16 MJ 848 (NMCMR 1983).

In contrast in United States v. Havens, 446 U.S. 620, 627, 100 S.Ct.

1912, 1916, 64 L.Ed.2d 559 (1980), the Supreme Court stated:

In terms of impeaching a defendant’s seemingly false state-

ments with his prior inconsistent utterances or with other

reliable evidence available to the government, we see no differ-

ence of constitutional magnitude between the defendant’s state-

ments on direct examination and his answers to questions put

to him on cross-examination that are plainly within the scope of

the defendant’s direct examination.

l6a

cases or child abuse cases. Jd. This is not to say that the

offense occurred but, rather, that these events may hap-

pen to some victims. Without the testimony the members

are left with their own intuition. For these reasons we

conclude that Dr. Remer’s testimony was relevant.

E. Reliability

In United States v. Gipson, 24 MJ 246 (CMA (1987),

this Court indicated that the test enunciated in Frye v.

United States, 293 F. 1013 (D.C.Cir.1923), has been

superseded by the relevance approach. This approach

looks at Mil.R.Evid. 401 to determine that the evidence is

relevant to a consequential fact in the case. The pro-

bative value of the evidence under this test depends on

its reliability. Since most judges do not have the appropri-

ate scientific background, it is up to the proponent to

establish the probative value and the reliability of the evi-

dence by testimony or scientific and legal writings. State

v. Cavallo, 88 N.J. 508, 443 A.2d 1020, 1027 (1982).

See also United States v. Banks, 36 MJ 150, 164 n. 15

(CMA 1992); United States v. Johnson, supra at 18. It

is appropriate to determine whether the evidence embraces

a new technique or theory and the potential rate of error,

as well as the existence of any specialized literature and

cases on the subject. We do not need to address this issue

because the reliability of Dr. Remer’s testimony was not

challenged.

F. Probative Value

Logically relevant and reliable expert testimony “may

be excluded if its probative value is substantially out-

weighed by the danger of unfair prejudice, confusion of

the issues, or misleading the members.” Mil.R.Evid. 403.

In determining whether the military judge abused his

discretion in balancing probative value with the potential

for unfair prejudice, we must examine Dr. Remer’s testi-

mony in the context of the entire case. The defense in its

i ansaiaaeeeniememeieetieim tee E

17a

Opening statement raised issues concerning a number of

acts conceivably inconsistent for a victim of rape, e.g.,

the victim’s failure to report, her failure to resist, and her

apparent lack of anxiety. Additionally, trial defense coun-

sel conducted a rigorous cross-examination of the victim

during which he further questioned her behavioral con-

duct. Following this, trial counsel sought to introduce the

expert testimony of Dr. Remer to put the behavioral evi-

dence in perspective. Thus the Government argued that

Dr. Remer’s testimony was necessary to explain to the

members the behavioral patterns of victims of rape.

Additionally, Dr. Remer’s testimony was offered in re-

buttal after the behavoral conduct of the victim was raised

as an issue. The Government was careful to put her testi-

mony into a proper framework for the members. The

doctor was very careful not to confuse or mislead the

court members. She did not testify that if certain be-

havioral conduct was present, a rape took place. She did,

however, testify that in some rape cases the victim would

fail to report the offense immediately, fail to resist and

show no appearance of anxiety. Dr. Remer made it clear

that her testimony was to give a framework within which

to consider the arguments made by the defense in the

context of what happens in some rape cases, but she would

not usurp the role of the factfinder. Specifically, in order

to avoid confusing the jury, she testified that she was

seeking to aid the court members, but they had to deter-

mine whether an offense was committed. Furthermore,

Dr. Remer did not violate our prohibition against expert

witnesses’ testifying about the credibility of the victim.

See, e.g., United States y. Harrison, 31 MJ 330 (CMA

1990).

Additional factors were present that militate against a

finding of unfair prejudice to appellant. Trial defense

—

* Two other techniques were available to minimize this evidence:

voir dire and the judge’s limiting the evidence to rebuttal. See

Mil.R.Evid. 611(a).

18a

counsel conducted an extensive cross-examination of Dr.

Remer to further place her testimony in perspective. The

Government’s closing argument reinforced her testimony

by arguing that “ there [are] acceptable reactions to rape,

concerning whether you scream out; how much you resist;

what sort of symptoms you are going to exhibit afterwards

.... Finally the judge instructed the court members that

it was their decision to determine Dr. Remer’s credibility.

He said that “you are not required to accept the testimony

of an expert witness, or give it more weight than the

testimony of an ordinary witness... .”

We conclude that the judge did not abuse his discretion

in admitting Dr. Remer’s testimony.

The decision of the United States Army Court of Mili-

tary Review is affirmed.

Judge COX concurs.

SULLIVAN, Chief Judge (concurring):

I agree with the principal opinion in this case as well

as the comment of Judge Wiss.

WISS, Judge( concurring):

Analogizing testimony regarding rape-trauma syndrome

to testimony about child sexual abuse, see United States v.

Suaraz, 35 MJ 374 (CMA 1992); United States v. Nelson,

25 MJ 110 (CMA 1987), cert. denied, 484 U.S. 1061,

108 S.Ct. 1016, 98 L.Ed.2d 982 (1988), the principal

opinion concludes that evidence of rape-trauma syndrome

is not necessarily limited to rebuttal * and may be intro-

* By “rebuttal,” the principal opinion apparently means both the

prosecution’s case in rebuttal, following the defense’s case-in-chief,

as well as testimony during the prosecution’s case-in-chief that

follows—and rebuts—evidence elicited during cross-examination by

the defense. See United States v. Peel, 29 MJ 235, 240 (CMA

i eeeeeonennen enamel

19a

duced during the prosecution’s case-in-chief. That is not

an issue here, since Dr. Remer’s testimony came in during

the prosecution’s case-in-chief but in obvious rebuttal to

implications raised during the defense’s earlier cross-exam-

ination of the prosecutrix. See n. 1, supra. However, I

have no quarrel with that conclusion. Cf. Estelle y.

McGuire, US. ; » 112 S.Ct. 475,

483-84, 116 L.Ed.2d 385 (1991).

I do caution, though, that relevance of testimony on

rape-trauma syndrome seems to be limited to issues of

whether there was consent and whether a rape did in fact,

occur. See McCord, The Admissibility of Expert Testi-

mony Regarding Rape Trauma Syndrome in Rape Prose-

cution, 26 B.C.L.Rev. 1143, 1197 (1985), cited in

United States v. Carter, 26 MJ 428, 429 (CMA 1988).

Where one or the other or both are in dispute in the trial,

it would seem unimportant when, during the trial, such

expert testimony was offered. If, however, the trial re-

volves solely around the identity of the rapist, for example,

the military judge should be especially cautious to ensure

that the marginal probative value of rape-trauma-syndrome

testimony under those circumstances is not “substantially

outweighed by the danger of unfair prejudice, confusion

of the issues, or misleading the members... . ” Mil.R.

Evid. 403, Manual for Courts-Martial, United States,

1984. See United States y. Herbert, 35 MJ 266, 270

(CMA 1992) (Wiss, J., concurring in part and in the

result); United States y. Warren, 6 USCMA 419, 423,

20 CMR 135, 139 (1955).

As to the defense argument that Dr. Remer’s testimony

should be excluded because she had not personally seen

or treated the prosecutrix, it seems to me that there is a

good deal of logic to the suggestion offered by the Army

1989), cert. denied, 493 U.S. 1025, 110 S.Ct. 731, 107 L.Ed.2d 750

(1990).

20a

Court of Military Review in United States v. Carter, 22

MJ 771, 773 n. 3 (1986), that reflects the contrary view

as follows:

We believe the better practice would be to have

the treating medical personnel testify as to the vic-

tim’s emotional, physical and mental state and have

another individual, properly qualified as an expert,

testify as to the various aspects of rape trauma syn-

drome and whether the victim’s symptoms are con-

sistent with rape trauma syndrome.

Such an expert, appropriately distanced from the alleged

victim, is in a position to offer truly objective assistance

for the factfinders, with a substantially reduced risk of

a subconscious suggestion creeping into the testimony that

the expert believes the victim.

GIERKE, Judge (concurring in the result):

I agree with the principal opinion that if placed in a

proper, limited framework, expert testimony on the rape

trauma syndrome is admissible to aid the factfinder in

understanding the evidence and to rebut any misconcep-

tions about a rape victim’s behavior. See United States v.

Suarez, 35 MJ 374 (CMA 1992). However, I take ex-

ception to the principal opinion’s conclusion that Dr.

Remer’s expert testimony was placed into a proper frame-

work by the Government. In my opinion, Dr. Remer was

allowed to go too far in expressing her opinion that if

certain behavioral conduct was present a rape took place.

Considering the fact that this behavioral conduct matched

that attributed to the victim, this conclusion was unfairly

prejudicial, not very probative, and very misleading. Mil.

R.Evid. 403, Manual for Courts-Martial, United States,

1984.

The record clearly indicates that trial counsel wanted

more from Dr. Remer’s testimony than simple use as re-

buttal to explain the behavioral patterns of rape victims.

2la

The victim’s mother and the victim testified on direct

examination that, after the alleged rape, the victim cried

a lot, had trouble sleeping, lost her appetite, and often

had nightmares and flashbacks. Trial counsel also prof-

fered testimony of the victim’s high school counselor who

was to discuss the “symptoms” the victim was exhibiting

following the alleged rape and her impressions of how

the victim was dealing with those symptoms. These

“symptoms” included the victim’s admission to her that

she still had trouble concentrating and sleeping, bad

dreams, flashbacks, and a loss of appetite. After a defense

objection, trial counsel argued that the “impressions” of

the counselor “are relevant in that they provide the basis

for whether she . . . [the victim] was experiencing rape

trauma syndrome or post-traumatic trauma syndrome... .”

Noting that the counselor’s testimony “would be cumula-

tive with the prior testimony,” the military judge disal-

lowed her testimony.

Next, defense counsel objected to Dr. Remer’s testi-

mony, arguing, infer alia, that “Dr. Remer’s testimony in

this particular case would be more prejudicial than pro-

bative. ... [I]t will mislead the jury and invade the fact-

finding providence of the jury.” Without comment, the

military judge overruled the objection and allowed Dr.

Remer to testify as an expert on the rape trauma syn-

drome. Dr. Remer testified about general “symptomatic”

behavioral traits of women who have been raped and

answered “hypothetical” questions that identically

matched the victim’s testimony concerning her behavior

immediately following the rape. Trial counsel concluded

his questioning of Dr. Remer by asking her “if a person

were experiencing the majority of these symptoms that you

have talked about in your model, would they [sic] be

suffering from a rape trauma syndrome?” Dr. Remer re-

sponded by saying, “Yes, most likely,” and reminded trial

counsel that she had not “finished telling” the members

about the typical “constellation of symptoms.” Not so co-

22a

incidentally, she indicated that typical symptoms in the

crisis stage of the rape trauma syndrome include “a

change in. . . eating habits” (they eat more or eat less);

“a change in . . . sleeping pattern” (they cannot sleep,

have nightmares, or sleep all the time); depression (sad-

ness, hopelessness); and “sexual dysfunction.” Upon be-

ing asked again by trial counsel whether a person suffer-

ing from a majority of these “symptoms” would be suffer-

ing from rape trauma, Dr. Remer again suggested a

“yes” answer and explained that upon examination of

“a constellation of symptoms” and how a person has

changed after a trauma, one “can make a reasoned as-

sessment, that this person has been raped.”

In my opinion, this is not limited, permissible testi-

mony. It improperly allowed the members to infer that,

if they believed that the victim exhibited certain be-

havioral conduct after an incident, then they could con-

clude she had been raped. The generalized behavioral

characteristics attributed to the victim and labeled as rape

trauma “symptoms” could result from any number of

stressful situations. See generally State v. Taylor, 663

S.W.2d 235 (Mo.1984) (en banc). The rape trauma

syndrome was developed from interviewing “thousands of

victims” to help them better cope with the aftermath of

their victimization. It presupposes the existence of a rape.

It was not developed to determine whether a rape had,

in fact, occurred. Jd. at 238. See People v. Bledsoe, 36

Cal.3d 236, 203 Cal.Rpt. 450, 681 P.2d 291 (Cal.

1984). Dr. Remer’s conclusion that one can reasonably

assess that a person has been raped based on “a constella-

tion of symptoms” (a majority of which the victim pos-

sessed) “has meager scientific basis and minimum value

but has substantial potential for misleading the fact-

finder.”” United States v. Cameron, 21 MJ 59, 65 (CMA

1985). Cf. State v. Taylor, 663 S.W.2d 285 (fact that

victim exhibited symptoms of rape trauma syndrome does

not qualify expert to designate experience that gave rise

iit italiani mii

23a

to trauma). Moreover, contrary to the holding of the

principal opinion, I do not believe that standard instruc-

tions of the type given in this case on the weight members

may give to testimony of expert witnesses are adequate

to protect against unfair prejudice to an accused. Such

instructions place absolutely no parameters on how evi-

dence of the rape trauma syndrome should be considered

by the members.

Despite my belief that the military judge allowed the

Government to improperly use expert testimony on the

rape trauma syndrome, I would hold that his error was

harmless under the unique circumstances of this case.

Art. 59(a), Uniform Code of Military Justice, 10 USC

§ 859(a). Cf. People v. Bledsoe, supra (improper use

of rape trauma syndrome to prove a rape occurred not

prejudicial in light of remaining evidence against defend-

ant). Trial counsel did not highlight Dr. Remer’s im-

proper conclusion in his closing argument. Appellant’s

defense was that he never had sexual intercourse with the

victim and that she created the whole story. Yet, the

victim’s allegations were corroborated by medical evi-

dence indicating that she suffered recent injuries caused

by forceful penetration of her vagina. The victim, a

15-year-old girl, had no apparent motivation to make up

her very plausible allegations. Therefore, I would hold

that any error in allowing Dr. Remer’s testimony in toto

was harmless.

24a

APPENDIX B

UNITED STATES ARMY COURT OF

MILITARY REVIEW

Before

NAUGHTON, GRAVELLE, and JOHNSTON

Appellate Military Judges

ACMR 8901522

UNITED STATES,

mt A ppellee

Specialist ALPHONSO O. HousER,

247-23-5173, United States Army,

Appellant

101st Airborne Division

(Air Assault) and Fort Campbell

A. J. Chwalibog, Military Judge

For Appellant: Lieutenant Colonel Russell S. Estey,

JAGC, Captain Ralph L. Gonzalez JAGC, Captain

Michael P. Moran, JAGC (on brief).

For Appellee: Colonel Alfred F. Arquilla, JAGC,

Lieutenant Colonel Daniel J. Dell’Orto, JAGC, Captain

Denise J. Arn, JAGC, Captain Donald W. Hitzeman,

JAGC, Captain Timothy J. Saviano, JAGC (on brief).

30 July 1991

‘cicada i

25a

MEMORANDUM OPINION

Per Curiam:

A general court-martial of officer and enlisted members

convicted the appellant, contrary to his pleas, of rape and

adultery, in violation of Articles 120 and 134, Uniform

Code of Military Justice. He was sentenced to a dis-

honorable discharge, confinement for forty years and for-

feiture of all pay and allowances. The convening author-

ity reduced the confinement portion of the sentence to

thirty years, and otherwise approved the sentence.

The appellant contends, inter alia, that he can not be

convicted of both rape and adultery for the same act of

sexual intercourse. We agree. As the military judge in-

structed the court members that these two offenses were

multiplicious for sentencing purposes, we find that the

appellant suffered no prejudice because the offenses were

also multiplicious for findings purposes.

We have also considered the remaining assignment of

error as well as those matters personally asserted by the

appellant pursuant to United States v. Grostefon, 12

M.J. 431 (C.M.A. 1982), and find them to be without

merit.

The findings of guilty of Charge II and its specification

are set aside and Charge II is dismissed. The remaining

findings of guilty and the sentence are affirmed.

FOR THE Court:

‘/s/ Mary B. Dennis

Mary B. DENNIS

Deputy Clerk of Court

W ou. 8. coveanuenr PRINTING OFFICE; 1993 335773 70032

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