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Jury convinced by expert evidence on ‘freeze fright’ response in rape victims

Date

Katrina Marson

Doctors report that half of all rape victims report that they experienced a freeze reaction in the course of their assault.

Doctors report that half of all rape victims report that they experienced a freeze reaction in the course of their assault. Photo: Andrew Quilty

History was made in the nation’s capital this past fortnight when, armed with one Victorian precedent, a prosecutor successfully argued to lead a very particular kind of evidence in a sexual assault trial. For the first time, an ACT court heard expert evidence from a doctor specialising in medical and forensic sexual health about the feeling of paralysis that approximately half of rape victims report experiencing during the course of their assault. Finally, the oft-discounted "freeze fright" reaction that victims of rape have reported time and time again was afforded legitimacy.

The court heard from a doctor with extensive experience in forensic medicine and specialist expertise in sexual health. The doctor gave evidence that the freeze fright reaction has been documented in approximately half of rape cases decade after decade since the 1970s. The doctor explained that the parasympathetic nervous system, which is part of the autonomic nervous system and not under our voluntary control, can "kick in a way that ... can give us the sense of being immobile and not being able to move". She also dispelled the suggestion that a person’s psychological make-up was a relevant factor affecting how a person responds to a traumatic situation. "Whilst we might expect where we use our brain, our cognitive functions to make a decision about how to respond, the autonomic nervous system is so strong that [it] overrides actual responses." The jury delivered a guilty verdict early last week.

The doctor’s evidence was that half of all rape victims report that they experienced a freeze reaction in the course of their assault: unable to move, unable to resist, unable to cry out. Half is not a minor proportion. So how many courts have heard rape victims give evidence that he or she could not move while being assaulted? How many friends, family members, public commentators have asked of a rape victim who froze: "Why didn’t you resist or try to get away?"  Certainly, many jurors have wondered the same. Indeed, historically that question has been put in cross-examination to many victims of sexual assault with the implication being that the victim must have consented.

For a long time, the law and the public consciousness had failed to recognise that submission is not consent. While that has changed in recent years, there does seem to remain a demand for evidence of resistance to prove the absence of consent. Now we have a precedent allowing for expert evidence to be led in a criminal trial that a reaction absent of resistance is common. Now, based in the legitimacy afforded to scientific or expert opinion, we have "proof" that a freeze reaction does not necessarily indicate consent.

How disappointing that the voice of victims has not been heard before this: that victims are not permitted to be experts on their own reaction, or that their account is not sufficient proof of their state of mind. It is disappointing that an awareness of this as a "legitimate" reaction has not been a part of the public consciousness to a greater degree.

As the majority of sexual assault trials involve female victims, this is symptomatic of the silencing of the female experience. The female voice, politically and in the public sphere, still often falls on deaf ears. The criminal court room is an institution which has long been guilty of excluding the female experience from its understanding of human behaviour. The "ordinary person" recognised by the law is often, in fact, an ordinary man. Yet the public consciousness plays a significant role also, as all sex crime trials in the ACT must be heard by a jury. If a woman’s experience does not accord with the general public consensus (in turn informed by a predominantly male perspective) it has often been dismissed or discounted.

The recent Skype case in the ACT and the Steubenville rape case in America are but two examples of this. Both involved a group of young men who engaged in an enterprise to humiliate and degrade a young woman. In the first, the woman was unaware that the consensual sex she was engaging in was being broadcast via Skype to a group of her male counterparts in the Australian Defence Force Academy. In the latter, a young woman was sexually assaulted and images of that assault were disseminated via social media. Both are instances where the aftermath saw the condemnation of the woman and the lament for the lost futures of the offenders. The women’s experiences in both cases were vehemently repugned by the public and the institutions around them.

While the law and the public consciousness have come a long way in accommodating the female experience, I live in hope that one day the voice of a woman who reports her experience will be afforded validity without requiring the support of an "expert" opinion. Yet herein lies the rub: given the legitimacy we as the public place on forensic expertise, this may indeed be a good way to get there.

Katrina Marson is a lawyer in the ACT. The views expressed here are those of the author alone.

25 comments

  • Just why the editor considered it necessary to add "The views expressed here are those of the author alone." I cannot understand. No they're bloody not just for starters and it doesn't take an "expert" forensic psychologist to understand what happens. It's called catatonia; well documented and experienced in war and other extreme stress situations such as being attacked by a wild animal. Easily induced in frogs and chickens for amusement. Victims report a sort of "out of body" experience; dispassionate, no fear and no control. A primitive survival mechanism controlled by the limbic system which has more power over us than our much vaunted forebrain. Far too many of the males of our aberrant species consider sexual intercourse as something they do to rather than with somebody else; male or female. Don't know why it's taken this long and I'm just a tad too old to be considered a SNAG.

    Commenter
    Scott Dunmore
    Location
    Coonabarabran
    Date and time
    April 07, 2014, 6:54AM
    • The description of the precedent and it's justification was well written and thoughtful. The need to expand the definition of a reasonable person to include the characteristics of the person in question (for eg a reasonable black woman receiving racial epithets from a friend of the Prime Minister) is a good point. It was the end that started drawing long bows, and relying on Clem Ford's even longer bows as its only evidence. As a mere beginning, the Skype case has clearly got nothing whatever to do with a freeze fright reaction, the victim wasn't aware she was being exploited until after the fact. Further, acts of indecency are clearly on a different criminal scale to raping the unconscious. And while OCDT Kate certainly encountered halfwits blaming her for her own exploitation, I'd like to see any evidence at all that her experiences were "vehemently repugned" by a sizeable proportion of the public or the ADF as an institution, which is not a link to an unrelated rape case in the US.

      Commenter
      Sean
      Date and time
      April 07, 2014, 11:54AM
    • I think you'll find the 'her views alone' sentence was probably insisted on by the author's law firm, not the paper.

      Commenter
      Novas
      Location
      Canberra
      Date and time
      April 07, 2014, 12:04PM
  • Freezing is such a common part of victim's accounts of rape that I assumed it was considered completely normal. It's genuinely shocking to find that it has only just been accepted by the legal system. Surely we've reached the point where the accused has to prove they obtained consent rather than the victim being forced to prove she wasn't consenting. Yet it appears not. You learn something every day and it isn't always a nice thing. So glad that this step forward has been made but it has taken a terribly long time coming.

    Commenter
    Richard
    Date and time
    April 07, 2014, 6:58AM
    • This goes against the principle of innocent until proven guilty. This is a very difficult area though - for how can consent be proved or disproved when rape is typically a crime committed in private? What this "new" precedent does is effectively remove the inference "no struggle implies no rape" from the jury.

      Commenter
      vote for pedro
      Date and time
      April 07, 2014, 2:24PM
    • @Pedro

      Yeah, the sympathetic nervous system's response to perceived life-threatening events that evolved over billions of years really should take the jury system into account.

      Commenter
      Mythbuster
      Date and time
      April 07, 2014, 2:43PM
  • Do men really need a woman to be screaming "no" and trying to punch him in the face to realise that she's not consenting? You can tell if someone doesn't want you to do what you're doing (hint: being frozen in terror is a bad sign) and denying this is just a cop-out.

    Commenter
    politico
    Location
    sydney
    Date and time
    April 07, 2014, 7:22AM
    • > Now, based in the legitimacy afforded to scientific or expert opinion, we have "proof" that a freeze reaction does not necessarily indicate consent.

      Nor does it indicate the "offender" knew the "victim" had "frozen" and was not consenting.

      Mens rea still applies.

      Commenter
      zzz
      Date and time
      April 07, 2014, 8:44AM
      • Reasonable person rule.

        Now, do you think the "reasonable person" would think a frozen, dissociated, catatonic reaction indicates consent?

        Commenter
        A reasonable person
        Date and time
        April 07, 2014, 9:56AM
      • Reasonable male or reasonable female?

        Commenter
        Lawyers
        Location
        In the bedroom
        Date and time
        April 07, 2014, 10:16AM

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