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.