Accused rapists have more advantage in Pennsylvania courts than any other state in the country, or even military court. As the only state that doesn’t allow expert witnesses to testify in sexual assault trials, Pennsylvania allows, endorses even, fiction over fact when prosecuting cases of sexual assault. We routinely use court-qualified forensic, medical and psychology experts as educational tools for the jury, since the average juror isn’t expected to be knowledgeable enough in subjects such as blood patterns, physical or mental illnesses to draw rational conclusions without context. But experts aren’t allowed to educate juries on behaviors of sexual assault victims and assailants. Instead, we leave jurors to reach biased verdicts based on false information gleaned from television and movies.
“We’ve had several cases where juries have acquitted serial rapists because they felt the victims’ behavior after the assault was counterintuitive,” says Deborah Harley, chief of the Family Violence and Sexual Assault Unit of the District Attorney’s Office. “One such example would be Jeffrey Marsalis.”
Marsalis, known as the “Match.com rapist,” stood trial twice in Philadelphia on rape charges. All in all, 21 women—some of whom didn’t even want to endure the stress of trial—came forward with nearly identical stories of being dined, drugged and then waking up next to Marsalis having “had sex” with little or no recollection of the event. In the morning, Marsalis, a con man who maintained false identities as a doctor, CIA agent and astronaut, would serve the alleged victims coffee with a smile.
In 2006, Marsalis was tried on three counts of rape against three women. In 2007, he was charged with 25 counts of rape against seven women.
Marsalis was acquitted of all charges in the first trial. In the second trial, “the jury acquitted on all charges except for two counts of sexual assault,” says Harley. “[The jury was] not educated on victim behavior. That was a huge, huge obstacle.”
“Some of the victims were in denial, some blamed themselves. They didn’t fight back. Some obviously experienced memory loss because we believe they were drugged,” says Harley.
After two failed prosecutions in Pennsylvania, Marsalis was finally convicted of rape only after attacking a woman and being prosecuted in Idaho.
But there’s hope that Pennsylvania may soon finally level the playing field: HB 1264, a bill introduced by Rep. Cherelle L. Parker (D-200th) and co-sponsored by Rep. Kate Harper (R-Montgomery County), is scheduled to hit the floor of the House this week.
If passed this time—Parker has been trying to push versions of this bill into law since 2007—HB 1264 will finally allow experts to testify regarding common behaviors of sexual assault victims.
Parker says she was directly inspired by the Marsalis case, which she followed in daily papers with increasing horror and frustration.
“Like so many people, I watch Law & Order: Special Victims Unit,” she says. “So you think as a layperson and even as a legislator, that you know how victims of sexual assault are supposed to behave. You think they’re supposed to report it to the police, seek counseling and fight back.” After the Marsalis case, Parker held public panels and spoke to psychologists, prosecutors and victims of sexual assault whose attackers were acquitted at trial.
“What people automatically assume about behavior [after being sexually assaulted]—it’s just the opposite. When you have victims of sex crimes not immediately reporting to police, not immediately going to the hospital, someone can look at it and say, ‘Wow, that’s abnormal behavior, we should question if he or she is being truthful,’ but the fact of the matter is that that is normal behavior for victims of assault,” says Parker.
Experts say of the many false assumptions wrapped up in the mythological archetype of “the good victim,” delay in reporting an assault is particularly problematic—and sunk the Marsalis case, among many others.
“The big thing in Pa., the jury perceived these women as having what they quoted as buyer’s remorse,” testified Dr. Veronique Valliere, a clinician who has worked with hundreds of victims of sexual assault, thousands of offenders and conducts Megan’s Law assessments as a member of the PA Sexual Offender Assessment Board, at a public hearing last year. “‘They didn’t like the date so they cried raped.’ And the proof of that was some of these women called him back and said, ‘What did you do to me last night. We need to talk about this.’”
“I wish I could invite you all to sit in a treatment group and go around the circle and say to each offender, ‘How did you get people to not believe the victim?’” testified Dr. Valliere. “And they will say, ‘I got her drunk.’ They’ll say, ‘You know, I told her mother what a liar she was.’ They’ll say, ‘I told him when he came back, you must have liked it, because if you didn’t like it, you wouldn’t keep coming back to see me. So it’s not really rape. You like this.’ And we’re talking about 13-year-old boys.”
Even if, after four years, HB 1264 finally graduates into law, there’s still the troubling matter of jury instruction that directly advises jurors to weigh evidence in a way that contradicts what experts know to be reality.
Buried in standard instructions judges read to jurors is line 4.13A, Failure to Make Prompt Complaint in Certain Sexual Offenses: “The evidence of [name of victim]’s [failure to complain] [delay in making a complaint] does not necessarily make [his] [her] testimony unreliable, but may remove from it the assurance of reliability accompanying the prompt complaint or outcry that the victim of a crime such as this would ordinarily be expected to make.”
Jurors are not instructed to weigh promptness of contacting authorities in cases of any other kinds of physical assault, or any other crime.
While it would make sense to propose eradicating this jury instruction while allowing expert testimony, it seems the biased jury instruction will have to be addressed later, separately.
“Because jury instructions come under the evidentiary rules and procedure, we did not want to create a dispute between the Legislature and the courts by possibly overstepping the line between the two branches of government,” says Briana Elzey, Parker’s chief legislative aide.
In other words: baby steps for the only state backward enough to actively perpetuate rape myths that create biases against victims of sexual assault.
“This is a bill whose time has come,” says Diane Moyer, attorney and legal director for the Pennsylvania Coalition Against Rape, who along with Harley assisted Parker in developing the legislation.
“We have rape laws on the books in Pennsylvania, but then it’s, ‘Why did you wear a dress, why did you shave your legs, why are you a woman essentially,’” says Moyer. “You just can’t believe it’s happening in 2011.”