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Psychology, Public Policy, and Law 1998, Vol. 4, No. 1/2, 414-432

Copyright 1998 by the American Psychological Association, Inc.

1076-8971/98/S3.00

RAPE TRAUMA EXPERTS IN THE COURTROOM

Laura E. Boeschen, Bruce D. Sales, and Mary P. Koss University of Arizona

This article analyzes the scientific legitimacy of using expert testimony relating to psychological sequelae of rape victimization in the courtroom and attempts to determine boundaries within which such testimony should remain to respect the limitations of current knowledge. Descriptions of the rape-related diagnoses currently used in expert testimony are followed by a discussion of the problematic issues associated with using rape trauma syndrome in the courtroom and a review of the validity and reliability issues associated with diagnosing posttraumatic stress disorder in forensic settings. The authors consider the scientific appropriateness of admitting different levels of rape expert testimony on the basis of the limitations of the scientific knowledge discussed.

It is impossible to consider sexual offending without focusing on both the perpetrator and the victim. For example, in criminal prosecutions against alleged rapists, the veracity of the victim's allegations is often on trial at the same time as the defendant's culpability. In civil litigation, where the victim is the plaintiff against the alleged offender, the defendant may focus a substantial part of the defense on the plaintiffs veracity and credibility. In focusing on the alleged victim, clinical testimony is increasingly being used to confirm the allegation of rape or to help establish the extent of damages appropriate in a civil tort action. This focus on the victim is not surprising because U.S. society has a long history of holding persistent and harmful myths about rape and those who are victimized by it. Historically, the societal stereotype of the "good" woman was a chaste and virtuous woman who would do everything in her power to resist being raped (including die) and would never hesitate to immediately report the incident (Torrey, 1995). This stereotype has also led to the myth that only certain women could be raped: Only chaste women are raped, whereas women with a "history" must have asked for it or done something to encourage it. And, until fairly recently, a married woman could never have been raped by her husband (Torrey, 1995). These stereotypes and myths have led to a society that typically shifts its critical focus from the rapist to the victim. Women who claim rape are viewed with some degree of skepticism. Challenges to rape victims' credibility have been common in the courtroom and community, even though very little empirical evidence suggests that victims frequently make false accusations. One study that did report a high false rape allegation rate was based on a procedure that required each woman to submit to a polygraph test (Kanin, 1994). The literature suggests that polygraph tests are not only inconclusive, especially for rape victims who often experience high levels of fear and anxiety following an assault, but are also

Laura E. Bueschen and Bruce D. Sales, Department of Psychology, University of Arizona; Mary P. Koss, Arizona Prevention Center, Arizona Health Sciences Center, University of Arizona. We thank Toni Massaro for her helpful comments on a draft of this article. Correspondence concerning this article should be addressed to Mary P. Koss, Arizona Prevention Center, University of Arizona, 2223 East Speedway Boulevard, Tucson, Arizona 85719. Electronic mail may be sent to mpk@u.arizona.edu.

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mentally distressing and unwarranted (Sloan, 1995). Thus, it is not surprising that 41% of the women in this study recanted their rape allegations upon confrontation with such a test, even though it is unclear whether these women falsely recanted true allegations in an effort to escape a distressing and distrusting situation. Other studies that did not use such methodology have found that only 2-4% of victims falsely allege that rape has occurred, which is the same estimate of false allegations for other crimes (Katz & Mazur, 1979). Courts have also acknowledged that victims rarely file false reports and that there are powerful disincentives to reporting a rape (Fischer, 1989). Indeed, studies show that only 16% of rape victims report to the police (Kilpatrick, Seymour, & Edmonds, 1992), establishing rape as one of the most underreported crimes in the United States (Koss et al.,

1994).

Why is it then that rape is so hard to prosecute and people find it so hard to believe a rape survivor? To start, our courts have a history of placing the rape survivor more on trial than the alleged perpetrator. Common law not only required that women had independent evidence corroborating their story, but the victim also had to prove that she had done everything within her power to resist. (Torrey, 1995). Until very recently, the victim's background and behavior were also under intense scrutiny, as the victim's sexual history was permissible testimony (Torrey, 1995). Rape shield laws were passed in the 1970s and 1980s in an attempt to protect survivors from some of these practices. These laws limited cross- examination of victims' sexual histories, redefined rape in a way that made it gender neutral and focused it on the actions of perpetrator (e.g., rape is the act of sexual penetration by use or threat of force), redefined consent (e.g., so that it does not include the defendant only having thought that the victim consented), and eased or eliminated proof of resistance by the victim (Fischer, 1989). Although they were important steps, these laws have unfortunately made little difference in the rates of arrests, prosecutions, and conviction of rapists (Torrey, 1995). The statistics show that much more needs to be done (e.g., Goldberg-Ambrose, 1992; Homey & Spohn, 1991). As one commentator remarked, laws are easier to change than prejudices (Gaines, 1997). As an additional means of combating prevalent rape myths in an effort to more successfully prosecute rape cases, many prosecutors now look to expert testimony on rape trauma syndrome (RTS) and posttraumatic stress disorder (PTSD). Although experts can provide important information when testifying, unsubstanti- ated, nonscientific testimony on PTSD and especially RTS can harm not only victims and alleged offenders, but also the field of psychology as a whole. If the field of psychology is to be acknowledged as scientific, then psychologists must operate within the limitations of the empirical research. Several law and psychology review papers have addressed the use of expert testimony in rape cases (e.g., Fischer, 1989; Frazier & Borgida, 1992; Gaines, 1997; Stefan, 1994; Torrey, 1995). Although some of the older reviews included discussions of relevant psychological literature, they focused more on RTS than on PTSD as it is currently conceptualized and studied. Frazier & Borgida (1992), for example, provided a thorough review of not only the admissibility of RTS evidence, but also the psychological research that they considered relevant to the "scientific reliability, helpfulness, and prejudicial impact of RTS evidence." Fischer's (1989) review provided a thoughtful summary of how the evidentiary

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principles of expert testimony have been applied to RTS testimony and cataloged court decisions on the basis of the types of expert testimony presented at trial. However, she, too, primarily analyzed the appropriateness of expert testimony in regard to RTS and did not address the more recent uses of PTSD evidence. The more recent articles (e.g., Gaines, 1997; Stefan, 1994; Torrey, 1995) have been law reviews that focused on case law, at most only mentioning the relevant psychological research that pertains to the validity and reliability of the PTSD diagnosis. Therefore, these articles stop short of addressing the scientific validity of using this diagnosis within the context of expert testimony on rape. Thus, the purpose of this article is to analyze the scientific legitimacy of using rape expert testimony and to determine boundaries within which such testimony should remain to respect the limitations of current knowledge. Because the scientific literature is different for juvenile and adult victims, we do not combine both in this article. We focus only on the latter. In addition, rather than focusing the analysis primarily on questions of law and RTS-related evidence, as Fischer (1989) did, this review emphasizes the most recent evidence of the reliability and validity of the PTSD diagnosis as it pertains to rape trauma testimony. The next section of the article provides a brief description of the rape-related diagnoses currently used in expert testimony (RTS, PTSD, and acute stress disorder [ASD]) and highlights the problematic issues associated with the use of RTS in the courtroom in an effort to demonstrate that it is an outdated, confusing construct inappropriate for forensic settings. The next section reviews the literature on the PTSD diagnosis, assessing the validity and reliability issues of PTSD that are most relevant to forensic settings. The final portion presents a categorical system (similar to Fischer, 1989) of levels of expert testimony commonly presented in rape cases and considers the scientific appropriateness of presenting each type of testimony, given current knowledge on PTSD.

RTS, PTSD, and ASD

RTS

RTS has come to refer to three different types of empirical literature: the original RTS developed in the 1970s, the more recent and empirically strong studies of reactions to rape, and the diagnosis of PTSD by the Diagnostic Statistical Manual of Mental Disorders (4th ed.; DSM-IV', American Psychiatric Association, 1994) of which RTS is often considered a subset (Frazier & Borgida, 1992). These multiple connotations become confusing and problematic in the courtroom because judges, attorneys, and even some experts often presume that "RTS" is a reference only to the original construct and literature developed by Burgess and Holmstrom (1974), when an expert may be commenting on "RTS" in the context of the more recent and empirically sound studies of common reactions to rape, including studies of PTSD. A brief description of each of these sets of literature will be provided below to help clarify their differences in development, purpose, and utility. The original RTS was introduced by pioneering researchers Ann Burgess and Lynda Holmstrom in the early 1970s as a two-phase description of the commonly shared experiences of the rape survivors seen in the emergency room. Their model consists of an "acute" stage of extreme fear and other emotional, physical, and psychological symptoms experienced immediately after a rape, and a second,

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"reorganizational" phase of the more moderate and varied symptoms that appear

in the course of recovery (Burgess & Holmstrom, 1974). This syndrome, which

was defined to aid in the therapeutic process, was soon after used in the courts by expert witnesses to educate jurors about common reactions to rape (Massaro, 1985). The original RTS, however, has proven to be problematic in the courtroom for several reasons. First, the term RTS is not found in the DSM-IV (1994), nor in any previous editions. RTS is therefore an inappropriate term for the courtroom, as mental health workers should be restricting their testimonial comments to those constructs and terms with widely accepted meaning among mental health professionals. Furthermore, the original RTS was based on limited empirical work, and the more recent studies have not found support for Burgess's and Holmstrom's conceptualization of general stages of recovery (Frazier & Borgida, 1992). Although the original syndrome does not provide rape experts a solid foundation on which to base their testimony, the work of Burgess and Holmstrom acted as a historical catalyst that motivated other trauma researchers to conduct controlled empirical studies on the psychological reactions to rape using control groups, larger sample sizes, long-term assessments, and objective assessment measures (Frazier & Borgida, 1985). These empirical studies confirmed many of Burgess's and Holmstrom's observations, including findings that rape survivors experience more depression, anxiety, fear, and social and sexual problems than do other women (see Ellis, 1983; Resick, 1993; Steketee & Foa, 1987 for reviews of these early studies).

PTSD

PTSD, rather than RTS, is now more commonly measured in the aftermath of rape because PTSD is the primary trauma-related diagnosis included in the DSM-IV. To qualify for a PTSD diagnosis, a person must satisfy six criteria. Criterion A requires that the person "experienced, witnessed, or was confronted

with an event or events that involved actual or threatened death or serious injury, or

a threat to the physical integrity of self or others," and had a response that

"involved intense fear, helplessness, or horror" (DSM-IV, 1994, p. 427). To meet the B, C, and D symptom criteria, a person must qualify for at least one Criterion B reexperiencing symptom of the event (e.g., have recurrent and intrusive distressing recollections or dreams), three Criterion C avoidance symptoms (e.g., avoid stimuli associated with the trauma), and two Criterion D increased arousal

symptoms (e.g., experience difficulty in falling asleep or concentrating). Criterion

E requires that symptoms occur at a clinically significant level, and Criterion F

requires that the person experience the symptoms for at least a month. Although PTSD was originally constructed to address the psychological trauma of veterans returning from the Vietnam War (Peebles, 1989), it was soon recognized that the diagnosis had broad applications to trauma, making PTSD a common diagnosis for rape survivors. In fact, there are now more rape survivors classified as suffering from PTSD than any other trauma group (Morris, 1992). This movement to incorporate all traumas under the diagnosis of PTSD has potential benefits for rape survivors in the forensic setting. Although it has yet to be tested empirically, it is widely believed that rape survivors gain more credibility in the courtroom when they qualify for a PTSD diagnosis. Because PTSD was originally constructed with war veterans in mind,

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however, the use of the PTSD diagnosis with rape survivors can be problematic. PTSD only accounts for some (not all) of the postrape symptoms identified by researchers and has been criticized for failing to acknowledge the complexity of women's responses to trauma (Koss et al., 1994). Although many of the symptoms associated with rape trauma overlap with the diagnostic criteria of PTSD, RTS cannot be considered synonymous with it. The PTSD criteria listed above cover the intense fear that many rape survivors experience, as well as the desire to avoid situations that are reminders of the rape experience. However, the PTSD criteria do not account for the depression, anger, sexual dysfunction, guilt, humiliation, and disruption in core belief systems about the self and others that are also common symptoms among rape survivors (e.g. Atkeson, Calhoun, Resick, & Ellis, 1982; Becker, Skinner, Abel, & Treacy, 1982; Janoff-Bulman & Frieze, 1983; Kilpatrick et al., 1985; McCann & Pearlman, 1990). The National Women's Study indicated that there are a number of rape survivors who meet the criteria for depression, for example, but who do not meet the criteria for PTSD (Acierno, Kilpatrick, Resnick, Saunders, & Best, 1996). Some researchers have suggested creating a subset of PTSD for rape trauma survivors that would include the postrape symptoms mentioned above that are not addressed in the original criteria. For example, Herman (1992) has suggested a "complex PTSD" categorization for people who suffer from chronic interpersonal violence (such as incest or domestic violence survivors) that would include such criteria symptoms as affective dysregulation, dissociation, and self-destructive behaviors. Although this complex PTSD category is not appropriate for the one-time trauma survivor, it is an example of a way in which to expand the DSM-IV (1994) diagnosis to describe the full experience of one subset of trauma survivors. The lack of overlap in the symptom criteria of PTSD and the more extensive symptoms common to the postrape experience can be problematic for prosecuting rape cases. Because of the variability in reactions to rape, the PTSD diagnosis may not be broad enough to account for rape survivors who suffer mainly from depression or sexual dysfunction. This issue may not be problematic in the clinical setting if providers consider all reported symptoms (as they should), rather than just PTSD-related ones. The courtroom, however, often inappropriately places more emphasis on the diagnoses as a sign that a trauma did occur (Stefan, 1994; see below, Admissibility of Proffered Expert Testimony). Although it has not yet been documented, one might suppose that it is more helpful in court if the survivor suffers from PTSD than not, given that it is the diagnosis most associated with trauma. Unless an expert clarifies that rape survivors often suffer from symptoms other than PTSD, jurors and judges may have a more difficult time associating the described distress with alleged trauma and ultimately regard the rape survivor as less credible. Thus, the current PTSD diagnosis could cause problems in the courtroom for women who do not meet the diagnostic criteria (see Stefan, 1994 for similar critique of RTS). More inclusive criteria for PTSD would make for a more etiologically appropriate and consolidated diagnosis for women suffering from rape. Finally, at least one study has acknowledged "partial PTSD" trauma survivors who still suffer from several symptoms, but who do not meet the full criteria necessary for a PTSD diagnosis (Weiss et al., 1992). A subcategory that

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acknowledges these subthreshold survivors may also be an important gain in a prosecution process that places such emphasis on diagnosis.

ASD

A final diagnosis that could be used by expert witnesses to describe reactions to rape trauma is ASD. According to the DSM-IV (1994), a rape survivor can be diagnosed with PTSD only after 1 full month of symptomotology. ASD is therefore used to describe the condition of a rape survivor who suffers from PTSD-like intrusions and avoidance symptoms before the 1-month time frame is up. We are unaware of any cases where ASD has been used in rape litigation, and therefore it will not be discussed further in this article (see Briere, 1997, for a full review of the reliability and validity of this diagnosis).

Assessment of the PTSD Diagnosis for Forensic Purposes

Validity of the PTSD Diagnosis

Linking PTSD to rape. Although PTSD is the strongest rape-related diagnosis on which to base educational expert testimony, there are several limitations to this diagnosis that prevent courts from being able to use it as a litmus test for rape (Briere, 1997). To start, it is difficult to link a presentation of PTSD symptomotology to a rape. The PTSD criteria require only that a victim has suffered from a horrifying traumatic event. It is therefore possible that a trauma other than rape produced some or all of the symptoms in question (Briere, 1997). Certain steps can be taken to obtain information that might help tease apart the cause and effect, however. Such steps include conducting a thorough assessment of the temporal sequence of events and symptoms (e.g., did PTSD symptoms occur only after the alleged event in the absence of other intervening traumas?), and obtaining a detailed description of the nature of the victim's intrusive symptoms (e.g., flashbacks and intrusive images of the specific rape experience). Collecting outside information from family, friends, medical doctors, psychologists, and medical and psychological files and records can be even more important, given that survivors are often poor historians if they are currently suffering from the distorting effects of dysphoria (Briere, 1997) or are trying to recall a traumatic event that occurred in the distant past (Koss, Figueredo, Bell, Tharan, & Tromp, 1996). Although it has not been empirically tested yet, it is likely that victims who have backup collaboration from medical records or other sources, for example, will be more believable that those lacking documentation of the onset of their symptoms. Unfortunately, there are many cases in which even external corroboration cannot clarify the situation. For example, it is not uncommon for a victim to have survived multiple traumas, in which case it is difficult to attribute symptoms to only one of the events. In other cases, other negative life events have since intervened, making the symptom picture more complex (Briere, 1997). The symptoms may not always be severe enough to meet the PTSD criteria, they may "only" meet the diagnostic criteria for other diagnoses such as depression, or both. In summary, although there are clues that can suggest that a rape occurred, it is difficult to say with certainty that a specific traumatic event, such as that rape, has caused a PTSD reaction.

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Comorbidity. The issue of comorbidity also makes it more difficult for experts to reach strong conclusions solely on the basis of the presence of PTSD symptoms. PTSD symptoms overlap with the criteria for several other clinical disorders including depression, panic disorder, phobias, obsessive compulsive disorder, and alcohol and drug abuse (for review, see Davidson & Fairbank, 1993; Fairbank, Schlenger, Saigh, & Davidson, 1995). For example, epidemiological studies have found that 62-88% of people with PTSD meet criteria for at least one other psychiatric disorder (Fairbank et al., 1995). These comorbidity rates are not surprising, however, given that several symptom criteria of PTSD overlap with symptom criteria of anxiety disorders and depression (Davidson & Foa, 1991). Avoidance of habitual associations and activities, for example, is characteristic of both depression and PTSD. Hyperarousal is seen in many forms of anxiety disorders. Researchers have suggested that posttraumatic depression may be a partial form of PTSD, rather than a manifestation of depression (Davidson & Fairbank, 1993). On the other hand, comorbidity may simply be an artifact of the DSM-IV (1994) approach to defining these disorders. Nevertheless, comorbidity raises questions about PTSD as a distinct diagnostic entity (Weathers, Keane, King, & King, 1997). Malingering. Malingering is another issue that needs to be addressed in using the PTSD diagnosis in forensic situations. Because survivors may have a stronger case if they receive a PTSD diagnosis and generally have much to gain from winning their case (either money in civil cases or redemption in criminal cases), it is important to be able to show that people faking symptoms can be caught. Most PTSD scales unfortunately have high face validity, which means that people are more likely to be able to determine the construct being assessed and distort responses to fit their purposes (Weathers et al., 1997). Several studies have looked at whether "fakers" can be caught. Some studies have found that PTSD symptoms can in fact be faked. Lyons, Caddell, Pittman, Rawls, and Perrin (1994), for example, found that three non-PTSD control groups who were instructed to respond as though they had the disorder indeed obtained the same scores as the veterans who actually had PTSD on the Mississippi Scale for Combat-Related PTSD (Keane, Caddell, & Taylor, 1988), a reliable diagnostic instrument of PTSD. Fortunately, the validity scales of the second edition of the Minnesota Multiphasic Personality Inventory (MMPI-2) look to be promising tools for catching fakers because symptom exaggerators often have elevated, invalid profiles (Butcher, Dahlstrom, Graham, Tellegen, & Kaemmer, 1989). Even though several studies have shown that victims of abuse and Vietnam veterans also often have elevated scores on the validity scales, the Frequency scale in particular (e.g., Elliot, 1993; Jordan, Nunley, & Cook, 1992; Smith & Frueh, 1996), other studies have shown that fakers tend to obtain even more invalid scores on certain MMPI-2 validity scales. For example, Wetter, Baer, Berry, Robinson, and Sumpter (1993) found that nonclinical people instructed to fake PTSD who were first given information on PTSD symptoms and a promise of monetary reward for success scored significantly higher on the Frequency and back F scales, Dissimulation Index, and Depression validity scales than the legitimate Vietnam veterans who suffered from PTSD. After optimal cutting scores were calculated, researchers could obtain a 78-80% hit rate (i.e., they could correctly determine that the participant was a legitimate PTSD patient) on the basis of how the

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respondents scored on the Frequency, Dissimulation Index, or Depression validity scales. These conclusions, however, are based on studies with small sample sizes of veterans and relatively large standard deviations (Briere, 1997). Pending further research, psychologists cannot suggest absolute cutoffs for fakers, guarantee that all diagnoses of PTSD are legitimate, nor assert that every malingerer presenting with PTSD symptomotology will be caught. But, if used in conjunction with interviews such as the Structured Interview of Reported Symptoms (Rogers, Bagby, & Dickens, 1992), the MMPI-2 validity scales can be helpful in detecting probable cases of intentional lying or exaggeration. Updated assessment instruments. Finally, the validity of the diagnosis requires that experts use updated PTSD assessment instruments. Older instruments have the potential to confuse intrusive PTSD symptoms with hallucinations, obsession, and faking responses, to nam e a few (Briere, 1997). In addition, several scales have not yet been updated to include the DSM-IV (1994) criteria changes (Weathers et al., 1997). The above means that the expert must choose carefully when selecting assessment instruments. This choice is not always easy to make, given how often the criteria for a diagnosis of PTSD change. Formal diagnostic criteria for PTSD were first introduced in the Diagnostic and Statistical Manual of Mental Disorders (3rd ed.; DSM-III; American Psychiatric Association) in 1980. However, the criteria have changed with each subsequent volume of the DSM, specifically the Diagnostic and Statistical Manual of Mental Disorders (3rd ed., revised; DSM-III-R; American Psychiatric Association, 1987), and then again in the DSM-IV (Weathers et al., 1997). The PTSD construct continues to evolve as more information about the disorder becomes available through research on memory and physiological arousal, for example, as well as on different trauma groups such as rape survivors and traumatized children. Although it is important for the diagnostic criteria to reflect the findings of the research, it is difficult for researchers to develop reliable and valid tools for evolving criteria.

PTSD Assessment Tools

There are generally two different sets of measures taken to assess PTSD: One set of instruments assesses the trauma (Criterion A), and the second assesses the symptoms (Criteria B-F). Researchers who assess the prevalence of rape need to be careful to use Criterion A assessment tools that describe the events behaviorally rather than more generally (i.e., screening items must describe the specific type of conduct involved instead of using the general term "rape") because many people will not necessarily know that they have been raped or will refuse to identify with the label rape (Koss, 1993). Forensic rape cases, however, rarely have to address the reliability and validity issues of the Criterion A tests, given that rape has been generally accepted as a trauma that meets the Criterion A definition and that a woman does not come to trial in forensic cases unless she thinks she has been raped. Nevertheless, the Criterion A measures should still be given carefully to assess whether a survivor has experienced additional traumatic experiences. As was previously discussed, it is especially important to assess the time frame in which the additional traumatic experiences occurred. It is also important to assess the existence of the DSM-IV (1994) "intense fear, horror, helplessness" criterion about which some of the older measures do not ask (see Norris & Riad, 1997, for a discussion of Criterion A measures of civilian trauma).

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The second set of instruments assesses whether the trauma survivor meets the symptom criteria of PTSD (Criteria B-F). There are several types of these instruments, including structured diagnostic interviews, trauma-specific self- report measures, and the more general objective tests such as the MMPI-2. More recently, psychophysiological measures have also been studied as a potential measure of PTSD. All of these measures have individual strengths and weaknesses in terms of validity and reliability, but they can prove fairly effective when used together in a comprehensive assessment. Structured diagnostic interviews. The structured diagnostic interviews are useful in testing for PTSD primarily because they tend to be more thorough and specific, providing a list of diagnostic criteria and questions to address each criterion. Materials have even been developed for both the Structured Clinical Interview Diagnosis—III—R, PTSD Module (Spitzer, Williams, Gibbon, & First, 1990) and the Clinician-Administered PTSD Scale (CAPS-1; Blake et al., 1995) to help clarify the decision-making process in determining the presence or absence of a criterion symptom (Weiss, 1997). It is important to recognize, however, that the use of a structured diagnostic interview does not eliminate the chance of diagnostic error, for several reasons. First, these measures often do not link specific symptoms to one specific event but rather just assess the presence of the appropriate symptoms (Briere, 1997). As previously noted, this precise link is important in the forensic arena, where the goal is to link a person's symptoms to only one specific rape event. Second, these structured interviews are limited in that many of them have not yet been updated to reflect the changes in the DSM-IV (1994) PTSD criteria (Weathers et al., 1997). Clinicians thus need to be cautious when selecting these instruments. Finally, some of the most promising interviews (such as the CAPS-1) were developed and validated on veterans, making their appropriateness for civilian trauma questionable until they are empirically proven to generalize to other populations (Weathers et al., 1997). Measures that have been validated on sexual assault victims, such as the PTSD Symptom Scale—Interview (PSS-I; Foa, Riggs, Dancu, & Rothbaum, 1993), should be used when assessing rape survivors. Trauma-specific self-report measures. Trauma-specific self-report measures are useful in that they ask the specifically relevant questions that pertain to a particular trauma. Yet these assessments also have several limitations to their ability to reliably diagnose, and it is best to rely on convergent information from multiple types of instruments to obtain a reliable diagnosis (Schlenger, Fairbank, Jordan, & Caddell, 1997). First, few of these self-reports have been studied rigorously over time primarily because researchers keep presenting slightly different versions of essentially the same trauma measure instead of spending time cross-validating and improving the current scales (Morris & Riad, 1997). Second, these scales use a 17-item approach that only provides 1 item per criterion of PTSD. A single item is a less reliable estimate of a construct. If even one item is avoided or misunderstood, the diagnosis could be greatly affected (Briere, 1997). Objective tests. Several objective tests now have special items or scoring approaches on both for diagnosing PTSD, such as the MMPI-2 PK (PTSD-Keane, Keane, Malloy, & Fairbank, 1984) and PS (PTSD-Schlenger, Kulka, Fairbank, Hough, Jordan, Marmar, & Weiss, 1989). These more general personality tests have been criticized, however, when used to diagnose PTSD populations because

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they include a large variety of non-PTSD-like symptom items and do not thoroughly assess the DSM-IV symptom criteria (Weathers et al., 1997). They also generally fail to assess the 1-month time requirement for symptom experience as well as the requirement that the reaction to the trauma be upsetting (Briere, 1997). The MMPI-2 is also limited in its use on civilian populations because it was developed and validated on war veterans. Validity and reliability. Ample empirical studies have looked carefully at the convergent validity of these different measures of PTSD (Weathers et al., 1997). Convergent validity assures that the different tests are measuring the same construct. Fortunately, the findings suggest that a person who scores high on one measure of PTSD is also very likely to have a high score on another measure of PTSD. Very few studies, however, have looked at the divergent validity of PTSD, which assesses whether the PTSD instruments are measuring a construct separate and distinct from other DSM-IV diagnoses. The few existing studies do not show promising results. This fact is not surprising, however, given the previously mentioned comorbidity issues associated with PTSD. For example, Weathers (1992) conducted a study that looked at the convergent as well as divergent validity of PTSD by comparing the CAPS-1 with measurements of three different DSM diagnoses. Like other studies, CAPS-1 was found to correlate strongly with the other measures of PTSD. Although he found that the CAPS-1 correlated weakly with the measures of antisocial personality disorder (suggesting good divergent validity), the CAPS-1 correlated moderately with measures of depres- sion and anxiety, again suggesting that there are similarities between the diagnoses of depression, anxiety, and PTSD, making for poor divergent validity. In terms of reliability, many of the instruments that measure PTSD and that have been validated on civilian populations are psychometrically sound with good internal consistency (alpha usually = .S5-.95) and test-retest reliability (r usu- ally = .80-.96). Such reliable measures include the PSS, the Revised Civilian Mississippi Scale (Morris & Perilla, 1996), and the National Women's Study PTSD Module (Kilpatrick, Resnick, Saunders, & Best, 1989; for a comprehensive review of all PTSD instrument reliabilities, see Wilson & Keane, 1997). Therefore, it appears that several measurements of PTSD can provide reliable assessments. However, this is only the case if the assessor carefully matches the specific client with measures that have been proven reliable with a similar population. Almost all of the psychometrically sound scales have already been validated on war veterans, but as discussed, only some of the scales have demonstrated reliability with rape survivors (See Norris & Riad, 1997, for a comprehensive review of measures of civilian PTSD). Most studies that have assessed the sensitivity of the above mentioned instruments for sexual assault survivors have found that these scales can generally correctly identify 80-90% of people who have PTSD, or the "true positives" (Norris & Riad, 1997). For rape experts, this means that very few rape survivors who qualify for the current PTSD diagnosis will go undetected by these tools. Studies of specificity have also generally found rates of 80-90% (Norris & Riad, 1997), which suggest that these scales diagnose non-PTSD people incorrectly (false positives) only 10-20% of the time. Although similar to many other tests of other DSM-IV diagnoses, this finding admits that there is a small percentage of people who are diagnosed with PTSD who actually should not be. None of these

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scales can promise a hit rate of 100%. However, no scale for any DSM-IV diagnosis can promise a 100% hit rate. These are the limitations in working with psychological tools. Some tools are good, but none is perfect. Psychophysiology. In the hopes of further improving the hit rate for diag- noses such as PTSD, several psychologists have turned to the study of psychophysi- ology. It is the goal of these scientists to eventually discover the presence or absence of a physiological response to trauma-related cues that can be used as a marker for the existence of PTSD (Orr & Kaloupek, 1997). Unfortunately, the work has only just begun, and although some initial studies have reached tentative findings on war veterans, these findings do not reveal a strong, reliable test of PTSD. Furthermore, few studies have studied rape survivor populations, and little has been written about the practical application of these measures to an actual diagnosis of PTSD (See Orr & Kaloupek, 1997, for a full review). Although it may be a promising area of study, psychophysiology currently offers no better litmus test for PTSD than do the pen and pencil tests previously described. Other promising non-self-report methods for assessing PTSD are in similar stages of discovery. Laboratory studies suggest that an index of intrusive cognitive activity can be measured through nonintrospective methods such as the Stroop Test, which may help assess PTSD in rape survivors. Researchers have found thai rape survivors who have PTSD generally exhibit more cognitive interference when presented with trauma cues than nontraumatized controls and rape survivors who do not have PTSD (Cassiday, McNally, & Zeitlin, 1992; Foa, Feske, Murdock, Kozak, & McCarthy, 1991). Like psychophysiology, however, this line of research on cognitive interference does not yet provide a solid basis for documenting PTSD.

Admissibility of Proffered

Expert Testimony

The preceding discussion of the validity and reliability of these diagnoses has

clarified the limitations of our knowledge and laid the foundation to evaluate the

rape trauma expert testimony. We explici-

tyly avoid using a legal lens for this evaluation. For a discussion of the law's approaches to admitting expert clinical and scientific testimony see Shuman and Sales (in press). This section will describe past admissibility decisions in rape cases, using categorical levels similar to those first described by Fischer (1989) and integrating a discussion of the scientific propriety of allowing such testimony into court, given the empirical findings described above.

scientific appropriateness of admitting

Level 1: Testimony on Specific Described as "Unusual" by the

Behaviors of Rape Survivors That Are Defense

Testimony at this level is used by the victim's counsel in both criminal and civil trials to rebut the perpetrator's argument that a victim exhibited an unusual behavior following a rape. The sole purpose of this type of testimony is to combat untrue, damaging myths that jeopardize the victim's credibility. It does not provide any circumstantial evidence on the issue of consent (whether or not the victim agreed to have sex). Attorneys for alleged offenders have introduced testimony about several unusual behaviors, including a victim's delay in reporting, a failure to recall details, the omission of certain aspects of the rape, an inability to

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immediately tell the police the name of the attacker, an inability to identify the attacker 2 weeks later, a lack of emotion following assault, the denial of being raped to friends, memory loss of events preceding the rape, asking an assailant not to tell anyone about the rape, and having a rapist establish a brief relationship with the victim before the assault (Fischer, 1989). This level of testimony has usually been found to be helpful by courts. It can also be considered scientifically valid now that researchers have the stronger empirical studies on rape responses to support the argument that most of these seemingly unusual behaviors (i.e., behaviors that appear to be inconsistent with a claim of rape) are actually not that unusual for rape survivors. However, not all of the unusual responses described above have actually been proven in the literature to be a common response to rape (Frazier & Borgida, 1992). For example, one expert claimed that it is very common for a victim to ask an assailant not to tell anyone about the assault (Lessard v. State, 1986), even though this is not a behavior that has been documented in the rape literature (see Frazier & Borgida, 1992, for review of empirical evidence pertaining to these unusual behaviors). It is obviously unethical for a rape trauma expert to testify on unusual behaviors that have not been documented as common responses to rape (see Ethics Code Provision 1.06: Basis for Scientific and Professional Judgments, American Psychological Association, 1992). In addition, the expert must not only know but must admit to the limits of empirical knowledge; the role of the expert witness is not to advocate for a side but rather to educate the jurors and judges. Psychologists have an ethical obligation to do so. Section 7.04b of the Ethics Code reads, "Whenever necessary to avoid misleading, psychologists acknowledge the limits of their data or conclusions" (American Psychological Association, 1992, p. 1610). Some courts have ruled that the experts presented by the victim's attorney can only rebut the specific unusualbehaviors brought up by the attorney for the alleged offender (e.g., Commonwealth v. Mamay, 1990; State v. Hall, 1987) and are not allowed to present general information about common responses to rape. This limitation appears too severe in that it permits the expert to dispel only one or two misconceptions about rape. It does not permit the expert to address the other myths that may prejudice the jury against the victim. Empirical evidence suggests that the average juror does not have an adequate knowledge of rape (Frazier & Borgida, 1988). Laypersons have been found to score significantly lower (at almost chance level) than experts on a questionnaire about sexual assault (Frazier & Borgida, 1988), suggesting that it would be helpful to triers of fact to receive more information on reactions to rape. Furthermore, this level of testimony should not be considered prejudicial against the alleged offender because it only provides general information to the jurors in an effort to combat the negative stereotypes often believed about rape victims. Future research will need to assess jurors' reactions to limited versus general testimony on reactions to rape.

Level 2: Testimony on the Common Reactions to Rape and the General Diagnostic Criteria ofRTS orPTSD

This level of testimony involves a discussion of common postrape behaviors and experiences, including a description of the symptom criteria for RTS or PTSD. At this level of testimony, the expert does not examine the alleged victim and is not allowed to discuss the specific victim's behaviors or symptoms. The testimony is

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kept at a general, descriptive level. In State v. Moran (1986), for example, the court ruled that lay witnesses could testify about the victim's behavior, but that the expert could only talk about the reactions of rape survivors in general. Although still commonly found in the forensic setting, RTS is a phrase no longer used in the clinical setting and thus should no longer be used by a mental health expert. Several courts have come to a similar conclusion, but for a different reason: prejudicial language. In State v. Home (1986), for example, the court allowed the expert to provide a general description of common rape responses but not a description of RTS because it deemed the language in the term rape trauma syndrome to be too prejudicial. The court's fear was that if a jury hears that a woman is described as suffering from RTS, the jury will conclude that she must have been raped. On the other hand, the empirical research supports the relevance of admitting general educational testimony on PTSD in the courtroom. For example, 90% of rape survivors experience PTSD symptoms immediately after the rape (Rothbaum, Foa, Murdock, Riggs, & Walsh, 1992), and 15% of rape survivors are diagnosed with lifetime PTSD, making rape survivors the largest group of trauma victims who suffer from PTSD (Morris, 1992). Thus, it is appropriate to discuss PTSD in rape cases. An expert should not solely provide a description of a PTSD diagnosis, however, but should also include an explanation of the empirically validated, common postrape symptoms that are not covered by the diagnosis (e.g. sexual dysfunction, depression, etc.). The expert should also acknowledge that the majority of rape survivors do not fit a full diagnosis for PTSD and therefore the lack of a diagnosis does not prove that the rape did not occur. The most important limitation to which an expert can admit is that the field of mental health does not have a litmus test for PTSD and that a PTSD diagnosis does not prove conclusively that a rape has occurred.

Level 3: Expert

Behavior or Symptoms With RTS or PTSD

Gives an Opinion About the Consistency of a Victim's

The expert testifying at this level of testimony is allowed to discuss whether the victim's symptoms are consistent with RTS or the symptom criteria of the PTSD diagnosis (e.g., People v. Douglas, 1989). The expert does not examine or diagnose the victim, claim that she suffers from RTS or PTSD, nor imply that she is being truthful in her description of her own symptoms. Some commentators feel that this level of testimony is important to a fair trial because they are afraid that jurors may not be able to see the consistencies between rape survivors' symptoms and the expert's description of postrape responses without the expert's testimony identifying them (e.g., Fischer, 1989). This type of testimony is much more controversial than that of Level 1 or 2 because it permits the expert to go beyond the general, educational information and apply it to a specific case. Some courts have felt that such testimony is prejudicial to the defendant because it indirectly boosts the victim's credibility to have an expert discuss her symptoms (e.g., People v. Gray, 1986), even though the expert does not interview the victim nor comment on the truthfulness of her

self-reported

symptoms.

Fortunately, researchers have begun to address this question

of credibility.

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Brekke (1985) had mock juries listen to reenactments of rape cases containing either no expert testimony, general information on RTS, or testimony specific to the particular case (similar to this level of testimony). The study found that although the mock jurors did rate the victim's credibility higher when the expert explicitly explained the lines of consistency between the victim's alleged symptoms and RTS symptoms, the defendant's credibility was not affected across conditions. A similarly designed study by Brekke and Borgida (1988) found that juries were most likely to convict when they had been exposed to the specific expert testimony but only when the testimony had been presented early in the trial. The authors concluded that the expert testimony appeared to function as a filter for subsequent facts when it came early in the trial, but that the jurors' preconceived notions and biases led the deliberations when the testimony came at the end of the trial (Brekke & Borgida, 1988). Analyses of the jury deliberations again showed that the specific expert testimony did not afreet the favorability of the defendant's credibility, suggesting that the testimony is not prejudicial to the defendant. Instead, it appears that the expert testimony serves to counteract the pervasive rape myths that bias the average juror against alleged victims (Borgida & Brekke, 1985). Although these studies should be replicated using a description of PTSD to ensure their generalization to the contemporary situation, they suggest that this additional level of admissibility helps to make the trial less tainted by bias against the victim. In sum, it appears that the consistency level of testimony in regards to PTSD (not RTS) is a valid use of expert testimony, given that the expert does not appear to unfairly comment on the victim's credibility. Furthermore, the expert does not make a diagnosis of PTSD and thus avoids any concern over the specificity or sensitivity limitations of the PTSD diagnosis. Several empirical questions need to be addressed, however, before the full implications of admitting this level of testimony are understood. For instance, researchers need to empirically investigate the question implied above: Can juries see the consistencies between the victim's symptoms and the expert's description of postrape responses on their own? They also need to determine whether jurors' ratings of victims are actually unfairly low without this level of testimony.

Level 4: Testimony Stating That the Victim Suffers From RTS or PTSD

At this level of admissibility, the expert describes the victim's symptoms and states that she meets the criteria for a clinical diagnosis of PTSD. The expert stops short, however, of stating that the victim was raped. Courts that have permitted this level of testimony (e.g., State v. McQuillen, 1984) argue that the testimony is not unfairly prejudicial because the defense is allowed to cross-examine the state's expert or bring in their own expert. In addition, in stating that a woman suffers from PTSD, an expert is not declaring that the woman was raped but only suggesting that she has survived one of many different types of life-threatening traumas.

at previous levels are again

relevant here: There is no clinical RTS diagnosis or solid empirical research on which to base ethical RTS expert testimony. The decision to testify about a PTSD diagnosis, however, is ethically less clear. Some could argue that the reliability and validity of the diagnosis are not strong enough to use in a courtroom because no

The issues surrounding RTS testimony discussed

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test or clinical interview can produce a 100% positive diagnosis of PTSD. However, no DSM diagnosis can meet a 100% standard of proof. The question then becomes, should mental health workers be prohibited from testifying about all clinical diagnoses? Given the extent of current knowledge about the diagnosis of PTSD, including the limitations of assessment tools and the diagnosis in general, mental health professionals have a significant amount of information that they can ethically convey to the judge and jury. It then becomes the job of the opposing counsel, but more importantly and realistically, the ethical standards of the expert, to ensure that any discussion of a diagnosis is accompanied by a discussion of the demonstrated limitations as laid out earlier. Psychologists have a moral responsibil- ity, one that often goes beyond requirements of the law, to stay within the limits of their knowledge (Lavin & Sales, 1998). Finally, some may want to argue against the admissibility of this level of testimony on the belief that it will be prejudicial against the defendant because it will unfairly boost the victim's credibility. However, we do not yet have the empirical work that would suggest what impact this level of testimony can have on a trial and its participants.

Level 5: Expert Opinion That Goes Beyond a Diagnosis

At this level of testimony, the expert states that the victim is telling the truth, states that the victim was raped, or both. Almost all states refuse to admit this level of testimony because it clearly invades the jury's province and bears directly on the victim's credibility (Fischer, 1989). The courts, as well as the literature, do not support the use of RTS testimony at this level. However, in Maryland's State v. Allewalt (1986), the expert was permitted to say that the victim's PTSD diagnosis was caused by rape. The court ruled that this was admissible because the opinion was based on a medical diagnosis. The current state of the PTSD literature, however, would suggest that the court and the expert acted inappropriately in this case: The court permitted testimony that went beyond scientific knowledge, and the expert failed to acknowledge the limitations of the diagnosis and the difficulty in linking specific traumas to specific symptoms and instead answered a question that should have been addressed only by a judge orjury.

Conclusion

Although RTS has historical importance, it makes for confusing and poten- tially unscientific expert testimony and should no longer be used in the courtroom. PTSD although far from being a perfect diagnosis for rape survivors, looks to be a more reliable and valid diagnosis for expert testimony, especially when accompa- nied by a description of the additional postrape symptoms absent from the PTSD diagnostic criteria. Empirical studies of PTSD make clear that, as with other psychiatric disorders, no instrument is 100% accurate. There is no litmus test for PTSD, and researchers may never discover one for the act of rape. Furthermore, PTSD was initially created as a political gesture to the veterans of the Vietnam War, not as a general diagnosis of trauma survivors to which it is now routinely applied. Thus, the PTSD criteria do not comprehensively cover all empirically validated common reactions to rape, and high rates of comorbidity raise questions about the diagnosis as a whole. These facts do not deem expert testimony useless, but they do limit the

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ways in which the testimony can be helpful as opposed to harmful. If used

cautiously and appropriately, expert testimony on PTSD can help to educate the

judge or jury about common reactions to rape.

It appears that there is now enough empirical knowledge to allow experts to go

so far as to discuss the PTSD diagnosis of a particular victim , but only if they first

acknowledge the limitations of the validity of the diagnosis and the reliability of

the current measurement tools. Future research is necessary, however, to discover

if jurors listen to these limitations and also to verify that this type of testimony does

not unfairly prejudice the jury against the defendant. There are currently several

levels of testimony allowed by different courts. It is imperative that experts

determine at what level they can testify ethically and that they do not allow

themselves to be pressured into answering questions that exceed these boundaries.

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