Portrait of a male lawyer pointing
Defensive Attorney Sexual Abuse/Domestic Violence Playbook
E. Jean Carroll, author, alleges she was raped by Donald J. Trump in a Bergdorf Goodman fitting room sometime in 1996. Trump’s attorney, Joseph Tacopina, cross examined her following completion of her direct testimony in Federal Court, Manhattan on April 27, 2023. Tacopina followed the typical defense attorney playbook when questioning her, the playbook used to question any witness alleging sexual assault or domestic violence or child abuse, delivered in an aggressive tone of voice while physically leaning into or pointing at the witness in court.
Suzie Miller, playwright of the critically acclaimed play, “Prima Facie” starring Jodie Comer, currently on Broadway, asks the question, “why does it have to be this way? Why is the accused in a criminal trial afforded the right not to testify and in a civil trial, the right not to appear while the victim is subjected to painful cross examination designed to discredit and shame her?
Cross examination questions are designed to show gaps in the witnesses’ testimony, things added or deleted over time to her prior statements—her failure to contact the police at the time of the incident, failure to seek an order of protection from the family court, whether or not she screamed or called for help, whether she went for medical attention following the incident, the answers or the inability to answer all supposedly leading to the “truth” and exposing the victim’s lack of credibility. Ultimately in Ms. Carroll’s case, it will be up to the jury to decide if she is credible in her testimony. In Ms. Miller’s play, the play ends exposing the injustice of this juxtaposition between what is required of the victim against the lack of any requirements of the abuser. In most family court cases, it is up to the judge hearing the testimony to determine credibility of the witness, the victim.
The same strategy of cross examination in sexual assault cases in criminal court is used in family court in sexual abuse and child abuse cases against these complaining victims.
Victims of Domestic Violence Do Not Seek Police Intervention
Overtime, more and more evidence explaining why victims of domestic violence do not seek police intervention or medical attention has been publicized from Canada, across the US and in the UK. Much of domestic violence is control and psychological abuse—not always visible cuts or bruises or broken bones. Even with physical injuries, victims may fear additional abuse if outsiders find out. Victims are often ashamed or embarrassed, or afraid of being disbelieved.. Some are financially unable to support themselves or their children without the abuser’s financial support.
Domestic Violence Causes Trauma and PTSD
Domestic Violence, which can include sexual assault, impacts the brain and behavior. It causes trauma for the victim. She may experience symptoms of Post Traumatic Stress Disorder, including hyperarousal, reexperiencing the violence, avoidance and numbing. The damage can be both neurological and psychological.
“The Trauma” Experienced Impacts Memory
“Traumatized people often have enormous difficulty telling other people what has happened. Their bodies experience terror, rage and helplessness, as well as impulse to fight or flee, but these feelings are impossible to articulate.” Traumatized people tend to respond differently than other people, thereby causing others to assume that they weren’t truly victimized.
Once a person has been traumatized, it may become extremely challenging to truly express the full impact this incident has had on her life. They become fearful of reliving the experience. Traumatized people are often afraid of feeling. Their own sensations become their enemy. Even though the trauma is a thing of the past, the emotional brain keeps generating sensations that make the sufferer feel scared and helpless.
Trauma impacts four different types of memory:
Semantic Memory or general knowledge of facts is impaired by trauma preventing information like words, images and sounds from differing parts of the brain from combining to make a semantic memory.
Episodic Memory or memory of an event or experience-who, what, where-is impaired by trauma in that it can be shut down and only fragments of the sequence of events can be recalled.
Emotional Memory or memory of what we felt during an experience can be impaired because triggers can force painful emotions to be re-experienced often without context.
Procedural Memory or memory of how to perform a common task without thinking can be altered by trauma in that patterns of procedural memory can be changed altering posture unconsciously.
Trial Court Testimony Expectation
Notwithstanding how domestic violence and sexual assault can traumatize victims, they are expected to testify in court in a linear, non-fragmented narrative with all details fully at their command as to date, time, place and expressing appropriate affect and emotion while doing so. We do not expect this of any other victims of any other crime.
We do not expect the victim of a traumatic brain injury in a car accident to give a linear account of the accident and what led up to it. We do not expect a victim of a burglary and assault to be able to testify with clarity about the masked man who broke in and assaulted them. We do not expect victims of gun violence to be able to identify the shooter or the gun if they were shot from behind. We do not expect a victim of medical malpractice to describe the surgery that left them without a leg. We make accommodations for victims testifying by providing whatever physical support they may need to come into the courtroom and tell whatever part of their story they can tell.
There is often extrinsic evidence, fingerprints, photos or videos in the above-mentioned cases which is not the case in most sexual assault or domestic violence cases. Domestic violence is the crime committed behind closed doors with only the victim and the children as witnesses. The perpetrator is identified without extrinsic evidence. It is the crime that must be identified by its victim in the presence of the perpetrator.
Imperfect Testimony
It must become accepted that victims of domestic violence have suffered a trauma and/or are suffering from PTSD. It must become acceptable that their stories will be fragmented, that their affect may be inappropriate because they are shielding themselves from being re-traumatized. They may forget parts of their story.
If they are poor or self-represented, they may not be dressed appropriately to testify in court.
They will be imperfect narrators of their own life but it is this very imperfection that makes them credible. Their lack of a polished, fact, date, time laden narration is proof itself of the trauma they suffered and are still suffering. Just as abrasions and a broken arm are physical proof of an assault, symptoms of trauma is physical proof of domestic violence or sexual assault. Its evidence is in its lack of a cohesive narrative, not of credibility.
What is Justice for Victims of Sexual Abuse and Domestic Violence?
Is it just that the victim of a sexual assault or domestic violence must be the only one who must testify to prove her case and is subjected to the playbook of standard cross examination to get to the supposed “truth” of what happened? If he self represents and cross examines her himself, she is further victimized by him. If she is cross examined by experienced counsel she is subjected to being reminded of the worst event in her life and all that it has done to her—physically and emotionally.
Justice for these women is not what is happening now in courtrooms across the country. It is a manner of treatment and a method of questioning that is not based upon the Sir Mathew Hale 17th century lawyer’s defense in the first reported rape case in the US, “The Sewing Girls Tale” by John Wood Sweet. It is dignifying them with the belief that they are telling the truth.
