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EVAWI > Resources > Best Practices > FAQs > Prosecution
Q How will a history of being a victim of other forms of violence, such as intimate partner violence, impact the prosecution of the sexual assault case?
A How will a history of being a victim of other forms of violence, such as intimate partner violence, impact the prosecution of the sexual assault case?

This is an important question, because the type of interviewing techniques we recommend will often bring up experiences of prior victimization, and without proper guidance this might cause jurors to view the victim judgmentally or with skepticism. However, we believe it is a mistake to not document this information, or to avoid it during the prosecution, simply because it could potentially be used against the victim. We believe the best approach is to document the information and then for prosecutors to provide judges and jurors the proper context for understanding it. In fact, we would argue that you can frame this evidence as corroborative, to strengthen the case, rather than undermining it.

First, the fact that the current experience reminds the victim of prior abuse suggests that, on the most basic level, they are similar in terms of their experience and impact. Research on the neurobiology of trauma suggests that such memories are linked, as Dr. David Lisak describes in his article on The Neurobiology of Trauma. Thus, memories of traumatic events can be triggered by similar cues:

At the sound, touch, or sight of those cues, the rape victim will experience the same cascade of neurochemicals that were triggered during the … rape” (Lisak, 2002, p. 2).

The victim’s RESPONSE to the sexual assault may also be reminiscent of prior abuse. For example, if the victim “froze” during the current sexual assault, this might be the same coping mechanism that was used during years of sexual abuse perpetrated against the victim as a child.

A human being who has been traumatized … will have far less flexibility in the activation of their fear system. Human beings who have been raped will … carry with them a network of neurons forever prepared to respond to the perception of any of the cues that were present during the rape. … Their reactions are not conscious choices … [they are] governed not by the cortex, not by conscious thought, but rather by the ‘low road’ or amygdale-based fear networks (Lisak, 2002, p. 2).

Second, we know that one of the single best predictors of whether or not someone will be sexually assaulted is whether or not they have been sexually assaulted in the past (Gidycz et al., 1993; Merrill et al., 1999; Messman & Long, 1996). Therefore, although many people see a disclosure of prior sexual victimization as a “strike against” the credibility of the victim, it is actually corroborative on some level. Not that prosecutors would argue that evidence of prior sexual victimization is some kind of “proof” that the current incident was indeed a sexual assault – but they can use the research cited here to counter any suggestion that it somehow undermines the credibility of the victim or the legitimacy of the report.

Finally, there is the question of whether the prior incidents can be prosecuted. If the incident described by the victim is still within the statute of limitations, it may be possible to investigate and prosecute it. This may be very difficult given the passage of time, but the fact that the disclosure was taken seriously by law enforcement and investigated to the furthest extent possible may serve to counteract any negative connotations for the victim and strengthen the victim’s credibility as a witness. More important, it helps to pursue the larger goal of holding offenders accountable and keeping communities safe.

The following comments were added by Russell Strand, a retired US Army Special Agent (Criminal Investigation Division) and current Chief of the Family Advocacy Law Enforcement Training Division at the U.S. Army Military Police School:

I am often struck with some concerns people have when it comes to adult sexual assault cases. When we work child abuse cases and domestic violence cases we are trained to get a good history of previous abuse to assist us in understanding the context of the most current experience. This information is invaluable at helping decision makers and triers of fact (judges and juries) in understanding the victim’s response to the newest reported event.

The concerns of keeping the previous experiences of sexual assault hidden are often predicated by myths that any previous sexual activity will harm the credibility of the victim. Unfortunately, this belief itself is harmful because it sometimes assumes that it was a "sexual" experience instead of a serious criminal act. This belief also promulgates the myth that sexual assault victims should somehow "learn" to avoid being a victim again. Again, the research clearly demonstrates that the opposite is often true. We know there is good solid research over a period of decades that should shatter this myth. Victims often suffer from Post Traumatic Stress, or even full-blown Post Traumatic Stress Disorder, as well as depression, and they often exhibit tension reduction behaviors, maladaptive behaviors and other normal reactions to trauma that actually increase their vulnerability and risk. These reactions, caused by life changing trauma, are also picked up very easily by sex offenders hunting for the vulnerable.

The fact that victims are revictimized is something we should explore and document to better understand their experience and reactions. This fact should not be something we are afraid of or run from – this would only serve to support the offender and revictimize the victim even further.

In our work both inside and outside the military, we are finding that – by collecting information on and seeking to understand previous victimization, and then educating people on the meaning of the context of these prior experiences – we are increasing understanding of the realistic dynamics of sexual assault and decreasing misunderstanding of victims’ reactions.

Note: Thanks to David Markel, Highly Qualified Expert (HQE), and Russell Strand, Chief of the Family Advocacy Law Enforcement Training Division at the U.S. Army Military Police School for their assistance with this response.

Gidycz, C.A., Coble, C.N., Latham, L., & Layman, M.J. (1993). Sexual assault experience in adulthood and prior victimization experiences. Psychology of Women Quarterly, 17, 151-168.

Merrill, L.L.,Newell, C.E., Thomsen, C.J., Gold, S.R., Milner, J.S., Koss, M.P., & Rosswork, S.G. (1999). Childhood abuse and sexual revictimization in a female Navy recruit sample. Journal of Traumatic Stress, 12 (2), 211-225.

Messman, T.L. & Long, P.J. (1996). Child sexual abuse and its relationship to revictimization in adult women: A review. Clinical Psychology Review, 16(5), 307-420.

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