Casenotes Criminal Law — Evidence — Expert Testimony That Rape Victim Suffered Post Traumatic Stress Disorder Is Admissible to Rebut a Defense of Consent. State v. Allewalt, 308 Md. 89, 517 A.2d 741 (1986)
Testimony Th at R ape Victim Suffered Post Casenotes Criminal Law - Evidence - Expert Traumatic Stress Disorder Is Admissible to Rebut a Defense of Consent. State v. Allewalt, 308 Md. 89,
Robert C. Sanders 0
0 University of Baltimore School of Law
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CRIMINAL LAW- EVIDENCE- EXPERT TESTIMONY THAT
RAPE VICTIM SUFFERED POST TRAUMATIC STRESS DISOR
DER IS ADMISSIBLE TO REBUT A DEFENSE OF CONSENT.
State v. Allewalt, 308 Md. 89, 517 A.2d 741 (1986).
A defendant accused of raping his girlfriend's mother claimed that
he was seduced, thereby raising the defense of consent. 1 The state rebut
ted this defense by introducing expert testimony from a psychiatrist. The
psychiatrist testified that, based upon his diagnosis, the victim suffered
from "post traumatic stress disorder" (PTSD), and that, based upon the
history furnished to him by the complainant, he believed the disorder
was caused by the rape. The Circuit Court of Maryland for Baltimore
County ruled that the testimony was admissible because PTSD is ac
cepted generally within the scientific community and "would be helpful
to the jury in its determination as to whether the sexual intercourse was
consensual." 2 The jury found the defendant guilty of second degree
rape. 3 The Court of Special Appeals of Maryland reversed the convic
tion and remanded for a new trial, holding that PTSD testimony is inad
missible to prove nonconsent in a criminal rape trial because the
testimony's prejudicial effect outweighs its probative value. 4 The Court
of Appeals of Maryland reversed the judgment of the court of special
appeals, holding that the trial court did not abuse its discretion in admit
ting the PTSD testimony.5
1. State v. Allewalt, 308 Md. 89, 91, 517 A.2d 741, 742 (1986).
2. Record at 4-35 to 36.
3. Allewalt, 308 Md. at 97, 517 A.2d at 745. The jury also found defendant guilty of
fourth degree sexual offense and common law assault. Id.
4. Allewalt v. State, 61 Md. App. 503, 516, 487 A.2d 664, 670 (1985).
5. /d. at 516, 487 A.2d at 670.
For two reasons, the Allewalt facts did not present an ideal case to test the
admissibility of PTSD testimony in a criminal rape trial. First, prior to the alleged
rape, a psychiatric counselor diagnosed the complainant as being depressed. Id. at
507, 487 A.2d at 665. This depression apparently was caused by her recent separa
tion from her husband and her daughter's second pregnancy. /d. Some authorities,
however, suggest that a reliable diagnosis of PTSD can be made even when the
patient suffers from a general nervous disorder because PTSD symptoms are suffi
ciently distinguishable as to allow a determination of PTSD despite the presence of
the other symptoms. See A. BURGESS & L. HOLSTROM, RAPE: VICTIM OF CRISIS
37, 47 n.2 (1974) (PTSD symptoms are different in rape victims with prior mental
illness than in rape victims without prior mental illness, both in terms of intensity
and duration.); Atkeson, Calhoun, Resick, & Ellis, Victims of Rape: Repeated As
sessment of Depressive Symptoms, 50 CONSULTING & CLINICAL PSYCHOLOGY 96,
101 (
1982
) (rape victims with a history of psychological problems recover more
slowly from depressive symptoms); Bassuk, A Crisis Theory Perspective on Rape re
printed in MCCOMBIE, THE RAPE CRISIS INTERVENTION HANDBOOK 124, 126
(1980) (preexisting psychopathology is important to determine the success of recov
ery).
Second, ample physical evidence of force was present in Allewalt which could
have justified exclusion of the PTSD testimony as cumulative and a waste of time.
See FED. R. Evm. 403 ("Although relevant, evidence may be excluded if its
proba
PTSD is a psychiatric and emotional disorder recognized by the
American Psychiatric Association (APA). 6 According to the APA,
symptoms of the disorder include re-experiencing the traumatic event
through thoughts and dreams, numbing of emotional responses, hyper
alertness, abnormal startle response, sleep disturbance, memory loss, in
ability to concentrate, and avoidance of activities reminiscent of the
stressful incident. 7 The symptoms may emerge immediately after the
traumatic experience or after a latency period. 8
PTSD is caused by a variety of traumatic events, including military
combat, bombing, torture, death camps, airplane crashes, floods, earth
quakes, assault, or rape. 9 The event causing the symptoms is generally
outside the range of common experiences such as simple bereavement,
chronic illness, business loss, or marital conflict. 10 Because the symptoms
can be caused by any number of different traumatic events, the patient's
explanation generally is required to ascertain the cause of PTSD. 11
When rape is the traumatic event causing the symptoms, some psy
chiatrists refer to the disorder as "rape trauma syndrome" (RTS). This
terminology was used first in 1974 by the research (...truncated)