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)

University of Baltimore Law Review, Dec 1986

By Robert C. Sanders, Published on 01/01/86

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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 Follow this and additional works at: http://scholarworks.law.ubalt.edu/ublr Part of the Criminal Law Commons, and the Evidence Commons Recommended Citation - 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)


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Robert C. Sanders. 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), University of Baltimore Law Review, 1986, Volume 16, Issue 1,