People v. Farley , 712 P.2d 1116 ( 1986 )

SMITH, Judge,

dissenting.

In part I of its opinion the majority has determined that the testimony of a female police officer was admissible because it was not “Rape Trauma Syndrome Evidence” and by so doing has neatly avoided the difficult technical and legal questions involved in the use of such evidence. The majority approves the reception of this testimony on the basis that it was merely evidence of, and conclusions based upon, the observed behavior of the alleged victim by a lay person under CRE 701.

Not only does this holding ignore the traditional evidentiary rules and elevate form over substance, but of much greater concern to me is the fact that it opens wide the door for a method of proof, in cases of this type, which is questionable at best, even when offered by recognized behavioral scientists.

The term “Rape Trauma Syndrome” refers to a group of what seem to be common behavioral symptoms or characteristics observed in women who have actually been subjected to the trauma of “Rape” or, what our statute refers to as “sexual assault.” In the context of a rape trial, evidence of studies purportedly demonstrating common behavioral characteristics, or “Rape Trauma Syndrome Evidence,” coupled with evidence that the alleged victim demonstrated the same behavior, has sometimes been offered in an attempt to prove that the alleged victim has been subjected to rape as opposed to having engaged in consensual intercourse. That was precisely what was attempted here.

While several states have addressed the propriety of accepting Rape Trauma Syndrome evidence, only two have been cited to us as having permitted consideration of such evidence, namely: State v. Marks, 231 Kan. 645, 647 P.2d 1292 (1982); State v. Liddell, 685 P.2d 918 (Mont.1984): However, even Kansas, which first permitted such testimony, has severely limited its rule in State v. Bressman, 236 Kan. 296, 689 P.2d 901 (1984).

In Bressman the Kansas Supreme Court rejected the testimony of an emergency room physician who had previously treated 30 to 50 purported rape victims and saw the alleged victim immediately following the incident. It held her testimony to be inadmissible because there was no showing (1) that she was trained as an expert in psychiatry or (2) that the basis for her conclusions were generally accepted in the field of psychiatry. Yet, in this case, the majority approves the same type of testimony, given by a minimally trained lay person, a police officer, under CRE 701 without requiring that the witness demonstrate any qualifications or expertise. Thus, even if we were to adopt a rule permitting the use of Rape Trauma Syndrome evidence, the testimony of the witness in this case falls far short of that required by the states that have adopted such a rule.

The Attorney General concedes that at least three states have expressly rejected the use of Rape Trauma Syndrome evidence to prove that a rape, in fact, occurred. See People v. Bledsoe, 36 Cal.3d 236, 203 Cal.Rptr. 450, 681 P.2d 291 (1984); State v. Saldana, 324 N.W.2d 227 (Minn.1982); State v. Taylor, 663 S.W.2d 235 (Mo.1984). In each of these cases the court held that Rape Trauma Syndrome evidence fails to meet the so called “Frye” test of acceptance within the scientific community for the purpose of determining whether a woman has in fact been raped. The “Frye” test has been adopted in Colorado as the appropriate test for the admissibility of scientific evidence. People v. Anderson, 637 P.2d 354 (Colo.1981); People v. Quintanar, 659 P.2d 710 (Colo.App.1982).

The courts that have rejected such evidence have done so on the basis that the scientific literature indicates there is no typical rape victim. In as many as fifteen per cent of the cases a victim will develop no symptoms of the syndrome whatsoever. Burgess & Holstrom, Rape Trauma Syndrome, 131 Am.J. of Psychiatry 981 (1974). Moreover, these same symptoms may follow any psychologically traumatic event, not merely rape. American Psychiatric Ass’n, Diagnostic & Statistical Manual of Mental Disorders § 236 (3rd Ed.1980). For these reasons testimony concerning Rape Trauma Syndrome or the “typical rape victim” cannot help the jury in its fact finding function; rather it can only mislead and prejudice it. State v. Taylor, supra.

Because not all victims of rape display Rape Trauma Syndrome symptoms and also because the same symptoms are often displayed as a result of other trauma, there is a logical inconsistency in the admission of such evidence in attempting to prove that a rape has, in fact, occurred. One cannot logically infer that a fact exists merely from a showing that other facts are not inconsistent with its existence. For example: a physician cannot determine that a patient is suffering from a specific disease merely because that patient’s symptoms are not inconsistent with the existence of the disease — unless only patients who have the disease exhibit the symptoms.

Lest it be asserted that the admission of the testimony here was harmless — it should be noted that there was evidence concerning the critical issue of consent from which the jury could have found either way. Therefore the evidence which the majority here approves may well have been the determining factor on the ultimate issue of guilt or innocence.

Accordingly, I believe that the admission of the Rape Trauma Syndrome evidence here constituted reversible error, and thus, I would reverse and remand for a new trial.