State v. Middleton

ROBERTS, J.,

concurring.

I am in agreement with the majority opinion but write separately to explain further my reasons for deciding that the testimony of the expert witnesses regarding the behavior of the victim is admissible.

The standards for admissibility of expert opinion testimony are established in Oregon Rule of Evidence 702:

“If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise.”

The requirement that there exist an area of specialized knowledge is the primary issue before us. Is there a *439body of knowledge identifiable as a familial child sexual abuse syndrome? And if there is, are its manifestations known to the average juror?

The state suggests that expert testimony concerning behavior typical of familial child sexual abuse victims should be admissible in the same way and for reasons similar to those which render battered worfian syndrome evidence acceptable.1 Battered woman syndrome testimony is said to enhance the jury’s understanding of the defendant’s state of mind at the time of the criminal act. Evidence of familial child sexual abuse syndrome could provide an explanation of the victim’s reluctance to pursue prosecution after the criminal event. The former explains the psychological effect on the defendant of a pattern of aggression against her preceding her criminal act. The latter illuminates the psychological effect on the victim of the criminal act itself. Both syndromes are similar because they explain behavior arising from emotion unique to the family relationship. Further, both syndromes attempt to assess the effect of an alleged physical or psychological condition on the witness’ ability to perceive and recount the truth. There is no question that the ultimate purpose of such evidence, like most testimony generally, is to bolster the credibility of the witness in whose favor it is used.2

*440The question remains, are there patterns of victim behavior specific to the crime of familial sexual abuse of a child, and readily identifiable as such, which may reliably explain conduct seemingly at odds with behavioral norms? I am persuaded that there are. A significant body of writing has developed addressing intrafamily sexual abuse.3 The experts, whose qualifications were not challenged, testified that a significant number of sexually abused children become anxious, guilt-ridden and confused in their feelings for their abuser. These children typically respond by running away, or recanting their story, in order to avoid self-imposed responsibility for the violence inflicted on them. The experts then presented to the jury an explanation for such behavior — the child’s continued love for the defendant and the child’s assumption of responsibility for the act as well as for the resultant disruption in the family.

I am further persuaded that this information is not known to the average juror. Unlike the problem of rape of an adult in a nonfamilial setting, little popular recognition exists of the magnitude of or the motivations for familial sexual abuse. As the jury pool in this case illustrates few prospective jurors are likely to have exposure to the crime. While jurors may be capable of personalizing the emotions of victims of physical assault generally, and of assessing witness credibility accordingly, tensions unique to the trauma experienced by a child sexually abused by a family member have remained largely unknown to the public. As the expert’s testimony demonstrates the routine indicia of witness reliability — consistency, willingness to aid the prosecution, straightforward rendition of the facts — may, for good reason, be lacking. As a result jurors may impose standards of normalcy on child victim/witnesses who consistently respond in distinctly abnormal fashion.

Because the experts in this case have demonstrated that significant numbers of sexually abused children respond to the assault with the same patterns of *441“superficially bizarre behavior,” 294 Or at 436, the testimony was properly admitted.4

The battered woman syndrome is a relatively new area of psychological study and its admissibility through expert testimony has not been uniformly resolved by the courts. It is most often used to explain why the defendant perceived herself in imminent danger in support of a defense of self defense, and why the woman did not leave her abuser. Ibn-Tamas v. United States, 407 A2d 626 (DC App 1979); Smith v. State, 247 Ga 612, 277 SE2d 678 (1981). The syndrome is characterized by 1) a three stage cycle of violence — a tension building stage of minor abuse, an acute battering stage of explosions of uncontrolled violence and a loving respite stage during which the abuser seeks forgiveness and promises reform; 2) the psychological paralysis resulting from this violence; 3) social factors restraining the battered woman from seeking help, and 4) general psychological characteristics of attitude and behavior. Note, The Admissibility of Expert Testimony on Battered Wife Syndrome: An Evidentiary Analysis, 77 NW U L Rev 348, 360 (1982).

Evidence of the existence of battered woman syndrome has been used against an accused in State v. Baker, 120 NH 773, 424 A2d 171 (1980). The state was permitted to rebut defendant husband’s insanity defense in a prosecution for attempted murder of his wife by demonstrating that the marriage fell within the behavior patterns typical of the syndrome and that wife beating is not reflective of mental illness.

See, e.g., D. Walters, Physical and Sexual Abuse of Children (1975); S. Forward & C. Buck, Betrayal of Innocence Incest and Its Devastation, (1978); Sexual Abuse of Children: Selected Readings (National Center on Child Abuse and Neglect ed. 1980).

Careful regulation by the trial court can check the “floodgate” fear expressed in the Court of Appeals dissent. First, the court must determine if a witness is qualified to testify to the syndrome. Second, the court must decide if the testimony is relevant, i.e. whether the facts justify the admission of the testimony. See Buhrle v. State, 627 P2d 1374 (Wyo 1981) and People v. White, 90 Ill App 3d 1067, 414 NE2d 196 (1980) where testimony was not permitted. And, of course, the party opposing the evidence can attempt to discredit the testimony.