Recently published on SSRN (and forthcoming in Arizona State Law Journal):
BETSY GREY, Arizona State University (ASU) - Sandra Day O'Connor College of Law
Courts traditionally have been reluctant to admit PTSD evidence in rape cases. Prosecutors often attempt to introduce such evidence to establish that the victim did not consent to the sexual contact, but courts have been concerned that the jury will improperly use the evidence for other purposes, such as proof that the rape occurred. This essay questions whether judicial hostility to PTSD evidence should be reconsidered, given how science is developing biological markers, or objective physiological measures, of PTSD. It concludes that, even with these scientific developments, courts should remain skeptical about admitting PTSD evidence. The main concern persists that PTSD evidence may be overly persuasive in suggesting that rape was the stressor that caused the psychiatric disorder. Nor does use of biomarkers eliminate the vouching problem raised by the testimony of psychiatric experts, who must still rely on the accuser’s account of the experience — the stressor event — that supposedly caused the PTSD. Moreover, an open door to PTSD biomarker evidence may introduce new evidentiary problems, as the defense may try to use the absence of biomarkers to support the claim of consent.