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Colorado Criminal Sex Crimes Law: The Very Real Threat of Expert Testimony

Provided by Colorado Criminal Sex Crimes Defense Lawyer – H. Michael Steinberg

What follows is a so called Colorado State Sex Assault Expert’s Analysis of her anticipated testimony for a trial of a Colorado Sex Crime.  She is endorsed as a witness to “assist” the jury in understanding the nature of rape.  Without ever meeting the alleged victim or examining the facts and evidence – a Prosecutor will attempt to call her to convince the jury the alleged victim is telling the truth.

Such testimony is an outrage and should never be permitted in a Colorado Criminal Rape Trial.  However, if it is permitted, the accused should have a solid handle on what to expect. The Bracketed Material are my titles and comments on her representations in this letter to the DA.

[The Letter Offering and Explaining Her Services]

This report is intended to serve as a brief overview of my possible testimony in the above referenced cases. Any testimony I might give would be based on more than 25 years experience working with victims of crime including sexual assault; my experience in sex offender management; ongoing study and review of the relevant literature in the field; and my preparation for extensive training and teaching in the field throughout the years.

[General Education on Sexual Assault]

The majority of my potential testimony would be focused on general education regarding sexual assault. There is a substantial body of research literature that indicates there is more misinformation and misunderstanding about sexual assault than about any other type of crime.

The education I could potentially provide the jury would include general information about sexual assault including the nature and dynamics of these situations, typical victim reactions and offender behavior, trauma and typical trauma reactions of victims during sexual assaults and over time after their exposure to the trauma of sexual assault.

[Assist the Jury]

This information, which is not generally available, could be used by the jury to assist them in their assessment of the facts in the case.

[Has Not Met the Parties Or Performed ANY Investigation]

I have not met any of the parties involved in the case, nor have I reviewed any documents prior to preparing this report. I have not evaluated nor made any findings about any of the parties or their conditions or diagnoses. While I can make no findings about the actual occurrence of any of the events reported by any of the parties or about the veracity of any of their statements, I would be able to indicate whether situations or behaviors that are described are consistent or inconsistent with typical dynamics of and reactions to sexual assault.

Nature and Dynamics of Trauma

There are consistent human responses to trauma and traumatic events, including sexual assaults, which are described in the research as events so powerful, harmful, threatening or severe that they require extraordinary coping mechanisms or responses that are outside the range of normal functioning.

Research literature indicates that traumatic experience changes brain chemistry and the way the brain functions. Simply, the brain perceives the traumatic experience as a threat and changes functioning accordingly. Initially it floods the body with chemicals (including adrenaline and epinephrine) that indicate the need for a speedy reaction. It limits cortical functioning, which is language and speech based, and which uses additional time to evaluate the situation and make decisions based on previous learning. It transfers information to the more primitive part of the brain. This ensures quick, but limited reactions based on survival. These reactions are commonly referred to as fight or flight reactions. In reality, there are three reactions that are typical; fight, flight or freeze.

[Frozen Fright]

In situations where exposure to trauma is ongoing or prolonged, or where resistance or escape are perceived by the victim to be impossible or where attempts to resist have been ineffective, brain chemistry changes further to facilitate “freezing” or inaction. In the rape trauma literature, this behavior is described as “frozen fright.” These reactions are normal human responses to trauma and are adaptive in that they are likely to facilitate survival of the immediate trauma.

Because of the difference in brain function, the experience of trauma is stored differently in the brain. In normal memory, material is stored in the cortex, is semantic and symbolic (language based) and is subject to voluntary recall and dismissal. Traumatic material is more likely to be stored differently: as images, physical sensations, feelings or behaviors. It is not always subject to the victim’s voluntary recall or dismissal and this may result in different details being reported over time. Reminders of the trauma in the environment can trigger the memory flooding the victim. Traumatic material is vivid because of how it is stored and until it is integrated into the cortex, it can be perceived as distressing and overwhelming to the victim, causing avoidance of reminders of the trauma, including resistance to discussing it. Because traumatic memory is primarily experiential, it may not have more cognitive components, such as a linear time line or specific dates.

An example is a person in a car accident who can accurately report that the vehicle they were in was struck by a car and a motorcycle, but reports that they do not know which one hit them first. Additionally, due to the way traumatic memory is not subject to the victim’s voluntary recall and dismissal, it is common that victims report more or remember more when they are asked specific questions. Some victims do not have conscious access to parts of their experience and may report not remembering things about an assault. People often misperceive reports of trauma to be inaccurate because they include components that are more experiential, have fewer cognitively based details and may include missing information or differing information over time. These types of reports are actually consistent with the experience of trauma and with typical victim reports.

Victim Responses to Traumatic Events

The in addition to the physiological hyper-arousal which accompanies the previously discussed changes in brain chemistry, the extraordinary psychological coping mechanisms referred to in the previous definition of trauma include two responses during traumatic events. Anxious responses or the experience of extreme distress and awareness of pain, fear and terror regarding the  event is one of those responses. The psychological function served by this response is to ensure that the victim is aware that something potentially harmful is happening to assist them in initiating attempts to resist, escape or freeze in order to survive. The other response is the dissociative response and it includes the compartmentalization of all or part of one’s experience of an event.

Many victims describe this response as feeling numb or like they are dreaming, shut down, or unable to feel or react. Younger victims often describe this experience as ‘going away’ or ‘not thinking about’ the assault while it is happening. In extreme cases, dissociation can involve not remembering part or all of an event. The psychological function of this reaction is to protect the psyche from the overwhelming negative impact ofthe traumatic event. While most people in our culture believe that people who look more upset have usually been more seriously harmed, the research literature indicates that people who dissociate during traumatic events are more likely to have long term negative reactions from the trauma.

In the victim literature, two primary presentations of trauma are identified: Expressed and controlled. Expressed reactions involve visible distress, crying, shaking and strongly expressed emotion such as fear or anger. Controlled reactions involve a flat or numb looking demeanor with little emotion present. In some cases, controlled responses include attempts to appear unaffected by the trauma. This type of response is called pseudo adjustment in the rape trauma literature.

Adolescents and children often appear asymptomatic post trauma, which may be related to their attempts to cope by distancing themselves from their reactions and by pretending that nothing is wrong. Clearly, expressed reactions are consistent with the anxious responses to trauma and the intrusive symptoms that follow traumatic events. Controlled reactions are consistent with dissociative responses during traumatic events and avoidant ornumbing symptoms following trauma.

Most victims will fluctuate between the two presentations over time.

Additional victim reactions to trauma can include hyper-arousal, or increased fear coupled with constant screening of the environment for potential threats, and affective responses or intense negative feelings such as fear, terror, anger or rage and hopelessness. Victims of serious trauma often have changes in their basic beliefs about themselves, their ability to be safe, about the trustworthiness of others and about meaning, justice or faimess in the world. The research literature indicates that trauma is increased if the victim experiences ongoing fear for their safety or self blame.

Victims of sexual assault who are assaulted by offenders they know or in locations familiar to them (at home, work or school), typically have ongoing safety fears. Offender threats clearly increase those fears. The great majority of sexual assault victims experience self blame, facilitated in part by the misinformation about sexual assault that is generally present in our culture.

Long term reactions to trauma can include symptoms that fluctuate between the intrusive symptoms and the avoidant or numbing symptoms. Some victims develop Post Traumatic Stress Disorder, anxiety disorders, Depression, sleep disorders or substance abuse problems. Most trauma survivors experience changes in their functioning at work or school and have difficulties in their interpersonal relationships. As previously noted, these symptoms may emerge immediately following a sexual assault, but it is not uncommon for them to emerge over time.

Sexual assault is most typically believed to be a rare occurrence. Actually, sexual assault is much more common than is generally understood; with estimates from national studies indicating that one in eight women will experience a sexual assault in her lifetime. It is important to remember that sexual assault is a crime of violence that is motivated primarily by a desire for power and control over a victim. While it is acted out sexually, it bears about as much resemblance to sex from a victim’s experience as a severe beating does to touching. Most offenders plan and mentally rehearse their crimes long before committing them and almost all offenders make efforts to ensure that they will not be caught or held accountable for their behavior.

The large majority of sexual assaults are committed by someone the victim knows or has met. Most sexual assaults occur in a home or apartment. Research indicates that weapons are rarely used, that serious injury is very rare and that most offenders use only instrumental force, or the amount of force necessary to complete an assault.

[So Called Colorado Date Rape]

Young women are most vulnerable to what is identified in the literature as acquaintance rape.Typically this form of sexual assault  occurs between an offender and a victim who have met in a social situation that is perceived by the victim to be relatively safe or normal for her peer group. This may include parties, interactions with other young people who are in trouble or behavior that would not be sanctioned by adults. While outsiders may look at some of these behaviors as dangerous and hold a victim responsible for bad judgment, most young people engage in these behaviors on a regular basis without serious consequences.

Offenders generally groom their victims by identifying victims in these situations and by disregarding limits the victim attempts to set in other arenas prior to becoming sexual. They may engage in behavior that is more physical than a potential victim is comfortable with, pour an additional drink after a victim has said no or push limits in other ways. Because of these grooming behaviors, and because they feel they are in a safe environment, many victims describe not realizing they are in danger until they are already physically or psychologically compromised and unable to resist. Often, alcohol use is involved in these assaults and, at times, drugs. In fact, the offender literature indicates that offenders commonly select victims who are somehow compromised, either by their own behavior or reputation, who are alone in a social situation or who are inebriated. Many offenders actively give alcohol or drugs to potential victims.

This allows them to more easily isolate victims whose judgment about safety may be impaired by alcohol or drug use; it usually decreases a victim’s ability to effectively resist once they realize they are in danger; and offenders know that young women who are in trouble, have been drinking or using drugs, are more likely to be disbelieved about an assault or blamed for it because of their own actions.

It is also generally believed that victims commonly report sexual assault and that they report immediately post assault. Actually, victims rarely report to the authorities. Most large national studies and Colorado research indicate that fewer than 16% ever report. Those most likely to report are adult women sexually assaulted by strangers or who have relatively serious physical injuries related to the assault. When sexual assault reports are made, they are typically made well after the assault occurs, and are initially made to a trusted friend or family member who then assists or encourages the victim to report to authorities.

The research literature indicates that many victims of non-stranger or acquaintance sexual assault do not initially identify what happened to them as sexual assault, often because they believe the misinformation that is common in our culture about sexual assault being committed by strangers with weapons. Other young women blame themselves because of their own behavior such as drinking or taking drugs. For many of these reasons, and for reasons consistent with dissociative coping behaviors related to trauma, young sexual assault victims may have continued contact with their offenders. They may stay with an offender after an assault, without attempting escape, until the offender takes them home or until the end of a party or a date. They may continue to have contact in their common social groups with friends, at school or other social activities without appearing outwardly upset or distressed.

[Colorado Rape Trauma Syndrome]

The rape trauma literature would identify this behavior as part of the pseudo adjustment stage of sexual assault trauma, when victims try to act as if nothing has changed and that the assault has not impacted their lives. Most victims of sexual assault feel great shame and humiliation about their experience. They commonly describe feeling powerless and violated. Many fear that they will be killed during the assault. Additionally, they may feel that they failed themselves by “allowing the assault to happen” due to the public misperception that anyone who really wants to can stop or prevent a sexual assault.

Many question their own judgment about people, believing they should have known the offender would hurt them. Victims often describe feeling dirty after an assault. They may shower, wash their clothing or bedding and in some cases, discard or destroy the clothing they were wearing when an assault occurred. These are attempts to get rid of the ‘dirty’ feeling many victims experience post assault. They experience a profound lack of capacity to feel safe, nightmares, intrusive thoughts of the assault, negative changes in functioning, such as inability to maintain their normal routine at work or school, failing grades, changing jobs or schools, extreme changes in personal presentation such as cutting their hair or wearing an entirely different style of clothing, anxiety, sleep difficulty and negative impact on their interpersonal relationships and their sexual behavior.

After an assault, some victims may engage in behaviors that seem counterintuitive or difficult to explain, such as dangerous behavior, sexually promiscuous behavior or increasing use of drugs and alcohol. While these behaviors are often used by others to blame victims or to question whether a victim was assaulted, they are common, if misdirected, attempts to establish control in areas impacted by their complete lack of control during the sexual assault. For example, a young victim may appear to be engaging in indiscriminate sexual behavior post assault, when her experience is that she is going to “choose’ who can have sex with her and when instead of waiting for someone to take sex without her permission. Increased use of drugs and alcohol is often related to attempts to numb or blunt distressing emotional responses or intrusive recollections of the event, flashbacks or nightmares related to the assault.

Depending on the severity of a victim’s trauma reaction to the sexual assault, she may also develop Post Traumatic Stress Disorder, Anxiety Disorders, Depression, Panic Attacks, Sleep Disorders, self injurious behavior, engage in suicide attempts or develop substance abuse problems. In the most severe reactions, victims may be hospitalized, lose their jobs, quit school, experience a substantial change in their social network or move. These effects can be profound and long lasting.


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___________________________
H. Michael Steinberg Esq.
Attorney and Counselor at Law
The Colorado Criminal Defense Law Firm of H. Michael Steinberg
A Denver, Colorado Lawyer Focused Exclusively On
Colorado Criminal Law For Over 30 Years.
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