ST. ALBANS CITY — Difficulty remembering details of traumatic experiences is common for victims, according to experts, including when the source of the trauma is sexual assault.
“More and more we’re learning about how trauma affects the brain,” said Kris Lukens, director of Voices Against Violence which provides advocacy and support services to victims of domestic and sexual assault.
“You never have somebody who has a perfect memory,” she added. “You never have a perfect case, or a perfect victim. Many victims come to question their own memories. They’re fragmented. How do you remember back four or five years ago, even with a good memory?”
During the one day of testimony trial in the now-dismissed case against Franklin County senator and Highgate farmer Norm McAllister, defense attorneys zeroed in on inconsistencies in the alleged victim’s statements.
They played recordings of the 21-year-old girl remembering the events in question four times, under oath — and remembering them differently each time.
There was no expert testimony during the brief trial, no opportunity for education about the symptoms of sexual assault. The jurors had no chance to exercise their judgment, but if they had, there is no guarantee they were aware that inconsistent memory is characteristic of assault victims — not just in cases of sexual assault, but in cases of assault or similar anxiety.
Pro Publica, a non-profit investigative news organization, won a Pulitzer Prize earlier this year for its reporting on “An Unbelievable Story of Rape.”
Police had accused an 18-year-old of lying about her rape based on inconsistencies in minor details. Unlike most sexual assaults, the assailant had been a stranger who broke into her home, tied her up and raped her.
But when she couldn’t remember details of how she got free or when she called her boyfriend, police dismissed her story.
Two years later, police in another jurisdiction caught the man after he had raped five more women. Found with him were photos he had taken of his first victim, the one police dismissed. In the photos she was naked, tied to the bed and blindfolded.
Rape victims are not the only ones who struggle to remember traumatic events clearly.
A Dec. 2014 Time magazine article by Harvard psychologist James Hopper used the example of a police officer, who opens a door and finds himself staring down the barrel of a gun.
“It is very likely that he will not recall any of the details that were irrelevant to his immediate survival,” Hopper wrote. “Did the shooter have a moustache? What color was the shooter’s hair? What was the shooter wearing?”
That’s because our brain shifts from its prefrontal cortex, the part responsible for rational thought, to fear circuitry, especially the amygdala, Hopper explained. Fear circuitry produces only fragmentary sensations, the opposite of the prefrontal cortex’s linear clarity.
But most importantly, fear circuitry overwhelms the hippocampus, the part of our brain that encodes experiences into short-term memory and subsequently stores them as long-term memories. Fear disrupts the hippocampus’s ability to encode time sequencing information. Did the shooter say, “You had it coming” before or after he pulled the trigger? Did he pull the trigger the moment the door opened or was there a minute in-between — and was anything said in that minute?
In essence, fear short circuits the brain’s ability to record what is happening.
But it wasn’t the victim’s faulty recall of the assault that led to the dismissal of the charges, it was because when asked about kissing a coworker on McAllister’s farm, not McAllister himself, she said she hadn’t. But she had.
Prosecutor Diane Wheeler dropped the charges, based on that one lie. “The decision was based purely on her disclosure,” Wheeler told VT Digger. She emphasized the case was not dropped due to the inconsistency of the alleged victim’s testimony. “All I’ll tell you is that people only heard a part of the case,” she said.
It’s impossible to know the relevance of the defense asking McAllister’s accuser whether she had kissed another farmhand. The trial didn’t make it that far. But Lukens questioned the defense attorneys’ intent.
“How is that relevant?” she wondered. “Are they trying to portray her as someone who sleeps around? Of course, that shouldn’t discredit a person either. Consent is not a one-time thing. You can say ‘Yes’ to having sex with someone one time and ‘No’ another. It’s really irrelevant. It was such a left-field thing to make an issue about.”
Vermont does have a rape shield law that is supposed to protect victims from being questioned about their romantic or sexual histories. It is not known why the state did not object to the defense asking about the woman’s voluntary kiss with someone else.
Lukens believes people push back against basic concepts of sexual trauma to protect themselves from the horror of it.
“The thought is so horrible, we set our minds to the fact that ‘I won’t do that,’” Lukens said. “You know, ‘That wouldn’t happen to me. I wouldn’t let it.’”
Lukens doesn’t blame people for their horror. The problem, she said, is the culture it’s created. “I think the culture is actually getting worse,” she said.
Consider the case of Brock Turner, a Stanford athlete convicted of sexually assaulting an unconscious 22-year-old woman after she passed out from alcohol intoxication beside a dumpster. Turner’s father argued that the incident was minor, since it only comprised “20 minutes of bad action.”
“You don’t generally discard victims of a burglary,” Lukens said. “You don’t say, ‘Oh, look, you had a suit on, clearly you had money, what did you expect?’ But when it comes to victims of sexual violence some people say things like, ‘Well, when she went to that party and was drinking, what did she expect?’”
That’s a popular criticism, that utilizing certain freedoms — such as drinking at a party or wearing less clothes — are not exercises of personal liberty, but an encouragement of sexual predators. It’s an argument that unwittingly places the assailants’ rights above their victims’, Lukens said.
She said proponents of that idea overlook the purpose of our criminal justice system — to hold those who act criminally responsible for their criminal acts, and thereby discourage those acts.
“Victims have the same right to be believed as the defendants,” Lukens said.
She emphasizes victims’ rights advocates are not advocating for “witch hunts,” but for equal treatment of alleged victims and defendants. “The question is, is everybody getting due process? How fair is the trial? Is the victim’s vulnerability being used against him or her?”
Exploiting victims’ vulnerabilities on the stand is inevitable, she said. “The criminal justice system is not real kind to victims. It’s not kind to their [alleged] assailants either, but it’s especially hard on the victims.”
Lukens pointed out that the alleged victim’s testimony in the McAllister trial was broadcast live across the Internet, revealing the girl’s identity, which print publications had refused to publish.
“Why do rape victims ever come forward?” Lukens wondered. “Well, for these reasons, many don’t. The majority doesn’t.”
She advises victims get their own attorneys. “If you get your own attorney, that attorney is representing you,” Lukens said. “If the prosecution is a state’s attorney, that attorney is the state’s attorney. They represent the state.” She said attorneys should carefully prepare their clients prior to the trial, and try to isolate foundational memories amid the struggle for clear recall.
Lukens said the McAllister trial has been good for one thing — creating a conversation about sexual assault in Franklin County. “That’s the only way the culture is going to improve,” she said. “Discourse. We have to talk about it openly, like any other crime.”
She emphasizes that arguing for the rights of sexual assault victims is not a crusade against gender. “In recent jury studies, it was found men actually tend to be more open-minded in these cases,” Lukens said. “Women have learned to be more defensive, because we’re taught to be on the lookout for these threats all our lives.”
“Sexual assault is a huge problem here, the same as anywhere else,” she said. “There’s a lot more sex trafficking in Vermont now. It’s tied in to the drug trade. We’re talking about community issues more and more, and this is another one. It’s a community issue. We need to say, ‘We don’t want to live in a community where this is allowed.’”