Victim, Reconstructed

Sex Crimes Experts and the New Rape Paradigm

The “perfect victim” embodies enduring misconceptions about how victims behave during and in the wake of sexual violence. However misguided, these myths are sufficiently pervasive to pass for common sense—the same common sense that jurors in sex crimes trials are instructed to deploy when judging the credibility of accusers. One obvious corrective is expert testimony. But expertise in rape cases has mostly been anchored to an odd syndrome—the “rape trauma syndrome,” which, quite apart from its questionable scientific underpinnings, suffers from two conceptual defects: the syndrome individualizes the structural, and it pathologizes the normal. As #MeToo has brought into sharp focus, sexual violence is not aberrant; nor is it possible to abstract rape and its aftermath from a social context defined by steep social hierarchies. Expert testimony should account for these realities, reconstructing the victim accordingly. This move can reverberate beyond rape trials to other parts of the criminal justice system and—most urgently—to the cultural realm, where quotidian credibility judgments dictate the path forward for countless survivors. The paradigm that emerges promises to upend entrenched understandings of who counts as a victim and what constitutes rape.

* Class of 1967 James B. Haddad Professor of Law, Northwestern Pritzker School of Law. J.D., Yale Law School; A.B., Harvard College. I am grateful to Sarah Lawsky, Jennifer Long, Janice Nadler, and participants at Emory Law School’s faculty colloquium for insightful comments on earlier iterations of this Article. Tom Gaylord, Faculty Services and Scholarly Communications Librarian, contributed outstanding research assistance, and the Northwestern University Pritzker School of Law Faculty Research Program furnished generous support.

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