An Iowa prosecutor has proposed new legislation that would allow expert testimony in sexual assault cases to address some common misconceptions about victims and help jurors better understand how victims respond to trauma.

First Assistant Linn County Attorney Nick Maybanks proposed the legislation after the widely-publicized United States Supreme Court confirmation hearings of Brett Kavanaugh.  Maybanks said that the dialogue following Christine Blasey Ford’s testimony before the Senate Judiciary Committee after she accused Kavanaugh of sexual assault was concerning. Many misconceptions about how victims should act following an assault were raised and he realized that a change in the law was needed.

Maybanks said, “There is so much victim bias — about how they are supposed to act or behave and blaming the victim for not reporting it.”

Maybanks has been a prosecutor for sexual assault cases for 20 years. He says that he has an understanding of the basic behaviors of victims and abusers through his work with victim advocates, forensic interviewers, medical experts and law enforcement.

Proposed Legislation

The statute that Maybanks is proposing would clarify what is allowed into testimony. The exact language of the statute is still being revised.

Maybanks hopes that the new statute will give judges clarity on the type of the testimony that should be allowed into court. Currently, some judges in Iowa do not allow experts testify about common misconceptions about victims in sexual assault trials because they see the testimony as “vouching” for the credibility of the victim.

There is, in fact, a fine line between testimony about how a sexual assault victim might behave and testimony that implies a witness is telling the truth because she behaved in a particular way. Writing legislation that balances the need for expert testimony to educate jurors against the protection of a defendant’s right to a fair trial will be a difficult challenge.

Addressing Sexual Abuse Myths

Maybanks highlighted some of the myths about sexual assault victims that stood out to him from the Kavanaugh hearings. In particular, he noted the myth that sexual abuse is immediately disclosed in full to law enforcement after it occurs. He also discussed his perception that a suspect’s denial should not turn a sexual assault case into a “he-said, she-said” battle with no resolution.

Maybanks explained that in the majority of the adult sexual abuse and assault cases that he deals with, disclosure is almost always delayed. When the victim finally tells someone, it is usually a close friend or family member or therapist and not law enforcement. It is also common for victims to reveal more details about the abuse over time.

Maybanks hopes that allowing expert witnesses to testify in these cases on this issue would help to explain about how many victims will not report an incident out of embarrassment, shame, humiliation, fear, or because they do not think they will be believed. He also said that a victim’s statement is often more heavily scrutinized than a suspect’s statement because a suspect is expected to deny the accusation. The latter concern, however, does not lend itself to legislation, as juries have a duty to scrutinize every criminal criminal accusation to determine whether it constitutes or is supported by proof beyond a reasonable doubt.

Maybanks explained that his office only prosecutes a portion of the total sexual assault cases that are referred because of issues with credibility, proof, lack of corroboration, or victims who are unwilling to testify. Maybanks stressed, “But it doesn’t mean the sexual assault didn’t happen…. It’s just that we don’t have enough evidence to prosecute.”