Jill Porter | Time to fix Pa.'s rape-testimony stance

The wheels already are turning

Posted: June 22, 2007

BEING ON the witness stand was every bit as traumatic as she'd feared it would be.

"I was really nervous," said the 30-year-old pharmaceutical rep, who testified about being drugged and raped by Jeffrey Marsalis.

"My palms were sweating, my heart was beating and it was hard to even get words out. I almost felt like I was hyperventilating."

But - with the exception of one woman who seemed visibly hostile - most of the jurors smiled and gestured in support.

"I felt like the jury was compassionate and they were going to do the right thing," she told me in an interview this week.

When she found out otherwise - last week, the jury acquitted Marsalis of all charges in her case, and most of the others - she was devastated.

And puzzled.

Why didn't the prosecutor, who was otherwise so thorough and diligent, present an expert witness to explain what seemed to be illogical behavior on the part of herself and the other six women?

Why didn't they use a witness to explain why they - like most date-rape victims - didn't call police? Didn't go to the hospital? And had contact with Marsalis afterwards?

"I remember reading the testimony and thinking, 'Oh, my God, what that jury must be thinking. They're not going to understand that.'

"I figured they'd have a psychologist or psychiatrist there," said the victim.

Prosecutor Joseph Khan told me he would, indeed, have used an expert witness - if he could have.

But such testimony is not permitted in Pennsylvania.

It's the only state that expressly prohibits an expert from testifying about rape victim behavior - an infuriating fact that I reported in a column the day after the verdict.

When this victim read it, she called me to say she wants to change the law.

She's not alone.

Diane Moyer, legal director of the Pennsylvania Coalition Against Rape, said she's begun the effort to overturn the anachronistic rule that allows rape myths to persist.

It's about time.

"To think that after 30 years of rape law reform, we still have to talk about the misconceptions about how rape victims react," she said.

And that defense attorneys are still using those myths to discredit the credibility of witnesses - as Marsalis' lawyer did, so effectively, in this case.

The state Supreme Court's ban on expert testimony, issued in several rulings over recent decades, presupposes that rape-victim behavior is not beyond the understanding of the average lay person.

Which couldn't be further from the truth.

"You ask jurors to bring their life experience to the job and knowledge of human nature," said assistant D.A. Chris Mallios, former chief of the sexual assault unit.

"But if they don't know someone who's been raped, they don't have their own life experience to apply it to."

They may try to apply the reaction of victims of other types of crimes, he said, but "there is no crime that affects the victim the same way sexual assault does."

Mallios, who's now assistant chief of the legislative unit, said presenting expert witnesses to explain victim behavior is not without its peril.

"It's a little bit of a double-edged sword. If we can introduce this kind of evidence, a defense attorney can get an expert to say a victim isn't suffering from rape-trauma syndrome."

But when victims act in ways that make jurors skeptical, it seems urgent to put that behavior in context, despite the potential for conflicting testimony.

The Supreme Court rule can be overturned either by state legislation or by appealing a new case that elicits a change of opinion.

Moyer said several legislators "mentioned it to me as an issue for me to pursue."

"I don't think it's going to be a problem to get a sponsor for this."

The victim who spoke to me - who was impregnated by Marsalis and had to get an abortion - isn't sorry she testified, despite the outcome.

For one thing, Marsalis was convicted on two counts of sexual assault and faces a potential of 20 years in prison.

And testifying about her trauma has helped her recover.

"I feel like I've been empowered; it was a real liberating feeling. After I spoke at the trial, I started to feel better."

And now she hopes to join the crusade to change the law regarding expert testimony.

If it could have been used in the Marsalis trial, she said, "I think it might have gone the other way."

I think so, too. *

E-mail porterj@phillynews.com or call 215-854-5850. For recent columns:

http://go.philly.com/porter

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