Lawyers Manual - Unified Court System

When Domestic Violence Victims Are Sexually Assaulted 189
physical evidence, such as torn or bloody clothing. You may be able to locate
family or neighbors who heard screams or saw her soon after the attack. The
victim may immediately have told someone she was raped so that her statement
is admissible as “outcry” evidence, an ancient exception to the hearsay rule. You
should also seek out evidence, such as telephone or credit card records, that may
corroborate her word on collateral issues and establish her as a credible witness
so that her testimony on uncorroborated points also will be believed.
Ultimately, situating the sexual assault in the context of a pattern of abuse
may be the best approach to making the victim’s account believable. Just as
information about the sexual assault may be necessary to complete and make
credible the narrative of the victim’s abuse, so the non-sexual abuse may be
essential to understanding the rape. How her abuser managed to evoke terror
sufficient to accomplish the rape may not be obvious otherwise. Once abusers
have established their dominance by violence, they may need little to evoke the
fear that will make their victims comply with their demands. Threats that were
once overt become oblique and, to outsiders, obscure. If the abuser’s birthday
was the occasion of a particularly brutal attack, he may produce fear just by
telling her to remember June 16th. If he excuses his violence by saying that his
victim made him angry, all he may need to do is say, “You don’t want to make
me mad” to have her do as he demands. The threat need not be verbal. Walking
into her apartment, dead-bolting the door, and unplugging the phone may be
enough to terrify her. If he has hurt her badly in the course of raping her in the
past, she may know that if he wants sex the surest way to avoid injury is to offer
no resistance.
As a prosecutor you are free to introduce evidence that puts apparently
harmless gestures and actions into a context in which they can be seen as forcible
compulsion. New York courts have carved out exceptions to the general rule
against admitting evidence of previous violent acts that provide prosecutors with
considerable latitude. According to a line of New York cases reaching back at
least a hundred years, evidence of other bad acts is admissible as long as the
probative value of the evidence outweighs its prejudicial effects. 29 As one court
said recently, uncharged crimes or bad acts may be admitted whenever they are
“inextricably interwoven with the charged crimes, provide necessary background
or complete a witness’s narrative.” 30 Testimony describing the defendant’s
physical abuse of his wife has been permitted in murder cases31 and evidence of
physical abuse of a third party — the mother of a victim of sodomy — has been
allowed to show the fear that constituted forcible compulsion in a rape case. 32
In one recent case suggesting the leeway prosecutors may have to present a