Expert: Rape victims can be forced to take witness stand

It was Valentine's Day, and Blue Lake Police Chief David Gundersen stood before the court, clad in a red jumpsuit with his hands cuffed in front of him, accused of a dozen counts of spousal rape.

The alleged victim in the case, Gundersen's wife, also appeared in court that day, reportedly prepared to make a statement in support of her husband's release on his own recognizance.

According to documents in Gundersen's case file, his wife talked to District Attorney's Office investigators twice on Feb. 8, stating that Gundersen had repeatedly raped her while she was incapacitated by sleeping pills over the last year. Later that same day, she told investigators the sex was consensual.

District Attorney Paul Gallegos has since referred to the alleged victim as a hostile witness and, at a later hearing, asked the judge to order her to appear at Gundersen's preliminary hearing.

Similar situations play out in courtrooms across the state, and the country, raising questions about a rape victim's rights, whether a prosecutor should be able to compel them to testify and why their stories are liable to change.

Speaking in general terms and not about the Gundersen case, North Coast Rape Crisis Team Community outreach coordinator Paula Arrowsmith-Jones said a myriad of factors can cause a rape victim to recant his or her allegations.

”It doesn't necessarily have anything to do with the facts of the case or the reality of something having happened,” Arrowsmith-Jones said. “It's about whether they feel it is their best interest to be involved in the case.”

And that, Arrowsmith-Jones said, can become very complicated. She said familiar pressures, threats from the perpetrator, financial dependency, child-custody issues and even a fear that society will re-victimize them can all play a role.

”Any survivor of any gender knows that when they come forward, some people will blame them,” Arrowsmith-Jones said, adding victims can be criticized for their lifestyle, manner of dress or even for their choice of spouse. “We would hope that the public would understand that there are a lot of valid reasons that we can never understand as to why a survivor might step back from that process.”
Love can also play a big roll, said Nancy Lemon, a lecturer at University of California Berkeley School of Law and a domestic violence expert witness.
”Typically batterers can be wonderful, loving, sweet people, sometimes, and victims are often hoping they will return back to the person they have been,” Lemon said. “There's always the hope that he will change.”

Over at The EMMA Center, Executive Director Marybeth Bian agreed.

”A lot of times (the victims) love the person, and they just want them to not abuse them anymore,” she said.

Because our system of law attempts to balance the rights of the victim with the rights of society as a whole, a prosecutor can choose to proceed with a case against the victim's wishes, and Lemon said sexual assault victims can be ordered to testify.

The California Civil Procedure Code states that a victim of sexual assault can be ordered to testify, and found in contempt if he or she fails to do so. The only protection afforded sexual assault victims is they can not be sent to jail if found in contempt.

The maximum sentence under the code is for a judge to order the victim to attend up to 72 hours of a domestic violence program for victims and order them to perform up to 72 hours of community service.

Getting victims to take the stand for the prosecution can be such an obstacle that it is the subject of an entire section of a California District Attorney's Association publication titled “Investigation and Prosecution of Domestic Violence.”

The publication points out that victims can feel a lot of guilt in helping the prosecution's case against a loved one, and suggests that prosecutors do everything possible to make the victim feel that the decision whether to prosecute is the district attorney's. The publication even suggests that prosecutors order the victim to appear, as Gallegos did with Gundersen's wife.

”Once the ultimate authority, the court, directs the witness to answer questions, most victims comply,” the publication states. “Many victims feel considerable relief at being able to tell the defendant that the decision to testify is out of their hands, as they have been ordered to do so by the court.”

With April -- Domestic Violence Awareness Month -- around the corner and two high profile sexual assault cases in the media, Arrowsmith-Jones said it is a good time to raise awareness about domestic violence and create a societal environment that is more encouraging of victims coming forward.

”The kinds of violence that are in the paper right now are happening in our community all the time, and it's only every once in a while that it comes to public attention,” she said. “But, these types of issues are going on all the time.”

Back at the EMMA Center, Bian said she's seen many cases die because the victim has a change of heart or the prosecution can't build a strong enough case even with the victim's cooperation. More disturbingly, she said, she's seen some victims simply suffer in silence.

”I know people come in here who don't even report because they're ashamed,” she said. “There's still that stigma in society, that it's the victim's fault.”
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Thadeus Greenson
Article Launched: 03/10/2008 01:30:14 AM PDT
The North Coast Rape Crisis Team has a 24-hour, confidential, crisis hotline at 445-2881. Collect calls are welcome.