You may now 'call' your next witness: allowing adult rape victims to testify via two-way video conferencing systems.

AuthorKenniston, Carolyn W.
  1. INTRODUCTION

    Adult rape is serious problem in the United States. (1) Unfortunately, many victims of adult rape do not report their attack to the police. (2) Even when victims report their attacks to the police, few reports lead to an arrest. (3) When victims do report their attacks, and police apprehend the attackers and make arrests, victims still have to repeat the horrific events to multiple parties, including their lawyers, the police, their friends, their families, and the courts, in the same rooms as their attackers. (4)

    Hundreds of thousands of adult rapes are reported every year. (5) While this number is astonishing, the actual occurrence is even greater because many victims' fail to report their attack for fear of having to testifying in court. (6) Additional traumatic physical and emotional responses to rape prevent many adult victims from reporting the attack. (7) Because perpetrators have the Constitutional right to confront their accusers, victims must testify against their attackers to find justice. (8) Rape victims are increasingly testifying remotely using video conferencing technology, which enables them to participate in courtroom proceedings and interact without being physically present, including giving testimony and being cross examined. (9)

    Video conferencing abilities are becoming increasingly utilized in the courtroom. (10) Even though it solves the issue of victims' reoccurring trauma caused by testifying in the same room as their attacker, many courts are still skeptical of using video conferencing. (11) This Note challenges the argument against video conferencing technology in courtrooms, and it reinforces the urgency of using video conferencing in court for adult rape victims who wish to avoid the physical presence of their attacker by alternatively confronting their digital presence. (12) Part Two examines the history and development of video conferencing systems in the courtroom, as well as the allowance of child rape victims' to testify through video conferencing. (13) Part Three discusses the technology itself and explores the effect that seeing their offender again can have on an adult rape victim. (14) Part Four analyzes the benefits and drawbacks of using video conferencing for adult rape victims and emphasizes that a victim's traumatic experiences should not be exacerbated by forcing the victim to physically sit in the same room as their attacker. (15) Ultimately, this Note will advocate for courts and legislatures to adopt a federal or additional state statutes allowing adult rape victims to testify using video conferencing as an alternative to in-person court testimony. (16)

  2. HISTORY

    1. The Evolution of Video Conferencing

      Video conferencing dates back to the 1970s and has rapidly been evolving since. (17) Beginning in 1972, Illinois courts began experimenting with video conferencing, which they used for bail hearings. (18) Ten years later, in 1982, video conferencing evolved even more, and the usage of two-way video conferencing television--as opposed to one-way video conferencing -began in Florida. (19) Although at first video conferencing was problematic, the technology now is far more sophisticated and advanced, and is becoming more widely used. (20)

      Video conferencing is used in a variety of scenarios beyond criminal cases, including non-trial proceedings. (21) In 1996, the Federal Rules of Civil Procedure began to allow remote witness testimony in civil cases for good cause. (22) Video conferencing is more frequently used in civil cases because there are fewer constitutional concerns. (23) Furthermore, increasing numbers of courts have allowed video conferencing for immigration removal proceedings (24) and mediation. (25) Additionally, for both civil and criminal proceedings, video conferencing abilities are used when Circuit judges sit in different, farther away courthouses from each other, which helps relieve travel costs and time spent traveling to different courthouses. (26) The use of video conferencing in criminal proceedings is gaining popularity because of its benefits, and further advancement of the technology al lows a greater ease of use and quality. (27) In Hawaii, for example, there is a criminal statute that gives victims and witnesses in criminal proceedings the right to testify at trial through two-way video conferencing. (28)

      Courts have also allowed video conferencing when a witness or defendant would bear a hardship in traveling due to health conditions. (29) A Washington court held in 2014 that a mother could testify via video conferencing because she showed good cause that her son's health created a hardship while traveling. (30) In another case, the court allowed an elderly man to testify using Skype video conferencing technology because of a stroke that left him too weak to stand. (31)

      While poor health is a compelling circumstance, travel distance combined with poor health has also been persuasive in allowing testimonial video conferencing in court. (32)

    2. Children Rape Victims May Testify Via Video Conferencing

      In 1988, the Supreme Court held in Coy v. Iowa that as a general rule, a defendant is guaranteed under the Confrontation Clause to the right to face-to-face confrontation. (33) In Coy, two minor sexual assault victims testified behind a screen, so that the defendant could barely see the witnesses and the witnesses could not see the defendant at all. (34) After being convicted, the Court found that the defendant's right to a face-to-face encounter was violated, finding that the defendant and witness must be able to see and hear each other. (35) Then, in 1990, the Supreme Court decided in Maryland v. Craig that children rape and sexual assault victims were permitted to testify through one-way closed- circuit television ("CCTV"). (36) The Court held that this was constitutional because children are likely to suffer from severe emotional distress in testifying that would render them unable to reasonably communicate. (37) The one-way CCTV allowed the court to see each witness, although the witness could not see the courtroom or the defendant. The defendant could see the witness (39) and all rulings were made as though the child was present in the courtroom. (40) The Court noted that the defendant's constitutional rights were not violated due to using the video testimony because it was necessary to further an important public policy, which was to protect the child from further trauma. (41) Additionally, the Court determined that the state's interest in protecting the children rape victims was sufficiently important to outweigh the defendant's right to physically face his or her accusers in court. (42)

      While the Court made this determination, it held that trial courts must conduct an evidentiary hearing to ensure that these findings of necessity were case-specific. (43) The framework established in Craig was the appropriate standard to create because the protection of child sexual abuse victims was fundamental and many child abuse cases go unreported to the police. (44) In it's holding, the Court determined that the physical confrontation right was "not an indispensible element of the right to confront one's accusers." (45) The Craig case ultimately determined two requirements for a child sexual abuse victim to be able to testify via one-way CCTV: 1) denying a defendant's confrontation right must be necessary to further a public policy interest and 2) the testimony must be reliable. (46)

    3. Rape Trauma Syndrome and Post Traumatic Stress Disorder (PTSD)

      Rape is one of the most terrifying crimes that can be committed against a person. (47) The mental and physical effects of being raped are known as Rape Trauma Syndrome (RTS). (48) RTS begins immediately after the attack in the Acute stage, with the victim feeling shock, fear, soreness and confusion. (49) In the next stage, known as the Underground stage, the victim attempts to return to his or her normal life, attempts to forget about the rape, avoids discussing the attack, and avoids normal routines as a way to get back to normal. (50) In the Reorganization stage, the victim returns to a phase of turmoil, which can, arguably, be exasperated by receiving a subpoena to testify or by seeing his or her attacker on the street. (51) Finally, in the Development stage, the victim suffers issues of trust, power, control and independence, which can increase or decrease depending on the severity of the attack and the victim's support systems. (52)

      Following a rape, adult victims suffer numerous serious mental and physical symptoms. (53) Post Traumatic Stress Disorder (PTSD) is common among adult rape victims. (54) About one-third of rape victims experience PTSD, (55) and are more likely to suffer from PTSD than those who experience other traumatic events. (56) Due to the inherently intrusive nature of rape, many victims experience some form of PTSD after their attack. (57) In particular, adult victims who suffer from PTSD experience flashbacks following their attack. (58) These flashbacks give the victim the same feeling of helplessness as they had at the time of the attack, leaving them unable to discern the difference between the flashback and reality. (59) Flashbacks are triggered by certain scenarios and lead the victim to avoid any similar circumstances. (60)

      Additionally, many adult rape victims experience PTSD when asked to face their perpetrator in court. (61) As a result of having to testify in their attacker's presence, many adult victims suffer from the heightened trauma of being in the courtroom with their attacker. (62) Testifying in court leaves adult rape victims feeling intense symptoms of PTSD. (63) Many adult victims feel powerless and embarrassed while recalling the rape experience in court in front of a judge, jury, friends, family and their attacker. (64) Introducing tangible evidence into trial can also trigger PTSD, causing a sense of powerlessness and fear similar...

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