By Jarvis Parsons
District Attorney in Brazos County and TDCAA President, and
Domestic Violence and Sexual Assault Assistant District Attorney in Brazos County
The story of David and Goliath takes us into the middle of an intense battle over 3,000 years ago.1
Goliath, the Philistines’ greatest warrior, challenged the army of Israel to single combat, a practice in the ancient world where two opposing groups chose one person to represent each side in a duel. If Goliath won, all of Israel would be enslaved. Beating Goliath would be no small task. Estimates of his height ranged from 6-foot-9 to almost 10 feet tall. His armor weighed 5,000 shekels (125 pounds) and the tip of his spear weighed 600 shekels (15 pounds). For 40 days, Goliath taunted, mocked, and ridiculed the Israelite army,2 and for 40 days, the Israelite army did nothing.
This is where David comes in. He was told by his father to bring food to his brothers, who were in the Israelite army. While there, David heard Goliath’s insults and accepted his challenge to fight. He was ridiculed even by his own family, who questioned his motives and told him to go home.3 David persisted, though, and King Saul gave him a coat of armor, helmet, and sword.4 But David decided to discard King Saul’s armor and use his own weapons, which he had used while tending sheep in the wilderness to fight off wolves and bears: a sling and five smooth stones.
While Goliath expected a duel where both participants had similar weapons, David’s experience and training had prepared him to fight in an unconventional way. You likely know the rest of the story: David, the underdog, hit Goliath in the head with a stone and slayed him, and the Israelites won their war against the Philistines.
We have all heard portions of this story before, and we have all had “Goliath-sized” problems in our lives. Some we have vanquished, and some are still out there taunting us. If David had confronted Goliath on Goliath’s terms, I believe the battle would’ve turned out differently. One of our most challenging problems as prosecutors is adult sexual assault. While we could spend our time speaking about the #MeToo movement or infamous perpetrators like Harvey Weinstein, that may give the impression that sexual assault is an East Coast or West Coast problem, as opposed to a Texas problem. I want to concentrate on Texas, where more than six million adults have experienced some form of sexual assault in their lifetimes.
Sexual assault victims are more likely to suffer from chronic and mental health conditions such as depression, anxiety, and post-traumatic stress disorder (PTSD).5 Economically, the state spends millions of dollars annually on sexual assault victims in medical costs, lost work productivity, and mental health care.6 These are staggering impacts by any measuring stick. However, it is only the tip of the iceberg when considering that only 9.2 percent of victims report sexual assault to the police,7 so there are many survivors who suffer in silence.
In reported adult sexual assault cases, many hurdles hinder successful prosecution. The victim may not have fought back in the way that we usually see in Hollywood movies. In some cases the victim doesn’t remember certain things about the assault. And if the victim has consumed alcohol, then her story may be discounted and determined to be incredible. Many times, these cases come to us from law enforcement officers labeled as “he said/she said” cases, and “all we have” is the victim’s word that a crime occurred.
Sound familiar? It’s as if we have fallen for Goliath’s trick of fighting on the criminals’ terms.
How do we overcome many of the issues in sexual assault cases? The reality is that sexual assault prosecution shares the same solution that prosecutors have used for years to tackle other “unwinnable” cases: scientific research.8
Decades ago, for example, intoxication offenses could be prosecuted only if a defendant “looked drunk.” As a result, such crimes often went unprosecuted until tragedies happened. In response, law enforcement, prosecutors, and advocates banded together to research how alcohol affects the body and trained officers on the streets to look for signs of intoxication through field sobriety tests. We further train chemists testing a suspect’s blood about blood alcohol concentration (BAC), which shows that the defendant is impaired. Through this training, these witnesses could convey to juries that a defendant who did not “look drunk” could still be an impaired driver. In fact, we use the fact that a defendant does not “look” intoxicated—when his BAC says otherwise—as offensive evidence! That’s because a defendant who does not look drunk but has a high BAC likely has significant trouble with alcohol.
Similarly, years ago, an uncooperative or recanting victim could doom a family violence case, as myths surrounding victim behavior were abundant. We combatted this issue by training law enforcement, advocates, and experts on the dynamics of victim behavior, and we used the victim’s recantation and desire to protect the defendant as offensive evidence of the abuse—rather than these issues dooming a case.
Like these earlier difficulties with intoxication offenses and domestic violence, many of the “problems” in sexual assault cases are myths that can be countered by science. The problem is, most law enforcement, prosecutors, and the general public are unaware of the research, instead assuming that “problems” in sexual assault cases mean they cannot be proven or—even worse—that the assault did not happen.
So how do we turn the tide and bring the science of sexual assaults to our courtrooms? How do we prosecute and see justice done in “unwinnable” cases? The first step is to educate ourselves. Just as flight attendants tell plane passengers to put on your own oxygen mask in an emergency before helping someone else with his or hers, we must first understand the science ourselves before we can teach others, such as law enforcement and jurors.
Step 1: Educating yourself
How do you educate yourself on victim behavior and dynamics of sexual assault? Well, you are on the right track by reading this article! There is a lot of research in the area of trauma and memory, behavior of trauma victims, how alcohol affects memory, and other areas critical in sexual assault prosecution. It is important to seek out this information. Conferences, other prosecutors, sexual assault advocates, and counselors can all be excellent resources and sounding boards for questions regarding victim behavior.9 In researching this issue ourselves, we have reached out to the Texas A&M University College of Nursing, our local rape crisis center, and area forensic nurses. Once we explained our issue, each was more than willing to sit down with us, share research, and walk us through some of the more complicated scientific information. After learning some of it, we asked Dr. Nancy Downing, a forensic nurse and researcher at Texas A&M College of Nursing, to present at a “lunch and learn” at our office; she discussed myths about sexual assault survivors and how research explains the “unexplainable” behavior of many victims.
Step 2: Educating investigators
It is important that once prosecutors understand the behavior and evidence in sexual assault cases, that we teach it to local officers, investigators, staff, advocates, and others who collect information about the sexual assault from the survivors. Without this information, these fact-gatherers might miss important clues and evidence. In this vein, sexual assault cases are a lot like domestic violence strangulation cases: The evidence may be there (through a victim’s symptoms and behavior), but if the officer does not ask the right questions or document what’s important, the evidence could be lost forever. It is critical that our fact-gatherers understand how trauma and alcohol may affect memory and behavior and that they respond appropriately to the victim’s situation.
Step 3: Educating jurors
The ultimate goal, of course, is to impart this information to jurors in a way that they can understand. We can do this through finding and developing an expert witness who knows the research and dynamics of victim behavior. Brazos County is lucky that the Texas A&M College of Nursing has several researchers who are willing to testify about scientific research regarding memory, trauma, alcohol, and victim behavior in sexual assault cases. However, experts can also be developed through advocates at your county’s sexual assault advocacy center, victim advocates at the police department, and local counselors who work with sexual assault victims. In fact, the University of Texas’s Institute on Domestic Violence and Sexual Assault (IDVSA) equips and trains expert witnesses to testify about victim behavior in both sexual assault and domestic violence cases.10 In addition, the IDVSA provides consultation services too. Several years ago, a counselor with the local women’s shelter and I attended the conference, and I have consistently used her ever since as an expert in domestic violence and sexual assault cases.
Now that we know how to proceed, let’s tackle three myths that are prevalent in sexual assault cases.
Myth 1: She should’ve fought back.
The notion of fighting off a rapist—or not fighting off a rapist—is possibly the main question that prosecutors, law enforcement, and jurors have when evaluating cases. A deeper dive into how the brain reacts to traumatic situations sheds some light into how some victims will react.
First, note that in a sexual assault, the victim is at a significant disadvantage: She is only reacting to what is happening. Perpetrators have the benefit of planning their actions and picking the time, place, and manner of the assault. Understanding that distinction is important.
Second, there is a common misperception that humans will either try to fight their attacker or run away and escape a sexual assault.11 In fact, there are multiple ways that human beings react to threats. Research has shown that human beings respond to a potential attack in at least four different ways: fight, flight, freeze, or faint. Because fight and flight are well known, we will focus on the last two.
Freezing. Freezing is a natural human response to a threat where senses are heightened and a person becomes very still. It is an initial reaction to a threat.12 Scientists posit that for thousands of years, freezing has allowed potential prey to escape a predator’s detection and focuses the prey’s attention on its senses while scanning the environment for a threat.13 A great example of this concept is if you are lying in bed at night and you hear a sudden noise. Many people would just become very still, listening to see if they can pick up additional clues about the noise and whether it is threatening or not.14 It’s important to note that “freezing” is not a planned reaction. This is an automatic response to a threatening situation.
Fainting. Fainting, or tonic immobility (TI), is an involuntary response to situations involving intense fear coupled with an inability to escape. TI is likened to a catatonic state with an inability to vocalize and can include other symptoms, such as feeling cold, extremity tremors, muscle soreness, and confusion following the assault.15 Researchers have recognized this phenomenon in sexual assault survivors since the 1970s.16 Most studies on tonic immobility in humans have focused on sexual assault victims because sexual assault has been described as one of the most traumatic experiences a person can experience. Tonic immobility has been found in sexual assault victims at a significantly higher level than other types of trauma, and it is described routinely in medical forensic exams.17 Tonic immobility can often mean victims go through more guilt and shame because they feel like the only acceptable responses to sexual assault are fight and flight.18 While some in the legal system may misinterpret this reaction as passive consent to the assault, they may be missing a very normal and expected human reaction to an overwhelming threat that is documented in the scientific literature.
Myth 2: Victims should remember everything.
The second myth that is extremely common is that a “real” sexual assault victim would not have unexplained gaps in her memory. However, research tells us that this is not necessarily true with a victim who has been through a traumatic experience.19 In fact, memory gaps or profound attention to certain details can be key evidence in showing that a victim has been through trauma.
When not in a traumatic situation, our brains record memories in the form of stories or events.20 They usually have a beginning, a middle, and an end. These stories will often include facts and details that are important in the narrative and to the conclusion, or feelings about the event, but they will exclude details that the brain does not consider important enough to encode in long-term memory. For example, you likely can remember a defendant’s testimony in a major case you tried but not what you ate for lunch that day. In fact, you likely cannot remember mundane details that occurred even in the last couple of days, such as the number of people you talked to on the phone yesterday.
When we understand how encoding works outside a traumatic experience, it can make sense that prior to a sexual assault, a victim is likely not encoding facts in her long-term memory that do not seem significant at the time.21 This is why a victim may not remember how many drinks she had before the assault, who was at a party she attended, or other details that her brain did not commit to long-term memory.
However, once a person’s brain perceives a threat or danger, the brain tends to respond on instinct rather than a thought-out process,22 and it’s meant to maximize the likelihood of survival. You likely have seen yourselves “react” to a threat if you have ever had near-miss with a car that has pulled out in front of you. Instead of thinking through a logical response, drivers often instinctually slam on the brakes, swerve to avoid the threat, or both. This reaction is done automatically and cannot be easily controlled.23
Once the threat response in the brain has been initialized, the brain becomes hyper-focused on the current threat. With robberies and assaults with weapons, it could be the weapon. The brain will not focus on what it feels are “peripheral details” not central to survival.24 One of the common “peripheral details” is the time or duration an assault occurred. Because that information is not central to survival, a victim often cannot accurately recall it if pressed by an investigating officer.25
After a traumatic incident, the brain will start to encode into long-term memory the events, but it will not be in the same “story” format. Instead, the brain will remember flashes of events either before or during the assault, which could help the victim’s brain quickly recall the perceived danger in the future. Things like smells, sounds, feelings, or particular details will be encoded in the brain so that the body can respond or avoid the threat in the future. This is why, for example, individuals with PTSD will often react instinctively to sounds or smells that seem innocuous to other people. It may actually take a couple of days for the brain to really sort through the memories of the traumatic event to properly understand what occurred and reflect on it.26
Once we understand how the brain works in this situation, it is not at all surprising that when a victim of a sexual assault is interviewed, she will not remember peripheral details of the assault. Instead, the brain will have focused on details critical to physically and emotionally surviving the trauma. When properly understood, this “weakness” of a victim’s lack of memory can actually be a strength in trial because it can show that the victim’s behavior and memory are what we would expect from a victim of trauma.
Myth 3: She was intoxicated, so we cannot trust her memory.
One of the most common myths associated with sexual assault is that we cannot put stock into a victim’s memory because of her level of intoxication. It is true that alcohol can have an effect on memory. Research shows that alcohol affects the long-term encoding in the brain, specifically, the transfer of memories from short-term to long-term memory.27 Consequently, studies show that an intoxicated individual will likely have a more difficult time accurately reporting contextual details of an event.28 However, these same studies also show that alcohol does not create false memories. In fact, the details that an intoxicated individual could recall were just as accurate as her sober compatriots, especially when individuals were allowed to answer “I don’t know” or “I don’t remember” in response to questions.
What are the implications for sexual assault prosecutions? First, it’s important to make sure up front that investigating officers allow a victim of trauma—intoxicated or not at the time of the assault—to answer “I don’t know” to their questions. Second, it is also important to allow a victim time to process the memory and to understand that she will likely remember more once the brain is allowed to sort through the traumatic experience. Third, studies have shown that a victim’s flashbulb memories are accurate, even if the victim was intoxicated at the time of the offense. Officers should ask open-ended questions and recognize that questions such as “How long did such-and-such take?” will likely produce inaccurate information because of how memory is stored in the brain.
Appreciating how the brain responds in traumatic situations is essential for prosecutors. First, it helps to dispel a cognitive bias against sexual assault victims who don’t react in ways we might expect. Prosecutors are not superhuman. We are just as susceptible to myths and stereotypes as the average person. As a former intake prosecutor, I found it easy to reject cases on the basis that if it was “truly” sexual assault, the victim would’ve put up a fight or run away. I wish I would’ve known this information when I started prosecuting—I would’ve had more empathy for the victims’ cases that came across my desk. Equally important is finding a medical professional who can put this information in front of a jury to explain the victim’s actions. Explaining myth versus reality in a sexual assault case can go a long way in humanizing a victim. It doesn’t mean these cases aren’t hard, and it doesn’t mean you can take every single sexual assault case that comes across your desk. Understanding these stereotypes allows prosecutors to separate fact from fiction and therefore better evaluate cases and fight for justice in our own communities.
David chose to not engage in hand-to-hand combat with Goliath, and we shouldn’t either. Rather, the best way to fight for sexual assault victims is to counter the myths with facts and research. We must use the “stones” all around us to educate ourselves, investigators, and juries as to the realities of sexual assault. It’s not easy and it doesn’t mean we can take every case, but the fight is definitely worth it.
 1 Samuel 17.
 1 Samuel 17:16.
 1 Samuel 17:28. “When Eliab, David’s oldest brother, heard him speaking with the men, he burned with anger at him and asked, ‘Why have you come down here? And with whom did you leave those few sheep in the wilderness? I know how conceited you are and how wicked your heart is; you came down only to watch the battle.’”
 1 Samuel 17:38-40. “Then Saul dressed David in his own tunic. He put a coat of armor on him and a bronze helmet on his head. David fastened on his sword over the tunic and tried walking around because he was not used to them.”
 Health and Well-being: The Texas Statewide Prevalence Study on Sexual Assault, Final Report August 2015. https://sites.utexas.edu/idvsa/files/2019/03/TX-SA-Prevalence-Study-Final-Report.pdf.
 Lisak, D. & Markel, D.W. (2016, January). Using science to increase effectiveness of sexual assault investigations. The Police Chief, 83, 22-25.
 For an excellent conference covering the issues surrounding sexual assault, see the National Conference on Crimes Against Women at http://conferencecaw.org.
 For more information: https://sites.utexas.edu/idvsa/training-programs/expert-witness-training.
 Downing, N., Valentine, Julie, Gaffney, D., The Neurobiology of Traumatic Stress Responses After Sexual Assault, Medical Response to Adult Sexual Assault, Second Edition : A Resource for Clinicians and Related Professionals pg. 242, 2019.
 Bracha HS. Freeze, Flight, Fight, Fright, Faint: Adaptionist Perspectives On The Acute Stress Response Spectrum. CNS Spectr. 2004; 9(9): 679-685.
 See Endnote 11.
 Id. At 243. Also see Traumatic events and tonic immobility, A. Bados, L. Toribio, E. Garcia‐Grau; Span J Psychol, 2008.
 Lexington J. An Examination of the Relationship Between Tonic Immobility and the Pschophysiology, Behaviors and Perceptions in Response to a Hypothetical Date Rape Scenario. Philadelphia, PA: Temple University; 2007.
 Wilson, C, Lonsway, K, Achambault, J, (2016). Understanding the Neurobiology of Trauma and Implications for Interviewing Victims, End Violence Against Women International 22.
 D’Argembeau, A. et al. (2014). Brains creating stories of selves: The neural basis of autobiographical reasoning. Social Cognitive and Affective Neuroscience, 9 (5), 646-652.
 Wilson, C, Lonsway, K, Achambault, J, (2016). Understanding the Neurobiology of Trauma and Implications for Interviewing Victims, End Violence Against Women International, 7.
 Schwabe, L., Joëls, M., Roozendaal, B., Wolf, O.T., & Oitzl, M.S. (2012). Stress effects on memory: An update and integration. Neuroscience & Biobehavioral Reviews, 36 (7), 1740-1749.
 Lonsway at11-14.
 Hopper, J. & Lisak, D. (2014, December 9). Why rape and trauma survivors have fragmented and incomplete memories, Time.com.
 Lonsway at 27.
 Lonsway at28-29.
 Flowe, H. D., Takarangi, M. K., Humphries, J. E., & Wright, D. S. (2016). Alcohol and remembering a hypothetical sexual assault: Can people who were under the influence of alcohol during the event provide accurate testimony?. Memory, 24(8), 1042-1061.
 Weafer, J., Gallo, D. A., & De Wit, H. (2016). Acute effects of alcohol on encoding and consolidation of memory for emotional stimuli, Journal of Studies on Alcohol and Drugs, 77(1), 86-94.