Legal scholar Melissa Hamilton has analyzed whether assault victims’ hearsay statements are reliable enough to admit them in evidence at trials for domestic violence, rape, child molestation, child physical abuse, and other acts of interpersonal violence. Her conclusion is that they are not.
While hearsay is generally inadmissible, hearsay statements alleging sexual assault, child abuse, and other forms of assault frequently are found to fall with one of three exceptions to the rule against hearsay evidence: excited utterance, present sense impression, and statement of mental or bodily condition.
Typically, courts admit these three types of hearsay because their circumstances seem to make them reliable. The statements are made when the event occurs, or shortly afterward. The speaker has little opportunity to come up with a lie or distort the truth.
Hamilton argues that these hearsay exceptions are less reliable in the context of interpersonal violence. (“Interpersonal violence,” as she uses the term, includes domestic abuse and sexual assault.) When an event of interpersonal violence occurs, a person may intentionally or instinctively dissociate from the event—in other words, “shut down” physically, emotionally, or both. A person will shut down, either intentionally or instinctively, to minimize the extent and severity of physical injuries. Hamilton compares this to “an animal in the wild playing dead when faced with a predator.”
As a result of the dissociation, the victim of rape, domestic violence, or child abuse “may simply not be able in the moment to adequately articulate the story, properly parse her emotions thereto, or to fully conceptualize various contexts or circumstances regarding the assaultive event.” Thus, the statements made by the person at the time of the assault, or soon after it, may not be truthful, even if the victim tries to tell the truth.
Hamilton notes that “the relative unreliability of [hearsay] is even greater” in cases of sexual assault or domestic violence “than in other cases of traumatic events.” Victims of sexual assault and domestic abuse are “at high risk to feel shame” and thus are at high risk to dissociate from the event. If a person experiences repetitive domestic violence or sexual abuse, the dissociation is more likely to become instinctive and to occur as soon as abuse is even threatened. This makes hearsay statements by victims of repeated assaults, sexual or physical, especially unreliable.