The Language of Assault Trials: An Analysis of Witness Cross-Examinations

“It has been said that the victim of a sexual assault is actually assaulted twice – once by the offender and once by the criminal justice system” (State v. Sheline, 1997). The principal player in the revictimization narrative is typically the defense lawyer who cross-examines the complaining witness (Taslitz, 1999). Previously, this occurred by introducing a witness’s prior sexual history, which led a jury to judge the witness’s moral propriety. However, Rape shield laws, which were passed to help protect witnesses from such judgements, have been found to be ineffective (Anderson, 2002).

In research examining the laws’ inefficacy, no one has examined the extent to which the actual questioning by counsel in these cases differs from the questioning of other prosecution witnesses in similar cases. Thus, this study asks: other than the fact that the crime is so personal that the situation itself revictimizes those who come forward, what is different about the language of sexual and non-sexual assault trials?

For this pilot study, we obtained two trial transcripts: a non-stranger sexual assault crime and a non-stranger assault crime. We analyzed the questions posed during the cross-examinations using Appraisal Analysis (Martin and White, 2005), which identifies a speaker’s stance toward another person or proposition. The findings revealed that both cases utilized similar legal strategies; however, differences in the kinds of judgements made by each lawyer revealed subtle ways in which rape shield laws were upheld, but the witnesses were effectively discredited. As a valuable approach to such questions, steps for further research will be discussed in light of existing laws aimed at protecting rape victims against such re-victimization.

References

Anderson, Michelle J. (2002). From Chastity Requirement to Sexuality License: Sexual Consent and a New Rape Shield Law. George Washington Law Review, 70: 51-162.

Martin, J.R. and White, P.R.R. (2005) The Language of Evaluation: Appraisal in English. New York: Palgrave/Macmillan.

State v. Sheline, 955 S.W.2d 42, 44 (Tenn. 1997).

Taslitz, Andrew E. (1999). Rape and the Culture of the Courtroom. New York: NYU Press.