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COMMENTARY
A victim of sexual assault or domestic
violence retracts a recantation. Is their
credibility compromised?
To an outside observer, it may appear as erratic flip flopping. More often, it’s a
symptom of the traumatic experience the survivor went through. Still, how much
has the vacillation damaged the credibility of the victim/survivor and their legal
case?
Daniel Pollack and Helene M. Weiss | September 6, 2022
Your client is a victim of a single sexual assault or many such assaults
that took place over a long period of time. The event(s) may have
happened recently or years ago. Finally, the client discloses. Then, for
any number of reasons, the client recants. Upon further reflection, the
recantation is retracted. Now the client stands firm and says the assaults
really did occur. To an outside observer, it may appear as erratic flip
flopping. More often, it’s a symptom of the traumatic experience the
survivor went through. Still, how much has the vacillation damaged the
credibility of the victim/survivor and their legal case?
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There are three aspects to investigate: the initial disclosure, the
recantation, and the retraction.
The Initial Disclosure
Sexual assault can take a horrible toll on a person. It is well known that
calling out the person responsible for the assault—often a person the
survivor trusted greatly—is extraordinarily difficult. Especially if the
abuse took place when the victim was a child, delayed disclosure is
common. Family, friends, potential jurors, and even judges who are
unfamiliar with the impact trauma can have, may not appreciate why a
victim may wait to report sexual abuse and then backtrack. Disclosure of
such memories may flower slowly, sometimes referred to as “layered
reporting.”
The Recantation
We are used to seeing stories about people who have recanted. Recent
attention-grabbing headlines include:
• Peng Shuai Not at All Suspiciously Recants Sexual-Assault Accusations
• Don Lemon Accuser Recants Assault Accusations, Drops Lawsuit
There is no singular reason why victims choose to recant. Often, because
of the very intimate relationship the parties have, this may prompt the
victim to decide not to jeopardize that relationship. The victim may also
feel coerced into recanting so as not to endanger children who may be
involved. Unseen intimidation or threats by the accused or their
associates may also be happening.
The Retraction
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The common definition of retraction is to assert that something that a
person previously said or wrote is really not true. Many states have
retraction statutes that apply to newspapers or other media. For
instance, Florida’s statute reads:
770.02 Correction, apology, or retraction by newspaper or broadcast
station— (1) If it appears upon the trial that said article or broadcast
was published in good faith; that its falsity was due to an honest mistake
of the facts; that there were reasonable grounds for believing that the
statements in said article or broadcast were true; and that, within the
period of time specified in subsection (2), a full and fair correction,
apology, or retraction was, in the case of a newspaper or periodical,
published in the same editions or corresponding issues of the newspaper
or periodical in which said article appeared and in as conspicuous place
and type as said original article or, in the case of a broadcast, the
correction, apology, or retraction was broadcast at a comparable time,
then the plaintiff in such case shall recover only actual damages.
(2) Full and fair correction, apology, or retraction shall be made:
(a) In the case of a broadcast or a daily or weekly newspaper or
periodical, within 10 days after service of notice;
(b) In the case of a newspaper or periodical published semimonthly,
within 20 days after service of notice;
(c) In the case of a newspaper or periodical published monthly, within 45
days after service of notice; and
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(d) In the case of a newspaper or periodical published less frequently
than monthly, in the next issue, provided notice is served no later than
45 days prior to such publication.
Of course, retractions of recantations of assertions of sexual assault or
domestic violence may be similar, but they are not the same as those in a
newspaper.
Implications
People are credible if they exhibit the quality to elicit belief, to be
truthful. A subjective term, credibility is the key determination a court,
jurors, law enforcement officials, and attorneys need to constantly
make. When a victim recants in a criminal case, such recantation—
whether written or recorded—must be turned over to the defense.
Recantations are viewed in the eyes of the law as something that
inherently affects a witness’s credibility, and is therefore an automatic
disclosure that prosecutors are required to make when made aware of
any recantation by their complaining witness. When a recantation takes
place in a criminal case, prosecutors may still decide to move forward
with prosecution if they have enough available evidence to support the
charges. A prosecutor may choose to rely on 911 calls, police reports,
statements made by eyewitnesses, medical records, and more. However,
once a jury hears that a victim has at one point recanted, their credibility
may be permanently affected.
A retraction of a recantation presents further issues. While it can be
somewhat easily understood by a jury that recantations typically occur
with victims who are terrified of their abuser, a retraction of a
recantation is a bit more complex. Now a jury must grapple with the
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reasoning for the victim’s initial recantation, as well as the reason for the
victim’s subsequent retraction. More often than not, fear and
intimidation play a role in a witness’s motivation for recanting and
retracting a disclosure.
Of course, defendants are allotted an opportunity to confront their
accuser in court during cross-examination. In cases where a recantation
and/or retraction occurs, a thoughtful cross-examination will
undoubtedly focus on a victim’s recantation. Any piece of evidence that
may damage a complainant’s credibility should be an expected topic
during cross examination, and recantations fall neatly into that category.
However, this doesn’t necessarily mean that a victim’s credibility will be
absolutely destroyed. Prosecutors can attempt to rehabilitate their
complainant with a careful re-direct examination to provide the jury
insight into why the recantation occurred.
Civil cases with recantations and retractions will play out much
differently. Although prosecutors have an ethical duty to disclose
information that will impact their witnesses’ credibility, plaintiffs have
no such ethical duty. Theoretically, a victim could recant and retract to
their attorney several times and such information may not be shared
with a finder of fact. However, this does not mean that such retractions
and recantations reflect favorably for the client. Unlike a prosecutor, a
civil attorney may choose to voluntarily withdraw from their
representation of a client if they do not believe they can pursue the
client’s claims in good faith.
A victim of sexual assault or domestic violence is not traumatized only
momentarily. Their trauma and sense of vulnerability is open-ended.
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Consequently, great care and consideration must be given in properly
assessing their history of divulging, recanting, and reaffirming their
abuse. Coercion, intimidation, and fear all play into the context in which
the initial and subsequent complaints were made. Indeed, context is
everything.
Daniel Pollack, MSW, JD is a professor at Yeshiva University’s School of
Social Work in New York City. He is also a commissioner of Game Over:
Commission to Protect Youth Athletes, an independent blue-ribbon
commission created to examine the institutional responses to sexual
grooming and abuse by former USA Gymnastics physician Larry Nassar.
Contact him at dpollack@yu.edu. Helene M. Weiss, is an associate
attorney at the Marsh Law Firm in New York, and special professor of law,
Maurice A. Deane School of Law, Hofstra University. Contact her
at heleneweiss@marsh.law.
Original link: https://www.law.com/dailybusinessreview/2022/09/06/a-victim-of-
sexual-assault-or-domestic-violence-retracts-a-recantation-is-their-credibility-
compromised/