She showered immediately. Not to destroy evidence, she had not even considered “evidence,” but because she needed to feel clean. By the time she told anyone, the evidence defense lawyers expect was gone. No kit. No photographs. No witnesses. This is where most sexual assault cases begin.
For the plaintiff’s lawyers, these cases present a unique challenge because they rarely resemble “traditional” cases. The evidence is different, the client’s behavior is often misunderstood, and the most significant harm is invisible—the psychological injury.
The Defense Calls It Missing Evidence. It’s Trauma.
The defense strategy is predictable: focus on the absences. No report. No exam. No physical proof. Perhaps no criminal conviction. If we add in perceived flaws in our client’s background with the “right” venue, the defense has already patted themselves on the back, filed their Motion for Summary Judgment, and rapidly presented their unfathomably low offer on cases of the most heinous assaults.1
But trauma science, along with William Barton’s framework on psychological injuries, emphasize that these “absences” and “flaws” are well understood patterns.2 What the defense perceives as baffling, bizarre, and in some cases, “belying” facts, are in fact the manifestations of adaptive trauma responses. As Plaintiffs’ counsel, we must not minimize or argue around these challenging facts but instead must anchor them in human behavior.
Indeed, jurors may expect emotion to look a certain way, but that expectation does not always match how trauma presents. Survivors may present as flat or detached, inconsistent in memory, and even calm when recounting traumatic events.3 Without context, jurors misinterpret this as dishonesty.
This is where clinical credibility becomes outcome-determinative. The most persuasive witnesses are treating providers, clinicians who explain behavior rather than merely diagnose it, and experts who connect symptoms to lived experience. They must do more than simply identify PTSD, they must explain how trauma affects memory encoding, why emotional responses vary, and how coping mechanisms develop.4
The Investigation
Critically, investigating institutional actors is key because the assailant-perpetrator is also on the jury charge. How do we convince a jury to assign fault to the perceived “passive” actor?
In these cases, the assault is rarely isolated. Search for prior complaints, internal warnings, patterns across locations, and any whistleblowers. This is a requirement in Texas, where Timberwalk primarily dictates the viability of sexual assault cases against institutions.
Specifically, Timberwalk requires premises owners to protect invitees from criminal acts when the risk is both foreseeable and unreasonable.5 The focus of our investigation must support the following foreseeability factors: (1) the proximity of previous crimes to the premises; (2) how recent previous crimes occurred; (3) how often previous crimes occurred; (4) the similarity of previous crimes to the crime at issue; and (5) the publicity surrounding previous crimes.
First, find the obvious evidence where the institution ignored warning signs, prioritized profit over safety, and/or otherwise allowed conditions where abuse could occur. Then, frame it through decisions. What would prevention have cost? Who chose not to implement it? What did they gain by doing nothing?
Take it further. Juxtapose the hotel clerk’s station to the office the executives occupy. Is it open to the public 24/7? Is it locked after dark? Is there an alarm system? Are there cameras? Is there ever only one person on the premises after dark? And, has anyone ever been robbed or assaulted on those secure premises?
Likewise, contrast the salary of those profiting from these “cost-saving” measures. What does the CEO make? How much would those security measures have cost in proportion to the executives’ salaries? What about the company’s profits for the year? How much did the company profit because of saving these costs? Are those costs worth more than a human life? Worth more than a human’s dignity?
Furthermore, finding multiple incidences and opportunities for the institutional defendant to prevent subsequent harm where they failed to do so opens the door for punitive damages, one of the most impactful vehicles for institutional change.
In summary, the investigation must shift the case from “a bad act occurred” to “they knew—and did nothing.”
Voir Dire
Sexual assault cases are often decided in jury selection. A common trial tip is to take all the things we fear about our case and talk to the jury about them.6 This is especially true for sexual assault and harassment cases.
We simply must identify jurors who distrust psychological injuries, believe emotional harm is exaggerated, expect immediate reporting, and equate calm demeanor with lack of harm.7 Ask directly:
“Do you believe emotional injuries can be as serious as physical ones?”
“Do you expect someone who has been assaulted to report it right away?”
“How do you evaluate something you cannot see, like anxiety or PTSD?”
Transformative Advocacy
Trial lawyer Randi McGinn pioneers in identifying the non-monetary relief that survivors often want most. Her clients create a wish list, typically including a written apology from the wrongdoer, which she then conditions settlement on.8 Structure the case to include policy reforms, training requirements, and institutional accountability. Finally, consider the ramifications of confidential settlements and how refusing confidentiality can minimize public hazards.9
Closing
By closing, liability should be clear. Barton’s influence is strongest here: anchor damages in meaning, not numbers alone. What was taken? What cannot be restored? And, most importantly, what can the jury do about it now?
There are two possible outcomes after a verdict against institutions for this type of harm. One is the infamous Ford Pinto scenario, where the verdict is such that the company can simply factor in the cost of harm as part of their business model, and the other involves an institution finally putting safety first.10
Conclusion
In summary, sexual assault cases demand more from us. They require us to take facts that don’t “sound right” at first and explain them clearly. They require us to prove injuries that cannot be seen. And they require us to confront juror assumptions head-on instead of hoping they never come up.
Endnotes
1 Interestingly, conservative jurors tend to be preferrable as they tend to view the case through a prosecutorial lens. See William A. Barton, Recovering for Psychological Injuries (3d ed. Trial Guides 2010).
2 See Id; See W. O’Donohue, G. Carlson, L. Benuto & N. Bennett, Rape Trauma Syndrome, 21 Psychiatry, Psychology & Law 858 (2014).
3 See Impact of Trauma on Adult Sexual Assault Victims, Dep’t of Justice (2023), https://www.justice.gc.ca/eng/rp-pr/jr/trauma/p4.html
4 See Bessel A. van der Kolk, The Body Keeps the Score: Brain, Mind, and Body in the Healing of Trauma (Viking 2014).
5 Timberwalk Apartments Partners, Inc. v. Cain, 972 S.W.2d 749, 751 (Tex. 1998).
6 See Keith Mitnik, Don’t Eat the Bruises: How to Handle Witnesses Who Will Hurt Your Case (Trial Guides, LLC 2017).
7 See Barton, Recovering for Psychological Injuries.
8 Randi McGinn, Representing Victims of Sexual Harassment, Assault, and Retaliation (Trial Guides, LLC 2019).
9 Secrecy Settlements as a Public Safety Issue, 26(19) The National Law Journal (Monday, January 12, 2004), cited by Barton, Recovering for Psychological Injuries.
10 See Douglas Birsch & John Fielder eds., The Ford Pinto Case: A Study in Applied Ethics, Business, and Technology (State Univ. of N.Y. Press 1994); See, e.g., Randi McGinn, Changing Laws, Saving Lives (Trial Guides, LLC 2014).