The National Center for Women and Policing
http://www.womenandpolicing.org/
Publication Date: May 2001
This section was written by Dr. Kimberly A. Lonsway, Research Director, National Center for Women & Policing
Content of this module was developed partly on the basis of material from the following sources.
The National Center for Women & Policing gratefully acknowledges the assistance of the organizations that produced these materials.
Although specific statutory definitions of sex crimes vary by state, most are conceptually similar and can be understood by analyzing their elements. The analysis of each element, moreover, can be represented in the chart provided at the beginning of this module. By following the chart and making a series of decisions, the investigator can determine not only which specific crime was committed but can also frame the entire investigative strategy based on the defense that is most likely to be raised. Sexual assault laws will thus be discussed conceptually in this module; this must be supplemented with information from local definitions and statutes.
In most states, the first decision to be made in a case is whether sexual penetration or sexual contact has occurred. The specific terminology and definitions will vary, but states generally recognize a conceptual distinction between penetration (e.g., intercourse, fellatio, sodomy) and other forms of sexual activity short of penetration (e.g., fondling, grabbing, pinching).
Regardless of the specific language and definitions, most states differentiate crimes involving sexual penetration versus contact. The investigator must therefore recognize this distinction to appropriately identify which type of offense has been committed.
The investigator must thus be familiar with the terminology and definition of sexual assault offenses, and identify whether the case at hand involves sexual penetration, contact, or both.
Throughout this module, offenses will be described with reference to sexual penetration. However, it is important to recognize that the structure for offenses involving sexual conduct will be parallel -- but with lesser corresponding charges.
When a suspect is charged with a sex crime, one primary element of the offense will always be the sexual act involved (whether sexual penetration or contact). In other words, to successfully prosecute any sex crime, the state must first establish that the alleged sexual activity took place.
Because the sexual activity constitutes one element of the offense, it also provides the grounds for a defense strategy - denial. If the suspect denies that the sexual activity took place, and he can create reasonable doubt to that effect, he will be acquitted. For this reason, any investigative strategy must first focus on establishing whether or not the sexual activity took place.
See the chapter on the forensic examination for further discussion of these evidence collection techniques.
Although law enforcement has historically focused on the body of the victim for evidence of sexual contact, there are other sources to be found on the suspect's body or clothing.
For all of these reasons, it is imperative that investigators conduct forensic examinations of the suspect(s) involved in a sexual assault offense. Although this exam is often overlooked, it can be crucial for identifying and documenting evidence of sexual contact between the victim and suspect.
The second decision to be made by the investigator is whether the sexual activity (whether penetration or contact) was committed using force or threat -- or whether the situation was one in which no force is required for sexual activity to constitute a criminal offense.
If force or threat is used to commit a sexual act such as penetration or contact, the elements of the offense can be thought of in terms of simple math. For example:
Sexual Penetration + Force or Threat = Sexual Assault
What is NOT included in this "formula" in most states, is any reference to the presence or absence of consent by the victim. Although some states retain language that the sexual act must be "against the will" of the victim, most states have recognized that nonconsent is implied by the presence of force or threat. In other words, when force or threat is present, it is assumed that the victim does not consent to the sexual activity in question.
Despite this general recognition that sexual activity is illegal when committed using force or threat, there remains no clear standard as to what constitutes such a situation. Rather, the presence of force or threat must be determined by considering the entire context surrounding the event. For example, the officer should consider the following:
Thus, there is no clear standard for force or threat; rather, the determination must be made by examining the entire context of the situation. When making this determination, moreover, special consideration should be given to the victim's perception of events, because many situations that are threatening or frightening to one person (such as a woman) might not be for someone else (such as a man).
In other words, physical resistance on the part of the victim can be used as evidence that force or threat was present in a sexual situation. However, the lack of physical resistance cannot be used as proof of consent (i.e., the absence of force or threat).
Any suspect charged with a sex crime can deny that the alleged sexual activity actually took place, as discussed in the previous section. However, when the sexual activity is stipulated or proven, and it is alleged to have been committed using force or threat, there are two additional defenses available to suspects.
Although this classification generally captures the essence of the two primary defense strategies used in forcible sexual assault, it is of course difficult to pigeonhole these complex cases. Moreover, cases will sometimes change from one to the other - usually from identity to consent.
For all of these reasons, it is important that investigators strategize their investigation around the defense that is most likely to be raised. At the same time, it is crucial to remain flexible and document evidence that can address any possible defense.
Again, the suspect will likely raise an identity defense if he is a stranger to the victim. This defense strategy centers around the claim that although the victim might truly have been raped, it wasn't the suspect who committed the crime. In these cases, the investigative strategy is not that different from other crimes (e.g., burglary or robbery) because it focuses on:
In any case where an identity defense might ultimately be raised, it is important to first determine whether the suspect denies engaging in sexual activity with the victim. If the suspect does deny the sexual activity, the types of evidence outlined above will be useful in challenging this denial.
If the suspect is charged with multiple crimes it will be important to gather information and evidence linking the incidents. For example, if the offender used a specific behavioral pattern (M.O.) for committing the crimes, it will be crucial to demonstrate that the same pattern was exhibited in the cases being linked.
To support an identity defense, the suspect will likely focus on issues such as the following:
The police investigation must therefore be conducted with meticulous care and documentation for all evidence collection and analysis. Identification procedures must be implemented in compliance with departmental policies and procedures, to assure that the victim is not led or biased toward any particular direction. Finally, police investigators must maintain an open mind to the possibility that the suspect is in fact innocent. All investigative leads must be pursued to identify potential suspects, and evidence gathered to rule them in or out of consideration.
Altogether, some have argued that overcoming an identity defense represents the "science" of sexual assault investigation.
In cases where the suspect and victim know each other to some degree, a consent defense is more likely to be raised. This can be determined by finding out whether the suspect denies engaging in sexual activity with the victim, or acknowledges the activity but claims that it was consensual. Even in cases involving strangers, the suspect may switch from an identity to consent defense after the investigation has conclusively established that sexual activity took place. When a defense of consent is raised, the investigation should focus primarily on evidence to establish that consent was absent and force or threat was present, including:
In addition, any other evidence to corroborate the victim's account can be useful, as well as anything that is inconsistent with the character of a consensual sexual act. Information that demonstrates consistencies between the victim's and suspect's description of events can also contribute toward efforts to overcome a consent defense.
In a consent case, the issues at trial will likely focus on the victim's and suspect's behavior, as well as perception of events. It will also center on challenges to the victim's credibility, as discussed at length in the module on victim interviewing.
Some have suggested that overcoming a consent defense is the "art" of sexual assault investigation.
As described in the previous equation, sexual assault can be comprised of sexual activity perpetrated using force or threat. In addition, however, there are situations in which sexual activity is criminal in the absence of force or threat. These include situations where the victim is legally viewed as unable to consent, either due to age or some type of incapacitation (e.g., disability, lack of consciousness, drug use).
This will be discussed in greater detail pertaining to each of the three major types of situation in which no force is required for sexual activity to constitute criminal behavior. However, there may be cases in which the investigator and/or prosecutor prefers to charge the suspect with forcible sexual assault instead of (or in addition to) the offense in which no force is required.
Successful sex crimes investigators need to recognize common theories of sexual assault offenses, but they must also maintain a flexible orientation in case an alternative charge is preferred or the defense strategy is something other than expected.
Clearly, a victim who is unconscious cannot legally consent to sexual activity - or anything else, for that matter. When a victim is unconscious, the mathematical expression to denote the elements of a sexual assault offense is thus:
Sexual Penetration + Unconscious Victim = Sexual Assault
As previously stated, a suspect can defend against this type of sexual assault charge by denying either (1) that the sexual activity took place or (2) that the victim was unconscious. In either case, the investigative strategy should focus on establishing each of these two elements. The investigation does not, however, need to focus on the issue of force because the victim's lack of consciousness equates with an inability to legally consent to sexual activity.
Somewhat more difficult is the case in which the victim was incapacitated during the sexual activity. Incapacitation in this sense is typically due to alcohol or drug use, whether caused by voluntary consumption or covert administration by the suspect. However, it could also be due to some other cause creating physical or mental incapacitation. The elements of this type of sexual assault are thus:
Sexual Penetration + Incapacitated Victim = Sexual Assault
What makes this issue difficult is that there is no clear legal standard for incapacitation, and so it is a matter of contention between the prosecution and defense.
When a consent defense is raised, the victim's intoxication is usually used as a means of challenging the victim's credibility, an issue discussed at length in the modules on victim interviews and drug-facilitated sexual assault.
As with other forms of incapacitation, there is often no clear legal standard for when a disability affecting cognition or communication renders an individual unable to consent. Therefore, a determination must first be made to decide whether the individual is capable of understanding and giving consent to sexual activity.
Specific guidelines for determining the ability to consent to sexual activity are provided in the module on special populations.
However, assuming that an individual is deemed unable to consent due to a cognitive or communication disability, the elements of the sexual assault offense can be represented as:
Sexual Penetration + Evidence of Disability = Sexual Assault
If an individual is determined to be unable to consent, then the only element that remains to be established is whether or not sexual activity took place. Issues of force and consent should not be raised, as the individual is not legally recognized as able to consent to sexual activity.
On the other hand, if an individual with a disability affecting cognition or communication is nonetheless determined to be able to consent to sexual activity, the defense will likely revert to traditional issues of consent.
Another major category of cases in which no force is required are those involving victims who are unable to consent because of their age. All states have established an age before which an individual is not recognized as able to consent to sexual activity.
Most also have additional statutes which constitute offenses on the basis of age combinations between the victim and suspect or due to the position of trust, authority, or supervision held by the suspect (e.g., teachers, coaches, clergy, counselors).
As with other situations in which no force is required, sexual assault crimes of this type are established with the following elements:
Sexual Penetration + Victim Age (or Combination with Suspect Age/Position) = Sexual Assault
The investigation must therefore focus on establishing the sexual activity and the age/position of the victim and suspect. Again, consent is not an issue in these cases because the victim is not legally recognized as being able to consent to sexual activity.
Many states additionally specify a number of situations in which no force is required for sexual activity to constitute criminal behavior. For example, some states prohibit specified sexual activity between patients and their psychotherapists, doctors, or other service providers. Some statutes outlaw sexual activity perpetrated using a false representation of identity. Of course, states also prohibit sexual activity between family members, and these relations are typically spelled out in the code of criminal offenses.
Throughout this module, we have primarily discussed the types of evidence required to prove an element of the various offenses. Thus, evidence proving that sexual activity took place addresses one element of each offense. Other elements are met with evidence documenting the presence of force or threat, the incapacitation or age of the victim, etc. Investigators must determine the purpose for each piece of evidence, to make most effective use of it. The three primary purposes for evidence are:
The latter purposes are typically met with associative evidence and evidence that is reconstructive or corroborative.
Associative evidence essentially connects one person either to a particular place or to another person. For example, fingerprints or DNA material found at the scene of the crime can obviously establish that the suspect was in that location at some point. Blood, semen, or other bodily fluids collected from the victim's body can similarly connect the suspect with the victim. This type of evidence is typically thought of as identification evidence, which is one aspect of associative evidence. In addition, trace evidence such as hair, fibers, and other debris can be used to connect one person with another person or place, even though it may not be used to identify an individual with any degree of certainty.
Reconstructive or corroborative evidence can help jurors and others visualize the events. This type of evidence is also used to demonstrate consistency with the victim's (or suspect's) account of events. For example, photographs of the crime scene or victim's body can help to corroborate the victim's story of what happened. A detailed account of the victim's thoughts and feelings during the assault can also reconstruct the reality of events for others to experience vicariously.
Finally, officers need to be familiar with the statutory requirements for an attempt offense. For example, some states require the following to establish an attempt offense:
In these cases, the officer must make the determination that an attempt offense occurred based on the entire context of the situation. For example, it is not possible to make a simple list of behaviors that would constitute a substantial step toward committing a sexual assault offense.
Rather, that determination must take into account a number of factors regarding the victim, suspect, and situation.
When establishing intent, it is important to ask the victim questions such as the following:
All of these questions can reveal information that is critical for establishing the suspect's intent.
Using the chart provided at the beginning of this module, it is hoped that the investigator can clearly determine which type of offense is alleged in a particular case. This determination will then predict what defense is likely to be raised and guide the entire investigative strategy.
Finally, there are a number of situations in which no force is required to establish an offense of sexual assault or abuse.
If the determination is made that a particular victim is unable to legally consent to sexual activity, the defense cannot raise issues of consent and the investigation need not establish that force or threat was present in the situation - unless of course, the investigator and/or prosecutor also charges the case as forcible sexual assault (perhaps due to the stricter penalty that charge carries).
Hopefully, this chart will be helpful to first responders and investigators by providing a conceptual framework for organizing state statutes. Clearly, information must be adapted on the basis of state penal codes. However, this framework is designed to help officers determine what "type" of case they are handling, predict which defense is most likely to be raised, and guide an investigative strategy toward overcoming that particular defense. This kind of strategy can help an investigator:
It bears repeating, however, that investigators must remain flexible because defenses are not entirely predictable and may change - even during the course of a single investigation.
Keeping this chart in mind can help officers avoid errors such as focusing on issues of identity in a case where the victim and suspect know each other, or struggling to prove force in a case in which the victim is legally recognized as unable to consent.
For further information on techniques for collecting evidence and conducting interviews, please consult the relevant modules (e.g., victim interviews, suspect interviews, the forensic examination).
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