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Successfully Investigating Acquaintance Sexual Assault

A National Training Manual for Law Enforcement

The National Center for Women and Policing

Published: May 2001

Table of Contents

Introduction
Acknowledgments
Why New Strategies are Needed for Sexual Assault Investigation
DNA Evidence and Issues
Acknowledgments
Summary
Nature and Purpose of DNA Evidence
Barriers to Realizing the Potential of DNA Evidence
Specific Guidelines for the Sexual Assault Investigator
Conclusions and Future Directions
Appendix A: Guidelines for Collecting, Packaging, and Storing DNA Evidence
Appendix B: Materials and Procedures for Conducting an Effective Mouth Swab
Appendix C: Guidelines for Conducting Fetal Tissue Collection
Appendix D: The Status of Databanking
References
Drug-Facilitated Sexual Assault
Acknowledgments
The Old News
Module Outline
Alcohol and Drug-facilitated Sexual Assault
Investigating Drug-Facilitated Sexual Assault
Evidence Collection
Witness Interviews
Conclusion, or The Good News
References
Sample Search Warrant
Dynamics of Sexual Assault
Acknowledgments
Summary
Research on the Prevalence and Characteristics of Sexual Assault
Criminal Justice Statistics : The UCR and NCVS
References
Forensic Examination
Acknowledgments
Summary
The Forensic Examination
Types of Forensic Evidence
Non-Genital Injury Evidence (force, corroboration)
Genital Trauma Evidence (sexual contact, force)
Medical Components of the Sexual Assault Examination
Suspect Examinations
Evidentiary Considerations
Assessment of Forensic Evidence
References
Appendix 1: Medical and Anatomic Terms
Appendix 2: Sample Search Warrant for Biological Reference Samples from a Suspect
Law and Investigative Strategy
Acknowledgments
Introduction
Sexual Penetration Versus Sexual Contact
Force Versus No Force Required
Other Types of Evidence
A Note Regarding Attempt Offenses
Summary
Conclusion
Sex Offenders: Dynamics and Interview Techniques
Acknowledgments
Sex Offender Dynamics
Suspect Interviewing Techniques
Personality Disorders and Suspect Interviewing Techniques
Suspect Statements
Using Pretext Phone Calls in Sexual Assault Investigation
References
The Preliminary Investigation
Acknowledgments
Introduction
The Role of Victim Advocates
Acknowledgments
Introduction
General Role of Victim Advocates
Benefits of Working with an Advocate
Other Community-Based Services for Victims
A Note on Networking Agreements
Crime Victim Compensation
Unfounded Cases and False Allegations
Acknowledgments
False Allegations: The Elephant in the Living Room
References
Appendix: Indicators and Investigation of False Allegations
Victim Impact
Acknowledgments
Introduction
Data from the National Women's Study
Common Experiences of Sexual Assault Victims
Before Stage 1: Experiences During the Assault
Stage 1: Acute Trauma
Stage 2: Outward Adjustment
Stage 3: Integration
Effect of Victim Response on Police Investigation
Special Issues Affecting Victim Response
References
Victim Interviews
Acknowledgments
First, the Bad News:
Credibility Challenge #1: Lack of Physical Resistance
Credibility Challenge #2: Delayed Reporting
Credibility Challenge #3: Inconsistent or Untrue Statements
How to Conduct a Successful Victim Interview
Yet Another Option for Victims: Blind Reporting
References

Introduction

Acknowledgments

This project was supported by Grant No. 97-WE-VX-K004 awarded by the Violence Against Women Office, Office of Justice Programs, U.S. Department of Justice. Points of view in this document are those of the author and do not necessarily represent the official position or policies of the U.S. Department of Justice.

Why New Strategies are Needed for Sexual Assault Investigation

Nonstranger sexual assaults are undoubtedly among the most challenging cases investigated by police. Yet very few training materials exist in this area, and none have previously been recognized on a national level. This curriculum was designed to fill this gap, developed by the National Center for Women & Policing and funded by the Violence Against Women Office, Office of Justice Programs. In developing the curriculum, one of the primary objectives was to overcome the traditional focus on sexual assaults committed by strangers.

Specifically, the curriculum was designed to train police to identify and collect the kind of evidence that is appropriate for cases involving known offenders. Because the vast majority of sexual assaults are committed by someone known to the victim, most investigations should not focus exclusively on the kind of evidence that establishes identity (like DNA, trace and associative evidence). Such evidence is relevant in acquaintance cases, but it is not as crucially important as it is in a stranger rape case where identity is the primary issue.

  • In contrast, police investigation in cases of acquaintance rape should focus on evidence that establishes the absence of consent and/or the presence of force or threat, because this is the type of evidence necessary to overcome a consent defense.

The good news is that many of the evidentiary techniques that can be used to establish force in consent cases are not new. Rather, these techniques are familiar to officers from other kinds of cases, such as domestic violence, child sexual assault, etc.

The Teamwork Approach to Sexual Assault Response

A second goal of the training is to highlight how important it is for police officers to take responsibility for implementing a teamwork approach to sexual assault response. Sexual assault cases are complex and sensitive, and effective response requires effort from a number of team members with interdependent roles and responsibilities.

To address this issue, the training curriculum is organized around the roles of various team members in the coordinated response to sexual assault. Team members include:

The Victim

Throughout the entire curriculum, we will take a victim-centered approach to sexual assault investigation. If the sexual assault response team is thought of as spokes of a wheel, the victim should be seen as the center of that wheel. Moreover, a victim-centered approach indicates that the victim herself will determine the course of her recovery and level of involvement with the criminal justice system.

Without the victim's cooperation, successful investigation and prosecution are nearly impossible. Therefore, victims who decide to become involved with the criminal justice system must be seen as a central and valued member of the team, and they must be treated accordingly. Victims need to be considered at every stage of the coordinated response to sexual assault, and they must be informed and included in the efforts of all team members.

In the module on dynamics, we'll discuss the characteristics of sexual assault victims. First, we'll present statistics that document the scope and nature of the problem, including the number of rape victims and the characteristics of victims, perpetrators, and cases. In the module entitled, "victim impact," we'll also cover some of the latest material on how victims respond to sexual assault victimization, exploring how this could potentially affect the police investigation.

In addition, we will put the victim at the center of every single training module in this curriculum, by explaining how she can be informed and involved at every stage of the investigation.

As the U.S. Attorney General stated in a 1992 report:

To be both effective and humane, a criminal justice system must respond to the needs of victims of crimes at all stages of the criminal justice process. From the time law enforcement officers arrive at the scene of the crime, through apprehension of a suspect, the trial, sentencing, appeals and punishment, victims are profoundly affected, and their perspective deserves consideration. It is incumbent upon all criminal justice professionals to think of the victim and to evaluate how their decisions affect the victim and the victim's family.[1]

Law Enforcement

Clearly, police officers are a critically important member of the coordinated response team, and most of the material in this training program will address their many responsibilities, including: the module on preliminary investigation, victim interviews, suspect dynamics and interviews, drug-facilitated sexual assault, etc. Within each of these units, we have sought to describe the responsibilities of police in an effective investigation but we have also outlined how these duties relate to those of other team members.

Medical Personnel

Medical personnel have three primary responsibilities as team members in coordinated sexual assault response: (1) they collect evidence from the body of both suspect and victim, (2) they conduct a medical interview of the victim, and (3) they provide any medical care that is necessary for the victim.

In the module on the forensic examination, we describe in detail the procedures that medical personnel use for responding effectively to sexual assault victims. However, this information is also integrated into the material pertaining to the preliminary investigation, victim advocates, and other sections that describe how police should interact with medical personnel

Victim Advocate

Victim advocates provide supportive services to victims immediately after their sexual assault, either at the hospital, police station, or later during the investigation and prosecution. This is an important part of the teamwork response, because advocates can keep victims informed and emotionally capable of cooperating with police, medical personnel, and prosecutors.

The role of victim advocates is covered extensively in the module explicitly addressing victim advocacy, but it is also integrated in sections that address the preliminary investigation, forensic examination, and victim interviews.

Prosecutor

Finally, the goal of police investigation is successful prosecution and this topic is addressed in a supplementary chapter pertaining to that topic. Throughout the manual, however, we'll discuss specific techniques that police can use to support prosecutions and convictions.

Integration and Application of Training Material

Accompanying each module is a classroom-ready curriculum and set of overheads designed to assist the law enforcement instructor in covering this material. Throughout this curriculum, participants are asked to integrate and apply what they learn by participating in various activities and exercises. Some of these will be discussion-based activities conducted in groups, whereas others will require individual work and performance evaluation.

Research with adult education suggests that we learn:

  • 20% of what we hear

  • 40% of what we see and hear

  • 80% of what we do

For this reason, the curriculum does not only present material visually and orally - it also provides numerous opportunities for participants to become actively involved in the learning

process. In this way, participants are asked to "do" various tasks involved with successful sexual assault investigation, with the goal of integrating and applying what is learned.

How this Curriculum is Organized

The curriculum is presented entirely on a CD, with files in both Microsoft Word and PowerPoint format. When you open this CD, you will find three main directories:

  • Training Program

  • Supplemental Materials

  • List of Certified Trainers

The content of each directory is described in detail below.

Training Program

The training program directory contains all of the materials developed for each of the following topics:

  • DNA Evidence and Issues

  • Drug Facilitated Sexual Assault

  • Dynamics of Sexual Assault

  • Forensic Examination

  • Introduction

  • Law and Investigative Strategy

  • Offender Dynamics

  • Preliminary Investigation

  • Role of the Victim Advocate

  • Unfounded Allegations

  • Victim Impact

Within each sub-directory, you will find three files. The first is a content module, containing all of the information pertaining to the topic. These modules are written for law enforcement audiences, and they include information, references, and appendix materials to provide a comprehensive understanding of the relevant issues.

The second file is a curriculum unit, designed to correspond to the content module. This curriculum unit is developed for classroom use, with objectives, activities, and materials included. Both the content modules and curriculum units are written in Microsoft Word format.

The third file in each sub-directory is a set of overheads, that correspond to the curriculum unit and are also intended for classroom use. These overheads are prepared in Microsoft PowerPoint

format. All of these materials are developed for use by law enforcement instructors, but they include roles for experts within the field of law enforcement, victim advocacy, and health care.

Supplemental Materials

The directory of supplemental materials includes a variety of additional content chapters, sample search warrants, and other information relevant to the topic of sexual assault investigation. These are found in the various sub-directories:

  • Adult Learning

  • Communications (Dispatch)

  • Coordinated Community Response

  • Report Writing

  • Special Communities

  • Suspect Materials

  • Use of the Internet

  • Warrants

List of Certified Trainers

Finally, the list of certified trainers includes those individuals who have participated in a special four-day train-the-trainer program hosted by the National Center for Women & Policing. These individuals are recommended as law enforcement trainers, and they include experts from the field of law enforcement, victim advocacy, and health care. For additional information on these certified trainers, please contact the National Center for Women & Policing.

DNA Evidence and Issues

Acknowledgments

This module was written by Dr. Kimberly A. Lonsway, Research Director, National Center for Women & Policing

Content of this module was developed primarily on the basis of original contributions provided by Sergeant Joanne Archambault of the San Diego Police Department. The National Center for Women & Policing would like to gratefully acknowledge her assistance.

Summary

Advances in technology have made DNA testing an established part of sexual assault investigation and prosecution, especially for cases in which identification is the primary issue. Moreover, these advances have rendered traditional serology identity testing for blood, saliva, and semen virtually obsolete.[2]

  • In 1996, for example, there were more than 17,000 cases involving forensic DNA in the United States alone. Most of these were sexual assault cases involving DNA testing of specimens collected from vaginal swabs and semen stains. [3]

The purpose of this module is to outline the potential contribution of DNA technology to the investigation and prosecution of sexual assault cases. We will also explore a number of the barriers we must first overcome to realize this potential, before concluding with specific guidelines for the investigator in collecting, analyzing, and using DNA evidence.

Nature and Purpose of DNA Evidence

DNA is found in all bodily fluids and tissues. In fact, it is found in every single cell of a person's body, and each cell has identical DNA. Because of this, DNA evidence collected from a crime scene can be used like a fingerprint to include or exclude a suspect in a particular case. It can also be used to link crime scenes either locally or on a state or national level.[4]

The primary purpose of DNA evidence in a sexual assault case is thus to identify an assailant and/or to prove sexual contact. Experienced investigators often say that they rejoice when a suspect denies engaging in sexual contact with the victim, because the case then provides the opportunity to make full use of forensic technology.

For this reason, it is recommended that a preliminary statement be obtained from the suspect as soon as possible in a sexual assault case. It is possible that the suspect will initially deny sexual contact where he would not have done so if given more time.

As we've stated repeatedly throughout this manual, however, the vast majority of sexual assaults are committed by someone known to the victim. In these cases, identification is not the issue because the defense will probably claim that the sexual activity was consensual. The value of DNA evidence in these cases where the victim and suspect know each other is therefore minimal. [5]

Even when the sexual assault is committed by a stranger, many suspects will raise a consent defense, so DNA evidence is of little use for the investigation

A brief history of forensic DNA

The first sexual assault defendant was convicted in this country with the help of DNA evidence in 1987. [6] The case was upheld on appeal the following year. Since that time, DNA analysis has been used in over 20,000 cases resulting in conviction. [7] Historically, DNA technology has been used primarily as a prosecutorial weapon rather than an investigative tool. In other words, DNA evidence has generally been used to confirm the identity of someone already under suspicion, rather than assisting in the investigation and identification process. [8]

  • There are, of course, exceptions where DNA technology has identified a suspect that would have otherwise remained undetected. For example, "in 1991, the Minnesota Bureau of Criminal Apprehension (BCA) Laboratory became the first state crime lab to identify a suspect on the basis of DNA alone." [9]

  • An article included in the supplemental materials also describes the success of DNA matches in Florida and Virginia.

Several recent, highly publicized cases have also illustrated the potential for DNA to exonerate individuals wrongfully convicted of rape or homicide.

For example, DNA technology has been used to free a number of men in prison for sexual assault, including 12 in 1992 and 28 in the next two years.[10]

In response to this situation, Attorney General Janet Reno created the National Commission on the Future of DNA Evidence. The official mandate of this Commission is to submit recommendations that will help ensure more effective use of DNA as a crime fighting tool and foster its use throughout the criminal justice system. [11]

  • This includes using DNA evidence in cases where a suspect is known, by confirming the suspect's presence at the crime scene.

  • It also includes cases in which the suspect is not known, and DNA evidence can be compared with known samples that have been collected from previous cases and catalogued in a database.[12]

A new use for DNA evidence: Futuristic warrants and grand jury indictments

Yet another potential use for DNA evidence is to file a warrant for the arrest of an unnamed suspect before the statute of limitations for a particular crime expires. This approach is currently being taken in Milwaukee, Wisconsin, where a "futuristic warrant" based only on DNA identification has been brought against a John Doe suspect. The identification was seen as sufficient because Wisconsin law permits warrants to be brought against unnamed suspects based on other identifying characteristics. Only time and court decisions will tell, however, whether this type of futuristic warrant will withstand legal scrutiny, if the John Doe suspect is ever caught and convicted.

A similar DNA-based warrant has since been issued in Utah, and New York has been the first state to file a grand jury indictment of a John Doe suspect based solely on a DNA profile.

What DNA (mostly) replaced: Trace evidence

Trace evidence includes items such as hairs, fibers, paint chips, glass shards, shoe prints, gun shot residue, arson/explosives and physical matches. Using this type of evidence, forensic scientists have been able to identify the source only on the basis of its general appearance and structural features. A sample report on such trace evidence is found in the supplementary materials.

  • Unlike DNA, trace evidence rarely provides definitive identification. As a result, trace evidence is primarily useful only in cases that do not have DNA evidence; otherwise substantial resources can be wasted by crime laboratories screening for trace evidence that will never be analyzed.

This may change, however, with new technologies. For example, the Office of Justice Programs announced in February of 2000 the release of a publication addressing how human hair found at a crime scene may be matched with samples taken from a specific individual.

This publication is entitled "Trace evidence analysis of human hair by on-line supercritical fluid extraction-gas chromatography/mass spectrometry: A feasibility study." It is available from the National Institute of Justice website at www.nij.gov/ or the Department of Justice Response Center at 1-800-421-6770.

Of course, analysis for trace evidence will continue to be used for identification purposes in isolated situations. It will certainly be useful in those cases lacking DNA evidence. However, it can also be used in another way. For example, if both DNA and trace evidence are found in a sexual assault case, the DNA will be used to identify the assailant. In some of these cases, other assaults might be seen as related because of a similar modus operandi, suspect description or geographical area. If evidence collected in those cases does not contain relevant biological material, the trace evidence collected in the first case might be used to link it with both the other cases and the definitive identification provided by the DNA.

Finally, trace evidence can always be used for purposes other than identification. Trace evidence can be used to corroborate the victim's account of events, by linking the suspect with particular locations. For example, even if the suspect admits having sex with the victim, he may deny certain aspects of the event. If these aspects can be corroborated with trace evidence, this bolsters the credibility of both the victim and her account of what happened.

Sources of DNA evidence

The promise of DNA evidence for sexual assault investigation lies both in its widespread availability and longevity, as well as its unrivaled potential for identifying a suspect or proving that sexual contact took place. At the crime scene, DNA evidence can be collected from many kinds of biological specimens including blood, saliva, semen, hair, skin cells, bone, teeth, tissue, urine, feces, and vomit.

  • For example, a suspect's DNA may be collected from saliva found on the victim's body or clothing; it can even be found on the victim's bra if she puts it on after the suspect has kissed, licked, or sucked on her breasts.

  • DNA evidence can also be collected from anything that the suspect put in his mouth, including chewing gum, cigarette butts, envelopes, and drinking cups. It can even be found on articles of clothing, such as hatbands. [13]

  • Fingernail scrapings or swabs from a victim's hands can additionally be used to collect DNA evidence transferred from the suspect, and from the suspect's hands to corroborate digital penetration of the victim's genitals.

The potential for collecting DNA evidence from the victim, suspect, and crime scene is almost unlimited. Moreover, the DNA molecule is long-lived and likely to be detectable for many years in bones or bodily fluids. This means that old cases can now be solved and possibly prosecuted using current forensic technology.[14]

Barriers to Realizing the Potential of DNA Evidence

  • Despite the exciting promise of DNA technology, a number of barriers remain to realizing its full potential. One of these barriers is the frequent failure of law enforcement to identify and collect appropriate DNA evidence from the crime scene. Many law enforcement agencies have not been properly trained to recognize and collect potential DNA evidence, and this situation leads to an unnecessary disadvantage for the investigation and prosecution of sexual assault cases. For example, a recent FBI survey revealed that of all sexual assault cases, less than 10 percent had DNA evidence submitted to crime laboratories.[15]

Other barriers include the failure to effectively evaluate DNA evidence for analysis, lack of communication between law enforcement and crime lab personnel, limited resources, and the use of incompatible systems for DNA analysis. As summarized in the National Institute of Justice Journal, "despite the abundance of evidence, and despite the advantages of DNA testing, little of this evidence is recovered from crime scenes, less is submitted to crime labs, and still less is analyzed."[16]

Failure to effectively evaluate DNA evidence

When analyzing evidence for DNA, processing a pure sample such as blood or a saliva swab is only a small part of the process. Much of the evidence with DNA potential is not pure but rather collected from the crime scene (from clothing or bedding, etc.). The problem with this type of evidence is that it requires effective evaluation by law enforcement in order to provide information to assist crime lab personnel in their analysis.

  • For example, one sheet or shirt collected from a crime scene may contain numerous stains. If the suspect ejaculated on the victim's shirt, this should be noted. Similarly, if the victim states that semen from the suspect can be found at the foot of the bed, the sheet can be oriented to indicate which is the head and foot. All of this information will be useful for crime lab personnel who are screening the evidence.

  • Once a stain is detected, moreover, it must be extracted for DNA comparison. This continues to be a time consuming and costly process and any information provided by law enforcement to guide this process is extremely valuable.

Unfortunately, law enforcement has traditionally received very little training in how to evaluate potential evidence in this way. Patrol officers are taught to impound everything they believe might be associated with the crime scene - and this is a good thing given the time sensitive nature of evidence collection. However, this creates a situation in which it is not uncommon to have 10 or more large bags of evidence impounded in the property room (e.g., sheets, blankets, sofa cushions, clothing, sexual assault evidence kit).

To make things worse, detectives are rarely taught about the process used by the crime lab to analyze evidence or how different types of crime lab personnel (e.g., those specializing in trace evidence, latent prints, or biological evidence) might be assigned to a case.

  • As previously stated, trace evidence includes items such as hairs, fibers, paint chips, glass shards, shoe prints, gun shot residue, arson/explosives and physical matches.

  • In contrast, forensic biology (a separate unit within many crime laboratories) will analyze DNA from blood, semen, saliva, fingernail scrapings, etc.

Given this lack of understanding, it is common for detectives to submit a lab request to "analyze all evidence for trace and semen." Neither detectives nor their supervisors typically understand the process set in motion as a result of this request.

Lack of communication between law enforcement and crime laboratory

Just as police officers often fail to understand how to effectively evaluate evidence for analysis, a traditional lack of communication with crime lab personnel has also limited the contribution of DNA technology. For example, in many communities patrol officers, detectives and prosecutors rarely speak to crime lab personnel. Furthermore, when they do speak they are often unable to understand each other because law enforcement and crime labs speak entirely different languages.

In addition, some have noted that the ease with which DNA evidence can be collected (and in the future, analyzed) will only make it easier to taint or plant such evidence. [17] For this reason, it becomes even more critical for law enforcement and crime lab personnel to appropriately handle and document the chain of custody for all DNA evidence.

Limited resources

In addition to these problems that result primarily from a lack of appropriate training and communication, both law enforcement agencies and crime laboratories suffer from limited resources that further hinder the contribution of DNA technology. This situation is especially pronounced for sexual assault, as these cases typically make up the majority of DNA work performed.

For example, sexual assault investigations account for 70% of the DNA work performed by the crime laboratory in San Diego. Another 10% comes from homicide and 20% from the rest of the department (e.g., domestic violence, crimes against persons, and child abuse). This situation is typical of other agencies around the country and suggests that any limitations of DNA technology will disproportionately affect sexual assault cases.

As a result of limited resources, recovered DNA is tested in only 6% of the 250,000 sexual assault cases investigated nationally, leaving a backlog of over two hundred thousand cases awaiting processing. [18]

  • This reality often comes as a surprise to officers and others, especially given the recent emphasis on offender databases resulting from Megan's law and other developments.

  • In particular, rape crisis advocates, victim rights groups, and medical personnel are often shocked to realize how few sexual assault cases are actually analyzed for forensic evidence.

Those working in the field of sexual assault recognize how difficult it is for a victim to go through the process of a forensic examination. Given the difficulty of the process for victims and the cost of the forensic examination (typically ranging from $200 to $700), it is a tragedy that most evidence collected in sexual assault cases is never analyzed.

A common scenario for sexual assault evidence is this. Given limited resources, only a small number of cases can be analyzed for DNA. Cases are therefore assigned to the crime laboratory only when a court date is approaching. Sometimes, this means that the case might not even be analyzed before the scheduled trial date, resulting in complaints by defense attorneys and judges. Detectives, prosecutors and victims are left frustrated as the entire process derails. Meanwhile, freezers in the property room continue to fill with sexual assault evidence collection kits. The department may even buy more freezers, although many of the kits are thrown out after the statute of limitations expires. Most have never been analyzed. This scenario is reality all over the country.

Use of incompatible systems for DNA analysis

To further complicate matters, even when evidence is appropriately collected, screened, and analyzed for DNA it can be limited in its contribution by the use of incompatible systems. Forensic laboratories across the country have used different DNA testing systems, including DQA1, Polymarker, RFLP, PCR, and STR. Labs will sometimes even utilize one analytic system for crime scene evidence and another for the suspect's reference standard. Results are therefore frequently found to be incompatible with each other and/or with the state databanks or CODIS.[19]

  • To briefly summarize some of the different analyses for DNA evidence, RFLP stands for Restriction Fragment Length Polymorphism. The advantage of RFLP analysis is that it is informationally rich, but it takes a large quantity of specimen to conduct and about six weeks to process. For these reasons, RFLP testing will likely be supplanted by PCR analysis.[20]

  • PCR stands for Polymerase Chain Reaction, an analysis which takes only days to perform and can be conducted with a smaller quantity or poorer quality of specimen. PCR produces much less information, however, in comparison with traditional RFLP analysis.

  • More recently, STR (Short Tandem Repeats) technology has been developed which can produce as much as information as RFLP tests. More importantly, current STR marker sets can be conducted with small and/or degraded DNA specimens, and the analysis also takes only days to complete.[21]

The future of DNA testing

"Developments that will further automate DNA analysis are being developed as an outgrowth of the Human Genome Project. These include robots, microchip-based instrumentation, and mass spectrometry. The run time of such instruments may be only minutes or even seconds. Performance of 100 STR analyses within an hour using an automated mass spectrometer has been demonstrated in a research setting. Support for development of microchip and mass spectrometric work in forensic DNA testing is being provided by the National Institute of Justice. Today, the resulting systems are in operation in only a few research centers, but are likely to become commercially available in the next few years" (Weedn &Hicks, 1997, p.20).

Although technology is improving, processing DNA evidence remains a time consuming and costly part of sexual assault investigation. As a result, it is imperative that patrol officers, detectives and prosecutors understand what evidence should be collected and examined, based on the history of the assault and how DNA results may affect the outcome of the investigation.

Overcoming the Barriers

Thanks to the development of new methods of analysis, the ability of crime labs to process DNA evidence within a reasonable time is expected to improve substantially within the next few years. Regardless, forensic laboratories must have sufficient resources to analyze the evidence submitted and law enforcement must learn to use these precious resources wisely. To accomplish this task, it is recommended that agencies review their policies regarding lab service requests, and make any necessary refinements in direct consultation with crime lab personnel.

  • For example, lab service request forms can be revised to include preliminary information about the case. Using the specific details and history of the sexual assault case being investigated, the form can be revised to help detectives focus on what service is being requested from the crime laboratory and why it is being requested. A sample form for this purpose is included in the supplementary materials, entitled "Preliminary Rape Case Information."

  • This kind of form can also be used to provide crime lab personnel with guidance to assist in their screening and analysis -- based on the history of the victim and the nature of the assault. Ultimately, an improved lab service request form can assist both law enforcement and crime lab personnel with determining which item(s) will most likely contain potential DNA evidence. A sample of such a service request from crime lab personnel is also provided in the supplementary materials.

Another development that will hopefully assist in overcoming the barriers to DNA potential is the move toward uniformity in analytic techniques. In 1994, the Violent Crime Control and Law Enforcement Act was implemented. Among other things, this Act advocated that uniform standards be used for forensic DNA testing. It further provided federal support for state and local law enforcement agencies to improve their DNA testing capabilities - with the ultimate goal of facilitating their participation in CODIS. [22]

  • To establish compatibility among laboratories, the FBI has also promulgated a core set of RFLP and STR loci (specific places in DNA) to be used in forensic analysis. [23]

Of course, databases such as these will only be useful when evidence collected from crime scenes is appropriately identified, collected, screened, and analyzed. Specific guidelines to assist in this process follow.

Specific Guidelines for the Sexual Assault Investigator

A number of suggestions have already been offered in this module to assist the sexual assault investigator in making full use of forensic DNA technology. For example, by appropriately collecting and evaluating evidence the investigator can provide much needed guidance to the crime lab personnel for DNA analysis. By improving communication and lab service request forms, law enforcement can more effectively assist the crime laboratory by summarizing details from the specific case to determine which item(s) are most likely to have evidentiary value.

  • Obviously, all of these improvements depend on collecting extensive information about the assault history from the victim, as described in the module on victim interviews.

  • It will also depend on effective communication with medical personnel who conduct the medical interview and forensic examination (see the module on the forensic exam).

Blood evidence

If blood evidence is collected, the crime lab will need to know whether the victim and/or suspect bled during the assault. If so, it is also necessary to determine which areas of the body produced blood and whether the victim was menstruating at the time of the assault. Finally, the crime lab will need to know whether the victim or suspect received a recent blood transfusion (i.e., in the last 90 days) that might interfere with the DNA results.[24]

Clothing evidence

The investigator will also need to determine whether clothing was collected from the scene and whether it was worn during or after the assault. In most cases, all or part of the victim's clothing is removed during a sexual assault. This clothing should therefore be identified as it could contain preejaculate fluids, saliva stains, or trace evidence.

  • After the assault, clothing is often used by the suspect and/or victim to wipe the genitals following a sex act. It is critical to identify and collect this clothing, along with any that is put on after the assault - especially those pieces of clothing worn closest to the genital structures.

  • Most officers are not taught to identify this clothing separately, but this information is crucial for the crime lab when screening a large amount of evidence.

Basically, all of this information collected from the victim and passed along to the crime laboratory can help to determine which item(s) of clothing will most likely contain seminal fluids, saliva, or other evidence with DNA potential.

Bedding evidence

If bedding is collected, similar questions must be asked of the victim to determine which item(s) will most likely have seminal fluid or other evidence with DNA potential. Throughout this process it is important to remember that the purpose of these questions is to reduce the demands on crime lab personnel to screen large amounts of evidence.

  • For example, if the assault occurred in the suspect's bed, the presence of his own seminal fluid will be irrelevant to the case under investigation. However, the presence of the victim's epithelial cells would at least place her in the suspect's bed in the case of a denial.

  • If the assault took place in the victim's bed, every effort must be made to identify stains as relevant versus irrelevant to the assault. For example, if the victim previously had consensual intercourse in the bed, these stains must be identified as resulting from the prior partner(s).

If the victim and suspect engaged in consensual sex in the same bed prior to the assault, any analysis for semen or the victim's epithelial cells would be a waste of valuable crime laboratory resources.

Collecting reference standards

One often overlooked reality about DNA evidence is that is only meaningful when considered in the context of reference standards.

  • For example, DNA evidence collected from the victim's body can only be identified as the suspect's if a reference sample has been obtained from the suspect.

  • Similarly, semen recovered on the victim's body or bedsheets can only be identified if reference standards are collected -- not only from the suspect but also from any previous consenting partners whose semen could still be present.

As a result, detectives need to ask the sexual assault victim if she had consensual sex within 96 hours (4 days) prior to the time the biological samples are collected. When clothing or bedding are collected, the detective must also determine if seminal fluid stains might be present from previous consensual partners. In either case, reference samples must be collected from all consensual partners whose semen or other DNA evidence might still be present. This should be done before submitting a DNA request to the crime laboratory.

In cases involving more than one suspect or cases where consenting partners must be eliminated, all reference samples should be submitted for analysis at the same time. The property tag numbers of evidence and reference standards should also be readily available. A copy of the crime report and follow-up investigation should be included with the lab service request in these cases, to address additional questions that crime lab personnel may have. This procedure allows the crime laboratory to complete their work much more efficiently, allowing more cases to be screened and typed.

Types of reference standards

Blood and saliva are the most common source of reference standards for DNA testing. Thus, samples from the suspect can be collected either through a forensic examination by medical personnel or with mouth (buccal) swabs that can be obtained in the field by law enforcement.

  • Mouth swabs are becoming increasingly common in sexual assault investigation, both because they are easy to obtain and because many suspects will readily consent to cooperation.

  • Mouth swabs are also non-intrusive, as they do not require transporting the suspect to a medical facility or sticking a needle in his arm.

However, the increasing popularity of this technique requires that both patrol officers and detectives be trained to carry the appropriate equipment and properly obtain samples for DNA testing. The equipment and procedures for obtaining mouth (buccal) swabs are described in Appendix B.

Coming your way: Field testing of DNA evidence

"Steps are now underway to realize the potential of field testing DNA evidence. Recently, a truly portable microchip-based prototype field-testing instrument has been developed. The instrument, which produces findings within 30 minutes, is currently being upgraded and made available commercially. The National Institute of Justice is sponsoring the developments of other types of portable field instruments." (Weed &Hicks, 1997, p.20)

Submitting the lab service request

Once the preliminary rape case information has been completed and reference samples collected, the detective is ready to submit the lab service request. When doing so, successful sexual assault investigators must prioritize those items of evidence that should be analyzed for trace or biology depending on the type of investigation and the history of the assault obtained from the victim.

  • The item listed should be specific to provide the most effective guidance to crime laboratory.

  • For example, detectives should request that the "victim's pink underpants" or "vaginal swabs" be analyzed, rather than the "victim's clothing" or "rape kit."

Obtaining supervisory approval

In addition to improving communication with crime lab personnel and revising the forms used for requesting lab services, it is also recommended that supervisors review the lab service requests completed by sexual assault investigators. This secondary review allows supervisors to make sure that only legitimate requests are being submitted, in addition to tracking the number of requests submitted to the crime laboratory. Once this review process is in place, the supervisor(s) can then meet regularly with sex crimes investigators and the DNA Section manager, in order to discuss and prioritize current work in progress, new requests, and any upcoming court dates.

Collecting fetal tissue evidence

Some sexual assaults result in pregnancy, especially those involving adolescent victims. In these cases it may be necessary to collect DNA evidence from the infant if it is carried to full term, or from the fetus if it is not.

  • If the victim elects to carry the fetus to full term, a mouth swab or blood sample can easily be obtained from the infant once it is born. Mouth swabs are preferred for this purpose as they are less traumatic for the infant and require no specialized medical assistance.

  • However, if the victim elects to abort the fetus, the investigator must immediately work to facilitate collection of valuable DNA evidence.

Depending on the facility chosen to perform the abortion and the number of weeks pregnant, investigators will encounter a variety of responses from medical facilities when attempting to collect fetal tissue samples. Jurisdictions will also vary in whether they require an investigator to have consent or a search warrant before fetal tissue can be collected.

  • It is critical that investigators alert the medical facility to not add any fixative or preservative such as formalin, formaldehyde, or any other liquid.

Other guidelines for conducting fetal tissue collection are provided in Appendix C.

Collection, packaging, and storage of DNA evidence

Obviously, DNA evidence can only be useful to sexual assault investigators if it has been appropriately collected, packaged, and stored. DNA is usually collected from crime scenes in the form of fresh blood or dried blood, fresh liquid semen or dried stains.

  • Depending on an agency's resources, these specimens are identified and collected either by patrol officers or crime lab personnel. In some cases, an investigator might be required to conduct evidence collection at the scene of a crime.

  • Wherever possible it is encouraged that crime scene processing be conducted by forensic specialists, as they have specialized training and experience as well as access to equipment such as an alternate light source that can be used to detect potential DNA evidence.

Specific guidelines for collecting, packaging, and storing DNA evidence are provided in the Appendix A. Officers are reminded, however, that the entire item containing the stain should be collected wherever possible (e.g., bedding, clothing, mattress, sofa cushion or car seat) to facilitate processing by the crime laboratory.

Conclusions and Future Directions

To conclude, a number of barriers exist that limit the contribution of DNA technology to sexual assault investigations. Given limited resources it thus makes sense for investigators to work smart, using existing resources most efficiently. This means that DNA analysis should currently be conducted only when necessary to establish an element of the offense - primarily for identification but perhaps also to prove sexual contact when it is denied by the suspect.

  • In the future, however -- as technology improves and the costs associated with DNA analysis decrease -- it will be advisable to conduct DNA analysis even in cases where consent is the primary issue.

  • In these cases, DNA evidence may not be particularly useful in challenging the consent defense but it could prove invaluable in linking the suspect to prior (or future) unsolved cases.

  • Misdemeanor cases (e.g., peeping, indecent exposure) should also be analyzed for the same reason. In fact, there is at least one case of a sexual assault perpetrator being identified solely on the basis of DNA evidence collected at another crime scene in which a misdemeanor case was being investigated.

The importance of this need is best illustrated by the research of Ann Burgess and colleagues, in which 41 serial rapists were interviewed. Taken in combination, these men admitted to having committed 837 rapes and 401 attempted rapes. The critical finding, however, was that each admitted that their earliest victims were younger siblings, neighborhood children, girlfriends, spouses, and other acquaintances.

  • This clearly indicates the need to analyze potential DNA crime scene evidence in all cases since a perpetrator's behavior will often cross over from acquaintances to strangers and escalate (Burgess et al.).

Of course, any advances in the use of DNA technology will require improvements in the status of databanking, as described in Appendix D and supplemental materials. However, it will also include improved training of law enforcement and increased communication with crime lab personnel. It is hoped that this manual can provide one important step toward strengthening this link and fulfilling "the unrealized potential of DNA testing." [25]

Future questions for forensic DNA

"There are many issues to be explored in this area. The criminal justice community needs to know what tools will be available in the future to law enforcement officers working crime scenes. Will they be equipped with portable units that they can take to crime scenes to conduct on-scene DNA analysis? If so, will they be able to connect directly from the crime scene to the CODIS database? Will a technology be developed in the near term that permits creating a phenotypic description of a perpetrator based on a DNA sample taken at a crime scene? (A phenotype refers to the physical appearance or functional expression of a particular trait found encoded in the genes.) And as the ability to generate results from ever smaller DNA samples increases, there must be a way to distinguish between samples likely to identify the perpetrator and those likely to mislead investigators" (Asplen, 1999, p.23).

Appendix A: Guidelines for Collecting, Packaging, and Storing DNA Evidence

Collecting and Packaging DNA Evidence

  1. Use clean latex gloves for collecting each item of evidence. It is recommended to change gloves between the handling of different items of evidence.

  2. Each item of evidence must be packaged separately.

  3. Blood stains, semen stains, and other types of stains must be thoroughly air-dried and packaged in sealed paper envelopes or paper bags. To dry stains, a hair dryer can be used on the coolest setting. For large amounts of liquid, a fan can be used.

  4. Increasingly, condoms are part of the sexual assault crime scene. Used condoms should be collected and placed in a sterile tube. The tube should then be frozen until analyzed. If a sterile tube is not readily available, officers should make sure - at a minimum - that the condom is allowed to air dry before packaging. Several layers of paper bags can then be used for packaging.

  5. For proper chain of custody, all packages must be marked with the case number, item number, and date. Packages must also be initialed across the seals.

  6. If stains must be transferred from an unmovable surface (such as a window or sidewalk), sterile cotton swabs and distilled water may be used.

    1. Photograph the surface with a ruler before swabbing. Lightly moisten the swab with distilled water.

    2. Rub the stained area with the moist swab until all of the stain is transferred to the swab. If one swab is insufficient to collect all the stain, use additional moist swabs to collect all of the stain.

    3. Two additional swabs should be collected as substrate controls for DNA tests. Swab #1 should be moistened and used on an unstained area adjacent to the stained area. Swab #2 should be provided with nothing else on it but the water used in the collection process.

    4. Prepare properly marked envelopes or paper containers for the swabs.

    5. Air dry the swabs without permitting them to touch one another. If time requires, the swabs may be placed still moist in paper envelopes. (Glass or plastic containers should never be used. Paper containers allow moisture to escape which helps to prevent bacterial degradation of the DNA.)

    6. Place swabs in appropriate separate paper containers, properly marked for identification.

    7. Scraping dried stains instead of swabbing should only be done if the surface is perfectly smooth and the scraping will result in almost no loss of material. For example, a stain on a smooth vertical surface can be collected (after photographing with a ruler in the picture) by folding a clean sheet of paper in half and taping the top edge of the paper to the surface directly beneath the stain. With a sterile scalpel blade or unused single-edged razor blade, the stain can be scraped into the fold in the paper. Then carefully remove the paper from the surface, remove the tape, fold the paper into a packet, seal with evidence tape and initial properly.

  7. Evidence which is incapable of drying such as pieces of tissue, organ, bone, liquid urine, vomit, or other biological material should be packaged separately in an air tight container. The container should be sealed and properly marked for identification, then immediately frozen and kept stored until analysis. Formalin or formaldehyde should never be used to preserve any biological evidence because these chemicals degrade DNA.

  8. Known standard blood samples from deceased individuals should be transferred by syringe into a purple top tube. They should then be packaged, stored, and shipped using the same procedures as known standard blood samples from a living person, as described below.

  9. Known standard blood samples from living persons should be drawn in purple top tubes, properly marked for identification, placed in a paper container, sealed with evidence tape for proper chain of custody, and stored refrigerated until analysis. If needed, additional packaging should be used for protection from breakage during shipment.

  10. Known standard blood samples (either liquid or dried stains) from persons diagnosed with HIV or hepatitis should be shipped in special containers clearly marked on the exterior that they contain HIV or Hepatitis infected blood.

Storing DNA Evidence

  1. Most biological evidence is preserved best when stored dry and cold because dryness and lowered temperatures reduce the rate of bacterial degradation of DNA evidence. With the exception of liquid whole blood samples, the colder the storage the better.

  2. For dried stains, material should be frozen (-20 degrees C) or refrigerated (4 degrees C) in separate paper containers. Dried stains which are very old and have been stored at room temperature for months or years will obviously not be hurt significantly by additional short-term storage at room temperature. Nevertheless, it is recommended that these samples be stored cold until they can be analyzed.

  3. For undried tissue such as bone, liquid urine, or other undryable biological material (except blood standards), these samples should be kept frozen (-20 degrees C) in separate air tight containers. Glass containers should be avoided as they can break when frozen. Formalin or formaldehyde should never be used for storage as they degrade DNA.

  4. .For liquid blood standards, these samples should be kept refrigerated (4 degrees C) in their original glass tubes. They should not be frozen.

Shipping DNA Evidence

  1. All samples should be hand carried on a business day or shipped by priority overnight courier service on a business day, but never shipped over a weekend or holiday.

  2. All shipments should be accompanied by a case submission letter attached to the outside of the package, addressed to the attention of the forensic laboratory.

  3. Dried stains should be packaged separately and shipped in a sealed box or sealed envelope at room temperature by priority overnight courier service. It is preferred to ship only the stained portion of clothing rather than the entire garment. The suspected stain should be clearly marked.

  4. Undried tissue: To avoid putrefaction during shipping, tissue, organ, bone, and liquid urine samples (in plastic tubes) should be shipped by priority overnight courier service in a sealed plastic container placed on abundant dry ice in styrofoam containers.

  5. All liquid known whole blood standards should be packaged separately in styrofoam tube packages or wrapped individually in bubble wrap and secured with tape. The individually wrapped tubes of blood should be placed in a cardboard box surrounded by styrofoam chips for protection from breakage. Liquid known whole blood samples should be shipped at room temperature by priority overnight courier. Liquid blood should never be shipped on dry ice because the glass tubes will break.

  6. Blood standards from persons diagnosed with HIV or hepatitis should be shipped using a Class 6.2/95 CAN/8-2SAF-T-PAK container with the proper Federal Express shipping tag for dangerous goods. Blood standards should be shipped at room temperature by priority overnight courier service.

Some packaging suppliers for the Class 6.2 substances including blood infected with HIV or hepatitis are listed below:

*Source Packaging (sells SAF-T-PAK and offers 6.2 specialty training) (401) 738-7733

*Federal Industries (sells SAF-T-PAK) (800) 523-9033

*Labelmaster (3M pack and others) (800) 621-5800

*All Pak (800) 245-2283

Appendix B: Materials and Procedures for Conducting an Effective Mouth Swab

Mouth Swab Collection Kits should contain:

  • one (1) plastic tube with two cotton tip swabs

  • one (1) manila envelope with an information label

  • one (1) slightly smaller manila envelope

  • one (1) evidence seal

  • one (1) pair of large latex gloves

Procedures for Conducting a Mouth Swab

  1. Put on a pair of latex gloves. Remove the two cotton tipped swabs from the plastic tube. Discard the plastic tube.

  2. Place the cotton tipped ends of the two swabs in the subject's mouth. Rub the cotton tipped ends against the inside of the cheek of the mouth while slowly rotating both swabs. Rub against the inside of the cheek for about 30 seconds.

  3. Remove the two cotton tipped swabs from the subject's mouth. Place the swabs in the slightly smaller envelope and close the flap. Remove the latex gloves and discard.

  4. Place the slightly smaller envelope in the envelope with the white information label. Close the flap and seal the flap with the evidence tape.

  5. Fill in the identifying information on the outer envelope.

  6. Check the reference mouth swabs into the property room and request that they be stored frozen.

Warnings

  • Do not handle or contaminate the cotton tipped end of the swabs. They should only come in contact with the subject's mouth.

  • The swabs are not used to collect saliva but rather cells from the lining of the cheek of the mouth. Therefore, the swabs should be rubbed vigorously against the inside of the cheek.

  • Make sure to rotate the swabs in the subject's mouth so that the entire cotton surface of the swab is used for collection.

Appendix C: Guidelines for Conducting Fetal Tissue Collection

Investigators must alert the medical facility to not add any fixative or preservative such as formalin, formaldehyde, or any other liquid. This is contrary to medical training, since formaldehyde is used to preserve tissue. However, its use will destroy DNA.

Collection kits should be made in advance and they should contain:

  • one (1) sterile 50cc screw-cap centrifuge tube

  • three (3) labels for centrifuge tube

  • one (1)permanent marker (Ultra fine point)

  • one (1)plastic bag

  • one (1)security seal

  • one (1)12" x 15" envelope

  • one (1)small cooler (if needed)

Procedures for Collecting Fetal Tissue

  1. Have the physician collect 3-5 cc of fetal tissue and place within the sterile screw-cap 50 cc centrifuge tube. (If fetal tissue cannot confidently be isolated, placental remains may be submitted.) Label the tube with the name of the mother, date, and time.

  2. Have the physician place the centrifuge tube with the collected fetal tissue in a ziploc plastic bag and put it on ice in a small cooler. The physician should then complete documentation for chain of custody before handing the evidence over to the investigator.

  3. Transport the specimen and the completed paperwork to a genetics laboratory immediately. If this is not possible, the specimen should be frozen until arrangements can be made to transport.

  4. Heat can destroy DNA. Therefore, if the evidence cannot be immediately frozen, it should be refrigerated. Do not store fetal tissue at room temperature. (Many law enforcement agencies use temporary storage bins over the weekend when their property rooms are closed, however, arrangements should be made to prevent this from happening.)

  5. To transfer the specimen to a state laboratory or a contract laboratory, it should be kept frozen (at -20 degrees or colder) until it can be shipped. Place the tube of fetal tissue in a styrofoam shipping box and surround the tube in dry ice. Fill the styrofoam container with dry ice to the top of the inner chamber. Seal the styrofoam box with plastic mailing tape. Place the sealed styrofoam box in a cardboard box and seal with plastic mailing tape.

A purple top blood vial should also be obtained from the parents. In the case of a statutory rape involving an uncooperative victim, testing can proceed without the mother's reference standard if necessary. The blood tubes must be shipped separately from the fetal tissue. They may be shipped at room temperature in a standard styrofoam blood tube mailer by priority overnight carrier.

Appendix D: The Status of Databanking

The following is excerpted from: V.W. Weedn & J.W. Hicks (1997, December). The unrealized potential of DNA testing. National Institute of Justice Journal, p.16-23.

Today almost all states have legislation related to DNA databanking, most of it focusing on collecting and testing DNA from individuals convicted of sexual assaults and often homicides. In some cases the legislation requires collection from all convicted felons. Although DNA databanking was proposed almost 10 years ago, and although databanking has been almost universally adopted at the state level, the concept of its development in this country is still rudimentary.

The limitations are partly due to the definition of offender categories in the legislation. For example, rapists who plead to a lesser offense not covered by a particular state databanking law are therefore not subject to it. Similarly, in some states DNA collection laws are inapplicable to juveniles involved in the criminal justice system. In other instances DNA is not collected until an offender is released, instead of at intake, making it impossible to match the offender's DNA to that in a case opened during incarceration. Other problems stem from lack of funding and the incompatibility of the states' genetic testing systems. Of the 47 states that have passed legislation, the program is operational in only 36, and of that number most programs are severely backlogged.

The CODIS System

The CODIS system (COmbined DNA Index System) is a national investigative support database. Developed by the FBI, it is used in the national (NDIS), State (SDIS), and local (LDIS) DNA Index System networks to link the typing results from unsolved crime cases in multiple jurisdictions or to those convicted of offenses specified in the DNA databanking laws passed in 47 states. By alerting investigators to similarities among unsolved crimes, CODIS can aid in apprehending perpetrators who commit a series of crimes and in this way prevent other offenses by the same person. The 77 laboratories in the 36 states participating in CODIS have produced 126 case-to-case "hits" and 76 case-to-offender "hits."

References

Asplen, C.H. (1999, January). Forensic DNA evidence: National commission explores its future. National Institute of Justice Journal, p.17-24.

Burgess, A.W., Hazelwood, R.R., Rokous, F.E., Hartman, C.R. & Burgess, A.G. (????). Serial rapists and their victims: Reenactment and repetition. Annals of the New York Academy of Sciences, p.277-295.

Burns, R. & Smith, J. (1999, Nov/Dec). DNA: Fingerprint of the future? Academy of Criminal Justice Sciences Today, p.1-4.

Butterfield, F. (1996). DNA tests expected to get wider use as nationwide database is developed.. The News Observer Raleigh, NC, p.A9.

Gladwell, M. (1995, May 21). DNA "fingerprinting" comes of age: Blood tests leave little to dispute. Chicago Sun-Times, p.28.

Ledray, L.E. (1999). Sexual Assault Nurse Examiner (SANE): Development & Operation Guide. Manual prepared under grant number 96-VF-GX-K012, awarded by the Office for Victims of Crime, Office of Justice Programs, U.S. Department of Justice.

National Institute of Justice brochure (#BC 000614). What every law enforcement officer should know about DNA evidence. National Institute of Justice: Washington, DC.

Sauer, M. (1993, Feb. 28). Genetic Justice? Expert witnesses don't agree on the use of DNA as evidence and neither do judges. The San Diego Union-Tribune, p.D1.

Weedn, V.W. & Hicks, J.W. (1997, December). The unrealized potential of DNA testing. National Institute of Justice Journal, p.16-23.

Drug-Facilitated Sexual Assault

Acknowledgments

This module was written Rachael D. Berger, Project Associate, National Center for Women & Policing

Content of this module was developed partly on the basis of original contributions provided by:

Sergeant Joanne Archambault of the San Diego Police Department

Detective Scott Keenan of the Chicago Police Department

Sergeant W. David Robshaw, Sheriff's Office, Broward County, Florida

Trinka Porrata, Designer Drugs-Teaching & Consulting

Robert Lipman, Senior Trial Attorney, Department of Justice Narcotics Division

Additional material was drawn from the following sources:

  • "Date Rape Drugs; Suggested Techniques for Investigating and Prosecuting Drug-Facilitated Rapes." Produced by Bob Nichols, Assistant State Attorney, Broward County State Attorney's Office and Sergeant Dave Robshaw, Broward County Sheriffs Office, 1999.

  • "The Prosecution of Flunitrazepam and GHB related Sexual Assaults." Produced by the American Prosecutors Research Institute, with the support of the Office of Justice Programs, U.S. Department of Justice, 1999 (Grant Number 96-WT-NK-K001).

The National Center for Women & Policing would like to gratefully acknowledge the assistance of the organizations that produced these materials.

Note: Because the following module reprints substantial material from the manual produced by the American Prosecutor's Research Institute, we would also like to acknowledge the many experts who contributed to its development. These include:

  • Diana M. Riveira, Program Manager and Senior Attorney, Angela Hart, Staff Attorney, and all staff members of APRI who contributed to the production of this manual.

  • Seargeant Joanne Archambault, San Diego Police Department, San Diego, California.

  • Gail Abarbanel, Dirctor, Rape Treatment Center at the UCLA Medical Center, Santa Monica, California

  • Connie Kirkland, Sexual Assault Services Coordinator, George Mason University, Fairfax, Virginia

  • Robert Nichols, Assistant State's Attorney, 17th Judicial Circuit State's Attorney's Office, Fort Lauderdale, Florida

  • Claiborne T. Richardson, II, Assistant Commonwealth's Attorney, Prince Willam County Commonwealth's Attorney's Office, Manassas, Virgina

  • Christine Sannerud, Ph.D., Drug Science Specialist, Drug Enforcement Administration, Washinton, D.C

  • James Tolliver, Ph.D., Pharmacologist, Drug Enforcement Administration, Washinton, D.C.

  • Lisa Celestin, Survivor of Sexual Assault

  • Detective Gary Gardiner, Prince William County Police Department, Manassas, Virginia

  • Jo Ellen Dyer, Assistant Professor of Pharmacy, University of California at San Francisco

  • Dr. Lee Hearn, Chief, Toxicology Laboratory, Dade County Medical Examiner's Office, Miami, Florida

  • Marc LeBeau, Forensic Chemist/Toxicologist, Chemistry Section, Federal Bureau of Investigation Labortory, Wahington, D.C.

  • Peter J. Paulousky, Esq., Attorney-at-Law, Gilmore, Rees & Carlson, Franklin, Massachussets

  • Nancy Turner, International Association of Chiefs of Police, Alexandria, Virginia;

The Old News

Drug-facilitated sexual assault is not a new phenomenon. Experienced law enforcement officers and advocates know that alcohol is the most common drug used to facilitate sexual assault. Alcohol has been used as a method to facilitate sexual assault for years and remains the most widely used drug today. As was discussed in the "Victim Dynamics" section:

  • Most rapes involve alcohol

In one study of college students, 75% of men and 50% of women involved in a sexual assault had been drinking at the time. In another study, more than half of the male college students who admitted to sexually aggressive behavior (59%) said that they did so by giving drugs or alcohol in order to obtain sex from an unconsenting woman.

As we have already discussed, most sexual assaults involve known offenders who will typically raise a consent defense if the case goes to trial. Clearly, the use of drugs or alcohol by the victim thus poses a number of challenges to her credibility that will be used to support a consent defense. Even in cases of stranger rape, however, the challenges to victim credibility will be used to undermine her identification of the suspect. In both types of sexual assault crimes, we know that the cases are decided according to the victim's credibility, background, and whether she participated in "risky" behavior. The consumption of alcohol has always been seen as "risky" and thus a characteristic of the "bad girl." After all, we all know that "good girls" do not drink, do drugs, or flirt with men publicly.

What's New

The significance of alcohol as the most common drug used to facilitate sexual assault is often overlooked due to the appearance of new highly publicized drugs on the scene such as GHB, and flunitrazepam (Rohypnol). These drugs have been thrust into the attention of both the criminal justice system and the general public because of cases where women have been surreptitiously drugged and then sexually assaulted.

In other words "what's new" is the variety of drugs available for an offender to "spike the punch." We are all aware of the classic case of fraternity members who add liquor to a fruity drink in an effort to obtain sex from an unconsenting woman. Today, the same purpose is often met by surreptitiously administering GHB, Flunitrazepam or other drugs in an effort to sexually assault the victim when she becomes incapacitated.

The effects of these drugs are similar to those caused by consuming a large amount of alcohol. Depending on the type of drug and the amount ingested, the victim may experience signs of confusion, memory loss, drowsiness, impaired motor skills, impaired judgement, reduced inhibition, slurred speech, or a variety of other symptoms that complicate both the investigation and legal strategies involved in prosecution.

It is important that investigators understand the characteristics, street names, and effects of the many new drugs involved in sexual assault cases. However, what has been lacking in this discussion has been the focus on victims who voluntarily ingest a drug as opposed to victims who are surreptitiously drugged. This feeds into the societal stereotype of "real rape," by portraying the truly victimized woman who is surreptitiously given a drug as the "good girl," while the woman who is raped after voluntarily taking a drug is seen as the "bad girl" who is therefore not deserving of serious consideration.

Let us face the facts. We live in a drug culture where both juveniles and adults participate in voluntary drug use. The Rave culture has exploded in most major metropolitan cities and recreational drug use is prevalent.

Voluntary drug use should not be seen as a basis for questioning the validity of the victim's allegation. In fact, although drug use by the victim is typically seen as a strike against her credibility, it can actually be viewed as another piece of evidence to corroborate her story.

Clearly, a large percentage of sexual assaults involve alcohol or other drugs because they heighten the victim's vulnerability.

If the victim says that she voluntarily used alcohol or drugs and indicates that her assailant took advantage of her vulnerability, the successful investigator will therefore frame her use of alcohol, or other drugs, as corroborative evidence. This evidence should therefore serve as a way to support rather than challenge the victim's credibility.

It is essential to understand that these new drugs complicate investigation of a sexual assault case for many of the same reasons that any "risky" behavior by the victim does, especially when the defense is consent. Again, victim credibility is being questioned, and her behavior is first and foremost under the scrutiny of the criminal justice system. If law enforcement has a clear understanding of the societal misconceptions of sexual assault victims and drug use, than they can overcome many of the associated challenges. However, this can only be done by continually focusing the investigation on locating every avenue that supports the victim's credibility and corroborating her account of the assault.

Module Outline

This module is dedicated to the discussion of drug-facilitated sexual assault. The following is an outline of the topics that will be addressed.

  • The purpose of this module will be to focus first on a discussion of alcohol as the most common drug used to facilitate sexual assault, and how the issue of victim credibility remains the key challenge in all sexual assault crimes that involve drug use.

  • Next we will discuss how to investigate sexual assault cases that involve alcohol or other drugs. This discussion will focus on the various challenges to victim credibility that are typically seen in these cases, and the specific investigative problems associated with certain date rape drugs.

  • The module will conclude with information specifically designed to assist law enforcement officers in each phase of the investigation, including interviews conducted with the victim, evidence collection, investigative techniques with suspects and witnesses, and the importance of expert testimony.

  • The issues discussed are unique to drug-facilitated sexual assault and thus supplemental to the information provided in the other sections (i.e. Victim Interview).

For a comprehensive presentation of the drugs used to facilitate sexual assault, especially those typically referred to as "date rape drugs" such as Flunitrazepam, GHB, and Ketamine, we suggest that you order a copy of "Drug Identification; Designer and Club Drugs Quick Reference Guide," by Detective Scott W. Perkins. This guide provides a more comprehensive look at both the toxicology of each of these drugs, drug schedules (in accordance with the Controlled Substance Act), drug identification and the rave subculture.

To order a copy of this manual contact:

Alliance Press 1527 Brighton Drive Carrollton, TX 75007 1-800-970-1883

Alcohol and Drug-facilitated Sexual Assault

The use of alcohol can be traced back in human history for thousands of years as it has been used widely for religious, social and medicinal purposes. Today, alcohol continues to be the most popular and prevalent drug used for recreational purposes. Despite this fact, alcohol is not what most people think of when discussing the definition of drug-facilitated sexual assault. Because alcohol is so often a factor in sexual assault, however, its omission from this discussion leaves a large gap in how law enforcement understands these crimes.

This is not to discount the fact that Flunitrazepam and GHB (gamma hydroxy butyrate) have recently become dangerously popular and are being used to facilitate sexual assault. These more sophisticated drugs are widely available and will not only sedate a woman in order to facilitate a sexual assault, but also have an amnesic-like effect so that the victim has little or no memory of the rape when it is over. However, it is important for law enforcement to understand that these drugs are not the only, nor the most commonly used drugs to facilitate rape. Alcohol is still the primary drug of choice. The techniques being used to investigate these "date rape drugs" can also be applied to alcohol and any drug used to facilitate sexual assault.

What is alcohol?

There are different types of alcohol; some are used to produce household cleaning products. However, the only type of alcohol made to consume by people is ethanol; "Ethanol is a relatively small molecule that is easily and quickly absorbed into the body. Once a drink is swallowed, it enters the stomach and small intestine where a high concentration of small blood vessels gives the alcohol ready access to blood." Alcohol is a sedative and should never be dismissed by law enforcement as an insignificant drug. The dangers associated with alcohol are as serious as many illegal drugs and it remains the most commonly used drug to facilitate sexual assault. In addition, young people in our society are heavily exposed to the idea that it is "cool" to drink.

"Nowhere is the alcohol advertising more targeted, or the peer pressure to drink more powerful, than on adolescents and young adults-particularly young men. Advertisements for alcoholic beverages take up eighteen times more space in college newspapers than do those related to books, and forty-eight times more space than those related to soft drinks."

The physical effects of alcohol depend on the amount consumed and the size of the person drinking. The following chart provides an outline of the effects of ethanol (alcohol) consumption on a person's behavior and physical state depending on the amount ingested per hour.

Table 1. Physical Effects of Alcohol

Ethanol Dose State (oz/hour)Blood Ethanol (mg/100ml)Function ImpairedPhysical State
1-4up to 100judgement, fine motor coordination, reaction timehappy, talkative, boastful
4-12100-300motor coordination, reflexes, slurred speechstaggering, nausea, vomiting
12-16300-400voluntary responses to stimulationhypothermia, hypethermia, anesthesia
16-24400-600sensation, movement, self-protective reflexescomatose
24-30600-900breathing, heart functiondead

As you can see, although the risk of death is relatively low with alcohol when consumed in smaller amounts, when consumed in large amounts alcohol can be extremely dangerous. As discussed, if a significant amount of alcohol is ingested, the intoxicating effects are similar to many other more sophisticated drugs such as Flunitrazepam.

While alcohol is still the primary drug of choice, the use of Flunitrazepam, GHB and other drugs that can be slipped into the victim's drink without the woman's knowledge, has become a significant problem. The most evident danger results from the victim's ingestion of multiple drugs. The outcome has resulted in some cases in death or coma.

The importance in this discussion of alcohol is for law enforcement to understand the danger in limiting our definition of drug-facilitated sexual assault to specific types of drugs. It is essential that law enforcement understand that any drug used to sexually assault a woman is drug-facilitated sexual assault. By limiting our perception of drug facilitated sexual assault to only certain types of drugs, we cloud our vision to many of the techniques used by offenders and fail to overcome the unique challenges associated with drug-facilitated sexual assault. As with any aspect of sexual assault investigation, law enforcement must make a continuous effort to keep an open mind.

To provide a more powerful image of how alcohol is used to facilitate sexual assault, the following excerpt is provided from an actual interview with an unincarcerated sexual offender. The interview was conducted by, Dr. David Lisak as part of his ongoing research on undetected sex offenders with a rapist referred to as "Frank."

Frank:We had parties almost every weekend. My fraternity was known for that. We would invite a bunch of girls and lay out the kegs or whatever we were drinking that night and everyone would get plastered.

We would all invite girls, all of us in the fraternity. We'd be on the lookout for good looking girls, especially freshmen, the real young ones. They were the easiest, it's like we knew they wouldn't know the ropes kind of, it's like they were easy prey. They wouldn't know anything about drinking, about how much alcohol they could manage, and they wouldn't know anything about our techniques.

Interviewer:What were those techniques?

Frank:We'd invite them to the party and we'd make it seem like it was a real honor, like we didn't invite just any girl, which I guess is true [laughs]. And we'd get them drinking right away. We'd have a bunch of kegs but we almost always had some kind of punch also, it was almost like our own home brew. We'd make it real sweet, you know, we'd use some kind of sweet juice and then we'd just throw in all kinds of alcohol. It was powerful stuff. And these girls wouldn't know what hit them. They'd all be just guzzling the stuff because it was just juice, right, and they were so nervous being there because they were just freshmen anyway.

Interviewer:When you say it was just juice, you mean the girls wouldn't know it was spiked with alcohol?

Frank:They would know, they knew that. At least the smart ones did. I mean, this was a party, not some kind of social tea, so I think they must have known, or most of them did anyway. The ones that didn't had to be real naive.

Interviewer:Did you count on them being naive?

Frank:Yeah, I guess in a way we did. The real young and naive ones were the easiest. They'd be plastered in minutes and they'd be our real targets.

Interviewer:What do you mean by "targets"?

Frank:That's what we called them. We'd all be scouting for targets during the week. We'd pick them out and work them over during the week, get them all psyched to come to one of our famous parties. And they'd be the ones we'd really work on.

Interviewer:What would happen once they were drunk at the party?

Frank:That's when one of us would make a move. By then each girl would be kind of staked out, meaning one of the guys would be working on her, getting her drinks, keeping the juice flowing so to speak. And you had to kind of pick your moment to make your move, you know, you basically had to have an instinct for it.

Interviewer:Can you describe what happened on the specific occasion you referred to in your questionnaire?

Frank:Yeah, sure. I had this girl staked out. I had picked her out in one of my classes and worked on her and she was all prepped. I was watching for her and as soon as she walked in the door at the party I was on her. She was a good-looking girl, too. We started drinking together and I could tell she was real nervous because she was drinking that stuff so fast.

Interviewer:What was she drinking?

Frank:It was some kind of punch we had made, the usual thing.

Interviewer:Did she know it was spiked with alcohol?

Frank:I don't really know, although she must have after awhile. She had to know because she was plastered in minutes, and I started making moves on her. You know, I kind of leaned in close, got my arm around her, then at the right moment I kissed her and then moved in closer. You know, the usual kind of stuff. It was no surprise to her, I'm sure she'd done it a thousand times before. After a while I asked her to come up to my room to get away from all the noise and she came right away. Well, actually it wasn't my room. We always had several rooms designated before the party that were prepared for this.

Interviewer:Designated rooms?

Frank:Yeah, we'd set aside a few rooms to bring these girls up to once they were ready.

Interviewer:What happened when you got to the designated room?

Frank:She was real woozy by this time and I brought up another drink for her and sat her on one of the beds and I sat next to her and pretty soon I just made my move. I don't remember exactly what happened first. I probably leaned her down onto the bed and started working on her clothes, feeling her up.

Interviewer:How did she respond?

Frank:I don't remember. I started working her blouse off and I think she might have said something, but I don't remember. I didn't expect her to get into it right away.

Interviewer:Did she say anything?

Frank:Yeah, at some point she started saying like she didn't want to do this right away or something like that. I just kept working on her clothes. And she started squirming but that actually helped because her blouse came off easier. Then I kind of leaned over her more and kept feeling her up to get her into it more, and then she tried to push me off of her with her hands and I pushed her down.

Interviewer:Were you angry?

Frank:Naw, but it did piss me off that she played along the whole way and then decided to squirm out of it like that at the end. I mean she was so plastered I don't really think she knew what was going on anyway, and maybe that's why she started pushing me. I just leaned on her and kept pulling off her clothes and at some point she stopped squirming. Maybe she passed out. Her eyes were closed.

Interviewer:What happened?

Frank:I fucked her.

Interviewer:Did you have to lean on her, hold her down when you did it?

Frank:Yeah, I had my arm across the top of her chest like this [demonstrates]. And that's how I did it.

Interviewer:Was she squirming?

Frank:Yeah, she was squirming, but not that much anymore.

Interviewer:What happened afterwards?

Frank:I got dressed and went back to the party.

Interviewer:What did she do?

Frank:She left.

This transcript is a perfect example of how the sex offender employs a drug to increase his victim's vulnerability. In addition, Frank defends himself by incorporating societal myths that blame the victim. For example he describes his sexual overtures as "no surprise to her" and continues to state that "she'd done it a thousand times." The victim is now depicted as the typical "bad girl." She drinks and is promiscuous and thus clearly available to Frank sexually--even if it did take a little "coercion." Thus, the victim's credibility becomes the key issue in the investigation and prosecution. The challenges associated with drug-facilitated sexual assault and ways to overcome them are discussed in depth in the following section, "Investigating Drug-Facilitated Sexual Assault."

Investigating Drug-Facilitated Sexual Assault

Simply because a victim of a drug-facilitated sexual assault may experience memory loss does not imply that she will experience an easier recovery than other rape victims. In fact, her recovery process may be especially difficult because she is left to her own imagination and may never know exactly what the perpetrator(s) did to her. This fact leaves the victim with a great sense of helplessness. Because she cannot remember what happened to her, the victim may feel that no one will believe her and that she will be unable to testify in court. In addition, if the victim voluntarily participated in drug use, she often feels intense guilt and responsibility for the assault. All of these facts intensify those symptoms that are associated with rape trauma syndrome and should not be overlooked when caring for the victim.

There are many challenges to investigating sexual assault crimes, especially when the defense is consent. We have discussed many of these challenges in detail in previous modules. For example in the Victim Interview module we discussed the following as common barriers:

  • The victim's lack of physical resistance

  • Inconsistent or untrue statements by the victim

  • Delayed reporting

The heightened difficulty in investigating drug-facilitated sexual assault is due to the fact that these cases typically encompass all of these barriers. Because of the very nature of most drugs used to facilitate sexual assault (like alcohol, GHB and Flunitrazepam), the victim will display symptoms such as impaired motor skills, reduced inhibition, drowsiness, and memory loss, all of which contribute to a victim's lack of physical resistance, inconsistent statements and delayed reporting.

Therefore, when investigating cases of drug facilitated sexual assault, law enforcement must combine the many strategies discussed in previous sections to overcome these challenges. The critical issue is to document the victim's statements, feelings, any time markers, and details about what she does and does not recall. It is imperative to the victim's credibility that she tell her story from beginning to end in her own words in a safe and nonjudgmental environment.

Lack of Resistance

Investigators must understand that many drugs depress the central nervous system, which can result in multiple symptoms such as impaired motor skills, impaired judgement and the loss of consciousness. Each of these symptoms makes it increasingly difficult for a victim to physically resist her attacker by hitting, kicking and biting-actions that society has proscribed for victims of "real rape." In fact, a sex offender who employs drugs to facilitate a sexual assault is counting on these symptoms to make the victim more vulnerable. These offenders will then use the effects of the drugs as an alibi in their consent defense. For example, the offender might state:

  • "We both had a lot to drink and neither of us knew what we were doing. We were both really messed up."

Or

  • "She was into it. In fact, she was really wasted at the party and was flirting with me all night. We both had a good time."

These statements apply directly to the misconception society has of the "good girl" who is raped and the "bad girl" who must have wanted it. The victim's inebriation and lack of physical resistance continues to be viewed with deep skepticism by the criminal justice system and is seen as an indication of a false report. In truth, a victim under the influence of drugs may not have the ability or consciousness to resist her attacker.

However, the ingestion of a drug is only one of multiple reasons for a victim's lack of resistance. As discussed in both the Victim Impact and Victim Interview modules, a victim of sexual assault may not resist due to confusion, fear, or because they experience dissociation or frozen fright.

It is common for the victim of a drug-facilitated sexual assault to explain the incident as if she was having an "out of body" experience.

Overcoming This Challenge

If a victim is sexually assaulted due to her vulnerability from the effects of a drug, this should only confirm a common pattern used by the offender in a drug-facilitated sexual assault, and thus corroborate the victim's story.

One way an investigator can overcome the challenge of a victim's lack of resistance is by effectively interviewing the victim. An effective interview allows the victim to tell her story in an environment free of blame in which she can give an honest and thorough account of the situation surrounding her assault. Her account can than be corroborated through witness interviews, the suspect interview, and evidence collection.

During the victim interview, never ask the victim questions that are either leading or blaming.

For example, do not ask the victim:

  • "And did you feel like this....?"

  • "Oh, maybe somebody put a drug in your drink...."

  • So, how much were you drinking tonight...?

  • What kind of drugs were you using...?

This type of questioning is harmful in two ways:

  • First, it is embarrassing and blaming to a victim who may have voluntarily ingested a drug. This victim may feel she did something wrong by participating in drug use and therefore hide this fact from the investigator. Of course this will ultimately undermine the victim's credibility and hamper the investigation.

  • Second, the victim of a drug- facilitated sexual assault whose memory is impaired may innocently and unconsciously seek details to fill in the gaps of her memory. Thus, by asking leading questions the officer might inadvertently cause the victim to make false or inconsistent statements. As discussed in the Victim Interview module, it is always better to ask the victim open ended questions.

It would be helpful for the officer to preface any and all questions that address the victim's use of drugs with a clear and informative explanation of why these questions are important to the victim's case.

For example, the officer might say:

"I know that this question is difficult to answer and I want you to know I am only asking you this question to get a clear picture of all the facts in this case. I am very sorry about what has happened to you and I do not think that you are responsible for what happened. Any questions I may ask regarding possible drug use by yourself and the offender serve only to better my understanding of what happened and will help me investigate and corroborate your case."

  • It is also helpful for the officer to clarify what they have heard and summarize the information back to the victim. This will help assure the victim of the officer's understanding.

  • In addition, officers must be careful to avoid interrupting the victim. Allow the victim to recall the events surrounding her assault to the best of her ability. Reassure her that she has plenty of time.

As the fact finder, it is imperative that the investigating officer asks all questions necessary to effectively corroborate the victim's account. However, many victims will become upset and frustrated by the officer's questions regarding her use of drugs. These questions, depending on how they are phrased, can appear victim blaming and can pose a barrier to victim cooperation. The investigating officer must do everything possible to create a nonjudgmental environment and allow the victim to feel comfortable in giving a thorough account of the sexual assault.

Inconsistent or Untrue Statements

We discussed in the Victim Interview module how inconsistent or untrue statements provided by the victim pose a particular challenge to the investigation. With respect to drug-facilitated sexual assault, this is especially true for inconsistent or untrue statements provided by the victim about her own drug use. For example, experienced sexual assault investigators should not be surprised if the victim denies taking drugs and then unexpectedly tests positive for alcohol, cocaine or other drugs. This may happen for a number of reasons.

  • First, many victims will feel uncomfortable giving information about drug use to a police officer, for fear of both blame and arrest. It is imperative that the officer informs the victim that this inquiry is not to establish any kind of blame and that the officer is not going to arrest the victim for illegal drug use. This assurance will allow the victim to talk about her experience in an environment where she feels safe and free of judgement. The victim's cooperation is essential for investigating how a drug may have been used to facilitate the sexual assault.

  • A second reason why a victim may unexpectedly test positive for drug use involves recent cases where victims are surreptitiously dosed with GHB or other depressants to get them out of a party or club environment, and then they are later given cocaine or methamphetamine by literally blowing it up their noses.

  • In other cases, the victim may claim to have been surreptitiously drugged, but her toxicology test may in fact have a negative result. The investigator should not be discouraged. It is difficult to obtain a positive screen with many of the drugs used to facilitate sexual assault (i.e. Flunitrazepam and GHB) because these drugs are metabolized out of the blood and urine so quickly. Since the victim may be passed out (or in an ambulatory state) for several hours, a positive urine screen will be unlikely. The investigator must therefore be prepared to seek evidence to corroborate the victim's story with or without a positive toxicology test.

The bottom line is that the sex crimes investigator should not be surprised or discouraged by these developments, or inconsistencies. As discussed in the Victim Interview module there are many reasons why victims may give an inconsistent description of events, including trauma and disorganization, discomfort with sexual details and fear of doubt or blame. In addition, it is likely that any victim of a drug-facilitated sexual assault will come into the police station with an inaccurate chronology of events and a feeling of confusion. These symptoms are due to the nature of the drug involved.

Overcoming This Challenge
  • Ask the victim to clarify her statements by explaining to her the importance of correct information and protecting her credibility.

  • Make sure the victim understands that she will not be blamed or punished for participating in either legal or illegal drug use.

  • Reassure the victim that her part in drug use does not make her any less of a "real rape" victim.

  • If possible, the number of interviews should be kept to a minimum in order to reduce the chances of inconsistent statements made by the victim.

Officers should address inconsistencies or untruths in the victim's statement without becoming immediately skeptical of the victim's story. Instead, the officer should explore any issues regarding inconsistent statements with the victim in a nonjudgmental manner.

Delayed Reporting

Delayed reporting is another common challenge associated with drug-facilitated sexual assault. As discussed victims of sexual assault typically do not report their assault for days due to many different reasons. The same reasons apply to the victim of a drug-facilitated sexual assault.

  • In fact, many victims of drug-facilitated sexual assault feel physically disoriented or "hung-over" for several days after voluntarily or surreptitiously ingesting a drug; they are thus unable to report the crime for several days or weeks.

  • The victim may also delay reporting because she blames herself for the assault. She may feel responsible because she participated in drinking or other drug use prior to the assault, and society has taught her that victims of "real rape" do not use drugs.

  • Many victims may fear arrest for illegal drug use or retribution from a parent or family member for participating in underage drinking. For example, the victim may have lied to her parents in order to sneak out of the house to go to a party, and fears punishment if she comes forward with her story.

Overcoming This Challenge

The challenge of delayed reporting can be addressed with the victim of a drug-facilitated sexual assault in the same way any delayed report should be handled:

  • Provide the victim with open-ended questions. Allow her to tell her story completely.

  • Document everything.

  • Assure the victim that you do not blame her and that delayed reporting is natural in sexual assault crimes.

In addition to these strategies to help investigators address delayed reporting, an officer should learn and understand the symptoms of various drugs and the physical patterns that contribute to the victim being unable to make a "timely" report to law enforcement. Investigators should view any reporting delays as a normal consequence of drug-facilitated sexual assault, and should not be discouraged from conducting a comprehensive and creative investigation. Instead, the officer can apply the commonality of delayed reporting to support the victim's story and further substantiate her credibility.

Final Thoughts

In conclusion, experienced law enforcement officers know that the challenges to investigating drug-facilitated sexual assault are similar to any sexual assault case, especially where consent is the defense. These cases are decided according to the victim's credibility. It is essential that law enforcement understand that the techniques being used to address the challenges associated with acquaintance rape can also be applied to drug facilitated sexual assault.

The officer's strongest tool in addressing the challenges associated with drug-facilitated sexual assault is through meticulous evidence collection and documentation. This includes physical evidence from the victim, witness interviews, the crime scene(s), expert testimony, and a complete investigation of the suspect.

Evidence collection in a drug-facilitated sexual assault crime should focus on corroborating the victim's account of drug use, either voluntarily or surreptitiously, and the events surrounding the sexual assault. Because a consent defense will be used in the majority of these cases, evidence collection provides a reliable source for supporting the victim's credibility in a drug-facilitated sexual assault.

For example, if the victim states that she voluntarily ingested alcohol and cocaine, the investigator can seek to corroborate this with a toxicology test and evidence of these drugs at the crime scene(s). Evidence of the drugs ingested by the victim and the offender can serve to support the victim's account of the events surrounding her assault, and her vulnerability under the influence of a drug. The following section examines the type of evidence that is essential when investigating a drug-facilitated sexual assault.

Evidence Collection

What are the indicators of a Drug-Facilitated Sexual Assault?

Law enforcement must be aware of the signs of a drug-facilitated sexual assault so that they can properly document evidence and help the victim decide if a "full drug screen" is necessary. This is particularly essential in cases where GHB, Flunitrazepam, Ketamine and other "date rape drugs" may have been surreptitiously given to the victim.

A complete discussion of the advantages and disadvantages of a "full-drug screen" and the concerns of the victim advocacy community are discussed later in this module.

The following are indicators that the victim may have been drugged to facilitate a sexual assault:

  • The victim reports that she was under the influence of a drug during the sexual assault (either a legal or illegal drug).

  • The toxicology test indicates that the victim was under the influence of a drug

  • The victim reports drinking with friends and having just one or two drinks, too few to account for the high-level of intoxication the victim experienced.

  • She recalls feeling "strange," then feeling suddenly "very drunk."

  • The victim reports becoming heavily intoxicated, very rapidly within a time period of five to fifteen minutes.

  • Waking up eight or more hours later, uncertain about what happened, but believing she may have been raped because she is experiencing vaginal soreness, or other signs of sexual activities.

  • Being told she was given Roaches, Roofies, Mexican Valium, R-2, GHB, or easy lay.

  • The victim reports that witnesses told her she suddenly appeared drunk, drowsy, dizzy, confused with impaired motor skills, and impaired judgement.

  • The victim reports symptoms of amnesia.

  • She remembers a sequence of "cameo appearances" in which the she recalls waking up, possibly seeing the assailant having sex with her, but being unable to move, and then passing out again. These memories may be associated with a loud noise or pain.

The Role of the 911 Operator and First Responding Officer

Due to the nature of drug-facilitated sexual assault, many victims may not have a recollection of the events necessary to explain the crime or identify the offender. Thus, both the 911 Operator, and the First Responding Officer must be skilled in identifying the victim of a drug-facilitated sexual assault.

The following is a list of the procedures the 911 Operator and/or the First Responding Officer (depending on the procedures of your jurisdiction) should consider if they suspect a drug-facilitated sexual assault has occurred:

  • If the 911 Operator suspects the victim may have been drugged to facilitate a sexual assault, an officer should be immediately dispatched to the victim's location.

  • If either the 911 Operator, or the First Responding Officer, suspect that the drug was ingested within 96 hours, the victim should be advised not to urinate.

    • Urine and Blood Collection

      • The period of time Flunitrazepam, GHB, or other rape drugs will remain in the urine or blood depends on a number of variables, including the amount ingested, the victim's body size and rate of metabolism, whether the victim had a full stomach, and whether she previously urinated. A urine specimen is preferable to a blood specimen because the drugs and their metabolites can be detected in urine for a longer period of time (LeBeau, 1999).

    • Drugs Remain in Blood

      • Benzodiazepines (e.g. Rohypnol): 4-12 hours

      • GHB: 4-8 hours

    • Drugs Remain in Urine

      • Benzodiazepines (e.g. Rohypnol): 48-96

      • General Rule: Benzodiazepins are not typically detected in the urine after 48 hours!

      • GHB: up to 12 hours

    • This list created by APRI

  • If she must urinate, tell her to save her sample in a clean container with a tight fitting lid. It is important to get her first voided urine sample because it will most likely contain metabolites of the drug she was given, which can be used to identify the drug.

  • With each subsequent urine sample the metabolites are excreted from the victim's system and it is less likely that they will remain in sufficient quantities to be identified.

  • The First Responding Officer should secure a urine sample for toxicological testing if it is suspected that a drug was ingested within 96 hours. If the drug was ingested within 12 hours, the victim should also be transported to the nearest medical facility to obtain a blood sample.

It should be noted that the reason blood is drawn from the victim, is to test for the level of ethanol in the body. The date-rape drug itself may not have caused the victim's symptoms. It is possible that the victim's symptoms are a result of the synergetic effect of alcohol in conjunction with the drug(s) used to facilitate the sexual assault.

The Victim

As we have discussed, the ingestion of drugs by the victim (either voluntarily or surreptitiously) is often used against the victim by the criminal justice system. Her apparent association with "risky" behavior lessens her credibility and increases her perceived culpability while diminishing the suspect's.

An additional challenge in investigating drug-facilitated sexual assault is the loss of evidence due to the very nature of the drugs used. As discussed, many of these drugs metabolize so quickly in the body that it becomes difficult to detect them in the victim. Because most victims delay reporting, this compounds the challenge of corroborating the use of a drug to facilitate the sexual assault.

The investigator must carefully deduce from the types of drugs used to facilitate the sexual assault, the effects these drugs had on the victim, and an account of the events surrounding the actions of everyone involved. The following is a list of the types of evidence an investigator should process from the victim.

  • The investigator may be the first to suspect the victim was drugged to facilitate a sexual assault. As we have discussed, if the ingestion of a drug may have occurred within the last 96 hours (4 days), the victim should be advised not to urinate until a urine specimen can be collected. If the victim has to urinate prior to a collection sample being taken in a medical facility, the victim should be requested to urinate in a CLEAN jar or container with a tight fitting lid.

  • If urine samples were obtained at a medical facility prior to your arrival, the officer should determine if any amount of the specimen is leftover beyond what is needed for the hospital lab work.

  • Because there could be a need for multiple toxicology tests, it is important to obtain as much urine as possible (100 ml if possible).

  • If the assault may have occurred within 8 hours of the report, obtain a 30-ml blood sample (in a gray top tube) as well as urine. This should be conducted at the nearest medical facility.

  • Have the victim's urine and blood screened as soon as possible for traces of Flunitrazepam metabolites, GHB, Ketamine and any other possible drugs.

  • Ideally, urine samples should be frozen although refrigeration should suffice.

  • Treat vomit as a supplemental specimen for forensic toxicology purposes-in other words, vomit should be collected in addition to the urine and blood specimens. Collect as much of the liquid and solid portions of the vomit as possible by using a spoon, an eyedropper-type suction device, or other tools that are consistent with biohazard procedures. The vomit should be placed in a urine collection container or other appropriate container that has a lid with a tight seal. Then immediately place the container in a freezer. However, if the vomit will be submitted to a toxicologist within five days, it is acceptable to refrigerate the container. If the vomit is on clothing (or on a sheet), put the clothing (or sheet) in an appropriate container (i.e. a paper bag) to prevent leakage and contamination and then immediately freeze the clothing (or sheet) while it is packaged.

Do not make the critical mistake of sending a fluid sample to a lab before you have determined whether the lab is equipped to do the specific types of testing necessary. Consult a toxicologist in your local or state forensic/crime laboratory about where to send blood and urine specimens for a forensic toxicology analysis to detect single dose levels of drugs used to facilitate sexual assault.

  • Most laboratories cannot test for many of these drugs (i.e. GHB and Flunitrazepam), and private laboratories that conduct this testing can be very expensive. Options may include the state crime laboratory, or a private laboratory.

  • In most SANE programs and in the newly developed American College of Emergency Physician (ACEP) Best Practices Protocol, urine toxicology screens are not recommended beyond 72 hours because the chance of obtaining a positive toxicology result is extremely slim. However, for the purposes of this curriculum it is still recommended that law enforcement collect urine samples from the victim up to 96 hours for a toxicology screening.

In jurisdictions where 72 hours is the limit for the evidentiary exam to be paid for by the county, any charge for a urine toxicology screen may be billed to the victim. A victim who consents to this testing after 72 hours should be made aware of this potential expense. (Refer to the Victim Advocate module for a complete discussion of victim compensation).

  • To assist the toxicologist, the officer should be diligent in properly documenting their case. For example, always note what drugs-voluntarily or involuntarily were ingested in the last five days-that might have incapacitated or contributed to the incapacitation/vulnerability of the victim. Keep in mind that in a drug-facilitated rape case, more than one drug may have contributed to the incapacitation/vulnerability of the victim. The date and time when the drug was probably ingested-and the date and time that the specimen(s) are collected should be properly documented. This documentation is essential to corroborating the victim's own account of drug use, thus supporting her credibility.

  • As discussed, the victim may not have been comfortable telling law enforcement about her participation in either legal or illegal drug use. In addition, due to intoxication she may not remember taking a specific drug. Any inconsistencies between the victim's statement and the toxicology exam should be clarified with the victim as soon as possible in a nonjudgmental environment. It is important that the investigator explain to the victim the significance in clarifying any discrepancies without making the victim feel she is being blamed.

  • The victim should be thoroughly examined at a Sexual Assault Treatment Center. Make sure that the nurse does not overlook taking swabs from areas that may show "no signs of trauma." For example, the nurse should always swab the area of the breast and neck for saliva.

Advantages and Disadvantages to a "Full-Drug Screen"

In some cases of drug-facilitated sexual assault the necessity to detect a low level of a specific drug indicates that the toxicologists target their testing on only one drug at a time. However, this type of drug screening is most helpful when the toxicologist is looking for a specific drug, like GHB or Flunitrazepam. When the toxicologist must look for multiple drugs, or is unsure of what drugs the victim ingested, a "Full-Drug Screen" is more appropriate. A "Full-Drug Screen" tests for multiple drugs, including the following:

  • Conducting A Full-Drug Screen

  • When conducting a "Full Drug Screen," confirm that the laboratory is testing the urine and blood samples for:

    • Benzodiazepines,

    • Amphetamines,

    • Muscle relaxants,

    • Sleep aids,

    • Antihistamines,

    • Cocaine,

    • Marijuana,

    • Barbiturates,

    • Opiates,

    • Ethanol,

    • and any other substance that depresses the central nervous system.

    • Created by APRI

When deciding to conduct a "full-drug screen" both the investigator and the victim should review the possible ramifications of this testing. This is a very controversial issue and can greatly sffect the outcome of the victim's case. As with any sexual assault case, the elements of a drug-facilitated sexual assault vary and the issue of whether to conduct a full-drug screen should be addressed on a case-by-case basis.

Advantages
  • One advantage to conducting a full-drug screen is to corroborate the victim's account of her own drug use. In other words, if she said she took the drugs and the toxicology screen shows she used the drug, than this is another piece of evidence that supports the victim's account of events. This piece of evidence also serves to corroborate the victim's vulnerability to a drug-facilitated sexual assault by confirming both the physical and mental effects associated with specific drugs.

  • A second advantage to a full-drug screen is to help law enforcement identify a drug that may have been surreptitiously given to the victim to facilitate a sexual assault. This is especially important when the victim can not fully recall the events surrounding her assault. Some victim's may wake up with the "feeling" that they had sex, but have little memory of the offender(s) or the specific details of what happened. A full-drug screen can help law enforcement identify how the assault was facilitated and thus how to identify the offender.

  • A third advantage to a full-drug screen is that is provides law enforcement with a tool to strategize for a successful prosecution. If the victim chooses to prosecute, any testimony about the victim's drug use prior to the sexual assault will eventually come out at the trial and inevitably be used by the defense to discredit the victim. If a full-drug screen is done properly, prosecution may be able to subvert this defense tactic and actually use the evidence of drug use to support the victim's credibility.

Disadvantages

Although these advantages of a full-drug screen can be essential to a successful prosecution, the sexual assault advocacy community has valid concerns about conducting a full-drug screen and the disadvantages that may result for both the victim and the investigation.

  • First, depending on the outcome, the results of a full-drug screen may be used against the victim. For example, if the toxicology test is positive for specific drugs not indicated by the victim during her interview, the defense may use this to discredit the victim. In other words, if the victim lied about past or present drug use, jurors and others may believe that she must have lied about the rape.

  • Second, any proof of illegal drug use, whether voluntarily disclosed by the victim or not, could be used against the victim during the trial and therefore harm the potential for successful prosecution. In other words, evidence of drug use by the victim could be used by the defense to indicate that she participates in "risky" behavior and therefore she could not have been the victim of a "real rape."

  • A third disadvantage when conducting a full-drug screen on the victim is the limited ability of many laboratories to test for low doses of specific drugs used to facilitate sexual assault, such as GHB and Flunitrazepam. A negative test result may cause the victim severe emotional trauma as she struggles to come to terms with the events precipitating her assault. In addition, a negative test result could harm the victim's credibility and thus hinder the possibility of a successful investigation and prosecution. Again, jurors or others may believe that if the victim lied about being surreptitiously drugged she is probably lying about being raped. Careful thought must obviously be given to the possibility of conducting a full-drug screen with the victim, as with any other investigative procedure that may harm the ability to successfully prosecute.

It is not the purpose of this curriculum to dissuade law enforcement from conducting a full-drug screen, however it is essential that the investigator along with an advocate explain to the victim the advantages and disadvantages associated with this type of testing so they can make an informed consent.

Give the victim the opportunity to ask questions and express her concerns. The victim should be fully informed about what drugs will be tested for and that certain drugs can be difficult to detect. The victim should be assured that a negative test result does not indicate that she was not raped and that a drug could still have been used for these purposes. In addition, the negative ramifications of disclosing voluntary drug use, including past drug use, should be discussed with the victim. Many victims fear public disclosure of drug use; these concerns should be addressed and considered carefully in each individual case.

The Crime Scene and Evidence Collection

In the case of a drug-facilitated sexual assault, there are at least three potential crime scenes:

  • The site where the drug was ingested

  • The site where the drug may have been bought or manufactured

  • The site where the victim was sexually assaulted

In many cases, these may all be the same place, or there may be multiple crime scenes. It is essential that the investigator check the location where the victim last remembers being present for any evidence and or witnesses. The following is important information to help investigators locate the crime scene(s) and collect evidence at the crime scene(s) related to a drug-facilitated sexual assault.

Identify the location at the crime scene where the sexual assault took place. Look for:

  • Invitation lists (hard copies or e-mail) which will identify other witnesses

  • Standard sexual assault crime scene evidence (sheets, etc.)

  • Phone messages indicating witnesses or details of the event

  • Objects that may have been used to penetrate the victim

Semen and blood stains - use an alternate light source to locate stains (a Luma-Lite or Polylight, or Luminol for blood, and a Woods lamp for semen)

What to look for at the crime scene and/or the suspect's car or residence:

  • Packages of Flunitrazepam and other drugs

  • Empty bubble packages and other material in which drugs could be packaged

  • Precursors/Reagents (chemical ingredients of GHB)

  • Prescriptions from the U.S. and other countries, especially sleeping aids, muscle relaxants, and sedatives

  • Liquor bottles, margarita salt, mixers, punch bowls-look for drug residue

  • Visine bottles, sports bottles (containers for GHB)

  • Glasses, soda cans and bottles...any containers-look for any residue of drugs

  • Possible vomit from the victim-may be a source of drug residue

  • Video/camera equipment

  • Videotapes, photographs, and CD ROM's of sexual assault victim

  • Pornographic literature containing suggestions of drugging women to facilitate sexual assault

  • Internet information/pamphlets on Flunitrazepam and GHB and on using these and other drugs in the commission of sexual assaults or for other purposes

  • Computers and computer discs

  • If robbery is suspected, the victim's possessions and/or the defendant's pawn shop slips evidencing sale of the victim's possessions.

Do not overlook the obvious --- many offenders will use drugs that are readily available to them. Look in his medicine cabinet for prescription drugs, especially sleeping aids, muscle relaxants and sedatives. In addition to Flunitrazepam, search for any drug that could have been used to incapacitate the victim. It is important to know all of the drugs the suspect had access to, including those that can be legally obtained in the United States.

The majority of these types of cases are consent defense cases. Securing evidence that the victim was incapacitated by a drug is the first priority. If hair, semen, and fingerprints are collected, the focus of the investigation should be on proving lack of consent, not on identifying the defendant.

This is not to say that identification evidence is not important; it is, because of the possibility of mistaken identification or a possible change of defense tactic by the offender from consent to identification. Identification evidence is also important to detect the possibility of multiple defendants or a "gang rape" situation. Identification evidence should always be collected in every case even if the offender's identity is not an issue. However, especially in non-stronger rapes, evidence providing lack of consent must be collected and is vitally important to a successful prosecution.

The Suspect

Historically, the sexual assault investigation has focused primarily on the victim and her credibility. Unfortunately, this often leads to a lack of solid evidence associated with the suspect that may discredit him and thus support a successful prosecution. Investigators continue to struggle to prove the validity of the victim's story and to justify her behavior, including voluntary or involuntary use of drugs. Because we spend all of our time trying to prove to the criminal justice system that the victim is not a "bad girl," we forget to exhaustively investigate whether the suspect is a "bad guy" and indeed a "real rapist."

As with most sexual assault cases, the defense is usually consent. In the case of a drug- facilitated sexual assault the offender may admit to having sex with the victim and even admit that she was under the influence of a drug, however he will defend himself by claiming that both he and the victim were "messed-up," or "buzzed" and that the sex was therefore consensual.

Investigators can overcome this challenge by thoroughly investigating the suspect and by collecting evidence that discredits the suspect's account of the events surrounding the sexual assault, thus supporting the victim's credibility. The following information explores the different tools essential to investigating the offender of a drug-facilitated sexual assault.

(Refer to the Offender Dynamics and Interview Techniques module for a complete discussion on investigating the suspect in a sexual assault crime.)

Background Information of Defendant

Establish the general "dating" background or practices of the defendant. Try to uncover whether the defendant had made any preparations in order to secure a date for the evening. Consider using the following questions as a starting point in your investigation.

  • What is his "reputation" among his friends/school/office? Is he known as a "ladies man"?

  • Does his fraternity/apartment complex/group of male friends have a reputation for sexual conquests?

  • Does he boast about his sexual exploits?

  • Does he routinely bring different women home?

  • Does he have a steady girlfriend? If so, does he date other women on the side?

  • Have any prior "conquests" ever accused him of rape or other sexual misconduct?

  • Have roommates or friends seen women leaving his room crying/distraught?

  • Does he talk about taking pictures or filming videos during sexual acts? If so, does his sexual partner know of the picture taking or the filming?

  • Does he use pornography, e.g., magazines, movies, Internet sites?

  • Does he go to adult bookstores, adult theatres, or to nude bars?

  • Had he talked about plans of making a "conquest" that evening, e.g., trying to get his intended "target" drunk?

  • If so, had he made any preparations, e.g., devising a special punch recipe designed to get women drunk?

In gathering this background information, the investigator can begin to uncover what actually occurred prior to, during, and after the sexual assault. The investigator can use this information not only to further his/her investigation, but also to provide the prosecutor with the "texture the background details of the events surrounding the sexual assault.

Suspect Forensic Examination

  • Depending on the case and its facts, a suspect forensic examination ("suspect exam") for evidence of the crime should be considered.

  • Performing a suspect exam is sometimes disregarded in drug-facilitated sexual assault cases because the report of the assault is delayed and no evidence is likely to be found on the suspect after several days have passed since he committed the sexual assault.

  • The examiner and investigator should be mindful, though, that in many drug facilitated sexual assault cases, there may not be any indications of force or defensive injuries on the suspect, e.g., scratches, because the victims are incapacitated and unable to resist the attack.

Search Warrants for Defendant's Home

Items to include in the search warrant:

  • Packages of Flunitrazepam and other drugs

  • Bubble Packages and other packaging that indicate receipt of shipment of drugs

  • Cooking utensils (for GHB)

  • Precursors/Reagents (chemical ingredients of GHB)

  • Prescriptions from the U.S. and other countries, especially for sleeping aids, muscle relaxants, and sedatives.

  • Liquor bottles, margarita salt, mixers, punch bowls (where GHB or other drugs may have been mixed with other liquor)

  • Glasses, soda cans and bottles...any containers-look for any residue of drugs

  • Video/camera equipment

  • Videotapes, photographs, and CD ROM's of the sexual assault victim

  • Pornographic literature containing suggestions of drugging women to facilitate sexual assault

  • Internet information/pamphlets on Flunitrazepam and GHB "recipes" and on using these and other drugs in the commission of sexual assaults

  • Computers and computer discs.

  • If robbery is suspected, the victim's possessions and/or the defendants pawnshop slips evidencing the sale of the victim's possessions.

  • Standard sexual assault crime scene evidence (sheets, etc.)

Using "Controlled Buys" can be very effective in trying to identify the drug that was used.

  • Setting Up a Controlled Buy

    • The Assault Detective should get together with the Street Narcotics Officers to determine which potential "dealers" could have supplied the drug to the suspect.

    • The suspect's friends or just school or neighborhood kids could also provide information as to who is selling drugs in the area.

    • If the suspect is the dealer, a successful controlled buy identifies the drug and provides evidence that the suspect had access to the drug.

    • If the suspect is not the dealer, then locating the local/neighborhood dealer will help identify the drug and show access. The dealer may also "flip" in exchange for a shorter sentence and identify the suspect as one of his "clients" and purchaser of the drug.

    • PIGGY -BACK WARRANTS: If any drugs can be purchased from the suspect, a search warrant may be obtained to search for the purchased drug and the suspected rape drug, as well as any other such evidence.

A thorough investigation of the suspect is essential for obtaining complete evidence to successfully prosecute a drug-facilitated sexual assault. Not only should law enforcement concentrate on investigative tools that help in supporting victim credibility, they must focus on investigative tools that may discredit the suspect. The suspect forensic exam, background information, and controlled buys are essential focal points for law enforcement in developing key evidence in drug-facilitated sexual assault.

Witness Interviews

Thoroughly interviewing witnesses is essential to the evidence collection. Witness interviews often provide important information for corroborating the victim's account of the events surrounding her assault.

For example, if partygoers and friends tell law enforcement that the victim had two drinks and smoked marijuana on the night of the assault, and this is the exact account given by the victim, then this evidence corroborates the victim's account. In addition, if witness interviews confirm that the victim was intoxicated and appeared to have multiple symptoms related to drug use, this evidence can also be used by law enforcement to confirm the vulnerability of the victim to the drug-facilitated sexual assault.

  • In addition to interviewing any individuals who may have witnessed any aspect of the assault, the investigator should also interview as many friends, enemies, and acquaintances of the suspect as possible. Often suspects have either secretly drugged women in the presence of others, or bragged openly about sexual conquests of women under the influence of alcohol or other drugs.

  • When questioning the suspect(s) and his friends, remember that these people often operate in a group and display a type of "group mentality." Each individual may tend to justify his actions based upon the actions of the group as a whole. Thus, by later isolating the suspect from his support group and highlighting the immoral nature of his actions, he can no longer rationalize his actions as a group activity and therefore becomes much more vulnerable later during the suspect interview.

  • Interview any waitresses, patrons, bartenders, parking lot attendants, security officers, neighbors, or partygoers who may be able to confirm the victim's account of the events surrounding the sexual assault.

  • The investigator should also determine whether security videos are available. This must be done quickly since most tapes are eventually copied over and valuable information will be lost.

  • In the case of the victim who has been surreptitiously drugged, it is important to ask witnesses if they may have noticed anything unusual about the victim's departure or arrival. This could be very important in establishing routine behavior on the part of the victim or her account of what happened.

  • Always identify the person (s) with whom the victim first discussed the incident. If the victim discussed the incident with friends or others before reporting the crime to police, carefully interview those persons and document what the victim said to them. The victim's statements to these persons may be admissible at trial under an exception to the hearsay rule and may corroborate the victim's trial testimony.

Keep in mind that most drugs used to facilitate rape can cause the victim to become passive. During the investigation, witnesses may report that they observed the victim and the suspect leave the party together or go into a private room, and that the victim appeared to accompany the suspect voluntarily. This should not serve to discredit the victim's credibility.

  • First, a victim's cooperation to go "somewhere private" with the suspect is not an invitation to rape her and should never be viewed by the criminal justice system as an indication of consent.

  • Secondly, investigators should keep in mind that many drugs like GHB and Flunitrazepam sedate the victim and often cause confusion and disorientation. Thus, while the victim may have appeared to voluntarily accompany the suspect, the victim's actions may have been the result of "drug submission" or some other effect of the drug on the victim and her capabilities.

Pretext Phone Calls

Another very useful strategy for investigating these types of cases is the pretext phone call between the victim and the suspect. The pretext phone call is usually initiated by the victim under the supervision of the investigator. The call is taped without the suspect's knowledge. The purpose of the call is to solicit incriminating statements from the suspect because the suspect may talk to the victim about the sexual assault, if he thinks she is alone and no one else can hear the conversation. Interviews of the suspect's friends should be postponed until after the phone call to avoid "tipping off" the suspect. An investigator should be realistic when conducting a pretext phone call and not expect a confession. However, many statements made by the defendant could be used to corroborate the victim's or witnesses' testimony, put the defendant at the scene, or "lock in" the defendant to a specific defense.

It is important to speak to the victim in detail about how she feels about making the phone call because speaking to the suspect directly may heighten the trauma she is experiencing. A victim advocate should be present when explaining the pretext phone call to the victim and after the call to help the victim deal with any emotional distress caused by contact with the suspect.

A complete discussion on how to conduct a pretext phone call, is included in the module on Offender Dynamics and Interview Techniques.

Law enforcement officials should understand that the victim's actions-actions that the defense may argue support a consent defense-are, in fact, consistent with evidence that the victim was under the influence of a drug and in fact a victim of a drug facilitated sexual assault.

The Use of Expert Testimony

The usefulness of expert testimony in drug-facilitated sexual assault cases cannot be underestimated. Chemists, toxicologists, and pharmacologists historically have testified in drug trials about their analyses of the particular drug or drugs involved in the case at trial. In a drug-facilitated sexual assault trial these experts will also testify about their analyses of the drug used to rape the victim. In addition to that testimony, these experts can testify how the particular drug affects the body in general, how the victim's symptoms are typical of someone who has ingested this drug, and can explain the lack of a positive toxicological result in the case. For example, at the trial, the toxicologist will be able to testify to the analysis of the sample and the methods used to test for the drug. A toxicologist will also be able to testify to possible reasons for a negative result, such as the lapse of time between ingestion and collection of the sample.

To explain the properties or effect of the drug, testimony from a scientist with a pharmacological background, who will know more about how the drug works in the body, may be necessary. Testimony from a pharmacologist is always important, but this testimony is key when there is no urine sample, because the pharmacologist will be the only expert testifying to the effects of the drug on the victim. The pharmacologist, or a scientist with a pharmacological background, can explain to the judge and jury what the drug does and how it affected this particular victim. This type of expert can supply critical information about why the victim does not remember the assault and/or does not have any injuries. Where there is no urine sample or no positive toxicology result, the pharmacologist can explain that the symptoms experienced by the victim are "consistent" with being drugged with a drug such as a benzodiazepine.

The toxicologist or pharmacologist can also neutralize potential weaknesses of the prosecutor's case by discussing any absence of physical trauma; the victim's intoxicated appearance and seeming willingness to leave with the suspect; the victim not knowing how she got home; the victim's inability to recall facts; the victim's impaired spectrum of memory versus impaired quality of memory (for example, she may not remember the events of the entire night, but she has a clear memory of the segments that she does remember); the victim's recall of only bits and pieces of the incident; the lowering of inhibitions, disorientation, and loss of motor control; and the fact that the effects of the drug sometimes do not wear off for days, thus preventing the victim from making a report.

Qualified toxicologists and Pharmacologists can be helpful to both the prosecution and the investigation. The investigator may want to take the time to locate an expert in their area regarding the effects of certain drugs used to facilitate sexual assault. The expert may be extremely helpful in strategizing the investigation and in framing the evidence gathered, thus providing essential support to the victim's credibility. He/she may be able to highlight apparent weaknesses in the investigation and may have critical suggestions to strengthen the case. A team effort is essential for both a successful investigation and a prosecution.

Conclusion, or The Good News

The challenges presented in drug facilitated sexual assault crimes are not insurmountable. Law enforcement has a variety of investigative techniques available in deconstructing these difficult crimes. Most of these techniques are not "new" to sexual assault. It is simply a matter of conducting a thorough and creative investigation. Law enforcement must keep an open mind, understand the patterns associated with sexual assault crimes, and use these patterns to strategize the most effective course of investigation.

To order a copy of the APRI Manual and Video; "The Prosecution of Rohypnol and GHB Related Sexual Assaults" Contact: Tamara Kitchen American Prosecutors Research Institute 99 Canal Center Plaza, Suite 510 Alexandria, VA 22314 (703) 519-1695

References

Koss, M.P. & Cook, S. (1993). Facing the facts: Date and acquaintance rape. In R. Gelles & D. Loeske (Eds.). Controversies in Sociology. Sage Publications: Newbury Park, CA.

Koss, M.P. & Oros, C.J. (1982). Sexual experiences survey: A research instrument investigating sexual aggression and victimization. Journal of Consulting and Clinical Psychology, 50, 455-457.

Kuhn, C., Swartzwelder, S., & Wilson, W. (1998). Buzzed; The Straight Facts About the Most Used and Abused Drugs from Alcohol to Ecstacy. W.W. Norton & Company, New York/London.

LeBeau, M. (1999). Toxicological Investigations of Drug-Facilitated Sexual Assaults, 1 Forensic Science Communications (April).

LeBeau, M. et al, (1999). Recommendations for Toxicological Investigations of Drug-Facilitated Sexual Assaults, 44 J. Forensic Sci. 227-230 (1999);

Warshaw, R. (1988). I Never Called it Rape. Harper & Row: NY.

Sample Search Warrant

IN THE MUNICIPAL COURT, ______________ JUDICIAL DISTRICT

COUNTY ____________, STATE ______________

S E A R C H W A R R A N T

Case No._________________

The People of the State of ____________, to any sheriff, constable, marshal, police officer, or any other peace officer in the County of _________________:

Proof, by affidavit, having been this day made before me by (Officer Name), a peace officer employed by the (Law Enforcement Agency Name), that there is substantial probable cause for the issuance of the search warrant pursuant to Penal Code section (1524), you are therefore, commanded to make search at any time of the day, good cause being shown therefor, the premises, including all rooms, safes, storage areas, containers, surrounding grounds, trash areas, garages and outbuildings assigned to or part of the residence located at XXXX Bimly Avenue, Doway, California, County of San Diego, 9000; the residence is contained in a single story single family dwelling having a primarily light blue stucco exterior with avocado color wood trim, having the numbers "XXXX" located on the upper right corner of the attached garage; all rooms, desks, safes, storage areas, containers, and lockers assigned to the employee known as John XXXX at the business known as "XXXXX" located at XXXX Lera Street, Poway, California; the building is a white in color multi-story commercial building with the "XXXXX" written in orange on the north side of the building; and the vehicle, including the passenger compartment, trunk, engine compartment, living areas and all parts and containers therein or part of the vehicle described as an approximately 1990 Toyota automobile; the vehicle is primarily tan in color and bears California license plate number XXXXXXX, and is believed to be parked at or near the above described residence; for the following property, to wit: controlled substances, tranquilizers and other drugs including Rohypnol (also known as Flynitrazepam), and Gamma Hydroxy Butate (also known as GHB); any containers or packaging for the described drugs; to seize and analyze any glassware for the presence of such substances; clothing, including undergarments; jewelry including a gold bracelet; handwritings, fingerprints, papers, documents and effects which tend to show possession, dominion and control over said premises including keys, photographs, taped voice and/or video images, computer tapes or disks, pagers, anything bearing a persons' name, social security number, drivers' license number or other form of identification, including the interception of incoming calls during execution of the warrant, and if you find the same, or any part thereof, to bring it forthwith before me at the Municipal Court of the ______ Judicial District, County of _________, State of ______________, or to any other court in which the offense in respect to which the property or things is triable, or retain such property in your custody, subject to the order of this Court, pursuant to section (1536) of the Penal Code.

Given under my hand and dated this____ day of_____________, 200___

Time______________

_______________________________

Judge of the Municipal Court

County of_________________________

Dynamics of Sexual Assault

Acknowledgments

This section was written by Dr. Kimberly A. Lonsway, Research Director, National Center for Women & Policing

Much of the content for this module was developed on the basis of original contributions provided by Sergeant Joanne Archambault of the San Diego Police Department.

Other material was adapted from:

  • "Understanding Sexual Violence: The Judicial Response to Stranger and Nonstranger Rape and Sexual Assault." This material was produced by the National Judicial Education Program to Promote Equality for Women and Men in the Courts (a project of the NOW Legal Defense and Education Fund in cooperation with the National Association of Women Judges). It was funded by the State Justice Institute.

The National Center for Women & Policing would like to gratefully acknowledge the assistance of these individuals and organizations.

Summary

Where a vigorous woman alleges ravishment it is to be expected that signs of violence such as wounds, bruises and scratches will be present and their absence should induce a moderate degree of skepticism unless the girl avers that she fainted from fear, became panic stricken or was otherwise rendered incapable of physical resistance. The acts and demeanor of the female immediately after the alleged commission should be subjected to very critical investigation in these cases.

If one had to guess when this quote was written, it would probably not be surprising to hear that it appeared in 1970 -- in O'Hara's classic book entitled Fundamentals of Criminal Investigation. However, one might be surprised to learn that the following excerpt was written as recently as 1995, published by the International Association for Chiefs of Police.[26]

Generally, the actions and the appearance of a legitimate rape victim leave little doubt that a crime has been committed. Under such circumstances, the victim is highly agitated, emotionally distraught, often in a state of hysteria and may have sustained injuries, cuts, bruises or wounds. The victim's clothing is often ripped or torn off as evidence that it was forcibly removed and if the rape occurred outdoors, the victim is generally thrown to the ground and her outer garments stained or soiled. Questions may reasonably be raised concerning the validity of rape charges in which none or only a few of the above manifestations exist.

Clearly, "the more things change the more they stay the same." Much of the thinking about sexual assault has not changed in the last 20-30 years, because this thinking continues to reflect a number of myths and misconceptions about rape, rape victims, and rape perpetrators.

Myths/misconceptions of rape[27]

Some of the popular myths and misconceptions about sexual assault are reflected in these two excerpts. These assumptions express the characteristics that are commonly thought to differentiate "real rape" from cases that are somehow suspected of being false.[28] In other words, "real rape" is the stereotype that our culture has for what constitutes a legitimate sexual assault. "Real rape," in the minds of many people, is perpetrated by a stranger who jumps from the bushes with a knife in his hand and attacks a woman who is seen by everyone as being completely innocent.

Thus, if we were to complete the following sentence based on the cultural myths and misconceptions, we would report that:

  • Real rape"...

    • ...is perpetrated by a stranger

    • ...involves a great deal of physical violence.

    • ...leaves obvious signs of physical injury.

    • ...involves the use of a weapon

    • ...causes the victim to be hysterical.

    • ...is reported immediately to police.

    • ...is committed at night, in a dark alley, etc.

    • ...takes place "on the bad side of town."

    • ...is more likely to be committed by Black men.

    • ...is more likely to involve White victims.

    • ...cannot be perpetrated against a prostitute.

    • ...involves only penile-vaginal penetration.

Despite the popularity of these beliefs about "real rape," most sexual assault investigators would report that the case they handled most recently did not resemble the stereotype.

Reasons for the myths/misconceptions

So if the stereotypic rape isn't what police typically handle, why do police and the rest of society continue to believe the many myths and misconceptions about sexual assault? Why do we tend to think of sexual assault as perpetrated by a stranger, with a great deal of violence, at night, in a dark alley, etc.? There are a number of possible reasons for this, including the following:

  • Because the stereotype used to more accurately reflect the characteristics of reported rape.

  • Because the media portrays stereotypic cases.

  • Because we prefer to keep the issues "black and white."

  • Because we want to feel safe from threat of rape.

The stereotype used to more accurately reflect the characteristics of reported rape

Perhaps one reason why law enforcement and others think of rape in stereotypic terms is because the stereotype might have more accurately described the types of sexual assault cases reported to police in the past.

  • To illustrate, 70-80% of the sexual assaults reported to the San Diego Police Department between 1972 and 1976 were committed by strangers. In contrast, almost 80% of the sexual assaults reported in 1992 were committed by someone known to the victim.[29]

  • Similarly, only 17% of the sexual assaults reported to the Tucson Police Department in 1974 were committed by acquaintances, in comparison with 66% of those reported in 1999.[30]

Because a greater percentage of sexual assaults reported to police in the past were perpetrated by strangers, it is reasonable that investigative techniques would have developed primarily for use with these cases -- in which identification rather than consent is the primary issue. However, now that the majority of reported sexual assaults are perpetrated by someone known to the victim, investigative procedures focused exclusively on identification are outdated and inappropriate. In this modern context, it is necessary to emphasize investigative techniques designed to overcome a consent defense which is likely to be raised in cases where the victim and suspect know each other.

The media portrays stereotypic cases

Another potential reason why police officers and others have a stereotypic vision of "real rape" is because this is the type of assault portrayed in the media. For example, people are fascinated by high profile "blood and guts" cases such as John Wayne Gacy, Ted Bundy, and Jeffrey Dohmer. Even rape crisis centers have often focused on information that is designed to prevent attacks by a stranger, such as self-defense classes, home security, personal alarms, etc.

To illustrate, a female employee at the University of Illinois was raped and murdered by a co-worker several years ago. The primary response of campus and community officials was to install improved lighting and provide traditional safety education (e.g., advice not to walk alone at night). Such a response was completely inappropriate given the close acquaintance of the victim and her assailant, but it is common in communities that fail to address the real threat posed by known and trusted individuals.

We prefer to keep the issues "black and white."

A third reason that we tend to believe in the stereotypic version of "real rape" is because these cases have issues that are "black and white." They relieve us from having to sort through "he said, she said" testimony and avoid difficult decisions about truth, innocence, and guilt. These cases also allow us to think of sexual assault in ways that do not challenge widely accepted notions of men, women, and appropriate sexual behavior.

  • For example, the cultural script for sexual behavior dictates that men should be the aggressors and women the gatekeepers.

  • Long held notions about appropriate female behavior further suggest that women should not initiate sexual activity, and in fact should not generally participate without some resistance.

  • Hence we have the idea that women say "no" when they really mean "yes," out of fear of appearing promiscuous.

Unfortunately, these ideas about appropriate behavior for men and women in sexual situations make sexual assault more likely to occur. They tell us that men will be aggressive sexually and that women will refuse or resist -- but that this is all "part of the game" and should not be taken seriously. By continuing to hold the stereotype of "real rape," we therefore do not have to examine any of these assumptions or their problematic consequences. We can continue to believe that rape is perpetrated by crazed strangers in bushes and not be forced to examine the script for sexual behavior that is accepted by most people in our society.

We want to feel safe from the threat of rape

Finally, a prominent reason why we want to believe in the stereotypic rape is because it allows us to feel safe from the threat of victimization. If we believe that sexual assault only happens in very specific situations (i.e., at night in a dark alley), then we can avoid these situations and feel like "it could never happen to me (or someone I love)." Similarly, if we can convince ourselves that sexual assault only happens among other cultural groups (e.g., racial or ethnic groups), we can reassure ourselves that it cannot happen to us or someone we care about.

  • On the other hand, to accept that sexual assault happens in all kinds of situations, to all kinds of people, and is usually perpetrated by someone we know and trust - then it becomes more difficult to feel safe from the threat of rape victimization.

  • In fact, some have suggested that the recent public attention to sex offender registration has created a false sense of security in our communities. By focusing on identified sex offenders, we are perhaps tempted to overlook the greater risk posed to ourselves and our families by known and trusted individuals.[31]

Why do these myths/misconceptions matter?

Having discussed a number of the myths and misconceptions surrounding sexual assault, and the reasons why members of law enforcement and the rest of society tend to accept this stereotypic portrayal, there is a temptation at this point to ask, "so what?" Who cares if people have the wrong idea about sexual assault? Unfortunately, this is not just an issue of people having information that is somehow inaccurate. Rather, the things we believe about sexual assault affect how we as a society respond to it.

Victims are not believed

One unfortunate consequence of the stereotype of "real rape" is that it causes us to question the credibility of victims who describe an assault that does not fit the stereotype. Police officers - like the rest of society - have clear expectations for who rape victims are and how they behave, and it is not uncommon for them to state that they didn't believe a victim because she "just didn't look/act like a rape victim."

  • As discussed in reference to the two quotes at the beginning of this module, one of these expectations is that victims will be hysterical - so those victims exhibiting a more controlled style will often be viewed with suspicion.

  • Another expectation is that "real rape victims" will report their crime immediately to the police, so those who delay reporting are similarly suspected of fabricating their claims.

  • Finally, certain types of victims are often seen as less credible, because they are not seen as fitting the stereotype for who a rape victim should be (e.g., women of color, prostitutes, and women who are homeless or mentally ill).

Clearly, officers will never open their penal code books if they do not believe a particular account of sexual assault victimization. For this reason, one of the main ways that the myths about rape affect police investigation is by leading officers to doubt the claims of victims. If the officer doubts the victim, the police investigation may never get off the ground - or the investigation may be done poorly, rendering it unlikely to result in successful prosecution.

Cases are not investigated appropriately

If one were to question police officers, prosecutors, and even Sexual Assault Nurse Examiners (SANE's) about the type of evidence they look for in a sexual assault case, they would likely mention fingerprints, trace evidence (hair and fiber), biological evidence (semen and saliva), footprints, tire marks, etc. These are examples of identification evidence, because they are used to identify the suspect and challenge a defense based on identity ("you've got the wrong guy").

Even though these professionals know intellectually that the majority of sexual assault cases involve a known offender, police investigations continue to focus on these kinds of traditional identification evidence. In cases of nonstranger sexual assault, however, the suspect is not likely to deny sexual activity but will probably claim that it was consensual. Therefore, alternative forms of evidence are needed to demonstrate force, including:

  • Photographs of genital and non-genital injuries

  • Documented complaints of pain

  • Interviews with the first person to whom the victim disclosed the assault

  • Evidence of prior similar acts to corroborate a subsequent offense

  • Suspect statements made in a pretext/monitored phone call with the victim

  • Evidence from the scene to support a struggle or disturbance

  • Records of communications with dispatch personnel

When evidence such as this is not identified or collected, police investigation is unlikely to result in successful prosecution.

Thus, another primary way in which the myths affect police investigation is that officers approach nonstranger sexual assault cases as if their validity is suspect - or as if they were actually a stranger sexual assault case. In addition, given the critical importance of the victim in a sexual assault investigation, any communication of doubt or blame is likely to have negative consequences -- not only for the victim's well-being but also the quality of the evidence and subsequent strength of the case.

Officers must therefore have an accurate understanding of the dynamics of sexual assault to know how to strategize their investigation in a case involving nonstrangers. When officers understand the dynamics of acquaintance sexual assault, they are able to identify and collect the kinds of evidence that will successfully support prosecution and overcome a consent defense.

Offenders may repeat their crime

Ultimately, officers must have an accurate understanding of sexual assault dynamics in order to detect offenders and prevent them from repeating their crime. If perpetrators learn that it is easy to get away with rape, their behavior may escalate. For example, in one research study, interviews were conducted with 41 serial rapists. Taken together, the offenders had committed 837 known rapes and 401 attempted rapes. The earliest victims were younger siblings, neighborhood children, girlfriends, acquaintances, and spouses. Most of these assaults were never reported, which gives us a chilling picture of what can happen if offenders are not detected or prosecuted.[32]

Research on the Prevalence and Characteristics of Sexual Assault

Whereas the stereotypic rape that police officers and others picture is perpetrated by a stranger with a weapon in a dark alley - research indicates that the typical sexual assault is very different. For example, research clearly and consistently demonstrates that most sexual assaults are committed by someone known to the victim, that they do not involve a weapon or significant physical force, and that they do not result in physical injury to the victim. To better understand the dynamics of sexual assault, we therefore need to closely examine recent research that describes the various characteristics and dynamics of actual rape cases.

The National Violence Against Women Study (NVAWS)

Because the research in recent years has converged on very similar conclusions regarding the prevalence and incidence of sexual assault, we will discuss these characteristics using the most up-to-date national study (information from other studies will be provided in the footnotes). This project, referred to as the National Violence Against Women Study, was conducted in 1995-6 and co-sponsored by the National Institute of Justice and the Centers for Disease Control.

  • The research was conducted using a telephone survey with random digit dialing of households in all 50 states and the District of Columbia.

  • 8,000 women and 8,000 men were over age 18 were surveyed, with behavioral questions used to determine the prevalence and incidence of sexual assault victimization.

Thus, survey respondents were asked a number of behavioral questions such as the following:

Has a man or boy every made you have sex by using force or threatening to harm you or someone close to you? Just so there is no mistake, by sex we mean putting a penis in your vagina. [For female respondents only][33]

As evident in this question, survey respondents were asked only about specific behaviors that they had experienced and were not asked to indicate whether they had ever been "raped" or "sexually assaulted."

How many people are sexually assaulted?

The first and most obvious question that can be answered with this research methodology is how often sexual assault happens. Clearly, the cultural stereotype is that "real rape" is a very rare event. The myths tell us that rape is a deviant event, only committed by a small number of sick individuals. This belief is maintained with the help of other myths which state that women fabricate charges. Thus, the myth states that "real rape" doesn't happen very often because many of the claims are actually made by women who are lying. In contrast, the research indicates that sexual assault is a very common occurrence in our society.

  • According to the National Violence Against Women Study, approximately 1 out of 6 women (18%) and 1 of 33 men (3%) in the U.S. experience an attempted or completed rape sometime during their lives.

  • Translated to annual estimates, this means that every year, approximately 302,100 women and 92,700 men in the U.S. are the victims of attempted or completed rape.[34]

The primary implication of these statistics is simply to counteract the commonly held belief that rape is a rare event. Officers must understand that sexual assault is a frighteningly frequent occurrence in our society, and that it involves a very wide range of people and circumstances.

Although the Uniform Crime Reports (UCR) and National Crime Victimization Survey (NCVS) are often used to describe the prevalence and characteristics of sexual assault, these data collection efforts have a number of serious limitations as described in the appendix.Not only can the research tell us a great deal about how often rape happens, but it can also help us to understand the characteristics of assaults. For example, when asked about their most recent victimization, the National Violence Against Women Survey reported the following.

Most sexual assault victims are female.

Of the individuals reporting rape victimization in the National Violence Against Women Survey (either completed or attempted), 85% were female and 15% were male. Clearly, the majority of people victimized by sexual assault are women.[35] This is certainly consistent with the stereotype of rape - suggesting that it involves a female victim -- but officers must always remember that men can be sexually assaulted and that this should never be seen as cause for suspicion.

There is perhaps even greater stigma facing these male victims, and officers must keep this in mind at all times. Among the most prominent concerns among male victims is the idea that sexual assault victimization threatens their masculinity and/or heterosexuality.

Most sexual assault perpetrators are male.

When describing their most recent victimization in the NVAWS, fully 100% of the female victims report that they were raped by men.[36] In addition, .3% of the female victims were assaulted by women (these numbers sum to more than 100% because some victims had multiple perpetrators). Thus, although a majority of sexual assault victim are women, an even larger majority of sexual assault perpetrators are men.

Most victims are sexually assaulted by someone they know.

Of the women reporting rape victimization in the NVAWS, only 16.7% were victimized by a stranger. In comparison, 61.9% of the women were assaulted by an intimate partner, 6.5% by a relative, and 21.3% by an acquaintance.[37] Contrary to what police and society tend to believe, the research consistently demonstrates that most female victims are sexually assaulted by someone they know.[38]

One of the most immediate cues for police suspicion in a sexual assault case has historically been the existence of a relationship between the victim and suspect. However, given that most female sexual assault victims know their perpetrator, this is clearly inappropriate. The existence of a relationship between victim and suspect is the norm, and should never be seen as cause for doubting the validity of a claim.

Most sexual assaults do not result in visible physical injury

Only about 1 of 3 female rape victims and 1 of 6 male rape victims reported visible physical injuries resulting from attempted or completed sexual assault.[39] This is clearly contrary to the stereotype that "real rape" involves a great deal of physical violence and visible injury.

Officers must therefore keep in mind that an absence of physical injury should never be seen as cause for suspicion. Most rape victims do not sustain any visible physical injury.

Unfortunately, research also indicates that most rape victims who sustain physical injuries do not receive medical care. Female victims of attempted or completed rape in the NVAWS who were physically injured received any kind of medical care in approximately one-third of the cases.[40] Officers must therefore make sure to encourage victims to receive medical care regardless of whether any visible physical injury is evident.

The National Women's Study (NWS)

Although the National Violence Against Women Study provides some of the best estimates for rape prevalence/incidence, the National Women's Study (often referred to as the "Rape in America Study") provides more detailed information regarding the victims, perpetrators, and characteristics of the sexual assault crime.[41] Among the conclusions from this more detailed study are the following:

Many women are repeatedly victimized by rape.

Over one-third of the women in the NWS who were raped had actually been victimized more than once during their lifetime. This is often seen as a controversial issue because it means that some women are repeatedly victimized. However, it makes sense when we understand that perpetrators select a target on the basis of their vulnerability. It is likely that these same vulnerability factors will also be seen by others who are seeking a target to assault. For example, women who are homeless or mentally ill are at increased risk of victimization because of their vulnerable status in society. Moreover, because these women are vulnerable throughout their lives, they are more likely than other women to experience repeated victimization.

The fact that a sexual assault victim reports previous victimization should not be seen as a reason for doubting the validity of her story. In fact, repeated victimization is common. As described in the module on victim interviewing, however, caution must be taken to ensure that details from the recent assault are not confused with those from the prior victimization.

Most female rape victims are under 24 years old.

At the time of their rape, about one-third of the victims in the NWS were younger than 11, one-third were 11-17, and one-quarter were 18-24. Thus, 84% of the rape victims were under 25 years old and only 13% were 25 years old or above. These statistics led the researchers to conclude that rape is primarily a "tragedy of youth."

To complicate matters, many of these adolescent victims are engaged in high risk life styles. For example, some are runaways, many have emotional problems, and others engage in promiscuous sex or substance abuse. It is not surprising that rapists prey on these vulnerable targets, but these factors nonetheless harm the credibility of the victim.

Most rape victims do not report to police.

For a number of reasons, only 16% of the rape victims in the National Women's Study reported their assault to police. Of these, only one-quarter reported the rape within 24 hours. In other words, most victims do not report their rape to the police and when they do it is usually after some delay. This is clearly in contrast with the stereotype that "real rape" is reported immediately to police, and it directly challenges the idea that nonreporting or delayed reporting suggest that the complaint might not be valid. When asked why they did not report their assault to the police, 43% of the respondents indicated that they thought nothing would be done, 27% felt it was a private matter, 12% were afraid of the police response, and 12% felt it was not important enough to report to police.

Officers must always keep in mind that most rape victims do not report to the police - and that most victims who do report typically do so after some delay. Therefore, these factors should never be used as cause for suspicion regarding the validity of the victim's claim. Rather, nonreporting and delayed reporting are the norm.

Conclusions from Other Research

Most rapes do not involve a weapon.

Other research reveals that -- contrary to the stereotype -- most rapes do not involve a weapon, and this is especially true for rapes committed by nonstrangers. For example, the Bureau of Justice Statistics report that a weapon is used in an estimated 30% of stranger rapes and only 15% of rapes committed by someone known to the victim.[42]

Again, officers must keep this in mind because the fact that a weapon was not used should never be seen as cause for suspicion. Most rapes do not involve a weapon, and this is especially true for assaults by a known offender.

It is important to note that even though the typical rape does not involve a weapon or physical violence, almost half (49%) of victims in the National Women's Survey stated that they were afraid of serious injury or death. This statistic goes a long way to explain why little force or resistance is typically involved in sexual assault - victims often submit because they are afraid, confused, taken by surprise, etc.

Most rapes involve alcohol and/or drug use.

In one study of college students, 75% of men and 50% of women involved in a sexual assault had been drinking at the time.[43] In another study, more than half of the male college students who admitted to sexually aggressive behavior (59%) said that they did so by giving drugs or alcohol in order to obtain sex from an unconsenting woman.[44]

Unfortunately, when it comes to alcohol (and other drugs to a lesser extent) there is a double standard clearly in place for men versus women.

  • Research indicates that drinking is often used as an excuse or justification for the perpetrator's behavior, whereas drinking on the victim's part is held against her. Men who drink are expected to lose control.

Women who drink to excess, however, are often held responsible for the man's behavior as well as her own.

Officers must keep this in mind to avoid falling into the same trap.

Alcohol or drug use cannot legally be used by an offender as an excuse for criminal behavior. On the other hand, alcohol or drug use by the victim should never be used as a basis for doubting a report of sexual assault. In fact, it makes sense that a large percentage of victims would describe alcohol or drug use before the assault since this contributes to the vulnerability that offenders see and take advantage of.

Conclusions

To summarize, there are a number of myths and misconceptions that are commonly held about sexual assault among both the police and public.

  • Cultural myths tell us that "real rape" is perpetrated by a stranger, with a weapon, at night, in a dark alley, etc.

  • There are a number of reasons why we want to believe these things about rape, but it is imperative for police officers to have an accurate understanding of the dynamics of sexual assault.

  • Law enforcement personnel must understand the dynamics of sexual assault so they can appropriately plan and conduct their investigation.

The tragic irony is that many police officers use the very characteristics that are typical of most rapes as cause for suspicion.

  • To illustrate, even though most sexual assaults are committed by acquaintances, officers have historically been more suspicious of these claims than those involving stranger rape.

  • Similarly, although most sexual assaults involve very little physical violence and no obvious signs of injury, these are also often seen as cause to doubt the validity of the claim.

Clearly, all sexual assault claims - like those for any other type of crime - should be assumed to be valid and investigated accordingly. Claims should only be considered false when the evidence establishes this fact. (This issue will be discussed in greater detail in the section on unfounded cases and false allegations).

How dynamics influence the investigative strategy

Officers and investigators also need to understand how the dynamics of sexual assault affect their investigative approach. For example, even though the stereotype suggests that "real rape" is perpetrated by a stranger, the research clearly indicates that the majority of sexual assaults are committed by someone known to the victim.

  • These known offenders are more likely to raise a consent defense rather than one of identity, so officers must frame their investigation as one designed to address issues of consent.

  • Identification evidence should still be identified and collected, of course, but the emphasis in these investigations should be placed on the types of evidence that demonstrate force or lack of valid consent.

  • In addition, sexual assaults are typically not reported, and those victims who do report usually do so after some delay. Officers and investigators must realize that these factors are typical of sexual assault and adjust their investigative approach accordingly.

The rest of this curriculum will provide ideas for how to approach these investigations, but they will only be effective if used with a full and accurate understanding of the dynamics of sexual assault.

Criminal Justice Statistics : The UCR and NCVS

Now that we've carefully discussed rape statistics and how to evaluate the methodology used to produce them, we can briefly examine the two data collection efforts most familiar to criminal justice personnel - the UCR and NCVS.

Uniform Crime Reports

Uniform Crime Reports (UCR) are submitted by law enforcement agencies and compiled by the FBI to document and describe reported instances of "forcible rape." For the purposes of the UCR, forcible rape is defined as "the carnal knowledge of a female forcibly and against her will. Assaults or attempts to commit rape by force or threat of force are also included; however, statutory rape (without force) and other sex offenses are excluded." The UCR statistics are published annually by the Bureau of Justice Statistics and are available at the FBI website (www.fbi.gov/about-us/cjis/ucr/ucr) and the NCJRS website (www.ncjrs.gov/).

Strengths of the UCR

The primary strength of the UCR is that the FBI is seen as a credible source for information on cases reported to local law enforcement. The UCR thus gives a reasonable estimate of the number of incidents - fitting the rather narrow definition above - that are reported to police.

Limitations of the UCR

The primary limitation of the UCR is that it captures information only on sexual assaults that are reported to law enforcement and then submitted to the FBI. As we know, the majority of sexual assaults are never reported to the police, so the UCR seriously underestimates the actual occurrence of victimization. A second limiting factor is the narrow and confusing definition for sexual assault. The estimates are further restricted by the exclusion of male victims.

There are also a number of departmental factors that limit the quality of information captured in UCR statistics. For example, many departments do not separate the types of sexual assaults (e.g., penile-vaginal intercourse versus other types of penetration) and this further complicates the record keeping process. In addition, participation in the UCR is voluntary for police jurisdictions, and so many fail to submit statistics. This is often due to political reasons and/or limited resources among certain departments.

The National Crime Victimization Survey

The National Crime Victimization Survey (NCVS) is conducted by the U.S. Department of Justice, in order to determine the incidence and prevalence of crime. The NCVS was begun in 1972 and designed to complement the information on reported crimes compiled by the FBI in the Uniform Crime Reports. The NCVS is based on interviews, conducted both on the telephone and in person, with more than 100,000 individuals from a national sample of 50,000 households.

The NCVS asks respondents aged 12 and older about any crimes they may have experienced, and whether or not the crime was reported to a law enforcement agency. Prior to 1993, the NCVS did not specifically address sexual assault, so estimates were based only on those crimes described without any prompting on the part of the interviewer. Since 1993, the NCVS uses revised wording that does specifically address both rape and sexual assault - as defined below -- and the estimates regarding prevalence are now about four times higher than they were before the redesign. NCVS data is reported in several publications that are available at the NCJRS website: www.ncjrs.org.

Definitions of rape and sexual assault

The definition of rape used by interviewers was: "Forced sexual intercourse and includes both psychological coercion as well as physical force. Forced sexual intercourse means vaginal, anal or oral penetration by the offender(s). This category includes incidents where penetration is from a foreign object such as a bottle."

The definition of sexual assault used by interviewers was: "a wide range of victimizations, separate from rape or attempted rape. These crimes include attacks or attempted attacks generally involving (unwanted) sexual contact between victim and offender. Sexual assaults may or may not involve force and include things such as grabbing or fondling. Sexual assault also includes verbal threats."

Strengths of the NCVS

The strengths of the NCVS include the extremely large sample, and its representativeness of the national population. The combination of interviews conducted on the telephone and in-person also contributes to the strength of the study because they allow confidence in the quality of information gathered from participants. The fact that prevalence is estimated from victims rather than the criminal justice system is also a strength of the NCVS, because it includes both reported and unreported incidents. Similarly, the inclusion of both attempted and completed assaults means that a broader view of victimization is represented. Finally, the fact that the NCVS is conducted by the federal government lends it credibility and the appearance of objectivity.

Limitations of the NCVS

The primary limitation of the NCVS is the language used to ask about victimization. Because participants are explicitly asked about "rape" and "sexual assault," this might limit the responses of those who do not label their experiences as constituting criminal victimization. The definitions provided above are only read to participants if they ask for clarification of the terms "rape" or "sexual assault." Otherwise, participants are left to define these terms for themselves and determine whether their experiences match with these definitions. Of further concern is the fact that the definitions provided do not correspond with legal definitions of rape used throughout the country.

Note: Critiques of the UCR and NCVS methodology are found in Koss (1992) and Koss (1993).

References

National Violence Against Women Survey

Tjaden, P. & Thoennes, N. (1998). Prevalence, incidence, and consequences of violence against women: Findings from the National Violence Against Women Survey. National Institute of Justice: Washington, DC.

National Women's Study

National Victim Center (1992). Rape in America: A report to the nation. National Victim Center: Arlington, VA.

National Crime Victimization Survey

Bachman, R. & Saltzman, L.E. (1995). Violence against women: Estimates from the redesigned survey. Bureau of Justice Statistics: Washington, DC.

Other References

Brenner, N.D., McMahon, P.M., Warren, C.W., & Douglas, K.A. (1999). Forced sexual intercourse and associated health-risk behaviors among female college students in the United States. Journal of Consulting and Clinical Psychology, 67, 252-259.

Estrich, S. (1987). Real rape. Harvard University Press: Cambridge, MA.

Hazelwood, R.R., Rokous, F.E., Hartman, C.R., & Burgess, A.G. (1988). Serial rapists and their victims: Reenactment and repetition. Annals of the New York Academy of Sciences, 528, 277-295.

International Association of Chiefs of Police (1995, February). Sexual assaults: Concepts and issues paper. International Association of Chiefs of Police: Alexandria, VA.

Koss, M.P. (1992). The underdetection of rape: Methodological choices that influence incidence estimates. Journal of Social Issues, 48, 61-75.

Koss, M.P. (1993). The scope of rape: A review of prevalence research methods. Journal of Interpersonal Violence, 8, 198-222.

Koss, M.P. & Cook, S. (1993). Facing the facts: Date and acquaintance rape. In R. Gelles & D. Loeske (Eds.). Controversies in Sociology. Sage Publications: Newbury Park, CA.

Koss, M.P. (1988). Hidden rape: Incidence, prevalence, and descriptive characteristics of sexual aggression reported by a national sample of postsecondary students. In A.W. Burgess (Ed.), Rape and sexual assault (Vol.2). Garland Publishing Co.: New York. (pp.3-25).

Koss, M.P., Gidycz, C.J., & Wisniewski, N. (1987). The scope of rape: Incidence and prevalence of sexual aggression and victimization among a national sample of students in higher education. Journal of Consulting and Clinical Psychology, 55, 162-170.

Koss, M.P. & Oros, C.J. (1982). Sexual experiences survey: A research instrument investigating sexual aggression and victimization. Journal of Consulting and Clinical Psychology, 50, 455-457.

Merrill, L.L., Newell, C.E., Milner, J.S., Koss, M.P., Hervig, L.K., Gold, S.R., Rosswork, S.G., & Thornton, S.R. (1998). Prevalence of premilitary adult sexual victimization and aggression in a Navy recruit sample. Military Medicine, 163, 209-212.

O'Hara, C. (1970). Fundamentals of criminal investigation. Charles C. Thomas: Springfield, IL.

Warshaw, R. (1994). I never called it rape: The Ms. Report on recognizing, fighting, and surviving date and acquaintance rape (2nd ed.). Harper & Row: New York..

Forensic Examination

Acknowledgments

This section was written by Dr. Kimberly A. Lonsway, Research Director, National Center for Women & Policing

Most of the content in this module was adapted from:

  • "Sexual Assault Nurse Examiner (SANE): Development & Operation Guide (1999). Written by Linda E. Ledray. of the Sexual Assault Resource Service of Minneapolis, Minnesota. Produced by the Office for Victims of Crime, U.S. Department of Justice (Grant #96-VF-GX-K012).

  • Original contributions provided by Detective Sergeant Joanne Archambault of the San Diego Police Department.

Additional content was developed on the basis of material from the following sources.

  • "Police Response to Crimes of Sexual Assault: A Training Curriculum." Written by Sharon M. Hunter, Bonnie R. Bentley Crewe, and Jamie L. Mills. Produced by the Connecticut Sexual Assault Crisis Services, Inc. Funded by Police Officer Standards and Training Council and STOP Violence Against Women Grant #VAW9606.

  • "Model Guidelines and Sex Crimes Investigation Manual for Illinois Law Enforcement." Produced by the Illinois Law Enforcement Training and Standards Board and Illinois Coalition Against Sexual Assault.

  • "The Medical Examiner's Role in Sexual Assault Response." Training program developed by Dr. William Green and Dr. Marilyn Kaufhold of the California Medical Training Center. Funded by the California Office of Criminal Justice Planning.

  • "Promising Practices: Improving the Criminal Justice System's Response to Violence Against Women." Written by Mary B. Malefyt, Kristin M. Littel, and Alexandra H. Walker. Edited by Joan Kuriansky. Produced by the Technical Assistance Project of the STOP Violence Against Women Grant Program.

The National Center for Women & Policing would like to gratefully acknowledge the assistance of these individuals and organizations.

Summary

Too often, sexual assault results in a case of one person's word against another in court - essentially a legal "he said, she said" with little or no physical evidence to corroborate the victim's story of what happened. Unfortunately, this situation increases the already existing tendency to focus solely on the victim's credibility when making judgments about the assault.

Although the techniques we've already described will go a long way toward overcoming challenges to the victim's credibility, there is nothing so powerful as physical evidence in corroborating the victim's account of events. For example, one study has demonstrated that sexual assault cases are approximately twice as likely to be prosecuted if a forensic examination was conducted with the victim.[45]

  • This demand for physical evidence is certainly not unique to sexual assault. In a burglary case, evidence will be collected at the crime scene as officers attempt to document the event and identify the perpetrator.

  • In a sexual assault case, however, the victim's body is the most important source of physical evidence. The victim is, in essence "a walking and talking crime scene." Often, the only thing standing between an officer and another case of "he said, she said" is the evidence recovered from the victim's body during a forensic examination.

  • Another unique aspect of the forensic examination is that medical personnel act as an agent of the police investigation. A medical professional will collect the forensic evidence in a sexual assault case, both because of the intimate nature of this evidence and because a great deal of special expertise is required to conduct a thorough, meaningful examination.

We'll talk in detail about the evidence that is collected during the forensic exam - as well as exploring what can and cannot be concluded on the basis of this evidence. In general, however, evidence collected in the forensic exam can be used for four primary purposes:

  • To identify the assailant

  • To confirm recent sexual contact

  • To establish force or threat

  • To corroborate the victim's story

Most of the evidence collected in a forensic examination serves to identify the assailant. For example, DNA evidence collected from blood, saliva, semen, and other biological samples will identify the suspect with a great deal of certainty. In addition, other associative evidence such as hair or fibers can serve to assist in the identification of a suspect.

Proof of sexual contact includes the examination of all orifices that the victim indicates were involved in the assault. In specific, the forensic examiner will look for redness, soreness, or other signs of physical trauma to corroborate that sexual contact occurred. Swabs will also be collected to identify seminal fluid from orifices in which the victim indicates there was penile penetration - or saliva from sites where the victim indicates that the suspect's mouth came into contact. In addition to a written description, a colposcope can be used to magnify and photograph genital microtrauma that serves as an indicator for recent sexual contact and penetration.

As for the third purpose, evidence to establish the presence of force or threat will include:

  • The victim's verbal account of the incident during the medical interview

  • Written documentation of genital and non-genital injuries

  • Pictures of injuries

  • Torn or soiled clothing

  • Positive toxicology tests for drugs present in the blood or urine (in cases of drug-facilitated sexual assault)

Finally, all of the evidence collected in a forensic examination can used to either corroborate or clarify the victim's account of the assault. Ultimately, the forensic examiner will conclude whether the forensic evidence is consistent with the victim's description of events.

The importance of the victim interview in interpreting forensic evidence

These purposes can be met with forensic evidence, but only if it is interpreted within the context of the victim's account of the assault. It is therefore critical that this module on the forensic examination be considered along with the previously provided information on victim interviews.

  • For example, if the victim indicates to medical personnel where the suspect licked or kissed her body, these sites become crucial to swab for the presence of saliva. If the suspect's saliva is indeed found at these locations, moreover, this provides powerful evidence that the assault took place as described by the victim.

The interview can thus suggest locations on the victim's body where valuable evidence might be recovered. In addition, evidence collected in the forensic exam might suggest additional areas of inquiry to explore with the victim.

  • For example, victims occasionally disclose penile-vaginal penetration in their initial interview with police or medical personnel, while withholding information on other types of penetration that are seen as especially embarrassing or humiliating (e.g., sodomy or oral copulation).

  • The interviewer should thus always ask whether the offender committed sexual acts other than those already described by the victim.

Clearly, a forensic examination must be conducted in strict accordance with the guidelines provided in materials such as the Sexual Assault Nurse Examiner manual developed by Linda Ledray[46]. However, it is not enough to simply conduct a thorough forensic exam. These procedures must be performed along with a comprehensive victim interview in order to guide the interpretation and meaning of any forensic evidence obtained.

Traditional problems with the forensic examination

Despite the obvious importance of a forensic examination in the investigation of sexual assault, there have been a number of historic problems limiting both their value for law enforcement and their sensitivity toward victims. For example, sexual assault victims rarely require emergency medical attention. In a traditional medical setting that utilizes a triage system, sexual assault victims are thus given relatively low priority in receiving care. Patients coming into the emergency room with cardiac arrest, gunshot wounds, and other emergencies take priority over victims of sexual assault, which can leave them languishing for hours in the waiting room.

  • For victims, this can be a terribly upsetting experience, particularly if they have been advised not to eat, drink, or urinate until after the examination is complete. The situation also compromises their right to privacy and confidentiality, and may deter some victims from receiving the care they need. It may even erode the victim's confidence and trust in the community response system, which can negatively affect their cooperation with police and prosecutors.

  • For law enforcement, this wait is frustrating because it contributes to the loss or deterioration of evidence. It also means that the officer is spending unnecessary time waiting, rather than investigating the case or clearing to go back into service.

Other problems traditionally associated with the forensic examination include:

  • Examiners who are insensitive or improperly trained

  • Examiners with insufficient experience to maintain their proficiency

  • Failure of examiners to recognize, properly collect, or preserve evidence

  • Failure of examiners to recognize and document subtle physical findings

  • Lack of appropriate equipment to conduct a thorough examination (e.g., colposcope)

In addition, many examiners are reluctant to perform a forensic examination, out of concern that they will be called to testify regarding the evidence obtained.

Coordinated community response

In response to this situation, cooperative community models have arisen for providing better and more coordinated services to victims.

  • For example, some communities have implemented an interdisciplinary response system commonly referred to as the SART (Sexual Assault Response/Resource Team) model.

  • Others (who may or may not use the SART model) also employ nurses with specialized forensic training to conduct the examination and provide testimony in court. These nurses are usually termed Sexual Assault Nurse Examiners (SANE).

Both of these models are discussed at greater length in the module on coordinated response.

The Forensic Examination

When to obtain a forensic examination

Generally, law enforcement should obtain a forensic examination of the victim if the sexual assault occurred within the previous 72 hours. Officers should also request a forensic examination beyond 72 hours if the victim is still experiencing pain, bleeding, describes an unusual amount of force, or reports ejaculation without cleanup.

  • Traditionally, law enforcement officers were trained to determine whether the assault involved penile/vaginal penetration and ejaculation to evaluate the need for a forensic examination. Officers must understand, however, that this standard no longer applies.

  • A forensic sexual examination should always be obtained if the sexual assault occurred within the last 72 hours. This is true regardless of the type of penetration, even when the contact is minimal (e.g., oral contact, digital penetration).

  • Depending on the circumstances of the assault, this could even include attempted assaults. For example, the suspect may have kissed or sucked the victim's breasts but not completed penetration or ejaculation. The saliva evidence will still be critical to obtain, in order to identify a suspect and/or corroborate the victim's account of what happened.

How the forensic examination process is initiated

When law enforcement is called to the scene of a sexual assault, they will protect the victim from further harm, secure the crime scene, and take a limited statement from the victim to determine if a sex crime was committed.

  • At this point, either the responding officer or communications personnel should call emergency room staff who will then contact the forensic examiner (nurse, physician, or SANE) and rape crisis advocate who is on call.

  • By notifying the hospital or clinic that they are on their way, the facility can be prepared to receive the victim and officer. The forensic examiner can also prepare for the process of interviewing and examining the victim.

  • Similarly, the rape crisis advocate can be dispatched to arrive as soon as possible and assist the victim throughout the medical and police procedures.

  • When the police and victim arrive at the hospital, medical staff will determine if the victim should receive emergency room evaluation by a physician or begin the forensic examination.

If a victim originally presents to the emergency room, law enforcement should be called immediately to determine if a crime has been committed. If the elements of a crime have been established and the criteria for a forensic examination have been met, the rape crisis advocate and forensic examiner should be contacted. In a limited number of communities, a prosecuting attorney also responds to the hospital or clinic as a member of the response team.

In many areas, the police are called initially to certify that a crime has been committed. In these locales, the hospital is compensated for the medical evidentiary exam only if there is an accompanying police statement certifying that there was a crime.

Before the examination is conducted, law enforcement personnel should consult with the forensic examiner to share information about the case. This allows both professionals to maximize their knowledge of the case and promotes comprehensive evidence collection based on the victim's account of events.

Explaining the examination to victims

Before the forensic examination is conducted, it is important that the victim understands all of the following aspects of this process. Although these issues will typically be discussed by the forensic

examiner and/or rape crisis advocate, law enforcement personnel must also be prepared to address them with the victim. These issues include:

  • The importance of forensic evidence and the need to collect it as soon as possible

  • The fact that the cost of the exam will be covered if the victim meets certain criteria (or in those states where law enforcement is required to pay for all evidentiary examinations)

  • General information regarding the process of forensic evidence collection

  • The role of each professional involved in the forensic examination process, including law enforcement, medical personnel, and the rape crisis advocate

  • What to expect after the crime is reported to the police

  • That the victim's clothing may need to be collected if it was worn during or immediately after the assault

  • That the victim's name will not be a matter of public record and will not be included in any media reports unless she wants it to be

  • The extent of confidentiality in communications with each of the professionals involved (e.g., forensic examiner, law enforcement, rape crisis advocate)

  • The right of the victim to refuse to cooperate with any aspect of the evidence collection or medical procedures

Law enforcement must also be aware of the state laws governing informed consent, especially with respect to complicating factors such as victim age, disability, or psychosis.

Addressing the victim's reluctance to report

If the victim is unsure or unwilling to make a formal statement to police about the assault, professionals involved in the team response should reiterate the importance of immediately collecting evidence. This is true even if the decision regarding police involvement is made at a later date.

  • The medical facility or law enforcement agency may even be able to store the evidentiary kit for a specified period of time (usually 1 month) while the victim makes a decision regarding whether or not to participate in the criminal justice process.

  • The victim will also be informed of her right to report at a later date and the procedures for doing so.

If an evidentiary examination is not completed for whatever reason, the forensic examiner can still treat any injuries, provide medications to prevent STD's, evaluate her risk for pregnancy, and administer emergency pregnancy interception (within 72 hours of the assault). In some cases, the forensic examiner may refer the victim elsewhere to receive these services. The forensic examiner and/or rape crisis advocate will also provide referrals for follow-up medical care and counseling, as well as providing the victim with written information regarding follow-up care.

Components of a forensic examination

Once the victim has provided informed consent, the forensic examination will begin. Whether conducted by a SANE, physician, or other nurse, this examination will be completed according to established protocol. The forensic examination includes these general components:

  • Comprehensive medical interview

  • Collection of forensic evidence

  • Evaluation of risk and prophylactic treatment of STD's

  • Evaluation of risk and emergency pregnancy interception

  • Crisis intervention and referrals[47]

An uncomplicated exam, without injuries, will generally take 2 to 4 hours to complete.[48]

Medical care for injuries

After obtaining informed consent, the emergency department or clinic staff will first assess the sexual assault victim for serious injury. If the injuries are life threatening or require immediate medical treatment, these will obviously receive attention before forensic evidence collection. However, this occurs with less than 4% of sexual assault victims.[49]

Comprehensive medical interview

Once any immediate medical needs are addressed, the forensic examination will begin. When the officer arrives at the facility, he/she must brief the examiner about the facts of the assault as they are known. The examiner will then need to obtain a complete history from the victim. This will include determining whether the victim is postmenopausal, and whether she has had children or gynecological surgery.

It will also include questions about the assault, such as:

  • When and where the assault took place

  • Prior sexual experience

  • The type of sexual acts perpetrated by the suspect(s)[50]

  • Whether ejaculation occurred and where

  • Whether a condom or lubricant was used

  • The position of the victim and suspect at the time of the assault

  • Ingestion of any drugs or alcohol within the previous 12 hours

  • A description of the type of force used

The forensic examiner must also ask the victim whether she had consensual sex with a partner within the previous 72 hours. If so, many of the same questions will need to be asked about the prior consensual activity.

Although the history obtained by the examiner is comprehensive, its focus should be on the sexual assault incident and not the surrounding events (e.g., pre- or post-assault behavior).

  • It is critical that the examiner not attempt to conduct the type of interview required by a police investigator. This will subject the victim to more questioning than is necessary.

  • In addition, joint interviews should be conducted whenever possible in order to reduce the questioning and potential for discrepancies in the reports of police and medical professionals.

Types of Forensic Evidence

Although some states have standardized their protocol, there remains significant variation in the evidence collection procedures in the forensic examination. However, the following are provided as guidelines. For each type of evidence, the specific purpose is noted both in the title and described in the text; these include identifying the assailant, confirming recent sexual contact, establishing force or threat, and corroborating the victim's story.

DNA evidence (identification)

The use of DNA evidence is a recent technology used primarily in the criminal justice system to identify an assailant. Preferred DNA collection procedures may vary as a result of laboratory processing. However, all require a comparison sample to be collected from the victim.

  • Most jurisdictions require that blood must be drawn from the victim to distinguish her DNA from any foreign DNA recovered from her body or other crime scene evidence from clothing, bedding, etc.

  • Alternatively, cell scrapings can be collected from the side of the victim's mouth (using a buccal swab) to distinguish her DNA from that of her assailant.[51]

These DNA standards from the victim are typically collected at the time of the initial forensic examination, however, some jurisdictions do not collect them unless/until they become necessary during the process of investigation and subsequent prosecution. They are then compared with any DNA evidence collected from the victim, suspect, and crime scene.

  • DNA evidence can be obtained by collecting any available biological evidence that could have come from the assailant and remained on the skin or clothing of the victim.

  • If the victim reports that she scratched the assailant, fingernail scrapings (or swabbings if the nails are too short for scrapings) should be collected for potential DNA or trace evidence. Although many jurisdictions collect fingernail clippings, there is some concern that this is invasive and adds no evidentiary value to the scrapings or swabbings.[52]

  • DNA from semen can also be obtained by swabbing the orifices involved in the sexual assault with a standard size cotton swab.

  • A swab should also be used on any part of the body that the suspect might have licked, sucked, kissed, or bitten.

Finally, any dried or liquid foreign matter on the body or clothing should be collected for DNA evidence.[53]

Hair evidence (identification)

The primary use of hair evidence is to identify the assailant. While obtaining foreign hair samples is relatively common, they are often not analyzed because they are less reliable for identification purposes than DNA evidence. Hair samples can only be used to make the most general of distinctions between people; they cannot identify a suspect with any degree of certainty as with DNA evidence.

  • When foreign hair is collected and analyzed, samples must also be available from the victim for comparison purposes. There is some controversy, however, regarding how and when to collect these samples.

  • For example, some examiners always pluck (or ask the victim to pluck) 15 to 20 head hairs and pubic hairs as a part of the evidentiary exam. Others cut hairs rather than pluck[54]. Because the victim's hair may change due to perming, dyeing, or other treatment, many crime labs require that a sample of the victim's hair be collected at the time of the initial forensic examination.

  • Still other examiners do not collect samples of the victim's hair as a routine part of the evidentiary exam because collection is uncomfortable and because hair is retrievable from the victim at a later date if it is needed.[55] If the hair evidence is not available later, either because the victim cannot be located or will not cooperate with law enforcement, it is unlikely that the case will move forward - with or without the hair evidence.

With the suspect, hair evidence should always be collected by plucking (either by the examiner or suspect), as law enforcement may have difficulty locating him later if he flees

Seminal fluid evidence (identification, sexual contact, corroboration)

Seminal fluid evidence is used for two primary purposes: to identify the assailant and to confirm that recent sexual intercourse occurred. It can also be thought of as corroborative evidence if the presence of seminal fluid is consistent with the victim's account of events. However, a percentage of rapists are sexually dysfunctional and others wear condoms or withdraw before ejaculation, so it is important to remember that the absence of seminal fluid does not disprove recent sexual intercourse.[56]

  • Seminal fluid evidence is analyzed by crime laboratory personnel for spermatozoa and for acid phosphatase (ACP). ACP is actually an array of related isoenzymes which is found in much greater concentration in semen than in any other body fluid.[57] A high level of ACP in vaginal secretions would therefore indicate that there has been recent sexual contact with seminal fluid left in the vagina.[58]

  • Cases negative for sperm and positive for ACP typically indicate an assailant who has had a vasectomy, but this result is also possible in cases involving an assailant who is a chronic alcoholic or due to other reasons.[59]

Motile sperm can typically be recovered from the victim's vagina if specimens are collected within 8 hours of the sexual assault. It is also common to recover intact, nonmotile cells from the vagina up to 16 hours following intercourse; and less commonly as long as 144 hours afterward.[60]

Sperm has even been found in the postmortem vagina up to 16 days after death. In this case (investigated by San Diego Police Department) it is believed that sperm was still present because physical drainage of semen from the vagina was impossible due to the victim's posture at the time of death. In addition, sperm cells do not degrade as actively in the postmortem vagina due to an absence of cells normally found in a live victim's vaginal and cervical fluids.

  • Sperm found in the mouth following oral copulation are more transitory than in the vagina. However, intact sperm cells have been recovered from the mouth up to 6 hours after ejaculation - even despite mouth rinsing or tooth brushing.[61]

  • Sperm have been found in rectal swabs up to 20 hours after an assault, however researchers caution that conclusions regarding sodomy should be based on other factors in addition to sperm since semen draining from the vagina frequently contaminates the anal/rectal region.[62]

In conclusion, the vaginal site is the most likely location to obtain specimens positive for sperm. It also indicates that deterioration of evidence first occurs in mouth samples and then in vaginal or rectal samples.

Clothing evidence (force, corroboration)

Clothing is useful as evidence to prove that force was used, if it is torn or soiled. It can also be helpful to corroborate the victim's story. For instance, if the victim claims she struggled on the grass, stains on her clothing will corroborate this and the absence of grass stains can be used against her, as happened in the widely publicized trial of William Kennedy Smith. Of course, evidence such as foreign debris, blood, seminal fluids and other stains can also be collected from clothing (these are discussed in the corresponding sections).

  • While some programs recommend collecting all of the victim's clothing[63], others specify that clothing should only be collected if it has clear evidentiary value -- for example, if the clothing has visible tears, stains, debris, or if it was worn closest to the genital structures.

  • For many victims, a winter coat or pair of shoes may be valuable property that cannot easily be replaced. It is thus sometimes appropriate to allow the victim to keep these items.

  • On the other hand, crime laboratories have sophisticated equipment for detecting evidence, and clothing often has evidentiary value that cannot be detected by a forensic examiner. For this reason, it is generally advisable for forensic examiners to collect as much clothing evidence as possible.

  • When examining clothing for stains, many forensic examiners utilize a Wood's lamp. This type of lamp emits a long wave ultraviolet light that make it easier to see stains caused by semen and other substances.

  • For example, dried semen will usually fluoresce bright green or yellow under illumination with a Wood's lamp. Other substances will typically fluoresce easily using Wood's lamp illumination.

  • Moist semen will fluoresce poorly or not at all, however, so the Wood's lamp should be used to supplement visual examination.

When clothing is collected as evidence, it should be allowed to air dry prior to placing each article into a separate paper bag, avoiding transfer from one item to another. Bags should then be labeled with the victim's name, identifying number, date, time, forensic examiner's name, and the type of article.[64]

Saliva evidence (identification, corroboration)

Officers and examiners have been trained to note, photograph, and possibly even cast bite marks on the sexual assault victim in order to identify the offender. However, it is much more common for the suspect to kiss or lick the victim's body during an assault.

  • The examiner should thus determine whether the suspect's mouth touched any part of the victim's body. Saliva swabs should then be obtained from these areas by the examiner for potential DNA analysis to assist in cases where identification is the issue. This is especially critical if the victim does not believe that the suspect ejaculated or if he used a condom; in these instances seminal fluid is unlikely to be obtained.

The collection of saliva evidence from the victim's body is also useful for corroborating the victim's account of what happened during the assault. If saliva evidence is recovered from areas of the victim's body that she indicated were licked or kissed by the suspect, this provides persuasive evidence that the assault took place as described by the victim.

Blood evidence (identification, force, corroboration)

The forensic examiner should always draw the victim's blood for type and DNA evidence (whether this is done at the time of the initial examination or later will depend on departmental policy)[65]. This evidence will then be used to assist in identification by distinguishing the victim's DNA from the suspect's.

Blood evidence is also used to corroborate the victim's story and establish the use of force. Evidence of the suspect's blood can be used to corroborate the victim's account and establish force if it resulted from a struggle with the victim. In addition to the blood provided by the victim for identification purposes, it is also recommended that an additional tube of blood be routinely drawn from the victim for toxicological screening, should this become an issue during the investigation and subsequent prosecution[66].

  • Testing for the presence of drugs or alcohol may assist law enforcement by corroborating aspects of the victim's story or demonstrating that the victim's level of intoxication contributed to her vulnerability.

  • It can also provide evidence that the victim's level of intoxication or even unconsciousness negated the possibility of consent. As discussed in the module on law and investigative strategy, extreme levels of victim intoxication or unconsciousness create a situation in which no force is necessary for sexual penetration to constitute criminal behavior.

Analyzing the victim's blood for the presence of drugs or alcohol requires separate consent in some jurisdictions, creating a controversy that is discussed in detail in the module on drug-facilitated sexual assault. Whatever the policy regarding toxicological screening, the issues must be discussed with the victim.

Urine analysis (force, corroboration)

As with blood evidence, a sample of the victim's urine should be collected in order to test for the presence of drugs. Again, this evidence may be used to corroborate the victim's account of drug use or to provide evidence for her intoxication or unconscious state. Recently a great deal of attention has focused on the specific drugs that are being used to facilitate sexual assault.

  • As discussed in the module on drug facilitated assault, these "date rape drugs" include the long-acting benzodiadepine flunitrazepam (e.g., Rohypnol), the powerful sedative gamma hydroxy butyrate (GHB), the veterinary anesthesia known as ketamine (K), and many more.

  • Although these cases often involve little memory on the part of the victim and uncertainty regarding whether or not a sexual assault took place, the forensic examination should nonetheless be conducted.

  • If law enforcement has contact with the victim prior to coming to the hospital or clinic, she should be told to collect her first voided urine in a clean jar and bring it with her.[67]

Whenever the victim's story is consistent with a drug facilitated sexual assault, and if she is seen within 72 hours of the assault, a urine specimen should be collected for a complete drug analysis. It is important to do a complete drug screen with sexual assault victims, unless there is specific evidence that a particular drug was used.

Non-biological evidence (identification, corroboration)

Of course, any non-biological trace evidence should be collected which links the victim to the suspect and/or crime scene. This could include such items as lubricants, contraceptives, debris, fibers, soil, sand, paint, or other foreign bodies. This evidence can be used both to assist in the identification of the suspect and to corroborate the victim's account of the assault.

Non-Genital Injury Evidence (force, corroboration)

Physical injuries are the best proof of force and should always be photographed, described on drawings, and documented in writing on the report[68]. Evidence of injury can also corroborate the victim's account of events. It is imperative to note, however, that the absence of injuries does not mean that force or coercion was not used. Given that the majority of sexual assault victims do not sustain injuries, an absence of injuries does not prove consent[69].

Rates of non-genital injury

The literature indicates that injuries resulting from sexual assault are relatively rare.

  • In a review of 372 cases of sexual assault examinations conducted by the hospital emergency department, 68% of the victims seen had no injury, 26% had mild injuries, 5% had moderate injuries, and only 0.2% were severely injured.[70]

  • Other studies indicate that only 3-5% of all sexual assault victims have major non-genital injuries or injuries requiring treatment and that only 1% typically require hospitalization.[71]

Consistent with our previous discussion in the dynamics module, non-genital injuries are not typical among sexual assault victims. Although evidence of non-genital injury is thus powerful in demonstrating force, the absence of injury should not be interpreted as consent.

Photographic evidence

Whenever photographs are taken of non-genital injuries, the first picture should always be of the victim's face, and others should follow in a systematic order, such as head to toe, or front to back.

  • Photographs should be taken first without a scale to show that nothing is being concealed, and then with a scale to document size.

  • While a coin such as a quarter is sufficient for documenting size, a gray photographic scale will also assist with color determination. Many forensic examiners utilize the L-shaped scale recommended by the American Board of Forensic Odontology.

  • The forensic examiner should print his/her name and title, along with the date, the time, and the victim's name and/or record number on the back of every picture.

Although some agencies routinely photograph the victim's name on a label with 35 mm film or print it on the front with Polaroid pictures, there is some concern that practice this violates the victim's privacy and/or confidentiality. It is therefore recommended that the photographs be labeled on the back and/or use a medical record number rather than the victim name.

Photographic documentation of injuries should be completed using a 35 mm (or digital) camera with a standard 50 mm lens, or a 35-110 zoom lens, and 100-200 speed (ASA) color film.

  • A disadvantage of 35 mm (or digital) pictures is that they must be sent out for developing and are often not available to the police when they investigate or to prosecutors when they are deciding if they will charge the case.

  • Polaroid film has the advantage of being available to the police during their initial investigation. It has the disadvantage, however, of poorer quality; especially for close-ups. Polaroid film is also very expensive[72]. For all of these reasons it is generally not recommended for use in sexual assault investigations. Some have suggested, however, that the newer and more expensive Polaroid cameras designed for close-up photography overcome many of these disadvantages.

It is sometimes recommended that Polaroid pictures be taken in addition to the 35mm (or digital) photographs when non-genital injuries are present. This approach combines the advantages of each type of film. It also means that the photographs can be available to the prosecutor and judge when a suspect is in custody and decisions are being made to file a charge, enhance bail, issue a warrant, etc.

Pattern of non-genital injury

The forensic examiner must be knowledgeable about the pattern of injuries resulting from violence, in order to ask the appropriate questions and locate injuries on the basis of the history[73].

The most common injuries among sexual assault victims include:

  • Upper leg and thigh bruising

  • Neck bruising from choking

  • Punch bruising to the upper arm

  • Defensive posturing injuries to the outer side of the arms

In a study of 304 adult victims of sexual assault, for example, the head, neck, and facial regions were the most commonly recorded site of non-genital injury. Of the cases involving non-genital injury, 53% were recorded as occurring at one or more of these three sites[74].

Also common are:

  • Whip or cord like injuries to the back

  • Punch or bite injuries to the breasts and nipples

  • Punch injuries to the abdomen

  • Punch and kick injuries to the thighs

  • Facial bruising, abrasions, and lacerations[75]

Patterned non-genital injury

"Patterned injury" is different from the similar term, "pattern of injury" discussed above. Both are important forensic terms, however, "Patterned injuries" are those where the object used to inflict the injury can be easily identified by the pattern left on the victim. Examples include a coat hanger, iron, extension cord, belt, or the imprint of a ring worn by the assailant.

  • Bite marks are important patterned injuries that can be linked to a suspect's dental pattern.

  • Strangulation also constitutes a patterned injury. Since most assailants who strangle their victim use their dominant hand, the fingertip pattern can be used to identify the assailant's handedness. A right-handed assailant will usually grab the victim's anterior neck so as to leave a single thumb bruise at the right of the neck and several fingertip bruises to the left of the neck[76].

Of course, bruising is also common among sexual assault victims, but the literature cautions against trying to closely date the age of a bruise by its color. While we know that recent bruising is red or dark blue in color, and older bruising may be green-blue or yellow-blue, and older still bruising may be barely visible -- people vary greatly in their rates of healing. Medications, skin tone, age, and other factors affect bleeding and healing response as well.

  • Sheridan (1993) suggests that deep blue-purple bruising is best documented as a "relatively recent bruise" or as "consistent with Mary Jane's report of being punched by Jim Smith 24 hours prior."

  • Follow-up examination is especially important for documenting such non-genital injuries, because bruises often don't develop until after the initial documentation. It is therefore important to have a sequence of photographs taken over a series of days.

Genital Trauma Evidence (sexual contact, force)

Genital trauma is useful to show both recent sexual contact and force. Studies have consistently shown that although genital trauma can occur as a result of consenting sexual intercourse, it is much more likely to be seen after sexual assault.

  • For example, research has found genital trauma in 45-89% of sexual assault victims, in comparison with 7-11% of adult women examined after consenting intercourse.[77]

  • These findings have led researchers to conclude that the incidence of genital microtrauma is "strongly suggestive" of non-consenting sexual intercourse.[78]

However, even in cases of sexual assault there is often no evidence of genital trauma. Thus, the absence of genital trauma should not be interpreted as evidence of consent. In other words, the forensic examiner will often not find genital injuries, and the reasons for this must be explained to the jury[79].

Pattern of genital injury

The pattern of genital injury in female sexual assault victims has been a more recent area of study. For example, of the 311 sexual assault victims studied by Slaughter and colleagues, 213 (68%) exhibited anogenital trauma of some kind. Of these 213 victims with some form of genital trauma, the percentage with injury at each specific site was as follows:

  • posterior fourchette (70%)

  • vagina (11%)

  • labia minora (53%)

  • perineum (11%)

  • hymen (29%)

  • periurethral area (9%)

  • fossa navicularis (25%)

  • labia majora (7%)

  • anus (15%)

  • rectum (4%)

  • cervix (13%

For a definition of these and other medical terms, please see Appendix 1.

Since the posterior fourchette is the point of greatest stress when forceful stretching occurs and the point of first contact of the penis with the vagina, it is not surprising that this is the most

common site of injury (often described as "acute mounting injury")[80]. Injuries most often seen can be described as TEARS -- Tears, Ecchymosis (bruising), Abrasions, Redness, and Swelling[81].

Association between non-genital and genital trauma

Studies also demonstrate that there is a strong association between non-genital injuries and injuries to the genitals, anus, or rectum.

  • For example, Slaughter and colleagues found that 57% of the victims with non-genital trauma in their study also had some form of genital injury[82].

  • In another study of 304 adult sexual assault victims, 79% of those with non-genital injury also showed evidence of genital trauma[83].

Despite the fact that sexual assault victims do not always exhibit genital or non-genital injury, positive findings certainly increase the likelihood of prosecution. For example, in a 3-year prospective study of evidentiary findings and disposition outcomes, suspects were more than twice as likely to be prosecuted if the victim's examination revealed evidence of genital or non-genital injury[84].

Characteristics associated with genital injury

There are a number of characteristics that have found to be associated with genital injury.

  • For example, in the study conducted by Slaughter and her colleagues, the timing of the exam was found to be crucial. Of 213 victims with anogenital injury, 73% were examined within 24 hours of the assault, 8% were examined between 24 and 48 hours following the assault, and 19% were seen at or beyond 72 hours[85]. Clearly, the likelihood of identifying genital injury was significantly reduced if the examination occurred more than 24 hours after the assault.

  • With respect to victim age, these researchers found that with the exception of tears of the hymen (which were nearly four times more common among adolescent victims), genital injury was not seen at different rates with older versus younger victims[86].

  • Another study found that prior sexual experience was associated with differential rates of genital injury. Specifically, when 132 women were examined within 10 days of their sexual assault, 65% of those without sexual experience exhibited genital injury whereas only 25% of those with prior sexual experience showed similar trauma[87].

  • Rates of injury appear to be somewhat higher among male victims in comparison with female victims. For example, studies have found that 50-67% of male victims exhibit anal trauma[88] .

Colposcopic evidence

The literature also suggests that colposcopic examination to magnify genital tissue is an important asset to the identification of genital trauma[89]. Photographic equipment, both still and video, can also be easily attached to a colposcope for forensic documentation[90].

  • To demonstrate the importance of the colposcope, positive genital findings are typically reported in only 10-30% of cases using gross visualization[91].

  • With colposcopic examination, however, the general range for identified trauma is 60-80%[92]. One study even identified genital trauma in 87% of sexual assault cases using colposcopic examination.[93]

When a colposcope is used, the magnification must always be well documented, the pictures or video must be well focused and clear, standard positions for examination should be used and documented, and a method of measurement should be used[94]. In addition, it is critical to explore with the forensic examiner any alternative explanations for positive findings.

  • For example, genital microtrauma can be caused by events other than nonconsensual intercourse, such as tampon use, vigorous consensual sex, etc.

  • It is critical for police to understand that the colposcope cannot differentiate trauma caused by consensual intercourse, nonconsensual intercourse, or any other event.

Findings must therefore be interpreted in the context of a comprehensive victim interview and consultation with the forensic examiner.

Toluidine blue

Toluidine blue is a nuclear stain commonly used in sexual assault examinations to detect genital microtrauma[95]. Some research suggests that toluidine blue can significantly enhance the detection of genital injuries compared with gross visualization alone.

  • For example, one study found that the use of toluidine blue increased the detection of perineal lacerations among adult women from 24% with gross visualization to 40%[96].

  • In a second study, the dye increased the incidence of positive findings from 4% to 58%[97].

Since toluidine blue is spermicidal in nature, the literature consistently suggests that it should only be used after all specimens are collected. There is no evidence, however, that it interferes with ACP levels[98].

Genital injury and human sexual response

When documenting genital injuries, the forensic examiner will generally use a clock to describe their location (e.g., 3 o'clock, 7 o'clock). Injuries commonly found in forcible sexual assaults are caused by an absence of human sexual response by both parties, resulting in the following factors:

  • Lack of pelvic tilt to prepare for penetration

  • Lack of partner assistance with the insertion of a penis or foreign object

  • Lack of lubrication

  • Lack of relaxation

  • Increased force of penetration

  • Male sexual dysfunction

  • Lack of communication

The forensic sexual assault examination has traditionally focused on the collection of evidence used to identify an assailant. However, given that the majority of suspects raise a defense of consent it is imperative that forensic examiners and law enforcement carefully document these genital and non-genital injuries to corroborate the use of force.

Follow-up examination

In those cases where genital trauma is identified, a follow-up examination of the victim may strengthen the documentation of evidence.

  • The American College of Emergency Physicians recommends that sexual assault victims be referred for follow-up examinations 2 weeks, 3 months, and 6 months after the assault to evaluate for pregnancy and sexually transmitted diseases[99].

  • Many prosecutors also like to have evidence from the follow-up examination to document that a particular finding was in fact an injury that healed within the expected time frame. Photographs should be taken at the time of the follow-up exam to document the healing of the genital injuries for comparison purposes in court.

  • There are also situations where the forensic examiner is unsure whether the suspected "injury" is due to the victim's medical history or other gynecological condition. In these cases, a follow-up examination can be used to evaluate whether the finding is the same or healed as an injury naturally would.

Unfortunately, most forensic examiners do not routinely perform follow-up examinations, and they may not be reimbursable in every state. This is something that investigators can therefore discuss with the forensic examiner and victim in a particular case.

In some cases, a forensic examination might be postponed for a few days following the assault if the victim is injured to the extent that a genital examination is intolerable. The examiner and investigator will need to discuss scheduling a postponed examination with consideration of both medical and forensic issues.

Medical Components of the Sexual Assault Examination

STD evaluation and preventive care[100]

The sexual assault exam always involves other components in addition to the collection of forensic evidence. These typically include STD evaluation and preventive care. Actually, the risk for contracting an STD during sexual assault is relatively low.

  • The Centers for Disease Control and Prevention estimate that the risk of sexual assault victims getting gonorrhea is 4.2%, chlamydia is 1.5%, trichomonas is 12.3%, and bacterial vaginosis is 19.5%[101].

  • Contracting an STD from the assailant is of significant concern to victims, however, and so it should be addressed as part of the initial examination.

  • For example, one study found that 36% of sexual assault victims presenting to the emergency department stated that their primary reason for coming was concern about having contracted an STD[102].

For this reason, most clinicians recommend preventive treatment following CDC guidelines, just in case. Thus, although preventive treatment is generally recommended as a routine part of the sexual assault examination, the issue of assessment is controversial.

  • Some agencies argue that a baseline evaluation should be conducted, so that any future STD can be attributed to the assault rather than any previous sexual encounter.

  • However, given that preventive treatment is routinely provided, it is actually rare for victims to contract an STD as a result of the sexual assault. Routine preventive treatment is also more cost-effective than conducting baseline evaluations.

  • Some agencies do perform baseline evaluation for STD's to give a more thorough medical assessment of the victim. Especially in cases where the sexual assault report is delayed, it is sometimes advisable to test the victim for definitive diagnosis.

At present, there is no research to evaluate how useful the information provided in a baseline evaluation might be in court, although there is anecdotal evidence that the presence of a pre-existing STD can be used against victims by suggesting that they are sexually promiscuous[103].

For more information, call the National STD Hotline at 1-800-227-8922.

HIV testing

Since the early 1980's, HIV infection has been a grave concern for sexual assault victims even though the actual risk still appears to be very low.

  • The more general risk of HIV transmission is thought to be the same as a single consensual sexual encounter: 0.1-0.2% for vaginal intercourse and 1-2% for anal penetration[104].

On this basis, routine HIV testing is not generally recommended with sexual assault victims. However, victims should be provided information by the forensic examiner about their risk, testing, and safe sex options. This will allow them to make decisions based on facts rather than fear, and it can help reduce the psychological trauma associated with the fear of HIV infection[105].

  • In cases where the assailant is known to be HIV-positive, it is possible to consider antiretroviral treatment. Initial post-exposure treatment must be started within 72 hours, however, or it is not recommended[106].

  • As a result of various state and federal laws, involuntary HIV testing of the offender is now required. In most states, testing cannot be done until after the assailant is charged or convicted of sexual assault and a court order is obtained.

For more information, contact the National AIDS Information Hotline at 1-800-342-AIDS. For Spanish speakers call 1- 800-344-SIDA, and for hearing impaired persons call TTY/TDD Hotline 1-800-AIDS-TTY.

Pregnancy risk evaluation and prevention

Sexual assault victims of reproductive age also fear becoming pregnant as a result of the attack. This is another cause of concern and additional trauma for many victims. Most medical facilities and clinics providing forensic examinations will offer pregnancy prevention or interception for the woman at risk of becoming pregnant, if she is seen within 72 hours of the rape and has a negative pregnancy test in the hospital emergency department.

  • Sometimes referred to as the "morning after pill," oral contraceptives such as Ovral are used for emergency contraception. This will reduce the risk of pregnancy by 60-90%[107].

  • Catholic facilities may not routinely provide emergency contraception to sexual assault victims, and the rape crisis advocate will usually assist the victim in making alternative arrangements. Many rape crisis centers also have networking agreements with medical personnel who will provide emergency contraception for victims examined at a Catholic hospital or clinic. In addition, a few Catholic facilities have obtained special permission to provide the morning after pill[108], and others may assist with alternative arrangements.

In general, the risk of pregnancy from a sexual assault is the same as the risk of pregnancy from a one-time sexual encounter. This is estimated to be a 2-5% risk[109]. With emergency care provided after the sexual assault, however, it is possible that more of these pregnancies (or later abortions) can be prevented.

Crisis intervention and referrals

Another basic component of the evidentiary exam is crisis intervention and referrals for follow-up counseling. Some SANE programs even provide their own crisis intervention and follow-up counseling[110]. Referrals are also provided by forensic examiners, rape crisis advocates, and hospital or social service personnel[111].

Concluding the examination

While many sexual assault victims want to "go home and forget" about the experience, the information in the victim impact module suggests that this is unlikely. The information and referrals provided during the forensic examination are therefore crucial to assist the victim in her recovery from sexual assault.

  • Some hospitals and clinics will provide the victim with a place to shower, brush her teeth, and change clothes after the exam. This is recommended where possible, as it gives the victim a chance to regain her composure and physical appearance before leaving the facility.

  • Either the medical facility or rape crisis advocate should provide the victim with a change of clothes if needed[112]. The Assistance League, a national charitable organization, also provides clothing for sexual assault victims throughout the country. If a chapter exists in an area that does not currently provide this service, it may be willing to do so after being made aware of the need. Alternatively, the rape crisis center may address this need.

Finally, the victim will be provided with written discharge information to take home with her[113]. Follow-up phone calls are also typically made within 24 to 72 hours - either by medical personnel or the rape crisis advocate -- to check on the victim's emotional and physical status, medical concerns, and compliance with medications provided. Medical personnel or rape crisis advocates can also assist with additional referrals if needed[114].

Suspect Examinations

Many law enforcement agencies recognize the value of the victim's forensic examination yet local protocol does not always dictate that a medical-legal examination be conducted with the suspect. Suspect examinations should be obtained as soon as possible if the suspect is arrested shortly after the assault or if the officer believes that he has not bathed since the assault.

Types of evidence collected

The procedures involved in the suspect examination are basically the same as those for the victim. The suspect examination will include taking a medical history, conducting a general and genital examination, and collecting any physical evidence such as clothing, foreign debris, and swabs.

  • In addition to considering evidence transferred to the victim by the suspect, officers must also consider any evidence transferred from the victim to the suspect.

  • For example, vaginal fluids, saliva, and epithelial cells from the victim are often recovered from the body of the suspect. In cases of digital penetration, cells from the victim have been found under the suspect's fingernails even after he has washed his hands and/or bathed.

  • A forensic examination can be used to identify and document any injuries to the suspect that might have been caused by the victim.

  • The victim might also describe some type of abnormality (e.g., genital warts, or tattoos) that the examiner can photograph.

If the suspect is not arrested for several days following the assault, a full forensic examination is not recommended, but an abbreviated exam should still be obtained to collect a DNA reference sample. Depending on state and local protocol, this might include blood and/or saliva samples, and it may require law enforcement to obtain a warrant or court order (see sample warrant included in Appendix 2).

Policies and procedures

Throughout the process of conducting a forensic examination with the suspect, it is crucial that law enforcement personnel are present at all times. In addition, if the suspect and victim are being examined at the same time, contact between the two (and their evidence) must be prevented at all costs.

  • In some cases this may mean that the victim and suspect are transported to different medical facilities.

  • In others, it may simply require logistic arrangements to preclude the possibility of contact (e.g., the suspect can be brought in after the victim and be examined in a different room and/or by a different examiner).

In addition to the examination conducted by a forensic specialist, officers should also be encouraged to carry mouth (buccal) swab kits in the field. Suspects often consent to providing mouth swabs because they do not have to be transported and it is much less intrusive than drawing blood. Law enforcement agencies also prefer mouth swabs because medical personnel are not needed, making the procedure less costly and time consuming. The procedures for collecting mouth (buccal) swab kits are described in the module on DNA.

Evidentiary Considerations

Clarify any discrepancies in documentation

After the forensic examination is complete, there are a number of evidentiary issues to consider with the goal of successful prosecution. First and foremost, police and medical professionals involved in the case should confer after the examination to compare notes and clarify any factual discrepancies. This is perhaps best done immediately following the examination, but if this is impossible the conference should take place as soon as possible.

  • As previously discussed, this comparison might reveal sexual acts that were only reported to one of the two professionals. These discrepancies should therefore be explored with the victim, to ensure that documentation is clear and consistent.

Update crime scene personnel

Officers should also question the forensic examiner about any foreign fibers or debris that might have been found during the sexual assault examination. These findings should be relayed back to the police or lab personnel who are processing the crime scene to ensure proper identification and collection.

  • It is also common for victims to disclose information about condoms during the medical interview, or items that the victim or suspect used to clean genitalia after the assault. Again, this information needs to be provided to police or lab personnel who are processing the crime scene.

Maintain chain of custody

Maintaining proper chain of custody (or chain of evidence) is as important as collecting the proper evidence. Completed documentation is also essential and must include the signature of everyone who had possession of the evidence from the person who collected it to the individual bringing the evidence into the courtroom.

  • If this proper chain of custody is not maintained, the evidence may be inadmissible[115].

  • In addition, maintaining chain of custody is critical to prevent any possibility of evidence tampering and to deter defense counsel from raising the issue of reasonable doubt on the basis of evidence integrity.

  • Both signatures on the chain of evidence document are necessary for any transfer - one from the person releasing the evidence and a second from the person receiving it.

If the police are unavailable to pick up the evidence, the forensic examiner should place it in a locked refrigerator, preferably with signed access. When the police do return, the forensic examiner can then sign for the evidence that has been removed from the refrigerator and handed to law enforcement personnel[116].

Alternatively, some facilities release all evidence in their custody at some specified interval (e.g., twice a week) to an employee of the police property room. This eliminates one person from the chain of custody and releases officers and victims from having to wait for swabs to dry and evidence to be packaged, transported, and impounded

Maintain evidence integrity

While it is suggested that the specimens collected from a forensic examination be refrigerated for long-term storage to prevent deterioration, it is essential that the evidence be kept in an area of less than 75 degrees Fahrenheit. Of course, clothing and other non-biological evidence can be stored in an unrefrigerated area.

General rules for forensic evidence storage are these:

  • If the sample was once living (such as blood and body fluids), it should be refrigerated or frozen, depending on local protocol.

  • If the evidence needs drying, this should be done with air and NOT with heat (heat degrades).

  • Plastic should not be used, only paper and glass. Plastic does not breathe and causes mold.

  • Items must be stored separately to avoid transfer of trace evidence.

  • Envelopes should not be licked to moisten, but taped and initialed.

  • Items that might contain fingerprints should not be touched without gloves, and packaged to preserve them[117].

It is of course important to avoid contamination of any kind, but it is absolutely paramount that there be no possibility for contact between evidence collected from the victim and that collected from the suspect. For example, the suspect examination should NOT be conducted in the same location as the victim examination.

Although blood evidence has traditionally been stored in vials, some departments are storing blood evidence dried on rice paper swatches. There are three significant advantages to this storage method. These dried paper swatches require less space for storage, and they do not require refrigeration. In addition, dried swatches present less of a biohazard risk than traditional vials.

Assessment of Forensic Evidence

In their report, forensic examiners will offer an assessment of the physical findings. This will generally refer to whether the examination was normal (i.e., no physical findings) or whether physical findings were documented as related to the assault. At the time of the forensic examination, conclusions should primarily focus on visible findings. Other conclusions are left until after crime lab personnel have analyzed the evidence collected in the forensic examination. Positive physical findings at the initial forensic exam could thus include:

  • Any injury sustained during the assault

  • Subjective tenderness described by the victim

  • Stains or substances detected with a Wood's lamp

  • Trace evidence collected

  • Detection of sperm or ACP indicating seminal fluid

If the exam findings match the history given by the victim, it is also important for the forensic examiner to note this. This can be done in the report by stating that "there is congruence between the victim's story and her injuries" or "the injuries are consistent with the victim's account of the assault."[118]

What can and cannot be concluded

When considering the assessment of medical personnel, it is critical that law enforcement understand what can and cannot be concluded on the basis of the forensic examination.

  • For example, it is inappropriate for the forensic examiner to make a conclusion regarding the validity of the claim. In other words, medical personnel cannot make a conclusive "diagnosis" of sexual assault.

  • It is also problematic for a forensic examiner to make a definitive conclusion about the degree of force used by the assailant, whether the victim consented to any sexual activity, and whether there was traumatic vs. non-consensual penetration.

What the forensic examiner can appropriately conclude is whether there is evidence of sexual contact and/or recent trauma. The forensic examiner can also make a conclusion regarding consistency between the physical findings and the victim's account of what happened.

  • Consistency between the victim's account of events and the physical findings are not confirmation or proof that the assault occurred as described by the victim.

  • Rather, consistency means that the findings or lack of findings could have resulted from the events described.

Preparing for court

Because of their training and experience, a forensic examiner will likely be qualified to testify as an expert, rather than just a factual witness in a sexual assault case[119]. Both police investigators and forensic examiners should be familiar with the research cited in this manual and elsewhere, to counter the likely defense claim that the observed findings could have resulted from consensual sexual intercourse.

Usually the courts do not allow hearsay evidence, but there are two exceptions to this rule. An individual can provide hearsay evidence if the statement was made as an "excited utterance" (i.e., immediately following a trauma) or if it was made as part of a medical examination. (The courts recognize that people are likely to be truthful when their health is at stake.) Since forensic examiners conduct a medical-legal examination, they are able to testify in court about the things the victim says during the procedure. Many times important statements about the use of force or coercion are admissible into court in this manner (e.g., "I thought he was going to kill me").

Although there is a body of research that compares the physical findings of sexual assault victims with women who have recently engaged in consensual sexual intercourse, there will always be aspects of a particular case that can be raised by the defense as possible explanations for the physical findings.

  • It is therefore important for law enforcement, forensic examiners, and prosecutors to understand that the findings in a forensic examination can only be interpreted in relation to the victim's history of the assault.

The majority of jurors will have some sort of sexual experience and will realize that their consensual activities did not result in the type of injuries documented in the forensic examination.

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Appendix 1: Medical and Anatomic Terms

Abrasion: An area of the body surface denuded of skin and mucous membrane by some unusual or abnormal mechanical process.

Adenexae: Pelvic appendages adjacent to the uterus, usually including the fallopian tubes and ovaries.

Anal Verge: The tissue overlying the subcutaneous external anal sphincter at the most distal portion of the anal canal (anoderm) and extends exteriorly to the margin of the anal skin.

Anterior Commissure: The union of the two labia minora anteriorly (toward the clitoris).

Anus: The anal orifice, which is the lower opening of the digestive track, lying in the fold between the buttocks.

Bartholin's Glands: Equivalent to Cowper's glands in male. Open at 5 & 7 o'clock outside the hymen in the vestibule. Lies in base of bulb.

Bulb of the Vestibule or Bulbi Vestibuli: Oval masses of erectile tissue in bulbocavernosus muscle in the floor of the vestibule. Equivalent to bulbus penis in the male.

Cervical Ectropion: Eversion of the cervical canal exposing its lining.

Cervical Os: The opening in the cervix which leads to the endometrail cavity of the uterus.

Cervical Portio: The vaginal portion of cervix that protects into the cavity of the vagina.

Cervicitis: Inflammation of the cervix.

Cervix: The portion of the uterus between the isthmus and the vagina.

Clitoral Hood: The skin coving the clitoris. Homologous with the prepuce (foreskin) in the male.

Clitoris: A small cylindric erectile body situated at the anterior (superior) portion of the vulva (covered by sheath of skin called the clitoral hood), which is homologous with the penis in the male.

Contusion/Bruise: A superficial injury produced from impact without laceration.

Corona of Glans Penis: The rounded proximal border of the glans penis, separated from the corpora cavernosa penis by the neck of the glans.

Ecchymosis: An extravasion of blood under the skin--these can be dated.

Epididymis: Tube which passes from the testes to vas deferens; the ducts within this tube store sperm.

Epididymitis: Inflammation of the epididymis.

Erythema: A flush upon the skin--A redness of the skin produced by congestion of capillaries which may result from a variety of causes.

Fossa Navicularis: Concavity of the lower part of the vestibule situated (inferior) to the vaginal orifice and extending to the posterior fourchette (posterior commissure).

Frenulum: A small fold of mucus membrane that attaches the prepuce to the ventral surface of the penis.

Glans Penis: The cap-shaped expansion of the corpus spongiosum at the end (head) of the penis, also called balanus. It is covered by a mucus membrane and sheathed by the prepuce (foreskin) in the uncircumcised male.

Hymen Orifice: The opening to the vagina through the hymenal membrane.

Hymen: A membrane which partially, or rarely completely covers the external vaginal orifice. It is located at the junction to the vestibular floor and the vaginal canal.

Induration: An abnormally hard spot or place.

Labia Majora: Rounded folds of skin forming the lateral boundaries of the vulva.

Labia Minora: Longitudinal, thin folds of tissue within the labia majora. In the prepubertal child, these folds extend from the clitoral hood to approximately the midpoint on the lateral wall of the vestibule. In the adult, they enclose the vestibule and contain the opening to the vagina.

Laceration: The act of tearing--A wound made by tearing.

Median (perineal) Raphe: A ridge or furrow that marks the line of union of the two halves of the perineum.

Mons Pubis: The rounded fleshy prominence created by the underlying fat pad, which lies over the symphysis pubis (pubic bone) in the female.

Myrtiformes Carunculae: Hymenal remnants usually rounded mounds; maybe seen after child birth.

Orchitis: Inflammation of the testes.

Pectinate Line (dentate line): The saw toothed line of demarcation between the distal (lower) portion of the anal valves and the pecten, a smooth zone of simple stratified epithelium which extends to the anal verge.

Pelvic Inflammatory: Infection of the fallopian tubes or ovaries disease commonly called PID.

Penis: Male sex organ composed of erectile tissue through which the urethra passes. Homologous with the clitoris in the female.

Perianal Skin Folds: Wrinkles or folds of perianal skin radiating from the anus, which are created by the contraction of the external anal sphincter.

Periurethral: Pertaining to tissue surrounding the urethra meatus.

Posterior Commissure: The union of the two labia minora posteriorly (toward the anus).

Posterior Fornix: A cavity within the vagina and located posteriorly (inferior) to the cervix.

Posterior Fourchette: The junction of the two labia minora posteriorly (inferiorly). This area is referred to as a posterior commissure in the prepubertal child. In children, the labia minora are not completely developed and do not connect inferiorly until puberty. In the postpubertal female, it is referred to as the posterior fourchette.

Prepuce:(foreskin): A covering fold of skin over the glans of the penis.

Proctitis: Inflammation of the rectum.

Prostate: Gland in the male which surrounds the neck of the bladder and urethra and contributes to the seminal fluid.

Prostatitis: Inflammation of the prostate.

Rectum: The distal portion of the large intestine beginning anterior to the third sacral vertebra as a continuation of the sigmold and ending at the anal canal.

Scrotum: The pouch which contains the testicles and their accessory organs.

Testes: Male sex organs (gonads) which produce spermatozoa and testosterone.

Urethra Meatus: The external opening of the canal leading from the bladder.

Urethra: The membranous canal which conveys urine from the bladder to the exterior of the body.

Urethrits: Infection of the urethra.

Uterus: Hollow muscular reproductive organ of the female composed of body, fundus (above the opening of the fallopian tubes), isthmus, and cervix.

Vagina: The uterovaginal (genital) canal in the female. This internal structure extends from the uterine cervix to the inner aspect of the hymen.

Vaginal Introitus: The muscular band of tissue which forms the entrance to the vagina. The muscular bulbospongiosus in the female.

Vaginal Introitus: The muscular band of tissue which forms the entrance to the vagina (bulbospongiosis muscle).

Vaginal Rugae: Folds of epithelium (rugae) running circumferentially from the vaginal columns.

Vaginal Vestibule: An anatomical cavity containing the opening of the vagina, the urethra, and the ducts of Bartholin's glands. Bordered by the clitoris anteriorly, the labia on the sides, and posterior commissure (fourchette) posteriorly (inferiorly). The vestibule encompasses the fossa navicularis immediately posterior (inferior) to the vaginal introitos.

Vaginitis: Inflammation of the labia.

Vas Defferens: The tube which connects the epididymis to the urethra.

Vulva: The external genitalia or pudendum of the female. It includes the mons pubis, clitoris, labia majora, labia minora, vaginal vestibule, urethral orifice, vaginal orifice, hymen, and the posterior fourchette (or commissure).

Vulvitis: Inflammation of the labia.

Appendix 2: Sample Search Warrant for Biological Reference Samples from a Suspect

I, Joseph Cristinziani, do on oath make complaint, say and depose the following on this - day of -, 1999: that I have substantial probable cause to believe and I do believe that I have cause to search: the person known as Paul Vasquez, an Hispanic male adult having a date of birth of 01-06-70, being about 5'8" in height and 145 lbs. in weight, and is believed to be currently residing and in custody of the State of Ohio under Ohio Department of Corrections number E02494, located at the Ohio State Prison; at 2737 West Cecil Avenue, Midtown, Ohio; for the following property, to wit: to seize the person and take hair, blood and saliva samples sufficient for comparison purposes using the least amount of force necessary to take said samples.

I am a peace officer employed by the Midtown Police Department (hereafter MPD) and have been so employed for about 20 years. I am currently assigned to the Homicide Division and have been so assigned for about 4 years. Prior to this assignment, I was assigned to the Sex Crimes Unit. I was so assigned for approximately 14 months. During my career, I have investigated at least 100 Homicide cases as well as approximately 100 sexual assault cases.

During the course of my duties, I have learned the following information based upon my discussions with the named witnesses or by having read the reports of or talked with other MPD officers who have spoken directly with the named witness. All references to dates refer to the current calendar year unless otherwise stated.

I have prepared the attached 17 page report in the course of my duties. I was assigned the case after the victim initially reported the crime to MPD patrol officers. I hereby request incorporation by reference herein of said report as if fully set forth and identified by MPD case number 95-091454 located in the upper left portion of the front page. This crime was a forcible rape, committed in violation of section 261(2) of the Ohio Penal Code. The victim in this case was identified as Ms. Jackie Lindsay.

During the course of the investigation, the victim, Jackie Lindsay, was examined by medical personnel following the rape and biological samples were taken from her vaginal vault. The evidence was analyzed by the Midtown Police Department and biological samples sufficient for DNA testing were identified. The Midtown Police Department used a Polymerase Chain Reaction (PCR) DNA test to identify the genetic markers of the assailant in Lindsay's assault. The evidence was then sent to Cellmark for RFLP testing with the intent to attempt to identify the suspect using the Combined DNA index system computer database (CODIS) maintained by the FBI. RFLP was obtained, however, there was no match in CODIS.

In June of 1999, Mr. Brian Burritt was hired by the Midtown Police Department Crime Laboratory as a Criminalist. His specific field of expertise is that of a DNA Analyst. Prior to his employment with the Midtown Police Department, Mr. Burritt was employed as a Criminalist with the Ohio Department of Justice, DNA Laboratory, Cinncinati, Ohio. Mr. Burritt has been qualified as an expert witness, in the area of DNA in the Superior Courts of 11 different counties within the State of Ohio. The Midtown Superior Court is included in that list.

Upon his employment with the Midtown Police Department's Crime Laboratory, part of Mr. Burritt's job description was to examine any and all unsolved cases containing DNA evidence and, to create a MPD data base for unsolved cases with PCR evidence.

On June 20, 1999, Mr. Burritt began an analysis of the PCR profile collected from Lindsay's case. Once the PCR profile from this case was entered into the database, the database compares the profile against at least 200 other PCR profiles collected from known sex and/or violent offenders from within Midtown County. The database compares against other PCR profiles searching for matches. The search revealed a PCR profile match to Paul Vasquez. Mr. Burritt examined Vasquez' PCR profile and found that in the Caucasian population the frequency is 1 in 2600; in the Hispanic population the frequency is 1 in 5400 and in the Black population the frequency is 1 in 110,000.

Utilizing official police computers, I conducted a background investigation on Vasquez. I learned Vasquez was not in custody at the time Lindsay was forcibly raped. I learned Vasquez was living within the City of Midtown at the time the rape occurred. Vasquez' residence was located at 7106 Arillo Street, in the City and County of Midtown. Arillo Street is well within a three (3) miles radius of the location where Lindsay was raped. Through my background investigation, I learned Vasquez' physical description matched the suspect description given to me by Lindsay. Additionally, I learned Vasquez has prior convictions for sexually related type crimes.

A biological reference sample is now needed from Vasquez for RFLP testing which will provide additional genetic information to more conclusively include or exclude Vasquez as the person who sexually assaulted Jackie Lindsay. By obtaining saliva swabs from Vasquez, forensic laboratory personnel will be able to make further comparisons to the RFLP identified in Lindsay's case. I know that comparisons can be made between fluids found on or in the victim and that of the suspect. By removing blood and saliva, laboratory personnel will be able to make comparisons with those samples taken from the suspect to those taken from the victim using DNA and/or more conventional laboratory comparisons.

I have been advised that DNA is short for deoxyribonucleic acid. DNA molecules are contained within human cells and hold the genetic 'coding' that makes each of us individually distinctive (except identical twins). While forensic DNA technology cannot yet discriminate among human beings to the same extent as fingerprint evidence can, it is capable of identification within a very small percent of major populations depending on the type of analysis employed. Forensic DNA evidence has been routinely admitted in courts of Ohio since 1989. Samples taken from the suspect as described more fully above will be compared against that found on the victim. In removing the blood and other samples from the suspect, I will use medically accepted practices, utilize the services of a trained person in drawing the blood, and use the least amount of force necessary to collect the described evidence.

The suspect was booked into State Prison on an unrelated charge and was booked under the above described Ohio Department of Corrections number.

I request that this declaration, the affidavit, search warrant and supporting attachments be sealed pending further order of the court. I make the request for the following reason. Without sealing, the affidavit and supporting documentation and warrant become a matter of public record within ten days. Penal Code section 1534(a).

Also, Penal Code section 293 provides that a victim of a sex offense be advised that his or her name will become a matter of public record unless he or she requests that it not become a matter of public record. The victim in this matter has not yet determined whether or not she wishes her name to become a part of the public record. If the information in these documents is not sealed the victim's name can be revealed to anyone who wishes to examine the court files, and the victim will be denied her rights under Penal Code section 293. For this reason, I believe all information identifying the victim should remain sealed pending further order of the court.

Therefore, based on my training, experience, and the above facts, I believe that I have substantial cause to believe the above described property or a portion thereof will be on said person when the warrant is served. Based on the aforementioned information and investigation, I believe that grounds for the issuance of a search warrant exist as set forth in Penal Code section 1524. I, the affiant, hereby pray that a search warrant be issued for the seizure of said property, or any part thereof, from said person at any time of the day, good cause being shown therefor, and that the same be brought before this magistrate or retained subject to the order of this Court.

This affidavit has been reviewed for legal sufficiency Deputy District Attorney David J. Lattuca.

Given under my hand and dated this - day of -, 1999.

Joseph Cristinziani ID #2913 Midtown Police Department Homicide Section Subscribed and sworn to before me this - day of , 1999 at a.m./p.m.

________________________________ Judge of the Superior Court Central Division

The People of the State of Ohio, to any sheriff, constable, marshal, police officer, or any other peace officer in the County of Midtown: Proof, by affidavit, having been this day made before me by Joseph Cristinziani, a peace officer employed by the Midtown Police Department, that there is substantial probable cause for the issuance of the search warrant pursuant to Penal Code section 1524, you are therefore, commanded to make search at any time of the day, good cause being shown therefor, the: person known as Paul Vasquez, an Hispanic male adult having a date of birth of 01-06-70, being about 5'8" in height and 145 lbs. in weight, and is believed to be currently residing and in custody of the State of Ohio under Ohio Department of Corrections number E02494, located at the Ohio State Prison; at 2737 West Cecil Avenue, Midtown, Ohio; for the following property, to wit: to seize the person and take hair, blood and saliva samples sufficient for comparison purposes using the least amount of force necessary to take said samples, and, if you find the same, or any part thereof, to bring it forthwith before me at the Superior Court of the Central Division, County of Midtown, State of Ohio, or to any other court in which the offense in respect to which the property or things is triable, or retain such property in your custody, subject to the order of this Court, pursuant to section 1536 of the Penal Code.

Given under my hand and dated this - day of -, 1999.

_______________________________ Judge of the Superior Court Central Division

Law and Investigative Strategy

Acknowledgments

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.

  • "Police Response to Crimes of Sexual Assault: A Training Curriculum." Written by Sharon M. Hunter, Bonnie R. Bentley Crewe, and Jamie L. Mills. Produced by the Connecticut Sexual Assault Crisis Services, Inc. Funded by Police Officer Standards and Training Council and STOP Violence Against Women Grant #VAW9606.

  • "Model Guidelines and Sex Crimes Investigation Manual for Illinois Law Enforcement." Produced by the Illinois Law Enforcement Training and Standards Board and Illinois Coalition Against Sexual Assault.

The National Center for Women & Policing gratefully acknowledges the assistance of the organizations that produced these materials.

Introduction

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.

Sexual Penetration Versus Sexual Contact

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).

  • In some states, crimes involving sexual penetration are referred to as sexual assault whereas those involving sexual contact are described as sexual abuse.

  • In other states, sexual assault offenses are characterized as first degree, second degree, etc., depending on whether penetration or contact occurred.

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.

  • Of course, any incident may involve multiple offenses, including some combination of sexual penetration and contact. However, each count or charge must be identified independently.

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.

Investigative strategy: Overcoming a denial defense

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.

  • If the offense involves sexual penetration, the state must prove that sexual penetration (however slight) occurred between the suspect and victim.

  • If the offense involves sexual contact of some kind, the state must similarly prove that this activity took place between the parties.

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.

  • The most traditional evidence for sexual activity is seminal fluid collected from the body of the victim (or her clothing). In addition to seminal fluid, other evidence on the victim's body can be used to prove sexual activity, such as spermicides or lubricants.

  • However, additional evidence collection efforts can focus on swabbing any areas of the victim's body that were kissed, sucked or bitten by the suspect.

  • The colposcope can also be used to magnify and document evidence of genital microtrauma, and nuclear stains such as toluidine blue dye can be used to help make these microscopic injuries more visible.

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 example, a forensic examination of the suspect can identify evidence of transfer from the victim's body, such as vaginal fluid or cells. Evidence of spermicides or lubricants could also be suggestive of sexual contact if a match is found between materials present on the victim's and suspect's bodies.

  • In cases where multiple offenders are involved, there can even be a transfer of bodily fluids or cells between suspects. To illustrate, seminal fluid from Suspect #1 may be found on the body of Suspect #2, if they penetrated the victim consecutively. This transfer could also involve material other than cells or bodily fluids, such as hairs or other trace evidence.

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.

Force Versus No Force Required

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.

Force or Threat

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.

No clear standard

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:

  • Was physical violence or a weapon used?

  • Were physical or verbal threats made?

  • What were the surrounding circumstances that made the victim believe that real or implied threats would be carried out?

  • Was there a discrepancy in the size and strength of the individuals involved?

  • Were the individuals isolated from others?

  • What was the victim thinking and feeling at the time of the event?

  • Were there multiple suspects involved or other individuals present during the assault?

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).

  • Although the victim's perceptions can thus be examined, most states clearly state that the victim's behavior cannot be used to make this determination.

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).

Investigative strategy: Consent versus identity defense

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.

  • The first is a defense of identity, raised primarily in cases where the suspect is a stranger to the victim. This is the defense that can be characterized as, "You've got the wrong guy. Someone else might have raped her, but it wasn't me."

  • The second is a consent defense, typically used when the victim and suspect know each other to some degree. This is the defense that usually stipulates that the sexual activity took place, but argues that it did not involve force or threat. This defense can be described as, "Yeah, the sex took place, but she wanted it. There was no force involved."

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 example, if the suspect originally raises an identity defense (i.e., "You've got the wrong guy") but the prosecution can prove that sex actually took place between the suspect and victim, he may switch his story to assert a consent defense (i.e., "She wanted it").

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.

Identity defense: "You've got the wrong guy"

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:

  • A complete physical description of the suspect (from the victim or other witnesses)

  • DNA evidence collected from the victim's body, clothing, etc.

  • DNA evidence collected from the suspect's body, clothing, etc.

  • Any evidence linking the suspect to the victim and/or crime scene

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:

  • Factors which limited the victim's ability to see/hear the offender during the assault

  • Factors which could have potentially biased the police identification procedures

  • Limitations of the police evidence collection or analysis (i.e., evidence tainting)

  • Failure to pursue investigative leads that might point to an alternative suspect

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.

Consent defense: "She wanted it"

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:

  • Evidence of physical or verbal resistance on the part of the victim

  • Evidence of genital or nongenital injury

  • A detailed account of the victim's thoughts and feelings during the assault

  • Information regarding the suspect's size and strength, in comparison with the victim's

  • Information regarding the environment in which the assault took place (e.g., isolation)

  • Information regarding the victim's post-assault behavior, including post-traumatic stress

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.

  • As previously stated, evidence of injury or physical resistance on the part of the victim can be useful in establishing that force or threat was present in the situation. However, the absence of injury or resistance cannot be used as proof of consent.

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.

No Force Required

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).

  • In these situations, a consent defense is precluded and so the investigative strategy should not focus on issues of force. Rather, the defense is limited to (1) denying that the sexual activity, (2) disputing the status of the victim that renders them unable to consent, or (3) claiming that the suspect did not know and could not reasonably have known about the status of the victim.

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.

  • For example, if the victim and suspect are of certain ages that are recognized in state law as constituting statutory rape, the investigator has only to establish (1) sexual activity, (2) the ages of victim and suspect, and (3) the suspect's knowledge of the victim's age. Force or threat need not be proven because the situation is one in which no force is required to constitute an offense.

  • However, if force or threat was present in the situation, the investigator will most likely charge the suspect with forcible rather than statutory rape - because if the former charge carries a higher penalty. In these cases, evidence will of course be needed to prove the element of force or threat, in order to overcome a traditional consent defense.

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.

Unconscious victim

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.

Incapacitated victim

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.

  • For the purposes of illustration, it is easy to imagine a situation in which the victim is so incapacitated by drug or alcohol use that she is near unconsciousness. Based on the victim's account, toxicology evidence, and interviews with witnesses, it is possible to demonstrate that the victim was so incapacitated that she could not legally consent to sexual activity.

  • In these cases, the defense is likely to focus on denying that the victim was incapacitated to the degree alleged by the prosecution, thereby denying the second element of our equation. Because the victim was not incapacitated, the defense will argue, she was able to consent to the sexual activity in question. It is therefore critical to establish through interviews and other evidence that the level of victim intoxication was severe.

  • The defense will also likely argue that the suspect was also intoxicated, and so it becomes important to demonstrate who was in control of the situation. For example, witnesses can be interviewed about the relative levels of intoxication of both victim and suspect.

  • In any of these cases, the defense will also need to argue, however, that not only could the victim consent to sexual activity - she did consent to the acts in question. Thus, even in cases where the prosecution has framed the case as one involving an incapacitated victim, the defense is likely to challenge this characterization and raise a more traditional consent 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.

Victims with a disability affecting cognition or communication

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.

  • There is, however, a possibility that an affirmative defense can be raised in which the defense asserts that the suspect did not know of the victim's disability. The availability of this defense and the statutes governing its use will vary by state.

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.

Statutory rape

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).

  • For example, Connecticut has an offense of "second degree sexual assault" that is charged when sexual intercourse occurs between a victim who is 13-15 years old and an offender who is 2 or more years older than the victim.

  • Illinois also includes in their statutory definition of criminal sexual assault any sexual penetration occurring between a victim who is 13-17 years old and an offender who is in "a position of trust, authority, or supervision in relation to the victim."

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.

  • It is not required to provide any evidence of force or threat, because statutory rape constitutes a situation in which no force is required. The defense can only (1) deny that the sexual activity occurred or (2) contest the age/position of the parties.

  • The defense may also raise an affirmative defense, by arguing that the suspect did not know - and could not have reasonably known - the victim's age or status. The availability of this defense and the statutes governing its use will vary by state.

Other situations in which no force is required

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.

Other Types of Evidence

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:

  • Proving an element of the offense

  • Connecting the suspect with a particular person or place, or

  • Reconstructing or corroborating the victim's account of events

  • Reconstructing or corroborating the suspect's account of events

The latter purposes are typically met with associative evidence and evidence that is reconstructive or corroborative.

Associative (identification) evidence

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.

  • Associative evidence will be crucial when investigating any type of sexual offense, just as it is with any other crime.

  • This also highlights the importance of the suspect forensic examination for collecting reference standards -- to link the suspect evidence gathered from the victim or crime scene.

Reconstructive/corroborative evidence

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.

A Note Regarding Attempt Offenses

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:

  • An intent to commit a criminal offense, AND

  • A substantial step toward committing that act

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:

  • What did the victim think the suspect was going to do? This may be based on prior contact with the suspect, including such behaviors as battering or stalking.

  • What did the suspect say? Statements made by the suspect are often key in communicating his intent.

  • What did the suspect do? For example, did he tear at the victim's clothing, or begin removing his own?

  • What was the suspect's physical appearance? For example, were his pants unzipped, or his penis exposed. Did he have an obvious erection?

  • Does the suspect's behavior match that of other crimes in the area, such that they could potentially be attributed to the same person?

  • If the suspect is in custody, does he have any prior criminal history or any evidence of an existing paraphilia?

All of these questions can reveal information that is critical for establishing the suspect's intent.

Summary

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.

  • For example, all cases require establishing that sexual activity (penetration or contact) occurred, so the investigation must always identify and document evidence to that effect.

  • In a case of forcible rape by a stranger, the defense will likely argue misidentification, so evidence regarding the identity of the suspect will be crucial.

  • When the victim and suspect know each other, however, the investigative strategy will need to focus on establishing force or threat, because the defense is likely to argue consent.

Finally, there are a number of situations in which no force is required to establish an offense of sexual assault or abuse.

  • These include situations in which the victim is deemed unable to consent to sexual activity due to: lack of consciousness, incapacitation, disability, age, etc.

  • In these cases, the defense must rely on (1) denying the sexual activity, (2) contesting the status of the victim that rendered her unable to consent, or (3) denying that the suspect knew or should have known about the victim's status.

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).

Conclusion

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:

  • Define what issues are likely to be raised in court

  • Prioritize the value of various evidence

  • Determine the value of statements made by the victim, witness, or offender

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.

  • For example, an identification case could switch to consent, if the defense realizes that DNA or other evidence establishes that the victim and suspect did in fact engage in sexual activity.

  • Of course, the fact that the suspect switches defense strategies at any point will be used against him by the prosecution.

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).

Sex Offenders: Dynamics and Interview Techniques

Acknowledgments

This section was written by Rachael D. Berger, Project Associate, National Center for Women & Policing

Content for this module was developed partly on the basis of original material produced by:

  • Sergeant Joanne Archambault of the San Diego Police Department

  • Detective Harold Eisenga of the San Diego Police Department

  • David Lisak, Ph.D., of the University of Massachusetts

  • Detective Scott Keenan of the Chicago Police Department

Other material was adapted from:

  • Understanding Sexual Violence: The Judicial Response to Stranger and Nonstranger Rape and Sexual Assault." Created by the National Judicial Education Program to Promote Equality for Women and Men in the Courts (a project of the NOW Legal Defense and Education Fund in cooperation with the National Association of Women Judges). Funded by the State Justice Institute.

  • "Police Response to Crimes of Sexual Assault: A Training Curriculum." Written by Sharon M. Hunter, Bonnie R. Bentley Crewe, and Jamie L. Mills. Produced by the Connecticut Sexual Assault Crisis Services, Inc. Funded by Police Officer Standards and Training Council and STOP Violence Against Women Grant #VAW9606

  • "Model Guidelines and Sex Crimes Investigation Manual for Illinois Law Enforcement." Produced by the Illinois Law Enforcement Training and Standards Board and Illinois Coalition Against Sexual Assault.

  • "Developing a Coordinated Community Response to Sexual Assault and Domestic Violence." Produced by the Ending Violence Against Women Project of Colorado. Funded by the Bureau of Justice Assistance of the U.S. Department of Justice (Grant #95-WF-NX-008).

  • "Promising Practices: Improving the Criminal Justice system's Response to Violence Against Women." Written by Mary B. Malefyt, Kristin M. Little, and Alexandra H. Walker. Edited by Joan Kuriansky. Produced by the Technical Assistance Project of the STOP Violence Against Women Grant Program.

  • "Sexual Assault Investigations: A Telecourse Reference Guide." Produced by the California Commission on Peace Officer Standards and Training. Copyright 1995.

  • "Recognizing Criminal Personalities Telecourse." Produced by the California Commission on Peace Officer Standards and Training. Copyright 1995.

The National Center for Women & Policing gratefully acknowledges the assistance of these individuals and organizations.

Sex Offender Dynamics[120]

The Stereotypes

Most people picture a rapist as looking and acting a certain way, and if questioned would give some version of the following description:

He's mean looking, and he carries some type of weapon. He stalks his victims like a predator, attacking women at night in parks and dark streets, or breaking into their homes. He leaves them physically brutalized and emotionally scarred.

This is a compelling description of what most people fear. It is also an accurate description of the stereotypical rapist. But in most cases it is absolutely false.

Although the actions of all rapists are hideous, they do not necessarily "look mean" any more than Ted Bundy or Jeffrey Dohmer did. As discussed in the module on dynamics, most rapists do not carry or use a weapon. Most rapists do not stalk darkened streets and parks, nor do they break into homes. And most rapists leave few if any physical marks on their victims. The only true statement in the description above is that the rapist's victim is indeed left emotionally scarred. The psychological trauma of rape can last a lifetime.

The Truth

The truth about the rapist is that he can and does look like "any man." He is a doctor, a lawyer, a corporate executive, a college athlete, the "good" Samaritan who offers help to the stranded woman, the handsome guy she meets at a friend's house, and the former boyfriend who still has a key to the victim's apartment.

So, why do these false stereotypes of the rapist still exist?

If the stereotype of a rapist is so far from the truth, why does it continue to be held so widely and so persistently in our society?

  • One reason is that the stereotype of a rapist is actually comforting to many people. If someone thinks that they can spot a rapist by how he looks, and they can avoid him by evading darkened streets and double-locking their doors, then they can give themselves a feeling of safety, even if it is only the illusion of safety.

  • Another reason for the persistence of false stereotypes is that they are fed by high profile cases of serial rapists, cases that terrorize the public and seem to infatuate the media and the public.

These stereotypes have also been perpetuated by decades of research on the incarcerated/detected rapist. For years, social scientists studied detected rapists and published their findings. Many of these rapists were indeed very violent, many used weapons, and many attacked strangers. What was overlooked was the fact that these very characteristics - the use of violence and weapons - were precisely the factors that put these rapists behind bars. The sex offenders who were committing the vast majority of rapes were more clever about their choice of victim (they attacked "acquaintances") and more controlled in their aggression. As a result, these rapists were rarely reported by their victims; if reported, they were rarely prosecuted; if prosecuted, they were rarely convicted. As a result, they were almost never studied by social scientists.

Research on the Undetected Sex Offender

It is only within the past 20 years that the truth about rape and the sex offender has begun to emerge. Studies of victims reveal that barely 10% ever report the crime, and that 80% are raped by men they know to some degree, including men they met at a party, men who picked them up in a bar, men who escorted them home at night, and men who they used to date[121]. These studies prompted researchers to begin studying "undetected" rapists; criminals who were flying below the radar screens of the criminal justice system.

By using new research methods, gradually more and more has been learned about these offenders, the men who are and always have been responsible for the vast majority of sexual assault crimes. The following summary of research findings paints a far more accurate picture of the "typical" sex offender than the one portrayed by the stereotypes described above.

Premeditation

Sex offenders who attack women they know are sometimes tagged with the misnomer, "date rapist." Often, there is the implication that the man and the woman went out on a date, started having sex, and then "somehow things got out of hand." Actually, these sex offenders typically premeditate the sexual assault with great detail and cunning.

These rapists typically manipulate their victims into positions of vulnerability by getting them alone in a room, a car, or in a secluded area. They ply their victims with alcohol and, increasingly, use so-called "date rape drugs" to disable them entirely.

Perhaps the clearest indicator of the premeditation behind these assaults is the fact that they tend to be repeated. Recent research indicates that, just like incarcerated rapists, undetected rapists are repeat offenders who use violence in many domains.

  • One sample of 122 undetected rapists admitted to 386 rapes, 20 other acts of sexual assault, and 264 acts of battery against intimate partners[122].

  • These same 122 rapists also admitted to 365 acts of sexual abuse against children and 91 acts of physical abuse against children[123].

Instrumental Violence

A key characteristic of the "undetected" sex offender is that they tend to use only as much violence as is necessary to intimidate their victim and ensure her submission. They use verbal threats, and often in a more sophisticated manner than simply threatening physical harm. For example, they may tell their victims, "you're drunk, no one will believe you," or "if you tell anyone, it's your reputation that will suffer." These offenders will escalate their level of threat and violence as needed, typically using their body weight and arms to pin down their victims and terrify them into submission.

Use of Alcohol

Alcohol is an extremely common ingredient in sexual assaults, often consumed by both the victim and the perpetrator. Many rapists use alcohol to disinhibit themselves and also to render their victim more vulnerable. Many rapes occur when the victim has been rendered either semi-conscious or entirely unconscious from the effects of alcohol.

Sexual Behavior

Undetected rapists have consistently been shown to be more sexually active than other men. Apart from their sexually aggressive behavior, they engage in consensual and coercive sex far more often than is typical for men of their age group. Their sexual activity tends to be an important component of their identities. Thus, rather than being a product of greater sex drive, their increased sexual activity appears to be driven by their view that if they are not very active then they are neither "successful" nor adequate as men.

Attitudes and Beliefs

Sexually aggressive behavior is typically part of a belief system that views women as sexual objects to be conquered, coerced and used for self-gratification. Undetected rapists are much

more likely to hold stereotyped beliefs about the "proper" roles for women and men in society, and to rigidly adhere to those beliefs. They adhere to "rape myths" that both justify their aggressive acts and foster them. Their adherence to rape myths and rigid stereotypes frequently allows them to distort their perceptions of their victims' behavior. For example, because they tell themselves that "women say no to sex even when they really want it," they can disregard their victims' obvious signs of terror and resistance.

Underlying Motivations

Undetected rapists have repeatedly been found to harbor chronic, underlying feelings of anger and hostility toward women. They typically feel easily slighted by women, and carry grudges against them. This underlying hostility is easily evoked and colors their distorted perceptions of women as "teasers" who either "secretly" want to be coerced into sex, or else "deserve" it. These men have also consistently been shown to have strong needs to dominate and to be in control of women, and to be particularly fearful of being controlled by women. This characteristic leads them to view sexual relations as "conquests," and all women as potential "targets" of conquests. Consistent with their very stereotyped beliefs about sex roles, undetected rapists are shown to be more emotionally constricted than nonaggressive men. They are less able to label their own emotional experience, and much less emotionally expressive. As a consequence, they are also less capable of resonating with the emotional experience of other people, and are therefore less empathic than nonaggressive men.

Sexually Violent Subcultures

A consistent finding in the research on "undetected," sexually violent men is that most of this violence emerges either directly or indirectly from what have been termed "sexually violent subcultures." Examples of such subcultures include fraternities and delinquent gangs. These subcultures are powerful forces that both reflect the rapist's views about women and sexual conquest, and also help to shape them. For example, at certain college fraternities the use of violent pornography is a frequent form of "entertainment," providing explicit images of rape as being acceptable, noncriminal, and a sign of male virility. Within these subcultures, "sexual conquest" - having sex with as many women as possible - becomes a critical measure of how men view themselves and each other. The greater the number of such conquests, the more manly he is. The use of coercion and violence to secure these conquests is normalized in the subculture and becomes simply another part of the man's "sexual arsenal."

Hypermasculinity

Consistent with their stereotyped and rigid views about the "proper" roles of men and women in society, undetected rapists tend to adopt highly "gendered" identities; that is, they see themselves as hypermasculine; they strive to always behave in rigidly and stereotypically masculine ways. They are always on the alert for any perceived slight to their masculine identities, and they are made very anxious by any situation that might cast doubt on their perceived masculinity. When such deeply held beliefs are combined with the effects of sexually violent subcultures, as described above, the mixture often becomes dangerous. The "power" motivation that underlies the constant striving for sexual conquest mixes with the rapist's underlying hostility toward women and his hypermasculine identity. When a woman resists his coercive sexual pressure, he is very likely to perceive this as a challenge and affront to his masculinity and to react with anger and aggression, behaviors that restore his sense of adequacy.

Developmental Antecedents

While the traditional view about incarcerated rapists was that they harbored deep-seated anger towards their mothers, the evidence indicates that among undetected rapists, anger and disappointment about their fathers is far more salient. For some of these men, damaged relationships with their fathers appears to feed their need to view themselves as hypermasculine, and to drive their rigidity and stereotyped beliefs and behaviors. Another developmental factor that has been associated with sexual aggression is child abuse. The rate of child abuse among undetected rapists, particularly childhood physical abuse, is much greater than it is among nonviolent men.

Implications for Police Investigation

Obviously, there is no one profile or even group of profiles that characterize these undetected sex offenders; in fact, research indicates almost precisely the opposite. They come from all races and ethnic groups, all professions and all socioeconomic classes. However, many of these sex offenders are likely to differ in significant ways from sex offenders who attack strangers. For example:

  • Most undetected sex offenders have committed multiple offenses without ever being confronted by a law enforcement officer.

  • Many of these sex offenders will possess very smooth personal styles. They may have considerable psychological sophistication.

  • If confronted with an accusation, they may quickly and smoothly focus the conversation on the behavior of the victim, subtly undermining her credibility and laying the foundation for the inevitable "consent" defense.

  • For this reason, comments about the victim's promiscuity, or drug use, or prior "false" accusations should be expected.

Research on the Detected Sex Offender

To identify, apprehend, and interview sex offenders, many investigators find it useful to draw on research conducted with detected/incarcerated sex offenders. In fact, this information can be very helpful for a better understanding of sexual assault crimes and dispelling societal stereotypes associated with the rapist. For example, the following statistics illustrate current knowledge on the detected sex offender:

  • It is assumed that these rapists will attack multiple times over the course of a lifetime. Research suggests that many sex offenders show a continued propensity to reoffend[124].

  • Fifty percent of incarcerated sex offenders are suspected of having a childhood history of sexual or other physical abuses (although many abused children grow up to be non-abusive adults)[125].

  • A variety of federal statistical sources show a remarkable similarity in the characteristics of these rapists: 99 in 100 are male; 6 in 10 are white; and the average age is the early thirties[126].

  • Rapists and sexual offenders serving time in state prisons were less likely to have had a prior conviction history of violence than other incarcerated violent offenders, though they were substantially more likely to have had a history of convictions for violent sex offenses[127].

  • Violent sex offenders were substantially less likely than other offenders to have committed their crime with a weapon; however, rapists were about as likely as violent offenders to report having used a knife[128].

  • "About 30% of rapists and less than 15% of other sexual offenders reported that their victims had been strangers to them."[129] In addition, 25% of convicted sexual assault offenders reported that their victim was a child or stepchild[130].

Clearly, many of these characteristics challenge the stereotypes of "real rape" by suggesting that even incarcerated rapists are less likely than other types of violent offenders to assault a stranger, use a weapon, or report a prior conviction. However some characteristics, such as the likelihood of using a knife, confirm that sex offenders who are incarcerated are more likely than those who remain undetected to have committed something that looks like "real rape." In other words the more an offense looks like "real rape" (e.g., assault by a stranger, with a weapon) the more likely it is that the perpetrator will be convicted for it.

Research on Adolescent Sex Offenders[131]

According to the U.S. Department of Justice, in 1993, more than 15% of rapes and sexual assaults were committed by juveniles. Other estimates of juvenile sex offending are much higher, some indicating that approximately 30% of child sexual abuse is perpetrated by juveniles[132]. Some investigators have tried a retrospective approach to assess the magnitude of juvenile offending. They have given immunity and then interviewed incarcerated sex offenders, inquiring both about their true number of victims and also about the age at which they began offending. More than half of these men reported that they began sex offending as juveniles, many of them compiling hundreds of victims before being caught and incarcerated as adults.

  • One recent study used the polygraph to ascertain the magnitude of offending in a sample of 36 juvenile sex offenders. These juveniles initially reported a total of 111 victims[133]. When told that they would be asked the same question under polygraph, however, they admitted to an additional 77 victims and 153 other offenses[134]. When actually monitored using the polygraph, the numbers of reported offenses again increased with an additional 19 more victims and 359 more incidents[135].

  • These statistics strongly suggest that juveniles represent a substantial proportion of the sex offending population. Further, they indicate that many juvenile offenders are only beginning a long career of sex offending.

  • When research is used to examine the characteristics of those individuals it reveals that the majority of juvenile sex offenders do not fit the stereotype of the delinquent youth. Most come from two-parent homes and fewer than five percent have been previously diagnosed with a mental disorder. Sixty-five percent had no history of behavior or characteristics that would have indicated any likelihood of offending. However, there appears to be an over-representation among these offenders of a variety of school problems, including learning disabilities, special education needs, truancy and other behavior problems.

For a number of reasons, therefore, adolescent and young adult rapists are often dismissed or sentenced leniently. Partly, this is based on their appearance as "normal kids" who do not fit the profile of the delinquent youth. Partly, this happens because of the mistaken assumption that they are just experimenting sexually and will grow out of it. The bottom line is that sex crimes committed by juveniles should be taken seriously in order to prevent these youth from continuing to commit sexual assault crimes throughout their adulthood.

The Consent Defense and Implications for Police Investigation

Since the vast majority of sexual assault cases will hinge on the issue of "consent," and not on the identity of the alleged assailant, it is often a good tactic in the suspect interview to downplay the seriousness of the situation and the charge. By intimating that the case doesn't sound like "real rape," and that the interviewer shares the suspect's views on women and sex, the interviewer may be able to elicit incriminating statements from the rapist.

For example, many undetected sex offenders adhere to the societal stereotypes associated with the "real rapists" and firmly believe that they are completely different. These offenders may be convinced that using a "little force" is simply "rough sex;" that it is not "real rape" if they had drinks with the victim or if there was previous sexual activity. Thus, as long as the interviewer does not disabuse them of these erroneous beliefs, the rapist may well disclose incriminating statements.

When a rape case hinges on the issue of consent, law enforcement personnel often despairingly refer to it as a "he-said-she-said" situation, a contest of credibility. However, research indicates that most of these previously undetected rapists have committed prior offenses. Therefore, a good tactic in any investigation is to comb the rapist's social circles for other victims. Whether it be favorite bars and clubs, a college campus, or the office where he works, sending out "feelers" may well yield results. Former girlfriends and women he dated may have stories of battery or rape to tell.

Conclusion

Researchers have attempted to classify rapists by their behavior. However, most of this research has been conducted with incarcerated individuals. This research does not accurately reflect the entire population of offenders and tends to be comprised of disproportionately high percentages of violent sexual offenders and "stranger" rapists. Surveys of sexual assault victims continue to confirm that although the vast majority of sex offenses are committed by someone known to the victim, these offenses typically go unreported. They are usually committed by men who are never arrested, let alone convicted and incarcerated for their crimes.

Having said this, it is essential that law enforcement have all the tools and knowledge available when investigating a suspected sex offender. The remainder of this module will discuss the most commonly used personality disorders and characteristics often associated with sex offenders and interviewing techniques essential to a successful investigation.

These characteristics are drawn from research based on criminal personalities and can be used by law enforcement to guide their investigation of a suspect in a sexual assault crime. However it is critical that officers simultaneously maintain an open mind throughout the investigation and dismiss the common stereotypes associated with the "real rapist."

Suspect Interviewing Techniques

It is important for the investigator to understand that offenders who commit the vast majority of reported sexual assault crimes know their victims, and they have never been in contact with law enforcement. Therefore, it is essential that investigators become familiar with the research on undetected sex offenders as summarized in the last section. This research supplements the information that was also provided regarding the known characteristics of incarcerated offenders.

In 1997, Groth, Burgess & Holmstrom published what is currently the most widely used classification system for profiling and identification of the "unknown" sex offender (e.g. Power Rapist, Anger Rapist and Opportunistic Rapist). Many law enforcement officers describe this suspect typology as important and useful, so it is discussed in "Suspect Typology," an additional section within the supplemental materials.

Because the purpose of this curriculum is to focus on the majority of sex offenders who are "known" to the victim, however, we will focus in this module on the personality characteristics and patterns that are perhaps more relevant for this population and purpose. This information pertains to personality disorders, and the techniques to use when interviewing suspects with associated characteristics.

The following section builds on this discussion to recommend techniques for conducting an effective interview with the sex crime suspect. These techniques include how to strategize the interview when the suspect displays characteristics associated with a specific personality disorder. While these techniques are useful, they must only be used with recognition of the limitations and risks associated with categorizing offenders. Experienced investigators understand that sex offenders may display any or none of these personality traits, and that the key to a successful interview is therefore to remain flexible and conduct a creative investigation.

Preparation for the Suspect Interview

Law enforcement officers have been traditionally trained to interview victims and interrogate suspects. Most interrogations, however, should begin as an interview. As with other interviews, a number of general recommendations thus apply:

  • Officers should allow the suspect to offer as much information as he wants without interruption.

  • It is best not to attempt to confront or interrogate the suspect about any admissions and inconsistencies in his statement until his complete statement is recorded.

  • Investigators must remember that confessions are rare, but that a good interview can produce numerous admissions.

Initially, admissions might appear insignificant, but in the case of a one-on-one assault with limited physical evidence, any can boost the credibility of the victim. Those statements can thus be extremely useful evidence at trial.

Consider Conducting a Pretext Phone Call

Another useful piece of evidence can be the transcript from a "pretext phone call," also knows in some areas as a "confrontational call" or "monitored call." Although they are not legal in some states and strictly limited in others, investigators in those states where they are allowed should always consider using a pretext phone call in cases where the suspect and victim know each other. The recording obtained from a pretext phone call can be very helpful in determining facts and admissions of actions, and it can be useful in subsequent interviews with the suspect and for impeachment purposes. Techniques for conducting a successful pretext phone call are presented later in this module.

Determine Whether the Rape was "Blitz" or "Confidence"

"Blitz rape" and "confidence rape" are terms that have been developed by clinicians and researchers to describe stranger and non-stranger sexual assaults[136]. By determining which type of rape has been committed the investigator can then determine the suspect's defense and therefore guide the interviewing strategy.

  • A "blitz rape" is a sudden surprise attack by an unknown assailant. This is the type of assault that most people think of as "real rape," and the type that has traditionally received societal attention and concern.

  • A "confidence rape" involves some nonviolent interaction between the rapist and victim before the attacker commits the sexual assault. The perpetrator uses the relationship to gain access to the victim.

The investigating officer should make every attempt to immediately identify whether the assault was a blitz or confidence attack. This information will help determine whether the suspect is likely to deny any contact with the victim (usually in the case of a blitz rape) or claim that she consented (usually in the case of a confidence rape). This knowledge will help the investigator conduct an appropriate investigation and suspect interview.

Choose an Appropriate Time and Place for the Interview

The timing of the interview can be very important. Generally, it is recommended that the suspect is confronted as soon as practical -- preferably before he learns about the investigation -- to lock him into his story. If the suspect is surprised, he will be less able to construct mental defenses and alibis.

Although the purpose of confronting the suspect as soon as possible is to give him less time to construct a defense, officers should make a timing determination on a case by case basis. This decision should be made in consideration of issues such as the victim's safety and suspect personality/typology.

In addition to the timing, the location of the interview can be very important because it has an impact on whether:

  • The suspect feels free to leave

  • The suspect feels more versus less threatened, and

  • Whether Miranda warnings must be given to the suspect.

If the suspect is someone with a lot of personal power, removing the suspect from his home or place of employment may help reduce his feeling of control. If the suspect is someone with very little personal power or presence, taking the suspect "to the station" may cause him to feel so threatened that he will only think about protecting himself. This may make admissions harder to obtain. In either case, the interrogation should be conducted in a place that is quiet and free from any potential distractions and interruptions.

Learn all Relevant Information

Officers must be familiar with background information on the suspect in order to assess the facts and circumstances and the personality of the suspect, such as the following:

  • Criminal history, conviction history, and reports of uncharged acts, (even traffic tickets)

  • Information from other officers who know or who have previously investigated the suspect

  • Probation record, parole status and any psychiatric treatment reports

  • Any information from/about family members, friends, neighbors, etc.

  • Relationship between suspect and victim(s). For example, do the suspect and victim(s) know each other from work, are they neighbors, friends, or partners etc.

In addition to these general considerations, investigators should also take into account any personality characteristics or disorders of the suspect that might affect the style and tone of a suspect interview.

In cases of multiple suspects, the investigator should identify dominant vs. passive suspects and assess their behavioral characteristics/personality traits. Multiple suspects should always be interviewed separately.

Using the Polygraph with Sexual Assault Suspects

Although the polygraph is not recommended for use with sexual assault victims, it can be a valuable resource when interviewing suspects. The evidence from a polygraph is inadmissible in court, but it can be used to direct an investigation and provide additional information to an investigator. To that extent, the polygraph should be considered one tool among many that can be utilized in the context of an entire sexual assault investigation.

One reason that polygraphs are useful with sexual assault suspects is because they are often narcissistic and more than willing to submit to its use. Because these suspects operate in a society that quickly judges sexual assault victims, they are often confident in their ability to use these biases to their advantage. Of course, the polygraph test is fallible, but at the very least it provides the investigator with a second opportunity to observe and talk with the suspect. When the suspect fails, however, this can provide direction to the investigation and form the basis for confronting him to confess or make incriminating admissions.

When preparing for a polygraph examination, investigators should meet with the polygraphist in advance to discuss the investigation and prepare test questions that will be asked. Questions must be specific, with no room for interpretation. These test questions can also be used to clarify issues such as the suspect's understanding of sexual terms (i.e., the definition of sexual intercourse). To illustrate, the following questions would be ineffective because the sexual terms have different meanings to different people:

  • Did you molest Janice?

  • Did you have sex with Janice?

Rather, questions should specifically address elements of the crime:

  • Did you put your finger in Janice's vagina?

  • Did your penis touch Janice's thigh?

In cases where the suspect completely denies sexual contact, it may be significant to simply establish that a sexual act occurred. However, when the suspect raises a consent defense it is also necessary to establish that force was used to accomplish the act. In these cases, questions such as the following should be used:

  • Did you force your finger in Janice's vagina?

  • Did you threaten to hurt Janice if she didn't put her mouth on your penis?

  • Did you have a weapon with you when you had intercourse with Janice?

  • Did Janice agree to have intercourse with you?

  • Was Janice crying when you were having intercourse with her?

  • Did Janice tell you she did not want you to put your penis in her anus?

If the Suspect Confesses, Consider Using an "Apology Letter"

In some cases, it may be appropriate to use an "apology letter" from the suspect[137]. Although this type of letter is not a new idea, some have suggested that it is underutilized in the area of sexual assault investigation.

Specifically, an apology letter is used after the suspect has made a confession -- or a partial admission, perhaps acknowledging that the "consensual sex" involving the victim was rougher than usual. At this time, the investigator suggests to the suspect that he write such a letter to the victim (or the victim's family, or prosecutor, etc.), in order to explain his perspective on the incident. If the suspect objects, the investigator can use persuasion to convince the suspect that this type of letter will be used to demonstrate remorse to the prosecutor or judge. Another tactic is to explain to the suspect that police reports are "black and white" and only report facts, not sentiments. The investigator can then offer the suspect the opportunity to supplement this report with a letter demonstrating his true feelings and remorse about the incident.

This technique is recommended for suspects who have confessed and are left somewhat vulnerable. The apology letter represents an opportunity to "put the whole thing behind them" or "try to make things right." Perhaps surprisingly, advocates of this technique suggest that nearly all suspects can eventually be convinced to write such a letter. The value of the apology letter is that it supplements the confession as evidence, and it often persuades suspects to plead out and avoid a lengthy trial.

Personality Disorders and Suspect Interviewing Techniques[138]

The following are techniques for interviewing different personality disorders that might be observed among suspected sex offenders. However, this discussion is based on research for recognizing criminal personalities more generally, not just with sex offenders. In addition, investigators are cautioned that offenders might manifest a blend of characteristics associated with the various personality disorders, or they may exhibit none of these characteristics at all. Therefore, the interviewing officers may need to change his or her tactics during the course of the suspect interview based on information that is revealed regarding any personality characteristics or disorders.

Psychopathic (Antisocial, Sociopathic)

An individual who is psychopathic may have a lifelong history of misconduct. For example, as a child, a psychopath may have participated in truancy, vandalism and fighting. As an adult, he may be involved in multiple relationships, experience failure to meet financial obligations, and have difficulty maintaining steady employment.

In addition, a psychopath is often indifferent toward others and has no qualms about lying for gain or pleasure. The predominant trait of this individual is egotism. Other traits may include cunning and "macho" behavior.

Interview Techniques
  • If the suspect is previously unaware of being the target of a police investigation, a premature approach by law enforcement could drive him into more discreet activities, thus complicating the investigation.

  • An experienced investigator should conduct this suspect interview because this personality type can be extremely challenging.

  • The interrogator should have knowledge of sadistic behavior and related methods of committing sex crimes.

  • The investigator should present a professional "command presence" during the interview. It is important that the interviewing officer where a suit or a police uniform. This technique will help the officer assume control of the interview.

  • The interviewing investigator should address the suspect with a respectful title (at least initially).

  • It is important that the investigator show respect for the suspect's intelligence. For example, investigators can act as if they are learning from the suspect and are genuinely curious about how the suspect committed the crime.

  • The investigator should be careful when considering whether to "bluff" during the interview. For example, some suspects when confronted with an apparently overwhelming body of evidence may bargain or deal to minimize punishment. However, this is not always the case. In fact, the investigator may undermine the success of the interview by presenting false evidence and appearing weak.

  • The investigator should allow the suspect to take center stage, and use open-ended questions as a central component of the interview.

  • These suspects generally have above-average intelligence and are cunning. They may attempt to deceive the investigator and manipulate the interrogation. For example, the suspect may show emotions that are not real.

  • The investigator should be aware that this suspect would not be affected by being caught in a lie or an obvious distortion. The suspect is likely to disregard or ignore this fact without being bothered by it.

  • These types of suspects may attempt to shock or offend the investigator as a way of disrupting or controlling the interview.

  • The investigator should allow the suspect to confess in the third person.

Narcissistic (Narcissism)

Narcissism implies self-love as opposed to object-love or love of another person. A narcissist may live a life of fantasies about their success, beauty, and remarkable talent. These individuals are so self-focused that they look to others only to further their own goals. They are rarely attentive to the needs of others. A narcissist believes that he or she is "special" and "unique" and can only be understood by other "special" or "high status" people.

Other personality traits of the narcissist may include:

  • self-entitlement

  • hypersensitivity to criticism (real or perceived)

  • envy of others, and

  • feelings of worthlessness.

The behavior of a narcissist is designed to extract praise, admiration, and special consideration from others. These individuals will often exaggerate unrealistically about their successes, and they are typically boastful and arrogant.

Interview Techniques

Many of the interview techniques for the narcissistic personality are identical to those of the psychopath.

  • The investigator should present a professional "command presence" during the interview. It is important that the interviewing officer wear a suit or a police uniform. This technique will help the officer assume control of the interview.

  • The interviewing investigator should address the suspect with a respectful title (at least initially).

  • It is important that the investigator show respect for the suspect's intelligence. This suspect will want the investigator to recognize that he has superior qualities and has the ability to get away with committing a crime.

  • The investigator should be careful when considering whether to "bluff" during the interview. For example, some suspects when confronted with an apparently overwhelming body of evidence may bargain or deal to minimize punishment. However, this is not always the case. In fact, the investigator may undermine the success of the interview by presenting false evidence and appearing weak.

  • The investigator should begin the interview by asking for the suspect's side of the story. It is important that the investigator give the impression that he/she finds it difficult to believe a person of the suspect's status and intelligence would be involved in something like a sexual assault.

  • It is important for the interviewing investigator to make comments throughout the interview that convey true understanding, rather than simply nodding or otherwise acknowledging the suspect's statements. For example, the investigator can provide positive reinforcement to the suspect for participating in the interview.

  • The investigator should not expect any empathy or concern for the victim, interviewer, or the investigation. Any actions or behaviors displayed by the suspect during the interview will be entirely self-serving. These suspects are totally unable to see things from any perspective other than their own.

  • It is important that the investigator avoid all forms of accusations or debate during the interview. This suspect is extremely sensitive to criticism, real or perceived. If the investigator attempts to debate with the suspect, he/she will only undermine communication and the success of the interview.

  • A useful technique when interviewing these suspects is to review the information obtained during the interview and ask for the suspect's analysis as if he were the investigator.

Paranoid

Paranoid is a term commonly used to describe an overly suspicious person. This individual shuns close relationships and often suspects others are intending to harm him/her. A paranoid individual is usually hypervigilant to the surrounding environment and to criticism.

The paranoid individual often feels threatened (whether real or perceived), and he/she is therefore watchful and quick to react. Additional characteristics of a person who is paranoid may include brooding, difficulty in forgiving, lack of a sense of humor, quarrelsome behavior, and an abrasive and resistive attitude to external authority and control.

Interview Techniques
  • When interviewing a paranoid individual, the investigator should remove any items or clothing that might signify authority. For example, the investigator should remove his/her gun, badge, police lapel pins, and tie clips before beginning the interview -- of course, taking into consideration officer safety at all times.

  • If possible, the investigator should conduct the interview in a formal, sterile environment. For example, it is advisable to use an interview room free of outside noises and disturbances. In addition, the investigator should be aware that any offers of hospitality such as, coffee, snacks, and the use of the bathroom may be viewed suspiciously by the suspect.

  • The interviewer should strive to create an environment that is candid and open, yet formal. The suspect may truly believe that he has been greatly wronged.

  • The investigator should use non-threatening posture/body language, and maintain physical distance in order for the suspect to remain as comfortable as possible.

  • Interpersonal relationships are not important to this type of suspect, so the investigator should understand that the development of rapport will be limited. In addition, the use of humor may be viewed as a weakness.

  • The investigator must give the suspect the opportunity to vent about the situation without attempting to change his perceptions.

  • It is important for the investigator to make comments throughout the interview that convey true understanding, rather than merely nodding.

  • It is essential that the interview remain focused on the facts and circumstances of the sexual assault. The interviewer should never allow the suspect to change the subject of the conversation.

Paraphilic (Paraphilia)

Paraphilia is a condition in which persistent and repetitive sexually arousing fantasies of an unusual nature are associated. For example, a paraphilic may have a sexual preference for a non-human object for sexual arousal, repetitive sexual activity with human beings involving real or simulated suffering or humiliation, or repetitive sexual activity with non-consenting partners.

Other types of paraphilias include: fetishism, transvestitism, pedophilia, exhibitionism, voyeurism, sadism, sexual masochism, and/or partialism. The investigator must recognize that paraphilic behavior is a long-term personality disorder and difficult to treat. These deviant sexual behaviors accumulate and are not discarded.

Interview Techniques
  • The investigator conducting this interview must be very comfortable with aberrant sexual behaviors in order to conduct a thorough interview with this type of suspect.

  • The investigator should use a soothing and reassuring voice throughout the interview and refer to the suspect by his first name. It is best to stay away from harsh terminology (e.g., pervert, rapist, molester, etc.) during the interview. This type of language will only alienate the suspect.

  • While conducting the interview, the investigator may find that some suspects will respond better to individuals of one gender than another. Therefore, the investigator should be prepared to arrange for an interviewer of the other gender if necessary.

  • This type of suspect will tend not to believe that anyone can understand how they feel. Therefore, it may be useful for the investigator to focus on post-offense remorse and guilt by demonstrating that he/she knows what the suspect is going through.

  • The investigator should minimize the offense as a technical violation of the law and not attach a moral judgement to it. It is important to make the suspect believe that he will not be rejected no matter what behavior he admits to having committed.

  • Interviewers can let the suspect know that the "system" has failed him and convey that they understand his struggle.

  • The investigator should never show doubt as to the events being investigated or the victim's account of what took place.

  • Investigators must remember that this type of suspect can compartmentalize his criminal behavior and appear normal. This type of suspect may therefore try to keep the interviewer out of his criminal compartment to protect his facade of "normalcy."

Conclusion

Despite the information used to characterize the various personality disorders above, it is critical to reiterate the risks associated with categorizing offenders. First, personality disorders are not necessarily mutually exclusive, so a suspect might exhibit a mix of characteristics associated with each. Second, personality disorders will range in severity and are not the sole cause of criminal behavior. Many individuals with these personality disorders do not commit criminal acts. Third, investigators may encounter a suspect that does not display any specific personality disorder and may not be easily categorized. For all of these reasons, it is essential that investigators keep an open mind throughout the interview and conduct a thorough and creative investigation.

Suspect Statements[139]

The purpose of the suspect interview is to illicit statements that allow the investigator to judge the culpability of the suspect. However, even a well trained investigator may overlook important statements, thereby hampering the success of the investigation. This section examines how to assess suspect statements and thus direct suspect questioning effectively and thoroughly.

Illustrative Examples

Imagine that an officer is assigned to investigate a burglary. He interviews the victim, who tells him that she knows who committed the crime -- it was one of the victim's friends. The officer then interviews the suspect, and he admits that he broke into the victim's home and took the victim's property. For all practical purposes this statement has guaranteed that the suspect will be prosecuted.

Now imagine that this same officer is assigned to investigate a sexual assault. He interviews the victim, who tells him that she knows who raped her -- it was the victim's boyfriend. The officer then interviews the suspect, and he admits that he had sex with the victim. However, unlike the burglary investigation, prosecution is not guaranteed. In fact, the case may have actually become more difficult to prosecute. This is particularly true if the suspect claims that the victim consented to have sex with him. When the suspect raises the issue of consent, the focus of the investigation changes from a question of who committed the crime to whether a crime was committed at all.

Consent is a defense that is unique to sexual assault prosecutions. While it is theoretically possible for the burglary suspect to raise the issue of consent, this defense is unlikely to succeed: "Yes, I broke into the house and took the stuff, but the owner wanted me to." This is because the public in general is not prepared to believe that someone would allow another person, even someone they know, to break into their home and take their property.

However, in the case of sexual assault it is not enough for the successful investigator to elicit a statement from the suspect that the sexual act occurred. The officer must also ask questions that will elicit information pertaining to the element of force or threat that are assumed to preclude the victim's consent.

Exoneration vs. Confession

Frequently investigators are asked if the suspect in a particular case confessed. However, experienced investigators know that rather than conclusively establishing a suspect's innocence or guilt, most statements fall on a continuum that ranges from exoneration to confession.

  • Exoneration: A statement from a suspect exonerates him when he both denies committing the offense and can provide verifiable information that establishes the impossibility of his involvement. For example, if a suspect is accused of sexual assault he would be exonerated by both denying that he committed the crime and also by proving that he was incarcerated when the assault occurred.

  • Confession: A confession is a statement in which the suspect admits committing all the elements of the offense, raises no affirmative defenses or mitigating factors and provides investigators with previously unknown information or evidence about the crime. For example, in a case in which the suspect is accused of raping a woman in his apartment, he could confess by both admitting that he forced her to have sex with him and by providing the investigators with a videotape he secretly made recording the sexual assault.

Most suspect's statements fall short of meeting the criteria for either exoneration or confession. It therefore falls to the investigator to decide where the statement lies on the continuum, by determining whether the offender's statement is exculpatory or incriminating.

Exculpatory vs. Incriminating Statements

  • Exculpatory Statement: This type of statement acts to clear one of blame. It does not necessarily exonerate a suspect completely, but it provides a piece of information that challenges the idea that he committed the crime as described by the victim or other witnesses.

  • Incriminating Statement:This type of statement involves a suspect in a wrongful act/crime. It is not likely that a suspect will offer a full confession, thus incriminating statements are those that either support the victim's story or catch a suspect in a lie.

To illustrate the difficulty that sometimes arises when evaluating a statement to determine whether it is exculpatory or incriminating, consider the following:

  • The suspect denies being with the victim when she claims she was sexually assaulted.

  • The suspect admits to having sex with the victim and to hitting her.

These statements could be either exculpatory or incriminating depending on what other evidence the investigator has discovered. It is critical to keep in mind that no suspect statement "stands alone" and must be viewed in the context of all the evidence.

  • Although the first statement might initially appear to be exculpatory because the suspect is denying involvement, it could actually be incriminating if there is evidence that proves the suspect had sex with the victim, and/or witnesses who will testify that they were together. Thus, this statement becomes incriminating by using other evidence that proves the suspect is lying. This type of incriminating statement is frequently overlooked.

  • In contrast, the second statement initially appears to be incriminating because the suspect is admitting to both sexual involvement and physical violence. However, the statement could be considered exculpatory if the suspect says: "We had consensual sex. When we finished, I started to leave and the victim became upset. We started fighting, she hit me and I hit her back." This statement is exculpatory because it provides a reasonable alternative account of the events. It explains the presence of DNA and the victim's injuries, without admitting to the elements of sexual assault. However, when an investigator obtains this kind of statement, it should never be taken simply at face value. This type of statement should always be investigated to determine if it is an accurate account or a clever excuse.

The bottom line is that any statement can be deemed exculpatory or incriminating only in the context of other evidence, including the victim's account. Officers must therefore be vigilant during interviews with suspects, to determine whether any statement is exculpatory or incriminating when considered along with other evidence in the case.

Provable Lies, Implausible Accounts of an Incident, and Partial Admissions

When determining whether a given statement is incriminating, when considered in the context of other evidence, it is important to keep in mind that incriminating statements may include provable lies, an implausible account of an incident, and/or partial admissions.

  • Suspects tell several different types of provable lies, such as a statement of fact that can be disproved by evidence. For example, if the suspect states that he never had sex with the victim, this can be shown to be untrue with a DNA test. A second type of provable lie is a contradiction in the suspect's account of events. When required to give repeated detailed accounts of an event, the suspect's summary of the incident might change from version to version. One or two minor variations will not be incriminating, but when the suspect's account is riddled with contradictions, it can be used to destroy his credibility.

  • An implausible account of an incident may also constitute an incriminating statement. When unexpectedly confronted with an accusation, some suspects will attempt to explain the evidence with a convoluted portrayal of the event. The more complex an explanation, the less likely it is to be true, and the more likely the investigator will recognize the suspect's explanation as an attempt to explain away unfavorable facts.

  • A partial admission may also be an incriminating statement. A partial admission is a statement in which the suspect admits to some but not all of the elements of the crime. For example, a suspect might say that the victim said "no" and struggled to get away when he initially requested sex, but explains that she then later changed her mind and consented to have sex. Good investigators follow up on a partial admission with additional questions to elicit more incriminating information. In this case, the investigator might ask how the suspect knew the victim changed her mind. The suspect might say, "She stopped struggling." This statement is incriminating because most jurisdictions no longer equate compliance with consent.

Techniques to Encourage Additional Details

Regardless of which type of incriminating statement is offered by a suspect, every effort should be made to elicit as much detail as possible. Often seemingly unimportant details can provide necessary links to other pieces of evidence or information, or they can be used to uncover inconsistencies in previous or subsequent statements. Techniques to encourage additional details from the suspect follow.

  • It is not advisable to challenge lies offered by the suspect. Rather, suspects should be allowed to develop them and add details to them. Often, the details can later be used to dismantle the lies, and may increase the likelihood of an admission. Further, a well-documented lie can sometimes be very powerful evidence for prosecution.

  • Investigators should encourage the suspect's excuses or justifications (denial). Perpetrators of sexual assault often need to protect their egos, so "going along" with this conversation may result in an admission.

  • It is also important to consider the offender's motives and rationalizations. Most sex offenders rationalize their behavior to justify their actions or deny the allegations. A common rationalization is entitlement: "I paid for dinner," "This is my girlfriend/wife," etc. Another offender may rationalize that the victim "disrespected" him. For example: "I gave her drugs, so she owed me sex." By encouraging these rationalizations or otherwise "playing along," the suspect may be encouraged to provide additional details to his account of events.

Refer to the supplemental materials entitled, "Interviewing and Interrogating Sexual Assault Suspects," by John E. Reid and Associates for additional information on offender rationalizations and developing themes during the suspect interview.

It is important to note that the investigator's interview with the suspect is not the only source of incriminating statements. Friends and acquaintances of the suspect can be interviewed for incriminating statements made to them, as well as any patrol officer who may have spoken to the suspect.

Frequently patrol officers do not recognize the incriminating nature of a statement and instead of recording the statement verbatim they will broadly summarize it, thereby limiting its impact at trial. Therefore, it is of the utmost importance that investigators always debrief the patrol officers in detail about any statements made by the suspect to ensure that they are accurately recorded.

Conclusion

Society is predisposed to believing a sexual assault suspect when he uses a consent defense. However, law enforcement can overcome this burden by obtaining incriminating statements from the suspect or others involved in the investigation. In fact, obtaining an incriminating statement frequently means the difference between a conviction and an acquittal. Investigators must know when a statement is incriminating and must be adept at effective interviewing techniques to ensure a credible case and support successful prosecution.

Using Pretext Phone Calls in Sexual Assault Investigation[140]

Introduction

The "pretext phone call" is an investigative tool that can be utilized in a wide variety of criminal investigations. It can be especially effective in sexual assault investigations, including drug-facilitated sexual assault.

In this context, a pretext phone call is simply a tape-recorded telephone call between the victim and the suspect. The call is usually initiated by the victim, under the supervision of a law enforcement officer -- preferably the lead investigator or case agent. The suspect is unaware that the call is being recorded. This technique may be referred to by different terms, including "confrontational calls," "pretense calls," "taping," "consensual taping," "monitored calls," etc.

The purpose of a pretext phone call is to elicit incriminating statements from the suspect. A suspect will frequently talk to the sexual assault victim about the incident if he believes the victim is alone and no one else is listening. The tape recording resulting from an effective pretext call gives the investigator leverage during the subsequent interview of the suspect because the investigator can confront the suspect with the statements the suspect made during the pretext phone call -- statements which were recorded on tape.

Evidence and statements obtained as the result of a pretext call can be powerful evidence in court, and are sometimes key in linking the suspect to the crime. However, depending on the victim and the circumstances, a pretext call can amount to a second victimization, if the victim cannot handle the emotional consequences a pretext call can create.

  • Some states have laws that make it illegal to record phone calls. However, some of these states exempt law enforcement officers from these laws when the officer is acting within the scope of his or her official duties. Some states require that court authorization be obtained before recording a call. Investigators must be aware of the legal issues governing such calls in their state.

  • Depending on state laws and local policies, an investigator may want to consider having the victim sign a consent form prior to making the pretext call. This form can also include language to protect a law enforcement agency from potential liability in relation to any later claims by the victim, such as claims relating to emotional injury.

Of course, no two cases are alike -- so the issues arising with each pretext phone call will be different. Some suspects are extremely dangerous and associate with other dangerous people. This monograph is merely a set of suggestions for the investigator to consider, however, the foremost consideration must be the safety of the victim. No set of suggestions could address all the safety issues that might arise in a given case. Therefore, as with any investigative step, the investigator should proceed with caution when considering or conducting a pretext phone call.

Determine Whether the Pretext Phone Call is Appropriate

It is imperative that the investigator interview the victim in detail before making a pretext call. The information gained from the interview will help the investigator formulate questions for the victim to ask the suspect. The information will also help the investigator analyze the statements made by the suspect during the recorded call. The investigator should be familiar with all aspects of the case, including witness statements.

An effective pretext call can only be conducted if the victim is willing to cooperate. Keep in mind that it may be too traumatic or embarrassing for some victims to converse with the suspect effectively. And, as noted above, when deciding whether to make a pretext call, investigators must consider the emotional effect the pretext call might have on the victim. If the victim is willing to make a pretext call, it might be advisable to have a counselor or victim advocate available to help the victim immediately after the call.

Depending on the circumstances, the investigator might consider having an undercover police officer (or a friend of the victim) pose as the victim for purposes of the pretext call. Obviously, if the suspect knows the victim well, the suspect may detect a difference in the voice - and this could undermine the effectiveness of the pretext call. However, the undercover agent (or friend of the victim) might be able to "explain this away." For example, the undercover officer (or friend of the victim) might "explain" that she has been upset, has been crying, and/or has not been sleeping well.

During the undercover pretext call, the suspect may request the victim's phone number so that he can re-contact the victim. In planning the undercover pretext call, consideration must be given as to what phone number, if any, to give the suspect.

A note of caution: If someone poses as the victim for the purposes of the pretext call, the implications to the victim and the victim's safety must be carefully considered, discussed with the victim, and addressed. For example, after the pretext call, the suspect may attempt to recontact the actual victim; the victim must be prepared for this possibility.

Necessary Equipment

  • Standard audiocassette recorder. The recorder should have both a "mic/input" jack (microphone input jack) and an ear plug jack. Handheld recorders work well, as pretext calls are frequently made from locations other than the investigator's office.

  • Ear plug. An ear plug allows the investigator to listen to both parties to the call while the call is in progress.

  • A device to connect the tape recorder to the phone for recording purposes -- specifically, a "Phone Recording Control Device" that connects directly between the phone line and the modular jack on the phone. It also plugs into the mic/input jack of the tape recorder. This device is simple to use, and provides dependable recording and excellent audio pick-up of both parties to the call. It can be purchased at electronic equipment stores for approximately $20.

Investigators should avoid using the suction cup devices sometimes used to record calls. The suction cup devices can result in poor quality tapes or worse. In one instance the suction cup device only recorded the voice of the witness working with the police - and not the suspect's voice.

When to Make the Pretext Call

The "best" time to make a pretext phone call will depend upon the circumstances of the case. A pretext call does not have to be initiated immediately; indeed, it can be initiated days, weeks, or even months after the incident. In some instances, a long delay may cause the suspect to think he "got away with it," and he might be more willing to talk about the incident. Depending on the circumstances, multiple pretext calls may be appropriate.

  • In lengthy investigations, investigators should consider initiating the pretext call on a date that coincides with the "anniversary" date of the crime or on some other date on which the suspect might be thinking about the victim. For example, if the suspect knows the victim well, the victim might call the suspect on the victim's birthday.

  • Preferably, a pretext call should be made before the suspect becomes aware of the investigation. However, even if the suspect knows of the investigation, a pretext call may be an appropriate tactic, especially in cases where the evidence is not yet strong enough to obtain a conviction.

    When an attorney represents a suspect, the legal principles applicable to contacts with represented persons must be followed. Under such circumstances, no direct or indirect contact with the suspect should be undertaken by law enforcement -- or anyone working under the direction or control of law enforcement -- without the express authorization of a prosecutor.

  • If an investigator is concerned that the suspect would immediately think that a phone call from the victim must be some kind of trap, the call should be made on a weekend or late at night, when the suspect might be off guard and less suspicious.

If the resources are available, a surveillance team can be used to survey the suspect's house and learn when he normally returns home from work. Then, on another day, the surveillance team can be in place when the victim is ready to place the call. When the surveillance team reports that the suspect has just returned home, the victim can then place the call. This procedure may minimize the stress and inconvenience of making a pretext call, only to learn that the suspect is not at home. Also, calling the suspect the moment he gets home from work might catch the suspect off guard. Finally, by using this procedure, the surveillance agents can testify that the suspect was home at the time of the call - and, thereby, provide additional evidence that it is the suspect's voice on the tape.

Preparing for the Pretext Call

In sexual assault cases, the victim frequently knows the suspect and pretext calls can be effectively utilized. If the suspect is a complete stranger to the victim, however, a pretext call may not be possible -- the suspect may wonder how the victim got his phone number and become suspicious. However, if there is not yet enough evidence to obtain a conviction, investigators might decide that there is nothing to lose by trying. With creativity, moreover, many potential problems can be eliminated. For example, a victim that is unknown to the suspect may tell him that he is actually known to a "friend of a friend," who gave her his number.

  • Investigators should always prepare a list of questions and statements the victim can say to the suspect that will encourage the suspect to talk about the incident. This list should then be reviewed with the victim. The victim must always understand the purpose of the call, which is to obtain incriminating statements by the suspect. Questions and statements can then be developed in anticipation of what the suspect may say to the victim (e.g., admissions, denials, apologies, and evasiveness). These questions should be listed on paper so the victim can refer to them during the call; this is critical because many victims become nervous during the call and forget what to say. Victims should be reminded to let the suspect do most of the talking, and to avoid interrupting him.

  • To help prepare the victim for the possible responses by the suspect, investigators should practice or "role play" the questions with the victim. This will help the victim avoid sounding like she is reading from a script during the call. The practice sessions should be as close to the "real thing" as possible -- even to the extent of having the victim call the "suspect" (the investigator) on a different line and the investigator responding in the different ways the suspect might respond. The more the victim practices under "battle conditions," the better prepared she will be to effectively conduct the pretext call.

  • During the pretext call the victim should avoid harsh, accusatory questions like, "Why did you rape me!?" A suspect's usual answer to this type of question is, "I didn't rape you." A suspect may admit he took advantage of the unconscious victim, but he doesn't want to be associated with the likes of a "rapist" or a "criminal." Instead, the victim might ask the suspect something like:

    • "Why did you have sex with me after I pushed you away and told you to stop?", or

    • "You knew I was out of it and didn't know what was going on, but you had sex with me anyway. Why?"

  • This type of question is more likely to elicit an incriminating statement. Victims should be advised to avoid nebulous questions like, "Why did you do it?" Rather, they should be more specific. A lack of denial by the suspect may be as incriminating as an admission.

    In some jurisdictions, the laws of evidence have a specific term to describe evidence which establishes that someone failed to deny an accusation under circumstances which called for a denial had the person been innocent. The term for that evidence is an "admission by silence." See, for example, United States v. Aponte, 31 F.3d 86, 87 (2d Cir. 1994).

  • Under the circumstances, it may be in the public interest for the victim to make misrepresentations to the suspect. For example, if the suspect asks the victim if she told the police what happened, she can tell him, "No." However, the victim should not make threatening statements like, "If you don't admit you raped me, I'm going to call the police and have you arrested."

  • When planning a pretext call, investigators should arrange to place the call from a location that is well suited for that purpose. For example, some law enforcement agencies have automatic answering devices on their non-undercover phone lines -- devices that, among other things, inform the caller that he has reached the law enforcement agency. Because some suspects use "Caller ID" and automatic return calling, such non-undercover phone lines should not be used. In most cases, the call can be made from the victim's residence.

  • Finally, the victim should not be under the influence of alcohol or drugs that could affect her judgment, thought processes, or emotional stability during the pretext call.

Making the Pretext Call

The following is a short checklist to consider when making the pretext call.

  • Investigators must ensure that there is nothing in the room to distract the victim, such as unnecessary persons or ringing phones. All police radios, cellular phones and beepers should be silenced. Similarly, anything that could cause noise or electronic interference should be turned off, such as public address systems, fish tank motors, etc.

Investigators must ensure that the victim is prepared for the various possibilities when placing a call. For example:

  • The pretext call may be "answered" by an answering machine;

  • The line might be busy;

  • The suspect may have "call waiting" and answer the pretext call while placing someone else on hold;

  • Someone other than the suspect may answer -- and the suspect may or may not be home;

  • The suspect himself may answer -- but other persons may be in the room with the suspect or the suspect may have visitors;

  • The suspect himself may answer -- and he may be alone; or

  • The suspect himself may answer -- and he may be alone -- but he may report that he doesn't have the time to talk right then because he has to go somewhere.

The investigator should also prepare the following:

  • If the recorder is battery operated, fresh batteries should be installed.

  • Recording equipment must be attached to the phone, and tested to make sure it is working properly.

  • The earplug must be attached to the recorder so the investigator can "listen in" on the call.

  • The investigator should record an introduction on the tape to document the date, time, case number, victim's name, etc.

  • Before placing the call, the investigator should double check the recorder to make sure it is turned on and placed in the "record" mode.

When the victim contacts the suspect, the investigator should listen carefully to both sides of the conversation and assist the victim by pointing to questions on the list that the victim should ask the suspect. It is helpful for investigators to have a note pad handy to jot down additional questions that come to mind as the conversation develops -- questions that the victim can pose to the suspect during the conversation.

Usually a pretext call will not last longer than thirty minutes. During this time, the victim should remain focused on talking about the incident. If the conversation drifts too much into other areas, the result may be a tape with little evidentiary value. Once the call is completed, the tape becomes evidence and should therefore be handled with the same care as any other piece of physical evidence.

Other Considerations

If a pager number is the only one available for a suspect, it may be necessary for police to wait with the victim by the phone until the suspect calls back. If the wait is too long, it is possible to install the recording equipment on the victim's phone and leave it with the victim in case the suspect calls her at a later time. In this situation, the victim records the call as an "agent" of the investigator -- a procedure that is legal in some states but not in others. Investigators must therefore determine the legality of this procedure in their jurisdictions.

If a recorder is attached to the victim's phone and left with her:

  • The victim must be provided thorough instructions on how to operate the recorder

    For evidentiary purposes, recording devices should be carefully tested and the victim thoroughly instructed in their use - - then these procedures should be documented in the police report.

  • If the victim has more than one phone, she will need to remember to pick up only the phone that is connected to the recording device. Otherwise the victim will need to give an excuse to the suspect to explain why she needs to "change" phones.

If the victim disconnects all her phones except the one with the recording device, the victim will not have to worry about picking up the "wrong" phone.

Again, the victim's emotional state must be considered when deciding whether she is capable of talking to the suspect without the presence, support and assistance of a police investigator.

Perpetrators have been known to initiate contacts with their victims. If this is a possibility, investigators might consider attaching the recorder to the victim's phone as soon as possible to record the suspect's calls. Even if the suspect has already been arrested for the rape, it might be advisable to attach a recorder to the victim's phone if there is any reason to believe that the suspect -- or his associates -- may try to call her.

If there is a possibility that the suspect or one of his acquaintances may visit the residence of the victim, consideration must be given to hiding the recording equipment. This situation could arise in a variety of circumstances -- particularly where the victim and the suspect are acquainted, have friends or acquaintances in common, or are members of the same family. This recommendation is intended to address the safety of the victim -- and is not a recommendation that the victim try to record a face-to-face conversation with the suspect, which may present practical problems, safety concerns, and legal issues.

If the victim is able to complete the pretext call, the tape must be retrieved as soon as possible to prevent loss or accidental destruction -- and to minimize evidentiary challenges relating to alleged tampering or chain-of-custody issues. Otherwise, normal chain-of-custody procedures should be followed.

Conclusion

Pretext calls have helped in a number of investigations that ultimately resulted in convictions. Some of these cases would not have been prosecuted were it not for the statements the suspect made to the victim during the pretext call. Pretext phone calls therefore represent one important tool for sexual assault investigators. However, they must be conducted with the utmost consideration of victim safety and well-being, and careful attention to detail.

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The Preliminary Investigation

Acknowledgments

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 would like to gratefully acknowledge the assistance of the organizations that produced these materials.

  • "Police Response to Crimes of Sexual Assault: A Training Curriculum." Written by Sharon M. Hunter, Bonnie R. Bentley Crewe, and Jamie L. Mills. Produced by the Connecticut Sexual Assault Crisis Services, Inc. Funded by Police Officer Standards and Training Council and STOP Violence Against Women Grant #VAW9606.

  • "Model Guidelines and Sex Crimes Investigation Manual for Illinois Law Enforcement." Produced by the Illinois Law Enforcement Training and Standards Board and Illinois Coalition Against Sexual Assault.

  • "Promising Practices: Improving the Criminal Justice System's Response to Violence Against Women." Written by Mary B. Malefyt, Kristin M. Littel, and Alexandra H. Walker. Edited by Joan Kuriansky. Produced by the Technical Assistance Project of the STOP Violence Against Women Grant Program.

  • Also special thanks to Detective Sergeant Joanne Archambault of the San Diego Police Department for her original contributions.

Introduction

When first responding to the scene of the crime, officers should use professional judgment and follow state law and department policies and procedures in determining a proper response to the radio call. Officer and victim safety must always be the first priority.

Because officers are expected to have a general understanding of the techniques for conducting a preliminary investigation, the following are intended to represent only those aspects of the preliminary investigation that are unique to sexual assault cases.

Some departments have developed a reference card for officers to keep with them, so a brief summary of departmental protocol is available for use on a sexual assault call. Such a card could be developed on the basis of this module, as well as state law and local policy.

Initial contact with communications

Communications personnel should be trained to ask whether a sexual assault victim has bathed, douched, urinated or otherwise altered her physical self, or engaged in any activity that may have contaminated or destroyed valuable evidence such as semen, saliva, hairs, etc.

  • If the victim states that she has not engaged in any of these activities, it is important for the call taker to request that the sexual assault victim not do so and clearly explain the reason for the request.

  • If, however, the victim has engaged in any of these behaviors it is important to make sure that she does not feel stigmatized for having done so. Communications personnel should thus gently explain how to avoid further contaminating evidence.

  • Although it is routine in many jurisdictions to save a copy of all 911 communications, officers should make sure that a copy of the tape is available for any sexual assault case.

See the module on communications for appropriate procedure by call takers and dispatch personnel.

Avoid making judgments about the victim or case

Police and communications personnel should refrain from judging a sexual assault victim or case based on information obtained from the victim or reporting party. Every victim responds differently depending on their own background, personality and the circumstances of the assault and so it is impossible - and inappropriate - to judge the validity of the claim based only on this preliminary information. (Refer to the module on "Victim Impact" for a complete discussion on common reactions and experiences of women who have been sexually assaulted.)

  • People from every profession have biases and stereotypes that they often unintentionally begin to process when information is received. For example, if the victim doesn't sound "hysterical enough" some police or communications personnel might question whether the assault actually happened.

  • Be aware of this very dangerous tendency to prejudge victims and cases, and make every effort to keep an open mind when responding to evaluate a sexual assault.

The bottom line is this: regardless of your "gut" feelings regarding a particular victim or case, proper investigative procedures must be followed for every sexual assault reported.

Responding to a hot call

When responding to a hot call and approaching the scene, be alert to people, vehicles, or objects that may be connected to the crime. Evaluate the scene for possible threats. For example, determine whether the suspect is still in the area, whether weapons were/are present, whether witnesses are hostile, etc. Follow departmental policy and maintain the primary focus on victim and officer safety at all times.

Responding to a delayed report

As we have stated repeatedly, most victims delay reporting their assault to police - if they report at all. For this reason, it is imperative that the responding officer be patient regarding any hesitancy by the victim.

  • On the one hand, it is important to document the reason for the delay (e.g., shame, embarrassment, fear, etc.).

  • However, officers must be sensitive to the fact that questions about the delay may cause the victim to feel you are blaming her or that you don't believe her.

Keep in mind that many state laws allow victims to report to police up to several years after the sexual assault. For this reason, officers must be familiar with the statute of limitations in their state for each specific crime classification; in many cases, this will depend on the age of the victim at the time of the assault.

Investigative approach for delayed reports

Always remember that a delayed report should not deter a thorough investigation.

  • For example, determine who the victim first told about the sexual assault. Outcry witnesses, spontaneous statements, or excited utterances can all be critical to corroborating the victim's allegations.

  • Make sure you ask the witness exactly what was said by the victim as well as the victim's appearance and demeanor at the time of the disclosure.

  • Determine whether the victim still has the clothing worn during or after the assault.

  • Evaluate the need for a search warrant of the suspect's home if that is the location of the assault.

  • Question the victim to determine if she has knowledge of any photographs or videotape that might have been taken during the assault.

  • Also ask the victim if the suspect might have taken something during the assault, or if the victim might have left something in the suspect's home (e.g., an earring or panties).

  • Question the victim about anything that might corroborate the victim's report.

Standard elements of the preliminary investigation

Ensure that the victim is safe

Evaluate the need for emergency medical care. If emergency medical care is needed, paramedics will transport the victim to the nearest trauma facility. Reassure the victim that she is safe and that her physical and emotional well-being is a top priority.

Make initial contact with the victim

During the initial contact with the victim, make every effort to ensure that she is as comfortable as possible. Avoid standing over the victim during this initial contact. Use simple terminology and avoid cop/legal jargon. Be sensitive of your body language and watch the victim's body language for signs of distress. Avoid reacting negatively to statements made by the victim. Use the victim's own terminology and clarify the meaning of slang terms for your report.

During both initial and follow-up contact with the victim, follow guidelines provided in the module on victim interviews.

Establish that a crime has occurred

At this time, only minimal information is needed to confirm that the victim was sexually assaulted. However, you need to learn enough information to establish the elements of the crime(s), identify witnesses, suspect(s), potential evidence, and the crime scene. Again, consult the module on victim interviews for guidelines on how to professionally elicit such information.

If the suspect is present

If the suspect is present (more likely when responding to a hot call than a delayed report) and he has been identified, detain him and remove him from the scene. Determine if the offender denies having sex with the victim or whether he admits to having consensual sex. It is important to discover this information as soon as possible since it will determine the investigative strategies you need to use to properly investigate the sexual assault.

Consult the module on offender dynamics and interview techniques for suggestions on how to handle these contacts.

Determine the "type" of sexual assault committed

As discussed at length in the module in law and investigative strategy, it is critical for officers to determine which "type" of sexual assault has been committed because this will every aspect of the investigation.

  • For example, one type of sexual assault is perpetrated when the victim is unable to consent to sexual activity because she is unconscious, asleep, or comatose.

In these cases, your investigation will focus on information that corroborates the victim's level of intoxication. For example, you would want to document whether the victim was vomiting or whether witnesses last saw the victim be carried out of the bar by the suspect. (For further information, see the module on drug facilitated sexual assault).

  • A second "type" of sexual assault occurs when the victim is incapable of giving consent because of a mental disorder, developmental disability, or physical disability.

This type of case requires that the investigating officer establish whether the victim has the intelligence capable of understanding the act, its nature, and its possible consequences. The investigation must also support the fact that the offender knew the victim was incapable of giving effective consent at the time of the assault. (For more information on this topic, see the module on special populations, including victims with developmental and other types of disability.)

  • The most common form of reported sexual assault is forcible, meaning that the sexual acts were perpetrated using force or threat.

In this type of case, the officer will need to document the presence of force or threat during the sexual activity. It is important to get statements from the victim regarding what she was thinking and feeling during the assault, to demonstrate that she submitted out of fear and did not consent.

For an expanded discussion of the various types of sexual assault, the defense that is most likely to be raised, and the type of evidence required to overcome this defense - see the module on law and investigative strategy.

Officers must clearly understand that the investigation of each "type" of sexual assault requires corroboration of an entirely different nature. In other words, the information needed to prove the elements required for these investigations is unique to that specific crime.

Anticipate a defense based on identification versus consent

In addition to these various "types" of sexual assault, cases also differ in whether the suspect is likely to raise a defense based on identification or consent. For this reason, it is important to determine as soon as possible whether the suspect is likely to deny sexual contact with the victim or claim that she consented.

  • Even if the suspect invokes his constitutional right to remain silent, officers must evaluate the circumstances of the assault to anticipate the suspect's defense strategy.

  • For example, officers can look at factors such as the relationship between the victim and the suspect, whether evidence links the offender to the victim, whether a witness can link the offender to the victim or scene, and whether evidence or witnesses can corroborate a lack of consent.

Again, consult the module on law and investigative strategy for a discussion of how an anticipated defense strategy affects the investigation of sexual assault.

Request additional resources if possible

When responding to any sexual assault crime, do not hesitate to request additional resources. Officers must be able to assess personnel and equipment needs to ensure thorough and efficient crime scene processing and evidence collection.

  • A single officer cannot effectively manage the scene, witnesses, the victim and suspect(s) in a sexual assault case without assistance.

  • Consider requesting assistance from supervisors, detectives, K-9 Units, air support, outlying law enforcement agencies and crime lab personnel.

Depending on the size of your agency and resources, consider using fire and paramedics to record license plates of vehicles, stand by with the victim, or secure a scene until the appropriate personnel arrives to assist. Advise responding officers how to approach the scene to prevent contamination of evidence.

Contact victim advocacy services

As soon as practical, officers should contact the victim advocacy services in their jurisdiction. In the majority of cases in which the report is delayed, this contact can and should be made almost immediately - especially if the victim has reported to a hospital or police department.

With a hot call, some victim advocacy services will report to the crime scene to assist the victim throughout the preliminary investigation. In other cases, advocates do not respond to the crime scene but can meet the victim at the hospital or police department. Depending on the type of assault and the length of time the victim will have to remain at the scene to assist with identifying suspect(s) and evidence.

  • If victim advocates are unable to respond to the crime scene, consider utilizing a crisis interventionist, police chaplain, emergency medical technician or other trained professionals/resources within your community.

  • When contacting victim advocacy or other professional services, assess any special needs of the victim, such as restoring communication or mobility, or the need for an interpreter. Be sure to notify the advocate of any special needs the victim might have, such as language differences or difficulties, mental or physical impairment, the need for a male advocate, etc.

Identify and secure the crime scene

Identify and secure the crime scene(s) to ensure that evidence is not contaminated or destroyed. Limit crime scene access to essential personnel and record identity and information for anyone who enters or leaves. Also determine whether there is a secondary crime scene.

  • As an example, if the victim left the actual location of the assault, this secondary location will likely have evidentiary value. The victim might have left the scene of the assault and gone home to immediately change clothes.

  • In this case, the clothing the victim put on following the assault -- especially clothing worn closest to the genital structures (e.g., panties, nylons, pants, and shorts) -- can be more important for producing evidence than the clothing worn at the time of the assault. (These must be collected in paper bags, not plastic. See the supplementary materials on evidence collection and storage.)

Of course, the victim's body is always one crime scene. Since evidence deteriorates as time passes, victims should be transported for a forensic examination as soon as practically possible. This forensic examination must never be conducted by the officer; it is conducted by medical personnel, following guidelines outlined in the module on the forensic examination.

In addition, the clothing left at her house and the actual scene of the assault must also be identified and processed for evidence. Crime scenes must be processed exhaustively, because once a crime scene is abandoned there is the potential for evidence to be lost or destroyed. Furthermore, a search warrant may be necessary for further access.

Finally, when identifying and securing crime scenes it is important to remember not to overlook vehicles. If the assault occurred inside a vehicle the vehicle should be impounded for later processing by your crime laboratory (depending, of course, on departmental policy).

Evaluate the need for a search warrant

Search warrants should be obtained if:

  • The assault took place in the suspect's home and written consent cannot be obtained.

  • Probable cause has been developed in the case of a stranger assault and you believe you can locate clothing the suspect might have worn at the time of the assault. Items to list in such a search warrant would include trace evidence, masks, paraphernalia such as foreign objects, lubricating substances and items used for bondage, videos, pictures, weapons, property or souvenirs the suspect might have taken from the victim.

  • A drug was used to facilitate the assault and you believe that evidence of the drug or its production might be found in the suspect's home, car, place of employment or school locker. This might include ingredients used to make the drug such as GHB or literature about the effects of a drug and its use as a "date rape drug."

  • Depending on your jurisdiction, you may need a search warrant to conduct a sexual assault examination with the suspect and to obtain necessary biological reference samples such as blood and saliva.

Do not hesitate to obtain the appropriate warrants needed to complete a proper search for all relevant evidence.

Identify and collect potential evidence

Potential evidence in a sexual assault case includes:

  • Crime scene photographs

  • Suspect and victim clothing

  • Biological evidence, (e.g., blood, semen, saliva from the victim and suspect)

  • Materials from which biological evidence might be collected (e.g., bedding, towels, carpet, sofa cushion)

  • Other evidence (e.g., discarded items, articles left at the scene, condoms, foreign objects)

  • Trace evidence, (e.g., hairs, fibers, debris)

  • Fingerprints, footprints, tire tracks, tool marks.

Although most of the evidence listed above is traditionally used to identify an assailant, note that some items may also be used to document force or threat.

  • Both the victim and suspect's clothing should be examined for tears or signs of force.

  • Blood can also be used to corroborate the use of force, although it is traditionally thought of as identification evidence.

Evidence collection in a consent case

If the victim was forcibly assaulted and you anticipate a consent defense, your investigation should focus on collecting evidence to corroborate the use of force or threat to perpetrate the assault. For example, the officer should determine:

  • If there is evidence of forced entry or disturbance, such as an overturned table or broken glass

  • Whether the victim called for help, and whether anyone heard her pleas for help

  • Whether there was loud music playing, and if so, how loud it was

  • Whether there was an obstacle preventing witnesses from seeing the assault, if it appears that witnesses should have been able to see something

  • Whether the victim was injured in any way

  • Whether the suspect was injured

Photograph the crime scene

Photographs and/or video documentation is critical to depict the scene as you first saw it, including the condition and location of recovered evidence. Such visual documentation is also especially helpful to the prosecutor in court.

  • Make sure the crime scene is photographed prior to processing.

  • Prepare a detailed diagram, including the location of potential evidence.

  • Many detectives like to have Polaroids for investigative purposes and to immediately have available for the prosecuting agency. However, 35mm photographs should always be taken in addition to any Polaroids.

  • A video camera is also helpful, especially in the case of a complicated or extensive crime scene.

Identify and isolate any witnesses

If there are numerous potential witnesses -- for example at a fraternity party, RAVE party, or night club -- assign one officer to monitor the witnesses in order to prevent them from talking to each other and to collect some form of identification from each person present. Record names, addresses, telephone numbers and other contact information.

Keep in mind that although there will rarely be eyewitnesses to the sexual assault, there may be any number of corroborating witnesses, such as a neighbor who heard a scream, or the gas station attendant who noticed the victim crying in her car.

  • Also be sure to identify and document the names of any witnesses who might have left the scene prior to your arrival.

It is especially important that the victim be questioned about who she first told about the assault. This person(s) must be identified and interviewed. These outcry witnesses can be used to boost the credibility of the victim, especially in the case of a delayed report or in a consent defense.

Conduct a preliminary interview with the victim

Once the scene is manageable and the victim is as comfortable as possible, conduct a preliminary interview with the victim. This interview should take place in privacy and without distractions.

  • If the victim would like to have a rape crisis advocate or support person with her, every effort should be made to provide such support.

  • Please see the module on victim interviews for more detailed information and guidance on how to successfully question the victim about the assault.

Make sure the victim understands you might ask her questions to which she does not know the answer. Reassure her that this is okay and she can tell you when she doesn't know or if she needs time to think about the answer. Your questions will most likely include the following:

  • Did the suspect ejaculate? If so, where? (Explain that this is not an element of the offense but indicative of where evidence might be located.)

  • Did the victim or suspect wipe their genitals with a tissue, sheet or item of clothing?

  • Did the suspect wear a condom?

  • Was a lubricant used? If so, did the suspect bring his own or was it the victim's?

  • Did the victim scratch or bite the suspect? (Reassure the victim that you are not blaming her if she did not actively resist, but you need to know what to look for during the suspect examination if the suspect is apprehended.)

  • Were drugs or alcohol used to facilitate the sexual assault? If so, a blood and urine sample should be obtained as soon as possible.

  • Does the victim know the suspect?

  • If the suspect was a stranger, note the length of time the victim was exposed to him and the conditions under which this contact took place. For example, determine what kind of lighting was present, whether the suspect wearing a mask or a disguise, whether the victim's head or eyes were covered at any time during the assault, whether the suspect attacked her from behind, etc.

  • If the suspect fled the scene, how did he leave and what was his last direction of travel?

  • Did the suspect take anything belonging to the victim?

  • Will the victim be returning to her home or where she can be contacted by detectives?

When documenting the victim's statements, do not sanitize them. Preserve them -- they are important. For example, if she says, "that bastard John Dollard did this to me!" record this statement verbatim. Do not indicate that "the victim identified John Dollard as the suspect."

Document all facts and observations, including the physical and emotional condition of the victim. Be specific when describing the condition of the victim. For example, indicate that the victim was tearful and trembling, rather than just "upset," or that the victim's shirt was torn and shoe was missing rather than noting that she appeared "disheveled."

Consider the victim's physical and emotional well being
  • Make sure to offer transportation for the victim to and from the hospital. Never leave the victim stranded.

  • Always let the victim know you are there to help her. Although you are charged with being an unbiased fact finder and historian, it is helpful and appropriate for you to tell the victim that you are sorry this happened to her.

  • When attempting to establish the elements of the crime (e.g., force or threat) ask open-ended questions such as "What were you thinking or feeling?" This type of question is better than one that conveys judgment, such as, "Why didn't you scream, fight or call the police?" Be patient and clear when asking questions.

Although you will be extremely busy coordinating the crime scene and the investigation, take a few moments to explain the procedures to the victim. The use of a multi-disciplinary team is extremely helpful for this purpose because an advocate can provide emotional support to the victim and take the time to explain what you are doing and why.

Assess the need for forensic examination of the victim

First responders must determine whether a forensic sexual assault examination should be obtained for the victim. The following are offered as guidelines for this assessment, however, officers should of course refer to departmental policies and community protocol.

  • A sexual assault examination should be obtained if the penile/vaginal penetration, penetration with a foreign object, or sodomy occurred within 72 hours of the report.

  • A sexual assault examination should be obtained if the assault was reported within 12 hours for fellatio, and longer for cunnilingus, depending on the amount of force and whether the victim has bathed or other acts occurred.

  • Do not hesitate to authorize an examination beyond 72 hours if the victim is complaining of pain or bleeding. Also consider the type of sexual assault and the age of the victim when assessing the need for forensic examination (e.g., prepubescent or post menopausal, the victim's prior sexual experience, and the amount of force used by the suspect).

The examining nurse or physician should be briefed about the details of the assault as you have come to know them. You should also arrange for a briefing with the same nurse or physician after the examination.

  • Make sure you compare notes with the nurse or physician as to the type of assault reported. Many victims will disclose acts to medical personnel (e.g., sodomy or oral copulation) that they might not immediately share with law enforcement out of embarrassment. If additional information is revealed, make sure you discuss this new information with the victim.

The examiner should alert you of any obvious forensic findings, such as carpet fibers, or other debris that might be connected to your crime scene. Finally, be sure to carefully document the findings of the examination.

Even if a forensic examination is not authorized by law enforcement, encourage all sexual assault victims to get medical attention, including testing for pregnancy and sexually transmitted diseases.

Identifying and locating the suspect

If the suspect is outstanding, broadcast the crime committed, the identity or description of the suspect including any vehicle involved, which direction the offender was last seen headed, and whether the suspect is known to be armed.

If the suspect has not been identified but is believed to be in the area, determine whether you will conduct a curbstone line-up (show up). If a curbstone line-up is conducted, make sure the victim is offered some distance from the suspect, as she is likely to feel frightened and/or threatened by the procedure.

  • As an example, have the suspect stand in front of the wall to a building. Place the victim in the front seat of a patrol car.

  • An officer must be present to record the exact statements of the victim at the time of the line-up, for example: "That's him. I'm absolutely positive," or "I think that's him but I'm not totally sure."

  • Note the date and time of the identification, the distance between the victim and the suspect, the lighting, and any obstructions that are present. Also note the length of time it took for the victim to make a positive identification.

Officers need to be cognizant of possible attacks to the show-up identification, to address these concerns and ensure that appropriate procedures are followed. For example, officers must be aware of the potential ramifications of any comments made to the victim about the person in custody, whether the suspect was in handcuffs or in the back seat of a patrol car, etc. Depending on the circumstances of the assault, handcuffs might be appropriate, however, officers need to be aware of the suggestibility of such acts and document the reasons for them in their report.

Determine whether an immediate arrest should be made

Depending on the policies of your department and prosecuting agency, the following factors need to be considered when determining whether an immediate arrest should be made:

  • The type of assault

  • Protection of the victim

  • Potential flight risk

  • Protection of the public

  • Destruction of evidence

When the report is delayed it is likely that much of the physical evidence will have deteriorated and witnesses will be unavailable at the time of the report.

  • For this reason, it may be advisable to postpone an arrest in a case of delayed reporting, in order to allow time for locating and interviewing any witnesses.

  • In these cases, it is also beneficial to consider the benefits of a non-custodial versus custodial interview (see the module on suspect interviews).

Finally, postponing an arrest can allow the officer to determine whether a search warrant or other tactics (such as a pretext phone call) could be used to develop incriminating evidence. (Again, see the module on suspect interviews for additional tactics and more specific guidelines.)

Conduct a preliminary suspect interview

If the suspect has been arrested, read him his Miranda rights and obtain a statement about what happened. In the initial stages of the investigation, this should be a non-threatening interview.

  • Your purpose should be to obtain as detailed a statement as possible.

  • This means you should not be doing all the talking or attempting to convince the suspect how much you know about what really happened.

  • Listen and document.

Depending on the policies of your department and prosecuting agency, consider audio taping the interview in the field. See the module on suspect interviews for further information.

Assess the need for forensic examination of the suspect

Immediately following the preliminary suspect interview, determine whether a forensic sexual assault examination should be obtained. Consider the length of time since the assault occurred, the nature of the assault, whether the victim believes she injured the suspect, and the likelihood that evidence, cells, or fluid were transferred from the victim to the suspect.

  • Regardless of the length of time, DNA reference samples (i.e., blood and or saliva) should be obtained from the suspect.

  • Depending on your state's laws and departmental policy, a search warrant may be needed prior to the suspect's forensic examination.

Many departments find it helpful to develop a "checklist" or other guidelines to assist first responders in the preliminary investigation of sexual assault. Two examples of such forms are provided in the appendix. The first is from San Diego Police Department and the second is from Denver Police Department.

The Role of Victim Advocates

Acknowledgments

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.

  • "Police Response to Crimes of Sexual Assault: A Training Curriculum." Written by Sharon M. Hunter, Bonnie R. Bentley Crewe, and Jamie L. Mills. Produced by the Connecticut Sexual Assault Crisis Services, Inc. Funded by Police Officer Standards and Training Council and STOP Violence Against Women Grant #VAW9606.

  • "Model Guidelines and Sex Crimes Investigation Manual for Illinois Law Enforcement." Produced by the Illinois Law Enforcement Training and Standards Board and Illinois Coalition Against Sexual Assault.

  • "Developing a Coordinated Community Response to Sexual Assault and Domestic Violence." Produced by the Ending Violence Against Women Project of Colorado. Funded by the Bureau of Justice Assistance of the U.S. Department of Justice (Grant #95-WF-NX-0008).

  • "Looking Back, Moving Forward: A Guidebook for Communities Responding to Sexual Assault," produced by the National Victim Center (now the National Center for Victims of Crime). Supported by a grant from the Office for Victims of Crime and Bureau of Justice Assistance of the U.S. Department of Justice.

  • "Promising Practices: Improving the Criminal Justice System's Response to Violence Against Women." Written by Mary B. Malefyt, Kristin M. Littel, and Alexandra H. Walker. Edited by Joan Kuriansky. Produced by the Technical Assistance Project of the STOP Violence Against Women Grant Program.

The National Center for Women & Policing would like to gratefully acknowledge the assistance of these organizations and individuals.

Introduction

The first U.S. rape crisis center opened in 1971. Just five years later, more than 400 programs for battered women and rape victims were in operation. Clearly, the growth in rape crisis services reflects the demand for victim service providers, who play an essential role in the coordinated response to sexual assault. The unique advantage of victim advocates (who typically operate out of rape crisis centers) is that these individuals can maintain an exclusive focus on the safety and well-being of victims. In contrast, criminal justice system professionals must balance the objectives of the criminal justice system with the wishes and needs of victims. Despite sincere concern for victims, police often see victims as sources of evidence and prosecutors see them as potential witnesses. Only the advocate has an exclusive focus on helping the victim

  • When discussing the topic of victim advocacy, it is important to note the distinction between private community-based victim advocates (such as those operating out of a rape crisis center) and specialists within a public victim-witness assistance program.

  • Specific jurisdictions may have either or both of these services available.

Victim-witness specialists

Victim-witness specialists are employed by a public agency (typically a police department or prosecutor's office). Although their range of responsibilities will vary, the primary goal of these professionals is to support the victim in her role as a witness to a crime and to protect her rights as established by State and Federal law.

Victim-witness specialists generally have immediate access to information about relevant hearings, depositions, and court dates. They can also assist the victim in applying for compensation or accompany her to interviews and court proceedings.

Because of their unique position within a public agency, victim-witness specialists have to balance the victim's needs with those of the criminal justice system. For example, victims are only eligible for victim-witness assistance if their case proceeds through the court system, and victims are sometimes excluded from eligibility if they engaged in illegal behavior, etc.

Victim advocates (rape crisis advocates)

In contrast, victim advocates work for a private, community-based agency such as a rape crisis center and have an exclusive focus on the needs of the victim. Victim advocates can generally provide all of the services described above for victim-witness assistance programs as well as giving emotional support and linking victims with financial, legal, and emotional resources. Victim advocates also typically have no restrictions on who is eligible to receive services.

Comparison of two services

While both types of service are extremely important and beneficial for victims, it is important to keep in mind the distinction between and them and to recognize the different roles and limitations of each. Throughout the remainder of this training module, we will be discussing the many roles and responsibilities of victim advocates.

All of these topics will be relevant for private, community-based victim advocates such as those operating out of a rape crisis center. Victim-witness specialists will concentrate primarily on those activities relevant to the police investigation and court proceedings.

A note on confidentiality: A chief distinction between private, community-based advocacy (such as that provided by a rape crisis center) and public victim-witness assistance is the degree of confidentiality provided to the victim in her communications. Most private, community-based advocacy programs such as rape crisis centers have statutory protection offering them complete confidentiality in their communications with victims. These policies prohibit victim advocates from disclosing information about victims to a third party without consent and they will contest any attempts to gain access to victim records. In contrast, public victim-witness specialists may be compelled to provide the police or prosecutors with personal information about the victim that may be needed during the course of prosecution or when seeking higher bail or a protective order.

General Role of Victim Advocates

Victim advocates provide supportive services to victims of sexual assault, either at the hospital and/or later during the process of investigation and prosecution. Although advocacy services are not available in every community, they are becoming increasingly common. As part of their role, victim advocates will provide a wide variety of services.

Supporting the victim

The primary role of an advocate is to assist victims by securing the necessary information, services, and follow-up care. This requires addressing both the victim's emotional needs and her concrete needs for assistance and information.

Facilitating the victim's decision making

Victims are required to make a number of difficult decisions immediately after the assault, and advocates can assist in this process by identifying the decisions that must be made, providing necessary information, and helping the victim consider her options. Once a decision is made, the advocate can also help the victim follow through with actions that are required as a result of the decision. It is important to note that advocates do not make decisions for victims - advocates only facilitate the victim's own decision making process.

Informing the victim of her rights

Advocates inform victims of their rights, including those dictated by state statutes such as confidentiality and compensation for medical services.

Serving as a liaison between agencies

Advocates can help coordinate the services that victims receive from the various health, legal, and social service agencies. By serving as a communication link and central point of contact between these agencies, advocates can ensure that victims receive the best information and treatment possible.

Accompanying or staying with the victim

A key role of the victim advocate is to offer comfort, companionship, and reassurance to victims. In that process, however, the advocate needs to take her cue from the victim and respect her wishes. For example, some victims want to talk while others wish to remain silent. Sometimes, the victim may want to be left alone, in which case the advocate should respect her wishes but remain nearby (e.g., outside the examination or interview room) to be available.

Offering crisis intervention

Either on a crisis hotline or in person, advocates can allow the victim to recount her experiences and vent her feelings. Advocates can also help the victim make a plan to get the support she needs within her own network of family and friends.

Conducting safety planning

Some sexual assault victims face immediate safety issues, if the perpetrator is still at their home, school, or office, of if the trauma of victimization puts them at risk for substance abuse or harm to self. Victims who require help planning for their safety may need assistance from advocates who can think creatively and are educated on these issues.

Documenting the assault

Advocates keep records on the characteristics of victims and cases that they handle. This helps the rape crisis agency track what services were offered and who received them. However, due to concerns regarding confidentiality, this record keeping is often kept to a minimum, including only general information regarding demographic characteristics and services provided. As a result, many records have no identifying information such as the victim's name.

In addition to these general roles, advocates have responsibilities that are specific to the different stages of sexual assault response. These are described below with respect to the medical-forensic examination, police interview, investigative process, and court proceedings.

Medical-forensic examination

During the initial response to sexual assault, the role of the advocate is to work with the victim's immediate emotional responses. Advocates provide information, assistance, and comfort to victims during the emergency procedures. They can also help the victim's family, friends, or others who are affected by the sexual assault. This is an important part of the teamwork response, because advocates can keep victims informed and emotionally capable of cooperating with police and medical personnel.

  • When victim advocates respond to the hospital (or other facility providing medical-forensic examinations), they have usually been called either by the victim or by medical personnel. If no advocate has arrived by the time police arrive, the officer or medical personnel should contact one immediately through the local rape crisis agency.

  • Sometimes victims contact the rape crisis agency first, in which case the advocate will encourage the victim to get medical attention. In some cases, the advocate can help arrange transportation for the victim, both to and from the hospital or other medical facility.

Although advocates should be called immediately when a sexual assault victim reports to the hospital, it is the victim's decision whether or not to work with an advocate. Advocates should begin by introducing themselves and describing their role before asking whether the victim would like their assistance. If the victim prefers not to work with an advocate, she should be given materials on the rape crisis agency for future reference.

Once at the hospital or other medical facility, advocates are involved in a variety of ways:

  • In general, advocates work with other team members to ensure that the victim has access to all of the services and support personnel that are available to her.

  • Advocates will make sure that victims receive information about relevant medical concerns. For example, depending on the type of sexual assault the victim experienced, information might be needed regarding pregnancy, sexually transmitted diseases, or HIV infection.

  • Advocates will also make sure that victims receive information about follow-up medical treatment and any prescriptions given.

  • During the medical-forensic exam, the victim can have an advocate present if requested.

  • Advocates can sometimes provide clothing and toiletries for the victim after the medical examination, if they are needed.

Finally, advocates can help victims obtain compensation for medical expenses, either through personal insurance, state funds for crime victims, or federal assistance. For crime victim compensation from the state, advocates can provide claim forms and help victims complete and submit them. (More information on crime victim compensation is provided with the supplementary materials.)

Police investigation

Because victims are asked to relate the details of their sexual assault during a police interview, they may experience emotional trauma as they relive the crime. Yet the interview sets the tone for all further communication between the police and victim, so it is very important that this contact is successful. For this reason, victim advocates can be especially helpful to law enforcement during the police interview.

  • Before the police interview, advocates can explain the process to victims and answer any questions they might have.

  • As with the medical procedures, advocates should begin by explaining their role before asking the victim whether she would like to have an advocate or other support person present during the interview. Advocates can be present during the police interview if requested by the victim.

    In California, the penal code gives victims of sexual assault the right to have any two individuals of their choice present during police questioning. A victim advocate may be one of these people, and police cannot exclude an advocate from the interview. Police can exclude other support people from the interview, but only if they are deemed to be disruptive.

  • When they are present during the police interview, advocates can provide emotional assistance to victims, answer the victim's questions, and assure that the victim's rights are protected. In general the advocate's role during the police interview will be non-verbal.

    In some states, a victim advocate who is present during the police interview can be summoned to court as a witness. Where this is a possibility, the victim must be informed of this as she decides what kind of support she would like during the interview.

  • Advocates can also make sure that victims are not pressured to make any decisions that they are not prepared for.

  • Advocates can help signal to interviewers when the victim appears to need a break from questioning. In most cases, the actual decision to take a break should be left to the victim.

The victim advocate's role in the initial response often ends once the medical procedures and police interview are completed. Some advocates will continue to work with victims, but others refer victims for longer term assistance will be provided by a rape crisis counselor[141] or mental health professional.

Investigative procedures

Just as advocates provide information and assistance throughout the medical procedures, they can also help the victim throughout the police investigation.

  • Advocates can work with victims to address their concerns and needs during various stages of the police investigation. This increases the likelihood that victims will actively cooperate.

  • Advocates can keep victims informed throughout the process, by explaining investigative and court procedures. They can explain these procedures repeatedly, if necessary.

  • Advocates can help address the victim's safety concerns, by discussing these fears and working with police to determine how to respond if they feel threatened by the assailant.

  • Advocates can accompany victims to any events required by the investigation, including follow-up interviews, identification procedures, etc. This can greatly alleviate the trauma associated with these experiences.

  • Advocates can work with police to assure that victims have all necessary and appropriate information, without compromising the integrity of the case. This could include notifying the victim of an arrest, providing information about the detention and location of the suspect, and keeping the victim apprised of any changes in detention status, including the suspect's location or bail.

Of course, some case-sensitive information should not be provided to victims, because it is potentially harmful to victims and can jeopardize the case. An example of such information would be details of a pending arrest.

When an arrest is made in a sexual assault case, victims often feel a sense of elation or euphoria, because they believe they are safe from re-victimization. This feeling is temporary, however, and often replaced with anxiety over the next steps of criminal prosecution.

Court proceedings

The initial appearance in court or the arraignment hearing can also lead to anxiety for victims as they relive the assault and fear reprisals from the offender. Advocates can help address these concerns by:

  • Keeping the victim notified of the time and place of any court proceedings, including any meetings with the prosecutor, the arraignment, hearings, court appearances, etc. Notification is often a problem for victims, as it involves forms that need to be filled out. Advocates can be very helpful as victims navigate this complex system.

  • Explaining the nature and status of each of these court proceedings to the victim.

  • Accompanying the victim to any of the court proceedings. In some cases, the advocate can help the victim to arrange transportation to attend any court proceedings.

  • Discussing with victims any special conditions of the offender's bail, parole, or probation.

For example, if an offender typically uses the same parking garage as the victim, a special condition of bail may be that he cannot use that garage. Special conditions can also provide that the perpetrator cannot use alcohol or come within 500 yards of the victim or her family members. Special considerations are important because most sexual assault victims know their perpetrators, and the court must therefore invoke conditions that can isolate the two.

When discussing special conditions with victims, it is helpful for them to understand the overall impact on the perpetrator after serving his time, or while out on bail. It is also helpful for the victim to understand the consequences of a perpetrator violating the conditions set by the court. Also, the prosecutor should ask the victim if she agrees with the special conditions. The court will likely ask the prosecutor if he/she has discussed them with the victim.

  • Requesting special victim protection, if necessary.

Given that most sexual assault cases involve some kind of relationship between the victim and perpetrator, there is often a need for special protection of the victim. For example, the victim may require temporary housing in a shelter or other safe house. Occasionally, pre-trial security and transportation may also be an issue in these cases (as in gang initiation cases).

In areas that have both private, community-based advocacy (such as a rape crisis center) and public victim-witness assistance programs, there can be questions regarding the role and responsibilities of each.

  • One advantage that victim-witness specialists have during this state is their extensive knowledge of court procedures. Given their professional status within the criminal justice system, moreover, they may be particularly well situation to notify victims of court appearances and other important developments in the court process.

  • A private, community based advocate, on the other hand, will often have the advantage of 24-hour availability, statutorily protected confidentiality in communications with the victim, and the ability to stay in more frequent contact with the victim.

Federal and state legislation affords legal protection to victims by addressing some of the issues identified above.

  • In many states, victims must be notified of court schedule changes, pre-trial, or bail release dates, final disposition, and sentencing.

  • Some states also require victim involvement at critical decision points such as plea negotiations.

  • State statutes also dictate victims' access to court and allocution, as well as specific courtroom procedures. Allocution refers to the original three intents behind the Crime Victim's Bill of Rights, which stated that victims have a right to be informed, present, and heard at all court proceedings. The right to be heard is often translated into the opportunity for victims to provide a statement of impact prior to sentencing.

Although the original intent of the Crime Victim's Bill of Rights pertained to the rights of victims during court proceedings, it is critical to keep in mind that the vast majority of sexual assault victims never make it to this stage. It is equally important that law enforcement, advocacy, and every member of the sexual assault response team work to ensure that the rights of all victims are protected.

As with any other stage of the response to sexual assault, advocates can help inform, prepare, and support victims during prosecution and court proceedings.

  • Advocates can serve as a communication link for victims within the court system, to ensure that victims are included in the process and consulted about important decisions such as plea negotiations or sentencing.

  • Advocates can also be of assistance because they follow developments in the law concerning sexual assault that may not be known to police and prosecutors.

For extensive information on the wide range of victim services that are available across the country, please consult: "Promising Practices: Improving the Criminal Justice System's Response to Violence Against Women," developed by the STOP Violence Against Women Grants, Technical Assistance Project. Copies are available from: National Criminal Justice Reference Service (NCJRS), Box 6000, Rockville, MD 20849-6000, 1-800-851-3420, Reference #NCJ-172217.

Benefits of Working with an Advocate

  • Advocates can provide emotional support to victims so that police officers can focus their time and energy on the investigation.

  • Advocates are available 24 hours a day, 7 days a week.

  • Advocates are able to answer many questions that victims have, and they can answer questions that victims might be afraid to ask police officers.

  • Advocates can explain medical or legal procedures over and over again if the victim wants.

  • Advocates are familiar with the range of agencies involved in the coordinated sexual assault response, and they can keep victims, police, and others informed about these resources.

  • Advocates can be with the victim throughout the entire process, including at the hospital, during the investigation and court proceedings, and even post-conviction.

  • Advocates can keep the victim apprised of case progress and schedule changes.

  • With the support of an advocate, victims can be better witnesses.

  • Advocates can help victims get compensation for costs incurred from the assault.

  • Advocates can support friends and family so the police officer can focus on interviewing the victim. Supportive family and friends can help the victim stay committed to the process.

Even if it takes years to go to trial, advocates may still be in contact with the victim when police and prosecutors are not.

Other Community-Based Services for Victims

Every state has a network of private, community-based agencies that provide services to sexual assault victims. These agencies, typically referred to as rape crisis centers, provide a range of services 24 hours a day, 7 days a week. All of their services are free and confidential, and they are provided to victims of any type of sexual violence, including sexual assault, child sexual abuse, incest, or sexual harassment.

These services typically include:

  • A 24-hour hotline with immediate access to certified counselors/advocates.

  • Crisis intervention and short-term counseling.

  • Advocacy for victims throughout the medical and legal procedures.

  • Information and referrals.

  • Support groups.

  • Services for female and male victims of any age.

  • Services for family, friends and other support people.

Services are provided even if the assault happened a long time ago, and many have male counselors, bilingual staff, and sign language interpreters available if needed. Law enforcement officers need to be familiar with the range of services offered by their local rape crisis center, to provide referral information for victims and others. Police must also know how to access these services, because they are in a unique position to assist victims in getting the help they need to facilitate their recovery.

A Note on Networking Agreements

Police departments are encouraged to develop a standing policy of contacting the local rape crisis center every time they respond to a sexual assault case.

  • In many cases, this call will already have been made by the time police respond - either by medical personnel, the victim, or other support people. Nonetheless, police officers should include as part of their response protocol confirmation that the rape crisis center has been called in every case, regardless of who actually makes that call.

  • Police should also either give the victim the phone number for the local rape crisis center, or confirm that someone else has already done so.

In addition to the protocol for notification, police departments can work with community-based advocacy services in a number of ways to exchange information, coordinate efforts, and conduct interagency training.

For extensive information on how to establish networking agreements and other protocols for interagency coordination, please consult the National Victim Center's manual entitled "Looking Back, Moving Forward: A Guidebook for Communities Responding to Sexual Assault." Contact the National Victim Center at 2111Wilson Boulevard, Suite 300, Arlington, VA 22201.

Crime Victim Compensation

According to federal law (the Violence Against Women Act), victims of sexual assault in all states should receive a forensic exam at no cost or be reimbursed for the full cost of the exam. Specific guidelines regarding the federal crime victim compensation program is provided in the supplementary materials.

  • In many states, victims will be asked to pay for the examination up front and then complete an application to receive reimbursement.

  • In others the victim does not pay for the examination up front but rather assists the health care facility in being compensated

  • In still other states, the law enforcement agency with jurisdiction over the investigation will pay for the exam.

Regardless of the billing procedure, the examination should be considered evidentiary and not medical in nature (although it will also include medical treatment for pregnancy and STD's).

  • In those communities where victims pay for the exam up front, they should be informed about how to obtain reimbursement at the time of the exam and be allowed at least one year to apply for reimbursement.

  • Many states also impose requirements on victims seeking reimbursement for the cost of the exam. The most common requirements are that victims must report the assault to the police and receive the exam within a certain period of time after the assault (usually 72 hours)[142].

Most states cover the costs associated with the basic components of a forensic exam, including:

  • Examination of physical trauma

  • Determination of penetration or force

  • Patient interviews

  • Collection and evaluation of evidence

In addition, most states will cover services such as:

  • Diagnostic services, such as pregnancy testing or testing for STD's

  • Forensic exam with a colposcope

  • Medical treatment to prevent pregnancy or treat STD's

  • Medical services to treat injuries

  • Counseling services

  • Ambulance or other transportation services

State funds for victim compensation will only cover costs which other sources don't cover or only partly cover. Examples of these alternative sources of compensation include:

  • Medicare/Medicaid

  • Sick time from job

  • Victim restitution from convicted person

  • Legal settlements

  • Employer heath insurance

  • Worker's compensation

  • Life insurance of homicide victim

Please see the supplementary materials with more detailed information provided by the U.S. Crime Victim Compensation Program. Despite these guidelines, many jurisdictions continue to face obstacles for crime victims seeking compensation. For this reason, it is imperative that law enforcement and advocacy work together to ensure that appropriate procedures are followed and compensation provided to victims who need it.

Unfounded Cases and False Allegations

Acknowledgments

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 a presentation to the Colorado Organization of Victims' Assistance (COVA) given by Marte McNally of the Rape Awareness and Assistance Program (Denver Colorado), John Bennett of Aurora (Colorado) Police Department, and Anne Munch of the Ending Violence Against Women project (also in Colorado).

The National Center for Women & Policing would like to gratefully acknowledge the assistance of these organizations and individuals.

False Allegations: The Elephant in the Living Room

In traditional law enforcement training programs for sexual assault investigation, the concept of false allegations is the "elephant in the living room." Imagine the following scenario:

Instructors provide training on how to successfully investigate sexual assault cases while participants listen attentively and take notes on topics like victim sensitivity, suspect typology, and evidence collection. All the while, everyone in the room shares the view that training material is only relevant for the "real" cases that find their way into the department. The training does not challenge anyone (including the instructors) to examine their underlying categorization of cases into those that are "real" versus something else - cases that are murky, ambiguous, or just plain fabrications.

The present module is designed to change this practice by delving meaningfully into the question of false allegations. We will attempt to answer those questions that have historically created a bigger hurdle for sexual assault victims than any lack of training or experience on the part of officers. These questions include:

  • What do we mean by "false allegation?"

  • How many sexual assault reports are estimated to be false?

  • How does terminology confuse the issue of unfounding versus false allegations?

  • How unfounding is used for cases that don't meet the stereotype of "real rape."

  • How unfounding is used for "difficult" cases.

  • What are the consequences of improperly unfounding sexual assault cases?

  • How improper unfounding fuels the myth of false allegations.

  • The "shell game" of noncriminal codes

  • How can police "create" an unfounded case?

  • How can officers counter the "cycle of distrust" that harms both police and victims?

  • What are appropriate procedures for unfounding and administrative closure?

  • How to handle the frustrating reality of false allegations.

Ultimately, a poorly trained investigator who believes the victim and takes the case seriously is eminently preferable to a well-trained investigator who nonetheless thinks that most sexual assault allegations are false. The goal of this curriculum is to address these issues, hopefully preparing officers both with specific training as well as the view that the training content is relevant for every sexual assault case.

What do we mean by "false allegation?"

As others have noted, the definition for false allegations is imprecise, and this creates confusion when discussing the issue or attempting to estimate its prevalence.[143] For example, many attempts to define what is and is not a false allegation have rested on the motivation of the complainant. Several definitions have required that the motive for a false allegation must be deliberate deception[144], yet this is clearly not required for a charge to be baseless. A false allegation of sexual assault could be forwarded without deceit but rather due to mental illness or simple mistake (i.e., the individual believes that she was sexually assaulted when she was not).

Another critically important issue in this arena is "how false" an allegation needs to be to be considered a "false allegation." As Aiken (1993) articulates:

Must the entire allegation be false to be considered a false allegation? How false must it be? Is it more serious to make false accusations against a person than to falsify other aspects of a crime?[145]

This issue has been previously discussed in the module on victim interviewing, but it also requires attention here. That is, many victims will give inconsistent or untrue information as part of their statement, but this should not be confused with a false allegation.

  • For example, victims might give inconsistent or untrue information out of trauma or disorganization, discomfort relaying sexual details, fear of being doubted or blamed, or out of an attempt to make the assault sound more like the stereotypic "real rape" with which we are all familiar.

How to address inconsistent or untrue statements

Unfortunately, these inconsistencies or untruths can destroy the victim's credibility if not handled appropriately by police. As we discussed in the module on victim interviewing, there are a number of steps that investigators should take in the event of inconsistencies or suspected untruths in the victim's statement:

  • First, it is critically important that officers realize that these inconsistencies or untruths are understandable and should not be confused with a "false" allegation.

  • Investigators should then address inconsistencies or untruths in the victim's statement by exploring the issue gently and nonjudgmentally. Specific guidance for how to do this is provided in the module on victim interviewing.

If the inconsistency seems to result from the victim's attempt to make her assault sound more like "real rape," officers should address her underlying fear of being doubted or blamed. Again, specific guidance is provided in the module on victim interviewing but it is critical that the investigator create a safe, nonjudgmental environment that encourages honesty even for unflattering or illegal behavior.

So how false does a false allegation need to be?

Given the many reasons for doing so, it is understandable and perhaps even inevitable that victims will often make inconsistent or untrue statements about their assault. However, many investigators and others have mistakenly concluded on this basis that the entire allegation is false. For example, in her article on the topic, Aiken (1993) defines a false allegation as a claim that is deliberately deceitful about any significant aspect of the assault. Based on this definition, the author provides the following as case examples for false rape allegations:

Toni was asleep at home when she was awakened by someone's presence next to her bed. A masked man was standing there holding a knife. He threatened her with the knife and forced her to have vaginal sex with him. He also forced her to perform fellatio. After he left, she immediately called the police. In her statement, she denied engaging in oral sex because she felt shame and guilt.

Patricia was a drug addict. She would do almost anything to support her habit. She made arrangements to buy some crack from her dealer. She met him at the appointed time and place. In the course of the transaction there was a disagreement over the terms of the sale. The dealer physically assaulted Patricia, dragged her behind a vacant house, and forced her to have sex. Patricia reported the incident to the police, completely omitting the details of the drug deal.

Kathryn lived alone and was sexually assaulted by her neighbor. He forced her to have vaginal and oral sex with him. Kathryn had always feared this man. He threatened to kill her if she reported the assault. She also was afraid of venereal disease. To secure free medical services, she reported the incident to police. She described her assailant as a masked stranger and denied the oral act.[146]

The characterization of these cases as "false allegations" is not only incorrect but also troubling. In the first instance, the victim omitted details of certain sexual acts out of shame. In the second, she omitted details of her own drug use in order to bolster her perceived credibility, and in the third she failed to provide the identity of her assailant out of fear for her life. These case examples are not really false allegations. These are cases in which the victim omitted or distorted information about the assault, but they do not negate the reality that the assault happened.

A better characterization of this type of case is provided by Chula Vista Police Department detective John McAvenia:

Several cases in recent years involved victims saying that while enroute home from a party they were dragged into some bushes by a stranger and raped. They would forget to rub leaves or grass onto themselves like some outright liars would do, causing reporting officers to think something was not quite right. When the investigations were complete it usually turned out the victims were in fact raped - but at a party by someone they knew and trusted. While the product of embarrassment, not malice, these inconsistent statements can destroy the case. Do these cases teach us that sex crimes victims are liars? Of course not. They do teach us, however, that besides being the victim of a crime - like people who are victims of robbery and burglary and theft - these victims perceive an additional stigma because the crime is sexual in nature and because, in some cases, they are apprehensive about their own conduct before the attack. And that stigma causes them to alter their stories.[147]

Conclusion

Clearly, there are a number of interpretations of what constitutes a false allegation, but the most reasonable definition is that it is a claim of sexual assault where the elements of sexual assault are not met. The false allegation could be made out of deliberate deceit, fantasy, or mistake. For example, an unwanted sexual act may have taken place that simply did not meet the legal definition for sexual assault.

  • However, "false allegation" should not be used to refer to cases in which the assault took place but the victim provides inconsistent or untrue information within the context of her statement.

  • Cases in which the victim provides partial or distorted information are certainly difficult to investigate, but they should not be considered false unless there is evidence to prove that the assault simply did not occur.

Rather, "all complaints must, of necessity, be taken at face value and, unless there is some specific reason to believe otherwise, handled accordingly."[148]

How many sexual assault reports are estimated to be false?

Estimates for the rate of false reports have varied widely, virtually across the entire possible spectrum. This is not surprising given the differences in definition presented above, in addition to the different ways of determining a complaint to be false and recording it. For example, Kanin's (1994) review of estimates provided over the years ranged from lows of 0.25%[149] and 1%[150] to 80-90%.[151] Kanin himself reported a rate of 41% for one midwestern police agency and 50% for two college campuses studied.[152]

  • In an informal survey conducted at the Denver Metropolitan Area Police Department, detectives from the same agency provided estimates ranging from 5% to 65%.[153]

  • In another informal survey conducted with participants at a conference including law enforcement, victim advocates, and other criminal justice personnel, the estimates varied even more widely, from 0% to 98%.[154]

Clearly, there are huge differences in the estimates given for the rate of false reporting. This situation suggests that the discrepancies are caused not only by differences in perception and terminology, but also in how the information is gathered and how a report is determined to be "false." One of the primary sources of confusion stems from the terminology of "unfounding" versus "false allegations."

How does terminology confuse the issue of unfounding versus false allegations?

Because the issue of false allegations is the "elephant in the living room" of sexual assault investigation, it is the single most difficult issue to overcome in training. This problem is made worse by the fact that the terminology used to refer to false allegations is often confused with that for unfounding or other administrative forms of clearance.

Federal reporting requirements in this regard are clear - a case is only to be unfounded if it is determined - after investigation - to be false or baseless. This does not include cases that are closed because an arrest is not made or the victim refuses to cooperate.

The issue is further complicated by the fact that departments often use unfounding to close cases for reasons other than the determination that they are false or baseless.[155] In practice therefore, "unfounded rape can and does mean many things, with false allegation being only one of them, and sometimes the least of them."[156] Other factors commonly used as a basis for improperly unfounding a case include:

  • The police are unable to locate the victim.

  • The victim decides not to follow through with prosecution.

  • The victim repeatedly changes the account of the rape.

  • The victim recants.

  • No assailant can be identified.[157]

In none of these situations is it assumed that the sexual assault did not occur, yet these cases are often improperly unfounded because they need to be administratively closed - and many departments inappropriately use unfounding rather than inactivating to do so. There are also a variety of other situations that impede or prevent completion of the investigation and in which cases are often improperly classified as "unfounded".[158]

  • Unfortunately, cases are sometimes seen as unfounded when the victim "changes her story" by recalling additional information, telling different aspects of the same story, or making inconsistent statements out of trauma and cognitive disorganization.[159]

  • Cases are also viewed as false when the victim recants, either out of fear[160] or when she realizes the impact that the investigation and prosecution will have on her life.

Thus, there are clearly a number of situations in which sexual assault cases are improperly unfounded when they have not been determined to be false.

How unfounding is used for cases that don't meet the stereotype of "real rape."

Another reason why many cases are improperly unfounded is because they are viewed with suspicion that is not grounded in investigative facts but rather due to particular characteristics of the case or victim. As we've discussed at great length, sexual assault cases are often viewed with suspicion when they do not meet the cultural stereotype of "real rape."

  • For example, police and the public often view with suspicion any claims of sexual assault made when the victim and suspect knew each other, especially if there was a prior sexual relationship, if the victim delayed reporting, and if the victim did not describe either physical resistance or violence/weapons used by the suspect.

As presented in the chapter on dynamics, however, it is completely inappropriate to use these characteristics as reasons for doubting the validity of a sexual assault claim.

  • The fact is that most sexual assault victims know their attacker, most delay reporting (or never report), most do not use physical resistance, and most suspects do not resort to physical violence or use of a weapon.

  • These characteristics should thus not be confused with a "false allegation" and should never be used as the basis for unfounding a sexual assault case.

Despite this fact, we know that departments do use such characteristics as the basis for unfounding sexual assault cases. For example, there is evidence that in many jurisdictions, officers can declare a complaint unfounded in the initial report or following a routine, cursory investigation. These determinations are not made on the basis of investigative facts but rather on stereotypes of "real rape" that create undue suspicion of cases that are actually typical in their characteristics.

  • Thus, even in cases where victims sustained bruises, black eyes, cigarette burns and bitten nipples, some officers have declared complaints unfounded if there was a previous sexual relationship between the parties.[161]

Clearly, it is inappropriate for departments to use unfounding as a mechanism for administratively closing sexual assault cases, simply because they are inappropriately viewed with suspicion.

How unfounding is used for "difficult" cases.

Even when cases are seen as legitimate, they are often improperly unfounded because they are just plain difficult. Cases can be difficult when the victim refuses to cooperate with the investigation or fails to appear for interviews or other court proceedings. Cases are also difficult when the victim has characteristics that will undermine her credibility in court, including drug use, prostitution, a criminal history, etc. Yet none of these are legitimate reasons for unfounding a sexual assault case. Despite this fact, there are many examples of departments routinely using unfounding as a mechanism for improperly closing "difficult cases."

The case of Oakland Police Department

Consider the case of Oakland Police Department, which came under fire in 1990 for the practice of routinely unfounding sexual assault cases as a means of avoiding serious investigative effort.

As excerpted from Law Enforcement News:

An internal audit of 203 "unfounded" rape complaints from the last 18 months revealed that 108 had been improperly classified, said Capt. James Hahn, the head of the Criminal Investigation Division, who conducted the audit. For the most part, these cases involved prostitutes, drug abusers, or victims who refused to cooperate, Hahn said. Those are not sufficient reasons for classifying a case as unfounded under the Federal Bureau of Investigation's Uniform Crime Report guidelines, Captain Hahn said. Last year, one-fourth of all rape complaints in Oakland were categorized as unfounded." Candidly, we blew it," said Police Chief George Hart. Hahn attributed the lapse in handling cases to understaffing and the "cynicism that begins to creep in" when an officer handles hundreds of cases each year. Oakland has the seventh-highest rape rate in the nation - 120 per 100,000 people. Last year, 585 rapes were reported to the department. But the sexual assault unit has an authorized strength of only six officers, and in the last several years, only three or four officers have been assigned to the unit, Hahn said. Many of the cases improperly classified as unfounded would have been unusually difficult to investigate, Hahn said. For example, many of the complainants had refused to be taken to a hospital for a medical examination where evidence could have been gathered, had failed to keep appointments with investigators, or had given police an alias. And the cases involving prostitutes or drug addicts are difficult to prove in court, he said. "But just because a case is going to be hard to prove doesn't mean you classify it as unfounded," Hahn added."[162]

What are the consequences of improperly unfounding sexual assault cases?

Unfortunately, the consequences of improperly unfounding sexual assault cases are tragic -- for police, victims, and the public.

  • For police, high rates of unfounding can lead to scrutiny and public pressure to change their procedures. For example, pressure from the media and the public in Oakland led to the police department's reopening of the 203 rape cases that were "dropped without even minimal investigation...including 37 in which the victim was never interviewed."[163]

  • For victims whose cases are improperly unfounded, this practice creates a sense of betrayal and distrust that can have devastating effects on victim recovery. Moreover, the public awareness that sexual assault cases are not taken seriously will inevitably affect the willingness of future victims to report to police.

On a larger scale, improperly unfounding sexual assault cases represents a miscarriage of justice and threat to public safety. As Marcia Blackstock, executive director of Bay Area Women Against Rape concluded, the Oakland P.D. practice of unfounding difficult cases served as a means of avoiding investigative responsibility. "If you get a good investigation behind it, you can still get those cases charged and convicted. It doesn't make her less of a victim because she's using drugs and it doesn't make the rapist less of a threat to society because he's raping women who are on drugs."[164]

Other consequences for the public include the false sense of reality created when departmental statistics indicate that the rate of sexual assault is lower and clearance rates higher than they actually are. For example, many police departments and college campuses place great emphasis on keeping crime statistics low, and this can put pressure on officers to make sexual assault cases "disappear" by improperly using noncriminal codes or unfounding.

How improper unfounding fuels the myth of false allegations

Perhaps the most tragic consequence of routinely unfounding sexual assault cases, however, is that it fuels the myth that a high percentage of cases are determined to be false. The idea that women lie about rape is one of the most fundamental myths that has devastating consequences for victims when they seek support from friends, family, social services, and the criminal justice system. By improperly reporting cases as unfounded to the FBI -- and then having many members of society confuse "unfounded cases" with "false allegations" -- these inaccurate statistics create the sense that a higher percentage of sexual assault cases is deemed to be false compared with other types of cases.[165]

  • For example, the rate of unfounded sexual assault cases was 8% in 1995 and 15% in 1996, compared with 2% for all other index crimes.[166]

However, when an effort is made to sort out unfounded cases from those that are deemed to be false, the picture is quite different.

  • To illustrate, when the Portland, Oregon police department examined the 431 complaints of completed or attempted sexual assault in 1990, 1.6% were determined to be false. This was in comparison with a rate of 2.6% for false reports of stolen vehicles.[167]

This issue is perhaps most eloquently articulated by retired NYPD sex crimes investigator Harry O'Reilly (1984):

The last myth I want to deal with is that of false accusations. Do we really have women running around making false accusations against innocent men? Does this happen? Are there false reports? Of course there are, and we must always be on the alert and be aware that victims may be telling a lie. Some women do lie, of course, but the number of women who make false reports is negligible in comparison with the number of valid complainants. In a six-month period in New York City there were around 2000 reported rapes, of which about 250 were unfounded reports. But `unfounded' does not mean lying. Let's see what it means: 200 of the 250 were simple administrative errors. They should never have been called rapes in the first place; for example, a woman phones the station and yells rape. The police car goes out and there's no one home. The next day a detective goes to follow the incident up and the woman says "Oh yes, my boyfriend and I had a fight last night and I yelled "rape"'. `Why did you yell rape?' `Because if I had yelled disorderly conduct, nobody is going to come, but if I yell rape I know damn sure that a cop is going to come in a hurry.' That kind of thing is not a false rape charge, but a mild inconvenience to the police.

We are therefore left with potentially 50 liars out of a total of 2000 complainants. Of that 50, perhaps 20 cases of false report were made as some kind of attempt by the woman to protect herself against a tyrannical father or husband because she had violated some family rule, usually a time curfew, and she has to account for why she is late. Rarely in these cases, however, does she accuse a specific person; rather, she claims that some mysterious figure in the night pulled her into a car and did this awful thing to her and caused her to be two hours late in coming home. Other times we have women who have psychological problems, loneliness being the main one, and they know if they say `rape' the officer will come and talk with them awhile. These women have lied, of course, but no more maliciously than has the woman with the tyrannical husband/father.

After analyzing all the 'unfounded' reports, we found that there were actually only five cases of women maliciously telling lies and deliberately falsely accusing men of rapes that had never been committed. In these cases the women are arrested for making false accusations - false charges are crimes which must be punished. the bottom line, then is that out of 2000 charges of rape, there were five proven liars. That is good enough evidence for me to conclude that most victims are telling the truth! (p.96-7).

The "shell game" of noncriminal codes

Just as Oakland Police Department came under fire for improperly unfounding sexual assault cases, other departments have received scrutiny for using noncriminal codes as a dumping ground for cases that are seen as suspicious or difficult. For example, Philadelphia Police Department received considerable pressure in 1999 to change the "shell game" that has been practiced for decades with sexual assault cases. Prominent in this story is the use of "investigation of person," a noncriminal code that was never intended for use with sexual assault - or any other criminal -- cases. Again, the consequences of this practice are tragic for victims, police, and the public.

As excerpted from the Philadelphia Inquirer:

Bureaucratic ruses such as "investigation of person" are only part of the story of how the rape squad polished its numbers at the expense of victims and the public. In the early 1980's, police rejected as "unfounded" - or groundless - half the complaints they received, according to confidential FBI documents obtained recently by The Inquirer under the Freedom of Information Act. That rejection rate was five times the national average. The proportion of cases deemed "unfounded" fell when the unit, under pressure from the FBI to stop rejecting so many complaints, began disposing of tough cases in "investigation of person." Two years ago, the FBI and departmental auditors questioned the use of the code. Sex-crimes investigators backed off "investigation of person" and began again "unfounding" large numbers of cases. In a single year, the unfounded rate doubled - to 18 percent for 1998. That was twice the national average and the highest rate among the 10 largest cities in America. [Police Commissioner] Timoney said in an interview last week that his "complete reorganization" of the sex-crimes unit had ended statistical manipulation for good. He appointed a new commander, improved training, renamed it the Special Victims Unit, and assigned detectives to the squad for the first time. "By and large, those 2701's ["investigation of person" codes] have almost disappeared," he said. Yet the Inquirer found that the numbers game has continued in a new guise - albeit on a smaller scale. The rape squad dramatically reduced its use of "investigation of person" last year. The wholesale dumping of complaints has been replaced by a more selective use of a different noncriminal code - "investigation, protection, medical examination."[168] Over the last two years, the Special Victims Unit has put 400 complaints - about 5 percent of its caseload - in an administrative way station called Code 2625, "investigation, protection and medical examination." It is a "non-offense" code not intended to designate crimes - much less a crime as serious as rape... Code 2625...was once used for cases in which police picked up teenage runaways. But that hasn't been a crime for 22 years. In 1977, running away from home was decriminalized by the state legislature, and Code 2625 no longer had any use as a crime category. By the 1990's, it had all but disappeared from police records. Then, in the last three months of 1997, it surfaced again. Thirty cases - all of them handled by the sex-crimes unit - were given that label...So far this year, 171 cases have been designated "investigation, protection."[169]

The kinds of cases that were given noncriminal codes

Apparently, the noncriminal code involving "investigation, protection and medical examination" was described as used for cases in which the women were unconscious, drugged, or drunk at the time of the assault. As retired Lieutenant Thomas Doyle of the Philadelphia Police Department stated,

"Investigation of person" was for cases that were just too hard to sort out. "You have the college student, the female, who was drinking the night before and was wet between the legs," said Doyle, 40, now Director of the criminal justice program at Philadelphia Community College. "Is that a rape? That's an investigation of person."

Apparently, the FBI disagrees. FBI officials quoted in the Philadelphia Inquirer stated that "there is, in fact, no requirement that a victim specifically recall the act of penetration - especially in cases where a woman might have blacked out. If a woman says she has reason to believe she was raped, but cannot recall details because she was under the influence of alcohol or drugs, the incident should be counted as a rape. If subsequent investigation proves that no rape took place, police can subtract it from their crime total."[170]

As a result of the scandal in Philadelphia, hundreds of sexual assault complaints are being reviewed and many have been returned to detectives to reopen for investigation.[171] Unfortunately, cases such as Philadelphia spotlight problems that are evident in departments around the country.

How can police "create" an unfounded case?

Another factor that falsely inflates the rate of unfounding for sexual assault cases is that police can often `create" an unfounded case out of one that is actually legitimate. As described by Latts and Geiselman (1991), this process begins with the suspicion held by many police officers that a large percentage of sexual assault victims are lying.

If the police do not believe the victim, they may directly or indirectly make this known to her, perhaps by excessive questioning that focuses on an absence of obvious injury or some delay in reporting the incident. The victim, in turn, may become upset and withdraw her cooperation. Though the woman may have been an actual survivor of rape, her lack of cooperation is itself considered sufficient grounds for marking a case as unfounded in most jurisdictions.[172]

By not believing the victim and communicating this mistrust to her, the officer can cause a victim to become noncooperative when she would not otherwise have been. Worse, by "creating" noncooperative victims in this way, the officer fuels a misperception that most victims will not cooperate with police investigation and most sexual assault claims are without merit. The mistrust is then heightened and carried over into the next case. "The result is a never-ending spiral of suspicion and pain for both [the police officer and victim.]"[173]

How can officers counter the "cycle of distrust" that harms both police and victims?

By investigating sexual assault cases thoroughly and responding to victims with compassion, officers can go a long way toward countering the "cycle of distrust."

  • By approaching cases with the assumption that they are valid, victims will respond with increased openness and trust that will facilitate investigation.

  • By conducting victim interviews in accordance with guidelines provided in this manual, officers will be rewarded with increased cooperation, information, and investigative leads.

  • By utilizing a teamwork approach to sexual assault response, police can join the other professionals involved (medical personnel, victim advocates, prosecutors, etc.) in improving services to victims that will facilitate their recovery and cooperation.

  • By taking steps to reduce the likelihood of inconsistent or untrue information in the victim's statement (described in the module on victim interviewing), officers will learn to better distinguish allegations that are false from those that are true but described with partial or distorted information.

In addition, officers must be aware of the psychological toll demanded by their jobs and follow guidelines for stress reduction and general wellness. Some of these guidelines are provided in the supplemental material, and they can hopefully be used to help officers cope with the very difficult challenges of investigating sexual assault cases.

What are appropriate procedures for unfounding and administrative closure?

Clearly, it is inappropriate to use unfounding or other noncriminal codes as a means for dumping sexual assault cases that are considered to be murky or difficult. The solution to the problem, however, is two-pronged. On the one hand, every case of sexual assault must be investigated thoroughly, based on the assumption that the claim is valid. The reality is that despite the threat of false allegations that is present for every type of crime, police and society have historically viewed sexual assault victims with heightened suspicion.

  • Based on the myth that women routinely fabricate claims of sexual assault, police and the public have traditionally treated rape victims as if their stories were suspicious until proven to be valid.

  • Instead, sexual assault victims must be given the same consideration as other crime victims - each and every claim of sexual assault must be assumed to be valid unless proven otherwise.

On the other hand, departments must implement alternative mechanisms to unfounding for the purpose of administratively closing cases. As stated repeatedly throughout this module, UCR guidelines dictate that a case should only be unfounded if it is "determined through investigation to be false or baseless."[174]

According to the FBI guidelines for Uniform Crime Reporting, "If the investigation shows that no offense occurred nor was attempted, the reported offense can be unfounded for UCR purposes."

Furthermore, these guidelines indicate that "the refusal of the victim to cooperate with prosecution, or the failure to make an arrest does not unfound a legitimate offense."[175]

  • UCR guidelines do recognize, however, "that departmental policy in various law enforcement agencies permits the discontinuance of investigation and the administrative closing of cases in which all investigation has been completed."[176]

  • In addition, the UCR category of "exceptional clearance" can be used for cases in which the offender is identified but cannot be charged or the victim refuses to cooperate.[177]

The good news is that departments who implement appropriate mechanisms for administrative closure (such as simple inactivation or exceptional clearance) exhibit a decrease in the rate of unfounding so it is in line with that for other index crimes.

  • For example, New York City Police Department statistics for unfounding went from 15% to 2% in a year following reforms and restructuring, both in the police department and prosecutor's office.[178]

How to handle the frustrating reality of false allegations

Of course, having demonstrated that the percentage of false sexual assault allegations is not as high as commonly perceived, this does not deny their terrible reality. False allegations do exist and they are very damaging to officers as well as the real victims whose credibility they undermine.

To prepare officers for this reality, we have provided in the appendix some materials on the indicators and investigation of false allegations (excerpted from McDowell & Hibler, 1987). Interestingly, most of the indicators described are exactly contrary to those often seen by the police and public as cues for suspicion. This is not a coincidence.

  • Consider this: If a woman is going to fabricate a claim of sexual assault she is likely to base this invented crime on the same stereotype of "real rape" that has been discussed at such length throughout this manual.

  • For example, false allegations are more likely than valid claims to include a vaguely described stranger who used a great deal of force and to which the victim responded with her utmost physical resistance.

Other indicators and techniques for investigating false allegations are detailed in the appendix. However, as the authors caution, none of these indicators should be considered significant when observed in isolation. An allegation should only be considered suspect when many of the indicators are present, and it should only be determined to be false when the investigative facts directly contradict the victim's account of events.

References

Aiken, M.M. (1993). False allegation: A concept in the context of rape. Journal of Psychosocial Nursing, 31, 15-20.

Bronson, F.R. (1918). False allegations of rape. Am. J. Urol. Sex 14, 509-510.

Brownmiller, S. (1975). Against Our Will: Men, Women and Rape. Simon & Schuster: New York.

Comment (1968). Police discretion and the judgement that a crime has been committed. University of Pennsylvania Law Review, 118, 227-322.

Hecht-Schafran, L. (1993). Writing and reading about rape: A primer. St. John's Law Review, 66, 979-1045.

Kanin, E.J. (1994). False rape allegations. Archives of Sexual Behavior, 23, 81-91.

Katz, S. & Mazur, M. (1979). Understanding the Rape Victim. John Wiley & Sons: New York.

Krasner, W., Meyer, L., & Carroll, N. (1976). Victims of Rape. U.S. Government Printing Office: Washington, DC.

Latts, M.G. & Geiselman, R.E. (1991). Interviewing survivors of rape. Journal of Police and Criminal Psychology, 7 (1), p. 8-16.

Ledray, L.E. (1999). Sexual Assault Nurse Examiner (SANE): Development & Operation Guide. Manual prepared under grant number 96-VF-GX-K012, awarded by the Office for Victims of Crime, Office of Justice Programs, U.S. Department of Justice.

Marcus, M. (1981). A Taste for Pain: On Masochism and Female Sexuality. St. Martin's Press: New York.

McAvenia, J. (1997, Feb-April). Getting sex crimes victims to tell the real story. Law Enforcement Quarterly, p.7-8.

McDowell, C.P. & Hibler, N.S. (1987). False allegations (Chapter 11, p.275-299). In R.R. Hazelwood & A.W. Burgess (Eds.), Practical Aspects of Rape Investigation: A Multidisciplinary Approach. Elsevier: New York.

O'Reilly, H.J. (1984). Crisis intervention with victims of forcible rape: A police perspective. In J. Hopkins (Ed.), Perspectives on Rape and Sexual Assault. Harper & Row: London (p.89-103).

Ross, R.R. & McKay, H.B. (1979). Self-Mutilation. Lexington Books: Lexington, MA.

Appendix: Indicators and Investigation of False Allegations

The following material is excerpted from:

C.P. McDowell and N.S. Hibler (1987). False allegations (Chapter 11, p.275-299). In R.R. Hazelwood & A.W. Burgess (Eds.), Practical aspects of rape investigation: A multidisciplinary approach. Elsevier: New York.

When false allegations of sexual assault are made, there are a number of reasons that might motivate this act. One of the most prominent among these is that some women fabricate allegations of sexual assault out of a desperate need for attention. Other reasons could include a need for denying or shifting responsibility for consensual sexual activity.[179] Regardless of the reason, the false allegation can range from a somewhat vague description of an event to a detailed account perhaps supported by self-inflicted injuries and/or evidence.[180] The following sections are drawn from McDowell and Hibler's (1987) detailed examination of false allegations and the characteristics that can sometimes be used to differentiate them from valid claims. As they caution, however, none of these characteristics is significant by itself and may not even indicate a false allegation when they appear in combination. Rather, when many of the indicators appear in a particular case this should simply be used as a caution to the investigator that the allegation could potentially be distorted or false.

Indicators of false rape allegations

There is, of course, no simple way to determine the legitimacy of any criminal complaint. This is true whether the report concerns the commission of a rape, a burglary, or any other offense. All complaints must, of necessity, be taken at face value and, unless there is some specific reason to believe otherwise, handled accordingly. In most instances, it is impossible to determine whether the crime actually occurred unless the victim is moved to admit that the report was false. However, as in the false burglary or robbery complaint, certain characteristics are found with greater frequency in false rape reports than in actual rape cases. In and of themselves, none of these characteristics are significant, but taken together, they indicate a potential that the facts may be different from those reported.

The victim-offender relationship

The literature suggests that a preponderance of rapes are committed by individuals who are known to the victim or with whom they have had some prior relationship. Many of these rapes are sexual assaults by friends, acquaintances, co-workers, associates, and even relatives. As a matter of fact, such affiliations often create additional problems for the victim because she must continue to face her assailant (as well as mutual friends) throughout the ordeal of the

investigation and any subsequent legal proceedings. In false rape allegations there seems to be a somewhat higher probability that the assailant will be a stranger, a "slight acquaintance," a "friend of a friend" whose name the victim has forgotten. The apparent reason for such a choice is that the victim removes the possibility of being confronted by a specific individual and, in addition, does not get anyone in trouble.

However, by creating an essentially anonymous rapist, the pseudo-victim can effectively absolve herself of any responsibility for a relationship and thus affirm her basic innocence. In addition, by claiming to have been raped by an unidentifiable person, she makes it impossible for the police to "successfully" resolve the case, and the mind can freely shift responsibility from itself to the offender and ultimately to the police without fear of being contradicted.

Force and resistance

One of the more obvious features of rape is that its victims typically report being overwhelmed by fear. Because of this, the actual level of physical resistance is frequently low and thus the actual force used by the rapist may not go beyond verbal threats. Even though the rapist may not employ physical methods or a visible weapon in his attack, the victim is convinced she is in mortal danger and reacts by doing whatever appears most likely to preserve her life. Often this involves a relatively nonviolent submission to her assailant. On the other hand, those making false complaints seem to claim more frequently to have fought with all their ability. They typically report punching, kicking, and scratching their assailants until they are themselves finally overpowered. Others bolster an inability to resist by claiming they were attacked and raped by more than one person. In other cases, the pseudo-victim claims the assailant was exceptionally large or powerful and able to overcome her resistance with relative ease. The important point is that false victims more frequently include the face-saving element of either having resisted or having been confronted with a situation that made resistance impossible.

Nature of the sexual acts performed

Although common law traditionally defines rape as an act involving sexual intercourse, the crime may also involve any number of other sexual acts. In a significant proportion of rape cases, women are subjected to acts other than or in addition to sexual intercourse. Such acts appear to be reported less frequently in the case of false complaints. Apparently, the report of rape is not seen by false claimants as requiring collateral reports of oral or anal sex, unless such acts are included in the person's sexual repertoire. Thus, the false claim of rape is usually found to be more narrow in its construction and seldom includes much more than allegations of penile penetration and the manual manipulation of breasts or genitalia. This characteristics may arise from the reasoning that other acts are not required to support the claim, that the individual finds such acts personally repugnant and does not wish to debase herself, or that the mind does not require her to be ore deceitful than is absolutely necessary. Just as important, under-describing of the attack may be another manifestation of the false claimant's naivete as to what actually occurs in these crimes.

Recall of details

Women who have been raped are generally able to provide a reasonably accurate description of the event, including the nature and sequence of the sexual acts performed.[181] Women who make false allegations seem to more frequently report that they had their eyes closed at the time, that they "passed out" and do not recall the penetration, or that they cannot recall the specifics of the actual sex act itself. In the opposite extreme, they may also provide an emotionless, but exquisitely detailed, description of the event. It is important to note here that actual rape victims may also provide an emotionless description of what happened, a procedure that reflects their attempt to mentally disassociate themselves from the unacceptable experience. However, in the case of an actual rape, the description is seldom in the same exquisite detail.

Recounting the event may be embarrassing and emotionally unpleasant for the rape victim, but it is basically a recitation of what occurred. The woman making a false complaint is in a different situation. She must either "invent" the acts she alleges, or she must convert a consensual sexual experience into a "rape." In so doing, she finds herself in a culturally anomalous situation. Our society does not encourage women to discuss their sexual activities with others, especially with strangers (e.g., police officers). Reporting a false rape places the woman in just that circumstance. Unable to recount objectively something that was done to her, she tends either to become vague and evasive or to cross the cultural barrier and become overly descriptive.

Physical injury

Based on our experience, approximately one-third of the legitimate rapes include some form of violence against the victim. In most instances this involves hitting or slapping the victim, choking her, knocking her to the ground, and/or forcibly tearing her clothes off. In the small percentage of the above cases, the level of violence is devastating.

Rape victims who are physically assaulted (beyond the rape itself) may sustain serious injuries, including broken bones, the loss of teeth, mutilation of the genitalia and breasts, and internal injuries. Indeed, some rape victims are murdered during the assault. False complainants do not usually present serious physical injuries. However, as one moves along the continuum of personal pathology, the extent of self-inflicted harm can increase.

Case example: A 27-year old housewife was found, in a dazed state, lying on the ground in a wooded area near her house. A threatening letter was found tucked in her panties. She claimed to have been assaulted, but not raped. She sustained a number of scratches and bruises but was not seriously injured. About a week later, she claimed to have been assaulted in her basement, resulting in serious lacerations. A message written in blood informed her that she had been "warned."

This woman had been previously discharged from the armed forces for having made a false rape allegation, which was accompanied by self-mutilations. She had a long history of hospital admissions for suspicious injuries and illnesses. She was experiencing serious marital and financial problems and was having difficulty in evening college courses. The allegation provided her with an opportunity to become a "legitimate" victim and to receive care, sympathy, and support otherwise missing in her life.

These self-inflicted injuries are typically different from those that occur in actual sexual assaults. There are two characteristics about the injuries claimed in false rape allegations that should be of interest to the investigator. The first involves the wounds themselves, and the second concerns the victim's reaction to her injuries.

False victims who have injured themselves tend to exhibit an unusually wide array of wounds. In spite of this, extremely sensitive organs or tissues such as the eyes, nipples, lips, or genitalia are almost never injured. Self-inflicted injuries are usually caused by scratching with fingernails or by cutting with a razor or other sharp instruments. As such, the wounds tend to be located within reach and at unusual angles. Often they conform to the range of motion of the person's arm or hands. This is particularly noticeable in cuts or scratches on the sides, front, and lower back of the torso. Although the wounds may range from minor scratches to life-threatening lacerations or punctures, they usually appear more severe than they really are. This is because they are inflicted for the purpose of supporting the individual's claim rather than to mutilate or kill. They also frequently reflect a sophisticated understanding of anatomy (i.e., major arteries or tendons are avoided and the likelihood of permanent disfigurement is minimal).

The second characteristic of pseudo-victims who injure themselves is their tendency to be strangely indifferent to their wounds. They appear to accept their injuries with a degree of nonchalance not found in people who sustain similar injuries at the hands of others.[182] Variations of this syndrome are often referred to as "la belle indifference," and the feature is usually quite noticeable even though a general anxiety may be present.

Evidence

Law enforcement authorities correctly place a premium on the evidence supporting an allegation, because it often provides information needed for the prosecution of the case. Because of the nature of a rape case, evidence is particularly important. Moreover, the consistency or inconsistency of the evidence may suggest that a rape complaint has been exaggerated or is completely false. An absence of the kinds of evidence usually associated with rapes can sometimes be as revealing in identifying false allegations as its presence is in establishing that a rape has actually taken place. Some of the types of evidence that appear to suggest a false allegation are:

  • Complainant cannot recall where the crime took place even though she does not report being blindfolded, under influence of drugs or alcohol, or moved from location to location.

  • Crime scene does not support story (i.e., ground cover not disturbed; no footprints where there should be; no signs of struggle when they should logically be present).

  • Damage to her clothing is inconsistent with any injuries she reports (i.e., cuts or scratches inconsistent with tears or cuts in clothing).

  • Complainant presents cut-and-paste letters allegedly from the rapist in which death or rape threats are made.

  • Note or letter is identifiable with pseudo-victim (via handwriting analysis, indented writing, typewriter comparison, paper stock, or fingerprint comparison).[183]

  • Confirming laboratory findings are absent.

Personality and lifestyle considerations

In false rape allegations, extensive and important information on the complainant is often available. In general, this information suggests that the pseudo-victim has experienced numerous personal problems and that her ability to cope is seriously impaired.[184] For example:

  • In temporal sequence, the "rape" follows one or more escalating incidents revealing difficulties in her personal relationships.

  • Complainant has history of mental or emotional problems (particularly referencing self-injurious behavior, with hysterical or borderline features).

  • Complainant has previous record of having been assaulted or raped under similar circumstances.

  • Allegation was made after a similar crime received publicity (suggesting modeling or "copycat" motive in which the similarity to the publicized crime offers credibility).

  • Complainant has extensive record of medical care for dramatic illnesses or injuries.

  • Friends or associates report that the complainant's postassaultive behavior and activities were inconsistent with her allegation.

  • Complainant becomes outraged when asked to corroborate her victimization.

  • Complainant tries to steer the interview into "safe" topics or those that tend to engender sympathy.

How to deal with false accusation cases

Obviously, confronting the victim with "validity concerns" should take place only when there are serious questions concerning the truth of the report. Confronting a person suspected of making a false complaint is always a difficult matter. The critical issue is that if the doubts are incorrect, this would greatly compound the victim's trauma. Such a confrontation will also undoubtedly destroy any relationship that may have been developed between the victim and the investigator. One way to handle this challenge to the victim's credibility without sacrificing the investigator's rapport with the victim is to introduce a second party, a person who can act as a buffer. The principal investigator needs to be available to the person alleging rape and should maintain a nonjudgmental, supportive, and sympathetic relationship with her. It would be counterproductive for this person to voice any doubts as to the veracity of her report. Issues regarding unresolved inconsistencies, conflicts, or the lack of supporting data should be made by an investigative supervisor or co-worker. In this way, the vital relationship between the complainant and the principal investigator may be maintained and perhaps even improved.

The supervisor's style of confrontation should also be supportive, however, since false allegations are usually desperate attempts to protect self-esteem. Any harsh challenges to the person's credibility will increase her defensiveness. It is often effective to simply present doubts to the victim in a way that makes it clear they are based on the information she herself has provided. This decreases personal conflict while conveying an impression that investigators have been thorough and objective. It also allows for adjusting investigative hypotheses and gives the victim an opportunity to provide additional information without having to place herself in a psychologically threatening position.

The reaction of fictitious victims to this approach varies. At the low end of the adaptation continuum there is usually an emotional confession, mixed with both despair and relief. The amount of energy required to maintain her story is exhausting, and this becomes a time for her to cooperate and seek solace. Exaggerators and malingerers often provide great detail as to how and why they masqueraded as a rape victim.

At the extreme upper end of the adaptation continuum, the complainant's distortions will have been internalized and for her own well-being she will need to believe what she is saying because she is unconsciously terrified of losing control. Consequently, her denial will be intensified no matter how the confrontation is handled. Predictably, she will react with outrage. If the family is advised of the findings they may be of great assistance to her eventual recovery. Unfortunately, because of the disordered life of such individuals, they are often estranged from their families.

Victim Impact

Acknowledgments

Content for this module was developed in large part on the basis of material from the model judicial training curriculum entitled, "Understanding Sexual Violence: The Judicial Response to Stranger and Nonstranger Rape and Sexual Assault." This material was produced by the National Judicial Education Program to Promote Equality for Women and Men in the Courts (a project of the NOW Legal Defense and Education Fund in cooperation with the National Association of Women Judges). It was funded by the State Justice Institute.

The National Center for Women & Policing would like to gratefully acknowledge the assistance of this organization.

Introduction

This module will describe the symptoms and stages often experienced by sexual assault victims. This information is provided in order to assist the police officer in understanding the behavior of sexual assault victims and conducting their investigation in the most sensitive and effective way. However, it is critical that officers and investigators remember that there is no universal reaction to sexual assault.[185]

  • Even though this module describes many symptoms that are commonly observed, they are certainly not seen among all sexual assault victims. Moreover, the module describes stages that many victims experience, but again, not all victims progress through the stages as described.

  • Ultimately, there are as many responses to sexual assault as there are victims and officers should be prepared for any type of reaction. Police must not use the victim's reaction as a means for judging the validity of the complaint.

Data from the National Women's Study

Before we go into the specific symptoms commonly experienced in the aftermath of sexual assault victimization, let's discuss how widespread this particular pattern of responses is. In the National Women's Study conducted by the National Victim Center (described in the module on dynamics and commonly referred to as the "Rape in America" study), respondents were asked about the mental health impact of sexual assault victimization. Results revealed that:

  • Almost 1 in 3 sexual assault victims experienced depression.

30% of the sexual assault victims experienced at least one major depressive episode during their lifetime - 3.5 times more than women who are not crime victims.

  • Exactly 1 in 3 sexual assault victims had contemplated suicide.

33% of the sexual assault victims seriously considered suicide - this figure is 4.1 times higher than women who are not crime victims.

  • Approximately 1 in 8 sexual assault victims attempted suicide.

13% of the sexual assault victims actually attempted suicide - 13 times more often than women who are not crime victims.

  • Sexual assault victims often turn to drugs or alcohol.

Compared to women who have never been victims of crime, sexual assault victims are 3.4 times more likely to use marijuana (52.2% vs. 15.5%), 6 times more likely to use cocaine (15.5% vs. 2.6%), and 10.1 times more likely to use hard drugs other than cocaine (12.1% vs. 1.2%).

Clearly, there are a number of mental health concerns associated with sexual assault victimization. These will be discussed in greater detail as we walk through the symptoms often experienced by sexual assault victims.

Common Experiences of Sexual Assault Victims

Sexual assault victims describe many common experiences, and these are often described in stages. It is critical to keep in mind that these stages are only one way of organizing this information, and that victims may not experience many of the symptoms described and they may experience them in a different order than the stages presented below. However, stages are nonetheless useful for organizing the experiences that victims commonly describe, because they can help officers to understand why victims behave in certain ways and why this behavior may change over time. For these purposes, the present module will be organized according to the following stages:

Stage 1: Acute Trauma Stage 2: Outward Adjustment Stage 3: Integration

We will therefore discuss some of the symptoms that pertain to each of these stages -- as well as common experiences during the assault -- along with quotes from victims describing each.

The stages are primarily helpful as a guide for possible symptoms and ideas about how the officer can use this understanding to increase victim sensitivity and facilitate the police investigation. The presence or absence of any symptoms must never be used as a basis for judging the validity of a sexual assault complaint.

Before Stage 1: Experiences During the Assault

In many cases, the way in which a victim experiences her sexual assault will affect the way she responds later when dealing with police, family, and friends in the aftermath of victimization.[186]

For example, many victims describe experiencing a feeling of complete paralysis called "frozen fright" during the assault, or a state of dreamlike detachment called "dissociation." Both of these responses are helpful for officers to understand because they explain why sexual assault often involves so little physical violence and resistance.

  • One reason why sexual assaults often involve so little physical violence and resistance is because victims are frozen with fright during the actual attack. As Dr. Judith Herman of Harvard Medical School writes:

"When a person is completely powerless, and any form of resistance is futile, she may go into a state of surrender. The system of self-defense shuts down entirely. The helpless person escapes from her situation not by action in the real world but rather by altering her state of consciousness. Analogous states are observed in animals, who sometimes "freeze" when they are attacked."[187]

For other victims of both stranger and nonstranger sexual assault, the psychic stress is so extreme that they dissociate during the sexual assault, saying later that they felt it was a terrible dream, or that it was as if the attack were happening to their body and they were watching it from the outside. As one sexual assault survivor described:

"I left my body at that point. I was over next to the bed, watching this happen. . . . I dissociated from the helplessness. I was standing next to me and there was just this shell on the bed. . . .There was just a feeling of flatness. I was just there. When I repicture the room, I don't picture it from the bed. I picture it from the side of the bed. That's where I was watching from."[188]

How to respond

Unfortunately, the responses of frozen fright and dissociation are often used against victims because they are not typically associated with physical resistance or flight.

  • Victims who respond to a sexual assault by freezing or dissociating do not typically show a great deal of physical resistance. This is sometimes used to suggest that the sexual interaction was consensual (e.g., "You didn't resist so you must have wanted it").

  • Officers must keep in mind that frozen fright and dissociation are very typical - and understandable - reactions to being sexually assaulted and are not an indication of consent.

When interviewing a victim who responded with either frozen fright or dissociation, it is imperative that the officer get statements from the victim about the situation and her reaction to it so the experience can be effectively conveyed to prosecutors and ultimately jurors.

Medical-forensic examination

Another thing officers should keep in mind is that the medical examination conducted after the sexual assault is often seen by the victim as a continuation of the traumatic event.[189] As part of the medical and forensic process, the victim receives an internal examination and other evidence collection procedures that are both physically uncomfortable and emotionally difficult.

  • Officers must be aware of what happens during the medical examination and evidence collection procedures, so they can explain them to victims and understand their emotional impact (see the module on medical-forensic examinations).

Officers should also work with an advocate to ensure that victim is receiving all of the information and support to which she is entitled. Advocates can be of great assistance during the forensic examination, by providing the victim with the information and emotional support that will facilitate her cooperation with medical and police personnel.[190]

Stage 1: Acute Trauma

When first interviewing the victim of a sexual assault crime, officers should be aware that the victim may be experiencing symptoms described here in the acute trauma stage. This is the stage of immediate trauma, in which victims are struggling to make sense of what has happened and how it has affected them.[191]

Symptoms often observed during the acute trauma stage are discussed below, along with quotes to illustrate how actual victims have described their experiences.[192]

Psychological Disorganization - Disorientation - Dissociation - Psychogenic Amnesia

During the sexual assault and in the traumatic impact afterward, victims often become disoriented and disorganized in their thinking.[193] They can also lose memory of all or part of the assault. Officers must keep this in mind when interviewing victims because their ability to think about and describe what happened to them is often impaired. In the acute trauma stage, victims are very much trying to make sense of what has happened to them and may be inconsistent or unclear in their description. These are indications of trauma and not fabrication.

"I can't believe this happened to me. It still doesn't seem real. It's taken me a week to report it to the police -- I can't remember the exact details of what happened. I guess I'm afraid that people won't believe me."

--Maria, high school senior, sexually assaulted by classmate with whom she was studying

Also, the dissociation that was previously described as a common experience during the sexual assault can last for some period of time afterward. Victims often describe feeling somehow separate from their physical bodies, so reality is experienced as distant or dreamlike. Again, officers must understand that this reaction is common and natural and should not be used as an indication that the victim is not credible.

Nightmares - Flashbacks - Sleep and Appetite Disturbances - Difficulty Concentrating

Victims experiencing the immediate impact of victimization may also experience intrusive physical and psychological symptoms such as nightmares, flashbacks, sleep and appetite abnormalities, and difficulty concentrating.[194] With respect to sleep and appetite, victims can exhibit these disturbances either by over-eating and over-sleeping or under-eating and under-sleeping.[195]

"I haven't slept for days. As soon as I fall asleep I have a nightmare of someone trying to sexual assault me. Every time I look at food I get nauseous and can't eat. I can't concentrate and don't see how I'm going to return to school."

--Emily, college sophomore, sexually assaulted by classmate at fraternity party

Again, officers must keep in mind that disruptions in the victim's physical and emotional life will affect their ability to cooperate with police investigation. Even victims who want to cooperate with police find it difficult to do so when their physical and emotional reality is so disrupted. Police must understand this and should also document the existence of these symptoms because they support the victim's claim of having experienced a traumatic event.

Constant Reliving of the Assault

Victims often have intrusive memories of the sexual assault that are difficult to control and that disrupt their daily lives.[196] As victims describe, the memory is not only intrusive and unwelcome but also accompanied by the feelings of terror and shame originally experienced during the assault.[197]

"Every time I walk into my bedroom I see him standing over me and telling me to take off my clothes and not to say a word. I can't get it out of my head. It's as if it's happening right now."

--Jennifer, 28-year-old business executive, sexually assaulted by a former boyfriend

Re-Enactment of the Experience

Sometimes victims reenact the traumatic moment with a fantasy of changing the outcome of the encounter.[198] In their reenactments, victims may even put themselves at risk of further harm if they are acted upon behaviorally instead of just imagined.

"I had to prove they weren't going to get me down. The guys who raped me told me, 'If we ever find you out here alone again we're going to get you.' And I believed them. So it's always a bit of a terror walking up that lane, because I'm always afraid I'll see them. In fact, no one I know would walk up that lane at night alone, because it's just not safe. People have been mugged, and there's no question that it's dangerous. Yet part of me feels that if I don't walk there, then they'll have gotten me. And so, even more than other people, I will walk up that lane."

--Sohaila, 17-years-old, gang-raped in her neighborhood[199]

Shock - Disbelief - Helplessness - Powerlessness - Loss of Control

One of the primary characteristics of sexual assault is that it creates severe feelings of helplessness among victims. As a result, victims often continue to experience the helplessness, powerlessness, and loss of control originally associated with the sexual assault.[200]

"I can't believe this happened. People keep asking me if I screamed or tried to talk the guy out of it, but I was so scared at the time. I was afraid he was going to kill me so I just lay there."

--Allison, college senior, sexually assaulted by a man she had dated several times

In addition, traumatic events often leave individuals experiencing shock and disbelief. As with war or natural disasters, people have a difficult time believing that they have been the victim of sexual assault and trouble making sense of what happened.[201]

Guilt and Self-Blame - Loss of Self-Esteem

One of the hallmark characteristics of the response to sexual assault is that victims typically feel guilt, shame, and self-blame. We have already talked about how society tends to hold victims responsible for sexual assault, but it is important to remember that victims themselves are not immune to this tendency.[202] Just as society looks to the victim's behavior for causes of the sexual assault, so does the victim. In fact, the victim might have an even greater interest in finding blame in her own behavior because if she can "figure out what she did to cause the rape" she might believe that she can change the behavior and avoid future victimization.

"I was so stupid. I should have known better than to let him drive me home from the party. He seemed so nice and trustworthy -- maybe I'm a bad judge of people. I keep thinking that if only I had tried to struggle with him I could have avoided what happened. I feel like such a fool."

--Wendy, 24-year-old nurse, sexually assaulted by a man who was a guest at her best friend's engagement party

Unfortunately, the result of this process is that victims often lose their sense of self esteem and self identity. By blaming themselves, they worsen their trauma and escalate the spiral of symptoms they are currently experiencing.[203]

Suppressed or Intensified Emotional Experience

Just as appetite disturbances can cause victims to either over-eat or under-eat, the effects on their emotional experience can result in either suppressed or intensified emotions. In other words, some victims might appear to police to be over-emotional in response to the sexual assault whereas others might seem to be under-emotional. Both responses are normal, and result from the total disruption of emotional experience.[204]

"Yesterday I was walking across campus. It was a beautiful day, and all of a sudden I burst into tears and couldn't stop crying."

"I can't seem to feel anything even though I know something terrible has happened."

--Deborah, graduate student, sexually assaulted by her college professor

Extreme Fear and Hypervigilance

As with victims of domestic violence, sexual assault survivors often experience extreme fear and anxiety (including phobias), along with hypervigilance and/or a heightened startle response.[205] Officers need to be aware of the sources of a victim's fear, both to facilitate their cooperation but also to help develop a plan for addressing realistic threats to the victim's safety.

"I jump at every noise. I'm afraid to be in my apartment or to walk the streets alone. I'm convinced he's out there, waiting to hurt me again."

Melissa, 32-year-old school teacher, sexually assaulted in an alley by a man she had talked with at a bar in her neighborhood

In addition to the generalized anxiety that would be expected as a result of such a trauma, victims often have specific fears - of being revictimized or retaliated against for disclosing the assault. These fears must be taken seriously, both because they can be debilitating for victims but also because they are grounded in reality. Keeping in mind that the vast majority of sexual assaults are committed by acquaintances, it is important to remember that these people remain in the victim's life. Steps must be taken to ensure the victim's actual physical safety as well as her subjective feeling of security.

Extreme Calm And Denial

Related to the suppression of emotional expression and dissociation that were described previously, victims can also react to their experience by exhibiting extreme calm and/or denial.[206] In some cases, victims might deny that the assault happened, but more typically they will simply deny the impact that it had on them (i.e., "I'm okay, it was no big deal").

"It's like it happened to someone else. Sometimes I just think it was a bad dream and I'll wake up to find it didn't happen -- I feel completely numb."

--Valerie, high school sophomore, sexually assaulted by her brother's best friend

Irritability and Outbursts of Anger

Although many police officers and others believe that victims strike out in anger after the assault, this response is actually relatively unusual in the immediate aftermath of sexual assault. However, some victims do respond with irritability or anger[207] and officers must handle this situation professionally - without taking it personally. As with any other investigation, it is critically important that officers not escalate the level of emotional intensity in a situation, but rather that they use a sensitive yet professional demeanor to deescalate the situation.

"I've been feeling so angry at everyone. Here is this guy still roaming the city scott-free while I'm going through hell. Nobody knows how awful this is."

--Susan, 32-year-old secretary, sexually assaulted by a man who came to her apartment to raise money for animal rights

Depression - Suicidal Thoughts and Actions

As previously described, approximately 1 in 3 sexual assault victims experience depression - a figure much higher than for other women. Even more frightening, 1 in 3 contemplate suicide and 1 in 8 actually attempt it. Again, these figures are much higher than for women who are not crime victims and suggest to the officer that any mention of suicidal thoughts or actions by a sexual assault victim should be taken seriously and handled immediately.[208]

"Sometimes I wish he had killed me rather than having to endure this pain. Sometimes I feel so down I think about going to sleep and never waking up. Last night I found myself with a handful of sleeping pills -- if my husband hadn't been there I might have taken them."

--Laura, 40-year-old college professor, sexually assaulted by a colleague at an academic conference

Physical Symptoms - Pain - Fatigue - Muscle Tension - Gynecological Problems

Of course, victims will continue to experience pain or other symptoms associated with physical injuries sustained during their assault. In addition, however, there are often more general effects of the sexual assault on the victim's physical well-being. Our physical health mirrors our emotional health, so it is not surprising that sexual assault victims often report feeling fatigue, muscle tension, and other physical symptoms as a result of their trauma.[209]

"I am so physically run down and exhausted that I can't function. Since the rape, my stomach is upset all the time."

--Molly, high school junior, sexually assaulted by a friend of the family

Shame - Internalized Sense of Damage

As we've already mentioned, victims often internalize the cultural myths about sexual assault, and one of these is that it causes a woman to become "damaged goods." Also, because many of the myths function to blame the victim rather than the perpetrator - and assert that the victim somehow deserved the assault -- many victims feel a sense of shame along with the guilt and self-blame.[210] Much of this shame is fueled by a concern about how family, friends, and/or romantic partners will view the victim after the sexual assault. Victims also often fear publicity surrounding the sexual assault and are deeply concerned about others finding out about it.

"I'm wondering if I'll ever be the same again. I want to tell my boyfriend but I don't know how he'll react. I'm afraid he'll be repulsed by me. I feel so dirty I can't stop taking showers."

--Laurie, college junior, gang-raped at a fraternity party

Changes in Social and Sexual Functioning

Victims of sexual assault will often respond to their experience by changing their social or sexual lives - sometimes rather dramatically.[211] Individuals who were previously shy may become very outgoing after their assault, or those who were formerly outgoing might become withdrawn. Similarly, victims may lose interest in or reject sex after their assault, or they may become promiscuous when this wasn't previously their typical behavior. Various forms of sexual dysfunction may even result from victimization,[212] and many victims experience a decrease in their level of trust and intimacy with others.[213]

In addition to these more generalized changes, victims might also make changes in their social or sexual lives to avoid particular reminders of the assault.[214] For example, victims might avoid certain people or situations if they are somehow associated with the assault, and specific sexual acts might create anxiety if they were involved in the sexual assault.

"I just don't want my boyfriend to touch me -- I get nervous when he does now. Even when I see men on the street I get upset. I just don't feel the same since this happened."

--Paulette, high school senior, sexually assaulted by a fellow member of the high school yearbook committee

Finally, it is very common for victims to make other kinds of changes in their personal appearance or daily routine, such as changing their name or hairstyle, moving or selling their car.[215] Often these changes make it difficult for officers to locate the victim for interviews, so officers must ask the victim during the interview where she will be staying and how she can be reached.

Self-Destructive Behavior

Too often, the changes that victims make in their social or sexual functioning are self-destructive in nature.[216] For example, the National Women's Study figures demonstrate that victims often respond to the trauma of sexual assault by turning to alcohol or other drugs. Other self-destructive behavior could include promiscuous sexual activity or other high risk behavior. Unfortunately, these self-destructive behaviors are a common response to traumatic victimization yet they can cause further disruption in the victim's life and social support system, when family and friends respond negatively.

Stage 2: Outward Adjustment

In the second stage of traumatic response, described as outward adjustment, victims may respond by trying to deny that the sexual assault happened or that it had a significant impact on them. This stage is called outward adjustment because victims often try to carry on with their lives as if nothing had happened. By returning to their previous routines, victims try to convince themselves and others that they're "ok," that the sexual assault was "no big deal," or that they are "over it."[217] This stage sometimes ends when the victim returns to crisis and original symptoms before achieving integration.

Efforts to Deny or Minimize the Impact of the Sexual Assault

During the stage of outward adjustment, victims often try to deny that the sexual assault happened - not necessarily by denying the reality of the event but by dissociating from the memory and denying that it had a significant impact on their life. This is perhaps the hallmark symptom of this stage.

"It seems like something bad happened a long time ago. I don't want to think about it or even go on talking about it."

--Carla, divorced mother of teenage son and daughter, sexually assaulted by a man she met through a dating service

"Everybody says it happened months ago -- you should be over it by now. Maybe they are right -- I've got to get on with my life."

--Lisa, worked the night shift at a convenience store, sexually assaulted by co-worker who offered a ride home from work

Rationalize the Reasons it Happened

While victims are trying to make sense of what happened to them, they often try to figure out "what caused the rape." Unfortunately, victims often look for the causes in their own behavior because the cultural myths suggest that sexual assault is somehow caused by the victim rather than the perpetrator.[218]

"I guess it was just bound to happen -- especially since I was the one who broke up with him. He couldn't control his temper."

--Alexis, airline attendant, sexually assaulted by a pilot who was her boyfriend for one year

Avoid Reminders of the Sexual Assault

Because victims are trying during this second stage to "move on" with their lives, they often suppress memories of the assault.[219] By trying to avoid any reminders of the sexual assault, however, they often change their lives and daily routine as previously discussed.

"I've moved into another dorm and dropped all the classes we were in together. I've never gone back to the fraternity house even though I had many friends there. At least I don't have to be constantly reminded of what happened."

--Tonya, college freshman, sexually assaulted at fraternity party by the captain of the football team

Depression, Anxiety, and Fear Remain but are Experienced as Less Distressing

As a result of these efforts to minimize the impact of the sexual assault and "get over it," victims often experience a genuine decrease in the levels of depression and anxiety.[220]

"I still feel low and scared at times but it's better than how I felt a few months ago when I couldn't live a normal life at all."

Judy, 51-year-old widow, sexually assaulted by her brother-in-law

Fewer Episodes of Reliving the Sexual Assault

Victims are also often able to successfully push thoughts of the sexual assault out of their minds. However, this period of outward adjustment sometimes ends when victims return to crisis and original symptoms before achieving actual integration.

"Some days I don't think about the rape at all -- it is such a relief. Maybe I can finally forget about it."

--Karen, 35-year-old lawyer, sexually assaulted by the head of her law firm after a meeting

Return to Crisis

Although victims are typically able to function successfully during the second stage of outward adjustment, they often realize at some point that they are not able to "get over" the sexual assault as easily as they originally thought. Sometimes victims are thrown back into crisis as a result of some triggering event that brings memories of the sexual assault to the surface.[221]

For example, some victims might re-experience crisis when they see someone who looks like their assailant, smells like him, or drives a car that looks like his. Others return to crisis simply as a result of time, when their coping mechanisms fail to maintain the "outward adjustment" of the previous stage.

When the original symptoms return after months of "outward adjustment," victims are often confused and disappointed. Many victims - along with their friends and families - wonder if they will ever truly "get over it."

"Even though it's a year since the rape, I've been feeling upset again. I'm really confused about this. I've been having flashbacks and nightmares like I did just after it happened. Will I ever get over this?"

--Eve, graduate student, sexually assaulted while on vacation by a man who had offered to give her a guided tour of the island she was visiting

Increased Ability to Express Emotions about the Sexual Assault

In many cases, the return of symptoms might even be experienced as more severe than they were during the initial acute trauma stage, because the victim is less able to suppress them. This is also a time when anger might surface, as victims begin to shift the blame for the sexual assault from themselves to their assailants. Victims often have fantasies of revenge during this stage, and this can be helpful for facilitating the healing process of victims - as long as they remain fantasies.

"I'm just beginning to feel the anger and the sadness -- it's as if I've been keeping my feelings in a vault waiting until it feels safe enough to let them out."

--Anne, young mother, sexually assaulted by a co-worker on a political campaign committee

Of course, the anger experienced during this stage is often generalized and therefore misdirected at undeserving individuals. Like anyone responding to traumatic victimization, anger is often a natural and healthy part of the process but it can be difficult for officers and others to handle.

The key for handling anger is in recognizing that it is misdirected and not escalating it by responding personally. Rather, officers and others should respond to a victim's anger calmly and professionally, and help direct the energy toward productive outlets such as cooperating with the police investigation.

Develops Ways Of Coping With Trauma

When victims realize that they need more than just "outward adjustment," they often begin to deal with the sexual assault in a more realistic and productive way. Acknowledging that they can no longer "push down" the memory and symptoms of victimization, victims often develop ways of coping that will ultimately lead to integration and genuine healing.

"I've gone to counseling and taken a self-defense course. I'm learning to trust myself again in social situations, although I still get nervous when I'm with people I don't know well."

Judith, 21-year-old music conservatory student, sexually assaulted by her teacher and mentor during a practice session

Stage 3: Integration

In the third stage of integration, victims emerge from their second experience of crisis with a better understanding of the sexual assault and its effect on their life. This stage can extend throughout the victim's life, reflecting the fact that the sexual assault will forever impact the victim's life and perspective.

  • When integration is successfully achieved, victims rebuild their lives in a way that takes into account this traumatic experience, its impact, and its meaning.

  • Many victims emerge from the process of integration as stronger and healthier people, and they often seek out ways to use the experience as a force for positive change. For example, some victims volunteer at rape crisis centers or otherwise attempt to help others who experience sexual assault.

  • It is during this integration stage that one most often hears the term "survivor" used to describe people who have struggled through their role as "victims" and emerged as "survivors" who actively healed themselves and their lives following sexual assault.

Tragically, however, not all victims successfully achieve integration and for them the symptoms of response to trauma can become a way of life.

Acceptance and Understanding of the Sexual Assault

It is only during the final stage of integration that victims usually come to some acceptance and understanding of the sexual assault and its impact on their lives. After trying during the previous stages to suppress the memory and trauma of the assault, victims often realize during the integration stage that these are now a permanent part of their lives, whether they like it or not - just as physical scars remain to remind us of previous injuries. However, this does not mean that individuals remain in a state of crisis. Rather, many become "survivors" as they integrate the experience of the sexual assault into their lives and personalities.

"I've learned that bad things can happen to good people. I'll never forget the rape but I know that I can return to life with my wound healed and my spirit unbroken."

Agatha, marathon runner, sexually assaulted in high school by her boyfriend after the senior prom

Reorganization of Life

It is also during the integration stage that victims truly reorganize their lives in ways to reflect their newfound understanding and acceptance of the sexual assault as part of who they are. They also often use the sexual assault as a source of positive strength and energy, and seek for ways to use the experience to help others. They have truly become "survivors."

"I am beginning to believe that I can rebuild my life in a way that I feel safe and strong. I'll never forget what has happened to me, but I'm ready to use what I have learned to help myself and other victims."

Karen, college senior, sexually assaulted by a friend's boyfriend when she was a freshman

Effect of Victim Response on Police Investigation

Even though the symptoms and stages that victims commonly experience following a sexual assault are described clearly in this module, it is critical for officers and others to keep in mind that victims do not progress neatly from one stage to another.

  • Rather, victims can experience some or all of the stages, and they can skip forward and backward through the stages as they try to make sense of the experience in their own lives.

  • Obviously, a large number of factors will also affect how victims respond to sexual assault victimization, including their own personal characteristics, the quality of support networks, and the time and resources they have available to deal with their process of healing.[222]

Nonetheless, the stages and symptoms described above can be useful to officers and others because they provide a guideline for what to expect from victims. Officers will be better able to deal with victims if they understand these common experiences of sexual assault victims. They can also use the descriptions provided here to help understand important differences in the victim's behavior throughout the process of police investigation.

For example, victims are likely to be in the acute trauma stage during the initial police response, but often they move on to outward adjustment as the case progresses through the prosecutor's office. Since victims in the stage of outward adjustment are trying to minimize the impact of the rape and "get on with their lives," they may withdraw their cooperation at this point or try to downplay the significance of the event. This behavior is perfectly understandable for those familiar with common victim responses, but is often mistaken for proof that the victim fabricated or exaggerated her initial claim.

Finally, an understanding of these symptoms and stages will help officers to appreciate the importance of documenting the various symptoms that a victim is exhibiting. These symptoms can serve as evidence to support the victim's claim, because they are consistent with the experience of traumatic victimization. However, the absence of any particular symptom(s) should never be used as a basis for suspecting that a claim of sexual assault is fabricated.

Special Issues Affecting Victim Response

Male Victims

Men who are sexually assaulted may experience many of the same symptoms and stages described above, but there are also a few differences that are frequently observed.[223] For example:

  • Men often suffer profoundly from the idea that to be sexually assaulted is to lose one's manhood. Being sexually assaulted is so inconsistent with their gender identity that it can cause men to experience serious confusion over their masculinity.

  • Similarly, because men are typically sexually assaulted by other men, victims and others often confuse sexual assault victimization with homosexual identity. Again, this can cause heterosexual men a great deal of confusion and anxiety as a result of the sexual assault. This concern must therefore be understood and addressed by law enforcement officers to encourage cooperation with the police investigation.

These issues may become evident when male victims request a female officer, insist that they were "assaulted" rather than raped (thereby denying the sexual component), or refuse to speak to the rape crisis advocate. All of these reactions are understandable, and officers and others must reassure male victims that their experience in no way challenges or their masculinity or heterosexuality.

As a way of dealing with these issues, many men respond to the trauma of sexual assault victimization by aggressively asserting their masculinity or heterosexuality. Just as women often react by behaving promiscuously, male victims will also often respond by engaging in sexually promiscuous or even aggressive behavior to reassure themselves that they are masculine, heterosexual, etc. However, just as female victims often experience symptoms in their sexual lives, male victims also can suffer from impotence and sexual anxiety as a result of their assault.[224]

Unique issues pertaining to other specific populations (e.g., same-sex assault, victims and perpetrators from specific racial/ethnic groups, individuals with disabilities, and the elderly) are discussed in the module pertaining to special populations.

Brutality of the Attack Does Not Determine Severity of Response

It is often assumed that the sexual assault victim who has suffered the most aggravated physical injuries will have the worst mental trauma as well. In fact, the brutality of the attack does not determine the severity of the victim's response.[225]

  • Researchers have found that serious adjustment problems are as prevalent for sexual assault victims who did not experience brutal violence as for those who did. Indeed, victims of physically brutal assaults may have less severe effects from the assault, relatively speaking, because people are less likely to doubt or blame a victim with obvious signs of physical injury.

Stranger versus Nonstranger Sexual Assault

Many people, including judges, lawyers and police, are not aware that sexual assault committed by someone known to the victim is as traumatic, and often more traumatic, than stranger sexual assault because self-blame is increased and the ability to trust others is destroyed.[226]

  • Victims of nonstranger sexual assault may be more likely to keep their experience secret because of guilt and shame, more likely to be blamed by themselves and others, and less likely to see themselves as deserving of sympathy and professional help.

  • Victims of nonstranger sexual assault are also more likely than stranger rape victims to delay reporting to police, rape crisis staff, or other support people.[227] In many cases, it is years before these victims disclose their assault to anyone.

  • This is one of many ways in which victims of acquaintance sexual assault respond more similarly to those who have experienced incest than those who have been raped by a stranger.

Perhaps the hallmark characteristic of the response to nonstranger sexual assault is that victims doubt their ability to judge people and decide who can and cannot be trusted. If they so misjudged the person who sexually assaulted them, victims reason, they cannot trust themselves to judge who is safe and who poses a threat of harm to them. For all of these reasons, victims of nonstranger sexual assault are especially likely to isolate themselves socially - at a time when they most need to the support of friends and family.[228]

Marital Rape

Often the most misunderstood area of sexual assault is marital rape. Some people simply do not believe that a man can sexual assault his wife.[229] Yet studies have shown that these sexual assaults sometimes involve levels of violence as high as that for stranger sexual assault and higher than other assaults committed by known perpetrators.[230]

  • It is important to note that marital rape can occur either with or without wife battering. Even when there is no physical violence associated with the sexual assault, however, the psychological trauma of marital rape is especially profound because the victim loses trust in the single person that she would typically have the most reason to trust - her husband.[231]

  • The fear of repeated attacks is especially severe in marital rape because -- unless the wife immediately leaves or is able to force the man to leave -- she must live with not only the rape, but also the rapist.

Unfortunately, victims of marital rape are often particularly reluctant to disclose information regarding a sexual assault even when reporting physical abuse. Because of the shame associated with sexual victimization, victims will often feel more comfortable discussing physical abuse rather than sexual abuse. For this reason, police should always gently ask about sexual victimization when interviewing victims of physical violence in the home.

Response of the Revictimized Victim

Despite what many people think, the experience of having been sexually assaulted before does not make a subsequent sexual assault less traumatic. Indeed, the reality is exactly the opposite. Victims of prior sexual assaults are often more traumatized by a subsequent assault.[232]

  • When victims report to hospital emergency rooms and rape crisis centers with well-trained personnel, they are quickly asked if they have ever been the victim of a previous sexual assault. This is done because knowledgeable professionals know that the revictimized victim is often the most vulnerable and may have the most difficult recovery.

  • Law enforcement officers should similarly ask sexual assault victims if they have previously experienced a sexual assault, because those who have been victimized more than once are likely to relate aspects of their prior and current assaults simultaneously. This occurs because the new sexual assault causes them to re-experience their earlier assaults.[233]

Drug Facilitated Sexual Assault[234]

Survivors that were assaulted while under the influence of a sedating substance may not have complete recall of the assault. Therefore, their recovery experience will be different from survivors that do remember the assault. Even if the survivor remembers a few fragmented seconds of the assault, she may be uncertain about what exactly happened and who was involved in the incident.

The survivor is left to fill in the gaps with her imagination which can cause tremendous anxiety over the "unknowns" of the assault. Thus, the loss of control and guilt or shame (though unwarranted) that most survivors feel and must overcome has been described to be greater than if they actually knew what happened to them. Many survivors describe concerns about the presence of multiple rapists or of being videotaped or photographed. If the assault was videotaped or photographed, they worry about their images surfacing in the underground pornography market or on the internet.

Reactions that survivors of drug-facilitated sexual assault may experience:

  • Undirected anger -- doesn't know who the perpetrator is

  • Incomplete recall of the events

  • Doesn't fully know what sexual activity was forced upon her

  • Guilt or shame (though unwarranted) may be greater

  • Feeling of "loss of control" may be greater

  • Anxiety about "unknowns", e.g., multiple offenders, video-taping or photographing the sexual assault

  • Circulation of videos or photographs of survivor in the underground pornography industry or on the internet

  • May never be able to fill in the missing pieces

  • Feelings that if she does not even know what actually occurred during the rape, why should anyone believe that an actual rape took place?

  • If case is prosecuted, how can she testify effectively?

  • Feelings that because of all the "unknowns," she can never truly deal with her assault and consequently, she will never recover from it

More detailed information about this topic is provided in the module on drug-facilitated sexual assault, including unique investigative approaches.

References

Allison, J.A. & Wrightsman, L.S. (1993). Rape: The Misunderstood Crime. Sage: Newbury Park, CA.

Arata, C.M. & Burkhart, B.R. (1996). Post-traumatic stress disorder among college student victims of acquaintance assault. In E.S. Byers & L.F. O'Sullivan (Eds.), Sexual Coercion in Dating Relationships. Haworth Press: New York, NY (p.79-92).

Bowie, S.I., Silverman, D.C., Kalick, S.M., & Edbril, S.D. (1990). Blitz rape and confidence rape: Implications for clinical intervention. American Journal of Psychotherapy, Vol. XLIV, 180-188.

Finkelhor, D. & Yllo, K. (1985) License to Rape: Sexual Abuse of Wives. Holt, Rinehart, & Winston: New York, NY.

Herman, J. (1992). Trauma and Recovery. Basic Books: New York, NY.

Kilpatrick, D.G. et al., (1988). Rape in marriage and dating relationships: How bad is it for mental health? In R.A. Prentky & V.L. Quinsey (Eds.), Human Sexual Aggression: Current Perspectives. New York Academy of Sciences: New York, NY.

Koss, M.P., Dinero, T.E., Seibel, C., & Cox, S. (1988). Stranger, acquaintance, and date rape: Is there a difference in the victim's experience? Psychology of Women Quarterly, 12, 1-24.

Koss, M.P., Goodman, L.A., Browne, A., Fitzgerald, L.F., Keita, G.P., & Russo, N.F. (1994). No Safe Haven: Male Violence Against Women at Home, at Work, and in the Community. American Psychological Association: Washington, DC.

Koss, M.P. & Harvey, M.R. (1991). The Rape Victim: Clinical and Community Interventions (2nd ed.). Sage: Newbury Park, CA.

Russell, D.E.H. (1990). Rape in Marriage. Bloomington Indiana Press: Bloomington, IN.

Struckman-Johnson, C. (1991). Male victims of acquaintance rape (Ch. 13). In A. Parrot & L. Bechhofer (Eds.), Acquaintance Rape: The Hidden Crime. John Wiley & Sons: New York, NY (p.192-213).

Victim Interviews

Acknowledgments

About the authors:

Ms. Garcia serves as a crisis counselor for the Chapel Hill, North Carolina, Police Department.

Ms Henderson serves as executive director for the Orange County Rape Crisis Center in Chapel Hill, North Carolina.

Content of this module was developed partly on the basis of original material produced by Sergeant Joanne Archambault of the San Diego Police Department.

Other material was adapted from:

  • "Police Response to Crimes of Sexual Assault: A Training Curriculum." Written by Sharon M. Hunter, Bonnie R. Bentley Crewe, and Jamie L. Mills. Produced by the Connecticut Sexual Assault Crisis Services, Inc. Funded by Police Officer Standards and Training Council and STOP Violence Against Women Grant #VAW9606.

  • "Model Guidelines and Sex Crimes Investigation Manual for Illinois Law Enforcement." Produced by the Illinois Law Enforcement Training and Standards Board and Illinois Coalition Against Sexual Assault.

The National Center for Women & Policing would like to gratefully acknowledge the assistance of these individuals and organizations.

First, the Bad News:

In a recent study of the factors that influence a prosecutor's decision to charge in a sexual assault case, researchers validated what many experienced investigators already know - that charging decisions are primarily if not exclusively determined by the victim's perceived character and her behavior at the time of the assault.[235]

Results of this study revealed that:

  • Prosecutors were over 5 times more likely to file charges if there were no questions about the victim's moral character.

  • They were also nearly 2.5 times more likely to charge if the victim did not engage in any risky behavior at the time of the assault.

  • Finally, prosecutors were almost 4 times as likely to file charges if the victim reported her sexual assault to police within one hour.

Clearly, prosecutors - like other members of the criminal justice system and the rest of society - base their judgments of sexual assault victims and cases on the stereotypes of "real rape" that were discussed in the previous chapter on dynamics.

  • In other words, the judgment of a rape case rests on the victim rather than the offender, based on her background and reputation, her relationship to the accused, and her behavior at the time of the incident.

  • In this particular study, none of the evidence factors or other measures of case seriousness affected the prosecutor's decision to charge or not.

So what do we conclude from this?

Of course we could conclude on this basis that law enforcement should just give up on thoroughly investigating sexual assault cases - or focus only on those cases that fit the stereotype of "real rape," where the victim has an untarnished moral character and impeccable behavior at the time of the assault.

However, we think that the opposite is actually true. We think that this study shows the importance of good police investigation and the crucial role that police play in corroborating the victim's allegations.

How so?

Specifically, if the decision to charge in a sexual assault case depends on the victim's character and behavior - essentially her credibility -- then we think it is the job of law enforcement to focus their investigative efforts on corroborating every possible aspect of the victim's story and overcoming the challenges to credibility that come from societal misconceptions.

  • In other words, police must focus their efforts - from the initial response to their testimony in court - on supporting the victim's credibility and proving that events took place as she described them.

  • Police must also use an awareness of the societal stereotypes regarding "real rape" to overcome common challenges to the victim's credibility. This will include an awareness of how police themselves might be susceptible to believing the stereotypes of "real rape."

By overcoming challenges to the victim's credibility and corroborating every possible aspect of her story, police can make the case "prosecutable" and at the same time facilitate victim rapport, cooperation, and even successful emotional recovery.

In this module, we will first discuss some of the common challenges to victim credibility and explore how the officer can approach and overcome these challenges during the victim interview.

Credibility Challenge #1: Lack of Physical Resistance

In the dynamics module we discussed how the stereotype of "real rape" suggests that "genuine victims" will resist their assailant to their utmost capacity. Because of this stereotype, victims who report little or no physical resistance are often viewed by police and society with suspicion. After all, "If she didn't resist, maybe she really wanted it."

Yet we also discussed in the dynamics module that most sexual assault victims exhibit little or no physical resistance. This is true for a variety of reasons.

  • Victims may not resist because they are too surprised or confused to do so, or because they fear resistance will anger the rapist and increase their risk of injury or death.

  • Other victims do not resist because the man's greater size and strength are sufficiently threatening to induce compliance - even in the absence of actual force or threats.

  • Finally, victims may not resist because they are experiencing dissociation or frozen fright, or because they are under the influence of drugs or alcohol.

All of these reasons were discussed in the module on victim impact as possible reactions to sexual assault victimization. However, they are relevant here because these reactions - although typical and completely understandable - are used against victims as a challenge to their credibility because they make it unlikely that the victim will physically resist.

The role of gender socialization

In addition to these traumatic responses, there is another reason why many women do not resist during a sexual assault - based on a lifetime of female gender socialization. Although many men have a difficult time understanding this aspect, it is true that many victims do not resist someone who is sexually assaulting them because they are afraid of embarrassing themselves or him. Since birth, girls and women are socialized to be polite, to not offend people, and to never say "no" because that could hurt someone's feelings. The following scenario illustrates this point.

Imagine for a moment that a woman is working late at her office, and she goes to the elevator after finishing and preparing to leave. When the doors of the elevator open, she sees a man that she doesn't recognize alone in the elevator car. Does she get into the elevator with the man, despite her discomfort with the situation?

Although individuals will of course react differently to situations, the fact is that most women would get into the elevator with him despite their discomfort. Is this unwise? Perhaps. However, in some sense women are trained their entire lives to get into that elevator car - because girls and women are socialized to be polite and cooperative, to trust people, and to never say "no" or otherwise hurt someone else's feelings.

  • In a wide range of circumstances, women do get into the elevator (or accept the ride, or the date, etc.) because they are afraid of misjudging or overreacting in the situation, and because they fear looking ridiculous or hurting the man's feelings.

  • Most men - especially police officers - cannot understand this dilemma because men have been socialized to think and act differently. However, assuming that this dilemma is experienced very similarly by most women, imagine how much more powerful this discomfort and confusion must be when the situation is sexual and the man is someone she knows.

For all of these reasons, therefore, victims of sexual assault often display little or no physical resistance, and this will often be used to challenge their credibility as well as the validity of their claim. After all, victims of "real rape" resist to the utmost, don't they?

Overcoming this challenge

To overcome credibility challenge #1, officers must carefully elicit from the victim exactly how she responded to the situation and what she was thinking and feeling while she did so. When doing so, it is critically important that officers use open ended questions that allow the victim to describe the experience in her own words.

For example, interviewers should never ask the victim questions like:

  • Did you fight the suspect?

  • Why didn't you try to run or escape?

  • Did you scream for help?

Questions like this imply to the victim that there is a correct response to rape - because we all know that victims of "real rape" try to run, scream, or fight their assailant. However, for the majority of victims who demonstrate little or no physical resistance, this type of question can make them feel that they are being judged and/or that their claim is viewed with suspicion.

Instead, interviewers should provide the victim with open-ended prompts such as:

  • What did you do next?

  • Tell me what you were thinking at that point.

  • Tell me what you were feeling when he did that.

This type of questioning will provide the victim with the opportunity to talk about her thoughts, feelings, and experiences during the assault. Officers are often surprised by the information that victims provide in response to such open-ended prompts, with details that would not have been elicited if the question had been posed differently.

For example, a district attorney noticed in an interview with an 18-year old victim that she had unusually long fingernails. The D.A. thus asked her why she didn't use her fingernails to scratch the 225-pound university football player accused of raping her. The victim could not respond. How could she? Later, when asked how she felt during the attack, she said that although she continually cried and said "no," she thought that the suspect would kill her and that she would never get to go home if she made "too big a deal" out of the incident.

When the victim responds by describing all of her thoughts and feelings during the incident, the officer can reconstruct the reality of her experience in its entirety. This can be very powerful in getting both prosecutors and jurors to understand why she responded the way she did - including why she did not physically resist in the situation.

Any spontaneous statements made by the victim to others in the aftermath of the assault are also important to document when overcoming this challenge to victim credibility. For example, the first person to whom the victim disclosed the assault is critically important to interview because this person will provide unique information regarding the victim's initial demeanor, behavior, and statements.

Credibility Challenge #2: Delayed Reporting

Another common challenge to the credibility of sexual assault victims is that they typically do not report the crime, and if they do report it is only after some delay. As discussed in the dynamics module, there are myriad reasons why victims delay reporting but this typical reaction is nonetheless seen as cause for suspicion. After all, the stereotype tells us that victims of "real rape" report the crime immediately to authorities.

Delayed reporting is also a factor that often differs between victims of stranger and nonstranger sexual assault, and officers can perhaps better understand this difference by considering how children might react to an assault by a stranger versus nonstranger.

Imagine the child molested by a stepfather versus a stranger in the park. The child who is molested by a stranger is more likely to run and tell someone about the incident as soon as he or she is able to get away from the perpetrator. The child who is molested by a stepfather or other relative, however, will often suffer for years before the secret is disclosed - if indeed it is ever disclosed.

Similar dynamics are at work with adult victims. Adult victims of nonstranger sexual assault - as with the child victim -- are likely to be frozen with fear, paralyzed by the concern that they are to blame, and confused by the friendship, love, or trust that they feel for their assailant.

  • They will often delay reporting because they are afraid that no one will believe them, afraid that family members and friends will side with the offender rather than themselves, afraid for what will happen to the offender if the abuse is reported, and afraid for what will happen to their own lives after disclosing such a secret.

  • Many victims also do not report their assault if it is committed by someone they know, either because they do not label it as a crime or because they have not yet had time to process the information themselves.

As we stated in the module on dynamics, police are not the only ones to hold stereotypes about "real rape." Victims also often believe that sexual assault can only happen between strangers, involving physical force, weapons, and injury. They often believe the societal myth that sexual assault cannot happen if the victim knew the offender, drank or took drugs, or invited him into her home. Victims have also often internalized the victim blaming attitudes of our society, which further decreases the likelihood of disclosure.

Overcoming this challenge

For all of these reasons, it is understandable that most victims of sexual assault - but especially those with known offenders - will not report the crime or will only report after some delay. To overcome this issue as a challenge to the victim's credibility, the interviewing officer should therefore:

  • Provide the victim with open-ended prompts to elicit her thoughts and actions during and after the rape. These thoughts and actions will often explain why the report was delayed, given the trauma of victimization and the stigma associated with disclosure.

  • Document these thoughts and actions very thoroughly. They will be used to explain to the prosecutor and jurors why the victim's behavior was understandable and reasonable, again given the trauma of rape victimization and the stigma of disclosing.

  • Reassure the victim that delayed reporting is common and understandable given the circumstances of rape victimization.

  • Interview any others with whom the victim has discussed the assault, especially the first person to whom she disclosed. These statements, especially to the "outcry witness" (the first person told of the assault) can be critically important in both documenting the victim's behavior in the aftermath of the assault and explaining her reasons for not reporting immediately.

Astute readers might have noticed that the response to credibility challenge #2 is essentially the same as #1. This is because the general approach for overcoming challenges to victim credibility is to allow her to tell her story in its entirety - with all of the sensory and peripheral details that a traditional police investigation might overlook.

  • Using open-ended questions and cognitive interviewing techniques to be discussed later, interviewers can elicit a wealth of detail from the victim.

  • Thorough documentation and effective report writing can then communicate this reality to prosecutors and jurors.

Only when prosecutors and jurors can be made to understand the victim's experience - in its entirety and from the victim's perspective - can they begin to understand responses that first appear to be unreasonable or suspicious (e.g., not physically resisting or not reporting immediately to police).

  • For credibility challenge #1, the underlying belief of police and society is that victims who do not resist may have actually consented to the sexual activity. By documenting that the victim was paralyzed with fright, or surprised, or confused by the situation, this can help to explain her response in a way that prosecutors and jurors can hopefully understand.

  • For credibility challenge #2, the underlying belief similarly suggests that victims who report a sexual assault after some delay have either fabricated or exaggerated the event. By documenting the reasons why she delayed reporting - perhaps out of fear, or confusion, or a failure to label the trauma as "rape" - this can hopefully make sense to prosecutors and jurors and overcome the underlying (mistaken) beliefs pertaining to victim credibility.

Credibility Challenge #3: Inconsistent or Untrue Statements

There are a number of reasons why victims sometimes make statements to police that are inconsistent or untrue.

Trauma and disorganization

First, because victims are likely to be in the acute phase of rape trauma syndrome when reporting to police - even after a delay of several days - their thinking may be disorganized. Out of trauma and disorientation, victims might make statements that are not true or that contradict earlier statements. This response is understandable given what we know about rape trauma syndrome from the module on victim impact.

Discomfort with sexual details

A second reason why victims might make inconsistent or untrue statements is because they are justifiably uncomfortable in the situation of the police interview. Even when the officer responds competently and compassionately, the situation inevitably adds to the victim's trauma by demanding that they tell a stranger -- one with a uniform and gun - about the details of a very upsetting sexual assault.

To understand this response, officers should imagine being asked to stand up in public and tell about their most recent sexual experience - in very specific detail. Most of us would be too shocked to respond, or if we did respond it would be to tell the person asking "where to go!" Depending on the situation and the amount of pressure, we might respond but omit certain information or tell partial truths just to make the questioning stop.

Officers should try to remember this discomfort each and every time they investigate a sexual assault and interview a victim. It is also important to keep in mind that once a person discloses that they have been the victim of a sexual assault, he or she will tell their story in detail not only to police but also to friends, family members, and professionals responsible for working with victim's issues.

As an example, a typical sexual assault victim might first speak to (1) a friend or family member who encourages her to call the police. If she does contact the police and follow through with the investigation and prosecution, the list of people she has to tell about the assault will grow:

  • The victim then tells (2) a dispatcher who sends a patrol officer to respond.

  • The victim has to tell (3) the patrol officer what happened, and if the officer requests assistance from (4) a supervisor she will likely have to go over her story again.

  • The victim is then transported to a hospital where she has to identify to (5) the clerk or nurse on duty.

  • The victim is again interviewed by either (6) a physician or nurse, and (7) a rape crisis advocate might also be present for support.

  • The preliminary report is sent to investigations, and (8) the detective assigned to the case will contact the victim for a follow-up interview.

  • The detective arranges for an interview with (9) the prosecuting attorney.

  • At this time (10) a victim-witness specialist might also be present.

  • If the suspect is charged, the victim will be required to again tell her story in a courtroom in the presence of a (11) judge, (12) bailiff, (13) court reporter, (14) court clerk, (15) the defendant, (16) defense counsel, jury (17-28) and (29-??) any citizens who might be curious enough to attend a rape trial.

None of this even begins to estimate the number of people who will become aware of the event if it is picked up by the media. It also doesn't take into account the other friends, family members, counselors, and other support people who will inevitably find out about the rape and want an explanation from the victim.

Of course, the number of people with whom the victim discusses her sexual assault will vary dramatically, from those who never tell anyone to those whose cases go to trial. However, for victims who do cooperate with the police investigation and subsequent prosecution, it is easy to understand why inconsistencies often arise given the number of people who must be told the details of the assault.

Fear of doubt or blame

Finally, victims might also make statements that are inconsistent or untrue because they are afraid they will be doubted or blamed for the assault. In order to be believed and taken seriously, victims sometimes make untrue statements to make their experience sound more like "real rape."

As an example, imagine that a young woman meets a man at a club and enjoys dancing and drinking with him. As the club gets noisier during the evening, he asks her to come out to his car so they can talk and get to know each other better. She is flattered by the attention and joins him in the car where he sexually assaults her, using his body weight as a restraint. She is drunk, confused, and frightened, and as a result she does not physically resist during the assault. Later when reporting the crime to police, she says that the man pulled a knife on her in the car.

In these cases, it is important for police to reassure victims that nothing they did could have given permission for someone to sexually assault them.

  • This will hopefully alleviate the victim's concern that her behavior will be used to judge the seriousness of the incident or the validity of her claim.

  • Equally important, police should emphasize to victims that they must tell the truth or their credibility will be later be questioned.

By making the environment safe and nonjudgmental, this will remove the incentive to be untruthful. Police officers should explicitly state that they are not there to judge the victim's behavior but to find out exactly what happened. Open-ended prompts can then be used to elicit the whole story - including those behaviors by the victim that might be seen as unflattering or illegal.

One serious impediment to victim truthfulness is illegal behavior. For example, if the victim has engaged in illegal drug use or underage drinking, she is likely to omit this information or lie about it when asked directly. This reaction makes sense, because victims are likely to fear being doubted, blamed, or even arrested. It is important for officers to reassure victims that they will not be arrested for such behavior, and it is critical that departments have a policy of not arresting in such instances. Just as people who have overdosed on illegal drugs are treated for their medical emergency and not arrested, the priority in sexual assault cases must remain on investigating the crime and treating the victim with compassion. Only in extreme circumstances (e.g., an outstanding felony warrant) should law enforcement personnel consider arresting the victim of a sexual assault, because an arrest irrevocably damages victim trust and recovery, destroys the likelihood of cooperation and successful investigation, and deters future victims from reporting. Even in such extreme circumstances where an arrest is necessary, however, the sexual assault should still be investigated appropriately, following departmental guidelines.

Method of documentation

Finally, a major reason for inconsistencies in the victim's statement is the method of documentation. For example, if the interviewer is using a tape recorder or video camera to record the interview, this must be consistent with the written report. Many of the inconsistencies in victim statements thus arise because the interviewer failed to record the information accurately.

Overcoming this challenge

For all of these reasons, it is understandable and perhaps inevitable that victims will give information that is either inconsistent or untrue. However, any inconsistencies or untruths are likely to destroy the victim's credibility if not handled appropriately by police. In the case of inconsistencies or suspected untruths:

  • It is critically important that officers realize these inconsistencies or untruths are understandable and should not be confused with a "false" allegation.

This is so significant that it bears repeating.

  • It is critically important that officers realize these inconsistencies or untruths are understandable and should not be confused with a "false" allegation.

Rather, officers should address inconsistencies in the victim's statement by exploring the issue gently and nonjudgmentally with the victim.

  • When an inconsistency does arise, the most immediate response should be to point it out to the victim and ask her to clarify it. It is entirely possible that the victim simply made a mistake or the officer misheard or misunderstood what the victim was saying.

  • It is also important to fully explain to victims the impact of inconsistencies on their credibility and the police investigation.

If the inconsistency remains, officers can explain that conflicting information has arisen and ask for the victim's assistance in making sense of it. For example, an officer could say:

  • I need to ask these questions because I have to write a report on this, and I want to get every detail correct.

If the inconsistency seems to result from the victim's attempt to make her assault sound more like "real rape," officers should address her underlying fear of being doubted or blamed. Officers can also:

  • Reassure the victim that her assault was serious and that she did nothing to deserve it.

  • Emphasize the importance of complete truthfulness and create a safe, nonjudgmental environment that encourages honesty even regarding unflattering or illegal behavior.

Victims should be reassured that they will not be arrested for illegal behavior such as underage drinking or drug use - but this promise must only be made if it can be guaranteed to be true. Departments should never arrest sexual assault victims for such behavior given the priority that must be placed on the criminal victimization.

Additional strategies for clarifying inconsistencies

If these more direct strategies do not work in clarifying information with the victim, there are some alternative approaches. For example, the officer can blame someone else for needing to clarify the information. This can help take the heat off the officer and facilitate victim cooperation. For example, the officer could say:

  • I understand why you didn't call for help that night, but I need to know what you are going to say when the defense attorney asks about it in court.

Or, officers can blame themselves. This technique might work best with victims who continuously change their story. For example:

  • I'm sorry, but I'm confused. I thought you said you didn't call for help that night.

How NOT to respond: The polygraph

Although polygraphs are used with sexual assault victims in some areas of the country, we advise that it is NEVER appropriate to use the polygraph with sexual assault victims.

  • For one thing, this will decimate any trust the victim has for law enforcement -- along with any real chance for successful prosecution.

  • Second, using the polygraph communicates to sexual assault victims that their story is somehow suspicious - in a way that is not true for victims of any other crime. Again, this has a deleterious effect on victim rapport and cooperation, but it also negatively affects her recovery by reinforcing harmful societal myths.

  • Third, the polygraph is known to be unreliable when used with individuals who are experiencing crisis. By combining the trauma of sexual assault victimization with the obvious message of doubt communicated with the polygraph, this creates a recipe for disaster. The victim's anxiety in the situation is likely to be misinterpreted by the machine as dissimulation, thereby destroying the victim's credibility and unjustifiably providing evidence for the harmful societal belief that victims routinely fabricate charges of sexual assault.

In conclusion, there are a number of laws that have been enacted in many states to outlaw the use of the polygraph with sexual assault victims, and the evidence is inadmissible in many other jurisdictions. We therefore advocate that the polygraph should never be used with victims of sexual assault - even if the victim requests it. Moreover, because new technologies such as computerized voice stress analysis (CVSA) operate on similar principles, the same advisories apply.

Reducing the number of interviews

The likelihood of inconsistent statements from the victim can also be reduced - and her well-being enhanced - by reducing the number of interviews that are conducted. This will also address some of the concerns arising from the method of documentation by increasing the likelihood of accurate recording.

Once it is determined that a sexual assault has occurred, an officer capable of completing the investigation should be assigned to interview the victim. The specific location of the assault should also be determined as soon as possible to avoid having multiple police agencies involved. Because it takes time to develop rapport and trust with sexual assault victims, officers should never "hand off" a sexual assault investigation in mid-stream.

Law enforcement agencies should have policies in place that provide their officers with the resources needed to complete thorough sexual assault investigations. For example, priority must be placed on sexual assault calls to avoid having officers called away, and victims should not have to deal with multiple officers just because of a shift change.

In addition, some jurisdictions allow for the officer and the physician or nurse to conduct a joint interview (this issue is discussed further in the module on forensic-medical exams).

  • Although this can be intimidating because more people are involved in the interview, there is considerable benefit in reducing the number of interviews, improving the quality of communication, and reducing the likelihood of inconsistent statements.

  • In other jurisdictions, prosecutors make themselves available for follow-up interviews with the police investigator. Again, this can benefit the quality of the investigation and well-being of victims, and reduce the likelihood of inconsistent statements.

Given the advantages of reducing the number of interviews and establishing trust, a number of jurisdictions have implemented a policy of "vertical prosecution" in sexual assault cases. This strategy allows victims to work with the same prosecutor throughout their case processing, and this can be especially valuable in larger jurisdictions where cases are typically initiated by one prosecutor and "handed off" to another.

To tape or not to tape?

As a final issue, agencies should carefully consider the possibility of audiotaping or videotaping interviews with sexual assault victims. This is a controversial issue, and agencies should weigh the advantages and disadvantages before implementing a policy.

  • The primary advantage of taping a victim interview is that it provides a reliable method of documentation and can therefore reduce the number of interviews needed.

  • Taping can also record more details than those summarized in a police report, which benefits the quality of information and reduces the likelihood of inconsistencies.

  • Because taping more accurately records all of the details of an interview, it can have the additional benefit of protecting the interviewer if a complaint or misunderstanding should arise as a result of what was said.

  • Finally, taping can better convey to prosecutors and jurors the immediate response of victims to sexual assault. Police officers and investigators have the unique opportunity to talk with the victim while her emotions are raw. Her words and demeanor -- whether she is angry, withdrawn, in shock, etc. -- can be important in conveying the victim's response and bolstering her credibility.[236]

This last advantage also suggests the importance of preserving the tape of the 911 call that the victim made regarding the assault, if there is one.

Victims often act very different when encountering prosecutors or jurors -- months after the assault and perhaps after the benefit of counseling. Taping can reliably document the immediate response to traumatic victimization.

  • The primary disadvantage of taping is that it can be used against victims, because it is in a form that is unmediated by police investigators. For example, if the victim's demeanor does not fit the stereotype of "real rape," this can be held against her as reason to challenge her credibility.

  • The victim may also make statements in the immediate aftermath of trauma that could be used to challenge her credibility. For example, the victim might omit important information or provide partial truths in order to make her assault sound more like "real rape." Victims sometimes make a statement that they caused or somehow deserved the rape, because they have internalized the societal myths that blame victims rather than perpetrators of rape.

  • In these cases, it rests with police to help prosecutors and jurors understand the victim's behavior and contextualize it within the framework of rape trauma syndrome and societal myths about rape.

If agencies do implement a policy of taping victim interviews, it is critically important to obtain informed consent from victims.

  • The advantages and disadvantages of taping should be summarized for victims, and it should only be conducted with the full knowledge and consent of victims.

  • Sexual assault victims should never be taped without their awareness or permission, as this constitutes a severe betrayal of trust that can negatively affect the investigation. (It may constitute a violation of eavesdropping statutes.)

  • Whenever an interview is to be audiotaped, it is especially helpful to have a victim advocate involved to explain the procedure and ensure that victims are fully informed of the advantages and disadvantages of doing so.

If victim interviews are taped, police must also be especially vigilant in their interviewing techniques and documentation. Victims will ultimately pay the price if their credibility is later questioned. This can happen when police fail to effectively explore inconsistent or untrue statements, when they fail to appropriately contextualize the victim's response and statements, or when they document any information that is inconsistent with the taped interview. Guidelines for conducting such a successful interview follow.

How to Conduct a Successful Victim Interview[237]

The victim interview is perhaps the most important element of a sexual assault investigation, and it is absolutely essential for successful prosecution.

  • When law enforcement first began to receive training on how to conduct victim-sensitive interviews in the 1970's, the recurring theme and underlying message was simple: Police officers should not treat victims like pieces of evidence.

  • This early message helped officers recognize that their actions and communications with victims were important, and that inappropriate treatment could result in additional trauma to the victim.

  • Unfortunately, what may have been lost in that early training message was the fact that the victim is in fact "evidence" - actually, the best evidence if approached with the right interviewing techniques, handled with competence and compassion, and provided with appropriate information and referrals.

Of course, this means that the opposite is also true. Given the importance of the victim as evidence, any mistake made by an officer during the interview can have a disastrous effect on the victim's credibility and cooperation. Unfortunately, it is the victim who pays the price when an investigating officer makes a mistake due to a lack of knowledge, poor interviewing skills, or insufficient documentation.

Barriers to effective interviewing

Given the importance of victim interviewing for successful investigation, it is especially discouraging that police receive so little formal training in how to interview victims and witnesses.[238] As one detective stated to a researcher, "Basically, you just ask them who, what, when, where, and why."[239]

  • As we'll see, this is quite inaccurate - there is a great deal more to interviewing victims of any crime than simply asking them "who, what, when, where, and why."

In addition, some have noted that there are motivational, structural, and other barriers to conducting effective victim interviews.

  • For example, some have suggested that some aspects of the police personality make it difficult to conduct successful interviews with the sexual assault victim. Police officers are typically action oriented people, yet sexual assault cases require patience for a long, detailed, and emotionally difficult interview.[240]

  • An additional barrier is the tough exterior that many officers assume because they are nervous and uncomfortable when responding to sexual assault cases. Police sometimes try to remain detached from cases that involve difficult emotions such as sexual assault, because they are unsure of how to respond effectively to victims.[241]

A third barrier to effective interviewing stems from the typical career path of a police officer from patrol to investigations. Given that officers typically begin their career patrolling the streets they learn about interviewing in the worst imaginable circumstances, in chaos or confusion with a great deal of noise, anxiety, and time pressure. In addition, there is very little incentive for doing a thorough investigation, because they need to file their reports quickly and get back on the streets to prepare for the next call.[242]

As a result of these experiences, patrol officers "learn" how to conduct interviews by directing a number of rapid-fire questions at witnesses to establish basic information.

In contrast, detectives have more time and resources to conduct a more relaxed interview with the victim, designed to elicit a greater level of detail. However, nothing on the streets has prepared them for this situation. In fact, the "rapid-fire" style they may have learned as patrol officers could actually decrease their effectiveness as an investigator if they continue to use the approach with sexual assault victims. For this reason, it is understandable that many police investigators have not yet developed the philosophy and skill required for successful sexual assault interviews. We therefore begin this discussion by outlining the very purpose for these efforts.

Purpose of victim interviews

Detective Scott Keenan of the Chicago Police Department has succinctly yet effectively characterized the difference in purpose between police officers and rape crisis advocates when responding to a sexual assault victim. The job of advocates is to believe the victim's story whereas the job of the investigator is to prove it.

  • Throughout the interview, good investigators will thus carefully examine the victim's story for any aspect that can be corroborated. Even if the detail is not relevant for establishing an element of the offense, anything that the victim states as a fact can be corroborated to establish the validity of the claim and bolster her credibility.

The focus of a good investigator should therefore be on corroborating as many aspects of the victim's story as possible, rather than emphasizing only the problems in a case.

  • Most sexual assault investigations do not provide overwhelming positive medical findings and most suspects do not confess to the rape. This means that all of the skills as an officer or investigator are required to thoroughly investigate the case, corroborate the victim's story, and work at all times to protect and support her credibility as a potential witness.

These themes will be reiterated in the specific guidelines to follow.

Preliminary Interview

Responding to an assault that occurred recently

Although we have discussed how most sexual assault cases are only reported to police after some delay, there will of course be instances where the victim contacts authorities immediately. When responding to these calls it is important to begin by reassuring the victim of her immediate safety.

  • Victims are often confused and upset following a sexual assault, and they may not become aware of the fact that they are safe even after a police officer has arrived on the scene.

  • Officers can reassure the victim of her current safety by stating, "I am here now. You are safe now," or "The police are here now. We have officers in the area now, and you are safe."

The use of the word "now" can be helpful because it brings the victim back to the current reality of the situation by reassuring her that the assault is over and she is safe.

A note for responding officers

Although patrol officers don't always recognize this, the initial contact with the victim of a sexual assault is extremely important to the entire course of the investigation. In those departments where patrol officers conduct only the initial response, there is often a tendency to minimize the importance of this contact by saying that "the detectives can deal with it."

  • However, as one detective remarked, "A patrol officer can bungle that 5-minute interview so badly that it takes me weeks to pick up the pieces with the victim."

  • Even if the preliminary interview only does take 5 minutes, it still needs to be conducted in a compassionate and caring manner or the case may be irreparably damaged by the loss of victim trust and rapport.

Patrol officers are often required to conduct the preliminary investigation of sexual assault both in cases when the report is immediate and when it is delayed. In both cases, the interview must be conducted in a compassionate manner, keeping in mind that delayed reporting is a typical reaction to sexual assault.

Information to obtain

Regardless of whether the call is immediate or delayed, the preliminary interview with the victim should be brief. The responding officer needs to ask enough questions to:

  • Establish that a sexual assault has occurred.

  • Evaluate the need for a forensic-medical examination.

  • Identify the crime scene and any related evidence, witnesses, and the suspect(s).

  • Identify the current location of the suspect(s).

This is not the time to establish the number of counts or to obtain an extremely detailed account of the assault. After collecting enough information to achieve these three goals, the victim should be transported to the hospital for medical attention and a forensic-medical examination, if it is deemed necessary. A rape crisis advocate and/or other support person should be contacted, and the officer should make sure that the victim will have a change of clothes for afterward. Of course, local protocol will dictate when detectives will be contacted if the responding officer will not be handling the ongoing investigation.

Before the Interview

Whether or not the report is delayed, a comprehensive interview should be conducted with all victims of sexual assault. For this interview to be successful, officers must address a number of critically important issues even before they make contact with the victim.

Decide whether to postpone the interview

For victims who report the assault immediately, this interview is typically conducted after they have received medical attention and participated in the forensic examination.

  • However, given the circumstances of the assault and the length of time required to conduct a preliminary investigation and forensic examination, the victim may be exhausted. In this case, the comprehensive interview should be postponed until the following day when the victim has had time to rest.

  • Obviously, the decision of whether to delay a comprehensive interview will depend on whether suspect is still outstanding and whether immediate follow-up is necessary to protect the community from further threat.

With victims who report their assault after some delay the interview is typically conducted immediately. Of course, some accommodations can be made for the convenience of the victim or interviewer, but there is always an advantage in conducting the interview as soon as possible to maximize the likelihood of recovering evidence.

Find out as much as possible about the case

Regardless of when a sexual assault is reported, it is imperative that officers find out as much as possible about the case before making contact with the victim.

  • If the victim reports to police after some delay and does not complete the forensic examination, the investigator is limited in the information that can be collected before conducting the interview.

However, if the victim is transported to the hospital for a forensic examination, the interviewer should consult with anyone who has made contact with the victim in a professional capacity, including police and medical personnel. This allows both professionals to maximize their knowledge of the case and promotes comprehensive evidence collection based on the victim's account of events.

  • Because victims are concerned about their physical well-being, they are sometimes more likely to disclose sensitive information about the assault to nurses or doctors rather than police. For example, victims might report only penile-vaginal penetration to police but inform the nurse that oral copulation or sodomy was also involved in the assault.

  • For this reason, police should meet with medical personnel as soon as possible to exchange information.

  • If a discrepancy is found between the details given to police and medical personnel, these must be clarified (in a gentle and nonjudgmental way) with the victim.

The officer can communicate to the victim that the details of a sexual assault can be very difficult to disclose, but she should also be reminded that it is absolutely necessary to determine potential sites of evidence, appropriate charges, and modus operandi. Ultimately, discrepancies must be clarified in order to determine the truth of what happened and protect the victim's credibility.

Find out about the victim's demeanor

When police are not the first to make contact with the victim, the officer should ask hospital or rape crisis personnel about the victim's general demeanor before conducting the interview. Police must keep in mind that victim response can vary dramatically, as discussed in the module on victim impact, so the information on demeanor should not be used in any way to judge the validity of the claim. However, the officer might approach victims somewhat differently depending on their demeanor, so the information may be helpful to obtain before making contact.

  • For example, if the victim is responding in a very expressive style (e.g., anxiety, grief, anger) the officer will need to deescalate the situation before proceeding with the interview. This can be done by providing calm reassurance, information, and assuring that adequate support is available.

  • If the victim's traumatic state is such that a successful interview is impossible, then preliminary information should be collected and the interview postponed.

If the victim expresses directly at the police, officers must recognize that this anger is misdirected and not take it personally. In these situations, the officer may represent a "safe person" for the victim to be angry with, after an assault during which she could not express the anger she felt. If the officer can be patient and compassionate while withstanding the abuse, it is still possible to be successful in establishing the rapport and trust needed for a successful investigation.

Officers should also find out whether the victim contacted police or whether this was done by someone else, such as a well-meaning friend or family member.

  • This information should not be used in any way to assess the validity of the claim, but it might indicate a different motivation of the victim and orientation toward cooperating with police.

  • It will also indicate an additional person to interview, as the person to whom the victim first disclosed is important as an "outcry witness."

In some cases, police are dispatched to evaluate a sexual assault that was reported to police by a mandated reporter, such as child protective services or medical personnel. It is very important to understand that this type of victim will often present differently from someone who consciously made the decision to call police.

Anticipate a defense strategy

It is never too early to begin anticipating a defense strategy and conduct an investigation that will effectively undermine the defense claims.

  • For example, if the assailant was a stranger to the victim, the defense strategy is likely to center on identification. This means that the interview and subsequent investigation should focus on establishing the identity of the suspect and protecting the victim's credibility as an eyewitness.

  • If the case involves nonstrangers, however, the focus of a defense strategy and police investigation should be on the issues of consent. Identification evidence should still be collected, in case the suspect tries to claim that the police have "got the wrong guy." However, the much more likely defense of consent will require police investigation to document the lack of consent present in the assault.

Clearly, it is critically important that the officer understand what type of offense has been committed because this will influence every aspect of the investigation. By recognizing the type of offense, officers can tailor their interview with the victim to document the elements and begin accumulating evidence to counter a likely defense strategy. (See the module on law and investigative strategy for further discussion.)

A Note on Interviewer Gender

Because of the nature of sexual assault, some law enforcement agencies prefer to assign female officers to these cases. Although this might be possible for agencies with enough female officers to accommodate the policy, it is nonetheless important for all police officers to receive appropriate training in how to respond effectively. For one thing, a female officer is not always going to be available to take the call. In addition, it is clear that effectiveness and compassion are more important than gender in determining success.[243] However, there are a number of issues that merit consideration.

  • First, as the vast majority of sexual assaults are committed by men, it is possible that the presence of a male officer - especially one that is uniformed and armed - can be upsetting for some victims.

  • On the other hand, some victims feel safer and calmer in the presence of a male officer. Given that the suspect was likely a man, it can be important for the recovery of some victims to have positive contact with a man in the aftermath of the assault.

The bottom line is that both male and female officers can conduct effective sexual assault investigations, as long as they are aware of the issues unique to their gender and follow guidelines for successful interviewing as outlined in this module.

For male officers

For male officers, it can be difficult to identify with the victim of a sexual assault, because women's reality and behavior often differ from men's.

  • For example, it can be particularly challenging for men to make sense of victim behavior such as not resisting or reporting immediately.

  • Male officers may also find it difficult to relate to the victim's behavior, because women and men have very different scripts for socially acceptable behavior in sexual situations.

  • Finally, male officers may be more likely than female officers to believe that women routinely fabricate charges of sexual assault. Some male officers (especially those who are younger) may even fear being falsely accused of rape, or at least identify with the threatening possibility.

For all of these reasons, male officers face unique challenges when responding to sexual assault cases involving female victims. However, successful investigation requires that interviewing officers take the perspective of the victim when seeking to understand the situation and her response.

Some have suggested that male victims often prefer working with female rather than male officers, perhaps because they do not feel that they have to "prove" their masculinity with women as much as they do with other men. This is another issue that male officers must address, both in establishing the comfort level to work with male victims and in communicating the compassion and respect necessary to overcome any concerns in this regard.

For female officers

Female officers often share with their male counterparts a difficulty in understanding the behavior of sexual assault victims.

  • Female officers also have a unique challenge based on their gender, given their heightened motivation to distance themselves from the threat of sexual victimization. Because women face a daily threat of sexual violence not experienced by men, women have an interest in protecting their own sense of safety that men do not share.

  • As a result, women sometimes focus on reasons to blame the victim for the rape because doing so distances them from the possibility of similar victimization. In other words, if women can convince themselves this victim somehow brought on her rape by something she said or did, they can convince themselves that avoiding such behavior will guarantee that they will never be similarly assaulted.

  • Another potential barrier for female officers exists for those who have personally experienced sexual assault victimization. By comparing other experiences with their own, female officers who have been sexually assaulted may sometimes perceive that a case does not represent a "real rape" like their own.

Female officers must be aware of this inherent motivation to distance themselves from sexual assault victimization and ensure that they communicate effectively and empathetically with victims.

What to do about interviewer gender

Because it is unlikely - and perhaps inadvisable - that departments would implement a policy of assigning female officers to investigate all sexual assault cases, all officers must be trained to effectively handle sexual assault investigation. However, we caution that male and female officers must be aware of their unique challenges and benefits based solely on their gender.

  • As a matter of policy, any victim who requests a female officer should be accommodated whenever possible. Given the sensitivity of the issues and the importance of regaining control, it is significant that the victim made this request and successful investigation would be greatly enhanced by accommodating it.

  • However, victims who do not spontaneously request a female officer should not be explicitly presented with that option. By having a male officer ask victims if they would prefer a female officer, this can be perceived as a rejection or desire to avoid handling the case. (In fact, this question is sometimes used by male officers as an effective way of avoiding these cases.)

Male and female officers should both be trained and equipped to conduct a successful sexual assault investigation, based on the guidelines in this manual and their basic human compassion.

Beginning the Interview

Once all of these issues have been satisfactorily addressed and the officer knows as much as possible about the victim and case presented, it is time to focus on efforts to begin the interview. This process begins by selecting an appropriate location and environment, determining who will be present, and initiating the interview itself.

Select an appropriate location

Officers should conduct the interview in a location where the victim will feel safe and comfortable.

  • The location must be quiet, private, and free from distractions.

  • It is best to try to avoid interviewing the victim in the hospital examining room.

  • If the victim is interviewed in a hospital or other medical facility, ensure that the suspect is not in the same area at the same time.

  • Officers should strive to provide the victim with small comforts such as a beverage or tissues whenever possible. However, they must also be aware that offering a beverage prior to a forensic-medical examination may destroy evidence.

Interviewers should always ensure that the environment not only feels safe for victims - but that it actually is safe. There are certainly examples of suspects showing up at the hospital while a victim is being treated, and this is especially likely if he is a boyfriend or husband.

Determine who will be present

After selecting the appropriate location, officers should talk with the victim privately to determine who should be included or excluded from the interview.

  • Sometimes having a support person in the room can help a victim provide better information during a police interview.

  • In other cases, the inclusion of a friend or family member will hinder the interview if the victim feels unable to disclose certain details about the assault.

  • In general, anyone who could potentially serve as a witness in the case should not be allowed to be present during the interview. This situation compromises the credibility of the witness' testimony.

Whenever possible, the decision regarding who will be present during a police interview should be left to the victim. If the victim privately requests that she would like a support person present, this request should accommodated whenever possible. Usually the benefit in victim cooperation is well worth the presence of a support person - as long as they remain nondisruptive.

  • However, support people should be excluded from the interview if they are likely to become disruptive. For example, friends or family members sometimes want to tell the investigator what happened, rather than having the victim do so.[244]

  • Support people should also be excluded from an interview if they appear to develop antagonistic feelings toward the officer. This can happen because support people know how difficult it is for the victim to relay painful details of the assault, and they can begin to think of the detective as the enemy for exacerbating the victim's trauma.[245] This reaction is understandable on the part of support people, but should be gently explained as unhelpful for the victim's cooperation in the police investigation.

In these cases, when someone is to be excluded from the interview it is important for the officer to assume responsibility for the decision by asking the person to leave and explaining how this benefits the victim and the investigation.

Additionally, victims may request the presence of a victim advocate during the interview.

  • If a victim advocate is to be included, she may need to sign a written waiver of confidentiality. It is imperative that officers be aware of state and local procedures governing advocate presence during police interviews and the confidentiality of information.

Otherwise the advocate and/or other support people will remain on site and can be advised to remain available for the victim after the conclusion of the interview.

Acknowledge the victim's ordeal

It is best for officers to begin the interview by introducing themselves and acknowledging the ordeal that the victim has endured. Although officers need to remain unbiased in their presentation, they can also relay sympathy by stating: "I'm sorry that this happened to you."

  • By acknowledging the victim's trauma in this way, the officer establishes sympathy and creates an open and nonjudgmental demeanor. As a result, it is likely that the victim will provide better information to enhance the investigation.

This is also an appropriate time to address any self-blame exhibited by the victim. Officers can stress that the incident was serious and that the victim did nothing to deserve the assault.[246]

Allow the victim to vent emotions

When victims express emotions in an interview, it is appropriate to use "psychological first aid" that allows them to vent that emotion while the officer validates that these emotions are both normal and appropriate.[247] As retired NYPD detective Harry O'Reilly describes,

The victim should be allowed to ventilate her feelings, these have got to come out, and she needs a caring environment in which to express them. Let her ventilate her anger, and whatever you do, don't interrupt it by saying she's going too fast for you to get it all down in your notebook. Let her purge herself, there is a need for her to bring herself back to reality by getting some of this stuff off her chest. Let her talk and then later start taking notes.[248]

Using a calm, reassuring voice, the officer can thus apply psychological first aid and communicate empathy by opening the interview with "you" statements and questions. Examples of this include:

  • How are you feeling?

  • I'm sorry this happened to you.

  • May I call you by your first name, or do you prefer that I use your last name?

  • Where would you like to do this interview?

  • Do you have any questions?

Asking these types of question first and focusing on the victim's well-being may help her to relax and may aid in enabling the investigator to build a rapport with the victim. However, once the officer moves into the content of the interview it is best to avoid questions like this that are unrelated to the investigation. When these unrelated questions are asked during the actual interview it can appear to the victim that the officer is side-tracked or distracted and not taking the case seriously.

Communicate empathy

Empathy is crucial to communicate during a sexual assault interview, because it establishes rapport with the victim, facilitates cooperation, and ultimately creates an environment that will yield the most information for a police investigation.[249] Empathy communicated from an officer in the aftermath of sexual assault can even be a powerful force in assisting the victim's recovery.

  • Perhaps the single most important thing an officer can do to communicate empathy is to simply ask the victim how she is doing and REALLY LISTEN to the answer.[250]

  • Officers should NOT say to the victim, "I know how you feel," in an effort to communicate empathy.[251] This is likely to make victims angry or withdraw, thinking that the officer cannot possibly have any idea how they feel. Even if the officer has personally experienced sexual assault victimization, it is better to communicate empathy by taking the victim's response seriously and responding with compassion.

Other things NOT TO SAY to the victim to communicate empathy include:

  • Everything is going to be all right.

  • Don't cry.

  • You shouldn't feel that way.

  • You must get on with your life.

  • Time heals all wounds.

  • It could have been worse.

  • At least you're not injured.

Even though these sentiments might be well intentioned, they are not helpful for victims and can interfere with rapport. In general, empathy is communicated not only in what is said but how the officer acts toward the victim. If the officer acts in a way that is compassionate and professional, this communicates that the officer takes the crime seriously and cares about its impact on the victim. Again, Detective Harry O'Reilly describes:

Let's say I've got this kid lying in the street. He was knocked off his bicycle and got a compound fracture with a bone sticking out of his leg. I'm going to pick up that kid and hold him close and maybe pat his face or even give him a little peck on the cheek. I might even cry a bit and not be ashamed, because it's OK to be tender here. When I'm making a death notification to a mother that her daughter has been killed in a car accident, I know intuitively that it's right to be soft and gentle with this woman. When I get someone who has been physically injured, they're bleeding all over the place and scared out of their wits, I know to be gentle and reassuring and speak quietly and softly. Now I must learn to include the rape victim, who may not have visible scars, but who has some horrible slashes all over her psyche. The first step towards helping this woman is to open up and be understanding, gentle, reassuring to her, just as I have been able to with these other people.[252]

Build rapport

By acknowledging the victim's ordeal and communicating empathy, the officer will have gone a long way toward building rapport.

  • Although some have traditionally suggested that rapport be established by seeking some area of commonality between officer and victim,[253] others caution that this can offend adult victims by focusing on trivialities.

Another way to build rapport that has already been mentioned throughout this module is explaining the purpose of the interview and other police procedures to victims. By providing information to the victim, this approach can build rapport and establish the victim's role as a team member in the sexual assault investigation.

Pose simple choices to help the victim regain control

It is important to remember that all crime victims experience some loss of control over the environment. In the case of sexual assault, however, this sense of powerlessness is acute and one of the hallmark characteristics that leads to post traumatic stress disorder.

  • To help the victim regain some sense of control over her environment, the officer should pose simple choices for how the interview will proceed.

  • For example, officers can ask the victim where she would like to sit, and whether she would like to have an advocate or other support person present.

  • Officers can also ask whether they can make a call for the victim or contact a friend to bring clothes if the victim is responding immediately to the hospital.

Such questions -- and the opportunities they represent for regaining control - are important for victims in the aftermath of sexual assault victimization. They also help to facilitate the rapport that is critical to the success of police interviews with sexual assault victims.

Explain the purpose of the police interview

Officers can help the victim regain control by posing simple questions, but the primary means for assisting victim recovery is by making the victim an active partner in the process of the police investigation. One way of doing this is by providing the victim with information at every stage of the process. At the beginning of the interview, officers can thus provide victims with information by explaining the purpose of the interview and their role in it.

The purpose of the interview is to collect information for police to determine exactly what happened. However, victims are often concerned at this point that providing a statement to police means that the offender will be arrested and put in prison.

  • It is therefore helpful to explain that the purpose of the interview is to collect information, and that decisions about prosecution will be made later. The victim can decide later whether or not to follow through with investigation and prosecution.

  • During the initial stages of an investigation, it is important to collect as much information as possible, thereby leaving the door open to pursue whatever course of action the victim chooses - including cooperating with criminal prosecution.

At the beginning of the interview, victims should also be told that they can feel free to stop the interview at any time to take a break or ask a question.

  • Because the purpose of the interview is to get all the facts of what happened, victims should be encouraged to interrupt at any time to ask about a particular question, include a fact, or correct a mistake.

Some officers find it helpful to keep the victim informed with "we" statements. For example:

  • We are going to talk about the incident

  • We need to review this information together.

Use of the word "we" provides the victim a sense that this is a team effort, that she has a vital role to play in the police investigation, and that she has a sense of control.

When requesting the assistance of the victim, however, it is best to use "I" statements and questions. For example:

  • I am going to write this report, and then I would like for you to review it for accuracy.

  • I am going to talk with your friend who saw the two of you leave the bar together.

  • I have talked to many victims who have the same concerns that you do.

By focusing on the investigator's experience and role, this can help the victim to know that her complaint is being take seriously and handled professionally.

Address questions the victim can't answer

In the course of any police interview, the victim will likely be asked some question that he or she cannot answer. Sexual assault victims can react uniquely to this situation, however, because they are concerned that the officer might doubt or blame them.

  • To address this issue, officers should inform the victim at the beginning of the interview that they may ask some questions that she doesn't know how to answer. Victims should be explicitly told that it is appropriate for them to say, "I don't know," or "I don't remember."

  • Victims should be cautioned against guessing. Officers can reassure the victim that she might not know the answers to all of the questions, but remind her that the purpose of the police interview is to obtain as much accurate information as possible.

During the course of the interview, officers should strive to avoid asking several questions in a row that the victim doesn't know how to answer. If she doesn't know the answer to two consecutive questions, officers should ask a third question that she will know how to answer.

Address concerns regarding prosecution

If the victim is unwilling to follow through with prosecution or unsure about whether she wants to, the officer should respond by explaining the importance of making a report and the need to respond quickly to collect the appropriate evidence.

  • Officers should never tell the victim that she should follow through with prosecution in order to prevent future similar assaults, because this puts an inappropriate burden upon the victim for the assailant's behavior.

  • In general, victims should not be pressured into cooperating with the police investigation and prosecution. Although officers can and should do everything to make the process as sensitive and competent as possible, successful prosecution may not be in the best interest of all victims.

Ultimately, the decision regarding whether or not to cooperate with investigation and prosecution is the victim's and the reasons for this decision must be respected. As Mills (1989) wrote in the Police Chief:

The victim, of course, is the main concern and the investigator should not try to cajole her into pursuing legal action against the identified offender. Arrest and prosecution are major goals during rape investigation, but pursuing these goals should not take precedence over the psychological welfare of victims.[254]

If the victim refuses to give a statement

If the victim refuses to give a statement, she should be advised of the right to file a complaint at a later time and the procedure for doing so. The officer should explain, however, that critical evidence will be lost with the passage of time and may not be available at a later date. The victim should then be given information to contact the police department and referred for medical treatment and rape crisis services.

While it is important for police to respond to sexual assault victims in a way that is sensitive and competent, there is no guarantee that victims will appreciate the effort or that it will meaningfully contribute to their healing. This can be difficult, of course, but officers need to accept the fact that despite all of their good intentions and efforts, deciding not to pursue prosecution might be in the best interest of some victims.

First Stage: The Victim's Narrative

In the first stage of the interview, the officer should begin by asking the victim to describe what happened in her own words and at her own pace. Some of the most common errors that police make when interviewing victims and other witnesses are that they interrupt too often and ask too many questions.[255] Not only do these errors disconcert the victim, thereby disrupting rapport, but they can also decrease the amount and accuracy of information obtained during the interview.

In a research study conducted by Fischer (1995), detectives were aware that constantly interrupting a victim or witness was a common interviewing mistake but denied that they personally did so. Only after listening to an audiotape of their own interviewing technique did these detectives realize how often they did interrupt victims and witnesses and become motivated to correct the error.

Use open-ended prompts

It is therefore important that the first stage of the interview begin with open-ended prompts and sufficient time for the victim to tell her story in her own words and at her own pace. The officer should avoid interrupting and ask questions only to clarify details or to prompt further narrative. During this first stage, the officer should ask open-ended questions such as:

  • And then what happened?

  • Tell me more about that.

The officer should listen carefully to the victim's response and take accurate notes for inclusion in the report.

The officer should also be prepared for long pauses by the victim, as she collects her thoughts and regains composure to continue her narrative.[256] Although it is difficult for officers, it is important to allow the victims these silent pauses and not leap in with a question. Victims should be allowed to complete their narratives before moving into the second stage of the interview where follow-up questions are appropriate.

Allow the victim control

Because it is the victim rather than the officer who has information about the sexual assault being investigated, the victim should be the one with primary control during the interview - especially during this first stage.

  • Unfortunately, the reverse is typically true, as the officer assumes control of the process and the victim waits passively for the next question.

  • Instead, officers should induce the victim to take a more active role in the interview "by explicitly requesting them to do so, asking open-ended questions, permitting them to engage in tangential narration, and not interrupting their narrative answers."[257]

Most errors in witness recall are due to external influence rather than failure to accurately remember events. In a police interview, this means that the vast majority of details produced by a victim or witness will be accurate unless the officer disrupts this process by encouraging the victim to guess or asking leading questions.[258] Officers can avoid this temptation by allowing the victim control over the initial stage of the interview, and providing her the opportunity to recount events in her own words and at her own pace.

Avoid leading questions

People in crisis are especially susceptible to the influence of others, so it is important that police avoid leading questions in their interview with sexual assault victims.[259] For example, officers should NOT ask victims questions like:

  • Did he use physical force to restrain you?

  • Was he bigger than you?

  • Did you resist?

Questions like this imply to victims what the answer is - or should be. The single best way to avoid leading questions is to use open-ended prompts of the type that have already been described. Better options to elicit this type of information would include:

  • What did he do?

  • How tall was he? How much did he weigh?

  • What did you do or say?

Throughout the Interview

Explain the questions asked

One of the most consistent complaints that sexual assault victims have about police is that they were not provided enough information about the process of the investigation. It is critically important that victims feel like "partners" in the process of police investigation, and one of the best ways of doing this is by keeping them informed.

  • This issue has been raised previously and will be reiterated throughout the module. Thus, victims should be informed at the beginning of the interview regarding its purpose and their role in it.

  • Throughout the interview, however, officers should explain some of the questions that are asked, especially those dealing with sensitive information such as sexual acts or high risk activity on the part of the victim.

When asking the victim about specific details regarding the sexual acts involved in the assault, it is sometimes helpful for police to explain the law because it illustrates why the information is necessary.[260]

  • For example, if the officer needs to establish whether penetration or contact occurred between the suspect's penis and victim's vagina, this question can be preceded with an explanation of how the law treats these instances differently.

  • Another example is when separate counts of sexual assault can be charged every time the offender removes and reinserts his penis into the victim's vagina. Officers can explain this fact before asking whether the suspect penetrated the victim more than once.[261]

Another area where this principle can be helpful is when the officer needs to ask about high risk behavior - such as drug use or hitchhiking -- on the part of the victim. When the officer asks about such behaviors this can be seen by the victim as evidence that the officer doubts or blames her for what happened.

  • It is therefore helpful for officers to explain the need for such information and to reassure the victim that the questions are not asked out of doubt or blame (nor will the victim be prosecuted for any illegal conduct).

  • Rather, the role of law enforcement is to collect all of the facts of what happened and to corroborate the victim's story. The officer can perhaps explain what the defense will likely say about any high risk behavior on the part of the victim, and emphasize how important it is to have the behavior explained from the victim's perspective.

This is also a helpful time for officers to reassure the victim that they did not deserve the assault, because they are likely blaming themselves and looking to the officer for signs that they are also seen as culpable by the police. As Latts and Geiselman (1991) summarize:

The detective will explain to the victim that whether she was drunk, a prostitute, or on drugs, it does not matter. It does not negate the fact that she was raped. The responsibility for the rape lies with the rapist, the person who used force. Hence whatever the victim was doing before or during the crime does not matter as long as the investigator knows about it.[262]

Finally, officers may sometimes want to explain to victims that the truth will eventually come out - especially if the victim was engaging in any high risk or illegal behavior - and that it is important for this to come out immediately from the victim rather than someone else.

  • It can be very damaging to the victim's credibility for information regarding high risk or illegal behavior to come out later during the investigation, so it is in the victim's interest to provide this information up front.

  • In many cases, the information can even be used to strengthen rather than diminish the victim's credibility. For example, if the victim was using drugs, this can go a long way toward explaining her vulnerability to the sexual assault.

For the victim to be completely honest, the officer needs to create an environment that is safe and comfortable for disclosing even unflattering or illegal behavior.

Avoid and explain repeated questions

Officers should also explain to victims that they will sometimes ask questions in several different ways and that this does not mean that they do not believe the victim or that they doubt her response.

  • By reminding the victim that the officer's job is to make sure that all of the information is being recorded correctly and completely, this should explain why the officer sometimes needs to repeat a question.

  • However, officers must keep in mind that repeating a question often implies to victims that their previous answer was somehow unsatisfactory. As a result, questions should only be repeated when absolutely necessary, and they should be accompanied by an explanation of why they are being repeated to avoid encouraging the victim to guess or change a response.

The underlying theme is that police must keep victims informed of what is happening during the police investigation and why. When officers ask victims about sensitive topics, they need to explain to victims why this information is needed and how it is helpful in interpreting physical evidence from the assault.

  • Police must always remember that victims are carefully watching them for signs that they are being doubted or blamed, and any question or procedure that might play into this suspicion needs to be carefully explained to victims to reassure them and ensure their continued cooperation.

  • This is another reason why victim advocates can be helpful to the police investigation, because they can explain police procedures and the reason for particular questions.

Maintain eye contact

Police officers should always look directly at the person they are interviewing, even if that individual is unable to return the eye contact. This is also true for sexual assault victims and communicates that the officer is comfortable with the victim and the information she is relaying. Of course, officers should avoid staring, peering, or glaring, but try through open and comfortable eye contact to communicate that they are "there" in a strong yet relatively stable manner.

An exception might be made for those victims who come from a cultural background that teaches avoidance of direct eye contact. (See the module on special populations for further discussion of cultural issues affecting the approach to sexual assault investigation.)

Use effective body language

Citizens are always influenced by the appearance and demeanor of police officers, but for sexual assault victims this can be especially pronounced. It is easy to imagine how the appearance of an officer in uniform, with full leather gear and weaponry, can be intimidating - but especially so with victims who are experiencing trauma.

Fortunately, there are a variety of techniques officers can use to create a comfortable environment to encourage victim cooperation. These techniques include:

  • Sitting down with the victim, rather than standing over her. Officers should sit in a relaxed manner, turned toward the victim.

  • Whenever possible, officers should interview victims in plain clothes as the full uniform can be intimidating. Of course, this is generally only feasible for detectives and not preliminary responding officers.

  • If possible, the victim should be allowed to sit in a position that is physically higher than the officer's. Steps provide a perfect opportunity for this technique, but it can also be accomplished by having the officer sit in a chair while the victim is sitting on the hospital examining table, etc.

If sitting down is inappropriate in the situation, the police officer should stand close enough to the victim to express concern yet remain far back enough to avoid being threatening. In general, when standing near the victim, the officer is best advised to retain an informal demeanor to make the victim feel as comfortable as possible.

  • Attention and interest should be expressed through the officer's body language, by nodding or otherwise indicating that he/she is following what the victim is saying. However, it is best to avoid feedback that might be interpreted as being evaluative (e.g., "good," or "right").

  • Officers should use smooth movements and speech style, thereby expressing patience, friendliness, and support. Officers must take care to ensure that their voice remains calm and reassuring throughout the interview.

Avoid touching the victim

In general, we recommend against physically touching the victim - even though this is sometimes difficult for officers who respond empathetically. We believe that the risk for violating the victim's personal space outweighs the potential benefit of physical touch by the officer.[263]

  • This is yet another reason for officers to ensure that the victim has access to rape crisis advocates or other support people - comforting the victim with physical touch is a role that is more appropriate for these support people than the officer.

  • The officer could consider placing their hand on the table or otherwise near the victim, to give the victim the option of initiating physical touch.

If the officer does decide to touch the victim in order to provide comfort, it is best to check with the victim before doing so. Although this may seem awkward, it is worth asking because it allows the victim important control over her physical body and personal space. Victims will often visibly respond to the gesture and the respect it communicates.[264]

Monitor the victim's body language

As for the victim's body language, officers can watch this as an additional source of information about the victim's level of comfort during the interview.

  • When the victim communicates with her body language that she is uncomfortable or upset, it may be an appropriate time to ask if she would like to take a break.

  • The officer can allow the victim to skip certain questions if they become too difficult, and return to them later when the victim appears to be more comfortable.

This is also a good time to reassure the victim how important her cooperation is and how vital her role is in the police investigation.

Using sexual language

As with body language, it is crucial that the officer use verbal expression that communicates effectively with the sexual assault victim. This can be especially challenging when it comes to using sexual language.

  • One suggestion is to avoid using police terminology with the victim. Clearly, very few sexual assault victims will use terms like "digital penetration" or "oral copulation." These terms should only be used in the police report and have no place in the victim interview.

  • When talking with the victim, it is best to begin using medical terminology (e.g., penis, vagina, anus).

  • However, if the victim uses other terms these should be mimicked by the officer - they will be the words and phrases with which the victim is most familiar and comfortable. In other words, if the victim uses the term "pussy" instead of vagina, the officer should follow her lead.

  • When establishing the words and phrases to use when describing sexual acts, these terms can be used in open-ended prompts to encourage the victim to continue in her response. For example: "So he stuck his finger in your vagina. What happened next?"

  • When a victim does use a word or phrase to describe an act, the exact language should be preserved in the police report. Officers should not sanitize the victim's statement, or replace it with police terminology. In this example, if the victim states, "he made me give him head," the report should document these exact words.

  • When a victim does use a word or phrase to describe a particular act, officers must also clarify what she means by it. For example, if the victim states that "he made me give him head," this exact wording should be recorded, as previously described. However, the officer should also ask the victim if this means that the suspect forced her to put her mouth on his penis. The report should then document that the officer asked questions to clarify the specific act(s) described.

Although it may be difficult, officers must not appear shocked or embarrassed by the language a victim uses to describe a particular act. This will immediately convey to victims that the officer is uncomfortable and make the situation even more difficult.

  • If the victim appears to be uncomfortable with sexual language and details, it is sometimes helpful for officers to reassure the victim that they have heard these things before and to reiterate the importance of getting all the information about the assault.

  • Officers must make equally sure that they are comfortable using graphic sexual language. This may require practice, if necessary. It may seem silly, but an officer's discomfort with sexual language will clearly communicate to the victim and make her less comfortable and less willing to cooperate with the police investigation.

Engage in active listening

Officers should demonstrate active listening at all times. This is especially important at the beginning of the interview when victims should be given the opportunity to tell their account of events in their own words and at their own pace.

  • By allowing victims to take the lead in telling their story and not interrupting them while they do so, officers increase the amount of information obtained to assist in their investigation.[265]

  • If the victim pauses in her narrative, officers should remain silent or provide an encouraging prompt for her to continue - rather than asking a question that may sidetrack or discourage the victim from telling her story in its entirety.

Silence often allows the victim a moment to collect her thoughts, which is especially important for anyone experiencing trauma. As Olsen and Wells describe in the Police Chief, investigators should allow the victim to focus on one topic "until the mental picture becomes clear and the retrieved information complete."[266]

Use reflective comments

Officers should use reflective comments to encourage continued disclosures by the victim. Officers should reflect back to the victim some of what she said, in summary form. This reflecting will encourage the victim to keep talking, as long as it is conveyed in a tone that clearly expects continued narrative rather than a closed-ended response. For example:

Victim: "So I had met him at a few parties, but I didn't really know his name."

Officer: "He was someone you knew casually?"

Victim: "Yeah, he must have been friends with some of my friends because we would see each other at all of the same parties even though we never really met, you know, officially."

In this example, the officer has reflected back to the victim the essence of what she said, in order to focus attention and encourage her to elaborate upon the point.

Clarify and summarize

To make sure the officer is following the victim's story, clarifications and occasional summaries can be used during pauses in the victim's narrative.

  • Officers should clarify and summarize what they have heard from a victim after she has finished telling a segment of her story. Officers should not interrupt the victim to clarify points, but when the victim pauses after completing a segment of her narrative the officer can use this opportunity to clarify a particular issue or summarize the events and facts in that segment. To do this successfully, officers must make notes of their questions while listening.

  • After summarizing the victim's account, the officer should ask a question to invite clarification or elaboration by the victim. For example the officer's summary of events could be followed with a question like, "Do I have that part right?" or "Is that the way it happened?" This process ensures that the officer understands the victim's account and allows victims the opportunity to make sure that they are communicating clearly.

However, detailed follow-up questions should not be used until the next stage of the interview, after victims have completed telling their story in their own words.

Taking breaks

If a rape crisis advocate or other support person is present during the interview, they can help the officer monitor the victim's demeanor to determine when it might be helpful to take a break.

  • In most instances, however, the actual decision to take a break should be left to the victim. If the officer suspects that a break might be useful, it is appropriate to ask the victim if she would like to take a break.

Victims might want to take a break after particularly difficult sections of the interview, for example, after describing the details of the sexual acts involved in the assault. Breaks are often useful for the victim to regain her composure and prepare for the remaining questions. They can also be used to facilitate rapport between the officer and victim.

Second Stage: Follow-Up Questions

After allowing the victim to tell her story in her own words and without interruptions during the first stage of the interview, it is then appropriate to move into the second stage where the officer uses follow up questions to elicit additional information.

Continue using open-ended prompts and avoid interrupting

It is still important, however, for officers to use open-ended questions and prompts and to allow the victim to answer fully before asking the next question. Officers should also continue to avoid interrupting and never follow one question with another before providing enough time for the victim to respond.[267]

In the same study of police interviewing that was previously mentioned, it was reported that the typical interview contained only 3 open-ended questions and 26 short, closed-ended questions. "Furthermore, these direct questions were asked in a staccato, rapid-fire style" with less than one second of pause between the witness' response and the next question.[268]

  • For example, detectives were found to interrupt the response to an open-ended question after only 7.5 seconds; this was an average of four interruptions per response.

  • Furthermore, "in none of the interviews was the witness permitted to complete his or her narration without being interrupted."[269]

To improve their interviewing style, officers should imagine being interrupted every 7.5 seconds and never allowed to complete a response. Next, interviewers should imagine how especially troubling this must be for someone reporting something as difficult as a sexual assault.

Victims must be allowed to describe what happened in their own words and at their own pace -- avoiding any break in the narrative until they have finished. Rather than interrupting during this narrative, officers should focus their attention on documenting everything the victim says. Then when the victim has finished describing what happened, the officer can go back to clarify and elicit additional details with open-ended follow-up questions.

Avoid inappropriate sequencing

In the same study on police interviewing described previously, another almost universal error was the inappropriate sequencing of questions.

  • First, officers typically asked questions in the order in which they appear on the form for reporting criminal offenses. Obviously, this may not represent the order in which information is stored in the victim's memory -- or the order in which events happened.

  • Second, interviewers usually asked questions in a "lagging order," addressing something indicated in a previous response rather than the current one. This likely happens either because officers lag behind in taking notes or because they want the victim to elaborate on a previous point. However, these questions too frequently "appeared in the middle of the witness's description of another component of the crime, so that the follow-up question interrupted the witness's train of thought and cut short any possible elaboration on the current topic."[270]

To correct these errors, follow-up questions should be asked in a way that reflects the victim's memory of events.[271]

  • For example, questions about the suspect should be asked together rather than interspersed throughout the interview.

  • If the victim skips over sexual details in her initial account of events, the officer should not delve into these issues immediately but rather follow up with more specific questions later.

In other words, "interviewers may therefore have to defer questions they are currently thinking about to another time, when they are more appropriate for the witness."[272]

This doesn't come naturally to officers - and it takes extra mental effort - but the payoff can be great in victim comfort and rapport as well as the amount and accuracy of information obtained.

Cognitive Interviewing Techniques

As many officers are already aware, the cognitive interview technique was developed by Geiselman and Fisher. It consists of four general methods for jogging memory - along with a host of additional specific techniques. These techniques are summarized below, based on a publication by the National Institute of Justice,[273] and they should be used in the first stage of the interview, when victims are relaying their account of events in their own words.

Technique #1: Reconstruct the circumstances

During the cognitive interview, victims are first asked to reconstruct the circumstances of the assault, the environment, location of furniture, lighting, people or objects, etc. They are also asked to reconstruct how they felt at the time of the assault and describe their reactions. This kind of reconstruction has been shown to be very powerful in assisting memory.[274] Suggested wording for this is as follows:

Try to reconstruct in your mind the context that surrounded the incident. Think about what the surrounding environment looked like at the scene, such as rooms, the lighting, the weather, any smells, any nearby people or objects. Also think about how you were feeling at the time and think about your reactions to the incident. Mentally, put yourself back there at the time this happened.[275]

Technique #2: Be complete

In a traditional police interview, investigators often interrupt victims and allow only brief responses to closed-ended questions. By doing so, officers convey to victims that they should provide only minimal information during the interview.

  • This is, of course, exactly the opposite of the goal to obtain as much information as possible.

In addition, this interviewing style communicates to victims that they should edit themselves and provide only that information that they believe is relevant for the police investigation.

  • Unfortunately, victims are not necessarily very good at knowing what will be helpful for the police investigation. Clearly, it should be the police investigator's role to edit the information and decide what is significant rather than the victim's.

For the purposes of the interview, victims should therefore be advised to provide as much information as possible. Officers should explicitly ask victims to provide extensive and detailed responses and not to hold back anything no matter how trivial or irrelevant it might seem. This provides more information, not only because victims do so without editing but also because they sometimes remember an important detail only when thinking about something that is not relevant.[276] Suggested wording for this is as follows:

Some people hold back information because they are not quite sure that the information is important. Please do not edit anything out of your report, even things you think may not be important.[277]

Technique #3: Recalling in reverse order

After the victim has completed relaying her account of events, the investigator using cognitive interviewing techniques will ask her to recall the events of the assault in a different order.

  • Since most victims will describe the events in chronological order during their first telling, the investigator should ask the victim to recall them in reverse order, from the last thing that happened backward to the first.

  • This process of recalling events backwards in time forces the victim to examine her actual memory of the event, rather than relying on a narrative that may have already become somewhat rote after telling it to several individuals.

When events are recalled in chronological order, we all have a tendency to reconstruct in our minds what must have happened based on prior knowledge or assumptions. This can lead to incomplete or inaccurate reports. By reporting events in a different order, it is possible to elicit more details from the actual memory. Suggested wording for this is as follows:

It is natural to go through the incident from beginning to end. However, you also should try to go through the events in reverse order. Alternatively, try starting with the thing that impressed you the most in the incident and then go from there, going both forward in time and backward.[278]

Technique #4: Change perspectives

Fourth, investigators should ask victims to recall the event chronologically, but from a different perspective.

  • For example, if the victim was assaulted in a car the investigator could ask for a description of the events as they might have appeared from outside the car.

  • If the victim was assaulted on a bed, the investigator could ask what might have been observed from the perspective of the ceiling.

This can be especially useful for victims who dissociate, because it sometimes feels to them as if they truly did observe the assault from that external perspective. Suggested wording for this is as follows:

Try to recall the incident from different perspectives that you may have had, or adopt the perspective of others who were present during [parts of] the incident. For example, try to place yourself in the role of a prominent character in the incident and think about what he or she must have seen.[279]

A note of caution

Obviously, the use of the cognitive interview with sexual assault victims demands that they relive the experience to some extent, and investigators therefore need to be aware that using this method may be extremely difficult for victims.

  • Some have even suggested that cognitive interviewing techniques are inappropriate for use with sexual assault victims, because it creates unnecessary trauma.

  • It is important to keep in mind, however, that the cognitive interview is based on psychological principles and designed to elicit as much information as possible. Moreover, all police interviews require that the victim relive the crime to some extent and so this is not a concern that is unique to any particular technique.

Ultimately, the investigator should decide when cognitive interviewing techniques are appropriate, based on the victim's individual character and traumatic response. In addition, it is always recommended that a rape crisis advocate or other support person be available for the victim either during or immediately following the interview, in order to address emotional needs and other concerns that arise.

Additional techniques for eliciting information

In addition to these general methods for eliciting details in the victim's account of events, there are a variety of specific techniques that are useful. These are quoted or adapted from Geiselman (1987).

(1) Suspect descriptions:

If the suspect was unknown to the victim, investigators can supplement typical descriptive information by asking the victim whether he reminded her of anyone. If so, why? Victims can be asked if there was anything unusual about the suspect's physical appearance or clothing - and again, victims should be reminded not to edit their statement but to provide any details no matter how silly or trivial they might seem.

(2) Remembering names:

If the victim is trying to come up with a name that was spoken or other verbal information, investigators can ask the victim to try to think of the first letter by going through the alphabet. Then the investigator can ask the victim to try to think of the number of syllables to see if this elicits additional information.

(3) Remembering numbers:

If the victim is trying to come up with a number, perhaps from a license plate or other written material, investigators can ask the victim:

  • Was the number high or low?

  • How many digits were in the number?

  • Were there any letters in the sequence?

(4) Recalling speech characteristics:

If an investigator is trying to elicit additional information about the speech characteristics of the suspect, the victim can be asked:

  • Did the voice remind you of someone else's voice? (e.g., movie or TV star)

  • If so, why?

  • Was there anything unusual about the voice?

(5) Recalling conversational details:

When trying to generate details about the conversation that took place with the suspect, investigators can ask the victim to think not only of what was said but also how the victim or others present reacted to what was said. It is also helpful to ask whether any unusual words or phrases were used.

Benefits of the cognitive interview

Many investigators have been using some of these techniques for years. However, research has demonstrated that their using all of the techniques in combination can effectively enhance the memory of eyewitnesses.[280]

  • A large number of studies have demonstrated that cognitive interviewing techniques can enhance the amount of information recalled by victims and witnesses of crime, without similar costs in accuracy.

  • Specifically, studies demonstrate a 25-70% increase in the amount of correct information obtained using cognitive interviewing rather than standard police techniques.[281]

  • There is also substantial evidence that cognitive interviewing techniques do not produce any increases in suggestibility or confidence, which greatly increases the reliability of testimony.

The primary cost of using cognitive interviewing techniques is that they take longer and require greater mental effort and flexibility on the part of the interviewer. However, given the payoffs -- not only in the information obtained but also the rapport and trust established with the victim -- this extended time is well spent in sexual assault cases.

A note on hypnosis

Finally, a note about hypnosis is justified - especially in comparison with the cognitive interviewing techniques. Some have noted that hypnosis can increase the amount of information recalled by victims and witnesses of crime, and there is some research evidence to support the idea. However, there are also a number of documented problems with memory enhanced through hypnosis.

  • For example, although victims and witnesses are sometimes seen to recall more information after hypnosis, more of the information is incorrect than with standard interviewing techniques.

  • Furthermore, the heightened suggestibility experienced during hypnosis causes victims and witnesses to be more influenced by leading questions, and they report greater confidence in their memories - even when they are incorrect.

For all of these reasons, American courts generally exclude testimony that is either produced during hypnosis or any interview following the use of hypnosis. We also recommend against using hypnosis with sexual assault victims. Interestingly, however, cognitive interviewing techniques share many of the advantages of hypnosis without the disadvantages.

Information to Obtain During the Interview

In the comprehensive interview, police should obtain information in a variety of areas. If this information is not provided by the victim in the first stage of the interview during her initial account of events, it should be addressed with follow-up questions in the second stage of the interview.

Describing the victim's behavior and relationship with the suspect

The interviewer should ask the victim about her behavior and relationship with the suspect. These questions should address:

  • The victim's activity prior to the assault

  • Any past relationship or contact with the suspect

  • How the victim and suspect initially came into contact

  • When the victim last had consensual sexual intercourse, and with whom (this question must be prefaced by an explanation of why this information is important)

  • Who the victim first told about the assault

  • Any witnesses with information about the assault, the suspect, or prior assaults

When asking the victim about other potential witnesses, the officer should assess who she told, what she told them, and when she did so.

  • It is important to get information on anyone who may have seen or heard anything before, during, or after the assault.

  • It is especially important to determine who she told first of the assault (sometimes referred to as an "outcry witness") because this person can provide critical information regarding the victim's appearance, demeanor, behavior, and spontaneous statements following the assault.

When describing the behavior of the victim during the assault, it is important for officers to distinguish between the victim's submission (giving-in) and consent (freely participating).

  • For example, victims who submit out of fear should be asked about their thoughts and feelings during the assault so their behavior is clearly characterized as merely giving in rather than consenting.

In other cases, a victim may have consented to certain acts such as kissing or fondling but not consented to other acts such as sexual intercourse. It is therefore important to ask the victim about what she said and did during the assault, especially with respect to consent for each specific sexual act.

Describing the suspect's behavior

Regarding the suspect's behavior, the interviewer should establish:

  • How the suspect entered and exited the crime scene

  • Whether the suspect brought anything or left anything at the scene

  • Whether the suspect touched or moved anything

  • Whether the suspect took any pictures or videos

  • Whether the suspect showed any videos or magazines to the victim

  • If the suspect used any objects during the assault

  • If the suspect moved or transported the victim

  • Whether the suspect made any threats to the victim, and specific language used

  • Whether the suspect committed any other crimes in connection with the sexual assault (e.g., whether the suspect took or damaged anything belonging to the victim)

Documenting the specific acts committed

To determine which specific sexual acts were committed, the interviewer will need to assess whether each of the following occurred:

  • Penile-vaginal intercourse (degree of contact or penetration)

  • Sodomy (anal intercourse)

  • Oral copulation (cunnilingus or fellatio)

  • Digital penetration of the genitals

  • Other foreign penetration of the genitals

  • Sexual contact other than penetration

In addition to determining which specific acts were committed, it is also important to document their sequence and whether any acts were repeated. Officers will of course need to make sure that the information they collect will allow them to determine whether the sexual acts involved meet the elements of the offense in their state.

Describing the suspect's sexual behavior

With respect to the suspect's sexual behavior, it is also important to ask the victim:

  • Whether a condom was used

  • Type of condom used or description of packaging

  • Whether the condom was provided by the victim or suspect

  • The location of the used condom

  • Whether a lubricant was used

  • Whether the suspect ejaculated, and if so, where (explain that this is not an element of the offense but indicative of where evidence might be located)

  • Whether the suspect wiped his genitals with a tissue, sheet or item of clothing

Establishing force or threat of force

To establish the elements of the offense in a case of forcible sexual assault, the officer needs to document not only the details of the sexual acts but also the circumstances of force or threat of force. Given that the majority of sexual assaults are committed by known offenders, the issue in most investigations is going to be consent rather than identity. It is therefore crucial that officers hone in on any detail that speaks to force or threat of force. For example, the officer should find out from the victim:

  • Whether any physical force was used

  • Whether any real or simulated weapons were used

  • Whether the suspect used his body to restrain or intimidate the victim

  • What the physical positioning of the suspect was in relation to the victim

  • Whether any threats were made

  • Information regarding the size and strength of the suspect

  • Circumstances that made the victim feel threatened, including isolation

  • Whether the victim was incapacitated or otherwise vulnerable

Officers must remember not to ask these questions directly (i.e., "Did he use a weapon?") because this can communicate to victims that the assault wasn't serious if a weapon was not used. Rather, interviewers should listen to the victim's narrative for the details, and ask open-ended prompts to elicit information about the victim's and suspect's behavior and the victim's thoughts and feelings during the assault.

Officers must also recall that the force or threat of force experienced by victims is likely to result from the totality of the circumstances during the assault. It may not be a single element that created a threatening environment, but a combination of elements that must be established during a comprehensive and sensitive interview.

Obtaining a description of suspects

If the victim does not know the identity of her assailant, police will need to get a detailed description, including information pertaining to:

  • Clothing

  • Jewelry

  • Earrings or other piercings

  • Glasses (type)

  • Tattoos

  • Accents

  • Body and facial hair

  • Body odor

  • Circumcision

  • Scars

  • Masks

  • Gloves

  • Items or weapons carried

Police should evaluate whether the victim could potentially identify the suspect or assist in constructing a composite or artist's sketch of the suspect. However, this should NEVER be done by directly asking the victim whether she can identify the suspect.

  • If she says that she is able to identify him and later fails to do so this will erode her credibility.

  • Similarly, if she suggests that she cannot identify him or is unsure if she can, this limits the potential utility of any future identification.

Rather, police should simply ask whether the victim can assist with creating a composite or artist's sketch. Officers should also document anything relevant to the victim's ability to identify the suspect, including the length of contact, lighting, or presence of any other obstacles to viewing the suspect (e.g., if the suspect was wearing a mask during the assault).

Establishing a modus operandi or signature

To determine whether a modus operandi or signature pattern of behavior can be established, investigators should also assess:

  • Whether the suspect had an erection or had difficulty maintaining an erection

  • Any statements or words used by the suspect

  • Any specific threats made by the suspect

  • Any weapons or other items used by the suspect

  • Any contact with the suspect before or after the assault

Concluding the Interview

When concluding the interview, it is always important to ask the victim if she has any additional information that she would like to offer. Sometimes details come to mind during the course of the information that the victim should be invited to share before concluding.

At the conclusion of the interview, the victim is also likely to look to the officer for a reaction to her story or assessment of her credibility. The officer can therefore take this opportunity to reassure the victim, by stating that the assault was not her fault, by praising her courage in surviving, and thanking her for her vital cooperation.

Explain future procedures

Explaining the procedures involved in a police investigation is a critical element in crisis management for the victim. All too often police officers forget that victims have no realistic awareness of police procedures and the reasons underlying them. Although the officers deal with these procedures on a daily basis this may be the first time victims have ever had meaningful contact with law enforcement.

  • For this reason, officers must take the time to explain these procedures to victims as well as outlining the reasons underlying these procedures. For example, officers should always explain to victims the process of police investigation, including what steps will be taken next and why.

Officers should also address any questions or concerns the victim might have about what is and is not part of the police investigation.

  • For example, one victim might be very concerned about the fact that her criminal history is checked. In this case, the victim can be reassured that everyone who comes into contact with police is checked for a criminal history and that this does not in any way represent that she is being doubted or blamed for the assault.

  • Another victim might be concerned about why she is being fingerprinted after reporting a sexual assault by a stranger who broke into her apartment. In this case, officers should explain to victims that they are providing elimination prints and how these are used to rule out those from the victim when looking for those of the suspect.

  • Victims can also be informed that the officer will interview the suspect, and that information about this contact may come back to the victim. For example, officers will often "go along" with things that the suspect says in an interview just to keep him talking. Victims should be informed that this is used as a technique for collecting information from the suspect and does not indicate that the officer has "taken the suspect's side" or view of events.

  • The officer can explain the crime laboratory procedures and the process for releasing any of the victim's property that was taken for investigative purposes.

  • In particular, any questions about prior sexual experience and recent sexual activity should be explained, because these can sound blaming if victims do not understand their purpose and relevance for the police investigation.

When explaining the police procedures, it is important to avoid false assurances or unrealistic expectations for the process. For example, victims should not be told: "Don't worry, we'll have the suspect in custody before you know it and he'll go to prison for a long time." Instead, victims should be provided with honest information about the process and likely outcomes. As with other stages of the interview, advocates can be especially helpful in ensuring that all of the victim's questions and concerns are addressed, and that she understands what will happen next in the police investigation.

Address safety concerns

At the conclusion of the interview, officers can explore safety concerns with victims and help them formulate a plan for maintaining their physical well-being. Given that most victims know their offenders, they understandably have concerns about what will happen when the suspect is contacted by police about the assault. In cases where the suspect is a stranger, victims are also concerned that he will remain at large and pose a threat for repeated victimization. It is therefore important for officers to explore a safety plan with victims, and explain the procedures for obtaining an order of protection if appropriate.

Acknowledge that disclosure is a process

It is said that disclosure of sexual assault is a process rather than an event, and officers must keep this in mind themselves as well as passing it along to victims. In other words, victims are likely to remember additional details or feel comfortable disclosing them at some point after the initial police interview.

  • Officers should provide victims with information about who to contact if she has any questions or recalls any additional information. Victims may also want to contact someone to clarify details in her statement.

  • To make sure that victims can actually get in contact with the officer who responded to their case, the responding officer should provide victims with his/her name, badge or identification number, and the victim's case number.

  • If an officer has a business card, this can also be provided to victims with information about who to contact for any questions or concerns that may arise.

Obtain contact information

Because victims are often reluctant to stay at their own home after a sexual assault (especially if the assault took place there), it is important to get the address and phone number where the victim will actually be staying.

  • In addition, it is advisable to get the name, address, and phone number for another contact person in case the investigator has difficulty locating the victim.

After the interview, officers should stay in touch with the victim and keep her apprised of the status of the case. Even though officers often withhold information to protect the victim from unpleasant news, victims want to be kept informed of the status of their case. Especially if their case is being closed or inactivated, victims need to be notified of this fact to achieve some closure in their own lives. Because it can sometimes be difficult for police to keep in contact with victims as often as victims would like, advocates can play an important role in keeping the victim informed regarding the police investigation.

Assist with notification if possible

Although it is not always possible, it can be extremely helpful for victims to receive assistance in the immediate notification of family, friends, or employers. This is another area where victim advocates can be of assistance for victims, thereby relieving officers of the duty to deal with notification and responses of others.

  • Notification of friends and family regarding a sexual assault can be tricky because many will respond with anger and a desire for revenge. They must be reminded that, although this reaction is understandable, it does not help the victim but causes yet another source of anxiety for her.

  • In contrast, some friends or family members will respond by blaming the victim for any high risk behavior she exhibited. Again, this is very destructive for the victim and should be discouraged to whatever extent possible. The officer can emphasize to these support people how important it is that they be just that - support - for the victim during her experience of crisis. Whatever she did prior to the assault, nothing justifies this kind of victimization and the focus needs to remain on victim recovery.[282]

Support people can also be provided with the same information and referrals as the victim, in order to address their own questions and concerns regarding the sexual assault. For example, many rape crisis centers now offer services and support groups for friends and family members who are affected by the sexual assault of a loved one. Advocates can also address the questions and concerns of significant others both during the immediate response to a sexual assault (e.g., at the hospital or police department) and in the longer-term aftermath of victimization.

Provide written information and referrals

Officers should provide the victim with written information about her rights as a crime victim in the state. Some of these rights might include confidentiality, anonymity, and the right to an advocate or support person during follow-up interviews with law enforcement.

Finally, the victim should be provided with referrals and information about community resources and agencies that are trained to work with survivors of sexual assault and their significant others.

  • Either the officer or advocate should have printed material that can be made available to victims so they have it in their possession for whenever they might need it.

  • These materials should address topics such as recovery from sexual assault, medical issues, what to expect during the legal process, and community resources.

When leaving the victim, police should make sure that she has support personnel and transportation, especially if she is at the hospital. Turning one last time to retired NYPD detective Harry O'Reilly:

You might be wondering, if you are police officers reading this, `Why should we be doing all of this? We aren't social workers.' This is one of the most common comments made to me in this training job. I say that we most certainly are social workers. We are in the people business, and we must learn how to deal with and relate to all kinds of people. We should be relating with a much greater degree of sensitivity than in the past. If you cannot be moved by the humanity of the argument, then maybe you can relate to the practical advantage of it - if we want the victim's cooperation in the prosecution we have to treat her with the same dignity we afford any other victim of crime. Only we should treat her much more sensitively, because she has had the most heinous crime next to murder perpetrated against her.[283]

Yet Another Option for Victims: Blind Reporting

Blind reporting, or information reporting as it is sometimes called, is yet another option for victims that can be instituted by law enforcement agencies. Because the issue is one of policy, we include this material as supplementary information. However, we advocate strongly that individual officers and departments implement the policy of accepting blind or informational reports - that is, taking a police report from victims without recording their names and/or without the possibility of criminal investigation and prosecution. Some departments even allow victims to use a pseudonym when filing a police report for sexual assault and/or to report the incident to rape crisis rather than law enforcement personnel.[284]

The following is excerpted from:

Garcia, S. & Henderson, M. (1999). Blind reporting of sexual violence. FBI Law Enforcement Bulletin, 68 (6), p. 12-16.

Imagine a woman having car trouble. She accepts a ride with a man, and he rapes her. ... What if she never tells anyone about the assault? What if the assailant rapes again? Now imagine that she has an option that allows her to share critical information with law enforcement without requiring her to sacrifice the confidentiality she deserves. In fact, an anonymous reporting system enables law enforcement investigators to gain information about crimes of sexual violence that likely otherwise will go unreported, while it allows victims an opportunity to gather legal information from law enforcement without having to commit immediately to an investigation. Victims have a chance to find out what the process is like, what chance they have of filing successful charges, and what it will be like to work with the investigator. In the long run, victims, investigators, and the community all benefit from blind reporting.

Benefiting from a blind reporting system

When law enforcement officers review the reported incidents within the community, the numbers reflect only a fraction of the violence that actually occurs. Law enforcement may not have the most important information about local offenders' patterns of behaviors or the characteristics of emerging high-risk situations or locations. Therefore, law enforcement benefits from accepting blind reports because investigators have a clearer picture of sexual violence in their communities. Moreover, when investigators can pinpoint dangerous scenarios, they can better educate the public, thus improving community relations and possibly garnering information on other neighborhood crime problems.

Blind reporting also provides other benefits. In the immediate aftermath of a trauma, a victim simply may not have the emotional or physical capacity to make a commitment to a full investigation and a court trial. .... Blind reporting lets victims take the investigative process one step at a time, allowing time to build trust between the investigator and the victim and making the whole process feel more manageable. ... Describing the assault to a law enforcement professional gives the victim an opportunity to affirm that the assailant did, in fact, commit a crime, which helps in the personal process of healing from the trauma and can help build the victim's confidence in filing charges against the rapist.

In some states, victims who file blind reports can receive rape victim's assistance, which provides compensation for the costs associated with an emergency rape examination or other related expenses. ... Even victims who decide not to pursue legal charges alone may come forward willingly to support other victims of the same assailant. Victims who initially hesitate to file a formal report at the time of the assault may change their minds when given the option of supporting or being supported by other victims of the same assailant. The testimony of a prior victim can help the investigator build the case and the district attorney prove it by establishing a pattern of behavior by the accused.

Establishing a blind reporting system

To develop a successful blind reporting system, law enforcement agencies should:

  • Establish a policy of confidentiality.

The law enforcement agency must define clearly and uphold unconditionally its policy of confidentiality.

  • Accept the amount of information offered.

Any amount of information given, even if less than the investigator prefers, represents more than would otherwise be available and may prove useful in building other cases.

  • Accept the information whenever the victim might offer it.

  • Accept information from third parties.

  • Clarify options for future contact.

Victims may prefer to be contacted again under specific conditions or not at all. For example, if the offender later is charged with another assault, would the victim want to be notified to consider filing a formal report? ... On the blind report, investigators should document where, how, and under what circumstances the victim may be contacted. The report should specify clearly whether officers can leave messages on answering machines or with other people who may answer the phone.

  • Maintain blind reports in separate files.

The blind report is not an official police report. Keeping it in a separate file within the investigative division or with a designated sexual assault investigator avoids inappropriate use of the information it contains and maintains the confidentiality promised the victim. The blind report should not become available to the records division until the victim chooses to file a formal report. Until that time, only officers assigned specifically to sexual assault cases should have access to the blind report.

  • Categorize the information contained in the blind report.

Analyzing the information in the report helps the investigator identify specific case and offender characteristics - such as names of perpetrators, locations and times of assaults, types of lures, traits of offenders, and processes of victim selection - and categorize this information in a way that eases retrieval and helps to match case aspects to other investigations.

Overcoming resistance to blind reporting

Law enforcement agencies initially may feel inclined to dismiss the benefits of establishing a blind reporting system solely because of the time investment it requires. Yet, the 1 hour or so that it takes to talk to a victim and complete a 2-page report pales in comparison to the potential benefits. Sex offenders tend to be repeat offenders. Depending on the typology of the offender, behavior may escalate in intensity and frequency over time. Building a case against an assailant becomes much easier when officers have information about three incidents instead of one or if officers recognize that the actions of a nameless stranger seem similar to those described by another victim who provides identifying information.

Conclusion

All officers want to close out their cases, both for their own satisfaction and to meet the department's need to document its workload. Investigators who work in an environment in which effectiveness is measured only by immediate quantifiable gain may be reluctant to institute a blind reporting system. ... However, some blind reports become full reports and lead to investigations and successful prosecutions. Others provide useful information for investigation in other cases. All of them help officers build relationships and gain a true picture of sexually violent crimes committed in the community.

Officers who accept the potential for delayed gratification may become the most ardent supporters of blind reporting systems. The payoff for the effort eventually will be demonstrated through improved community relations and, over time, more effective investigations and prosecutions.

References

Fisher, R.P. (1995). Interviewing victims and witnesses of crime. Psychology, Public Policy, and Law, 1 (4), p. 732-764.

Garcia, S. & Henderson, M. (1999). Blind reporting of sexual violence. FBI Law Enforcement Bulletin, 68 (6), p. 12-16.

Geiselman, R.E. (1987, Spring). The cognitive interview technique for interviewing victims and witnesses of crime. Prosecutors Brief.

Geiselman, R.E. & Fisher, R.P. (1985). Interviewing victims and witnesses of crime. National Institute of Justice Research in Brief: Washington, DC.

Latts, M.G. & Geiselman, R.E. (1991). Interviewing survivors of rape. Journal of Police and Criminal Psychology, 7 (1), p. 8-16.

Mills, J.K. (1989l). The initial interview of sexual assault victims: A humanistic approach to investigation. The Police Chief, 56 (4), p.119-122.

Olsen, L. & Wells, R. (1991, February). Cognitive interviewing and the victim/witness in crisis. The Police Chief, 58 (2), p.28, 30-32.

O'Reilly, H.J. (1984). Crisis intervention with victims of forcible rape: A police perspective. In J. Hopkins (Ed.), Perspectives on Rape and Sexual Assault. London: Harper & Row.

Spears, J.W. & Spohn, C.C. (1997). The effect of evidence factors and victim characteristics on prosecutors' charging decisions in sexual assault cases. Justice Quarterly, 14, 502-524.



[1] Office of the Attorney General (1992). Combating Violent Crime: 24 Recommendations to Strengthen Criminal Justice. U.S. Department of Justice, p.49.

[2] Weedn &Hicks, 1997

[3] Ibid.

[4] National Institute of Justice brochure (#BC 000614)

[5] In those cases where the suspect admits sexual contact but claims it was consensual, detectives and prosecutors need to evaluate the need for forensic DNA. For example, if the victim bled from an injury sustained during the assault the detective might submit a lab request to detect blood, thereby corroborating the use of force.

[6] Lewis, 1988; cited in Ledray, 1999, p.64

[7] Gladwell, 1995

[8] Asplen, 1999

[9] Ledray, 1999, p.64

[10] Butterfield, 1996; Sauer, 1993

[11] Asplen, 1999

[12] Asplen, 1999

[13] Weedn &Hicks, 1997

[14] Weedn &Hicks, 1997. Investigators need to be trained, however, to re-evaluate old cases and identify any that might benefit from DNA testing.

[15] Weedn &Hicks, 1997

[16] Weedn &Hicks, 1997, p.l7

[17] Burns &Smith, 1999

[18] Weedn &Hicks, 1997

[19] CODIS stands for the Combined DNA Index System, a national investigative support database developed by the FBI.

[20] Weedn &Hicks, 1997

[21] Ibid.

[22] Ibid.

[23] Ibid.

[24] Medical protocol dictates the color tops of blood vials based on the type of preservatives needed for specific types of laboratory analysis and tests performed using the samples within. Yellow top tubes were generally used for serology and have been supplanted by purple top tubes (containing EDTA) used for DNA testing. Grey top tubes are used for blood alcohol/toxicology testing.

[25] Title of an article written by Weedn &Hicks, 1997

[26] International Association of Chiefs of Police (1995, p.6, emphasis added).

[27] For purposes of this module, the terms "rape" and "sexual assault" will be used interchangeably, partly because research has typically used the term "rape" whereas law enforcement generally refers to "sexual assault."

[28] The notion of "real rape" was first introduced by Susan Estrich in her book of the same name (Estrich, 1987).

[29] Statistics provided by Sergeant Joanne Archambault, San Diego Police Department.

[30] Statistics provided by Sergeant Elizabeth Whitmore, Tucson Police Department.

[31] Connecticut Sexual Assault Crisis Center newsletter (1999, January)

[32] Hazelwood, Rokous, Hartman, & Burgess (1988)

[33] Other questions asked of survey respondents to assess rape prevalence were: Has anyone, male or female, ever made you have oral sex by using force or threat of force? Just so there is no mistake, by oral sex we mean that a man or boy put his penis in your mouth or someone, male or female, penetrated your vagina or anus with their mouth. Has anyone ever made you have anal sex by using force or threat of harm? Just so there is no mistake, by anal sex we mean that a man or boy put his penis in your anus. Has anyone, male or female, ever put fingers or objects in your vagina or anus against your will or by using force or threats? Has anyone, male or female, ever attempted to make you have vaginal, oral, or anal sex against your will, but intercourse or penetration did not occur?

[34] Although estimates for rape prevalence/incidence are drawn from the National Violence Against Women Survey, they are similar to those reported in other large-scale studies. For example, the National Women's Study was conducted by the National Victim Center (1992) with a sample of approximately 4,000 American women aged 18 or over. This study concluded that 1 out of 7.7 American women had been the victim of at least one completed rape during their lifetime and that .7% been raped during the past 12 months. Similarly, the National Crime Victimization Survey (Bachman & Saltzman, 1995), sponsored by the U.S. Department of Justice, was conducted in 1992-1993 with approximately 100,000 individuals age 12 or older. This study concluded that .5% of U.S. women experienced an attempted or completed rape during the last 12 months. Neither study asked men about their victimization experiences. Finally, the U.S. Naval Recruit Health Study reported that 36% of female recruits had been raped, suggesting that victimization rates are higher among this population (Merrill et al., 1998). Clearly, prevalence estimates have converged in all major studies of sexual assault conducted in recent years, thereby challenging the common public perception that rape statistics are "all over the map."

[35] The 1995 National Crime Victimization Survey similarly concluded that only 9% of the 340,380 victims of rape were men.

[36] Because the vast majority of sexual assault victims are female and perpetrators are male, we frequently use the pronoun "she" in this manual to refer to victims and "he" to refer to suspects. However, it is important to note that men can be victims and women can be perpetrators.

[37] Percentages sum to more than 100 because some victims had multiple perpetrators. These statistics are comparable with those reported by the National Women's Study and the National Crime Victimization Survey. In the former, 75% of female victims were raped by someone they knew (i.e., an acquaintance or intimate partner). In the latter, that figure was 82%.

[38] In the National Women's Study, 22% of the sexual assaults were committed by strangers. The remaining 9% were committed by husbands or ex-husbands, 11% by fathers and stepfathers, 10% by boyfriends or ex-boyfriends, 16% by other relatives, and 29% by other non-relatives such as friends and neighbors. Three percent were not sure of their perpetrator's identity or refused to answer.

[39] For comparison, 70% of victims in the National Women's Study sustained no physical injury as a result of the rape; 24% reported minor physical injuries and only 4% involved serious injuries.

[40] In the National Women's Study, only 17% of rape victims received a medical exam (unlike that of the National Violence Against Women Survey, this figure includes all victims regardless of physical injury).

[41] As stated in note 6, the National Women's Study was conducted by the National Victim Center (1992) with a sample of approximately 4,000 American women aged 18 or over. Respondents were contacted by telephone and asked about their experiences of rape victimization, PTSD, depression, and substance abuse. The definition of rape used in the study was, "an event that occurred without the woman's consent, involved the use of force or threat o force, and involved sexual penetration of the victim's vagina, mouth, or rectum.

[42] The Bureau of Justice Statistics relies on information provided in the National Crime Victimization Survey, which has a number of serious methodological flaws. These flaws include the failure to ask about rape specifically, but only about "attacks" more generally. The NCVS methodology was redesigned in 1993 to address many of these concerns.

[43] For further description of this study, see Warshaw (1994). The survey was conducted in college classrooms with approximately 6,000 female undergraduates using the Sexual Experiences Survey developed by Koss and Oros (1982). The research is reported in Koss, Gidycz, & Wisniewski (1987), as well as Koss (1988).

[44] Koss & Cook (1993).

[45] Lindsay, 1998

[46] Ledray (1999)

[47] Ledray, 1999

[48] Holloway & Swan, 1993; Lenehan, 1991; Sandrick, 1996

[49] Tucker, Ledray & Werner, 1990

[50] If multiple suspects are involved in the sexual assault, they should be identified by number in the documentation. For example, the acts perpetrated by suspect #1 should be distinguished from those of suspect #2, etc.

[51] Frank, 1996

[52] Clippings are also difficult to obtain among women with acrylic fingernails.

[53] Ledray & Netzel, 1997

[54] Osborn & Neff, 1989

[55] Ledray, 1992b

[56] Tucker, Ledray, & Werner, 1990

[57] Davies, 1978

[58] Green, 1988

[59] Enos & Beyer, 1980

[60] Information provided by San Diego County Sheriff's Department

[61] Ibid.

[62] Ibid.

[63] Frank, 1996

[64] Ledray, 1992b

[65] Frank, 1996

[66] Ledray, 1992a

[67] Anglin, Spears, & Hutson, 1997; Ledray, 1992b

[68] Ledray, 1992b

[69] Tucker, Ledray, & Werner, 1990

[70] Tintinalli & Hoelzer, 1985

[71] Cartwright, Moore, Anderson, & Brown, 1986; Marchbanks, Lui, & Mercy, 1990; Tucker, Ledray, & Werner, 1990

[72] Sheridan, 1993

[73] Ibid.

[74] Lindsay, 1998

[75] Sheridan, 1993

[76] Sheridan, 1993

[77] Lauber & Souma, 1982; McCauley, Guzinski, Welch, Gorman, & Osmers; Slaughter et al., 1997

[78] McCauley et al., 1987, p.107

[79] Cartwright et al., 1986; Boyer & Dalton, 1997

[80] Lauber & Souma, 1982; Slaughter et al., 1997

[81] Redness and swelling are not necessarily indicative of trauma unless accompanied by tears, ecchymosis, or abrasions.

[82] Slaughter et al., 1997

[83] Lindsay, 1998

[84] Lindsay, 1998

[85] Slaughter et al., 1997

[86] Lindsay, 1998; Slaughter et al., 1997

[87] Briggs, 1998

[88] Hillman et al., 1990; Hillman et al, 1991; Kaufman et al., 1980

[89] Frank, 1996; Peele & Matranga, 1997; Slaughter & Brown, 1992; Slaughter et al., 1997

[90] As with photographs of non-genital injuries, it is recommended that colposcopic photographs remain with the medical facility and not be released to law enforcement.

[91] Boyer & Dalton, 1997; Cartwright et al., 1986; Norvell, Benrubi & Thompson, 1984; Satin, Hansell, Stone, Theriot & Wendel, 1991; Solola et al., 1983; Tintinalli & Hoelzer, 1985

[92] O'Brien, personal communication

[93] Slaughter & Brown, 1992

[94] Soderstrom, 1994

[95] There is some discussion of other dyes used for the same purpose, including Gentian Violet and Lugol's solution; however, Toluidine Blue is currently the most commonly used of these in the detection of perineal lacerations.

[96] Lauber & Souma, 1982

[97] McCauley et al., 1987

[98] Bays & Lewman, 1992; McCauley et al., 1987

[99] Amercian College of Emergency Physicians, 1999

[100] The preferred term among forensic examiners is now STI for Sexually Transmitted Infections. However, for ease of communication with law enforcement audiences we have retained the term STD (Sexually Transmitted Disease).

[101] Jenny, Hooton, Bowers, et al. (1990)

[102] Ledray, 1991

[103] Ledray, 1992a

[104] American College of Emergency Physicians, 1999

[105] Centers for Disease Control and Prevention, 1998; Ledray, 1993

[106] Centers for Disease Control and Prevention, 1998

[107] American College of Gynecologists, 1996

[108] Frank, 1996; O'Brien, 1997

[109] Holmes, Resnick, Kilpatrick, & Best, 1996; Yuzpe, Smith, & Rademaker, 1982

[110] Ledray, 1992b; Speck & Aiken, 1995

[111] Antognoli-Toland, 1985

[112] Frank, 1996; Holloway & Swan, 1993; Sandrick, 1996; Thomas & Zachritz, 1993

[113] Osborn & Neff, 1989; Speck & Aiken, 1995

[114] Ledray, 1996; Osborn & Neff, 1989; Tintinalli & Hoelzer, 1985

[115] Ledray, 1993

[116] Ledray, 1993

[117] Guidelines are adapted from the American College of Emergency Physicians (1999)

[118] Sheridan, 1993

[119] Ledray & Barry, 1998

[120] This section represents an original contribution by Dr. David Lisak. For examples of early research on incarcerated rapists, see Karpman (1954) and Groth (1979). For examples of research on "undetected" rapists, see Kanin (1984), Lisak and Roth (1990), Lisak et al. (1996), Lisak and Ivan (1995), Malamuth et al. (1991), and Hall & Barongan (1997).

[121] For examples of recent research on the prevalence and characteristics of rape, see Koss et al. (1987) and National Victim Center (1992).

[122] Lisak & Miller 1999

[123] Ibid.

[124] English, Pullen, Jones, & Krauth, 1996

[125] Greenfeld, 1997

[126] Ibid.

[127] Ibid.

[128] Ibid.

[129] Ibid.

[130] Ibid.

[131] For a comprehensive source on juvenile sex offending, see Ryan (1997).

[132] Ryan, 1997

[133] Chambers, 1994

[134] Ibid.

[135] Ibid.

[136] Bowie et al., 1990

[137] This information was provided by Detective Enrique Garcia of the Sexual Assault Investigations Unit of San Jose Police Department.

[138] Material in this section was adapted with permission from the California Commission on Peace Officer Standards and Training Telecourse manual entitled; Recognizing Criminal Personalities. Other material was adapted from Comer (1992).

[139] This material was contributed by Detective Scott Keenan of the Chicago Police Department.

[140] By Harold Eisenga, Detective, San Diego Police Department, Sex Crimes Unit. Pretext phone calls are also referred to as "confrontational calls" or "monitored calls" in other jurisdictions.

[141] Note that rape crisis counselors are sometimes different from rape crisis advocates. While advocates work with victims through the immediate response to sexual assault (e.g., hospital, police, and court procedures), counselors deal with longer-term emotional issues through regular counseling sessions. In some agencies, however, the same service provider fulfills both roles

[142] As described in the module on the forensic-medical exam, recent research suggests that the limitation of 72 hours may be inappropriate given the likelihood of finding evidence within a wider time frame. This nonetheless remains the restriction in many jurisdictions. Law enforcement officers must be aware of the local protocol governing when to obtain a forensic examination of sexual assault victims and the procedures for reimbursing expenses.

[143] Aiken, 1993

[144] Aiken, 1993; Katz & Mazur, 1979

[145] This paragraph is a direct quote from Aiken, 1993, p.16

[146] These case examples are quoted directly from Aiken, 1993, p.19

[147] McAvenia, 1997, p.7-8

[148] McDowell & Hibler, 1987, p.284

[149] O'Reilly, 1984

[150] Krasner et al., 1976

[151] Bronson, 1918; Comment, 1968

[152] Kanin, 1994

[153] Presentation to COVA by M. McNally, J. Bennett, and A. Munch.

[154] Ibid.

[155] Aiken, 1993

[156] Kanin, 1994, p.81

[157] These points are quoted directly from Ledray, 1999, p.4

[158] Aiken, 1993

[159] Ledray, 1999

[160] Ledray, 1999

[161] Hecht-Schafran, 1993

[162] Law Enforcement News, 1990, 21(19), p.6

[163] Law Enforcement News, 1990, 16(322) , p.5

[164] quoted in Law Enforcement News, 1990, 16(322) p.11

[165] Aiken, 1993

[166] Uniform Crime Reports, 1996

[167] Hecht-Schafran, 1993

[168] The Philadelphia Inquirer, October 7, 1999

[169] The Philadelphia Inquirer, October 18, 1999

[170] Quoted from Maryvictoria Pyne, spokeswoman for the FBI's Uniform Crime Reporting program, in the Philadelphia Inquirer, October 18, 1999

[171] Philadelphia Inquirer, October 29, 1999

[172] Direct quote from Latts & Geiselman, 1991, p.8

[173] McDowell & Hibler, 1987, p.275

[174] Uniform Crime Report Guidelines, p.40

[175] Uniform Crime Report Guidelines, p.40

[176] Uniform Crime Report Guidelines, p.42

[177] Ibid.

[178] Brownmiller, 1975

[179] McDowell & Hibler, 1987. Of course, other motives are possible for deliberate fabrications, including covering up a pregnancy or other sexual consequence or for revenge.

[180] McDowell & Hibler, 1987

[181] Of course, this may not be true if the victim was under the influence of drugs or alcohol. Many legitimate victims also fail to recall details of their assault due to trauma and the resulting cognitive disorganization. This indicator must therefore be used only with extreme caution. It should only be seen as cause for suspicion if it occurs in combination with several other indicators.

[182] Marcus, 1981; Ross & McKay, 1979

[183] Paper can also now be tested for potential DNA evidence.

[184] Some of these same characteristics, however, may also leave an individual particularly susceptible to actual victimization. They should therefore be seen as cause for suspicion only when they occur in combination with other indicators.

[185] Allison & Wrightsman, 1993

[186] Koss & Harvey, 1991

[187] Herman , 1992

[188] Quoted in Herman, 1992, p.42-43

[189] Allison & Wrightsman, 1991

[190] Koss & Harvey, 1991

[191] Allison & Wrightsman, 1993

[192] Most of the quotes presented in this module are taken from the case records of Professor Veronica Reed Ryback, Director of the Beth Israel Hospital (Boston) Rape Crisis Intervention Center and Clinical Instructor in Psychiatry, Harvard Medical School. They can be found in the National Judicial Education manual entitled, "Understanding Sexual Violence: The Judicial Response to Stranger and Nonstranger Rape and Sexual Assault."

[193] Allison & Wrightsman, 1993; Koss & Harvey, 1991

[194] Allison & Wrightsman, 1993; Koss & Harvey, 1991

[195] Allison & Wrightsman, 1993

[196] Allison & Wrightsman, 1993; Koss et al., 1994

[197] Koss & Harvey, 1991

[198] Koss Harvey, 1991; Koss et al., 1994

[199] Quoted in Herman, 1992, p.39-40

[200] Allison & Wrightsman, 1993; Koss & Harvey, 1991

[201] Ibid.

[202] Allison & Wrightsman, 1993; Koss et al., 1994; Koss & Harvey, 1991

[203] Allison & Wrightsman, 1993; Arata & Burkhart, 1996; Koss et al., 1994; Koss & Harvey, 1991

[204] Allison & Wrightsman, 1993; Koss & Harvey, 1991

[205] Allison & Wrightsman, 1993; Koss et al., 1994; Koss & Harvey, 1991

[206] Koss & Harvey, 1991

[207] Allison & Wrightsman, 1993

[208] Koss et al., 1994; Koss & Harvey, 1991

[209] Ibid.

[210] Allison & Wrightsman, 1993; Koss et al., 1994; Koss & Harvey, 1991

[211] Allison & Wrighstman, 1993; Koss & Harvey, 1991

[212] Allison & Wrightsman, 1993; Koss et al., 1994; Koss & Harvey, 1991

[213] Allison & Wrightsman, 1993; Koss & Harvey, 1991

[214] Koss & Harvey, 1991

[215] Allison & Wrightsman, 1993; Koss & Harvey, 1991

[216] Koss et al., 1994; Koss & Harvey, 1991

[217] Koss & Harvey, 1991

[218] Koss et al., 1994

[219] Koss & Harvey, 1991

[220] Koss & Harvey, 1991

[221] Ibid.

[222] Allison & Wrightsman, 1993

[223] Koss & Harvey, 1991

[224] For a review of the impact of sexual assault on male victims, see Struckman-Johnson, 1991

[225] Arata & Burkhart, 1996; Koss & Harvey, 1991

[226] Koss, Dinero, Seibel, & Cox, 1988

[227] Koss & Harvey, 1991

[228] Bowie et al., 1990, p.187-188

[229] Russell, 1990

[230] Finkelhor & Yllo, 1985

[231] Kilpatrick et al., 1988

[232] Koss & Harvey, 1991

[233] Interview with Dr. Veronica Reed Ryback, Director of the Beth Israel Hospital Rape Crisis Intervention Center, In Boston, Mass. (Oct. 21, 1992). Quoted in the National Judicial Education manual entitled, "Understanding Sexual Violence: The Judicial Response to Stranger and Nonstranger Rape and Sexual Assault". See also Koss & Harvey, 1991.

[234] The content of this section was quoted directly from "The Prosecution of Rohypnol and GHB Related Sexual Assaults", a training manual produced by the American Prosecutors Research Institute with support of the Office of Justice Programs, U.S. Department of Justice. The material appears on p.5 and p.12 of that manual.

[235] Spears & Spohn (1997)

[236] Videotapes can also be reviewed for training or superisory purposes.

[237] Remember, "interviewing" generally refers to the questioning of persons other than suspects in an attempt to elicit information. Officers should always remember that victims are not "interrogated." Unfortunately, given the lack of training for police in interviewing techniques there is a tendency for some officers to generalize interrogation skills for victims and witnesses. The effect of this generalization can be devastating, both in terms of investigative success and victim cooperation (Fischer, 1995).

[238] Fischer, 1995

[239] Fischer, 1995, p.734

[240] Latts & Geiselman, 1991

[241] Ibid.

[242] Fischer, 1995

[243] O'Reilly, 1984

[244] Latts & Geiselman, 1991

[245] Ibid.

[246] Mills, 1989

[247] Olsen & Wells, 1991

[248] O'Reilly, 1984, p.101

[249] Latts & Geiselman, 1991; Mills, 1989; Olsen & Wells, 1991; O'Reilly, 1984

[250] Olsen & Wells, 1991

[251] Latts & Geiselman, 1991

[252] O'Reilly, 1984, p.98-99

[253] e.g., Latts & Geiselman, 1991

[254] Mills, 1989, p.119

[255] Fischer, 1995; also Olsen & Wells, 1991

[256] Olsen & Wells, 1991

[257] Fischer, 1995, p.747; also Olsen & Wells, 1991

[258] Fischer, 1995

[259] Olsen & Wells, 1991

[260] Latts & Geiselman, 1991

[261] Latts & Geiselman, 1991

[262] Latts & Geiselman, 1991, p.12

[263] Avoiding physical contact can also protect the officer from any misperception or complaints that may arise as a result. This is perhaps especially true for male officers working with female victims.

[264] For the protection of the officer, it is also probably best to physically touch the victim only when a third party is present in the room.

[265] Olsen & Wells, 1991

[266] Olsen & Wells, 1991, p.31

[267] Olsen & Wells, 1991

[268] Fischer, 1995, p.735; also Olsen & Wells, 1991

[269] Fischer, 1995, p.735

[270] Ibid.

[271] Olsen & Wells, 1991

[272] Fischer, 1995, p.746

[273] Geiselman & Fisher, 1985

[274] Geiselman, 1987

[275] Geiselman, 1987, p.19

[276] Geiselman, 1987

[277] Geiselman, 1987, p.19

[278] Geiselman, 1987, p.19

[279] Geiselman, 1987, p.19

[280] See Geiselman & Fisher (1985) for a review of research documenting the effectiveness of cognitive interview techniques in eliciting additional information from eyewitnesses.

[281] Geiselman, 1987; Fisher, 1995

[282] O'Reilly, 1984

[283] O'Reilly, 1984, p.102-3

[284] Three departments that have implemented blind/anonymous reporting are Chapel Hill, North Carolina, Comal County, Texas, and Lawrence, Kansas.