Promising Practices: A Checklist for Prosecution Response to Sexual Assault Sexual Assault in America kpprouimately 500,000 women are esti- mated to be the victirns of some form of rape or sexual assault each year.' The %ational C'iolence 'Igainst Clomen Survey estimated that 14.8percent of adult women in the United States had been raped sometime during their lil-es and that another 2.8 percent had been victims of an attempted rape.' Friends or acquaintances of victims commit more than half of these crimes; intimate partners commit another quarter.' Strangers are responsible for about one in five rapes or sexual assaults." kpproximately 70 percent of rapes and sexual assaults are not reported to p~lice.~ Significant changes designed to improve the treatment of sexual assault ~ictimshave occurred in tl~cpast 25 )ears. During the earl? 1970s, the first community- based sexual assault programs were csttrblished. The treatment of victims in the criminal justice system came under scrutinj, and hundreds of laws were passed to protect sexual assault 1 ictims in the courts. Rape shield laws vere passed in many states to protect the \ ictims and to facilitate their participation in the criminal justice process. Medical protocols \?ere developed and widel! implemented. In 1994.Congress passed the \.Tolence %gainstJlomen Act (V14W4),which was designed to help communities enhance their response to sexual assault and other xiolent crimes against women. The Act was reauthorized in 2000. The Violence Against Women Office, under the U.S. Departn~~ntof Justice, has supported the publication of this Checklist to offer criminal justice officials erarnples of promising practices to address these crimes. Checklist for Prosecution Response to Sexual Assault This Checklist for Prosecution Response to Sexual Assault is one in a series of two publications directed to prosccutors. This publication focuses specificallj on sexual assault and provides guidancc to prosccutiori staff on how to effecti~elyenforce the law and pros- ecute sexual assault cases ~~hilcbeing sensitict to the needs of victims. The Checklist is part of a packet that includes a similar prosecutor checklist for domestic violence and stalking, a referraI list, and a resource guide. FThen read together, these publications will help prosecutors delelop a clearer sense of the relationships among these crimes. This Checklist will help practitioners c\ aluate the effecti~eness of policies and practices already in place and jdentifj weaknesses or gaps in their current approach. Fully imple- menting the Checklist's practices will help prosecution staff safely and sensitix ely intervene to protect tictirns and hold sex offenders accolintahle for their violent actions.

Promising Practices: Prosecution Response Sexual Assault The Importance of Prosecution Response to Sexual Assault Prosecution staff should be expected to take a serious, r ictim-centered approach to sexual assault cases and to approach these crimes in a manner that restores the I ictim's dignity and sense of control while decreasing the \ ictim's anxiety. 411 sexual assault cases, from misde- meanors to felonies, should be treated seriouslj. Cases inr olx ing acquaintances and intimate partners should be pursued as \igorously as those inrolving strangers. In an effort to facilitate a more coordinated response to sexual assault cases, many pros- ecution offices have developed interagencj agreements with other justice system personnel and community-based sexual assault serr ice providers" who interact with victims after an assault and during an inrestigation and prosecution. Many jurisdictions have developed Sexual Assault Yurse Examiner (SANE) programs to conduct forensic examinations and provide crisis inter~ention.Some jurisdictions ha~etaken additional steps to develop multi- disciplinarj specialized sexual assault response teams (SARTs) that promote efficient and effective intervention in sexual assault cases. including coordination with medical providers to maximize evidence collection. The concerns of sexual assault surli~orstjpicallj rebolve around safety and dealing with the trauma caused by the crime. Victims may viem imolvement in the criminal justice system as unfriendl! and potentiallj recic,tirnizing. They are often reluctant to report or follow through with prosecution because of pressures placed on them by their communities, family, friends, and the offender (particularly in cases where victims know their assailants). For some sexual assault survibors, their safetj, confidentiality, and emotional well-being may make the criminal justice system a less r iable option. Prosecutors must be aware of common reactions to this crime and the barriers victims face in seeking assistance. They should work with I ictim service providers to find creative ways to encourage ~ictimsto seek assistance, mhile respecting ~ictims'decisions about i~lrolvementin the criminal justice system. A sexual assault victim is more likely to choose to participate in criminal justice proceedings nhen she feels the prosecution staff is doing e~erythingpossible to support and protect her. 4t the same time, prosecutors must respect a victim's decision regarding whether or not to be inrolred in criminal justice proceedings and be milling to offer continued assistance and referrals elen if she decides not to partic- ipate. hlechanisms should he in place to ensure that sexual assault victims from under- setTed populations are able to communicate with prosecutors, and are informed of their legal rights and how the court s)steln can help them.

Promising Practices: Prosecution Response Sexual Assault 3 How to Use This Checklist This Checklist is divided into sections that correspond with the roles and responsibilities of each prosecution professional in\ olved in the office's ot era11 response to sexual assault. Each section includes a list of specific steps and strategi~sthat should be undertaken to help ensure optimal response to sexual assault cases. Some jurisdictions with more limited resources may find that responsibility for described functions may rest with a smaller number of staff or even a single prosecutor. In such cases, offices ma3 need to set priorities and customize their response in keeping with such limitations. By comparing the Checklist with current policies and practices, prosecution offices can determine which strategies are being successfully implemented and which represent opportu- nities for impro~~ement.Indi~idual prosecutor staff can use the Checklist to (1) evaluate their omn response during the course of a current case and (2) measure their past performance in sexual assault cases. The Checklist can also be used to train new personnel or provide con- tinuing education to \ eteran personnel. Supervisors can use the Checklist to e\ aluate how their staff are performing as indil-iduals and horn their unit is responding as a \$hole. hlanagers can use the Checklist to determine the entire ofice's effectiveness in responding to sexual assault and to de~elop an office action plan to improve response. The Checklist is not intended to pro\ ide prosecution offices with all the detailed information needed to create and implement comprehensive programs, policies, and protocols raised in the assessment process. The packet includes a reference guide to resources that do offer such detailed information and a referral list to organizations and agencies that can provide technical assistance regarding program de~elopment and implementation.

Review the points on the following list that are rehunt to your role in responding to sexual assault cci.ses. Check 08those points that you (or your ome) succesrny pedorm. Make note of the remaining items and develop a strategyfor addressing them.

Promising Practices: Prosecution Response Sexual Assault

.--4. - --a- Prosecutor Response C] If the decision is made not to proceed, notifi the victim immediately and explain the Screen Cases: reasons for the decision. Use the victim service Process all cases as q~~ickljias possible. specialist and advocates in this process to Obtain and review all case-related documen- ansmer the r ictim's questions and address her tation and evidence presently ax ailable from needs. lam enforcement. Regardless of whether or not the decision 4ssign highest prosecution priorib to repeat is made to go forward without the victim, offenders. offer her the same referrals, assistance, protection, and support that would be Recognizing the possible deterrent effect of accorded any victim. prosecution, screen in as many cases as pos- sible. Establish clear guidelines and rationale Conduct an Interview with the Victim: when not charging a case. In accordance with 01 Evaluate the need for an interpreter for victims ofice policy, have a supenisor sign off on all who use sign language or languages other cases where prosecution is declined. (See the than English. Do not ask family members, supen isor section for office policj concerning especially children, to translate for the victim. the establishment of a formal proced~~reto record supervisor sign-off in such cases.) Spend time with the victim to build trust aud to understand her experience of the crime. To the 15 If new circumstances arise or nem evidence evtent possible, personally conduct interviews comes to light in a case where prosecution mas with the \ictim rather than delegating that previously declined, reevaluate the decision to function to others. Consult with the victim on a charge and prosecute. regular basis to inform her of developments and to answer any questions. Establish early contact with the victim to explain the process and goals of prosecution. Coordinate with lam enforcement and ~ictim service providers to reduce the number of times the ~ictimis asked to recount her expe- rience. Ad1 ocates, specialists, and/or mental health professionals should be present to pro1 ide support during the interview if the T ictim wishes. Before any interview, explain to the victim that anything she says to you, the victim-witness specialist, or other members of the prosecution staff will not necessarily be held in confidence, gixen the rule requiring prosecutors to turn over any exculpatory evidence to the defendant. Suggest that the victim may be afforded greater confidentialig in communica- tions with community-based kictim advocates and counselors than can be offered bj system- based \ ictim-witness specialists. Pro1ide referrals to such community-based programs as appropriate. Explain to the victim that it may be necessary Determine if prosecution should go forward to ask questions of a very personal and even with the case. based on whether there is Intimate nature (e.g., whether the victim is sex- enough el idence to support the charges. Going ually acti~eor when she was last involved in a forward without victim testimony is acceptable, consensual sex act). Avoid questions that imply and sometimes preferable, particnlarlq in non- fault or 'f icti~n-blaming"(e.g., 317-rat were stranger sexual assault cases (e.g.. e\tder~cc- vou doing there?" or "'1'Chy didn't you...?"). based prosecution using other witnesses or Discuss with her the issues she faces as either excited utterances). a stranger or non-stranger victim of sexual

Promising Practices: Prosecution Response Sexual Assault 5

--- .-- - assault. Use checklists where ;~\ail;~bleto he111 conflicting statements by the xictim as soon a victim focus on her general and sensory as possible. memory associated with the crime. Inform the bictim that defense counsel, or Conduct the interIiew with the ~ictirnin some other defense representative, may pribate. Communicate respect, understanding. request an inten ien before trial. Advise the and support for the victirn and the issues ~ictimto notifj the prosecution staff of all she faces. Let the 1 ictim tell her story through requests for inten iews bj anyone claiming to completion at least once n ith minimal Inter- to represent the defendant or the state. Explain ruption. Absent clear el idence to the corltrar) , to the \ictinl that she has the right to refuse indicate to the 1 ictim that jot1 believe her stor). such interviews or request that the prosecutor ksk questions of the 1ictim in a supporti~c anci be present, if she chooses to accept. matter-of-fact tone of Ioice. Listen carefi~llqto 0 Stay in contact with the I ictim throughout the the answers. Be calm, direct, and patient. court process. Provide her with pertinent case Explain the prosecutor's role and respo~isibil- information (e.g., give her the criminal court ities to the victim. Ad1 ise the 1 ictim that she docket number to help her track court dates nil1 hale the opportuniu to consult wit11 ~ou arid pending motions). \lake sure she is not as the prosecutor, VI hether or riot it is her r~ght heing intimidated or threatened. Suggest as a matter of statutoq law. strategies and procedures available to the Re1 iew rele\ ant case-related issues TT ith the \. ictim to respond to such threats. victim, including procedural considerations 0 Instruct the 1ictim not to touch or tamper with (e.g., preliminar? hearings, motions, trial, seri- an? physical evidence she may discover after tencing, Iiolations of probation or protection the crime and to call law enforcement immedi- orders) and time sequence of c\ents before, atel). during, and after the assault. Pro\ ide fbllom -up contacts for the I ictim. Request Pre-trial Release Options: Explain what role the victim rnay play in thc 0 Carefully evaluate pre-trial release options. prosecution. Be realistic about anticipated Seek victim input and determine her fear events, issues, arid outcomes. Be as specific of further assaults by the defendant. as possible to give the victim a clear senst- [7 Request that bail be set based on the nature of what to expect. Explain why the \.ictini's of the crime, the danger to the victim and/or participatiori nlay be critical to the prosc- community (where allowed by law), and the cution of the case. Howe\.er, fitlly disclose the defendant's criminal history, contacts with the possible impact that the victim's participation community. and potential to maintain contact in the process may have on her ovvn interests with his attorne! arid the court. Probide the before exploring her ability and \villingness court with all evidence available to support to participate in the prosccution and to testify a request for denial of bail or high bail. during hearings. 3 M%ere a systernatic risk assessment shows that Explore the victim's ability anti \I-illingness to the danger posed by the defendant to the victim testifj- in court. Prosecutors should consider is significant, request holding the defendant in the victim's wishes as an important, but not protective custody during court proceedings. If necessarily determinative, factor' i11 decisions that initial request is rejected. request condi- concerning the filing or dismissing of a tions of release to reduce risk to the victim. charge (see below). ,4bserlt a cornpclling Provide the \-ictim with appropriate safety reason to the contrary, tht. \ ictim's input planning. should be carefully considered as part of thc 0 Consider making a pre-trial motion that vio- decision-making process. However, bictims lation of a condition of release will constitute should be made aware that the final decision "jumping bail." If the defendant subsequently coricerning case dispositior~ rests with the \. iolates such a condition, include charges prosecutor. Do not make pronlises to the for bail jumping in your case-in-chief. victim that you may not be able to kcep (e.p., 0 If request for high bail is denied, request "He will go to jail for what he did to yoi~:'). conditions that will maximize the victim's Prepare the victim for inteniens and deposi- safety (e.g., home arrest, intensive moni- tions. Meet with her to review her statement toring/super\.ision, electronic monitoring). and anticipate tiny potential questions. Clarih- d Request a no contact order at the arraignment or preliminary hearing to enhance victim

Promising Practices: Prosecution Response Sexual Assault safety. Re sure its provisions corer both direct a Strongly discourage police use of a polygraph and indirect contact with the victim. Ask the on victims, and refuse to consider the results of victim to report violations of orders immedi- such polygraphs in the prosecution process. ately. Such violations may be used strategically 0 In the case of serial sex offenders, charge to develop a record in support of an argument crimes committed against as many victims for bail revocation and pre-trial incarceration. as possible to help ensure offender accounta- Establish a reliable system to allo\v \.ictiins bility and to entitle all the offender's victims to report violations of protecti~c/nocontitct to the full range of rights and services under orders afier hours and on weekends. The the la\$. Consider charging a serial sex system shoiild include the means to facilitate offender under habitual offender statutes. an immediate response by Ian enforcement. If available, consider whether the defendant Consider legal options regarding threats, meets the criteria of the state's sexual predator harassment, stalking, and c.onfiscation of Ian. If so, charge and sentence accordingly. weapons, particularly as the) relate to Z] kboid listing information that would reveal the non-stranger cases. ~ictim'sidentity or current location on court 0 Determine whether a mental health ewluation documents, and request IT ai\ ers as needed in of the defendant is appropriate. Consider taking pleadings. the steps necessary to initiate an involuntary If the decision is made not to go forward with commitment of the defendant to a mental health prosecution, inform the \ ictim immediately facility if circumstances warrant. and explain the reasons for the decision. Establish an effecti\-esqstem with appropriiite Use the victim service specialist and advocates community corrections or detention and/or in this process to answer the \ ictim's questions mental health hcilities to afford the victim and address her needs. prompt notification when the defendant is 0 Refuse to file charges based on cross- released from incarceration or commitment. complaints bj the defendant against the victim, Provide the victim with a copy of the order that unless the evidence would clearly support outlines the conditions of the release. such charges. In addition, prokide Llle \ ictim m~ithtimely notification of all major dc~elopmentsin 0 amend any charging decision based on the case, including charging decisions, plea new information or evidence. Encourage agreements, hearing dates, rescheduled dates. law enforcement to communicate anj new and sentencing. information immediately, and make yourself a~iailableto discuss evidentiaq and inves- Request the court to place sexual assault cases tigative issues with law enforcement officers. on the "calendar priority" or "fast Irack" where this option is a\'ailable. 0 lnlplement office strategy, policy, and protocol in cases invol~ingmultiple offenders (e.g., plea File or Charge Offenses: agreements in exchange for testimony against Seek out other information on the defendant's co-defendants, joinder of cases, cross-com- history to establish the basis for additiorial plaints). (See office policy on multiple charges. Prior t.iolations against thy sanle offenders in the management section.) victim, if provable and within the statute of litn- Do not require the victim to sign a criminal itations, may be charged as separate crimes. complaint or attend pre-trial hearings if 3 Make sure charges reflect all crimes corn- her presence is not required. mitted (e.g., kidnapping, stalking, domestic Conduct a Thorough Investigation: violence). Consider the ad~isabilihof charg- ing lesser included offenses for purposes 0 \\%en possible. use in~estigatorsspecially of plea negotiations. trained to investigate sexual assault cases, to VI ork with ictims in a sensitive and effective Determine whether there was a restraining manner, and to facilitate the tictim's active order in effect at the time of the ofyense and participation and empowerment to charge accordingly (crimes that violate such the maximum extent possible. an order may constitute separate crimes and may qualif5 the case for sentencing \l.ork closely with investigating officers enhancements). Lo ensure the comprehensi\e collection of all reletant e~idenceand to protect the admissibility of that evidence at trial. (See

Promising Practices: Prosecution Response Sexual Assault 7

-- **. - --- office policy regarding coordination with to ensure an appropriate courtroom enxi- investigators in the management section.) ronment for the victim. Investigate high-risk misdemeanor cases Submit a written request for reciprocal Lhoroughly, and prepare for the trial as though discoverj from the defendant pursuant to local for a felony assault or homicide case. rules. Obtain a medical waiver from the victim for all File motions to exclude unreliable and relevant records. Inform the x.ictim that such prejudicial expert/scientific evidence under records may be subject to discovery, allowing Dauberl' and mebr move to limit the scope the defense access to such information. of such experts' testimony at trial. Review evidence collected by law enforcement, Bring a motlon to exclude defense expert including complete reports; written statements witnesses offered to testifj. that the defendant and documentation of excited utterances; lacks a certain profile. Demand an evidentiary signed medical releases; 911 tapes; Caller ID hearing on the lssue of whether any such boxes; photographs of injuries; photographs of offered profile is accepted within the psycho- the crime scene: photographs of the suspect; logical community, and be prepared to call weapons used; ballistics reports; broken or your own experts to contradict anyone who damaged property; broken or disabled telc- states that there is a profile. phones: torn, stained, or bloody clothing: Consider making a motion to request use of forensic evidence analysis; forensic medical closed-circuit television for victim testimony in results; witness statements; and diagrams of cases where facing the offender will so trau- the crime scene. Adhere to all guidelines speci- matize the x ictim as to inhibit or preclude her fying proper collection and storage of e~-idence, ability to testify. and maintain the chain of custody. L se a Request that the court close all sexual assault checklist to ensure that all such evidence is ill hearings and trials to media coxerage. Take the file and admissible at trial. appropriate measures to protect the victim's Develop evidence from medical records, identity from the media and the public. letters from the defendant, elidence of thc Strenuously resist defense requests for contin- defendant's prior felon? con1ictiorrs. past uances. Provide offers of proof (e.g., through and current restraining orders, past police expert testimony) of the negati~e impact such a reports. and the defendant's criminal record. delay may hale on the ~ictim'sor other Consider rex iewing court trariscripts of earlier wilnesses' abilitj to testifj. Wlen delays are proceedings I? hen appropriate. Conduct inter- necessary. procedures should be established to hiews with the defcndant(s) and defense ensure that cases are continued to dates m itnesses. agreeable to \ ictims and witnesses and that the Conduct Pre-trial Procedures reasons for the continuances are clearly stated and Discovery: on the record. 0 Use pre-trial nlotions in a sexual assault If a pre-trial hearing must be rescheduled, case to identify potential defenses. address consult with the victim to determine and anticipated defenses, compel discobery from resolve potential scheduling conflicts. the defendant, la) the groundnork for expprt If Appropriate, Negotiate a Plea: aitnesses, educate the court about hq issues. and protect the \ ictim. Use plea negotiations to further the goals of successful case outcomes. Resist pleas that Use motions in limine to establish the lower charges and penalties, particularly if any admissibility of e~idenccin order to reduce plea substantially alters the nature of the or eliminate sustainrd defense objectior~s underlying crime (e.g., kom a violent crime at trial. When seeking to limit admission of of sexual assault and battery to a nonviolent negative victim-related informatioti, balance crime such as disorderly conduct, destruction the interest of protecting the \'irtim frorn the of property, or indecent exposure). disclosure of embarrassing facts (e.g., that the victim had been drinking or engaged in \Wen considering a plea, balance the safew of prostitution) with ~naintainingthe victim's the victim and the community against holding believability and credibility with the jur). the offender accountable and expediting pros- ecution goals. Consider the seriousness of the Craft protecthe pre-trial motions to prevent offense, past record of the defendant, like- harassment of the victim in and out of' the lihood of rehabilitation, likelihood of future courtroom, to protect victim privacy, and

Promising Practices: Prosecution Response Sexual Assault violence and intimidation, effective impact of drug-facilitated assault (see section below), jail time, mailability of community super- assaults involving strangulation, past con- vision, and the I ictims' bill of rights. sensual sexual relations with the defendant, Consult with the victim regarding plea nepo- victim refusal to testifj or recanting previous tiations and consider hcr views regarding the statements). crimes pled to and the penal9 contemplated. Become conversant with strategies to address Take the interests of the Iictim into account in issues in typical sexual assault cases, such as the plea (e.g., restitution, safety, security). delayed reporting, alrohol/drug abuse, and Explain to the victim the reasons for the consent defenses. decision to accept a plea (e.g.. weaknesses of Become conversant with the distinct issues the evidence). and unique strategies related to stranger Object to requests for diversion in sexual persus non-stranger cases (e.g., jury bias assault cases. If your objection is overruled, against those sexually assaulted by a husband, request other sanctions and/or conditions to boyfriend, or date). accompany such a di\ersion in order to Use trial strategies that refute both a consent enhance offender accountability and ictirn defense and jurors' potential misconception safety (e.g., no contact with the pictim, court that a lack of overt physical injuries indicates monitoring). that the >ictim consented. E~ridenceof physical Strenuously object to attempts b) the defend- injuries that are inconsistent with consensual ant to enter a nolo contendre or 4Kord"lea activity-even microscopic tears, bruises, or to sexual assault charges. Push for a complete abrasions to the ~ictim'svulva, vagina, or disclosure from the defendant in the plea, lf anus-can be a poverful tool to refute a possible. consent defense. Work closely with forensic examiners to understand all aspects of the If the victim objects to a plea but the prose- forensic exam and resulting evidence and cutor decides to proceed with the plea, the reports. victim should have the opportunity to state [? Consider the order of witnesses to allow to the court her objection and the reasons for a logical development and flow of case for her objection, either through an oral or presentation. written impact statement at the hearing to Seek the admission of any 911 tapes to be accept the plea, or through the prosecutor played during the opening statement. upon submission of the plea. Bring the crime scene to the courtroom Use Trial Strategies: through physical ex idence, photographs Conduct voir dire to identify potential jurors' or videos, and graphic descriptions from biases and to address and dispel myths that witnesses. Use anatomy diagrams in lieu of affect violence against women cases. Begin photos to illustrate the victim's injuries. Use to educate the juq about your theoq at the technology to make your presentation to the earliest possible stage. Be prepared to argue jury as vivid and compelling as possible (e.g., against any defense motion to eliminate jurors animated crime recreation, LCD digital pro- solely on the basis of their personal or profes- jector presentations). Employ techniques and sional involvement with crime or 1iolence strategies that bring the harsh reality of the against women issues. Gauge jurors' per- crime alive to the jurors and put a human face specti\e regarding traditional areas of sexual on the real consequences of the crime. assault-related bias (e.g., delayed reporting. If photographs are ruled admissible, publish noa-stranger rape, drug/alcohol use, prior them to the jury to provide them with a clear sexual conduct). Request that jurors who indication of the nature and extent of the crime clearly displaj such biases be removed for and its consequences to the victim. cause. I? Become familiar with a range of evidentiary Develop a simple, consistent, arid clear theme rules, including those pertaining to the use or strategy for case presentation. Consider of expert witnesses, lay experts, forensic themes that focus on reliability of the victim, testimony, non-victim witnesses, exceptions to breach of trust by the defendant, identity of'the the hearsay rule, rape shield laws, and to lay defendant, or consistency of evidence. the foundation for admissibility of documents Become conversant with strategies to deal with and other evidence (e.g., medical records, complex issues that arise in such cases (e.g.,

Promising Practices: Prosecution Response Sexual Assault 9

---. - drug-facilitated sexual assault counselor cre- Identify and plan for the victim's safety dentials for lay experts). needs during the trial (e.g., extra bailiffs, posi- Determine whether your state allows the tioning of victim relative to defendant, admission of prior sexual conduct/of~enses. weapons search). Establish a separate and If so, use such elidenre to demonstrate a safe waiting room for the victim. pattern of behavior, establish the identity of an De\ elop strategies on how best to inform the unknown suspect, or show that the attack \%as judge and/or jurors if the victim will planned. not be testifying for the prosecution and to I se expert witnesses to educate judges and determine whether it is appropriate to juries about the unique issues and factlial cir- explain vvhj she is not testifying. cumstances that often accompanj sexual If the bictim mill testify, reviem with her in assault cases. Man? victim sen ice specialists advance the areas where she will not need and advocates may qualifj as experts 01. laj to testify (e.g.. rape shield-prohibited infor- experts in such cases. particularly in estab- mation). Prepare the 1 ictim for potential trick lishing patterns of subsequent c ictirn behar ior questions posed during cross-examination (e.g., post-traumatic stress disorder or rape- (e.g., "ITas your memory better then or now?"). related post-traumatic stress disorder). Instruct the victim that if the defense poses Use expert testimony on domestic \ iolence and such questions, she sllould pause and remain battered women when the sexual assault silent to gir e you an opportunitj to object. ~ictimis married to or dating the defendant Conduct the direct examination to allow the and has been battered bj the defendant as \%ell. victim to recreate the crime for the jury in as Ask the expert about myths of domestic \lo- much detail as possible. Introduce the victim's lence, statistics, case-relerant effects on testimony with some personal history and the I ictim, and whether the fiirts of the case at background to help the jury to identify with trial are consistent m ith the impact of domcstic the victim and her perspective. Inquire about tolence on battered women. her sensory and peripheral memory sur- 0 Use expert testimony to explain ahy the \ ict~m rounding the crime that can be corroborated may not show signs of physical injury as il by independent evidence or the testimony of result of the sexual assault (e.g., fear other witnesses (e.g., hearing a siren nearby at that resistance might result in more serlous the time of the attack). injuries, delayed reporting and therefore Ask the victim to recount her feelings of fear, delaled medical examination). panic, or other emotions she experienced 0 Ask medical personnel to describe the in addition to her physical and sensory per- demeanor of the \~ctimat the time of the ceptions at the time of the crime. Make sure euam/statement in order to help support Lhe the tictim is completelj~familiar with the \ ictim's storj and credibility. sequence of events before, during, and after Advise witnesses to immediatelj report to lam the assault. so these can be easily referenced enforcement any attempts bj the defendant out of order and context during the trial. to contact, threaten, or harass them. Object to defense attempts to undermine 1)evelop a trial notebook of arguments and the x ictim's credibility based on her conduct examination questions to support trial and pre- prior to the crime. Request that such claims be trial motions and strategies. scrutinized under the state's rape shield law and argue that the prior bad acts doctrine Victim-Rehted Testimony and should apply to such corlduct on the same bal- Evidence at Wal ancing basis as prior bad acts of the defendant (i.e., balancing the probatil-e versus preju- 0 Prepare the xictim for participation in the dicial 1alue). trial process. Meet with her in the courtroom Strenuously resist defense tactics intended where the trial mill take place. kt a location sep- rrierely to harass, embarrass, or intimidate the arate from the courtroom, relie~cthe questions victim during the trial process (e.g. harassing you expect to ask (mithout rehearsing the nlotions, requests for production of documents responses) and show tlle victim/n itness an) such as the victim's medical or psychological exhibits you plan to introduce. Explain how thc records). trial cvill likely unfold, arguments that will be made, defenses offered, and witnesses called. Request that the court allow a support Discuss the strategies and questions that the person-such as a relative, friend, or victim defense is likely to raise on cross-examination. service provider-to accompany the victim

Promislng Practices: Prosecution Response Sexual Assault

------..-- - to all court proceedings upon request or as If drug screens of the victim reveal the needed. presence of recreational drugs, make it clear Before the trial, explain the rule of seques- to the juq that the victim's voluntary use of tration to the xictim, if one exists in your juris- such drugs is not evidence of her consent to diction. Where practical, allow the I ictim to the sexual act in question. testifir as the first witness to preclude the bhether or not a positive toxicology result necessity of sequestration. is obtained in a case, use the testimony of expert witnesses, such as a toxicologist or Defense-Reluted Testimony pharmacologist, to explain the test results, at and Evidence W why positive test results were not obtained, Anticipate defenses (e.p., consent, alibi, dimin- and the effects of the drug on the 1ictim. ished capacity) and adjust trial strategy Use experts to testifj that one of the effects of accordingly. these drugs on the victim is unconsciousness Always fully cross-examine the defendant if he or a relaxed state, which could explain the takes the stand. Phrase questions simply so lack of physical injuries during a sexual that the defendant must testify to the sequence assault. of events in detail. 3 lJse friends and bar/restaumnt personnel to \.Wen cross-examining the defendant, axoid testib as to the atypical behav-ior of the victim gixing him an opportunity to refute your (e.g., she had only one drink and appeared to strongest arguments. Consider what answer be intoxicated). An obvious and inexplicable might be offered to each question. Prepare change in behavior can he offered as proof contingent follow -up questions based on his that a drug was used on the victim, even in anticipated answers. Conslder using rebuttal cases when objective proof (e.g., a blood toxi- witnesses to counter his claims and defenses. cology test) is not a~ailable. If you do not believe the defendant will gixe Develop Sentencing Strategies you an answer you seek, consider only raising (also see Court Response Checklists the issue in your closing argument. in this series): Address Special Issues Related to Drug- Recommend a sentencing hearing to permit facilitated Sexual Assault Cases: full disclosure of relevant information and to Aggressi~ely prosecute and creatixely charge give the victim the opportunity to present an in drug-facilitated sexual assault cases. impact statement. Argue that the defendant Consider the possibilib of charging other should be placed in custody pending the crimes committed in conjunction with the outcome of the hearing. sexual assault (e.g., possession and/or distn- Ensure that the court conducts an assessment bution of illegal drugs, sexual batterj with an regarding the risk the offender poses to the incapacitated victim, kidnapplng/false impris- lictim, her family, or the general public as onment, criminal negligence). part of the sentencing process. Be sensitive to the fact that the lack of memor5 Prox ide the x ictim with a copy of the court's may complicate the trauma for victims ot pre-sentence report to help her prepare drug-facilitated sexual assault. her xictim impact statement. Offer her In suspected cases of drug-facilitated sexual assistance in preparing such a statement if she assault, involve a forensic medical specialist at desires. Encourage (but do not require) her to the earliest point possible to rexiew the case make a written and/or lerbal statement facts and exidence and to assist In the dexel- reflecting how the crime has affected her life, opment of prosecution strategies. itlake a prch- physically , emotionally, and financially. Encourage the victim to include her sense of trial motion to allow your specialist to attend continued personal risk the offender poses for the trial in its entiretj. her and her opinion regarding possible safety Before ordering a full drug screen, the measures (e.g., sentence, conditions of release, in~estigatoror prosecutor should explain to no contact, x? eapons seizure). the victim what this test entails and obtain her informed consent. Explain that any test results that reveal that the xictim used recreational drugs may prove incriminating.

Promising Practices: Prosecution Response Sexual Assault 11

----"- Consult with the victim regarding the and potential outcomes of such programs and sentencing recommendation. If sentencing ho\v her interests and safety may be affected. guidelines apply, explain to her their impact on If the court orders completion of a sexual the case. Consider the tictim's opinion offender treatment program, recommend that regarding the nature and extent of the sentence it be combined with other sanctions (e.g., to be recommended. incarceration, intensive probation, no contact File a sentencing memorandum to pro\ ide the orders, community work service). Suggest court with the basis for all sanctions and pro- that the court consider longer, more intensive visio~lsrequested, including those related lo programs and provide specific sanctions offender disposition and v ictirn 5afety. for noncompliance. \$'hen recommendirig dispositions, consider Encourage the \ictirn to petition for ci~ril the nature and gravity of the offensc, the protection orders after acquittals. history of sexual or physical abuse, previous efforts at rehabilitation, the defendant's char- Develop Post-sentencing Strategies acter and current rehabilitative needs, and (also see Court Response Checklists in this series): the interests of the cornmunit) in protection and punishments. Ensure that all convictions are entered into criminal record databases and sexual Make recommendations for enhanced offender registries as appropriate. penalties, pursuant to statutory pro1isions, for defendants who have been previously Preserle evidence for use in future pro- con~ictedof one or more crimes, or for ceedings (e.g., appeals, motions to modify/ whom there is evidence of a long historj reduce sentence, re-trial, request for clemency, of sexual offenses against women. v iolation of protection orders). However, any of the victim's personal property held as evidence El Ensure that there are sufficient condibons on should be returned promptly once it is no the defendant's release (e.g., no contact \pith longer needed for evidentiaq purposes. the victim, surrender of firearms, surrender of computer(s), resiitution for unrcimbursed TVork collaborati\ ely with probation/parole expenses, abstinence fro111drngs/;rlcohol). officers and victim service providers and advo- cates to ensure enforcement of probation, Request a no contact order as part of sen- parole, and sentencing conditions. Initiate tencing, or a lifetime protection order, if that is retiew hearings or recharge when there are atailable under state statute. \. iolations. In consultation nith the iic-tirn, idelitif) Contact high-risk victims at regular intervals all expenses the victim has incurred as a result to elaluate their safetj needs and the risks of the crime, including any estimates for posed by their offenders, even in cases in immediately foreseeable expenses (e.g., cot111- v\ hich the defendants have been seling). Include a request for a restitlition order success full^ prosecuted and sanctioned. Such offenders to coter all such expenses as part of the sen- may continue to harass, threaten, stalk, or tence or plea agreement. Request that the order assault their t ictims. L se the victim contacts as be paid in full at the time of sentencing or on a an opportunity to inquire about other payment schedule that will satisfj the order in victimization needs, such as those related to the shortest timetable possible. Request resti- counseling, finances, or trauma to children. tution for victims of uncharged crimes perpe- trated as part of the defendant2 contirl~iinp Encourage the victim to report any violations pattern of sexual assaults. of the defendant's release conditions. Request that repeat offenders have their Respond in a timely manner to any post- future conduct and whereabouts closel~ sentence victim reauests for assistance. monitored and restricted to maxirnize Help ensurethat the victim continues to receive victim safetj and offender accountabilitj. notice of any post-sentencing detelopments

Agree to a defendant's participation III a (e.g.. post-sentencing probation or parole sex offender treatment program only if it is cer- hearings or decisions, release, commutation). tified by the state and/or the issociation for the Re~iervwith the victim the availability of a Treatment of Sexual Abuser\ (4'rSA) and onlj court-ordered Ill\ test of the defendant, if pro- as a part of sentencing (not prior to sentencing. \ ided for by la\%,.If If e \ lctim opts to have the so that fact will not serve as a mitigating fcictor defendant tested, discuss the requirements of for the benefit of the defendant during sen- such mandatory testing provisions with the tencing). Educate the victim about the issues

Promising Practices: Prosecution Response Sexual Assault defendant and defense counsel. Proxide the to meet statistical reporting requirements victim with counseling regarding her own IJTI concerning sexual assault cases. testing issues and options. 0 Gi5e the victim the name and contact infor- mation of the prosecutor and victim/witness Address Victim Interests and Safety specialist assigned to her case, in writing, as Issues Throughout the Process: soon as the? are known. If a new prosecutor is @ Address x ictim safetj issues throughout subsequently assigned the case, immediately the entire criminal justice process. Ihaluatc gix e the victim that prosecutor's contact infor- the likelihood of continued xiolence by mation. the defendant from the time of the initial 0 Encourage the x ictim to keep her contact infor- interviem through the conclusion of the mation current with your office and/or provide trial. Use assessment tools to help make this the name and number of a family member or determination. Immediatelj pursue strategies other confidant who will always know how to that will most significant11 cnlia~lcethe reach her. ~ictim'ssense of safety. Be aware of the different safety issues facing victims of stranger and non-stranger sexual assaults. Victimj'itness Specialist Response Work with the Prosecutor Assigned to Each Case to: Sen-e as a liaison between the criminal justice system agencies and the victim. 0 Meet with the victim at the earliest point possible. Develop strategies to address the victim's issues, concerns, and fears identified during the course of such discussions. Be aware of discoverability issues related to notes taken in conjunction with victim inten-'lem's. 0 Work co1laboratir;ely with communitj-based advocates to address the full range of victim needs that go beyond iypical justice system response (e.g., emergency housing, economic assistance). 0 Provide the victim with infbrmation about her statutory rights, legal remedies, and the availability of community assistance and services programs. Provide the victim with information about her rights to be present, informed, and heard at critical hearings throughout the criminal justice process and her right to consult with the prosecutor where allowed or mandated by state law. 7 Protect the victim's privacy and confidentiality. T.Tiork closely with community-based viclini IIowever, make clear to the victim that com- advocates and victimhvitness specialists to munications with you or other prosecution staff support the victim through iinte~vie~vsand may not he confidential and that, by law, excul- other court procedures and with other needs. patory ex~idencemust be turned over to the C Work with victim advocates and spccialists defendant. Inform her that communications to develop a process to maintain the confi- with community-based advocates may enjoy a dentiality of the x ictim's identity and location higher degree of confidentiality. when necessary. Adherc to polices and Ilelp the victim's family with secondary vic- practices that discourage disclosure of such timization issues (e.g., counseling for children confidential information to and by the media. tvho may have witnessed the assault). Use anonymous or "blind" case tracking

Prornislng Practices: Prosecut~onResponse Sexual Assault 13

------Develop a process to familiarize victims f'ol.ms. Explain m hat reimbursement victims with the criminal court system, general can receive for testieing. trial procedures, and courtroom protocol (e.g.. C Provide the victim with assistance in preparing written materials, videos the l~ictirn \ ictim impact statements and ensure that the can review on her own, orientation sessions completed statement is included in the ease for groups of victims that include an oppor- record and court file with any necessary confi- tunity to ask questions). dentiality regarding the victim's current Describe to the victim her role in the crinzinal address. justice process. Encourage the victim's active D Ensure that the victim is notified of the involvement in decision-making processes offender's release (e.g.. bail, parole, work regarding charging, pr-eparation for trial and release, furlough, end of sentence release) in a plea negotiations, sentencing, and pre- and timely manner. Provide the victim with a copy post-trial conditions of releasr. of an\ conditions related to the release. Provlde the victim and witnesses (particularl! child m itnesses) 15 ith courtrooni orientation and trial preparation to minimize thc trauma Supervisor Response of testifjing in sexual assault cases. 0 O\ersee prosecution compliance with agency and interagency policy and procedures related Consider allowing the victim to vier?, the to sexual assault. testimony of witnesses in unrelated sexual assault cases. Critique the \+-itnesses' Pro1ide staff with updates and continuing edu- performance with the victim with specific. ref- cation concerning new statutes and case law erence to the current case. related to sexual assault. Suggest that the victim participate in therap! Create forms and checklists to facilitate or counseling, or support groups, to diminish compliance with office policies. the trauma of the trial. Help the victim srt 0 Problem-sohe and engage in critical thinking up an appointment or obtain referrals from with assistant prosecutors and other staff on experienced, reliable mental health profes- handling complex cases. sionals in the community and coinrnll nit?-- 0 4ssess 15 hether prosecution response meets based programs. the goals of 1 ictin~safeh and offender account- Assist the victim with safety planning as nec- ability. essary. Review the plan with the victim on a Determine the need for additional training periodic basis or as circumsti~nceswarratit. or supercision of prosecution staff. Provide the victim with notice of' trial and 0 Establish and develop working relationships hearing dates, times, and places. Pro\-ide her m ith the U.S. Attorney's Ofice and prosecutors with prompt notice of postponements and from neighboring jurisdictions. rescheduling. C Confirm sen-ice of subpoenas and protection orders. Data Collection Provide the victim with a conrt accompani- Create databases to expedite docketing, ment during trial and related hearings. if caseload management, and timely rictim requested. notification. Offer to intervene with the ictini's e~nployer lnclt~dein the office databases information or school to address issues that may arise as on each case, the nature of the charges, and the a result of her victimization or involveme~it continuing status of the case up to and after with the prosecution of the cast,. sentencing. 3 Uotib the victim of her rights to \tat? and Establish a system that tracks prosecution federal \~ctimcornpens;it~on.restltl~tlon,

Promising Practices: Prosecution Response Sexual Assault Management Response such a team might include communi@-based ictim adbocates, law enforcement, court per- Develop Personnel Policies sonnel, corrections and detention, probation to Assist Prosecutor: ant1 parole, medical and psychological profes- 0 Establish sexual assault unlts in larger offices sionals. pri\ate assistance organizations, and or create specialists in smaller or satellite priblic sen ice agencies. Establish agreements oftices. De~eloppolicies and practices that or "memoranda of understanding" (MOUs) rnjnirnize the loss of such specialiyed sexual lo guide coordinated efforts of the multidisci- assault expertise as the result of profnotion, plinary team. reassignment. or turnover (e.g., rotate U At a minimum, establish policies and pro- prosecutors through periods of specialitrd grams that enhance coordination behveen assignment to sexual assault cases). prosecutors and law enforcement. In par- 0 Dei elop a system to monitor prosecution corn- ticular. give investigating officers full access to phance with protocols. and re\ ~scpol~ciesi~rld the legal expertise and case development expe- practices as necessarj. rience of prosecutors to ensure the comprehensive collection of all necessary C Establish job performance standards for e\ idence and to protect the adnlissibility of that resporlse lo sexual assault cases. Reh~ardpros- P\ idence. Prosecutors can offer guidance con- ecutors and staff m ho meet lhose standards, cerning issues related to search 13 arrants, and provide additional educabor~or corrccti\e arrest, charging, evidence collection and measures for those 13 ho fail to meet them. preservation, weapons confisci~tion,and victim 0 Create incentives so that assignment to sexiii~l protection. assault \v111 be viewed as a position of elmated L? Place equal emphasis on nlisdemeanor authorih and autonorn! or a pro111otion. and fixlony offenses. Assign experienced 0 Ilire staff who reflect the dc~nograph~csof prosecutors to misdemeanor cases. the co~nmunibthey sene. 17 Ensure that prosecution protocols specifically 0 Mentor new or less exper~encedprosecutors. prohibit charging victims who recant their tes- Ha\ e new prosecutors serve as "second rhair" timon? 13 ith perjuq or other penalties. Include to seasoned prosecutors expcricnccd with :I prohision in tlie protocol that details horn sexual assault cases. prosecutors should work with victims and advocates if a victim recants or warns that she Set Tone Tl~roughthe Development miry recant of Protocols and Practices, Training, and Other Mechanisms: Review policies, programs, and facilities to identify and remove barriers to access by n Delelop and inlplement a management plan to victims with special cognitive and physical allocate sufficient funds, resolirccs, and pcr- needs. sonnel to respond appropriately and fi~ll?to the crime of sexual assault. 3 Develop policies and programs to ensure that sign language or non-English translators Establish protocols and practices grounded in are mailable to victims who may need them an understanding of violence against woinrn throughout the criminal justice process that promote victim safety and c.onfidn~tiitlity services (e.g., translation of materials into rel- and hold offenders accountable. Kc\ise evant languages. 24-hour access to trans- protocols as needed. lation and interpreter services, develop- 0 Craft up-to-date policies for sexual ass,i~llt [nental and age-appropriate materials, trans- cases that TT ill strengthctl the prosecution's portation, babysitting services). Make sure abilit! to respond to cascs consrstetitl> and protocol reflects policies against the use of proactiielj, regardless of nhlch prosecutor filnlily members, particularly children, for is responsible for the case. interpretation. Use vertical prosecrltion whene\.er possible I)cvr]op strategies, policies, and protocols to to promote a consisterlt prosecutoriiil ap- address cases involving multiple offenders. proach and to afford victims the rnasin~um Establish a for obtaining the services degree of conifort and trust. of specially trained investigators to work a Where possible, use a ~iiultidiscipliriarylean] sexual asstiult cases, either by establishing approach to address the physical, emotiorial, in-house training programs to such financial, and legal needs of a sexual assault victim. In addition to the proserlltio~i ~tilff,

Promising Practices: Prosecution Response Sexual Assault 15 expertise on staff or b~ using investigators \I.'ork with members of communities of color from other agencies. and other undersen ed populations to identify Support continuing training on violence community-specific problems in response against women issues for staff throughoul to sexual assault and explore solutions. the ofice, including inbestigators, \ictim/ Based on communitj input, make changes witness specialists, and prosecutors. to eliminate the barriers that deny victims Provide specialized training for prosecutors on from underserved populations access to appro- issues related to drug-facilitated sexual priate services. assaults, including specialized in\ estigati~c Keep police informed of evolving state laws strategies, trial techniques, and ps~chological and regulations in the field of iolence against needs of victims. women through roll-call trainings, in-service, Provide staff training and education to and educational materials. establish competency and enhance prose- Elicit input from ~ictimadvocates and sur- cution response to cultural populations within T ivors in de\ eloping safety planning materials your jurisdiction. offered by prosecution staff. Establish a formal procedural process to Coordinate with federal, state, and other local allow supervisors to affirm or o\ errule the deci- prosecutors to ensure that individual cases are sions of prosecutors under their supenision to brought in the right jurisdiction and that the decline prosecution in sexual assault cases. fullest possible range of charges are filed, Develop policies and protocols that identif~ including such charges as interstate domestic conflicts of interest between the defendant and blolence or stalking, neapon possession or the prosecution office (particularly in rural transport, and violations under the full faith jurisdictions). If a conflict exists. de\elop and credit for protection orders under the pro- policies to allow for prosecution by a prosc- \ isions of the Violence kgainst Women cutor without a conflict. kct (L 4\1:4). De~clopa policy and protocol to allow Provide Leadership in Justice System lictims and citizens to lodge complaints and Community Initiatives to corlcerning prosecution response to sexual Stop Violence Against Women: assault cases, and to investigate and address Given the prosecutor's role as ;I bridge such complaints. between the police, courts, probation, and cor- Support legislation and/or court rules that rections agencies, support coordination among \zould allo~v the state attorney general all branches of the crirninal justicr system. original jurisdiction to provide an alternative Also establish working relationships with where local prosecutors mould otherwise agencies and organizations outside the retain sole discretion to prosecute sexual criminal justice system. particula1.1~ assault cases. communitybased victim advocates (e.g.. joint Support legislation that reflects the rights, trainings, public education?policy advocacy). interests, and needs of sexual assault victims Facilitate and participate in efforts to cdu- (e.g., enhanced accountability for ju~enilesex cate and solicit support froni public and privatc offenders, revisions that focus on offender entities concerning sexual assault issues rather than ~ictim conduct, increased and programs (e.g.,allied government agencies, funding for sexual assault programs). members of the media. privatc organizations I'romote community education and zero and clubs). tolerance of violence against women.

Promising Practices: Prosecution Response Sexual Assault

". &- .- ."..-- 1. Ronet Bachman and Linda Saltzrnar~."Violence %painstL111lnei1: Lstimates firm the Hedesigned Sunej," Hurrau qfJustice Slatiqtics Sprrial Report. U.S. Departmerit of J~rstice.Bureau c~fJusticr Slalist~cs,Washirrgton. D.C. (Augrst 1995). 2. Patricia Tjadeu and liancy Thoennes. \hiionrrl 1 kbtre 4gainst llornt~n.Suny?, Yational Institute of Justice, I1.S. Department of Justice (2000). Editor's 11ote: Wlile victims and offmders of sexual assault are both nomen and men, the vast majority of victims are female and offenders are male (see Patricia Tjader~and Nanc) 'rhoenrles abore). For this reason, as well as for consistency of style, this Checklist refers to tictirns as nornerl and offerldrrs ;ISmeu. 3. Ibid. 4. Ihid. 5. Karen Raker, "Orerall Crime Victirnizati~tr~Rate 1)rcrr;isrs I(Po... RII~R:~prIr~rr.rose 20oto." National Sexual Violence Reso~lrceCenter, Enola, PA (September 5.2000). 6. Pcoplc who provide sen-ices to victims are based both insidc ;ind outside the c~iminaljustice qstem. While they may perform many of'thr samr firnctions, the scope of their work ilnd rren the ln\v that governs the delivery of their services may vary considerably. \dditionall!. their titlrs may very froni jurisdiction to jurisdiction. Srmicc prtrvidrrs based in prosecutors' ofices are often referred to as victirnlwitncss coordinators or specialists. Those mho opcLrnteU~truph communih-based nonprofit organizations may be referred to as crisis counselors or victim advocates. F01. purposes of this pr~blicati~~r~,the term '\ ictirnlwitness specialist" is intended to refer or~ly to sjstem-based service providers. The term "viclirn atlrocate" refers nr~l! to community-based service providers. The phrase "victim serbice pro\ ider" is used genericall) to refer to both. Z 1)uubrrt 1: Zlerrell Dou. l'hurmar~uticuls,Irir:, 509 L1.S. 579 (l!J

Sexual Assault