Part 2 - Advocating for Victims of Sex Crimes During the Police Investigation

~ PART 2 ~

• Restraining Orders, and Other Protections for Sex Crime Victims

• The Sex Crime Victim Interview

• Monitoring and Evaluating the Evidence

Restraining Orders, and Other Protections for Sex Crime Victims.

In almost all sex crime cases where the victim and perpetrator know each other, sooner or later the perpetrator starts harassing the victim in any one of a myriad of ways. This may also occur when the perpetrator is someone unknown to the victim. If police are serious about protecting their cases, they need to be extra vigilant about protecting the victims. But with astounding frequency they are not.

In addition to the common problem of police ignoring sex crime victim safety, there can also be legitimate reasons police want to hold off on having the victim obtain a restraining order, as we'll explain further on. This further exacerbates issues of victim safety.

Nonetheless, there are a couple things to always keep in mind. The ultimate decision about if and when to seek a restraining order rests with the victim. And, second, even though a victim may not have a restraining order, there is still much that police can and should do to protect the victim.

Emergency Protective Orders and Domestic Violence Restraining orders: Because about 50% of sex crimes cases are perpetrated by a family member or a domestic or dating partner, you might expect that officers in these particular cases would seek an emergency protective order or suggest that the victim obtain a domestic violence restraining order, just as they do in domestic violence cases. But right away you run into a common dilemma in sex crimes cases.

In order to make any protective order viable, the suspect has to be served with the order. But in many sex crimes investigations, officers don't want to alert the suspect that he's being investigated. Additionally, many investigators are hesitant to carry out pretext calls while the suspect is under orders of restraint. There is a legitimate concern that defense attorneys may object to introducing this kind of evidence when obtained while the suspect is restrained. The obvious downside is that this means sex crimes victims, even when the suspect is a domestic relation, are often unprotected by restraining orders during the investigation.

This is also one more reason police should carry out their investigative steps promptly, so victims can obtain appropriate restraining orders as soon after reporting the crime as possible.

Criminal Protective Orders: Criminal protective orders can't be issued until a criminal court has jurisdiction over the defendant, and this doesn't occur until charges are filed. Sex crimes charges usually aren't filed until after completion of the investigation. Since sex crimes investigations often take weeks, or months, this, again, often leaves victims unprotected during what can be a lengthy investigation.

Once a sex crime is charged by the prosecutor, all sex crimes victims should be protected with a criminal protective order.

Other Forms of Restraining Orders

Most states have civil harassment restraining orders that are available to victims of any and all forms of harassment, including, of course, sexual assault. However, these orders are generally weak and difficult to enforce. Some states, like Texas and Wisconsin, have recognized the restraining order gaps that exist for many sexual assault victims, and provide a stronger protective order specifically for sex crimes victims.

The American Bar Association has put together a state-by-state summary of the kinds of restraining orders available to sexual assault victims. This summary can be seen at the first link below. The second and third link below describe in more detail the specific restraining orders that are being made available to sexual assault victims in Texas and Wisconsin.

American Bar Association, Sexual Assault Restraining Order

• by State (2009)

Restraining Orders for Sexual Assault Victims

• Texas
• Wisconsin

Other Things Police Can and Should Do
to Protect Sex Crime Victims:

First, police should not allow their investigation to drag on. Police go on and on in public proclamations about how rape is the most serious crime after homicide. Yet when it comes to investigating these crimes, they notoriously drag their feet, letting days, weeks, and even months go by without taking the most obvious steps to move the case along.

As the victim's advocate, one of the most important things you can do in sex crimes cases is to make sure the investigation keeps moving forward. Barring mass disaster, there is just no excuse for police to let even days go by without moving the investigation forward.

Second, police can pick up the phone and coax and warn people to cease and desist. Sex crime perpetrators frequently marshal other people to their side and turn them against the victim. These people usually aren't criminals themselves, and are often being swayed by the perpetrator's manipulations and intimidations. When this starts, a police officer who is willing to pick up the phone and make a simple call to these people is usually very effective in stopping the dynamic.

When people see that police care enough about the victim to give them a call, that alone is usually enough to at least keep them from ganging up with the perpetrator. And if police won't make those calls, there's no reason you can't do it as the victim's advocate. Don't underestimate the power of your own persuasion to help people see that they at least need to let the process proceed. So don't hesitate to pick up the phone yourself and call anyone from family members to co-workers to school officials to get this dynamic in check.

Third, police can and should enforce the law that makes dissuading a witness a crime. Any attempt by anyone to get the victim to withdraw from the criminal justice process is committing the crime of 'dissuading a witness'. No force or threat of force is required to make this a crime. The most simple verbal attempt to dissuade the victim is a crime.

Police should not only act promptly to write up new crime reports when this occurs, they, and you, should also inform the victim about this law ahead of time. Tell her police need to know immediately if anyone is attempting to dissuade her from pursuing the case.

The Sex Crime Victim Interview

The all too common problem with sex crime victim interviews is that the detective fails in multiple ways to get the victim's full story, and as such, valuable evidence and evidence leads are lost. The most immediate prevention of this problem is good preparation of the victim.

Very few officers have the combination of skill, thoroughness, and sensitivity to help sex crime victims fully tell their stories. As the study referenced in the introduction to this text demonstrates, many sex crimes detectives quickly suspect the victims of lying. Add to this the possibility of clumsily phrased questions, officer discomfort, judgemental comments and body language, sexist stereotypes, disregard of victim needs, or overall cluelessness, and any and all of these common police faults frequently result in a victim interviews that not only miss critical evidence leads, they so upset the victim that she withholds information, or, not infrequently, fully withdraws entirely from the case.

Making the problem worse is the fact that sex crime victims usually arrive at these interviews quite understandably anxious and uncomfortable themselves. This mix of biased and inadequate investigators with anxious victims easily sets off a vicious cycle of the victim shutting down, leading to an increasingly judgemental detective, to an increasingly withdrawing victim. Truly, it's hard to think of a more disastrous mismatch than current law enforcement culture and the needs of sex crime victims.

Short of changing police culture on the spot, good preparation of the victim can make a world of difference in helping to turn this dynamic around. If the victim goes into the interview feeling strong, with an understanding of common investigator limitations, and a willingness to offer information, deficiencies of the investigator's interview skills can usually be overcome.

So prepare the victim ahead of time:

a) Explain that she may get a perfectly competent, sympathetic detective, but in the likely case she does not, you're going to help her prepare for that. A good place to start is to tell the victim that police often don't do well on meeting victims' emotional needs. They are usually much more receptive and comfortable just getting the facts and evidence they need.

So if the victim can adopt a frame of mind of partnering with the detective, it can help set the stage for a more satisfactory interview for both the victim and the detective.

b) Explain the importance of being accompanied, and her right to be accompanied. Prepare her for how to handle a possible police refusal of that right. It's especially important that victims be accompanied during the main victim interview. There may be some victims who want to do the interview alone. But, for most, having a friend and advocate present not only makes the victim feel strong, it also serves to put the officer on his or her best behavior.

Many states have laws giving sexual assault victims the right to be accompanied throughout the criminal justice process. The reason these laws have been passed in the first place is because so many police, left to their own devices, have a strong tendency to isolate victims from their support, and then use that isolation to shortchange the case.

The reasons police usually give for wanting to interview the victim alone are bogus. Police may say they don't want the victim to be embarrassed by personal questions, or they say it will make whoever accompanies the victim into a witness in the case who will then have to testify, and other such nonsense.

(The one exception where police have a legitimate reason to exclude a friend, (and never the advocate), is when that friend is already a witness in the case.)

The real reason so many police want to isolate the victim during the interview is because they themselves are uncomfortable, and/or because they want to convince the victim the case is too weak to prosecute, and/or, they want to short shrift the interview. And that's why the laws were put in place.

Note: In most states, victims of child sexual assault or abuse are not granted the right to have a friend or family member present during the interview. A victim advocate, however, should be allowed to be present during child sexual assault and sex abuse cases. Read your law carefully. It's critical an advocate be present for many reasons, but in child sexual assault cases it's especially important to catch any attempt by law enforcement to falsely downgrade the victim's statement.

c) Prepare for this common scenario:

All too often the victim will be sitting in the waiting area for her interview with her support persons when the officer opens the door and says he wants to interview the victim alone. This puts the victim and her support persons in the terrible position of either having to confront the officer right before the interview, or else leave her support persons behind.

It's essential to go over this possible scenario with the victim ahead of time, and to have a plan of what she can say and do so you are all on the same page. Without preparation, most victims suddenly caught in this situation will end up going into the interview alone. So prepare and come to an agreement ahead of time on what she will say in that situation, or on what she wants you to say in that situation.

She can say to the officer, "Look, I want to cooperate with this investigation, but I won't be comfortable without my friends." Or, if the victim doesn't feel like she'll be able to say this, tell her that you, as her advocate, can say it. Even then, however, the officer will likely turn back to the victim for affirmation. Ultimately, even if you, the advocate, do most of the talking, the victim will have to be willing to say to the officer that she's not willing to do the interview without her support persons.

Sometimes that's enough, and the officer invites everyone in. But, other times, you'll need to take it a step further and say something like, "If you're not willing to accept the advocate and support persons in the interview, we need to discuss this now with a superior officer." That almost always works, and if it doesn't, don't hesitate a minute to go down the hall and knock on the door of a superior officer, or pick up your cell phone and do the same.

The importance of working this out with the victim ahead of time can't be emphasized enough, unless, of course, the victim specifically wants to be alone during the interview.

Keep in mind that any officer that continues to insist on isolating the victim is usually up to no good. Don't let the police manipulate her into leaving her advocate and friends outside the door.

d) Explain the specific kinds of problems police often have with these interviews. Explain that more likely than not, she will get a detective who is limited in one way or another. Common deficiencies of the interviewer may be a lack of sensitivity, judgemental and biased attitudes, an accusatory tone, officer discomfort with sexual topics, failure to ask for sufficient details, failure to guide and partner with the victim in exploring evidence leads, and more.

Explain that even though she may get a police interviewer who isn't fully supportive or competent, if she can keep in mind this is the officer's problem, and not take it personally, she can still get the needed information on the record anyway.

If the victim is interested, you can refer her to one or the other of the articles referenced here which will give her more detail on frequent problems with police sex crimes investigations.

Police Investigation of Rapes - Roadblocks and Solutions scroll down linked page for study abstract and link to full document

Improving Sex Crime Victim Interviews, 12 Do's and Don'ts

e) Explain that once in the interview, the victim shouldn't hesitate to offer information even if the relevant questions aren't asked. This can be really hard for sex crimes victims to do. It's hard enough for most anyone to talk about a sex crime even when asked the right questions in a sympathetic way. But giving more information than you're being asked for in these cases can feel really out of place. Nonetheless, sex crime victims can give a major boost to the case by going into the interview prepared to make sure all the information gets communicated.

f) Explain the critical importance of telling the truth in all details. Though this topic was discussed in Part 1 of this text, it's such a common stumbling block it's worth mentioning again.

Sex crimes victims usually have very good reasons for covering aspects of their stories. They want to be believed. They don't want to be judged. And they are absolutely right in anticipating a possible rash of victim blaming that lays in wait for any but the most-virgin-of-the-virgins victim story. As a result, it is very, very common for victims to withhold, obfuscate, or lie about aspects of their experience, even though the sex crime itself actually occurred.

Once the police sense this distortion, however, they quickly jump to their preconceived biases that many, if not most, 'sex crime victims' are making false reports. And so it is, in case after case, the victim can't win for losing unless she tells the truth, the whole truth, and nothing but the truth.

Help victims understand all this before the interview and you can make a world of difference. Go over with her the kinds of things other sex crimes victims often have trouble talking about with police, such using drugs, being drunk, violating probation, disobeying family rules, involvement in prostitution, or just plain embarrassing sexual details, etc., Help her find ways to talk about it. Tell her you'll help her with any repercussions.

And then remind her of this...

g) If you find out later that the victim has lied or withheld embarrassing information from police, you and the victim can usually fix it. Explain that many, many sex crime victims don't tell the whole story to police for good reasons. And explain that, though it's much better to give accurate details the first time through, errors can, and should, be corrected. Then you and she go to the police together and explain why this has happened.

If the detective assigned to the case doesn't understand, go to that detective's supervisor, or go as high as you need to go. Often on hearing that a victim is changing any aspect of the story, the detective will say the victim has lost credibility and therefore the case is not viable. This is false, false, false.

Don't let police discard a case just because a victim belatedly reveals details that were covered up for perfectly explainable reasons. It's way past time for police to start understanding the pressures on sex crime victims, and to incorporate that understanding into their investigations, and for DA's to incorporate it into their prosecutions.

h) Help the victim become aware of the kinds of the evidence in her case. Helping a victim become attuned to the array of evidence in her case is one of the best ways to help the victim navigate the main victim interview, whether or not the detective is skilled enough to elicit the information themselves. When a victim has a general understanding of the evidence in their case, it greatly increases the chances that key information will get communicated to the detective.

If you and the victim can begin to sift through her experience for leads to evidence, not only can it help overcome investigator gaps, it can also help the victim overcome feelings of helplessness as she begins to see the strengths in her case, and begins to take an active role in pulling the pieces together.

So if the victim is willing, go through the story with her with the express goal of fishing out the kinds of things that can be evidence and evidence leads. The section that follows a few paragraphs down should help guide you through that process.

Once the victim is aware of the possible array of evidence and evidence leads, suggest that she keep mulling over her experience before the interview with evidence in mind, and she's likely to come up with even more evidence. In addition, if there were witnesses in the case, whether to the perpetrator's pre or post-attack behavior, or to her own post-attack behavior, have her bring as much information as possible to the interview regarding how to contact those people.

Explain that, no doubt, all this is the detective's job. But the more the victim can mentally partner in the role of cataloguing the evidence, the more likely the detective is going to follow through, and the less likely the detective is to shelve the case.

Monitoring and Evaluating the Evidence

Many advocates don't feel that evaluating and monitoring the evidence in a case is part of their job. But because so many police and prosecutors falsely claim that there's "not enough evidence", in particular in sex crimes cases, as the victim's advocate you need to know when to suspect that's what may be happening, and know how to argue for the victim's case.

There's only way you can know if these claims of 'not enough evidence' are legitimate or if they're a cover for law enforcement unwillingness to do the case. You need to have a good sense of the evidence and potential evidence in the case, and a good idea which of that evidence has been fully investigated and entered into the case.

Trying to advocate for sex crimes victims without paying close attention to the evidence is like trying to play poker without looking at the cards in your hand.

Some of the ways you can get an idea of the evidence in the case.

   * Focused conversations with the victim. Usually the most productive way to get an idea of the evidence in a sex crimes case is by you and the victim going over her story with the express purpose of noting the evidence and evidence leads, and of noting police response to that evidence. Conversations focused on fishing out the evidence can be extremely beneficial to both you and the victim. Together, you'll come away with a good sense of the evidence in the case. The victim will come away with an understanding of how to mull through the details of her experience for more evidence. And you'll both likely come up with things the victim might not have thought significant enough to tell police.

Going over the evidence with the victim also gives victims a solid sense of the strengths of her case, and helps victims communicate these things better to police.

   * Conversations with the investigator. Sex crimes investigators are often reluctant to discuss the specifics of case evidence with victims and advocates. However, if you've been able to establish a comfortable working relationship with the officer, and especially if you have a little gift of gab, many cops will begin to open up about the progress of the case. Also, as mentioned before, establishing an ongoing working relationship with the investigator can be a powerful motivating factor in getting police to treat the case more seriously. It's just human nature to do a better job when someone else seems to care.

   * Search warrants and arrest warrants. If there's been a search warrant or an arrest warrant issued in the case, these documents are usually open to the public and available at the courthouse records department. The value of these documents is that the investigator requesting the warrant has listed the evidence supporting the request, which is the same as the evidence supporting the case. If you obtain these documents, they will usually contain a laundry list of the evidence available in the case up to the date of the warrant request.

For a more detailed account of how to monitor and evaluate evidence in violence against women cases, and for information on how to Enter Evidence into the case yourself, see:

How to Monitor, Evaluate, and Enter Evidence into the Case Yourself

An Abbreviated overview of possible evidence in sex crimes cases:

Anything and everything can be evidence. Depending on the circumstances, anything and everything can be evidence. Anything from store receipts to grass stains to speech patterns, to the time of sunrise...anything can be evidence. The following is just a general framework you can use for fishing out the possibilities.

The physical evidence, evidence of injuries, and DNA that may have been found on the medical rape exam.

The perpetrator's pre-assault behavior: Most attackers plan their sexual assault ahead of time, and they maneuver the situation to set the stage to isolate and entrap the victim. If carefully inspected, the perpetrator's pre-attack behavior will usually have elements that indicate the attacker's intent. Even though the attack itself usually doesn't have witnesses, the perpetrator's pre-attack behavior does often have witnesses. Abruptly ditching friends, making strange excuses for getting the victim alone, emails, text messages, all may be strong evidence in corroborating the case. Looking back, can the victim see any way in which she was getting set up for the attack?

The perpetrator's attack behavior and the victim's responses: The details of the assault itself, including spoken words, are always important. Even though there usually aren't witnesses to the attack itself, the more details the investigator has, the better the investigator can taylor his or her later interrogation of the suspect. Those details can also be matched against the stories of other victims of the same perpetrator, or other attempts.

The victim's behavior during the attack usually holds valuable evidence of the victim's level of fear and lack of consent. Any indications of the victim's fear, along with descriptions of what she feared might happen, can be critical in showing that the sex was not consensual.

The victim's post-attack behavior: Following the attack, most sex crime victims make some dramatic changes in their every day behavior. Whether to protect their safety, to relieve their emotional pain, to avoid the perpetrator, to seek help, or to hide away, any of these actions out of the ordinary can corroborate that the victim has experienced a trauma, and not consensual sex. Look for anything that will corroborate these changes, and don't forget that witnesses to these behaviors are also evidence.

Outcry witnesses: Though victims often don't report to police immediately after a sexual assault, they do frequently go looking for help. These people are called 'outcry witnesses' and their statements can be very powerful in supporting the victim's story. They can be friends, professionals, taxi drivers, neighbors, they can be any one.

And it doesn't have to be that the victim necessarily told that person about the assault. Just the fact that she went to that person for help of one form or another. For example, suppose the victim went up to a bar tender very distressed and urgently requested that he call a cab. It doesn't matter that she didn't tell him about the assault. That bar tender, and probably the cab driver, too, would make good outcry witnesses.

The Perpetrator's post rape behavior: Following a rape, perpetrator's often engage in behaviour that indicates their guilt. They may keep changing their story, vilifying the victim, hiding evidence, or perhaps start boasting to friends. As with other evidence, these things may not constitute proof, but they may support or corroborate other aspects of the victim's story.

Other victims: Other victims of the same perpetrator can be hugely important evidence in sex crimes cases. What's more, other victims of the same perpetrator are often not that difficult to find. Most sex crimes perpetrators are serial perpetrators who have gotten away with it many times. Moreover, perpetrators often select their victims from within the same social circle as the current victim. Despite all this, and despite how valuable other victims can be in prosecuting perpetrators, very few detectives ever go looking for the other victims.

Yet, when you ask victims if they can think of other people who might have had a similar problem with the same perpetrator, it's amazing how many can come up with names. Or if they can't come up with names immediately, they often do so after just a little asking around.

Evidence from the Pretext Call. Pretext calls are often one of the most significant sources of evidence in sex crimes cases. Furthermore, the evidence from these calls can be so definitive as to wrap up the case. Yet in case after case after case, police fail to make the effort. And even when they do put together a pretext call, most investigators fail to engage the victim in a way that will enhance a pretext call's chances of success.

Because of the importance of these calls in sex crimes cases, and because advocates can be so important in making sure these calls get done, and get done properly, we explain these calls in more detail in the next section.

Go to: Part 3 ~ , Advocating for Victims of Sex Crimes During the Police Investigation

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