following is a procedural outline of a typical police investigation
of a rape. Keep in mind that there are many legitimate variations
of this procedure, depending on everything from differences
in case circumstances to differences in police department
structures and policies. If the handling of your client's
case is different from this outline it doesn't necessarily
mean things have gone wrong. The main reason we give this
sample procedure is to highlight some of the ways that a rape
investigation is distinct from the handling of other crimes,
and to help you become familiar with the logic of the investigatory
stages of a rape case.
Also, in the
following discussions of police rape investigations, we
center our focus on the investigation of acquaintance rape.
We do this because acquaintance rape, (where the perpetrator
is known to the victim), makes up the vast majority of all
rape cases. In addition, acquaintance rapes generally require
the highest level of skills and sensitivity, both from law
enforcement and from advocates.
Typical Police Sex Crime Investigation
The Rape Victim Calls 911 or Calls Police Directly to
Report the Rape
B. The Responding Patrol Officer Takes a
Brief Statement from the Victim
C. After Taking a Brief Statement from the
Victim, the Responding Officer Calls and Confers with
An On-call Detective to Determine What Should Happen next.
D. The Medical/forensic Rape Exam Is Carried
out on the Victim
E. A Detective Carries out an In-depth Victim
F. A Pretext Call Is Set up for Cases in
Which the Victim Knows the Perpetrator.
G. The Detective Carries out Further Investigation
H. The Detective Interviews (Interrogates)
I. The Detective Obtains an Arrest Warrant
and Arrests the Perpetrator
J. The Detective Sends His or Her Completed
Report to the District Attorney's Office for Review.
K. The District Attorney Decides to Either
File Charges on the Case, Reject the Case for Prosecution,
or Decides to Send the Case Back to the Police for Further
The Rape Victim Calls 911 or Calls Police Directly to Report
Most rape victims
don't report to police immediately following the rape. It's
very common for rape victims to wait days, weeks, or even
months before telling anyone. And usually the first person
the victim tells is a friend or a counselor at a rape crisis
center and not the police. Rape victims have a very difficult
time making the decision to report to police.
When rape victims
do come to you before having gone to police, take advantage
of the opportunity to educate your client as much as possible
on what to expect in the police case. Address her questions
and fears, explain the importance of her being accompanied
throughout the process, and orient her to possible difficulties
she may encounter along the way. One common frustration
of reporting a rape can occur right away at the reporting
stage as we explain in the following note.
Although most rape cases are eventually assigned a detective
to do the in-depth victim interview and to investigate
the case,. most police departments won't allow rape victims
to report directly to the detective unit. Police protocol
usually requires that rape victims report first to a patrol
officer. But the patrol officers are told to handle a
rape case by taking only a minimal report and to do only
a cursory interview of the victim. The patrol officer
is then supposed to pass this mini-report to the detective
unit where the case may sit for a day or two (or more)
before it's assigned a detective.
Right off the
bat, this added step of going to a patrol officer feels
to many victims like they're being run through a bureaucratic
obstacle course. Indeed, that's pretty much what it is.
After making the delicate and difficult decision to report
to the police, she then has to arrange to report to a patrol
officer with the understanding that the patrol officer doesn't
want to hear the full story. And then she has to anxiously
wait around, sometimes for days, to be called by an unknown
detective at an unknown time.
This added step
frequently produces intense anxiety and frustration for
the victim. If the victim isn't prepared, she can be devastated
by what may feel to her like a complete lack of interest
on the part of the police. If these are the rules your police
department goes by, it's really important that you explain
this problem to the victim ahead of time so she doesn't
get discouraged from continuing before the case even gets
As with domestic violence, if the victim comes
to you before going to the police, it's best to have the
police respond to your office or the victim's home rather
than going over to the police department to give the report.
And it's always a top priority to make sure the victim
is never alone when dealing with law enforcement.
It's interesting to note that the San Fernando Valley
division of the LAPD which has been able to attain a 93%
clearance rate on sex crimes has achieved this success
in part by getting specially trained detectives to the
scene immediately at the time the rape report is made.
The Responding Patrol Officer Takes a Brief Statement from
the Victim, and writes a brief report.
officer usually seeks only to obtain enough information
to fill out the crime report face sheet. (The face sheet
is the first page of the crime report which contains basic
data on the type of crime committed and data on the involved
parties: the victim, suspect, and witnesses.)
There are two
reasons that the responding officer on a rape case generally
takes only a brief statement from a rape victim at the initial
contact. The first reason is to avoid having more than one
victim statement on the record so as to protect the victim's
credibility. One of the first things a defense attorney
will do in a rape case is to compare the initial victim
statement with the statement given later to the detective.
The defense attorney will be looking for even the slightest
of discrepancies which the defense attorney can then blow
up to monstrous size in the courtroom to destroy the victim's
credibility. "So", says the defense attorney on
cross-examination, "You told the responding officer
he had four blue buttons on his shirt. But then you told
the detective that there were three green buttons on the
shirt. How are we to believe anything you say?"
recounts an experience twice in identical form, and since
victim credibility is so critical in rape cases, it's crucial
to have only one victim statement on the investigation record.
The second reason
the responding officer takes only a brief victim statement
is to assure that when the victim does give her statement,
the official doing the in-depth interview is a person experienced
with rape victim interviews.
In addition to
taking a brief statement, the responding officer will also
gather or secure any obvious evidence at the scene where
the rape occurred.
Because responding officers generally spend only a brief
amount of time with rape victims, many patrol officers
fail to see the pivotal role they play in the success
or failure of rape cases. The reality is that responding
officers are often the most important officials in the
case. When rape victims first come to the criminal justice
system they are usually very ambivalent about whether
they really want to go through with a criminal case. Their
encounter with the responding officer is a rape victim's
testing of the waters. Victims are hyper-vigilant to every
nuance of the responding officer's behavior. Many rape
victims make their decision on whether to continue with
the case or to retreat based on their encounter with the
first responding officer.
After Taking a Brief Statement from the Victim, the Responding
Officer Calls and Confers with An On-call Detective to Determine
What Should Happen next.
There are three
principal questions the on-call detective will be considering
at this point:
- Should a medical/forensic
sexual assault exam be ordered, and if so, should that
exam be done immediately or can it be scheduled for later?
- Should the
detective respond immediately to do an in-depth interview
of the victim, or can the victim interview wait and be
scheduled for a more convenient time? and,
- Is there
other evidence that needs to be collected right away?
In general, if
the victim is an adult and if the rape occurred within the
last 72 hours, the detective will call for an immediate
medical/forensic rape exam of the victim. The responding
officer will then transport the victim to the designated
medical facility for the rape exam.
If the victim
is an adult and the rape occurred more than 72 hours ago,
a medical/forensic exam is usually not ordered, and the
victim is usually told that she will be called by a detective
in the next couple days. The responding officer then sends
his or her report to the detective unit where the case will
be assigned a detective for further investigation. (A very
common and harmful police error that occurs at this point
is that the responding officer fails to give the victim
a time frame and/or fails to give the victim a phone number
of the detective unit so the victim can call into the detective
unit herself when she becomes anxious because a detective
hasn't yet called.)
If the victim
is a child, the detective will often ask for a medical/forensic
exam even if the assault is more than 72 hours old. This
is because lasting evidence of physical injury following
sexual assault is much more likely to occur in cases where
the victim is a child. For the same reason, the medical/forensic
exam of a child is often postponed to a time when it is
convenient for everyone involved.
In California, and in a number of other states, police
are required to inform the local rape crisis center whenever
a rape victim is taken to a medical/forensic exam (Cal
Penal Code Section 264.2). This is so that the rape crisis
center can send an advocate who can accompany the rape
victim during the exam.
in California, both police and the medical examiner are
additionally required to inform the victim of her right
to be accompanied throughout the rape exam (Cal Penal Code
Section 264.2 ) and throughout every part of the criminal
justice process (Cal Penal Code Section 679.04) by a victim
advocate of her choosing and a support person of her choosing.
Know Your Rights.
officials frequently violate these laws.
The Medical/forensic Rape Exam Is Carried out on the Victim:
medical practitioner performs the medical/forensic rape
exam. It's important to keep in mind and to inform the victim
that the medical/forensic exam is ordered and paid for by
the police. She should know that the primary purpose of
the medical/forensic rape exam is not to provide medical
care for the victim, although the victim's medical needs
should be attended to. The primary purpose of the medical/forensic
rape exam is to gather case evidence from the victim's body.
The evidence being sought is usually evidence of injury
to the victim and evidence of the perpetrator's assault,
such as semen, hairs, fibers, saliva, or DNA.
The sexual assault
medical examiner will first question the victim about details
of the attack, chart and photograph injuries, and take vaginal,
rectal, and buccal swabs as indicated or not by the victim's
story. The sexual assault medical examiner may also take
blood or urine from the victim to be sent to the lab for
drug testing. Before giving her blood or urine, the victim
should be fully informed about what will be done with these
samples and she should be informed about her constitutional
search and seizure rights. The problem is that most victims
believe and trust that police are testing only for evidence
of drugs the suspect may have used to subdue her. But many
police, without telling the victim, will also be testing
for drugs the victim may have been using illegally. Advocates
should find out which drugs police will be testing for and
why, so your client can make an informed decision about
whether to give blood or urine to police.
In some rape
cases, depending on the investigation strategy, police will
also do a medical/forensic exam on the perpetrator. Perpetrator
rape exams are rare, however, because police generally don't
want to tip the perpetrator at this point to the fact that
he is under police investigation.
Many people mistakenly believe that the rape
exam provides the primary evidence in rape cases. The
fact is that the medical/forensic exam rarely provides
probative evidence in rape cases of adults.
One problem is
that even if evidence gathered at the rape exam matches
and identifies the suspect, the defense of most rapists
is not a denial that they had sex with the victim. The defense
of most rapists is that although they did have sex with
the victim, that sex was consensual. As such, any DNA or
other evidence found on the victim which identifies the
suspect is rendered useless as probative evidence. DNA and
other identifying evidence can, however, prevent the rapist
from claiming he didn't have sex with the victim.
with evidence gathered at the rape exams is that any minor
injuries documented on the victim are also generally easily
dealt with by the defense attorney with a claim that the
consensual sex was rough sex.
Because of the highly intrusive and traumatic nature of
rape exams, exquisite attention should be given to obtaining
a truly informed consent from the victim prior to the
medical/forensic the exam. The rape victim must be informed
that she can refuse the exam, refuse any part of the exam,
withdraw consent at any point, refuse to give blood or
urine, or if she consents to give blood or urine, she
can refuse to have the blood tested for specific illegal
substances. The victim should also be informed that she
can refuse a male medical examiner if she chooses.
A very common
law enforcement abuse that occurs when rape victims exercise
their rights to refuse one aspect or the other of the exam,
is for the police officer to accuse the victim of not cooperating
with the investigation, and then to threaten the victim
that if she doesn't cooperate fully with the investigation
(i.e. submit to whatever the officer wants) there will be
no investigation. This common law enforcement threat to
rape victims also frequently occurs at a number of other
points in rape investigations and prosecutions, such as
when rape victims attempt to exercise their rights to privacy,
for example, by refusing to turn over her diary to a detective
who requests it, or when she insists on her right to be
accompanied by an advocate during interviews with police
intimidations of and threats to rape victims following rape
victims' attempts to exercise her rights are so common that
we deal with the issue in more detail later on. For this
section, suffice it to say, that it's important for advocates
to be well versed in the law of the victim's rights and
to be willing to protest law enforcement attempts to threaten
victims who wish to exercise those rights.
Also because of the highly intrusive and traumatic
nature of rape exams, it is essential that non English-speaking
victims have a professional interpreter present throughout
A Detective Carries out an In-Depth Victim Interview:
The police rape
victim interview is both the most crucial evidence in the
case and it is the most fragile of any evidence law enforcement
is called on to gather. It's more fragile than lifting a
footprint from the sand, and requires the utmost skill from
the investigator. For this reason we discuss the in-depth
rape interview in much more detail later on. For now, here
are some points on how the rape interview fits into the
procedural outline of a standard rape investigation.
If there was
a medical/forensic exam, sometimes the on-call detective
meets the victim at the rape exam and carries out the in-depth
victim interview immediately following (or sometimes prior
to) the rape exam. Or the on-call detective may schedule
the interview for the next day or two days hence. Another
common occurrence is that the on-call detective will pass
the case on to the head of the sex crimes unit, and there
will be a day or two (or more) wait until the case is assigned
to a different detective.
In those cases
where the in-depth interview is not carried out in the time
frame of the initial report, officials frequently fail to
tell the victim exactly when that interview will occur.
They simply tell her that when a detective is assigned to
the case, the detective will give her a call to set up an
interview, leaving the victim totally up in the air as to
what will be happening when.
In all fairness,
the truth is that the responding officer or on-call detective
often doesn't know when the detective assignment and phone
call will occur. The problem for the victim, however, is
that after having gathered her courage to make the initial
rape report, to be left waiting for a phone call on an unspecified
time frame from a unknown detective is one of the most traumatic
times for rape victims. When that phone call doesn't come
in the first day or two, the victim's anxiety often mounts
to the most unbearable pitch of the whole criminal justice
The victims quickly
become overwhelmed, thinking their worst fears have come
to pass. In the absence of a phone call from a detective,
a victim fears that the police probably didn't believe her
or that they don't think her case is very important. On
top of that, many fear that the perpetrator may have found
out about her report and is loose out there looking for
ways to retaliate against her. Why police can't take even
one minute to care enough about victims to prevent this
is beyond me. All it would take is a simple phone call from
the head of the detective units to give rape victims a general
time frame for upcoming events. But they don't.
The anxiety rape
victims suffer at this juncture is so intense and so common
that it's always a good idea for the advocate to contact
the detective squad the day after the initial report in
order to closely monitor progress on the case assignment
so you can relay information to the victim. Regular phone
calls by the advocate to the sex crimes unit commander also
usually serve to speed up the process of case assignment
and to prevent the case from sitting interminably in a pile.
When the detective
does contact the victim, the rape interview, as much as
possible, should be scheduled for a time and place that
is comfortable for the victim. The detective should inform
the victim of her right to have a victim advocate and a
support person of her choosing be with her throughout the
The rape interview
itself should be detailed and complete. An audio recording
should be made of the interview from beginning to end. The
rape interview in most rape cases will provide the main
leads for further investigation. (See form for evaluating
police response to rape for detailed elements of the rape
interview itself. www.justicewomen.com/help_rape_evaluation.html
A Pretext Call is Set Up for Cases in which the Victim Knows
If the victim
and perpetrator know each other - which they do in the majority
of rape cases - following the rape interview the detective
should explain and set up a pretext call. A pretext call
is a phone call made by the victim, monitored and taped
by police, in which the victim uses a preplanned pretext
in an attempt to trick the perpetrator into talking about
the rape. When successful, these taped "pretext calls"
can all but wrap up a rape case. Perpetrators caught talking
about the rape on a tape can usually be talked into accepting
a guilty plea, often before the case even goes to court.
Here are a couple
of examples of pretexts that can be used:
A victim of
spousal rape may call her husband and say something like,
"If we're going to live together again we have to
talk about what happened last week......."
A girl victim
of grandfather's sexual assaults calls grandpa and says,
"The doctor told my mother I've been having sex and
I have to tell her what we've been doing......"
A girl victim
raped by her father says, "Mom knows what's been
happening and she says I have to go with her to tell the
police, but I don't want to go to the police. And I don't
know what to do.....?"
Properly prepared and partnered into the planning of a
pretext call, rape victims, including child rape victims,
can find the pretext call to be an empowering opportunity
as they turn the tables on the perpetrator. Key to good
preparation of the victim is the detective's willingness
to engage the victim as a partner in staging the call.
It's the victim, after all, who best understands the psychology,
weaknesses, and leverage points of the perpetrator.
too many detectives are unwilling to give up control of
the investigation in this way. Instead of brainstorming
with the victim ahead of time, and asking her to run through
scenarios in her head, they impose a scenario on the victim
at the last minute before having the victim make the call.
As such, they not only diminish the empowerment this technique
can give the victim, they also lose the powerful investigatory
advantage that the victim's knowledge of the rapist can
In addition to the rape victim herself doing the pretext
call, pretext calls can be carried out by any number of
persons, limited only by the detective's creativity. Mothers
of victims, counselors, teachers, bosses, and even friends
of the perpetrator, etc., all have their own unique leverage
on the perpetrator. They can often produce successful
pretext calls even if an initial victim attempt has failed.
Or if the victim has said she doesn't want to do the call.
An interesting aspect of pretext calls is that
even the most sophisticated of perpetrators can be often
be tricked into talking about their crimes. The rapist's
sense of their power over the victim is often so exaggerated
they can't imagine the victim being capable of seizing
the initiative, going to police, and then weaving a plot
to trap him. A case in point is a veteran sheriff's deputy
(from a neighboring county) who raped his adult cousin
and then in a series of pretext calls the deputy talked
on the phone with the victim about the crime for over
four hours. When this veteran deputy was confronted by
the police with what he had done, the deputy committed
The Detective Carries out Further Investigation.
rape interview, most detectives will proceed to track down
evidence leads and interview other witnesses in the case.
Most of these leads to evidence and to additional witnesses
in a rape case derive from information uncovered in the
rape interview with the victim. This is why it's so critical
that the rape interview be caring, competent, and complete.
(See below for a list of the kinds of evidence that can
bolster or prove a rape.)
In situations where there's been is a successful
pretext call which has produced a full statement of guilt
by the perpetrator, some detectives may choose to go out
and make the arrest at that point, leaving the additional
investigative tasks for later, or with the intention of
not pursuing them at all. In some such cases, it may be
that the detective is rightly confident that the pretext
call by itself will be sufficient to get an early guilty
plea from the defendant, and so feels that there's no
need to continue with the additional investigative leads.
On the other
hand, it's always a risk, no matter how good the pretext
call, to leave leads and witnesses unexamined. If there's
any unforseen hitch in prosecution use of the pretext call,
a prosecutor will right away look at the rest of the case.
If the investigation is incomplete, the prosecutor may use
this as an excuse not to go forward. Even if an arrest is
made following the pretext call, the detective should complete
If the victim hasn't already told others that she has
gone to the police, it's at this point in the investigation,
when the detective goes out to interview other witnesses,
that the victim's family and associates may become aware
for the first time that the victim has made an accusation
of rape. It's also the point in time when the perpetrator
may first become aware that the victim has gone to the
police with her accusation of rape. It's important that
the police and the advocate are particularly vigilant
to the victim's safety, and that, if possible, protective
orders are put in place.
The issue of protective orders is particularly complex
in rape cases. Because much of the rape investigation
is best carried out without the perpetrator being aware
he is a suspect, most detectives will request that the
victim hold off on obtaining a restraining order since
serving the order notifies the suspect that the victim
has gone to authorities. Another protective order difficulty
in rape cases is that standard domestic violence protective
orders only apply to those rape cases in which the victim
has been raped by a family member. And since criminal
court protective orders can't be obtained until charges
are filed in the case, many rape victims go unprotected
by protective order until the rape is formally charged
by the district attorney for prosecution.
the Detective Interviews (Interrogates) the Perpetrator:
interview (interrogation) is usually the last thing the
detective does before wrapping up the investigation. A good
suspect interview usually requires that the detective be
as knowledgeable as possible about the facts of the case
before attempting to interview the suspect. This generally
means that the detective should complete as much of the
investigation as possible before interviewing the suspect.
If the detective interviews the suspect right after a victim
reports a rape, it may be an indication either that the
detective is very inexperienced or that the detective is
planning to throw the case. So the advocate should try to
determine if there is or is not a good rationale for early
interview of a suspect.
In one such case
in which there were three eye witnesses to the sexual abuse
of a child, (and the detective knew there were three eye
witnesses), the detective phoned the suspect before interviewing
any of the witnesses and simply asked the suspect if he
had abused his child. Not surprisingly, the suspect told
the detective that, No, he hadn't abused his child. The
detective called this a suspect interview. He then wrote
up the case report in which he said that there were no witnesses
and further, that when the suspect was interviewed he denied
abusing the child. The detective then closed the case.
The best laid
plans of the detective can quickly be undone, however, if
the suspect refuses to talk. A smart suspect will always
refuse to talk to police. Fortunately, most aren't that
smart. It's amazing how many people will talk to police
to try and clear themselves. It's also amazing how often
some detectives are able to get a rapist to confess even
when there's no good evidence against the rapist.
However, in the
sum, most rapists don't confess to the rape. Short of a
confession, the detective will try at least to get the suspect
locked into the details of his story, details which will
likely contradict what the detective already knows to be
the truth as a result of having done a thorough investigation.
The detective obtains an arrest warrant, and makes the arrest.
In most rape
cases, police don't make an arrest in a rape case until
they feel they have sufficient evidence to support a prosecution.
This long delay before arresting rape suspects is usually
very difficult for victims. If the investigation drags on,
many victims begin to think the reason the suspect isn't
being arrested is because the police don't believe her.
Not only that, but as the days pass and the suspect isn't
arrested, people around the victim may start taunting the
victim, saying things like, "See, even the police don't
that you as a rape victim's advocate anticipate this common
anxiety of rape victims. If your monitoring of the investigation
tells you things are proceeding in a reasonable time frame,
you need to explain to the victim, and to her family and
friends, why it may be a while before the suspect is arrested.
If, on the other hand, you feel the detective is dragging
his feet, you'll need to push to get the investigation moving
properly. Dragging out a rape investigation is one of the
most common tactics used by police to dump these cases,
since they do know that rape victims will start to feel
the police don't believe her and she'll be too mortified
Because most rape arrests are not on-view arrests,
when the detective is ready to arrest, he or she generally
obtains an arrest warrant before making an arrest. When
applying to the court for the arrest warrant, instead
of writing up a separate document summarizing the evidence,
most detectives take the easier route of simply attaching
a copy of the police report to the arrest warrant petition.
This fact creates an unique opportunity for rape victim
advocates and their clients, since arrest warrants are
usually quickly available on the public record.
What this means,
is that once police obtain an arrest warrant you or the
victim can go to the criminal court clerk and obtain your
own copy of the arrest warrant, and lo and behold, you'll
find a copy of the police report attached. Since most states
don't give rape victims the right to obtain a copy of the
police report in rape cases, obtaining a copy of the arrest
warrant will serve to get you a copy of the police report
in a large percentage of cases.
The Detective sends his or her completed report to the District
Attorney's Office for review.
In many jurisdictions,
including our own, police don't send all their rape investigations
to the district attorney. They only send up those investigations
to the district attorney which they feel have a good chance
to be accepted for filing.
This is a very
bad practice, since it leaves a deep dark hole in which
police can routinely dump the rape cases they don't want
to investigate without even district attorney review. And
though district attorney review is no guarantee that rape
cases will be investigated properly, it does add one more
check on the process. Counties should have policies similar
to the domestic violence policies adopted by many counties
which require that all domestic violence crime reports be
sent to the district attorney for review. Counties should
have policies which require that all police rape, sexual
assault, and child molest cases crime reports be sent to
the district attorney for review. We are currently pushing
for this measure in our county.
The District Attorney decides to file charges on the case,
decides to reject the case for filing, or decides to send
the case back to the police for further investigation.