Sexual Assault: Evidence Based Prosecution

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1 Sexual Assault: Evidence Based Prosecution Angela Poth-Wypasek Assistant Summit County Prosecuting Attorney 1 Goals of Evidence-Based Prosecution To hold more offenders accountable for their crimes To decrease the risk of additional harm to the victim because the offender knows that the victim is not the one in control of decision making 2 Why Use Evidence-Based Prosecution for Sexual Assaults? This strategy should be used in the interest of enhancing community safety There is a possibility that it might create the kind of positive changes that we have seen in the criminal justice system s handling of domestic violence 3 1

2 Evidence to Be Reviewed 911 calls Photos and diagrams EMS run report Medical records Defendant s booking information All written statements All audio recordings including jail telephone calls Computerized criminal history of victim, witnesses, and defendant 4 Contact with the Victim Use a victim advocate Be sympathetic to what the victim is dealing with and what they have lost Do not start firing questions about the incident at the victim If they won t come to you, go to them Get them served with a subpoena for trial 5 What if your Victim Disappears? Use SCPO investigators and local police Check jail may be in jail or has been there before Look at the Defendant s booking sheet to see if he/she lists an address for the victim Listen to jail calls Check CSEA Call AMHA investigator Talk to neighbors Facebook/Other social media tools 6 2

3 Voir Dire on Sexual Assaults Do not be too preachy Assess general feelings and experience with SA s Discuss feelings/attitudes about State intervention especially with recanting or absent victim Discuss reasons why victims recant or are absent 7 Voir Dire on Sexual Assaults Cont d Talk about the non-stranger nature of the offense and any continued contact of the parties Prepare them for minimal or no injury Prepare them for unlikable traits of victim without making her unlikeable Explore all issues relative to victim blaming (masochism, precipitation, and fabrication) Prepare them for no eyewitnesses Prepare them for no resistance Be aware of female jurors 8 Importance of Voir Dire in Sexual Assault Trials In March 1992 police in Queens, NY arrested a man in the act of raping a 61 year old homeless woman. The grand jury wanted to know why she was outdoors at two in the morning. (Interview with Marjory Fisher, Bureau Chief, Queens County District Attorney s Office, New York, NY (Apr. 23, 1992)). From 1978 to 1980 a team of sociologists watched all 38 Indianapolis jury trials for forcible sexual assault and then conducted ninety minute interviews with 331 of the 456 jurors who sat in those cases. Lafree, Reskin & Visher, Juror s Responses to Victims Behavior and Legal Issues in Sexual Assault Trials, 32 SOC. PROBS. 389 (1985). 9 3

4 The jurors were deeply influenced by stereotypes about appropriate roles and behavior for women and frequently cited the complainant s reputation as the basis for their verdict If the complainant knew the defendant the jurors were extremely unwilling to convict If the complainant was black, no matter the race of the defendant, she was met with particular skepticism If that wasn t enough A juror s comment about the 1991 Palm Beach trial of William Kennedy Smith illustrates that, in addition to the victim s reputation, jurors decisions turn on stereotypes about who is and who is not a rapist. After the verdict, juror Lea Haller told the media, I think he s too charming and too good-looking to have to resort to violence for a night out. Importance of Voir Dire in Rape Trials by Lynn Hecht Schafran printed in TRIAL magazine (August 1992 and reprinted with permission in 2005). 10 Practices to Employ in Trial Identify all relevant potential witnesses and evidence to expand the concept of corroboration to include proof of the entire chain of events and witness credibility not just the use of force or coercion or the identification of the offender Accessing and, where appropriate, introducing expert testimony at trial, particularly when necessary to explain the impact of trauma and victim behavior that does not match jurors expectations Utilizing electronic evidence (surveillance video, ATM video, texts, etc.), where available, to overcome the consent defense 11 Victim Participation is Essential Bottom Line: It s hard to imagine sexual assault cases realistically being prosecuted without the victim testifying And even if they were, it is hard to imagine that the prosecution could secure a conviction 12 4

5 Victim Engagement Victim engagement with law enforcement and prosecutors has been found to be a major barrier to prosecuting sexual assaults Victims who receive Sexual Assault Nurse Examiner/Sexual Assault Response Team services are more likely to participate in the criminal justice system than those who do not; victim participation is a factor inextricably linked to positive trial outcomes 13 Consent Defense Domestic Violence: While domestic violence is also a crime committed by a known offender, the defense in a domestic violence trial will never be based on consent. The law and common sense both tell us that a domestic violence victim cannot consent to an attempt to or being injured. Sexual Assault: Consent defense is often successful in court because judges and jurors frequently share common societal beliefs that women ask for sexual assault by engaging in risky behavior Reality: Only evidence that is likely to be persuasive enough to overcome a consent defense is the testimony of the victim 14 Defense and Evidence-Based Prosecution In any event, a defense attorney in a sexual assault case may subpoena the victim to testify Therefore, even if prosecutors wanted to pursue evidence based prosecution and not call the victim to testify, it is very likely that the defense will produce a subpoena ordering the victim to do so 15 5

6 Conclusion: Evidence-Based Prosecution in SA Cases Sounds promising, but prosecutors must think logically Likely that it will fail in meeting its objective and cause considerable trauma for sexual assault victims Best Practices or Buzzword? Sorting out Fact from Fiction in the Community Response to Violence Against Women by Joanne Archambault, SATI Training Director as printed in SATI e-news: January 29,

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