2.2-A. Within the Office

Sex crimes prosecutions, like other gender-based violent crimes, have long relied upon individual champions within an office, including chief prosecutors, unit supervisors, or individual prosecutors. Some ways these champions influence positive case outcomes include:

• Prioritizing crimes of sexual violence, as one would other serious crimes like homicide, by allocating or advocating for appropriate resources, including specialized training for staff.
• Assigning appropriately trained, proactive, ethical leaders to supervise specialized units.
• Specially recruiting, training, and mentoring prosecutors to handle these cases.
• Providing opportunities to participate in or present at trainings and community outreach events that advance the office’s mission.
• Specially assigning prosecutors to serve on one or more coordinated multidisciplinary working groups or sexual assault response teams (SARTs) and/or providing a mechanism for information sharing related to these groups or teams.
• Recognizing crimes that commonly co-occur with adult sexual violence, including human trafficking, intimate partner violence, gangs, commercial-sexual-exploitation-related offenses, and child abuse or neglect, and ensuring information is shared among those handling these types of cases.
• Personally committing to trying complex cases.
• Encouraging the development of promising practices and mentoring colleagues.

Champions share certain philosophies that can be sustained at the office level in the ways discussed below.

2.2-A-1. Develop and Instill Core Principles⁵²

The Core Principles identified in Exhibit 2-1, below, are integral to a model prosecution response to sexual violence.

2.2-A-2. Develop Specialized Units and Prosecutors⁵³

Offices can become specialized by implementing targeted hiring, assignment, and training processes that identify and develop prosecutors with the skills necessary to successfully litigate sexual violence cases. In offices with fewer staff or resources, only one prosecutor need be designated as the primary prosecutor on these and related cases⁵⁴ and provided with specialized training. This prosecutor can serve as the point person for all sexual assault cases, ensure appropriate follow-up investigations and case preparations are conducted, and mentor subsequent prosecutors working on these cases. Prosecutors who have performed well in litigating general crimes, crimes against persons, or violent crimes, and who have the desire and disposition to develop and apply the necessary expertise and attention to these cases, are good candidates for specialization. They bring with them a wealth of perspective and knowledge gleaned from other cases involving substantial victim contact.

EXHIBIT 2-1

Qualities of a Successful Prosecutor⁵⁵

Adapted from Teresa Scalzo, Former Director of the National Center for the Prosecution of Violence Against Women and former sexual assault prosecutor

Specialization involves developing the core competencies of prosecutors handling sex crime cases, as outlined in Appendix B. Experience, mentorship, and training regarding issues specific to sexual assault prosecution also builds the skills and capabilities (illustrated in Exhibit 2-1 above) needed to successfully litigate these cases. Offices can promote specialization by:

• Providing continuing, advanced training for sex crimes prosecutors to improve their knowledge and skills regarding legal issues; forensic, psychological, medical, scientific and technological issues; trial strategies; sexual assault dynamics; culture; and improving law enforcement responses to underserved populations.⁵⁶
• Supporting and participating in multidisciplinary training and cross-training efforts involving all partners.⁵⁷
• Training and working closely with appellate experts. Whether appeals are handled by a specialized unit in the prosecutor’s office, the Attorney General’s Office, or the prosecutor who tried the case, trial prosecutors need to be conversant with current case law and developments on key trial issues relating to sex crimes prosecution. Familiarity with these laws and legal issues is critical during trial to avoid the need to re-try cases due to reversal on appeal. Moreover, a close working relationship with appellate experts can help to identify areas of the law that are ripe for change through strategic litigation and appellate practice. This is a reciprocal relationship and should allow for appellate attorneys to better understand dynamics of sexual violence; research related to medical, forensic, psychological and technological issues; and the existence of co-occurring crimes. A more nuanced understanding of these dynamics will make for stronger appellate briefs and arguments.
• Identifying and consulting with experts. Experts may be consulted or retained to advise on specific cases, assist with screening and preparing cases for trial, and provide expert testimony on issues not readily understood by jurors. Prosecutors and experts in fields such as disabilities, medical evidence, toxicology, victim behavior, digital evidence, technology, relevant cultural issues, and forensics should train each other to improve the quality of their working relationships and effectiveness at trial. Experts should play a key role in coordinated community response, and can provide training on working with victims with mental health issues, cognitive disabilities, and substance abuse/addiction. These community members are most at risk of sexual assault because of vulnerabilities created by their conditions, as well as widely-held perceptions about their credibility — stereotypes that are generally inaccurate but readily exploited by the defense.
• Developing and maintaining a motion and brief bank. A readily accessible bank of adaptable briefs addressing various legal issues will assist prosecutors in filing timely motions and aid judges in applying the law to specific case facts. Well-crafted briefs will encourage the court to rely upon current scientific and social science research as well as legal precedent and sound reasoning.⁵⁸
• Building a framework for identifying, analyzing, and incorporating relevant non-legal research into prosecution practice.⁵⁹ Examples of such research are: medical research on the significance of genital injury or lack thereof; toxicology research; social scientific and psychological research; and research pertaining to serial offending.
• Arranging for periodic data analysis of the performance management process to identify trends and patterns of sexual assault incidents. This includes identification of any differences in outcomes for various subgroups based on specific victim characteristics or circumstances. For more detail, see RSVP Vol. II, Chapter IV.

Prosecutors in specialized units must have the Qualities of a Successful Prosecutor as described in Exhibit 2-1 above.

• Sufficient litigation skills and experience. Prosecutors handling sexual violence crimes should have substantial trial experience preparing and carrying out: direct and redirect examinations of law enforcement, experts, witnesses, and victims; cross-examination of defendants, defense witnesses (including character witnesses), and experts; motions practice for search and seizure, rape shield, other crimes and bad acts; motions in limine to exclude irrelevant or non-probative evidence; specific and well-supported trial objections; and opening statements, closing arguments, and rebuttals. This depth of experience ensures prosecutors can present cases in a manner which recreates the sexual attack for the jury, while maintaining focus on the offender by exposing their dangerousness and attempts to manipulate the victim, witnesses, and even the system.
• An ability to work with victims. Compassion, patience, and flexibility are important qualities for prosecutors working with sexual violence victims. They should be skilled in communicating with witnesses and trained in the elements of a trauma-informed response, including use of specialized interview techniques.⁶⁰
• Understanding victims. Understanding how victims respond to sexual violence trauma can be one of the most challenging and significant barriers to prosecution,⁶¹ because lapses in this area can cause prosecutors to inaccurately assess victim credibility and underestimate their ability to prove the case. Prosecutors handling these cases should be familiar with research on the neurobiology of trauma, range of common victim behaviors in response to trauma,⁶² and influence trauma has on the expectations these victims have regarding their cases. Decisions should be based on an informed assessment of whether the crime happened and the existence of admissible evidence to prove it – not on an uninformed assessment of the victim’s behavior before, during, or after the assault.
• Understanding of offender characteristics and tactics. Prosecutors must recognize the common and nontraditional weapons used by rapists (g., alcohol, drugs, manipulation, and compliance — particularly against disabled victims).⁶³ They must look for evidence of purposeful offender behavior, including efforts to access to potential victims, grooming, isolation, perpetration, cover-up, and prior acts of sexual assault.
• Astute case investigation and facilitation of accurate evidence analyses. Trial skills and experience are important, but are only part of the necessary foundation for success in charging these crimes. Prosecutors should also understand how these crimes differ from other violent crimes; be open to collaboration with and feedback from other prosecutors and allied professionals; be prepared to spend more time with victims; understand the need to spend more time in trial laying out the details and theme and theory of the case; be prepared to conduct a more careful and thorough voir dire for jury selection; and understand the importance of re-creating the reality of the act of sexual violence for the jury.
• Channeling knowledge and skill to rebut common victim stereotypes and make accurate prosecution decisions. Research has shed light on many commonly-misunderstood aspects of sexual assault perpetration and victimization, including victim behavior during and after the assault.⁶⁴ Accurate prosecutorial decisions require, at a minimum, that sexual assault prosecutors routinely consult the research related to victim behavior, sexual violence perpetration, intoxication and toxicology, medical evidence, technology, forensics, and juror perceptions of factual issues that arise in these cases.⁶⁵ This social science and scientific research often runs contrary to the rationales that underlie longstanding legal precedents on issues such as the relevance of sexual history to the issues of consent or victim credibility, or the significance of injury or absence of injury in determining the use of force. Connecting the legal, scientific, and social science research to specific practices and decisions improves case evaluation, preparation, and litigation of sexual violence cases.⁶⁶

In addition, prosecutors should understand their role in a collaborative multidisciplinary team. They should have the ability and willingness to work with experts from law enforcement, healthcare, advocacy, and forensic disciplines. They should have the ability to understand and explain the role these experts play in responding to sexual violence and, in turn, help the experts understand the role and needs of prosecutors. The ability to understand and respect the work and specialization of others is a key element of a successful team effort.

2.2-A-3. Understand How the Rules of Professional Responsibility Govern Decision-Making⁶⁷

“A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.”⁶⁸

Charging decisions in sexual violence cases are difficult and mark one of the most common points of attrition.⁶⁹ Prosecutors often weed out charges that they speculate a jury may not convict on – and given the prevalence of myths around sexual violence and routinely disappointing verdicts, it is easy to understand how speculation could dictate decisions.⁷⁰

Given the paucity of social science research regarding the willingness of juries to convict in the absence of corroboration and/or evidence of physical resistance, or in cases where the complainant engaged in risk-taking behavior or is perceived by prosecutors to have a blemished moral character, it is difficult to evaluate the accuracy of these skeptical prosecutors’ claims.⁷¹

The research on case attrition suggests that decisions not to prosecute may be based on a lack of training or misinformation about sexual violence dynamics, ethical charging standards, or the proper meaning of “reasonable likelihood of conviction.”⁷²

According to the American Bar Association’s Model Rules of Professional Responsibility and the rules of ethics or professional responsibility in various jurisdictions, a decision to file a criminal charge must be based upon probable cause to believe the defendant has committed the crime.⁷³ The law of some jurisdictions may provide additional guidance or may focus predominantly on the reasonable likelihood of conviction – one of the 13 charging factors set forth in professional standards promulgated by the American Bar Association⁷⁴ and the National District Attorneys Association.⁷⁵ The appropriate question to ask when deciding whether to prosecute a case should be: “Given the evidence that will likely be admissible at trial, and the likely evidence and arguments of the defense, should a jury find that every element of the offense has been proven beyond a reasonable doubt?”⁷⁶ Ethical standards guide us to make charging decisions based on what a reasonable factfinder should conclude when weighing all available admissible evidence, not on probabilities dictated by the misgivings of jurors who rely on sexual violence myths.⁷⁷

2.2-A-4. Recognize and Address the Impact of Vicarious Trauma⁷⁸ on Staff

Vicarious trauma is “a human response to the experience of coming face-to-face with the reality of trauma and the difficulties of the human experience.”⁷⁹ Confronting vicarious trauma at an office level is critical to creating an atmosphere where prosecutors acknowledge and address secondary trauma. This will lead to more effective practices and positive case outcomes, as well as reduced staff turnover due to “burnout.”

Establish office policies that promote awareness of vicarious trauma and the need for good work/life balance,⁸⁰ encouraging staff to connect and debrief after difficult cases to relieve the intensity and pressures of the job.⁸¹ This can be done by:

• Being aware of vicarious trauma in staff and intervening when needed. “Regular interaction with trauma can take a toll … on members of the legal system who strive to administer justice.”⁸² Historically, acknowledging the impact of vicarious trauma and seeking assistance was seen as weakness, and thus, hiding or working through the pain alone has become the accepted response. However, trauma and burnout must be de-stigmatized – staff should understand their feelings are not signs of weakness or lack of commitment to the job, but normal reactions to working in this excruciatingly difficult and taxing field. Unit supervisors should become familiar with signs of burnout or vicarious trauma in themselves and staff, and proactively address them with available Employment Assistance Program resources, such as counseling and training.⁸³
• Encouraging and supporting employee work/life balance. Establish policies that allow for self-care and personal time after difficult trials. Additionally, some offices may allow or even encourage prosecutors to rotate out of the unit after a certain time to mitigate burnout. Nevertheless, such a rotation should be voluntary. Ideally, turnover will remain low in sexual assault units or among specialized prosecutors, as the greater experience and training a prosecutor has, the better they will respond to these cases.⁸⁴
• Creating opportunities for staff to connect and debrief after difficult cases. Evaluating cases following disposition — within the office and multidisciplinary teams — is helpful. It allows prosecutors to understand and refine their practices and provides a way to process the emotional effects of their work, particularly after especially difficult cases.
• See Appendix C, located in a separate document, for signs and symptoms of vicarious trauma and specific practices to identify and ease its impact on prosecutors.⁸⁵

2.2-B. Within the Community

2.2-B-1. Multidisciplinary Collaboration

A SART “is a community-based team that coordinates the response to victims of sexual assault.”⁸⁷ SARTs are an invaluable resource for prosecuting sexual violence crimes. SART team members typically include several “core” members but may also include additional disciplines.

EXHIBIT 2-2

SART Core and Additional Members

SARTs or multidisciplinary teams often pursue two primary goals. The first is to afford regular contact among disciplines to promote the best first response to, and ongoing discussion of, individual cases. This allows allied professionals involved in a case to ensure a holistic response to victim needs, as well as communicate with each other regarding relevant aspects of the criminal justice response.⁸⁸ The second goal is to improve the broader community response by identifying gaps victim services, mapping existing networks of support and expertise, raising concerns and offering solutions to better integrate and improve existing practices, developing new sustainable practices (adapting best practices from other jurisdictions where appropriate), and developing a plan for receiving and responding to feedback.

Prosecutors should take a leadership role in creating SARTs in their communities or engage with existing teams. Where no SART exists, consider convening a sexual assault task force to initiate the process. Where resources may be unavailable to start a formal SART, a pre-existing multidisciplinary team or similar coordinated community response team also may advance SART goals.⁸⁹ These team members may already handle sexual violence cases through co-occurring crimes.

The core members of a SART or other multidisciplinary team are prosecutors, advocates, law enforcement officers, medical forensic examiners (including sexual assault nurse examiners (SANEs⁹⁰), and forensic laboratory personnel. Other allied professionals may also participate in SARTs, depending upon the resources and needs of the jurisdiction. Prosecutors should identify and encourage collaboration with leading experts in these multidisciplinary fields to better understand victim experiences and develop deeper insight into sexual assault case evidence.⁹¹

Finally, the wealth of research supporting SARTs’ effectiveness should inform policy and practices.⁹²

2.2-B-2. Identify and Utilize Data and Technology

Data and technology can provide tools for investigation, case preparation, assessment, and performance management. Connecting the data available in cases within a jurisdiction’s caseload can reveal serial perpetrators, co-occurring crimes, polyvictimization, and open cases in other jurisdictions.⁹⁴ Evolving technology provides tools that better connect the dots contained in the wealth of available information and helps reduce gaps in the response to sexual violence. Investigative tools include:

• Crime data statistics
• VICAP⁹⁵
• Listservs
• Digital evidence investigative tools⁹⁶
• Training
• Technology
• Case management systems

Case evaluation and preparation can also benefit from data sharing and technology.⁹⁷ Identify and utilize available and emerging technology to help improve the effectiveness of prosecution responses, including consistent development of databases to store and review information. For more information, see the resources listed under “Technology-Facilitated Sexual Assault” in Appendix B – Core Competencies for Prosecuting Sexual Violence.

2.2-B-3. Share Information and Expertise

The RSVP Model encourages specialization in responding to sexual violence because it promotes positive outcomes. However, it can also pose challenges for coordination among departments. Siloing⁹⁸ – working in isolation without communication – inhibits the sharing of information and knowledge.

“Silos are cultural phenomena, which arise out of the systems we use to classify and organize the world…. [H]umans tend to organize the world around them into mental, social, and organizational boxes, which can often turn into specialist silos. When these are rigid, they often cause people to behave in foolish or damaging ways; silos can also make people blind to opportunity and dangerously unaware of risks.”⁹⁹

In prosecutor’s offices, units with a high degree of specialization can easily morph into silos with the risk the concept implies. Nevertheless, silos are not inevitable. “Institutions are just gigantic collections of people and one of the most basic steps that we can make to fight the risks of silos starts not with a leadership committee or organizational chart or grand strategy plan, but inside our heads.”¹⁰⁰ When information and knowledge guarded by isolated entities is disseminated and shared, silos are deconstructed; the effort to open clear lines of communication and coordination among specially tasked organizations neutralizes their effect.

SARTs are one way to coordinate such efforts to ensure that no opportunities are missed to provide services for victims, pursue justice, or improve the system’s overall response to sexual violence.¹⁰¹ SARTs promote the sharing of beneficial information and practices within and among agencies,¹⁰² divisions, staff, and partners.¹⁰³

Offices can develop and implement an action plan to identify and de-construct the silos that may be inhibiting their ability to work collaboratively. Create a plan for communication and cross-training in and outside of the office, with clearly delineated methods for accessing information and institutional knowledge. Within an office, communication between units and individuals prosecuting crimes that often co-occur with sexual assault is essential to ensure sexual assault victims are identified and best practices are shared. Where there are legitimate legal restrictions or professional obligations protecting certain communications or information from disclosure to unauthorized parties outside of the office (e.g., information possessed by or communicated to victim advocates, social workers, civil attorneys, schools), sharing may be appropriately limited. Protocols may, however, be created to permit disclosure with the informed consent of the victim.

Offices and prosecutors seeking support and assistance in formulating and implementing their efforts to improve collaboration and eliminate the siloing effect can turn to national technical assistance providers such as AEquitas.¹⁰⁴

2.2-B-4. Develop an Effective Strategy for Communicating with the Community About Sexual Violence¹⁰⁶

Prosecutors must clearly communicate to the public the prevalence of sexual violence in their community, gap between occurrence and reporting, services available for victims, prioritization of these crimes by the office, and prevention efforts in which the office is involved.¹⁰⁷ In addition, prosecutors should be prepared to discuss information about how cases are analyzed and processed with the media and the public. Providing the community with transparent and accurate information about prosecution rates, factors that impact prosecutorial decision-making, noteworthy successes, challenges and disappointments, and the methods employed to measure prosecutorial effectiveness, will promote confidence in the office’s commitment to timely and evenhanded justice in sex crimes prosecutions. The importance of these public talking points – reflecting the office’s research and expertise on these crimes and issues –  cannot be overstated.

Develop a public communication strategy, consistent with rules of professional ethics,¹⁰⁸ to address the incidence of sexual assault in the community. Communications can disclose and explain, in a general, non-case-specific way, such issues as the prosecution or allied partner response, considerations in prosecutorial decision-making, prosecution rate, case outcomes, and performance management.¹⁰⁹ Develop a public communication strategy for reporting significant developments in specific cases in a manner consistent with the rules regarding professional conduct and victim privacy. If individual prosecutors are authorized to speak publicly about their cases, they should receive proper training on the responsibilities of doing so. There are significant constraints on the public discussion of any case. Typically, public comment is limited to matters of public record and governed specifically by the jurisdiction’s rules of professional responsibility. A good working relationship with the media is important, not only to educate the public on issues pertaining to the prosecution of sexual violence, but also to gain insight from media questions that may further inform communication strategy.

2.2-B-5. Improve Community Relations by Promoting Cultural Humility

For victims deciding whether to engage with the justice system, and for community members longing to have faith in that system, the depth and sincerity of prosecutor engagement may make all the difference. Mistrust often originates in the actual or perceived disparate treatment of victims and offenders based their characteristics. Offices and prosecutors should work closely with local advocates to develop insight into the various cultures represented in the community in order to better understand the victim’s experience of trauma as well as the potential reasons for their reluctance to engage the system.

“Given the complexity of multiculturalism, it is beneficial to understand cultural competency as a process rather than an end product. From this perspective, competency involves more than gaining factual knowledge — it also includes our ongoing attitudes toward both [victims] and ourselves.”¹¹⁰ This attitude has been termed cultural humility. Victims with varying backgrounds – encompassing socioeconomic, racial, ethnic, gender identification, sexual orientation, religious, age, disability, and other differences – may diverge in their perception of law enforcement and the criminal act itself, as well as the availability of resources for safety and healing.¹¹¹ Cultural humility replaces barriers with bridges, increasing the level of trust and understanding on both sides of the conversation. It enhances the ability and willingness of victims to engage and stay engaged with the system and results in positive case outcomes. It facilitates prosecutorial interaction across cultures with an appreciation of concerns specific to the diverse populations within the local community.¹¹²

Improving victim engagement is important for encouraging the reporting of sexual assault crimes and enhancing the criminal justice system’s response. Offices can take the following steps:

• Assume a leading role in community outreach.¹¹³
• Assess cases for indicators of bias to ensure that the system is fair to all victims and defendants.¹¹⁴
• Provide regular reports to the community on outcome measures that may indicate law enforcement or prosecutor bias. Do not hide bad outcomes or provide weak excuses, but listen to the public’s concerns and explain plans for alleviating problems and improving future outcomes.
• For guidance on collecting data related to victim and offender demographics, see RSVP Vol. II, Chapter IV – Identifying Victim Demographic Subgroups.¹¹⁵

2.2-B-6. Encourage and Facilitate Formal and Informal Cross-Training

Research demonstrates that sexual violence cases are frequently screened out by law enforcement and prosecutors due to the very factors that make them unique:¹¹⁶  rare third-party witnesses; intoxicated, sexually exploited, disabled, or otherwise vulnerable victims who are often targeted by offenders; and attacks involving persons known to the victim. Historically, these characteristics have resulted in cases going uninvestigated (e.g., sexual assault kit backlogs across the country)¹¹⁷ and dangerous serial perpetrators continuing to commit sexual assaults.¹¹⁸

An early line of defense to the often-uninformed concerns regarding credibility in cases with these common characteristics is cross-training specialized sex-crimes prosecutors and other specialized units, law enforcement officers, and allied professionals who are a part of the initial response to sexual assault. Participation by survivors, as well as their advocates, reminds law enforcement and prosecutors of the ongoing imperative to support victims and respond to their collateral needs, keeping them safe and engaged in the system. Advocates can also provide valuable input based on their work with victims who do not report their crimes. Other community-based professionals and national experts should also be involved in training efforts to improve their ability to work effectively with prosecutors and their partners, including:

• Medical professionals (including SANEs) to explain the significance of injury or lack thereof, victim behavior, etc.
• Toxicologists to explain the impact of alcohol and drugs, and the science involved in their evaluations.
• Experts on human trafficking and violence against sexually exploited women to explain trafficking dynamics as well as the long-term negative effects of this form of victimization.
• Experts on the neurobiology of trauma,e., the impact of trauma on the victim’s ability to remember and to discuss the assault, as well as other issues related to interviews (e.g., inconsistencies; delayed reporting; victim demeanor).¹¹⁹
  • Criminal justice professionals should consult with experts in this area to enhance their understanding of trauma’s effects on the brain, but prosecutors should not introduce expert testimony on the neurobiology of trauma at trial. This area of science is continuing to evolve and true experts in neurology are hard to come by, and experts like advocates or academics in sex crimes generally do not meet the legal standards for expert testimony in this specialized field. Introducing this evidence may invite a “battle of the experts” or the examination of the victim by a defense expert. Moreover, the neurobiology of trauma does not explain all victim responses to sexual violence — there may be other, non-biological explanations for many victim behaviors the jury may struggle to understand. Finally, there is the risk that expert testimony on neurobiology may too easily cross the line into an assessment of victim credibility, improperly invading the province of the factfinder.
• Various experts of different types to offer general expert testimony interpreting victim behavior that does not meet common juror expectations.¹²⁰
• Domestic violence advocates to illustrate victim-offender dynamics in cases involving intimate partner sexual violence.¹²¹
• Disability experts to facilitate dialogue with the victim on the stand and to explain the impact of a disability on one’s ability to consent, communicate, consent, and/or engage in other verbal or physical functions.

Cross-training improves the overall response to sexual assault by promoting communication and fostering trust among disciplines, increasing the likelihood of identifying sexual assault in co-occurring crimes, analyzing and acting on emerging problems and issues, and strengthening the jurisdiction’s core competencies.¹²² Cross-training can be encouraged by providing professional continuing education credits for participation. For law enforcement, roll-call trainings are an option.