Colocation and Collaboration: A South African Model

First developed in the early 2000s in response to the sexual violence epidemic in South Africa, Thuthuzela Care Centres represent a comprehensive, collaborative, and integrated model for responding to sexual violence crimes. As one-stop facilities for victims and survivors, the Centres offer a wide variety of services, including a medical examination, short-term counseling and long-term counseling referrals, housing arrangements where necessary, and a consultation with a specialist prosecutor. The Thuthuzela are located in close proximity to a specialized Sexual Offences Court, staffed by prosecutors, social workers, investigating officers, magistrates, health professionals, and police. While early studies have noted gaps in healthcare provision to victims,¹³⁵ the Centres have reportedly enhanced the quality of justice in sexual violence cases. According to USAID officials in 2011, conviction rates for sexual violence have increased from 7 percent to 58-60% for cases going through the Centres;¹³⁶ reporting rates have gone up in some parts of South Africa; and case processing times have drastically improved.¹³⁷

3.1-B. Consider Law, Policy, and Relevant Research

The prosecutor’s initial review of a case should be informed by research, experience, and training. Prosecutors should have a thorough knowledge of all applicable sexual assault statutes and their underlying public policy, as well as the case law interpreting them.¹³⁸ Knowledge of the law alone, however, will be insufficient to ensure success. The written law may not account for all current scientific, technological, and social science research that may implicate a case. A thorough understanding of this research will facilitate an accurate assessment of the evidence and enable the prosecutor to recognize gaps requiring further investigation. The research identified in Appendix B will support an accurate and data-driven assessment of the case and supporting evidence.

Review of initial case reports should include:

• A careful reading of incident and summary reports; review of any recorded statements,¹³⁹ crime scene video, and photographs; review of any notes in the file, including notes by any previously assigned investigators or prosecutors; and identification of corroborating or conflicting statements. For victims with disabilities or primary languages other than English, shorter police reports may indicate that an interviewer’s difficulty in understanding the victim impacted the information recorded in the interview. If police reports appear to contain inconsistent or incomplete information, seek clarification and request supplemental reports correcting misstatements, explaining the discrepancy, and stating the supplemental report was requested by the prosecutor. If the reports accurately reflect what the officers observed or were told, no changes should be made – but sometimes a report will inaccurately paraphrase a witness’s statements. Such inaccuracies may result from poor report-writing or misunderstandings — of the witness regarding the question, or officer regarding the answer. If a report needs to be corrected for accuracy later, take a new statement, clearly laying out of reasons for the new statement.
• Note any statements in reports suggesting the investigator may have formed a judgment about the victim’s credibility or blameworthiness for the assault and prematurely stopped further investigation.
  • Some reports contain clear value judgments about the victim and her/his behavior, while others use more subtle language, g., using “claims” or “alleges” in recounting the victim’s statements, as opposed to the more accurate and neutral terms, “reports” or “states.” Similarly suspect reports are devoid of direct quotes except for isolated words or phrases that describe force or lack of consent.
  • These examples are not exhaustive but raise red flags for three reasons: 1) if the victim felt “judged” by the officer, it may impact their willingness to stay engaged with the case; 2) such reports indicate a likelihood that leads, including available evidence and identified witnesses, may not have been investigated; 3) such reports may create issues during the officer’s cross-examination at trial. (“Isn’t it true that you had your doubts about this supposed victim’s account?”) In addition to requesting follow-up investigation to the extent necessary for a complete investigation, prosecutors who receive such reports should take appropriate steps to encourage officers to communicate with victims using trauma-informed interviewing techniques and improve their report-writing. Enlist the assistance of an advocate to reach out to victims and assure them that their case is receiving appropriate attention.
• Analyze reports for relevant and material evidence supporting the elements of the offense. Where appropriate, seek input from fellow prosecutors, supervisors, and experts¹⁴⁰ for their thoughts about the case and the kinds of evidence that might strengthen it. Look for evidence:
  • Corroborating the accounts of the victim or witnesses.¹⁴¹
  • Suggesting the assault was drug- or alcohol-facilitated, and showing the effects of those substances.¹⁴²
  • Supporting the elements of force or lack of consent, particularly where evidence of these is subtle or nuanced.¹⁴³
    • Reports should be written in the language of an assault (g., a victim’s description of forcible penetration should not be documented as victim “had sex” with the perpetrator). Again, issues of report-writing should be discussed with the reporting officer in the interest of improving investigation and report-writing skills. Reports should avoid inadvertently victim-blaming by emphasizing what actions the victim did not take (e.g., “victim did not resist”) but instead should explain what actions the victim did take and what the victim experienced (e.g., “victim reported that they stopped moving and were ‘frozen’”; “victim reported that they started to cry”).
  • Analyze reports for indications of co-occurring crimes (image exploitation crimes, stalking, harassment, intimate partner violence, violence against sexually exploited persons, hate crimes, etc.).¹⁴⁴ Unless prosecutors and allied professionals are equipped to recognize signs of co-occurring crimes and use trauma-informed interviewing techniques¹⁴⁵ to obtain relevant information from victims, such crimes may go unnoticed with all attention focused on the “presenting problem” — the criminal offense for which law enforcement was summoned. Victims may be fearful or ashamed of volunteering information about other crimes (particularly sex crimes or image exploitation), may not recognize the offender’s related conduct as criminal (g., stalking or intimidation), or may fear being prosecuted themselves (e.g., where gang members use violence or coercion to involve victims in criminal activity or where the victim has been intimidated by immigration-related threats). Challenges to identifying co-occurring crimes are heightened when victims live in underserved communities, culturally competent services are not available, and public trust in law enforcement is low (e.g., inner-city communities or those with a significant immigrant population). Early identification helps connect victims with all appropriate services to address the full range of victimization at the earliest possible stage, helps investigators obtain evidence while it is still available and fresh, and allows prosecutors to make appropriate initial charging decisions and arguments regarding bail conditions.
  • Analyze reports for any indication of intimidation, however subtle, so you can follow up with the victim or witness for additional information and take measures to address it. Be alert for circumstances creating opportunities for intimidation.¹⁴⁶
  • Identify and secure all potential sources of digital evidence.¹⁴⁷ Work with law enforcement personnel trained in digital extraction and cyber investigations. Search warrants for cell phones should be obtained and executed quickly to preserve evidence before it is destroyed; consider current issues regarding compelling defendants to provide their passcode and searches of cell-site location data.¹⁴⁸ Preservation letters should be sent to internet service providers (ISPs) or social media platforms pending service of subpoenas, warrants, or court orders to obtain records maintained by those entities.¹⁴⁹ Remember that victims or witnesses can generally consent to the release of records relating to their own internet accounts, but the information still must be promptly preserved. When reviewing digital evidence obtained from the victim, be mindful of current sociological and psychological research on communications between internet users, particularly in dating-app facilitated sexual violence cases.¹⁵⁰ Anticipate defense discovery requests of the victim’s digital records and protect the victim’s privacy to the extent possible – see Section 3.1-D-2 for more on victim privacy.¹⁵¹
  • Consider the relevant statute of limitations.¹⁵² Prosecution of a sexual assault may be delayed for any number of reasons — inability to identify a perpetrator, inadequate investigation, subsequent technology improvements allowing for the development of new leads many years after a crime, or the survivor’s inability to report the crime until significant time has passed. When the perpetrator is finally identified or enough evidence is developed, the lapse of time can still pose a significant legal obstacle to prosecution. The law often limits the time for bringing charges against a perpetrator. These limitations vary widely across the United States and are rapidly changing in response to technological advances and increased understanding about sexual assault and the effects of trauma. Even where an assault is barred by the statute of limitations, it may still be admissible at trial against the same offender for another assault that is within the relevant statute of limitations as “other acts evidence.”¹⁵³ Consider filing a “John Doe” complaint and seeking an indictment or information that describes a perpetrator based on the DNA profile extracted from sexual assault kit samples. The suspect can then be brought to trial under a timely-filed charging instrument.¹⁵⁴
  • Closely review the evidence in the sexual assault kit (SAK) in all cases in which it is available, regardless of whether the offender was known to the victim or the defendant admits the act while asserting a consent defense.
    • SAK evidence can lock in the perpetrator’s identity, foreclosing a denial defense; corroborate certain aspects of the victim’s account of the assault (g., injury, anal penetration, or ejaculation elsewhere on the victim’s body); and ultimately link the perpetrator to other crimes that may be admissible as “other acts evidence” to prove issues such as intent, lack of mistake, common scheme or plan.
    • Victims have a strong interest – and in some jurisdictions a codified right – in being informed about the status of their kits.¹⁵⁵
    • Review medical evidence and, where necessary, consult with a medical expert or the examining physician to understand the inferences that can be drawn from any observations or conclusions.¹⁵⁶
    • Ensure the chain of custody is well-documented and the kit is sent to the crime laboratory in a timely manner.
    • Arrange to track the testing of evidence in the kit and provide the victim with updates on its progress.¹⁵⁷ Find out from the lab the estimated timeline for testing and when results should be expected.
    • If the lab states the samples will be consumed during testing, notify the defense and schedule any necessary hearings to resolve issues concerning defense access to the testing process.¹⁵⁸

3.1-B-1. Communicate Regularly and Meaningfully with Investigators

The prosecution-law enforcement partnership is critical to success in these cases. A good working relationship requires meaningful communication on a regular basis, which will foster honesty and candor based on trust and mutual respect. Create open lines of communication that permit discussion of any questions or problematic issues, such as report-writing skills or evidence-collection practices. Explain the reasons for any additional investigation requested — this will put the request in context and increase the likelihood of a helpful response. Fostering this type of relationship will reduce the number of cases declined for prosecution and improve the ability to identify serial offenders and co-occurring crimes.¹⁵⁹

In your interactions with law enforcement, encourage officers and investigators to keep the following in mind.

• Sexual violence cases are complicated. They require more in-depth and nuanced investigation than other crimes; only rarely is there the type of third-party witness testimony and evidence typically available in other criminal cases. Once evidence is lost, obtaining a conviction is made even more difficult. Collect and preserve evidence at the very beginning of the case to provide the strongest chance of identifying and successfully prosecuting a perpetrator.
• Work on establishing rapport with victims before you talk to them about the crime committed against them. You’re dealing with victims of traumatic assaults who are still recovering from the experience, and who are being asked to talk about very personal, private matters to a stranger — not an easy thing to do. Find out as much as you can about the crime from other sources before sitting down to talk with the victim.
• Follow the evidence where it leads. When a victim reports being assaulted at home, then the home is a crime scene; if it happened in a car, then the car is a crime scene. Gather, document, and preserve the evidence at the scene. Follow up on any leads, and look for evidence that corroborates any details of what the victim has told you.
• Never decide “this case is going nowhere” and stop investigating because the victim or suspect was drunk or using drugs, is a sexually exploited person, was in a relationship with the suspect, made a report that doesn’t make sense to you, has trouble processing information or communicating in a traditional manner, or for any other reason that you believe is problematic. Prosecutors have strategies to deal with any fact at trial, but only if our evidence was gathered during a thorough investigation. We will decide later, after the investigation is completed, whether we have enough evidence to prosecute a crime.
• Never give the victim the impression the case will not be prosecuted. This is a decision for the prosecutor to make after the investigation is completed. When victims are told that their case seems weak, it makes them feel like they are not believed, which only adds to the trauma of what they already experienced. If the victim asks your opinion, just say that you are going to investigate everything so when the time comes for the prosecutor to decide what to do, they have all the necessary information to make that decision.

In addition to the value of a good relationship during the investigative stage, law enforcement can also provide support during trial. A trusted officer can wait with the victim and other witnesses outside the courtroom; transport witnesses to court; identify acts of intimidation in the courthouse; and can be a source of support for victims, particularly where community and other advocates lack capacity.¹⁶⁰

Be careful about complying with sequestration orders; if the officer is transporting the victim or waiting to testify in the same location, they should be cautioned not to discuss their testimony or the facts of the case, and briefed on how to respond at trial to questions about their interactions with the victim.

Regular and meaningful communication should continue after the disposition of a case. Any officers or investigators who did significant work on the case — whether or not they testified at trial — should be advised of the outcome. Prosecutors should debrief law enforcement on significant aspects of success during investigation and trial, any practices or investigative methods that proved problematic, and any evidence that may have been missed.

Officers or investigators who did especially outstanding work on a case should be commended in a letter to their chief or superior officer. Similarly, prosecutors should invite feedback from law enforcement about the prosecution/litigation of the case (e.g., pleas, motions filed, arguments, cross and direct) and prosecutorial decision-making.

3.1-C. Make Charging Decisions Consistent with Research and Ethical Considerations

Jurisdictions vary as to the agency responsible for “filing” charges. Law enforcement may have the legal authority or responsibility for making the initial charging decision, or that role may be assigned to prosecutors. Regardless of the specific process, at some point prosecutors will be responsible for determining whether there is probable cause to charge a crime – the minimum charging standard required by rules of ethics.¹⁶¹

Sometimes office policy requires a higher standard for charging – a reasonable likelihood of conviction.¹⁶² However, where the ordinary complexities of such cases are transformed into effective barriers to offender accountability, this standard often leads to inappropriate declinations of many sexual assault cases.

Inappropriate declinations tend to rest on two distinct, yet equally problematic practices. The first is the initial — often inaccurate — impression of the case facts or victim. The second is speculation or prediction about the outcome.

Given the prosecution 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? In most sexual violence cases, this question will amount to, “Could a reasonable jury believe the victim beyond a reasonable doubt when they testify that they did not consent?” and “Could the jury conclude beyond a reasonable doubt that the defendant knew or reasonably should have known the victim did not consent?”¹⁶⁸ If the answer to either question is no, then the case should be dismissed. However, if both questions can be answered in the affirmative, then the case should be pursued to trial.¹⁶⁹

[E]vidence is deemed sufficient if “an objective, impartial and reasonable jury . . . properly directed and acting in accordance with the law, is more likely than not to convict the defendant of the charge alleged.¹⁷⁰

Determine whether the defendant has any related open cases that should be combined with the present case, particularly when involving the same victim. Where there has been an ongoing pattern of abuse, there might be other cases open — in the same office, in neighboring jurisdictions within the state, or in a lower court — that might be appropriately combined for prosecution, perhaps as part of a stalking charge. Whether and how that can be accomplished will depend upon local law and court rules, but combining any such related cases is worthwhile where possible.

Identify the elements of every potentially applicable charge and determine whether enough evidence exists to support the elements, using informed discretion to charge multiple counts, enhancements, or aggravated offenses where appropriate. The Charging Tool at Appendix E may be helpful to identify, organize, and assess all the of evidence in the case prior to charging or to identify any areas where follow-up investigation is necessary. Anticipate common issues associated with multiple-defendant trials, such as joinder, severance, and the admissibility of confessions or redacted confessions.¹⁷⁶

When police have filed the preliminary charges, they must be reviewed for propriety and completeness. Request additional investigation where necessary. Add, amend, or reject/dismiss specific charges as appropriate. Discuss charging decisions in detail with law enforcement and explain to the victim the ultimate charges and any significant changes to the preliminary charges. A case should not be declined for prosecution without first consulting with the victim.

Consider whether a pretext phone call, text message, or social media contact with the defendant would be helpful or appropriate, bearing in mind that once the defendant’s Sixth Amendment right to counsel has attached, such pretextual communications would violate that right.¹⁷⁷ Some jurisdictions have special procedures that must be followed before a pretext call can be recorded, and failure to strictly comply may result in suppression of the call.¹⁷⁸ A victim should never be compelled to participate in a pretext call, and an advocate should be present to provide support during and after the call.

A Note on Prosecutorial Immunity

Typically, prosecutors enjoy absolute immunity in prosecuting a case, as opposed to the qualified immunity under which investigators operate. Absolute immunity attaches for activities “intimately associated with the judicial phase of the criminal process,”¹⁷⁹ e.g., initiating prosecution, determining probable cause for charging purposes, making charging decisions, drafting legal documents, or litigating the case in court. However, to the extent prosecutors provide advice to law enforcement on their activities, or engage in law-enforcement type activities themselves, e.g., acting as an investigator, attesting to the truth of an arrest warrant, or signing a search warrant affidavit, they are covered by the same qualified immunity that law enforcement officers have.

Qualified immunity provides significant protection against civil liability for actions taken in the course of one’s official duties. The prosecutor is immune from suit for discretionary actions so long as that conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”¹⁸⁰

There is nothing wrong with a prosecutor taking off the cloak of absolute immunity to perform activities covered by qualified immunity. However, whether a prosecutor does so depends on office policy, and in its absence, an informed decision. Some offices require prosecutors to advise officers in the performance of their duties, while others limit or prohibit prosecutors from taking action beyond that which is covered by absolute immunity. In the absence of a policy prohibiting it, a prosecutor may choose to give up absolute immunity for the purpose of supporting their law enforcement partners and obtaining better investigations with fewer legal problems arising later.

When deciding whether to break the shield of absolute immunity, you should:

• Be aware of the difference between absolute and qualified immunity.
• Check with your office to see if there is a policy in place.
• Inform your supervisor of your desire to work closely with police on these cases and why.
• Seek guidance from your jurisdiction’s legal representative (whichever entity represents your office in the event of a lawsuit — typically, the City or County Attorney).
• Look for other examples of police/prosecutor collaboration in your jurisdiction or others, g., other specialized units or co-located police/prosecutor teams.

A Note on Intimate Partner Sexual Assault

Perpetrators may establish relationships with victims in order to obtain greater access to them and assert greater control over them through power, coercion, and cyclical violence.¹⁹⁷ These abusive behaviors may include sexual assault of the intimate partner or the partner’s child. Some relationships may be developed for the purpose of grooming the victim. Sexual violence victims who are intimate partners of their rapists often experience self-blame and a profound sense of betrayal, resulting in unique trauma from the assault and additional barriers to reporting it.¹⁹⁸ Those barriers include the victim’s lack of self-identification as a victim, self-blame, shame, fear of not being believed, and fear of physical reprisal. Victims of intimate partner violence who are involved in gangs and those trafficked in commercial sexual activity, face the same barriers, compounded by fear of their own prosecution and reprisals from the offender’s allies.

Victims may be unable to recall the precise chronology of events and some parts of the experience may be too painful to recall. Asking the victim, “What are you able to remember about—?” is a helpful way to encourage the victim to talk about what happened without pressuring them to recount a sequence of events. This question also conveys to victims that the prosecutor recognizes the trauma they have experienced.

The victim might be asked, for example, whether she was able to see the offender’s eyes as he moved toward her. If she recalls that the offender’s eyes were angry, terrifying, or mean, ask how that made her feel. The victim’s response might be that she was scared, her heart was pounding, or she felt like she couldn’t breathe.

Avoid Coercive Practices

Arresting sexual assault victims to force them to testify is widely recognized as an undesirable practice that compromises victim safety; it is rarely or never seen in jurisdictions with specially trained and experienced prosecutors.

Whether the arrest of victims perceived as “uncooperative” is based on prosecutor frustration with the victim’s behavior or on a misguided sense of professional obligation, experience has shown that arresting victims for failure to appear is counterproductive. Such arrests compound the trauma victims have already experienced, result in serious collateral consequences for them, and undermine prosecution efforts to build trust and cooperation with their allied partners and with the community at large.²¹⁹  The overall negative costs far outweigh the minimal benefit of producing a reluctant (and — thanks to the arrest — probably frightened and angry) victim in court.

There are many alternatives to the use of coercive tactics. First and foremost is to provide the kind of support, from the earliest stages of the case, that will reduce the burden on victims having to testify. This means providing advocacy from the time of the initial police response. Another helpful strategy is to train officers on the importance of obtaining strong evidence (including corroborative evidence and nontestimonial statements of the victim that will be admissible under Crawford), which – in rare circumstances – may enable prosecutors to prove their cases without victim testimony. Moreover, victims may be more willing to testify when they do not perceive their testimony to be the linchpin of the case.²²⁰

OVW requirements prohibit arresting victims as a practice.²²¹ There is nothing prohibiting such a response in the very rare case in which it might be appropriate and necessary.

For example, it’s possible to imagine a case against an extraordinarily dangerous rapist in which the ONLY way to prove the case is to put the victim, who is adamant in her refusal to testify, on the stand. For those very rare cases, there are ways to mitigate the negative collateral consequences for the victim, e.g., making sure that the judge/jury is prepared to hear the victim’s testimony immediately, making sure that care is available for any children or others for whom the victim might be responsible, and providing an advocate for ongoing safety planning.

The act of arresting a victim should be considered only as the very last resort and in only the most extraordinary of circumstances.

The process of completing the chart also helps to identify corroborating evidence (e.g., multiple sources of witness testimony), as well as any gaps in evidence, which may require follow-up investigation, or evidence that may be the subject of a defense motion to suppress or otherwise exclude, and, therefore require identifying additional corroborating evidence to support the same element of the charge.

Completing the chart can help identify particular issues related to the individual pieces of evidence/testimony and will assist you in incorporating the evidence into a cohesive case theme/theory and anticipating how the defense may respond to each element of the charge. The sections that follow provide strategies for incorporating the individual pieces of evidence into the preparation and trial of the case.

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¹³⁴ See, e.g., Thuthuzela: Turning Victims Into Survivors, Nat’l Prosecuting Authority of S. Afr. (2009), https://www.npa.gov.za/sites/default/files/resources/public_awareness/TCC_brochure_august_2009.pdf; and Recording by Christopher Mallios & John Wilkinson, Ethical Considerations for Prosecutors in Sexual Violence Cases, https://gcs-vimeo.akamaized.net/exp=1574291424~acl=%2A%2F721471601.mp4%2A~hmac=2e195e117d59dd7177bc580859b6e35b8cef0d8d630e5119723934bd690749b2/vimeo-prod-skyfire-std-us/01/2095/8/210475187/721471601.mp4  (recorded Aug. 2, 2013) (regarding considerations of prosecutorial immunity).

¹³⁵ USAID South Africa Program in Support of PEPFAR: Thuthuzela Care Centers FY06 (July 31, 2007), available at https://pdf.usaid.gov/pdf_docs/PNADT749.pdf

¹³⁶ Jules Verdone, South Africa Initiative Flourishes 11 Years On, 18 Just’ Cause 3 (2011), available at http://archive.vera.org/sites/default/files/resources/downloads/Just_Cause_summer_2011_.pdf.

¹³⁷ Thuthuzela Care Centres, UNICEF.org, available at https://www.unicef.org/southafrica/protection_998.html.

¹³⁸ See Resources, AEquitas, https://aequitasresource.org/resources/. Statutory compilations and case law summaries are available upon request. See also State Law Database, RAINN, https://www.rainn.org/public-policy-action (last visited May 18, 2017).

¹³⁹ With respect to recording statements, in the last several years, offices have adopted the use of video/audio recording to capture statements, including the use of body worn cameras. These can be powerful tools to capturing victim statements, however, some concerns around their use have been raised. See, e.g., Police Body-Worn Cameras: Where Your State Stands, Urban Inst., http://apps.urban.org/features/body-camera/ (last visited July 13, 2016); Michael D. White, Police Officer Body-Worn Cameras: Assessing the Evidence, Office of Justice Programs, Diagnostic Center (2014),  https://cops.usdoj.gov/RIC/Publications/cops-p289-pub.pdf; Implementing a Body-Worn Camera Program Recommendations and Lessons Learned, Office of Cmty. Oriented Policing Serv. & Police Exec. Research Forum (2014), http://www.justice.gov/iso/opa/resources/472014912134715246869.pdf; Strengthening CBP with the Use of Body-Worn Cameras, Am. Civil Liberties Union (June 2014), https://www.aclu.org/sites/default/files/assets/13_10_25_aclu_one_pager_re_body-worn_cameras_for_cbp_final.pdf; and John Wilkinson, To Record or Not To Record: Use of Body-Worn Cameras During Police Response to Crimes of Violence Against Women, 29 Strategies in Brief (2017), available at https://aequitasresource.org/wp-content/uploads/2018/09/To-Record-or-Not-To-Record-Use-of-Body-Worn-Cameras-During-Police-Response-to-Crimes-of-Violence-Against-Women-SIB29.pdf

¹⁴⁰ See Section 3.2-A-1 on working with experts on victim behavior and Appendix F Considerations for Working with Experts.

¹⁴¹ Recognize corroborative evidence in reports, including observations and statements. Corroboration may include evidence of serial perpetration; other crimes, wrongs, or acts; evidence of threats or intimidation; evidence of planning (access, isolation, grooming, concealment of the crime).

¹⁴² Be aware of intoxication and its impact on the investigation as well as during the prosecution and presentation of evidence. See AEquitas, Sexual Assault Justice Initiative Literature Review (2017) (sections on Criminalistics, Toxicology, and Alcohol-Facilitated Sexual Assault); and Schuller & Stewart, supra note 44.

¹⁴³ See Force and Consent Statutory Compilation and Case Law Digest, AEquitas (draft current as of 2019) (available upon request).

¹⁴⁴ See AEquitas, Sexual Assault Justice Initiative Literature Review (2017) (sections on Image Exploitation, and Witness Intimidation and Forfeiture by Wrongdoing); AEquitas, Annotated Bibliography: Sex Trafficking (July 2016).

¹⁴⁵ See Section 3.1-F-1 on Conducting Trauma-Informed Interview of the Victim to Reveal Evidence of the Crime.

¹⁴⁶ See Appendix H for strategies for identifying and responding to victim and witness intimidation; and AEquitas, Field Guide to Witness Intimidation: A Reference for Identification (January 2018), available at https://aequitasresource.org/wp-content/uploads/2018/09/Field_Guide_to_Witness_Intimidation_3.19.18.pdf.

¹⁴⁷ See, e.g., Anderson, supra note 96; Jane Anderson & Supriya Prasad, Prosecuting Image Exploitation 15 Strategies (Mar. 2015), available at https://aequitasresource.org/wp-content/uploads/2018/09/Image-Exploitation-Strategies15.pdf; Police Body-Worn Cameras: Where Your State Stands, supra note 136; White, supra note 139; Office of Cmty. Oriented Policing Serv. & Police Exec. Research Forum, supra note 136; and Am. Civil Liberties Union, supra note 136.

¹⁴⁸ See, e.g., Riley v. California, 134 S. Ct. 2473, 2477 (2014) (holding a warrant was required to search the contents of the cell phone belonging to an individual who has been arrested); State v. Diamond, A15-2075, 2017 WL 163710 (Minn. Ct. App. Jan. 17, 2017) (holding that the Fifth Amendment right against self-incrimination was not violated when defendant was ordered to provide fingerprint to unlock cell phone); and Carpenter v. United States, 138 S. Ct. 2206 (2018) (holding that an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through cell site location information, and that the government must generally obtain a search warrant supported by probable cause before acquiring cell site location information from a wireless carrier). Please contact AEquitas for additional research and information and for sample search warrant affidavits at (202) 558-0040 or info@aequitasresource.org.

¹⁴⁹ See Social Media Evidence—How to Find It and How to Use It, ABA Section on Litigation (2013), http://www.americanbar.org/content/dam/aba/administrative/litigation/materials/aba-annual-2013/written_materials/15_1_social_media_evidence.authcheckdam.pdf. Please contact AEquitas for sample search warrant affidavits and additional resources at (202) 558-0040 or info@aequitasresource.org.

¹⁵⁰ See, e.g., Monica T. Whitty & Garry Young, Cyberpsychology: The Study of Individuals, Society, and Digital Technologies 26 (2017); Adam N. Johnson, Self-Disclosure in Computer-Mediated Communication: The Role of Self-Awareness and Visual Anonymity. 31 Eur. J. Soc. Psychol. 177 (2001); John A. Bargh, Katelyn Y. A. McKenna & Grainne M. Fitzsimons, Can You See the Real Me? Activation and Expression of the ‘True Self’ on the Internet, 58 J. Soc. Issues, 33 (2002); and Noam Lapidot-Lefler & Azy Barak, The Benign Online Disinhibition Effect: Could Situational Factors Induce Self-Disclosure and Prosocial Behaviors?, 9 Cyber Psychol.: J. of Psychosocial Res. on Cyberspace (2015).

¹⁵¹ Contact AEquitas at (202) 558-0040 or info@aequitasresource.org to further discuss privacy concerns related to victim information and property.

¹⁵² See Statute of Limitations Statutory Compilation, AEquitas & Joyful Heart Foundation (2017).

¹⁵³ AEquitas, Evidence of Other “Bad Acts” in Intimate Partner Violence, Sexual Violence, Stalking, and Human Trafficking Prosecutions, 31 Strategies in Brief (2017), available at https://aequitasresource.org/wp-content/uploads/2018/09/Image-Exploitation-Strategies15.pdf.

¹⁵⁴ For more on John Doe arrest warrants, see AEquitas and Amy Jeanguenat, Understanding the Use of John Doe Arrest Warrants in Cold Case Sexual Assaults for Prosecutors (RTI International, 2018).

¹⁵⁵ See, e.g., Sexual Assault Victims’ DNA Bill of Rights, Cal. Penal Code § 680; Sexual Assault Kit Testing Initiatives and Non-investigative Kits, Office on Violence Against Women (Jan. 2017), https://www.justice.gov/ovw/page/file/928236/download; and Victims’ Rights and Sexual Assault Kits, Nat’l Ctr. for Victims of Crime, https://victimsofcrime.org/our-programs/dna-resource-center/untested-sexual-assault-kits/victims’-rights-and-sexual-assault-kits (last visited May 21, 2017).

¹⁵⁶ See, e.g., Jenifer Markowitz, A Prosecutor’s Reference – Medical Evidence and the Role of Sexual Assault Nurse Examiners in Cases Involving Adult Victims, AEquitas (2010), available at https://aequitasresource.org/wp-content/uploads/2018/09/Prosecutor_Reference_Medical_Evidence.pdf; Jenifer Markowitz, Absence of Anogenital Injury in the Adolescent/Adult Female Sexual Assault Patient, 13 Strategies in Brief (Sept. 2012), available at https://aequitasresource.org/wp-content/uploads/2018/09/Absence_of_Anogenital_Injury_in_the_Adolescent_Adult_Female_Sexual_Assault_Patient_Issue_13.pdf; and AEquitas, Sexual Assault Justice Initiative Literature Review (2017).

¹⁵⁷ See e.g., Sexual Assault Kit Tracking System, QueTel, https://www.quetel.com/products/sexual-assault-kit-tracking-system/ (last visited June 13, 2017); Navigating Notification: A Guide to Re-engaging Sexual Assault Survivors Affected by the Untested Rape Kit Backlog, Joyful Heart Foundation (2016), available at http://www.endthebacklog.org/information-survivors/victim-notification; 12 Key Questions to Guide Victim Notification Protocols, Sexual Assault Kit Initiative, https://sakitta.org/resources/docs/SAKI-Victim-Notification-Guide.pdf; and Rebecca Campbell, Giannina Fehler-Cabral & Sheena Horsford, Creating a Victim Notification Protocol for Untested Sexual Assault Kits: An Empirically Supported Planning Framework, J. of Forensic Nursing (2017).

¹⁵⁸ For additional information and resources on DNA for investigation and prosecution, see Practitioner Resources, Sexual Assault Kit Initiative, https://sakitta.org/resources/ (last visited June 13, 2017); and Section 3.2-A-5 DNA and Forensics.

¹⁵⁹ See Investigating Sexual Assaults: Model Policy, Int’l Ass’n of Chiefs of Police (2005); Improving Police Response to Sexual Assault, Human Rights Watch (2013), https://www.hrw.org/sites/default/files/reports/improvingSAInvest_0.pdf.

¹⁶⁰ In cases of intimidation, detectives can document incidents and notify prosecutors. In the rare circumstance where additional information is disclosed by the victim, detectives should document the statement and review it with the prosecution so that where discovery rules require, it is passed on to the defense.

¹⁶¹ Check your individual jurisdiction’s rules of professional responsibility. See Berger v. United States, 295 US 78, 88 (1935); National Prosecution Standards, Nat’l District Att’y Ass’n (3d ed., 2010); Model Rules of Professional Conduct (Am. Bar Ass’n); and Criminal Justice Standards, Prosecution Function (Am. Bar Ass’n, 4th ed. 2015).

¹⁶² See, e.g., Beichner & Spohn, supra note 13.

¹⁶³ Training both law enforcement and prosecutors in the core competencies identified in Appendix B and fostering multidisciplinary collaboration can help with appropriate decision-making.

¹⁶⁴ See, e.g., R. Lovell et. al, Offending patterns for serial sex offenders identified via the DNA testing of previously unsubmitted sexual assault kits, 52 J. Crim. Justice 68-78 (2017), available at  https://doi.org/10.1016/j.jcrimjus.2017.08.002; and Rebecca Campbell et. al, Tested at last: How DNA Evidence in Untested Rape Kits Can Identify Offenders and Serial Sexual Assaults, 33(24) J. Interpersonal Violence 3792-3814 (Dec. 2018), available at http://journals.sagepub.com/doi/abs/10.1177/0886260516639585.

¹⁶⁵ For more on conducting sexual violence case reviews, see Appendix M on Sample Case Review Protocol, Appendix N on Sample Case Data Tracking Sheet, and Appendix O on Sample Case Review Timeline.

¹⁶⁶ Dempsey, supra note 71.

¹⁶⁷ Id.

¹⁶⁸ See Rape and Sexual Offences: Chapter 2: Sexual Offences Act 2003 – Principal Offences, and Sexual Offences Act 1956 – Most commonly charged offences, Crown Prosecution Service, https://www.cps.gov.uk/legal-guidance/rape-and-sexual-offences-chapter-2-sexual-offences-act-2003-principal-offences-and (for a definition of “Rape”).

¹⁶⁹ That is, assuming that prosecution is in the public interest. A “prosecutor may…consistent with the public interest decline to prosecute, notwithstanding that sufficient evidence may exist which would support a conviction.” Standards for Criminal Justice: Prosecution and Defense Function (Am. Bar Ass’n. 3d ed. 1993) (para. 3-3.9(b)).  In cases where prosecutors decline to pursue charges on grounds of supposed evidential insufficiency, however, the further question of the public interest never arises. In addition, this underscores the importance of well-trained, experienced prosecutors who will not be analyzing the evidence through the lens of bias and myth. See Dempsey, supra note 71 (citing Andrew Ashworth & Michael Redmayne, The Criminal Process (OUP 4th ed. 2010)).

¹⁷⁰ Dempsey, supra note 71 at 6 (citing R. (on the application of Gujra) v. Crown Prosecution Service, [2013] 1 A.C. 484 (Baroness Hale)).

¹⁷¹ See Dempsey, supra note 71 at 6.

¹⁷² See Dempsey, supra note 71 at 6; and Owens, et al., supra note 23 at 9.

¹⁷³ Prior arrests and convictions should be reviewed for similarities in perpetration and other relevant facts and circumstances. Criminal histories may also provide information about the suspect’s presence or absence from the jurisdiction, as well as a timeline of convictions or police contacts which may be helpful in cold cases of sexual assault for tolling the relevant statute of limitations. However, victims’ criminal histories should not be used as the basis for credibility concerns regarding the victim’s account of sexual violence, absent extremely rare circumstances.

¹⁷⁴ For more on the prosecution of multidefendant or witnessed sexual violence, see Webinar recording by John Wilkinson, Challenges Multiplied: Multi-Defendant Rape and Witnessed Rape, available at https://gcs-vimeo.akamaized.net/exp=1574293802~acl=%2A%2F720677131.mp4%2A~hmac=9b7ba3c8837988a9f2f467a8b8286125ed98e0c576a0a10b40de5d8a2ac5eb2a/vimeo-prod-skyfire-std-us/01/2061/8/210305493/720677131.mp4  (recorded on Dec. 15, 2016).   

¹⁷⁵ See Garrity v. New Jersey, 385 U.S. 493 (1967) (administratively compelled statements made by officers during internal affairs investigation cannot be used against them in subsequent criminal trial).

¹⁷⁶ See Bruton v. United States, 39 U.S. 123 (1968).

¹⁷⁷ See #574 – Pretext Phone Calls, Int’L Associations of Chiefs of Police (2004), https://www.theiacp.org/resources/training-key/574-pretext-phone-calls; and Sexual Assault Investigation Ideas: A Series of the Sexual Violence Justice Institute, Pretext or Covert Call, Minnesota Coalition Against Sexual Assault.

¹⁷⁸ See State v. K.W., 70 A.3d 592 (N.J. 2013) (upholding suppression of recorded pretext phone call for failure to strictly comply with the requirements of state Wiretap Act).

¹⁷⁹ Imbler v. Pachtman, 424 U.S. 409 (1976).

¹⁸⁰ Harlow v. Fitzgerald, 457 U.S. 800 (1982).

¹⁸¹ Webinar recording by Christopher Mallios, Overcoming the Consent Defense: Identifying, Investigating, and Prosecuting the Non-Stranger Rapist, available at https://gcs-vimeo.akamaized.net/exp=1574294293~acl=%2A%2F721591276.mp4%2A~hmac=e20456aff72615a9641e525ff5a2e1723950fe4c11b2f64bebab254475ff59f2/vimeo-prod-skyfire-std-us/01/2099/8/210498449/721591276.mp4  (recorded on Apr. 18, 2014).

¹⁸² See Vitauts M. Gulbis, Modern Status of Rule Regarding Necessity for Corroboration of Victim’s Testimony in Prosecution for Sexual Offense, 31 A.L.R. 4th 120 (2017).

¹⁸³ See DJ Smith et. al, Frequency and Relationship of Reported Symptomology in Victims of Intimate Partner Violence: The Effects of Multiple Strangulation Attacks, 21(3) J. Emerg. Med. 323-329 (2001); and Maureen Funk and Julie Schuppel, Strangulation Injuries, 102(2) Wisconsin Med. J. 41-45 (2003).

¹⁸⁴ Murphy, et al., supra note 116.

¹⁸⁵ More information on the utilization of forensic evidence for sexual assaults can be found at sakitta.org, a project on which AEquitas is a partner. See, e.g., RTI International, Prioritizing Cold Case Hit Follow-Up: Strategies for Sexual Assault Investigators, available at https://www.nationalpublicsafetypartnership.org/clearinghouse/Content/ResourceDocuments/Prioritizing%20Cold%20Case%20CODIS%20Hit%20Follow%20Up.pdf; and RTI Forensic Technical Center of Excellence, In Brief Report Series: Beyond DNA – Sexual Assault Investigations Parts I, II, and III, available at https://www.ncjrs.gov/App/Publications/abstract.aspx?ID=274799.

¹⁸⁶ See Anderson, supra note 96.

¹⁸⁷ See Sarah Ben-David & Ofra Schneider, Rape Perceptions, Gender Role Attitudes, and Victim-Perpetrator Acquaintance, 53(5/6) Sex Roles 385 (Sept. 2005); Ellison & Munro, supra note 65; Louise Ellison & Vanessa E. Munro, Turning Mirrors into Windows?: Assessing the Impact of (Mock) Juror Education in Rape Trials, 49 Brit. J. Crim. 363 (2009); Kim Lonsway & Louise Fitzgerald, Rape Myths in Review, 18 Psychol. Women Q. 133-64 (1994); and Jennifer Gentile Long, Introducing Expert Testimony to Explain Victim Behavior in Sexual and Domestic Violence Prosecutions, Nat’l District Att’y Ass’n (2007), https://www.forensichealth.com/wp-content/uploads/2016/10/pub_introducing_expert_testimony.pdf.

¹⁸⁸ See, e.g., Berger, 295 U.S. at 88.

¹⁸⁹ See Wayne LaFave, Jerold Israel, Nancy King,  and Orin Kerr, Pretrial Release Procedures in Criminal Procedure 4, § 12.1(b) (2d ed.) (2012); Wayne LaFave, Jerold Israel, Nancy King, and Orin Kerr, Pretrial Release Procedures in Criminal Procedure 6, § 22.3(a) (3d ed.) (2014).

¹⁹⁰Id.

¹⁹¹ See Section 3.1-C on Making Charging Decisions Consistent with Research and Ethical Considerations and counter defense arguments that play into myths.

¹⁹² Support for this argument may include the defendant’s lengthy or serious criminal history (including failure to appear); violation of no-contact orders; and violation of probation or parole, suggesting that a defendant will disregard court orders to appear.

¹⁹³ See, e.g., Why Testing Rape Kits Matters, End the Backlog, http://endthebacklog.org/backlog/why-testing-matters (last visited May 21, 2017); and Test Rape Kits. Stop Serial Rapists, supra note 1.

¹⁹⁴ Studies show a “‘crossover effect’ of sex offenders admitting to multiple victims and offenses atypical of criminal classification. Specifically, studies have shown that rapists often sexually assault children and incest offenders often sexually assault children both within and outside their family. These findings are consistent among populations (e.g., community, prison, parole, probation) and methodologies (e.g., guaranteed confidentiality, polygraph testing). This section reviews the evidence of crossover offending, which challenges the validity of traditional sex offender typologies (those that are based on a known victim type).” Dominique Simons, Chapter 3: Sex Offender Typologies, Sex Offender Mgmt. Assessment and Planning Initiative, https://www.smart.gov/SOMAPI/sec1/ch3_typology.html (last visited June 9, 2017) (internal citations omitted).

¹⁹⁵ See Jacquelyn C. Campbell, Danger Assessment (2001), www.ncdsv.org/images/dangerassessment.pdf (forced sex has been found to be a lethality indicator when conducting risk assessments of domestic violence victims).

¹⁹⁶ “Sexual assault occurred repeatedly within these intimate relationships—almost 80 percent of sexually assaulted women reported more than one incident of forced sex.” Lauren Taylor & Nicole Gaskin-Laniyan, Sexual Assault in Abusive Relationships, Nat’l Inst. of Just., www.nij.gov/journals/256/sexual-assault.html (last visited June 2, 2017 (referencing McFarlane, J., and A. Malecha, Sexual Assault Among Intimates: Frequency, Consequences, and Treatments (2005), www.ncjrs.gov/pdffiles1/nij/grants/211678.pdf.

¹⁹⁷ See Jennifer G. Long, & Jenifer Markowitz, Intimate Partner Sexual Violence: Prosecution and Medical Issues in Violence Against Women: Contemporary Examination of Intimate Partner Violence (2015).

¹⁹⁸ See Finkelhor & Kersti Yllo, License to Rape: Sexual Abuse of Wives (N.Y. Free Press 1985); and D.E.H. Russell, Rape in Marriage (Ind. U. Press. 1990).

¹⁹⁹ In the event the victim objects to the issuing of a protection order, see Jennifer Long, Christopher Mallios, & Sandra Tibbetts Murphy, Model Policy for Prosecutors and Judges on Imposing, Moving, and Lifting Criminal No-Contact Orders, AEquitas (2010), available at https://aequitasresource.org/wp-content/uploads/2018/09/Model-Policy-for-Prosecutors-and-Judges-on-Imposing-Modifying-and-Lifting-Criminal-No-Contact-Orders.pdf.

²⁰⁰ Develop a strategy where the victim and offender live or receive care in the same group home or facility.

²⁰¹ See Victim Privilege Statutes by Practitioner, AEquitas (2011) (available upon request); and State Law Database, RAINN, https://apps.rainn.org/policy/ (last visited May 18, 2017).

²⁰² See Recording by Teresa Garvey, Criminal Meets Civil: Coordinating Our Response, https://gcs-vimeo.akamaized.net/exp=1574296004~acl=%2A%2F720677334.mp4%2A~hmac=4165a8787723e66c212880449c6f609783dda2d1f431783b2467217e777396af/vimeo-prod-skyfire-std-us/01/2061/8/210305578/720677334.mp4 (recorded Nov. 30, 2015); and National Crime Victim Law Institute, https://gcs-vimeo.akamaized.net/exp=1574296106~acl=%2A%2F756667832.mp4%2A~hmac=778ed846f04910b8b44fffdb35450776b2aa80522bd2e3aa8389046c1006ed0d/vimeo-prod-skyfire-std-us/01/3640/8/218200340/756667832.mp4 (last visited May 21, 2017).

²⁰³ See Jane Anderson & Meg Garvin, Safeguarding Victim Privacy in a Digital World: Ethical Considerations for Prosecutors, https://aequitasresource.org/resources/ (recorded on May 18, 2017).

²⁰⁴ Generally, defendants have to meet a certain threshold showing of relevance and materiality of a victim’s records before an in camera review is appropriate.

²⁰⁵ Persons with disabilities, especially those with communication and cognitive difficulties, are particularly vulnerable to the harms resulting from defense delay tactics.

²⁰⁶ See Gulbis, supra note 182.

²⁰⁷ See The Prosecutors’ Resource on Witness Intimidation, AEquitas (Mar. 2014), available at https://aequitasresource.org/wp-content/uploads/2018/09/The-Prosecutors-Resource-Intimidation.pdf.

²⁰⁸ Recognize that caretakers or employees of agencies caring for individual with disabilities may engage in intimidation.

²⁰⁹ See, e.g., id.

²¹⁰ See The Neurobiology of Sexual Assault, supra note 62.

²¹¹ See The Prosecutors’ Resource on Forfeiture by Wrongdoing, AEquitas (Oct. 2012), available at https://aequitasresource.org/wp-content/uploads/2018/09/The_Prosecutors_Resource_Forfeiture_by_Wrongdoing.pdf.

²¹² See Safety Net Project, National Network to End Domestic Violence,  https://nnedv.org/content/safety-net/ (last visited May 21, 2017).

²¹³ See Anderson, supra note 96.

²¹⁴ See id.

²¹⁵ Kristiansson & Whitman-Barr, supra note 7. For information on how law enforcement’s trauma-informed interviewing practices can positively impact the victim’s experience in the criminal justice process, see Patrick Meacham, Trauma Informed Investigation of Adult Sexual Assault Cases, presented at West Virginia University (Apr. 20-21, 2016) (citing D. Patterson, The Impact of Detective’s Manner of Questioning of Rape Victims’ Disclosure, 17(11) Violence Against Women (2012)).

²¹⁶ See The Neurobiology of Sexual Assault, supra note 62; Rebecca Campbell et al., Preventing the “Second Rape:” Rape Survivors’ Experiences with Community Service Providers, 16(2) J. Interpersonal Violence 1239-59 (Dec. 2001), http://jiv.sagepub.com/content/16/12/1239.short?rss=1&ssource=mfc (majority of sexual violence survivors who reported their assault to the legal or medical system did not receive needed services. This study suggests that the trauma of sexual violence extends far beyond the assault itself, as negative community responses can significantly elevate distress); and Courtney E. Ahrens, et al., Deciding Whom to Tell: Expectations and Outcomes of Rape Survivors’ First Disclosures, 31 Psychol. Women 38-49 (2007) (qualitative analysis revealed that nearly 75% of first disclosures were to informal support providers (friends and family), and over one third of the disclosures were not initiated by the survivors themselves. Survivors who disclosed to informal support providers had a more positive experience and when survivors sought out formal support providers had more negative experiences).

²¹⁷ For implications to victim confidentiality and privilege when communications to victim advocate are made in front of third parties, see Viktoria Kristiansson, Walking A Tightrope: Balancing Victim Privacy and Offender Accountability in Domestic Violence and Sexual Assault Prosecutions, Parts I and II, 9/10 Strategies (May 2013), available at https://aequitasresource.org/wp-content/uploads/2018/09/Issue_9_Walking_A_Tightrope_Balancing_Victim_Privacy_and_Offender_Accountability_in_Domestic_Violence_and_Sexual_Assault_Prosecutions_Part_I_May_2013.pdf and https://aequitasresource.org/wp-content/uploads/2018/09/Issue_10_Walking_A_Tightrope_Balancing_Victim_Privacy_and_Offender_Accountability_in_Domestic_Violence_and_Sexual_Assault_Prosecutions_Part_II_May_2013.pdf.

²¹⁸ Where possible, have a colleague conduct the mock cross-examination to preserve the relationship.

²¹⁹ See Erin S. Gaddy, Why the Abused Should Not be the Accused, 1(8) The Voice (2006), http://www.ncdsv.org/images/NDAA_WhyAbusedShouldNotBecomeAccused_TheVoice_vol_1_no_8_2006.pdf (summarizing the impact of arresting victims).

²²⁰ See The Prosecutors’ Resource on Forfeiture by Wrongdoing, AEquitas (Oct. 2012), available at https://aequitasresource.org/wp-content/uploads/2018/09/The_Prosecutors_Resource_Forfeiture_by_Wrongdoing.pdf; The Prosecutors’ Resource on Crawford, AEquitas (Oct. 2012), available at https://aequitasresource.org/wp-content/uploads/2018/09/The_Prosecutors_Resource_Crawford.pdf (another tool that can be used to introduce a witness’s or victim’s out of court statements where the defendant has procured their unavailability for trial in order to prevent them from testifying); and You Have Options Program, Sexual Assault Reporting, http://www.reportingoptions.org (last visited May 22, 2017) (focuses on supporting victims in a way that is believed to ultimately increase their ability to participate in the criminal justice system).

²²¹ The Department of Justice, Office on Violence Against Women (OVW) deems it a sufficiently dangerous practice that the routine arrest of victims may result in a loss of federal funding. Two of the primary grant programs under the Violence Against Women Act to improve criminal justice response to intimate partner violence have identified forced testimony by victims of domestic violence against their abuser as an “activit[y] that compromise[s] victim safety and recovery.” See OVW Fiscal Year 2016 STOP Formula Grant Solicitation, Office on Violence Against Women 5-6 (Apr. 2016), https://www.justice.gov/ovw/page/file/839466/download; and OVW Fiscal Year 2016 Improving Criminal Justice Responses to Sexual Assault, Domestic Violence, Dating Violence, and Stalking Grant Program, (also known as the Grants to Encourage Arrest and Enforcement of Protection Orders Program), Office on Violence Against Women 7-8 (Jan. 2016), https://www.justice.gov/ovw/page/file/1124261/download (Disapproving “[p]rocedures that would penalize victims of violence for failing to testify against their abusers or impose other sanctions on victims. Instead, procedures that provide victims with the opportunity to make an informed choice about whether to testify are encouraged”). These same considerations weigh against charging victims with perjury or false swearing as a result of recantation on the stand.

²²² See The Sexual Assault Kit Initiative, supra note 117; Why Testing Rape Kits Matters, supra note 193; Test Rape Kits. Stop Serial Rapists, supra note 1.

²²³ See Why Testing Rape Kits Matter, supra note 193.

²²⁴ See Section 3.2-B-2 on Introducing Evidence of Other Crimes and Bad Acts where Relevant.

²²⁵ This section has been adapted from two AEquitas resources: Teresa M. Garvey, Witness Intimidation: Meeting the Challenge, AEquitas (2013), available at https://aequitasresource.org/wp-content/uploads/2018/09/Witness-Intimidation-Meeting-the-Challenge.pdf; and The Prosecutors’ Resource on Witness Intimidation, AEquitas (March 2014), available at https://aequitasresource.org/wp-content/uploads/2018/09/The-Prosecutors-Resource-Intimidation.pdf. These resources provide strategies that can be employed by everyone involved in the criminal justice system throughout the investigation and prosecution of a case, as well as during post-conviction incarceration and supervision, to prevent intimidation and to respond effectively when it occurs.  The monograph emphasizes the benefits of a cooperative and collaborative approach to the problem. For more information on witness intimidation, see AEquitas’ special initiative on Combating Witness Intimidation (CWI), funded by the U.S. Department of Justice Bureau of Justice Assistance (BJA), https://aequitasresource.org/singleinitiative/?initiativeId=%201; and Appendix H – Witness Intimidation Checklist.

²²⁶ See, e.g., Fla. Stat. Ann. § 741.29(6).

²²⁷ See Scalzo, supra note 63 at 8.