3.1 Review, Evaluate, and Charge the Case

3.1-A. Review All Reports in a Timely Manner

Jurisdictions may differ in how sexual assault cases are investigated and charged. In some jurisdictions, virtually all investigative activities are conducted by local police agencies; other prosecutor’s offices have investigators within the office who conduct significant follow-up investigation after the initial police response. In some jurisdictions, local police may file the initial charges; in others, prosecutors make the initial charging decisions. Regardless of the division of investigative and charging responsibilities, prosecutors should be accessible at all stages of the investigation for consultation and review to ensure important evidence is collected and documented and investigations proceed without unreasonable delay.134

Delay can cause irreparable harm in sex crime cases. Crucial evidence may be lost. Victims may become less willing to participate in the prosecution — as they lose faith in the system, offenders have more opportunities to engage in intimidation and manipulation. Communities remain vulnerable to continued attacks by perpetrators.

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.

Receive any criticism respectfully and with an open mind, rather than defensively; there is no need to apologize for decisions or actions you are convinced were the right ones, but mistakes should be acknowledged. Although each profession has its own areas of expertise, this open line of communication will build trust and allow for cross-training to improve the performance of both, and highlight gaps in response to be corrected through training or with resources.

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.

Initial impressions (of a case or victim) resulting in declinations are often the product of premature judgments formed before all facts are known. Ironically, often the lack of evidence in an initial report is used to justify decisions not to allocate resources to further investigations. Decisions to forgo full investigations likely flow from an intent to prioritize expenditure of finite resources for crimes perceived as more likely to be substantiated and prosecuted.163

The reality, however, is that improved investigations strengthen complex cases and improve the likelihood of positive trial outcomes. Results of recent research into untested sexual assault kits should make us consider the devastating consequences decisions have for victims and communities, where a failure to properly investigate permits serial perpetrators to remain free to assault others.164 With proper training and collaboration, the criminal justice system’s response to these crimes will be far more successful.

Prosecutors should proactively work with law enforcement to identify practices resulting in little or no investigation, or cases not being charged or referred for prosecution. Specialized prosecutors should review all police reports to determine which cases are passed over and identify any common case characteristics.165 This is an opportunity for dialogue between law enforcement and prosecutors regarding the reasons behind decisions and the importance of research-informed decision-making and thorough investigations. If there aren’t enough resources to conduct investigations, this must be stated and resources must be advocated for.

Speculation about likelihood of conviction, also known as predictive or “downstream” analysis, “involves prosecutors in predicting the future decision-making of others, and then using that prediction as the standard for measuring evidential sufficiency ex ante. If the person or persons who will make the ultimate decision at trial are unlikely to find the evidence sufficient, then the prosecutor (according to the predictive view) ought to decline prosecution on grounds of evidential insufficiency.”166

Similarly, law enforcement may not refer cases for prosecution if they believe the prosecutor is unlikely to charge, based on the prosecutor’s professed belief that a jury will not convict on a given set of facts. Such speculation is at odds with the proper basis for prosecutorial discretion because it abdicates the critical decision-making responsibility to a hypothetical jury — a jury that is not fully informed about the dynamics of sexual violence and common victim responses to trauma.167

One articulation of the appropriate charging standard might be this:

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

Another formulation of a standard for ethical charging states:

[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

Whether any jury would convict is simply beside the point, as it should be.171 Informed prosecutorial discretion and decision-making allows prosecutors to consider all admissible evidence, including the specialized knowledge that can be provided by experts, and assume that juries will not be irredeemably tainted by bias and myth. The duty of prosecutors is not only to implement the “law on the books” but to recognize the devastating harm that results from assaults historically considered as something less than “real rape.”

Sexual violence laws have been reformed over the last several decades to help ensure the law accounts for the tactics of sexual offenders and the fact that criminal convictions do not depend on how the victim responded to her/his attack. Ultimately, it is part of prosecutors’ ethical responsibility to lead the way in responsible charging that translates the law on the books into action.172

In deciding whether and how to charge a case, the following evidence should be reviewed and carefully analyzed:

  • Recordings of 911 calls.
  • Police reports and interviews, including any in-person meetings with the victim and/or witnesses, and audio or video of all statements.
  • Evidence collected from the crime scene, including video or photographs of the scene.
  • Digital evidence of communications that might include: text messages, communications via social media (g., Facebook, Instagram, Snapchat) or third-party applications (e.g., WhatsApp, KIK, Uber, Lyft), photographs, videos, and information from internet-enabled devices (e.g., fitness trackers).
  • Criminal histories of the suspect, victim, and any critical witnesses.173
  • Additional background about the suspect, including protection orders, school and/or employment records, social media accounts, ex-partners, etc.
  • Evidence of collateral crimes commonly associated with sexual assault, such as burglary, domestic violence offenses, trafficking, kidnapping/abduction, image exploitation, stalking, and intimidation-related crimes. Prosecutors should conduct follow-up investigations where necessary and charge all collateral crimes supported by probable cause.
    • Evidence related to all culpable parties who should be charged, as appropriate under applicable law, as principals, accomplices, or conspirators.174
    • Evidence from related administrative or criminal cases (g., military, campus, internal affairs).175
    • Evidence from SAK or medical examination, if available.
    • DNA evidence, if available, although charging generally need not await the results.

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.
3.1-C-1. Corroboration is Valuable but Usually not a Legal Requirement

Corroborating victims help victims. Any evidence that corroborates the fact a rape occurred, that it was nonconsensual, that it was forcible, that there were injuries –documented by crime scene evidence, photos, or witness interviews – also helps victims. Again, it benefits our cases as well, but if you can send a victim into court knowing the entire case doesn’t rest on their shoulders, but that police and prosecutors conducted a thorough investigation of every aspect of the case, it will ease their minds and reinforce their faith that the system can work the way it is supposed to.181

Corroboration is valuable, but usually not legally required, either for charging a case or for establishing the defendant’s guilt at trial.182 Investigators should, however, always strive to corroborate as many aspects of the case as possible. Corroborative evidence strengthens a case by providing additional evidence of the crimes charged and supporting the credibility of witnesses. Victims will be gratified by the thoroughness of the investigation and relieved that the trial’s outcome will not rest solely on their testimony. Corroborating evidence — especially important for crimes that happen in private and for which scientific evidence most often is inconclusive on critical issues such as consent — can be found in a variety of sources:


  • There may be witnesses who did not actually observe the assault but nevertheless can testify about events or conditions they saw or heard. A witness may be able to testify to the victim’s behavior, demeanor, or physical condition immediately before or after the assault or may be able to testify to the victim’s statement to the witness about the assault. Witnesses may be able to testify to their observations regarding the victim’s intoxication, the defendant’s provision of alcohol or drugs to the victim, the defendant’s acts to isolate the victim, or other evidence of predatory behavior. Bartenders, cab drivers or other ride-hailing services, building security guards, and store clerks also often can provide evidence relevant to the charges.
  • Video surveillance cameras, or video recorded by others before or after the assault, can help establish a timeline and document both the victim’s and offender’s actions. Such evidence should be viewed with caution, as it may provide only a brief snapshot of what occurred; what appears to be a consensual social encounter on video may have been coerced or may later progress into a forcible or coerced act of penetration.
  • Witnesses may also be able to testify to the long-term evidence of trauma following the assault (g., friends or family that can say, “before the assault, the victim was outgoing and involved in school clubs and after, she would not go out and stopped returning phone calls from her closest friends.”) Please note, however, that not all victims will exhibit indicators of trauma.

Physical evidence that corroborates any details of the allegations. This can include seemingly ancillary details that in and of themselves do not establish a sexual assault took place or a sexual encounter was nonconsensual, but do support the victim’s account of the incident. Investigators should strive to corroborate as many details as possible, using physical evidence at the crime scene (including video or photographs) and physical evidence of the victim’s and offender’s actions before and after the assault (g., ATM receipts, bar tabs, and items in the trash).

Medical evidence of injury, victim demeanor, and the victim’s medical records can provide some of the strongest corroborative evidence. Medical expert testimony is necessary to explain the presence or absence of injury and to rebut popular misconceptions about sexual assault and victim responses to trauma. In particular, expert medical testimony can educate factfinders about the fact that a lack of genital injury does not prove consent, and that common non-genital injuries – including bruising and abrasions to the wrists, upper arms, inner thighs, and other extremities – are consistent with a victim’s account of a struggle, being held down, falling, or being dragged. In addition, medical evidence can describe injuries and observations consistent with strangulation, such as petechiae, hoarse voice, and scratching around the neck; this can also include the absence of visible injury, which is common in strangulation cases.183 In lieu of a toxicologist, medical experts can also educate factfinders about toxicology and the disparate effects of alcohol on men and women.

Forensic evidence is seldom dispositive of whether a sexual assault occurred, but research and experience tell us that factfinders will often expect some sort of “CSI evidence” in sexual assault cases.184 Therefore, even in cases where the defense is consent, investigators should collect and preserve evidence that can be scientifically examined and tested for corroborative forensic evidence, g., semen, urine, vomit, fingerprints, and touch or saliva DNA.185

Cyber evidence is an increasingly likely source of corroboration in cases of sexual assault. Cyber evidence may include text messages, social media posts and comments, digital photographs, online activity, and data from digital devices such as fitness trackers. Investigators should be trained and proficient at identifying, preserving, and securing digital evidence or should consult with others who have the appropriate expertise, either in their own department/agency or another.186

Expert testimony about victim responses to trauma can be powerful corroborative evidence, explaining victim behaviors that may seem counterintuitive to the lay factfinder. Research shows that common misconceptions about sexual assault and victims of these crimes persist, despite heightened awareness.187 This kind of expert testimony is designed to educate, allowing the jury to put the victim’s behavior in its proper context — the result of trauma or of the defendant’s actions, rather than a reason to doubt the victim’s credibility.

Offender statements can be important corroborative evidence even if they do not amount to a “confession.” Such statements are valuable when they corroborate details of the victim’s account, even if the offender claims that any sexual contact was consensual. More often than not, the offender’s statement alone will establish at least one element of the offense — that the act of sexual penetration or contact did in fact occur. Furthermore, the offender’s demeanor, attitude, and explanation of the incident at the earliest stages of an investigation can be revealing and enlightening for jurors, who can compare them to the defendant’s carefully prepared appearance and testimony at trial.

3.1-C-2. Consult Statutes, Case Law, Social Science, Medical, and Other Relevant Research

Prosecutors should be skilled in researching applicable statutes, case law, and underlying public policy in preparing their cases. While legal research is, of course, a necessity in the legal profession, it is easy to overlook the value of other types of research documenting advances in medicine, forensic science, and social sciences as they pertain to the prosecution of sexual assault. Judges need this valuable information as well, and it is incumbent on the prosecutor to provide them with all relevant admissible research to support accurate, well-informed judicial decisions.188 Social science and medical research provide insight into dynamics of assault and victimization relevant to proving the elements of the crime. Prosecutors should connect with experts in relevant fields to learn about the latest developments and ensure they are properly understanding and applying this knowledge. Such consultation can assist in:

  • Evaluating certain evidence.
  • Understanding victim behaviors that are, in fact, responses to trauma.
  • Understanding predatory offender conduct, which may help in the analysis of “other crimes” evidence or in developing the theme and theory of the case.
  • Connecting victims with available services.
  • Making bail recommendations that adequately address victim and community safety.
  • Preparing and litigating pretrial motions.
  • Admitting cyber evidence at trial.
  • Interviewing and examining victims and witnesses.
  • Cross-examining defendants.
  • Making sentencing recommendations.

See Appendix F for additional information on how various experts can assist with issues in sexual violence prosecutions.


3.1-D. Request Bail Commensurate with the Seriousness of the Offense

It is important to understand the purpose of bail and pretrial detention are not to punish, but to secure the presence of the defendant at trial and the safety of the victim and community.189 The specific criteria for setting a bail amount varies from jurisdiction to jurisdiction. There are, however, considerations that are generally consistent across the country. Motions to reduce or increase bail may occur at any hearing, and, therefore, prosecutors must always be prepared.

When making bail recommendations, consider:190

  • Danger to victim and community.
  • Seriousness of the crime.
  • Likelihood of conviction.191
  • Likelihood defendant will appear in court/flight risk.192

Additional considerations to bring to the court’s attention in making bail recommendations in sexual violence cases include:

  • Risk of committing additional crimes against the same victim (g., in cases involving intimate partner violence).
  • Where investigation suggests potential additional victims, likelihood of re-offense, or serial perpetration, the offender may perceive a greater risk of exposure to incarceration and therefore may be a greater flight risk.193
  • Evidence of crossover offending (e., offenders who assault intimate partners/family members and others with whom they have a more distant/no relationship).194
  • Increased risk of lethality where sexual violence is used in the course of other acts of intimate partner violence and/or strangulation.195
  • Any prior history demonstrating failure of the offender to comply with court directives (g., previous bench warrants, contempt findings, probation/parole violations, witness intimidation or retaliation, violations of previous bail conditions). A history of intransience is evidence that the offender may fail to comply with future obligations to appear and/or other non-monetary conditions.

Prosecutors should be prepared for argument when requesting bail. “Seriousness of the offense” and “likelihood of conviction” standards are susceptible to defense arguments suggesting that sexual violence against an acquaintance or while one or both parties were intoxicated is somehow “not serious” or unlikely to result in conviction. Careful preparation and presentation — even to the point of presenting expert testimony — may be necessary to persuade some judges otherwise.

Research and court opinions acknowledge that many rapists acquainted with their victims are serial perpetrators and pose an elevated lethality risk for victims who are intimate partners.196  Prosecutors should emphasize the seriousness and danger inherent in all cases of sexual violence to provide the court with a sound basis for its decision.

Prosecutors can also highlight the high penalty (e.g., long prison sentence) the defendant could receive upon conviction as a potential factor contributing to the risk of the defendant failing to appear for future court dates. Arguments about the defendant’s risk to victim and community safety should be based on the evidence, not generalizations or speculation.

Request appropriate bail conditions: e.g., no direct or indirect contact with the victim, including communication through social media, third-parties, and family and friends; conditions to prevent intimidation or stalking conduct, including distance, school and/or workplace restrictions; and other case-specific conditions designed to protect the victim.

A good working relationship with law enforcement allows the prosecutor an opportunity to gain additional information regarding the defendant, including flight risk and concerns for community safety. Victims should be immediately advised of the outcome of the bail hearing and notified if the defendant is released on bail.

Remember that bail is subject to ongoing review. Defendants who intimidate victims or witnesses can have their bail increased or revoked. Conversely, prosecutors must be prepared to respond to defense attempts to inappropriately reduce bail or eliminate conditions the defendant finds onerous. The defendant should be required to show a change in circumstances for review of bail or release conditions.

Bail hearings also present an opportunity to communicate to the public the importance of the sexual assault prosecution while preserving the integrity of our system of due process. Any extrajudicial public statements should generally communicate the seriousness with which the prosecution treats cases of sexual violence, while carefully avoiding inappropriate comment that might taint potential jurors or violate the rules of professional conduct.

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.

3.1-D-1. Request No-Contact Orders

Criminal no-contact orders, or civil sexual assault or domestic violence protection orders, provide additional protection to strengthen the victim’s sense of safety and security, offering a straightforward basis for enforcement. In some jurisdictions, a criminal no-contact order can be sought in addition to any no-contact conditions of bail,199 and in others, any victim of sexual assault can seek a civil order of protection. Where the victim is or was in an intimate relationship with the offender, a domestic violence protection order should be available. An advocate or civil attorney can assist the victim with obtaining a civil sexual assault protection order or a domestic violence protection order, as appropriate.

Advise victims that any direct or indirect offender contact (including third-party contact), should be immediately reported to law enforcement and the prosecutor. Where such conduct has occurred, a hearing should be held as soon as possible after giving requisite notice to the defense, so the prosecution can seek revocation, a contempt of court charge, or additional conditions to prevent interference or intimidation by the defendant or others acting at her/his direction. If the offender is in jail, protection orders can still be enforced or new charges for witness tampering considered.200

3.1-D-2. Safeguard Victim Privacy and Safety

In the early stages of the case, prosecutors should act to protect victim privacy and security:

  • Familiarize yourself with your jurisdiction’s statutory and case law related to privacy, confidentiality, and privilege.201
  • Collaborate with the civil attorney representing the victim’s interests where appropriate or necessary to avoid issues with standing.202
  • Work with agencies to ensure appropriate redactions are made to any discoverable documents, ensuring all original documents are maintained.
  • Redact cyber evidence, including forensic examination reports (e., “phone dumps” or “phone downloads”) and non-public social media records to include only material, relevant, and exculpatory evidence; notify the court of any redactions made.203
  • Collaborate with advocates to support victims, ensuring victims understand the differences in confidentiality applicable to community advocates versus victim-witness advocates employed by the prosecutor’s office. Staff or community partners working with persons with disabilities should have specialized training.
  • Keep victims informed of any motions seeking disclosure of personal information.
  • Move to quash subpoenas to compel production of confidential victim counseling/advocacy records or other privileged communications.
  • Move for in camera review of victim’s records.204
  • Move for orders restricting the defense from disseminating reports or other sensitive materials to outside parties (g., the media). For especially sensitive evidence (e.g., intimate photos — including those from the SAK exam — or video of the victim), seek an order permitting the materials to be viewed by the defense (or defense-retained expert) under restricted conditions, rather than providing a copy for discovery purposes. The court may also enter an order prohibiting defense counsel from providing copies of documents containing the victim’s personal information to the defendant.
  • Understand and anticipate public requests for copies of police reports or other evidence under the applicable Public Records Act.


3.1-E. Oppose Unnecessary Delay

The prospect of having to testify about sexual violence can be all-consuming for victims. While the delay that accompanies most judicial proceedings is frustrating for any victim, it is especially harmful to victims of sexual violence, who long for closure so they can resume the healing process and go on with their lives.205 Delay also provides more opportunities for offenders who are so inclined to engage in manipulation or intimidation. While some requested continuances may be reasonable and necessary, unnecessary delay should be vigorously opposed. Ask the court to prioritize these cases in its calendaring, and request that any scheduled trial date be peremptory — not to be continued absent the most unavoidable reason. For the prosecution’s position on the urgency of these cases to have any credibility, however, it is necessary for the prosecutor to make every effort to expedite the prosecution’s own efforts to prepare the case for trial.

See also, 3.1-A. Review All Reports in a Timely Manner.


3.1-F. Build a Case that Engages Victims and Makes Effective Use of All Probative Evidence

After the charging decision is made, there is still much work to be done before the case is ready for trial. This includes follow-up investigation to strengthen the proofs, fill in any gaps in the evidence, and address any unanswered questions. Although the victim’s disclosure alone, if believed, is usually sufficient to permit the jury to find the defendant guilty beyond a reasonable doubt, continue to seek corroboration to make the strongest case possible.206

Ongoing investigation should include:

  • Regular communication with victim and witnesses throughout the pretrial period; provide the victim with regular updates on the case and any important developments.207
    • If a victim or witness suddenly stops returning phone calls or becomes reluctant to talk with the investigator or prosecutor, this may be an important indicator that intimidation is occurring.208 Inquire about any phone calls or other contact by the defendant or their allies. Check jail phone records and visitor logs to see whether contact is occurring, and obtain recordings of any calls to the victim from the jail.
    • Check in with the victim and witnesses on a regular basis to learn whether anything has changed or happened in terms of evidence, safety concerns, or suspicious incidents seemingly too minor to report.209 Because trauma affects memory, victims may also recover memories over time.210 These conversations should also serve to build on the rapport and trust developed during earlier contact with the victim.
    • It is important to remember that common responses to the trauma of sexual assault may include minimizing, denying, self-medicating, withdrawing from others, returning to normal life, etc. Connecting victims with appropriate support can help mitigate negative responses.
  • Be sure the assigned investigator maintains a careful record of all contact with victims and witnesses, including unsuccessful attempts to locate or speak with the witness.
    • This record of contacts, including refusals or unsuccessful attempts, may be critical to establishing all reasonable efforts were made to secure the witness’s attendance at trial, which will be necessary to establish “unavailability” of the witness if it is necessary to introduce out-of-court statements under the doctrine of forfeiture by wrongdoing.211
    • Material witness warrants to ensure the victim’s appearance at trial are strongly discouraged; arrest of an already-traumatized victim can cause irreparable harm and is inconsistent with principles of justice. See “Avoid Coercive Practices” below.
    • Monitor social media sites to identify any evidence of the crime(s) charged and/or intimidation of the victim.212
  • Evaluate the results of the sexual assault kit and other evidence testing, which may suggest the need for additional interviews or investigation.
  • Review the entirety of the relevant medical record for patient intake information, medical history, assault history, physical examination, findings, and aftercare/safety planning. Determine whether there is any irrelevant and/or prejudicial information that should be redacted or the subject of a motion in limine before trial (g., notation about a previous abortion, history of drug abuse).
  • Investigate any relationship between the victim and perpetrator. Evidence about the relationship may help explain how the assault was committed and support the victim’s credibility at trial. For example, a perpetrator may use the relationship with the victim to gain access to the victim, exploit the victim’s trust, or exploit other known vulnerabilities to facilitate the assault or to undermine the victim’s credibility (g., the offender assumes that a drug addict will not be believed). Revealing and explaining these dynamics at trial will allow the jury to more accurately assess the victim’s credibility and to understand how the crime occurred.
  • Obtain search warrants, seek court orders, and issue subpoenas for relevant digital devices, social media accounts, telephone and/or cell site data.213 Review results and provide relevant, material, and exculpatory records to defense counsel.214
3.1-F-1. Conduct Trauma-Informed Interview of the Victim to Reveal Evidence of the Crime

[P]rosecutors who conduct thoughtful and effective interviews will be better able to explain victim behavior to their multidisciplinary professional colleagues and partners, and ultimately, to judges and juries.215

Trauma-informed interviews are not only essential to victim-centered prosecution, they provide a vital opportunity for the victim to describe the experience of the sexual assault. Research and clinical experience with the neurobiology of trauma suggest several important considerations for interviewing victims impacted by trauma. There are varying interview protocols and this section does not attempt to set forth a protocol but rather to highlight important considerations.

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 interview should focus on obtaining available evidence of the victim’s experience of the sexual assault. Ask about the victim’s sensory experience — what the victim saw, felt, heard, tasted, smelled. Descriptions of sensory perceptions, as well as the victim’s thoughts and emotions as the crime unfolded, may suggest additional leads for corroboration — the defendant’s physical appearance at the time of the assault or details concerning the crime scene and surrounding area. These types of memories can also connect the victim’s experience with the jury. Jurors can relate to the specific feelings and therefore find the statement and the account more credible (g., when a victim says she felt the seam of the couch cushion pushing into her back).

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.

  • One of the keys to success in these cases is to get to the whole truth. Victims may be reluctant to reveal details that might invite judgement upon them – disbelief about the sexual violence or legal charges of their own. Investigators and prosecutors should encourage victims to be entirely truthful and open about everything they tell us. Remind victims the defense will already know about any “unfavorable” details. Assure them that if we know about those details, we can either keep them out of trial or explain them so the jury can judge the case fairly. But we can do little to address those details if we hear about them for the first time in court. Be prepared for every interview by reviewing all relevant evidence, reports, and updates from law enforcement. Check with the assigned detective before the interview to discuss the investigation’s status and any recent developments. Focus on insightful questions that will help develop an understanding of the victim’s experience and assist in overcoming potential defenses. Interviews also help prepare the victim for the types of questions they may be asked throughout the legal process. A well-prepared interview helps build a trusting relationship between the victim and the prosecutor.
  • There are many logistical considerations necessary to conducting a trauma-informed interview. The setting of a victim interview communicates a great deal to the victim about how the crime is viewed by the prosecutor’s office. A cold, stark interrogation room sends the message that the victim is under suspicion or has done something wrong. A quasi-public space in an open office cubicle or in a room with office traffic sends the message that the victim’s privacy is not respected or that the interview is not too important to interrupt. Ensure that the interview environment is comfortable, neutral, quiet, and private. Allow the victim to choose their own seating arrangement, if possible, and provide water or food, if available, to help create an environment that is welcoming and calm.
  • Building trust. The prosecutor should explain her/his role and responsibilities to the victim at the beginning of the meeting. Express appreciation for the information that the victim has already provided and for coming in to provide more. Demonstrate your comfort discussing the difficult and private subject matter of sexual assault by explaining you have worked with victims of these kinds of crimes for a long time and understand these matters are difficult to talk about. Be open and listen carefully to the victim’s account. Understand that trauma, as well as social and emotional factors, often result in delayed reporting.216 Balance clinical objectivity with sensitivity. Refrain from overtly or subtly conveying doubt or judgment and let the victim know you are there to help. Listen fully to responses and ask appropriate follow-up questions.
  • Pay attention to the victim’s responses and demeanor during the interview — they may provide indicators of trauma or dissociation that might require the explanation of an expert witness at trial. Take breaks when necessary or requested. Discuss with the victim and their advocate (if present)217 the advantages of participating in the criminal justice process, including:
    • The ability to retake control of what happened.
    • The possibility to speak the truth and describe the victimization and its effects.
    • The availability of resources to support healing.
    • The chance to achieve a sense of closure.
    • The opportunity to secure justice by holding the offender accountable.
    • The capability to prevent the offender from victimizing others.
  • Remember that victims are the best judges of what will promote their personal healing. For some, testifying in court and having their voices heard is a critical part of that healing. For others, not reporting the crime or declining to participate in the proceedings is the safest choice. Those personal feelings should always be respected.
  • Though prosecution should not be coerced, it should be respectfully encouraged. Remember the importance of going forward with prosecution in these cases whenever possible; avoid inadvertently suggesting that the adversity of trial is too difficult to bear. Prosecutors should candidly explain the trial experience, while expressing confidence in the prosecution, the system’s commitment and ability to support the victim throughout the process, and the victim’s ability to proceed.
  • Once a hearing or trial date is firmly set, prepare the victim to testify, including direct examination, objections, cross-examination,218 and redirect. Discuss courthouse and courtroom safety with the victim. Work with victim-witness professionals and advocates to ensure safety and support for the victim while waiting to testify and during testimony.

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.

3.1-F-2. Review DNA and Forensic Evidence to Corroborate the Victim’s Testimony222

DNA is an ever-developing field of science with many testing resources for prosecutors. Within the last decade, thousands of backlogged and untested sexual assault kits have been identified, tested, analyzed, with numerous resulting prosecutions initiated.

Studies regarding the factors contributing to the backlog have revealed that common myths about sexual violence dynamics and victims, as well as erroneous beliefs about what makes a case prosecutable, resulted in the literal shelving of countless cases.

With advances in technology, more options for testing, and an enhanced understanding of the perpetration of sexual violence, we are better positioned than ever before to take full advantage of this form of evidence to hold more offenders accountable — including the many serial offenders who can now be identified by testing SAKs, regardless of whether they were known to the victim.

Even in cases where the victim and offender were acquainted, or had a prior consensual sexual relationship, DNA evidence can be helpful, as previously explained.223

When cases are linked through a CODIS hit, the details of the other crime — the victim’s accounts of the assault and other characteristics of the offense — should be scrutinized for helpful leads to corroborative evidence.

In some instances, evidence from the other case may be admissible in this one.224 Regardless of admissibility, the other case may shed light on useful information – such as details about the offender’s activities, social circle, tactics of victimization and manipulation, or dangerousness.

3.1-F-3. Prevent and Respond to Witness Intimidation225

Witness intimidation can affect the criminal prosecution at any time during the case, including at trial. Most often, the source of intimidation is the defendant or the defendant’s allies, including friends, family, or criminal associates. Sometimes the victim or witness’s own family or friends, or the community itself, will actively discourage the victim from cooperating or testifying.

Intimidation should be understood to include not only acts of force or coercion (fear-based intimidation) but also subtle forms of psychological or emotional manipulation, when that manipulation is intended to induce silence or false testimony.

Prevention of, and effective response to, witness tampering or intimidation requires the concerted effort of multidisciplinary professionals in the criminal justice system as well as community-based advocates. Steps to prevent and respond to intimidation include:

  • Recognize and reduce opportunities for witness intimidation.
  • Educate victims about intimidation — what it is, how to preserve evidence, and how to make immediate reports to police in a manner that ensures prosecutor notification.
  • Charge acts of intimidation where appropriate, preferably in the same charging instrument.
  • File for contempt of court where the defendant has violated a stay-away or no contact order, or a condition of bail. Violations of court orders may also amount to stalking or other specific crimes.226
  • Discuss with the victim the defendant’s right to be present during trial testimony and prepare law enforcement and victim advocates to monitor for any intimidation efforts in the courtroom and surrounding areas.
  • Ensure the courthouse and courtroom are zero-tolerance zones for intimidation.
  • Bring any acts of intimidation to the attention of the court, as well as any concerns about courthouse safety.
  • Present intimidation evidence at trial to show consciousness of guilt and, when necessary, to introduce statements under the doctrine of forfeiture by wrongdoing.
3.1-F-4. Review All of the Evidence and Begin to Put the Pieces of the Case Together

The Charging Tool at Appendix E has been provided as a resource to use when putting the pieces of your case together. This tool — originally developed by Teresa P. Scalzo, former Director of the National Center for the Prosecution of Violence Against Women, Deputy Director at the Navy Judge Advocate General (JAG) Trial Assistance Program, and sexual assault prosecutor — has been adapted for this model.227

The Charging Tool is a simple table that has proven useful in assisting prosecutors and law enforcement in identifying and analyzing the evidence necessary to satisfy the elements of a charge. Completing the chart encourages law enforcement and prosecutors to look at each piece of evidence and each witness statement, and then to ask the following four questions:

    1. What does the evidence tell us?
    2. Whom does it connect?
    3. What else should we be looking for?
    4. Does it help establish an element of a crime?

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.


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).


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.