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What it takes to prosecute a sex crime

Posted at 11:37 PM, Oct 01, 2018

In the United States, the standard of proof for bringing a sexual assault case to the courtroom is high.

And if Christine Blasey Ford's case came across Arizona prosecutor Rachel Mitchell's desk today, she wouldn't think it met that standard, Mitchell wrote in a memo.

Mitchell questioned Ford before the Senate Judiciary Committee about her allegation that Brett Kavanaugh sexually assaulted her in high school. Afterward, Mitchell offered an assessment of the allegations in a legal context.

"I do not think that a reasonable prosecutor would bring this case based on the evidence before the Committee," she wrote. "Nor do I believe that this evidence is sufficient to satisfy the preponderance-of-the-evidence standard."

To some, it was a flawed comparison, given that up to that point, the evidence and witnesses had not been investigated by law enforcement or handled like a sexual assault case.

Though experts say sexual violence cases are being taken more seriously than ever before, before a case reaches the courtroom, several hurdles need to be overcome. And while national data on prosecutions does not exist, some research suggests that prosecution rates remain low in many jurisdictions.

A survivor needs go to police

A victim must disclose their account to police in order to begin an investigation. Prosecutors can't pursue cases that don't make it to their desks.

But victims don't report sexual assault for a variety of reasons, including fear that law enforcement won't take them seriously -- a fear that research has borne out. Some officers still believe certain "rape myths," such as that women make false claims for attention, or that victims who don't cry or display certain expected behaviors are making false reports.

That's why survivors often wait to report, or seek out medical attention or counseling before they go to the police. But in some states, statues of limitations may prevent their cases from going to court.

Law enforcement agencies are working to improve training for officers who interact with victims of sexual violence. And the Violence Against Women Act expanded services for victims, including criminal justice advocacy at shelters and crisis centers, based on research showing that helping victims manage trauma leads to more better outcomes in their interactions with the legal system.

Investigators look for supporting evidence

Once a victim reports to police, investigators start looking for evidence that supports their claims.

Corroborative evidence can take numerous forms depending on the case, such as documentation of injuries from a medical exam or witness testimony. Ideally, a trained sexual assault nurse examiner provides compassionate care while collecting potentially critical evidence. But a 2016 government report identified gaps in access to the nurses, known as SANEs, including a lack of trained professionals.

Law enforcement agencies often have a backlog of untested rape kits, and delays in getting physical evidence tested can also impede an investigation.

Many prosecutors won't decide to charge unless they're satisfied the evidence establishes the elements of the crime. Ensuring that it does is a responsibility that prosecutors take seriously, said Patricia D. Powers, attorney adviser for AEquitas, which supports prosecutors in sexual violence cases.

The interview with the victim can provide key pieces of information that investigators may seek to verify -- but this is where things can get tricky due to the effects of trauma on a person's memory.

Working with the victim's trauma

Research shows that the trauma of a sexual assault can impair a victim's memory and verbal skills. To a detective who is not trained in trauma-informed interviewing techniques, a women's initial disclosure might seem fragmented, and she may give inconsistent accounts in subsequent interviews.

Failing to work with a victim's trauma can mean missing possible leads in the case -- and further re-traumatization of the victim. A trauma-informed approach to interviewing victims can lead to clues that can make up for gaps in a victim's memory, perhaps a piece of clothing or a detail about the setting, Powers said.

"That way investigators can come to understand the victim's experience of the crime and create potential for other investigatory leads," she said.

Too often, though, gender bias and insufficient training infects interviews, said Carol Tracy, executive director of the Women's Law Project in Philadelphia. And prosecutors are loathe to take on cases without a "perfect victim," she said. The treatment of Ford is the latest example, she said, which is why an investigation should have been conducted before the hearing.

"Women have to start out disproving that they're lying," she said. "Too frequently, you find that it's not an interview, it's an interrogation."