Legal Advocacy Issues

CHAPTER 5: LEGAL ADVOCACY ISSUES WITH VICTIMS OF SEXUAL ASSAULT

This chapter covers some of the key elements involved with legal advocacy with victims of sexual assault. It will be helpful for the volunteer to have a general working knowledge of these issues.

The sections in this chapter include:

  • The Sexual Assault Victim in the Criminal Justice System
  • Mandated Reporting
  • Recordkeeping, Confidentiality & Documentation
  • Institutional Advocacy

As previously discussed in other chapters, it will also be important for volunteers to know how to obtain additional information as needed as well as know the appropriate staff to consult with questions or other needs. As a volunteer, you will always have the guidance and support of a trained, experienced sexual assault staff member.

The Sexual Assault Victim in the Criminal Justice System

The criminal justice system can be a complicated maze even for lawyers and judges trained to operate in the system every day. For an advocate, the legal system can be intimidating and may leave her wondering whether the system is designed to seek justice for the victim or protect a defendant accused of sexual assault. For a victim traumatized by sexual assault, the legal system can seem like another enemy she must face.

Many times, the public possesses only a limited, and sometimes inaccurate view, of how the law enforcement or court systems really work, impressions often gleaned from watching television shows such as NYPD Blue, The Practice or Law and Order. Often, however, police, judges, witnesses, lawyers and victims do not behave as they are portrayed on the screen. Sometimes, the criminal justice system operates to help the victim, but other times the end result is far different than what most people would consider “justice for all.”

Crime Victims’ Bill of Rights

At an appropriate time, the advocate should explain to the victim that she has specific rights under the Crime Victims’ Bill of Rights. Victims cannot exercise rights they do not know exist, so it is important for the advocate to explain these rights to the victim and provide a copy of these rights to the victim and her family. A few key rights granted to a victim of crime includes the rights to:

  • Be treated with fairness and respect for her dignity and privacy. The advocate should remind doctors, attorneys, nurses, police officers of the victim’s needs and her right to be treated with respect.
  • Request to be kept abreast of the status of the investigation into her case. The advocate can assist by checking with the police department to ascertain whether the assailant has been arrested and if he has been jailed or released on bail. As the investigation proceeds, the advocate can stay in touch with the State’s Attorney’s office to determine if the State plans to prosecute the case and if the State plans to plea bargain. The advocate should ask the State’s Attorney to explain the meaning of any verdict or adjudication in the victim’s case.
  • Have the State’s Attorney intercede with a victim’s employer to minimize or prevent the loss of benefits and pay.

The investigation and prosecution of a sexual assault case may depend largely on the involvement of the victim. Yet, law enforcement officers and prosecutors make the final decision on whether to pursue the case. At the same time, a victim may withdraw her participation in the process at any time.

The Criminal Justice Process

1.The Hospital

Most victims come into contact with rape crisis center staff at the hospital. For these victims, the criminal justice process begins at this point. In addition to the medical care, evidence collection and medical advocacy available to a victim at the hospital, this is the first opportunity for the victim to request involvement of the criminal justice system. The hospital is required to report any crime, including sexual assault, to the police. The police will come to the hospital to determine if the victim wants to speak with them. She is not required to speak with the police.

The victim is the key witness to a sexual assault. Law enforcement’s investigation process and ability to apprehend the assailant will depend largely on her statements to officers. The victim can decide to have evidence collected, but she can choose at a later time whether to move forward with a prosecution. If the victim chooses to have evidence collected, the law enforcement officer will not be present for that process.

2.Law Enforcement Investigation

a.Victim Interviews

Being interviewed by a law enforcement officer can be intimidating for anyone. A victim of sexual assault may feel especially vulnerable during an interview, particularly if she has negative or conflicted feelings about law enforcement. For example, she may feel that she was not adequately protected from the assault, or she may have had a bad experience with law enforcement in the past. If the law enforcement officer treats her in a judgmental or accusatory fashion, her feelings of vulnerability will increase, and she may need additional support from a volunteer.

The police generally will conduct two interviews: a preliminary interview and an in-depth interview. The preliminary interview often takes place at the hospital, but it also can occur at the crime scene. The second interview is very detailed to confirm or establish facts about the assault. It may be conducted by a uniformed officer, or an officer in street clothes. A State’s Attorney also may be present for this interview. The officer will need to know very specific details about the rape and about the offender in order to determine what crime happened and how to investigate it. To keep services confidential, an advocate’s discussions with the victim need to be private, with no one else present. Therefore, an advocate cannot be present in the room during the victim’s interview. The advocate may stay nearby during the interview and the victim can take breaks to talk or get a drink or tissue as needed.

Anything the victim tells the police officer will be shared with the judge and the offender and his attorney. The police cannot force her to undergo a lie detector test or a psychiatric evaluation. Because of the rape crisis confidentiality statute, an advocate cannot share information that the victim has told them with the officer. The advocate can, however, tell the victim anything the officer would like her to know. A victim who is aware that a rape crisis worker and a law enforcement officer are allies may feel more comfortable speaking to the law enforcement officer. The goals of the advocate and the law enforcement officer are compatible – helping the victim to recover and holding the offender accountable.

b.Other Investigation Steps

The police may also talk to various witnesses who might be able to help apprehend the assailant. Some sexual assault investigations take several days or weeks, depending on the nature of the case.

3.The Pre-Trial Process

a.The Decision to Prosecute

Once a suspect is arrested, the State’s Attorney decides whether to charge the assailant, and if so, for which crimes. The State’s Attorney considers a variety of factors in deciding whether enough evidence exists to support prosecution. This may include the strength of the victim’s statement, the presence of collaborating evidence, probability of a conviction as well as other factors. Many times, prosecutors refuse to prosecute rape cases or they prosecute the cases as non-sex offenses, such as battery. In Illinois, a prosecutor might offer a variety of reasons for refusing to prosecute a sexual assault case. One of the most common reasons is a lack of corroborating evidence. Frequently, the only evidence supporting the case is the victim’s statement. Here are some other often-cited reasons for not prosecuting a sexual assault case:

  • The victim was drinking or drunk;
  • The victim knew the assailant;
  • The victim chose to go home with the assailant; or
  • The victim previously had consensual sex with the assailant.

If a State’s Attorney refuses to go forward with prosecution, despite advocacy efforts, there is little that can be done to force the prosecutor to change his or her mind. There is no review process for the State’s Attorney’s decision, other than public pressure. Without jeopardizing confidentiality of a particular case, rape crisis centers and other community organizations must strategize about how to bring public opinion to bear on the State’s Attorney and his or her use of prosecutorial discretion. It is important for the community to understand that the State’s Attorney is an elected official and should be responsive to the community’s needs for safety and protection.

b.Pre-Trial Motions

If the State’s Attorney decides to prosecute the assailant, the pre-trial process can be long and arduous. Many motions and questions will be raised by the defense attorney, who will attempt to have the case dismissed before it even gets to trial or, in the alternative, jockey for a better legal position regarding the case. While these steps may seem tedious and in some cases inflammatory, often they are routine procedures in the criminal justice process. The pre-trial process can present very emotional ups-and-downs for a victim. However, the prosecution or defense attorney’s success or lack of success on a particular motion does not indicate who will win the case. The victim may attend these hearings, but is not required to attend.

c.Preparing the Victim For Trial

Preparing for a criminal trial is a very draining experience, especially for a victim of sexual assault. The experience may cause the victim to relive the attack. It is common for the victim to question whether she should even proceed with the trial, or for her to experience, or re-experience, feelings of shame, embarrassment or humiliation. Education about the trial process may alleviate some anxiety. An advocate can be helpful by reviewing the process with the victim.

Prior to trial, the victim will meet with the prosecutor to discuss the testimony she expects to offer at trial. Some prosecutors are very conscientious about contacting the victim to arrange these meetings; others are not as quick to arrange these meetings. An advocate can work on the victim’s behalf to arrange this meeting. However, because of confidentiality, an advocate cannot be present in the room during the victim’s meeting with the State’s Attorney. The advocate can stay nearby during the interview, and the victim can take breaks during the interview to talk with you or get a drink or tissue, as needed. Anything the victim tells the prosecutor will be shared with the judge and the offender and his attorney. The prosecutor cannot force her to undergo a lie detector test or a psychiatric evaluation.

The advocate cannot share information that the victim has told the advocate with the prosecutor because of the rape crisis confidentiality statute. The advocate can, however, tell the victim anything the prosecutor would like her to know. A victim who is aware that a rape crisis worker and a prosecutor are allies may feel more comfortable speaking to the prosecutor. Again, the goals of the prosecutor and the advocate are compatible – helping the victim to recover and holding the offender accountable.

4.The Courtroom Experience

Many people have never been to a courthouse. The entire court experience may be new to the victim. It is helpful for the victim to understand trial language, courtroom procedure and courtroom etiquette before going to court.

The victim may visit the courtroom prior to trial. It may be helpful to go to the courtroom while a trial is in session to get an idea of how the court operates. The victim can see where to enter, where she will stand to take the oath, where she will sit when testifying and where the offender will sit. The more comfortable the victim is in the courtroom, the less overwhelmed she will be. The victim will probably only be in the courtroom when she testifies. This is a general rule that applies to all witnesses, to ensure that their testimony is not influenced by what other witnesses say. When the victim testifies, she does not have to look at the defendant. She can make eye contact with a supportive person in the courtroom, such as the advocate or a friend or relative.

Different judges have different expectations about courtroom demeanor. For example, some judges will allow participants to have a bottle of water, but not cans of soda or candy. What a witness wears in a courtroom should not make any difference, but unfortunately it does. Some prosecutors may have their own standards, such as no jeans, shorts, tank tops, low cut blouses or short skirts. Also, jurors may have a preconceived and erroneous idea about what constitutes appropriate clothing. It is important for victims, other witnesses and advocates to dress conservatively.

a.The Trial

Everyone will be nervous the day the trial begins. The trial day can be a very difficult day for the victim as she will talk about and re-live the attack in great detail. It will be important for the victim to have a support person who will focus solely on the needs of the victim. No matter how sensitive or helpful a prosecutor has been, this is the day the prosecutor will be focused solely on the aspects of the trial, not with ensuring the victim’s needs are being met.

While the defendant will be in the courtroom throughout the trial, the victim may only be permitted in the courtroom when she testifies. Many times witnesses will be excluded from the courtroom to protect the integrity of testimony. This is routine in most criminal cases. Some courthouses will have a room specifically designated for victim witnesses. If a separate room is not available, the victim may have to wait in the hallway outside the courtroom.

During her testimony, it is okay for the victim to ask the judge for a brief recess if she feels sick, too upset to continue, or needs a small break. Judges are usually sensitive to crime victims and will generally grant this request. The prosecutor should take care to be sure the victim has a glass of water, but if not, she can ask the judge for water.

The prosecutor will explain to the victim that she is only permitted to answer questions that are asked of her by the prosecution, the defense attorney or the judge. Sometimes the attorneys will disagree about a witness answering a question. The victim should wait until the judge rules on whether she can answer the question.

It is important for the victim to understand that after the prosecutor questions her, the defense attorney will cross-examine her. Usually, the defense attorney asks questions that are designed so the witness can answer only “yes” or “no.” This can be very frustrating to a victim, who might feel like her words are being twisted or that she is unable to present a full version of what happened. As difficult as it is to refrain, the victim should not lash out at the attorney or court; she should try to remain as calm as possible under what are sometimes unbearable conditions.

Newspaper reporters may be present during the trial, particularly if the case has been highly publicized. The victim should be prepared for the fact that reporters may approach her to ask questions or to see if she would like to make any comments regarding the case. Many times, reporters will be aggressive in trying to get a victim, her family or other trial participants to comment. The victim is under no obligation to speak with the media. Moreover, to do so during the trial may harm the case. However, the victim may choose to speak with a reporter at the end of the trial, if she feels it would be helpful in her healing process.

b.The Verdict

1)Waiting for the Verdict

The victim may have to endure hours or even days of waiting to hear the jury’s decision. To convict a criminal defendant, the jury must reach a unanimous verdict; all twelve members must agree. No one - not a judge, lawyer or witness - can predict what decision a jury will reach or when they will reach it. Human nature makes us want to guess and question what a jury will decide, and we want to believe that justice, as we see it, will always be served. The period of waiting, hoping and speculating during jury deliberation can be exhausting and painful for the victim.

Many times during the deliberation process, the jury will ask a question of the judge. The question is in writing and will be read in open court by the judge, outside the presence of the jury. Both the prosecution and defense have an opportunity to tell the judge what they want in terms of how or if the question will be addressed.