TITLE.

INSTZTOTIOR

SPONS AGENCY'

CG 012 7

Forcible Rap4: I Manua. Filikg and TrialProsecutors. Piosecutors' Volume II.Battelle Nirmorial Inst.,' Seattle, Wash. Law and'Justice §tudy Center.National lust of.LawlEnfOfcement and CriminalJustice (Dept. of JusticeAEAA)1, ashington, D.C.

POE DATE Mar 78 .

GRANT 75-0-99-0015NOTE 77p.; For related.documents see CG` 011 469, CG 012

764; CG-012 868, end CG 012 869AVAILABLE F ON Superintendent of Documents, U.S. Government Printing

Office, Washington, p.c., 20402 (Stock number02)-000-00618-3)

MF-S0.83 BC-14.67 Plus Postage.*Court litigation; Criminal Law;. ustice; *Lawg;

-*Lawyers; Manuals; *Rape.; Socially Deviant BehaviViolence

FORS' PRICEDESCRI PTORS

ABSTRACTThe report begins Kith. ins _ssibn of rape and its-

victims It proceeds to more technidal.information.nbout the firingpreliminary hearings and grand juries, plea bargaining', trial.preparation, trial and sentencing information which is geared towardt'the prosecutor. Finally, the. report concludes with appendices .,

presentintvsample forms for recording information from medical. andforensic examinations, a bibliography; and a description of rapevictim services in various cities. (Author/LP4-.

*** ******* **** ******** ******* *** ******* Reproductions supplied by EARS are the best

from the original document.********************* *** *********************** *

*** *********hat can be made

*

A IViallualfor Filing and Trial Pr eitutors

Prpsecutors' Volume

U S DEPARTMENT or HEALTH.EDUCATION i wELFARENATIONAL INSTITUTE OF

EDUCATION

THIS DOCUMENT HAS BEEN REF.RELDUCE EXACTLY As RECEIV ED FROMTHE NEN$0N ONORGANiZATiONel IRO IT POINTS OF VIEW OR OPINIONSSTATED DO NOT NECESSARILY REFRE-.SENT OF FICIAL NATIONAL INSTITUTE Or-EONCATjON POSITION OP POLICY

National Institute of Law Enforcement and Criminal JusticeLaw Enforcement Assistance Administration

_ Urfited States Department of Justice

2

A Manualfor Filing and Trial Pro utore

Prosecutor Volume I

This project was supported by Grant Number 75441-_ 15 awarded to the .paltelleMemorial Institute Law and Justice Study Center by ational Institute of LawEnforcement and Criminal Justice, Law Enforcement As 1 nep Administration,1.16S. Department of Justice, under the Omnibus Crime Control and'Eafe Streets Actof 1.968, as amended, Points of view or opinions stated in this document are thoseof th uthors and do not necessarily represent the official positiod.or policies ofthe U Department of Justice.

March 1978

INational Institute of Law Enforcement and Criminal JusticeLaw Enforcement Assistance AdministrationUnited States Department of Justice

NATIONAL, INSTITUTE OF LAW ENFORCEMENT AND CRIMINAL JUSTICE

Blair G. Ewing, Acting Director

LAW ENFORCEMENT ASSISTANCE ADMINISTRATION

James M.H. Gregg, Acting Administrator

Por by the upertolendem ot fArkurnenN, U.S. ,ernment Printing ()RiceWi6hInglon, D.C. 20402

tiroa tirunhcr0 7 7- 0141 -11116 DS 3

4

ACKNOWLEDGMENTSPREFACEChapter

I. INTRODU

CONTENTS

......... .... ....

2. RATE AND ITS 'VICTIMS2.1 The Incidence of Rape2.2 Social Attitudes About Rap_ e2.3 Rape Trauma Syndrome2.4 Rape Victiin Interviews2.5 Conclusion

3. FILING3.1 Case Analysis3.2 Pre-filing Interviews ,

3.3 Pre -filing Polygraph Examinations- . .

3.4 The Filing Decision3.5 Documentation of the Filing Process' . . . ... .. . . 19

3.6 Conclusion 19

Appendix to Chapter 3 . 204. PRELIMINARY 1-IEARINGS AND GRAND JURIES 22

4.1 The Preliminary Hearing 22

4.2 Grand Jury 26,4.3 Direct Filing . ... . , 26

4,4 Documentation of Preliminary Hearings 26

4.5 Conclusion 27

. ..

Pageviixi

4

5

7,

11

16 ,

17

18

5. PLEA BARGAINING 28

5.1 Case Evaluation 28

5.2 Standards for Plea Bargaining ...,.... .. ....... 30

5.3 The Polygraph and Plea Negotiation ,k. 31

5.4 Participants in the Plea Bargaining Process 31

6. TRIAL PREPARATION 33

6.1 Pre-trial Legal Issues 33

6.2 Witnesses and Exhibits 35

Appendix to Chapter 6 38

7 TRIAL7.1 Prier Sexual History7.2 Jury Selection .

7.3 Trial StrategyAppendix to Chapter 7

SENTENCING8.1 The Role of the Prosecutor

4141434651

III

Page, 8.2 The Transfer bf information,8.3 The Victim and the police

'9. POLICE, MEDICAL PERSONNEL AND VICTIM COUNSELORS9.1 Police9.2 Medical Personnel- .......9.3 Victim Counselors J9.4 Conclusion

5354

55555§5758

Appendix to Chapter 9

ABSTRACT

Interviews with 40 experienced prosecutors indicated that, even in major cities, anaverage of only 4.5 rape cases per proseculi3r actually proceed to trial, while only 2.5result in a conviction. Since the handling of rape cases is often an unfamiliar task, thisManual has can designed as a reference. worIL

The report begins with a discussion of the historical prejudices prosecutors, judges, andjuries have had toward rape victims. Although the victim is often thought to contribute tothe offense, a study of police records in five cities show that substantial tIneats against the

.victini's life were made in_ 60 percent of cases and strong-arm force was used in 75percent. The manual describes medical tests that should be conducted immediately and atintervals after report of the attack and recommends questions that should be asked at thecrime scene. Forensic evidence that should be gathered is also dipcussed. The process ofplea bargaining and the popular concept of the degree, of seriousness" of rape .arec nsidered in order to aid the prosecutor who must determine his chances of winning the

se. Because of popular prejudices, the rape case must be especially well prepared.Therefore, the presentation and evidence, the treatment of witnesses, methods of discover-ing possible juror bias, and other trial tactics are also discussed in detail.

Finally, the report concludes with appendixes presenting sample forms for recordinginformation from medical and forensic examinations, a bibliography, and a description ofrape victim services in various cities.

PROJECT STAFF

Duncan Chappell, LLB., Ph.D., Center DirectorDonna Schram, Ph.D., Project DirectorCy Ulberg, Ph.D., Research St ientistRank Albi, B-A-, Police SpeckdistLinda Forrest, WA., Victim Specialist

*Jay Reich, &D., Prosecutor SpecialistClaudine Trafford, B.A. , Administrative Assistant

'Principal author of this manual

NOTE:The complete results of this project are included in I I research prodads. ihirvolume

represents the findings of one part of a comprehensive study of rape and the criminaljustice, system response. Additional research findings and recommendations are available

following publications and reports. Copies may be purchased from the GovernmentPrinting Office.

Forcible Rape:Forcible Rape:Forcible Rape:Forcible Rape:Forcible Rape:

Volume I)Forcible Rape:

1.11)

Forcible Rape:Forcible Rapi:Forcible Rape:Forcible Rape:

A National Survey of the Response by Police (Police Volume 1)A Manual for Patrol Officers (Police Volume II)A Manual for Sex Crimes Investigators (Police Volume Ill)Police Administrative and Policy Issues (Police Volume IV)A National Survey of the Response by Prosecutors (Prosecutors'

Prosecutor Administrati and Policy Issues (Prosecutors' Volume

An Analysis of the Legal Issues-Medical and Legal Information [for Victims]Final Project Report

-A Literature Review and Annotated Bih graphy

We would like to

ACKNOWLEDGMENTS.

ollowing people for their valuable contributions. to this report:

National Advisory Panel,

Bruce R. Baker, Chief of Police, Portland'Police Department, Portland, Oregon

Edwin C. Brown. Jr., Brown & BrownAttorneys, Washington, D.C.

D. Lynn Curtis, Research Associate,Bureau of Social Science Research, Inc.,Washington, D.C.

Margaret J. Gates, Co-Director Center forWomen Policy Studies, Washington,D.C.

Patrick Healy, Executive Director, Na-tional District Attorneys Association,Chicago, Illinois

Margaret Jordan, Johnson County Pros-ecuting Attorney, Olathe, Kansas

Kim Frankel, AssistantDistrict Attorney, MultnorrtahCounty, Portland, Oregon

Miry Keefe, formerly Sex CrimesAt*ysis Unit, New York City Police Ve,partmem; presently Training Specialist,University Research Corp.. WashiVori,D.C.

Mary Ann Largen, formerly Chairpe19nNOW Task Force on Rape; prtgentlY,Consultant, Nitional Center for Preven.Lion and Control of Rape,Washington, D.C.

Catherine H. Milton, formerly AstiDirector, the Police Foundation;ently, Director, Female Offender ResoureeCenter, American Bar Association,Washington, D.C.

Reviewers

Howard Janssen, AssistantDistrict Attorney, AlamedaCounty, Oakland, California

Project Monitors

Lois Mock,National Institute of Law Enforcement,and Criminal Justice, Law EnforcementAssistance Administration, Washington,D, C,

Dr. Fred Heinzelmann,National Institute of Law Enforcerrientand Criminal Justice, Law EnforceMentAssistance Administration, Washington,D.C.

We are grateful to the following agencies for their commitment and interest in this prejOt:

Alameda County Office of District Attor-ney, Oakland, California

Jackson County ProsecutingAttorney's Office, Kansas City, Missouri

Johnson County ProsecutingAttorney's Office, Olathe, Kansas

King County ProsecutingAttorney's Office, Seattle, Washin

vii

Marion County ProsecutingAttorney's Office, Indianapolis Indiana

Iviultricnnah County ProsecutingAttorney's Office, Portland, Oregon

Platte County ProsecutingAttorney's Office, Platte

._Isso-un

'Shelby County DistrictAttorney's Office, Memphis, Tennes

.Travis County DistrictAttorney's Office, Austin, Texas

United States Attorney's Office, Wash-ington, D.C.

Wayne County` ProsecutingAttorney's Office, Detroit, Michigan

Wyandotte Coniity DistrictAttorney's Office, Kansas City, Kansas

Austin Police Department,Austin, Texas

Austin Rape Crisis Center,Austin, Texas

Detroit Police Department,Detroit, Michigan

Detroit Rape Crisis Line,Detroit,- Michigan

Detroit Rape Counseling Center, DetroitGeneral Hospital, Detroit, Michigan

Among the many others who assisted us,

Jay Lynn Fortney, Assistant District At-torney, Jackson County Prosecuting At-torney's Office

Michael Fried, Wayne County Prosecut-ing Attorney's Office, Detroit, Michigan

Barbara Simons, Director,Detroit Rape Counseling Center, Detroit,Michigan

Kansas City Police Department, KansasCity, Missouri

Memphis Police Department,Memphis, Tennessee

Metropolitan Organization to CounterSexuaT AilaWts, KaftsaTCity,

Metropolitan H)friSe partment,Washington, D.C.

Multnomah County Victim AdvocateProject, Portland, Oregon

New Orleans Police DepartmentNew Orleans, Louisiana

Oakland Police DepartmentOakland, 91-ifermia

Phoenix Police DepartmentPhoenix, Arizona

Acatile PolicenDepattmentSeattle, Washington

Seattle Rape Relief, Seattle,Washington

Sexual Assault CenterHarlxirview Hospital,Seattle, Washington

Sexual Assault Treatment Center,St. Luke's Hospital, Kansas City, Mis-souri

we would like to especially thank:

Officer Susan Walker, Analysis and Plan-ning Division, Detroit Police Department,Detroit, Michigan

Sgt. Don Munstermann, Long RangePlanning and Grants Unit, Kansas CityPolice Department, Kansas city, Mis-soun

10

Faith Fogarty, Literature Coordinator,Battelle, Seattle, Washington

Larry Mullen, Computer Specialist, Bat-telle, Seattle; Washington

u

Washington

Julia Garratt, Coder, Battelle, Seattle,Washington

Jamilia Griffin, Coder, Battelle, Seattle,Washington

Cheryl Hawes-Fouts, Coder, Battelle,Seattle, Washington

Karen Kaye, Coder, Battelle, Seattle,Washington

Elizabeth Seabeck, Coder, Battelle, Seat-de, Washington

PREFACE

The criminal justice. system must respond aggressively to the crime of rape at manylevels. This report is one of a series of documents which explore the range of potential

responses. They are the result of a two-year study of rape unddrtaken,by the Battelle Lawaid, Justice Study Center and funded by a grant from t N lions' Institute of LawEnforcement and Criminal Justice (NILECJ) of the Law Enforce t Assistance Admin..

istration.The Battelle Center adopted several research strategies to

examination of this crime. A total of 208 police departments andwere surveyed in regard to their procedures and policies towardcase reports from five metropolitan police departments were acircumstances under which reported rap_ e offenses occurred, the eon victims, and the manner in which cases were handled by pollcourts. Extensive interviews were conducted with 65 prosecutors, 36

a comprehensiveprosecutors' officesei In addition, 1261

determine theinjury inflicted

, prosecutors, andolice officers, sal

L46 rape victims in six cities throughout the country. These interviews were designed toexplore how policy was implirnented at various levels of the criminal justice system and

'what problems the interviewees perceived in the system's response to rape. Finally, thelegal literature concerning rape was reviewed and the status of rape law in every state was

determined by a_ nationwide telephone survey.This document focuses on the response of the prosecutor to the crime of rape at the

filing and trial level. A companion document entitled Forcible Rape: Prosecutor Ad.

ministrative and MO Issues discusses many of the same topics but from the perspective

of the policy maker in the prosecutor's- office. Both documents have been based onstructured interviews conducted with 40 trial depeties and 25 prosecutors in policy makingroles. The professional experience of the 40 trial prosecutors ranged from less than sixmonths to nine years, with a median experience of three years. Only prosecutors who had

worked with rape caseOwere selected to be interviewed. At the time we interviewed themthey had had on the average (median number) 1.5 rape cases presented to them for filingand 10 rape cases assigned for trial. An average of only 4.5 rape cases per prosecutor hadactually proceeded to trial; of these, an average of 2.5 had resulted in a conviction. While

several very experienced prosecutors were interviewed, the general sample suggested that

even those prosecutors who have dealt with rape cases have a relatively limited expert-

ence.The purpose of this document is to discuss the filing and trial responsibilities of

prosecutors as they specifically pertain to the crime of rape. It is designed, in part, for useby individual prosecutors who are assigned to rape cases, For these prosecutors, it can be

used as a reference text to suggest new ideas and to facilitate comparison of theirexperiences with those of other prosecutors.,In addition, it can be used as a trainingmanual to stimulate discussion among prosecutfirs who have not had extensive-experiencewith rape cases. It is hoped that this manual may not only provide specific guidance toprosecutors involved with particular rape cases, but also serve as a catalyst for new ideasand attitudes- regarding the crime of rape and criminal prosecution.

To facilitate clarity of style, an editorial decision has been made that rape victims andvictim advocates will be referred to as she_" All other persons, including prosecutors,will be referred to as he This is clearly an arbitrary distinction, though it accuratelyreflects tale prevailing pattern of sexes involved in rape cases and their disposition.

CHAPTER 1. INTRODUCTION

The recent public attent ten focused upon the crime ofrape has often manifested itself in vigorous criticism ofthe prosecutor. Because he plays an integral pap in thecriminal justice process, the prosecutor is often identifiedwith the meager record of the entire system. It is esti-mated, for example, that less than two percent of allreported rapes result in a conviction for rape.' As apublic official who is an influential member of the crimi-nal justice system; the prosecutor inevitably niirst shareresponsibility for this failure.

Direct criticism has been made of the prosecutorresponse, to the crime of rape. The filing and plea batgaining practices of many prosecutors suggest that the yare not committed to aggressive rape prosecution rat her,they are cautious and unwilling to file or try difficultcases. The attitudes of many piosevutois icnkaid rauxsuggest that they still embrace the myths, nova dis

that base hismiNall ,,itnccredited,Finally, theu often ticatioent ot ktinc,suggests that prosecu_ irs do not appreciate 0, in,,,coaandthp impact of rape 2 Vv fide c el plc c nut H lined oildoubtedly -acknowledge the*sertousness or Jape-, untillgcently pros craws fiac cd huh. .iilt,11114.11

this crimeSonic oh fihe .

unfair, i-0111pir issue:, It. 11 .rc IAA 1.1SSL dELD1. to

simple solnit ons. Nonetheless ,C;, er 1I l rr,stc of

identified Nig ficant problems in traditional ropeecution and has begun to conhota Mem lot eXairipirprosecutors have Creak-Ai Tcislall,, mired tiling unitswhose personnel are serc--atiNe ti, , triton needs Rapecases have been assigned to cc, tai., idthei than an triallawyers Within an Otrh;e in oidei that e yeltINt_ Can becultivated and Lou :shield i iiinticaecutors have appointed then

own offices, formed clo,,et with the pot kr lobNed for legislative VIc_angr arid pl,,Ilitligated aggp:,,,dvefiling and plea _ hin-gaining ot thcsc pitgrams have begun to demonstrate thin the v11111111,11 ins

lice system can win rape cases and ,uppoir tape viLthilsRape is not unique in its demands upon a beleagitited

criminal justice system However. rape does pose scveralproblems that demand special t:onSkierotiort by prosecutors. Some of these issues are inheielit vino!) thenature-of the crime itself: others result from the recentpublic attention focused upon rape mid the response ofthe criminal justice system. these issues me

1 3

titled and addressed, the record of prosecutors is likely toremain subject to public criticism.

The Victim. The prosecutor's concern with the rapevictim is two-fold. First, the rape victim, as a victim ofcrime, deserves the attention, concern and -understandingof the prosecutor. While the violence experienced by therape victim may be analogous to the trauma known byother victim's, it is becoming increasingly clear that theimpact of this crime is often special and profound. Theprosecutor. as a government official to whom the victimhas turned, has an obligation to treat her with dignity andrespond appropriately to her needs.

The victim is also the mosrimportant witness in theprosecutor's case. He must-therefore help create a crirni-

justice system that will encourage the victim toprosecute. In addition, he must work to facilitate com-munication with the victim and prepare her to be aneffective witness. Given the nature of the crime and itsimpact upon the victim, special skills may be requited,at which the prosecutor may be only dimly aware.

The- Crime: Prosecutors generally acknowledge thattape is Among the most difficult crimes to prove. Wherethe issue is identification of the suspect, the crime issimilar to the most difficult one-on-one.' robbery.Whew the victim and the suspect have been acquaintedand identity is nut an issue, there is often an inherentdefense of consent The state's case may turn on whether

a crime even took place, a posture that is uncommonith other violent crimes.The crime of rape often occurs in the darkness of night

,,rid without witnesses: Physical evidence to prove eitheridentity of the assailant ot the victim's lack of consent isinfrequently found. As a result particular care must begiven to the gathering ot every available piece of evideuce and the developing it its potential as proof. Suchcare may require training and expertise that few -pros-ecutors presently postess.

1'/tr Law. As recent law review articles and legislativeMons imply, the traditional rape law has been undergo-

ing profound change.' Ongoing legislative activity withregard to the admissibility of evidence, the definition ofthe crime and the penalty structure for rape should alertthe prosecutor to the need for active involvement withlass reform The prosecutor must keep abreast of legalchange; he must also be in a position to Influence thelegislative debate as a representative both of the elector-ate anU,of the criminal Justice system. In addition, much

of the legislative reform has been achieved with promisesthat there will be increased prosecution; and the respon-sibility for implementing changes resides with the pros-ecutor.

The Public. At the sanie time that pan of the publicinsists on more aggressive rape prosecution, anotherpart, often seated as jurors, seems unwilling to label anindividual a rapist without the most compelling of

__cases.3 Thus, while there may be pressureto file more-rape cases, there is also the practical reality that socialattitudes may make these cases particularly difficult towin at trial. This dilemma suggests the need for carefuljud nt in the filing, plea bargaining and trying of rape

Jury attitudes can be overcome, but only if theprosecutor is genuinely committed to his case and canskillfully choose and then convince the jury Conservalive public attitudes toward this crime may ultimatelyrequire the prosecutor to become actively involved in a

'program of public education.The criminal justice aystetii hc it tettiols (I) w lit, 1i

the criminal justice system responds to the crime of rapearc already undergoing significant kflange Mite police

'depanments have Instituted intensive 'taming dit,1

created specialised units to 111,cstigate tope ..3011pleunts

"..as City. M ri l 1 I CM 1.. 4_

,,_c charged as ittpc aitciliptcO 04 u, ,,c 45 1(4

to ,,,,,,nsiciama to, [ape ol atlempted .i.,J toll(.., AleA4.41[Cd iii citric ICl/01)S 101 CI s

S. C411J1 gan I Audies I

I he Rape victim, and the Lug! 1199 491 99, Ala,W Burgess and lyndel llo11,10.om "Rape C.- ttiscling. [heLegal PrOL;034. /04 fti.l of the IViat,ma ,h..i,tun 14t4,ri gr.

Deans. Adminliriuforf. COkel.telut 3 II 1914) pp 24 31,Lynda L tiotrusuoin wed Ann W Eiurgeh Rapt_ The V ictiu. sand theCriminal Justice System" haettiminnal Cinnamic gPeteoh,Atv 3 (1975), 101 10, Nancy (Tager dud 1 aildeen Schorr. yetteal Assault. Confronting /Cape itt itherha (Nvn Yolk: Cilosset tow

Many hospitals have developed protocols for the exami-nation and treatment of rape victims. In most large juris-dictions, a rape crisis line is available to assist victims.The prosecutor must be aware of these and other pro-grams and cooperate with them in the pursuit of commongoals. Where such programs do not exist, the prosecutor,as an elected official, may have a special responsibility towork for their development.

While each rape case is unique and therefore no, document can outline "how to" prosecute rape cases,

this manual discusses those strategies and techniqueswhich seem fundamental to the aggressive proseution ofrape cases. It begins by providing information a4ut rapeand its victims. Only if the prosecutor can appreciate thenature of this crime and its likely impact on the rapevictim, will he be able to make appropriate legal judg-ments about the case. The manual then discusses theevolution of the rape case' from ding through trial,suggesting ways in which the prosecutor can Tamaracthe possibility of conviction. Finally, it considers theimportance of prosecutor interaction with police, medi-k.a,I personnel and victim counselors to facilitate the proscc tinull tit rape.

I h

Trial, k August, 1974), try. wiry E. Maminsen,ledix Vi, A Vicitn, of Society and the I aw Wahoinefte L.fa,Joao. ,/ II (19)4), pp 3i5 55, Pamela i Woods. The VIctat in aPoroble Rape Cane: A Fermi-us( VIcw American Cinema/ laen-Ke.aen, (Winter, 1973), pp. )3) -354

3 See Hie I Haw -Rape: New Perspevin at anJ Appm,..h4a I Arr II (1975), pp 257-259

Fur a ixosipfehenalse review arld analyal5 legiaiauve"-..aiad by rape, see Forcible Rape. in Analysis of Legal isme3 dub1)410 hy National Institute of Law Enforcement and Criminal Justice,1 aw Enforcement Assistance Administration as part of this piojcct

3 Stec Harry K al v in and 11 ren Zeisel, The American Jury, (rhictig,,) erb I ry of Chicago Press, 1905), pp 249=254

CHAPTER 2. RAPE AND ITS VICTIMS

It is unlikely that a prosecutor will become involvedwith many rape cases in his entire career In addition, heis subject to the same myths and media presentations thatinfluence everyone's perception of what is rape and whoare its victims. The purpose of this chapter is to informprosecutors abOut rape and to replace stereotypes with amore factual portrayal. By appreciating the nature of therape victim's trauma, the prosecutor may be better pre 6pared to establish rapport and communicate with her. Byunderstanding both the facts and the myths of rape, theprosecutor may be better equipped to objectively assessthe case and later more corn. incingly argue to the juryThe case that appears to he factually weak iw_q Iii t,o,be a much stronger case, disguised by a -,II.11111 w(10 1,Nreacting enwilonall) ti, Ibc ...Anne and thiyeiccied f1i .1

prosecutor whet is uiitauillaal with OK oditiplcNIth.!, inrape.

2.1 The inotteli,eRape is the fastest ing ici.

1975. (WIC (tad' t711`1 I It

ral_k e port, d lit tilt Looted 1.

k_1CaNk. crt 4 pci1;111 l',11)have shown that rapt 1% pr..hahl of theniosi mle'epoi tect ,,t 411 , r

0(10 of leported to uaeported tapes i.inge from on., indace iii tflic. C It cltc u, ES 1u 1.. 1+,11

tic It pc i d 1.ka.i1I,C. .11111 ,10 eta 1 (1111 ri,II

1 apC.S wet,. 0.)11111iII.C.I Ili 14(1 ll 111,1 I.

tt1c II SO() +.1k 1.1e it In 11 Ii111 1.

'ICI hall) JNLatIl(CIJ 111 1')/

I he incidence of at .

I !IC StitntICIAI siatcs le,Oluit.1 1 pei,,.11, I iI,c at?t4I

V ()IIAI lie Of r 1)Iird I (C In 19I.I i I lit, [Ili: 11,Ii111 I , 1111 a1

and WL.stern c4.14,11 ILI./.).1L.1 . i 111 ii. ii Aild the

NO1IFICaMerfl states Iclxrlt d 19 p, eat Nick 'pot ado

areas extx11,1t,cd100,000 teillCN 1 1(1

reported a late ,../1

in rural areas wastinnzation rates

hat ernalt

111g14.)1 l.ilc

(Nur, or ,

pet lIlt)23 NIci,lis pcivvh,;..11 analyzed

Ili th,

.1)11111:w ircI

vs.J1a411

tat l,.lcs talc il; lyre.r()()1) 1-C111/11,J.N alt

gc..7.1,glapi11call) .1411

wcit_ i 1,11. IN td

tUrLIble tape at arc, 1 LAC t.( / i pct IOC OW) III tilt; Smtilthis rate was 50 pe, 100 ( c Ninth t UI ---,Luc,

47 per it_1I,IX10; and in the Ntaihcast 41 pci It0(88,)I hole aM IIU k.1414 a,. Lindh], 1,/ suggi A. IiI/W ((i,

reporting late ,amespoods to ge,.ipapfn,°graphic tacit its '

As part of this study, 1.261 police reports from livemetropolitan police departments and 146 victim inter-views from three cities -were analyzed in detail. Thelollowing patterns emerged trorn this research.

a. Victims. The victims of rape were usually youngand single. Police reports indicate that over half of thevictims were 20 years of age or younger. Another quarterto one third of the victims were under 25 years of age,While less: than 15 percent,of the rapes _reported to thepolice involved woMen over the age of 30. Althoughwomen of all racial groups reported rapes, black womenwere slightly overrepresented when compared to theirnumbers in (he general population.

b Offenders Most offenders were estimated to bethen ovelitie.s and, on the average, foul to five years

01,191 than their victims In general, racial minoritiestended to be overrepirseuted in the offender population.In areas where the minority population is relatively

the number of minority offenders identified bylepoitiog victims was tour tIVC times greater than theirlepiesentation in the population as a whole. There was

unusual about the physical characlcilsit Iii offendeiN the majority of victims described(heir wo,ailants as aye:live in terms of height and weight.III app,,simatel) tit! pet cut 01 the cases tepoited to thepolice, the rapist was a complete stranger to the victim111 anoine, quaitc, lit the ICIA/11C.11 111C %1,11111 VV.a6

ak..1(1a1111.0-1 with (tic °Milder or had a 111141iCki

111C10,11011 ,..N11.11 111111 I5 l_acent,onsidercd the ottend,i a ilvrse klelid OS CLILIV,

/id t ://1/,/i_ t I he ty, it moo koniiiion 1.44,es4,11 encoi.atenag ikeit assailant vele

Mot l,t 1t 1-10111C.S or on the street tit approximately onehalt he La:NC-:, andel icvlcw the victirrls ceportedildiaiiton_ ased gainst thein immediately In an(tonal Limn ot these offenses, the victim reported beings.oth the a,chsed tot less than 00 minutes when theassaktli ei, curred Hitchhiking was involved hi less inan1) pci tilt Of the 'apes leported to the pullt.,c

41IL1 thrrals Weap0,0 ku

"1 in appruxina,,lely 50 percent of the _reported owesIiltlit.s 111 gulls were moat widely employed. but suchitem., a bottles 100,, and lighted cigarettes were alsoused .s ,,eapons In 75 l'etc..nit of the rape repoits sonictype ,It strong aim tuns= was used against the victimMos, ii these v'cli,lts reported being ovelpowcird andheld choking and beating were not uncom

Nome "ylic art th'eat was used agait.st nO percent of

iiII reporting victims These hreas were usually madeagainst the life of the victim.

c. Reisrcnce' Approximately one third ut the vieurns reported that they were unable to ernplo' anx tspuof resistance. Over half of the wonten reported olteringsome type of verbal or other form of passive ristarlecIn addition. roughly half of the vietiuls rcponed lightingwith their assaitaifls Approximately one third of thevictims who fought back reported that ritcu reastancchad no apparent effect on their assailants; must of themin fact, reported that their phyicu1 rcsistiilcc caueJ theaccused to become more violent arid aggressive

I Injuries About one halt yt the wuriiciiported being raped 1LJsL4incd phyth.al iliJt1i IC. oftype When ilijuiles ucLui ic.J they iunolly icd otminor cuts. scratchcs. arid houses less s R.tiiiis ssciesenously injured Of thc wurrien wtin wci. injuiuti Orici)alt ieponed thai ifili i icoaIIl. i lie i theirijuiy Fully Mi) ,icIcI1i If all .'iCtJill Iiu.resistance wuuld 1esuR in Injurle

g lJJIth,,i./ . .Alni !.Ii .1 if..ho reuried t iii I .if.)cJ ..1.i iCfi.. ,l1 f.. I lie. iti.. I.. Iltil

of additiuijal otteii.s rIlludlig n(fi.i ill.. i t..ui

23 pciciL sscic kidiia...d tii.. i .. ..itu I.. I Liiiiivuli c.) ii 2() uicel.i f io i.1nii -St I)

..iit of ib.. litl.is çi f...._d ., .iili 1

and cuniillngu and anal mu ill UI s. s il ca. fi

liy about LU pi. iul of it... i..i1 \ u. ii....tcimug fu..cd 1. ...iII.Ii[ Jul14.1.. a. it ' ai al 1,1..

uill1l 51. iii ai)i.Si I. aLit '1i i tl .1 .l

L & 5iaia..J -L..iti ..... ..i 011mii. ._ I

iit,iiiii._iii II flail5 ii il II..] flit .1.1

Ji, iii tt..,iii iio'i Is iC!. II..ii ad ii.' i Ii It

.siirJiIisilIg il.ai iltail in.11i..I l.-.ilftln .l I ii Ill

have hccmi tuifl,cd abnii 1.1 I tty tii. II ii 1.5

prLiscuuIuI ktvwl;Jgu if mtics; n.y itt, i Is. fIt Id Ii liito dSscSs In ow Ii jud iii.. iii ail ttt .1 lie I.. c lulla1 Iii dual uil (II.. lik..i .-i. ii 114.11 1. j i i.vvull uliiiiiatly hai ilt lou

.4 14 t.UttAti t Ill'S' ts.fIJl.. Iii._gcsts EI'IaL lIstie I luau) Ii i.s.sit .i' .111

.wil Is ii lul h..pIc i Ilii

Ii it iii. li.11 iu i. ii t 1 II

Jokes atioat rap.. k!. V4. Ii I ,lJ 11 hall .4

riiovi..g needle' ' llilai. 1141 liii I. II.. Alit I I

JECS up Thri a i...i 14 iW tI fI Ii 111111 'I

beliese that till ii a .5_SLI14I 11d Jill.. II tidily .lil0It5nd ti has cv.!. f,cc it utcoi LId Iial .c [It

uflCOIls.irIusly kiIilICll IJIIg II tIC Ilift I.) S fuJi ii aI

.oroLl any to thus ilullo.,s is (lot a uI._ iL. at sLii, atresistance such as vii file dull..-, tiC III. ii si to IW atited the rape It' u.. iii

The fallacy fthi myth Ca. f... [lilSCt I , I.

4

ways. Firsi. in approximately orie-halt of all rapes, thesuctim us threatened with a weapon. She is thus likely torCif or to cxhihit jridiij of the rapist's frce. Second,most women do resist in verie manner. Perhaps becauseiumo.t wumeils experience and expertise xvith violenceciids to he minimal they are unlikely to engage in

pltysi..al .tmunhat or succeed whcn they do Many somenemploy what is referred to as 4passtvc restance" Thiscan include Crying. being slow to respond, feigning aninability to understand instructions or telling the rapistthat they ore pregnant diseased or inju red While thesetechniques nitty riot always be successful, their use does.ugie5t thai the victIm is surely nut a willing partner.

l'itially tot u st,iall percentage qf victims, the assault.0 siid.icnly amid the reuIting fear is so over

whcliuiing that thcy smually 'blank out' or becomeiiitiuitihil iicd With this type of response. icterred to as

11,iLJlIldlic PSYL tiiiliigival irmtantilisrn' or ''tioLennight lb.. i.. tint not iiuiiy is likely ft.) sut,iilii but dist)rilas give the paradoxical impression that she is friendly

i,11.i4IiVC " Ihus ihre is ui siinplc iclatiunshipt.ck ccii iCl.idiILc iii Injury 4i.d a wulliugiicss 14

1d I tie .iilgc lii v mien.. e and itnuafe ried violence.iipli>.. 1 by tiw lapisi and (lii v.suicty .it viutilils andi1.Iiliu ii1,tJiI.Cil aiC toO divcise e ..oiicliid.. iht t' .,IiCrl

.011 cltIii,i easily a-.uid lape oi sCt.itLly dcsi4c itii (ii R.ip It is i..tteii suggested that a tiIgi1

i..uii1t4L .)t icpild .aj5 gi fabricated Ii is atlegd.

to I SliilfilL thai iiiaiiy WlIiii.II .1) lajiC [s sCek

i.. 4g.. iii ti_114. a pl_gIIaiiI.y . i. fuJi. ii 41111,11

..tt,ii I c .,liL1t.ct it IlfiC Iufs)ts tn Ii Ill 1.11 .41011)

tolsi ti. is ii ti).. ul t to ISSC Fh sti ivau. .1 pelieeIt Ii, Ci, sf. ..SINC surl eyed .it1iui the iiiHhIil .1 taisc

.,..u.iI.',oiu iiu. u.iig..d tiilmfl 0 teluc Iii to lit pcli.itit .t allIc puts ()ui a ii1iuial average 13 pci ..ciii of all ItiutLilulotus lCpuu! J io the police we ,e detci in iuic.d i-,y hivesuigaii.tui lii be uiit.iu,idcd (usd1 the iiihcrciit skcpu..tsiuII iiIdli) I hiulitial justice pcisuiii4Cl to mdf)c i.iuiiisiiid

II.... haia. niicllt iiJ uriSasitili iii pnvcy that a icpor'tiiigi..iiiii us lIkely to ui,iitiuiL Ii is doubtful uliat 11.41)) false

a..tia1tuiu.', 1t..eed 1111.51 iii,. iiiiijl icp.til (tlrti (1974)455015 luau cillilaly ill isidsf,ltad opt iitomi the,.. ts Intaut title ii..id ellipillulif :vudeiice that viefilums till lieIii.t ittuit ...y %iitiur ill ubticry .tiiidomibicdlyIticu .i,. Id .e I C1iii 1' lii. c CI the ddt.gc i posed by thelily III itO Ilililli 1,4/ II1X IA that p01 icc otfl..is amidfliSu uft.., utl tt,,iucse Ii 441.1 tIc it i1ld tic litiidt,,. OIliIi .. thus tu firms I he ..oflti11i )

I h. u. ,_4lll'ti 0 i;iIt.., eJ iht. ..ij, A I I,..... I. .145

1ll... ..oll..C1)ti.lit that flue v itihit aetaally l .5 .kci thei aft'! (1/ Li suggc.suu vC ilL4hilIg Li! ilLLtL)El5 She is titus

dill ililiul ItS ilegligemim .iii.i a5 i tcstilt he apisi islIliCfi.I5 IC,, uIp0hI k..1 sILitlis wIut ssi, ic liii

vie wed of ten dcsu rube..) (h ir utv ii ltithiuig 41 the Ii IDe nt

the rape as unattractive and unseductive, inanv, in fact.wore blue jeans and heavy sweaters. Convicted rapistswho were interviewed suggested that the victim's cloth-ing had some influence on their choice of a victim, but itdid not precipitate the rape. The rapists stated that therape was planned in advance, and that the victim's cloth-ing was perhaps one factor considered in the selection titthe victim.' An analogous argument is made conceit', igthe rap_ e victim who was hitchhiking or had been drink-ing in a tavern prior to the rape The myth presents theseactions as being either those of a -loose svoinan- orthose of a careless prison who may tie ask' tw tiouldcThe rnminai law, of course does not v Irvy the vactions in these cases as cimilibuim 111 tic 5t 11114 I he

pollee and the plosek.nint must thetetkne disongutst,tween the possibly pool lodgment oak, ,t, ,1114,1,

fit the soLtlia and theof the defendant

i!tths aNira 1, 1 ,,, .1 i I 1 1.-1,

11,41 a rapist 15 s-s ,1,1/, , , Ire, III 11,, 1

sexual outlets Recent reseatch has found hc, ,es Cr that

lafll h not laic., L.11 FL,t,

(14.)111 Mc a% s;ac .alc (1),tigh t,,

cApIL,s ',.Inc Ill OH(' a51 ts, hII, .1 +qt..,

IcNic sli II it .1 r

,Lu(l) 111 .11 the o-Lt u1,i14 I L111, a,5 . 1 I LL1

ill kls.l LonvIkted (.0:, I ad 11111., la 54 LI, III

,41111lICILL-1) 11,11 I, ,

related fife st.4gc,t,II..:

``1 1-11 .1,1

(14) a .1 1(1 II . 1., 1 1

d.J,,,incc I . IL L. . I

, 1 I ,

.Avz

im 44

1,11, I

(LOLL:, 111,)11 0-1L, 1 d. l.1( 1 .1.

1.4 11.

LLI 51 IC 5 5 lk

death kit a to,pattria

Li ,

k 11 -,C11,41 1,11,

1.1

.1, ,41 1

,1151

fir .

1

I

r,1

I i

.0

'111101

1114

. deal tn.,

ell 'ilk- 1 LILL ., LitNI,ILLIIJ tit= SLII.Sithlt I L. tLL;1 LI, 1, _

and IIII,JI, ha,

of rap., inialediatcl atta,K .

pr 1 10.1 , 1,1o011, rta_iCaIL ,an,

molt 5equctillal }Jam'. of L. a '0,...,41 it IS Ito

cunt,- to be knosxn as inc iafi4 11,1141.1a -.)(1,..11. 11C `.i

all laflc 1...(101, hlll,i.S tl..= hie .111. ,.t

lit. Liu .11L) cAiyalleoc LI

t

sylnplonls with the sanis intensity: Virtually all victims,however, experience some Ill- the emotions described;and therefore the rape trauma syndrome provides a usefulweans to discuss the reaction of victims in general to thecrisis of rap_ e. The rape trauma syndrome describes threephases of psychological response: (I) the acute phase.( 2) the adju.stnient phase, and (3) the integration phase.' '

_, we phase her the ,hrst several days following theirtape, many victims experience extreme psychologicalreactions Frequently, Victims enter a state of emotionalshod, They cannot believe the rape occurred and theymay h, unable to comprehend what has happened orwhat trio., should do Ac a resulsonie victims act inwhat appeals to he an Illogical or irrational wanner: iorekainple, victims ntay nut contact the police for hours ordays (Pi they 1114) letycdtealy bathe ui *ash them clothes

Ever) victim experiences some degree of abject fearI ne forcible rape itself is most commonly perceived as alitc itneatening c vent rattle' than a sexual intrusionUtt,i the v'ictim's life is explicitly threatened In midition, because weapons are often used, the victim fearsnom, mutilation or permanent tx_killy datooge It is thistt,,a, 11,...1 ilia), determine arid explain litany ot bet ao ris

dun.ig thc hems and days immediately dtict the rapeIli diditlk.lii 1,, ft.11 vIkAliiv, AIL likely to ,e,si_orrienLe

.114.11 ,,,t oth,:.1 ,-.1notr,ris stir ti ,d5 dtige. Alarm, guilt,telpies ,n,,,,s. anxiety, icvcage. po,,verlevae,s, liutnIllaLion ai,.1 ellit,alialliLlit , It 1., Lotilltiotk tot victlinx toeLhioit _..,veld and ablupt. .10_7,-,4 ktitmg,., hatitcctlat.Jy_..1t,.. 1h, 1a(-iv= Usyl ,tAtAillpic akiiIng all 11i1,1) !CV,' d V1,_

110i tillit WA, .51,C.. t4,.11,,,. ,11.01,., d inc5E. ...4 a+T.. 1 rol

1,,,, .1 II A ,l.t.1,Ic11 s.)1.1C.a51,,11. ,t putt ,i ,l I tit, ,iic

) 1, 51 . 1 . 1 ,1 , tkailg,k-.T, all (.7. 114 5t,, 0 Nlig .1151 ulic ,I.A4,. led

0, tfis I, 11. d5 the') OIL If ti.,. lift .let Li1-L...,,.1 WO, k pu.,1), l'ic'e Qilloilk)11'. . i

i,,;11,1 I 1 a I 41.,C. WA! a .4101 Lotit[fro.ea L1edo.1 1,,,,, ot

.,...itiolL..1 ,.,..,.0 al I IIL:f. vi,tirlis d , riot wish ki11111.11 cr,,,,thati, ciL,(, ',Ai) Ill fik)lit fill a .11i-,11E.,C1 01

,,k1t115Kl(k ) ngUiC hi c the pikiL IA it F.'N)Lt..y1 ,gic..ally i, is

1,,,por(ani loi 'll,ese ,Ictinis tk,,,1_, 11,nsuare that they ,,in/whit,. ,,t,..,,,, in a 11.,aftlic al,1 idt inalliici I It,. dpi. ;,A1

LAIL, L L.Li , ,..1.,L1 LILL ,.. j5 tILLICN CULL) III ) 4 k 00 L sIC- a Old tilled1W, L. ,c. :1)14)(1011N i his corr.,01 may 1,;sult in moo1 cspori: ;, w ixic tt re 4 ll,s1,1C1Cd I lapp,opilat 4,iv.i1 4S

61L4111.g ..iiillItie 111 i 1,411011,16 Liii.0111111,dy (Ills

1)1.7C -I I. sponse al, 5a ti, ...)IFICI 1,. doubt INC s11,.1 1W.,

*II t._ 1

\ 101 11:5 CAI 11C11.

i gli Jilt. feta a ay !3 ol.:)cl.....dig oil a I. annel in Om 'r

(Itt... 1.01111,111) ..1.4c ,..Itit ,i1)1.!, Suoi..s.glep vkill Oc atic,..t, 1 11) .-,owt, to,(..,,, ,i,s ;tic vi, um 5 age a..,1 giiiu.ityhei uporliqing I Ift,,,,s, 5110 NW) (ought to deal wiLti ,iisis).

- ,iitc, vwhi I hc, ,1111,,o1o.cia th,,,,i, it;,, ,i,,sz iv tel, 1 l ,,p,..ii ciiid IICI ti,w0,1al scc'illy Inc II. till 4

reactioji to the rape i a euinplç% I1lRi;IL tRill ill (lie I

posed situational en si arid the Ic Ill iV II JICI i1 101

lifestyle11djut,nt',it p/iiiie FoIIou Ifl iliii III[cIlue eIIiil illil

IeactIcni to the rape. sieiiiiiu uiltcr rise eeis _IiIs1iI1LLof having learned to eopc suh their e ilerite \ cisoften they accomplish this tI hIiiCkiii iiut iii ThuIiCIIIuregard ln their rape and re 1lJili1ili lc ii Jul litethat they arc not rrnindcd iii it I)uriii ihiu pCI Tilt1 till

victims indicate the) sti Ii Iii iilidis ihn lllli(IiuiIor becorrie u nuoupe rat i c w oh ins est Cii Iii I ii idcc utors This dnmal period s 1IuujIll i k-Il (5 ill) tI.of outward adiusttiierit liii i1 his iiilic lihiOS IL 11115

have not tullv clinic iii (Clint ith t-ii tlieluC Iiihcst vie(iuiis_ tuijdLuiiicn(Lil piitiL lll lLHil lu

mu emiicrge a a !iuiel iiiiiC/ruJe4rtJ(u,i /lIIiiii I lie 11.1 I i ii

trauma occurs ilver liin. sr Ii Jo? Iiiii_ iii it Uii - iliC

Sittlull III lulls liii Ci1itt FICI L_ \_l I iILL Mlii iiiwhile J-ietin__iiij ii Ilu I Is .,i 1

moult tieS OF a SictilTi s Ii IC a rape cdii iii til tii I ["j IS sI ii

sClt-vali_ijiiiii jiiJ Iii_u ill_i liii \1.iiu Ii i lie

iIiiiIu tile iild5 lie ilitttitiii LjIli (IlL ' ilL

utililicni tjnd ii ituc iIi\ Iii tlliJi,__1 IL ii. SI dl_FI1CVC t__i_liii i I i-

I I intitti us JI ii ti1 I II

I I

tlUlilcS out iSilliltS (tiLl i .i ii ii 1, - ii. --

hid I IIiiuiC \ iii -L It I lit 0 1 R .1 ilL ii I

tuILt t,I aI_IuJjl .i_,-,IL iii:.

ll_il hI Iilii5 (It_ILL_ilL (lu I - I IIii iU(It __litj1_i lIt ii _ I I II -I

t. I - il I ii I - I I

__Iiiiiit_i ui_I lie ilie I_ I I -. I Ii I I

Itltiiul iii ill_i liiIliilj! I -. ii Iltii_ ii I - -

lILfle\ ji ciii I!ic\ -I

Ill Li ii liii..!' I sil i_i - k I --. I I

Li tlCtitliiII ill 41111 LtSli - Ii -. - -

iItuI Cili}Ili5L_l I It IChi_ IIi_ -. i Ii

iuIkili5 lilt I lil 1i iIl( i. lie I. I I

mciii alud Ii1In iji 'LL II -

1- ii, iiil IIJ(I(IIi I - ii -_ -

1_IeI ta_iil IllelihilL I _ .1 -

IudjIul \ ti ii II '1I1_il_ it I II I i - I,

cull'. wIidiiuIiL liutil _.t. Jill .1

iejiiiiT 1Fui Itliiil[IFi( Iii ill II I i i

jilt Ii,1jIJlt_uJ \liii Ill Is, - ii Ill Ii I i

-ii.. iu lit ii -j lii S I 1 1 I,l I II I

rhr ii ii ii

I I FIC I ii LII ii I - I il.i_ I

5ItIIii , iflici,j1__liiI us liii Ili Ii liii]Fliert ac many i_.iIi. I. t IIi_ li-icflht)tiiihial detente IIlCCh(IM . I i_i III Lli_

stilIdlId (uluclult ti Ii I II I I

iiJll_' LI-Lu 13\ Iieliljj Jtt ill_I ill PlltL'lflIil tIll lit ililie', Cr101

1111 IllitluC (I_l5tIIIll1_i it ill lesCi. clii IihlI1i ILilIlis IC1115 L- i_ilCu 0 lies hOC (,IICIIII lttClltJllII Irlilli the

11IIIII,lI JiisiIuC suit'iii Iii Jilelelli I itlilIl is

11151 IIILILISt lie IikcIiliit il SUtLCttIIiI (llIiiCLIuiiliIlI he it 11111 It I I I 'c I ttlltTiiC ill iii lic pIll ith_ lii tilt

lilt_u ill 51111111 alit he FiifR iria Oe luituhlt i elitelit lilt iultiiii liII' ill_I IL ulliltelt ttliilc ihiIit 5 ,iiisIliiiIiij IL Fills ii I stICiIitjniS utlitilit lie I :ikcn liii OCT

luhil 5' 1111 i LIl-iJI__r,LTIL,li tll (lie 'IL_Illul S LilililItliJul slateII tiC hIlt It iii1i be Jppltipriile t'illier Iii ape the'It 1111 It lIlt lilt ill II taptuIc the CiiIMi hIll1 LIUlI it II IlelSillu C III TI! it 1li1 -1 ni si ot I lIOC he tore Illi)ilult Iili_ ii! it i1ikcn lilt' tTI1F1TI1I11iI lie or I' Ililt 111115

iiiIL,h( ML IIlilii1I U'liut j ulTIlilUl II) L'iislItI II theIIlliu it .l,Iiu lilt ill I,ikIIlC hiT Ii LII lit IJillilli 11111 lilt_i Iii

II I I 1111 li_ - Ilk a III t uI hi lIlt ill uI slit Ii ukiLu

Iii I

iiii_ hiLl iii, li

I iItl&_ililiI it il liLllt lit - 'ULILC IC-IS ii ji_kIIIC11115 litLI!ttit iii iIitlt'iJ IFIC'uL itt IllO Ciii 01111 I'S

tii_iii'] tlhiiiICST,ihIC li1I-'eiiit \ flLlIOt ill Ii lltI iiliSI! ilIltu I jil lii 'ii a us lit ii iti I it i 11111 li iiil d Sc

inc i lit- I .1111 ui Ills j ii ill t lhiiil I - lIlt tic ii - i \1

-. I iiit i_IL tiiilI\u Ill ili iIiiI illit iihul t-CIiI iii

ii .iiiiiiii Liii lit Ii ih IliL lu dlii Li Ui?

tiiililiu'\il Ii Lii Liili lIui ,it.5 [is I iii i,}j-dii I i-iniliiiliiitiiii kl\iiiIIcI Iiki ii -ilL liii ilo

i IuuuC nuiuu 1 uid ShiLill(.uhJI\iillii/u Ii, ii iiiil Li hit iu1s ilIlii

Ciii .t Liihi Siii i iiiii \ii_ .,_ hlitil - 'ii1it,iiil.s I-i -I i-Iii

-

i-till i i

i1iIi I Ill IL liIii I 'lit ii- ill ill L I

rI it I

iii i iii i_il li .51 i_ui hit i__' ii ill

ilIiIii i it LI htiilII iii Lipc IOi_ kiiiii ii1 iii cl1. ii' uiiud I ot liii i - iLl iiii

- iI ii i-Il - I ii I U I Lid tile Si I IiI

ili 'liji il ioii -i,iu Ill hi

liii III Iii ii. 1 lOt ' ill II-.

Iii iii UIi,t I liocriti__Ilu _ii lu ii iii

SI Iii - iii. i iu -i-i I I Ii Ml ii i

- ii - i I.il ill lit ci litli III Ci.iiiij!lL i_ilL Uilii it iii ii ltli _il __ i_i III II hiciu__ll I - il-Li- il__il

iili 1.11 II, iii it_i llIIiLh Illulli li__1_ii_iiIt i_u_u

I

- "h li_ I IL I [Ii I i Ii ii c I Ii iii

ill it IllS -'tit I iiLLl lIitil iiiii ii I_il

I Ii ii iii ii,Ii ill - _ Ii _ ii! i_I ii - I _ - i

liii 1 Ii 1_i_I l_ uiIL_iill _I t1 iLiui1_,. iii' -I il__ilL I

Iii CL ill_Il ili iu_iiIi IullI) lii 1itiliiuiii Il1lilhiilL iiMI

-Li LII lIIiLtl lhhTiuiiIiIlI i lit I ,titLl I IlLIii its I liuU't 1 tiiiiiiiiiI tilL L illS jilInlci

)isllliiuitulelIlllIllIiIiIicsuitIiuu__t ILlILLS 1151 (lit LliL,HiiS Out iii I I i

ii. ii 11111 ttj ik lii 11111115

I --i

situation. The paralyzing teeling ot doom is reared

with such reality that the victitri often av'akens to ritesame frightening powerlessness, loss of autonomy andlifethreatening fear of the rape itsIf These dreams actto reinforte the victims genera! anxiety that she is nolonger able to protect herself and may induce her murequest that her ease be dropped

Women who have been raped suiiiei55iiec c.jiicicphobic reactions to circunstances or charactcnstics thatthey relate to theirasiult Fur ecainpic a hicilili cshu

was raped on a stairwell may subseucnrly tind it sery

dilficult to Use any stairs Police aiid prosecutors id,cu!dbe aware of such phobic reactions. paniculart it thcv ict itti is askcd to return [ci th sc tic iii I ut ci ii ilc i

slew cvidciKc tiuiiithc [apeVtiuti5 ieacIliitis and iecuiiun ,i5tili

iiicthuii for copin. with sescre trauiiia Ha1ic [it [ills

hiiweser nay he sery siitried that iIi ic citii

1141 t that thcy .iii ii. t.,iicr u! in that iiic ill

icici t. iiciiiiiil .igaii ii i iillFssi[tait thai it_tilt tic

ahlc to talk to somcein about these fears Pciltce 4nd

U[il[, ._aii help ti, stii,i llcb thi1 L hIss icJc ts,iiiri1 tcacii,iil. th51i dciii liis,iicali\ CI.SçI1cIi.0 B\ iiciii

unstiaiog 'iCilsili it% suit c.ilIc.ii fi[sc._hctsirs LSin ii

SiCd5St 4 sicilic at lii i SiLls I i triit. iti

ii.-iiiihi._ if ti.,Iii u$d dull S I-iS ills, tlI iii CStsgs. Kill

a' ci j.ji S Si_il [till it ti

L 4 Vp,i i ..i

.5151 i_sssiiii ._liii._s iSS.iS lS_ ii 1_s

I 5 Sill 51i Iii SI S S I i_ i551 il, S I ii SS

S __il s Ii

55 ISIS lili i'a_4 his I dI iidiislIi SIIS-I Is II it_55 issi55ii

5555 ihitiic iss SdiI l iSSiIl..SiuIish tTs_ stsiIttI5,1 it iS_ S Sc.SS_ I I i ti I [I iS'S' I I 'ii I ['SI Si_I II lii

diii fSs,sdil. tILi t,ii S 1ii tic, [is., [Si S IlIi.'}._&ii

ciics_cl iA[lti ,,u,'ici S... is, iIi.I La S iS] I. ., iti,_ili

cOil Si ISIS lit dtSI_SiSi tS}I IS ,i it55. i 515_I, I 55sfl ii's

'iciiili I tit_ iii_lli.i cuulics I Iti.. lilt_i I c_fil}__s' 1,5 5,

si4ic iii tisis k si 551,1 ii slit ii dC'Su Ii lliiis sii Issij .

SiliSiL_Il ti1_ ti1 Ii IS_Si usc Sti?il _itic iil.cj isc alsdssi Ii' -.,i_k

ielt[tii,iI,iis SO StiI iu4 hiiii ilca. lt.i_ ui,ici,is_ss ii siill

duiti(tiCi R_ 555 dl ii,tiic.'ii, ii iii, usc , Itic pus, .iuc

lilt pls.scS.uti'i I,=_j_Slcsi.,li(s Ii Si II [15555 iiiI C It, "huh

'lit ,ilis,l ics.cuuu it5.. iiiii' Is. las is it If la._ Is tts,thisIiSsiiI SIC isicisi at_i sifItslsSIJSl ii,_h ii in5 ti,Si.IIS5,ul Ii 1.

i-iuiIukci' it di sli, I u ii itu s_afiiS.. 5-. sillS Iii, 55 sd

ha,.,k i 0.ij.J iiid _, III j.us L I ii JIli ..tiiis.i t tic

I as. I that a ii ic I C ii UFfl ui Ii cl 5. tdi?i - i ['5

lie' itai th 't1[CslCIui'sSii5. t.ds iven p sIiic.s, cc

doersied hi.. pulJ_YUSC ii iti ,ci_.ituii IS ISS IS SIC tj sii.._ IiSS

to faciliiaic [I i, ii (cicis.,iIIiui Ii asi _ali[I tSci?i

ti_i iaiiC the flhijfC 5_abi5.5 t..,4[sic, if I. Ic, sic alci? il tic

cssi[C 0 iii ape casesIn preparation for an ii 5.. S 55 iii. , .s[:

prosecutor should rcs ic the cafre and decEdC hat hehopcc5 to accuinpl sb during rhcntcrxicw. II at all possi-Ne. he should care tuIR read the siCtuni' S Written statC-merits to establish a sense cit her ui1aturit demeanor,ocahulary and perhaps some hints on hos she reacted

a ciiioiirialh to the rape It the prosecutor can spend evenor Ewen[% uulinures planning for the intrvie'ic, he

caii idriitih aspecis cut the ease he hopes to explore andtormiiulaie interviCw strategies to enhnre communicationiLl a SCflsut iVC lIisiilIlCi

I he setting oft he intel siess caii help esihlish its tulletIl liL and pote atial intc ii upt[Uiis arc two tiicIcrs to

iii side, t'cfcure t he irierview aCt uath begins In mostlliSts[iicCs iiiici siw ,i 'stitiuld tie a's urisaIe 4'.

I icc sisiiciialI'i sine it ii uute siit.ct liersu's liid as.Ci.Si4rlpa fly

lit Ii_UiIl lii Itic iuuieisless It then piescrice is 4sseuscd

is tie hcuuhe al, thc iiia', allowed iii assisj in thefilets it55 Pt5 lt,e ifl[,_m siew should Creite an ittI, iu,1Iicic cit ss1ti cO[liiii,Juiicji[iiii A desk ifi I_idols.. ulat

Ii l,i\ tic di, uutsstat. It lus itits f,5ilc.ss 11w 1i[i)SCLIIIIII W liii

sits with au unohstructed 'cICW of thc ictim will pui heriiiuet a case In addition giasi eye cisiutacI cViih t heit_ti!,. Sill ,.,i,ilIiiUf[iCittC ci '.Cii'.i,_ ut iticiul senicuut ..iiti

Iflic it si in 'is h41 ihe c IClili i 'scts s Hic1ik5 iii eye cssliia..l 1sy

ltc,_ Sl.,l ills Iuca\ siild! tILi Ji'scssiiittsit 'si ellit'a[ri,is'iullent,cL t,115 ilug i Jis ass Ic_a c.sauis1stc lhuuc5itc.iiilg or pel ssISsuiiil

aspc.tsi 5( [lii.. ci.ssaI.cI i

I IIC 1'_i ia! liters ii. S Iii Si 41.1.15! dlii? i55 (Ii., 1sic S

aLit p4lsfl4cd SiL)lc SilIcA clic ..ics_tcliintg,iccs ii Liii.

It_ Ti ,a'ie FIISS%C'iCi Ii iiis1itsitsiiii ibis., fill'sK5 I -S is ,SiSiitlI cud is i5l,u..itSlc ,is if! s._lIii

.f1.II tIi they ted ,iit_tiS tics Its, 5iS SI cliii Is

Ills, lii, lucid 'SA'itt'sIId'si iii iC u,SiIs ilic I cghiillilg I

lit_hI, 1 ti. iuiteis.Ic*s aIC sigrlulit_ci. liii tic's _.sli 'sd ifit.

SiSS isi Is it ,_ e[uiiic li.lC[ac tltiii I lii. 1ui i'SS_ cii

[iii s,1 It_C ciii S IS, It di. '.1 i_iS 15, [tit I lull tie uaiisc ul. Si tiu

slit ii cl Iikc is, [it a,iJle..5ed tic ui.igfiu tie iti,,sckcJ t'si

S5IlS,lli Ii tie cItric.: and hi uCficisturug liii aie li 11cc

pills._c ,ti sic mid tic hut lthi tti fi[,)c ess it lc1slu[hlnic

tic .,iitie it rape is suit Cilss stiud thai ii iaKt's ieat

ISIS Si1, his., pUIf 55 st tie .ieu less sti.,ssid I.e c

1t5,lncd , ssluc11lc alit_I jill_c Ia..tia,_ It, iK liii 'ti5 Ills]

cllics Li cd is_u c_i! i_i cI_iIiililfri s_Cis it stt.. Icls ;i,itsac

s._d ti' U cii icc ills cl t5sld cih 'inc ihuc Stic siluuurld I_s.,

5, act_i liii Ii ['s illl1_,5iii_aiuu I_i tI_ace daIiI..h.iii,. cdt_I_S 5'

,S_S1CJ liii t55i1. ic lu disci_ist dci il[d lIIiliuIdhi_I\ tic

iStisSI 1s tic 1.ircii_,_, c_clicSr. 13._tcsis_ it.,_ 1,_ui. st Ills, s,.a'ss.

ii- lid tills cc., uiis,s t[ui i?ti 45k it [t,c I cli,, Ii as ci

ur'ii1iit This allows ti.:i lii I, ;cti,uuc ci. cit_lice 1j4i sic [

tutu iii hi... ld.sc aliul ticIss l51c_'s dii cifiFitsild_ills tt i tei I'ss

hsiic_ liul .4! le_aic d .leigtng iluhlicii[cils_ls 551'S

,lt.JI.iiclieii sit_Ill itiie ictiu[i irligtui tic es.I_lc[ieuuc. ilhi itic_ ISis

i_u, ulsu tin's tifu.:llCd thic ItuidihitS' ii ci litciciiet itlsic ic_Ii's tic_i

li_al tIc I Ic,, lIlt? 5 sli I I .iljsu ili_aISI

1 u_irunC th cuuorc.c of IU fltc is. S_S Ii I 55 5 SSSS SSSiSSS 55

trir

fur a rape vientri hegin cp. mg. I hi's

difficult and embatrassing problem for hut h the pross-eutor and the victim. In these eitcumstans-es the prose.e atm. might attempt to reliese sonic of the pressure thatthe s etint must feel. 'He might break the pee 01 theinterviess h' uttering a timeout or ssater iii cot tee Isslorc

directly, he can,acknowledge the s remit s feelings hsLournlenung, 'ke el heen raped but I do understandthe teeting tit being sere frightened or ft:arcing for ink

or hake eonie to understand ss fiat or.) 1111011 tie

feeling hs listening earefullk to ,.hat other k iktrins haketold we In these ALaks the VIOSetAltri Role

do the s 'cairn that she is in a sate pilts'e ulih a se ns insc

listener and that ....1s111!.:. ds,Criohlb s1'i l 'IL,

I he typc, +,1ate asked kstil ;year's afts,i f the 1 tic,

%A. Closed questroht-i4Leh 'LW he use(41 Wil411 11111c did he let g, sod.a rfraii ,14.14C1IiL 01 01141 if 1 1,, ,11, II

cause the victim to hecorne pass! ,e e

qui,:-.111-1, 10. 11, 1.111,12., 11111 1,,, SIi1s

hctsrl I ond dl, licit 4.11,,,

at401,11 11Ic 414.11111 1i,z1,L1,11-1, ha( 0.111,, 11,

Wk. 1,4 , 14 II 4, -.10,4.,0c 110

Eci4C; 4.4t ,c i01 1, .11 .01441 III 1V 11 111.1 114=

114c

11011 0..4 kip' .1 silic :0 '1.4.41ip14., I 44,01; 44 Ic.44 440 4441 0, 4,

4 III 0114)IN 1110 04 ill., 444 1.01i, 04 ilz. r43

Ict III p4910 f

,C1Ita1F Altai ( 1,

II}C nri4JII, 4..11114.441C, I , I ,

,X4 heir asked n fiat Ilic I is!,\ I,

`.1.A-411-.1 CO. 11 lc I,

It t,, .,)

11,41 I pr.Ikon nal ".

114.5 , ilk, ,

.4 +4ti

4

Hal

C 111,0, ,

.',1)04.11k1 Jk1,1E, 111

(tic 1,1

1144.14 irk(141,-1,1 rid assemei,

Likely to hirer la. °I questroo.[died ,Fiat .01. 1

f!, lilt itittarit 111,1 ,hc 1111.

IC0,0111401 [tic qt,1:"th,i1 11),I 01,0 Ale ,1 ,oast111 [tic ,,41I,1

In llll )1) IN 110(2Lkil hk)(Ir 14, 11\ she acted 111 a certain tv.isthe question should he posed so trial It does not sound asit lutlsnireiii skill he passed on her response For crumple.

most:Lath)! 41111-2,11i NI1, 010 V44:1-4: pitIhatAN Cr)I 102.11iCIIC11 ke hell I 0(1 re:dried that he might tape 1)L1tail kiIu kie,=1 the 101 WIC 'that ()L1 v,ere thinking aridteelarg Adiat sere 1, 11 thoughts ahout tr ntg tO escape,11 ic.isi I he 11 11141 [141X heen so f tightened that..Ile wris irontotv11 tied lit 'she rriav have assessed the \dna=mull and Jr:, ides! her hest eIranee tot i Nut)1111%,,I( t 01)INi kli:111,111LIN hatjL'I the reaSOI1N, iiI-, the itit,,,CL ic,,,p0Ii,,llttlnf tit s. tail. ant III {eikle k''

11onme111 tti,ii oiltry., tire,[hdcrk ,111,1,A1101 used her

t bills deNc I ihe k, hat

the.,,ta at she didQtr,,t1tIN `he details sit the scsua rikj, II1404 TIC

4,411:4 C111140i141'0,111 14r1 ills: I ,C I4I0411 tiff[I,1 101 (1, 1)11,411c [44:I141,1C,1 It1C 14/141, is 4,111 ilL0I1 441

sirs, 115 11 I 111,411C1 s /1 1,1,1 111,1111K1 In turhariating glieNIn t; ti Nht,lkild t e ais.iie ill,ii the II14101

nk, INC igt It Is IRA t)"Ilence. arid that this iolenee Ink olves the huittill :ttitIn and

1 Jai l,lil ,Vi the alt nor It Uri; 111 ,INC 1.11(.11 %Wilk Ili,,141C,11,11", trial it14 N c,111040141c401, tillcir1,I.Inti111 144

([4, (I, ,fic ,111,1 he( ,tale,1,111-,-, 1111,, tat4111 I1 i;411c.4.1 14,14 I 4444, 4I4L 1111,_11 le NA

a1,1 1,1(1N le', 111c 414,1 ,11,k11,1

1111 I, 4 si t ,111 rile IICkt Ili Clic legal prirvss andrial, ,csitor.srfr daft. , 01 ,-,14.11

4i4 pi IIIC 1414,4400c4ic, 14. 1.1/11i

IIA.aI I, is:.1 1,ik44 ,,141

I ItI4 4 4,4,114, 41, 444. II111 1, ,, ,, (1-, -VI 11,1, , ,ri, ,,11

ills ,,, CI III 14,4114/1 +0101 ,it, its Ile

.14 I 1,115,51 (11,_ 1,1,,

,In d I +Id

H,tc a ,1111,,,,1 this- 1,_111,1 s Ali

4.144,11 i i1 4.4 IN, tit)4 at

Ii 11-1 ,

LI, ,-41

I 01141 11.7,

all a

tll 111111,1,1

,Ir t,

11, WIpal 11,11tal I .11(C1 \ le i thatv t,Z %, 1 I

intik ult fl. insoe, that ul1 tqL , 14, 11,

1,,1 1114,11,;a1, 111; OIC 1t41,C11,1,11

,0,111,c11.1 It ir la Tesoro, dal JellIlti 117, 00.11 1,1111ta110115 aL,1 pl.,N Idr .sfkesaris intialaation

art.at ....nroandr2 ,e,,,L41,,C, 111 1111.111-1

JO( it tor or .Jkillikul Iii I...al menial Ire...afr tars 111111',toy, d,LIII ' (1442 14

,t 1,1 1 1i,i1ii.I " iii..5 1.11,fl a..41 1111111 ki

1,

tactual patlerns itnerse, but the nalities arid emu!tonal reacilivns or the %minis tars, greativ the pivtlisthat have reduced ropui to cliches 11,1%e denied the HMIvidualits, of these %loons and hale caused the mammaliustice s'OliCtil to unliods plcitith.,ze these eases

[he prosecutor 'Trust strongis support the rapduring the ordeal t0. p- rosecution :14e must leintio,e herdecision to report the Lome and assist hut itnoutiti kiththe criminal process and the emotional turmoil that lidlovvs the Tape itself I 1: piktSt.:L ti- iiir,i 111,111

Sitr1111:* a legal 11:L1111W1(111. tot he most tint tic bite i',

I g arid counschirg that -V.111 cll,uic (tic t ii (Iliiad11)11111111C111 ,hill C't (I, L'<Ii nu, I1,

ht 1\4 ti! I( (I .,tilt tit' Ili

)i.

1) t

idi1(

partly. illar care that his personal lodgment not distortlegal decision making. Fhe present problem, thoulh,does not seein to stein lrr1111 overinsokement in rape

ti tItMI unvollingness or inabilit., toCNIX2t from the %ietinas perspee-

I I

M,IggeNts that these ire ditticulltick: iCkk 4tet11it IN LIFICS Witnesses or avail=

,11.11c e% idenee to ,issist the prosecution. For rape_a es to he hied pro.secutors inusthe ,iutessi%C: ',killed and %%111ing to prepare intensively.I tie nemailidei it this document suggests techniques andsuale,eies Iii the suceess1 111 prosevutimn iii these eases

J

,11 1t, !,t ). pp 25

i.,,1 1,c II gild =Lulls., 101;itigh till

1.1 1 Htdif(MI1(111 -gape Tralmo R Imo r, 0,t

Lit (-"N_ icft 'bet I 97=4, pp 9m I 46. Ann W.,n,g I ,turn., III !tie Rdp-t-

75 11 9151 tif 1291

11:C11 OiE . :Iii I irid.. i filt it,1111,11CMI ti to,

1(4 ill(C -Pr fiert( c4,1 JOU rtliJ (,?-P v1( blur cs Iii (1976! pp

( I

I

oktc..-11,(1,, of 1,11111,NCCII

Co e Sn /ie'i iii Sochi, Worl( lit=

pp I 1. ..dl I di,1 11,1 Dond1t1

PCi pin) Aolon V icrll,i, ,it div Arrre,

40 i 14',ii i,i, I Malt.' 9..«,111«ild,

isruii 1-',i1,c1 I.- 01 ft(-1.((id.c

a I( III

111

in (NI., liJi5 19,01

Ard Hof I I

Lig! 1,...,1[0 id III AislokN,itils.'.et, l," 10 ) ttP 35I 5t 3. V ifitall i_dpruro.1,,It Ctilidi,41'

.

140 1 pin tilt .11Y, alkci

,1 t P.v 74 ). pp 12.i

I N,

!i 11, . 6 1197:1. pp 85 ic4 91. lusqhPLic, t Id I en of St Nu and thc. .4 (1:. I 11, 4/,1 10

I '4 .r A-0A 4.: l dy pC (IN

1,1,1 r,,T. . Mai:" AI ' iiiuGN StggC, 1(1 (tit I lit (:((,Ik.

igli 11; s 11

,f! p-,76]

It ciltlitC(1( cnita.cie

CHAPTER

Whether to tile charges is perhaps the most importantdecision die prosecutor makes with regard to rape cases.'Analogous to the police decision to investigate the com-plaint, the decision to tile marks the formal entry of thecase into the criminal justice. system. More importantly,the decision nor to file essentially terminates the in-volvement of the criminal justice sys.tern with the crimeWhile decisions to tile rape charges are highly visiblend systematically reviewed through the adversary pros

ess, the decision not to file is virtually Invisible and7iinreviewahle. A decision to file is thus critical to theprosecution of rape uses

Prosecutor decisions na,c liven quite ssntservative at the tone of filing and have been dominatedby two perceived characteristics of rape vases Pros

ecutors have been cautious becau,e, rust, it is believedthat rape reports are (Oen lalsely made. Vv`igniore. theprominent legal sommentano has Nrlitcn at,oulpsychological roots fif such take ..trait

Modern psy stnarristsbehavior of young girls and woolen coningbettor the ,Quit iii all sore I heirpsychic complexes are ,nultitarioos, di,aorredpartly ft!, inherent dete,t,. pat tis t.sA had sak Salenv ironnteni partly tr, tetripolatr, rhystological 01 emoinntal xon,iitions One toner taken h\these complexes is that soralising raisecharges of sexual offense, Ii, Itch

rrr,,,ecutors MUM etiii,ni.ndv 3i1e 4 laLaunpaid prostitutes, or the you,.g ystko

explain her piontisxuir, to a tainCI us tau), r+ tend thelegal system has reinforv,:d this Nkcla. i,lit ta) Sequulsigcorroboration of Mr slime aid ,auji(4i,11y Insitrictivins to the lulu or t t illiiniillg esteltslac crossexamination ,fir iti i dill I t .',teen false ter,,,,,ts thathare passed ponce ',ta=rot 1.1 ha c otter. Insisied on per tine' vie, mg arc sixth), Heroic nttrigor required that she take a p(ly graph cainniontai 4Neither of these procedure.. is normally .equired tit thefit ingot other clones

Second. faosccuior,. I low I al. W,unplainant's velasity flat c t.L-ek in hie i,l Ilig

of rape cases because they du tact tied to t air did-knitto win Caution has tern excicised partisolatly in thosestates whose laws have errxted procedural hairiers toeffective prosecution. In additioi. the political need insortie junsdictions,Ao aiiitain a high conviction rate hasled prosecutors too only those sases wiith a highPr

3. FILING

It is impossible to accurately assess the validity of theprosecutors' coneerns'about rape cases. Not only are nostatistics available regarding the number of false, com-plaints reported to the prosecutor, but these concerns areself-fulfilling prophecies. If the prosecutor does not be-heve-the victim, the case is not hied and therefore cannotbe woo. If the prosecutor is unwilling to risk loss at trial,then the case will not he tiled and failure is assured.

An additional factor also can account for conservativeattitudes at filing. The crime of rape involves sexual actsthat in other situations are perfectly legal. There aremany cases in which it is a question whether the sexualcontact was done in a criminal or social context; and herethe prosecutor's decision may he influenced by his ownideological view regarding the nature of rape. One pros,ecutor who was interviewed as part of this survey clearlydistinguished between rape victims who were employedof who were housewives with families and rape victimswho were unmarried and on welfare It became clearfrom his statements and those of others that personalattitudes toward women, sexuality and race may all at-tee the prosecutoLs decision making While every podsecutor condemns rape as a heinous offense, not everyinosectnor would agree on what constitutes a alive Ihistaxior xonthmed with the tear of false rcpot4s and thereed lot probable cons icoons has made ruing tudgiuctll,sa ,eraial problem of rape prosecution.

Prosecutors has e recently begun to ree xamint24ometi,cur assumptions regarding rape cases. While eetypiiewould concede that rape reports are occasionally halsmcd. many prosecutors have rejected Wigmore s philosoptty They no longer assume false reporting and nolonger require extensive use of) the polygraph and pre-Kling imetsiews They conclude (hat it is unlikely awomaa would subject herself to die insensitivity of the,,nonnal justice system in order to lodge a false coinplaint While prosecutors still consider rapt eases to bedifficult to win, a new recognition of the seriousness (A-rtie xonte has encouraged prosecutors to take greaterrisks at the filling stage Attitudinal changes, coupledwith legal changes in many states, have encouraged theriling of tape cases that previously would never haveeven reached the prosecutor The appropriate standardtot Kling now appears to be only whether there is a

"reasonable posse )lily 01 conviction:This chapter explores the process of case tiling and

suggest. Ming strategies to maximize the possibility oflater success ap trial. It largely assumes that the police

and prosecutor believe the victim is truthful and thedefendant is guilty of the crime. if the prosecutor &=heves that the defendant is innocent, the case :shouldnever be filed, for the prosecutor has an obligation to thecriminal justice system beyond his adversarial role. Butonce the prosecutor is convinced of the defendant's guilt,he is obliged to utilize his adversary skills to insureconviction.

3 CascAnedysisIn practice, the hung, of a et-in-anal case usual!) in

volves a brief presentation by the invcsngating detective,followed by Me prosecutor quickly leading the Lo:+c tile,perhaps interviewing a key witness. glancing at tilc appropriate statute. and then tilling out innumerable loinisThe intellectual process of legal evaluation and evidetinary assessment becomes routine to the ewe' iencedprtt.vecutcit, tan criminal ,1sck generally hollow welldehried patterns that air caN11 t ekigilir3lle lfsk kccomponent of arse evaluation rift ttie pikecute, is

iniaginIng and pledikting 11,4 the kw.; koll look weeks,or months tale, Iiiar I tic cspk,Ilets,c the hllligptameeldit)i has the heite. he V+ill fic able iwaglae theuutuldine of thc ease and ek, it. pokiaidland weaknesses t'on iekk s. C,t

nationally such lc Is,I !I site

iriay be an imprecise exeit, stub - ague's arta_ ulated

goals and ,aProt IfI' 1/it' s k,,,

allardc c, I& t 4 (11, is

I:, Isi anal, .j{, s

.k II ala

IntiSei ilk)! kit. ii,,, Lin II

cat Vsliti the a.lk;ik.,.kkl: flak k kikk_k 11140,11,

itie !den,. eiaaaanll (1.c dein+ ti(1 tic

,ea;, stiatile J. is IA I 11,,ngli IaIrc ,taltAk, , al>

titan' a.dc ik1 state lape dcn, lade

three batik element kekwa ilic defend

.,ill against the sill i,1 ss biotic,''

als,11111

type (..t t7eiict, (Ism .

eyed mwement stec.,il stale . 1. the ikthati its

of rape to elii-rniiipaNN se seal i iii. tat_( k +ii litttl, 1.e itch a

(nail 5 ()click ally pencil c di nil ti,a.

pliavcd. hcinct the I sisal

anal. and vskeibei it r, by a peliks sit ss .. tie

rnOde of proof Is Si inital w_e pene,,a

non will be euntained III the that the

defendant did penetiate the ,kk

his penis or uthed instiwileat the y tile dust t es

pelted to testify to this tct Ire w ord thiit sae app,ip, lateto her age and rkperietikc, tie!

LinidttiOn iit the sit 'tie laps; sit

kk

iC I a 5,1 (lie

assault she may he more or leo aware of the specificnature of the act. Generally, the victim's testimony canestablish all of the elements of the rape cases In thosestates which do not require corroboration, this testimonywill suffice to withstand a motion to dismiss at the end oft :7 state's case, The successful rape prosecution, how-

ever. is built upon corroboration of every part of thevictim's testimony, even if it is not legally required.

Additional evidence olpenetration is most, Cornrnonlyderived from the medica)b- examination of the victimshortly after the assault. At least two kinds of evidencemay he irorriediately available: ( I) evidence Qf traorna tothe orifice which was penetrated and (2) evidence of anemission by the assailant.fi However, penitration canoccur without evidence of trauma and withojt an emis-sion by the rapist,

A skilled gynecologist or trained general practitionershould perform a special examination of the victimshorty after the attack. If there has been penetration,signs of laceration, inflammation and abrasions may beapparent at the point of penetration. The extent of traumaie..ealed may depend on the age and sexual maturity of(tie victim, the instrument of penetration and the Qii,,Lilic.latICeti of the intercourse The doctor should specifi-,ally des,obe his observations with reference to locationand .Ls el ity Thc prosecutor should inquire how theseobservations relate to the victim's depiction of theLs eta S

Evidence if sexual emission can establish penetration,i ii it, tumid within me victim's vagina. mouth of Icei. 11 itatcl WI i_all tie taken frail, tfle- CaV Ines by uktion

twq,.atiolit oi by us: of a button swab and then tested totthe niesence ot seminal fluid Semen contains acid phos

e iktentid by reJctiophtasc. an eniyine which can b U li

with a pal tie olar reagent It acid phosphatase is found toe \is( to the aspnate or swabbed sample, then it is likelyOw cc-iictimion and ejaculation took place.

t his sample can also be examined rnieroopieally to.1,,teilinne whether sperm is present, whether ii is inteet,and whethei it is motile By reference to the quantity ofac id phosphatase in the scruple and the condition and,,,liiine of the speiiii, an estimate can be made as to the

time of ejaculation Ihele is significant debate to the

life of motile sperm within the vagina, with estimates1 anfrins twin sO minute b to 24 hours I( is also stated thatlioninotile si_siiii can remain iti the vagina lot tip to toutlays Sophistkined testing of the acid phospl'tatase may

.stir . -approsimaiely detennine the time of coitus up to a Moltof 40 hours Depending upon the care with which thespecimen., ale len le ved and the soptustivanon of avail=able alialy As . the prosecutor may be able to use the'cviiknee riot only m prove penetration, but to eorrobo-iaie (tic s. iLiiiii s account of the time of ifie ineidtrie7

II is estimated that up iu 2u percent ul all samples

ii

taken' sexual assault, with penetration reseal 110

sperm. It is important to remember that the assail,mi mayhave undergone a vasectomy, he may he 'dente, tit, it nusemen is found, he may have used a condom air with-drawn prior to any ejaculation_ In addition, the semenmay have been washed out in the agina through thenormal cleansing processes of the human body 4 At cettam iiine,\ of the Martini'*, menstrual cycle, the vaginalenvironment may be particularly hostile to the semen andthus cause a quicker deterioration than norrnal.

While the presence of seinen in the vagina sugestsrecent sexual imentouise, it does not necessanly ploscthat the intercour...0 was II0114011seI1Mid'I of wish WC ditendant It is thus inipodant to Cploac at Ittl OIL 515 (1111

the possibility Of 5111e111,1(1,5a, tp, pot he%c; .tot If14 th,",cticof SC1114=11, slaLl'I let:C111 1011 a:11, Oa! 1111,:141)01,-,/: ill ',LIR",WWI `14,,,CIC IC7,111411011"; Ian 1tIC at.11111-oasall tit 1/11,a 1.4

141C114C, IIIta^,,44a1101", 11,01, kiwi.' it turn, tilt toBraise that the sctrien loLaico 111 tl.2 , ILI,Cnitiolkaz-LI 'torn (lie Liettlialaii1 f11 Silt It state 014 OW,etsa_1101 tri./111 1011.111,11,011i, 111,11 111, Mil41I41 41,111,4'11.11i1 II,(414m1INC Iii iii.. ly411 s111 111114

millirdrolct pool to Mc c,,utituon,t, 114

t, it. II

(1,,. iItt, I Iv tt, t j.i

,IMC aii cylaIll ta,,, 11 1, 1 to,,.11 It II..It ilcit .1,11

ptescds s, liiir,.11 Fluid n 1i1 1. Ws. I

.1 .4 ,o1,1 ...I., it 4I .

I1 i ,1 ,}. 4+1 ttl (1,11.

k51

Iii_ 11,11,1{11 I a Ow -rote11,101 tItu,1 tto tooNd\hyd

II; a 1

11,,

1,tc, I,Loityidetahle pe, odd tat ila t, ,1

up, iii \Alien Me thud , I, .1 o1.51 I It

,dill', L,c 1E5,, .1 it,._ ...Lai,. 11.,

totcN,th..... or sciozii ;',14

LICWAtid

k)II,C I II .115..1

,I .114, 1 t,I

O., I .,1

rj^

s a I II,Cat ,,11.J On , I .1!het,: aic it sJli lIr,1 II

1 I I I," Si

CAtI,11 I 1,1,

JIM: rikt Ill. S[died ,otiotati, ails t

ease outing a.ct-toty, ma) ,Att.

non fionor,hca tot,AL

di setup, whit,. syptint I, Acsal saminilou u Idifl t s 11, !al,w111 Ulu', 11(51 Irral +de

t,.

1, 1,1.,'1,5

a lit 51 ,,I 1

yelopmem tit sslihih,, howeker, /nay he used ai trial itthe defendant is infected and the incubation time approx-imates the IMO-NA between the alleged rape and the onsetof the disease:

Rarely does the de nse in a rape case hinge onwrit:the] air Heil there was perICIration, While this defenseIs common in statutory rapc cases, in most forcible rapecases the defendant will either acknowledge the inter,course but argue that it was consensual, or deny theintercourse was with hint, Regardless of the fact IN( amedical/foiensie exami nation may not be central to the

case, the p -ecutor should insist that it he per-footled ui e cry ea,CNa111111at15,11.

( I 5C1 11111) ,[151111 tsr (tie health of the ',K UM, the,it citsc ma% not he appatent at the time of idling: thec- idem,; set .es 10 suAgcst that it the victim's allegation,ti pctichatioit is Lt.utate Mot the remainder tot her story

owe. (4) the tests suggest that the victim has beenikonvenienced in the prosecution of the

anti Olt:11101C, It IS 111111kCly that she has tam it-fted

tic' situ the procedure syinholites the state's coniointitem 1.i itte tier stogy and the ,ase, (6) the

do,..tot 5,1

Ii, lir 11c 5 kt1111:, Si.II dud Ow 5 iiNt: as a i hilts., iihiit an, Nitou.NoiNN No Itc.: jtALNAL-li I Irwin (51 the dclerNINn( For the ()lose. utut ptuv

',Lout) di dcicitdata Ina taif cabe 1, 41,14ag,011,, lit phaN, 111 p. the identity of a Sal,,pc:44 III ally

di, 515,11111 5a11,11ake all 151itIth:alloil II

d 011 lc fCIclicc ii, ttfc dttcladaut'sIs o , o. gcu41,.101.1rcalaus,c St.,: witf nolittalIN i hooscla 1,, il. w a uttutogiaidtt,hi,,.. i 1, 11,1111r14011m, I

at, s I, ,,h1 h Id all 10k-4/N0kt the siCtit,I Et1,7ICt)y 101i.Irk

ICH( RILIIIIIK,A11011 Su,4e C)ClAItrieSS

,, rtt'I,y1 that ale; Ih. 41 s.feulalil (is

N I, .1111101.11 tai (till i. 111,1 1.11)C

mas 0,11_4 Ina( Is ,,01 ilt,1,11al1, allaIde 111

thcic 4c several icasoto tor the

1 1-, i II , y 1,5 . I tI.I may p , I, 1,111 I(

(h.!, ,!,.111,,tk 1,1 a /1111,11

1,shin;IN i; rt. iti`L

. I li,414.11 01 dId 1,1. EkIdEti palII, 4.1,11 hica1h 5/1 tIsaaiN k,,,l0f! 1.15 5-10,111111! shutVisits i a .1, 5, 114' air to., hod tak_tal 11111, ttis t mido1,1 t, lc s i u.1,21v.,e1 ond k...,hclite, he IN 5.1i4(11115_1!cd Ica

II,- , appcddit_10111% 1sa1 tt is intourata ,hot 1)011,e dialiIs Cs, ilidr11, 10,,r1,1111

._55_1. if 1hs 51, 1151, , 1441' +Iva. ill Ica,, talc Mes =1YI,

:;e11,11i

The victim's identification of the defendant can hecorroborated if she can accurately describe the locationof the rape and that location is in the sole control of thedefendant.. For example, it the rape occurred in thesuspect's van or aparmrent, the victim's description ofthe scene can independently suppoti her identification ofthe suspect. The victim's mentors of a bumper sticker.car stereo or the pattern of furniture in a room can notonly lead to the suspect's arrest, but substantiate herlineup identification. The prosecutor who suspects thatidentification will become an issue at trial, might encour-

an artistic victim to drays, a sketch ot the libel of ofthe suspect's an or apartment; a subsequent search i,4,11

rant of the premises could produce photographs whichcan be introduced and compared to the sketches at trialWhile at the time of trial the defendant might a kososledge his involvement but allege that the intelounse xsasccinsensual, the match of the sketch and photogtaph willstill lend credibility to the N the elahorate exercise tit drawing the sketch and taking photographs suggests that neither the victim not the proses tltoranticipated that h tt..e cc.ett_d ilot would mictitos, &few;of consent

It the Nov. I till. I,. mem was the

the tape. all) d, flee fftill piaLCNN (hr t 101IL

will It-Naallhatc till INICIttlh,allon t Its; N.

prints, Clothing, OtIrSe or cigarettes ',moo in the siospecL,Cal tai honir all lit- c %Hemel, t oltAdhlt., ,t 010 rho,

if is important that a careful scaivh he made A raifure to',cubit allosss the Liu, (.. 1att21 ,11.t4L.tt that Itt, ',Rat;1111Cd Its ,,Ikap.=4: it, Ojos., if. ,a: NANtiNII:NIN.0) if the

t,. IL. -11 ant c .

flute iii gsiii.niaikm fell insiank c

Ilea di i) mt.: a lulls,: ±lI (Li( Lsiki flits 4,4111 k!bilio

ated the tingetpt totsIstientiticatism ti .1 :Ito.

ways I lac susoL, ,L, of tits tald fit at Lt.,' to ie Lei

tome It tLILtaityi,..ti disheo t ,t too.,IMAto operandi 75L- CO. 141 plall it IIN; II), f. it L. ticc ci

stolen from ttic 1, hill ai ilia iii it. N.1 (II law; ,,,A,,fitttthe defendant's home mas t,!, cal il.L mien ,lent:.

IldcituhLatisat Lan tic [twat., ,LI though liltwined. by corripatinb 1111 ulk:A.( s In mid (mis t +till title

town sec=retions found tt the scent; t,t le.Lttere,1 thito tiltviLiiin lip iii 80 pen cia t all men s, t. let.- hlkYt?ki 1,14 10i

11110 tlt..ir and seinen It (TR_ -,osis....( is a

St:el-NAM, rtieri hiNaati ON seincli ;taut std is a

nal fluid on the victim can be analyzed ttii blood Itthe defendant's blood type matches the type tound Ill thesample* the victim's story will tic suppotted Sim,: anumber of people could hate the same blood .tsitipint.:,

such evidence of course cannot indepottlenti plate theidentity of the suspect hurthertoole, vvhelc mho ssecretions are mixed with the defendant s. II Is itopondta

to eliminate the victim as the secretor of the identifiedblood group. lithe specimen reepvered from the scene orthe victim has. been touched by someone, such as theinvestigating police officer, perspiration could contami-nate the sample by adding additional blood factors. Ifdone properly] however, such blood typing can be animportant inyt,:sogative tool, for a mismatch will post=Lively eliminafit a suspect while a positive match willsupport an independent identification.9 Once again, fail-ure to have such a test-performed will raise the defenseargument that had the test been performed, the defendantmight have been exculpated. The prosecutor shouldintike contact with local forensic laboratories to deter-mine if they are able and willing to perform these tests.When: identification is the key issue, such forensic, inves=ligation mist ultimately determine the outcome of thecase

: I.til A of con:- 1_, Hirer , resistance . The legal and-

Itd Inch characterizes sexual penetration or contcriminal sautes greatly front state to state. Some statesrequire proof of the assailant's'foreible compulsion:others necessitate proof that the victim did not consent:others require evidence that the victim resisted. Coneep=malls. these standards establish different burdens withiegard to the behavior of the victim and the assailantSonic statutes emphasize the acts of the rapist, whileothers dwell on the reaction the victim." While theseimmolations hasc significant legal implications tot theprosecutor in the way charges are filed and juries areinstitivted hot csaluation of Mc Cs 111211,c at tiling reII ains Litman) the saitiL ti_gaidle:,s of Me siatutoly,clicitic I tic pi oscf_ Mot seeks 10 demonstratk that theintercom se Was not COltSCIISLIal Wht_lhet this

assailant used fusee .11 deception ot because then1 s iesimunce was oveicome Thu same typesiot

ate used to establish the clement regardless titw, legal lotiAolation The trier of fact, having eonsideledfins actions of the defendant tend the victim. and understaildwg the nature of the sexual act, must hr peisuadedbuytiiiii i teominable doubt that Mr 1111mi-wise was uttt

L(Nlinti^.ti1(.)11N.sa: attlINti

ails cIul,lcnt 1, tic iculli Het dcst option of tae events

Allot to dutini, ail aftci the tape should clearly depictnonesnis.msual ititeiLourse Where the detendant arguesiliat (tic intercourse was Lonseitsual, the stoutly %voidwill he vitted against his Evidence that tends to .supportone testimony rather that the other may ultimately de-tenhine the outcome tit= the ease

he N testimony Lan he diamatiLaily Lottottotated by evidence of the defendant's use of LitrLci bucc.'Ihis !nay include bruises or lacerations captured in colorphotoptaiths shook after the attack 1 he %mini shouldbe reminded that It hruINIfig devel duet Iles ltlllial

contact with the police, she should recontact them so thatpictures can be taken. The tiling prosecutor must notonly be aware of any physical evtOtenee resulting fromthe attack, but he must insure that this evidenue is appropriately documented for subsequent use Tit trial Eviden,eof COB and bruises should be reintom-ed by their reference in medical and police reports In the course 01 a

routine victim examination, physicians often hail iIInotice or record bruises on the arms, neck or breastsSimilarly, patrol officers who respond to the scene. Iiitent on,4nderstanding the basic facts of the as.sault, inanot record simple observations of iniut) It is critical thatthe record of such injuries. especially if minor, he on

sistently afid carefully noted, the more pcople who noticethese marks, the more sigmfit_tint they will afslz.0 lalcl ,trial when the horses and sciatchesmoment of tiling. the pioe,utot should make st,le (hotthe documentation is complete and consn,tent Wcel oimonths Intel, at the tune of Mal it I (1111P,J 1,,11

physicians and patio' ,?thick f,ollections of minor cots and bruises

A careful medical esaintitatitmaus tnuiscs and teat:, the Om,doctor sh0tald lac Csp,,LA ,a1CrlIII1 Pa_ I,..

and ecterit of titc,c orm,ic pi

CAdtIIiillIg ph) tailtil I tto.

Ita hark the It_k Uoii 1 1 Mita; , Ail, , t, ik, t iI l'kiIX )

ObVi++,1,

aNtablIN11 Ilia, (ha

ptoNc,.4.1(1,1 1.-,h Illd ,,,d11,1,Itiet the t,

10aal(C a 1110,4 ag capon it pithvatlished that it is in a parlictila, I 0 tailthe w. ila4,li too. Lk..k+% ti. I 111,,

dCt,111Cd I

NkCICh I ate! at Mal k

iii the absetle e irtZ. 111.,1,11.

111,1,c,1 on (tic jury It ear.," I, t I .11 Milla,14:between the des,' iia 1114.

rcJibility ill ,A IIII IMIAlatha,.. I,

that inak tics. the 1 Icalilr N I , 411 I k ,It

(1141 hit intiNttatik e ,

I he Kann s envotionol ,

the attack. aN cataeIveki t/) a II,otement whvie , ,,, I IV t !..1

poNipt.1 I4I wake ai im ,.t ai, I 1 It

VICIIM S pti,'511,1i1 . II I

!meta,' Nith the o,i111 idiot, It act) itc

could te,tily to he geticbal condition ,Si .,ti .III

include parents, I lends 1,,,,s, .1,1

advmates Patted of ficen, an: ia polL, k irtjherVatICIIIS though the) aft L VCai less Act:, t 1,14011

tietail of the vii iIIII s orn,tional (LH, al

condition Witnesses ,,ati pepkni (tic

. 1 Ile

d d 1,1,1 , Ail

14

coherence;- :shock, Aright, anxiety and nervousnesslong as IheSe aeIlkarh appear directly related to the rapeand not to the trauma of reporting it

t !evilly the re ,Iii Sloe witness. or fresh complaintwitness, the person to whom the cietim first told the storyof the rope. is critical Jo the state's case In most Jurisdic-tions the -lute anti coy of the tape cictim Is itselfIdiots ,abic to col totrotate tin Ntoi) Such admissibility INati exception to the hearsay rule: the rationale is that if a

k/IIIktil Is truhv, raped, is not fabricating a story, she williiiiinediatel report the come When that happens, the

,110 first heats these words is valuable to theprosecution The tiling prosecutor in ight inquire d-

m,- ,1,11111,oned the pot ice and. it so whether her repon/wen tope tecorded, it local Cidentiary practice al=

1, LOI11(1 evidence theN4,11C111eIrt5 it eel 4eNote witnesses should be

Ise both in the language used hv the reporting victimand the s i. mil s emotional ,on,lnion ai the tulle

S1114i eadl ,avc and each tape c 'coin is untqw, it is

impossilde to predict how a victim would normally reacton assault Rape may not c.chibit btuisesetuo 1,10, not leo, t 15011 Lois ond hysteria I hese

(halfwit, and often more dithicultHove Ai the time of riling, the

. 1.(4 t ,111711iki C '1)101C the 1111) vhicoLe and,II (tic 11,_,Int III if- ct,,,tc Al Of the taCt 011 theII, I fh.1,-,..I1,111t) Ill,.- Cahn may hase

bcc, err tics may L,,.e Lckal at./L 111 deal WWI the.-. Lam/thaw!! I11a11 Stic

kolikallate L.a141111. 1.,a al km] I 19111,

perhps doe ina lams por. otoi t,tsiprepalcd to c 51111 It fot laariaL

III) 111._s Iliad Lthoinatial ,taak Ihlns alien aVaaatIIC and yet1,011 [11,1, OttICI

It, 01 the ,:t4,5e Ilea} fie

, AS 0011,011Ni_ the p eI_Uilal t,no.a

otnIcaNland ,1111 1, ally tilkt hat circonistori,esilic ma: I tic k.1 OINe the COMIIIII010

at tIC inn, and 01,1c that the tope took place. the!that) II bt, that IttL litteR \kat, Co1INca.(cd

I,. It a.: 1,,pC kl erred in a cold dad', alley and the, was ,uld i'e difficult tiMIII .1t2 ,c,klaIit Ii. allt.,frj: it di: vicom was basingt,,, IntOit la until cl) Ittnt NItc. would

sent act!, it) especn1I1) Anal ot &nal

.c .1 ilk, ki1,11 dose_ to, CA,M)ICI 11;10 r ttalnlnr .1111) tae noted lou.N1)

toti dottliag cve. lall) it it is c.spersive.p, ,,, the kiln) 411., :tiggcsi u.o.A 'fling intercourse.

I ,och eontvhotative evidence tov,, i Iltt oivai ma,. ayv: limited only by the 'wag

I 011 ,tod (ht police wo,king close!)al, it-, It ill, ,II c1,,pinent dos eV Idetk:e rs

IILit

e of.trial ver, it will be moreibte, to bte.'Conditions will

hiive,chand, witnesses will have disappeared, and po-tential testimony wilt already be liniited orjeapordizedby inadequately prepared prior: statements. It is the re-,sponsibility of the filing prosecutor to'think through theeau, anticipate the defense, and prepare evidence for thetrial.

Anticipating defenses. An integral part of evaluatingthe evidence at the time of filing is the anticipation ofdefenses. While it is difficult to separate consideration ofthe state's evidence and the defendant's response, an-ticipating and responding to defenses even at the filingstage is important enough to justify special attention.While defenses can be combined, and are often not cleareven to the defense attorney until just before trial, theydo seem to fall into several distinct patterns. These in-clude: defense as to identity, defense as to consent,psychiatric delenge, general denial and legal defense,and that there was no intercourse."

The most decisive way to determine the defense is toask the defendant. The prosecutor should insist that -priorto the filing of any rape case, the suspect be contactedand urged, within legal bounds, to give a statement. It isless important what is said than that something is said.Very often the defendant will give clues to what his

defense will be: more )mporiantly, he may foreclosedefenses that will appear more convenient nearer to trial.Once the case is filed, it may be `too late to expect thedefendant to say anything regarding the case.

a. Defense as to identity. This is a common defensewhere the facts of the rape suggest' extreme force orseXuai abuse that, would make a consent defense 'urilikely. If the facts further suggest that the victiesoppor-may to observe the defendant was limited or distorted,or the suspect attempted a disguise, then the prosecutormay anticipate an identity defense. As already indicated,except where the sexual nature of the assault may pro-vide extra clues, the prosecutor's technique parallels thatin any identification case.

If an identification defense is anticipated, the pros-, ecutor should attempt to learn everything he can about

the defendant as quickly as possible. Once the rap sheetis obtained, inquiries into prior arrests and convictionsshould follow to determine if the defendant has a modusoperandi that can tie him to the crime. Admission ofsuch evidence of other crimes is difficult. However,unless the prosecutor explores the background of thedefendant, he will not even be able to attempt this ma-neuver.

Coincident with an attack on the state's identificationevidence, the defendant will often attempt to establish analibi. This strategy may not he known to the filing pros-trutor. but if it is a possibility, immediate investigation

can be very fruitful. Potential alibi witnesses should becontacted and "pinned dow' n" to a story. If The -suspectlives at honie, his family could be queried, about hiswhereabouts on the evening in question. If therdo norhave an answer, that, in and of itself, can be importantfor later cross-examination. Similarly, if the suspect ismarried, a few brief questions posed to his wife may becritical months later when she may be "reminded" of

-where be was that night. While the defendant could notbe cross-examined about his refusal to speak to the detec-tive, his family's refusal could be used to suggest fabri-cation or error if they later testify on the defendant'sbehalf. Given the limitations on resources, it may beimpractical to interview all potential alibi witnesses; theprosecutor and the police must carefully decide whoshould be contacted. Especially with regard to an alibidefense, timing is a key element of case preparation.

b. Defens( as to consent. If the filing prosecutor andthe police could anticipate a consent defense I trial, theirinvestigation at the time of filing would take a verydifferent turn than if identification were the issue. With aconsent defense, the case must be built by corroboratingevery facet of the victim's testimony, for her veracity,rather than her ability to identify, will be at issue. If thevictim is believed by the trier of fact, then the defendantwill most likely be convicted. The prosecutor mustamass enough evidence to prove that the victim's story ismore logical, and therefore more believable, than that ofthe defendant.

The prosecutor may be able to demonstrate lack ofconsent as well as establish identity by reference to thedefendant's prior crimes with similar patterns. If suchevidence is available and admissable, it can dramaticallyportray how the defendant consistently forces victims tosubmit and then argues that the intercourse was consen-sual.

If the defendant has given a taternent, the prosecutormight isolate obvious points of disagreement between thedefendant's and the victim's versions of the incident andthen seek evidence that would support one ;tory ratherthan the other. The smallest piece of corroborating evi-dence on a disputed point may be critical, for the defend-ant's story in a consent defense will closely parallel thatof the victim. Laborious detail with regard to what hap-pened before the rape may be identical in both stories,with divergence only at the moment of the rape.

After a careful analysis of the available evidence, andaware that more evidence may develop later, the filingprosecutor may determine that the case will dependsolely on the testimony of the suspect and the victim. Atthis point, the filing deputy can do little except clearlysignal to the prospective trial attorney that the issue willbe credibility and the success of the case m'ay very welldepend on preparation of the victim for trial.

15

C.: Psychiatric .dejenst.. Psychiatric defense can beanticipated:- where the faelifirfaabitoratie. air hello* and-thef,identification evidence Ts persuasive. Often the de-fendant has confessed and has little to argue later except`that he was'fiot criminally responsible. Depending onstate law. this defense may be signalled early to facilitatepsychiatric examination. The psychiatric defense is usu-ally declared after the case is filed and may not beanticipated by the filing proSecutor In fact, the harderthe filing deputy works to foreclose identity and consentdefenses, the harder he may be pushing the defendant to.an insanity defense.

Unless the defendant is obviously insane, the pros-ecutor's response to such a defense is that the defendantwas responsible for his acts, The prosecutor should lo-cate a psychiatrist to interview the defendant and eventhe rape victim. Because the victim was actually presentat the time of the crime, sk may be able to provide thepsychiatrist with 'valuable information=regarding the ac-tions of the defendant, It should be noted that defensepsychiatrists rarely interview the victim,and thus have aless complete factual basis for their conclusions. In addi-tion. the prosecutor should carefully analyze the defend-ant's actions prior to, during and after the rape in anattempt to suggest that the crime was calculated by thedefendant with precision and understanding. Cunningand' sophistication exhibited in preparing for the rape,threats and appropriate language used during the rape,and consciousness of guilt and desire to escape punish-ment evinced following the crime, would all suggest thatthe rape was not the product of an ifresponsible, diseasedmind,

d. Legal defense. In the stro st cases where thedefendant may have little incentive to plead guilty, hisattorney will be forced to make a rear-guard attack onevery technical ground possible. In fact, the stronger thecase, the more likely it will be subject to legal attack.This follows the old maxim: VIlthe tacts are not on yourside, argue the law, and if the law is against you, arguethe facts."

In rape cases, legal attack will develop as it would inany other criminal case. Searches and sei7ures of thedefendant's person or properly will he carefullyscrutinized. Similarly, any statements that the defendanthas made will be examined for coercion or failure to givecomplete and comprehensible constitutional warnings.Where the identification is based on a photographic mon-tage or lineup, the soggesti'hility of these procedures willbe attacked. Where physical evidence has been gatheredand analyzed, the chain of custody will he examined withgreat care.

These legal attacks are not unique to rape case., Whatis important to the Wing deputy is that he iinmipiiiethink ahead to potential problems so that errors can he

16

corrected and weaknesses be minimized. Simply re-Sponding to the facts and-itefthe. persuasiveness of thedetective presenting the case will not guarantee the filingof a strong case. The more questions that the prosecutorcan raise early, the fewer that will be available for thedefense at trial. The more weaknesses that can be sig-nalled to the trial deputy, the more opportunity them willbe to confront them.

3.2 ire - filing InterviewsThe most important witness in every rape case is the

victim; she is the essential witness without whom there isunlikely to be a prosecution. In light of this central role,the question is often raised whether the victim should bepersonally -interviewed by the prosecutor prior to themaking of a tiling decision. Some prosecutors insist onthis protedure, while others never require such an inter-view. A third group interviews occasionally in specialcases wkre-talking to the victim might clarify particularaspects of the case."

The decision whether to interview prior to filing isseldom made on the merits of such a procedure, butonthe traditions, resources and structures of the criminaljustice system in which they occur. In some jurisdictionsallocation of time or resources are insufficient for theprosecutor to interview every victim. He relies on policeinterviews and postpones meeting the victim until shetestifies at the preliminary hearing or the grand jury.Since practices vary: a closer look at the perceived ad-vantages and disadvantages of pre-filing interviews isrequired.''44aneigas (viva-la/mg Inten.letes. Prosecutors citeda number of advantages of pre-filing interviews. Victiminterviews provide prosecutors with an opportunity totimIlv grasp the details of the case and to fcillow uplimited written statements with direct questions to thevictim, In addition, they .allow the prosecutor to meet thevictim and learn more about her; what she is like,whether she can articulate her story and is convincing;how strong a witness she will be: how much work isrequired to prepare her for trial. Many prosecutors usethe interview to decide whether the victim is telling thetruth and really wants to prosecute. For some prosecutorsthe personal interview provides-an opportunity to explainthe judicial process to the victim and reinforce her deci-sion to prosecute. Through the interview the prosecutorcan portray himself as a personal representative of anotherwise bureaucratic system, allaying the victim'stears and answering her questions. Especially in thosejurisdictions where the first post=filing contact of thevictim with the criminal justice system is at the prelimi-nary hearing. prosecutors believe that it is important forthe \mini to he prepared and assured of continued support

Disadvantages of pre filing interviews. A number ofdisttd;rantages were also cited. Many prosecutors stated

that tame required to conduct -apre-filing victiminterview not worth the potential benefits. In addition,

. they questioned whether the victim should be required totell her story several times tidtpolice, hospital personneland prosecutors during a short period of time after therape. It was_argued that the value of such an interviewWouldPertirft to'virtually all felony cases, and that sin-

sgling out sexuakassaults. only reinforced stereotypes re-garding the unreliability of rail victims. Finally, pros-ecutors argued that it was better to carefully inform andprepare the victim just before the preliminary hearing ortrial, rather than before the case, is even filed.

Resolving the debate. The pre-filing interview canserve several valuable puposs, but these purposes maybe accomplished in other ways. The screening of crimi-nal cases may-not require an interview if the policeadeqUately perform this function. Support and ifilomia-lion can be provided to the victim by trained and sensi-tive police personnel or victim advocates. The interviewtends to reinforce the notion that the rape victim issomeone whose veracity is inherently suspect. In addi-tion, an interview at this stage may be complicated by thec9ntradictory goals of reinforcing the victim and testingher credibility.

Where. the fact situation seems atypical, or the victimmay require special attention, a pre-filing interviewseems appropriate. The police or victim advocate mightsuggest the need for an interview in a particular case,However, the requirement of universal pre-filing inter-views in rape cases when they are not required for otherfelonies should be carefully reexamined. If the needs ofthe victim and the prosecutor can be served in otherways, the prosecutor should seriously question this ex-penditure.

3.3 Pre- filing Polygraph Examinationssecutors were surveyed regarding their use of

polygraphs as a pre-filing screening mechanism. Whilemost respondents acknowledge that it might be a usefultool for the police and that their police departments usedthe device, there was a rang_e of responses with regard totheir use of the polygraph." While one prosecutor con-sidered it ''the next step up from the Ouija board,others used it in up to 30 to 40 percent of their cases.

Those prosecutors who used the polygraph cited twoprirnary purposes. First, it allows them to decide who istelling the truth in difficult cases. While respondentshoped that the defendant would agree to a polygraph test,in close cases they frequently request that victims submitto polygraph examinations prior to any filing decision.Close cases include those in which the victim is a prosti-tute, the victim and the defendant had known each other

2

prior to the rape, or the victim had voluntarily aceotn-paniedthe defendant to the scene-of the crime.- Secomany prosecutors esed the polygraph to "test the will"of the victim.- -A victim -.who specs ,t0.- take the test is _

believed to be willing to have her story confirmed and toproceed with prosecution. The unstated corollary, ofcourse, is that the victim who refuses is either not tellingthe truth or does not want to prosecute with sufficientresolve. This viCtim might =consider prosecution whefrthe case is ready for ft al..

There iksignifitant debate about the reliability of thepolygraph as an indicator of tnithfulness. A recent HouseCommittee on Government Operations report concludedthat the reliability of the polygraph had not been eStab-fished and that u should n6t be used by the federalgovernment." There fire additional questions about thereliability of the polygraph in these types of cases.Where consent is a key issue, and (he defendant believedthe victim consented, the polygraph could suggest thatboth parties are telling the truth. This dilemma would notresolve the legal issues though it would seriously damagethe state's case. The prosecutors who were surveyeddisplayed their own lack of confidence in the polygraphwhen they were asked if they supported the admission oftest results at:trial. The overwhelming majority of therespondents, including -those who used polygraphs forpre-trial screening, opposed its admissibility.

Use of the polygraph also has significant indirect im-pacts on the criminal justice system. Victims who takethe polygraph examination and pass it provide pros-ecutors with an incentive to vigorously proSecute thecase and resist extensive plea bargaining. A successful

lygraph examination of the victim can be used topersuade the defendant and his attorney that a plea ofguilty is appropriate. On the other hand, the act ofrequesting such a test is still another symbolic suggestionto the victim that she is not believed. Her refusal to takethe examination may only reflect her reaction to theconsistent dobbt expressed by the criminal justice systemand not in any way mean that she is fabricating heraccount or is ambivalent about prosecution. Further-more, prosecutor reliance on the polygraph may suggestan unwillingness to make difficult decisions. The pros-ecutor must base his decision whether or not to file a caseon his assessment of the sufficiency of the evidence: apolygraph cannot tell the prosecutor how strong his caseis. Victim refusal to take a polygraph examination orinconclusive results may merely provide the prosecutorwith an excuse to decline the case.

If the victim is to be asked to take a polygraph exami-nation, the manner in which the request is made can bevery important. The response of many victims to such arequest reflects the approach of the prosecutor rather thanthe victim's opinion of the test itself. If the prosecutor

17

can explain the purpose of the test wiht understanding,then it is likely that the violint will be willing to partiei-pate.

There is n logical reason to use the polygraph in thescreening of rape cases any more frequently than in thescreening of other cases. Given the present uncertaintyconcerning its reliability and its poidntially negative im-pact on the attitude of the victim, its use should be,limited-lo cases where there are olvious' factual dis-crepancies inthe victim's statements or the defendant iswilling to submit to a stipulated test.

3.4 The Filing DecisionAfter accumulating the information and impressions

suggested in the preceding pages as ,cecessary prerequi-sites iodine, the prosecutor is still left with a qualitativejudgment whether the information justifies the chargingof a crime. The prosecutor must exercise his discretionand decide whether the case, even in its strohgest pos-ture, should be filed.

As a preliminary matter, the prosecutor must remainconfident that a crime has been committed and that thedefefidant ,is the correct person to charge. If the pros-ecutor has significant doubts about whether a crime haseven been committed or the police have identified theright person., then he should not file the charges. Thisdecision, however, begs the difficult question of howconfident the prosecutor must be in his case before heshould proceed_ For example, if all evidence points tothe defendant, but the prosecutor is unsure, should thecase be filed to enable the Pry to make the ultimatedecision? If the prosecutor finds the defendant's storyregtirding the consensual nature of the intercourse plaus-able and believable, though he cannot be sure, should thecase be filed? Some jurisdictions have the luxury ofsending this type of difficult case to the grand jury.While, to be sure, the grand jury's dea\ision may beinfluenced by the prosecutor's pres'entatiOn. a generaland even-harAd presentation of all the evidence may actto shift the screening burden Onto the grand jury. In thepast, police skepticism acted as an overefficient screen ofdifficult cases; rarely would the prosecutor receive a rapecase for filing where, for example, consent was a viabledefense. As the police become more sensitized to vic-tims, as new personnel assume investigative. functions,as the rape law changes and as publicitilabout rapeencourages victims to report, the prosecutor will see agreater volume and variety of cases than ever before.

.The prosecutor must also consider the chances of suc-cess later at trial. Even if.he believes the victim and isconfident of the defendant's guilt, he must make thepractical judgment regarding the likelihood of success Amajority tit the prosecutors indicated that a rape caseshould be filed if a firima fade case can he established

18

and there is a "reasonable possibility of a conviction.Any higher standard would-be difficult to Support: Al,though it might result in a higher conviction percentage._it would lead to few filings and, thus, derrionstrate a veryconservative attitude toward rare.

Proiecutors generally cited three important variablesthat must be considered, regardless of the strength orweaknesS of the case. First, there is the defendant. If thedefendant is deemed to be particularly dangerous to thecommunity by virtue of past crimes -of the quality ofthe case under consideration, filing would be justifiedeven with a low probability of success. Where, however,the defendant has no previous record ,and the case ismarginal in seriousness and difficult to prove, there isless incentive to proceed. A second variable is the vic-

When the victim is unwilling to proceed or theemotional trauma of the trial would be a danger to her,prosecutors have sometimes not filed cases which werestrong and had a high probability of conviction. Fur-thermore, where the informed victim wanted to proceedeven though the possibility of conviction was low, theprosecutor often filed cases which would not have beenfiled with a less aggressive victim. A third variable oftencited is the nature of the crime itself. Rapes of publicnotoriety, such as gang rapes or rapes that have receivedsignificant publicity, are often prosecuted regardless oftheir chance of success. The trial acts as a public airing;any other response by the prosecutor would be politicallyunwise_

These considetations ultimately raise important policyquestions that can only be resolved at the policy makinglevel. The filing deputy ,must have a firm understandingof his office's position with regard to rape in order tomake basic filing judgments; if this policy is not clear,then he should request its articulation. Rape cases neces-sitate a special commitment to victims, and prosecution

,cannot be easily developed or implemented on a case-by-case basisLThus, any review of the prosecutor's re-sponse to thircome requires a basic evaluation of officepolicy regarding filing)

Declining the case. There undoubtedly will-be casesthat cannot be filed though the prosecutor believes thatthe victim has been sexually assaulted. These cases mayhave evidentiary or witness problems that clearly indi-cate that there is no reasonable possibility of conviction.In this event, the prosecutor should inform the victim ofthe decision an exp informing

b very difficufl task; it is oftenlain its rationale. Infoing the

victim may avoided ordelegated. T prosecutor should realize that his expla-nations may reinforce the doubt or guilt already felt bythe victim. She may wonder why she even bothered toreport the crime and may feel frustration-and anger to-ward the prosecutor and the criminal justice system. Athoughtful and sensitive explanation of why the case will

nat tie filed may assist the victim in resolving her feel-'ght discuist-with the victim- the

availability of counseling services-in the community, notto suggest that there is something wrong with her, but toacknowledge that she must be going through a difficultordeal. If there has been a victim advocate already in-.volved with the case, the advocates advice and assis-'tance should be solicited.

-3.5'Documentotion of the Filing ProcessIn the course' of the filing prOcess, the prosecutor will

have made a number of deeisions and observations aboutthe case.S ince it is unlikely in most jurisdictions that thefiling prosecutor will be assigned lathe case for trial, it isvery important that he record and transmit his impres-sions to the trial attorney. While prosecutors demandclarity and legibility from police and medical reports,there are usually few standardized forms or checklists forprosecutors to pass on information among themselves.Usually the transfer is done informally; but with shifts ofpersonnel: lapses of memory. and the crush of time, itseems likely that information gathered during the filingprocess will he lost to the trier of fact.

To insure that filing decisions are made consistently;with reference to the same factomreharoseehtor could-use a standardized filing format. At the end of trims

chapter is a checklist for the filing of sexual assault casesthat could be adapted to individual jurisdictions. It pro-videx both a vehicle for communication among pros-ecutth and a standard for the consideration -of crapcases.

3.6 ConclusionThe filing of rape cases requires a basic ability to

analyze facts and law. as well as the imagination topicture the unfolding of a cape during an eventual trial.These are skills that the trained and experienced pros-ecutor should have acquired. In addition, however, filingincorporates policies and attitudes which in rape casescan be particularly important. Filing must reflect amig-gressive posture toward rape and a belief that this crimejustifies the taking of risks, and a commitment of re-sources. This philosophy can be articulated by policymakers. but it must be implemented by every deputy whowill decide whether a rape case should be filed. =

NOTES

' For a general discussion regarding prosecutorial discretion in thefiling of criminaltharees see Frank W. Miller, T har Deci-

sion to Cliarge a Si. Apecr rtirh a Crime (Boston: Little. Brown, 1969)-2 John H. Wigmore, IrNmore,on Evidence (Roston: Little, Bros

and Co_ 1934), Section 924a, p. 379.' See Forcible Rape: An ..1nolyms of Leilal holes, published tis The

National Institute of E.ass Enforxerocht and Cronin,,) Justice. I,attEnforcement Assistance Administration, ',IN part sat this pr eject, Chapter

111,

The results of a nationwide surses ot LSO prosecutor's offices canhe found in ()ruddy Rope. .1 Nonfatal .Sun is ma r Peyton its

Prove-can-in- published by the National Institute of i.ay. Enforcementand Criminal Justice, Law Entorcement Assistance Administration aspart of this project

The legislation which has sersed as a node' for this approach toredefining rape is the Michigan Criminal Sexual Conduct Aci, No 726Mich. Public Acts I t974i. 77th Sass fetter:rise April I. 1975(, amend-ing No 328 Mich. Public Acts (193 11. Mich Cramp. Laws SS750,1 568 (1970) See also the general do. soon found in Fat elide

Rape: An Analyst of Loral I olei. infra." See G. Richard Brien, NI 1) , "Rape Tsarnination Booklet" and

-"Rape Examination" (16 mm color tilm 21 minutes) ax ;Maisie tramAbbott Motion Picture Librars Abbot °irk 1)383, Ninth Chicago.Illinois.'60064 (1976).

A great number of articles base been published in technical jour7"nuts regarding the life span of spertnotoroa within the vagina and theuse or swabs and aspirates tar forensic purposes some of these articles

ins lode: 12 C. Petri. -Rape. hire the l)et en se Acid Phil sphatasc..

Journal of Foetal Io Mean. l) Mit)her December. 19591. pp

147-159, Edgar W Kivela. 'On bindav Tomato/0a in No ,r,,,:ete,t

Seminal Strains-. aloumat of VW-01th .St ten, Ci. '4 bilti 01A 19631 pp

135 1.44: I aderisi Marcinkosi, sal and Is t mum Piss fis 14.e. 'ionStILini, A Simple Device for Inert Determination' .Journui o/ toren-

Ai(' Mt-Wu-ale, 13 (October-December, 1966), pp. 13 ; _ seph C.

Rupp, "Sperm Survival and Prilstatic Acid Phosphatase Activity inVictims of Sexual Assault-, Journal of Forensic Sciences, 14 (April,19691, pp. 177-183, Arthur F. Schiff, "Modification of the Berg AcidPhosphatase Test", Journal of Forensic Sciences, 14 (1969), pp.538-544: Jack McCubbin, and Daniel E. Scott, "Management ofAlleged Sexual Assault, Te.tos Medicine, 69 (September, 1973), pp.5964.

" Hulce Woodling,"Expert Testimony", a videotape presentationof Sexual Assault Seminar, held in Ventura, California, November 14,1975. A four-part videotape series with written supplemental materialis available through the California District Attorneys' Association, 923

12th Street, Suite 300, Sacramento, California.9 Again, there is a great deal of technical literature regarding the

typing of seminal fluid and saliva by use of blood groupings. See.Milton lielpern, and Alexander Wiener. "Grouping of Semen in Casesof Rape". Ferrillry and Sferilny. 12 (1961). pp. 551-553: CecilHeider, -Physical Evidence", a videotape presentation of a SexualAssault Seminar Held in Ventura, California, November 14, 1975(Footnote number 7).

1" See discussion in Forcible Rape: An Analysis of Legal Is.sues,infra, Chapter II,

'' The 40 prosecutors surveyed as part of this project had difficultyestimating the frequency of various types of defenses. It appeared to bethe consensus, however, that over 90 percent of all defenses involvedissues of identity or consent and that they were roughly equal infrequency

)2 See Fat cible Rape:: A Na la/ Survey of the Revonse by Pros-em mfra. pp 62-64

11 Ibid. pp 64-6611 Committee of tios eminent Operations, "The Use of polygraphs

and Sunda! lies ices hs federal Agencies H R Rep No 94 795,94th Congress, 2nd Sesslon 11976).

l9

-For a general bf rqie pm Lion from the prose

fentbitampe-PrOsecsior Adminimra-th Ad Poli published by the National Institute of Law

20

and Criminal justice, Law &forcemenc Assistance Ad-is Pial 0-66 pmJeet.

we

Victim's nameDefendnit's nameowe of offenseDate of prosecutor presentationName of prosecutorI. Statements -

a. Victimb. Patrol Officerc; Res Gestate witnessd, Defendant

. Victim advocatef. Transactional witnesses

g. -Other witnesses2. Repons

a. Initial report formb. Follow-up reports

c. Medical examinationd. Forensic tests

Evidence sheet (Physical

evidence)Cover Ate (namesaddresses of all witne ss_

g. Copy of any search warrantsh. Defendant identification

informationi. Rap sheetsj: Line-up identification titansk. Advisal of rights formsI. Other reports

i. Physical evidence

a. Clothing of victimb. Clothing of defendant

c. Diagram of come scene--d. Photograph of crime scenee: Photograph of victim injuries=t Other physical evidence

Case Analysis

A Intercourse

I. Medical cs.tdencc=2. Forensic tests

3. Detention! statementA. Victim statement

B. IdentityI. Photo montage

APPENDIX TO CHAPTER 3RUNG CHECKLIST

Comments

2. Lineup3. Defendant's statement

Physical evidence5. Other witnesses

6. Other evidenceC. Force, Lack of Consent

I. Victim's statement2. Defendant's statement3. Weapons

Evidence of injury5. Evidence of emotional trauma

Tom or soiled clothing7'. Circumstances of case8. Other evidence

Case Evaluallon

I. Strength of the casea. Victim's credibilityb. Corroborating evidencec. Legal problems

2. Wbo is the defendanta.1Crirninal recordb. Suspect in other crimesc. Disgerousness

3. Seriousness of the crimea. Injuriesb. Threatsc. Victim reaction

4. Victim's attitudea. Willing to testifyh. Anxious to proceed

5. probability of winning at triala. Percentageh.

6. Major weaknesses at triala.

h.

7. Major strengths at triala,b.

Victim SupportI. Victim advocate

ri 2. Information provided to victimr, 1. Referrals

Notes to Prelim Deputy

Notes to Trial Deputy.

Common

2

-CHAPTER 4. PRELIMINARY :HEARINps. AND 'GRAND JURIES

manner in which probable cause is established inTony

probablecases can have a 'sutxstantial impaci on the .de-

velopment and ultimately the outcome of the case. This isespecially-true in rape cases where the determinationprobable cause often cruelly exposes a vulnerable rvictim to the processes of criminal justice. -The extentwhich the victim understands the pre-trial procedure,

- whether she is prepared to testify under what ntav headverse Circumstances.- and whether she is debriefed fol-lowing her experience. may all affect not only the qualityof her testimony, but whether she will continue; to cooper-= with the prosecutor at all. Thus it is important toreview the various means to establish probable cause inrape cases and to suggest how they can he mill/AA to theprosecutor's advantage..

Procedures for establishing probable cause in felonycases vary throughout the country, - jurisdictionsrequire that an adversary. proceeding, often called the

. "preliminary hearing' or the probable cause hearing",be held in a court of limited jurisdiction. Here the statepresents its ease in a skeletal loon and calls a nffirimumnumber of witnesses who are subject to cross-examination. In 'rape cases, the y ictim is usually thestate's only witness_ and her cross-I:Sarni nation is oftenextensive and abusive. Other jurisdictions do not requirean adversary proceedint,. Often hearsity rs admissible andthe victim is not required to te'sodetective. for example, ina look before a magistrateand report what the victim told him about the crime. Nlan)jurisdictions have available a grand jury w here the Y 'COMOr detective can testify without hiThie sulliei.1 to I.

ruination. Still others tile felony eases khreCill. 11110 thetrial court without a tor-111011/er] preliminar hearow:affidavit sworn to by the tiling deputy for e sample whenreviewed by a judge will suffice to establish probablecause. Other jurisdictions employ a combination of thesepractices with signihcant discretion resting In the prosecutor. to decide how to establish prohable cause..1-houghpreliminary hearings have come unticr scrrninv recently .2it is unlikely that a due process standard vv ill prescohesingle method to determine probable cause

4.1 The Preliminary HearingIn those states which require ads ersai ial 11.141iininal%

hearings, the hearing is often .tn inesplicahle and Iramatic,e wcnence for the vrcmrn Vi hde the vu ion inahave some media tamollartiy with the tone 01 a trial. it

would he'unlikely that she could anticipate the reality

22

the.preliminary hearing. Especially in urhan `cqunrooms.the preliminary h4rings for rape cases appear in a calen-dar mixed with hearings for other felonies and evenmisdemeanors, The courtroom and. halls are oftencrowded with witnesses, defendants, relatives or court-house "regulars who have come to parteipale in orobserve hearings which involve drugs, robbery, homicideand the like,The courtroom itself reflects the bureaucratic-needs of the participants, The judge has a lengthy ealgadarto complete, as do the prosecutors, The defense attar neysimpatiently await their turn; once they have an opponu-nity to speak. they-do not like to relinquish it. The need toprocess cases of len creates a tension in the courtroom thatcan he heard. in the tone of the judge and attorneys.Wunessesare often rudely instructed to step up. sit down,speak up, answer the question, The victim is often calledto the witness stand without havine met the prosecutorwho will he asking her questions, without having beenprepared for her cross-examination, and without havingseen the defendant since the moment of the rape. Thecircumstances. While routine to the professionals, mustseem chaotic to the parties.

With some exceptions, prosecutors who were inter-% iewed indicated that they did little preparation for thepreliminary hearings. I rsually a slack of files containing arange of charges was-lelt with the prosecutor a day or twobe lime the hearing. At best, the prosecutor reads throughthe tiles and notes the nature-of the crimes, the necessaryelements, the general tactual patterns and the issues whichneed to he esplored at the hearing..Rarely- are the witnes-se: personally contacted or preparell in any way prior tothe hearing.. At the time the Case is called, perhaps hoursMier the y mint has arc \ ed at the courthouse, she is told totake the witness stand. She is administered the oath andthen generally (ells the s(iA of Pier rape. She makes anin court identification of the defendant and then is cross- -.

e \allotted by the defense attorney. The eross-examinationis often a protracted and brutal-experience, it is uncIC.arhow recent es Klentiary exclusions with elaborate trialcourt procedures restrain defense attorney s Intent onImmil tat me the y ictim. The defense attorney mayuse theprelimmar hearing AS a discovery tool and explore manyissues in a random fashion. He may also use the hearing tointimidate the %icon, going her a taste, he believes_ ofst, hat she yv ill espenence if she goes through with the trialI Cfl the Icast CyCliCni:ed (11,11 anomes may respond tostereotypes oI rape cases and attempt, with more or lesssulNletk to oopo-on the cliiirdc ter of the complainant

lcptis4 by the judie when he issatisfied that the al requirements of probable causehave been *OW The case is then_ eitherbound over to the

=trial court or continued for a period of time for pleaneg,citlitions. Nolte the-hearing is finished, the defendantand his attorney.leave the courtroom while the judge andthe proaecutor hurriedly proceed to their next case. Rarelyis there an opportunity for the prosecutor to discuss withthe victim what has just. happened.

Purposes of the preliminary hearing. Prosecutors wereasked what they hoped to riehieve at the preliminaryhearing. The range of responses fell into two diitinctcategories which suggested fundamentally different per-spectives on the process.3 Many prosecutors consideredthe preliminary- hearing_ an opportunity for the state to testand evaluate its case. The prosecutor can observe the-victim respond to his questions and to cross -examination-e-

by the defense attorney, The victims ability to articulatethe events of the rape, recall specific details and controlher. emotions under realistic conditions are central to theprosecutor's assessmeht .of his case:

Most prosecutors who considered the preliminary hear-ing as a test of their case did not believe that preparation ofthe victim was required. If the case was fundamentally-sound, it would stand on its own at this point. Pre-trialpreparation at- a later point would serve to smooth ouirough edges. If the case was not strong, the hearingprovided an opportunityto screen it out of the system priorto trial and with little investment of resources. Oneprosecutor commented that he wanted to remain physi-cally and emotionally distant from the victim lest thevictim feel dependent upon him. The prosecutor couldthus he more objective in his evaluation of the case and thecomplainant's testimony would he given under more"realistic'' conditions.

For these prosecutors the preliminary hearing served acritical screening function. It was anticipated that manycases would reach the preliminary hearing only to he

reduced or dismissed shortly thereafter. The job of theexperienced prosecutor at the preliminary hearing was tomake a judgement as to which cases deservcd to go anyfurther.

A much different perspedixe on the preliminary hearsing was voiced by many prosecutors who did not see thehearing as a test of their case. To them the preliminaryhearing was a necessary evil whose purpose was to fulfilltechnical legal re,quiremeits, Perhaps, they argued, it wasvaluable to the prosecut6r in those very rare situationswhere the victim would later he unavailable at trial, for herprelimina;-'y hearing testimony could he used in her place.Generally, however, these prosecutors believed that littlecould he achieved and much could he icaponli/ed at thepreliminary hearing They argued that lithe case had heel,properly screened at filing, there was little purpose to the

hearing;-it d id ramore than reveal details of the case to the

defense, while gene possiblyupsefting the-alienating tvictim, At best, some indications of the defense strategycould, be gleaned, but this result was not worth the risk.

To minimize the risks of victim Al*nil, sonirpros-ecutors attempted to contact the victim prior to the be4ing. A personal relationship, might be established whilethe prosecutor-and victim discussed questions that wouldbe asked at the hearing. A victim advocate could bepresent if the prosecutor and the victim required extensive.preparatipn: the advocate might- later sit with the victimwhile she waited for her case. to be. called. To theseprosecutors, the hearing-itself was routine; for probablecause was rarely an issue. The goal of the hearing was tominimize both, case and exposure. while still fulfilling thelegal requirements to establish probable cause.

Advantages and disadvantages of the preliminary hear-ing. In jurisdictions requiring preliminary- hearings thtprosecutor should consider strategies to maximize thepotential advantages and minimize the potential disadvan-tages of such hearings. In other jurisdictions- where theprosecutor has discretion whether or not to hold prelimi-nary hearings, a consideration of advantages and disad-,vantages can assist him in exercising this discretion.

The preliminary hearing poses several dangers 'to theslate's case by exposing it at its weakest moment. Theresult may be to create a record that will endanger the caseat trial and to deter the victim from further involvementwith the prosecution. These dangers must be recognizedand compensated 'for by the -proseculor.

In' most jurisdictions the preliminary hearing is -

corded and a transcript of the proceedings is available tocounsel for both victim and defendant prior to trial. Somejurisdictions do not record the preliminary hearing andonly the notes of the parties are available for later refer.ence. Still other jurisdictions allow recording When, forexample. the defense attorney hires a_court repoftr because a pending civil action is intertwined with the cnal case.

A record may be useful to the defense.pos loon. at least as it is represented by the v tim'sestimony, is pinned down' in the record. Later at trial,

the-victim can he subject to cross-examination by her priorinconsistent statements or "misstatements'' recorded at.the hearing. Any experienced attorney can attest to thepower of a transcript from a previous hearing or dep-osition for purposes of impeachment. It would be an ex-ceptional case when even the best witness cannot becross-examined by poor statements, and the rape victim islikely to be a particularly vulnerable witness. To .theextent that the victim testifies without preparation, thechances of her creating a record for her own impeachmentincrease dramatically. Her inability to remember detailsbecause she has not read her statements. her reluctance to

. be specific because she does not understand the purpose ofthe hearing, her nervousness because she do's not like to

_ talk about rape in a crowded courtroom, all accrue to theadvantage of the defense.

The preliminary hearing may also threaten the victim'scommitment to prosecution. The cross-examination maybe quite brutal and disturbing to thevictim. She may lose .faith in the prosecutor for failing to warn:her or protect herat the hearing. Unfortunately, at the time of the hearingthe prosecutor is often overworked aneoncerned primar-ily with presenting a series of legally sufficient cases. Theprosecutor may be a different att i. ey froth the .One whoolSty

,-,filed the cake or who will later it and, thuseomm' ment and stake in its ol ome may be quitelimite . Withouta previously fished relationshipwith -t, -victim and .regardless of good intentions, he will-inevitably appear unconcerned, bureaucratically oriented,perhaps' even nervous and harrassed. The victim canhardly feel reinforced in her decision to prosecute whenthe attorney to whom she, has turned is impersonal andoutwardly unconcerned. The general setting of the pre-

, liminary.hearing-ean also be disturbing to the victim, It isquite unrealistic to expect a victim to sit comfortablyAmong strangers as she awaits her public depiction of asexual encounter. All of these factors may not onlyinfluence her ability to testify, but. affect her resolve to,proceed 'further, as well.

On the other hand, the preliminary heating may provideseveral opportunities for the prosecutor to strengthen hiscase. First. the prosecutor will inciitably learn somethingabout the case simply because he has spent some time withit and has observed its public presentation: The prosecutorcan signal to the trial attorney what areas require furtherinvestigation and how the victim can he better preparedtor trial. For example, the victim may have particularproblems describing: the details of the sexual act: thepreliminary hearing deputy could alert the trial attorney sothat he could approach the problem prior to trial.

Second, the prosecutor may discover hints of the de-fense strategy. Though it is unlikely that the defenseattorney will have decided upon a definitive strateg, hv,the time of the preliminary hearing, questions in cross=examination may reveal what the detense attorney per-ceives to be the weaknesses of the state's ease. Particularattention to this aspect of the case may help the trialprosecutor anticipate defense trial strategies. Even wherethere will be a written transcript for the trial attorneysuse, tone, emphasis and even subtle communication he

i the defendant and his attorney could supplement thetext::

Third, the prosecutor can gather information about thedefendant that etas' he vtluahle for the trial attorney.

While it is unlikely that the defendant will testify it thepreliminary hearing. the prosecutor may be able to assess

24

the type of impression the defendant will make to a jury attrial. It may be important,. for example, that the trialattorney be aware that the defendant has changed hisappearance or that his demeanor is abusive, sympatheticor unattractive.

Fourth, not only will the prosecutor see the victim onthe.Witness stand, but the victim will have an opportunity_to gain a potentially instructive and valuable experience,if the rictim is properly prepared in advance and consultedafterward, the prosecutor may find that the court experi-ence will boost her confidence and allay her fears.

Preliminary hearings and plea bargaining. Probablythe most important institutional impact of the preliminaryhearing is that it facilitates plea bargaining. As a result ofthe exposure of the state's case, both the prosecutor andthe defense into i = know more piecisely where theystand. Vario details have been revealed for the firsttime, the v im has actually testified for the record, andthe wh case assumes a tangibility that cannot be imag-ined frOm written reports. ..

The significance of this new information and theseimpressions vanes, The defendant, for example, may bestruck by the reality of his predicament, especially if hehas been out of jail explaining to his friends and familythat there is'no legitimacy to the charges. His nonchalanceor skepticism about the victim may be shaken when heactually sees her testify and hears the judge pronounce thatprobable cause has been established. In contrast, a poorpresentation of the case may give the defendant theimpression that the case against him is weak; he maybecome more confident and reject plea negotiations. If thecase is presented well but is inherently weak, confidenceon the part of the defendant may be justified. If, on theother hand, a poor presentation of the case reflects in-adequate preparation, the defendant may have an unrealis-tic sense of his position.

Since the key to plea bargaining is a commonly sharedcore of information, the public exposure of the casethrough the preliminary hearing will enhance plea discus-sion. Wha _;111parttes must assess is to what extent thepresentatio relre c t s the exigencies of the hearing and towhat extent it reflects the potential of the case for trial.Arguably, the more prepared the state is, the more thehearing wilt approximate the trial. Well prepared prel iMi-nary hearings should thus lead to more accurate asses-

ents of the relavve bargaining positions.Mavitnizing gains and minimizing lows. Where pre-

liminary hearing) are inevitable, it is logical that theprosecutor pl his strategy in advance. to ,Maximizepossible gai a d minimize losses. On balance, the latteris his prin ry c ncern. The possibility of getting signific-ant hen from the hearing seems to be outwicighed by thepot for damaging the case. If filing represents a firmdecision to proceed toward a conviction for rape. then

the preliminary hearing. If thishas n- ade in advance of the hearing, the

prosecutor risks destroying a potentially good case in theprcices.s of evaluating it.

With regard to the victim's performance and attitudes,several techniques can be used to minimize risk. First. thevictim must Understand the purpose of the preliminarybeefing. It should. be clear that while this is not a trial, it isan important preliminary step to the trial or the resolutionof the case by a negotiated plea. The victim should be

. informed realistically about the nature of the hearing, thesequence of events, what will be expected of her and theimportance of her cooperation. The prosecutor who con-..ducts the preliminary hearing,should introduce himself tothe victim, especially if he is the first proseeglor she hasmet or is one different frcim the filing prosecutor. Thevictim may not even know what a prosecuhit is, what hisrole is vis-à-vis her interests. and what she can expectfrom him. The very act of introduction may suggest thatsomeone is concerned and persoradly involved in the case.even if this introduction is wedded with a disclaimerregarding the role of the prosecutor as a private counsel.Furthermore, after the hearing, the victim's experienceshould be reviewed with her. She should be thanked forher participation, reinforced about what she did well andalerted to what will heve to be worked on before she isready for the trial. Ideally, the victim should be involvedin the process so that the preliminary hearing is not, likethe rape, some mysterioUs event inflicted upon her. Sheshould be encouraged to express her opinions about theexperience so that the prosecutor can deal directly with herfears and misconceptions.

Viet* advocates (to be discussed in Chapter IX) maybe partilidarly helpful to both victims and prosecutorswith regard to preliminary hearings. Advocates who aretrained to understand the nature of the criminal processand the special needs of rape victims can work with theprosecutor to prepare the victim for her testimony. Inaddition, the advocate can insure that the victim is awareof the time and date of the hearing and can even help withThe victim's transportation. Finally, the advocate can staywith the victim at the courthouse while she awaits hertestimony, and can be with the victim after the hearing todiscuss what transpired. This is especially important, foron the day of the hearing the prosecutor may be unable tospend considerable time with any individual victim.

The prosecutor must also prepare himself for the pre-liminary hearing. He should know enough about the caseso that he can quickly and efficiently establish probablecause. Fumbling through the file during the hearing to findbasic facts of the case may not only he embarrassing to theattorney, but suggest to both the victim and the defendant

that the prosecutor's office either does not take this caseseriously or that it is incompetent : Both obvioUtlk-re;-dound to the disadvantage of the prosecutor during pleanegotiations and trial.

The prosecutor should anticipate, and be prepared to actaggressively toward. an abusive defense counsel. TheMessage should be quite clear to both the defendant andthe victim that the prosetutor will not tolerate any insinua-tions, accusations or other attacks upon the state's wit-ness. If possible, the prosecutor shoidd attempt to limitcross -examination and protect the victim..This can bedone in several ways. First, a direct examination which is..short and to the point discourages extensive cross-,examination. Fut-theme:ire, the tone of a precise direct willmake -a far-reaching cross-examination seerolonger thanit actually is. Second, the prosecutor must be prepared toraise -.objections and even have available a well-documented motion in limine or short memorandum- ofItlei stating the limited, purpose of the hearingand theirrelevancy of much defense questioning, Third, the pros-ecutor should be prepared to appeal to the judge in regardto the defendant's wasteof valuable time and arguablyinsulting tone. Since the purpose of the hearing is aninquiry into probable cause and not a trial on the issues or adiscovery hearing, much of the defense attorney's inquirymay be beyond the scope of the direct examination and thepurpose of the hearing. If the prosecutor can reach thejudge's inevitable concern for courtefficiency, the Nos-ecutor may help develop a courtroom tone that will nottolerate a fishing expedition attempted by the defenseattorney. Ariy strategy to limit cross-examination willrequire a sensitive understanding of the judge and how hecan be persuaded. At the very least, prosecutor tacticsshould allow the victim an opportunity to catch her breathWith ah'eyetd the tettird that is being incessantly created.-

In a few jurisdictions special consideration is given tovictims of sexual assaults in the scheduling and presenta-tion of preliminary hearings. Special calendars have beencreated on which only sexual assault cases are heard.These calendars are often less crowded than normal felonydockets and victims and witnesses will often voluntarilyremain outside the court until their cases are called. Theprosecutors who present an entire calendar of such casesare often better prepared to deal with the special problemsthat they pose,' In some jurisdictions, at least where thevictims are children, the preliminary hearing is heard onthe record but in the judge's chambers. This obviouslyrelieves a certain amount of pressure from the victim.though the hearing itself may not be a realistic rehearsalfor the trials Prosecutors and judges can also controlhearings for the benefit of victims by scheduling sexualassault cases at the end of the [tooled calendar. By this

15

-------time them are usually few. people remaining in the court-cciesstrattOberefore the victim's-testirtiony -may be lessstressful.

4.2 Grand JuryThe grand jury hearing allows the prosecutor to realize

many of the gaink to be achieved at the preliminaryhearing without-exposing the case to significant risk. Hecan more easily control the hearing while its nonadversialnature shields and protects the victim.

The grand jury allows the prosecutor to present andassess his case much as does the preliminary hearing.However, the investigative nature of the proceeding al-lowsthe prosecutor to explore more widely and to call avariety of witnesses who might be more reluctant to testify

...fully in ati-adversial -setting. The courtroom is morerelaxed, with grand jurors less harshly inquisitive than thedefense attorney SI the preliminary hearing. The very factthat the hearinasi; not public and the defendant is absentmust lessen the strain on the rape victim. The prosecutorhas the additional luxury of asking the jurors what ques-

. lions or doubts they have, and what further evidence theywould like to see developed before they would vote to

\tsconvict. Thus, the grand jury h ring becomes a dry run,not only for (be witnesses, but for he prosecutor as well.

Grand jury hearings are more time-consuming andexpensi e than preliminary hedrings and thus are noteasily sc eduled. Many jurisdictions have virtually elimi-nat procedure except in highly political and sensi-

. tive cases. Where grand juries sit regularly, they do notmeet every day and rape cases must compete with othercases for a hearing. These factors pose problems for theprosecutor that may make the a ular use of the grand juryfor rape cases impractical.

If these difficulties can he overcome, the grand juryprocess poses few additional problems for the 'preiseutor.

Once again he should prepare the victim and his case, butthe.risks of poor preparation are not as great for they areless easily exploited by the defendant, The more relaxedatmosphere allows the prosecutor and the jury to draw outthe victim's story while the tension of the preliminaryhearing more likely forces her to withdraw and reactimpetuously for the record. While a record is kept in thegrand jury, it can be corrected as the victim testifies.

The grand jury hearing is a less realistic model vi, is

the trial than the preliminary hearing. The true strength ofthe case may not be accurately assessed because it is notfully tested. However, if the screening of the. case isadequate there may he little reason to have cross -examination to enhance the prosecutor's assessment of thecase. They jury itself acts as an independent evaluator ofthe case. The victim's telling her story to a group ofstrangers in a courtroom may he more than adequate toprepare her for the trial.

'6

. sgeneral the grand jury is a preferred- means of

establishing probable cause. -The prosecutor; can use-thehearing to test his case without exposing it and the victimto the scrutiny of opposing. counsel. This method cansimultaneously lencksupport to the victim and fulfill the.needs of the prosecutor.

4.3 Direct FilingIn some juriSdictions the prosecutor has the choice of. .- .-

filing the felony case either directly into the trial court orinto a lower court for a preliminary heating. forthoseprosecutors who believe that the preliminary hearing isfraught .with potential dangers, direct filing is a-valuableoption.

Assuming that the prosecutor can make this choice, thequestion becomes which cases should be scheduled for apreliminary hearing and which cases should Se fileddirectly. The potential negative effects of the preliminaryhearing on both the victim and the rape case itself stronglysuggest that such cases should always be filed directlyunless there is a compelling reason to hold a preliminary:hearing. These reasons should be carefully articulatedwithin a prosecutor's exceptions from the rule.

Preliminary hearings might be scheduled in a number ofsituations- there is a significant likelihood that thecase will be reduced to a misdemc br, its placement in acourt of limited jurisdiction ma appropriate. Obviousand articulable problems with the case might be effec- ,tively tested at a preliminary hearing. For example, if thevRtim has difficulty articulating her story, the preliminaryhearing may be a good test to see if the prosecutor has acase at all. Even a preliminary interview may not haverevealed her-ability to express herself in court. If the filingprosecutor is uncertain about the strength of the case, thepreliminary hearing will force further evaluation by thepi-el iiiiinal-y heStiq'prOsseCntOrifrid the judge': Here; if iS"assumed that there is enough tip file charges, but notenough to be certain of a strong case at trial. If the victim isambivalent about prosecuting due, for example. to a priorrelationship with the defendant, the preliminary hearingwill test the victim's willingness to proceed. if the victimis elderly and may not survive until trial, the preliminaryhearing will preserve her testimony. These are all excep-tional cases where screening and case development maybe enhanced by as preliminary hearing, It is important inthe prosecutor's decision, however, that he consider thepotential risks to his ease and the victim by such aprocedure.

4.4 Documentation of Preliminary Hearingsit a preliminary hearing is held, it is critical that any

information gathered he properly recorded. For the hear-ing lo have value, such information must be transmitted tothe prosecutors engaged in plea negotiation and trial

preparation. It is thus important that the preliminaryproanautor not-only take extensive .notes of the

proceeding, but later record his ?thservations and opinionsregarding the-strengths and weaknesses of the case. Thismight be done as a continuation of the filing prosecutor's

,notes (see Appe-ndix-to Chapter III) Or in a separate formdesigned for preliminary bearings.

4.5 ConclusionThe impact of the preliminary hearin on the victim and

on the.state's case has not be_en given s ufficrent attentionin many jurisdictions. To the extent that the processintimidates victims and weakens potential cases, the pre-liminary hearing acts as a device to remove cases from the

system. While this_may not be 'a conscious policy decisionof prosecutors. -the result is the same. The 'lest7...of thecase at the preliminary hearing is virtually predeterminedby the resources expended in preparation and Victimsup_ porl; rape cases are predisposed to failure. If rape is tobe effectively prosecuted, the critical impact of the pre-liminary hearing must be carefully analyzed. Aggressiveprosecution through-case preparation, victim support, andattempts to limit and even bypass the preliminary hearing'are necessary to counter the inevitable processes that willweaken rape cases. '-'Business as usual" at the prelimi-nary hearing will mean that rape cases will be dismissed orreduced. More time and care must be invested if rapes areto be given an even chance at successful prosecution.

NOTES

For the results of prosecutor surveys regarding the reasons thatvictims dropped out of the criminal gocpss see Forcible Raps_ ANational .Survey of the Response he Pro.vecuit! r published' by theNational Institute of Law Enforcement and Crimin %nee, the Law

Enforcement Assistance Administration as part of is project, pp.67-70.

2 See Gerstein t% Pugh. 420 U.S. 103, 95 S. Ct. j54, 43 L. Ed. 2d54 (1975).

Those prosecutors who have been charaapreliminary hearing as a "test" of the case

.preliminary hearing in some of the following, wa

credibility"4 "see hoW strong weak the case is

Led as viewing theaw the value of -the

test Wihow victim

performs under cross-examination", "see if victim will testify ", and"test victim if there is question about her ability to relate". Those whosaw the prelirriinary hearing as having "no benefit at- all" were moreconcerned about the impact of the hearing on the victim and the exposure

of the case to the defense.One jurisdiction which his' crente,4 a special calendar to hear

preliminary hearings in sexual assault cases is King County (Seattle),Washington.

One jurisdiction in whith preliminary hearings with child_ victimswere observed, to be held in chambers is Wayne County (Detroit),Michigan.

27

- CHAPTER 5. PLEA BARGAINING

"Plea negotiation is the central techtique E settlingcases in American courthouses. For all crinff;includ-ing repe, the vast majority of cases are resolved short oftrial throegh plea negotiations. This process is justified byprosecutors because it is efficient, because it avoids therisks and trauma of trial, and because it allows the exerciseof discretion in the interests of justice. Regardless of itsrationale, plea bargaining is an institutional reality of thecriminal justice system that is unlikely to be quickly'changed.?

Plea bargaining has been subject to significant criti--cism, however, especially in the context of rape. It is often

suggested that rape cases are reduced too routinely. Suchbargaining is allegedly symptomatic of a timid stancetoward rape, parochial attitudes toward women, or exaggerated fears of losing at trial. Victims, and even thepolice, complain that they are not consulted about pleanegotiations and are only occasionally informed cif anagreement after the fact. For the prosecutor Mtn- pleabargaining in rape ,cases is' at least a public relationsproblem and, at worst, represents a failure to perceiVe the

-difficult problems associated. with this crime.This chapter briefly explores the crime of rape in the

context of plea'hargaining. It identifies the factors whichare normally considered in the negotiation of rape casesand then suggests that standards for plea bargaining bepromulgated. Finally, this chapter discusses ways inwhich plea negotiations can be more effectively andsensitively conducted.

5.1 Case EvaluationWhile the filing decision will generally label fact situa-

tions, plea negotiations tend to look beyond labels to theindividual characteristics of the case. Various factors areexplored to determine what crime and sentence may beappropriate to the competing interests of the variousparties. Some of the variables which individualize thecase include: the seriousness of the crime,-the strength ofthe case, the background of the defendant,the attitude ofthe victim, and the resources of the prosecutor's office.All of these factors have some importance in the pleanegotiation. How judgments are made with regard to thesefactors and how they are ranked in importance ultimatelydetermine not only,vhether the case will Se resolved shortof trial, but what will be the terms of the negotiated plea.

Seriousness of the crime. Rapes do not follow a stand-ard pattern and all rapes do not share the same degree ofseriousness. While it might be difficult to imagine a rape

28

that was not setious,5orne rapes do present greater threatsto personal liberty and social ordef than others. Forexample, a rape by an armed stranger in the course of aburglary seems more serious than a rape between long-time acquaintances in a dating situation. The degree ofviolence, injury and harm may also differentiate rapecases.

Several states have recently changed their rape statutesto_reflect the diversity of criminal acts often characterizedas "rape:" These states establish degrees of rape based.upon the violence used and thus, the seriousness of thecrime. 3 Coincident with a formulatidn of degrees has beena differentiation in punishment. It is argued that the moreserious the rape, the more severe should be the punish-ment.

In terms of plea bargaining, seriousness of the crimeshould be considered to determine the appropriate label toattach to the criminal act and the potential punishment tothe defendant. In those states with a single statutorydefinition of rape, all acts which technically constituterape may not deserve the possible punishment given tooffenders. In those states which have degrees of retie.,what may technically fall under the highest degree ofseriousness may be appropriately labeled and punishedunder a lesser degree. Statutes inevitably proscribe con-duct in verg gefneral terms; particular cases may not fit intothe general scheme.

Beyond these obvious considerations of seriousness,however, lie more difficult issues regardiog the nature ofrape and society's view of women. How serious is a rape?To what extent does its seriousness depend do the chastityand virtue of its victim? The issue of seriousness wasraised indirectly in the Inez Garcia murder case where thedefendant was accused of murdering the man who hadassisted in her rape. The jury convicted Garcia, presuma-bly finding that the homicide was not justified by the rape.In explaining the jury's verdict, one juror expressed hisattitude regarding the seriousness of rape:

. the guy's not trying to kill her. He's justtrying to screw her and give her a good time. Toget off the guy will have to do her bodily harmand giving a girl a screw isn't giving her bodilyharm. 4

On the other hand, rape n viewed as very close tomurder, it is not perceived as a sexual intrusion so much asa condition of ultimate domination and powerlessnesswhere death may be imminent. Elizabeth Gould Davis,author of The First Sex , was nearly sixty years-old when

4

she was raped. She described why she might have pre-ferred to be murdered:

simple murder would not have involved thehorror, the insulting violation of personhood,the degradation, the devastating affront to thedignity, and the sensation of bodily filth thattime has riot washed off.5

Traditionally rape has been considered an extremelyserious crime which has called for penalties of up to lifeimprisonment and even capital punishment. The mostsevere punishments, however, have obviously beenaimed at the most brutal types of rape commuted by astranger. As rapes depart from this paradigm, prosecutorshave exercised significant discretion in plea negotiationsin ascribing seriousness to the crime. How the level ofseriousness is determined may depend on an individualprosecutor's attitude toward a number of issues, includingpremarital sextet; activity, interracial dating and evenhitchhiking. The process of plea bargaining requires ajudgment of the seriousness of particular rapes. there islittle in most statutes to guide a prosecutor when he makes

these judgments.Strength of the crest' Regardless of hess serious the

prosecutor considers a particular case, iii toonulatingplea bargaining position he must icahstieally assess theprobability of winning at trial: Iles ealuation at whatevidence will be admissible, hoes effectie the vi,dim willbe as a witness. whether the facts of the ease will becompelling to the jury, the completeness titut the policeinvestigation, and the skills and leputations of the respec-tive attorneys all contribute tai an assessment tit the

probability of the cases soc...ess The plea bargain in-volves the bartering of a sow tonvi,mon through a pleawith a problematic con, whon ifilough a mat the rimseeutor's bargaining strength thus relates dire,tly to thestrength of the state' s case. I he Usual result IN that thestrongest eases, troin the stow s pei5PC,_:(1kC iC,Ult in aplea while the weaker eases phi, eed to mid

The bocA round o/ the do'cluhini While it iiia tic

prejudicial for a jury to consider the background ofdefendant. in the determination of his guilt, it is ',ere

appropriate tot the prosecutor to consider this intormationin the formulation of a plea hargaining position. Theprosecutor has a duty to the community to seek punish-ment for offenders and to protect society from futurecriminality. It the defendant is a very dangerous personwith a prior conviction tor rape. thecproseeutor roust beebncerned with public protection Lies he risk loss at trialto make sure that the offender is imprisoned for amaximum term. or does he assure that the offender will hetaken off the street temporartIN h agreeing to it plea on alesser charge? If the defendant has no criminal record anddoes not appear to be a serious threat to the commumt , tt

rrat he inappropriate to seel.1 .erns fiction for the serious

crime of rape. This again, of course, depends on theparticular strengtkof the case and the seriousness of thecrime.

The attitude of the victim. An additional factor informulating the prosecutor's position at plea bargaining isthe attitude of the victim toward prosecution. Does shewant to proceed with a possibly traumatic trial and risk ancquittal, or would she prefer that the defendant plead

guilty in return for a reduced charge or lesser sentence?Since the victim is so central to the case and the crime canbe so personal to her, her opinion should be carefullyconsidered by the prosecutor.

Rarely would the victim's judgment alone determinethe prosecutor's plea bargaining position. While a witnesswho refused to testify would surely tie the hands of aprosecutor, a revengeful victim who sought trial regard-less of the risks to the case might be overruled by otherconsiderations.

In addition the prosecutor should be concerned for thevictim's emotional and physical well being, It may be doimportant question in a relatively few cases whether thevictim can even get through the trial; but even if she could,the prosecutor must consider whether the risk of harmcould be justified. This can be a very difficult decision andshould only be made in consultation with the victim, herfamily, a victim advocate or a physician.

Prosecutors may have a tendency to explain and justifyplea bargaining decisions by reference to the attitude ofthe victim or their sense of what is best for her. Whilethese are legitimate concerns, they can be used to maskother reasons for plea bargaining such as the trial attor-ney's tear of an acquittal, his hesitation to becomeentangled in an unpleasant trial or even the politicalpressure on an office to maintain a high conviction rate.Even where the victim tells the prosecutor that she be-lieves that a plea is best, the prosecutor should considerwhether he has unfairly influenced that decision. The wayin which he has posed the alternatives may insure aparticular response. While the prosecutor should carefullyconsider the attitudes and interests of the victim, he shouldbe careful not to rationalize a plea bargaining decisionsolely by his concern for her.

Prosecutor resources. To be tried effectively, rapecases require extensive preparation. The time spent withthe victim before trial may alone be longer than the entirepreparation of other felony cases. During trial preparationthe prosecutor will have less time to spend on his eases,and other prosecutors may be forced to shoulder a largerease load. If prosecutors decide to file more cases and pleabargain less frequently, then they will have to consider theimpact on office resources of increased trials." The ques-tion becomes, whether a particularease, given its strengthand seriousness, justifies the allocation of resourcesnecessary for trial Depending upon the resources of .in

29

office, this can hecirnie a major concern,tia/n(tti; -4 the ctoe . It is clear that the tactors briefly

outlined c, lot he independently evaluated. Somehowthe prosecutor must consider and weigh them fill simul-taneously. He might take a tough hargainmg position on a

case where the defendant is dangerous and thes lentil is willing to tesnty With a 'tent tact situation.he might not want to spend office resources and risk anacquittal when a plea could he ntSgotiiitd

Even r when the oink offs are apparent and 'tic globabilities are cakulated, the mosea unit musi still impose apohey judgment in totirmiating a plea bat gatning posi-tion What risks and costs can he justified in the pursuit otrape convictions? Should gieater chances he taken at lila]with rape eases than with tither felonies because the a nineis so imponant, or should then: kg mole plea bargaining inthese ases hecause the s ale No Jinn, ni Should Mefll,isu :utiir distinguish Jape aasas eta r11lt se 111,11,II :s, III

considering plea bargaining or should the 'airy be allowedto drank wheittel as paw, 1,1,1, ituation II,

eons, iction for rapewt4114 these ate 5,, hot. ,a,

, i,lltl, csel, Eh, 1,, t,

I i"ditiothallt .o.decisktua .1,1.111

hcias utot and a I:tk, it III.V a hill lacn,I ale Lam a Lied s.ttel

tit;plea iicotiati(.11, I 1,,,n , La -aandal,1lin plea haIalillith VII tai ia,17 11 LIII,1

Ill,1111N t,i CilNine Oka plea ha,g,,o.ing ,

Ian III k .4 (II,

li ".11 0(111I1,1C ti, 11 ,I1 IIIrhik lit 1I

Inen ,,nit: "It ap, t., 11,1 l., . II .1

5 2 StufiJ....da eta elcIt is s

hot 1+15 I.taii, es that .11 !Ind.

.t,

I.,

certain guidelates 4,111 tic toonula 5 h,

sonskkied in de,, ug I ha 1,1, oi 4II

clan ll's sanuld kaa , a anof hae's goals and as uminn.u I. gaating iaptc ant., no, itI ight not allow ode to pee 1141 (ha mat. orhe Itt II:, paint a Itar pica ban gain

the MOM ( 4 1 1 1 5 . 1 15 ni,(a, I. ,I,I

consider 111 teaching ,t plea (tan gain V 01.1,i tic 14til..:,1 andiniitoltan, a It iha tita,

ones outlined :those the selloust.ess of the a nine ...mild heranked at ale nett while the 11111110d

fink l 114.11 the in,11,nli I L1t V.,111,1

seldom he plea onet4 ,

!Wined I rl(),,e facnrrs 51,111,

serious etluld he carefully articulated. For ample, whilethe use of a weapon might he considered an aggravatingcircumstance. the chastity of the victim might he specifi-cally excluded Hum consideration. It the prosecutor's()thee recommended sentences as pan III a pleathen paniculai aggras acing anal mitigating oicunistancesthat could enhance or reduce all aserage sentence might hedelineated for the derision-maker In addition, the policyregarding the dismissal or 'eduction of charges in returntot as plea could he specified.

I he piocess in decision 111,11,1ng itself could he stand=atalized, hit example, a checklist could he devised toilisuic that the decision maker at least consideled factorsthat the ottise as whole eonsideied important Escep=lions to the standards could he required to be justified in

ta Iiimg so that a "summon law of exceptions deeloped I his would alert piosesutois to w hat and t<s hat

Is HUI all cccinlonal cast., buithennole it the decisionmaking were centralized or reviewed by a single senior111o:canto' (tic pattern tit 4A)111deIallkni add ecould he made significantly more consistent

halc adkantag,, ill shiell aI it tend, to It.n. e dc,r,1...11 Icgitiniaic

..,11,,dat, 1 ilia-, latfael tfla,ll pet tnial naWaidIII( It III, Ia, MI, VII the tee lendanI While personal hiases

, 1,, st.all a pot, cdute this appotashmu.,.111 ..,-. the I it,t Nth 1. wilt 1{.I III (t

IJilI I.,,,.1 ,,.I 1,111

1111,1 ICI 111,1 1/1,11, ,VIII 1..1,c 1114

71111/ht4ii(II/ik It s1111 gindeli.te; 5411111. aiteudani ,

,Vial 115;taii 111,1 tee ,1111.

apt., ±-W; .1 1,k

1,..A ills.. III il,, tltJll4C of OR, .,ti,apinshaLII

1 111111 tandaIdN alloya Act V i t a imique ittstt tcm. ,ti (ape aft .,,,5 oitte,

pail to 11, gancial 11.1, 1,4,1,l

LA 1". 11110 aa.1 . nerd HUI(1.11111Ctil hilt that diCINIOI. INjt cart hill,'

,,I.Nidciccl might he .igniticant On the odic. lr.11ll ttc,Ic5,5 hie theli pl,,seat praatiae 'Hosea utois 111,1

that ,,line aases should he assigaed special ptioot Lc

tel ill toughei plea negotiations Regaidlesspolias 1111 act of singfin oul the L11114; alidspecial teatimes Lail he benefit...tat

on astern and del iftelate plea itegonatton essitit tommlainig and appi)Ing -dandaid, Vkv

Niandand% will ieillain sagne andapplied Ni Ith NIX:, ale legand ill (he plea 71a1 ,411111 ,g of

it,.; 11,04 Wean IhaI'hilt Idnial 1.11111 11141ne41l, gilt

1,1, rid!,

5.3 The Polygraph and Plea F4egotiationThe polygraph is often considered during plea negotia-

tions as a means to avoid trial and resolve obvious factualdisputes. If it is clear that the state and defense versions ofthe facts differ on points not subject to misin-terpretationtor instance, was the door open or was itclosed, did the defendant strike the victim with his fist Ordid he not some prosecutors will consider the use of apolygraph with one or both of the parties. This situation isdistinguishable from that at the pre-filing stage, when theunchallenged victim must unilaterally submit to a poly-graph examination for the case to be tiled, and it is not

applicable to those cases in which the .acts in dispute aresubject to differing, interpretatiore i e., diti the vit.- int

consent to intercourse.Even under these co unistances ille lel ot file

polygraph is still at issue)* Prosecutois who lustily the useof the test argue that they would go forward it they nadconfidence in the polygrapher for it is the operator whodetermines the reliability at the test. 1114 argued that at thepoint t=it plea negotiations the limb, have tisuall nal lowedsufficiently to present the polyg,aphe. with .3 tc,tahlefactual dispute I .1esc trim s at Lzuc th.n Iii dosecases the polygraph cal, eliminate tie neeti to tom andthus lilininiiLe the tisk. to troth the .tad &tendash

Undet thcthe results itt poi) t sill aiatklthat the tesulls is aditits;thic iii 111.11 Wtalc t

Will not admit into C.,by one part!, to v dispute ~sorts will tik,I1,4 LA poolagieement bet ,hat (la I. a 1..tilt it not

lie Mal it 1-, Ii ills iitiallt

tot the ploser_utt4 to ptcpai, +11,..:1,11, \Antic',mmulation he dctendata and iii , otti,ei so thatthere is nu way that theelater pally s,..411 lilt,shtrulii tilltIV,1 it that ilic 1 tc i6.laii, h, the

takes the eNaitunatt,a1 I I., h_oici, of iht p out .4 die picanegotiations Is usually iii, the daft Jidda( to plo,c his

the tateinnoecttake the ca -,e to the tic i1t lamb ic,klh the detelliiltshould be the oae to take the stipulated poi) gt,pla \rum

nation and tun the ilsks (kc,.islaatall%

agreement call he leached that it the defendant posse

the test then the victim must take it Usually, however thecases In which polygraphs are USed ale Nu dose (inn thedefendant's sueeess will determine Ills ,1u1,_,ilitc kii the

trial regardless of the yicnitt's resultsThe use of polygraph examinations a,

negotiations is subject its less siineisrii Wait , it: id:examinations Now it is not a test of th, s icon] .s willitinessorciedibilio, IIfru( laa..elige to tiL JCR:

his denial tester. In close eases, when there is littleevidence to corroborate the victim's story, stipulatedpolygraph examination may provide the state an opponu-nity to develop valuable evidence for trial.

In deciding whether or not to agree to such an examina-tion, the prosecutor should consider several key. factors.Most competent defense counsel will pre-test their clientswith a private polygrapher before agreeing to a stipulatedpolygraph. The defense attorney usually will not revealthis fact to the prosecutor. As a result the prosecutorshould he wary and only agree to a stipulated polygraph ithe has confidence in the eivertise of his polygrapher. Inassessing the strength of 4. case without this examina-

in, the prosecutor might conclude that he will lose

despite the defendant's guilt. Agreeing to the test repre=scuts a calculated risk m gather additional evidence for[Dial The weaker the state's case, therefore, the morelea.sonable the polygraph becomes. The factors tot andagainst having the defendant take the test should heexplained to the victim and her opinion elicited. She tixiybe willing to risk trial without the polygraph or may hewitting to tisk a test it its succes,s will assure conviction Inrubel case, She should be involved in the decision. for apoly et aph that wilt indicate the detendant., lack it &Cepnon may essentially terminate the kitSt: (4) I he prosecutorand the defense counsel should woik closek With thepoi) grapher Lii make entail) that questions asked willdeath dcteci deception it it exists. Stone Lases where. lote sample consent is an issue cannot he !educed to obvioustactual disputes. and the parties can both pass sails

graph examinations without resolvm the legal is,tre

4 VArtiLipalit3 hi the Plea alryulrrlrlyProcess

tole the pta, II) L.,,Ide) Uhl)" ,111)

,sp,,_ kik)! the inestitai has at Iscu as fir OW ,11)1)101.11

101 MC ,,ILLIM Mc 1)011),C irnd ottias in thep,o,e is loprirant Si, Ieniei1111e1 mai the

lope caNe t., not file 1),,asec what c,1sc hut a craneagainst the state and its t, itizens-, the ptose,utor merelyictuescots these inteicsts A, an ad% twan: ha the sictimand this police 101 canndc lie inust k,(111 with themand Lano-adel then opinions I oo often the ploseeutor,1),-,11111C)), Othe possessive Ink:lest in the cam:, the opinions

of een those most directly involved with the Lome areconsidered tangential As a practical matter, consultationAIII) the victim and the pollee can provide the prosecutorwith %,aluable information about the crime that has beenlost in the pitiless ot having many police and prosecutorsntivIsed Most litipotiantly such consultation may lit

She 1)))))1C),,,tol ahout the attitudes of the community

aild the crime charged and the possibility of atic lated pica

it

l_lndoubtedly, consultation with police and i.tetinbe time consuming and impractical Furthermore, suchcontact may create expectations regarding influence in thedecision and tanhercuntact: these expectations could leadto later problems.

Nevertheless, col Naomi shrui tx p,tt1 tri aing relationship beRkecn the prosettitin, the iletTithe police Many prosecutot fig the sicl illabout the possibilit of plea bargaining at then lostcontact The victim \ [timid hntiss !hot her opimons Still iNesolicited and considered, but that lie piosecoltn has man)other considerations to weigh as well. With regard to thepolice. continuing I-el:loons require that the polk:c trust ow

' R..

Co f9/tri. p ,i),

or-terc J

ot

I'll ...IL 1, I

111,111ii i.

II

pitrsecutorWhile

their interests in the plea bargain-tug process While the police assume that plea bargainingwill resolke most cases, the time spent in consultation mayhe an ink esti-Hera in long -term cooperation

xlucli of the public distrust for plea bargaining maYeinanaie twin its secretive nature. It standards are pub-lished hawa oung is conducted with consultation, anddecisions die cxplaiued and justified, then it may hepossible to portray plea bargaining more realistically.I his piitsess is not an illicit exception to the rule of taw,tilt a !connate aiid integral part its the ctiminal justice

ern

In iiiri ilia item hargmning. ,uchkmol tircgoll king Count\ (Seintlei

tis ,,raftw,, 1-1,0 twol porccr, ed tr±.

,tchii.-ki 10

mid then ni their tiniiiet trIL:

pic.,..rifq! al,: filed Secand LW! L, it.tsi,

L.L .1/.1 S.LL it-IL ISfiring 1975) 4(fl,ii (tic pmpow', nej LA .2 iLi

1).,, 1, /),,, ,,th,1,, fu d,, r ti,LILLO KLLI,qLf 1 kILIPL.I.LILL1

A LI,LI. ric., I

-.1, -.LI, Itl

CHAPTER 6. TRIAL PREPARATION

The trial preparation of rape cases parallels the pre-trialwork in other major felonies. The prosecutor must re-spond to defense motions, contact witnesses, organize thephysical evidence and, inevitably, become involved withadditional investigation. There are, however, special con-siderations with regard to pre -trial preparation in rapecases that should be identified and discussed. The sameconsiderations that influence filing and plea bargainingattorneys in rape casesvictim vulnerability and theinherent evidentiary weaknesses of such cases should

concem the prosecutor as he anticipates the rape trial.

6.1 Pre-trial Legal IssuesPre-trial defense motions in rape cases are often mon

vated by two distinct goals First, these m000ns havetraditional rationale to gam information, to suppressevidencewhich relate directls to the substanuseissueswhich the parties hope to resolse at trial These are

common motions that require nada! ona. lensesond, many of these motions are moos ated hs defenseattempts to pressure the !coin weaken het testimony anddiscourage her in% olsement with proses' 011011 Just as thepreliminary hearing can he sieved as a tactic to applypressure, various defense motions should ke considered in

terms of their impact upon the sicnin Esen in the pie trialperiod, the X tenni mas perceise that she Is being subjected

to attack and that her mu:gots, rather than the defendant scriminality, is at issue Thus, pre mat motions representmore than technical legal process. dies trios( hi:1)(1Isued ina way most protective and supportisc of the tetitrt

i It oven The exchange ,Yt di"st-tPsciN !Man.-lai is fe.t!3,

died by a A. alloy sit procedures in different jurisdictionsThese procedures ranee from tnendl% exchanges ofdocuments and open access to case files to tormalieeddiscovery motion hearings tot the record t lead). dueprocess requires that the state pow ide discosers, thoughmany prosecutors lament the practical one was floss ofinformation. While the prosecutor cannot withhold s alu-able information from the defense. the particular nature ofthe rape victim's s ulnerability suggests that the prosecutorexercise special care in the Mssenmiation of personalinformation.

The victim's address I-, an exampleinnocuous, set sensitive piece of tirtorlitatiun t is t)

provide=d to the defense It possible it ,night to IA ohhelout of a concern about sflentil motindation tour]

7ndant, his tallith of flIcn&, as sell as the Nu_harassment that can accompany character iroesneations

CCW1110,

of the victim. Phone calls and visits to neighbors, friendsand relatives of the wont can be extremely embarrassing.The prosecutor should also realize the victim's emotionaladjustment to the rape, as discus.seN,Chripter Ii, may be-jeopardized if she is contacted personally by the defenseattorney or his investigators at her home. This is espe-cially true if the victim has moved as a means of dealingwith the trauma of the rape.

It may be impossible for the prosecutor to withholdcertain infermation regarding the victim. However, hemay employ several strategies in its delivery. First, he canexpress very clearly to the defense counsel that he isconcerned about how this information will be used. Whilethe defense attorney can be expected to share this inforiva-non with his client, it is important to inform the attorneythat any intimidation of the victim will be dealt withseverely. It may even affect the future flow of informationfrom the prosecutor's office to the defense attorney. Theprosecutor has no direct control over the defensecounsel/defendant relationship; however, he can stress toboth attorney and client that it is in their best interests touse discretion.

Second, the prosecutor may be able to limit the use ofthe information he must give up. For example, the pros-ecutor might withhold the address of the victim front thedefense, counsel and thereby force a formal discdverymotion to the court. At this time the state can clearlyexpress for the record its concerns regarding the dissemi-nation of information. The prosecutor can even suggestthat access to the victim he available only through hisoffice, this would allow defense preparation without sig-nificant risk to the %icon,. If the defense has some otherreason to know the location of the victim, this reasonshould he clearly articulated so that the judge, the defenseattorney and the prosecutor can negotiate terms for the useof the information. Even if the information is given, sucha hearing underscores the state's message to all parties: itis concerned about the victim and will not tolerate undueinterference. Since this interest is not subject to question,the judge may condition the exchange of information onexplicit promises of good faith by the defense counsel andthe defendant.

Third, in exchange for giving up this information, theto may be able to exact a price in return. The state Inask a quid pro quo, such as a complete list of defense

witnesses with names, addresses and testimonial sum-maries by a c ei tat date The defense oom,: . ho no

doubt argued his need to prepare, is nor in a strong

33

poIttttn to artine .4iii ri'a the '.t,itu ". 'irtitlar ,tucdThe prcuutor httul d I nt tintu the let tEll tu gardin

tntorniatior that hi's heen ii'scit to detcti'su 'uit'sul She

'should ,tl'stt he prepared trout the liutlutient ol lii.Initleipatu Ctttit.iet h's thu dutundatit .ttttsnuiu's ant! hu'sehtsttletj ttti .111 .IJ111Tt)1t l.IiC l.ltli_!u 1 uu's1,ttut'se's II lil.I'si Ic

cicar! urJcr'sts,'td h's hut hat the pulu'see Lilti l's 'lot Ill

'striictunC hur,tt'r to 's1ie.iIs ti the 51e!etu'se .itttttile's V'S huthui

b I FliCut vt hi 1K' sI's' Cii =C ,ttt uie I U II nate hc em it's C

\1.iii's Pot'sCcLltott\ 'sue'st thi.iE ii 'sus lt .i etlultac t i's iit.udC

'situ te let the .1(1411 tie n ut's C'stlealt ti u the i 'sue UISII 's's ho

111.1% 'set tip itt itci's C's's iii hi's ite'scii'se II 'su's-h ,iIt

interciuw 's hut's!, the ttuo'sec tittU 'should h,i'sc .iut .t5jdttu0nu.ui

'ssutne's's Ttie'sent in C.I'sC thu 'sLih'st,Iuke ol rh fluter'siC's's

husitittu's ,ill l's'ssIe ,tI 11,11 kcats1le's- it li,.

huto'utu. thu pi is iii 'I 'stii sit it is .S ii i k iii I tie

,itl 'slut's tti.i Fl ', ii_ I I Ike -, i, 11,.'stlIltJi_

' 'si'si ii ,t,i, ii,, is-s- I Ii 'se

flfoflhiluti 00 reCall! Fit! c ten'se IUCC's's to !ntiiiflLuttttn Ciln

sCltiilii! (lie its liii tutu us'sis ti Iil'sl,uis I tic 1iii,s, sltiiin.i he ,iss.,rs- ut liltiuliii.iil iii ii ii.i s- Isis-S

111111 th i S iS 1 Ii ,Ssl I I IC I I ii i ii, 5. lit.

I itlC\.liliuii_ h, iu.s-siIili ills I,

ls-s-ii ..s-,tis-J ia fl' .iuuu'.i Liii i

is-al's ii a i..u.i 'un its- 'i.e ,uliiu'ii ii ill .lisi-s- thai

uiIiIi Ci iii, I, ii . ,liillel'siil s-ui! 1 us- this-I's ii

us-is-ui .iiiJ ,ssluiii .1111's ' ii,,,. -i Ii

hi,ii'si_iu._u 1,_i iISi_ I uss.

hi sits-, . ii is-_S 1

uunsIllflhi-i,,.il1'' Is-'_i_ut SI u_iu-151i iiIiluu lii,

Ii I iI,_ ._ i,,, -

s-Is.i'sCsi isuiCs-IS. ut flu I, is, II. i I , ,iI i

busT -I i' ItIi'ii fi iii. lull -Ii. i liii hi,. Ills- 1._'i I, 1-

-' I 's ii,. Ji_ Is-u _ - iI,, ui

'Is- iuuii ul is-, iii I u_ui1- Ii,, I

lilt SI iiS' SS.li ii I I,,iu I

.55_s-il . lCiiiI-Isi -ii his. l'sLi(i_ Ii ' I

I 1i,_tui'sII'ss-.iiIu'iii_ lu.!5 u Ill.,! u-till tls-uii,._sji,Iis-,i

Its -')IeuIt thee' isis-i..,. ili.sI h ,s-k .s,ii.ilils-,i 'ii iils-,t \ui C I uisl he.0 lull C i'1it i 5t it

'SI Its- siu' u si 'tt -

It! S I I ills/il s-i ii the uu hs- II 'Cui I' Is-I,. 111.11 i. 1K ad Ii 'sI (Hilt

st thee's Ideiis-c \s ii.. lii,. iu. s-, ui-i 1'i,tCi liii ills-ills's-i

ti'shlIIi e 's,2JItluuli JIllIlisi Ih,' is-IiLl's,iilllil.lIIi'li .ii IiI.,i stile lii 5s- ,.is-,,I,

,ru lu-i IC Ii 's-s

The iriusus- 1111 rib.c lilt his-cuis ii .., i,,. I i,,,,.s's's,ire it li,.- 151111 liii c'sll.ii II'tlu i it 1155.

U s_ le I sUsHI .1 iii iiu'i K iii' , I I Ii.. ii 'I I I us- 'I u, Is

,.'sIits-tlui_li!,t 1'sr uiiCistuit iii ills- slsI._ius_i.u,,II his! I lie Ii_ I'S iii Ii i. ' hIS I, .5. u i I ii .,l i 1

1 'shihIs L .5

I_s

tss iit'suuie once again, thu t,i.tIe nri.Iy he to hai,i's'1 a's 'cli.i's itt 'seek e'sutilpitor u's idenue

's's he put'sucuutniat 'sttaey to dual with thi's Ilotentill! pitshletui 's's ii u ltItII.Itul depC nd u,oti lnCi! 'stat Ut's' arid

p r;icr icc lhci pto'seeului 'shout ti not a 's'si 'U thu du lu nd.int ti

Iii's u-a cii it the hac kisttjnd tit thu 's Ci in it the pro's

us- Uisli belie's C die C's dunce to he i rtele's ant But he-,tisuld .i!'sss s.!i's'sssutaee lie dcteui'se troni indepundetithI4,Il,i's'sItii2 the 's istitli \ui .ipproprl.itc cotnprottii'se ttia% betot thu pull'ses- utot to he piu'sutu! s's hen 'setu'siti'se 's1uc'stisttl's

.ite a'skd ot thu 'skI ut He .iui I lien object -to 'peel tietjile'sIititl's s-lUst s-,iutittit the ietiiii that 'she need not re-'sporiii. Ati lulupass's will then have Ut he ressolved by the

.-inirt lhe ptut'sc's uttir 'should ha's e two lundarnental eons-etii's iei.i.irdttiti 'such it procedure Fir'st, he 'should not,suudet,'s(ttusate ttte sl,iltlagu to the rape ua'sc 1ttn'scd hy the

,ijitil's'si,ttt ttt 'suet ititoniuiatioii Seuotud, he 'should care-(iii Ii s-itui'stdr thu Impact upon the en tO stt quesslion's

IsIs-li .sds-issi 's's tics 'c 'sual Iii'stot She 'should e 'spec t the

11m'sec titor to uesprer and protect her prnviIcv: tt he doesiu,'t 'she ha's ii,'se u.ssittldusss-c iii hitti .11141 'scek is, withdrawIts- I - itislIJIist

\I,'!lu,i Iij; f. /,iafii, , ,.,i,,lui.,,Sii ILls-,, -s- ,,1LuisltL

'ssiitts,_lItItC's icqisessi tttai tie esutill s dci the 's dull toili,sls-ts-,' 15s-hi.iit us- e'satltll,,.ltiuti V'S tills- Ii.e'ss-__ lCcuc U',

Inn_I with 'sttiiie tres-4Ueuue's tt.s_ ale saicl giauttcd

Ii,. ts-sIIsiiiaIu tstt tIle ieqUe'st etliaulatc's ti,sttt Wtguutstie's

Is- a's'setltttiu iht ape '''stettnu's ale stttcut uuustralty

Jettitit,.d us tutrittall's uiIIa!,Irlued Ii 's aruud that he

h1'ss-tttJiit. C 'satitiluatls,st will 'surve to 'sCpaua(e tattrueaiud.

ta'Itia ultust iCttfl's html Ieuulilui;itc s-ttrrlplaitut's the itt

St 's Us-lu alt 'salt it hat 1,111 oil u tie Is_il lIt 'sits tul d Ic

l Iii. 'st'i Itti lIl.5\ tic s-til,IIti,,I u.iIcc ,\ uielul II itit's

uisLCe'st ii the 'sis-titut tI,5it rIte salle 'sIte, Iauti (ut 'sIte

- ii si_ it ath .is_s- ui'ses_l itt itclilai in'siIliI Is I he utt's

s-s il 'i 5ti5 UI'sl SUsHI ilts-'ss- luliluisilt- 'sileii,J'sIu'sli

Iti,i i,.lI's tllO(IOit'u till I' 'sVs_ tiiat its. C 'sat lii tall - I ii.,It .i*.ii ttl h ciasted stttI 's's hcui ilteic I IuhilC

slUt_u, C iss ss,uiotsitiate th 'si_hill s ititI\ (,.'stt.,t's ttasc

,.s'is-ius-stitss-d esu Ia! arcuiuuetui's agalti'st 'such c'saiuhlluaiiilii\.

I Ilie 'status,! itic jO i's lui.iJcc(uiitu tsti pu'ss-tiIaIiti (Ii

Ut's. ci tst_tws-Clt as- mUt aitil t.iiil,i'sl/tgd au,sttuili's stI ta1

's U '.1! itt 1'ss s-hi,it is ill's .idu's the iitui's I nee tlt itic truer

ist t 'c I.ts.t'u. 4) (hi's l's all ii's a'sliun itt uh?s"sls_uits 1iu1'sis-

t4i itt's Opel's the Usueti to ictitti hara'sssttuent, 4tId I ) thl's H

ui u 'speii 'si's e and Ititlu s-stii'sutiliiig proee's's that s's II turnulus. Itia! Illisu a 'attie it u'sbxtl's Prts'sceatits's 'should

elllu'slder all ut t(ie'se UlLIurulcUt's

11e-'sutl,d ttis2'sC StIlls- S ,Iri2uiilcll('s (isis-c 's-I the prisit

uil,il 'sIluusiiij ,it'sui s-lcut,tjid tisulti the detesidauit .5 IlscdltlI.s-'ssiltes, uts,sltsutt attls.tsi'slt atId siteu 'sit tsstutt that c'staFt

II I is-. ., ,. ii '5 11111 11CC 1.1 tisu 'sijs. ti all C 'sail ill us-I 111,11 I tie

I t.-1Jl us- 1u.u'ss-ul..iI 1 '.sCtlI.11i,iI Is-s-i Ltu'ut is-Isis_s-i

k

mental instability rather than a general suspicion of rape-victims, It is unlikely, given the screening of rape cases bythe police and the prosecutor, that a fantasized complaintwould reach the pre-trial stage of case development.Thus, it is unlikely that the defendant will he able tosuccessfully document a history that would warrant thisexamination.

It is unlikely that polygraph examinations would hesuggested in lieu of psychiatric examinations, given thetraditional -antipathy of the courts toward such tests. All ofthe arguments used to resist the psychiatric motion can beused to resist a motion for a polygraph examination. Inaddition, if the alleged basis for the test is mental illness,then there is no reason to believe that the polygraph willdetect deception on the part of the victim If the defenseallegation is simply victim fabrication, then diere is nureason to supplant the lodgment of the irret of tact withthat of a machine.

6.2 Witneesst s and Lxi-saL._IlsIt is cleat that each case ecotone- -t

Some serious cases are quite simple to pi,.paie whileother. less siginticant arctic, huis he kiwi, colliple, I tic

seriousness elf the charge itt [ape does hot neces,allksuggest particular mode ta plepa,loon I ti csi:;enciesof nine. the dictates tit side and [tic i,i4ts .it the 1+C

ultimatels determine the piefkoathatA pit:requisite tiiclteeilse mat piethuao.,

a firm undci st iti diii l il,e fuels and ilic caI here can be no soh-41101c [iii a careful ietailett anduninterrupted leading it all the ill, Ityarrl tat, ()teen thiswill Intlude.is will 0, (1-1C %.0101,1',1)011. tritikiR, 111,1 Icp)itFurthermore. It is highly Owl pi-t),

ecutor visit the crime scenc it it is as aitabl, I ,.. make the

lure 0)IIIIIrrtIrIld the realit-:, tic 1.1; eeiiiiilrirusr he familial with lis kiCh,01,

Each witness also he Hite,

coons 01 WIllirN,CN ary lice It tdy sophistic ottoi

mal discussion In addition. the mosey utoi must e \amineall the physical evidence that has heel) .atheted or prepared. The process id le,lilitic the matt:oats the

scene. inter\ iewing the- itnesses checking the pro si-

cal es [deuce Is a cumulatise one I he Intel titwitnesses bectmic inure meaningful a. tn the scene hbeen visited and the materials read. The materials makemore sense alter seeine the phssical csidence and NE-leakmg with witnesses. Act some point bete re the trial. thereality of the come and its parts should begun to coalesceThe sooner the preparation Is l-yeun and the moie thmough it is the gtearei is the Mai the plosccutolcan make connections het Niece- iuf c )deuce di'cover nuances lit his a ,use And Jc(.01CL1

account ot the cf erne it jul±

VictimPreparation. The rape victim is the please( utor. schief witness at trial. If the jury believeS her, then therewill usually be a conviction; it-her word is doubted, it isunlikely that the jury will convict. The victim's credibilitydepends on numerous factors, such as her personality, herability to articulate her story, and the logic of the storyitself. While the prosecutor cannot recreate the rapesituation for the trial, he can attempt to present the victimin the most convincing and sympathetic light possible. Todo so requires a working relationship between the pros,-ecutor and the victim that will both reinforce her decisionto prosecute and prepare her to be an effective witness.

Pre-trial interviews are clearly distinguishable frompre = tiling interviews. By the time of pre-trial preparation,the prosecutor and his office should have a commitment toprocution. The goal of an interview is to bring the victimand prosecutor together to work on the case as a team. Inmost jurisdictions. the attorney who will try the case is notthe same attorney who tiled or presented the case at thepreliminary hearing. Thus, the prosecutor must independ-ently establish rapport between himself and the victim.The victim may already have had favorable or -unfavorableexperiences with other prosecutors and courtroom proce-dures In addition, she may be uninterested in prosecutingat that moment because she is attempting to place the rapeexperience behind her

The role of the prosecutor should be reexplained to theKim). He is an attorney and a public official who will try

the rare case. Emphasis on the fact that he has beenassigned this case may suggest, perhaps accurately,that it was not his idea and he does not really care abouthet He should demonstrate his personal commitment tothe victim. perhaps by handing her his, card. and sheshould he encouraged to he an active parinet in theprocess. to ask questions and to volunteer ideas: 'Fileprosecutor's efforts Hid) not only boost her riumale andself-confidence, but may also uncover new evidence andtrial strategies. The prosecutor should outline the scheduleitt the case and realistically describe the possibilities ofsuccess. The weaknesses and strengths of the case shouldfee explored so that the victim will be alerted to thoseaspects which will require special attention.

Prosecutors generally acknowledge the imponance ofoorking closely with rape victims. Some prosecutorsmeet with the victim as many as six times prior to trial:most believe that at least two meetings are required. Toomuch preparation of the victim may produce negativeconsequences. She may become more nervous in anticipa-tion or her testimony may appear rehearsed and auto-

On the other hand. repeated rehearsals itt the

lc ton s account may decrease her tension and her reluc-tance 10 articulate the whist details of the case Further,fife inheient tension of the trial will prevent aft emotion-

ioutillited presentation tit the es idence I he daugc,-,

each method will ohs It lust). ha\t ttth. ,rsse %sett in Iconsof the needs and demeanor of each s !cum

The location of pre trial s ictim intelsiess, ilia) mitaence their success. The posverirrelationship hetsseen theprosecutor and the victa undouhtedls enhonecil Ili theprosecutor's office but 111111, 1 lllllllllllllll the s. icon' and

trustrate communication Despite the cons enience it sucha meeting place to the prosee writ the tclltii t4l h a Johfarnil!, or Who- responsibilities Inas find it burdensomeThus, some thoueht should he gis en to finding mut uall%comentent times and places It a s !cum ocate (seeChapter IX) is as ailable, her presence at these intersiesismas reassure and assist both the %wool and the 'noseCut sir.

The %ictirn should tit ptel ,tone ot her testimon% Vi tole Nh(!tildapproptiate ikt the ot the pa.-11,t1ILIf

-techniques can tx- suggested (II l he i it.11ili 1,11,WILI 11t:

1h010tIghl t11111111,11 Vs1111,111

recorded testonotoi, that Ntle ha% illadt 1 fi All aluserepan-c1C, 11!!!,!,1 01-RI

c\PL'ird Iti+- ha

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she will tie a,ked t. Idethit, I tillIi,

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-ant FF,i. se..,1 1 I 11 r. d

iderit,n,at,on pros, ...Id -a1,1L. IL!!palt,11/,.. lh4 ii. ,11t ILL

!CIC ltie -,1c,...11,1 .1 ht- N1 Shk,

tttlnn J Thal .Is Ili ! h, Cduring in, ilial. the liii 1,, I.Aould epi.ffiled ,.,1

that hei appcalamc ,11 11110F11,1111 al..1 !ha, hv

holilil altc11411 an!, 5,1

chat hinfr, ,A111CI1 mac 111t2 1111

-y (Ind .1,1,1

itic inters !Ls.. %%ith the %i, llln should ti.%, ..1.. ,e

the incident alit (hell presentation IIIuse k=111tutc11( 1, 11-1L: ,I l!,,, 1 I 11,i

testirnons i.me prose,-wors ti ,are ca, 11 iiifric% will ask sin 1f1C11 dne, i ,0,111,1011,!11 :1!,1

rehl-7,11e 11/IC s1,111)1 it it!,Hilt what tht proset.- Lira sutit he eat-thin 11., clILII [he 10(50115111m, J, I 1 1,, i.11..

oitelisc pier...Honor, Is t..eatis andeistaikts the !,

antiLipaie the icsponse with reasOrlabIL L'enaint Otherprosecutors simpl,. go oxer the %tors with the swum anullityi of nines lit make sure that the 1.101111 Is Loniloria=File and confident in its presentation

he exact description lit the sexual aet is otten the mosidifficult aspect ot the direct testimon for the %tenni At

some point prioi to nial the prosecutor must he certainthat the spe, tic element of penetranom, if required bs lass,can tirl articulated con% incingl% h% the %whin. 11 is impor-

tant that the language used he appropriate to the .sictirn andinottensise to the lugs. -there are orious limits topiccontrol that the prosecutor can and should exert: it maytequire considerable skill to help the s icom express her-self in (elms Ihat %%ill t-le ,ointortable to her and to the Jury

hi:paling the %i con) tot cro. altlilla(1011 is an

cqualO. impoitaut ,ompoiNait of plepalation the11111 -,11111k1 1.111LICI ',LORA the tint lit the defense attorne%

and the propose, scope aid anticipated trine of his ques=(isms Smuc dile,tiolis might be gi,eii het i 11

Irgfih vers saretully to each quesiwn so that Iti clearlyPa osc l-5c10lL qui2,11,)11

the 1!..!k!rjc4 I Ili ICH Illsd,.11,4 !JO! v,ill its i n.,tiff and

J,+ not .,o10).tect intoo,lation I II V% 1111, win, pitate

,(1 i {11,1 ma fie stiticd ,it)

the ,i t.., that ma, t puip..e In ,isl,I.tE

III!!! N11()!iN

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,11 .11111k .d.tlk I ,J1111,.

I 0,1 ok.i, III 111C1Js 110i1101,

(k! i)cl!!!;11,1111, !IpUll 1h4 -,t!II(11,14.1114.III

!Mi.! the

sh, .111 k .1 dallied k, that tie

11,i21,:111,.1

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41, 111,14 i +110 ,111,1 the

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II,_ 11,11k:ii li)

leN1 ,51,1 qUeIll rer1., I! tnhel kill.:she ,it I, .

the tilt e t,li ,lid he' ,N hat ttl

kII1 t!,211 ltlt Huth

.1 .-5d VO'llIQ the

1.1(!!! ,i!ill!!!. !CII (he t1.1( "414

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I lit 111,ci-111,A1, 1..:1110

do not happen by accident, and preparation is a key tosuccessful prosecution.

Preparation of the exatnining ph-ysic-tan. Doctors often

pose special pre-trial problems. First, they are very dif-ficult to locate and interview. The emergency room doctorwho examined the rape victim may have been a residentwho, months later, has moved and has little time for trialpreparation. Second, a useful interview may require thatthe prosecutor have a rudimentary knowledge of examina-tion technique. These difficulties reflect trial problems aswell; doctors are often uninterested or unavailable fortestimony and their technical language may baffle thejury. The prosecutor should anticipate and compensate for

both potential problems.The importance of a pre-trial interview with the c:c

amining physician cannot he underestimated. 1,000rstend to be very tentative in their conclusions, especiallywhen subject to the scrutiny of cross examination. Unlessthey arc well - briefed on the facts tit the e and therelevance of their testimony, they can tie as harmful w a

case as they are helpful The pro.sec unit lifig4lit ask 'fie

doctor What he can offer to help establish that tltt v rEtirtr

was subjected to a tO1121b1c22 sexual assault I he lint, ri,olor

should then carefully discuss We strengths and -vvcaknesse...sot the doctor ,rtr,Cf It the pit.sct utter

explain the ielevame nedicai iestuinHis e \tabu

sonic knowledge suggestive of his II.c1IC st, ,tikd lerittiiistrate a need toi the t.10.2(t/I s uNN11.(4111. IttC 11,,j1110thil

lawyer- Jr... it)/ nl,iIpalIN Indy rue tooftJ iJitk.concern tot irk; victim ad thc conic

Just as lawveis hat L. a II 1,..s41

1,,ogueJgc tuf the Jul). so too 1,14JSI it)/ L. IC

Minded kJ le{401 and c vcidioui f

the doctor ma) have little taulitiality with restit ing andbe 120142eitted about his exposuie it. cross cdmination

as the Pk,swic Ingut Naillinall,,I1,0110 he

re,iewed with him ft the do,...to, is e six;iien,cd the

porseeuti, shook] luak, Nti,s: thai (011C III lik,t be

perceived as OVCik dui ,tzuji.,L4

Preigir,illtiti of ofher w, Ir,lc 1 toe . /21

tic interviewed pi 101 to (.1411 Inc, HA,! (14,.) tjiAtt

ChinEing48 IWA. ''Corriplairiant Ci,fdthll*. /111m,

Chaitctr Ttin)on". ,ind Ps,chr tr r, f-Nr.c2f

141. ,1/0 I. ,r rt,'are, (1-1. 1,1j,i-, 1, r..

the prosecu understanding of the case and thereforeinfluence its presentation. These interviews also providethe prosecutor with an opportunity to assess the willing-ness and credibility of the witnesses, so that he can

anticipate the impact of their testimony and plan accord-ingly for the trial. If it is appropriate, the witnesses shouldbe alerted to what they can contribute and how their

testimony fits into the whole. They may be able tovolunts-Vinformation that was not previously elicited orrecorded in their written statements. Patrol officers, par-ticularly,,inevi(ably, know a great deal more about thecrime and the crime scene than is found in their oftencryptic incident reports.

Preparation of exhibits. At some point the prosecutorshould make sure that the apprOpriate exhibits have beenprepared for use at trial. These may include .maps, di-

agrams, photographs, charts and other kinds of illustrative

devices that will clarify and enhance the presentation ofthe case. It is a general axiom of trial practice that jurorswill remember oral testimony considerably longer andwith greater comprehension if it is supplemented bydemonstrative evidence. The preparation of such e xhi hits,

however. should not be done too early, for until theprosecutor has a flan understanding of his case, he will not

know what particular angles or perspectives should be

,aptured for illustrative purposes This problem onlyunderscores the obvious need to prepare early and in-

tenselyIn addition. the pioscLutot should he certain that all

physical evidence is properly marked and stored and that

the chain of custody can he clearly established, Thepi,,,,ecutoi should know in advance of trial-which witness

will introduce which exhibit and what additional tes=[nowt). will he tecluireci for the evidence to he admitted,

Pre=lnal checklist Some prosecutors find it helpful to

pfcpaie a checklist of pre -4-rial steps to assist them inallocating time and w assure them that nothing is over-looked A sample checklist which can he Modified to the

needs of individual prosecutors and local practice hasbeen included as art appendix 10 this chapter

Set2 d I:

ot/1-` 2.1 S.31 Plc,/ e App

Rptr 51 )197(1) 511 F1 I2d 176. /t)T

1(we, 4/io 1/(ptt 21.2 i lc,: Li Apr

4 2,1 112 A 197.t)

37

State v.Trial Date

APPENDIX TO CHAPTER 6

THE Preparation vhikmtt

r Background ReadingA: PleadingsB. Police ReportsC. Witness StatementsIT Medical _ReponsE, IThoratoryF. Preliminary Hearing hat nsyut,

((_)thertLI LAiden(4;

Plosieal mitim Poi ha,,dta Commtlq()tiS

H Plop,Chat-ls

bu

UOInine Ins

3.

III. Witnesses Interview #1Date

Interview #2Date

Comments

A. Detective

B. Victim

C. Patrol

pus(

V. I

A Cro r ,

B Reque,ie 1 DattPro Trial Monona D'h tioct Due Havering Litrtc Comments

VI Jury lw,t1 uVfl Voire Doe

39

IX. MiscellaneousTo Do

2.

3.

4.

CHAPTER 7. TRIAL

Over 98 percent of all reported rapes are resolved shortof trial. Most reports never leave the police department,many are not filed by the prosecutor and most of'theremainder are bargained in return for a plea, usually to acrime less serious than the one originally charged.'Nonetheless, the public perceives the trial as the culmina=tion of the criminal justice system's response to the crimeof rape. Therefore, the public perception of the symboliiimportance of the trial should not he ignored. Brutaltreatment of the victim at trial and low rates inviction.which have been publicized repeatedly in the media,adversely affect public attitudes.

Aggressively fought and successful rape trials maythe public's attitude and may also affect the

udes of victims and criminal justice peisonnel. Ifvictims believe that tape trials can be won. that they wjllbe supported within the criminal justice system and thatthe experience of trial is not ys crippling as portrayed ontelevision, then, perhaps, there will be more reporting. Ithe police realize that the prosecutor s office will takedifficult cases to trial and win, ihen they mov he moreencouraged to thoroughly 111%e-sue:ate and the Lases that

were previously considered mareitial. it prosecutorsthemselves see rape cases as challenging trial , (d t al can he

won, then perhaps more cases will he takenen io !Hal andmore convictions will be canted

Most experienced Itr.a. attoine,, the

trial of a rape case to tae siendit..nal, different hornthe trial of any othei irial,n telony Itic , pie that theexperienced trial Jimmie, Lan try aiy, ,as L. it is simply amatter of presentine the cy !deux 1 teiii.thisistrue; but cenain eharaeteristics ot tape do pose specialproblems at trial that requite speLialp10,,ecolom eorisiderie

non.

7.1 Prior Sexual HistoryProsecutors generally agree nisei it es idcnkc ot the

victim's prior sexual history is admffled at Mal, it Callseriously damage the state's case. This evidence can heused to support the defendant's consent defense andsuggest that the victim's behavior contributed to her ownvictimization. Several state legislatures hayiispeeificallylimited the use of this evidence and have pros ided specialprocedures to test its admissihility: Other states still relyon common law traditions which also limit the admissthil,qv of this evidence. To some extent, how-eyer. all statesallow the admission of the yienin's prior sexual history Hicertain circumstances. The prosecutor must he .1a.a re of

the law regarding [Kis evidence as well as strategies toprohibit its use or minimize its impact if admitted.

Recent statutory schemes. There is great variety in thestatutory schemes that have been enacted to limit theadmission of the vi rim's prior sexual history. Somestatutes allow its use ly when it is relevant to the issue ofconsent. Other statute llow its use only if it is relevant tothe victim's eredibili Other states allow its use if it isrelevant," a to undefined. Still other states limit itsuse to explain the presence of semen, pregnancycordisease. It will take a number of years for the constitution-ality and scope of these restrictive provisions to be adjudi-cated. What is clear, however, is that legislatures haveinstituted statutory changes to limit the harrassment ofvictims at trial and to increase the possibility- of rapeconvictions.- ....-

There have been several problems with newly enactedstatutes. An Oregon statute, for example, has been inter-preted to limit the prosecutor in establishing that thevictim did not have sexual intercourse during the twenty-four hour period before the rape; such evidence could tiethe semen found in the post-rape .medical examinationdirectly to the defendant's act of intercourse. If the pros-ecutor does inquire about intercourse iportly before therape, he may open the door to extensive cross-

examination regarding prior sexual history in general.Mostitutes do not mention sexual acts subsequent to therape but their specificity on other issues suggests that suchevidence is admissible. Some of the evidentiary statutesare vague and fail to suggest specific admission criteria forthe judgr4 the statutes may only be aiehelpful or as harmfulas the (Amon law.

Many of.the new statutory schemes provide for elab-orate pre-triN proceedings at which the defense muste,:ablish the relevance of proposed evidence. These hear-ings are usually triggered by written motions which out-line the scope and importance of the evidence. If thedocuments successfully raise the issue, a full (ilsually incamera) evidentiary hearing is held to rule on the admissi-bility of the evidences. There has been elatively littlepractical experience with these evidentiary laws. Mostprosecutors in those states where such legal changes haveoccurred report that there are very few request*for hear=ings. Either defense attorneys have had a difficult timespecifying and documenting prior sexual acts that arerelevant or, in certain cases, prosecutors have concededrelevance and the hearings have heen ;Amy ed II is

difficult to determine whether these statut will !lase any

41

imp_ act on cross-examination during preliminary hearingsor on defense attempts to question the victim throughdepositions or interrogatories. -

Some prosecutors hove expressed concern that theelaborate procedures designed to screen out prior sexualhistory information may have the opposite effect. Underthe common law in many states, specific acts of priorsexuality were excluded if such acts were committed withanyone but the defendant. The langu-age of the case lawwas quite strong and often sufficed to limit admissibilityof the evidence. The new procedures work to legitimizethe use of such evidence if the defendant follows thespecified procedural requirements. It ma, become moredifficult to reverse the trial judge's ruling if the evidencehas been carefully considered pursuant to the statute 4

Since the evidence is so critical to the jury's ,,u_1 ginept

of the case, the prosecutor must be prepared to respond toany attempts to have the evidence declared admissibleSeveral steps are possible ( I ) The prosecutot should toiccthe defendant to be specific with regard to the evidence heseeks to be ruled upon and its feletanye to the Ilurge

Vague innuendoes OF CIdtili., (ha( 111C1J)

puNNIt11111, at leic%01k 101 t cilm.,,11 (U eteit

warrant the hcaririg to detelinti..= I he

fuoseeutot Would gatitel Indications ofintent tit statutes through ie.tad, of Icgrslat,tt debatecommittee bearings. and pabh, state.ar ins lobbsistsand Me t,scrnt7r -= which he can oial ,agt,,lielits andInlets to establish the cleat Aced 011.1 at the actslegislation (3) The plosecupal .tiovad have picpatedstandard filet which suliin lair the tiditka.allay, exclusion, at such Qk.ljelti_c 011,1 dc.1011A1-0,-, 1,11W

the 111110 I he

last Can lie ,L.0,1clociacd h the aktiociott lakt,

ley ievv. commentaties -which have le, doi_tillIC.Itcd

!IL:111,01,AI ticHul, iii rill ,111A 4)

Idtk,I,11110cit v,k011C11 atawt

ill possiMiv ot alnico, inlet\It the detendant's rotation, to .,1!,, the , is

dented, then It Is important that the prosecutor carefullyprepare a written order which summarizes the coolt sfindings of fact and conclusions ,II boa I he ,,,der shouldstate the exact evidence excluded as well as prohibit anyinnuendo or reference to such e !deuce t ,netul dearthmay deter a skillful defense counsel wan attempting toctrcurm:ent the cow( s holdliie A elude e valople i,t ',Ok'teChnique,, 'night invoke detente attohie) vvh, asks thevictim it she is married and then asks it she has anychildren White these questions may be iniloc tabu, on theirlace. it the answel .iii the tuilflei .110 011,I (11C

latter is the defense max have raised suggestionstit -mseultv without colltionting the issue duectl

The written ()Wei prepaied hs this state divatici put thc...I _1 attorney on notice that i,eithel ttr rt nor the

4 Z

prosecutor will allowiinv reference to the sexual history ofthe victim. All panics should know -which questions willand will not be allowed in advance of their being asked.Even if the objection to an improper question is sustained,the very asking of the question may do significant dam-age A hint that promiscuity is being covered up by theobjection may be more harmful than the exposure of thefacts themselves. The limits of admissible evidence musttherefore be established outside the presence of the jury,before the issue can be raised in trial.

Practice under the common lain. In those states inwhich case law provides the basis for limiting the admis-sion of prior sexual history, prosecutors often file motionsin limine. These motions, usually heard at the beginningof the trial, request orders from the coup to limit the use ofsuch evidence during the trial. The purpose of such a[notion is to force a ruling on the issue before it can beraised in front of the jury. The motion should be writtenand accompanied by an affidavit outlining the specificevidence sought to be excluded. The motion should statethat such evidence is irrelevant and its use would beprejudicial to the state's case. In addition, the motionshould stress that the ruling should be made in advance oftrial so that the Jury will not even be aware of the issue Anexample sit such a motion is included in the Appendix tothis chow'

I he danger tit such a motion is that is forces the state tospe,,a) what evidence it seeks to exclude. Specific evi-dence may be revealed that the defense is not aware of atthe same lime that the motion signals the state's vulnera-bility oil the issue. The prosecutor should assume that itthe et idence is damaging it must be disclosed and that thedefendant should already be aware at it The purpose ofthe motion is control its use by aggressively demonstratlug its inadmissibility.

Some trial courts will ntit lid oil motions In lrrrrinr untilii,C issue arises dining the trial Even it the court reservesits iuling lilt the motion, bQwev el, the court may requirethat at the appropriate time the detense counsel make antitter of proof rather than ask the question in front of theJuly III general the prosecutor's motion will alerteve') one to the problem and will thereby ensure scrutiny-f the issue when n does arise

Lven in those states which have hearings prescribed bystatute to consider such evtdence, motions in limine can beused l hese motions usually seek orders which go beyondthe e-idpeewyroposed for admission by the defendantThey further insure that all related evidentiary issues areresolved before the trial begins.

able et hien, e r,f prior ,se hi ry. There arcases where evidence of the victim's prim sexual historyIII be admitted Either ifie prosecutor has c8nc de its

lcic ante or the mdge has lined over state otij5, in thatthe evidence is admissible In either case the TrOSeCUlOr

A

hetherterintreiduceit sion by the defends.

[f tbe- prUWar introduces the evidence himself, hecan control its presentation. He can begin in the voir direof-the jury by asking if the victim's prior semisl history,for example conviction for prostitution, will influencethe Jury's delibetation. He can ask the jury to promise thatthey will not consider the prostitution conviction except asspecified by the court. In opening argument or in directexamination, of the victim he, might then refer to theconviction as a misdhineanor thus attempting tominimize its importance. The general strategy of theprosecutor is to take the issue away from the defense, toshow the jury that he is not hiding anything, and to controlthe use of the evidence in a way that mini mizes its impact.

If prior sexual history evidence is offered or exploitedby the defense, it can often be effectively neutralized bythe prosecutor in argument; in fact, some prosecutorsassert that such evidence an be used to the state'sadvantage. By reference to d ense use of h evidence,the prosecutor can suggest an empt to align the rapevictim. Especially if the jury has t uenced by recentpublic concern for rape, such argument can demonstratethe weakness of the defense case by suggesting the greatlengths to which the defense must g0 in order to avoid aconviction.

7.2 Jury SelectionMost prosecutors agree that the process of jiff*, selec-

tion is critical to the success of the state's case. Thisprocess includes not only selecting the individuals whowill hear the case but preparing them for their delibera-tions. It is especially important in rape cases wherepersonal attitudes toward rape, sexuality and women areso important to the jury's perception of the facts.

The-impact of jury attitudes in the deliberation of rape'

eases has been documented in KaJvin and Zeisel's TheAmerican Jury.5 The authors studied 106 fnAle rapecases which involved arult victims. The data suggest thatjuror attitudes toward the behavior of the victim werecritical factors in the jury's determination of guilt. Theauthors conclude:

The law recognizes only one issue i n rape casesother than the fact of inte rcourse: Whether therewas consent at the Moment of intercourse. Thejury, as we came to see it . does not limit itself tothis one issue: it goes on to weigh the woman'sconduct in the prior hi story of the affair. It

closely, and often harshly scrutinizesthe fernelecomplainant and is moved to be lenient wit tacticdefendant whenever there are suggestions' ofcont ributory behavior on her part. the jury chooses to redefine the crime ofrape in terms of its notions of (the victim's)assumption of risk, Where it perceives an as-

5r

utrtphian -0f risk tbejury,4fgivert theerptiort ef----:-finding the defendant guilty of a lesser crime,will frequently-do so. It is thtfs saying not thatthe defendant has done nothing, but rather thatwhat be has done does not deserve the distinc-tive opprobrium of rape. If feted to choose inthese cases between total acquittal and findingthe defendant guilty of rape, the jury will usu-ally choose acflaittal as the leaser-evil.'

The job of the trial attorney is to test jury attitudes to-ward rape and then, to choose those jurors who are most-likely to vote for conviction.

Voir Dire . During the questioning of the jury panel, theprosecutor has an opportunity to introduce himself,explore jury prejud e and educate the jury about the factsof his case and nature of the crime charged. Since.jurors appear to have strong opinions regarding rape, it isimportant that the prosecutor identify unacceptablejurors,whom he will ask to have excused, and neutralize theprejudice among the remaining jurors. The prosecutorspurveyed as part of this study generally elieved that jurybias was inevitable in rape cases, but that the voir dire canprovide the prosecutor with a means to contrbl its impact.

Prosecutors from various jurisdictions were asked torecount those questions they generally asked in rapecases. Though the responses varied greatly, the questionscan be grouped into three categories: (1) questions whichexplore general attitudes toward rape, (2) questions whichexplore the background k the juror, and (3) questionswhich relate to the specific issues of the state's case.

Questions which explore general altitudes towardrape. These questions were used to identify jurors whohad conservative, judgmental attituides toward sexualityand might be unsympathetic to a rape victim of less thanchaste character. Such jurors might impose their-valuesand life styles upon the victim and blame her for theassault. Prosecutors used these types of questions mostfrequently in cases where consent was the anticipateddefense. Even in cases where consent was not an issue,however, prosecutors wished to identify those jurors whocould believe that a rape victim had "asked for it,' ' simplyby being in the wrong place at the wrong time. Thetechnique suggested by several prosecutors involved asequence of questions. The initial inquiry would attemptto explore potential prejudice while the remaining ques-tions were intended to force the juries to be fair despitetheir biases.

The initial questions were often open-ended, encourag-ing the jurors to talk and %veal their attitudes. Examplesinclude:

Have you watched any television shows orread any magazines about r What werethey about? Do you agree o disagree withthose ideas?

43

4.---*1iSitnasittawasintieupiniene about the crime ofrape?Have you ever been is a serious discussionabout the crime of rape? What was discussed?

What position do you take on. those issues?Do you associate the crime of rape with aparticular type of rapist? Victim? Sequence ofevents?Do yen agree with the notion that -a womancannot be raped "?

Prosecutors then followed with leading questions thatencouraged the jurors to put aside their biases and beobjective in their deliberation. Examples of these ques-tions include:

You understand, do you not, that you are onlyto consider the evidence presented to you attrial, and ncit what ybu may remember about atelevision program or magazine article?

ti You understand, do you not, that even if youdisagree with the life styles of either thedefendant or the victim, you are not to judgethe case because of your biases, but upon thefacts of the case?Do yo11 understand that even if you disagreewith the law as outlined by the court, youmust follow that law?

inally the prosecutors would exact a promise from thers to obey the law as given by, the judge and to

deliberate only with reference to the evidence. Thesequestions might, include the following:

Will you promise me and the defense counselthat you will put your attitudes toward lifestyle . and sexuality aside and take a fair,unbiased look at the evidence?It is easy to be a Monday morning quarterbackand say here is what I would have done in thatsituation. Can you promise that you will putaside yourpe rsonal opinions and consider theevidence as presented'?You may find that you do not like the defend-ant or even the victim in this case; nonethe-less, can you promise both the defendant andthe state that you will put aside your personaljudgment and consider the case on its facts?

The prosecutors suggested that the value of thesepromise questions could be realized in rebuttal argu-

ment. For example, in arguing a case which involved aeofisent defense, the prosecutor might assert:

Now you may not have liked the people thattestified in this trial, and you may have haddifficulty understanding why the victim didwhat she did, because you would never havedone that. But what you might have done or notdone is unimportant, and you cannot considerit. Each of you promised me before this trialbegan that you would not judge these people'slife styles. You promised that you would putaside your personal biases. It is not enough tosay that the victim was naive )01i sh The

question is v'eattaherapedand tomust look at the facts .

The sequence of ,questions allows the prosecutor toidentify a few candid jurors whoie attitudes make diemunacceptable for the case. For the remainder of the panel,these questions should suggest the existence of prejudicein, everyone and the need to place such hisses aside. Theultimate goal of the prosecutor is to have the jurors bendover backwards to be fair to the victim.

b. Questions which explore the background of thejuror. These arc questions which pro utors ask in virtu-ally every felony case. They include in iries into educa-tional background, occupation, hobbi s, communitygroups, subscriptions and family ties. ne particularsubject mentioned ofson by prosecutors concerns thejuror's experience with crime and the criminal justicesystem. Some of these questions include the following:

Have you or a member of your family everbeen the victim of a crime?

you know anyone who hasteen the victimof a serious felony?Have you ever known anyone vino has btenthe victim of a rape?Have you ever known anyone who has beenaccused of rap_ e?Do you have any friends or relatives in lawenforcement?Have you ever had any bad experiences with alaw enforcement officer?

These questions may reveal that the juror has had anegative experience with law enforcement or has had afriend or relative accused of rape. In addition, they mayreveal a predisposition to identify with the victim of acrime. The goal of these questions is obviously to learn asmuch as possible about the jurors in °Oct- to predict howthey will perceive and weigh the eviiance.

c. Questions ,which elate to specific afaeS in theslate's case. Perhaps the most important questions thatcan be asked in voir dire relate to problem areas in theprosecutor's case. The orosecutorAay be able to exposeweaknesses in a manner that steals the issue from thedefense and Minimizes its impact. Under the guise 'ofexploring possible prejudice the prosecutor hopes to pre-sent his case in a sympathetic light.

Several prosecutors who were interviewed sought toalert the jury to the lack of e vidence in their rape cases in amanner that made this weakness understandable. Ratherthan have the jury speculate on the absence of additionalevidence, these prosecutors believed that jurors who werealerted to the problem would pay more attention to evi-dence that was presented. Examples of these questions

ude:

Do you understand that rape is a crime thatoccurs in the darkness of night, usually with-out witness and never in front of a crowd?

If the law instructs you that you can convictthe defendant even on the testimony of oneNg/linen, will you be able to follow that law ifyou believe that witness beyond a reasonabledoubt?

latter question forces the juror to consider a cthat is weaker thus the prosecutor may present. If the Odeintroduces three or four ,viitnesses the jury should beJreminded in rebuttal that they agreed to convict on thetestimotty of only one_ .

Many prosecutors believe that juries have particulardifficulty with cases in which the victim offers littleresistance. These prosecutors approach the- issue throughvoir dire in a nurrt5er of different ways:

Would you expect the victim of a rape to riskdeath or hospitalization in order to resist asexual attack?

Of the law instructs you that resistance is notrequired under all circumstances; can youpromise me that you will follow that law?Even if you personally disagree with that law?Under what circumstances can you foreseethat resistance would be foolhardy anddangerous?Have you ever been in a situation where aperson of greater physical size and strengthhas threatened to kill you unless you did whathe said? Are xou able to imagine what thatwould be like?

Once again the prosecutor can ask the question in anexaggerated fashion so that thejury will agree with him ina situation more troublesome, than the one he hopes topresent at trial. He can later remind them that they werewilling to convict if there was no resistance; in the case hepresented the victim did indeed offer significant resist-ance.

If the victim in the case acted in an unusual way, theprosecutor might raise this issue in voir dire by suggestingthat what the victim did was perfectly understandablegiven the circumstances. Prosecutors suggested the fol-lowing questions in these circumstances:

Have you ever heard about incidents wherepeople run back into their bottling home toretrieve a piece of costume jewelry or a favor-ite dress? Can you understand what fear andshock can do to one's common sense?I f the partie s to this ease did t hi ngs t hat you nthe quiet cairn of the courtroom, find strangeor Foolish, could you try to place yourself intheir predicament to understand why theymay have done what they did?

Some prosecutors fear juror reaction to the particularlife style of certain victims They suggest exploring t heissue in the following ways: %_)

is You will learn that the victim in this caseworks as a cocktail waitress is there sonic-thing about the nature of that joh that even

now makes you biased against this woman?Do you think a cocktail waitress cart be raped?Is thefe anything about being a cocktail wait-ress that makes one less worthy of the protec-tion of the law?Can you promise the state and this court thatyour personal opinions, no matter what theyare regarding the parties in this cue, will notinterfere with your deliberation on the facts?

Occasionally, the prosecutor will isolate one importantcharacteristic of the case, such as hitchhiking :.

Do you know of anyone in your family whohitchhikes?Have you ever hitchhiked?If you were hitchhiking and were robbed,would you say that you were 'asking for it "?Do you think that the robber would not beguilty of robbery just because you were hitch-hiking?

Where the jury composition includes several minoritymembers, prosecutors have attempted to utilize this fact totheir advantage in the following manner:

Do you believe that all citizens have basic civilrights that must be protected by law? Would youagree that this is true regardless of age, religion,race or wealth? Would you also agree that awoman has a civil right' to be free from havingsexual intercourse unless she is a willing part-ner?

Obviously there is a great variety in the potential stylesand content of voir dire questions. Depending upon locallaw, the indulgence of the trial judge, the facts of the easeand the personality of the prosecutor, the voir dire exami-nation can be an important opportunity to identify prob-lem jurors and introduce important aspects of the case.

Choosing particular jurors. Prosecutors were askedwhat types of jurors they wanted to have sit on rape trials.While one would expect that criteria for selection wouldvary as a function of the facts of the rape case, there was aremarkable lack of unanimity even when a constant set of

'facts was assumed.Many prosecutors did not distinguish between jurors

selected for rape cases and jurors selected for otherfelonies. These prosecutors sought jurors who were pillarsof the community ----who had a long job tenure, a home, arnortgage,_a family or any ot her c haracte ristics suggestingthey were interested in protecting their own achievementfrom those who would not abide by the law.

Other prosecutors were concerned that these types ofjurors would be unable to identify with many rape victims,and as a result, these-prosecutors distinguished most rapecases from other felonies. Middle-class and middle-agedjurors, who would be acceptable in must other felonycases, might judge the victim.barshly for hitchhiking,going uneso mei] II, a Loom of ow limp. a mon to herapartment. 01 particular concern were middle-aged

45

women, who might be extremely critical of women.The possibility that these women might ju4 victims bytheir own standards of conduct and caution vas thought topose a considerable risk if the evidence of resistance wasminimal and the victim's actions were interpreted assuggestive. These prosecutors preferred younger, moreliberated women as jurors on rape cases even though thesesame women would be unacceptable on other cases, suchas those which involved certain drugs.

Generally, prosecutors sought jurors who would iden-ify more readily with the victim than the defendant.

Young men, if the facts of the case were not brutal, mightidentify with the defendant. In contrast, -older men mightbe more interested in the proper behavior of young menand display's paternal concern for the victim. Men andwomen with female children of the victim's age wereexpected to be good jurors if the victim's activities wereconsistent with what one might expect from atlaughter.On the other hand, jurors with male children were lessacceptable since they might be more inch tied toe xc use t he

behavior of the defendant.The preferred racial composition of the jury was depend-

ent upon the race of the victim and the defendant. Wherethe parties were of different races. prosecutors believed itwas unwise to have many jurors of the defendant's raceunless the defendant's racial connection to the jurorscould be overcome. If the defendant's actions or back.

=ground was significantly foreign to the juror, then theracial similarity was believed to be less imponant.

Prosecutors generally sought jurors with whom theyfelt comfortable. Such jurors may more easily identifywith the prosecutor and the victim than with the defendantand, possibly, the del rfciattorney.

Many prosecutors agreed that it was difficult, if notimpossible, to accurately predict jury sentiment based onnoir dire. They suggested that the prosecutor shouldattempt to select stable, respectable citizens with whomthe prosecutor could easily communicate If the case wasconvincing to the prosecutor, then the prosecutor shouldbe able to convince the jury.

Unfortunately, there are very little data available onwhat kinds of jurors are best for (ape cases. While therehas been some research on jury sel'eetion in political"trials, it is questionable whether this has general applica-bility to all criminal cases or to rape cases in panicular.While prosecutors were quite will ing to theorize on theirnotions of jury selection, most were quick to disclaim anyscientific basis to their beliefs

7.3 Trial StrategyThe actual presentation of the state's evidence and the

tone and content of the prosecutor's arguments followI Non the development of a Ikon. of the case This theoryis the -story line- of the case, into which every piece of

46

evidence should fit. It is the conceptual framework thatunites the evidence into a consistent *mid convincingportrayal of events. The theory of the case is oftenformulated in anticipation of defense argumint, for thestate's case, especially in rape cases, can be tailored towhat the defense will allege. This chapter explores trialstrategy by reference to possible defenses and their relatedtheories of the case.

Consent defense. The case in which consent is raised asa defense focuses on whether the victim voluntarily andwithin)/ engaged in sexual intercourse. (See discussionof the 'e&sent defense in Chapter III.) The identity df theparties and the fact that penetration occurred are usuallyconceded. The victim contends that she was forced toengage in intercourse while the defendant asserts that thevictim was a willing partner. The prosecutor's strategyshould be to demonstrate, through evidence and argu-menothat the victim's story is more believable than thatof the defendant. To achieve this goal, he can employseveral strategies.

Since the victim must suffer humiliation and invasionof privacy to ptrrsue prosecution, the prosecutor shouldpoint out how unlikely it is that the victim fabricated herstory. The prosecutor should take advantage of the mediaportrayal of victim harassrnent and demonstrate the ordealthat the victim has gone through. Not only should thevictim testify to thererrible details of the rape, but the juoishould be aware that she has been forced to tell this samestory to strangers in the police department, the localhospital, the prosecutor's office and various public court-rooms_ The prosecutor may go so far as to suggest that if

,the victim wanted to "get '' thethe defen there are surelyeasier wayS. The prosecutor should not s the details ofeither the rape or the reporting process; th jury shouldconsider itself obligated to the victim for the suffering thiscrime has caused her.

Since credibility is central to the case, the prosecutorshould portray the victim as honest, candid and forthrightwhile the defendant is cast as evasive, inconsistent anduntruthful. The consistency oft he victim's story should beemphasized. Even though she has been forced to repeatthe story of the rape numerous times, it has remained

.4basically the same. In contrast, any changes in the defen-dant 's should be e xploi ted. The smallest fabrication

..-

on the 'peripheral poi nt can stand for the propositionthat if he would lie about sOrnething insignificant, surelyhe cannot be trusted on the central issues of the case. Theprosecutor can argue that while the victim has little to gainand much to suffer by the defendant's conviction, thedefendant, on trial for a serious crime, has every reasonaoshade the details of the rape If the defendant has anadmissible criminal record, this should obviously be em-phasized

The defendant should b"ecatt as Ile' agg and the

victim- as hit:prey. If the victim used poor judgment ordisplayed naivete, this can be turrsed to the state's advan-tage. The prosecutor can suggest the victim's vinnerabil-ity in contrast to the defendant's willingness to takeadvantage .of her.

The ultimate success of the case may depend upon-thepresseetitor'S ability to coin borate the victim's story. Anyevidence suggesting the defendant's use of force eitherdirectly, through injury or torn clothing, or indirectly,, byindicatiqns of the victim's. emotional state immediatelyafter the 'ape, can be critical. Photographs and illustra-tions can suggest how unpleasant the scene of intercoursewas, while a map might demonstrate the availability of amore congenial setting for consensual intercourse.

The prosecutor should plan the entire case presentationwith goals and strategies such as these in mind. Votr direcould explore issues of consent and resistance while theopening argument might stress the internal logic of thevictim's story and how it is corroborated in every im-portant detail by numerous witnesses. The witnessesthemselves might then be presented in a_ parade, eachcontributing a little more to the details surrouriding therape. This should increase jury e xpectarions regarding thevictim and mark her testimony at the end of the state' s caseas the climax of the trial. It is often beneficial to have thevictim on the witness stand at the end of direct testimony,just before the court recesses for the day. This may leave afavorable, lasting impression with the jury. If the victim isexpected to be quiegweak, she might he introduced as thefirst witness with the remainder of the case devised toshow how her story is corroborated.

All of these steps should lead to closing argument andrebuttal. Many trial attorneys suggest that final argumentsshould be the first pan of the trial that are prepared; the [Vs(of the trial acts to provide the foundation for these argu-ments, in the consent case. this is particularly true becausejury prejudice and the usual plausibility of the defense aredifficult factors to overcome. The prosecutor must try toshape jury attitudes through the presentation of evidenceand persuasive argument from the beginning to the end oftrial.

Identific(th opt defense'. The primary strategy in an iden-tifieatieer case is to bolster and corroborate the victim'sin -court identification of the defendant. I See discussion of:identification defense in Chapter III. I This can be donethrough direct examination of the victim. testimony ofcorroborating witnesses and effect ive argument.

Direct examination of the viCtini in an identificationea tie is obviously critical. Great attention should he paidnot only to the victim's description of the defendant at thetime of the rape but to the conditions under which thevictim observed the defendant. The lighting, distance,perspective and time involved should all be presented insuch a way as to suggest the possi briny for accurate

obs'irvation. This can be done by breaking doWri theincident into its component. parts. The victim should notonly describe the appearance of the defendant, but alsocarefully destribe his actions and movements, so that thelength of the observation appears extended. Short timespans can be exaggerated by the standard device of theprosecutor looking at his watch for the ten or fifteenseconds mentioned. In the quiet courtroom with the bru-tality of a rape in everyone's mind, time can appear to;move very slowly: If the scene ,of the observationchanged, each new distance, lighting, and perspectiveshould be reviewed. It should appear thatihe vicmade a series of independent observationi, eachins the last and 'clarifying the next.

In addition to describing the rape itself, thesheuld spend a considerable remount of time inexamination describing the -subsequent process otification conducted by the police. The nature ofphotographic montage and the range of choice available tothe victim shouldbe explored. She should carefully articu-late which features in the photograph convinced her thatthis was the t'apist. Of course, these should be the samefeatures that she prey lively described when depicting theevents of the rape itself. This process should be repeated.with reference to the corporal lineup. The photographicmontage and lineup photographs can be submitted ievidence; normally they demonstrate that the ideptffica,Lion was not influenced by the police. The purpo of thisrepetition and concern for detail is to em hasize thep

victim' s certainty concerning the defendant's identi flea-_ This should obviously be climaxed with the victim

decisively pointing to thedefendant as the rigan whosapedher.

Police witnesses can be used to corroborde the victim'sdescription of the identification techniques/ By outliningthe procedures regarding photcsgraphice4and corporallineups the police can demonstrate the'professionalismand neutrality of the process. Furthe 'ore, they can reportthe reaction of the victim when she id ntified the suspect.Since this does not go to the: 'truth" o_ the identification,it may be admissible to show ttat an idemification wasmade, Police witnesses can also be used to show othdrmethods of identi fic ati on were employed. Juries may have"corne tee expect identification to be proved by t he matchingof fingerprints, lithe police have not co `sidered this an-astute defense attorney may suggest it to ern. The policeshould be able to explain how they a tempted to findfingerprints and other evidence of ident neation or whythat approach was impossible. The absence of such-evi-dence should not provide a basis for jury speculation.

Any evidence which corroborates the victim's identifi-cation is critical. This could include testimony iti<thedefendant was in the area at the time of the incident. Itcould include facts related by the victim that only a person

47

who saw the defendant unclothed would know. Theextraordinary proximity of the victim and her assailant in arape case should be exploited.

Diagrams, maps and photognphs can be usefullyemployed to demonstrate the victim's opportunity toobserve the defendant. This not only will clarify herpresentation of the eventsa but special features such asexact distances, lines of sight and light sources can bemarked for emphasis.

A common defense tactic inidentification is to d well onthe initial description of the serspect,-acci point out how thedescription does not match the defendant. Either detailswere omitted which appear significant, or details wereadded that do not correspond to the defendant. Theprosecutor can effectively counter these points in argu-ment by distinguishing between "description and"identification. Description is inevitably vague andinexact, for it requires the transformation of a visualimage into words. Inaccuracy of description does notmean an inaccurate Went ifiCation. The latter is the recog-nition that the visual impression matches the personidentified.

One prosecutor described a particularly successfultechnijue to distinguish description trial' identification inthe juror.* minds. In argument, he asks the.jorors to lookdirectly at him but to describe to themselves what theperson sitting next to them looked like the day het-ere. Theprosecutor might ask what the color of the juror's blouseorthirt had been, ifthat juror had worn any jewelry. and toestimate the juror's height arid weight. obviously theexercise would he quite difficult. The prosecutor then asksthe jurors whether if they saw that person again, theywould be able to recognise him or her. The point is madethat descriptions are fraught with error, especially underthe unrealistic scrutiny of cross-examination.

If tht defendant does not look like a rapist. the. prosecutor should he sensitive to possihle jury reaction.This could be explored in vrlir dire where jurors could heinstructed that rapists exhibit tew earl nu ai characteristics'and may have normal sexual outlets. Such handling canundermine a defendant who is attractive and who mayeven have a wife, chitdrertfir a girlfriend in t he coon room.In a consent case. the defendant 's iinpresske demeanormay he exploited to suggest how he coo aye influencedthe victim to associate with him prior ioi the rape

If there is an alibi in contunctinn with the normalidentification issues. it is iniporta in that the proseeirtiawell prepared. Each defense mines- should be toterviewed prior to trial and us 101 1(1112',, present so

that inconsistent statements inside at Irial c,ifl 1-)t: 1111

pc ached t trial. the al ihi us a ream! , should he s,_liledfrom the courtroom w he n tint b.: sit 1)1 lig and liruhihucil , IS

much .is Ili- .111

hose testified. I he truss -e

should emphasize bias and incepsistencies. Their rela-tioaship to the defendant should hi carefully explored.While their memory,of such obvious details as the timewhen they were with the defendant may be perfect, theymany not he able to rwember more peripheral details suchas where everyone(sat in the room, what words werespoken or what clothing was being worn. If the prosecutorasks each witness to diagram the seating. arrangement orquote the words of the defendant, dramatic contradictionsmay appear. In addition, each -Witness .could be askedwhen he first learned that the defendant had hee n chargedwith rape when he first came forward wit is story and towhom it was told. It can then be emphasize :vin Ionised the police or the prosecutor that the man chargedwith rape was with him at the time of the crime and socould not have committed it.

Though identification is the key eleme nt in the case andpenetration may be conceded, the prosecutor should stillexplore the rape in all of its terrible details. Inevitably thedefense will attempt to brush this aspect aside by conced-ing the horrible nature of the assault. The prosecutorshould not succinnb to the temptation of glossing overthese facts lightly, for he must provide a reason. for thejury tic convict. He must try to create a situation in whichthe 'PI ry desperately wants to convict, and then demon-strate that all the evidence points directly tothe defendant.

Parchiamic nse. The psychiatric defense oftenarises in cases where consent and identification defensesare ant ikely. given the strength of the state's case. (Seediscuss ion of psychiatric defense in Chapter Depend-ing on state law, the psychiatric defense can represent afavorable option for the defendant. The defendant mightprefer a verdict of not guilty by reason of insanity" to aconviction tor rape. for this may allow him to serve ashorter sentence in a hospital setting. The prosecutor'sresponse to this defense is virtually the same in anyfelony.

The prosecutor should order his case from the begin-ning to suggest that the defendant has some advantage inpie ad ine an insanity defense and that he actual ly. calcu-lated the entire come. The jury can he questioned duringlaat dire about the legal requirements of insanity andabout their hias for and against psychiatric testimony. Thepresentation of the state's evidence and the prosecutor'sargument,: should erriphasi7e the detailed planning of theLamle, the detendant's consciousness of guilt and theappropriateness generatly the de tendont language and;iet ions

The Ls ros,-e \animation ot the state ro, ch tat nst is USWAIR the Le% lu the success of the stale s case. I he

loit,,sing 1,, a moat) of the general ads cc given byl'etcl K osNtfis, Deputy District Attorney fur Ventura

reetelim the i141111111a(1011 of

hr LICIC liNC if svc 111.1111%R

the psychiatristn es of all

q may

ion which the psycDetermine t to int of psychiatristso the state may establish that these assump-dot* me ihcottee. note may, for example,be contradicted by evidence the, state hasalready introduced or even by the material thepsych 'atrist his in his possession.

mine what the psychiatrist charges forrvicei add his rate per hour. the hourly

end total fee may demonstrate that he has.- spent little time preparing outside of the

courtroom.Attempt to demonstrate that the psychiatristdid rat investigate the case and prepare thor-oughdocuwhigate

Reference in the written material tonts or to tapes might lead to questionsveal that the doctor did not investi-

ny primary sources.The rosecutor May be a ble to suggest that thepsychiatrist is biased toward the defense. If

. '-the psychiatrist can acknowledge a long list ofcams in which he testified on behalf of thedefAse, he might be asked in how many'cases he has testified 'for the state.If the doctor testifies that,he determined notendencies towar8 sexual deviation on thepart of the defendant after interviewing thedefendant, the psychiatrist tan be asked howhe -can draw this conclusion after only onehour under normal interview conditions.°

In argument, the prosecutor's strategy should be toconsider the inherent persuasive power of the defendant'sexpert witness and within ethical bounds suggest thepossible motives for the defendant to seek an aoccitiittal byreason of insanity.° It can be emphasized to the jury thatthere are only two people who can accurately report thedefendant's condition at the time of the rape. The defen-dant may have an interest in alleging his insanity. Thevictim, however, has no interest in the outcome withregard to this issue.

Once again, despite defense concessions,- the full hor-rhr of the rape should not be minimized. The trial shouldnot be allowed to focus entirely on the defendant. The jurymust be forced to consider the ordeal of the victim as theyreach a verdict.

Character witnesses fire rite de Ise. The defendantmay present character testimony, where admissible, todemonstrate his good reputation in the community. Theprosecutor's response is to undermine the impact andrelevance of the testimony through cross-examination.The prosecu can explore with the witnesses the com-munity i in wh this reputation developed . Clearly a goodreputation in the church community may not be relevant tothe defendant's sexual habits. The prosecutor can subtlyinquire into the training that the witnesses have had which

odd enable them tb conclude that the defendant is not arapist. Clearly the witness's relationship to the defendantand their conversations regarding the case can bescrutinized. Finally, the.vritnesses can be cpnfronted withsome of the facts. of the. case. Often the yrienesses areunfamiliar with the details of the assault' and can be askedif knowledge of certain filets-woad have inauenced theiropinions regarding the defendant's character. If tbe ques-tions are carefully phrased the witness will either say

_ and alinast becpme a state's witness:or "no" andthereby suggest a strong bias.

The defendant _ The key defense witness in many crimi-nal trials is the defendant himself. In rape cases, espe-_cially where consent is an issue, he will often seek .to pithis word against that of the victim. The defendant'stestimony can be thetsteongest part of the state' sCase tmcmss-esarnmation the prosecutor can demonstrate thedefendant's fabricatioq of his story.

In trials that involve consent; the defendant's testimonymay suggesrthe same condescension and disdain for.thevictim that he exhibited at, the time of the crime. Histestimony may be an-attempt to establish his superiorityover the victim in a contest before the jury. One tactic thata skilled prosecutor might employ in cross-examination isto force the defendant to amplify on his distorted sense ofsuperiority. The prosecutor could explore in excruciatingdetail, the various techniques that the defendant employedto "seduce" the victim. Such a recital will often alienatethe average juror: for the defendant can be portrayed as acalculating egotist with a callous disregard for his prey.As a general matter, the prosecutor should be aware of thevarious types of rapists that have been classified as a resultof clinical studies. This may help the prosecutor to under-stand the nature of the crime and the defendant he willhave to interrogate."

Generally, the examination of the defendant in rapecases will be similar to cross-examination in other cross-cases. This is especially true if the defense involvesidentification or psychiatric issues. The prosecutor mustemphasize the improbability of the defendant's story andhis attempts to evade the truth. The prosecutor shouldexploit inconsistencies in the defendant's stories, admis-sions or actions which suggest a consciousness of guilt,sue s to deceive the victim or the police, and priorconvictions. In the context of cross-examination thisusually requires that each basic fact be clearly and force-fully exposed; the conclusions to be drawn should awaitargument.

The prosecutor should be sensitive to the limits ofcross-examination as well. If the defendant is a strong.well-prepared witness, he may be able to reiterate orexpand upon hi% direct testimony. In the extreme case, theWeak defendant may arouse jury sympathy. In preparing

cross-e xarninat ion the prosecutor should be aware t hat

49

jury expects a vigorous attack upon the defendant. Theof the cross nation may very well determineome ottkease.

. Closing argmhtiro. The prosecutor's closing argument,and rebuttal will undoubtedly reflect his personal style.Protecuton who were interviewed suggested a number ofpoints that are traditionally emphasized at the end of thetrial. The jury should have no doubt about the prosecutor'sopinion of the defendant's guilt or the strength of thestate's case. While the prosecutor cannot render his opin-ion, his tone should clearly sugge it confidence in the case.if the jury believes that-the prosefutor has-any doubts,then there is no incentive to convict. The prosecutorshould-recognize and deal directly with ttie myths about

rape that may influence jury perceptions. By acknowledg-ing these jury" concerns, identifying them as myths andsuggesting their inapplicability to his case, the prosecutorwill provide the 'jury with a means to overcome itsprejudice. Several prosecutors urged that the -ju,ry bereminded of its responsibilities during argument. Thejury, as the conscience: f the community, ha. an obliga-tion to reach a verdict.- It is the jury, and not the police,wlio ultimately must enforce the criminal law. These

\rosecutors also emphasized that the rebuttal argumentshould stress the seriousness of the crime. In this way, theprosecutor can suggest that a guilty verdict will demon-strate the jury's concern for rape and its victims.

NOTES

' Of the 635 reported rapes in Seattle, Washington (1974) and Kansas

City, Missouri (1975) studied as part of this research, the police wereable to identify a suspect in 167 cases. Of these 167 cases, 121 werepresented to the prosecutor for filing. The prosecuser filed 86 cases; 45for rape or attempted rape. Of these 45 cases. 10 resulted in convictions -for rape or attempted rape. Only five of these convictions resulted from a

See Forcible Rope.' An Analysis of Within Ye Issues, published bythe National Institute of Law Enforcerhent and Criminal Justice, LawEnforcement Assistance AdmMistratiorkpubli shed as part of this project,Chapter RI.

This was the opinion of prosecutors in Alameda County, (0Al&nd),California, Kung County (Seattle). Washington and Wayne County,'(Detroit). Michigan.

This was the opinion among prosecutors in King County- (Seattle),Washington, though there were no cases cited in which this resultoccurred.

Ste Forcible Rape: An AntarriN 4Letoshalve ii sues, infra, or aselected bibliography of the relevant legal literature

"Harry K alv in, and Hans Zeisel, The .4 merican flier (Chicago,University of Chicago Press, 1966)

50

T Ibid., p. 249, 254.Peter Kossaris, "Trial Considerations ", Stow/ 4.isoulr; A Training

Program of the California District Attorney's Assocituion CaliforniaDistrict Attorney AssoCiation, 1975. Set Harlan M. viipulett, TheInsanity Defense in Criminal Trials (St. Paul, Minn: West Publishing

I65).See ABA Standards, The Prosecution Function, 6.1 (1971), Ad-

ministration of Criminal Justice, (American Bar Association, 1974),Standard 5.8.

See Murray L. Cohen. Ralph Garofalo, Richard Boucher andTheiaharris Sworn, "The, Psychology of Rapists". Seminars inPsychiatry. 3 (August, 1171) 301:3271 Walter Bromberg andBlizabeM Coyle, "Rape: A Compulsion to Destroy'', Medical Insight,22 (April, 197%4 prii. 21725: Fritz Henn, Martian Hersanic and RobertH V anderpealligorensic Psychiatry: firohles of Two Types of S exOffenders' ', AinerMon journal of Psychiatry 133 (1976), pp. 694-696;Gay Fisher and Ephraim Rivlin, "Psychological Needs of Rapists",British Journal of Criminology II (1971), pp. 182iI85; Asher Pacht andJames t. Cowden, "An Expiatory Study of Five Hundred Sex Offen-ders'', Criminal _halve and Behavior I ( 1974), pp. 13-20.

APPENDIX TO cHAPTE71 7t,

IN TIE SUPERIOR COURT OF THE STATE OFCOUNTY STATE OFPlaintiff, r NO

v. PLAINTIFF'S MOTION INJOHN DOE, MIME AND SUPPORTING

Defendant. AFFIDAVIT

FOR

. COMES NOW. ,Prosecuting Ancirney for

County by and through his deputy, , and moves the 'curtfor an order in limine prohibiting the defendant's attorney, the defendant,%nd any witness inhe above -entitled cause from inquiring of, referring to or,rnaking accusal ns in connectioni

= with any prior acts of misconduct by the prosecutrix and/or general reputai

ion for chastity.ao This motion is base.d do the records and files herein, the cittached supporting affidavit; and

the trial memorandum. .

and-says:That he is a deputy prosecuting attorney for County

and the (Ali' deputy in the above-entitled cause; that he is familiar with the records and filesherein; that the above-named defendant is charged with the crimes of rape and sodomyallegedly committed upon one ; that said victimwill he a witness for the State of ; that said victim is u44ttarnec

and has child; that your aftiant tuis discussed this (lase withMr_ _ the defindant's counsel; that during this conversationMr. suggested that the victim has a poor reputation for chastity; thatinfimw ation regarding t he victim' s prior acts or genera reputation for chastity is not relevantto h sent charge; that such information is so prejudicial that its suggestion wouldprecludd the plalthiff from receiving a fair trial; and that the 'use of s'uch information is

.

tontraWto the established law of the state of

By

Prosecuting Attorney

--7. -Deputy Prosecuting Attorney

ing first duly -.worn on -oath de

Plaintiff's [notion In limitie.and supporting affidavit --- I

Deputy Prosecuting Attorney

5 I

BED AND SWORN to before meday.of , 197

NOTARY PUBLIC in and for the stof , residing at

IN THE SUPERIOR COURT OF THE

STATE OF

v.JOHN DOE,

Defendant.

NO

ORDER IN UMINE

THIS MATTER coming on regularly to be heard before the undersigned judabove-entitled court upon the motion of the state of , plaintiff, for Niorder in limine precluding testimony concerning the pricir acts of misconduct br,the4prosecutrix and/or general reputation for chastity on behalf of the prosecutrix, and the court-being fully advised in the premises; now, therefore,

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that there shall bereference made to any unrelated prior acts of misconduct by the prosecutrix andhur to thegeneral reputation of the prosecutrix for chastity.

DONE IN OPEN COURT this _ day of , 197

Presented by:

Deputy Prosecuting Attorney

Copy received:

Attorney for Defendant

Order rn llmine

CHAPTER. '8 .SE

The sentencing of the guilty defendant represents thegrip] stage of a criminal case and perhaps its culmination.

aThe Underlying assumptions of prosecution come to l'and the offender shotdd be addressed. With the exceptionof the infratitierst aid, this is the most public part of the

icrimnal proceedings; the decisions to arrest, file chargesand negotiate a plea are all done without public scrutiny.At sentencing,The public can obServe, at least in part, howthe criminal justice system responds to the clinic of rape

The prosecutor's role at sentencing varies greatlyamong jurisdictiens. There are, as well, a variety ofsentencing prtc res. In fisdictions, the juryactually this the defendan 's seraenc prosecutoraddresses the jury as he- w ald give closing rgumertt. Injurisdictions in which the dge detenninesahe sentence,the prosecutor may act as the ,presentative of the state inan adversary proceeding, Offering kpeci fic sentence rec-ommendations to the judge and articulating their- ra-

.I. ., .. .

tionale.' ... 2 ..

The sentences that rapists receive vary greatly as well.Rapists are subject to the death penalty in Some states androutinely receive sentences of hundreds bf years'itnpris-onrnent in others. In still other states, rapists are sent tosexual psychopathy treatment programs or mental institu,tions, placed immediately on probation, or sentenced tolimited jail terms.

The variety of laws, styles and roles is so great thatthere are few conclusions to be drawn Or -recommenda-tions to be made- However, three gerieral topies should bebriefly addressed. These include the role'of the firosecutoLwith regard to the rape cas'et, the nee4,i jot providinginformation to the sentencing judge- aralh-eThvblvementof the vibtim and the police at sentencing.

8.1 The Role of the ProsecutorThough the role of the prosecutor at sentencing varies

among jurisdictions, his role vis-a-vis the rape case doesnot end until the defendant is sentenced. Since most rapecases are resolved by a plea prior to trial, the perform'involvement of the sentencing prosecutor may be quitelimited. Often he will only have received the case file justbefore the sentencing; rarely will he have tried th case toits conclusion and be intimately familiar with the facts. Ineither case, the prosecutor represents the state at thehearing and must act to protect the people's interests.

Inevitablythe prosecutoris cast in an adversial relation-ship with the defense attorney, who seeks a dispositionless severe titan the state. Wink occasionally the attorneys

TENCING

will agree to a common sentencing recommendation,more often the understanding reached in -negotiations-.reflects only the prosecutor's recommendation. It will totas a recommendation for the upper limit of punishment,and the defense attorney will advocate a sentence that-isless punitive. Where the panics do agree on an appropriatesentence there is no special role for the prosecutor. Wherethey disagree, the prosecutor should be prepared to statewith reference to the facts of the case and the policy of hisofficki, why the particular recommendation is beingrnade.If the prosecutor does not know the facts of the case or thebasis for the recornMendation, then he is n repared toadvocate that sentence.

Often the judge does not expects presentation or even arecommendation by the prosecutor, he will rely on pre:sentence reports to arrive at his decision. Especially in.these situations, a orgeccutor's recommendation or state--, Merit of phalosoph(may be Ouitepersuasive. Perhaps it isinrape cases that Such statements should be made. Be-.

cause chi crime of rape has been so misunderstood, thejudge perhaps should be reminded that this is not simply -= ,-

- -another felony.

1.2 The Transfer' Of inforrnestionRegardless of the prosecutor's role at sentencine,the .

judge will base his sentence on what he has learned abbutthe defendant and the crime. 'The information that hereceives may come from many sources. Most recently,pre-sentence reports have been written by social serviceagencies distinct from both the prosecuting and defenseattorney offices. It is critical that the judge receive A ofthe relevant information that the prosecutor possesses.*

This transfer of information may take the form of amemorandum or telephone call to the pre-sentence reportwriters. It may take the form of a report written directly tothe judge with a co to the defense attorney. This reportshould outline al f the factors that the prosecutor be-lieves the judge shou d consider in making his sentencingdecision.

The contents of this report may go beyond the simplewritten statements of the case file. If the prosecutor hasmet with the victim and various witnesses, he may have-supplemental information regarding the defendant and theseriousness of the crime. In addition, he may be aware ofinformation that would not be admissible at -trial, butshould be considered by the court. Hearsay information,such as police intelligence reports, is admissible for thepurpose of sentencing.

ovides more information to the jade.i either respond intind or challchge

of onnadon. This may turn the sentenc-ing int / elaborate hearing and force theexpenditure ofprostE odal resources_ not normally alloted to t 's func-tion: P icy makers within thp prosecutor's-Of e willultimat ly determine whet* this type of-expend`ncl- ure iswal-thw Ile and,/ if so, in which cases. If beentraditionally perceived in narrow terms withi urisdic-

- tion, such an expenditure may be ed to changejudicial attitudes.

L3 Tile Victirn and the PoliceAs discussed in the context of plea bargaining (Chapter

V), the victim and the police Wo parties that may have41

a special interest in the outcolte of the rape :case. Thevictim may seek retribution or at least a conclusion to hervictimization. The police desire' a fair result that willjustify their efforts in the case. In addition both groupsmay have information to contribute to the sentencingdecision. They obviou0-13a.ye a legitimitk interest ipparticipating in the sentencing and being informed of theresult. " 11!

If the POliCe and the victim write to the Sc ntenci ng judo..

or evert appear at the sentencing, the effect may-be tareinforce* Aate s position. The judge may be persuadedbitheirinfOnriation and interest; at the least he will have

...,

e ABA Standards; The Prose hoh Tune o 6.1 (1971

54

to justify hi s dec ision tcj them. This is especially ifnportantin those cases whidi-haie been resolved by a negotiatedptea, for the judo may have never seen the victim or fullyunderstood her o eal. Based only on written reports, thejudge's impression of the crime may be limited, if notunrealistic.

It is sometimes argued that inviting the victim and thepolice to the %entencing applies unfair pressure to thejudge, forcing 'him to be harsh with the defendant. It isfuitherfargued that this approach or tactic may backfire as

-the judge responds to the pressure rather than the merits ofthe case. The judge, however, is a public officlial, electedor appointed to perform the difficult task of makingsentencing decisions. There is nothing underhanded aboutoonfronting the judge with the public and controversialnature of this clime.

Inviting the victim and the police to the sentencinginevitably requires the expenditure of still more time andresources. The parties must not only be kept informedabout the changing times and locations of Me hearing, butthey should be prepared forthe hearing itself if they wantto particip'ate. Ultimately, however, the amount of re-sources that should be eivended begs the question of thearipropriate role of the prosecutor. If the prosecutor as-signs a _high priority to the crime of rape, then thesefunctions may very well becofne routine.

NOTES

2 Ibid., 6.2.

. CHAOTER 9. P9LICE, mEDKAL PE WNW,AND'VICTIM-4901,1-SELO

utor is only one member of a criminal justiceteam that responds to the eriine of forcible rape. Police,medical personnel And victim counselors all have =Millroles in the development of ripe cases and their coopers-dve interaction with the prosecutor is essential. It is Veryimportant to the prosecutor that he have-good prefessi analeelationshipa'svfih these groups, for he Mint depend uponthem to investigate the case, gather evidence, testify attrial and Assist him in helping the rapeVietim. The purposeof this chapter is to discuss these interactions and suggeststrategies that wilLmakirnize their effectiveness.

9.1 Po Ike,Police departments are organized in several different

ways to respond to the crime of rape; their organization'structure may dictate the style of polid/prosecutor iAteraction. Traditional police depanments dispatch patrolofflers to rape calls, and then provide follow-up inves;lative support by detectives a day or even several -days

later. The detectives may have little special training inrape cases, an in most smaller jurisdictions they investi-gate many dther crimes in aCIdition to rapes. SeVeral largerpolice departments have created speeialized sexual assaultunits at the detective level. The detectives are oftentrained to respond to the needs of rape victims and thedifficulties of rape prosecution, They either report directlyto the scene of the crime or begin their investigatiFin within24 hours of the time it is reported. Thus, depending uponthe size of the department and its degree of specialization,prosecutors will interact with a variety of police person-nel. These police officers will respond to the crime of rapewith varying degrees of expertise, training and sensitivity:

Prosecutors and police were asked about their percep-tions of each oth ' Many complaints were voiced whichmay be endern. to prosecutor/police relations and notspecifically aced to rape. Nonetheless, they seem toemanate from a general lack of cayitunication that caninfluence the outcome Of these cases. Prosecutors com-plain that the police are sloppy in their investigation ofcrimes. They either miss important evidence or im-properly seize, mark or store the evidence that is gathered.They fail to contact corroborating witnesses or to inter-view them, adequately. Detectiva are criticized specifi-cally because they cannot be relied upon once their casehas been filed. The police argue that prosecutors viewtheir cases superficially and make filing and plea bargain-

:ing decisions without consultation and without regard tothe quality of the investigatiott' n complaincoplain bat pros---ecutims give inadequate; guidance at the, same time thatthey eXpeci the policeinfilainerfect oasis, Xheae generalproblemk of coMMunicatiqp have been attacked by a:,number-of strategjerthroughout dielebuntry,:.,-

Many prosecutors have sought early involvement in,complex eases stich as rape. Some prosecutor offices have24 hour-a-day liaison with the sexual 'assault units ofpolice departments so that police and prosecutors canwork together from the time of the rape report. This notonly facilitates rapport between agencies, but enables thepolice to better perceive thrape investigation from theprosecutor's perspective of possible trial. It also enablesthe police to respoid more quickly and confidently to

ntially catnplexTegal problems such as when and how,to arrest or conduct a search.:

Prosecutors have participated in the training of policefor, complex cases such as rape. The trading of infer-truttion in the: context of training allows each side to-understand tht-rair4e4 the` other. The prosecutor, forexample, can push the consideration of defense tacticsback into the police investigation so that the police can actmore expeditiously to close off possible defenses. Thepaperwork requirements of the prosecutor can he betterunderstood by the police if the utilization of such data canbe fully explained. The polite can be instructed regardingrecent statutory changes, important case law and localcourt trends in a mann. that will facilitate their daily

3,1work.Prosecutors have increased their efforts to keep the

police informed about the progress of their cases. There isgrowing sensitivity to the inconvenience suffered by thepolice when court hearings are continued or prosecutorsare unable to make appointments or return p ne calls.Prosecutors and police have also met on a regul basis todiscuss current cases, to review general blems ofpersonnel and to consider how past errors can be avoided.Formalizing general lines of communication can facilitatethe spread of intelligehce information between agencies.

Police and prosecutors have worked together to createstandardized recording forms so that key issues to theprosecutor will be consistently addressed by the police.The diversity of reporting formats can be a severe problemto prosecutors who work with several police departments.Prosecutors have also' encouraged the use of standard

55

evidence-gathering materials such as the "rape- kit." 'The 'individual, trial prosecutor may have inadequate'

,

means to developlitese programs. His responsibility maybe to alert senior prosecutors in policy' making-roles toparticular problems. In addition, however, the prosecutorcan set the tonefor improved police/progoitor relationt

Jisithin the CO= xt Of his own cases :. prosecutors who wereinterviewed suggested several approaches to communica-tion problems at this level.

The prosecutor should, make early contact with the,'detietive who is responsible for his case. An appointmentafktfie made to diSchss the; details of the crime, the

- timetable for its Prosecution, _what remains to be done, aswell as togerterally eiplore the 'strengths and weaknessesof the case. -Not only is such ,aconference vital to)theprose"cutor's,Understariditii or,l'he case, but Wsuggests to-the derive that the prosecutor respects his opinions. Ifthe prosecutor later needs assistance from the detective, afoundation of mutual respect may facilitate cooperation.,Often the detective will sit _with the prosecutor at thecounsel table during, -only does he assist theprosecutor, but he -recognizes hi's central role inthe prosecution..

Prosecutors should not be reticent about criticizing the, police with regard to their work. It follo-ws that pros

ecuters should seek thead vice and criticism of the police,Very often, both- patrohland detective personnel havesignifiCantly more exAkenaiti,r_crirninaljustice than theprosecutor has; yet there may' be a tint of prosecutorcondescension:The goal is to forge a cOntinuingfirots-Sional relationship so that the police ;and prosecutor ca=rd

. depend upon.one another. Withoin this cooperation, the'possibility. Of efficient and successful prosecution fall

. -cases is significantly di nished.

9.2 hiticlical PersonnelIt should he standard procedu?e in every sexual assault

case that the victim' is examined by a specially trainedphysician. This may not only he important to the victim'shealth. It may also he critical to the success of subsequentcriminal prosecution. It is therefore important that theprosecutor investigate whether medical examinations forrape victims are routinely given in his jurisdiction and itsuch examinations arc conducted with'thc possibility ofcriminal prosecution in mind. The purpose of this sectioni ot to insthet medical personnelobout their responsi hit=

ro

iti but to suggest to prosecutors what they might expectfmedical examinations, hospital procedures and Med-ical personnel.'

The phy.vica/ eaamiat ti. The exam ini lion of the rapevictim can be divided into three phases ( I ) generalobservations of the victim; (2) the taking ot a limitedmedical history; and (3) the physical examination andrecovery of physical evidence. The doctor's tOscrutions

56

of the victim should include reference to her emotionalcondition. This can range from bewildbmtent andorientation to shock, incoherency, fright: rernorse, orindifference, The.doctor should also observe the victim'sgeneral appearance with special reference to disarray,clothing tears, , stains, dirt deposits, foreign hairs or fiberS7Obviautly, these observations should be recorded .with"sufficient speCificity that the doctor cantreereate -his obser-,nations at a later time,

The doctor should also gather data regarding, the ,inci-dent and the medical history- of. the victim, The:inquiryshould assist the doctor in determining what to examine'andchow to interpret his observations. Some data itemsthat the physician, might record are: 4

Name and exact time of examination..Name.of victim.Address of victim.Age of victim.Marital status of victim.Last menstrual period.Is victim pregnant?Last time.victiM engaged in consensual coitus,

which may account for the -presence ofsemen in vaginal specimen. .

Date, time and exact location whereoccutrcd.

Was victim wearing present garments atime of the assault? .

Did viCtien know the assailant?Did the asgailattlave a weapon? If-so what.

type. itDid assailant bind the victimDjd'atie-asssilartr anther bodily harm.DAt I dark caMpel victim to perform acts

ck

d trent:perform acts of buggery?Did assegai; perform act of cunnilingus?

assagenvengage only in the act 'Of sexualintercourse? . .

Did the assailant insert a foreign object into thevagina or rectum?

Did assailant wear a condom?Did assailant have an emission?What did victim do following attack regarding

hygiene? .

Did the victim injure her assailant? Scratching?Biting l Other?

In addition to a general physical exarnination of thevictim, detailed gynecological observatidns should be,made. Skilled physicians can detect subtle scratching,bruising luid inflammation within the vagina which cansuggest the use al- excessive force though not necessarilyunlawful conduct. In addition, the doctor should examinethe exterior of the body for the presence of semen (espe-cially on pubic hairs) and other foreign materials such ashairs or fibers.

Swabs and smears are routinely taken and examined forthe presence of semen A swab" is defined as a material

removed from the interior of the body orifice by swab-

bing" the interior of the orihce with a cotton applicator(cotton swab) the cotton swab is sllbrrlitted to the crimelaboratory for examination. A smear is defined as materialremoved from the interiorot'tl'ie body orifice by :wabbingth interior of th orifice with a cotton swab and thengently rubbing the material from the swab onto a microscope slide; the slide is then sllbmitted for cxaninationTwo swabs and smears should he taken from each rele vantorifice All slides and swabs must be appropriatel pack-

aged and labelled with the name ot'th victim, the date,the type of specimen, and the initials uf the medicalpersonnel obtaining the specinien In addition, it niav henecessary to drav blood from the sictini, uhtsiiii head orpubic hair samples or finerrail srapi ngs Once againall specimens must he separ-atek packaged and marked

When medical or lahoramry personnel icii1sre fsriciimmaterials from the clothing t the victim, the specimensmust also he carrtui! paskaged and iriarked Th I

ruens should be marked with the nan ic of the ', iclili itic

date, the type of ii material ie Ho scsi tIe Is ilium 'iii hr

body sit garment shere ihc rilatci id ssa rrs.us cmcd ansi the

iflitiats of the iieJi at erson net ss fl re iiiijSesj the maler tat It is often ugge tl tfrat lahels sill all test IIbCs 0l

SidIs he ,rit,IL tird 'um th ta1 it add HR ii i i,s,riii5i! iJJ'k

found sin the hacks ut Iahtsthis ti-a sit jislssif'lc riedis_al ansI rh

is ,strisruslv note shaLisrl%e lr !eriiI, I wci si

the riced fur the 'Csutsi i,, iridersm nd r tic us drirtiji spsissi tnt ills,- 'f ilic I icilir_at r - ii I ii il i ,,f iris] tfi i ,cd i,csnUnIrii(e it tu, al ndisjt p sound s iic joii5stis

tiuris h,isc tcsclsjcd .1 slnst,_rut ICSiIli I tOil! ISi stOs,

101', this cilsimlu'-, tfirt ci isiCHucni fnsstCuitJl tnIsiU ,mlu

will isni he O\us l5k5_I ,_1csisII nli - ijila satis Is_i

had little cimesk SC ' trailli5 its Un s,i,,,,_,ii,ni, 1

[ape siCtu,, -\ -isipIC it tin' is 1 tiiii Iii - l's'i

included iii dc 1ysmidi ' R- (Iii Lti!1itC, \-- iis Nm

suggest" ii,- iimu1,tnil,,,si iii snfl! ti,,ni ifiu rijin ic-si,

and c_ihseti,ri- h_ im,,rdç ii I- tori tlic

properly rccs irciesi a ni air ideq UatC . to iii 'I cU ,rody 1, N

tished to ass nrc the adirt issi hit it in I es mdiicc ,it trialf'-1i'rjniTI ,J,,s si/ion ' I he pu-see i ni h nu,tsl Ic IsSass

of hoc_s rape v Ic trios ame Ii eated b local hospitals ti. a, iCsi

tic_c iiiediciil tie.iiiiiriii s,,niIslCtei 5 Istiiiia lion rennim,iv.smuch a carl the rnsnre -phtk ie.d police 5oid p uses UioiI risensiti mt The pri -utor frog hi include if local hii'nptals has c considered e tot kiwi rig is-'niee

the length of time a ic_nih Oust ,-ui

miediesil e'eUrTiIrtUtisaLa where she niust c_c_jut.a huw her emotional ne5 j . ft c_i -lii

time,a whether parental pertmilssi on me rc4uirril ti!

the esanhunati liii it I'Inn

t) s_I

S

who sc_ill pay for the s:slst sit ii mc iiie'ul ir ilexaflhiflat!1rn andwhat information is made available to thevirti in regarding future medical needs, cimflilseling sersices arid thc reporting of the ci inc

I he hospital, in partnership with the psml ice and pros-ecutrir, jS obligated to assist the victim and encoutl4e herto report the eminie

floc'unr aUnt tin! set Li lii nuitl y the proseclitic m c_c_il I

interact with one or more medicaersonnel whoe c_alit med the mctnhl Insist commonly c_ith the oneexaminer who is ubpenaed fur trial. Prosecutors havenoted several problems in this dcictar/proscc utor relation-ship. sonic stCin iii ng trutri tr5id Ui unal dociuii/l ,tsc_ c-i an-

tipathy and suuie resulting from the uniujue features itrape Prsisee uturs i cptirt that docisims arc rurt an siu'ua to

testify are dmffic ott to locate for pre trial cone rera c, doriot enjoy ci miinai cases in general imnd rape s,dsCs spcc iii-

alli, nd are sitte n i ire ttectic_ c witflCssec_

Many at these pmoblenis an se because i ape is tin

,Kc ii Eu targe pub! is tmrm-pit als by the polis a rid c c_a ill red

in eimierfen) rooms staffed by interns and reside nr a

ale often foreign doctors who do riot speak Euicli sli elI

Ihe dos,turs are uttn iii anuthci intation, hospi tat - ciii iiCc_eli emnililim \ hi the itimie the c-ac_C CUOiCs ii 'ii i,t Sini ii, , I

ih pic_hlemn s arc thus systemic and has c liii Ic t 'si, sillpr'.unat ret salmOnS betc_c_eeri the iii itsec um n,nd m hr], is-i

it was he ueful fur the 1ItuSCs Olin iiieullijuilic iii ci' it! ti,p ulice to contact. hospital admo ni si rat ii a nI 5ulen thai a

tI,5 succds t ihe crinuin,il UsiisC \ysieu,u ,''uC I,--

Isa, C wftld closely c_stilt siisflI,i,il tinsEl, sic-c Is mu- ,,iid

ImsIvC asnc_lgfltd npccidll5 tm,aiiicsl plm ,iui.,nti-, 5' iCuus

reimIrris ItIr !YlIiFImIse-s tnt mnmpe s isflhli exiriiilijtmn.0

it is dttti ul t tm gcmlcruililc .sIm_nut iridi iicluu.,il ii,

ui-ni islanisi," i's1iai ,t ni,-,ss_,uisum-, 'ii -' 1

ssn,uLIuIuiIIv ss,isi,is( isitli il,5 utnsa,ls,i Vi ,nui.'l i,

c .slls,iluiftu huh. 551,c iii iiiç d_,c_is'i is siijutni _,,i I I

sc ihc trjal 5ini itc cicmu \ttIie tuiluc nil tOni mlue\ n_hO',, Ii

il\ s__srI! ti- st,ct_tsIi l' - ssutnu'ss tush iii nil ic_li',, i

there-sc_s_n, to Iris! imstc iii shedul c Pro-sec oh ni Ii - - I l's

aware nt lii'nit tondmuig 5srrangeimiemmt c_nih si Sits hi,]

nuliti1_ 1tisc_isiji-, ms thjt n.j itictit it [Ic_cs, -u _oi i-

e pe driedNurses ire! puniential sirsrup iniv'-itrie -c' lii' ,,ir 'us_i

-s crtnnsnked While hey s,on nut suppt .uii ri,5 dii, i,, a

ned ical zest i inc_wy, they can reInforce ii no cs silica

base- i gicatel Ippsmrtunit% iii inhse 'sc the ci h ii; u 5, 'Sd I

non nit the cicrini than dines the dinctiri c_i ho iii irilpis

pert.nrrn the routine physical c,,inhnmaim sin .nd hcs_mV ti_ a

remainder of the work to the nurse

91 Victini Counselors

In most rnaj rjurisdtionsc_rietiniscs s uscs ai ac_i1aleIrrooghu titus_il ri1sc_- crisis scfltu' , ihhiliftni b;i-spu!rl

57

clinics or coin:mina y heVtlth tile aloes, In these prom binsprofessional counselors are as allahle, often Ment -tourhours a day, to assist the victims of sexual assault.' Inaddition, several prosecutor Offices have initiated eithergener441 service prograins torcritne victims or specializedrape programs where advocates perform similar functionsto those provided in private rape crisis centers " Closecooperation between the prosecutor and these victimcounselors will not only assist the s let im. but v; il I het p t heprosecutor in the development of his case:

Efrosecutors who were surseyed as pan of this studsindicated that the active in\ olv etnent of a victim advLkaiein a rape case can he seis valuable to the prosecutorProsecutors severally beliesed that rape vicriins need adegree ID attention, assistance and 'Tinton:dot:Ill that theprosecutor is unable to provide. et Veit trwonsitaints othis schedule. traintn, and col,: The V ICIj ikINivtate vVhti

has expenisc in the emotional occ.J., of iapc ICnlns toiellisc the 1)111,1 n 111 ,LL V-ttttni (LNokql,,,WIIand thu, allow bon 1,, The: woo., ret. fon, al

and iatrllll.il 1,1 k I i{ h1XL. can dire,- ilia' (WI ,A it h iii,

inn ateN Lai, III iIi I.ii 11 +'i ll,i,l Vlltll et,,

leliond her .1 appnon.tient-. he, 1,1

it an spor anon slold ,,d 1, ,,, ,sL hoof Bs Iic =lt 111, LIIL . n_111,,

iit,rtii iii' the k ,..01 .1, ,1,1 r11111 111 t11, 1 'LL:11111111,0-

111,111 Iviitl tun trod 111 Ili IL,21.)1.1N111, ,1 (tit- V1.1..11111

lisrtital I IIC NCI N t,I, I (h-at a NI il,)11e i Ea,)

the We.; ,

staid' trio, , II,1, i 111011 ilia`

,,d 1i Ill. al ,Ik LIM (hi147,111( AriCii [10, '.11111,1, 14 IA lid .111l.s.,1

t,NeL -14)1N \ IL s kern,s o- , I. t ',Iii I ,11(

It,

ek,111,01tc I IN! 11_ 1.,

Vi tow millih,rstilii -2, 1 /IL it ilk I .1i, altsWeis : 11,,,;t,-,1[1,,C It, (Ira]stratr I imorreci tors silt 4alitri, rt. ihe

so, ,( icseoled Lie oaf t,-.11, orprotessiorial into ihcl,

cf -1

t{."1,- LC,!..;,11' .1.

KIL ern elfrld 4,1,1,1 ino »

[Moro-id rCC VVi ding Sct uc mid 4, I,II,I :II, of ,LL.:t

can ric ,,rodlned trurn the s,,,,,nwectern trrsetuk= f-,,ren, li S le52M) Medical Center Drive t)itliac. Y tls. 75215

!her,: ,if .11D1G LL,1

and ».;i

whereat Victim advocate is Involved with itease, or theprosecutor needs assistance, he should make early contactwith the advcrcate and establish a working relationship.Their primary concerns may he different, for the advocate\Ali I focus, upon the victim and the prosecutor upon hiscase; but the obvious overlap should provide a:Ptsis forcooperation. The prosecutor should acknowledge the ex-pertise of the advocate by disc ussing the case with herandasking her advice. 13y recognizing the im,portartee of herrole he can work to insure her understanding of procedureand her positive invol vernent with the case.

For most prosecuting age nc ies, local rape crientersprovide the only practical means of e mendingliervieesrape victims, General cooperation with sv-h Agetkieseanhe enhanced by the exchange of speakctjoint trainieigprogranas. of the appointment of a p4p-i-t,ettt4iaison,the prosecutor can become actively trty01,04,,witt-P the:

arjscorace agency. then advocates. nla l3diter tr _

Lind trcnct able [0 assist the }noseurn c are :Ind aggessi

Ik)(iii,Jalloil fill ltlell totera,;tion

9 4 Conclusjoirlhlls It all riots V., Iii. , Itill9 nal Jilt,ttce

/AIM .lft they:,. (toper ali raps V icititiS and 1. o increicse the possi-bihm of coin whin", Without Ihe'support or thoroughpi,ttLe investigation, eornprehensive torensicexaminanonif v !Ins and professional victim counseling. the pros- ,

ectitor 14111 be cliiiikek to sl}:n,hcalilly affect th atternlepottittg ,thd conviction riAre!, The p.to_ cutol

insure such cooperation and support. Notis ill he 'darts these issues direcd7"by v(orking withh

tile. tat, ics, but ap2iessi vely lip ing and trying rapehe can filmset I .ct the toile of the criminal. Justice. response IL, I ape he recent pub; it attention

II used upon el lale hi. raised public'vspcctations[hat vlettills he treated v+Ith compassion and that/the

laic of tape fait t solititil led. These ale ICritit ateexpectations it, win, I (tic prosee 'Jim has an Vil,ttgattortresmond

n,.. 1,1 EL, _),1 sae},

ti NI, {- uht,ll dm) 's tanager= t tit Alleged S.'«).11N- 'deal, in ternbet 19731. pp. 59.-C, "S,-

pe. 1,Ir r,t Ito Co/ /r, e Obrietriettin.c an d Grrip Vio iiinedi 14. 11970 re) iced April 1972 )

me, Adapted from R 119 Ito, "pb, sr,a1E\twe Cases' . lobs -rtat of Poke and .1thruntsrrution Z.? I t 974) pr16n=161

1 For sc:ileral itici-C1)011%elt_./1-

sate Lisa Brmtlyaga. et al, . Rape and lts Victims- A Report fief C .

Health Facilities and Criminal Admire Agencies, lislation al Institute ofLaw Enforcement and Criminal Justice. Law Enforceannnt AssistanceAdrninistration., United S rates Department of Justice, 1975. pp 55-86

6 For a general discussion of community based victim services see:Lisa Brotlyaga. et al infra, pp I 19-153; for a general disco SNIOn (yl

e

prosecutor based vat un some ece kL trl Hata:lK PCPipeC-

fives and Ncw Approacties'', The Pr/tier/our, IL (197b1 pp. 357_3sForciale Rape: l'enietlainilthiitniAlnitive and Policy lAw e5 publishedby the National InsInnit of LAW ErlfOLCCL1100,ind Criminal Justice, LawEnt urcemeot AN, kt Jlic C Ad Min ISE rat ton JS part of thi projectChapter 3

_970 L53 g

Appendix to Chapter q

ASSAULT VICTIM MEDICAL REPORT

Form APatient Inter iew Form

Pkam type or,prnit all informat on clearly.Pot explanition of each item, am corresponding number in amosiated protocol_

This report may be completed by any !Rented or certified health pro lotaal

Date of Interview

Patient name

Patient birth da

Patient address

Time of

4. Medical file no.

Phone

-9.scion Wi hereby grai

Hospital/Clinic /Private 13u,ros Name

10 Adtireas

J To perform a roc 31 liatesview

o release

11.

13. Or Parent /6um/ n 1g,rarutF

Permiution for Irqery

dicai staff0 the 0

15 Priit341 4thp411111c

Pollen ea deactiptton of assault (Record in patient-3 words= Include all spontaneoua Atter mem),

'nation and Release of Information

p

untnattoo as m

y pecirnesta tad cHans tit;o a I 011ie proper legal authorities

12. Date

14. Relation

17. Date of assault

1 at Copy = r I

Dale

Time .rf aatrtialt

rd ea 1' 4 M Colby Pr- outOr

i0. Note indication of pain in patient's own words:

20. Check pain and symptoms mentioned:

skeletal muscular pain headacheabdominal pain bleeding

pelvic pain discharge

21. Has there been recent treat merit of any dUiordee

No Yes Heim'

22. Has there been any cl ansiang since the assault?

No Yes Detail

23. (Vaginal assault only) 1...N NIP

tenesmusdysuria

other

24. (Vaginal assault only) Date of last in cyro tits befase a

1S-. Additional remarks:

I understand that the law Oalkier the titan-lining or ccrtifted health professional u an eye witnect in the body of eventssurrounding potential crime_ What a patient/victim says t4 medical staff nay be actrnissable as an eIception to the hearsay rule,and these statements may be important in determining the truth before a judge or Jury. I Agree to preserve these statements as partpf this patient's history.

26. InterviewerInt rviewer signature

Interviewer nam

29. (If known) Termination date of This employment

30. Interviewer fluent in English

c,1/41,tt Copy iCa I R 5CP40 s g

22.

py I--at ant tr, CuPY

ASSAULT VICTIM MEDICAL REPORT

Form 9Patient Examination Form

Please Type or print all information clearly.For explanation of each item, see corresponding number in associated protocol.This examination and report may be completed by any liceneed or certified health professional.

31. Date of examination

33Patiant NameLAS

Appearance of patieneaclothing: (Check if yea),,t

Missing Soiled or muddyDamp yr wet

Soiled aloodlittams

36. Patient changed cloth

Yes

ccri asmult and arrival at cxeruwa

No

37. Iteriaire clothing placed in containers separately and tagged

38. Descrokc pretence of oolitic. c., -a,. 4,

possible source such as teeth cigaret te

e photos or X-rays of patient

I it CO y di- I

Time of Examination

Medical File No

Leaves, grass embeddedOther as described

scribe esa,t arcialC and sr, tnalLate

I, Ccioy osicoitfot

Describe extereaporineal or genito

/

41_ Describe internal trauma (Speculum and toimanual examination):

Lacerations present, Describe:

42. Is there discharge?

43. Checklist of iVoii,t rrtr of rri=ritat t. ou

El Patien f nr I

Yes Nee- :ILK:

Li Patient sacs tank non- unable t tank

Li Par tent y and con ElAiuGlly r,A a by A

f laughs, Jokes with those at iad r, cottsravualy

O Patient expresses feat

0 Patient exhibits serious breaks with reality, e.g. sensory, auditory or visual hslincinationa

Patient expresses tears ut falling apart. gurus crazy, disappearing,

I a At ajj,

hat his/her body was broken, permanently damaged Of Om, d hi some Way.

Li Patient refuses to !rave the facility.

El Patient expresses suicidal ideation.

O Other

I It copy - Medic I 3r7 CO/Da FNI aat 4th copy - fro k

44. Immediate Laborptory Examination of wet mount slide: (List source affretrd area and cheek result).

List SourceAreas

SpermPresen

SpermAbsent

SpermMotile

SpermNonmotile

45. Signature of Legal Authority reeeitind t-1 information, clothtug r,td ththe Dig sped, l =rl

46. [El] A is AW 664

47. [ Dry unstained sti:ra (lust Gully

4S. Fibers from patients body

mtillito ix tia

50 L I.

L 1 tta fr.,.,.

36 l j I 2 2t.o....12 v.tictit

33 I J S a

4 of patty

1

a a....1,f3a..a£1 that al, a=

3 SU ruund16, a 0.LAta shunt I

CIA nilS .a Sion

56 r j

)7,

56 Dr town)

59. e. oiloe , llue,t, rn

Yes

effected a,.a (Ibi body ,

-.tjti, ), 401t

Lalt ;LI iu (cant r and be istn, miint6

ASSAULT VICTIM MEDICAL REPORT

Form CPatient Treatment Record

Please type or print all information clearlyFor explanation of each kern, see corresponding number in associated protocol_

60. Date of treatment

62. Patient Name

61 Time of treatment

Last63. Medical File No.

64. Statement of Patient's Rights.

You have the right to - nudtrate and respectful ark by dun -tuna and nurse-

You have the right to privacy anJ ku.trtdrtittality tut y...111 Ul iftedIL:AA mAluda

You have the right to full Ptformation abuu meat

4. You have the right to refuse or choose treatment offered and anion of medical service when you wish.

5, You riroic int **hi AJ ICI Cat Merit of yL.,., 1.1.c health pi omerns related to this incident.

Tests given to patient

65 4t ennui, Yea

67 Pap me-. fea

Uthe#

- 9

70.

-Treatuicut sly

VD prophylaan

ti,

71, Med

72 Niedi,atina

73. (Witt ttenisn..n given

Future IIcat.nent plan

74. Transfer to a..other ili dit)

75. Apurprument in 6 we peal C. Y tea

riace

76, Referred for nItt,J4-,a tOr t. ri .

44-