Best Practice FAQs

Best Practice FAQs

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While it is theoretically possible, it is difficult to imagine such a scenario – where the victim is unable or unwilling to participate in the process of an investigation or prosecution, and has signed a release waiver documenting this wish – but police or prosecutors pursue the case anyway.  This is because the form is presented to the victim by law enforcement, so it is going to be used in situations where investigators do not plan to pursue the case. If this were to happen, it would probably be because a responding officer presented the victim with the form, but then additional facts came to light (e.g., a series of sexual assaults) or higher-ranking personnel within the agency wanted to see the case pursued. Police and prosecutors have the clear legal authority to pursue an investigation or prosecution, regardless of whether the victim is participating or has signed such a form, but the reality is that this is unlikely to be successful. For one, it would be difficult to develop sufficient evidence to prosecute the case without the victim’s cooperation. Moreover, if the victim has signed an official form indicating that she/he does not want to pursue prosecution in this case, this will almost certainly be highlighted by the defense as a serious challenge to the credibility of the victim as well as the legitimacy of the charges.

In any field, there will be some individuals who are better suited for the job than others. When it comes to interviewing sexual assault victims, there is a very limited body of evidence suggesting that law enforcement personnel with specialized training may do a better job, but common sense suggests that the characteristics of the people themselves – particularly their ability to experience and communicate empathy – will be at least as important, if not even more critical. While investigators can always continue to hone their craft, all the training in the world will not help if they do not want to handle sexual assault cases, they do not believe victims are telling the truth, and they blame or judge victims for their behavior.

For example, we are frequently asked whether women are better than men are at interviewing victims of sexual assault. The question is legitimate; because the vast majority of sexual assaults are committed by men, some people fear that the presence of a male officer (especially one that is uniformed and armed) may be upsetting for some victims. On the other hand, some victims have said that they felt safer and calmer in the presence of a male officer and that the male officers were less judgmental than the female officers. Therefore, there is no clear answer regarding whether male or female officers have an automatic advantage in this situation. What is absolutely clear, however, is that an officer’s competence and compassion are far more important than their gender in determining their effectiveness at interviewing sexual assault victims. Clearly, both male and female officers can be extremely successful in this domain, and best practice is for law enforcement agencies to provide training for all officers in how to successfully interview sexual assault victims.

Equally important, law enforcement agencies must have rigorous selection procedures to ensure that the people assigned to handle sex crimes: (a) want to do this type of work, (b) are qualified for the job, and (c) receive the support, resources and training they need. If an investigator doesn’t like working sexual assault cases, there is little or no chance he or she will be good at investigating them. These investigators will inevitably communicate their attitude to victims, and this will undermine their ability to conduct a successful interview and investigation. Simply put, they will not be motivated to take the steps that are required to do this job well. Yet for those individuals who do want to work these cases, agencies have an equal responsibility to ensure that they are qualified to do so and they receive the support they need. This will require ensuring that they regularly receive specialized training and supervision.

In a few states, victims have a right to have advocates present during law enforcement interviews, so they can provide comfort and needed support during what can be a grueling process. There is no inherent reason that an advocate’s presence will harm an investigation. In fact, there is research documenting the positive impact advocacy services can have on the victim’s health and well-being, as well as the quality of response by medical professionals as well as law enforcement. If anything, an advocate’s presence and assistance can keep victims informed, cooperative, and calm (e.g., by explaining the need for certain questions or aspects of the process). What’s key, though, is that advocates and investigators work together to establish roles and boundaries so that both can do their jobs without conflict. Advocates must understand and accept that investigators must sometimes ask tough questions, and investigators must appreciate the advocate’s role in shielding the victim from unnecessary trauma. When advocates and law enforcement professionals come to the table regularly, common ground can almost always be found where the interplay between advocates and investigators will move the process forward in a way that is positive for both the victim and the case.

Some investigators seek to exclude advocates because they fear the advocate will interfere with the investigative process (for instance, by objecting to some questions, or interrupting). However, this is readily solvable by cooperation and interaction between investigators and advocates so that roles and boundaries can be established and followed, and both parties (law enforcement and advocate) can cooperate and work together in order to maintain victim comfort and cooperation while also enhancing the investigative process. Occasionally, advocates are advised not to be present for substantive victim interviews with investigators because they could become witnesses to the case, thereby disturbing the survivor/advocate relationship. However, simply because the advocate hears statements from a victim that a defense attorney may seek to use, does not mean that the advocate must testify. As long as another, actively listening individual is present (the investigator always qualifies) then there is no danger of the advocate being forced to testify with regard to survivor/victim statements. Further, advocates often aren’t the active listeners during a substantive interview. Their primary focus, after all, is not the investigation, but the well-being and comfort of the survivor/victim.

For more information on this topic, please read Advocates and Law Enforcement: Oil and Water? These issues are also addressed in detail in the OnLine Training Institute (OLTI) module entitled, Effective Victim Advocacy Within the Criminal Justice System.

If the advocate is the first person to make contact with the victim and/or is waiting with the victim for the sexual assault nurse examiner (or police officer) to arrive, this is the perfect opportunity to provide victims with the information, options, and support they need to help make the many decisions they are about to be presented with. For example, the advocate can explain the basic procedures involved with the medical forensic exam and the law enforcement investigation – and provide information about the advantages and disadvantages of participating in each. Advocates can also describe the services they offer victims, and begin meeting whatever needs they can.

For example, this is a good time to ask victims what their most pressing concern is at the moment, and see if anything can be done to help alleviate it. Advocates can also help victims to identify the sources of support victims already have in their life as well as describing other resources available to assist them in the community. However, some victims may not want to engage in this type of process. Some simply want to pass the time with small talk, whereas others may want the advocate to talk with friends or family members. Still others may want to be left alone, with time to gather their thoughts, or simply to rest in peace and quiet. More than a few may use the time to sleep.

Again, there is no hard and fast rule regarding how to use this time. If the victim wants to begin talking about the sexual assault, there is no reason they shouldn’t be able to. The advocate can respond by clarifying that the victim does not have to tell the advocate what happened – emphasizing the difference between the role of an advocate and a police officer or health care provider who will be asking them for information. The advocate is the only person who doesn’t need to know anything about the sexual assault in order to provide services for the victim. In this way, victims can be advised that they do not have to talk about the sexual assault if they don’t want to or if they want to avoid having to repeat themselves. However, if they want to talk about it, the advocate is absolutely willing and able to listen. For some victims, that may be helpful.

It can take days or weeks for a person’s neurochemistry to return to normal following a traumatic experience. However, the acute phase subsides within a matter of days. Therefore, we generally recommend waiting 2 or 3 days following a sexual assault to conduct a detailed interview of the victim. Yet, these are simply the most general recommendations; the actual decision must be made on a case-by-case basis.

For example, victims are often sexually assaulted late at night. By the time the police are involved, or victims seeks medical assistance, they have often been up all night Victims may also wait some time for officers to respond, to begin the preliminary interview, or for forensic examiners to arrive to start the medical forensic exam. By the time the process is complete, and victims finally arrive home, they are likely to be physically and emotionally exhausted. If the investigator then calls in the morning, shortly after receiving the case, the victim will have had little to no sleep.

Clearly, victims need some time to rest and recover after reporting and participating in the preliminary interview and/or medical forensic exam. The morning after is not the appropriate time to ask them to come into the police station for a detailed follow-up interview. Yet this is often exactly what happens. Law enforcement has historically been trained to believe that the detailed interview must be done as quickly as possible, to gather information while it is still fresh in the mind of the victim – and to question the victim about any statements that might appear inconsistent or otherwise problematic. Given this all-too-common scenario, it really shouldn’t be surprising that so many victims are unable to participate effectively in the detailed interview. If we push them to do the impossible, they will not be able to provide information that is as helpful as it could be – or they will fail to show up and withdraw their participation altogether.

A better approach is to provide victims time to rest and recover, and have the investigator only make an initial contact by calling the victim within 24 hours. The purpose of this initial contact is for investigators to introduce themselves and schedule the detailed interview at a time and place that is most convenient for the victim. The timeframe for this interview can be flexible. While 2-3 days following the initial report is offered as a general guideline, the actual schedule will depend on the individual victim.

The investigator can then use the intervening days to prepare for the detailed interview, by reviewing the initial reports from the preliminary investigation and the medical forensic examination, as well as any crime scene reports, evidence, and/or witness statements that were documented. The timeframe can thus be helpful for the investigator as well as the victim – both will be better able to successfully contribute in the detailed follow-up interview when it eventually takes place.

We address this question in detail in a training bulletin entitled, When to Conduct an Exam or Interview. The bottom line is that we should decide when to interview a sexual assault victim by focusing on what we can do to help her/him participate in the process.

In general, we believe that our communities could go a long way toward improving our response to sexual assault if we simply operated from the premise that we want victims to be involved in our response systems, so we should do whatever we reasonably can to help them do so. Sometimes we get so focused on our own policies and procedures that we forget to make accommodations that would encourage victims to participate, even if they entail some compromises that are less than ideal. For example, we often present victims with decisions that are framed as “all or nothing” and “now or never” – and we are then disappointed when they decline our services, because they feel overwhelmed. A better way is to reframe the choices we present victims with, so they can take the process one step at a time, in a manner that is far more consistent with their traumatic victimization and coping response.

The following response was written by Dr. Jim Hopper, Clinical Psychologist, Independent Consultant and Teaching Associate in Psychology, Harvard Medical School.

Dr. Jim Hopper: Unfortunately, this science is still not known by most police officers, prosecutors, judges, Title IX officers, university administrators, military commanders, judges, legislators, etc. It’s also not understood by most of the writers, directors and actors of television shows and films featuring sexual assault. It’s certainly not known by the general public. Even many therapists and victim advocates who work with sexual assault victims don’t know much about this science.

There has been no survey research to quantify the percentages of people in various professions and the general public who know about this science, but as someone who teaches about it all the time, I would estimate that it’s very low (below 5%) both in the general population and among law enforcement professionals who investigate sexual assaults. It may be highest among victim advocates and others whose work is focused on supporting sexual assault victims. Even then, I’m only referring to the percentage of people who understand general notions, for example that sexual assault (a) triggers massive activation of the brain’s defense circuitry which results in (b) impairment of the prefrontal cortex, (c) alterations of memory encoding, and (d) the activation of reflexive responses including fight, flight and “freeze.” In addition, many people still remain confused about what “freeze” means, and wrongly lump together what scientists refer to as “freeze” with tonic immobility and collapsed immobility, which are very different brain and body reactions.

What is still known by very few (in any profession) is the more specific and nuanced knowledge, such as:

  1. The distinction between freezing as it’s actually understood by scientists (i.e., an initial and transient response associated with detection and rapid appraisal of the threat/attack and potentials for escape) and the very different responses of tonic immobility and collapsed immobility;
  2. The clarification that habit behaviors are common and commonly misunderstood brain-based responses associated with defense-circuitry domination; and
  3. The fact that stress, fear, and trauma do not simply impair the functioning of the hippocampus and the encoding of episodic memories, but rather typically do so in a time-dependent way such that detection of assault/attack briefly shifts the hippocampus into a super-encoding mode which is then followed by a “refractory period” in which encoding of new information, especially more complex contextual and time-sequence information, is impaired (Diamond et al., 2007; Zoladz et al., 2014).3

3 On the latter point, see also Diamond, D. et al. (2007). The temporal dynamics model of emotional memory processing: A synthesis on the neurobiological basis of stress-induced amnesia, flashbulb and traumatic memories, and the Yerkes-Dodson Law. Neural Plasticity, 60803; and Zoladz, P. et al. (2014). Amygdala-induced modulation of cognitive brain structures underlies stress-induced alterations of learning: Importance of stressor timing and sex differences. In A. Costa & E. Villalba (Ed.), Horizons in Neuroscience Research (Vol. 14), pp. 1-40. Hauppauge, NY: Nova Science Publishers.

The short answer is no: Decisions about whether to investigate or prosecute a case are made by criminal justice personnel, not victims. As we know from the field of intimate partner violence, cases can be – and often are — pursued against the wishes of a victim and prosecuted on the basis of the evidence without any testimony by the victim. However, the reality is that sexual assault cases are far more difficult to investigate and prosecute without a participating victim – and victims CAN make their own personal decisions about whether they will participate in the criminal justice process. For example, when victims decide they are not able to participate in the process of an investigation and prosecution, it is unlikely that this process will move forward without them. These challenges are discussed in detail in the article entitled, Best Practice or Buzzword: Sorting out Fact From Fiction in the Community Response to Violence Against Women by Joanne Archambault and Kim Lonsway. It originally appeared in the e-news for Sexual Assault Training & Investigations (SATI) on January 29, 2007.

Typically, a sexual assault case is only likely to be pursued against the wishes of a victim if it is perpetrated in the context of intimate partner violence or if it is a high profile case (e.g., involving a public figure or a series of stranger sexual assaults). Therefore, best practice is to acknowledge this possibility and prepare for it by working proactively with the range of multidisciplinary professionals who are involved in responding to sexual assault. Ideally, this discussion should take place before the issue arises in an actual case, and it should result in a written protocol that documents a good faith agreement that sexual assault cases will generally not be pursued against the wishes of the victim.

Part of the preparation should also be to develop written materials that provide victims with accurate information. For example, a consent form could include language such as the following: “I realize that law enforcement can still conduct an investigation of this report, even if I do not provide my name or participate in the process. However, I understand they generally do not, except in extreme circumstances (for example, in cases with a serial stranger rapist, when the sexual assault is committed by an intimate partner, or when the victim is severely injured).”

These issues are discussed in detail in an article published in the Journal of Forensic Nursing, by Dr. Kim Lonsway and Joanne Archambault. Information on how to obtain a copy of the article is available under the Articles tab in the Forensic Compliance Resources section of the EVAWI website.

Sample language addressing this issue is also included in the template materials for Non-Investigative Reporting within the Forensic Compliance Resources section of the EVAWI website. In particular, please see the information on Options for Victims (informational materials and documentation form).

These issues are also addressed in detail in the OnLine Training Institute module entitled, The Earthquake in Sexual Assault Response: Implementing VAWA Forensic Compliance.

When we use the term “informational report” at EVAWI, we are referring to a report completed by law enforcement to document an incident that does not meet the elements of a sexual assault offense. This type of report also goes by other names in different agencies (e.g., “incident report,” “officer’s report”). It is distinguished from a “crime report,” which documents an incident that meets the elements of a criminal offense (and also goes by a variety of names, including a “scored report” or “coded report”).

The question is then whether a victim can request an informational report, and this could potentially happen in several different situations. First, a victim may want an informational report to be written when the officer is NOT completing a crime report. Alternatively, a victim may want an informational report to be written INSTEAD OF the crime report being completed by an officer. To answer the question directly, however, it really isn’t the victim’s decision for what type of report the officer should complete. Rather, the decision will be made by the officer based on agency policy as well as the facts of the case and a determination of whether the legal elements of a crime are met. Agencies will have different policies about what they can do in this situation and how they will respond to the victim’s request — as well as addressing the victims underlying questions, concerns, and expressed wishes.

When the officer is NOT completing a crime report. In the first situation, an officer has determined that the legal elements of a sexual assault offense are NOT present and is therefore not completing a crime report. In that situation, the victim could certainly request that an informational report be completed, in order to document the incident, and if it is consistent with agency policy it could certainly be appropriate for the officer to do so. Of course, this report would only be used for intelligence purposes rather than to launch an investigation. For example, the information could be helpful if the same suspect is named in another report in the future or if the information could help law enforcement identify a pattern of crimes. This type of informational reporting can be a “best practice” in this situation, as long as the agency has a realistic means for archiving the information and searching it.

When the officer IS completing a crime report. In the second situation, an officer has determined that the legal elements of a sexual assault offense ARE met and is therefore completing a crime report. If a victim requests that an informational report be conducted in that situation — instead of the crime report — some agency policies may allow this to be done, and it may be appropriate. However, other agencies may respond to this type of request in a different way. For example, agencies with protocols for anonymous reporting or blind reporting may recommend that victims use that process in this type of situation (and the anonymous/blind report might technically be an informational report). However, other agencies may respond by continuing with the crime report but seeking to address the victim’s underlying concerns and honoring the victim’s request to decline further investigation and prosecution.

In fact, the essence of this question may have less to do with the report form used by an officer and more to do with what happens next for the criminal justice process. In other words, can the victim have a say in whether or not the case is actively investigated and prosecution is pursued? These issues are even more complicated, and they are addressed in the following question. However, the short answer is that victims CANNOT make the decision regarding whether or not a report will be investigated and prosecuted – but they CAN make decisions about whether or not they will actively participate in the process – and this may realistically determine what happens with the investigation and prosecution.

For more information on the various reporting options available to law enforcement, please see the Alternative Reporting Options tab in the Forensic Compliance Resources section of the EVAWI website. There you will see a variety of resources, including a document defining concepts and terms for various reporting methods and an archived webinar on Alternative Reporting Methods.

When the officer is not taking any report. Of course, there is also a third type of situation that is arguably the most challenging — when the officer is not writing any report at all because the he/she doesn’t believe the victim and doesn’t see the report as credible. In this situation, the best response is likely to contact the officer’s first level supervisor (generally a Sergeant) or a second level supervisor (generally a Lieutenant). Depending on their response, victims and their advocates can also typically make a complaint to Internal Affairs who could then launch an investigation if Department Policies and Procedures have been violated. Although some agencies allow their officers discretion in determining whether or not to write a report in this situation, we believe the best practice is to remove this discretion in the agency’s policy directives governing sexual assault investigations. This would be accomplished with a statement dictating that all reports of sexual assault will be documented with a written report, whether it is an informational report or crime report, and then reviewed by a supervisor.

For more information on this difficult topic, please see the best practice recommendations in our OnLine Training Institute module on False Reports as well as the advocacy strategies outlined in the module on Effective Victim Advocacy in the Criminal Justice System.

Some victims will be unable to effectively communicate consent for the same reason they are incapable of consenting to sexual acts in the first place – because of a severe cognitive disability or incapacitation as a result of drug or alcohol use. In these situations, the strategy for investigating and prosecuting the case will be the same as outlined above, in response to the first question.

On the other hand, some victims may be perfectly capable of consenting to sexual acts based on their cognitive abilities — but unable to communicate that consent because of a physical disability. This situation is very different in many important ways from the one described above. However, the logic of the investigation and prosecution will be fundamentally similar. When investigating a sexual assault offense based on the victim’s inability to consent (or communicate consent) the legal elements are as follows:

  1. Sexual penetration (no matter how slight) or sexual contact depending on the offense code being used
  2. The victim was unable to consent to sexual acts – or unable to communicate that consent – because of a disability or incapacitation.
  3. The suspect knew or should have known the extent of the victim’s disability or incapacitation.

There is no clear legal standard for establishing how severe the victim’s disability or incapacitation must be to render an individual incapable of communicating consent, so this must be established with evidence gathered during a thorough law enforcement investigation. However, it is important to keep in mind that this communication of non-consent does not need to be verbal. Even when victims cannot speak words, they may be able to push the suspect away or resist in other ways (e.g., trying to hold their legs closed, clamping down to prevent anything from entering their mouth, etc.). Beyond resistance, victims also frequently express their non-consent to sexual acts using other non-verbal behaviors or body language (e.g., crying, indicators of fear). Evidence of these behaviors are critical for documenting the lack of consent among non-verbal victims. However, they should also be documented whenever they are present in any sexual assault case – because they can corroborate the victim’s statement that sexual acts have been committed without consent.

Community protocols need to clarify what rights (if any) victims have for returning clothing or other evidence associated with various forms of reports (e.g., clothing, bedding). This information can then be incorporated into the informational materials created for victims. In communities where evidence is stored anonymously by law enforcement, it may be difficult for victims to have anything returned to them, because some form of identification is typically required before evidence can be returned to its lawful owner. However, if the victim has met with law enforcement at some point during the alternative reporting procedure, it is possible that the officer can make the necessary arrangements to have certain items returned to the victim if requested. This would likely require the victim to show proper identification, with the understanding that the victim’s identity will not be recorded as part of the report.

When evidence in connection with such a report is stored by a SAFE program or other health care facility, it may be easier to return some items to the victim if requested. However, this will likely pertain only to items such as clothing or bedding. Serious concerns would arise if victims were offered the option of requesting other types of evidence (e.g., biological samples collected during a medical forensic examination). Among other concerns, this might create an opportunity for suspects to intimidate victims into requesting to have evidence returned, to obstruct the investigation and potential prosecution. We therefore recommend that informational materials clarify that any biological evidence collected does not belong to the victim and that no process exists for victims to request access to this evidence or have it returned to them.

In most of the discussion of medical mandated reporting, it is assumed that the report to law enforcement will include the victim’s name and/or other identifying information. However, there is an important distinction between states that require mandated reports to include the victim’s name and other identifying information – and those that do not.

In some states, health care providers must provide the victim’s name to law enforcement, so mandated reports cannot be anonymous. It should go without saying that this must be made very clear to victims.

In other states, health care professionals may be able to meet their mandated reporting obligation without providing the victim’s name or identifying information. For example, the SAFE or other health care professional may use a standard report form, but write the phrase “declined by patient” in the space for the patient’s name, address, and telephone number. The same phrase might also be used in place of the suspect’s information. In addition, a non-identifying address may be used for the location of the assault. For example, if the assault was committed in the victim’s own home (or the victim is unsure where it happened), the address for the police department could be used. Alternatively, the 100-block of the assault location could be used to avoid listing a specific address that would identify the victim.

Any such protocol must be carefully designed with collaboration between law enforcement personnel, health care providers, victim advocates, and other community professionals. The protocol must also be supported with written documentation of a good faith agreement that law enforcement agencies will not investigate these reports, except in certain circumstances.

The following response was written by Dr. Jim Hopper, Clinical Psychologist, Independent Consultant and Teaching Associate in Psychology, Harvard Medical School.

Dr. Jim Hopper: If “fear” refers to the subjective experience of being afraid, one can be conscious of being assaulted (i.e., not passed out) but not experience fear. That’s the main way that dissociation, a relatively common and automatic survival reflex, protects people in the midst of traumatic and horrible experiences like sexual assault. Dissociation is a way of escaping mentally when physical escape is (or is appraised as) impossible or likely to get one killed or seriously physically injured.

In this training material, the “defense circuitry” is described as a circuitry of the brain that:

  1. Continually scans the external and internal world, automatically and outside of awareness, for threats and danger, even hints that danger could be near or imminent, and;
  2. When it detects possible or actual danger, let alone undeniable attack, automatically and immediately implements survival reflexes and/or self-protective habits, along with a variety of physiological changes in the brain and body.

That circuitry has been known as the “fear circuitry” for decades, even though it can (a) trigger states of dissociation in which fear is not subjectively experienced and (b) continue functioning in the absence of such experiential fear.

Recently some researchers, notably the influential neuroscientist Joseph LeDoux, who has devoted his career to studying what he himself long referred to as the “fear circuitry,” have for good reasons advocated restricting using “fear circuitry” to refer to the circuitry responsible for fearful subjective mental states and using “defense circuits” or “defense circuitry” to refer to the mostly subcortical circuitry, including the amygdala, that detects and responds to threats and attacks, including with defensive behaviors and physiological adjustments that promote survival of predatory attack (LeDoux & Pine, 2016).1  In line with this development, I have now begun using the term “defense circuitry,” to describe these functions, and their impacts on the brain, experience, and behavior – which do not necessarily include mental states of “fear.” However, videos and webinars and writings of mine are still available that use the term “fear circuitry,” and what I say in them is still valid. The viewer or reader just needs to know that “fear circuitry” is interchangeable with “defense circuitry.”


1 See LeDoux, J. & Pine, D. (2016). Using neuroscience to help understand fear and anxiety: A two system framework, American Journal of Psychiatry, 173, 1083-1093.

While preparing for an interview with a sexual assault victim, one of the critical decisions to make is whether or not to tape it (either audio or video). This can be a controversial issue in some communities (although this is becoming less true), and both police and prosecutors must weigh the advantages and disadvantages before implementing any policy. However, it is worth noting that interviews with child victims have been taped for years, and law enforcement professionals typically recognize the important advantages of this practice. Many of the same advantages also exist for adult victims.

The primary advantage of taping a victim interview is that it provides a more reliable method of documentation than written notes. In other words, it provides the “best record” of the interview.

  • Taping also records more details than could be summarized in a police report, which increases the amount of information recorded and can often reduce any redundancy in follow-up interviews.
  • Investigators are also much better able to listen carefully to the victim – without constantly interrupting and disrupting the victim’s narrative (which can also create inconsistencies) – because they are not also trying to take notes and/or write a report at the same time. When the interview is taped, the investigator can simply listen to the victim’s narrative and jot down questions to ask later when it is complete.
  • Taping also communicates to the victim that the investigator is taking the case seriously and investigating it thoroughly. It conveys to the victim that the investigator wants to make sure that all of the details are recorded accurately.
  • In addition, tapes of an interview can make it possible to determine the source of any inconsistent information. In many cases, the tape reveals that the person responsible for the inconsistency is not the victim but the investigator who documented a fact incorrectly or simply misunderstood something the victim said. This can be a tremendous help for successful prosecution, because such inconsistencies can otherwise damage the victim’s credibility.
  • Because taping more accurately records all of the details of an interview, it can also help investigators to synopsize statements, and this may be especially important for cases that do not move forward for prosecution. With these cases, the victim may later want the investigation re-activated or additional victims may be identified, and it is easy to review the taped interview from the previous investigation and use it as evidence for the reactivated investigation.
  • Taping can have the additional benefit of protecting the investigator if a complaint or misunderstanding should arise as a result of what was said.
  • Tapes can also be reviewed for training or supervisory purposes, to improve the quality of interviews conducted by the law enforcement agency.
  • Finally, taping can better convey to prosecutors, judges, and jurors the immediate response of victims to sexual assault.

Law enforcement professionals often have the unique opportunity to talk with victims in the aftermath of the sexual assault, while their emotions are still raw. Their words and demeanor – whether angry, withdrawn, in shock, etc. – can be important in conveying the actual response of victims and bolstering their credibility. Victims often act very differently later, when they encounter prosecutors or jurors – months after the assault and perhaps after the benefit of counseling. Taping can therefore document the immediate response of the victim to trauma, which can be an important benefit for the prosecution. This last advantage also suggests the importance of preserving the tape of the 911 call that the victim made regarding the assault, if there is one.

On the other hand, the primary disadvantage of taping is that it can sometimes be used against victims.

  • For example, if the victim’s demeanor does not fit the stereotype of “real rape, this can be used to undermine the victim’s credibility or even raise suspicion that it is a false report.
  • Victims also often make statements that can be used later to challenge their credibility. To illustrate, the victim might omit important information or provide partial truths in order to make the sexual assault sound more like “real rape.” Victims also sometimes make a statement that they caused or somehow deserved the sexual assault, because they have internalized the societal myths that blame victims rather than perpetrators.

In these cases, it rests with police and prosecutors to help judges and jurors understand the victim’s behavior as typical of how people really respond to the experience of being sexually assaulted. In fact, investigators and prosecutors make a serious mistake when they try to “package” the victim or dress victims up as someone they really are not. This will include failing to document any “damaging” facts or statements, cleaning up the victim’s use of slang or street language, and using sanitized, professional terms to describe what happened.

  • Just like the rest of us, jurors do not like feeling that they are being fooled – as they are when victims are “packaged,” with their word and actions “cleaned up.”
  • Jurors are likely to see through the effort anyway, so investigators and prosecutors are better off presenting a realistic picture of victims as they really are, and helping judges and jurors understand that many of these same words and actions are commonly seen among victims, given the realistic dynamics of sexual assault.

Of course, law enforcement professionals also often fear that if they record their interviews, any mistakes THEY make will be memorialized forever and used by the defense. This certainly can happen.

  • As with victims, investigators will make mistakes during the interview, just like any other human being conducting a very difficult, complex, and sensitive task.
  • And as with victims, any mistakes made by the investigator will be recorded and perhaps used by the defense to undermine the case. Yet this disadvantage does not outweigh the many advantages of taping victim interviews.

In fact, it raises concern that without a tape of the victim interview, investigators are able to document only certain pieces of information and not others.

Clearly, best practice is to document all of the information from the victim interview, and the only way to do so is to record it. Any problems that this may pose for the investigation and prosecution must simply be dealt with, as investigators uncover the details of the sexual assault.

  • For agencies that do implement a policy of taping victim interviews, it is critically important that victims are always advised of this fact because it would otherwise constitute a severe betrayal of trust that could negatively affect both the investigation as well as the victim’s emotional recovery.
  • Victims must also be offered the services of an advocate to provide them with information and support during the interview process. The advocate can also discuss with the victim any issues or concerns that arise as a result of taping.

In agencies where interviews are routinely recorded, most victims do not have a problem with it as long as the investigator explains to them that this will provide the best record of the interview. When victims are advised of the policy and the reasons for it, taped interviews can be one of the most effective tools in increasing the likelihood of successful investigation and prosecution of these cases.

This response is an adapted excerpt from the OnLine Training Institute (OLTI) module entitled, Interviewing the Victim: Techniques Based on the Realistic Dynamics of Sexual Assault.

Mills, J.K. (1989). The initial interview of sexual assault victims: A humanistic approach to investigation. Police Chief, 56 (4), p.119-122.

The following response was written by Dr. Jim Hopper, Clinical Psychologist, Independent Consultant and Teaching Associate in Psychology, Harvard Medical School.

Dr. Jim Hopper: You cannot strengthen the encoding or storage of a piece of memory that was not encoded in the first place. When experiences are encoded and stored in memory, they are encoded as pieces or “memory representations” that are literally distributed around the brain. Encoding happens during and immediately after the experience, such that external and internal sensory information and thoughts are represented in particular areas of the brain as they are being processed during the experience. They are first encoded into short-term memory, which is a kind of “buffer” (like a computer’s RAM) that lasts only about 30 seconds. Visual images are encoded in occipital or visual cortex; sounds are encoded in temporal or auditory cortex; body sensations are encoded in somatosensory cortex; etc. After that initial encoding into short-term memory, the information may – or may not – be “consolidated” or stored into long-term memory.

Also, some representations are encoded into short-term memory more strongly than others. This “encoding strength” is influenced by:

  1. How much attention was given to that part of the experience (e.g., whether it was a central or peripheral detail and/or how long it was present to awareness and being encoded); and
  2. How much emotional significance it had at the time (e.g., a victim who placed great hope that a person coming into the room would stop the perpetrator, only to have those hopes dashed when they realized they were not going to be rescued and the assault continued).

However, just because a part of the experience gets encoded into memory does not mean that it will get consolidated and then be available for later retrieval. Once the hippocampus goes into the minimal-encoding or “refractory mode,” there may be new information that gets encoded into short-term memory but does not get consolidated into long-term memory. This is because, during that minimal-encoding phase, hippocampal resources are devoted to consolidating information encoded from right before, to not long after, the moment when the defense circuitry detected that a sexual assault was happening, or to consolidating other (central) aspects that were experienced while the hippocampus is in that initial super-encoding phase.

Finally, consolidation is a process that takes time. When encoded information gets “tagged” for the consolidation process (before it disappears from short-term memory), that is only the beginning of a consolidation process that involves a variety of cellular and circuitry processes. These will take place over the following minutes, hours, and days, including during sleep. Also, it’s important to remember that central details are prioritized for consolidation and long-term storage – but not peripheral details, which are fading fast, even as we sleep.

When I talk about potentially strengthening or weakening memories, I am referring to a process that memory researchers refer to as “reconsolidation.” Basically, every time a collection of previously consolidated memory representations is retrieved, that collection of representations and the connections between those representations (which are “associations” that literally depend on connections between brain cells), (a) become malleable, that is, susceptible to alteration, and (b) will then undergo a “re-consolidation” process, whereby any changes, additions or subtractions to that collection of memory pieces and the connections between them is re-consolidated or stored into the brain again.

Therefore, every time someone activates and retrieves into awareness a collection of memory pieces (e.g., in response to an investigator’s question, retrieves a few images, a sound, and a couple of body sensations from a particular part of an assault), there is the potential for more – or less – completely retrieving the memory representations that were originally encoded at that moment in the assault.

There is also a potential for “sending into reconsolidation” a more or less fleshed-out array of memory representations. A poorly worded question, or a question said in an impatient tone of voice that makes a sexual assault victim feel unsafe or under interrogation, may potentially prevent them from being able to retrieve that memory into awareness. Or a particularly embarrassing piece of memory can cause a victim to remember fewer details than have actually been encoded and consolidated into memory. Even worse, this may cause a victim to reconsolidate that part of the experience without those pieces of memory that were not retrieved due to the investigator’s interviewing techniques or style. In this way, poorly conducted interviews can actually cause victims to lose pieces of their memories, because those pieces were not retrieved and thus not reconsolidated.

When that has happened, going forward it will be even harder for the victim to activate and retrieve these pieces of memory into awareness, and they may become inaccessible from then on. In contrast, an investigator who uses an effective interviewing approach — with good questions and a way of relating that enables a victim to feel safe and to access many more pieces of memory — will help the victim to repeatedly retrieve and reconsolidate memories that are as complete and accurate as possible. In this way, well-conducted investigative interviews can increase the completeness, accuracy, and accessibility of memories.

Most unfortunate is when an interviewer asks leading questions that actually inject false information into the victim’s memories. This might be done without even realizing it, if the investigator isn’t vigilant about avoiding making that mistake (as good interviewing methods teach one to do). Then, that incorrect information becomes integrated into the victim’s reconsolidated memories. In my experience as an expert witness working on sexual assault cases, including reviewing videotapes and transcripts of investigative interviews, the majority of inconsistent and inaccurate memories of sexual assault victims are created by poorly conducted investigative interviews. (However, forensic examiners, prosecutors, and well-meaning family members and friends also often ask leading questions and inadvertently introduce false information into victims’ memories.)

Finally, because stress impairs memory retrieval, there will often be pieces of memory – sometimes pieces critical to an investigation – that have been encoded and even transferred into long-term memory but cannot be recalled during a stressful investigative interview. In this situation, it may only be after the person being interviewed is much less stressed, perhaps after getting some sleep, or engaging in calming everyday activities (such as showering or driving), or feeling safer with the interviewer the second time around, that key information – including central details – is available for recall, no matter how good the interviewing approach.

Again, the information may have been encoded, and it may be “in there.” But if the person is stressed, it may not be retrieved in response to an investigator’s questioning. Failure to understand this can result in all kinds of problems, including: closing a case as unfounded based on incomplete immediate recollections and inconsistencies (real or perceived) that lead to questions about a victim’s credibility; not collecting important information because the investigator didn’t conduct an interview after the victim’s stress level had sufficiently decreased; questioning why the victim didn’t relay or withheld certain information during the first interview; and assuming that the victim was untruthful and actually able to retrieve that information previously when that may not have been the case.

The following response was written by Dr. Jim Hopper, Clinical Psychologist, Independent Consultant and Teaching Associate in Psychology, Harvard Medical School.

Dr. Jim Hopper: The brain-based reactions that people have during sexual assault have been “baked into” human brains by millions of years of evolution and are basically the same for all people, whatever their sex, gender, race or ethnicity. There is some evidence for differences between men and women, based on hormone levels that may vary with the phase of the menstrual cycle. However, the evidence for such differences is limited, and the similarities between men and women are greater than any differences. Furthermore, any such differences tend to be a matter of degree (and/or the probability of having a particular response), rather than completely different categories of responses. It is also worth noting that the ways these basic responses are expressed, in physiology and behaviors, may be influenced by:

  1. Specific genes or combinations of genes, which may differ between biological siblings;
  2. How gene expression is shaped by environmental factors, including by stress and trauma during development and by social and cultural factors associated with race, class, sex, and gender identity, and;
  3. In some cases, by habits of behavior (including verbal behavior) shaped by familial and various other social and cultural factors.

This training material focuses on brain-based responses that are (a) quite common in sexual assault victims and (b) still not understood as brain-based by most victims, investigators and everyone else. Of course there are many different responses people can have during a sexual assault, and not all of them are associated with massive impairments in prefrontal cortex functioning or are purely based on habits and reflexes (although the more stressed, afraid, and overwhelmed the person is, the more that will be the case).

Some sexual assaults take place over substantial periods of time, over hours or even days. During such long-lasting sexual assaults (and even in those lasting a shorter period of time), people may have varying levels of defense circuitry domination and prefrontal cortex function, resulting in varying potentials to respond based on reasoning, deliberate choices, etc. Also, social and cultural conditioning (for example, associated with sex and gender identity) can determine which habits are accessed while the defense circuitry is in control. Thus some men and women from certain families or communities may be much more likely to engage in verbally or physically aggressive responses, even when they lack prefrontal cortex function.

Genetics also play a role, in ways associated with being biologically/genetically male or female, and in ways that are unrelated to biological sex. For example, tendencies to dissociate or enter into tonic immobility appear to be partly genetically based. There is also some evidence that collapsed immobility is more likely in some people than others due to genetic factors, and that those genetic factors are more prevalent in women than men. Interestingly, these factors are associated with blood and needle phobias, and passing out in situations involving blood or needles.

Finally, in response to the question of who were the subjects in this research, my training materials draw on research from thousands of studies involving many different species of animals, from birds and fish to mammals; studies of many different mammalian species, from rats and rabbits to primates and humans; and studies of male and female humans. I am not aware of differences in brain-based responses to predatory attack or sexual assault as a function of race, ethnicity, gender, sexual identity or sexual orientation. As noted above, the brain-based responses on which the presentation focused have been selected by millions, even hundreds of millions of years of evolution, and the fundamental realities described in this training material – including defense-circuitry control, prefrontal cortex impairment, and responses based on reflexes and habits – will be preserved across all kinds of other differences between people.

The following response was written by Dr. Jim Hopper, Clinical Psychologist, Independent Consultant and Teaching Associate in Psychology, Harvard Medical School.

Dr. Jim Hopper: By referring to the “continuum of tonic immobility,” I just mean that it’s not always an all-or-nothing state. Some victims report being able to move one or two parts of their bodies (e.g., one hand but not the other, or both hands but not arms) to some extent, but not the rest of their body.

Sometimes victims report slowly emerging from tonic immobility, although the state typically ends very suddenly, as we see in this video involving a dog. The differences between tonic and collapsed immobility are addressed in this training material. However, I can summarize it here. In tonic immobility the body is rigid, and the person may or may not be dissociated, but the person will not typically become faint or lose consciousness. In collapsed immobility, the body becomes limp, and due to dramatic decreases in blood pressure and heart rate, the brain receives less oxygenated blood. As a result, the person becomes faint and may even pass out. Then, given the oxygen deprivation issues, emergence from collapsed immobility is always more gradual.

For much more detailed information on tonic and collapsed immobility, please see the excellent review article by Kozlowska et al. (2015).2


2 For much more detailed information on tonic and collapsed immobility, please see the excellent review article by Kozlowska, K., et al. (2015). Fear and the defense cascade: Clinical implications and management. Harvard Review of Psychiatry, 23, 263-287.

No, you do not need a sworn statement from a victim of sexual assault, or any other witness. Although some law enforcement agencies have a policy or practice of getting a sworn statement from all sexual assault victims – and many sincerely believe they need one – there is no legal requirement for it and no obvious advantage in terms of prosecutorial strategy. The reality is that a case will be successfully prosecuted based on the strength of the evidence – if the investigative findings establish a body of evidence to corroborate the victim’s statement, this will be far more powerful and persuasive to jurors than a signature on a form. Conversely, the victim’s sworn statement alone will not be sufficient to successfully prosecute a case of sexual assault, if there is no evidence based on a solid investigation.

In fact, not only is there no clear advantage for this practice, there are a number of very critical disadvantages. First, requiring victims to sign a sworn statement typically means that the investigator must complete the statement, type it up, and get the victim to sign it before she/he leaves. For a number of reasons, this seriously limits the investigator’s ability to conduct a successful interview. If investigators are expected to take notes and write a report during the interview, they cannot take the time they need to focus on listening and asking good follow-up questions– let alone digesting, processing, analyzing, and compiling the information and producing a report that is well written and likely to support successful prosecution. Common sense suggests that a better strategy is to allow investigators the time they need to conduct the best possible interview and thorough documentation.

Second, asking victims for a sworn statement negatively affects the rapport that is key to establishing a successful working relationship between the victim and investigator. The practice communicates a fundamental distrust in the victim’s information, and it is frankly frightening to many victims. This is especially true when the statement includes a perjury clause, requiring the victim to sign a statement affirming that the written information is accurate under penalty of perjury. Given the well-documented effects of trauma on memory and recall, the reality is that any statement made by a victim in the aftermath of a sexual assault is almost certain to contain information and potential inaccuracies. These issues are explained in detail in an article entitled, Incomplete, Inconsistent, and Untrue Statements Made by Victims: Understanding the Causes and Overcoming the Challenges.

Then there is the additional concern that the investigator has recorded something incorrectly, and the victim did not catch it before signing the sworn statement. Of course, the likelihood of such inaccuracies – both on the part of the victim as well as the investigator – is only increased by the fact that this practice makes the interview process longer and more difficult for both individuals. In other words, this practice creates a situation that virtually guarantees inaccuracies in the victim’s statement, and then the person is asked to sign a statement under penalty of perjury that it is accurate.

The use of a sworn statement also makes it extremely difficult to correct inaccuracies when they are identified. Without such a sworn statement, it is a rather straightforward matter to come back to the victim with follow-up questions to clarify any inconsistencies, omissions, or even untrue details. (We address this issue as well in the article on Victim Statements.) However, once the victim has signed such a statement, she/he is faced with two terrible choices: continuing to “lie” or committing perjury.

The practice also makes it more difficult to add information later, when the victim recalls additional details and/or the investigator conducts a follow-up interview as part of a thorough and evolving investigation. At any point in time, a victim is generally relaying the information that is important to them and what they are able to recall at that time. Victims will often recall additional information at a later time, and even at unexpected times. Memories are often triggered, by sounds, sights, and smells, and the investigator should record this additional information to strengthen the case. With a sworn statement, it can look as if this natural process of recalling additional information somehow raises questions about the accuracy of the initial statement and victims are rightly worried that they could potentially be charged with perjury if they contradict something they previously said to the investigator.

How does any of this help us to meet the goal of successfully and prosecuting sexual assault? It does not. In fact, it makes this goal more difficult to achieve, by creating barriers and solidifying the fears that keep many victims from engaging the criminal justice system. This is especially true when victims are required to sign a sworn statement at the conclusion of their interview, but would be true to a lesser degree even if they were asked to sign the sworn statement at a later point in time.

If there is any reason to question whether a person is capable of providing consent to sexual activity, the investigation of a suspected sexual assault will need to focus on documenting the victim’s capabilities as well as any limitations due to disabilities. Typically, this will be a severe cognitive disability such as intellectual disability (formerly called mental retardation). However, there are other examples of cognitive disabilities that impair a person’s ability to think and learn. These could result from brain injuries or neurodegenerative diseases like dementia. If they are severe enough, they could also prevent a person from being able to provide informed consent to sexual acts. There are also situations where victims have a severe mental illness that precludes their ability to provide informed consent to sexual acts.

Regardless of the specific cause, the criminal offense is based on the person’s inability to consent to sexual acts. Specifically, three legal elements must be established:

  1. The sexual acts committed by the suspect
  2. The victim’s lack of capacity to consent to sexual acts, due to a severe cognitive disability (or mental illness)
  3. The suspect’s knowledge of the victim’s severe cognitive disability (or mental illness)

Determining the severity of a victim’s cognitive disability (or mental illness) is no simple task, and we dedicate a significant portion of the OnLine Training Institute (OLTI) module Successfully Investigating Sexual Assault Against Victims with Disabilities to providing guidance in this area. It is worth noting, however, that these determinations are not made during the preliminary response, or even by law enforcement investigators or prosecutors alone. Such decisions should be made with the assistance of clinical experts, because they have ramifications for the individual far beyond the criminal justice process in this case.

Given the complexity and variation involved in every aspect of human behavior, as well as differing experiences and abilities of individuals, the answer to this question has to be “yes” – people do have different abilities to recall incidents in different levels of detail. However, keep in mind that this has as much – if not more – to do with the incident being recalled as it does with the person doing the recalling. In other words, both situational and individual factors will influence a person’s ability to recall an event in detail. One of the primary situational factors influencing a person’s ability to recall an event is the level of stress and trauma experienced by the person – both during the original event as well as the situation where they are being asked to recall the memory and relay it. Another critical factor is the specific types of memory cues used to help the person remember the important centralized details of the experience.

While the answer to this question could probably fill a thousand pages, the key point for our purpose is that memory is not a straightforward process, and it certainly does not operate like a video camera. Countless factors can influence our memories – both at the point they are being encoded in memory – as well as during the time they are in storage – and even later, while they are being recalled. In fact, each time a memory is recalled it is subject to the influences of new factors before, during, and after subsequent retellings. As a result, there are three primary implications for law enforcement investigators conducting a detailed victim interview.

First, we must recognize that victims will inevitably have memories of the crime that are incomplete, inconsistent, and even confusing or containing factual errors. This is especially likely if we interview them using a traditional police style that focuses on their cognitive recall of peripheral details and which emphasizes the chronological order of events (“who, what, when, where, why”). Keep in mind that traditional law enforcement interview techniques were developed long before some of the groundbreaking neuroscience research was conducted over the past 10-15 years. What we now know is that memory is not simply a matter of experiencing something and then recalling that particular experience in a chronological, narrative manner. Science now assists us in understanding that memory is often fragmented and comprised of images, smells, sounds, feelings, body sensations, behavior, thoughts, and impact. The Forensic Experiential Trauma Interview (FETI) technique was specifically designed to enhance experiential memory by incorporating best practices from child forensic interviews, critical incident stress debriefings, and neuroscience research.

By using the strategies outlined in the FETI, investigators can help prompt victims to remember more details of their traumatic victimization. For example, asking victims open-ended and sensory focused questions can prompt their recall so memories emerge in whatever order and format they have been stored and recalled. With the FETI, Victims are not forced to reconstruct and repackage their memories to fit our idea of what their narrative should sound like – or worse – to fill in the boxes of an agency’s form. As an additional benefit, investigators using this type of approach may find that they are less likely to ask leading questions or to make statements that sound skeptical or judgmental to victims.

Finally, this perspective reminds us to take every possible step to ensure that the interview environment is a safe one for victims to recall their traumatic experiences. More often than not, victims are asked to share an experience that is not only traumatic and difficult to relive through recall, but is also very frightening. In fact, interviewing a victim is a rather intimate act – or at least it should be if it is being done properly. By creating the type of environment that encourages trust, we are also encouraging openness. This is why the first step in effectively interviewing a trauma victim must be the demonstration of sincere empathy, because this is the only way to create genuine trust.

There are very few ‘hard and fast rules’ when it comes to interviewing a victim of sexual assault. For many victims who report a sexual assault months or years later, it is because something triggered the desire to do so, and this triggering event or experience is also likely to rekindle some degree of traumatic response. The act of reporting and being interviewed by law enforcement will also cause the victim to re-experience the sexual assault on some level. Therefore these and other factors should be taken into account when deciding when the best time is to schedule the detailed interview. For some victims, this may be at the time of reporting. They may feel that they finally worked up the courage to contact law enforcement and so they just want the interview behind them. Others may need to provide some basic information during the initial contact and then schedule a more detailed interview for later. A follow-up interview is almost always needed (see below). Many victims will also have logistical issues to consider when scheduling the interview. All of these can be taken into account when making a decision on a case-by-case basis.

Some of this same information is covered in the training bulletin entitled, When to Conduct an Exam or Interview. The bottom line is that we should focus on what we can do to help victims participate in the process and provide the best information they can.

Several states have legislation in place that specifically addresses the presence of an advocate in sexual assault cases. AEquitas: The Prosecutor’s Resource on Violence Against Women, has prepared a Statutory Compilation of the states that have a laws specific to the presence of an advocate.

In some states, victims of sexual assault have a legal right to have an advocate present during any stage of the medical forensic exam, investigation or prosecution. For example, in California, state law (Penal Code Section 679.04) gives victims of sexual assault the right to have an advocate present during any stage of the investigation and prosecution. This means the advocate cannot be excluded by law enforcement professionals or prosecutors, if the victim wants the advocate to be present. California law also gives victims the right to have an additional support person of their choosing present at all interviews and other investigative procedures, unless the law enforcement professional or prosecutor deems that the support person is likely to be disruptive.

In Oregon, state law (OR 70.125.060) provides victims who are at least 15 years old with a legal right to have a “personal representative” present with them during most phases of a law enforcement investigation, including the medical forensic examination. The statute (known as the “personal representative law”) states the following:

  • The victim may choose anyone 18 years or older (advocate, friend, or family member) to be their personal representative.
  • The personal representative may not be a suspect in the criminal case, or a witness or party to the criminal case.
  • The personal representative’s role is to provide emotional support for the victim.
  • The personal representative may not be prohibited from accompanying a victim unless a health care provider, law enforcement agency, protective service worker, or court believes the personal representative would compromise the process.

Other states, such as Florida, Iowa, and others, also have laws that address the presence of an advocate during the medical forensic exam, during interviews with law enforcement and prosecutors, and in courtroom proceedings. For detailed information on these statutes, please see the Statutory Compilation from AEquitas.

This does not mean, however, that states without such a law do not allow advocates to be present during these procedures. It simply means that the presence of an advocate is not protected by state statute, so the determination of whether or not an advocate will be present is left up to each individual facility or jurisdiction.

These laws can be helpful because victims benefit from the presence of an advocate in many ways. Advocacy services facilitate victim recovery and increase access to the entire community response system; this includes the criminal justice system as well as other social services. When an advocate is present, victims are more likely to have a police report taken, more likely to receive quality medical care, and are less reluctant to seek further help from community response systems. As a result, they have better recovery outcomes. For detailed information on the benefit of having an advocate present, please see the FAQ on this topic.

With respect to interviewing strategies, much of the information we provide would be equally relevant for victims of sexual assault who are in correctional settings, as well as those who are not.  Of course, the dynamics of sexual assault are somewhat different in a correctional setting – as is the process of an investigation – but these differences would not alter the fundamental interview strategy.  Such issues are addressed in the standards issued by the U.S. Department of Justice in 2012 to support the Prison Rape Elimination Act (PREA) which was originally passed in 2003.  For more information and resources in this area, readers are referred to the website for Just Detention International, a health and human rights organization that seeks to end sexual abuse in all forms of detention.

Health care professionals and others have asked whether routine notification of advocates violates the privacy protections outlined in HIPAA (the Health Insurance Portability and Accountability Act of 1996). Although the name of the patient might not be revealed when an advocate is called out to respond, some have interpreted the face to face contact that may be made as violating HIPPA. Many programs continue to struggle with this issue, and have a real desire to assure meaningful access to advocacy services. As described by Kim Day, who is the SAFE Technical Assistance Coordinator at the International Association of Forensic Nurses (IAFN):

The argument often raised by programs is that the hospital cannot call anyone outside the hospital system without the patient’s express consent. In some facilities the Triage Nurse or Forensic Nurse will tell the patient that volunteer advocates are available to talk to them, and ask whether the patient would like the volunteer to be called. There are also some facilities that request the patient to sign a specific consent form to have an advocate called out to respond.

When this is the protocol, many times the patient will decline advocacy presence, for a variety of reasons, often the most compelling being the patient does not want to ‘bother’ having someone called in for them. It should be foremost in the healthcare provider’s mind that the patient may be in crisis and may not have all the information necessary to make an informed decision right up front as they are beginning the episode of care. This results in the advocate not being called and the patient will probably not be provided any immediate crisis counseling or advocacy — nor will the patient be adequately connected with referrals to counseling, emergency assistance, health care services, legal resources, or assistance with crime victim compensation. The nurse may or may not have sufficient knowledge of the intricacies of these community referrals, and the hospital’s social work department will not typically be involved to fill that void.

Best practice is for the advocate to be called to the hospital or other exam facility as soon as possible after a patient discloses a sexual assault. The advocate can then explain the services that she/he can offer, before asking the patient whether or not she/he should stay. This practice greatly increases the likelihood that the patient will take advantage of the many services an advocate can offer, including being connected to the other resources and referrals that are available in the community.

Note: Thanks to Kim Day, RN, FNE, SANE-A, SANE-P for her assistance with this response. She serves as the SAFE Technical Assistance Coordinator for the International Association of Forensic Nurses (IAFN).

How to Respond: Check State Law

There are a variety of ways to address this issue, and the first step is to find out whether there is any state law explicitly requiring or allowing health care providers to notify a victim advocacy agency when a patient discloses sexual assault victimization. Fortunately, there is a compilation of state statutes that was prepared by AEquitas: The Prosecutors’ Resource on Violence Against Women in collaboration with the National Sexual Violence Resource Center (NSVRC). It is current as of March 2011. As described in that compilation, state laws regarding victim rights generally “fall into one of two categories: (1) laws that specifically relate to victims of sexual assault and (2) laws that provide the right to advocate presence for all victims” (p. 2). As of March 2011, such laws had been enacted by 11 states and they can be used to argue that there is clear justification for health care providers to notify advocacy agencies.

Seek Legal Guidance

Other guidance suggests that health care facilities have a general authorization to notify advocacy agencies. For example, in a series of fact sheets and other materials created by the Office of the Attorney General in Texas, in conjunction with the Texas Association of Sexual Assault, the question is asked:

Can a hospital notify a sexual assault program that a survivor is in transport to, or is currently present in, an emergency room? 

The answer provided in this material is YES.

A hospital may notify the program of a survivor’s presence in the ER. The hospital may do so as long as it provides only ‘de-identified information’ to the program. At a minimum, the hospital can tell the crisis center the following information about the survivor:

  1. Gender
  2. Ethnic or racial background
  3. Age
  4. Primary language

The material concludes with the following recommendation:

We encourage you to make arrangements to receive such information from your local hospital as soon as possible. An agreement between the hospital and your program will not only facilitate the exchange of such information between the hospital and your program, but will also ensure that the survivor receives the best possible service and care (Office of the Attorney General and Texas Coalition Against Sexual Assault, HIPAA Fact Sheet #2, p. 4).

Another strategy is therefore to seek similar legal guidance within your own state or territory.

Use an Alternative Notification Procedure

Yet another strategy is to implement a protocol where the victim advocacy agency is notified by an entity other than the hospital or exam facility. For example, many if not most sexual assault victims access a medical forensic examination as a result of contacting law enforcement. In these situations, it makes sense that law enforcement personnel would notify the advocacy agency to minimize delays and ensure that the advocate can respond to the exam facility as quickly as possible. Alternatively, the notification could be made by a dispatcher, communications personnel, switchboard operator and/or hotline worker, depending on the response protocol in a particular community – and the particular agency that serves as the initial access point for an individual victim.

For More Information

Readers are encouraged to consult the fact sheets and other materials that were previously described, that were created by the Office of the Attorney General in Texas, in conjunction with the Texas Association of Sexual Assault.

Information is also available in a webinar on victim privacy archived by the IAFN. In it, Susan Chasson, J.D., MSN, SANE-A, and Jessica Mindlin, Esq., discuss the issues of privacy, confidentiality, and consent. They also offer practical suggestions and solutions for the practitioners on common issues that may arise on patient privacy. Particularly helpful is the handout from the webinar that was developed by the IAFN to summarize the basic provisions of HIPAA and implications for medical forensic exams.

General support for the notification of advocates can be found in the position statement of the IAFN regarding the need for advocacy services to assist patients who disclose sexual assault victimization.

The chapter on Victim-Centered care in the National Protocol for Sexual Assault Medical Forensic Examinations (Adults/Adolescents) also strongly supports the need for advocacy services:

Utilize a system in which exam facility personnel, upon initial contact with a sexual assault patient, call the victim service/advocacy program and ask for an advocate to be sent to the exam site (unless an advocate has already been called). Prior to introducing the advocate to a patient, exam facility personnel should explain briefly to the patient the victim services offered and ask whether the victim wishes speak with the onsite advocate. Note that some jurisdictions require that patients be asked whether they want to talk with an advocate before the advocate is contacted. Ideally, a patient should be assisted by the same advocate during the entire exam process (p. 35).

When it comes to the neurobiology of trauma, the primary implication for how often to interview the victim is to keep in mind that any detailed interview of a sexual assault victim will re-trigger some level of traumatic response. This is because the process requires victims to re-experience the event on some level. Therefore, we should generally strive to minimize the number of times a victim is interviewed in detail.

Some professionals have taken this recommendation too far, however, and interpreted it to mean that victims should only be interviewed once – or that investigators should be very reluctant to re-contact victims to ask additional questions. In fact, such follow-up interviews are necessary to conduct a comprehensive investigation. To do their jobs well – and provide victims with the professional service they deserve – investigators will often need to re-contact them to ask more questions, as additional evidence and information is uncovered during the course of an ongoing investigation. The purpose of any follow-up interviews should be to gather additional information and clarify any questions, not to go over the same information again.

The goal is therefore to reduce the number of unnecessary professional contacts that take place with a victim and any professional – either because the case is being screened or the victim is being “handed off” to another professional due to a shift change, job rotation, etc. To illustrate, law enforcement agencies should have policies in place that provide their personnel with the resources needed to complete thorough sexual assault investigations. All law enforcement agencies should also place a priority on their sexual assault calls to avoid having responding officers called away.

Another approach that is often taken to this question is to reduce the number of interviews by conducting one jointly – with the law enforcement officer responding to the call and the health care professional conducting the medical forensic exam. This can be an effective strategy as long as it is recognized that only part of the interview can be conducted jointly. Both the officer and health care provider will need to talk with the victim separately, to gather information that is specific to their professional purpose. For more information, please see the FAQ on Joint Interviews in the Best Practices section of our website.

The following response was written by Dr. Jim Hopper, Clinical Psychologist, Independent Consultant and Teaching Associate in Psychology, Harvard Medical School.

Dr. Jim Hopper: Regardless of whether we are talking about physical abuse or sexual assault, if the perpetrator is extremely stressed, angry or enraged, then there will be impairment of the prefrontal cortex (thus of executive functions including reasoning, monitoring one’s behavior, controlling impulses, etc.) and the perpetrator will be acting on habits and impulses. In that case, the habits and impulses will be those associated with aggression, violence and domination (as opposed to the victim’s self-protective habits and survival reflexes). But not all perpetrators are angry or even particularly stressed when they engage in violence. For some, the violence is mostly or exclusively instrumental, that is, a way to manipulate and dominate their victim. Their brain may be in a state that is calm, cold, and calculating (even cruel or sadistic).

One group of researchers has categorized IPV perpetrators into “cobras” and “pit bulls,” with the cobras exhibiting decreased physiological arousal associated with calculated instrumental violence and the pit bulls inhibiting high levels of physiological arousal associated with (partly) reactive anger- or rage-fueled violence (Gottman & Jacobson, 2007).7 A pit bull engaging in violence would have activation of the defense circuitry (e.g., fear of being “disrespected,” “disobeyed,” abandoned, etc.) and activation of the circuitries associated with anger and rage (which are not entirely the same). This type of perpetrator can be largely motivated to avoid, escape and otherwise “defend” against feared states of helplessness, shame, and humiliation. Thus unlike the cobra, who may have a highly functioning prefrontal cortex focused on achieving dominance, humiliation of the victim, etc., the pit bull engaging in violence would have prefrontal cortex impairment and behavior dominated by aggressive habits and impulses.


7 Gottman, J. & Jacobson, N. (2007). When Men Batter women: New Insights into Ending Abusive Relationships. New York, NY: Simon & Schuster.

Safety is a critical concern for victims of sexual assault as well as intimate partner violence. Particularly in small towns, or other communities that are rural and/or remote, responding professionals must recognize victims’ fears stemming from the fact that most perpetrators are known. Victims are often very afraid of further violence – and possible retaliation by offenders and their families and friends for disclosing/reporting the crime. Of course, in cases where the suspect is a stranger, victims are also likely to be very worried if the suspect remains at large and poses a threat to them and their family members.

Fortunately, a number of resources and tools are available to assist professionals in helping victims to evaluate their own safety and engage in realistic safety planning. Excellent materials are offered by the National Network to End Domestic Violence and the National Sexual Violence Resource Center, among others. The National Protocol for Sexual Assault Medical Forensic Examinations also addresses issues of safety planning for victims. For example, to develop a safety plan for sexual assault victims, the following guidelines are offered in the National Protocol (the following section is quoted verbatim):

Screen for domestic and dating violence and other forms of abuse. Assist patients in considering things such as:

    • Where are they going after being discharged? With whom? Will these individuals provide them with adequate support? Is there anyone else they would like to contact? (Provide information about available community resources for obtaining support and help in making the contact if needed.)
    • Will their living arrangements expose them to the threat of continued violence or harassment? Is there a need for emergency shelter or alternative housing options? (Provide options and help obtain if needed.)
    • Are they eligible for protection orders? (Provide information and help obtain if desired.)
    • Is there a need for enhanced security measures? (Discuss options and help obtain if desired.)
    • If they feel unsafe, what will they do to get help? (Discuss options and help them develop a plan.)

Planning must take into account the needs and concerns of specific populations. For example, if patients with physical disabilities require shelter, the shelter must be accessible and staff able to meet their needs for personal assistance with activities of daily living. If patients living in institutional settings have been assaulted by another resident, a staff person, or person who has easy access to residents, the institution should offer alternative living arrangements and reduce the likelihood that patients have to come into contact with the assailant again. It should also ensure them access to services designed to promote their recovery (National Protocol, 2004, p. 114).

Professionals who respond to intimate partner violence and sexual assault may need to work to enhance their capacity for assisting victims with safety planning, such as providing victims with information about their rights, obtaining a protective order, asking law enforcement officers to patrol specific areas, accessing emergency shelter, obtaining a cell phone equipped to call 911 in the case of an emergency, and/or accessing other safety devices. As described in the New Jersey State Standards, this may include notifying the appropriate agency for adolescent victims who are sexually assaulted by a family member or caretaker, in order to determine appropriate placement (New Jersey Office of the Attorney General, 2004, p. 14). It will also likely include “identifying personal support systems such as relatives, friends, clergy, or others who may provide emotional, financial or physical assistance in the days following the assault” (New Jersey Office of the Attorney General, 2004, p. 14).

In general, it is important that investigative procedures used by law enforcement or the prosecution do not compromise safety strategies that are used by victims (Toolkit to End Violence Against Women, Chapter 4, p. 4). This is obviously a critically important question, and readers are referred to the following materials to be prepared to better assist victims with safety planning.

This response is an adapted excerpt from the OnLine Training Institute (OLTI) module entitled, Sustaining a Coordinated Community Response: Sexual Assault Response and Resource Teams (SARRT).

New Jersey Office of the Attorney General (2004, December). Attorney General Standards for Providing Services to victims of Sexual Assault (2nd edition). Published by the New Jersey Department of Law & Public Safety, Division of Criminal Justice.

Toolkit to End Violence Against Women (2001). Developed by the National Advisory Council on Violence Against Women and the Violence Against Women Office.

All states require medical professionals to report sexual assault when the victim is a child (as defined by state law). In addition, most states require medical professionals to report sexual assault when the victim is a dependent adult. The definition of what constitutes a dependent adult is also defined in state law, but it generally includes such factors as advanced age, severe disability, or other factors. Most state laws also require mandated reporting of any sexual assault committed by a caregiver or other authority figure, although the exact provisions of these reporting requirements vary by state.

The majority of states do not require health care professionals to report sexual assault of a competent adult. However, they may still require a report if the victim presents with certain types of injuries, including those that are non-accidental, result from violent crime, or involve the use of a weapon that is either described as “deadly” or specified in some other way (e.g., firearm, knife). In states with such a requirement, health care professionals are required to notify police that a patient has presented with the specified injury, but they may not be obliged to say that the patient was also sexually assaulted. Yet it remains unclear in some states whether such laws require medical professionals to report a sexual assault against a competent adult victim that did not result in any physical injury other than the sexual assault itself.

Finally, a few states have medical mandated reporting for intimate partner violence. In these states, health care providers are required to notify law enforcement when a patient discloses that a sexual assault occurred within the context of intimate partner violence (or when the health care provider has reason to believe this is the case).

Many jurisdictions have implemented a policy of having the responding law enforcement officer or investigator and the Sexual Assault Forensic Examiner (physician, SANE, or other nurse) conduct their preliminary interview together. This type of joint interview can improve communications between the professionals involved and it can potentially reduce the number of redundant questions asked of the victim. It also reinforces the team concept and can help the victim to feel that the various professionals are working together to provide the best and most coordinated services possible.

When such a joint preliminary interview is conducted, however, it must be clear to everyone (including the victim) that detailed interviews will still need to be conducted separately by each of the different professionals. This is because the detailed interviews conducted by the investigator and SAFE have a different purpose.

The purpose of a medical interview is to:

    • Obtain information about what sexual acts were committed to perform a comprehensive medical forensic examination and to collect biological evidence samples;
    • Obtain information about physical injuries to document use of physical force and for medical examination and treatment purposes; and
    • Determine whether the medical forensic findings are consistent with the history, and to provide this information to law enforcement officers.

The purpose of an investigative interview is to:

    • Obtain the sexual assault history; and
    • Obtain a detailed description of the events (e.g., who, when, what, where, and how).

   Quoted verbatim from the SART Manual developed by the California Coalition Against Sexual Assault (CALCASA, 2001, p. 43)

Alternatively, some argue that the two interviews are best conducted separately, given the very different purposes outlined above. This allows health care professionals to conduct an interview that is explicitly focused on their purpose and relevant content, and which may elicit different information from the law enforcement interview. Many victims are more comfortable telling a health care provider information that is sensitive or potentially embarrassing, such as the fact that they were subjected to oral or anal penetration during the sexual assault. There are also many aspects of a patient’s health history that are not relevant or even appropriate for law enforcement.

The law enforcement interview has a very different purpose than a medical interview, and it is likely to be longer because it covers a wider range of topics related to the sexual assault, including: the events before, during and after the incident; the suspect, victim, and any witnesses; and the location of crime scene(s), along with any potential evidence that can be recovered. The primary danger with joint interviews is that roles will be muddled, and SAFEs will be drawn too far into the criminal investigation and the law enforcement function. This can leave SAFEs vulnerable to charges of bias when they testify at trial, which may weaken their expert testimony on scientific and medical matters.

Further, it can have serious implications for hearsay testimony. The Crawford Supreme Court case means that SAFEs, if they are considered to be too closely aligned with the law enforcement function, can be viewed as adjuncts of law enforcement instead of medical providers. When that happens, statements made to them by patients can no longer be repeated (if necessary) by others as hearsay statements under the traditional exception that covers statements to medical providers made for the purpose of diagnosis and treatment. The bottom line is that, while it can be good practice to do joint interviews, the roles of the SAFE and law enforcement investigator must be kept separate and clearly defined, and the dangers of how courts will view this interaction must be considered carefully.

This response is an adapted excerpt from the OnLine Training Institute (OLTI) module entitled, Interviewing the Victim: Techniques Based on the Realistic Dynamics of Sexual Assault.

For more information, please see Roger Canaff’s article entitled Nobility in Objectivity: A Prosecutor’s Case for Neutrality in Forensic Nursing published in the Journal of Forensic Nursing and A Prosecutor’s Reference: Medical Evidence and the Role of Sexual Assault Nurse Examiners in Cases Involving Adult Victims written by Jenifer Markowitz and published by AEquitas: The Prosecutors’ Resource on Violence Against Women

The following response was written by Dr. Jim Hopper, Clinical Psychologist, Independent Consultant and Teaching Associate in Psychology, Harvard Medical School.

Dr. Jim Hopper: When a person faints due to fear (in a state of collapsed immobility), the prefrontal cortex (along with the rest of the brain) is not receiving sufficient oxygenated blood to function in that nonconscious state. In addition, because of global brain impairment due to oxygen deprivation, the prefrontal cortex is not receiving sensory information to process, let alone engaging in reasoning or other executive functions.

VAWA legislation does not require that evidence be held for any specific period of time in these situations, so the duration varies across jurisdictions and there is no single place where this information is tracked or archived. However, it would defeat the purpose of the forensic compliance provisions if the evidence was not held long enough to give victims time to make a decision regarding criminal justice participation. It is therefore best practice to store evidence for as long as possible, up to the statute of limitations or even indefinitely. A common sense recommendation that we often make to law enforcement agencies is to store the evidence for at least two years if possible. The following list provides examples of communities who have developed protocols to establish new standards for evidence retention.

  • The Cambria County Sexual Assault Protocol offers a comprehensive, well-designed procedure for anonymous reporting and evidence storage and retention.
  • The New Jersey Standards for Providing Services to Victims of Sexual Assault published a new Directive in July 2014, revised the standards in evidence retention for cases where the victim has not yet decided to report to law enforcement from 90 days to 5 years.

Some jurisdictions are pushing the bounds of evidence storage even longer, for the statute of limitations and beyond. This is particularly true in jurisdictions that have extended or eliminated the statute of limitations for sexual assault, either as a matter of law or by using the practice of issuing a “John Doe” warrant with a DNA profile rather than a name to identify the suspect. Of course, it is best if the period of time for evidence storage is stated in a way that is clear and consistent for victims. Otherwise, there can be concerns related to consistency, selectivity, and a lack of fairness.

For more detailed information on this topic, please see the model policy materials for law enforcement agencies on Evidence Retention and Disposition and/or Removal.

There are no exact figures for the number of sexual assault victims who obtain a medical forensic exam. There are only estimates for the number who seek medical care of any kind. Specifically, estimates range from 19-40% for the percentage of victims who seek medical care following their sexual assault (for review, see Campbell, 2008; also Kilpatrick et al., 2007; Zinzow et al., 2012).

Of those who report their sexual assault to law enforcement, approximately half (44-55%) have a medical forensic examination (McEwan, 2011; Peterson et al., 2010).

Campbell, R. (2008). The psychological impact of rape victims’ experiences with the legal, medical and mental health systems. American Psychologist, 63 (8), 702-717.

Kilpatrick, D.G., Resnick, H.S., Ruggiero, K.J., Conoscenti, M.A. & McCauley, J. (2007). Drug-Facilitated, Incapacitated, and Forcible Rape: A National Study. Washington DC: National Institute of Justice, Office of Justice Programs, U.S. Department of Justice (NCJ 219181).

Zinzow, H.M, Resnick, H.S., Barr, S.C., Danielson, C.K. & Kilpatrick, D.G. (2012). Receipt of post-rape medical care in a national sample of female victims. American Journal of Preventive Medicine, 42 (2), 183-187.

McEwan, T. (2011). The Role and Impact of Forensic Evidence in the Criminal Justice Process. Washington, DC: National Institute of Justice, Office of Justice Programs, U.S. Department of Justice (NCJ 236474).

Peterson, J., Sommers, I., Baskin, D. & Johnson, D. (2010). The Role and Impact of Forensic Evidence in the Criminal Justice Process. Washington, DC: National Institute of Justice, Office of Justice Programs, U.S. Department of Justice (NCJ 231977).

We would begin by asking why a decision ‘has to be made.’ The reality is that it doesn’t. Presumably, the time pressure is seen as resulting from the need to collect and document evidence during the medical forensic exam – and/or to conduct the law enforcement interview and capture the victim’s memory of events while it is still ‘fresh.’ Yet neither of these issues is as simple or straightforward as they may appear. This is described in our training bulletin entitled, When to Conduct an Exam or Interview:

We know that biological evidence deteriorates over time – so, all things being equal – it seems logical that it would be better to do the exam sooner rather than later. But of course all things are NEVER equal, and we have historically both UNDERestimated the benefits of letting the victim sleep and OVERestimated the loss in evidence quality that would result from postponing the exam for a day or two.

Emerging research documents that biological evidence lasts far longer than we ever imagined, so we are not losing as much as we thought with the delay. Moreover, health care providers can triage some evidence collection. For example, if the patient permits, the nurse may collect some swabs right away (if evidence may be lost, as in the case of an oral assault where materials are only present for a short time) or collect a urine specimen (in the case of possible drug-facilitated sexual assault), but then wait to gather a detailed patient history and conduct the rest of the exam at a later point.

We are also learning from the research that the victim’s memory of events is likely to improve after a day or two, with the benefit of sleep and support, rather than deteriorate as we have long believed. As a result, there are many situations where a health care provider will actually get better evidence – both from the patient’s body as well as the medical history – by postponing the exam and allowing the victim to sleep and simply digest the fact that they’ve been the victim of a crime. This could be accomplished either by providing a safe place to rest within the exam facility or letting the victim go home – depending on the specific circumstances and limits on what is reasonable for a particular facility.

This question also connects with the issues of VAWA forensic compliance, the term that is used to describe compliance with certain provisions of the Violence Against Women Act pertaining to the medical forensic examination and law enforcement involvement.

There are two key provisions in VAWA that are commonly referred to as forensic compliance:

  • Victims of sexual assault must be provided with access to a medical forensic examination free of charge, and;
  • This exam must be provided without requiring victims to cooperate with law enforcement or participate in the criminal justice system.

In other words, VAWA states that a decision does not have to be made regarding law enforcement involvement at the time of the medical forensic exam. Thus, the response of victim advocates should generally be to provide victims with support, options, and information, including the advantages and disadvantages of various courses of action.

For more information on this topic, please see the forensic compliance section of our website, which includes links to a number of articles, resources, and other tools designed to assist communities with implementation. Another valuable resource is our OnLine Training Institute (OLTI) module entitled: The Earthquake in Sexual Assault Response: Implementing VAWA Forensic Compliance. In addition to providing background information and a detailed discussion of the underlying philosophy, the module also includes a number of resources and tools communities can adapt for their own use when implementing forensic compliance.

One of the most common mistakes that law enforcement investigators make is to prematurely ask sexual assault victims whether they want to participate in a criminal prosecution (i.e., do they want to “press charges”). However, the time for this question is NOT during the law enforcement interview, but rather at THE END of a thorough, evidence-based investigation – at which point the investigator knows what evidence is available and can make a determination regarding whether or not the case will be forwarded for prosecution.

Of course, even if the investigator does not ask the victim about criminal prosecution, it is likely to be one of the victim’s primary concerns. Therefore, investigators will often have to address the victim’s concerns about criminal prosecution and their initial reluctance to participate in the investigation. For example, many victims are concerned that talking with law enforcement means they will be responsible for the suspect being arrested and incarcerated. When victims are uncertain about their participation, investigators can respond by explaining the importance of a thorough investigation and highlighting the fact that evidence must be identified and collected as quickly as possible. Again, this does not necessarily mean that the case will be prosecuted, but it leaves the door open at least for now.

  • When addressing issues of prosecution, investigators must also be honest with victims, and not promise anything they cannot deliver. For example, investigators should never promise victims that the suspect will be arrested, prosecuted, and convicted. Investigators cannot know that with 100% certainty.
  • Investigators also must not tell victims that they need to cooperate in order to prevent the suspect from sexually assaulting anyone else. This puts an inappropriate burden upon the victim for behavior that is clearly the suspect’s responsibility.

The bottom line is that victims should never be pressured into cooperating with the investigation and prosecution of their sexual assault. The decision regarding whether or how much to participate is the victim’s, and the reasons for this decision must be respected. As Mills (1989) wrote in the Police Chief:

The victim, of course, is the main concern and the investigator should not try to cajole her into pursuing legal action against the identified offender. Arrest and prosecution are major goals during rape investigation, but pursuing these goals should not take precedence over the psychological welfare of victims (Mills, 1989, p. 119).

This response is an adapted excerpt from the OnLine Training Institute (OLTI) module entitled, Interviewing the Victim: Techniques Based on the Realistic Dynamics of Sexual Assault.

Mills, J.K. (1989). The initial interview of sexual assault victims: A humanistic approach to investigation. Police Chief, 56 (4), p.119-122.

While it is important for health care providers who conduct medical forensic exams to keep in mind the negative effects of trauma on memory and recall, the implications are different than they are for law enforcement. Most importantly, it is clear that SAFEs (Sexual Assault Forensic Examiners) cannot postpone the exam because the health implications of delaying medical treatment can be devastating on the long term health of the patient. Additionally, evidence can degrade or be lost over time (e.g., biological evidence and visible evidence of injuries). The objectives of the exam dictate that it be conducted as soon as possible once the victim has initiated contact. This includes the history taken by the SAFE following recommendations in the National Protocol for Sexual Assault Medical Forensic Examinations(2004) published by the Office on Violence Against Women, U.S. Department of Justice.

The implications for SAFEs are thus twofold. First, SAFEs must keep in mind the negative effects of trauma on memory and recall, particularly when victims provide information that is disorganized, inconsistent, or even untrue. All too often, this is seen as cause for suspicion by law enforcement professionals, health care providers, and others – yet such behavior should be seen as the natural result of trauma and the intense pressures felt by victims in the immediate aftermath of a sexual assault.

Second, these issues highlight the importance of follow-up contact with patients whenever possible. This issue is discussed in greater detail elsewhere, but it is worth mentioning here as well because victims may recall additional information in the days, weeks, or even months after the sexual assault. If the SAFE is able to check in with the victim 24-48 hours after the exam, this allows the SAFE to check on the victim’s physical and emotional well-being, address any remaining medical concerns, and determine the victim’s level of compliance with the medications and medical treatment.

It must be emphasized that the purpose of this follow-up contact is not to assist with the investigation, although it is possible that some of the information provided by the victim may in fact be useful for law enforcement. For example, victims may call to let the SAFE know that their injuries are not healing as they should, or that they are having trouble sleeping or eating, etc. In response, the SAFE will be able to address these concerns as a health care professional, and the documentation of these concerns may also provide additional information that can be incorporated in the investigative file compiled by law enforcement.

Follow-up also establishes a line of communication that victims can access if they need to contact the SAFE at any point in the future. Unfortunately, many SAFEs do not have the resources or mechanisms in place to be able to provide routine follow-up with victims.

Note: Thanks to Kim Day, RN, FNE, SANE-A, SANE-P for her assistance with this response. She serves as the SAFE Technical Assistance Coordinator for the International Association of Forensic Nurses (IAFN).

This is an important question, because the type of interviewing techniques we recommend will often bring up experiences of prior victimization, and without proper guidance this might cause jurors to view the victim judgmentally or with skepticism. However, we believe it is a mistake to not document this information, or to avoid it during the prosecution, simply because it could potentially be used against the victim. We believe the best approach is to document the information and then for prosecutors to provide judges and jurors the proper context for understanding it. In fact, we would argue that you can frame this evidence as corroborative, to strengthen the case, rather than undermining it.

First, the fact that the current experience reminds the victim of prior abuse suggests that, on the most basic level, they are similar in terms of their experience and impact. Research on the neurobiology of trauma suggests that such memories are linked, as Dr. David Lisak describes in his article on The Neurobiology of Trauma. Thus, memories of traumatic events can be triggered by similar cues:

At the sound, touch, or sight of those cues, the rape victim will experience the same cascade of neurochemicals that were triggered during the … rape” (Lisak, 2002, p. 2).

The victim’s RESPONSE to the sexual assault may also be reminiscent of prior abuse. For example, if the victim “froze” during the current sexual assault, this might be the same coping mechanism that was used during years of sexual abuse perpetrated against the victim as a child.

A human being who has been traumatized … will have far less flexibility in the activation of their fear system. Human beings who have been raped will … carry with them a network of neurons forever prepared to respond to the perception of any of the cues that were present during the rape. … Their reactions are not conscious choices … [they are] governed not by the cortex, not by conscious thought, but rather by the ‘low road’ or amygdale-based fear networks (Lisak, 2002, p. 2).

Second, we know that one of the single best predictors of whether or not someone will be sexually assaulted is whether or not they have been sexually assaulted in the past (Gidycz et al., 1993; Merrill et al., 1999; Messman & Long, 1996). Therefore, although many people see a disclosure of prior sexual victimization as a “strike against” the credibility of the victim, it is actually corroborative on some level. Not that prosecutors would argue that evidence of prior sexual victimization is some kind of “proof” that the current incident was indeed a sexual assault – but they can use the research cited here to counter any suggestion that it somehow undermines the credibility of the victim or the legitimacy of the report.

Finally, there is the question of whether the prior incidents can be prosecuted. If the incident described by the victim is still within the statute of limitations, it may be possible to investigate and prosecute it. This may be very difficult given the passage of time, but the fact that the disclosure was taken seriously by law enforcement and investigated to the furthest extent possible may serve to counteract any negative connotations for the victim and strengthen the victim’s credibility as a witness. More important, it helps to pursue the larger goal of holding offenders accountable and keeping communities safe.

The following comments were added by Russell Strand, a retired US Army Special Agent (Criminal Investigation Division) and current Chief of the Family Advocacy Law Enforcement Training Division at the U.S. Army Military Police School:

I am often struck with some concerns people have when it comes to adult sexual assault cases. When we work child abuse cases and domestic violence cases we are trained to get a good history of previous abuse to assist us in understanding the context of the most current experience. This information is invaluable at helping decision makers and triers of fact (judges and juries) in understanding the victim’s response to the newest reported event.

The concerns of keeping the previous experiences of sexual assault hidden are often predicated by myths that any previous sexual activity will harm the credibility of the victim. Unfortunately, this belief itself is harmful because it sometimes assumes that it was a “sexual” experience instead of a serious criminal act. This belief also promulgates the myth that sexual assault victims should somehow “learn” to avoid being a victim again. Again, the research clearly demonstrates that the opposite is often true. We know there is good solid research over a period of decades that should shatter this myth. Victims often suffer from Post Traumatic Stress, or even full-blown Post Traumatic Stress Disorder, as well as depression, and they often exhibit tension reduction behaviors, maladaptive behaviors and other normal reactions to trauma that actually increase their vulnerability and risk. These reactions, caused by life changing trauma, are also picked up very easily by sex offenders hunting for the vulnerable.

The fact that victims are revictimized is something we should explore and document to better understand their experience and reactions. This fact should not be something we are afraid of or run from – this would only serve to support the offender and revictimize the victim even further.

In our work both inside and outside the military, we are finding that – by collecting information on and seeking to understand previous victimization, and then educating people on the meaning of the context of these prior experiences – we are increasing understanding of the realistic dynamics of sexual assault and decreasing misunderstanding of victims’ reactions.

Note: Thanks to David Markel, Highly Qualified Expert (HQE), and Russell Strand, Chief of the Family Advocacy Law Enforcement Training Division at the U.S. Army Military Police School for their assistance with this response.

Gidycz, C.A., Coble, C.N., Latham, L., & Layman, M.J. (1993). Sexual assault experience in adulthood and prior victimization experiences. Psychology of Women Quarterly, 17, 151-168.

Merrill, L.L.,Newell, C.E., Thomsen, C.J., Gold, S.R., Milner, J.S., Koss, M.P., & Rosswork, S.G. (1999). Childhood abuse and sexual revictimization in a female Navy recruit sample. Journal of Traumatic Stress, 12 (2), 211-225.

Messman, T.L. & Long, P.J. (1996). Child sexual abuse and its relationship to revictimization in adult women: A review. Clinical Psychology Review, 16(5), 307-420.

No. While it makes sense to use your expertise to conduct this interview, it creates problems with role confusion if you are serving both as the investigator as well as the support person. One can easily imagine a situation where a young person would want to discuss something with a support person but not the investigator, or vice versa. However, the former is perhaps of more concern because your role as a support person is particularly compromised if you are also serving as the investigator. Therefore, we would have to answer your question with a “no,” it is not appropriate, because it denies victims the benefit of an advocate whose sole purpose is to watch out for their interests, and provide them with information, support, and (neutral) assistance with decision making.

The following response was written by Dr. Jim Hopper, Clinical Psychologist, Independent Consultant and Teaching Associate in Psychology, Harvard Medical School.

Dr. Jim Hopper (with contributions by EVAWI): The recommendation to allow victims two full sleep cycles before conducting an in-depth interview appears to have come from the work of law enforcement trainers such as Lieutenant Colonel David Grossman and Bruce K. Siddle, who founded Pressure Point Control Tactics (PPCT).4  It was reportedly based on studies of soldiers in combat and applied to police officer interviews following a critical incident such as an officer involved shooting. No scientific evidence or neurobiological explanation were provided, just the notion that two rounds of sleep are necessary for a person who has experienced trauma to fully recall what happened.

It is important to understand this recommendation in the context of law enforcement culture and professional lore, which has traditionally viewed interviews as a race against time. The assumption was that people were best able to recall an event in its immediate aftermath, so every ticking second potentially represented a loss of critical information. The recommendation to wait two sleep cycles before interviewing officers involved in a critical incident was, therefore, a radical departure from tradition, and it was designed to slow investigators down and not rush the process. After conducting a preliminary interview to establish key fundamental information, investigators were advised to allow the officer time to rest, recover, and deal with logistical and emotional issues before participating in the detailed follow-up interview. The logic implied was that this same practice should be applied to any individual who has been involved in a traumatic and stressful event, not just soldiers or police officers.

Fast-forward to today, and we can combine such practice-based recommendations with the scientific findings on stress, trauma, memory, and sleep. For example, we know that sleep can help with memory retrieval by reducing stress, because stress is known to impair recall. Stress impairs prefrontal cortex function, and the prefrontal cortex plays a role in some forms and aspects of memory retrieval. So that’s one biological pathway through which sleep may improve recall. However, there’s no reason to believe that two rounds of sleep specifically are required to effectively eliminate stress-induced recall deficits. Furthermore, even if someone starts an investigative interview feeling rested and not stressed, the interview experience itself, even under the best circumstances, can still be quite stressful at times and thus can impair memory retrieval.

In addition, research on stress, sleep, and memory over the past 10 years elucidates the differential impact of sleep on memories for central vs. peripheral details. Scientists have found that while we sleep our brains are working to preserve central details in memory – but not peripheral details, which, in the absence of retrieval and re-encoding and storage, are fading as quickly as they would if we weren’t sleeping. This means that waiting two sleep cycles to interview a sexual assault victim (or physical assault victim, or police officer involved in a shooting) could mean losing potentially vital information for an investigation. (Remember, details that were peripheral to the victim’s brain as the assault was unfolding may be critical to the investigation.)

Because stress impairs retrieval, and most victims are still quite stressed or traumatized soon after being assaulted, we recommend conducting two investigative interviews with people who report their assault to law enforcement within minutes or hours of its occurring. First is a preliminary interview conducted at the time of the initial report; it is focused on addressing emergency needs and conducting a preliminary investigation. Second is a detailed follow-up interview, conducted some period of time after the initial response (perhaps 1-2 days later), depending on the schedule and convenience of the victim as well as the investigator. If both interviews are conducted following best practices, including not asking leading questions or pressuring the victim for peripheral details (that may be central to the investigation, but peripheral in terms of the victim’s memory), then there is much less likelihood of inconsistent recall from one interview to the next.

The key issue here, in terms of brain function, is the episodic memory circuitry, including the hippocampus. Like the impairments in prefrontal cortex function, the impairment of memory retrieval associated with states of extreme stress and trauma typically resolves when stress is reduced – and this may not require sleep at all. Indeed, when victims receive compassionate care from family, friends, and responding professionals, their memory retrieval capacities could return to normal levels within an hour or so after the assault.

Of course, there are other factors to consider besides brain function. Too many victims are asked to participate in a detailed interview with law enforcement when they’ve been up for long periods of time, they’re intoxicated or under the influence of drugs, haven’t eaten, or are worrying about other essential concerns such as the needs children and family members. They are often exhausted, confused, and struggling to just absorb and understand what happened to them. They may also be facing critical demands from work, school, or family that occupy their attention. And they may not be receiving the support they need from friends and family, especially if they do not have the benefit of services provided by a trained victim advocate. Determining the appropriate time for a follow-up interview will require balancing these considerations with the brain-based processes described above. It makes perfect sense to allow victims some period of time to rest, seek support from victim advocates and loved ones, and begin processing what happened to them before conducting the detailed interview.

Finally, a sexual assault victim could have two very restful nights of sleep, but then encounter trauma-related triggers (such as an investigator who uses interrogation rather than interview techniques); this could potentially cause the victim to suffer recall impairment greater than any experienced since the assault itself. The need for trauma-informed interviewing practices remains critical, regardless of how much sleep a victim has had.


4 PPCT Management Systems, Inc. (1989), Use of Force Human Factor (Chapter 1).

The following response was written by Dr. Jim Hopper, Clinical Psychologist, Independent Consultant and Teaching Associate in Psychology, Harvard Medical School.

Dr. Jim Hopper: That depends on what, if anything, was encoded during the assault. If information was not encoded in the first place, then it can’t be consolidated either, and, therefore, it can never be retrieved. And some information that’s initially stored may fade from memory, which happens much more rapidly and extensively for peripheral than central details, because the brain prioritizes central details for encoding and ongoing storage. So, if aspects of the experience were never encoded or have since been lost from storage, they’re literally “not in there” to be accessed and retrieved. However, keep in mind the distinction between explicit and implicit memories, and that implicit memories (e.g., memories that aren’t recognized as memories, like when a victim jumps when they are touched somewhere the perpetrator grabbed, without realizing the connection) can be encoded and consolidated even when no explicit memories are.

Also, if the person was not rendered completely unconscious during the entire assault, it is possible that there may be fragments of memory (for example associated with brief periods of “coming to” in response to particularly painful, terrifying or horrifying things being done to one’s body) that do manage to receive awareness, attention and episodic-memory encoding during the assault. But even some “breakthrough” fragments may not be accessible when the person is stressed, because stress impairs recall.

Finally, retrieval of information stored in memory may depend on encountering the right “retrieval cue” (e.g., a particular interview question or reminder encountered in the environment) and/or the right “retrieval context” (e.g., a particular kind of room or bodily state).

In short, understand that some information may never have been encoded or may have already been lost from storage, keep in mind the distinction between implicit and explicit memory, and remember that stored information may only be retrieved if the person isn’t too stressed and is given the right retrieval cues and contexts to facilitate retrieval.

The following response was written by Dr. Jim Hopper, Clinical Psychologist, Independent Consultant and Teaching Associate in Psychology, Harvard Medical School.

Dr. Jim Hopper: States of high stress, and especially states of fear, are associated with prefrontal cortex impairment. Therefore, experiencing a police officer, other investigator, or anyone else as unsafe (e.g., uncaring, unbelieving, impatient, disempowering, judgmental, etc.) will generate states of stress and fear that impair prefrontal cortex functioning. In such states the victim will have difficulty paying attention to what the investigator is saying and asking, understanding questions, and engaging in “top-down” retrieval attempts that require prefrontal cortex activity. This is especially true for questions about time-sequence or anything else that requires formulating a narrative out of fragmentary memories.

Sadly, an investigator who presses a victim for a sequential narrative may be asking for information that was never encoded in the first place. Moreover, this may stress the victim so much that any potential that might have existed for retrieval of time-sequence information will be obliterated by the prefrontal cortex impairment the investigator has caused.

The following response was written by Dr. Jim Hopper, Clinical Psychologist, Independent Consultant and Teaching Associate in Psychology, Harvard Medical School.

Dr. Jim Hopper: It’s very important not be become attached to ideas about how abuse and assault, even when severe and chronic, can “damage” the brain. Research over the past 20 years has consistently shown that the human brain is much more resilient and capable of healing than we ever realized. The scientific term for this is “neuroplasticity,” and the therapeutic one is “resiliency.”

Yes, chronic abuse may alter brain function and structure, and it can thwart the development of certain brain capacities, including executive functions of the prefrontal cortex that partly depend on nurturing early relationships with caregivers. But brains can heal, adapt, and develop previously lacking or impaired functions, and they can develop structural and functional “work arounds” that result in the same functionality that would otherwise have developed through normal pathways. So, yes, there is a lot of potential to develop what was thwarted by chronic childhood abuse and to heal the brain.

Also, much of what may appear to be structural problems, or the absence of executive functioning capacities, can actually be better understood as problems with the “software” rather than the “hardware” of the brain. That is, we can understand patterns of particular activity and functionality “running on” human brain circuitries in ways that software apps are running on the circuitries of our computers and smartphones. Someone with very strong prefrontal cortex executive functioning, for example a military service member, police officer, or other professional may be overwhelmed by trauma-related memories and emotions in the weeks and months following a sexual assault, and appear to have impaired executive functioning. This may be especially true for those who experience unhelpful responses from family, friends, and/or responding professionals. For professionals and others (such as jurors) who didn’t know the victim before the assault, it may seem like the victim is a person who never had good prefrontal cortex capacities. But that’s often not the case. It’s just that prefrontal cortex capacities have temporarily been impaired by now-dominant patterns of activity in the emotion- and fear-processing areas of the brain – patterns of activity that can be transformed and healed by very supportive relationships, effective therapy, and/or other healthy experiences.

The same can be true for children and teenagers who have suffered chronic abuse: What may appear as thwarted and/or deficient prefrontal cortex development may simply be a persistent dominance of activity patterns in brain circuitries involved in emotion and fear, and habitual and impulsive attempts to avoid and escape trauma-related experiences. With the right relationships and other healing influences, previously dormant prefrontal cortex capacities may come to the fore and play a much greater, and more dominant, role in one’s functioning. The bottom line: Be very, very careful about assuming “brain damage” in traumatized people, let alone “permanent” damage, even in those who have endured chronic and repeated childhood abuse. Yes, it can happen, but all too often people are assuming such damage when it’s much more a matter of patterns of brain activity or “apps” running on a traumatized person’s brain.

No. Whether or not a fact is disclosed to a patient is completely up to the SAFE. If the SAFE feels that a particular fact is one that the patient should have, then the patient should have it. No law enforcement officer should ever seek to influence how a medical provider treats a patient. A medical forensic examination (including the evidence gathering process) is done for the patient’s benefit, not for the benefit of law enforcement alone. Further, there is no known legal reason why revealing the existence of a piece of evidence (e.g., the presence of sperm) could compromise the case from a strict legal standpoint. Perhaps, in the mind of an investigating officer, it may not be seen as a good thing to reveal this fact because of its effect on the victim, but that is an issue that law enforcement investigators and prosecutors will have to deal with when the time comes. It is not the SAFE’s job to seek to conceal information from patients regarding their own examinations at anyone’s behest.

Two states, Texas and Virginia, have developed materials to provide instructions for mailing evidence to the state crime laboratory when a forensic examination is conducted without a report to law enforcement. They may be helpful for other jurisdictions implementing a similar procedure for transferring evidence. The instructions developed for the state of Virginia even include detailed pictures to illustrate the process, as well as a consent form for sexual assault victims to sign documenting their understanding of the process. While many community professionals are not aware of it, these procedures for mailing evidence are a standard practice for many law enforcement agencies; what is new in this context is the fact that the evidence is being mailed by forensic examiners rather than law enforcement investigators.

The Office on Violence Against Women (OVW) has determined that states with medical mandated reporting can be compliant with VAWA, as long as victims are not required to participate in the criminal justice process. While the definition of “participation” is not explicitly defined, common sense suggests it means that victims cannot be required to personally talk with an officer – even when a mandated report has been filed with law enforcement.

In some communities, there is a policy or practice of having an officer personally meet with victims whenever a mandated report has been filed – even if the victim has not yet decided whether or not to participate in the criminal justice process. We do not believe this represents best practice, which would be to conduct the medical forensic exam first and then offer the opportunity to talk with an officer only when the victim has decided to do so.

Yes. Central Washington University has an excellent list of 10 commitments/promises available on their website.

We would like to commend agencies for providing such extensive information on their website, and addressing common victim concerns that often serve as barriers to reporting. In particular, we would like to highlight the 10 commitments to sexual assault victims reporting to their agency:

  1. We will meet with you privately, at a time and local place of your choice, to take your report.
  2. We cannot and will not notify your parents without your consent.
  3. We will treat you and your particular case with courtesy, sensitivity, dignity, understanding and professionalism.
  4. Our officers will not prejudge you, and you will not be blamed for what occurred.
  5. We will assist you in arranging for any necessary hospital treatment or other medical needs. We will also assist in emergency housing if needed.
  6. If you would feel more comfortable talking with a friend or advocate of your choice present, we will do our best to accommodate your request.
  7. We will fully investigate your case and will help you to achieve the best outcome. This may involve the arrest and full prosecution of the suspect responsible. You will be kept up-to-date on the progress of the investigation and/or prosecution.
  8. We will assist you in privately contacting counseling and other available resources.
  9. We will continue to be available to answer your questions, to explain the system and process involved (prosecutor, courts, etc.) and to be a listening ear if you wish.
  10. We will consider your case seriously regardless of your gender or the gender or status of the suspect.

We would also like to highlight the website for the Austin Police Department Sex Crimes Unit, because it provides excellent information and conveys both an understanding of the realistic dynamics of sexual assault as well as an appreciation of its impact on victims. The site also offers an outstanding public service announcement (PSA) that addresses the issues related to sexual assault, medical forensic exams, and reporting to law enforcement. It was developed by the Sexual Assault Response and Resource Team (SARRT) in Travis County Texas. This PSA was developed for television, and it was designed to increase reporting of sexual assault to law enforcement, by communicating the message that victims are welcome and every effort will be made to treat them with competence and compassion.

While the two -scale national studies on sexual assault victimization and reporting cited in the previous question did not specifically focus on correctional settings, a comprehensive report published by the Bureau of Justice Assistance (BJA) similarly suggests that many of the same dynamics come into play, with a majority of incidents not reported, and reports typically made only after some delay. In fact, many inmates only report their sexual assault victimization once they are released back into the community (Abner, Browning & Clark, 2009). For more information, please see the BJA report.

Abner, C., Browning, J. & Clark, J. (2009).  Preventing and Responding to Corrections-Based Sexual Abuse:  A Guide for Community Corrections Professionals (NCJ 238147). Washington, DC:  Bureau of Justice Assistance.

The Crown Prosecution Service (CPS) published guidance for prosecutors specifically considering a charge of false reporting for sexual assault or domestic violence. This guidance was produced in response to a case where a 28-year old mother of four was prosecuted for recanting a rape report against her violent husband, because he threatened her. In other words, rather than prosecuting her for falsely reporting a rape, she was prosecuted for falsely recanting her report. After being sentenced to eight months in prison, with custody of the children granted to her abusive husband, she was eventually released by the court of appeal which concluded that there should be a “broad measure of compassion for women who had already been victimised” (Bowcott, 2011; cited in Avalos, 2018, p. 820). Public outcry led to the publication of the CPS guidance on prosecution.

The main thrust of the CPS guidance is that charging decisions should be made in two stages. First, there should be an evidence phase, and then a public interest phase. In the first phase of decision-making, the question is whether there is evidence to support the charge being pursued. In this context, this means someone should only be charged with falsely reporting a sexual assault if there is evidence that the sexual assault did not happen, and the information they provide to law enforcement about the crime is false. This is to avoid the scenario where someone is prosecuted for falsely reporting, when there is no evidence to support the charge; it is simply based on stereotypic assumptions and misconceptions about sexual assault crimes and victims.

When there is sufficient evidence to prove that a sexual assault did not occur should decision-making move on to the second stage: the public interest phase. The question at this point is not whether the person can be prosecuted (based on the evidence), but whether they should be prosecuted (to serve community interests).

The CPS guidance particularly highlights the need to consider whether domestic violence may have led to a recantation of the report. The dynamics of recantation are well understood in the context of child abuse and domestic violence. But often these same dynamics are at play in sexual assault cases as well.

The fact that this guidance was published only for sexual assault and domestic violence implies that false reporting for these two crimes is particularly concerning (Avalos, 2018). Perhaps more troubling, Avalos (2018) argues that prosecutors in the UK are not following the guidance, and that it has actually encouraged – rather than discouraged – these prosecutions. While the original intent may have been to avoid harm for victims, the actual impact may be to put police and prosecutors “on notice” that they should be actively seeking to identify false reports and prosecute those making them. In fact, the CPS guidance does not offer a definition of what constitutes a false report. It also fails to acknowledge the fact that actual victims have been prosecuted, or to offer any safeguards to prevent the wrongful prosecution of future victims of sexual assault.

The following response was written by Dr. Jim Hopper, Clinical Psychologist, Independent Consultant and Teaching Associate in Psychology, Harvard Medical School.

Dr. Jim Hopper: There are decades of research on how alcohol (aka ethanol or ethyl alcohol) inhibits or decreases activity in the brain circuitries of fear and anxiety – particularly via its effect on receptors for gamma-Aminobutyric acid (GABA), the major inhibitory neurotransmitter in the central nervous system. Indeed, that’s one of the main reasons why people drink: to feel less socially afraid and anxious, to “loosen up.” While the research literature on alcohol’s fear- and anxiety-reducing effects has had various methodological limitations (Eckardt et al., 1998),5  more rigorous and recent studies in animals and humans have established the reality of these effects and clarified their brain bases (Bjork & Gilman, 2014; Nie et al., 2004).6


5 See Eckardt, M., et al. (1998). Effects of moderate alcohol consumption on the central nervous system. Alcoholism: Clinical and Experimental Research, 22, 998-1040.

6 For example, see Nie, Z. et al. (2004). Ethanol augments GABAergic transmission in central amygdala via CRF1 receptors. Science, 303 (5663), 1512-1514; Bjork, J. & Gilman, J. (2014). The effects of acute alcohol administration on the human brain: Insights from neuroimaging, Neuropharmacology, 84, 101-110.

Two large-scale national studies (the National Women’s Study and the National Violence Against Women Survey) converge on the finding that a very small minority (16-19%) of female victims report their sexual assault to law enforcement (National Victim Center, 1992; Tjaden & Thoennes, 2006). Of these, only one-quarter report the crime within 24 hours (National Victim Center, 1992). In other words, most victims do not report their sexual assault to the police, and when they do, it is usually after some delay. This is clearly in contrast with the stereotype that “real rape” is reported immediately, and it challenges the idea that non-reporting or delayed reporting are reasons for viewing the report with suspicion. However, crimes are more likely to be reported if they are committed by a stranger, as opposed to someone the victim knows (e.g., Koss et al., 1988; Ullman, 1999).

To find out more about why so many of the sexual assault victims in the NVAWS did not report to law enforcement, those who decided not to report were asked for their reasons why. Of these:

  • 22% cited fear of the perpetrator as the reason for not reporting
  • 18% stated that they were too ashamed or embarrassed
  • 18% felt that the incident was minor, and not a crime or a police matter
  • 13% believed that the law enforcement agency could not do anything
  • 12% were concerned that officers would not believe or blame them

These responses are instructive for community professionals, because they provide a glimpse into the perceptions of the public about how they will be treated if they report a sexual assault – particularly whether the report will be taken seriously and investigated thoroughly.

This response is an adapted excerpt from the OnLine Training Institute (OLTI) module entitled, Dynamics of Sexual Assault: What Does Sexual Assault Really Look Like?

Koss, M.P., Dinero, T.E., Seibel, C.A., & Cox, S.L. (1988). Stranger and acquaintance rape: Are there differences in the victim’s experience? Psychology of Women Quarterly, 12, 1-24.

National Victim Center (1992). Rape in America: A report to the nation. Arlington, VA: National Victim Center and Crime Victims Research and Treatment Center. Available at: http://www.evawintl.org/Library/DocumentLibraryHandler.ashx?id=538

Tjaden, P. & Thoennes, N. (2006). Extent, nature, and consequences of rape victimization: Findings from the National Violence Against Women Survey (NCJ 210346). Washington, DC: National Institute of Justice, Office of Justice Programs, U.S. Department of Justice and the Centers for Disease Control and Prevention. Available at: www.ncjrs.gov.

Ullman, S.E. (1999). Social support and recovery from sexual assault: A review. Aggression and Violent Behavior, 4 (3), 343-358.

There are three aspects of risk involved with asking the question in this way. First, the victim’s memory is generally not stored in chronological order, so telling the narrative in this way will require the victim to reconstruct his/her memory and repackage it from the way it has actually been stored. This makes the task far more difficult for victims, and it also means they will inevitably fail to recall some details that could be critically important – or they might recall those details but edit them out of their narrative, because they don’t fit the expectation for what they think you want as an interviewer. In other words, the first risk is that the interview will yield fewer accurate details than a FETI-style interview with more open-ended prompts.

The second risk is that victims may “fill in” the details that are missing from their memory, as they put the puzzle pieces together in the way you have asked with this type of question. This process may be a conscious one, or it may not be, but the reality is that memory recall is always a reconstructive act. The way we recall a memory is powerfully influenced both by the prompts that are used as well as the expectations we have for what we think the listener wants to hear. If the memories we have do not fit together in the way we believe they should, our brains are hard-wired to fill in the gaps with information that could be true – or we believe should be true – in order to make sense. A FETI-style interview is designed to reduce these expectations and free victims to recall their memories in a way that is consistent with how they are stored.

The third element of risk is closely intertwined with the other two. That is, by asking victims to recall their memories in chronological order, we are often setting them up to fail. In pragmatic terms, this means we invoke the two risks already discussed: that the victim’s statement will be missing details that could have otherwise been documented and may include factual errors that were introduced while the victim tried to make sense of the memory and fill in the gaps. More important, however, is the moral concern that victims should never be made to feel like a failure or set up to make “forced errors” that will only fuel the devastation and self-blame they are likely already experiencing.

Given that so few sexual assaults are reported, and so few victims who do report remain engaged with the process, it is reasonable to ask ourselves what we are doing as professionals to contribute to this problem – and what steps we are taking to truly change the system and create a different reality.

The answer to that question is not as easy as it seems. First, “implementing FETI” is not really the best way of framing the question. What people describe as FETI is actually a package of techniques and strategies – both old and new – that focus on the process of building rapport, asking questions, and gathering information from sexual assault victims. The techniques are terrific, but they are only a part of the puzzle. To implement a truly trauma-informed approach, such techniques and strategies need to be incorporated into a more general philosophy of how to approach sexual assault cases and respond to victims. Other reforms will also need to be put into place – and resources allocated to support them – so investigators can be successful at conducting this type of interview, properly documenting the findings, incorporating them into a larger investigative strategy, and building a case for successful prosecution. The solution for improving sexual assault investigations and prosecutions will include far more than just FETI.

While many people are certainly applying their training in FETI to conducting sexual assault interviews and investigations, we do not have any list of who is doing so, and it is most likely to be happening at the level of individual investigators – we do not know of any department that has instituted some kind of policy that “implements FETI” on some kind of systematic level.

For victims who choose to participate in a medical forensic examination without reporting to law enforcement – or pursue another alternative reporting method such as anonymous or non-investigative reporting – one question that is often asked is whether any evidence collected during the exam should be submitted to a crime laboratory for analysis. In short, the answer is no; this evidence should not be submitted to the crime laboratory for analysis.

This is clearly the position of the U.S. Department of Justice, Office of Violence Against Women (OVW):

Submitting non-investigative SAKs to a forensic laboratory for testing, absent consent from the victim, should not be standard operating procedure for a law enforcement agency (OVW, 2017, p. 4).

Three reasons are given for this position:

  1. Testing a kit before the victim has made a report to law enforcement undermines the victim’s prerogative to decide if and when to engage with the criminal justice system.
  2. Testing a kit without the victim’s express consent either to submit the kit or to report the assault to law enforcement is not an advisable way to cultivate community trust.
  3. Funding for testing SAKs is not unlimited, and grant funds should be directed to activities that promote accountability for offenders and justice and healing for victims (OVW, 2017, p. 5, 7 & 8).

Beyond the issues of forensic compliance and victim consent, there is also the question of CODIS eligibility for DNA profiles. According to Anthony J. Onorato, Chief of the FBI Nuclear DNA Unit, the evidence in a sexual assault kit could potentially be tested by a forensic laboratory without victim consent, but any DNA profiles that result will not be eligible for CODIS. Chief Onorato made this point at a conference hosted by NIJ:

Without victim consent, we can do the testing, the laboratory can do the testing, but that is not going to be eligible for inclusion in the National DNA Index System [CODIS]. Short and sweet. We can certainly have discussions about how even testing it’s not even appropriate. But certainly what is not going to happen, is that profile will not – or any potential perpetrator profile from that kit – is not going to go into the National DNA Index System (Onorato, 2016).

As Chief Onorato explained, two key criteria must be met for CODIS eligibility. First, is it reasonable to believe that a crime occurred? Second, is there reason to believe that the item being tested has something to do with that crime and that it is linked to the perpetrator of that crime? In forensic compliance cases, these criteria are not met.

For one thing, the elements of a criminal offense have not been established in a crime report documented by law enforcement. It is beyond the scope of the role of a health care professional to determine whether or not a crime occurred. Second, law enforcement cannot document a reasonable belief that the DNA belongs to the perpetrator(s), because no steps have been taken to exclude any consensual partners.

Rather, all evidence collected in an anonymous or non-investigative report should be stored in accordance with established standards for the length of time established by policy. This should also be emphasized in the informational materials given to victims, so they know what will happen. All too often victims believe that, if a medical forensic examination was conducted, then there is evidence to prosecute their case. This leads to the assumption that the case will definitely be prosecuted if they convert to a standard report at a later point in time. Evidence storage procedures can be briefly explained, along with the caution that prosecution will become less likely as time goes on and also that it is virtually impossible without victim participation.

Also please see our OnLine Training Institute module, Laboratory Analysis of Biological Evidence and the Role of DNA in Sexual Assault Investigations. In addition, we offer a Training Bulletin addressing the question: Should We ‘Test Anonymous Kits?’

OVW’s position paper is entitled, Sexual Assault Kit Testing Initiatives and Non-Investigative Kits, and it offers a great deal of helpful guidance in this area.

To help implement this policy, the Texas Department of Public Safety offers a variety of template materials, including a form to submit evidence to the crime lab for non-investigative sexual assaults reports. Instructions and other forms are also available.

For victims who choose to participate in a medical forensic examination without reporting to law enforcement – or pursue another alternative reporting method such as anonymous or non-investigative reporting – one question that is often asked is whether any evidence collected during the exam should be submitted to a crime laboratory for analysis. In short, the answer is no; this evidence should not be submitted to the crime laboratory for analysis.

This is clearly the position of the U.S. Department of Justice, Office of Violence Against Women (OVW):

Submitting non-investigative SAKs to a forensic laboratory for testing, absent consent from the victim, should not be standard operating procedure for a law enforcement agency (OVW, 2017, p. 4).

Three reasons are given for this position:

  1. Testing a kit before the victim has made a report to law enforcement undermines the victim’s prerogative to decide if and when to engage with the criminal justice system.
  2. Testing a kit without the victim’s express consent either to submit the kit or to report the assault to law enforcement is not an advisable way to cultivate community trust.
  3. Funding for testing SAKs is not unlimited, and grant funds should be directed to activities that promote accountability for offenders and justice and healing for victims (OVW, 2017, p. 5, 7 & 8).

Beyond the issues of forensic compliance and victim consent, there is also the question of CODIS eligibility for DNA profiles. According to Anthony J. Onorato, Chief of the FBI Nuclear DNA Unit, the evidence in a sexual assault kit could potentially be tested by a forensic laboratory without victim consent, but any DNA profiles that result will not be eligible for CODIS. Chief Onorato made this point at a conference hosted by NIJ:

Without victim consent, we can do the testing, the laboratory can do the testing, but that is not going to be eligible for inclusion in the National DNA Index System [CODIS]. Short and sweet. We can certainly have discussions about how even testing it’s not even appropriate. But certainly what is not going to happen, is that profile will not – or any potential perpetrator profile from that kit – is not going to go into the National DNA Index System (Onorato, 2016).

As Chief Onorato explained, two key criteria must be met for CODIS eligibility. First, is it reasonable to believe that a crime occurred? Second, is there reason to believe that the item being tested has something to do with that crime and that it is linked to the perpetrator of that crime? In forensic compliance cases, these criteria are not met.

For one thing, the elements of a criminal offense have not been established in a crime report documented by law enforcement. It is beyond the scope of the role of a health care professional to determine whether or not a crime occurred. Second, law enforcement cannot document a reasonable belief that the DNA belongs to the perpetrator(s), because no steps have been taken to exclude any consensual partners.

Rather, all evidence collected in an anonymous or non-investigative report should be stored in accordance with established standards for the length of time established by policy. This should also be emphasized in the informational materials given to victims, so they know what will happen. All too often victims believe that, if a medical forensic examination was conducted, then there is evidence to prosecute their case. This leads to the assumption that the case will definitely be prosecuted if they convert to a standard report at a later point in time. Evidence storage procedures can be briefly explained, along with the caution that prosecution will become less likely as time goes on and also that it is virtually impossible without victim participation.

For more information, please see the archived recording of Chief Onorato’s presentation at the NIJ conference, taking place September 8-9, 2016. The symposium was entitled, Looking Ahead: The National Sexual Assault Policy Symposium. His presentation was included on Panel 7, entitled “In the Lab – Testing Sexual Assault Evidence.”

Also please see our OnLine Training Institute module, Laboratory Analysis of Biological Evidence and the Role of DNA in Sexual Assault Investigations. In addition, we offer a Training Bulletin addressing the question: Should We ‘Test Anonymous Kits?’

OVW’s position paper is entitled, Sexual Assault Kit Testing Initiatives and Non-Investigative Kits, and it offers a great deal of helpful guidance in this area.

To help implement this policy, the Texas Department of Public Safety offers a variety of template materials, including a form to submit evidence to the crime lab for non-investigative sexual assaults reports. Instructions and other forms are also available.

Evidence-based prosecution is a strategy typically only seen in domestic violence cases where the victim has recanted. In these situations, the prosecution sometimes moves forward with a case based only on the physical evidence and testimony of witnesses – but without the cooperation or testimony of the victim.

For most of us working in this field, we would agree that this strategy has been extremely successful in many domestic violence cases. Victims of domestic violence are often very relieved to know that they are not the ones who are responsible for deciding whether or not criminal charges will be filed. The goal for evidence-based prosecution is therefore to hold more offenders accountable for their crimes and also to decrease the risk of additional harm to the victim because the offender knows that the victim is not the one in control of decision making.

Based on the success of evidence-based prosecution with domestic violence cases, we sometimes hear discussion about the possibility of extending its use to sexual assault. We discuss this topic in an article entitled, Best Practice or Buzzword: Sorting out Fact From Fiction in the Community Response to Violence Against Women by Joanne Archambault and Kim Lonsway. It originally appeared in the e-news for Sexual Assault Training & Investigations (SATI) on January 29, 2007.

Some Sexual Assault Forensic Examiner (SAFE) programs and other health care facilities have a written policy, or an unwritten rule, that they will do this. However, this practice clearly violates the spirit of the VAWA forensic compliance provisions, which were designed to increase access to medical forensic examinations for victims who are unsure about whether or not to participate in the criminal justice process.

More importantly, this practice of reporting a patient’s disclosure of sexual assault to law enforcement constitutes a violation of HIPAA unless:

  1. the report is required or expressly authorized by state law, OR
  2. the patient has consented to this report being made.

For more information, please see the template materials for non-investigative reporting policies specifically designed for SAFEs in states without medical mandated reporting. It is posted on the EVAWI website, under the tab for Non-Investigative Reports.

This question is addressed on pages 51-52 of the National Protocol for Sexual Assault Medical Forensic Examinations (Adolescent/Adults):

Service providers should discuss all reporting options with victims and the pros and cons of each, including the fact that delayed reporting may be detrimental to the prosecution of an offender. Victims need to know that even if they are not ready to report at the time of the exam, the best way to preserve their option to report later is to have the exam performed. Information should be provided in a language victims understand.

Some victims, however, are unable to make a decision about whether they want to report or be involved in the criminal justice system in the immediate aftermath of an assault. Pressuring these victims to report may discourage their future involvement. Yet, they can benefit from support and advocacy, treatment, and information that focuses on their well-being.  Recognizing that traumatic injuries heal and evidence on their bodies is lost as time passes and that they may report at a later date, victims can also be encouraged to have the medical forensic exam conducted. Victims who are recipients of

compassionate and appropriate care at the time of the exam are more likely to cooperate with law enforcement and prosecution in the future.  Except in situations covered by mandatory reporting laws, patients, not health care workers, make the decision to report a sexual assault to law enforcement (p. 51).

It is natural to spend a limited amount of time on benign topics during the initial contact with a victim, and then ease into the real purpose of the interview. However, if this is done, we recommend it be very limited.  Some people even go so far as to recommend that the interviewer establish rapport by seeking an area of common interest with the victim. However, we advise against such an approach because it can offend adult victims to focus on trivialities at such a critical and traumatic moment in their lives. Better ways to build rapport include communicating empathy, allowing victims to vent, and acknowledging the victim’s ordeal before transitioning to the real purpose of the interview. Victims usually have a number of pressing questions and concerns at the beginning of an interview, and they are typically anxious to get the whole thing over with, so it is simply not appropriate to put them in a position where they need to “make small talk” rather than addressing their real needs and starting the interview.

When a victim has not yet made the decision to talk with law enforcement, it is problematic to require an officer to respond in person to the exam facility, to sign a form – let alone wait until the entire examination process is finished, so the form can be sealed inside the evidentiary kit.

In most jurisdictions, there is no medical mandating requirement for competent adult victims of sexual assault, so law enforcement will not be immediately notified that such an exam has been conducted, unless the patient has requested that they be notified. In cases where the patient is undecided about reporting, the law enforcement agency may be notified by the health care provider when the exam process is complete, and the evidentiary kit is ready to be picked up and logged into evidence by law enforcement.

Even in jurisdictions that do have medical mandated reporting for competent adult victims of sexual assault, it is still not necessary to have an officer respond to the facility to sign the forensic examination form. The notification requirement will be spelled out in the law requiring medical mandated reporting, but it typically requires only that the health care provider file a form with the law enforcement agency and/or provide notification by telephone. Notification does not require an officer’s signature, because the reporting requirement is on the health care provider – not the victim or the officer.

Most police departments use standard reporting forms for all crimes, therefore they are not likely to develop a form for just one crime. This is critical to the automated justice information systems developed for crime analysis. Therefore, the best most agencies will do is develop a supplemental like the one developed by the International Association of Chiefs of Police. We do not know of any agency that has developed a report form just for sex crimes, and there is no way to know how many are using a supplemental form such as the IACP’s. It is not an issue commonly raised in training presentations.

Historically, some law enforcement investigators have used Reid interrogation techniques with sexual assault victims and asked (or even required) victims to submit to a polygraph examination or other technique for “lie detection.” These could include computerized voice stress analysis (CVSA), handwriting analysis, statement validity analysis (such as SCAN), or other techniques. Yet such techniques are clearly inappropriate with sexual assault victims – both because they are ineffective for the purpose of “lie detection” and also because they are likely to destroy any trust the victim has with law enforcement. This is damaging for victims, and decreases the chance of successfully investigating and prosecuting offenders.

Reid techniques were originally developed for the purpose of interrogating suspects, not interviewing victims. Considering the neurobiology of trauma and its effects on memory and recall, such techniques are likely to be very ineffective for interviewing victims. The same can be said about the polygraph and other strategies for detecting deception. The polygraph, for example, has long been seen as unreliable for use with people who are currently experiencing crisis. Even John Reid, the developer of the modern polygraph examination noted a variety of factors that influence the validity of the test results, such as “extreme emotional tension,” “overanxiety,” “anger,” and “physical discomfort,” among others. These factors are extremely likely with sexual assault victims.

Because technologies such as computerized voice stress analysis (CVSA) operate on similar principles, the same advisories apply. In fact, there is currently no technology available to truly “detect lies.” Rather, the polygraph and other techniques such as computerized voice stress analysis (CVSA) are designed to detect physiological reactions of stress, which may be associated with lying, or may be caused by a victim’s emotional reaction to the sexual assault (e.g., trauma, confusion, anxiety, shame).

Based on these concerns, polygraph results are inadmissible in most situations, and several states have enacted laws to prohibit law enforcement from offering or requiring a polygraph examination for sexual assault victims or from using the results of a polygraph examination to determine whether criminal charges will be filed. (This includes California, Colorado, Connecticut, Illinois, Iowa, Michigan, New York, Oregon, Tennessee, Texas, and Wisconsin). Other states have a law that limits the use of the polygraph with sexual assault victims to very specific circumstances (i.e., Kentucky), for example when there is a written Memorandum of Understanding among the involved parties (i.e., Pennsylvania). Others have a statute requiring that victims receive written notice that polygraphs are voluntary, that the results are inadmissible as evidence, and that their agreement to take the polygraph should not be the only condition for initiating or continuing an investigation (i.e., Virginia).

It is also worth noting that the Violence Against Women Act prohibits states, territories, and tribes from asking or requiring victims to submit to a polygraph examination or other truth telling device as a condition for proceeding with the investigation of a sexual assault. This provision applies to law enforcement officers, prosecuting officers, and other government officials. In addition, the victim’s refusal to submit to such an examination cannot prevent the investigation, charging, or prosecution of the offense. The prohibition applies to adult, youth, and child victims. If states, territories, or tribes cannot certify that their laws, policies, and practices comply with this provision, they will no longer be eligible to receive STOP Violence Against Women Formula Grants.

For more information on the polygraph, the National Sexual Violence Resource Center (NSVRC) has published an excellent document entitled, “The Use of Truth Telling Devices in Sexual Assault Investigations.” They also provide a list of individual state legislation regarding polygraph use).

Yes, if possible. This is the recommendation of the National Protocol for Sexual Assault Medical Forensic Examinations (2004) published by the Office on Violence Against Women, U.S. Department of Justice. The National Protocol recommends that SAFEs follow up with victims by phone within 24-48 hours of the exam, (if they consent). This follow-up contact allows the SAFE to check on the patient’s physical and emotional well-being, address any remaining medical concerns, and determine the patient’s level of compliance with the medications and medical treatment. The SAFE should therefore ask the patient for their consent to follow up and determine an optimal day, time, and location for this contact.

Follow-up examination of the patient can be particularly critical when genital trauma is identified during the exam. A follow-up appointment can be used to evaluate the physical well-being of the victim and, it can also be used to strengthen the documentation of evidence regarding genital and non-genital injuries sustained by the sexual assault victim.

  • Specifically, the American College of Emergency Physicians (ACEP) recommends that sexual assault victims be referred for follow-up examinations at 2 weeks, 3 months, and 6 months after the assault to evaluate for pregnancy and sexually transmitted diseases (American College of Emergency Physicians, 1999).
  • It also may be useful to document resolution of injury and in cases where there may be a question of whether an observation from the examination was related to injury or normal anatomical variants. Photodocumentation at the time of the follow-up may also be helpful for comparison purposes.
  • There are also situations where the SAFE is unsure whether the suspected injury is due to the victim’s medical history or other gynecological condition. In these cases, a follow-up examination can be used to evaluate whether the suspected injury appears the same at this later point, which would suggest that it was in fact due to a gynecological condition of some kind, or if it healed as an injury naturally would (thus suggesting that it was in fact an injury).

The National Protocol (2004) also encourages follow-up care to address any issues regarding the testing and treatment of sexually transmitted infections (STI’s) as well as HIV. Yet unfortunately, many SAFEs do not have any mechanism in place for routine follow-up contact with patients. This may be for a variety of reasons, including a lack of program funding for time or other limitations due to facilities or resources. For example, follow-up exams or contact with victims may not be reimbursable in every state. Therefore, this represents a best practice that communities can strive to implement.

Note: Thanks to Kim Day, RN, FNE, SANE-A, SANE-P for her assistance with this response. She serves as the SAFE Technical Assistance Coordinator for the International Association of Forensic Nurses (IAFN).

American College of Emergency Physicians (1999). Evaluation and management of the sexually assaulted or sexually abused patient. Manual prepared under contract 98-0347 (p) with the US Department of Health & Human Services.

Some community protocols require that the victim be notified when their evidence will be destroyed – typically some period of time before the actual destruction (e.g., 30-90 days before the scheduled destruction in case the victim decides to convert at that point). Other communities have developed a protocol where victims are notified of the timelines for evidence storage upfront, so they are not notified at the time the evidence is destroyed. There is no clear standard for best practice in this area, as both options have advantages and disadvantages. In general, however, any multidisciplinary community protocol must include careful attention to the question of whether, when, and how victims will receive follow-up contact.

The Minnesota Model Policies for Forensic Compliance aptly note that some jurisdictions have decided against contacting victims due to the potential risks associated with re-stimulation of the traumatic event (p. 75). In contrast, other communities have decided that the benefits of reaching out to a victim and providing them with information that creates another opportunity for contact out-weigh the risks. Yet the reality is that victims are unlikely to convert to full participation in the criminal justice process unless they receive some follow-up contact from professionals (typically victim advocates) who can answer questions, offer support, and provide other resources to facilitate their decision making. That way the decision regarding criminal justice participation can be made in the context of an ongoing professional relationship, and not “sprung” on victims at the point their evidence is going to be destroyed. Of course, any follow-up contact requires documented consent from the victim.

For more information on these issues and sample language for victims, see EVAWI’s model policy materials on Evidence Retention, Disposition, and/or Removal.

Some community protocols require that the victim be notified when their evidence will be destroyed – typically some period of time before the actual destruction (e.g., 30-90 days before the scheduled destruction in case the victim decides to convert at that point). Other communities have developed a protocol where victims are notified of the timelines for evidence storage upfront, so they are not notified at the time the evidence is destroyed. There is no clear standard for best practice in this area, as both options have advantages and disadvantages. In general, however, any multidisciplinary community protocol must include careful attention to the question of whether, when, and how victims will receive follow-up contact.

The Minnesota Model Policies for Forensic Compliance aptly note that some jurisdictions have decided against contacting victims due to the potential risks associated with re-stimulation of the traumatic event (p. 75). In contrast, other communities have decided that the benefits of reaching out to a victim and providing them with information that creates another opportunity for contact out-weigh the risks. Yet the reality is that victims are unlikely to convert to full participation in the criminal justice process unless they receive some follow-up contact from professionals (typically victim advocates) who can answer questions, offer support, and provide other resources to facilitate their decision making. That way the decision regarding criminal justice participation can be made in the context of an ongoing professional relationship, and not “sprung” on victims at the point their evidence is going to be destroyed. Of course, any follow-up contact requires documented consent from the victim.

For more information on these issues and sample language for victims, see EVAWI’s model policy materials on Evidence Retention, Disposition, and/or Removal.

This is a great question. We were not there on that terrible day, so we are left to speculate on the mental state of those who were. However, it is reasonable to assume that the people trapped in the World Trade Center on September 11th were operating out of a severe trauma state. Similar to the ways described in neuroscience research, it is almost certain that their prefrontal cortex (cognitive functioning) shut down for many people, as their brains reverted to a more primitive response (operating out of the amygdala). This is largely due to the massive release of stress chemicals triggered by such a trauma, which shuts down the more advanced part of the brain and significantly impacts decision-making.

Law enforcement professionals are likely to recognize that emergency personnel responding to such an attack would benefit from a critical incident debriefing, both for their own well-being as well as to gather information about the event. This would be more likely to yield detailed memories than a cognitive-style interview, let alone an interrogation. Our challenge is therefore to apply this recognition to victims of sexual assault as well as emergency personnel. We need to approach victims of sexual assault in the same way as victims of terrorism or any other trauma situation – by interviewing them in a way that recognizes the limitations in their cognitive memory due to the terrible nature of the trauma they experienced.

This is an excellent – and critically important – question. As we have said, it is a very intimate act to share someone’s “trauma bubble” and a tremendous responsibility to ask them to relive their victimization in the way that a FETI-style interview inevitably does. There are therefore several strategies you can use to help them to return safely and re-engage with current reality.

First and foremost, you must make sure victims have adequate support before, during, and after the interview. We will discuss some strategies you can use as an investigator to help victims re-ground themselves, so that victims are not simply cut loose from the interview, and sent back into the world without adequate support.

Incorporate Victim Advocates: One critical form of support is available from victim advocates. Make sure victims are offered the services of a victim advocate – as soon as possible and as often as needed throughout the process of the investigation and prosecution. We know that some law enforcement agencies resist the involvement of victim advocates, and exclude them from interviews with victims, but we believe this is a serious mistake.

When victims enter the criminal justice system, they are asked to turn their lives upside down – precisely at the point where they are least able to tolerate such disruption – while they are struggling to recover from the trauma of victimization and its devastating aftermath. Is it any wonder, then, that so few victims decide to become engaged with the criminal justice system – and so many who do report end up withdrawing when the process takes off like a freight train running through their lives?

To stay engaged with the criminal justice process, victims need virtual mountains of information, support, and ongoing assistance. For many victims, this is best provided by an advocate. Advocates can also provide assistance to connect victims with other resources and referrals, and they can continue to offer follow-up services as they work their way through the criminal justice process. We should therefore take every step we can to ensure that victims are offered the services of a victim advocate – but also provided with an entire response system that facilitates and encourages the involvement of an advocate whenever possible.

Include Support People: Another strategy is to help victims marshal their own support system of friends, family members, and other loved ones. Community professionals can help by incorporating support people into the response system whenever it is appropriate. Of course, many victims do not want a friend or family member present during their interview with law enforcement, because they do not want their loved ones hearing their description of the assault (and the uncomfortable details that will inevitably emerge). This is why many victims prefer to have a professional advocate present during the interview, because the advocate is not a part of their personal life.

However, some victims do want to have a family member or friend present during the interview, and we believe this request should be accommodated whenever possible. In fact, we believe that the decision regarding who will be present during the interview should generally be left to the victim. As long as the support person is not also a witness, disruptive and does not actively participate in the interview process, the benefit for the victim is usually well worth the presence of an additional person. By offering victims the support they want, we can help them to stay engaged in the criminal justice process – and also to participate more successfully. Of course, this can also be good for their recovery and well-being as well.

We offer this recommendation as a general rule for victim interviews, but given the sensitive nature of the FETI, we believe it may be even more critical in this context. Investigators should therefore work to ensure that victims being interviewed using the FETI have the support person they want in the room with them. Investigators can also work with advocates to make sure that support people are given basic guidelines on how to effectively provide support for victims. Support people can even be referred to many of the same services that are available to victims such as a 24-hour hotline, counseling, and referrals.

Provide Time and Space: Now that we have addressed the issue of support, it is time to turn to suggestions you can use while you are still in the room with the victim. The first step in that process is recognizing that that you have asked victims to return with you to a very difficult place and that they need support to come back safely to the present.

Next, make sure to provide victims with the time they need to re-orient themselves back to the present, and offer a safe and comfortable place in which to do this. Many communities have worked to create this type of interview room for child victims; we are now recognizing that the same need exists for adolescents and adults. The room can be decorated in warm colors, with comfortable furniture, artwork, and other design aspects that create a sense of welcome and safety. Basic comforts and amenities can also be provided, such as tissues, beverages, and snacks. The room can be used for victims to connect with advocates and support people before the interview, and they can remain in the room after the interview is concluded, until they feel able to leave and return to their lives.

Use Simple Grounding Techniques: It can also be helpful for investigators to familiarize themselves with simple grounding techniques to assist victims during the interview or to help re-orient victims to the present after conducting a FETI-style interview. An example of how to use grounding techniques is available from Psychology Today. Victims can be guided to use the simple exercises described in this article to relax, breathe, and engage with each one of their five senses – one at a time. While this type of grounding technique may be used by advocates when they are present during the interview, it is not counseling or therapy, so the process can be used by investigators to bring victims back to the present and to help slow their breathing and heart rate. Victims can even be taught to use these techniques on their own, when they begin to feel overwhelmed and need to re-ground themselves into the present.

Make a Plan for Self-Care: As the interview wraps up, and the victim begins to reorient toward the present, it can also be helpful to guide them to think about the steps they will take for self-care. To start, you can ask victims about what will happen when they leave the interview. Are they going back to school or work? Will they immediately return to caring for young children? After guiding them to visualize what will happen next in their life, you can then ask if there are steps that can be taken to help them with “re-entry.” Do they need you to call their employer or school to make arrangements, or to offer a reason for missing school or work? Can they be given some time off, or offered some other accommodation? As one example, law enforcement can offer to write a letter simply stating that the victim is a witness in a crime.

The appropriate response will be different for each victim, but the process will help them to think ahead and prepare for the difficult transition that awaits as they return to their regular lives. As a final step in this process, you can ask victims what they do to take care of themselves. What gives them comfort, or makes them feel better when they are distressed? After finding something that is healthy and not self-destructive (such as drug or alcohol abuse), victims can be encouraged to make a specific plan to do it later in the day – or as soon as possible. Again, this helps victims to reorient to the present, and plan for the future, with the recognition that this will be difficult but they have tools to use and people who can help.

Provide Contact Information: Finally, make sure you leave victims with contact information to reach you, and someone who might be available to assist them if you are not available for an extended period of time (e.g., a planned vacation). While it is often routine practice for detectives to leave a business card, it can be helpful to jot down any notes regarding how and when they can be reached. For example, it is important for victims to understand the difference between calling in an emergency versus contacting a detective who doesn’t work 24 hours a day, 7 days a week. Detectives can make a note on their business card regarding what times/days they are generally available. This can be provided along with other written materials that summarize their rights as a crime victim and referral information for any community resources.

The following response was written by Dr. Jim Hopper, Clinical Psychologist, Independent Consultant and Teaching Associate in Psychology, Harvard Medical School.

Dr. Jim Hopper: Some people’s very early response is to fight, and that’s a response that’s expected by most people, based on our cultural myths and misconceptions regarding sexual assault. However, even when it seems a person’s first response was to fight, it may not have been. That is, in many such cases there’s some kind of very brief appraisal of the attack/assault and perhaps a brief freeze response before the brain goes into fight mode. However, some people do reflexively strike out within a fraction of a second after being touched in a way they don’t want, or simply being touched unexpectedly.

This training material is focused on brain-based responses that are (a) quite common in sexual assault victims and (b) still not understood as brain-based by most victims, investigators and everyone else. Those brain-based responses include the defense circuitry taking over; the prefrontal cortex becoming impaired; alterations of attentional deployment; reflexive responses including freezing, dissociation, tonic immobility and collapsed immobility; and habit-based responses associated with responses to aggressive or dominant people, prior victimization (e.g., child abuse, witnessing domestic violence, bullying), and socialization in how to respond to unwanted sexual advances).

VAWA does not provide direction on the process or timeline for evidence destruction, in situations where victims have an exam but have not (yet) decided to participate in the investigation. If the victim never converts to a standard reporting process, it will be necessary to properly destroy the evidence that was collected and documented in association with the exam.

Law enforcement agencies already have existing policies in place to provide guidance on how to properly destroy various categories of evidence. The same policies pertain to evidence in these cases, to ensure that standard protocol is followed in terms of protections for confidentiality, sensitive information and bio-hazardous materials. Victims must be advised of the process, and the same policies for evidence destruction should be followed consistently, regardless of the victim’s decision regarding criminal justice participation. For more information on these issues, please see EVAWI’s model policy materials on Evidence Retention, Disposition, and/or Removal.

This is the term used to describe a sexual assault case where the victim had a medical forensic examination but was initially unsure about whether or not to participate in the criminal justice process. For victims who later decide that they will participate in the criminal justice process, this is described as ‘converting’ to a standard reporting process. At that point, the case may be handled like any other report coming in to law enforcement following the traditional path.

For military personnel, this will refer to a sexual assault case that begins with a restricted report and later converts to an unrestricted report (whether this is voluntary on the part of the victim or involuntarily, against the victim’s wishes).

While the research in this area is somewhat limited, the consistent conclusion is that advocacy services facilitate victim recovery and increase access to other services in the community response system; this includes the criminal justice system as well as other social services.

  • For example, in one statewide study of rape crisis center services, Wasco et al. (2004) “found that survivors consistently rated advocates as supportive and informative” (Campbell, 2006, p. 32).
  • In another study, Wasco, Campbell, Barnes, and Ahrens (1999) found that victims who worked with an advocate experienced less distress after contacting the legal and medical systems.

“Taken together, the results of these studies suggest that rape victim advocates are beneficial” (Campbell, 2006, p. 32).

More specific evidence also addresses the question of exactly HOW advocates facilitate victim recovery by increasing their access to other services in the community response system. To illustrate, one study was conducted with victims of sexual assault who presented to the Emergency Department of local hospitals (Campbell & Bybee, 1997). Results of that study indicated that victims who had the assistance of an advocate received medical services at higher rates than are typically documented in the research literature:

  • 82% received a medical forensic exam
  • 70% received information on pregnancy
  • 38% were provided emergency contraception
  • 67% received information on STDs, and
  • 79% received information on STD preventive antibiotic treatment (Campbell, 2006, p. 32).

The objectives of this study were then expanded by directly comparing rates of service delivery for victims who worked with an advocate as compared with those who did not (Campbell, 2006). With respect to law enforcement, results indicated that when an advocate was involved:

  • Victims were more likely to have a police report taken (59% vs. 41%); and
  • The case was more likely to be investigated further (24% vs. 8%).

Regarding medical services, a similar pattern of increased service delivery was also seen when advocates were involved:

  • Victims were more likely to receive information on STDs (72% vs. 36%) and HIV (47% vs. 24%), as well as prophylactic treatment for STDs (86% vs. 56%).
  • Victims were more likely to be tested for pregnancy (42% vs. 22%) and receive emergency contraception to prevent pregnancy (33% vs. 14%).
  • Medical professionals were less likely to refuse to conduct the examination because the assault occurred “too long ago” (24% vs. 36%). [This is significant because none were “too long ago” based on accepted standards; all of the sexual assaults in the study were reported within 96 hours.]
  • Victims were less likely to be treated “impersonally or coldly” (36% vs. 69%).

As a result of their contact with police and physicians, most of the sexual assault victims in this study experienced considerable distress (Campbell, 2006). However, some responses were seen less often among those victims who worked with an advocate (e.g., feeling bad about themselves, guilty, depressed, or reluctant to seek further help). In other words, victims who worked with an advocate were less likely than others to blame themselves for the sexual assault and less reluctant to seek further help from community response systems. As a result, they received more services from community professionals and had better recovery outcomes.

This response is excerpted from the OnLine Training Institute (OLTI) module entitled, Effective Victim Advocacy in the Criminal Justice System: A Training Course for Victim Advocates. It includes a lengthy discussion on “strategies or overcoming reluctance and addressing conflict (beginning on page 105).

Campbell, R. (2006). Rape survivors’ experiences with the legal and medical systems: Do rape victim advocates make a difference? Violence Against Women, 12, 30-45.

Campbell (2006). Rape survivors’ experiences with the legal and medical systems: Do rape victim advocates make a difference? Violence Against Women, 12, 30-45.

Campbell, R. & Bybee, D. (1997). Emergency medical services for rape victims: Detecting the cracks in service delivery. Women’s Health, 3, 75-101.

Wasco, S.M., Campbell, R., Barnes, H., & Ahrens, C.E. (1999, June). Rape crisis centers: Shaping survivors’ experiences with community systems following sexual assault. Paper presented at the Biennial Conference of the Society for Community Research and Action, New Haven, CT.

Wasco, S.M., Campbell, R., Howard, A., Mason, G., Staggs, S., Schewe, P., et al. (2004). A statewide evaluation of services provided to rape survivors. Journal of Interpersonal Violence, 19, 252-63.

The polygraph is widely recognized as a tool that can be very useful with the suspect in a sexual assault case. There are serious concerns, however, when the polygraph or other truth-telling device is used with a victim of sexual violence.

The OLTI module entitled, False Reports: Moving Beyond the Issues to Successfully Investigate Sexual Assault explains how the presentation of a polygraph or other truth-telling device can communicate an attitude of mistrust and potentially intimidate victims into withdrawing their cooperation or even recanting their report. These methods can include the use – or threat of using – polygraph examinations, voice stress analysis, handwriting analysis, statement validity analysis, and other means to determine whether the victim is telling the truth. Such methods put the victim in the “hot seat” and can damage or destroy any rapport or trust between the victim and law enforcement.

The National Sexual Violence Resource Center (NSVRC) published an excellent document entitled The Use of Truth-Telling Devices in Sexual Assault Investigations. It reviews the empirical research on the accuracy of truth-telling devices, outlines judicial and legislative issues, and highlights concerns about the use of these devices with sexual assault victims. This report also describes the ways in which polygraph testing may undermine a victim-centered approach to investigation, and concludes:

The use of a polygraph test by investigators to determine the validity of a sexual assault complaint or the credibility of the victim is likely to be harmful to both the investigation and the victim (p.12).

In addition to these more general concerns, the Violence Against Women Reauthorization Act of 2005 specifies that any state, territory, or tribe receiving funds through the STOP Violence Against Women Formula Grant Program or the Grants to Encourage Arrest Program must certify that polygraphs and truth-telling devices are not being used with victims of sexual assault in any of their jurisdictions, as a condition for investigating or prosecuting the offense. These provisions took effect early in 2009.

States, territories, and tribes differ widely in their laws, policies, and regulations governing the use of polygraphs and truth-telling devices. NSVRC therefore provides a list of individual state legislation regarding polygraph use. Statutory compilations and case law summaries on this topic can also be provided upon request by AEquitas: The Prosecutors’ Resource on Violence Against Women.

Perhaps the clearest statement is offered by the International Association of Chiefs of Police, in their document Sexual Assault Incident Reports – Investigative Strategies. Among their best practice recommendations, they state: “Do not polygraph victims.”

The following response was written by Dr. Jim Hopper, Clinical Psychologist, Independent Consultant and Teaching Associate in Psychology, Harvard Medical School.

Dr. Jim Hopper: High levels of intoxication are associated with much greater impairment across all brain circuitries. Not only is the prefrontal cortex impaired, but so is the defense circuitry and the brain’s capacity to access and implement (a) survival reflexes programmed into the brain by evolution and (b) habit responses programmed by childhood experiences and cultural conditioning. Even at high levels of intoxication, however, there are differences between blackout states, where reflex and habit responses may be relatively intact but the person will have no way of recalling them later, and passed out states, where the brain and body are simply nonresponsive to what’s happening as part of the assault. (In blackout states, however, there may be brief “breakthroughs” of awareness and memory encoding associated with intense pain, fear, and/or horror.)

The following response was written by Dr. Jim Hopper, Clinical Psychologist, Independent Consultant and Teaching Associate in Psychology, Harvard Medical School.

Dr. Jim Hopper: First of all, like most child sexual abuse, incest tends to be associated with grooming, and grooming is designed to gradually break down the child’s resistance to sexual contact that, were it to be engaged in from the outset, would be very stressful and potentially terrifying to the child. Indeed, most perpetrators of child sexual abuse, including incest, are systematically training the child to dissociate from the inappropriate, strange, unwanted and potentially frightening behaviors, sensations, and emotions associated with such betrayal and exploitation. Thus most (but certainly not all) child sexual abuse, including incest, tends not to be associated with the states of intense fear that result in sudden defense circuitry activation and dominance of the brain. However, states of dissociation can involve impairment of the prefrontal cortex, impairment of memory encoding (primarily through altered attention e.g., imagining one is at the beach or floating on the ceiling), and “autopilot” behavior consisting entirely of habits, including habits of attention, thinking and behaving that were cultivated during the grooming process and prior incidents of abuse. These patterns could also potentially be seen in cases of repeated victimization of adolescent or adult victims.

In cases of incest throughout childhood, dissociation is very common, with the child “spacing out” and “going on autopilot” at the first indication that the abuse is about to happen again (e.g., the creak of the bedroom door or floorboards in the night). Of course, some child sexual abuse, including repeated incestuous abuse, involves states of intense fear and terror in the child (e.g., sadistic and cruel abuse by a perpetrator who deliberately inflicts emotional and physical pain and harm). In those situations, the victim may enter the states of intense fear and terror that are more common in adult sexual assault victims. However, some children (and some adult IPV victims) subjected to such chronic sadistic abuse also express their fear and distress in a dissociative autopilot way, in which they exhibit the outward behaviors of fear and terror (that the sadistic perpetrator wants to see) while subjectively feeling none of the sensations or emotions.

Many communities have established protocols for storing evidence from a medical forensic exam with a victim who has not yet decided to participate in the criminal justice process. In general, our recommendation for best practice is to store such evidence in a law enforcement facility. There are a variety of reasons for this, which we describe in detail in two articles described on the EVAWI website: one in Police Chief magazine and another in the Journal of Forensic Nursing. However, some communities have also established protocols for storing evidence in the exam facility (or other health care facility) for some limited period of time. Given the many complexities involved, any community protocol should be clearly spelled out in a written document created by the multidisciplinary professionals involved in responding to sexual assault.

To support work in this area, EVAWI created model policy materials for law enforcement agencies on Evidence Retention and Disposition and/or Removal. The materials include sample language to use when developing an agency policy, as well as instructional commentary and template materials. It can therefore be used as an educational tool as well as a resource to assist in the development of policies, protocols, and training materials.

These issues are also addressed in detail in the OnLine Training Institute module entitled, The Earthquake in Sexual Assault Response: Implementing VAWA Forensic Compliance.

Being above the “legal limit” for alcohol consumption (to operate a vehicle) is irrelevant to the question of whether someone can consent to sexual acts. In most jurisdictions, the legal limit to drive a car is a blood alcohol content (BAC) of .08 or .10 percent. Someone with this level of alcohol consumption will typically be perfectly capable of consenting to sexual acts, unless there are other factors that are interacting with the alcohol to create incapacitation (e.g., prescription medications or other drugs).

When we are talking about drug or alcohol facilitated sexual assault, the threshold for a victim is incapacitation. This is not someone who is simply intoxicated, let alone “tipsy.” It is not a question of two people having sex after they’ve had a few drinks. Rather, someone who is incapacitated by alcohol or drugs is seen in the eyes of the law as being unable to consent to sexual acts because they cannot comprehend what is happening and they are unable to communicate their consent or resist unwanted acts. The threshold for incapacitation is high – far higher than the legal limit to drive a car.

Keep in mind that investigators and prosecutors must prove three legal elements for drug or alcohol facilitated sexual assault:

  1. Sexual penetration (no matter how slight)
  2. The victim was incapacitated to the point where she/he could not consent to sexual acts.
  3. The suspect knew or should have known the extent of the victim’s incapacitation.

There is no clear legal standard for establishing how severe the incapacitation must be to render an individual incapable of consent. This can only be established with evidence gathered during a thorough law enforcement investigation.

Moreover, it is not just a question of how much alcohol or drugs were consumed by a person. Most of us know that the same level of alcohol can affect people very differently. The effects depend on a wide range of factors, including the person’s size and body fat, what the person ate recently, what their tolerance level is, and (for women) where they are in their menstrual cycle. The same type of variation can also be seen among different people consuming the same quantity of a particular drug.

Determining whether a person is incapacitated will therefore depend not only on the amount of alcohol or drugs consumed – it will also include a host of other factors. Most important, it will depend on the person’s behavior. Investigators will need to gather information from the victim, suspect, witnesses, and other sources to determine whether the victim was able to walk, talk (essentially care for their own safety) or if the victim was throwing up, being carried, stumbling, etc.

To counter the charge, the defense will typically argue that the person was not incapacitated and therefore could – and did – consent to the sexual acts.

As described in DOD Directive Number 6495.01 (which includes Air Force, Army, Navy, Marines) or Coast Guard policy (COMDTINST M1754.10D), a “restricted report” can be made by any sexual assault victim within the U.S. military who chooses to disclose their sexual assault to a Victim Advocate (VA), Sexual Assault Response Coordinator (SARC), or a health care provider (HCP). Some limited information about the sexual assault will be provided to the installation commander even with a restricted report, but this will not include personal identifying information for the victim. Within the military, only chaplains have full confidentiality; they do not have a legal obligation to report any disclosure of a sexual assault committed by or against a service member.

While a report remains restricted, victims in the military can now obtain all of the following services without triggering the investigative process:

  • Medical testing and treatment
  • Medical forensic examination
  • Advocacy services
  • Counseling assistance

This is the primary advantage of restricted reporting – accessing these services without automatically triggering the formal investigative process. On the other hand, there are a variety of disadvantages including the fact that the victim cannot obtain a military protective order and may have continued contact with the offender. The victim also cannot discuss the sexual assault with anyone affiliated with the military, other than the personnel listed above, because service members generally have an obligation under military regulations to report any such disclosure to their commander. In other words, if a victim tells his or her best friend who is also serving in the military that he/she was sexually assaulted, the friend is mandated to report it to a superior, and an investigation will ensue even if it is against the wishes of the victim. Moreover, if someone in the victim’s chain of command learns about the incident from another source, they are also obligated to report the sexual assault to the proper authorities (e.g., Naval Criminal Investigative Service, Army Criminal Investigation Division, and Coast Guard Investigative Service) who will then initiate an investigation.

Of course, victims can still talk about the assault with their friends and family members who are NOT affiliated with the military, as long as those support people do not pass the information along to someone who is in military service. However, the bottom line is that victims in the military have no guarantee of confidentiality and no promise that a restricted report will stay that way.

For more information, please see the OnLine Training Institute (OLTI) module entitled, Effective Victim Advocacy in the Criminal Justice System: A Training Course for Victim Advocates.

While a great deal of discussion has focused on anonymous reporting, the question of anonymity may not be as critical as what happens as a result of a report. If a victim is unable or unwilling to participate in the process of a law enforcement investigation, will it be investigated anyway? Or will the victim be allowed to decide when and if an investigation will proceed? A protocol for non-investigative reporting allows a victim or other reporting party to provide information to law enforcement without triggering an investigative process.

Implementing this type of protocol requires communities to establish an understanding that sexual assault reports will not generally be investigated or prosecuted against the victim’s wishes. Of course, police and prosecutors have the clear legal authority to investigate and prosecute any felony crime that comes to their attention, regardless of the victim’s wishes. However, the option of non-investigative reporting will be undermined if they are investigated or prosecuted against the victim’s will – except in very limited circumstances that are clearly stated from the initial contact with the victim.

Exceptions to this general philosophy are allowed in limited circumstances, such as:

  • when legally mandated (e.g., in certain instances of domestic violence;
  • when the victim is under 18;
  • when a victim is in continuing physical danger); or
  • in other rare circumstances such as a significant threat to public safety.

In December 2011, FBI Director Robert Mueller officially approved a new, more comprehensive, definition of rape for the UCR program. The previous definition, the “carnal knowledge of a female forcibly and against her will,” was extremely limited in its scope. This definition was so limited, that other sexual assault crimes such as oral copulation, sodomy or penetration with a foreign object as well as many victims (such as male victims, many drug- or alcohol-facilitated rape victims, victims with disabilities, minor victims, etc.) did not meet the criteria for Forcible Rape under UCR guidelines and thus remained invisible in UCR crime statistics.

The new definition of rape is:

Penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.

This new definition includes the excluded victim populations mentioned above, meaning that they will now be classified as victims of rape and UCR crime statistics will more accurately reflect the full range of sexual assault offenses.

As a result of this change, many communities will see a dramatic increase in the number of rape cases reported by law enforcement to the FBI as well as the public by law enforcement officials. The public will therefore need strong leadership and clear communication – both from their law enforcement agencies as well as other community leaders – to understand that this does not necessarily mean that more rapes have been committed in their communities. Rather, the data being reported to the FBI now includes the full range of sexual assault offenses that have been committed all along. This will inevitably impact the way these cases are cleared or otherwise closed.

In the long term, we believe the change may lead to an increase in reporting by victims since these other types of felony sexual assaults will finally be visible for the first time since law enforcement started tracking crime statistics for certain offenses.

This information was drawn from the OnLine Training Institute (OLTI) module on Clearance Methods for Sexual Assault. For more information, please see the FBI’s website for the UCR Program, particularly their press release on the new definition dated January 6, 2012.

Caregiver codes pertain to people who depend on others for essential care, such as those with severe physical, mental, and emotional disabilities. Just as one example, California penal code defines a ‘caretaker’ as:

Any person who has the care, custody, or control of, or who stands in a position of trust with, an elder or a dependent adult.

[Section 368.2 (i)]

A ‘dependent adult’ is then defined as:

Any person who is between the ages of 18 and 64, who has physical or mental limitations which restrict his or her ability to carry out normal activities or to protect his or her rights, including, but not limited to, persons who have physical or developmental disabilities or whose physical or mental abilities have diminished because of age. ‘Dependent adult’ includes any person between the ages of 18 and 64 who is admitted as an inpatient to a 24-hour health facility, as defined in Sections 1250, 1250.2, and 1250.3 of the Health and Safety Code. [Section 368.2 (h)]

While the specific language will vary depending on state law, themes are often very similar throughout the country: caregivers are those who provide essential assistance with daily living for people who have severe physical or cognitive restrictions.

While the standard of 120 hours is often used as a general guideline, best practice is for each sexual assault to be evaluated on a case by case basis. The question of whether or not to conduct an exam should be based on the facts of the case, the victim’s history, the likelihood of recovering evidence, and the types of evidence that will be needed for successful prosecution. To illustrate, evidence may be available beyond 120 hours in cases where:

  • The victim did not bathe or washed minimally
  • Multiple assailants were involved
  • The victim was seriously injured or describes a great deal of force
  • The victim reports pain and discomfort
  • The victim reports inflicting serious injury on the assailant(s), or
  • The victim is a child, dependent adult or was unconscious or physically helpless during the assault

There may be other circumstances in which it is prudent to conduct an exam beyond the standard timeframe that is used as a cutoff in a particular jurisdiction; however, these examples illustrate the need for greater flexibility when making the determination. In fact, it is worth noting that the 72-hour cutoff that was historically used in many jurisdictions was originally established by the medical community as a window of opportunity for successfully treating sexually transmitted infections (STI’s) and pregnancy. Thus the 72-hour time frame for conducting an exam was originally developed based on medical considerations, not forensics; it generally had nothing to do with the likelihood of recovering forensic evidence.

VAWA does not specify the timeline or corresponding circumstances when evidence should be collected – there is no “letter of the law” on this topic. However, the spirit of the law is to follow the current recommendation for best practice, which is to:

Make decisions about whether to collect evidence on a case-by-case basis, guided by the knowledge that outside time limits for obtaining evidence vary due to factors such as the location of the evidence or type of sample collected… It is important to remember that evidence collection beyond the cutoff point is conceivable and may be warranted in particular cases (U.S. Department of Justice, Office on Violence Against Women, 2004, p. 67).

In other words, best practice is to collect evidence whenever it is available It is not a good idea to adhere to a rigid time frame that will inevitably limit the collection and documentation of valuable evidence.

Though there is no official industry standard for how many cases a detective investigating sexual assault should carry, there are some informal standards that departments across the country have been using. Here are a few examples:

In Portland, Oregon, an audit was conducted in June 2007 which included a review of data from nine additional cities.  They concluded that the average detective “had a median annual caseload of 54, compared to Portland’s five year average of 56.”

In a second report entitled: Allocation of Personnel: Investigations, author William Prummell identified the industry standard for a detective working major crimes (other than homicide) as 6-8 cases per month or 72-96 cases per year.   He then utilized a formula and case assignment criteria from the Charlotte County Sheriff’s Office in Florida and determined that detectives in that agency working major crimes (other than homicide) were assigned an average of 6 cases per month or 72 cases per year.  This is on the lower end of the industry standard, but otherwise demonstrates consistency between the theory of an industry standard and the practice in at least this one particular agency.

Further connecting the theory of industry standards to the daily practice of working detectives, we provide two examples below of written performance evaluations that incorporated caseload information.  These performance evaluations were written by Sgt. Joanne Archambault while she supervised the Sex Crimes Unit of the San Diego Police Department.  The number of cases assigned to these detectives is considerably higher than the standards outlined above.  At the same time, it is important to understand that every felony sexual assault was assigned for follow-up and detectives were required to submit through documentation of their investigative follow-up on every case assigned.  Therefore, he following examples are used to demonstrate not only the volume of cases for each detective, but also how caseloads should be managed.  Both evaluations thus place a high value on criteria that are not traditionally emphasized, including: investigative skills, understanding of the dynamics of sexual assault investigations, rapport with victims, report writing, and record keeping.

For example, both investigators are recognized for having a high percentage of their cases referred to the District Attorney’s office result in a charge, because this is an indicator that their investigations were thorough and well documented. In one example, the investigator is also rewarded for actively pursuing investigations where victims have been initially uncooperative, because he was able to establish sufficient rapport with these victims to encourage and support their participation. By highlighting these values, these sex crimes investigators were recognized for their job performance without placing undue emphasis on case outcomes within the criminal justice system.

Example 1: Mark was assigned to investigate 94 cases in 2006. As of the first week of January 2007, he had 29 cases pending disposition. 56% of the 25 cases he cancelled were charged by the District Attorney’s office. Only 8% of his cases were cancelled because the victim declined prosecution. 4% were unfounded. The unit average for cases cancelled VDP is 20%, and 12% for unfounded. Some might argue that these statistics reflect the special circumstances involving unlawful sexual intercourse cases. However, the second detective working these same cases cancelled 26% of his cases VDP, and 19% unfounded. Only 36% of his cases were charged. I believe the data reflects Mark’s understanding of the dynamics involved in sexual assault investigations. He has actively pursued many investigations where the victims have been uncooperative and in many cases, he has developed enough rapport with the victim that she has agreed to participate in the criminal justice system. The high percentage of cases charged also demonstrates Mark’s investigative ability and his exceptional report writing skills.

Example 2: Vanessa has outstanding caseload management skills. She was assigned 86 cases to investigate in 2006, the second highest caseload in the Unit. However, when I ran the statistics around the first of February 2007, Vanessa only had 8 open cases. Another striking note is that 51, or 59% of her cases were cancelled. 43% of her cases were referred to the DA’s office and 49% were issued, indicating that Vanessa’s investigations are thorough and well documented. Vanessa is also very meticulous about her records. She is one of the few detectives I know who consistently goes back to check the status of the cases she has referred to the DA’s office for review or warrants. She meticulously revises her paperwork to reflect the current status of each case resulting in up-to-date and accurate case status reports.

For more information about the  information that can be incorporated in the performance evaluation of sex crimes investigators – and the values of the agency that are reflected in such oversight and accountability — please see the OnLine Training Institute training module entitled: Clearance Methods for Sexual Assault cases.  In that module, we provide information for law enforcement officers, investigators, and supervisors who make decisions regarding how to clear or otherwise close sexual assault cases. These determinations can be extremely difficult, yet many law enforcement personnel are provided little or no guidance in how to make them appropriately.

This may seem like a straightforward question, but in fact determining the percentage of false reports is complex. The OLTI module False Reports: Moving Beyond the Issues to Successfully Investigate Sexual Assault clarifies that a report can only be determined false based on the evidence from a thorough investigation:

…the determination that a sexual assault report is false can only be made if the evidence establishes that no crime was completed or attempted. This evidence will only be available after a thorough investigation, not after only a preliminary investigation or initial interview with the victim.

While there is a wide range of figures in the literature, methodologically rigorous research shows that the estimated range of false reports is between 2-8%. These studies include:

These studies indicate a far lower prevalence of false reports than people often believe. EVAWI’s  Start by Believing campaign is designed to address this misconception and prevent unwarranted suspicion from compounding the trauma of sexual assault with disbelieving reactions from friends, family members, and responding professionals.

False reports are sometimes confused with other types of disclosures or cases. An article published in Violence Against Women identifies important distinctions among related concepts:

  • Deliberate falsehoods. This is what most think of, when an individual deliberately files a false report for some personal gain or other purpose.
  • Untrue statements without malice. This would include reports made by an individual suffering from delusions or a young person who simply does not understand the consequences of making a particular statement or allegation.
  • Inconsistent statements. There are countless reasons why victims might make statements that are inconsistent or even untrue. This could be the result of trauma as well as drug or alcohol use, which may be voluntary or part of the crime. Victims’ statements may also be inconsistent because they are striving to make their report sound more “believable,” or because they are embarrassed or uncomfortable discussing certain aspects of the crime. However, a report that is made with inconsistent or even untrue statements is not necessarily a false report.
  • “Unfounded” criminal cases. These cases include reports that are false as well as those that are baseless. A false report is defined above; baseless reports include those that do not meet the elements of a criminal offense.

To better understand these issues, see the EVAWI article Incomplete, Inconsistent, and Untrue Statements Made by Victims: Understanding the Causes and Overcoming the Challenges.

As many as one-third to one-half of all sexual assault victims withdraw their participation from the law enforcement investigation at some point after initially reporting – and this is especially likely when the victim and offender know each other (Frazier et al., 1994; Spohn, Rodriguez & Koss, 2008); Tellis & Spohn, 2008). There are many reasons for this, but it is clear that a sexual assault case is extremely unlikely to be prosecuted without a participating victim. In other words, there are a number of critical fears, doubts, and other concerns that prevent victims from reporting their sexual assault to law enforcement – and many of these same factors get in the way of victims remaining engaged with the criminal justice process. They also deter many victims from reaching out for help by accessing other community services (Campbell, 2008).

Campbell, R. (2008). The psychological impact of rape victims’ experiences with the legal, medical and mental health systems. American Psychologist, 63 (8), 702-717.

Frazier, P., Candell, S., Arikian, N., & Tofteland, A. (1994). Rape survivors and the legal system. In M. Costanzo and S. Oskamp (Eds.), Violence and the Law (Chapter 6, pp. 135-158). Newbury Park, CA: Sage.

Spohn, C., Rodriguez, N., & Koss, M. (2008, November). The “victim declined to prosecute”: Accounting for lack of cooperation in sexual assault cases. Paper presented at the annual meeting of the American Society of Criminology, St. Louis, MO.

Tellis, K. M., & Spohn, C. (2008). The sexual stratification hypothesis revisited: Testing assumptions about simple versus aggravate rape. Journal of Criminal Justice, 36, 252-261.

In a publication by PPCT Management Systems (1989), the authors describe a phenomenon called “critical incident amnesia” that experienced by law enforcement professionals in trauma. According to that publication: “This temporary amnesia will affect both the officer’s memory and the officer’s ability to write an incident report” (p. 1-6).

Such a characterization is generally consistent with the research on trauma and memory (for a review, see Koss, Tromp & Tharan, 1995). Research suggests that memories of traumatic events are typically quite accurate, because emotional experience heightens memory. However, the traumatic nature of the experience tends to focus a person’s memories on central rather than peripheral details. The research also suggests that the amount of accurate information a person can recall may actually increase over a limited time, because of the short-term memory impairment that is caused by the trauma (Koss et al., 1995). Memory of the event may also be facilitated when the person has had some time to rest and recover; it is important to keep in mind the restorative power of sleep on memory and well-being in the aftermath of any traumatic event.

Applying this to the context of critical incidents, the PPCT Management Systems publication recommends that the first version of a critical incident report completed by law enforcement should be verbal and titled as a “preliminary” report. The “supplemental” report should then be completed after the officer’s first sleep cycle, and the final report prepared after the officer has had a second full sleep cycle. This is something other professionals might want to consider in facilities where critical incidents occur and staff members are required to participate in an interview and investigation of the report.

This response is an adapted excerpt from the article entitled, Incomplete, Inconsistent, and Untrue Statements Made by Victims: Understanding the Causes and Overcoming the Challenges.

Koss, M.P., Tromp, S., & Tharan, M. (1995). Traumatic memories: Empirical foundations, forensic and clinical implications. Clinical Psychology: Science and Practice, 2 (2), 111-132.

There are several excellent media guides that offer strategies for working with the media:

This pamphlet may also be helpful. It was developed by the San Diego Police Department, specifically for victims who receive calls from media outlets. The pamphlet offers suggestions on how victims can respond to requests from the media.

To find out any laws regarding medical mandated reporting in your state, please see the document entitled, Mandatory Reporting of Domestic Violence and Sexual Assault Statutes, created by the National District Attorneys Association. It is a compilation of the laws pertaining to medical mandated reporting for all U.S. states and territories (current as of 2010).

For states with medical mandated reporting requirements, we offer a few tools that could be useful to assist with implementing alternative reporting procedures. For example, in the Forensic Compliance Resources section of our website, we provide a sample form with reporting instructions for the state of California. In California, most medical forensic exams are conducted with a victim who personally talks with law enforcement in connection with the report, so the mandated reporting requirement is met when the forensic examiner submits the standard medical forensic examination form (known as the OES-923). This form is used to document evidence from an adult victim of sexual assault. However, when a medical forensic exam is conducted with a victim who does not personally talk with law enforcement, health care providers must still meet their requirement for mandated reporting. This is accomplished by submitting a Suspicious Injury Report, which is available along with the corresponding Instructions. These materials can thus be adapted for use in other communities.

For professional in states without medical mandated reporting requirements, we offer template materials for non-investigative reporting, which include relevant procedures for health care providers. These documents are posted in the Forensic Compliance Resources, under the tab for Non-Investigative Reports.

In some cases, victims are asked to submit their cell phone for evidence. This can have several unintended consequences for the victim, such as loss of access to their support system and increased challenges for criminal justice professionals to maintain communication with the victim, as well as difficulty fulfilling work obligations, particularly because many people work remotely. Perhaps the most significant challenge for victims, however, may be financial hardship, due to the often exorbitant cost of a new phone and the charge for breaking a contract with a cell phone company.

For victims who are under a contract, they – or the advocates they are working with – can approach a manager in a local branch of the cell phone company and discuss the possibility of switching the victim’s service and contract to a new device. Cell phone companies are often helpful in allowing victims of domestic violence to get out of contracts when the phone is connected to an abuser. It is hoped that the same would be true for victims of sexual assault.

For more information on the intersection of technology and violence against women, please visit the Safety Net Project on the website for the National Network to end Domestic Violence

Thanks to Cindy Southworth, Founder of the Safety Net Technology Project at the National Network to End Domestic Violence (NNEDV), for the information contained in this response.

We frequently receive requests for training on how to respond to sexual assault specifically within the campus environment, including campus law enforcement investigations, legal obligations under Title IX, and Clery Act responsibilities.

Responding to these requests is challenging because experts in the field have different pieces of this very complicated puzzle. We can therefore provide referrals in specific areas, but we also encourage campus professionals to take advantage of the training and technical assistance resources that EVAWI already offers, such as the OnLine Training Institute and webinars.

We often explain to college and university professionals that they will learn as much, if not more, from training that is NOT specifically focused on campuses. Professionals working in specialized settings (e.g., military installations, tribal lands, corrections) often think the issues in that environment are very “different,” rather than recognizing that the foundation for every sexual assault investigation is the same. On campuses and in our communities, the dynamics of sexual violence are fundamentally the same – as are aspects of our responses to victims, suspects, and the investigation of reports.

The following organizations are examples of the referrals we provide to individuals looking for information specific to campuses:

  • The National Center for Campus Public Safety, whose mission is to bring together all forms of campus public safety, professional associations, advocacy organizations, community leaders, and others to improve and expand services to those who are charged with providing a safe environment on the campuses of the nation’s colleges and universities.
  • The Clery Center for Security on Campus, a non-profit 501(c)(3) dedicated to preventing violence, substance abuse and other crimes on college and university campuses across the United States, and to compassionately assist the victims of these crimes.
  • ATIXA provides a professional association for school and college Title IX Coordinators, investigators, and administrators who are interested in serving their districts and campuses more effectively. ATIXA brings campus and district Title IX coordinators, investigators, and administrators into professional collaboration to explore best practices, establish industry standards, share resources, empower the profession, and advance the worthy goal of gender equity in education.

These organizations offer a variety of resources specific to responding to gender-based violence occurring on campus. Here is just a small sample of what they offer:

  • The Clery Center offers a number of resources for higher education professionals.
  • Also available from the Clery Center is a webinar entitled: Implementation of the Violence Against Women Act Amendments to the Clery Act. During the webinar, presenters Alison Kiss and Abigail Boyer provide information about VAWA regulations, including how campuses should implement new requirements in their policies and procedures.
  • A second webinar offered by the Clery Center is entitled, From Outline to Action: Implementation of the VAWA Amendments to Clery. The presentation is given by Jim Moore from the U.S. Department of Education, Clery Act Compliance Division. Among other topics, he describes how institutions can prepare for new requirements of the Clery Act to be enacted in 2015.
  • The U.S. Department of Education, Office for Civil Rights offers a Q&A document on Title IX and sexual violence, to provide guidance for elementary and secondary schools as well as postsecondary institutions about their legal obligations.

As noted, the basis for investigating a sexual assault on campus is fundamentally the same as off campus. However, individuals can benefit from the resources provided above that pertain to legal obligations specific to campus environments.

This project is supported by Grant No. 2013-TA-AX-K021 awarded by the Office on Violence Against Women, U.S. Department of Justice. The opinions, findings, conclusions, and recommendations expressed in this publication are those of the author(s) and do not necessarily reflect the views of the Department of Justice, Office on Violence Against Women.

For very detailed information on the effective strategies for interviewing victims of sexual

assault, please see the OnLine Training Institute module entitled, Interviewing the Victim: Techniques Based on the Realistic Dynamics of Sexual Assault.

The following response was written by Dr. Jim Hopper, Clinical Psychologist, Independent Consultant and Teaching Associate in Psychology, Harvard Medical School.

Dr. Jim Hopper: Episodic memories are a type of explicit memory. Explicit memories are memories that we realize are memories, and they can be either episodic or semantic in nature.

Episodic memories are memories of experiences or “episodes” from our lives, and these are explicit memories because when we recall them, we recognize them as (our) memories. Episodic memories include the specific images, sounds, smells, and any other sensations or thoughts that we experienced during the event or “episode,” and when they come into awareness, we realize that they are memories of things we have previously experienced.

Semantic memories are memories of ideas and concepts that do not consist of personal experience (i.e., episodic memories), although they may be partly based on them. For example, we can remember that Washington, DC is the nation’s capital, and when we remember that, we can realize that we’re having a memory, that is, recalling information. But it consists of abstract information, not memories of an episode of experience.

Implicit memories, in contrast, are memories that one does not recognize as memories. With respect to traumatic experiences such as sexual assault, implicit memories tend to be physiological and behavioral reactions (which are not recognized as memories), and that are triggered by reminders of the trauma (which are also not recognized as reminders). For example, a woman who is sexually assaulted by a man with a thick mustache might pass a man with a thick mustache while walking down the street, perceive that mustache in her peripheral vision without realizing that she’s seen it, then suddenly find herself feeling panicked and afraid. She doesn’t think to herself, “I just saw a guy with a mustache like the mustache of the guy who sexually assaulted me,” or even, “I’m remembering the fear I experienced when I was sexually assaulted.” Instead, her brain has reacted automatically, without having any conscious understanding of why, and she remembers aspects of the assault implicitly, that is, without realizing that’s what’s happening.

Or a man who was sexually assaulted by a group of other men might find himself overcome with horror and dread on a crowded bus with lots of other men on it, but he may not realize that he’s feeling and remembering the horror and dread he experienced at that terrible moment when he realized the group of men who assaulted him were actually going to carry out the threats they’d been making. Understandably, these kinds of implicit-memory based experiences can be very confusing and disturbing, and lead people to feel “crazy” because their bodies and emotions feel out of control and they don’t realize that it’s a normal, brain-based response to trauma.

In the US, prosecutors have an ethical responsibility to pursue charges only when:

  1. There is evidence to support the charges, and
  2. Prosecution is in the interest of the community they serve.

This obligation is clearly spelled out by the American Bar Association (ABA) in their Criminal Justice Standards for the Prosecution Function:

A prosecutor should seek or file criminal charges only if the prosecutor reasonably believes that the charges are supported by probable cause, that admissible evidence will be sufficient to support conviction beyond a reasonable doubt, and that the decision to charge is in the interests of justice (Standard 3-4.3).

The ABA Standards go on to note that a prosecutor is “not obliged to file or maintain all criminal charges which the evidence might support” (Standard 3-4.4). In other words, prosecutors should consider both the evidence and public interest in charging decisions, and they are not required to file charges just because they have the evidence to do so.

The ABA Standards list additional factors for prosecutors to consider in charging decisions, not just for false reporting. These are important, because many of these factors will often weigh against prosecution in such cases. They include:

  • The extent or absence of harm caused by the offense [of false reporting]
  • The impact of prosecution or non-prosecution on the public welfare
  • Whether the authorized or likely punishment or collateral consequences are disproportionate in relation to the particular offense or offender
  • Any improper conduct by law enforcement
  • Unwarranted or disparate treatment of similarly situated persons
  • Possible influence of any cultural, ethnic, socioeconomic or other improper biases
  • The fair and efficient distribution of limited prosecutorial resources, and
  • Whether the public’s interest in the matter might be appropriately vindicated by available civil, regulatory, administrative, or private remedies (Standard 3-4.4)

It is also important to keep in mind that criminal prosecution is not the only available path. There are other considerations based on the known dynamics of sexual assault cases, such as the fact that many sexual assault reports are either made – or pushed – by third parties other than the victim, particularly by parents or other family members. In addition, many people don’t actually report that they were sexually assaulted; they contact law enforcement because they are unsure of what happened and suspect they may have been sexually assaulted. This is often true for victims who were under the influence of drugs or alcohol at the time, whether consumed voluntarily or administered without their knowledge or consent. Yet it hardly seems appropriate to pursue charges of false reporting against someone who didn’t report a sexual assault in the first place, either because it was reported or pushed by someone else, or because they don’t know what happened, if anything.

For more information on this topic, EVAWI offers a training bulletin and webinar titled: Raped the Jailed, the Risks of Prosecution for Falsely Reporting Sexual Assault. These two resources focus on the scenario where victims summon the courage to report a sexual assault, only to be disbelieved, mistreated, and later charged (often erroneously) with false reporting or associated crimes such as obstruction of justice, interfering with law enforcement, or providing false statements. Additionally, please see our OLTI module: False Reports: Moving Beyond the Issues to Successfully Investigate Sexual Assault.

There are two possible scenarios when it comes to mandated reporting.

  1. The law requires health care providers to report any suspected sexual assault to law enforcement. If this is the case, the report will be made regardless of whether or not the patient consents to it. However, the patient should be advised of this mandate in advance.
  2. The patient asks to talk to law enforcement. Health care providers can contact law enforcement if the victim requests it, regardless of whether or not there is medical mandated reporting.

If there is no law requiring or expressly authorizing a report to law enforcement, and the patient has not consented to it, the health care provider would be in violation of HIPAA if they reported the suspected sexual assault to law enforcement.

There is evidence that many law enforcement professionals prematurely address the issue of prosecution with sexual assault victims, asking them in their initial interview whether they “want to prosecute” the suspect and/or pressuring them into signing a release waiver if they say they do not want to or they are unsure. This practice is patently unfair to victims, because it sidesteps the police department’s responsibility for investigating the report. It certainly “shuts down” any meaningful inquiry into the matter. Many law enforcement agencies would say that they use such a release waiver only as a last resort, when the victim is unable to participate in an investigation and the investigation is suspended. However, it is clear that the purpose is to protect the agency from later claims that they did not pursue an investigation of a sexual assault report when they should have. The forms are often used by campus law enforcement agencies, for example, to protect themselves against potential claims by parents that they are not investigating reports of sexual assault made by students.

It is true that law enforcement agencies should have such a form that the victim can sign, to document the fact that the investigation is being suspended, until or unless additional information requires reopening it. However, best practice is to use such a form ONLY in relatively rare circumstances, where victims ASK to have the investigation of their case suspended – and the law enforcement agency has reason to believe that they might be faced with a claim that they failed to pursue the case for questionable reasons. For example, this might be the case when the suspect is a high profile person (e.g., politician, celebrity, or a member of the agency itself).

Such a form should NOT be used because the officers responding to the sexual assault report simply decide not to conduct an investigation, either because they do not believe the victim or do not think that the case is worth pursuing. In fact, this type of form has no place whatsoever in the preliminary investigation, except in extreme circumstances where victims proactively insist that they will not participate in any law enforcement investigation or possible prosecution.

Here is an excerpt from a poor example of a release wavier, with extreme wording that went well beyond suspending an investigation to actually preventing the victim from making any further inquiries or cooperating with any future investigation and/or prosecution.

“I affirm that I will not pursue this matter further, nor will I initiate any criminal prosecution against any persons involved in or responsible for this offense. I will make no further inquiries as to any subsequent investigation conducted by the [law enforcement agency], nor will I voluntarily appear as a witness in any potential criminal prosecution resulting from this complaint.”

Clearly, this type of form will shut down the investigation of the report and fuel suspicion that it is false. Better language is seen in the Victim Preference Statement that was developed by the Naval Criminal Investigative Service (NCIS). This form offers a tool that can be used to implement best practices.

This response is an adapted excerpt from the OnLine Training Institute (OLTI) module entitled, Interviewing the Victim: Techniques Based on the Realistic Dynamics of Sexual Assault.

It is not necessarily ‘better’ to ask victims to write down their memories of the sexual assault before they are interviewed, but it may be appropriate in some instances. There are very few hard and fast rules when it comes to interviewing sexual assault victims. The goal is to help victims provide as much information as they can, and this may be accomplished in different ways for different victims. If there is a victim who can best provide information by writing it down, then this can be a perfectly appropriate strategy.

However, an important distinction needs to be made between the type of writing that most people would think of as ‘journaling’ versus a written or even sworn ‘statement.’ When we refer to having anyone write down their memories, we use the term journaling, where victims write about their memories, thoughts, feelings, and reflections about the sexual assault – the kinds of things they will often write about on their own in their diary. This type of writing can be very helpful for victims therapeutically, and it can also be used very effectively as part of a sexual assault investigation and prosecution.

If the issue is not raised by the investigator, however, many victims will write in their own personal diaries, and then everything in the victim’s diary can become discoverable – not just those entries related to the sexual assault. For this reason, it is important for investigators to address journaling with victims proactively. In fact, it is a good idea for investigators to have inexpensive composition notebooks available to give victims, clearly advising them that they should write down their thoughts and memories to later share with the investigator and the prosecutor.

In contrast, we advocate very strongly against the practice of asking victims to write out their formal statement. Most victims have no idea what types of information will be helpful for the investigation, so it is not fair to ask them to filter their entire experience and decide what they will and will not write about – let alone how they will write about it. A written statement also does not provide the opportunity for investigators to build a relationship of trust and partnership with victims, and create the type of environment that will facilitate disclosures about even the most intimate, shameful, or humiliating aspects of the sexual assault.

The bottom line is this: There is simply no substitute for a high quality, in-person interview. While journaling can provide therapeutic benefits for victims and corroborative information for investigators and prosecutors, it should always be seen as a supplement to the interview and larger investigative process – not a replacement.

We are not familiar with any data showing such a correlation. However, there are a number of characteristics people have assumed are related to memory accuracy that have been debunked over the years with scientific evidence. For example, one of the most common assumptions people make (including jurors) is that the more confident someone is in the accuracy of their memory, the more accurate their memory is likely to be. Another assumption is that the more detailed someone’s memory is, the more likely it is to be accurate. Yet neither of these assumptions is supported by the data in a straightforward way.

In general, the research consistently shows little or no relationship between confidence levels and the accuracy of memory. While the two can be related, this depends on a number of factors influencing both the confidence of the person and the accuracy of the memory. So the notion that you can predict accuracy based on confidence is not true – but it is something most people want to believe, and in fact people act on this belief every day.

Similarly, it is not a straightforward matter to say that more detailed memories are more likely to be accurate. While there is some evidence that stress and even trauma can heighten certain aspects of memory, it is often for central aspects of the event rather than peripheral details. It is also more likely to focus on sensory details, stored by the more primitive part of the brain, rather than cognitive facts stored by the more advanced frontal lobe we use in everyday life. So, for example, researchers have documented a phenomenon known as the weapon focus effect, often referred to as tunnel vision, where someone who is threatened with a weapon such as a handgun may be able to describe the gun in extreme detail while offering no details about the face of the person holding it. On the other hand, the person in such a situation may not be able to describe any of the details that people (such as police officers) might expect. Based on their trauma response, their memories may actually be fragmented, confusing, and primarily based in the senses.

It is also important to keep in mind that memory accuracy and emotional impact are separate issues and the measurement of each aspect will be different. Despite what we tend to think, the experience of emotion — or the lack of it — during a particular event is not necessarily a lead factor in determining how accurate memories of that event might be. On the one hand, we do know that the more emotion or connection people experience during an event, the more they will generally be able to remember about it. However, exactly what they remember might not be what we expect. Some parts of the experience may be encoded more strongly and may be easier to retrieve given proper cues to memory.

For example, central details of an event are far more likely to be accurate and easier for people to remember than peripheral details are, without being particularly vulnerable to distortion. Peripheral details are more vulnerable to change and inaccuracies during recall. This is not surprising since people are more likely to pay attention to the central details of an experience and less likely to pay attention to peripheral details. However, interviewers should never make judgments or determinations regarding what they believe are central versus peripheral details. It may not be what they think it is, because each person and situation will be different. Rather, this determination should be left up to the person who experienced the event. They are the only ones who can determine and communicate what they paid attention to during a particular experience, regardless of what might seem to others to be central versus peripheral details.

The bottom line is that a FETI-style interview can help investigators elicit whatever memories the victim is able to recall – whereas a traditional, fact-based interview will often set the victim up for failure and leave both the victim and investigator frustrated.