What are the benefits of having an advocate present during a medical forensic examination or law enforcement interview?

While research is somewhat limited, the consistent conclusion is that advocacy services facilitate the recovery of sexual assault victims and increase access to other services in the community response system, including the criminal justice system. For example:

• One statewide study of rape crisis center services found that survivors rated advocates as supportive and informative (Wasco et al., 2004).

• Another study found that victims who worked with an advocate experienced less distress after contacting legal and medical systems (Wasco et al., 1999).

A third study was conducted with victims of sexual assault who presented to the Emergency Department of their local hospital (Campbell & Bybee, 1997). 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 by police (24% vs. 8%).

With respect to medical services:

• 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%).

• Victims were less likely to be treated “impersonally or coldly” (36% vs. 69%).

• Medical professionals were less likely to refuse to conduct the examination because the assault occurred “too long ago” (24% vs. 36%). [All the sexual assaults in the study were reported within 96 hours.]

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.

Based on such findings, the International Association of Chiefs of Police (IACP) released a resolution in 2019 declaring that law enforcement agencies should integrate victim services into their day-to-day operations so crime victims have immediate access to professionals who understand the complexities of trauma and victim needs. This resolution is titled: The Importance of Law Enforcement-Based Victim Services in the United States.

For more information, EVAWI offers two Online Training Institute (OLTI) modules on the topic of victim advocacy. Both provide similar content, but one offers detailed guidance for advocates themselves (Effective Victim Advocacy Within the Criminal Justice System) while the other is written in a more generalized way for other professionals to better understand the advocacy role (Breaking Barriers: The Role of Community-Based and System-Based Victim Advocates).

Also relevant is an EVAWI training bulletin entitled, Advocates and Law Enforcement: Oil and Water, which explores the tension sometimes experienced between these two professional disciplines. After offering a detailed description of the advocate’s role during the criminal justice process, this training bulletin goes on to address the common reluctance of law enforcement to involve advocates in this process, by exploring some causal factors and outlining strategies to resolve them. 

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, 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.

Do victims have the legal right to have an advocate present during a medical forensic exam, law enforcement interview, or other steps taken during an investigation or prosecution?

Several states have legislation in place that specifically addresses the presence of an advocate in sexual assault cases. AEquitas has prepared a Statutory Compilation of the states that have any laws specific to the presence of an advocate.

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 an advocate cannot be excluded by law enforcement 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. This personal representative could be either an advocate or a personal support person. They must be 18 years or older, not be a suspect, witness, or party to the criminal case, and their role must be solely to provide emotional support. 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 examples of state laws protecting the victim’s right to have an advocate present are described in the Statutory Compilation prepared by AEquitas. In states without such a law, this simply means the presence of an advocate is not protected as a legal right, so protocols will need to be established by local jurisdictions.

For more information, EVAWI offers two Online Training Institute (OLTI) modules on victim advocacy and two on Sexual Assault Response and Resource Teams (SARRTs). All four modules can be accessed from the OLTI page on EVAWI’s website. 

What is “non-investigative” reporting?

When it comes to alternative reporting options, discussion often focuses on the question of anonymous reporting. But anonymity may not be as critical as the question of what happens next with the report. If the victim is unable or unwilling to participate in a law enforcement investigation, will the report be investigated anyway? Will it be pursued against their wishes? Or will the victim be allowed to decide whether an investigation will proceed? 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 limited circumstances that are clearly explained to victims in written materials.

Exceptions to this general philosophy of non-investigative reporting will often include:

• When the victim is under 18
• When a report is mandated (e.g., domestic violence)
• When the victim is in continuing physical danger, or
• Other circumstances like a significant threat to public safety

For more information, please see the Online Training Institute (OLTI) module, Opening Doors: Alternative Reporting Options for Sexual Assault Victims.

Where should evidence be stored when it is collected during a medical forensic exam with a victim who is not (yet) participating in the law enforcement investigation?

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. Best practice is to store such evidence in a law enforcement facility (National Best Practices for Sexual Assault Kits, p. 38-39). There are many reasons for this, which are summarized in the Online Training Institute (OLTI) module, The Earthquake in Sexual Assault Response: Implementing VAWA Forensic Compliance.

However, some communities initially store 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 this work, EVAWI created model policy materials for law enforcement on Evidence Retention, Disposition, and 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.

How long should evidence be stored when the victim is not (yet) participating in the law enforcement investigation?

For any alternative reporting options, the purpose would be defeated if evidence associated with the report was not held long enough to give victims time to convert to full participation in the criminal justice process. Thus, best practice is to hold evidence for at least the statute of limitations for the specific crime (National Best Practices for Sexual Assault Kits, p. 68-72). Or it could be stored indefinitely, in jurisdictions that have eliminated the statute of limitations for sexual assault or that issue “John Doe warrants” based on a DNA profile rather than a name.

Regardless of how long evidence is stored, this must be clearly explained both in the alternative reporting protocol for professionals and in the informational materials for victims. Otherwise, there could 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, Disposition, and Removal.

Should evidence collected in connection with an anonymous or non-investigative report be sent to a forensic laboratory for testing?

One question that is often asked is whether evidence should be submitted for testing, if the victim has chosen an alternative reporting option (like anonymous or non-investigative reporting). This question typically pertains to the evidence collected during a medical forensic examination, but it could apply to any other type of evidence provided in connection with an alternative report. In most cases, the answer is no, because the victim has not consented to this.

The US Department of Justice, Office on Violence Against Women (OVW) has clearly stated that the evidence from a medical forensic exam should not be submitted to the laboratory for testing if it is associated with a non-investigative report of sexual assault:

Submitting non-investigative SAKs [sexual assault kits] to a forensic laboratory for testing, absent consent for the victim, should not be a standard operating procedure for a law enforcement agency (Sexual Assault Kit Testing Initiatives and Non-Investigative Kits, p. 4).

Three reasons are given for this position:

(1) This practice “undermines the victim’s right to choose not to engage with the criminal justice.”

(2) As a result, it is “not an advisable way to cultivate community trust.”

(3) And, because funds are limited, they “should be directed to activities that promote accountability for offenders and justice and healing for victims” (p. 5-8).

For more information, please see the Online Training Institute (OLTI) module on Laboratory Analysis of Biological Evidence and the Role of DNA in Sexual Assault Investigations and EVAWI’s training bulletin, Should We ‘Test Anonymous Kits?’

If there is evidence collected in connection with an alternative reporting option, can it be returned to victims?

If personal items such as clothing or bedding are collected in connection with an alternative reporting option (such as anonymous or non-investigative reporting), protocols may need to clarify what rights (if any) victims have for that evidence to be returned to them. This question should also be addressed in the informational materials created for victims, because it is a frequent source of concern, especially when the items that have been collected are especially personal or valuable.

If the victim had personal contact with law enforcement as a result of reporting, it may be possible to make the necessary arrangements to have certain items returned to the victim, if requested. But if the evidence is being stored anonymously, it may be difficult for victims to have anything returned to them, because some form of identification is typically required before any evidence or property can be returned to its lawful owner.

Keep in mind that this discussion only pertains to personal items of evidence such as clothing, bedding, or jewelry. Serious concerns would arise if victims were offered the option of requesting biological or trace samples collected during a medical forensic exam. This could create an opportunity for suspects to intimidate victims into requesting to have such evidence returned, to obstruct the investigation and potential prosecution. These samples also represent hazardous materials and should be handled with care. Informational materials should therefore clarify that sexual assault evidence kits do not belong to victims, and cannot be obtained by them. Typically, the only way to request access to this evidence would be through a subpoena filed by an attorney during the course of civil litigation (for example, if the victim or suspect filed a lawsuit).

One way to reduce victims’ concern about having evidence returned is being sensitive about whether specific items should be collected in the first place. For example, “a patient may own only the clothing that is being collected” (National Protocol for Sexual Assault Medical Forensic Examinations, p. 99-100). In addition, some items are unlikely to have significant evidentiary value (e.g., winter coat, shoes). Investigators and forensic examiners can work with victims to balance the objectives of maximizing evidence collection and minimizing grief and loss experienced by the victim.

For more information, please see the OLTI module on Laboratory Analysis of Biological Evidence and the Role of DNA in Sexual Assault investigations.

When victims have a medical forensic examination, but they aren’t sure about reporting, should they be required to talk with a law enforcement officer?

When victims have a medical forensic exam, but they have not (yet) decided to talk with law enforcement or participate in an investigation, some communities have a practice of allowing officers to make personal contact with the victim, so they can introduce themselves, offer their services, and confirm the victim’s non-participation.

It is easy to understand why officers might want this type of contact, because it gives them a chance to establish rapport with victims, and ensure the information about reporting options has been presented fairly. They can also demonstrate their competence and compassion for victims. It can be frustrating for officers to feel “shut out” of the process, especially if their law enforcement agency pays for the victim’s medical forensic exam.

Yet the Violence Against Women Act (VAWA) is clear that sexual assault victims must have access to a medical forensic exam without requiring them to “cooperate with law enforcement” or “participate in the criminal justice system.” If victims are willing to talk with an officer, this can provide an opportunity for the officer to make contact with the victim and offer information. But, if victims are not willing to talk with an officer, they should never be forced to.

For more information, please see two Online Training Institute (OLTI) modules: (1) The Earthquake in Sexual Assault Response: Implementing VAWA Forensic Compliance and (2) Opening Doors: Alternative Reporting Options for Sexual Assault Victims.

Crime Victim Compensation (CVC) programs reimburse victims for financial losses and expenses resulting from crime. This can include expenses for medical care, counseling fees, lost earnings, funeral/burial expenses, and/or relocation. These programs are available in all 50 US states, the District of Columbia and two US territories. However, eligibility requirements vary by state, which means victims who choose an alternative reporting option in some states may not be eligible for CVC funds.

Federal guidelines require CVC programs to “promote victim cooperation with the reasonable requests of law enforcement authorities” (Newmark et al., 2003, p. xiii). To meet this objective, many states require victims to report the crime to law enforcement within 72-120 hours to be eligible for reimbursement through the CVC program. A few states have a shorter timeframe (24-48 hours), whereas others have longer timelines or no time limit at all (National Association of Crime Victim Compensation Boards).

Yet some jurisdictions have created exceptions to this reporting requirement for sexual assault victims who have a medical forensic exam but are undecided about criminal justice participation. Victims in these jurisdictions follow the normal application procedure for CVC funds, because their participation in the exam is viewed as meeting the CVC reporting requirement.

• One such example is the District of Columbia, which offers detailed information for victims regarding about their program eligibility requirements, initial documentation, and reimbursement documentation.

• Another is New Hampshire, where sexual assault victims are eligible for CVC funds as long as they seek medical care within 10 days of the assault and agree to the collection of forensic evidence [N.H. Code Admin. Rule JUS 605.13 (e)]. More information is available two New Hampshire documents: the statewide protocol for medical forensic examinations and the state protocol for Sexual Assault Resource Team (SARTs).

• In California, the Victim Compensation Board (CalVCB) allows staff to use factors other than a police report to determine eligibility, including: (1) Medical records documenting injuries, (2) Documentation that the victim received a sexual assault examination; (3) Mental health records; (4) Letter or written statement from a counselor or other mental health provider; (5) Title IX or other campus report demonstrating a preponderance of evidence; (6) Restraining order against a sexual assault suspect; and (7) Either “restricted” or “unrestricted” reports in the US military.

In other states, victims who have an exam but do not report to law enforcement can still apply for CVC funds, but they must request an exception to the reporting requirement. These requests are evaluated on a case-by-case basis, following procedures that vary considerably across states; a process is then provided for appealing the final decision. However, in the absence of any written policy guidance or published data on the topic, it is impossible to know how often these requests for an exception to the reporting requirement are granted by CVC programs, either initially or as a result of an appeal.

When developing a protocol for alternative reporting options, it is important to clarify whether sexual assault victims can still apply for CVC funds to reimburse any crime-related expenses. This may require evaluating statutory and administrative rules governing eligibility, and making certain exceptions for victims who access these alternative reporting paths. The exceptions should then be explained both in the protocol for professionals and the informational materials for victims, to ensure they are administered consistently.

Newmark, L., Bonderman, J., Smith, B., & Liner, B. (2003). The National Evaluation of State Victims of Crime Act Assistance and Compensation Programs: Trends and Strategies for the Future. Washington, DC: Justice Policy Center, Urban Institute.

When evidence is collected during a medical forensic examination or law enforcement investigation, can it be returned to victims?

If personal items such as clothing or bedding are collected in connection with a law enforcement investigation, including during a medical forensic exam, protocols may need to clarify what rights (if any) victims have for that evidence to be returned to them. This question should also be addressed in the informational materials created for victims, because it is a frequent source of concern, especially when the items that have been collected are especially personal or valuable.

If the victim had personal contact with law enforcement as a result of reporting, it may be possible to make the necessary arrangements to have certain items returned to the victim, if requested. But if the evidence is being stored anonymously, it may be difficult for victims to have anything returned to them, because some form of identification is typically required before any evidence or property can be returned to its lawful owner.

Keep in mind that this discussion only pertains to personal items of evidence such as clothing, bedding, or jewelry. Serious concerns would arise if victims were offered the option of requesting biological or trace samples collected during a medical forensic exam. This could create an opportunity for suspects to intimidate victims into requesting to have such evidence returned, to obstruct the investigation and potential prosecution. These samples also represent hazardous materials and should be handled with care. Informational materials should therefore clarify that sexual assault evidence kits do not belong to victims, and cannot be obtained by them. Typically, the only way to request access to this evidence would be through a subpoena filed by an attorney during the course of civil litigation (for example, if the victim or suspect filed a lawsuit).

One way to reduce victims’ concern about having evidence returned is being sensitive about whether specific items should be collected in the first place. For example, “a patient may own only the clothing that is being collected” (National Protocol for Sexual Assault Medical Forensic Examinations, p. 99-100). In addition, some items are unlikely to have significant evidentiary value (e.g., winter coat, shoes). Investigators and forensic examiners can work with victims to balance the objectives of maximizing evidence collection and minimizing grief and loss experienced by the victim.

For more information, see the Online Training Institute (OLTI) module on Laboratory Analysis of Biological Evidence and the Role of DNA in Sexual Assault investigations.

Where should evidence be stored when it is collected during a medical forensic exam with a victim who is not (yet) participating in the law enforcement investigation?

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. Best practice is to store such evidence in a law enforcement facility (National Best Practices for Sexual Assault Kits, p. 38-39). There are many reasons for this, which are summarized in the Online Training Institute (OLTI) module, The Earthquake in Sexual Assault Response: Implementing VAWA Forensic Compliance.

However, some communities initially store 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 this work, EVAWI created model policy materials for law enforcement on Evidence Retention, Disposition, and 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.

How long should evidence be stored when the victim is not (yet) participating in the law enforcement investigation?

For any alternative reporting options, the purpose would be defeated if evidence associated with the report was not held long enough to give victims time to convert to full participation in the criminal justice process. Thus, best practice is to hold evidence for at least the statute of limitations for the specific crime (National Best Practices for Sexual Assault Kits, p. 68-72.). Or it could be stored indefinitely, in jurisdictions that have eliminated the statute of limitations for sexual assault or that issue “John Doe warrants” based on a DNA profile rather than a name.

Regardless of how long evidence is stored, this must be clearly explained both in the alternative reporting protocol for professionals and in the informational materials for victims. Otherwise, there could 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, Disposition, and Removal.

Should evidence collected in connection with an anonymous or non-investigative report be sent to a forensic laboratory for testing?

One question that is often asked is whether evidence should be submitted for testing, if the victim has chosen an alternative reporting option (like anonymous or non-investigative reporting). This question typically pertains to the evidence collected during a medical forensic examination, but it could apply to any other type of evidence provided in connection with an alternative report. In most cases, the answer is no, because the victim has not consented to this.

The US Department of Justice, Office on Violence Against Women (OVW) has clearly stated that the evidence from a medical forensic exam should not be submitted to the laboratory for testing if it is associated with a non-investigative report of sexual assault:

Submitting non-investigative SAKs [sexual assault kits] to a forensic laboratory for testing, absent consent for the victim, should not be a standard operating procedure for a law enforcement agency (Sexual Assault Kit Testing Initiatives and Non-Investigative Kits, p. 4).

Three reasons are given for this position:

(1) This practice “undermines the victim’s right to choose not to engage with the criminal justice system .”

(2) As a result, it is “not an advisable way to cultivate community trust.”

(3) And, because funds are limited, they “should be directed to activities that promote accountability for offenders and justice and healing for victims” (p. 5-8).

For more information, please see the Online Training Institute (OLTI) module on Laboratory Analysis of Biological Evidence and the Role of DNA in Sexual Assault Investigations and EVAWI’s training bulletin, Should We ‘Test Anonymous Kits?’

Should victims be notified when the evidence from their medical forensic exam is going to be destroyed?

Some community protocols require that the victim be notified when the evidence collected during their medical forensic exam will be destroyed (e.g., within 30-90 days of evidence destruction). Other communities have a protocol specifying that victims will be notified of the timelines for evidence storage upfront, but they will not be notified at the time the evidence is scheduled to be destroyed. There is no clear standard for best practice in this area, as both options have advantages and disadvantages. But multidisciplinary protocols should clearly answer the question of whether, when, and how victims will receive any follow-up contact, including notification of evidence destruction. Of course, any follow-up contact also requires documented consent from the victim.

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

What percentage of rape reports are false?

This may seem like a straightforward question, but in fact determining the percentage of false rape reports is complex. In the Online Training Institute (OLTI) module, False Reports: Moving Beyond the Issues to Successfully Investigate Sexual Assault, it is clearly stated that a report of sexual assault can only be determined to be 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.

When methodologically rigorous research is conducted based on this definition, estimates for the percentage of false reports converge around 2-8%.

• For example, Dr. David Lisak and colleagues analyzed sexual assaults reported to a major Northeastern university over a 10-year period to determine the rate of false reporting. Of the 136 reports taken during that period of time, 8 reports, or 5.9% were found to be false (Lisak, Gardinier, Nicksa, & Cote, 2010).

• In a study of sexual assault cases reported to the Los Angeles Police Department in 2008, researchers found that rate of false reports was 4.5% (Spohn, White, & Tellis, 2014).

• In a multi-site study of 8 US communities involved in the “Making a Difference” (MAD) Project conducted by EVAWI, data were collected by law enforcement agencies for all sexual assault reports received in an 18-24 month period. Of the 2,059 cases that were included in the study, 140 (7%) were classified as false.

• Statistics even appear to converge internationally. In an analysis of 2,643 sexual assault cases reported to British police, 8% were classified by the police department as false reports. Yet when researchers applied the official criteria for establishing a false allegation, this figure dropped to 2%. These criteria specified that there must be either “a clear and credible admission by the complainant” or “strong evidential grounds” (Kelly, Lovett, & Regan, 2005).

In reality, no one knows – and in fact no one can possibly know – exactly how many sexual assault reports are false. However, estimates narrow to the range of 2-8% when they are based on rigorous research of case classifications using specific criteria and incorporating various protections of the reliability and validity of the research.

Kelly, L., Lovett, J., & Regan, L. (2005). A Gap or a Chasm? Attrition in Reported Rape Cases. Home Office Research Study 293. Home Office Research, Development and Statistics Directorate.

Lisak, D., Gardinier, Nicksa, S.C., & Cote, A.M. (2010). False Allegations of Sexual Assault: An Analysis of Ten Years of Reported Cases. Violence Against Women, 16 (12), 1318-1334.

Spohn, C., White, C., & Tellis, K. (2014). Unfounding Sexual Assault: Examining the Decision to Unfound and Identifying False Reports. Law & Society Review, 48 (1), 161-192.

Is it ever appropriate to prosecute someone for filing a false report of sexual assault?

Far too often, victims summon the courage to report their sexual assault, only to be disbelieved, mistreated, and later charged with false reporting or associated crimes such as obstruction of justice, interfering with law enforcement, or providing false statements. These victims are placed in a heartbreaking double bind. The only way to have their sexual assault investigated is to engage with the criminal justice process and provide investigators information and evidence – including information about their own behavior that may be embarrassing or even illegal. All too often, these factors lead investigators to begin doubting the victim’s credibility, and the legitimacy of the report.

Even when victims feel increasingly uncomfortable, they will often continue to participate in the interview, and investigators will continue to collect information as if they are still investigating the sexual assault. Yet unbeknownst to victims, the investigator may have begun investigating them for a criminal offense. In other words, the victim is now a suspect, but they are not aware of this, and not typically advised of their Miranda rights or other constitutional protections.

EVAWI examines these difficult issues in a training bulletin entitled, Raped Then Jailed: The Risks of Prosecution for Falsely Reporting Sexual Assault. The document also addresses the question of whether it is ever appropriate to prosecute someone for falsely reporting sexual assault, and how to weigh the public interest and risks involved. EVAWI also offers a webinar on the topic with the same name: Raped, Then Jailed.

What is “forensic compliance?”

The term “forensic compliance” refers to specific provisions that first appeared in the 2005 reauthorization of the Violence Against Women Act, known as VAWA 2005. They were designed to increase access of sexual assault victims to a medical forensic examination, and they remain in place under the VAWA 2013 reauthorization.

These provisions read as follows:

Nothing in this section shall be construed to permit a State, Indian tribal government, or territorial government to require a victim of sexual assault to participate in the criminal justice system or cooperate with law enforcement in order to be provided with a medical forensic exam, reimbursement for charges incurred on account of such an exam or both [42 U.S.C.A § 3796gg-4(d)(1)(2005)].

There are two key requirements of forensic compliance. Specifically, VAWA states that sexual assault victims must be provided with access to a medical forensic exam:

(1) Free of charge, and

(2) Without requiring them to cooperate with law enforcement or participate in the criminal justice system.

VAWA 2013 retains these key provisions from VAWA 2005, and it clarifies that victims cannot be required to pay any out-of-pocket costs to obtain a medical forensic exam. Under VAWA 2005, jurisdictions were allowed to bill victims for the cost of the exam as long as they were fully reimbursed. However, this option was eliminated in VAWA 2013.

All US states, territories, and tribal governments must certify compliance with these VAWA provisions to retain their eligibility for STOP grant funds.

For more information, please see two Online Training Institute (OLTI) modules: (1) The Earthquake in Sexual Assault Response: Implementing VAWA Forensic Compliance and (2) Opening Doors: Alternative Reporting Options for Sexual Assault Victims.

What is the purpose of forensic compliance? Why should we offer medical forensic exams for victims who do not want to talk with law enforcement?

Most sexual assaults are not reported to law enforcement. One key goal of VAWA forensic compliance is therefore to increase reporting and criminal justice participation, perhaps counterintuitively by not requiring this as a condition for victims to obtain a medical forensic examination. A related goal is to improve sexual assault case outcomes. Several studies have found that sexual assault cases that involve a medical forensic exam conducted by a trained examiner are more likely to result in charges being filed, a conviction, and a longer average sentence (Campbell et al., 2012, 2014; Crandall & Helitzer, 2003). Even when victims might be unable to testify about their own sexual assault, they may be willing to testify on behalf of another victim who was assaulted by the same person. All these factors can help to improve case outcomes, and communicate to victims that they are valued and respected.

As a second goal, forensic compliance was designed to improve access to health care. Prompt medical care in the aftermath of a sexual assault may reduce the risk of chronic health problems such as depression, eating disorders, and alcohol or substance abuse, as well as pelvic pain which is experienced by many victims (American College of Obstetricians and Gynecologists, 2019). Many sexual assault victims are motivated to have a medical forensic exam based on their need for health care, rather than evidence collection (DuMont et al., 2009). Forensic compliance builds on this common motivation, by ensuring that victims can access health care – including a full medical forensic examination – without requiring law enforcement contact or criminal justice participation.

A third goal of VAWA forensic compliance is to connect victims with advocacy services and other supportive resources. Sexual assault victims will frequently be offered the services of an advocate when they have a medical forensic examination, but this is less likely for victims who seek other forms of health care. The importance of advocacy services cannot be overstated. Advocates can provide sexual assault victims with crisis intervention and emotional support, as well as information on reporting options and other available services. Research has consistently shown that victims who receive this type of supportive response have lower rates of post-traumatic stress, and are less reluctant to seek further help (Campbell, 2006; Wasco et al., 1999).

For more information, please see two Online Training Institute (OLTI) modules: (1) The Earthquake in Sexual Assault Response: Implementing VAWA Forensic Compliance and (2) Opening Doors: Alternative Reporting Options for Sexual Assault Victims.

American College of Obstetricians and Gynecologists (2019). Sexual Assault: ACOG Committee Opinion No. 777. Obstetrics & Gynecology, 133, 296-302.

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, R., Bybee, D., Townsend, S.M., Shawn, J., Karim, N., & Markowitz, J. (2014). The Impact of Sexual Assault Nurse Examiner (SANE) Programs on Criminal Justice Case Outcomes: A Multisite Replication Study. Violence Against Women, 20 (5), 607-625.

Campbell, R., Patterson, D., & Bybee, D. (2012). Prosecution of Adult Sexual Assault Cases: A Longitudinal Analysis of the Impact of a Sexual Assault Nurse Examiner Program. Violence Against Women, 18 (2), 223-244.

Crandall, C. & Helitzer, D. (2003). Impact Evaluation of a Sexual Assault Nurse Examiner (SANE) Program. Washington, DC: National Institute of Justice, US Department of Justice.

DuMont, J., White, D., & McGregor, M.J. (2009). Investigating the Medical Forensic Examination From the Perspectives of Sexually Assaulted Women. Social Science & Medicine, 68, 774-780.

Wasco, S.M., Campbell, R., Barnes, H., & Ahrens, C.E. (1999). 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.

Does VAWA require communities to offer anonymous reporting?

One area of frequent confusion is the mistaken belief that VAWA requires communities to offer anonymous evidence collection and storage. This is not the case. As described in the Frequently Asked Questions (FAQs) about STOP Formula Grants published by the US Department of Justice, Office on Violence Against Women (OVW):

States are not required to institute anonymous reporting. Some states are instituting it voluntarily. Under VAWA 2005, states are only required to ensure that a victim receives access to a forensic examination free of charge regardless of whether the victim chooses to report a sexual assault (for any reason) to law enforcement or cooperate with the criminal justice system.

In other words, anonymity is not required in order to meet the “letter of the law” for VAWA forensic compliance. However, it can be used to achieve the “spirit of the law,” by increasing victims’ access to a medical forensic exam.

For more information, please see two Online Training Institute (OLTI) modules: (1) The Earthquake in Sexual Assault Response: Implementing VAWA Forensic Compliance and (2) Opening Doors: Alternative Reporting Options for Sexual Assault Victims.

When victims have a medical forensic examination, but they aren’t sure about reporting, should they be required to talk with a law enforcement officer?

No. When victims have a medical forensic exam, but they have not (yet) decided to talk with law enforcement or participate in an investigation, some communities have a practice of allowing officers to make personal contact with the victim, so they can introduce themselves, offer their services, and confirm the victim’s non-participation.

It is easy to understand why officers might want this type of contact, because it gives them a chance to establish rapport with victims, and ensure the information about reporting options has been presented fairly. They can also demonstrate their competence and compassion for victims. It can be frustrating for officers to feel “shut out” of the process, especially if their law enforcement agency pays for the costs of a forensic medical examination.

Yet the forensic compliance provisions of the Violence Against Women Act (VAWA) are clear that sexual assault victims must have access to a medical forensic exam without requiring them to “cooperate with law enforcement” or “participate in the criminal justice system.” If victims are willing to talk with an officer, this can provide an opportunity for the officer to make contact with the victim and offer information. But, if victims are not willing to talk with an officer, they should never be forced to.

For more information, please see two Online Training Institute (OLTI) modules: (1) The Earthquake in Sexual Assault Response: Implementing VAWA Forensic Compliance and (2) Opening Doors: Alternative Reporting Options for Sexual Assault Victims.

When a health care provider is required to report a sexual assault to law enforcement, does this mean the victim is required to speak with an officer?

Again, no. When a health care professional is mandated by law to report a suspected sexual assault or injury to law enforcement, it must be clear that victims do not have the option of deciding whether this report will be made. The report is legally mandated.

However, victims do get to decide whether they want to talk with an officer or provide any information to law enforcement in connection with the report. In other words, just because a mandated report is filed, this does not mean the victim is required to personally talk with an officer. This would be inconsistent with VAWA forensic compliance provisions, which require that sexual assault victims have access to a medical forensic exam without requiring them to participate in the criminal justice process; talking with law enforcement would constitute such required “participation.”

For more information, please see two Online Training Institute (OLTI) modules: (1) The Earthquake in Sexual Assault Response: Implementing VAWA Forensic Compliance and (2) Opening Doors: Alternative Reporting Options for Sexual Assault Victims.

Should joint interviews be conducted by the law enforcement investigator and the Sexual Assault Forensic Examiner (SAFE)?

When the initial response to a sexual assault report takes place at a hospital or exam facility, some communities have a policy or practice of conducting victim interviews jointly, with responding officers and forensic examiners both in the room. This may help to improve communications between the two professionals, and it can potentially reduce the number of redundant questions asked of the victim. It also reinforces the team concept and may help victims feel the professionals are working together to provide the best and most coordinated services possible. However, there are some cautions to consider.

For example, when joint interviews are conducted, it must be clear to everyone involved that more detailed interviews will still need to be conducted by each professional separately. This is because they have different purposes.

The purpose of an interview by a forensic examiner, such as a sexual assault nurse examiner (SANE) or sexual assault forensic examiner (SAFE), is to:

• Obtain information about the sexual act(s) committed, to guide a comprehensive medical forensic exam and collect biological samples.

• Elicit information about any physical injuries or discomfort, both for forensic documentation as well as medical evaluation and treatment.

• Determine whether the exam findings are consistent with the history of the sexual assault, as provided by the victim.

In contrast, the purpose of a law enforcement interview is to:

• Obtain a detailed account of the victim’s experiences before, during, and after the sexual assault.

• Determine whether legal elements are met for one or more criminal offenses.

• Identify additional sources of information and potential evidence.

Because of their different purposes, some professionals believe that the two interviews are best conducted separately. This allows health care providers to focus on their mission of patient care, which will likely elicit different information from the law enforcement interview. It is also important for victims to be able to address any concerns they may have about their medical history and treatment options confidentially. This information is typically not relevant or even appropriate to include in the law enforcement investigation.

The law enforcement interview has a very different purpose, 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 can become muddled, and the SAFE/SANE might be drawn too far into the criminal investigation and the law enforcement function. This can leave SAFEs/SANEs vulnerable to charges of bias when they testify at trial, which may weaken their testimony on scientific and medical matters.

The bottom line is this: If any part of the victim interview will be conducted jointly by law enforcement and the forensic examiner, it must be narrowly focused on information that meets the purpose of both types of interviews. Then separate interviews must also be conducted, and clearly differentiated from one another.

For more information, see the Online Training Institute (OLTI) module Effective Victim Interviewing: Helping Victims Retrieve and Disclose Memories of Sexual Assault.

Should investigators record their interviews with sexual assault victims?

Yes, whenever possible. When preparing to conduct a detailed interview with a sexual assault victim, investigators should make preparations for videorecording (or at least audiorecording) their interviews with a sexual assault victim. Interviews with child victims have been recorded for years, with obvious benefits; many of the same advantages exist for adult and adolescent victims.

• The primary advantage of recording a victim interview (whether audio or video) is that it provides a more reliable method of documentation than written notes. In other words, it yields the “best record” of the interview.

• Investigators are also able to listen more carefully to victims when their interview is being recorded, because they are not trying to take notes or write a report at the same time. They aren’t even necessarily piecing together events in a chronological timeline. This can be accomplished later. The investigator can simply listen to the victim’s narrative and jot down questions to ask later when the narrative is complete.

• Recorded interviews also communicate to the victim that the investigator is focused on the victim’s statements and is taking the case seriously.

• Recording preserves the victim’s own words and statements. This is important because statements are often synopsized, and during that process they can be misinterpreted, or conclusions can be drawn about a statement that are inaccurate.

• Recordings make it possible to determine the source of any inconsistent information. In many cases, a recording will reveal that the person responsible for an inconsistency is not the victim, but the investigator or other professional who either documented a fact incorrectly, or simply misunderstood or misinterpreted something the victim said.

• Recordings can have the additional benefit of protecting the investigator if a complaint or misunderstanding should arise because of what was said.

• Finally, recordings can be reviewed for training and supervisory purposes, to improve the quality of interviews conducted by agency personnel.

When developing a policy for recording victim interviews, it is critically important to advise victims that their interview will be recorded and offer them the services of an advocate. Investigators and advocates can then discuss any questions or concerns the victim may have. However, law enforcement professionals who routinely record their interviews find that most victims do not have a problem with it, as long as the investigator advises them of this fact, and explains that this will allow them to preserve their exact words, and listen more carefully and document information more accurately.

For more information, see the Online Training Institute (OLTI) module Effective Victim Interviewing: Helping Victims Retrieve and Disclose Memories of Sexual Assault. EVAWI also a training bulletin specifically on the topic of Recording Victim Interviews.

Should law enforcement get a sworn statement from the victim at the conclusion of their interview?

No, you do not need to get a sworn statement from a victim of sexual assault, or a victim or witness of any other type of crime.

Some law enforcement agencies have a policy or practice of getting sworn statements from sexual assault victims, but there is no legal requirement for it and no obvious advantage in terms of a successful investigation and possible prosecution. The reality is that cases are 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 than any signature on a form. Conversely, the victim’s sworn statement alone will not be sufficient to prosecute a sexual assault case, if it lacks corroborative evidence collected and documented during a solid investigation.

There is therefore no clear advantage, but many critical disadvantages:

• First, requiring victims to sign a sworn statement typically means the investigator must complete the statement, type it up, and get the victim to sign it before they leave. This seriously limits their ability to conduct an effective interview, following practices outlined in this module. If investigators are expected to take notes and write a report during the interview, they cannot take the time needed to focus on listening and asking good follow-up questions – let alone digesting, processing, analyzing, and compiling the information, then producing a well-written report. A better strategy is to allow investigators the time they need to conduct the best possible interview, and document the statements thoroughly and accurately later.

• Second, requiring a sworn statement negatively affects the rapport that is key to a successful interview. The practice communicates a fundamental distrust of the victim’s information, and it is frankly frightening to most 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.

• Then there is concern that the investigator might have recorded something incorrectly, and the victim didn’t catch it before signing the sworn statement. In fact, the likelihood of inaccuracies will only be increased with this practice, because obtaining a sworn statement makes the interview process longer and more difficult for both victim and investigator. In other words, this practice creates a situation that virtually guarantees inaccuracies in the victim’s statement, then requires victims to sign a statement under penalty of perjury that it is accurate.

• The practice also implies that the victim was able to recall “everything” during the interview, making it more difficult to add new information when the victim recalls additional details, or when the investigator conducts follow-up interviews as part of an evolving investigation. With a sworn statement, it can look as if this natural process of recalling additional information raises questions about the accuracy of the initial statement. Victims will likely fear the possibility of a perjury charge if they revise or contradict something they previously said to the investigator.

• Finally, this practice makes it more difficult to correct inaccuracies. Without a sworn statement, it is a rather straightforward matter to follow-up with the victim to clarify any inaccuracies. However, once the victim has signed a sworn statement, they are faced with two bad choices: (a) continuing with information they know is inaccurate, or (b) correcting it and facing the possibility of a perjury charge.

How does any of this help meet the goal of successfully interviewing victims and investigating sexual assault reports? 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 reporting and engaging the criminal justice system in the first place.

For more information, see the Online Training Institute (OLTI) module Effective Victim Interviewing: Helping Victims Retrieve and Disclose Memories of Sexual Assault. EVAWI also a training bulletin specifically on the topic of Sworn Statements.

Is there a recommended time frame for investigators to schedule a detailed interview of a sexual assault victim?

In general, EVAWI recommends that the detailed interview with a sexual assault victim be scheduled 2-3 days after the initial response, especially in an acute reporting scenario. This allows time for investigators to review all the available information, and arrange for any interpreting services or other accommodations that might be needed for that detailed interview. This may also allow enough time for the victim’s acute stress levels to subside, through rest, recovery, and the support of loved ones and/or advocates. But there is no universal timeframe for achieving these goals; each victim should be approached as a unique person, with individual needs.

Investigators should work with victims to select a time for the detailed interview that best meets their needs and convenience, as well as any constraints regarding childcare, family responsibilities, work obligations, transportation, privacy, safety, etc. It is very important to avoid creating any unnecessary stress or hassle for victims, or increasing any threat of losing a job, childcare, or other critical arrangements. Once these considerations are addressed, the interview should be scheduled as soon as practically possible (e.g., within 2-3 days). This is done to prevent memory loss on the part of the victim, and also to reduce external influences that may impact the victim’s statement (family members, caregivers, or other professionals involved in the case).

On the other hand, some victims in a non-acute response may not want or need to wait for the detailed interview. If they have finally worked up the courage to contact law enforcement after some period of time, they may be ready and able to share a lot more detailed information than basic facts. In this scenario, it’s possible that the reporting officer will conduct a more in-depth interview during the initial response. However, even in this scenario, a second interview will still be needed once the investigation begins to evolve, and additional questions or clarification are needed.

For more information, see the Online Training Institute (OLTI) module Effective Victim Interviewing: Helping Victims Retrieve and Disclose Memories of Sexual Assault.

What is the standard caseload for detectives investigating sexual assault cases?

Although 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. For example, an audit was conducted in Portland, Oregon in June 2007, which included a review of data from nine additional cities. The report concluded that the average detective had a median annual caseload of 54, compared to Portland’s 5-year average of 56.

In Allocation of Personnel: Investigations, 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.

Should investigators use a polygraph or other techniques for lie detection with victims of sexual assault?

No. In fact, many states have laws prohibiting law enforcement from offering or requiring a polygraph examination for sexual assault victims, or from using the results of such an examination to determine whether criminal charges will be filed. In addition, the Violence Against Women Act (VAWA) requires all US states, territories, and tribes that receive federal STOP grant funds to prohibit using polygraphs or other truth telling devices with sexual assault victims as a condition for proceeding with an investigation.

These state and federal prohibitions are based both on the lack of scientific evidence establishing the validity of the polygraph and other techniques for lie detection as well as the negative impact they can have on the trust, rapport, and well-being of victims. For example, the National Academies of Science (2003) concluded from their review that evidence for the validity of the polygraph is “scanty and scientifically weak” (p. 212). Based on this conclusion, several organizations have provided guidance specifically for law enforcement agencies on sexual assault response and investigation:

• The National Sexual Violence Resource Center (NSVRC) published a report on The Use of Truth-Telling Devices in Sexual Assault Investigations, as well as a list of state laws on polygraph use. 

• AEquitas published a brief entitled Truth-etection Devices and Victims of Sexual Violence: A Shortcut to Injustice. The document concludes that the use of such devices “should be limited as an inducement to obtain voluntary statements from suspects and should never be used with victims” (p. 4).

• Perhaps the clearest statement is offered by the International Association of Chiefs of Police (IACP), in their document Sexual Assault Incident Reports – Investigative Strategies. Among their best practice recommendations, they state: “Do not polygraph victims” (p. 5).

For more information, please see the Online Training Institute (OLTI) module False Reports: Moving Beyond the Issues to Successfully Investigate Sexual Assault.

Should investigators record their interviews with sexual assault victims?

Yes, whenever possible. When preparing to conduct a detailed interview with a sexual assault victim, investigators should make preparations for videorecording (or at least audiorecording) their interviews with a sexual assault victim. Interviews with child victims have been recorded for years, with obvious benefits; many of the same advantages exist for adult and adolescent victims.

• The primary advantage of recording a victim interview (whether audio or video) is that it provides a more reliable method of documentation than written notes. In other words, it yields the “best record” of the interview.

• Investigators are also able to listen more carefully to victims when their interview is being recorded, because they are not trying to take notes or write a report at the same time. They aren’t even necessarily piecing together events in a chronological timeline. This can be accomplished later. The investigator can simply listen to the victim’s narrative and jot down questions to ask later when the narrative is complete.

• Recorded interviews also communicate to the victim that the investigator is focused on the victim’s statements and is taking the case seriously.

• Recording preserves the victim’s own words and statements. This is important because statements are often synopsized, and during that process they can be misinterpreted, or conclusions can be drawn about a statement that are inaccurate.

• Recordings make it possible to determine the source of any inconsistent information. In many cases, a recording will reveal that the person responsible for an inconsistency is not the victim, but the investigator or other professional who either documented a fact incorrectly, or simply misunderstood or misinterpreted something the victim said.

• Recordings can have the additional benefit of protecting the investigator if a complaint or misunderstanding should arise because of what was said.

• Finally, recordings can be reviewed for training and supervisory purposes, to improve the quality of interviews conducted by agency personnel.

When developing a policy for recording victim interviews, it is critically important to advise victims that their interview will be recorded and offer them the services of an advocate. Investigators and advocates can then discuss any questions or concerns the victim may have. However, law enforcement professionals who routinely record their interviews find that most victims do not have a problem with it, as long as the investigator advises them of this fact, and explains that this will allow them to preserve their exact words, and listen more carefully and document information more accurately.

For more information, see the Online Training Institute (OLTI) module Effective Victim Interviewing: Helping Victims Retrieve and Disclose Memories of Sexual Assault. EVAWI also a training bulletin specifically on the topic of Recording Victim Interviews.

Should law enforcement ask victims to sign a release waiver when they choose not to participate in the investigation of their report?

When victims are asked if they want to press charges, and they say “no” or express reluctance, some agencies have a policy or practice of presenting victims with a form (often referred to as a release waiver) to document the victim’s “request” to terminate or unfound the investigation. A few release waivers go even further by preventing victims from making any further inquiries or cooperating with any future investigation or prosecution of their report. Some law enforcement agencies erroneously believe this type of waiver protects them from liability for failing to pursue an investigation.

Yet these waivers place unfair and inappropriate pressure on victims to make an immediate decision about their participation in an investigation, and they sidestep the law enforcement agency’s responsibility by simply shutting down the investigation. A better approach is for officers to courteously inform victims about alternative reporting options, and then document their decision in their written report. In their conversation with victims, responding officers can clearly convey that the door to an investigation remains open, if victims later decide that they are able to participate in the process.

There is typically no need for any type of form when officers explain to victims what their options are for reporting and participating in an investigation. Victim interviews and preferences should simply be documented in the officer’s narrative report, along with other information collected and documented. However, if a form is going to be used, it could look like the Victim Preference Statement developed by the Naval Criminal Investigative Service (NCIS). This form begins by confirming that victims have had an opportunity to consult with a victim advocate or counselor, and that they have been informed of their rights as a crime victim.

The form then documents: “At this time, I have decided not to provide additional information or participate in the investigation and prosecution of the suspect.” By signing the NCIS preference statement, victims explicitly acknowledge that “I may change my mind and provide information for this investigation at a later time.”

For more information, please see the Online Training Institute (OLTI) module, Effective Victim Interviewing: Helping Victims Retrieve and Disclose Memories of Sexual Assault.

Should law enforcement get a sworn statement from the victim at the conclusion of their interview?

No, you do not need to get a sworn statement from a victim of sexual assault, or a victim or witness of any other type of crime.

Some law enforcement agencies have a policy or practice of getting sworn statements from sexual assault victims, but there is no legal requirement for it and no obvious advantage in terms of a successful investigation and possible prosecution. The reality is that cases are 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 than any signature on a form. Conversely, the victim’s sworn statement alone will not be sufficient to prosecute a sexual assault case, if it lacks corroborative evidence collected and documented during a solid investigation.

There is therefore no clear advantage, but many critical disadvantages:

• First, requiring victims to sign a sworn statement typically means the investigator must complete the statement, type it up, and get the victim to sign it before they leave. This seriously limits their ability to conduct an effective interview, following practices outlined in this module. If investigators are expected to take notes and write a report during the interview, they cannot take the time needed to focus on listening and asking good follow-up questions – let alone digesting, processing, analyzing, and compiling the information, then producing a well-written report. A better strategy is to allow investigators the time they need to conduct the best possible interview, and document the statements thoroughly and accurately later.

• Second, requiring a sworn statement negatively affects the rapport that is key to a successful interview. The practice communicates a fundamental distrust of the victim’s information, and it is frankly frightening to most 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.

• Then there is concern that the investigator might have recorded something incorrectly, and the victim didn’t catch it before signing the sworn statement. In fact, the likelihood of inaccuracies will only be increased with this practice, because obtaining a sworn statement makes the interview process longer and more difficult for both victim and investigator. In other words, this practice creates a situation that virtually guarantees inaccuracies in the victim’s statement, then requires victims to sign a statement under penalty of perjury that it is accurate.

• The practice also implies that the victim was able to recall “everything” during the interview, making it more difficult to add new information when the victim recalls additional details, or when the investigator conducts follow-up interviews as part of an evolving investigation. With a sworn statement, it can look as if this natural process of recalling additional information raises questions about the accuracy of the initial statement. Victims will likely fear the possibility of a perjury charge if they revise or contradict something they previously said to the investigator.

• Finally, this practice makes it more difficult to correct inaccuracies. Without a sworn statement, it is a rather straightforward matter to follow-up with the victim to clarify any inaccuracies. However, once the victim has signed a sworn statement, they are faced with two bad choices: (a) continuing with information they know is inaccurate, or (b) correcting it and facing the possibility of a perjury charge.

How does any of this help meet the goal of successfully interviewing victims and investigating sexual assault reports? 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 reporting and engaging the criminal justice system in the first place.

For more information, see the Online Training Institute (OLTI) module Effective Victim Interviewing: Helping Victims Retrieve and Disclose Memories of Sexual Assault. EVAWI also a training bulletin specifically on the topic of Sworn Statements.

What training is available for campus law enforcement professionals on sexual assault response and investigations?

EVAWI frequently receives requests to provide training for campuses on sexual assault response and investigation, including campus law enforcement investigations, legal obligations under Title IX, and Clery Act responsibilities. EVAWI does not offer training specifically for campus professionals, but the following organizations do:

• The National Center for Campus Public Safety, whose mission is to bring together all forms of campus public safety and improve services to those who are charged with providing a safe environment on the nation’s campuses.

• The Clery Center for Security on Campus, which is dedicated to preventing violence, substance abuse and other crimes on college and university campuses across the US, and compassionately assisting victims of these crimes. The Clery Center offers two webinars that may be particularly helpful: (1) Implementation of the Violence Against Women Act Amendments to the Clery Act and (2) From Outline to Action: Implementation of the VAWA Amendments to Clery.

However, we also encourage campus professionals to take advantage of other training resources that EVAWI offers, like the Online Training Institute and webinars. We often explain to college and university professionals that they will learn as much, if not more, from such training that is not specifically focused on campuses.

For many professionals who work in specialized settings (like college campuses, military installations, tribal lands, or corrections), it is common to think that 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.

What percentage of victims withdraw from the criminal justice process, after initially reporting their sexual assault to law enforcement?

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, including a number of critical fears, doubts, and other concerns that prevent victims from reporting their sexual assault and remaining engaged with the criminal justice process. These factors also deter many victims from reaching out for help by accessing other community services (Campbell, 2008).

If victims are not ready or able to participate in an investigation, the best response for law enforcement is to courteously inform them about their options and document their preferences in the written report. In their conversation with victims, responding officers can clearly convey that the door to an investigation remains open, if victims later decide that they are able to participate in the process. This also means victims should never be recorded in documentation as “uncooperative” or “declining prosecution.” Rather, reports should simply reflect the fact that victims are unable to participate in the investigation or prosecution “at this time.”

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, p. 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 Aggravated Rape. Journal of Criminal Justice, 36, 252-261.

Should health care professionals report a sexual assault to law enforcement, if they do not have a legal requirement to do so?

No. If there is no mandated report required, the decision of whether or not to contact law enforcement should be left to the victim. If a victim does not want law enforcement contacted, health care providers should not take it upon themselves to report the sexual assault without a legal requirement. This clearly violates the spirit of the forensic compliance provisions of the Violence Against Women Act (VAWA), which are designed to increase access to medical forensic examinations for victims who are unsure about reporting to law enforcement or participating in an investigation.

This practice of reporting without a legal mandate also violates the Health Insurance Portability and Accountability Act (HIPAA). HIPAA clearly states that health care providers can only report a patient’s disclosure of sexual assault to law enforcement when one of two conditions are met:

• The report is required or expressly authorized by state law, and/or

• The patient has consented to the report being made.

If there is no legal mandate or patient consent, health care providers should not provide any information about the suspected sexual assault of a patient to law enforcement.

For more information, please see the website for the US Department of Health and Human Services. Also see EVAWI’s 2-part training bulletin series: (1) Notification of Advocates and HIPAA and (2) More on Advocates, Routine Notification, and HIPAA.

How do I determine the mandated reporting laws in my state?

Medical mandated reporting can be complicated, especially when it intersects with the forensic compliance provisions of the Violence Against Women Act (VAWA) and other alternative reporting options. The term medical mandated reporting is used to refer to any legal requirement that health care providers must report to law enforcement when a patient discloses ‒ or the provider has a reasonable basis for suspecting ‒ that the patient has been the victim of a certain crime. For example, the provider may observe indicators that a sexual act was committed against a child or dependent adult.

Laws vary dramatically in terms of what activates a reporting requirement:

• All states require medical professionals to report sexual assault when the victim is achild (as defined by state law).

• In addition, most states require medical professionals to report sexual assault when the victim is adependent 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 cognitive 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.

• Most states do not require health care providers to report sexual assault of a competent adult. However, a few states do. In these jurisdictions, a report is required every time someone presents to a health care facility as a result of being sexually assaulted.

• Some states also require a report when patients present with certain types of injuries, such as gunshot or knife wounds, or other injuries that are non-accidental, result from violent crime, or involve the use of a deadly weapon. In these states, health care providers are required to notify law enforcement that a patient has presented with the specified injury, however, they may not have to say that the patient was also sexually assaulted.

• 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 suspect this is the case).

For medical mandated reporting requirements in each US state, please see the legal compilation created by the National District Attorneys Association: Mandatory Reporting of Domestic Violence and Sexual Assault Statutes (2010). Also see State Laws and the Nurse Practice Act by the US Department of Justice, Office for Victims of Crime (OVC).

When a mandated report is made to law enforcement by a health care provider, is the victim required to talk with a law enforcement officer?

No. When victims have a medical forensic exam, but they have not (yet) decided to talk with law enforcement or participate in an investigation, some communities have a practice of allowing officers to make personal contact with the victim, so they can introduce themselves, offer their services, and confirm the victim’s non-participation.

It is easy to understand why officers might want this type of contact, because it gives them a chance to establish rapport with victims, and ensure the information about reporting options has been presented fairly. They can also demonstrate their competence and compassion for victims. It can be frustrating for officers to feel “shut out” of the process, especially if their law enforcement agency pays for the costs of a forensic medical examination.

Yet the forensic compliance provisions of the Violence Against Women Act (VAWA) are clear that sexual assault victims must have access to a medical forensic exam without requiring them to “cooperate with law enforcement” or “participate in the criminal justice system.” If victims are willing to talk with an officer, this can provide an opportunity for the officer to make contact with the victim and offer information. But, if victims are not willing to talk with an officer, they should never be forced to.

For more information, please see two Online Training Institute (OLTI) modules: (1) The Earthquake in Sexual Assault Response: Implementing VAWA Forensic Compliance and (2) Opening Doors: Alternative Reporting Options for Sexual Assault Victims.

Is medical mandated reporting compliant with VAWA?

Yes. The US Department of Justice, Office on Violence Against Women (OVW) determined that states with medical mandated reporting can be compliant with the Violence Against Women Act (VAWA), as long as victims are not required to “cooperate with law enforcement” or “participate in the criminal justice system.” When a mandated report is filed, this means victims cannot be required to personally talk with an officer or participate in the investigation. In other words, victims do not have the option of deciding whether a mandated report will be made. They do decide whether they want to talk to law enforcement or provide any information in connection with the report.

Victims should also be advised which agency (or agencies) will receive the mandated report, what information will be included, and whether it must identify the victim (or suspect, if known) by name. These requirements are typically outlined in state law.

For more information, please see two Online Training Institute (OLTI) modules: (1) The Earthquake in Sexual Assault Response: Implementing VAWA Forensic Compliance and (2) Opening Doors: Alternative Reporting Options for Sexual Assault Victims.

What is the recommended timeframe for conducting a medical forensic examination with a victim, following a sexual assault?

For sexual assault victims, we encourage obtaining a medical forensic exam as soon as possible, both to address medical issues and to maximize evidence collection and documentation. Emerging DNA research and advancing technologies have demonstrated that it is possible to obtain results from ever-smaller DNA samples, within ever-increasing timeframes.

We now know that viable evidence can exist well beyond the historical 72-, 96-, or 120-hour timeframes that have been used in many jurisdictions (National Protocol for Sexual Assault Medical Forensic Examinations, p. 73). In fact, a 7-day (168-hour) guideline is now being used in some jurisdictions, and jurisdictions may begin moving toward a 10-day guideline in the future (Speck & Ballantyne, 2015).

However, medical forensic care can be beneficial for victims and case investigations, even when it is delayed for a longer period of time. Victims should always be presented with information about their various options, and provided assistance in enacting their choices. Victim advocates can be extremely helpful and supportive during this process.

Also, please note that the determination of when to conduct a forensic examination should not be based solely on a jurisdiction’s timeframe for evidence collection. Rather, the answer should also be influenced by the facts of the specific case, the likelihood of recovering evidence given case circumstances, and the types of evidence needed for a successful investigation and prosecution. To illustrate, evidence may be available beyond even 168 hours after a sexual assault in cases where:

• The victim has not bathed, or only washed minimally

• The victim was seriously injured, or a great deal of force was used

• The victim continues to report pain or discomfort

• The victim is a minor, or a dependent adult, or was unconscious or physically incapacitated during the assault, or

• Multiple suspects were involved in the sexual assault.

There may be additional circumstances where it is wise to conduct a medical forensic examination beyond a jurisdiction’s standard timeframe; the above examples simply illustrate the need for flexibility when making these determinations. However, it is important that this decision not be based on any evaluation of the victim’s personal characteristics, or the perceived likelihood that the victim will participate in the investigation or potential prosecution, or that the case will be successfully prosecuted.

For more information, please see EVAWI’s training bulletin entitled, Time Limits for Conducting a Forensic Examination: Can Biological Evidence be Recovered 24, 36, 48, 72, 84 or 96 Hours Following a Sexual Assault?

Also see the US Department of Justice, National Institute of Justice (NIJ) publication entitled Extending the Time to Collect DNA in Sexual Assault Cases.

Should a Sexual Assault Forensic Examiner (SAFE) have follow-up contact with the victim, after the medical forensic exam is completed?

Yes, if possible, according to the National Protocol for Sexual Assault Medical Forensic Examinations (p. 117) published by the US Department of Justice, Office on Violence Against Women (OVW). Specifically, the National Protocol recommends that SAFEs follow-up by phone within 24-48 hours of an exam (if the patient consents). This 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. At some point during the exam process, SAFEs should ask the patient for consent to this follow-up contact, and determine an optimal day, time, and location for both the patient and the SAFE.

Follow-up examination of the patient can be particularly critical when genital trauma is identified during the medical forensic examination. A follow-up appointment can be used to evaluate the status of this genital trauma as well as the general physical well-being of the patient. It can also be used to strengthen the documentation of evidence regarding genital and non-genital injuries sustained by the sexual assault victim. For example, the follow-up examination can be used to document the resolution of any injury, and in cases where there may be a question of whether an observation from the examination might be related to injury or normal anatomical variants. Photo-documentation at the time of the follow-up examination can be very helpful for comparison purposes.

There are also situations where the SAFE is unsure whether suspected injury of a female patient is due to the victim’s medical history or another 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.

Finally, the National Protocol also encourages follow-up care to address any issues regarding the testing and treatment of sexually transmitted infections (STI’s) as well as HIV (p. 112-114). Unfortunately, many SAFEs do not have the capacity 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. Follow-up contact is therefore a best practice that communities can strive to implement.

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).

Who pays for medical forensic examinations in my jurisdiction?

There is considerable variation across jurisdictions in terms of who pays for medical forensic examinations conducted with a sexual assault victim. Some jurisdictions use the Crime Victim Compensation (CVC) program or other state funds, while other states require individual law enforcement agencies or counties to cover these costs.

In 2021, the Urban Institute published a report entitled Paying for Sexual Assault Medical Forensic Exams: How States and Jurisdictions Pay for Exams So Survivors Do Not Have To. The report is based on a survey conducted with sexual assault nurse examiner programs (SANEs), victim advocates, sexual assault coalitions, and Violence Against Women Act (VAWA) administrators. Results support four primary conclusions:

1. Most sexual assault victims seeking SAMFEs receive the exams free of charge and without being required to report assaults to the police.  
2. VOCA funds are the most common public payer for SAMFE costs. 
3. Many states have expanded the services provided as part of free SAMFEs beyond the narrow federal definition of a forensic examination.  
4. Payment levels from public payers often fall short of the full cost of the SAMFE. 

This report updates the 2014 publication, Sexual Assault Medical Forensic Exams and VAWA 2005: Payment Practices, Successes, and Directions for the Future.

To find out what the payment process is in your jurisdiction, the International Association of Forensic Nurses (IAFN) Sexual Assault Forensic Examination Technical Assistance (SAFEta) project offers an interactive US map with Exam Payment Resources. Users can click on each state or territory, to find a detailed summary of the exam payment process, Crime Victim Compensation (CVC), and related information.

Another helpful document was produced by AEquitas and EVAWI entitled, Summary of Laws and Guidelines with Charts: Payment of Sexual Assault Medical Forensic Examinations. Users can download the entire 228-page document, which includes laws and guidelines for each US state and territory, and charts summarizing the complex provisions. A 13-page Summary of Laws and Guidelines is also available.

What does VAWA require for payment of medical forensic exams?

Under the Violence Against Women Act (VAWA), US states, territories, and tribes must meet certain conditions to remain eligible for the STOP Violence Against Women Formula Grant Program. One of these requirements is to certify that the state, territory, tribe, or other governmental entity “incurs the full out-of-pocket cost of forensic medical exams” for victims of sexual assault.

What is a “medical forensic exam” for this purpose? VAWA defines it as:

(a) Examination of physical trauma

(b) Determination of penetration or force

(c) Patient interview, and

(d) Collection and evaluation of evidence [28 C.F.R. § 90.2(b) (1)]

Does VAWA require payment for the costs of medical testing and treatment?

No, VAWA does not require US states, territories, or tribal governments to cover the costs of medical testing or treatment associated with a medical forensic exam (including treatment of injuries, pregnancy, sexually transmitted infections, etc.).

This means there is variation in how these medical costs are covered, based on state laws and regulations, as well as local policies, protocols, and practices. For example, these costs may be billed to the victim’s private insurance, or the victim may be eligible to apply for Crime Victim Compensation for reimbursement. Because medical testing and treatment is a critical component of a medical forensic examination, the National Protocol for Sexual Assault Medical Forensic Examinations recommends that some basic medical services be included in the exam for free (p. 55-56).

For more information, please see the Online Training Institute (OLTI) module, The Earthquake in Sexual Assault Response: Implementing VAWA Forensic Compliance.

Additionally, The International Association of Forensic Nurses (IAFN) Sexual Assault Forensic Examination Technical Assistance (SAFEta) project provides many valuable resources on medical forensic exams and exam payment. One section of the website allows users to click on each state or territory, to find a detailed summary of the exam payment process, Crime Victim Compensation (CVC), and related information.

Can the victim’s private insurance be billed for the cost of a medical forensic exam?

Yes, according to the Violence Against Women Act (VAWA), a victim’s private insurance can be billed as long as there are no out-of-pocket costs for the victim.

As a result, some states require that a victim’s private insurance be billed for the cost of the exam, but they have instituted procedures to ensure there is no direct billing of the victim or co-pay required. Other states give victims the option of whether or not to have their private insurance billed for the exam, and still others prohibit billing the victim’s private insurance for the exam costs.

Yet insurance billing can present complications for some victims, including a potential loss of confidentiality. This is why the practice was originally discouraged by the Office on Violence Against Women (OVW):

We urge States to keep in mind that, in some cases, insurance billing can present a hardship for victims. For example, a victim of spousal rape may not want her husband to find out that she got a forensic exam. If the victim is forced to submit the claim to her insurance company and she is on her husband’s insurance, he may receive a statement from the insurance indicating that she got the exam. For this reason, the Office on Violence Against Women strongly encourages States to not require victims to file a claim with their insurers (OVW, 2007, pp. 24–25).

Even in the absence of abuse, partners or parents who receive an insurance statement will likely have questions about the purpose of any medical treatment, and this may eliminate the victim’s choice regarding whether or not to disclose the sexual assault. Insurance billing is thus one example of a practice that may meet the letter of the law for VAWA forensic compliance, but may fail to achieve the spirit of the law – which is to provide victims with prompt and unobstructed access to a medical forensic exam.

For more information, please see the Online Training Institute (OLTI) module, The Earthquake in Sexual Assault Response: Implementing VAWA Forensic Compliance.

US Department of Justice, Office on Violence Against Women (2007). Frequently Asked Questions Regarding STOP Formula Grant Program Forensic Exam Payment Requirement.

How many sexual assault victims have a medical forensic exam?

There are no exact figures for the number of sexual assault victims who obtain a medical forensic examination. 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 exam (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, US 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, US 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, US Department of Justice (NCJ 231977).

Start by Believing is a public awareness campaign launched by End Violence Against Women International (EVAWI) in April 2011. It was created to end the cycle of silence and change the way society responds to sexual assault.

Start by Believing reaches friends and family members, as well as professionals who interact with sexual assault survivors. The campaign focuses specifically on changing the response to a disclosure of sexual assault victimization by expressing belief and support, rather than doubt, shame, or blame.

EVAWI offers a brief history of the Start by Believing campaign, as well as responses to Frequently Asked Questions (FAQs) on the program website.