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.