This past year saw revelations of sexual harassment in several different arenas, including the realms of entertainment, news media, sports, and politics. Some of what has been exposed are criminal acts, and law enforcement agencies are being called upon to open investigations into these acts, many of which were committed years ago. For example, police departments in London, England; Los Angeles, California; and New York have all opened criminal investigations of Harvey Weinstein, only one of numerous prominent individuals whose actions were exposed by the #MeToo movement.1
The Time’s Up movement, powered by women, states on its website, that “[t]he clock has run out on sexual assault, harassment and inequality in the workplace. It’s time to do something about it.”2
So why now? What has prompted so many to report past sexual harassment behavior?
In the past, the status and position of the sexual predator has kept victims in a state of vulnerability and, thus, silent. Many of the recently identified sexual offenders had the ability to impact their victims’ professional careers. However, when celebrity victims came forward and spoke out, it empowered others and created the energy behind the #MeToo movement. In addition, #MeToo is not the only movement that is out there—several other campaigns address the same issue in somewhat different ways. The #NoMore and #NotAlone campaigns, and even the Start by Believing Campaign, a program of End Violence Against Women International launched in 2011, have now been out in the community for many years. Each of these campaigns is about speaking out against sexual violence and supporting survivors.
However, many victims are not silent only to protect and maintain a career. The victims of the Oklahoma City Police Officer rapist, Daniel Holtzclaw, were targeted because, as Prosecutor Lori McConnell put it, “He counted on the fact no one would believe them and no one would care.”3
A survivor of sexual violence may face any number of obstacles as they navigate life after the assault. Decisions about what to do and when to do it are not made easily or quickly. It should be no surprise, and should even be expected, for survivors to delay making a police report. Negative reactions to a victim’s disclosure of sexual assault, including disbelief, cause additional trauma over and above the assault itself. These negative reactions may come from the very people that the victims first turn to for support, such as friends and family members. In fact, one study found that victims may be better off receiving no support at all than receiving reactions they consider to be harmful.4
Gender Bias in Criminal Justice
In the criminal justice community, due process is always front and center in investigations. Neutrality and objectivity during an investigation is integral to the ideal of due process. Does a show of compassion and concern over the disclosure of sexual violence take away the objectivity necessary in the investigation? Educator Phyllis Rose said, “There is no neutrality. There is only greater or lesser awareness of one’s bias.”5 The #MeToo movement and other campaigns have brought to light how the issue of gender bias is a factor in this conversation. Even professionals have biases that may impact their approach, interest, and willingness to conduct an in-depth investigation into a report of sexual violence.
It is important, therefore, to explore how gender bias may impact an investigation and prosecution of sexual violence. Police officers, detectives, deputies, and prosecutors alike all are affected by their own worldviews, their own implicit and explicit biases. Everyone makes snap judgments that are based on their upbringing, their life experiences, what they hear and see in the media, their professional training, and what they believe and don’t believe about the world. As the gatekeepers into a system that controls the administration of justice, police officer or investigators’ errors in judgment have significant impacts on the individuals involved. Lives are changed forever by decisions and actions of first responders in these cases. It is in this role of gatekeeper where barriers might unintentionally be created for survivors of sexual violence.
Bias and Police Interviews
The typical police interview itself may become an obstacle for survivors of sexual violence. Many police officers are action oriented and find it difficult to conduct an interview that requires patience or is emotionally challenging. The traditional approach to interviewing with “who, what, when, where and how” doesn’t work well with victims who are experiencing trauma from the crime. Including “why” in the interview, in particular, might cause the victim to feel he or she is being blamed for the sexual assault. Law enforcement training on interviewing may also include interrogation, with the emphasis on getting a confession from a suspect. Therefore, the tone of a victim interview may display characteristics of an interrogation, causing the victim to shut down and not disclose important pieces of information about what occurred. This reticence then serves to create suspicion in the mind of the officer or detective conducting the interview that the report may be false. Victims who sense this suspicion might back out altogether and no longer participate in the investigation. This, in turn, completes the circle by seeming to confirm the investigator’s belief that the victim was lying to begin with, explaining why he or she stopped cooperating.
How interviews with victims of sexual violence are conducted is key to a successful investigation, one that obtains all of the relevant information and gains full disclosure of what occurred from victims. For example, recommendations from the Oregon Sexual Assault Training Institute on interviewing victims of sexual assault include facilitate; comfort; acknowledge the victim’s ordeal; allow the victim to vent; communicate empathy; and pose simple questions. Interviewers should also avoid breaking the victim’s train of thought. One study shows that law enforcement interviews of sexual assault victims reflected an average of four interruptions for each victim response. Issues and statements that require clarification can be done at a later time in the interview, after the victim has had the chance to tell his or her story of what happened and what he or she can remember.6
Techniques such as the Forensic Experiential Trauma Interview, known as FETI, developed by retired U.S. Army Chief Russell Strand of the Behavioral Sciences Education and Training Division Military Police School, are making a positive difference in the amount and quality of information that is obtained from a victim of sexual violence or other forms of trauma. This technique takes into account how the victim recorded the attack in his or her memory and how he or she is able to recall and repeat it to an interviewer. FETI is spreading as a preferred interview technique for victims of trauma, especially victims of sexual violence.
The late Dr. Morton Bard, a psychology professor who worked with the New York City Police Department during the 1960s and 1970s, conducted studies of crime victims, including rape victims and families of homicide victims. He found that the police can be helpful or harmful in their response to victims but lack training in the “new field of victimology.” In an interview in 1990, Dr. Bard said, “The crime creates a social world for you [the victim] in which people are threatening, and you are no longer safe.”7
Perception of Rape and Victim Credibility
A challenge for law enforcement agencies called on to investigate sexual assault or rape cases is the issue of delayed reporting. Delayed reports of sexual violence in the minds of many, both professionals and friends and family members of the victim, trigger suspicion that the report is false. This is one of the many red flags of suspicion that tend to surface when the reported sexual assault doesn’t fit our predetermined worldview of what an actual rape looks like. Society’s view of a “real rape” includes the following: victim and suspect do not know each other; a weapon was used; physical violence is reported and there is physical injury; the victim resisted and fought back to the utmost; the victim is hysterical; and the victim reports the attack to law enforcement immediately.8
Statistically, however, this is not the case. The majority of sexual assault cases today occur between individuals who know each other at some level, including intimate partners. In these incidents, no weapon is used, no physical violence is reported, and no visible injury may be present. The survivor of sexual violence may not report it for weeks, months, or even years.9
The general, incorrect view of what a “real” rape looks like comes evolves, in part, as a safety measure. If the victim’s behavior was the cause of the assault, society members can avoid a similar fate by not behaving that way. Consuming alcohol in excess is one such behavior frequently used to blame victims. Sexual violence victims are most often women, so is this an example of gender bias? Society in general holds victims of sexual assault to a different standard when the red flags of suspicion exist. For the investigators, who may hold these biases themselves, the challenge is how to conduct a comprehensive, thorough investigation and not look at the perceived red flags as a reason to unfound the case or label it as a false report.
How does bias directly impact an investigation of sexual assault? The implications of that impact are investigations that are not started or completed. When a case doesn’t look like the prevailing view of a “real” rape, a cloud of suspicion may form in the mind of the law enforcement official that this may be a false report. Confirmation bias then sets in causing the investigator, however unintentionally in doing so, to look only for that evidence that supports the idea that this is a false report.
Prosecutors and the Charging Decision
Prosecutors and investigating officers all share the common goal of bringing sexual predators to justice. This goal can best be achieved by identifying and recognizing the biases that are within one’s own worldview and understanding how those biases affect one’s work as a professional. A question worthy of examination is whether prosecutors are guilty of using techniques to discredit a victim’s account of rape to justify charge rejection. Does the victim’s attire, language, or state of intoxication at the time of the event make prosecutors less likely to charge the case? Prosecutors need to ask themselves whether the victim’s character, reputation, behavior, and post-charging conduct, such as failing to appear for an interview with the prosecutor, cloud views about the merits of the case. Finally, do prosecutors view intimate partner violence through a different lens than stranger rape?
No one is truly neutral; proper training of prosecutors to overcome internal and external biases regarding sexual assault is essential to the successful prosecution of these cases. Prosecution offices must ensure a clear process and infrastructure to enable prosecutors to make sound and thoughtful decisions on whether to prosecute sexual assault complaints.
Cultural biases influence prosecutors to focus on the victim’s credibility when making the charging decision. Just as members of the public—and potential jurors—are influenced by the myths of a real rape, so too are prosecutors. While a victim’s credibility is very important in any case, the charging decision should not start with an attack on his or her believability. The “old school” process for charging a sexual assault case generally begins with questioning the victim’s credibility. Does he or she have a motive to lie? Why did he or she not report immediately? If the victim was drunk, how does he or she know what really happened?
But if the charging decision begins—and ends—with an attack on the victim’s credibility based on the victim’s behavior and the prosecutor’s pre-conceived stereotypes of a real rape, a case is never truly given a chance. A better, fairer way to analyze the case is to begin the case analysis by building a circle of credibility around the victim.
The victim’s credibility can be broken down into four components: (1) actual credibility; (2) the victim’s ability to perceive events at the time of the incident; (3) the victim’s ability to remember what happened; and (4) the existence of corroborative evidence. In order to evaluate the victim’s credibility, the prosecutor, and ultimately the jurors, need context and supporting facts, including medical evidence; witnesses; physical evidence; and, in some cases, expert testimony that explains behavior that is counterintuitive to expectations.
A circle of credibility begins with believing, rather than attacking, the victim’s statements. The second circle examines witness statements about what was seen or heard, including a suspect’s statements or confession. The third circle consists of the physical evidence—the crime scene, the photographs, DNA, fingerprints, and so forth. The fourth circle includes the medical evidence, and the fifth circle considers the expert testimony. Then—and only then—does the charging prosecutor have a sufficient context within which to evaluate the victim’s credibility. The evidence need not conclusively prove that a rape occurred; rather, it must give the prosecutor a sufficient context in which to evaluate the victim’s credibility. Instead of jumping on the victim’s credibility as the starting place for the charging decision, informed, trained prosecutors build a circle of credibility within which to fairly evaluate the merits of a case and make a better charging decision.
It is nearly impossible for human beings to avoid drawing on stereotypes and attitudes toward individuals and groups that can and do result in real-world discrimination. To reduce the impact of bias, prosecutors should make charging decisions based on the totality of the evidence and information gathered. While a prosecutor does not necessarily assume that every detail in the victim’s statement is correct due to error, omissions, or false details, the analysis of the victim’s credibility should be done within the context of building circles of credibility.
Once a case has been charged, the prosecutor must conduct an offender-based prosecution, beginning with proper jury selection techniques. Just as cultural biases may affect prosecutor attitudes, so too do they affect jury members. Understanding that many potential jurors harbor myths about what a real rape looks like is crucial in selecting a jury in a sexual assault case.
An August 2017 ICM opinion poll on community attitudes toward rape, commissioned by Amnesty International, is illuminating. ICM interviewed a random sample of 1,095 adults aged 18 or older by telephone. The respondents were given a series of scenarios and asked to indicate whether they believed a woman was totally responsible, partially responsible, or not at all responsible for being raped in each scenario. More than a quarter of the respondents believe a woman is at least partly responsible for being raped if she wears sexy or revealing clothing or is drunk, the poll found.10
Jury selection is an opportunity to do two things: (1) educate the jurors about the myths of a real rape; and (2) eliminate jurors who hold such deep-rooted beliefs that they cannot be fair. By asking questions in voir dire about jurors’ preconceived opinions about women who, for example, wear revealing clothing or walk home alone late at night, the prosecutor can select a fair jury by eliminating those who harbor beliefs that cannot be set aside.
Prosecutors should also use jury selection as an opportunity to address the myths about real rape and to inform the jury that the elements contained in rape stereotypes are uncommon and not required for a conviction. For an excellent sample of questions for voir dire, visit the National District Attorneys Association website and download the publication titled Prosecuting Alcohol-Facilitated Sexual Assaults by Teresa P. Scalzo.11
Once those jurors whose deep-rooted beliefs make it clear they cannot set aside biases that will interfere with their ability to be fair have been eliminated and the jury has been educated on the difference between real cases and stereotypical rape cases, the prosecution can now focus on trying a successful case.
Although prosecutors generally focus on the offender when trying any other criminal case, in sexual assault cases, it’s common to focus on the victim and the victim’s flaws or vulnerabilities. In other words, the prosecution goes on the defense. Sexual assault cases must be tried with a focus on the offender, the same way that other criminal cases are tried. In fact, it is the victim’s vulnerabilities—those characteristics that may seem like weaknesses in the case—that help explain why the defendant targeted him or her as a victim.
Sexual predators generally prey on the vulnerable, whether opportunistic or situational. Remind the jury that defendants select their victims with the intention of not getting caught. Offender-focused prosecutions help explain to the jury why a rapist would prey upon a person like the victim. The rapist selected him or her because of those very characteristics. Communicating this to the jury refocuses the jury’s attention on the defendant’s predatory behavior rather than inviting the jury to blame the victim. The characteristics that cause the victim to seem blame-worthy to the jury are the same characteristics that made him or her the target of the rapist.
Prosecutor support for the victim from the moment the case comes in the door is crucial. In a thoughtful and well-researched paper by Dr. Kimberly A. Lonsway and Sgt. Joanne Archambault, the authors explain that the two factors with the most significant positive impact on a victim’s well-being in the aftermath of a sexual assault are having someone to talk to and being believed.12
What does this mean for the prosecutor? First and foremost, prosecutors should ensure that the victim is assigned a victim advocate within the office who has received training in sexual assault cases. A person who receives formal victim support will be connected to a vast array of services that will help mitigate the negative trauma of sexual assault, including primary and forensic medical care, therapy and counseling, and other support services.13 Research finds that victims who work with an advocate experience less distress; are less likely to experience certain negative outcomes (such as self-blame and feeling guilty or depressed); and are less reluctant to seek further help.14 According to Lonsway and Archambault, “By accessing the services of just one professional, this can also increase the likelihood that victims will engage others.”16 For example, a victim who has already contacted another formal source of support is more likely to report the sexual assault to police.
Prosecutors can do at least three things to assist the victim in testifying in a competent and credible manner—support, protect, and prepare the victim. Prosecutors should make sure the victim advocate attends meetings with the victim. In most cases, the victim will bond with the advocate who generally has more time to spend with him or her. In addition, prosecutors should choose their words carefully, using words that convey support and avoiding words that suggest the victim is to blame for the rape or imply disbelief. Make sure sufficient time is set aside for a meeting with the victim and that all of his or her questions get answered.
If the case is going to trial, prosecutors need to take the time to prepare the victim. Know the tools available and argue for the victim to testify via closed-circuit television when the circumstances support it.15 Victim behavior in cases of sexual assault is often not intuitive nor within the common knowledge of jurors. In fact, just as in cases of domestic violence, the behavior of a victim who has been raped may seem counterintuitive to a jury. When prosecuting a sexual assault case with victim conduct that does not fit the average person’s understanding, consider the use of a “blind expert.” A blind expert, also referred to as a “cold expert,” is a person with expertise in the given field who has not reviewed any case-specific evidence and is not going to testify about any of the events in the case. The purpose of a blind expert is to help a jury understand victim behaviors that might otherwise not be within the jurors’ common knowledge. Courts will allow a blind expert to explain to a jury the behavior of a rape victim that is counterintuitive.16
Finally, in those cases where there is insufficient evidence to bring charges, the needs of the victim can still be met and the ideals of justice be served as the system plays its role in victim recovery. Insufficient evidence to prosecute does not mean a false or untrue account. Only when evidence shows a reported rape is false can it be labeled as such. This victim-centered, offender-based approach focuses the attention on the actions and behaviors of the suspect while, in the past, the focus has been on the behaviors of the victim.
When arguing the case to the jury, prosecutors must choose their words carefully.
According to prosecutor and advocate Anne Munch,
The words we use to describe crimes communicate volumes to the listener (or reader) about how the speaker (or writer) interprets the circumstances of the crime. For most property crimes, there is no real issue that surfaces here. But with certain crimes, typically crimes of an interpersonal nature, a close look shows us how the misuse of language can saddle the successful prosecution of offenders by laying partial blame on victims for the crime itself or by painting an inaccurate picture of rape as a consensual sexual act.17
Be aware that police officers tend to “sanitize” the words of the victims in their reports. Use the authentic words of the victims.
Encouraging criminal justice professionals to understand and perceive their own biases—and then working to remove obstacles in the path of victims and survivors of sexual violence—is not a departure from the objectivity or neutrality that due process demands. It makes it safer for survivors to step forward and tell their stories so more complete investigations, ones that uncover all the facts, all the details, can be the outcome. Criminal justice decisions must be made from complete, thorough, and comprehensive investigations, not based on the implicit biases that all individuals have. Due process is afforded throughout, and sexual predators can be held accountable through an evidence-based process while the system also assists victims in their recovery needs.
Sheila Polk is in her 17th year as the elected Yavapai County Attorney. She has worked for 35 years as a prosecutor in Arizona. She currently serves as chair for the Arizona Prosecuting Attorneys’ Advisory Council and chair for the Arizona Criminal Justice Commission.
1 Richard Winton, “Harvey Weinstein Is the Subject of Multiple Criminal Investigations, But Detectives Face Challenges,” Los Angeles Times, November 3, 2017; “Sexual Misconduct: A Growing List,” NBC News, 2018.
2 Time’s Up.
3 Heide Brandes, “Ex-Oklahoma Policeman Preyed on Women ‘No One Cared About’: Prosecutors,” Reuters, December 7, 2015.
4 Rebecca Campbell et al., “Social Reactions to Rape Victims: Healing and Hurtful Effects on Psychological and Physical Health Outcomes,” Violence and Victims 16, no. 3 (July 2001): 287–302.
5 Phyllis Rose, Writing of Women: Essays in a Renaissance (Middletown, CT: Wesleyan University Press, 1985).
6 The National Law Enforcement Training and Capacity Building Project, Train the Trainer Workbook (Oregon Attorney General’s Sexual Assault Task Force, 2016), 4–9.
7 Eric Pace, “Morton Bard, 73, Authority on Crime Victims,” New York Times, December 14, 1997.
8 Kimberly Lonsway, Joanne Archambault, and David Lisak, “False Reports: Moving Beyond the Issue to Successfully Investigate and Prosecute Non-Stranger Sexual Assault,” The Voice 3, no. 1 (2009): 1–11.
9 Lonsway, Archambault, and Lisak, “False Reports.”
10 “Women ‘To Blame’ for Being Raped,” Daily Mail.
11 Teresa Scalzo, Prosecuting Alcohol-Facilitated Sexual Assault, Appendix A: Sample Voir Dire Questions for a Sexual Assault Trial (Alexandria, VA: National District Attorneys Association, 2017).
12 Kimberly A. Lonsway and Joanne Archambault, “Start by Believing: Evaluating the Impact of a Public Awareness Campaign Designed to Change the Community Response to Sexual Assault,” Sexual Assault Report 16, no. 6 (July/August 2013).
13Lonsway and Archambault, “Start by Believing.”
14 Lonsway and Archambault, “Start by Believing.”16 Lonsway and Archambault, “Starting by Believing,” 1.
15 State v. Kemp, 239 Ariz. 332, 371 P.3d 660 (Ariz. App 2016).
16 State v. Haskie, 2017 Ariz. LEXIS 205, 399 P.3d 657 (AZ Supreme Court, 2017).
17 Anne Munch, “The Language of Sex,” SAFVIC on the Scene 4, no. 4 (December 2009): 1–3.