Rights of Sexual Assault Victims
Prof. Doug Beloof  -  2005/4/27
http://ovc.ncjrs.gov/ovcproviderforum
 
 
I have questions regarding victim rights in dealing with a sexual assualt. 1) How do service providers help overcome the prejudice in the prosecutors office that victims of this type of crime will recant or otherwise not be available to testify? 2) Where consent is the defense, how does the assertion of "victim" status affect the credibility and other treatment of the victim, and also the burden of proof for the state against the defendant?
 
1.  Doug Beloof
 First, education and training. Along these lines educational material might help. The problems you address are similar to problems of prejucie in domestic violence cases. Ultimately sexual assault victims should be able to determine whether to proceed. Because some do not this should not prevent aggresive prosecution for those who do.Assertion of victim status should not affect the credibility of the victim. In fact courts have held that the label victim ultimately lends credibility to the victim to such an dextent that these court have orderedthat the term cannot be used in front of the jury.
 
 
A rape victim was recently cited for contempt when she refused to testify against the accused. She spent the weekend in jail and still refused to testify. The rape was mentioned when she was interviewed by law enforcement about an attempted murder she witnessed. She never filed rape charges, the DA did. What action do you think was appropriate? What could have been done to protect the victim's rights? What may have resulted in a better outcome for the victim and the DA?
 
1.  Shayle H.
 This situation causes me to immediately be concerned about the victim's safety. In our community, I know that sexual assaults have been discussed at case staffing meetings that were not prosecuted, because the victim chose not to press charges or report the crime. In most cases, this is clearly related to the victim's safety. I also can't see how citing a rape victim for contempt will help create a culture which allows rape victims to report. Since sexual assault is such an under-reported crime, I can't see this as an effective outcome.
 
2.  Doug Beloof
 My own view is that sexual assault victims should have a choice about whether charges should be pursued. However, my view is not the law. As a matter of culture most prosecutors will not force such a prosecution. However, prosecutors clearly have the legal authority to do so. Presently there is no victims' right in any jurisdiction that would prohibit forcing a sexual assault victim to participate in the prosecution on threat of contempt and, ultimately jail. When I prosecuted sex crimes, if I had a case that was important to prosecute in the public interest, I would have a long conversation with a areluctant victim and we typically would mutually agree to proceed. This is a better approach than threat of contempt
 
 
I have been a prevention coordinator with our regional rape crisis center for 6 years. I am also a former police officer. Please advise me on any legal or accountability responses for sexual assault victims being treated unfairly by rural law enforcement.
 
1.  Shayle H.
 Have their been lawsuits filed against law enforcement agencies for lack of investigationpoor or abusive investigative techniques? If so, why weren't they successful?
 
2.  Doug Beloof
 Your question touches on one of the most challenging areas for victims. Law enforcement has almost unlimited discretion in whether to conduct an investigation and how that investigation is conducted. To give you an idea, there have been no successful lawsuits to force a criminal investigation that have been successful. THe most successful approach is for law enforcement to have detectives trained in sexual asssault investigation specifically. This will hopefully provide understanding and sensitivity required for such investigations. If the department is reluctant, see if the prosecutor will be the initiator in establishing interagency policies or protocols concerning these investigations.If the treatment is especially egregious, civil tort suits against the officer may be available, depending upon the sovereign immunity laws in your jurisdiction.
 
 
Can minors in the state of Missouri seek sexual assault treatment-i.e. medical, and or counseling services without the consent of their parents?
 
1.  Doug Beloof
 Medical treatment-yes minors can seek Tx without parental consent. Mo Stat. 431.061. No similar statute exists for counseling, so in all likelihood any given counselor would seek parental consent.
 
 
I am a Victim Advocate, working out of our county attorney's office. I established our Victims' Rights Unit almost two years ago. I am finding it difficult to get the judges in our very rural county, to order restitution. They just seem to not understand that the victim should not be responsible for their medical bills. Any suggestions for establishing a more victim friendly relationship between myself and the judges.
 
1.  Jon
 One word, MEDIA. When you want something done, it's time to stand up and do what you get paid for...Advocate. And if that means utlizing local media for a story, either by you or them, use it to bring awareness. I guarantee the public would not be happy if offenders are not being required to pay restitution.
 
2.  Melissa
 I was wondering if you're talking about restitution straight out from perp to victim and do you mean over and above VOCA compensation that's available?
 
3.  Doug Beloof
 Tough problem. Unfortunately, I think you have to engage your elected district attorney. THere are initial legal questions for instance is restitution mandatory or in the discretion of the court or somewhere in between. If mandatory the judges denial should be appeled or mandamused to appellate court- this would stop their practice rapidly. If it is discretionary a meeting between your elected DA and the judges to determine how to address the problem might begin change. If your DA is unwilling to view this as significant, perhaps you can gather the practices of other counties and reveal those to the judges. Or, perhaps see if victim training can be done at one of the annual judicial CLE's.
 
 
The federal government does not have a statute that specifically allows a dangerous sexual predator to be confined indefinitely. Even though mental health statutes are typically the province of the states, do you believe that a federal statute similar to those enacted by the states would be beneficial or is it unnecessary?
 
1.  Erin Ptak
 To the best of your knowledge, has there ever been a bill put forward by either party to address this issue on a federal level
 
2.  Doug Beloof
 Yes I think a federal statute is a good idea, but remember it would apply only to federal offenders. Violent crimes make up a very small portion of federal crimes. Nevertheless, these offenders are sufficiently dangerous as individuals that such a law would be worth while.
 
 
1. Are todays sex offenders more likely to commit their crimes close to their home? Elsewhere in their city/town? State? 2. When will a national registry of sex offenders, free access to all be established? 3. What percent of convicted sex offenders are not currently/accurately registered?
 
1.  Doug Beloof
 Regretably I do not have the answers to these questions readily available. Please go an line to ncvli.org, ncvliaid and submit these questions there.
 
 
I am a Volunteer Sexual Assault Victim Advocate working with victims through the Judicial Process in Florida. Question: Why is it that Law Enforcement will not allow victim advocates in when the interview of the victim is being conducted? Many sexual assault victims do not pursue prosecution if the interview turns more into an interrogation and the victim feels as though she is the criminal.This Country currently has a 39% reporting rate for this crime. Unless we, as advocates, can be in the interview, we will never truly understand what questions, what tone or what body language the officer possess that would make a victim change their mind to prosecute. Hope you can answer my question.
 
1.  Debbie Clark
 I as a SANE prefer not to be present when the interview with the police takes place. I ask only what is necessry for the medical exam. What ever the victim says to me I need to document and if there is ever a discreoency in the story it may make the victims story less credible.
 
2.  Shayle H.
 In our state SART advocates are allowed in the room but a state law prevents them from being subpeonaed. I thought this was standard practice- I'm surprise to hear otherwise? I'm not certain about this, but I believe our state law protecting advocates from being subpeonad is different in child cases.
 
3.  Doug Beloof
 If you were in the room you would become a witness. You could be subpoenaed to testify against the victim if your recollection differed from hers. Congratulations on your award.
 
 
Can counseling records be subpoenaed in a criminal case involving the sexual abuse of a child, and if so, can the court craft an in-camera review process of the records to help prevent further disclosure? A victims' mother is trying to prevent her step-daughter from seeking counseling because of her fear that counseling records would be discoverable.
 
1.  Doug Beloof
 COunseling records can be the subject of a subpoena. Whether the records can be disclosed depends on the law of each state. The relevant law is the nature of the counselor patient privilege in the state. If it is an absolute (unqualified) privilege, the records are not supposed to be subject to even in camera review. However, some state courts citing the defendant's right to due process have effectively turned absolute privileges into qualified privileges where in camera review is possible. Courts have the authority to conduct an incamera review before records are disclosed. Whether they do varies from state to state. Thus counseling records might ultimately be revealed in a criminal trial with not only the record subpoenaed, but the counselor as well.
 
 
This question is for Dr. Beloof: regarding the rights of sexual assault victims, what do you consider to be the most significant issue, and do you think that our society has a clear definition of what "rape" is today?
 
1.  Doug Beloof
 Good question-big question. The biggest problem is cultural. Despite 30 years of rape reform laws. Rape law in many states does not provide an adequate modern theory of liability. I think, however, the most significant issue are adeqquate confidentiality law in many contexts. Violations of the victims privacy are a tactic used to humiliate the victim and dissuade prosecution. Finally, victims should be able to have their own lawyers defend confidentiality in court.
 
 
Can you comment on the Dept of Defense's new policy on limited reporting of sexual assault?
 
1.  Jennifer
 I am a Sexual Assault Response Coordinator for the military (Air Force) and we have taken drastic steps in the last year to catch up to civilian resources by providing restricted or confidential reporting for SA victims. It is a great mindset change for the military, yet in the initial phases has proven successful. Additionally, I also provide training in awareness and prevention to every member of the military (military & civilian) on this base (approx 25,000 people). The military is making great strides and our community resources have been of outstanding service in shaping our program and helping our victims.
 
2.  April C
 http:www.sapr.mil has the new DOD policy posted. It can be found under Sexual AssaultReporting OptionsRestricted Reporting.
 
3.  Doug Beloof
  I have not read the new policy. THere are certainly many issues the military needs to come into the modern age on in regards to sexual assault.
 
 
In a military community: What is the liability of an advocate who maintains confidentiality for a victim, when a second person is victimized, and learns that the perpetrator was "known" to the command. Can the second victim claim that s/he had a right to the confidential information in order to protect herself?
 
1.  April C
 The DOD has revised its Military Response to Sexual Assault Victims program. It can be accessed at http:www.sapr.mil Included are links to the Army Prevention and Response Program and Navy Victim Intervention Program.
 
2.  Jessica
 Another resource re: victims and the military is The Miles Foundation, an advocacy organization that serves victims on issues relating to inter-personal violence and the military. They can be reached at P.O. Box 423, Newtown, CT 06470-0423Telephone: 203.270.7861email: Milesfdn@aol.com or milesfd@yahoo.com
 
3.  Doug Beloof
 This is a good question the answer to which requires more information and more research on my part. Mliitary has its own particular liability rules and is immune as a general rule from civil suit. Please contac ncvli.org go to ncvli.aid and the lawyers will seek the answer for you.
 
 
I'm a victim advocate and am seeing jurors now looking at the victim of a sex crime as they should be looking at the Defendant. It takes time getting case to Court, sometimes longer than usual, and jurors are blaming victim and acquitting defendants. Any suggestions for voir dire or opening statements for the ADA's?
 
1.  Doug Beloof
 Well if DA's arenn't engaging the victims in the debate about cultural biases against rape victims in voir dire they are not doing their job. My guess is that the Nat'l College of District Attorneys in Columbia S.C. has training materials on exactly this issue, if they do not I'm sure they can get them for you from elsewhere.
 
 
Dr. Beloof, are there any states / models we can look to that allow standing for direct victim representation in a criminal prosecution ?
 
1.  Doug Beloof
 Yes , there are. The new federal statute provides victims standing. For a complete explanation of this I have just authored a law review article on victims standing, which examines this in all jurisdictions in depth. For a copy go to ncvli.or then ncvliaid and request it.
 
 
I am an on-call victim advocate for a crisis center in Lincoln, NE. When I respond to a sexual assault call at the hospital, the Sexual Assault Nurse Examiner always asks me to sign as witness to consent for the exam. I'm a little concerned about signing, re: confidentiality. What is the correct protocol for this?
 
1.  Doug Beloof
 Like you I think a better practice would be to have a member of the hospital staff sign the consent. Your name on such a form simply expands the possibilities that you will be subpoenaed as a witness at trial.
 
 
In your opinion, what can be done to raise awareness of, and increase advocacy concerning, marital rape/sexual assault? Also, what do you see as being the the biggest barriers to societal recognition of martial rape/sexual assult as a serious issue and one that needs to be addressed?
 
1.  Doug Beloof
 Second question first, the biggest barrier is sexism in the culture, vestiges of laws making women the property of their husbands, and the failure to create any kind of educational effort that reaches middle school and high school students. First question, I think there needs to be a new commitment nationally to sexual assault issues. Unfortunately I think the impression among many is that rape shield laws and rape reform solved all the problems. This is not the case, many such laws remain hopelessly flawed. Really what is needed is a vigouous ntionally coordinated effort to invigorate new more advance reforms.
 
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