Sexual Assault Investigations BY MICHAEL BESSETTE Objectives Review the Law Understanding Defenses Understanding Victimization Investigation Steps and Issues Agencies to Assist The Law Sexual Assault Definitions Sexual Assault Statutes Sexual Assault Laws re: Children Sexual Assault Definitions Sexual Contact Sexual Intercourse Consent Intimate Parts Sexual Contact 940.225(5)(b) 1. Intentional touching by the complainant or defendant, either directly or through clothing by the use of any body part or object, of the complainant or defendant’s intimate parts if the intentional touching is either for the purpose of sexually degrading; or for the purpose of sexually humiliating the complainant or sexually arousing or gratifying the defendant or if the touching contains the elements of actual or attempted battery under 940.19(1). Sexual Contact 2. Intentional penile ejaculation of ejaculate or intentional emission of urine or feces by the defendant upon any part of the body clothed or unclothed of the complainant if that ejaculation or emission is either for the purpose of sexually degrading or sexually humiliating the complainant or for the purpose of sexually arousing or sexually gratifying the defendant. Sexual Intercourse 940.225(7) Vulvar penetration (s. 939.22(36)) as well as cunnilingus, fellatio or anal intercourse between persons or any other intrusion, however slight, of any part of a person’s body or of any object into the genital or anal opening either by the defendant or upon the defendant’s instruction. The emission of semen is not required. (s. 940.225(5)( c)) Marriage not a bar to prosecution. (s. 940.225(6)) Death of victim. (s. 940.225(7)) Consent 940.225(4) as used in this section, means: words or overt actions by a person who is competent to give informed consent indicating a freely given agreement to have sexual intercourse or sexual contact. Consent is not an issue in alleged violations of sub. (2) (c), (cm), (d), (g), (h), and (i). Consent The following persons are presumed incapable of consent but the presumption may be rebutted by competent evidence, subject to the provisions of s. 972.11 (2) (b)a person suffering from a mental illness or defect which impairs capacity to appraise personal conduct. ( c) A person who is unconscious or for any other reason is physically unable to communicate unwillingness to act. Case law says that failure to physically resist is not consent. Intimate Parts 939.22(19) means breast, buttock, anus, groin, scrotum, penis, vagina or pubic mound of a human. Definitions are continuously redefined. For example: Recent conviction that was appealed challenged the courts application of the definition of intimate parts. It questioned whether the “breast” of a male was an intimate part. They lost and the conviction was upheld. Elements “Elements” of crimes are the components of the law that need to be established in order to prove a crime was committed Definitions help to ensure that those elements are established as consistently as possible. This is intended to ensure fairness Statutes 1st Degree Sexual Assault Sexual intercourse or sexual contact Without consent By use or threat of use of a dangerous weapon, or causes great bodily harm, or causes pregnancy, or OR is aided or abetted by one or more persons and uses or threatens to use force or violence Statutes 2st Degree Sexual Assault Sexual intercourse or sexual contact Without consent Use or threat of force or violence, or causes injury , causes illness or disease, or causes impairment of a sexual or reproductive organ, or causes mental anguish requiring psychiatric care With person who defendant knows is unconscious, has a mental illness or deficiency, or with person who defendant knows is under the influence of an intoxicant, or offender is aided or abetted by one or more other persons; or With a patient or resident of employee's facility or program as defined under §940.295(2) Statutes 3rd Degree Sexual Assault Sexual intercourse, or sexual contact in the form of intentional penile ejaculation or emission Without consent Statutes 4th Degree Sexual Assault Sexual contact (except for that defined under third degree sexual assault ) Without consent Child Sexual Assault CHAPTER 948: THE LAW 948.01(5) “Sexual contact” means any of the following: (a) Any of the following types of intentional touching, whether direct or through clothing, if that intentional touching is either for the purpose of sexually degrading or sexually humiliating the complainant or sexually arousing or gratifying the defendant: 1. Intentional touching by the defendant or, upon the defendant’s instruction, by another person, by the use of any body part or object, of the complainant’s intimate parts. 2. Intentional touching by the complainant, by the use of any body part or object, of the defendant’s intimate parts or, if done upon the defendant’s instructions, the intimate parts of another person. (b) Intentional penile ejaculation of ejaculate or intentional emission of urine or feces by the defendant or, upon the defendant’s instruction, by another person upon any part of the body clothed or unclothed of the complainant if that ejaculation or emission is either for the purpose of sexually degrading or sexually humiliating the complainant or for the purpose of sexually arousing or gratifying the defendant. (c) For the purpose of sexually degrading or humiliating the complainant or sexually arousing or gratifying the defendant, intentionally causing the complainant to ejaculate or emit urine or feces on any part of the defendant’s body, whether clothed or unclothed. 948.01(6) “Sexual intercourse” means vulvar penetration as well as cunnilingus, fellatio or anal intercourse between persons or any other intrusion, however slight, of any part of a person’s body or of any object into the genital or anal opening either by the defendant or upon the defendant’s instruction. The emission of semen is not required. 948.02 Sexual assault of a child (1) FIRST DEGREE SEXUAL ASSAULT. (am) Whoever has sexual contact or sexual intercourse with a person who has not attained the age of 13 years and causes great bodily harm to the person is guilty of a Class A felony. (b) Whoever has sexual intercourse with a person who has not attained the age of 12 years is guilty of a Class B felony. (c) Whoever has sexual intercourse with a person who has not attained the age of 16 years by use or threat of force or violence is guilty of a Class B felony. (d) Whoever has sexual contact with a person who has not attained the age of 16 years by use or threat of force or violence is guilty of a Class B felony if the actor is at least 18 years of age when the sexual contact occurs. (e) Whoever has sexual contact with a person who has not attained the age of 13 years is guilty of a Class B felony. 948.02 Sexual assault of a child (2) SECOND DEGREE SEXUAL ASSAULT. Whoever has sexual contact or sexual intercourse with a person who has not attained the age of 16 years is guilty of a Class C felony. 948.025 Engaging in repeated acts of sexual assault of the same child (1) Whoever commits 3 or more violations under s. 948.02 (1) or (2) within a specified period of time involving the same child is guilty of: (a) A Class A felony if at least 3 of the violations were violations of s. 948.02 (1) (am). (b) A Class B felony if at least 3 of the violations were violations of s. 948.02 (1) (am), (b), or (c). (c) A Class B felony if at least 3 of the violations were violations of s. 948.02 (1) (am), (b), (c), or (d). (d) A Class B felony if at least 3 of the violations were violations of s. 948.02 (1). 948.05 Sexual exploitation of a child (1) Whoever does any of the following with knowledge of the character and content of the sexually explicit conduct involving the child may be penalized under sub. (2p): (a) Employs, uses, persuades, induces, entices, or coerces any child to engage in sexually explicit conduct for the purpose of recording or displaying in any way the conduct. (b) Records or displays in any way a child engaged in sexually explicit conduct. (1m) Whoever produces, performs in, profits from, promotes, imports into the state, reproduces, advertises, sells, distributes, or possesses with intent to sell or distribute, any recording of a child engaging in sexually explicit conduct may be penalized under sub. (2p) if the person knows the character and content of the sexually explicit conduct involving the child and if the person knows or reasonably should know that the child engaging in the sexually explicit conduct has not attained the age of 18 years. 948.10 Exposing genitals or pubic area (1) Whoever, for purposes of sexual arousal or sexual gratification, causes a child to expose genitals or pubic area or exposes genitals or pubic area to a child is guilty of the following: (a) Except as provided in par. (b), a Class I felony. (b) A Class A misdemeanor if any of the following applies: 1. The actor is a child when the violation occurs. 2. At the time of the violation, the actor had not attained the age of 19 years and was not more than 4 years older than the child. (2) Subsection (1) does not apply under any of the following circumstances: (a) The child is the defendant’s spouse. (b) A mother’s breast−feeding of her child. 948.09 Sexual intercourse with a child age 16 or older Whoever has sexual intercourse with a child who is not the defendant’s spouse and who has attained the age of 16 years is guilty of a Class A misdemeanor. Sexual Assault Defenses ANTICIPATE DEFENSES DURING THE INVESTIGATION Anticipating the Defense You will need to be familiar with the elements of sexual assault offenses as outlined and be able to recognize the distinction between sexual penetration and sexual contact. Any incident may involve multiple offenses, including some combination of sexual penetration and contact. However, each count or charge must be identified independently. You will also need to identify and document evidence for each element of each offense to overcome any defense strategy. Several defense strategies are common in sexual assault cases, among them these: Identity defense Denial defense Consent defense Identity defense "You've got the wrong guy” Your investigation must focus on identifying the suspect using these kinds of evidence: Physical description of the suspect (from victim or witnesses) DNA evidence from victim's and suspect's body and clothing Any other evidence linking the suspect to the victim and/or crime scene Evidence of prior similar acts of suspect to corroborate a the present offense (modus operandi) Denial defense Denies that any sexual activity took place. Your investigation must focus on establishing that the activity did occur. The forensic exam of the victim and an analysis of the victim's clothing may produce seminal fluid, spermicides, lubricants or saliva that can be used to prove sexual activity. Another source of evidence of sexual contact may be found on the suspect's body or clothing. Transfer fluids or cells from the victim's body may be found on the suspect’s body—or there could be a transfer of bodily fluids or cells between multiple suspects. It is very important to conduct forensic exams of the suspect(s) to document evidence of sexual activity between suspect and victim. Consent defense The issue of consent will most likely be raised when the victim and suspect are acquainted. This is the most common defense! Suspect may switch from denying having sex with the victim to saying, "the victim wanted it." This makes it necessary to bolster the victim's statement with corroborating evidence that will verify and confirm what the victim describes to have happened. Consent Questions to Ask… Was physical violence or a weapon used? Were physical or verbal threats made? What were the surrounding circumstances that made the victim believe that real or implied threats would be carried out? Was there a discrepancy in the size and strength of the individuals involved? Were the individuals isolated from others? Were there multiple suspects involved or other individuals present during the assault? What was the victim thinking and feeling at the time of the event? Would the victim have been intimidated Other Consent Issues During your investigation you may become aware that the victim was unconscious or incapacitated. You need to corroborate that the victim was indeed unconscious to prove the element of non-consent. Incapacitation is more difficult to prove as there is no clear legal standard. If incapacitation is due to the ingestion of alcohol or drugs, a toxicology analysis will be needed to provide the evidence. Also needed are witness interviews and the victim's account to show she was so incapacitated that she could not legally consent to sexual activity. Victimization Secondary victimization refers to the significant other This can have a significant impact on your investigation and the prosecution Don’t expect wholesale support for the victim from the victim’s parents, husband, family members, etc… if you don’t identify them and assist them in the process… Use Sexual assault advocates! Don’t have family present during interviews Secondary Victims These individuals need to be identified and their feelings validated by the criminal justice professionals involved in the victim's case. If the secondary victims are assisted and supported, they can aid in the victim's recovery' feelings include helplessness/powerlessness guilt or feeling responsible—feeling that they should have been able to prevent the assault in some way shame; feeling concerned about reactions from family members or the community about the sexual assault blaming the victim minimizing the impact on them loss of intimacy; feeling that the victim is being distant loss of routine frustration with the victim and/or the various systems encountered (legal, etc.) anger about the assault is sometimes expressed towards the victim, with thoughts like, "she should've been more careful" Victimization There are a wide variety of responses… Stage 1: Acute Trauma disorientation, dissociation, amnesia nightmares, flashbacks, sleep and appetite disturbances. difficulty concentrating constant reliving of the assault guilt and self-blame—loss of self-esteem feelings of shock, disbelief, helplessness, powerlessness, and loss of control suppressed or intensified emotional experience extreme fear and hyper vigilance extreme calm and denial irritability and outbursts of anger depression—suicidal thoughts and actions physical symptoms shame—sense of damage changes in social and sexual functioning self-destructive behavior Stage 2: Outward Adjustment denying or minimizing the impact of the sexual assault rationalizing the reason it happened avoiding reminders of the sexual assault experiencing fewer episodes of reliving the sexual assault returning to crisis expressing emotions about the sexual assault developing ways of coping with trauma Stage 3: Integration In the third stage of integration the victim has a better understanding of the sexual assault and its effect on his or her life. This stage can extend throughout the victim’s life, changing the person’s perspective. Tragically, however, not all victims successfully achieve integration. For them, the negative symptoms become a way of life. Investigation Steps and Issues Sexual Assault Investigation using a multi-disciplinary team approach making initial contact with the victim protecting the victim processing the crime scene and evidence anticipating the defense Making Initial Contact with the Victim As first responding officer, your initial contact with the victim will create a lasting impression with that victim. Make very effort to handle the situation in a nonjudgmental and professional manner. You must be sensitive to any culture, life style, age, gender and/or developmental issues. Initiating the Victim Interview You may need to preface clarifying questions about sensitive issues such as exact body parts involved, sexual activity, consent, or the use alcohol or drugs with an explanation. Examples: "This is going to be difficult and seem strange or blaming. I need to ask you some questions and need the answers in order to investigate the crime properly." “I know it’s hard to talk about what happened, but I need you to tell me exactly what he did to you.” The Victim Interview Develop rapport with the victim and briefly interview him or her when possible to determine the following: Is the victim hurt? (get help if injuries are present) Was a crime committed? Where? Determine the jurisdiction in which it occurred. Who did it? Is the suspect a stranger or an acquaintance? Weapons? Was there a weapon or threat of the use of a weapon. Was there other violence or threat of violence? Does the victim want the presence and assistance of a trauma response or rape crisis advocate? Are there cultural or language issues that may require additional resources? Did the event occur within the last 72 hours (for forensic exam purposes)? STEP 2 If it is possible to leave the victim briefly, you will have some additional tasks to accomplish as soon, as possible: Provide information to other officers Arrange for the protection of the crime scene. Arrange for additional resources to respond to the crime scene and protect it for processing. If applicable in your jurisdiction, request the assistance of a sensitive crime investigator and/or evidence technician. Contact with trauma response unit or Rape Crisis for advocacy if victim is interested. STEP 3 Processing the Crime Scene and Evidence A sexual assault scene may have many items for evidence collection that are biological in nature: pubic hair, semen, blood and saliva. This evidence may be found in or on various items, such as clothing, fingernails, furniture, floor, bedding, grass, condoms and other objects. As with DNA evidence, you must do a thorough evaluation of the scene before marking or taking physical evidence away. Sexual Assault Resources Rape Crisis centers Advocates who assist victims and train law enforcement. SANE Nurses that provide evidentiary exam of victim. WI Coalition against Sexual Assault Organization providing advocacy and education on sexual assault. Investigative Resources Behavioral Unit of the FBI Focused research and examination of offender behaviors in order to develop suspect profiles and suspect lists. Crime Lab technicians Analysts who examine evidence and provide links between suspects and victims Probation and Parole Convicted offenders must comply with conditions after sentencing. These may include no contact with children, the victim, etc… Some searches may be conducted by agents. Registered Sex Offender database Convicted sex offenders must comply with registration requirement after sentencing. Corroborative Statements Critical in the investigation of a sexual assault because the victim is the only witness Packaging Evidence Clean, unused paper bags Use a separate container for each object Usually will receive the evidence at the hospital if victim is there Get the consent form signed then the Sexual Assault Kit should be used by a SANE nurse or a doctor – your will receive it immediately Crime Scenes The victim The suspect Where the assault took place Witnesses The victim Who the victim talked to about the incident Any other witnesses Talk to the suspect last but don’t delay too long… he is a crime scene… Investigate What happened before What happened during What happened after Remember All victims have the right to file a sexual assault complaint You need to make sure that every effort will be made to investigate it Questions?