Guest Post: Survivor-Inspired Prosecution

Today’s guest post comes from Senior Deputy Prosecuting Attorney Patti Powers from Yakima County, Washington. When Patti is not seeking justice for survivors in the courtroom, she is also a national speaker and trainer.

For survivors of sexual assault, regardless of the passage of time, there are no cold cases. Rape is a continuing source of trauma that for many persists for a lifetime. The prosecution of rape is an imperative for survivors and for our communities. Protection of survivors, offender accountability and prevention of re-offense are the goals of prosecution. There is no justice that is indefinitely delayed.

The work of a prosecuting attorney begins and continues with a survivor of rape. Actually, our work as committed prosecutors is inspired by survivors who have come forward to take a stand against the crime that has been inflicted, and who offer their voices to affirm their right to be let alone, to be free from unwanted personal invasion.

Many sexual assault offenders are repeat or serial, and may or may not be known by the victim. Notwithstanding an acquaintance or relationship, however, the offender knows the victim, in a predatory sense. The victim may be assessable to the offender due to relationship or proximity. Regardless of the length or depth of acquaintance, however, the offender is a stranger to the victim at the time of the rape. She thought she knew him, but she did not. This type of “cover,” may also mask a widespread social network with other victims. Without question, analysis of the evidence contained in untested rape kits and investigation of these individual cases is essential to victim and community protection.

Notification of testing or of a DNA hit is an important consideration that must be approached thoughtfully and specifically with each victim. A team response is essential. Prosecution, law enforcement and advocates are in a good position to reflect upon the potential issues presented for the survivor, including passage of time, change in life circumstances and need for privacy. It is important to be guided by the knowledge that rape is a crime that persists across time lines. Advising a survivor of the decision to process her rape kit may very well re-introduce or ignite the trauma with which she has attempted to live. The decision to test should also be accompanied by a commitment to investigate, whenever possible.

Investigation must begin anew with an interview of the victim. The disclosure of rape, regardless of whether it is immediate or delayed, is an acute event, and is the heartbeat of the reality of the crime. Whether the rape occurred months or years ago, it continues for the victim. Rape is a crime without an ending. The psychological evidence that was present when the rape occurred remains and can be accessed through effective interviewing. “Are you able to tell me what happened” is a foundational question in an interview that respects the trauma that has been suffered, and imposes no responsibility on the survivor for the chronological order of aspects of the crime. Reference to victim responses including, but not limited to, fear, frozen fright or shame and withdrawal will provide a wealth of evidence. Inquiry regarding the experience from engaged senses—i.e., sight, hearing, smell, touch, taste—and the victim’s emotional response will also help bring the experience alive in a way to which jurors can relate.

Successful prosecution focuses on offender accountability for victimization. This is an important recognition of the clear fact that the offender caused victimization. The offender’s conduct affected the victim in her ability to disclose, describe trauma and to step forward to the resources of criminal justice.  Whether the victim had suffered prior victimization, whether there was involvement with alcohol or drug intake or abuse, whether there was a prior relationship with the offender, it is critical to observe that the offender in most cases exploits his knowledge of the victim and her vulnerabilities. Rape is a crime that is premeditated to some extent. Focus on the approach and planning of the offender allows us to paint the true picture of a crime that is predatory, and often leads to detection of multiple victims when analyzing the offender’s patterns of conduct and identifying his social networks.

Within untested rape kits is evidence of crimes that have yet to be explored and brought into the light of public scrutiny and incumbent responsibility. Employing the core strategies that have been explored here in broad reference can lead to successful prosecution—survivor-inspired prosecution. This is work we must accomplish.

-By Patti Powers, July 16th, 2014

ENDTHEBACKLOG is a program of the Joyful Heart Foundation to shine a light on the backlog of untested rape kits throughout the United States. Our goal is to end this injustice by conducting groundbreaking research identifying the extent of the nation’s backlog and best practices for eliminating it, expanding the national dialogue on rape kit testing through increased public awareness, engaging communities and government agencies and officials and advocating for comprehensive rape kit reform legislation and policies at the local, state and federal levels. We urge you to learn more about the backlog, where it exists and why it matters. We invite you to take action and support efforts to test rape kits. Help us send the message that we must take rape seriously.

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