Complex sex crime scandals are not hard to find these days. Especially high profile cases involving public figures, law enforcement officers, and investigations or evidence that just doesn't quite meet the standard required for the courtroom. For example:
-Two former NYPD Officers, Kenneth Moreno and Franklin Mata, were recently found not guilty of raping a 27-year-old drunk woman due to a lack of physical evidence – according to jurors;
-Lauren McAllister, a police detective with the San Diego County Sheriff’s Department was recently arrested on suspicion of interfering with the arrest of a sexual assault suspect;
-A police detective in Staffordshire was recently fired for gross misconduct for having an affair with woman while also leading the investigation into her alleged rape (a circumstance not at all unheard of in the United States);
-A judge in Albuquerque, NM, accused of raping a woman agreed to retire and never to seek a judicial office in New Mexico under a disciplinary order issued Tuesday by the state Supreme Court. This subsequent to his arrest on charges of rape and intimidation of a witness while serving as chief criminal judge in the 2nd Judicial District.
-The Dominique Strauss-Kahn case/ fiasco is still unwinding with ongoing questions about the evidence and the state’s primary witness;
-And even the Duke University Lacrosse Team scandal is back in the news again, as the forensic scientist who conspired with prosecutors to conceal exculpatory DNA evidence failed in his attempt to contest his subsequent termination.
All of these cases need (or needed) the same thing from the sex crime detectives assigned: a comprehensive and impartial investigation. Whether or not this can or has happened becomes a contentious matter for litigation, and often an expensive one. Some of this is avoidable.
The lack of thoroughness in recent high profile police investigations, as well as the partiality of those involved, has rightly caused some to question the way that such investigations are being handled, and what this means for victims of sexual assault that are already under tremendous pressure and scrutiny with respect to bringing criminal allegations forward.
In order to address the issue of best practice in sex crime investigation, and the increasingly unclear responsibilities of the sex crime investigator when training is absent and leadership fails, I spent the better part of the last 12 months working with my co-author, Det. John O. Savino (NYPD, ret.), to update our Rape Investigation Handbook with a second edition. This because, in our estimation, the quality of sex crime investigators and their investigations has dramatically decreased in the last decade.
For myself, this view was culminated in my work on the case of Oregon v. Kevin Driscoll – for the defense. In ruling on admissibility of evidence that tended to utterly discredit the alleged victim’s claims as well as demonstrating the bias and ineptitude of police investigation, the judge made some bizarre statements. Namely he stated that there is no duty on the part of law enforcement to perform a comprehensive investigation, to doubt the statements of alleged victims, or to consider alternate theories of the evidence – let alone collect evidence and have it tested. He also ruled that any evidence contradicting the statements of the alleged victim were a violation of Oregon’s Rape Shield Law and would not be admitted.
Despite this help to the prosecution’s case, the jury acquitted. But the stain of unprofessional conduct remains, as does its endorsement by too many in the courtroom scrambling to protect bad investigators and bad cases that should never have come to trial.
The following is an excerpt from Rape Investigation Handbook, 2nd Ed. (Savino & Turvey, 2011 – Elsevier Science) that deals with the issue of investigator responsibility in sex crime investigation, and the duty of care that law enforcement has with respect to these cases:
Among the primary responsibilities of the sex crime investigator is the determination of whether or not a crime has occurred. Many complaints will have the appearance of a crime, but not every complaint is founded or necessarily results in a criminal charge. This determination requires a thorough investigation, as well as the ability to distinguish between criminal and noncriminal sexual behavior. In other words, investigators must be capable of distinguishing whether a crime has actually occurred, and to do this competently they must know what sex crimes are.
PROFESSIONAL RESPONSIBILITIES
The authors have observed a great deal of organizational confusion regarding the actual responsibilities of law enforcement investigators as they approach criminal investigations. Sex crimes are particularly susceptible to disorganization, and the resulting investigative inaction, for three reasons:
1. Some investigators are often uncomfortable dealing with sex crimes victims because of the intimate nature of the crime or because of their own unresolved personal issues.
2. Some investigators have been trained inappropriately to think that any contact with a victim may result in changes to their story—so they limit contact with the victim and under document the statements that they are able to get—to preserve any future efforts to arrest or prosecute suspects.
3. Some investigators have been trained inappropriately to think that physical evidence is their enemy because it might contradict the statements of the victim—therefore they conduct their investigation as though it is best to leave some or all of the evidence uncollected or untested.
These conditions can result in a culture of sexual assault case avoidance, where investigators willfully deprive themselves of the experience they must accumulate in order to put any good training to work and become better at their job. They also result in a failure of investigators to meet their duty of investigative care and nurture investigative apathy.
This is not some remote or hypothetical notion. For example, a culture of apathy and avoidance with respect to victims of sexual assault has been acknowledged in Milwaukee, Wisconsin, by Police Chief Edward A. Flynn, as reported in Barton (2010b):
Dozens and perhaps hundreds of Milwaukee police officers may not have been adequately trained in how to deal with victims of sexual assault, Chief Edward A. Flynn acknowledged Friday.
Assertions by women that they were mistreated by police after being sexually assaulted by the same man, Gregory Tyson Below, were echoed in a state-funded report released in April and distributed at Flynn’s Friday news conference.
“At least in some segments of our victim population, there is a sense that this police department is less than responsive at the point of first report,” he said.
As a result of the women’s complaints, the department plans to improve its training of rank-and-file officers, he said.
The department provides recruits with 12 hours of training in sexual assault investigation, eight hours in interviewing victims, and 15 hours in cultural competency, some of which addresses the way members of different groups view and react to sexual assault, according to the Police Department. But that training has not always been in effect.
“We have a generation of officers who weren’t exposed to that training,” Flynn said. Further, the department has never provided annual refresher courses in sexual assault investigation for street cops, he said. “Clearly that’s a shortcoming,” he said.
Now that the problem has been identified, annual in-service training will be required for all officers starting in the fall, he said. MPD will work with other police departments and with the city’s Commission on Domestic Violence and Sexual Assault to develop the curriculum, he said.
Members of the department’s Sensitive Crimes Division generally investigate sexual assaults and deal with victims long-term. They receive two days of in-service training every year. Neither the April report nor victims in the Below case criticized sensitive crimes personnel….
But training of rank-and-file officers also is important because usually they are the first ones to talk with victims of sexual assault. Three of the women who accuse Below, who was charged Monday with 32 crimes in connection with assaults against seven different women on the city’s south side, said in a criminal complaint that the police didn’t help them when they first reported assaults:
• One woman said she went to three different MPD district stations in October 2008 to report multiple assaults by Below, but officials kept telling her to go somewhere else.
• In October 2008, police arrived in the middle of an assault against a second woman. While the woman—naked from the waist down and bruised—waited for detectives to return after taking the assailant outside, one of the officers returned and asked her if the incident was a “dope date.” The officer had discovered a drug charge against the woman and seemed not to believe her.
• A third woman said she called police two different times after Below raped her on five separate occasions in 2004 but does not believe the assaults were investigated.
… In another case, records indicate that an officer responded, but there is not a corresponding report on file, Flynn said.
While police officers walk a fine line between being sensitive to victims and trying to get the truth, experts agree that judging a victim’s credibility based on her criminal record or giving victims the runaround is a bad idea….
If street officers don’t treat victims compassionately, a case can fall apart quickly, said Debra Donovan, supervisor of the sexual assault treatment center at Aurora Sinai Medical Center.
Unfortunately, the culture represented by these complaints has persisted with some Milwaukee officers, even after this highly publicized admission from their chief, as discussed in the case example in the next section. Milwaukee is not alone, however. In response to complaints from those representing victims, the New York City Police Department has announced that patrol officers will no longer be allowed to respond first to sex crimes (Parascandolar, 2010):
Patrol officers will no longer be the first to respond to reported sex crimes, leaving the initial interviews to detectives from the special victims unit.
The NYPD, in response to complaints from advocacy groups and rape counselors, also will increase the number of available SVU investigators. Some complained that victims’ allegations too often were ignored or classified as less serious crimes.
In response to the criticism, the Police Department conducted an internal review of how it handled such crimes. The review turned up problems in only 19 of the 1,922 cases. Still, Police Commissioner Raymond Kelly decided to make changes. One of the most persistent complaints from advocates was that patrol officers who interviewed victims at hospitals often weren’t sensitive enough.
“I think that’s a valid concern,” Kelly said Wednesday.
This move by the NYPD is an acknowledgment that they perceive cultural problems with their patrol officers that can only be addressed with drastic measures. This cannot truly solve the problem, however, as it is not being addressed directly. Patrol is not being removed from the equation, rather the responsibility of first response is being shifted somewhere else. It is hoped that this will not result in justice delayed.
Duty of Care
The investigation of reported sexual assaults is the statutory and jurisdictional province of law enforcement agencies; the agency in charge depends on which laws have been reported broken and where. Nobody else has the legal authority to respond, interview witnesses and suspects, collect evidence, or make arrests in these cases. Consequently, responding law enforcement agencies have a duty of care—an obligation to be competent custodians of the criminal investigations they initiate and any evidence that supports or refutes allegations of criminal activity against accused suspects. If an agency or its officers and investigators do not hold or perceive a duty of care, then they are not fit to serve
Primary Responsibilities
The primary responsibilities of the sex crime detective, when responding to a criminal complaint, include:
1. Determining what happened
2. Determining whether or not a crime has taken place
3. Identifying and arresting any criminal perpetrators
Investigators may not assume what happened based on the statements of one party, they may not assume that a crime has actually occurred until those facts have been established, and they must impartially place the cuffs on anyone they determine has broken the law. As explained in Bryden and Lengnick (1997, pp. 1230–1231):
As with all crimes, the police decide whether a reported rape actually occurred, and attempt to determine who committed it. If they want the case to go forward, they “found” the complaint and transmit the file to the prosecutor’s office…. The police must investigate, a task that cannot easily be combined with offering the emotional support that the victim needs. The detective presumably wishes to avoid an injustice to a wrongly accused individual. In addition, for reasons of professional pride, he does his best to avoid looking naive by falling for a story that turns out to be false. Experienced investigators also know that many rape complainants ultimately decline to press charges, sometimes to the dismay of a detective who has worked hard to build a case.
Meeting these responsibilities is best accomplished with a thorough, diligent, and comprehensive investigation. By comprehensive investigation, the authors mean a detailed review of the complainant and their statements; the careful consideration of witness and suspect statements; and the diligent collection and examination of any physical evidence. All of this must be attended prior to making final determinations regarding whether a crime has been committed, and whether probable cause exists to arrest any suspects.
Too often, these responsibilities are implemented in reverse—with suspects arrested first and investigations happening later, if at all. This is backward and may result in the creation of bias, missed suspects and evidence, and then doubt when results of the investigation begin to point away from the person that was initially arrested. Investigators have a duty to refrain from becoming invested in their suspects to the point where they consider making an arrest before a sufficient (or any) investigation has been undertaken. Failure to proceed with the investigation first, and ensure that any arrests are a natural result of that process, can lead to a miscarriage of justice (e.g., a failed prosecution of the factually guilty, or a successful prosecution of the factually innocent).
Investigative Duties
Despite the attitudes and actions of some, the investigator’s goal is not to find reasons or means to dispose of their cases as quickly as possible in order to move on to the next complaint or to get back to the station before the end of their shift or “tour.” Each investigation deserves, and must receive, comprehensive effort before any major decisions can be made. Not every case will receive a so-called “Cadillac investigation,” where everything is done, and done perfectly. Things will get missed and mistakes will be made. But each case can and should get the investigative basics, and every mistake must be corrected if possible.
This section provides some of the basic duties that sex crimes investigators must perform when conducting their investigation. These must be done properly and to completion in order to represent the best investigative effort:
1. Assume that the case will be going to court
The sex crime investigators should be thinking about and preparing for trial from the moment that initial notification is received. Specifically, they should assume that their case will result in a trial and that supervisors, forensic experts, prosecutors, defense attorneys, judges, and juries will scrutinize every decision made. This means adopting a heightened sense of professionalism, thoroughness, and accountability.
2. Interview the officer who made the initial report
The investigator must obtain detailed information about the case from the officer who took the initial complaint. During this interview, the investigator should learn the name, address, and background information of the victim. If the suspect is known, the investigator should obtain background information on this individual as well. If the suspect is a stranger, the investigator should get a detailed physical description.
The investigator must also get a detailed account of everything that the victim said to the responding officer during this initial contact—not in the officer’s words but the victim’s. The investigator must also learn what investigative steps, if any, have already been taken in order to follow up and avoid duplicating effort.
3. Ensure sure the crime scene is secured; determine if there are multiple scenes
The investigator has the responsibility to make sure that each crime scene is being secured until a forensic team can get there and process it.
4. Respond to where the victim is located; conduct a preliminary interview
The preliminary interview with a victim does not have to be extremely detailed. The investigator needs to learn enough to establish whether the elements of a crime are present and to identify any key evidence, suspects, and witnesses. As already mentioned, the investigator should attempt to uncover any details that will assist with processing the crime scene.
Depending on the timing of the initial notification, this interview may take place at the crime scene, the hospital, the victim’s residence, or the residence of a friend or relative. A more thorough interview can take place at a later time in a more appropriate location. However, it is best to conduct this interview almost anywhere but the location where the attack occurred to prevent further emotional trauma and the destruction or alteration of evidence. Additionally, the crime scene unit should be instructed to hold off processing efforts until this interview has been conducted and the information learned can be relayed to them—to avoid missing evidence.
The following information is crucial for effectively processing the scene and recovering everything of value from it the first time:
• Exact location of the alleged assault, for example, bed, couch, bathroom, kitchen, sidewalk, closet, alleyway, or in the bushes.
• Circumstances of the alleged assault: This includes a description of the activities of the victim, for example, walking home from school, jogging in a park, or sleeping in her apartment.
• Time of occurrence: This will assist when canvassing neighbors and nearby business as may be appropriate.
• Victim injuries: Crime scene unit personnel should photograph all injuries, no matter how minor. If they refuse, the investigator should step in and take his or her own photos.
• Items used during the attack by victim and offender, for example, weapons, ligatures, or sexual items and materials.
• Items touched by the offender, for example, computers, purses, televisions, telephones, and toilets. These should be examined for trace evidence and seized to corroborate the victim’s story and help establish the identity of the offender if necessary.
• Possible location of bodily fluids, for example, blood, semen, saliva, and excrement.
• Point of entry into the scene, and exit, if applicable.
• Detailed description of the suspect: This includes suspect physical characteristics, clothing, and smells such as alcohol, cigarette smoke, perfume, or cologne. This information should be distributed to area patrol units immediately.
All of the information gathered should be relayed to crime scene unit personnel to educate their search for, and examination of, physical evidence associated with the attack.
It is likely that the investigator will be responding to a hospital or clinic where the victim is receiving medical care and undergoing forensic examination protocols (see Chapter 12: Sexual Assault Examination and Reconstruction). In these instances, the investigator must take the opportunity to confer with the medical staff examining the victim to ensure that all necessary exams will be conducted. Not every hospital is staffed properly to conduct a sexual assault examination, and not everyone holding the job title of “sexual assault nurse examiner” is necessarily knowledgeable or experienced regarding the tasks at hand. It is always best to confirm his or her intentions rather than to assume a proper job will be done.
5. Respond to the crime scene; interview any witnesses and officers present
This presupposes that responding officers have met their obligations and maintained both the scene and any witnesses nearby. Regardless, there is no excuse for failing to attend the scene, secure or not. The investigator should interview everyone present and note the lighting conditions and location of any obvious activity or items of evidence. The investigator must also conduct a search for additional witnesses or surveillance cameras in and around the area where the crime occurred. Again, this will be covered in further detail in Chapter 5: Investigative Crime Scene Management. The investigator should also attempt to identify the first person that the victim told about the assault, commonly referred to as an outcry witness, and interview that person.
6. Secure warrants; confer with the forensic team
The sex crimes investigator has a responsibility to make sure any and all potentially related evidence is recovered. This carries with it the need to secure any search warrants before crime scene processing efforts can begin—when necessary. Conferring with the forensic team is therefore a requirement.
At this point, the sex crimes investigator should be the one who possesses the most complete picture of the case, to include the details of the assault, the actors involved, and the evidence they may have left behind. The investigator must make the forensic team aware of any specific items of evidence to recover and any tests that should be performed. It is the investigator’s responsibility to make sure that pertinent evidence is recovered properly and to ensure that a proper chain of custody is maintained for each item. The investigator is also ultimately responsible for making sure that the evidence from his or her case is submitted to a laboratory for testing and for explaining what tests should be conducted. This will be explained in further detail in Chapter 6: Crime Scene Investigation in Sexual Assaults.
7. Make a case book; keep and maintain all tips and leads
The sex crimes investigator has a responsibility to keep and maintain a “book” that contains details on every interview conducted, every item of evidence tested, every tip received, and every lead that is developed. All of the information in this book must be continuously updated and reviewed. Every lead that is developed from the information within must be followed up on.
8. Ensure that appropriate identification procedures are used
When a good suspect is developed, the sex crimes detective will be held accountable for any irregularities or improprieties that may be found in subsequent identification efforts. See Chapter 9: Eyewitness Reports, Identifications, and Testimony.
9. Keep accurate and legible notes during the investigation
Note taking is the foundation of a good investigation. It should be accurate, comprehensive, and chronological. Note taking helps coordinate the investigation, keeps it on track, refreshes the memory as needed, and helps structure the case for presentation in court.
10. Keep the victim informed
It is the investigator’s responsibility to keep and maintain a professional working relationship with the victim from the outset of a case to its conclusion. The investigator must respond to the victim’s questions in a timely fashion, keep him or her informed with respect to developments in the case, and make sure that he or she understands what will be needed from him or her at different points along the way.
As already mentioned, the investigator’s most basic responsibility is to conduct a thorough and diligent investigation. To do this right, investigators must learn as much as they can about the crimes they have been assigned to investigate. The investigator should strive to become an expert in the field he or she has been assigned to investigate, whether it be a sex crimes squad, homicide squad, economic crimes, or general crimes. The victim, as well as the accused, is entitled to the best investigative effort that the investigator and agency can provide.
REFERENCES
Barton, G. (2010a). Accused serial rapist faces 15 new counts. Milwaukee Journal-Sentinel, September 28.
Barton, G. (2010b). Police to improve sensitivity training. Milwaukee Journal-Sentinel, July 9.
Bryden, D., and Lengnick, S. (1997). Rape in the criminal justice system. Journal of Criminal Law and Criminology, 87;1194–1384, Summer.
Parascandola, R. (2010). SVU investigators to be first on sex-crime scenes, NYPD says. New York Daily News, December 23.
Brent E. Turvey, MS (Forensic Science) is a senior partner with Forensic Solutions, LLC, author of numerous forensic texts on the subject of crime reconstruction, criminal profiling, and forensic victimology, and specializes in the examination of cases involving violent sexual behavior - including rape and sexual homicide. He can be reached at bturvey@forensic-science.com.
