Evidentiary Issues in Sex Crimes: Preserving Evidence of Binding

Over the past 16 years, I've worked quite a few cases of sexual assault - either as a criminal profiler for a law enforcement agency or as a forensic scientist and reconstructionist for an attorney. Sometimes these are serial rape cases, where the victim count easily exceeds twenty. Sometimes these are cases involving people who know each other and have a prior relationship. Each involvement is different, with a particular set of questions that require a variety of different skill sets.

With some exceptions, each individual case of sexual assault that I've examined has involved someone contacting the police and the police responding to someone in distress. In a percentage of these cases, police will be responding directly to the crime scene or a nearby location where the victim was discovered. When found, the victim may also be bound, blindfolded, gagged, or otherwise restrained. In these cases, the victim is going to have suffered physical injury from the bindings, has been traumatized by the attack, and can even be in shock - all requiring immediate medical attention, care, and comfort.

When confronted with an injured and traumatized victim that is still bound from their attack, the first duty of care is to their health and safety. The preservation of physical evidence must come second (Savino and Turvey, 2011). That is to say, there is simply no reason to leave a victim in their bindings in order document whether and how these were used in the crime. This can be accomplished at later point, in part, with testimony from first responders, those who removed the bindings, and the victim.

Sufficient documentation can further be accomplished by a gloved officer cutting through bindings to remove them. This should be done while preserving any knots, fasteners, or areas of adhesion. In other words, cutting around these areas so that they can be photographed, examined, and processed for evidence associating it with the victim and the offender (e.g., fingerprints, epithelial cells from saliva, and hairs or fibers on tape; hairs, fibers, and blood, epithelial or skin cells on rope).

The final pieces of documentation are going to be made during the sexual assault exam, where the victim is photographed head-to-toe in order to document all areas of injury, patterns, or transfer evidence associated with their attack and any bindings that were used. This requires deliberate and clear communication between responding officers and forensic examiners so that nothing is missed. It also requires talking to the victim about what happened during the attack, and developing a complete understanding of potential areas where evidence might be found.

For the well-trained investigator or forensic examiner, this sounds basic and it really should. However, there are still officers and responders that do not understand the work-arounds available to them at the crime scene. This can result in decision about evidence collection and preservation that further traumatize the victim -- such as insisting on interviewing the victim at the location, in the room, or even on the bed or mattress where they were sexually assaulted. Or worse.

Consider the case of Col. Russell Williams, the senior air force officer who escalated from fetish burglary to rape and sexual homicide until his arrest in February of 2010. His crimes are described in Staff (2010):

Williams, the former commander of CFB Trenton, was questioned by police in early February, days after he raped and strangled 27-year-old Jessica Lloyd and dumped her body outside Tweed, Ont...

Williams came to investigators' attention when he was stopped at a roadside checkpoint on Feb. 4, when police were comparing tires on SUVs to treads found outside Lloyd's home. Unbeknownst to Williams, police matched the tires on his Nissan Pathfinder to the tread marks. Three days later he was brought in for questioning, with the entire 10-hour interrogation taped by police...

Jessica Lloyd

After expressing concern for his wife, Williams, in a matter-of-fact manner, detailed the gruesome late-January murder of Lloyd, a 27-year-old woman who worked at a bus company in Napanee.

He described breaking into her home and attacking her in her bed.

"I raped her," Williams said in the video.

"A rape can mean a lot of things. What took place?" the investigator countered.

Williams then went on to describe in painstaking detail the various ways he assaulted Lloyd, how he threatened her and placed zip ties around her neck to control her. He also described to police how he made Lloyd model underwear, and photographed her as she did so.

Williams said he then took her to Tweed, where he lived. The day-and-a-half-long nightmare continued with numerous rapes, photo sessions and eventually with Lloyd suffering seizures, begging for her life.

Williams, after telling Lloyd he was taking her to the hospital, finally seemed to tire of the cruel game.

"And as we were walking ... I hit her on the back of the head," he told investigators in the video, in which he often referred to her by her first name as though they were friends.

"I was surprised that her skull gave way. She was immediately unconscious and I strangled her."

After that Williams explained that he hid Lloyd's body in his garage and went to work because he was flying a military plane to California early the next day. He later returned to get rid of her body and clean up the mess.

Cpl. Marie-France Comeau

In the video shown to the courtroom, Williams also described the murder of Comeau, pronouncing her name with the correct French accent.

He admitted breaking into Comeau's home and hiding in her basement, waiting for her to fall asleep, and how she came down to the basement in search of her cat.

"So when she spotted me I had the same flashlight (and) subdued her, brought her upstairs and, uh, strangled her, well more suffocated her with some tape," he said.

Later in the video he admitted raping and photographing Comeau.

Williams explained in the video that he used duct tape to cover Comeau's mouth and nose, until she suffocated.

"I had thought about strangling her earlier...it was a short-lived attempt because she struggled quite a bit. So I decided I had to suffocate her," he said.

The reason he murdered her, he said, was that there was an obvious link to an assault he had committed on a woman who lived near him in Tweed.

For more details regarding this case, see also: Col. Russell Williams: Killer in command?; CBS News/ 48 Hours

Col. Williams' surviving victims have taken legal action (Warmington, 2011). In specific, Laurie Massicotte plans a lawsuit against not only against the former Colonel (who is reportedly still receiving a military pension), his ex wife (to whom the former Colonel transferred some of his assets prior to his conviction), and the Ontario Provincial Police for failing in their duty of car. As detailed in Duffy (2010):

Laurie Massicotte says Ontario Provincial Police officers told her they had to leave her in the harness, fashioned by Williams, until an OPP photographer arrived to take pictures of her in the restraint.

“I was left for five hours, still in my harness, still tied up, naked, lying under a comforter,” Massicotte, 47, told the Ottawa

Citizen in a telephone interview Friday.

“Five hours, no medical attention. I was in total shock. I didn’t know what the heck was going on.”

The OPP, she said, treated her like a criminal in the early hours of the investigation. One officer told her neighbour, Massicotte said, that police suspected she was trying to “copycat” what happened to another sexual assault victim in Tweed, Ont., 12 days earlier. “It was really, really, really bad,” she said.

The allegations, which have not been proven in court, will form part of a lawsuit that Massicotte intends to file against Williams, his wife and the OPP.

Massicotte, of Tweed, said she seeks “substantially more” than $2.5 million in damages.

Her lawyer, David Ross, already has given notice of the lawsuit to the Superior Court of Justice. A formal statement of claim will be filed within the next month, he said.

Ross said it appears the OPP initially did not believe her story, even though she was naked and bound. “I think the police theory was that she was looking for some kind of compensation,” he said. The OPP did not respond to a request for comment on Massicotte’s allegations.

According to the notice of claim filed in the case, Massicotte will argue that the OPP also breached its “duty of care” by failing to warn her that a sexual assault had taken place in her neighbourhood less than two weeks before she was attacked. Similarly, she will argue the police failed to inform her of nearby break-and-enters in which items of female clothing were taken. The incidents dated to September 2007.

Massicotte lived alone in a house three doors away from the cottage owned by Williams and his wife on the shores of Stoco Lake, north of Belleville, in eastern Ontario.

Last October, Williams pleaded guilty to break-and-enter, sexual assault and confinement in connection with his attack on Massicotte.

The ordeal lasted 3-1/2 hours. Williams left her in a makeshift straitjacket – her arms were cinched to her sides – but she still managed to dial 911.

The police told her she would have to stay in the restraint until the ident unit arrived. When photos were finally taken five hours later, Massicotte said she was then allowed to put on a bathrobe, and taken outside for three more hours while police combed her house for evidence.

She went through a lengthy interrogation before an OPP officer “finally confessed to me that this similar situation happened 12 days ago and we didn’t warn anybody about it.”

After the incident, Massicotte said she felt violated and terrorized by Williams, and “betrayed” by the police. She said she now suffers from post-traumatic stress and anxiety. A mother of three – her children do not live with her – Massicotte told the Citizen: “I’m on the verge of a nervous breakdown.” She said she has been unable to work. “I’m basically now a prisoner in my own home. I’m afraid to go outside.”

Though Ms. Massicotte's allegations against the OPP have yet to be proven in court, they raise important questions. The issue of evidence protection vs. rendering victim aid should be a simple matter. For some, however, it is clear that a great deal more training is required before they should be allowed anywhere near potential crimes scenes. Unnecessarily detaining a witness or victim, bound or not, amounts to unlawful imprisonment. Especially if they have been sexually assaulted and are being detained without having been examined by a medical professional for injuries. Under similar circumstances, a victim with internal injuries could have suffered internal bleeding and even died while be held in wait. This is not just poor police work, it defies common sense given the multitude of avenues available for otherwise documenting the evidence.

Then there is the matter of whether the OPP failed in their duty of care with respect to protecting Ms. Massicotte or other potential victims by failing to advise them of the crimes occurring in their area in a timely fashion. In point of fact, many municipalities, when confronted with such lawsuits, claim that they owe no duty of care to a victim or the communities which their officers swear to protect and serve. This through legal representation of course. Perhaps, in such cases, it might be useful to have officers repeat, during sworn testimony, any oaths taken when receiving their police credentials. Or perhaps to have them read the OPP explanation of their community role in crime prevention as stated clearly on their website.

See also my previous post: Investigating Rape: Taking Professional Responsibility

REFERENCES

Duffy (2010)"OPP left Williams victim naked, tied up, she says," Postmedia News, August 20.

Savino, J. and Turvey, B. (2011) Rape Investigation Handbook, 2^nd Ed., San Diego: Elsevier Science.

Staff (2010) "Williams describes murders in taped confession," CTV News, October 20.

Warmington, J. (2011) "Second civil suit pending against killer colonel", Toronto Sun, July 18.