Chapter 10 Sexual Assault (Supplement)
- According to data collected by the National Crime Victimization Survey 2000, the rate of rape and sexual assault fell during 2000. There were 261 rape and sexual assault victimizations per 1,000 persons, down from 383 in 1999. A determination of incidence of rape by age demonstrated that adolescents and young adults continue to be the population most at risk for rape and sexual assault. Among the 12-15 age group, 2.1 persons per 1,000 were victimized; among the 16-19 age group, 4.3 persons per 1,000 were victimized; among the 20-24 age group, 2.1 persons per 1,000 were victimized; among the 25-34 age group, 1.3 persons per 1,000 were victimized; and in the older age groups, less than one person per 1,000 was victimized (BJS June 2001).
- The National College Women Sexual Victimization Study (NCWSV), a National Institute of Justice-funded telephone survey of 4,446 women attending two- or four-year colleges found victimization rates for completed and attempted rape at 35.3 per 1,000 among college women during the academic year 1996-1997. For both completed and attempted rapes, victims knew their offenders in nine out of ten victimizations: 12.8% of completed rapes, 35% of attempted rapes, and 22.9% of threatened rapes took place on a date (Fisher, Cullen, and Turner December 2000).
U.S. Supreme Court Decision: Kansas v. Crane
On January 22, 2002, the U.S. Supreme Court ruled that states could confine violent sexual predators after they have completed their prison term if they show a mental abnormality or personality disorder that inhibits their ability to control dangerous behavior. In an affirmation of the constitutionality of sexual predator civil commitment laws, the court ruled 7-2 that "proof of serious difficulty in controlling behavior" was sufficient grounds for civil confinement of dangerous sexual predators at end of sentence. As of February 2002, Kansas and seventeen other states have passed laws that permit the civil commitment of sexual predators (NCVC 2002).
DNA ANALYSIS BACKLOG ELIMINATION ACT OF 2000
The DNA Analysis Backlog Elimination Act of 2000, Public Law 106-546, authorizes the Attorney General to require persons convicted of violent or sexual crimes in federal courts to provide DNA samples for inclusion in the Combined DNA Index System (CODIS), the nationwide DNA database housed at the FBI. The database is used to compare DNA found at crime scenes with that of convicted offenders with the hope that matches with possible suspects will occur. Public Law 106-546 directs Departments of Corrections to collect DNA samples from incarcerated offenders convicted of violent and sexual crimes to provide DNA samples; and it requires offenders of violent and sexual crimes who are released on probation or parole to cooperate in the provision of DNA samples. The Bill also provides funding to increase the capacity of and improve the ability to collect and process DNA samples at crime scenes, and to process the backlog of DNA samples currently housed in state and local crime laboratories around the country (P.L. 106-546).
Much needed help in the civil legal arena is provided in Division B of VAWA 2000: The Violence Against Women Act, which authorizes the Attorney General to make grants to provide civil legal assistance for victims of domestic violence, stalking, and sexual assault; defines legal assistance to include family, immigration, administrative agency, housing, and protection orders; includes private nonprofits, Indian tribal governments, and law school clinics as eligible grantees; and requires grantees to certify that any person providing legal assistance has completed or will complete training that was developed with a domestic violence or sexual assault coalition or program.
VICTIMS OF TRAFFICKING AND VIOLENCE PREVENTION ACT OF 2000
DIVISION C: AIMEE'S LAW
Aimee's Law is an incentive for states to adopt stricter sentencing for murder, rape, or dangerous sexual offenses given the high rate of recidivism among sexual predators. In cases of repeat offenders of these crimes, the original convicting state is required to pay the costs of prosecution and incarceration of the subsequent offenses. Furthermore, the Attorney General is required to collect and maintain information with respect to each state regarding the:
- Number of convictions during the calendar year.
- Number of convictions of dangerous sexual offense, rape, or murder.
- Number of second or subsequent convictions of dangerous sexual offenses, rape, or murder.
- Percentage of cases in each state in which an individual has been convicted of another such offense in another state (P.L. 106-386).
Research and Practice
DNA EVIDENCE AND RAPE VICTIMS
DNA evidence in the investigation and disposition of sex crimes plays a significant role in convicting the guilty as well as proving the innocence of the wrongly accused. With increased funding from the federal government, more states are updating their violent and sex offender DNA databases and data on biological evidence collected from crime scenes, and they are solving crimes by finding DNA matches through CODIS. Law enforcement, crime scene technicians, victim service providers, nurse examiners, and other emergency room personnel should understand the relevance of DNA evidence in criminal investigations. They should make every effort to be sensitive to the crime victims' concerns and to be aware of the complications that DNA testing can create.
Understanding DNA Evidence: A Guide for Victim Service Providers, a brochure developed by the Office for Victims of Crime (OVC), emphasizes that "the increased role that DNA evidence plays in criminal investigations places greater importance on the ability of victim service providers to understand the potential significance of DNA evidence in their client's cases" (OVC 2001). Victim service providers should be aware of the important points involved in identifying, collecting, transporting, and storing DNA evidence:
- Victims of sexual assault should not change their clothes, shower, or wash any part of their body after the assault.
- Evidence not identified at the crime scene may be lost, contaminated, or downgraded.
- A medical examination should be conducted immediately after the assault, whether or not the victim intends to file a police report, so that the evidence is collected and stored in the event that the victim chooses to take action at a later time.
- It may be necessary to sample the DNA of anyone with whom the victim had consensual intercourse within 72 hours of the assault to account for the different DNA found on the victim. This is information that a rape victim may be reluctant to provide.
- Victim service providers should understand and be able to explain the meaning of the results that occur as a result of DNA testing:
- Inclusion. The DNA profile of a victim or suspect is consistent with the DNA profile found at the crime scene, and the individual is included as a source of evidence.
- Exclusion. The DNA profile of the victim or suspect is inconsistent with the samples collected at the crime scene, and the individual is not included as a donor of evidence. This does not mean that the suspect is innocent of the crime.
- Inconclusive. The DNA profile neither includes nor excludes the individual as a source of biological evidence. The quality of the sample may be poor, or in the case of a gang rape, for example, the DNA sample may contain too many different samples to be reliable as evidence (Ibid.).
POST-CONVICTION DNA TESTING
At the same time, victim service providers should explain to the rape victim that while DNA testing is a valuable investigative tool for identifying and proving the guilt of offenders, situations may develop as a result of DNA testing that cause further discomfort or trauma to the victim. Advanced DNA technology, such as PCR, has made it possible for investigators to retest DNA results that in the past were inconclusive and result in the exoneration of persons wrongfully convicted.
- Considerable skill on the part of the victim advocate will be necessary to ensure that the post-conviction DNA collection protocols cause no further harm or embarrassment to the victim.
- Convicted offenders can request that the crime scene evidence undergo DNA testing, an action that, regardless of the results, will prove upsetting to rape victims and their families. Even though a convicted offender's DNA is later excluded from a crime scene does not prove innocence; in the past few years rape convictions have been overturned as a result of DNA testing.
- Furthermore, when a conviction that has been obtained through the eyewitness testimony of the victim is later vacated as a result of new DNA testing, the proceeding is particularly traumatic. Special services and support for victims and their families may be necessary to help them cope.
The National Institute of Justice sponsored a working group of lawyers, academics, victim advocates, judges, public defenders, and researchers at the Commission on the Future of DNA Evidence to make recommendations on the handling of post conviction requests for DNA testing. Post Conviction DNA Testing: Recommendations for Handling Requests, a report from the NIJ-sponsored Working Group makes the following recommendations on the role of the victim advocate (NIJ 1999).
- A single victim advocate should be chosen to have contact with the victim and family members, preferably someone who has worked with the victim in the past.
- When to notify the victim is a judgment call on the part of the prosecutor and the victim advocate and should be based on the status of the request and the emotional and mental health of the victim. The timing and manner of notification is extremely important when the victim has a history of severe depression or is suicidal.
- If the DNA testing is not possible or turns out to incriminate the applicant, there may be no reason to disturb the victim.
- Victims should be approached with great sensitivity regarding post conviction issues because the knowledge that the person found guilty of the crime is attempting to vacate the conviction will be traumatic.
Updates on status of testing.
- Once notified, victims should be provided with information about the status of the DNA testing, how they will be notified of future events, and what types of victim assistance are available.
- Proper and timely notification should be given to the victim and family members before a motion to release the evidence is made to the court or before there is an opportunity for the victim or the family members to hear the results in the media or other sources (Ibid.).
Testing the victim and third parties.
- In the pursuit of evidence that qualifies additional DNA present at the crime scene, the victim or third parties may be asked to agree to DNA testing. Requests should be made only through the prosecutor or the victim advocate.. Technical aspects of the testing should be explained and the significance of the samples requested. It should be made clear that the samples will be used only to eliminate victim and third party DNA from the evidence examination.
- Although courts are strongly discouraged from ordering victims to provide DNA samples except in last resort, advocates should encourage victims to comply to avoid the trauma of court-ordered testing.
- Allow the victim as much choice as possible in the timing, method, and location for testing. Testing should be carried out by the least invasive method possible.
- Steps should be taken so that the information about the location of the victim and family members remains confidential (Ibid.).
Victim assistance after testing.
- Advocates should prepare the victim for the possibility that the convicted offender will be exonerated.
- Information about testing results should be provided to the victim and family members as soon as they are available with an indication of how the criminal justice system will address the results. Victims should be provided with a thorough explanation of the meaning and consequences of the results.
- The victim should be assured that ambiguous results that do not exonerate the offender will not result in a new trial.
- If the evidence exonerates the convicted offender, the victim and family members will suffer many different emotions:
- Doubt that the individual is innocent.
- Guilt that the individual was wrongly convicted, particularly if the conviction was the result of a mistaken identity.
- Anger and frustration because of revictimization.
- Distress over the challenge to the victim's credibility as a witness.
- Fear because the rapist is free, may return, or is harming others.
- Victim advocates should ensure that counseling resources are available to the victim and family members throughout this traumatic period.
Widespread advanced DNA testing should decrease the number of wrongful rape convictions and prevent the kind of victim trauma and revictimization that occurs as a result. Shared, up-to-date databases will increase the likelihood of identification of true perpetrators, including those persons who are incarcerated for other crimes. In the long term, if DNA testing is fully embraced by the criminal justice system, is adequately funded, and becomes an essential component of every violent crime scene, the investigation of rape cases will become less traumatic for victims and their families.
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