Case 9:14-cv-00038-DLC Document 1 Filed 02/11/14 Page 1 of 19

Natasha Prinzing Jones Thomas J. Leonard Randy J. Tanner BOONE KARLBERG P.C. 201 West Main, Suite 300 P. O. Box 9199 Missoula, MT 59807-9199 (406) 543-6646 npjones@boonekarlberg.com tleonard@boonekarlberg.com rtanner@boonekarlberg.com Attorneys for Plaintiffs

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA MISSOULA DIVISION

FRED VAN VALKENBURG, in his official capacity as County Attorney for Missoula County, Montana, and COUNTY ATTORNEY’S OFFICE FOR MISSOULA COUNTY, MONTANA,
Plaintiffs,

Cause No. ________________
COMPLAINT FOR DECLARATORY JUDGMENT

v.

UNITED STATES DEPARTMENT OF JUSTICE; ERIC H. HOLDER, Jr., in his official capacity as Attorney General, United States Department of Justice; MICHAEL W. COTTER, in his official capacity as United States Attorney for the District of Montana, United States Department of Justice; JOCELYN SAMUELS, in her official capacity as Acting Deputy Assistant Attorney General for the Civil Rights Division, United States Department of Justice; JONATHAN M. SMITH, in his official capacity as Chief, Special Litigation Section, Civil Rights

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Division, United States Department of Justice; and JOHN DOES 1–10, in their official capacities as officials with the United States Department of Justice,
Defendants.
Missoula County Attorney Fred Van Valkenburg and the County Attorney’s Office for Missoula County, Montana, seek a judgment declaring that the defendants do not have the authority to investigate or sue the Missoula County Attorney or his office under 42 U.S.C. § 3789d and 42 U.S.C. § 14141.
The defendants allege the County Attorney’s Office has discriminated in its prosecution of sexual assault crimes. Those allegations are false, unfounded, and the defendants have exceeded their statutory and constitutional authority. Nevertheless, the defendants continue to impose costly and unnecessary demands on the County Attorney and the citizens of Missoula County.
PARTIES 1. Fred Van Valkenburg is the County Attorney for Missoula County, Montana (“County Attorney”). The County Attorney serves as the publiclyelected legal advisor for the County and is responsible for prosecuting
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criminal matters within the County. The County Attorney’s specific duties are codified at Montana Code Annotated §§ 7–4–2701 to 7–4–2717.
2. The County Attorney’s Office for Missoula County, Montana, (“County Attorney’s Office”) is a political subdivision of Missoula County, Montana. The County Attorney’s Office assists the County Attorney in carrying out his statutory duties.
3. The U.S. Department of Justice is the United States federal executive department responsible for the enforcement of law and administration of justice. Eric H. Holder, Jr., named here in his official capacity, is Attorney General of the United States. Michael W. Cotter, named here in his official capacity, is the United States Attorney for the District of Montana. Jocelyn Samuels, named here in her official capacity, is Acting Deputy Assistant Attorney General for the United States Department of Justice’s Civil Rights Division. Jonathan M. Smith, named here in his official capacity, is Chief of the Special Litigation Section for the United States Department of Justice’s Civil Rights Division; and John Does 1–10, in their official capacities are officials with the United States Department of Justice whose identities are currently unknown to the plaintiffs.
JURISDICTION 4. The Court has subject matter jurisdiction under 28 U.S.C. § 1331 because the plaintiffs’ claims arise under federal law.
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5. The Court has jurisdiction to issue a declaratory judgment under 28 U.S.C. § 2201 because this case involves an “actual controversy” within the Court’s jurisdiction.
6. Sovereign immunity does not bar this lawsuit against the United States Department of Justice because the plaintiffs are seeking nonmonetary relief. See 5 U.S.C. § 702; Presbyterian Church (U.S.A.) v. United States, 870 F.2d 518 (9th Cir. 1989); but see EEOC v. Peabody W. Coal Co., 610 F.3d 1070 (9th Cir. 2010).
7. Sovereign immunity does not bar this lawsuit against the individually-named defendants because, among other reasons, the individual defendants have exceeded and are threatening to further exceed their statutory authority by investigating and threatening to sue the plaintiffs. See Dugan v. Rank, 372 U.S. 609 (1963); Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682 (1949).
BACKGROUND 8. In an undated letter delivered to the Missoula County Attorney and Missoula Board of County Commissioners on April 30, 2012, then-Assistant Attorney General Thomas Perez1 and United States Attorney Michael Cotter announced that their offices would be commencing an investigation of the Missoula County Attorney’s Office under the Violent 1 Assistant Attorney General Perez was succeeded by Acting Assistant Attorney General Samuels, who is named as a defendant in this case.
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Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, 108 Stat. 1796, see 42 U.S.C. § 14141, and the Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. No. 90-351, 82 Stat. 197, see 42 U.S.C. § 3789d.
9. Assistant Attorney General Perez and United States Attorney Cotter made a public announcement of the investigation to the press on May 2, 2012.
10. Assistant Attorney General Perez and United States Attorney Cotter alleged that the investigation was the result of the County Attorney’s Office’s “fail[ure] to investigate or prosecute sexual assaults against women because of their gender or in a manner that has a disparate impact on women.”
11. The County Attorney’s Office does not and has not discriminated in its prosecution of sexual assault cases, whether allegations of sexual assault are made by men or women.
12. Over the past year-and-a-half, the County Attorney’s Office has corresponded with the defendants on numerous occasions, asking them to identify what evidence they have that shows the County Attorney’s Office has discriminated in its prosecution of sexual assault cases or otherwise violated any person’s civil rights. They have provided no evidence.
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13. In this same correspondence, the County Attorney’s Office repeatedly asked the defendants to articulate the basis for their authority to investigate the County Attorney’s Office under 42 U.S.C. § 3789d or 42 U.S.C. § 14141. They have provided no justifiable response.
14. The defendants’ investigation of the County Attorney’s Office is the first time officials within the Department of Justice have ever investigated a local prosecuting attorney’s office for an alleged violation of 42 U.S.C. § 14141. In addition, the plaintiffs are unaware of any investigation by officials within the Department of Justice of a local prosecuting attorney’s office for an alleged violation of 42 U.S.C. § 3789d.
15. The defendants have repeatedly demanded that the County Attorney provide them with confidential criminal justice information regarding sexual assault cases, as well as numerous other documents and records. The defendants have also demanded that the County Attorney restructure his office by hiring additional staff and by adopting a variety of costly and unnecessary protocols and policies.
16. On December 11, 2013, the defendants hand-delivered a proposed settlement agreement demanding compliance with more than 20 requirements that would impose significant costs on Missoula County taxpayers. The agreement’s requirements would cost Missoula County hundreds of thousands of dollars annually.
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17. The defendants informed the County Attorney that if he did not comply with their investigation and demands, they would file a lawsuit against him and seek a court order compelling compliance.
18. The County Attorney responded to the defendants’ proposed settlement agreement by indicating he would be willing to assist the Missoula Police Department and the University of Montana Office of Public Safety in meeting their obligations under their respective agreements with the Department of Justice, but he would not otherwise comply with the defendants’ unlawful and unsupported demands.
STANDING 19. In order for a plaintiff to have standing under the Declaratory Judgment Act, the plaintiff must show there exists “a case of actual controversy.” 28 U.S.C. § 2201. “Basically, the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 127 (2007) (citations and footnote omitted); accord Ass’n for Molecular Pathology v. Myriad Genetics, Inc., 133 S. Ct. 2107, 2115 n.3 (2013). “[W]here threatened action by government is concerned, we do not require a plaintiff to expose himself to
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liability before bringing suit to challenge the basis for the threat . . . .” MedImmune, 549 U.S. at 128–29 (emphasis original).
20. Missoula County Attorney Fred Van Valkenburg and the County Attorney’s Office for Missoula County, Montana, have standing to bring this action under the Declaratory Judgment Act. There exists a “substantial controversy” because the defendants have made repeated, intrusive demands on the County Attorney and his office and continue to threaten a lawsuit if he and his office do not fully cooperate with the defendants’ unlawful investigation and demands. The defendants have provided no evidence to support their discrimination allegations and have failed to provide any support for their purported authority for the investigation and threatened lawsuit.
21. The controversy is of “sufficient immediacy” because the defendants demanded, as recently as December 2013, that the plaintiffs comply with more than 20 conditions in order to avoid litigation. The defendants have repeatedly threatened to sue the plaintiffs if they do not comply with the defendants’ demands.
22. The County Attorney is not required “to expose himself to liability before bringing suit to challenge the basis for [that] threat.” MedImmune, 549 U.S. at 128–29. “[P]utting the challenger to the choice between abandoning his rights or risking prosecution—is ‘a dilemma that it was the very purpose of
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the Declaratory Judgment Act to ameliorate.’” Id. (quoting Abbott Labs. v.

Gardner, 387 U.S. 136, 152 (1967)); see also Steffel v. Thompson, 415 U.S. 452

(1974) (holding that a plaintiff need not risk prosecution under a statute

before seeking a declaratory judgment regarding the enforceability of that

statute).

23. The defendants’ unsupported actions have resulted in a

significant drain on the resources of the County Attorney’s Office—resources

that were already stretched thin—and have diverted precious time and money

from the important duties the County Attorney’s Office is tasked to perform

by Missoula County’s citizens.

COUNT I: DECLARATORY RELIEF

A.

ABSOLUTE PROSECUTORIAL IMMUNITY

24. The defendants have repeatedly asserted that they have authority

to investigate and sue the plaintiffs for alleged civil rights violations under

42 U.S.C. § 14141 and 42 U.S.C. § 3789d.

25. There is an actual controversy as to whether the defendants may

investigate or sue the plaintiffs under the doctrine of absolute prosecutorial

immunity.

26. The doctrine of absolute prosecutorial immunity bars the

defendants from investigating or suing the plaintiffs under 42 U.S.C. § 14141

or 42 U.S.C. § 3789d.

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27. The federal common-law doctrine of “absolute prosecutorial immunity” is based on “the same purpose that underlies the immunity of judges and grand jurors acting with the scope of their duties: to protect the judicial process.” Milstein v. Cooley, 257 F.3d 1004, 1007 (9th Cir. 2001) (citing Burns v. Reed, 500 U.S. 478, 485 (1991); Imbler v. Pachtman, 424 U.S. 409, 422–23 (1976)).
28. The doctrine of absolute prosecutorial immunity immunizes a prosecuting attorney from claims that arise out of the prosecuting attorney’s role as an advocate for the State. Milstein, 257 F.3d at 1008.
29. When Congress passes statutes—such as 42 U.S.C. § 14141 or 42 U.S.C. § 3789d—that might facially apply to conduct of prosecuting attorneys, Congress does so with “knowledge of then-existing common law immunities . . . .” Id. at 1007 (citing Burns, 500 U.S. at 484; Imbler, 424 U.S. at 418; Tenney v. Brandhove, 341 U.S. 367, 376 (1951)). “[T]he lack of an explicit abrogation of these immunities has been interpreted as preserving them.” Id. (citing Burns, 500 U.S. at 484; Imbler, 424 U.S. at 418; Tenney, 341 U.S. at 376).
30. Congress did not abrogate absolute prosecutorial immunity in passing either 42 U.S.C. § 14141 or 42 U.S.C. § 3789d.
31. The United States Supreme Court and the United States Court of Appeals for the Ninth Circuit have both held “a prosecutor has absolute
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immunity for the decision to prosecute a particular case and for the decision not to prosecute a particular group of cases.” Botello v. Gammick, 413 F.3d 971, 976 (9th Cir. 2005) (citations omitted, citing Burns, 500 U.S. at 486); see also Van de Kamp v. Goldstein, 555 U.S. 335, 344–48 (2009) (holding that absolute prosecutorial immunity also applies to administrative functions that are directly connected to the prosecution of a criminal case).
32. The Department of Justice itself frequently and successfully relies on the doctrine of absolute prosecutorial immunity. When its prosecutors are sued for alleged civil rights violations in their prosecutions of criminal cases, courts universally conclude that the prosecutors are shielded by absolute prosecutorial immunity. See e.g. Jones v. Yanta, 610 F. Supp. 2d 34, 42 (D.D.C. 2009) (citing cases); Moore v. Motz, 437 F. Supp. 2d 88, 92 (D.D.C. 2006); Darwich v. U.S. Dep't of Justice, 13–CV–10757–DT, 2013 WL 5775392, at *4 (E.D. Mich. Oct. 25, 2013); Deleston v. U.S. Dep't of Justice, 6:10–444–DCN–WMC, 2010 WL 6872294, at *3 (D.S.C. Mar. 15, 2010). The Department successfully asserts this defense even when its prosecutors are alleged to have unconstitutionally concealed exculpatory evidence or manipulated evidence. Id.
33. The County Attorney’s Office does not prosecute sexual assault cases in a discriminatory manner. Regardless, the doctrine of absolute
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prosecutorial immunity bars the defendants from investigating or suing the

plaintiffs for how they prosecute a particular group of cases. See id.

34. The plaintiffs are therefore entitled to a declaration that the

doctrine of absolute prosecutorial immunity bars the defendants from

investigating or suing the plaintiffs under 42 U.S.C. § 14141 or

42 U.S.C. § 3789d.

B.

42 U.S.C. § 14141

35. Even in the absence of absolute prosecutorial immunity,

42 U.S.C. § 14141 does not permit investigation of or a lawsuit against the

plaintiffs.

36. There is an actual controversy as to whether the defendants may

investigate or sue the plaintiffs under 42 U.S.C. § 14141.

37. 42 U.S.C. § 14141 provides:

It shall be unlawful for any go vernmental authority, or any agent thereof, or any person acting on behalf of a governmental authority, to engag e in a patter n o r practice of conduct by law enforcement officers or by officials or employees of any governmental agency with responsibility for the admin istration of juvenile justice or the incarcer ation of juveniles that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States.

38. The defendants have argued that 42 U.S.C. § 14141 applies to the

plaintiffs because they are “law enforcement officers.”

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39. Prosecutors are not “law enforcement officers” within the meaning of 42 U.S.C. § 14141.
40. Indeed, when its own prosecutors are sued for alleged improper conduct, the Department successfully argues that its prosecutors are not “investigative or law enforcement officers,” thereby shielding them from potential liability under the Federal Tort Claims Act. See e.g. Tri-State Hosp. Supply Corp. v. United States, 142 F. Supp. 2d 93, 98 (D.D.C. 2001), reversed on other grounds, 341 F.3d 571 (D.C. Cir. 2003); see also Trupei v. United States, 304 Fed. Appx. 776 (11th Cir. 2008); Moore v. United States, 213 F.3d 705 (D.C. Cir. 2000).
41. The defendants have never investigated or sued a prosecuting attorney’s office under 42 U.S.C. § 14141.
42. The legislative history of 42 U.S.C. § 14141 shows that it was intended to apply to police departments or sheriff’s departments but not a prosecuting attorney’s office.
43. The United States Department of Justice has consistently interpreted 42 U.S.C. § 14141 as applying only to police departments or sheriff’s departments.
44. Since the plaintiffs are not “law enforcement officers” in the context of 42 U.S.C. § 14141, the defendants do not have the authority to
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investigate or sue the plaintiffs, or any local prosecutor, under 42 U.S.C.

§ 14141.

45. The plaintiffs are therefore entitled to a declaration that

42 U.S.C. § 14141 does not provide the defendants with authority to

investigate or sue the plaintiffs.

C.

42 U.S.C. § 3789d

46. Even in the absence of absolute prosecutorial immunity,

42 U.S.C. § 3789d does not permit investigation of or a lawsuit against the

plaintiffs.

47. There is an actual controversy as to whether the defendants may

investigate or sue the plaintiffs under 42 U.S.C. § 3789d.

48. 42 U.S.C. § 3789d prohibits “discrimination . . . in connection with

any programs or activity funded in whole or in part with funds made available

under [Title 42, Chapter 46].” 42 U.S.C. § 3789d(c)(1).

49. 42 U.S.C. § 3789d further states: “Nothing in this chapter or any

other Act shall be construed to authorize any department, agency, officer, or

employee of the United States to exercise any direction, supervision, or

control over any police force or any other criminal justice agency of any State

or any political subdivision thereof.” 42 U.S.C. § 3789d(a).

50. The defendants nevertheless allege they have authority to

investigate, sue, and impose requirements on the County Attorney and his

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office under 42 U.S.C. § 3789d because the County Attorney’s Office has received federal funds.
51. The plaintiffs have not received any funds under Title 42, Chapter 46 for prosecution of sexual assault cases. During the time period relevant to this complaint, Missoula County received federal funding from a $200,000 grant related to veteran mental health and substance abuse concerns. The plaintiffs did not receive any of the funds made available from this grant. The plaintiffs were awarded a federal grant of $7,000 aimed at juvenile delinquency titled “JDAI (Juvenile Detention Alternatives Initiative) & Juvenile System Improvement.” The plaintiffs did not receive any of the funds made available from this grant but only administered the grant. Finally, the plaintiffs received $19,757 of federal funding as a sub-grantee of a larger grant awarded to the Missoula County Sheriff, which was used to fund a drugcrimes paralegal position. None of the funds made available from this subgrant were spent in any manner for the prosecution of sexual assault cases.
52. The defendants have not shown whether any federal grant was awarded to the County Attorney’s Office under Title 42, Chapter 46, which is a prerequisite for the enforcement of 42 U.S.C. § 3789d.
53. Even assuming the grants were awarded under Title 42, Chapter 46, the defendants do not have the authority to investigate or sue the plaintiffs under 42 U.S.C. § 3789d because that statute applies only to
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“discrimination . . . in connection with any programs or activity funded in whole or in part with funds made available under [Title 42, Chapter 46].” (emphasis added).
54. There is no connection with the discrimination alleged by the defendants and any federal funds the plaintiffs have received. The alleged discrimination involves the prosecution of sexual assault cases, but the alleged federal funding relates to veteran mental health and substance abuse, juvenile delinquency, and drug crimes.
55. Since the alleged discrimination has no connection with federal funds that the plaintiffs have received, the defendants do not have the authority to investigate or sue the plaintiffs under 42 U.S.C. § 3789d.
56. The defendants’ actions are unlawful attempts to “exercise . . . direction, supervision, or control over” the County Attorney and his office. See 42 U.S.C. § 3789d(a).
57. Further, the defendants have failed to comply with the notice and procedural requirements of 28 C.F.R. Part 42, Subpart D.
58. The plaintiffs are therefore entitled to a declaration that 42 U.S.C. § 3789d does not provide the defendants with authority to investigate or sue the plaintiffs.
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D. U NITED STATES CONSTITUTION 59. The Constitution “divides power among sovereigns and among branches of government precisely so that we may resist the temptation to concentrate power in one location as an expedient solution to the crisis of the day.” New York v. United States, 505 U.S. 144, 187 (1992). “The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policymaking is involved, and no case-by-case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.” Printz v. United States, 521 U.S. 898, 935 (1997). 60. There is an actual controversy as to whether the defendants may investigate or sue the plaintiffs under the United States Constitution. 61. The defendants have levied unsupported allegations of unconstitutional conduct and have exceeded their own jurisdiction in an attempt to unconstitutionally commandeer an elected local official, the County Attorney, into implementing a federal program for handling sexual assault cases. 62. As applied to the plaintiffs, the defendants’ invocation of 42 U.S.C. § 14141 and 42 U.S.C. § 3789d violates the Tenth Amendment.
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63. The plaintiffs are therefore entitled to a declaration that the defendants are barred from investigating or suing the plaintiffs under the United States Constitution.
COUNT II: ATTORNEY’S FEES 64. 28 U.S.C. § 2202 provides the Court with discretion to award attorney’s fees, costs, and expenses to the prevailing party in a declaratory judgment action. The plaintiffs respectfully request that the Court award the plaintiffs their attorney’s fees, costs, and expense.
DEMAND FOR RELIEF For the reasons above, Fred Van Valkenburg, County Attorney for the County of Missoula, Montana, and the County Attorney’s Office for Missoula County, Montana, respectfully request the Court declare that the defendants have no authority to investigate, issue findings, or sue the Missoula County Attorney or his office, under 42 U.S.C. § 14141 or 42 U.S.C. § 3789d for alleged discrimination in how the County Attorney or his office handle and prosecute criminal cases because: a. the doctrine of absolute prosecutorial immunity bars the defendants from investigating or suing the County Attorney or his office, b. 42 U.S.C. § 14141 does not provide the defendants with authority to investigate or sue the County Attorney or his office, c. 42 U.S.C. § 3789d does not provide the defendants with authority to investigate or sue the County Attorney or his office, and
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d. the United States Constitution bars the defendants from investigating or suing the County Attorney or his office. The plaintiffs also request that the Court award the plaintiffs their
reasonable attorney’s fees and any other equitable relief that the Court deems just.
Dated this 11th day of February 2014.

/s/

Natasha Prinzing Jones

Natasha Prinzing Jones

Thomas J. Leonard

Randy J. Tanner

BOONE KARLBERG P.C.

Attorneys for Plaintiffs

19

 
 Department of Justice Office of Public Affairs
FOR IMMEDIATE RELEASE Monday, May 11, 2015
Justice Department Announces Missoula Police Department Has Fully Implemented Agreement to
Improve Response to Reports of Sexual Assault
The Department of Justice announced today that the Missoula, Montana, Police Department (MPD) has fully implemented the requirements of its agreement with the department to improve the MPD’s response to reports of sexual assault. The agreement, which was entered into in May 2013, resolved part of the department’s comprehensive investigation of the response by the Missoula criminal justice system and the University of Montana to sexual assault. Thomas R. Tremblay, the independent reviewer who determines whether the terms of the agreement have been met, has determined, and the department has agreed, that the MPD has met all of its obligations under the agreement and achieved the overall purpose of the agreement.
The purpose of the agreement between the department and the MPD was to better protect and vindicate the rights of sexual assault victims by transforming the MPD’s response to allegations of sexual assault. To do this, the agreement required significant changes to the police department’s policies, practices and supervision. These changes promote more reliable sexual assault investigations, and effective, nondiscriminatory law enforcement and community support for victims, the police department and its officers. The MPD’s implementation of the agreement has resulted in a host of historic advances in the Missoula response to sexual assault, including the following:
•! creation of a new Special Victims’ Unit in the MPD focusing on sex crimes cases, and an interview room specifically designed for interviews with victims of sexual assault;
•! extensive specialized training for first responders and detectives in the response to sexual assault;
•! development and institution of an external review panel – one of the first of its kind – to review closed sexual assault cases for investigative comprehensiveness and indications of gender bias;
•! completion of an audit of the community-wide response to sexual assault – one of the first community audits to focus exclusively on sexual assault – including all of the key law enforcement agencies, advocacy organizations and medical service providers serving victims of sexual assault in Missoula County;
•! community advocates reporting better communication and coordination with local law enforcement than ever before; and
•! victim surveys indicating significant satisfaction with police officers’ and detectives’ treatment of victims reporting sexual assault to law enforcement.
“Our agreement with the Missoula Police Department following our investigation into the handling of sexual assault complaints made by women in Missoula has been a catalyst for powerful changes in both the law enforcement and the community’s coordinated response to sexual assault,” said Principal Deputy Assistant Attorney General Vanita Gupta of the Civil Rights Division. “We are grateful for the efforts of MPD and the entire Missoula community because, as a result of these reforms, the women of Missoula are safer, more trusting of the criminal justice system, and subject to more fair and respectful treatment by local law enforcement. Missoula’s police department had the courage and leadership to acknowledge that

it had a problem and to address it, and as a result, is poised to become a model for communities struggling with these issues around the country.”
“We commend the Missoula Police Department and the city of Missoula for the leadership and commitment that they have demonstrated to transform the way in which their city police department responds to reports of sexual assault,” said U.S. Attorney Michael Cotter of the District of Montana. “We also recognize and appreciate the hard work that the detectives and officers of the Missoula Police Department have put into carrying out these reforms. In so doing, they have carried out the highest ideals of public service, making the safety and civil rights of their community a top priority, and their efforts should be an inspiration to us all.”
The full implementation of the department’s agreement with the MPD marks the first completion of the series of agreements stemming from the department’s multi-pronged investigation, launched in May 2012, regarding the handling of sexual assault complaints made by women in Missoula. The investigation, conducted under the Violent Crime and Law Enforcement act of 1994, the Safe Streets Act, Title VI of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972, evaluated the response to sexual assault at the University of Montana at Missoula, the University of Montana Police Department (UMPD), the MPD, and the Missoula County Attorney’s Office. The department entered into agreements with the university, the UMPD and the MPD in May 2013, to resolve findings related to those parties and address deficiencies in their response to sexual assaults. The department, together with the Montana Attorney General’s Office, entered into agreements regarding the Missoula County Attorney’s Office the following year, in June 2014. The implementation of those agreements has already improved these parties’ response to sexual assaults.
These agreements, as well as a description of the department’s work regarding sexual assault in Missoula, are available at: http://www.justice.gov/crt/about/spl/. The independent reviewer’s final compliance report, describing in detail his determination that the MPD has successfully implemented the department’s agreement, is forthcoming, and will be available on the department’s website upon its release.
!

 
 Tim Fox Attorney General

STATE OF MONTANA 

DEPARTMENT OF JUSTICE 

AGENCY LEGAL SERVICES BUREAU
1712 Ninth Avenue P.O. Box 201440
Helena, MT 59620-1440

Montana Attorney General's Office

SEMI-ANNUAL REPORT 

December 2014

MOU Requirements:

Missoula County Attorney's Office and the Handling of Sexual Assault Cases

• Montana Attorney General's Office SEMI-ANNUAL REPORT 
 December 2014 


• 


TABLE OF CONTENTS:
• Message from Montana Attorney General Tim Fox
• Memorandum of Understanding between Montana Attorney General's Office, Missoula County Attorney's Office, Missoula County and United States Department of Justice
• Agreement between Montana Attorney General's Office and Missoula County Attorney's Office
• Missoula County Attorney's Office Status Report -Dated December 9, 2014
• Assurances to Requirements in Memorandum of Understanding
• Memorandum of Understanding between Missoula County Attorney's Office and Missoula County Sheriff s Office
• Memorandum of Understanding between Missoula County Attorney's Office and the Missoula Police Department
• Spreadsheet of Missoula County Sexual Assault Reviews
• Spreadsheet of Missoula County Sexual Assault Referrals
• Missoula County Attorney's Office Sexual Assault Policy and Procedure Manual

• 


Message from Montana 
 Attorney General 

Tim Fox 


•
 Tim Fox Attorney General

STATE OF MONTANA 

DEPARTMENT OF JUSTICE 

AGENCY LEGAL SERVICES BUREAU
1712 Ninth Avenue P.O. Box 201440
Helena, MT 59620-1440

MESSAGE FROM TIM FOX, ATTORNEY GENERAL OF MONTANA

• •

On June 10,2014, I signed a memorandum of understanding (MOU) with Missoula County, the Missoula County Attorney's Office (MCAO), and the United States Department of Justice (USDOJ) resolving USDOJ's investigation of the MCAO's handling of sex assault prosecutions. This MOU outlined a cooperative agreement between the Montana Attorney General's Office (MTAGO) and the MCAO to ensure the success of the MCAO's efforts to improve its response to sexual assault. As part of the agreement, the MTAGO and the MCAO separately agreed to accomplish a number of specific tasks. These tasks and deliverables, contained in a separate Agreement between the MTAGO and the MCAO, signed on June 10,2014, included the following:
• The MCAO agreed to develop written policies and guidelines for the handling of sexual assault cases, to be approved by the MTAGO.
• The MCAO agreed to provide annual training to its prosecutors in best practices for handling sexual assault cases.
• The MCAO agreed to adopt various ongoing practices in sexual assault cases, including in person meetings with complaining witnesses, improved use and communication with victim advocates, designated sex assault prosecutors, and specialized sex assault investigation assistance.
• The MCAO agreed to specific steps to improve communication with law enforcement and community partners, including entering into MOUs with local law enforcement regarding the handling of sex assault cases, collecting sex assault specific data, and surveying victims and victim advocates.
• The MCAO agreed to provide victim advocates with access to their JustWare case tracking system.

TELEPHONE: (406) 444-2026 FAX: (406) 444-4303 


•

• The MTAGO agreed to hire Anne Munch, a nationally renowned expert on issues surrounding sexual assault cases, as a technical advisor, to assist with training and development of policies and assessment of the MCAO's performance under the agreement.

Both the MOU and the Agreement described above outlined specific reporting requirements to ensure transparency in this process. Two specific reports are mandated. The first is a semi-annual report to the USDOJ from the MTAGO with key data and deliverables from the items outlined above. The second is a quarterly report from the MTAGO, to be released to the public, outlining the progress of the MCAO and the MTAGO under these agreements. This document is intended to satisfy the first iteration of each of these reports.
I am pleased to announce that the MCAO is in substantial compliance with the various tasks and deliverables outlined in the June 10,2014 MOU, and that prosecutors all over Montana are benefitting from our efforts. To date, we have achieved the following tasks and deliverables outlined in the June 10,2014 Agreement and MOU, including:

• The MCAO has developed a First Edition, Sexual Assault Policy & Procedure Manual with over 300 pages of best practices for prosecuting Sexual Assault cases in Montana.

•

• The MCAO attorneys have participated in five different sex assault specific trainings

since May 2014.

• The MCAO has issued policy directives requiring the MCAO attorneys to comply with ongoing practices outlined in the Agreement and the MOU.

• The MCAO has designated prosecutors and a supervisor for sex assault prosecutions.

• The MCAO has entered into MOUs to address the handling of sex assault cases with the Missoula County Sheriff and the Missoula Police Department (MPD) and the MCAO is conducting regular in service trainings with MPD detectives assigned to sexual assault cases.

• The MCAO is participating in and supporting a sexual assault and accountability audit.

• An in-house victim coordinator position has been approved by the Board of County Commissioners and hiring for the position is underway.

• The JustWare case tracking system has been made available to Victim Advocates for the purpose of case management.
• 


• •

• The MTAGO has entered into a contract with Anne Munch and she has been helping review policies and procedures and has recently provided a statewide sexual assault training for Montana prosecutors.
We are proud of the improvements we have made to sex assault prosecutions in Missoula and we look forward to implementation of these efforts throughout the state of Montana. During May and June 2014, the MTAGO provided three, one-day seminars around the State. The seminar was entitled "Prosecuting the Difficult Sex case." This eight-hour training provided prosecutors with the knowledge and tools they need to take a victim-centered approach to these cases, conduct thorough investigations, dispel myths, and meet common defenses. We will provide another training seminar this spring focusing on the use of experts in sex assault and other cases. We will also be making the First Edition, Sexual Assault Policy & Procedure Manual available to prosecutors all over the state.
This report represents the cooperative effort of a number of agencies, all working together, to ensure every allegation of sexual assault is handled with the skill, competence and attention that the victims deserve. Given our tremendous progress in such a short time, I am confident we are well on our way to ensuring justice for all sex assault victims in Montana.
A~·Tim Fox

• 


Memorandum of 
 Understanding 

between Montana 
 Attorney General's 
 Office, Missoula County Attorney's Office, Missoula County and
United States Department of Justice

• 


MEMORANDUM OF UNDERSTANDING BETWEEN. THE MONTANA ATTORNEY 
 GENERAL. THE MISSOULA COUNTY ATTORNEY'S OFFICE. MISSOULA COUNTY. 

AND 
 THE UNITED STATES DEPARTMENT OF JUSTICE

•

A. This Memorandum of Understanding ("MOU") is entered into by the Missoula County Attorney's Office ("the MCAO"), Missoula County ("Missoula County" or "County"), the Montana Attorney General's Office ("Montana Attorney General"). and the United States Department of Justice ("United States" or "USDOt') (collectively. "the Parties"). This MOU is intended to resolve USDOJ's investigation of the MCAO, initiated pursuant to 42 U.S.C. § 14141 and the Omnibus Crime Control and Safe Streets Act of 1968, 42 U.S.C. § 3789d.
B. The purpose of this MOU is to provide for a cooperative effort by the parties, to ensure that the MCAO responds to sexual assault in a nondiscriminatory manner that complies with the Constitutions and laws of Montana and the United States; improves the safety and security of victims of sexual assault in Missoula County; and increases the Missoula County community's confidence in the MCAO's response to sexual assault. Entry of this MOU is in the public interest since it provides for expeditious changes to improve public safety and adherence to state and federal law•
C. The United States investigated claims of gender discrimination by the MCAO in its handling of reports of sexual assault, and on February 14, 2014, provided a letter to the MCAO regarding that investigation. The MCAO enters into this MOU expressly denying any claims of constitutional or statutory violations.
D. The United States asserts that it has jurisdiction both to investigate and to bring suit against the MCAO pursuant to 42 U.S.C. § 14141 and the Omnibus Crime Control and Safe Streets Act of 1968, 42 U.S.C. § 3789d. The MCAO, the County, and the Montana Attorney General expressly deny that the USDOJ has any authority over locally elected county attorneys who fall underthe statutory supervisory control of the Montana Attorney General pursuant to Mont. Code Ann. Section 2-15-501(5). Nothing in this MOU constitutes any admission, concession, or agreement by the MCAO, the County, or the Montana Attorney General that the United States has such jurisdiction or authority to investigate or seek remedy against the MCAO regarding its handling of sexual assault cases. nor a concession by the United States that it does not have such jurisdiction or authority.
E. Nonetheless, prior to entering into this MOU, the MCAO had begun working to improve the MCAO's handling of reports of sexual assault, and, through this MOU, agrees to make further

Page 1 of 8

changes to improve the MCAO's practices in this regard. In addition, the Montana Attorney 
 General is working with the MCAO to improve the MCAO's handling of sexual assault cases. 
 F. As part of the consideration for this MOU and the agreements contained herein, the MCAO and
the Montana Attorney General agree to execute the ItAgreement" attached as Exhibit 1 by and
between the MCAO and the Montana Attorney General. The Agreement between the MCAO and the Montana Attorney General (Exhibit 1) is not intended to create legal rights or obligations except as between the MCAO and the Montana Attorney General. Under no
circumstances does Exhibit 1 subject the MCAO or the Montana Attorney General to any
liability, claim or action by the United States, including, without limitation, civil rights claims or claims for breach of contract or for specific performance. G. As further consideration for this MOU and the agreements contained herein, subject to the
limitations in paragraph F, above, the Montana Attorney General agrees to:
1. Consult with USDOJ on the following items related to the implementation of the Agreement (Exhibit 1) between the MCAO and the Montana Attorney General: a. The Montana Attorney General's selection of a Technical Advisor and the Montana Attorney General's contract with the Technical Advisor; b. The Montana Attorney General's review and approval of MCAO's policies and guidelines for handling of sexual assault cases; and c. The Montana Attorney General's review and approval of MCAO's sexual assault training program for its prosecutors, supervisors, and in-house victim advocate.
After consulting with USDOJ, the Montana Attorney General shall have sole authority and discretion to make any and all final decisions concerning paragraphs G.1.a. through G.1.c., above.
2. Except as prohibited by applicable privacy laws including the Montana Confidential Criminal
Justice Information Act, obtain and provide the following information to USDOJ on a semi­ annual basis for a period of two (2) years after the date of this MOU:
a. Copies of sexual assault policies implemented pursuant to the Agreement between
MeAO and the Montana Attorney General (Exhibit 1). b. Copies of MOUs executed between the MCAO and other local law enforcement
agencies with respect to sexual assault crimes.

•

Page 20f8

c. Copies of all materials used by MCAO for training prosecutors on sexual assault cases pursuant to the Agreement between the MCAO and the Montana Attorney General (Exhibit 1).
d. Copies of all written recommendations and/or conclusions made to the Montana Attorney General by the Technical Advisor pursuant to the Agreement between the MCAO and the Montana Attorney General (Exhibit 1) will be provided to USDOJ by the Montana Attorney General within 30 days of receipt.
e. Data on the following: i. The number of sexual assault cases referred for review by local law enforcement to MCAO. ii. The number of sexual assault cases charged by MCAO.
iii. The disposition of charged sexual assault cases. iv. The number of sexual assault cases in which additional investigation was
requested of local law enforcement. v. The number of victims of sexual assault who have utilized the services of the
in-house victim witness-coordinator provided for in the Agreement between the MCAO and the Montana Attorney General (Exhibit 1). H. The Montana Attorney General has begun to implement a state-wide training program and is developing a state-wide policy guidance with respect to the handling of sexual assault cases by county attorneys, law enforcement, victim advocates. and the state and local court systems. In support of these initiatives and in support of the MCAO's efforts, subject to the limitations in
paragraph F, above, the Montana Attorney General will utilize the services and work product of
a Technical Advisor as provided for in Exhibit 1 to this MOU. I. The Parties acknowledge that this MOU is intended to ensure the success of MCAO's efforts to
improve its response to sexual assault. Nothing in this MOU will be construed as an
acknowledgement, an admission, or evidence of liability of Missoula County or the MCAO for any violation of state or federal law, violation of the State or Federal Constitution, or for any alleged gender bias or discrimination in the performance of sexual assault prosecution duties. J. Upon execution and implementation of this MOU, the United States agrees to forego the filing of any claims or actions against the MCAO and Missoula County with regard to the handling of sexual assault cases in the past, including, without limitation, any and all civil rights claims. The MCAO, in turn. agrees to dismiss its pending Complaint for Declaratory Judgment against the
Page 3 of8

USDOJ. The Parties acknowledge that nothing in this MOU precludes USDOJ from filing any other claims against the MCAO for any future conduct, including claims under 42 U.S.c. §14141, subject, however, to any and all defenses that the MCAO and the Montana Attorney General now have, or may have in the future. This MOU may be executed in counterparts, each of which shall be deeme~ to be an original, but all of which, taken together, shall constitute one and the same agreement.
III
\­
Page 4 of 8

•

I Dated this OV>day of June. 2014.

For the STATE OF MONTANA
~"""-~/,

III 


• 


• Page 50f8

cr1.

J.[ Dated this

day of June, 2014.

For the MISSOULA COUNTY ATTORNEY'S OFFICE
~V-L4
Fred Van Valkenburg, Missoula COVAttorney

i. 

Page 6 of 8

/},. 


-f[ Dated this

day of June 2014. 


Jeary<;\Jrtiss, Chair

'

( j/"I

Bill Carey, Commissioner
~I

• 


Page 7 of 8

Dndav Dated this J

of June, 2014.

I

I •

fO~1/hl~A 


MICHAEL W. COTTER United States Attorney District of Montana

JOCELYN SAMUELS Acting Assistant Attorney General Civil Rights Division
MARK KAPPELHOFF

.,
( ~

Special Litigation Section
CHRISTY E. LOPEZ Deputy Chief Special litigation Section
JENNIFER l. MONDINO JEFF BLUMBERG Trial Attorneys United States Department of Justice Civil Rights Division 9S0 Pennsylvania Avenue, NW Washington, DC 20530 Tel. (202) 514-6255 Fax. (202) 514-4883

Page S ofS

•

EXHIBIT 1 

AGREEMENT BETWEEN THE MONTANA ATTORNEY GENERAL AND 
 THE MISSOULA COUNTY ATTORNEY'S OFFICE 


The Montana Attorney General and the Missoula County Attorney's Office (MCAO) enter into this Agreement because the Montana Attorney General and MCAO are committed to ensuring that allegations of sexual assault are handled appropriately, that victims are treated with compassion and respect, and that the criminal justice system operates without gender bias.

Purpose. The purpose of this Agreement is to promote public confidence in the criminal justice system through agreement and cooperation between the MCAO and the Montana Attorney General by improving policies and practices related to sexual assault prosecutions in Missoula County. For purposes of this Agreement, the term "sexual assault" means sexual contact without consent as defined in Mont. Code Ann. Sections 45-5-502, 503, exclusive of sexual assault cases involving victims under the age of
16.

•

Authority. Pursuant to Mont. Code Ann. Section 2-15-501(5), the Attorney General of the State of Montana has the sole authority to supervise the MCAO in the handling of any specific case. Only the Montana Attorney General shall have the authority to provide input on the MCAO's deciSion to exercise its prosecutorial discretion with respect to any individual case, specifically whether to charge a case that has been declined; investigate or direct further investigation of a referred sexual assault case; or take, or refrain from taking, any actions related to the prosecution of charged cases.

 Technical Advisor. The Montana Attorney General agrees to enter into contract with Anne Munch Consulting, Inc. (hereafter the "Technical Advisor") for a total amount including fees, costs and expenses not to exceed $150,000. The Technical Advisor shall assist with training attorneys in the Montana Department of Justice Prosecution Services Bureau and the MCAO's supervisors to standards acceptable to the Montana Attorney General regarding the proper handling of sexual assault cases, and to assist the Montana Attorney General with the assessment of the MCAO's performance under this Agreement.

The Technical Advisor will only have the contractual duties and responsibilities conferred by the Montana Attorney General as may be needed to facilitate the MCAO/s performance under this Agreement. The maximum amount of compensation, including costs and expenses, payable to the Technical Advisor will be specified in the contract with the Technical Advisor and shall not exceed that amount.

The Technical Advisor shall not have any authority with respect to the MCAO's prosecutorial discretion; specifically she shall not have the authority to direct the MCAO to charge a case that has been declined; investigate or direct further investigation of a referred sexual assault case; take or refrain from taking, any actions related to the prosecution of charged cases; or related to proposing or accepting plea agreements.

The Technical Advisor will be hired for a period of not less than one year, but may have her contract extended at the Montana Attorney General's sole discretion. The MCAO has agreed to seek funding for· the fees and costs of the Technical Advisor from the Missoula County Board of Commissioners for a . maximum period of two years from the date this Agreement is executed by the Montana Attorney

Page 1 of 7

General. The Montana Attorney General will work with the Technical Advisor to reach a mutually agreed upon fees and costs arrangement based on a contract amount that will not be exceeded.
Development of policies and guidelines for sexual assault cases. Within 90 days of execution of the contract with the Technical Advisor, the MCAD agrees to develop written policies and guidelines for handling of sexual assault cases. The MeAD agrees these policies and guidelines will be consistent where appropriate, with guidance of the National District Attorneys AssOCiation (NOAA) regarding sexual assault prosecutions and will include the following standard topics relevant to sexual assault prosecutions: plea guidelines, internal timelines for handling sexual assault cases, including charging decisions, coordination with law enforcement and community partners, communication with victim advocates and complaining witnesses, response to stranger and non·stranger sexual assault, response to drug· or alcohol·facilitated sexual assault, and supervisory review of case handling and charging decisions. The Montana Attorney General, in consultation with the Technical Advisor, shall have sole authority and discretion to review and approve the MeAD's written policies and guidelines. Following their approval by the Montana Attorney General, the MeAD's written policies and guidelines shall be published on the MCAD's website.
Training for county attorney supervisors and prosecutors in response to sexual assault. Within the first year of the agreement and every year thereafter for the life of this Agreement, the MeAD agrees to provide prosecutors, supervisors and the in-house victim advocate initial and on-going training in handling sexual assault cases to ensure they are fully equipped to handle these matters. The training will be consistent with the guidelines of the NOAA and will be approved by the Montana Attorney General in consultation with the Technical Advisor. The training will include, but is not limited to: methods of proving non-stranger, drug- or alcohol-facilitated sexual assault, sexual assault where consent is a defense, the body of scientific knowledge commonly accepted as necessary for prosecuting sexual assault cases, effective techniques for interviewing sexual assault victims, and addressing misinformation about bias and sexual assault victimology, including misinformation about victim response to sexual assault. The MCAD agrees, at its own expense, to ensure that deputy county attorneys handling sexual assault cases participate in any sexual assault prosecution training offered by the Montana Attorney General.
Assurances as to on-l2ing practices within the Missoula County Attorney's Office. The MeAD agrees to implement or continue the following on-going practices with respect to its response to sexual assault allegations, which the Attorney General shall have sole authority and discretion to review and approve in consultation with the Technical Advisor:
• In·person meetings with complaining witnesses: Prosecutors will make every reasonable effort to conduct in-person meetings with the detectives and complaining witnesses prior to making a determination whether to file charges in sexual assault cases referred and recommended for prosecution. Consistent with Montana law, advocates will be invited and encouraged to participate in such meetings between prosecutors and complaining witnesses.
• ease related communication with victims and victim advocates: Subject to the cooperation and availability of victims, prosecutors will communicate key substantive information and decisions about cases and the underlying rationale directly to victims or their victim advocates as required by Montana law.
Page 2 of7

• • 


• Victim Advocates: The MCAO agrees to seek funding from the Missoula County Board of Commissioners for a full-time in-house victim-coordinator for the MCAO, in order to provide improved notification, support, and referral services to victims and to provide victims with information not available to the Missoula Crime Victim Advocate Office or external 
 advocates. 

• Utilization of specialized sexual assault prosecution expertise: Within 60 days of the execution of this Agreement, the MCAO agrees to designate an appropriate number of attorneys, based on caseload, to be primarily responsible for sexual assault cases. The attorneys will be selected based on their demonstrated skills and interest and will be required to attend periodic sexual assault-specific training. Nothing in this Agreement prohibits the MCAO from pairing less-experienced county attorneys with county attorneys who specialize in sexual assault cases to develop skills, provided the deputy county attorney who specializes in sexual assault cases has primary responsibilities in the prosecution. In addition, the MCAO will utilize the services of specialized prosecution expertise within the Montana Department of Justice Prosecution Services Bureau whenever the necessary expertise for a particular sexual assault prosecution is not available within the MCAO or, because of caseload demands, is unreasonably delayed.
• Utilization of specialized sexual assault investigation expertise: The parties acknowledge the MCAO does not employ internal investigators, but rather relies upon the investigatory . expertise of cooperating law enforcement agencies. However, in evaluating cases and preparing prosecutions for trial, the MCAO does review and evaluate investigations and may request further investigatory efforts when necessary to making a charging decision or in preparing a case for trial. The MCAO will enter into a Memorandum of Understanding (MOU) with local law enforcement agencies to formalize past practices and ensure that appropriate and adequate investigative services are available to prosecutors for the handling of sexual assault cases from referral through trial. The MOU will include the· provision that if, after case referral to the MCAO, further investigation is necessary, the MCAO will request further investigation from law enforcement or the Montana Department of Justice Division of Criminal Investigation (DCI). The MCAO agrees to utilize the services of specialized investigative expertise within the DCI whenever the necessary expertise for a particular sexual assault investigation is not available within local law enforcement offices. In addition, such expertise shall be requested whenever a conflict of interest would prevent an objective investigation or caseload demands on local law enforcement would unreasonably delay an investigation.
Nothing herein shall be construed to, or is intended to infer, that the MCAO has supervisory authority over, or control of, the investigatory functions of law enforcement.
• Computer Tracking System: Unless extended by mutual agreement of the parties, the
MCAO will, within 120 days of the date of this Agreement and at MCAO's cost, design and
implement a computer tracking system for victim advocates and victims to track the status of their cases. Subject to privacy limitations imposed by state and federal laws, the information in this tracking system will be accessible by in-house and external victim advocates.

Page 3 of7

• Supervisor Review: The MCAO agrees to continue enhanced supervision of prosecuting attorneys responsible for prosecuting sexual assault cases.
Supervisors will closely evaluate sexual assault investigations and prosecutions and ensure that such prosecutions are not undermined by lack of knowledge or impermissible bias and are conducted with the same level of attention and quality as prosecutions of other crimes.
Supervisors will review and approve decisions to decline prosecutions in sexual assault cases. This review will include an evaluation to assess whetherthe declination decision was made for any inappropriate reason. Supervisors will document their review.
The MCAO will conduct a periodic examination of supervisory review data in all sexual assault cases, including closed cases, declined cases and cases where the complaining witness declined to participate in the prosecution of such cases in an effort to identify any systemic problems, including deficiencies or delays in the investigation, charging decision, and prosecution of sexual assault cases, and indications, if any, of gender bias. The review will include information gathered from a review of case files and feedback from victims and victim advocates.
Improved communication and coordination with law enforcement and community partners. The MCAO agrees to implement measures to improve communication and coordination to effectively handle sexual assault cases. The Montana Attorney General, in consultation with the Technical AdVisor, shall have sole authority and discretion to approve such measures, which will include:
• Cooperation with law enforcement and community partners: The MCAO agrees to increase and improve its communication, coordination and cooperation with community and law enforcement partners, including the Missoula Police Department (MPD), Missoula County Sheriffs Office (MCSO), University of Montana Police Department (UMPD), Crime Victim Advocate Office, and community advocates, including, without limitation, the Missoula YWCA, JUST Response, and the University of Montana SARC program. These efforts will be aimed at increasing the willingness and ability of sexual assault victims to participate in prosecutions of meritorious cases, facilitating the collection and analysis of relevant evidence, and minimizing the additional hardship that this participation can cause for sexual assault victims. These efforts will include:
• Adherence to all agreed responsibilities set out in the Memorandum of Understanding between the MCAO and the MPD dated December 13, 2013 (a copy of which is attached hereto as Exhibit itA") and which shall also be applicable to any cases submitted to the MCAO by MCSO or UMPD. Exhibit A will be amended to 1) ensure that supervisors in the MCAO assess the quality of sexual assault investigations, provide written feedback to the Missoula Police; and 2) provide more guidance about the responsibilities of the MCAO for cases referred for review.
• Entering into an MOU with the MCSO with substantially the same terms as the MOU with the MPD.

it

Page 4 of 7

• • 


• Working with stakeholders to clarify, in writing, the roles and responsibilities of the MCAO, crime victim advocates and community advocates related to supporting and communicating with victims of sexual assault.
• Agreeing to participate in and support the City of Missoula's efforts to organize and lead a sexual assault safety and accountability audit.
• The MCAO agrees to provide training to the MPD and the MCSO detectives on the requirements of successful sexual assault prosecutions to facilitate effective investigations and minimize the influence of impermissible bias.
• Public education and outreach: In the interest of transparency and improved communication with its community and law enforcement partners, the MCAO agrees to provide the public with information about the criminal justice process, including basic information about the roles of prosecutors and law enforcement in responding to sexual assault, the types of charges available in cases of sexual assault, and the policies applicable to plea negotiation. Such information will be disseminated in a manner designed to reach the greatest number of victims of sexual assault and the law enforcement and community partners that interact with the victims of sexual assault in Missoula County, including through publication on the MCAO's website. This outreach will include outreach focused on communities at particular risk of perpetrating or being victimized by sexual assault. In collaboration with law enforcement and community partners, the Montana Attorney General and the MCAO agree also to conduct outreach to communities at particular risk for perpetrating or being victimized by sexual assault. The community outreach efforts will be funded at a level approved by, and paid by, the Montana Attorney General's Office.
• Data collection: To identify shortcomings and assess improvement, the MCAO agrees to collect specific information about decisions related to sexual assault referrals, initial meetings with victims, charging deCisions, plea offers, case dispositions, and sentences, including, but not limited to, the dates and periods of time between each of these steps in the MCAO's handling of a sexual assault case. Except as to confidential criminal justice information, the MCAO agrees to collect and disseminate on a quarterly basis aggregate data on sexual assault cases to the Montana Attorney General and the public.
• Victim and advocate survev:: The MCAO agrees to participate in the victim survey program currently underway through the University of Montana to obtain feedback from victims and advocates to help the MCAO continue to improve its handling of sexual assault cases. The MeAO will work cooperatively with the Missoula Police Department and the University of Montana to ensure that the sexual assault victim survey includes questions about the experience of sexual assault victims with the MCAO, including those victims who decline to participate in an investigation. The MCAO will seek to include questions asking whether and when victims meet with prosecutors; whether and how prosecutors prepare victims for proceedings related to the prosecution of their cases, including motions hearings, trials, and sentencing; whether and how prosecutors describe the prosecution process to victims; and whether and how prosecutors inform victims about their rights during the investigative or pretrial phases, during trial, and after trial and sentencing.

Page 50f7

Expert Witness Expenses. In order to facilitate and support prosecution of sexual assault cases, the MCAD will seek additional funding from the Missoula County Board of Commissioners in the amount of $10,000 a year for the next two fiscal years for the purpose of paying expert witnesses who may be needed to provide additional evidence in such cases. In addition, the Montana Attorney General will seek funding from the Montana Legislature to assist county attorneys for such purpose in the next session of the legislature. This funding is in addition to other sources of funding for experts and is not a limit on the ability of the MCAD to hire such experts as are necessary to pursue cases.
Assessment of this Agreement and Review of Cases by the Montana Attorney General. The Montana Attorney General, in consultation with the Technical Advisor, agrees to establish an appropriate plan to monitor compliance with the terms of this Agreement.
• Monitoring: The monitoring duties of the Montana Attorney General will Include: the development and implementation of policies and training, and assessing implementation of other provisions of this Agreement, including, for example, the cruty to evaluate supervision of sexual assault cases, coordination with law enforcement partners, and data collection. The Montana Attorney General will also provide technical assistance to the MCAD, as appropriate pursuant to the Agreement. Unless extended by agreement of the parties, an appropriate monitoring and compliance plan will be developed within 60 days of entering into a contract with the Technical Advisor. Following development of the monitoring and compliance plan, in consultation with the Technical Advisor, the Montana Attorney General will monitor compliance with this Agreement for a period of one (1) year.
• Review of Cases: For a period of one (1) year following execution of this Agreement by the Montana Attorney General, the Montana Attorney General will review all sexual assault cases where the MCAD has declined prosecution.
Reporting. The Montana Attorney General, in consultation with the Technical Advisor, will provide
public quarterly reports regarding whether the requirements of this Agreement have been implemented, including an analysis of collected data from the MCAD and a report on all measurable improvements in the response to allegations of sexual assault. In the interest of transparency and improved communication with its community and law enforcement partners, the Montana Attorney General's quarterly reports and all recommendations and/or conclusions of the Technical Advisor shall be public with the exception of material covered by applicable privacy laws including the Montana Confidential Criminal Justice Information Act.
No Third-Party Rights. This Agreement does not create or give rise to any third-party rights, claims, damages, or causes of action. No person or entity is intended to be a third-party beneficiary of any provision of this Agreement for purposes of any civil, criminal, or administrative action, and accordingly, no person or entity may assert any claim or right as a beneficiary or protected class under this Agreement.
Enforcement. This Agreement is not intended to create legal rights or obligations except as between the MCAD and the Montana Attorney General. Under no circumstances does this Agreement subject the MCAD or the Montana Attorney General to any liability, claim or action by the United States, including, without limitation claims by the United States alleging violations of civil fights or claims for breach of contract or specific performance.
Page 60f7

•

The Montana Attorney General will exercise continuing supervisory authority over the MCAO to ensure compliance with this Agreement. If a question arises regarding the MCAO's performance or compliance with this Agreement. the Montana Attorney General shall give the MCAO notice of the issue and the parties will attempt to resolve the issue promptly by mutual Agreement. In the absence of a mutually acceptable agreement to resolve the issue, the Montana Attorney General shall have the sole authority and discretion under Mont. Code Ann. Section 2-15-501(5), to determine appropriate supervisory measures to obtain compliance with this Agreement.
Interpretation of this Agreement relating to the U.S. Department of Justice (U5DOJ). The MCAO and the Montana Attorney General expressly deny that the USDOJ has any authority over locally elected county attorneys who fall under the statutory supervisory control of the Montana Attorney General pursuant to Mont. Code Ann. Section 2-15-501(5). Therefore, nothing in this Agreement constitutes any admission or agreement by the MCAO or the Montana Attorney General that the USDOJ has jurisdiction or authority to investigate or seek a remedy against the MCAO regarding its handling of sexual assault cases.
The MCAO expressly denies any claims of bias or statutory/constitutional violations. Consequently, nothing in this Agreement shall be construed as an acknowledgment, an admission, or evidence of liability of the MCAO for any violation of State or Federal law, violation of the State or Federal Constitution, or for any alleged gender bias by the MCAO. By entering into this Agreement, the MCAO does not imply that there is validity to any allegations alleged by the USDOJ.
This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but all of which, taken together, shall constitute one and the same Agreement.
Dated this __ day of June, 2014.
STATE OF MONTANA
Timothy C. Fox, Montana Attorney General

Dated this _ _ day of June, 2014. MISSOULA COUNTY ATTORNEY'S OFFICE
Fred Van Valkenburg, Missoula County Attorney

Page 7 of 7

Memorandum of Understanding Between 

Office of the Missoula County Attorney and the City of Missoula Police Department 
 December 13, 2013 


This Memorandum of Understanding (MOU). dated December 13th. 2013 is an Agrcement by and between the Missoula County Attorney's Otlicc (hercinailer MeAO) and the
City of Missoula Police Department (hcreinaIter MPO). referenced collectively as "the Parties".
Purpose
TIle purpose ofthi$ Agreement is to enhance the Parties collaboration and communication in the investigation and prosecution of n.'P0rted criminal sex offenses. seeking to attain positive outcomes in keeping with the bt.'St interest ofjustice. The Parties are committed to working together with community partners to provide victims with timely investigations and prosecution decisions and to improve the experience of victims in the criminal justice system to whatever degree possible.
The MCAO understands that the MPD is operating under an agreement entered into with the United States Department of Justice (DOJ) on 5/15/2013 and desires to support l\.·1PD efforts in complying with that agreement. The MCAO is the criminal justice agency responsible for prosecuting felony sex offenses that occur within the jurisdiction of the MPD, when reports have heen sufficiently investigated and submitted for a charging decision.
The Parties acknowledge that nothing in the DOJ/MPD agreement of5/15/2013 or this Agreement is construed to restrict the MCAO'g legal authority to conduct its responsibilities under Montana laws. the rules of criminal procedure and the Montana Rules of Professional Conduct applicable to attorneys.
Agreements of the Parties
Jfissoilia Police Department
The MPD has separately and prior to this MOU entered into an agreement with DOJ which requires the MPD to improve and increase its communication, coordination and collaboration with community and law enforcement partners for the improvement of sexual a~sau1t investigations. MPD has adopted changes to improve policies, training, and investigations using victim-centered, offender-focused techniques.
To fulfill its responsibilities in this agreement with the MCAO. :V1PD agrees to conduct thorough investigations of all reported sex offenses in a iimcly, comprehensive and unbiased manner. Victim advocacy services will he sought for every victim, alt.hough victims will have the ability to decline those services. COllsultation with prosecutors during the investigation phase is also encouraged to increase collaboration and assist in identifying priority cases f(lf MCAO assistance.

MOU MCAO_MPD Final 20131213

EXHIBIT

Page 1 of 4

•...•~ ..~

• 


Memorandum of Understanding 
 Between 

Office of the Missoula County Attorney and the City of Missoula Police Department 
 December 13, 2013 


Completed felony sex offense investigations will be re1errcd to the t\.'1CAO as a request ior either:

I. REVIEW - Rc:tcrrcd for Prosecutor Review Only
These referrals are cases where, in the eyes of the MPD uetectivc, the investigation
has not developed probable cause necessary for arrest and prosecution.

•

2. CHARGING DECISION - Referred tor Prosecution Charging Decision
This category of reterral will include cases wh(''re a custodial arrest has already taken place lor a specific charge and/or where in the opinion of the MPD detective there is
probable cause sufficient to charge an onender with a felony otlense.

All MPD submissions will include aU written reports, statements or detailed statement summaries, identified evidence and a recommendation of specified charges the investigator believes are supported by facts found in those materials. The materials will be accompanied by a
referral form to enable consistent documentation of the decisions reached in the process.

Offic'e ofthe lUi."t'St}ula COUllty Attorney




The MeAD is committed to helping MPD efforts to improve the experience of sex assault victims in the criminal justice system and thereby agrees to:

1. Make assignments of eases referred for a charging decision a priority for its prosecutors.

u. Sex assault cast.'S reterred t()r a charging decision are to he given high priority
in the interest of achieving timeJy review and charging decisions. It is understood a charging decision should not be made ill haste. To achieve
improved communication and collaboration the prosecutor should make contact with the investigator within hvo weeks of referral. ChtU'ging tlecisions
or requests tor additional investigation should be reflected in writing upon the
referral fhrm and returned in a timely fashion. Regardless, MCAO reserves
the right to decide when charges will be filed. what charges will be tiled, whether to seek an arrest warrant for ,m alleged otfender. what bail, if ally, to seck with respect to alleged otlcnders <lOd other such matters that are solely
within the appropriate discretion of the prosecuting attorney.

•

MOU MCAO_MPD Final 20131213

Page 2 of4

Memorandum of Understanding 
 Between 

Office of the Missoula County Attorney and the City of Missoula Police Department 
 December 13, 2013 

b. In instances of declination of prosecution, will provide a detailed written explanation as to the reason the case will not be prosecuted, i.e. -_. why the evidence is insuHicient to obtain conviction, or prosecution is not in the best interest ofjustice, etc.
c. Prosecutors will make a reasonable effort to review any sex assault case referred tor review onlv within one month or provide explanation for delay. After review MCAO prosecutors will provide written guidance as to concurrence or suggested alternatives, including a request tor additional investigation.
2. Consult with MPD investigative supervisors to discuss cases before closure.
:i. The MCAO will be responsive to efforts ofMPO investigative supervisors to meet and discuss whether sexual assault eases were appropriately investigated and/or whether additional investigation could be useful prior to MPO closing the case.
3. Participate in face-to-face meetings with victims, advocates aud the case investigators.
u. The MeAO agrees that it C:U1 be helpful to victims to hear a unitied message about the outcome of their criminal complaint and agrees to participate in joint victim meetings during the process as appropriate for the circumstances. Wht."tl a referral for prosecution is made and results ill a declination of
charges, the prosecutor will be responsible ti)r arranging JiJr a joint meeting.
4. Commit to partiCipation in the YlPD-led Community Safety aud AccountabiJity Audit planned for 2014.
u. The City of Missoula is responsible for organizing and leading a sexual assault safety and accountability audit during the tern! of the ~lPD agreement with DOJ. The MCAO agrees to be an cngagt.'tI and collaborative participant in the audit alongside MPD, the Ulliv\.:!rsity of i\ifontana - Office of Public Sutety and other community partners involved in responding to reports of Sexual assault in the I\ifissoula community.

'.

MOU MCAO_MPD Final 20131213

Page.3 of4

• 


Memorandum of Understanding 
 Between 

Office of the Missoula County Attorney and the City of Missoula Police Department 
 December 13, 2013 


Term of Agreement

This Agreement shall remain in full torce and effect from this date until modification by mutual
agreement of both Parties, or until rescinded by either party after reasonable attempts to attain necessary modifications.

This Agreement entered into this 13th day of December, 2013 in Missoula County, MT.

Mit/Jt
fred Van Valkcllburg Missoula County Attorney

~~~ Mark uir, Chief of Police Missoula Police Department

•

// Jolm Engen. Mayor / eity of Missoula
~/
ATTEST:
C yClerk

MQU MCAO_MPD Final 20131213

Page4of4

Agreement between 
 Montana Attorney 
 GeneralIs Office and 
 Missoula County 
 Attorneyls Office 


• • •

AGREEMENT BETWEEN THE MONTANA ATTORNEY GENERAL AND THE MISSOULA COUNTY ATTORNEY'S OFFICE
The Montana Attorney General and the Missoula County Attorney's Office (MCAO) enter Into this Agreement because the Montana Attorney General and MCAO are committed to ensuring that allegations of sexual assault are handled appropriately, that victims are treated with compassion and respect, and that the criminal justice system operates without gender bias.
Purpose. The purpose of this Agreement is to promote public confidence in the criminal justice system through agreement and cooperation between the MCAO and the Montana Attorney General by improving policies and practices related to sexual assault prosecutions in Missoula County. For purposes of this Agreement, the term "sexual assault" means sexual contact without consent as defined in Mont. Code Ann. Sections 45-5-502, 503, exclusive of sexual assault cases involving victims under the age of 16.
Authority. Pursuant to Mont. Code Ann. Section 2-15-501(5), the Attorney General of the State of Montana has the sole authority to supervise the MCAO in the handling of any specific case. Only the Montana Attorney General shall have the authority to provide input on the MCAO's decision to exercise its prosecutorial discretion with respect to any individual case, specifically whether to charge a case that has been declined; investigate or direct further investigation of a referred sexual assault case; or take, or refrain from taking, any actions related to the prosecution of charged cases.
Technical Advisor. The Montana Attorney General agrees to enter into contract with Anne Munch Consulting, Inc. (hereafter the "Technical Advisor") for a total amount including fees, costs and expenses not to exceed $150,000. The Technical Advisor shall assist with training attorneys in the Montana Department of Justice Prosecution Services Bureau and the MCAD's supervisors to standards acceptable to the Montana Attorney General regarding the proper handling of sexual assault cases, and to assist the Montana Attorney General with the assessment of the MCAO's performance under this Agreement.
The Technical AdVisor will only have the contractual duties and responsibilities conferred by the Montana Attorney General as may be needed to facilitate the MCAO's performance under this Agreement. The maximum amount of compensation, including costs and expenses, payable to the Technical Advisor will be specified in the contract with the Technical Advisor and shall not exceed that amount.
The Technical Advisor shall not have any authority with respect to the MCAO's prosecutorial discretion; specifically she shall not have the authority to direct the MCAO to charge a case that has been declined; investigate or direct further investigation of a referred sexual assault case; take or refrain from taking, any actions related to the prosecution of charged cases; or related to proposing or accepting plea agreements.
The Technical Advisor will be hired for a period of not less than one year, but may have her contract extended at the Montana Attorney General's sole discretion. The MCAD has agreed to seek funding for the fees and costs of the Technical Advisor from the Missoula County Board of Commissioners for a maximum period of two years from the date this Agreement is executed by the Montana Attorney
Page lof7

General. The Montana Attorney General will work with the Technical Advisor to reach a mutually agreed upon fees and costs arrangement based on a contract amount that will not be exceeded.
Development of policies and guidelines for sexual assault cases. Within 90 days of execution of the contract with the Technical Advisor, the MCAO agrees to develop written policies and guidelines for handling of sexual assault cases. The MCAO agrees these policies and guidelines will be consistent where appropriate, with guidance of the National District Attorneys Association (NOAA) regarding sexual assault prosecutions and will include the following standard topicS relevant to sexual assault prosecutions: plea gUidelines, internal timelines for handling sexual assault cases, including charging decisions, coordination with law enforcement and community partners, communication with victim advocates and complaining witnesses, response to stranger and non-stranger sexual assaUlt, response to drug- or alcohol-facilitated sexual assault, and supervisory review of case handling and charging decisions. The Montana Attorney General, in consultation with the Technical Advisor, shall have sole authority and discretion to review and approve the MCAO's written policies and guidelines. Following their approval by the Montana Attorney General, the MCAO's written policies and guidelines shall be published on the MCAO's website.
Training for county attorney supervisors and prosecutors in response to sexual assault. Within the first year of the agreement and every year thereafter for the life of this Agreement, the MCAD agrees to provide prosecutors, supervisors and the in-house victim advocate initial and on-going training in handling sexual assault cases to ensure they are fully equipped to handle these matters. The training will be consistent with the guidelines of the NOAA and will be approved by the Montana Attorney General in consultation with the Technical Advisor. The training will include, but is not limited to: methods of proving non-stranger, drug- or alcohol-facilitated sexual assault, sexual assault where consent is a defense, the body of scientific knowledge commonly accepted as necessary for prosecuting sexual assault cases, effective techniques for interviewing sexual assault victims, and addressing misinformation about bias and sexual assault victimology, including misinformation about victim response to sexual assault. The MCAO agrees, at its own expense, to ensure that deputy county attorneys handling sexual assault cases partiCipate in any sexual assault prosecution training offered by the Montana Attorney General.
Assurances as to on-going practices within the Missoula County Attorney's Office. The MeAO agrees to implement or continue the following on-going practices with respect to its response to sexual assault allegations, which the Attorney General shall have sole authority and discretion to review and approve in consultation with the Technical Advisor:
• In-person meetings with complaining witnesses: Prosecutors will make every reasonable
effort to conduct in-person meetings with the detectives and complaining witnesses prior to making a determination whether to file charges in sexual assault cases referred and recommended for prosecution. Consistent with Montana law, advocates will be invited and encouraged to participate in such meetings between prosecutors and complaining witnesses.
• Case related communication with victims and victim advocates: Subject to the cooperation
and availability of victims, prosecutors will communicate key substantive information and decisions about cases and the underlying rationale directly to victims or their victim advocates as required by Montana law.
Page 20f7

(e

• • •

• Victim Advocates: The MCAD agrees to seek funding from the Missoula County Board of Commissioners for a full-time in-house victim-coordinator for the MCAD, in order to provide improved notification, support, and referral services to victims and to provide victims with information not available to the Missoula Crime Victim Advocate Office or external advocates.
• Utilization of specialized sexual assault prosecution expertise: Within 60 days of the execution of this Agreement, the MCAO agrees to designate an appropriate number of attorneys, based on caseload, to be primarily responsible for sexual assault cases. The attorneys will be selected based on their demonstrated skills and interest and will be required to attend periodiC sexual assault-specific training. Nothing in this Agreement prohibits the MCAD from pairing less-experienced county attorneys with county attorneys who specialize in sexual assault cases to develop skills, provided the deputy county attorney who specializes in sexual assault cases has primary responsibilities in the prosecution. In addition, the MCAD will utilize the services of speCialized prosecution expertise within the Montana Department of Justice Prosecution Services Bureau whenever the necessary expertise for a particular sexual assault prosecution is not available within the MCAD or, because of caseload demands, is unreasonably delayed.
• Utilization of specialized sexual assault investigation expertise: The parties acknowledge the MCAD does not employ internal investigators, but rather relies upon the investigatory expertise of cooperating law enforcement agencies. However, in evaluating cases and preparing prosecutions for trial, the MCAD does review and evaluate investigations and may request further investigatory efforts when necessary to making a charging decision or in
preparing a case for trial. The MCAD will enter into a Memorandum of Understanding
(MOU) with local law enforcement agencies to formalize past practices and ensure that appropriate and adequate investigative services are available to prosecutors for the handling of sexual assault cases from referral through trial. The MOU will include the provision that if, after case referral to the MCAD, further investigation is necessary, the MCAD will request further investigation from law enforcement or the Montana Department of Justice Division of Criminal Investigation (DCI). The MCAD agrees to utilize the services of specialized investigative expertise within the DCI whenever the necessary expertise for a particular sexual assault investigation is not available within loeallaw enforcement offices. In addition, such expertise shall be requested whenever a conflict of interest would prevent an objective investigation or caseload demands. on local law enforcement would unreasonably delay an investigation.
Nothing herein shall be construed to, or is intended to infer, that the MeAD has supervisory authority over, or control of, the investigatory functions of law enforcement.
• Computer Tracking System: Unless extended by mutual agreement of the parties, the MeAO will, within 120 days of the date of this Agreement and at MCAD's cost, design and implement a computer tracking system for victim advocates and victims to track the status of their cases. Subject to privacy limitations imposed by state and federal laws, the information in this tracking system will be accessible by in-house and external victim advocates .
Page 3 of 7

• Supervisor Review: The MCAO agrees to continue enhanced supervision of prosecuting attorneys responsible for prosecuting sexual assault cases.
Supervisors will closely evaluate sexual assault investigations and prosecutions and ensure that such prosecutions are not undermined by lack of knowledge or impermissible bias and are conducted with the same level of attention and quality as prosecutions of other crimes.
Supervisors will review and approve decisions to decline prosecutions in sexual assault cases. This review will include an evaluation to assess whether the declination decision was made for any inappropriate reason. Supervisors will document their review.
The MCAO will conduct a periodic examination of supervisory review data in all sexual assault cases, including closed cases, declined cases and cases where the complaining witness declined to participate in the prosecution of such cases in an effort to identify any systemic problems, including deficiencies or delays in the investigation, charging decision, and prosecution of sexual assault cases, and indications, if any, of gender bias. The review will include information gathered from a review of case files and feedback from victims and victim advocates.
Improved communication and coordination with law enforcement and community partners. The MCAD agrees to implement measures to improve communication and coordination to effectively handle sexual assault cases. The Montana Attorney General, in consultation with the Technical Advisor, shall have sole authority and discretion to approve such measures, which will include:
• Cooperation with law enforcement and community partners: The MCAO agrees to increase and improve its communication, coordination and cooperation with community and law enforcement partners, including the Missoula Police Department (MPD), Missoula County Sheriffs Office (MCSO), University of Montana Police Department (UMPD), Crime Victim Advocate Office, and community advocates, including, without limitation, the Missoula YWCA, JUST Response, and the University of Montana SARC program. These efforts will be aimed at increasing the willingness and ability of sexual assault victims to participate in prosecutions of meritorious cases, facilitating the collection and analysis of relevant evidence, and minimizing the additional hardship that this participation can cause for sexual assault victims. These efforts will include:
• Adherence to all agreed responsibilities set out in the Memorandum of Understanding
between the MCAO and the MPD dated December 13, 2013 (a copy of which is attached hereto as Exhibit /IA") and which shall also be applicable to any cases submitted to the MCAO by MCSO or UMPD. Exhibit A will be amended to 1) ensure that supervisors in the MCAO assess the quality of sexual assault investigations, provide written feedback to the Missoula Police; and 2) provide more guidance about the responsibilities of the MCAO for cases referred for review.
• Entering into an MOU With the MCSO with substantially the same terms as the MOU
with the MPD.
Page 40f7

I /'' ~.".
!
•\W

• • •

• Working with stakeholders to clarify, in writing, the roles and responsibilities of the MCAO, crime victim advocates and community advocates related to supporting and communicating with victims of sexual assault.
• Agreeing to participate in and support the City of Missoula's efforts to organize and lead a sexual assault safety and accountability audit.
• The MCAO agrees to provide training to the MPD and the MCSO detectives on the requirements of successful sexual assault prosecutions to facilitate effective investigations and minimize the influence of impermissible bias.
• Public education and outreach: In the interest of transparency and improved communication with its community and law enforcement partners, the MCAO agrees to provide the public with information about the criminal justice process, including basic information about the roles of prosecutors and law enforcement in responding to sexual assault, the types of charges available in cases of sexual assault, and the policies applicable to plea negotiation. Such information will be disseminated in a manner designed to reach the greatest number of victims of sexual assault and the law enforcement and community partners that interact with the victims of sexual assault in Missoula County, including through publication on the MCAO's website. This outreach will include outreach focused on communities at particular risk of perpetrating or being victimized by sexual assault. In collaboration with law enforcement and community partners, the Montana Attorney General and the MCAO agree also to conduct outreach to communities at particular risk for perpetrating or being victimized by sexual assault. The community outreach efforts will be funded at a level approved by, and paid by, the Montana Attorney General's Office.
• Data collection: To identify shortcomings and assess improvement, the MCAO agrees to collect speCific information about decisions related to sexual assault referrals, initial meetings with victims, charging decisions, plea offers, case dispositions, and sentences, including, but not limited to, the dates and periods of time between each of these steps in the MCAO's handling of a sexual assault case. Except as to confidential criminal justice information, the MCAO agrees to collect and disseminate on a quarterly basis aggregate data on sexual assault cases to the Montana Attorney General and the public.
• Victim and advocate survey: The MCAO agrees to participate in the victim survey program currently underway through the University of Montana to obtain feedback from victims and advocates to help the MCAO continue to improve its handling of sexual assault cases. The MeAO will work cooperatively with the Missoula Police Department and the University of Montana to ensure that the sexual assault victim survey includes qOestions about the experience of sexual assault victims with the MCAO, including those victims who decline to participate in an investigation. The MCAO will seek to include questions asking whether and when victims meet with prosecutors; whether and how prosecutors prepare victims for proceedings related to the prosecution of their cases, including motions hearings, trials, and sentencing; whether and how prosecutors describe the prosecution process to victims; and whether and how prosecutors inform victims about their rights during the investigative or pretrial phases, during trial, and after trial and sentencing.
Page 5 of 7

Expert Witness Expenses. In order to facilitate and support prosecution of sexual assault cases, the MCAO will seek additional funding from the Missoula County Board of Commissioners in the amount of $10,000 a year for the next two fiscal years for the purpose of paying expert witnesses who may be needed to provide additional evidence in such cases. In addition, the Montana Attorney General will seek funding from the Montana Legislature to assist county attorneys for such purpose in the next session of the legislature. This funding is in addition to other sources of funding for experts and is not a limit on the ability of the MCAO to hire such experts as are necessary to pursue cases.
Assessment of this Agreement and Review of Cases by the Montana Attorney General. The Montana Attorney General, in consultation with the Technical Advisor, agrees to establish an appropriate plan to monitor compliance with the terms of this Agreement.
• Monitoring: The monitoring duties of the Montana Attorney General will include: the development and implementation of policies and training, and assessing implementation of other provisions of this Agreement, including, for example, the duty to evaluate supervision of sexual assault cases, coordination with law enforcement partners. and data collection. The Montana Attorney General will also provide technical assistance to the MCAO, as appropriate pursuant to the Agreement. Unless extended by agreement of the parties, an appropriate monitoring and compliance plan will be developed within 60 days of entering into a contract with the Technical Advisor. Following development of the monitoring and compliance plan, in consultation with the Technical AdVisor, the Montana Attorney General will monitor compliance with this Agreement for a period of one (1) year.
• Review of Cases: For a period of one (1) year following execution of this Agreement by the Montana Attorney General, the Montana Attorney General will review all sexual assault cases where the MCAO has declined prosecution.
Reporting. The Montana Attorney General, in consultation with the Technical Advisor, will provide public quarterly reports regarding whether the requirements of this Agreement have been implemented, including an analysis of collected data from the MCAO and a report on all measurable improvements in the response to allegations of sexual assault. In the interest of transparency and improved communication with its community and law enforcement partners, the Montana Attorney General's quarterly reports and all recommendations and/or conclusions of the Technical Advisor shall be public with the exception of material covered by applicable privacy laws including the Montana Confidential Criminal Justice Information Act.
No Thlrd~Party Rights. This Agreement does not create or give rise to any third-party rights, claims, damages, or causes of action. No person or entity is intended to be a third-party beneficiary of any provision of this Agreement for purposes of any civil, criminal, or administrative action, and accordingly, no person or entity may assert any claim or right as a beneficiary or protected class under this Agreement.
Enforcement. This Agreement is not intended to create legal rights or obligations except as between
the MCAO and the Montana Attorney General. Under no circumstances does this Agreement subject the MCAO or the Montana Attorney General to any liability, claim or action by the United States, including, without limitation claims by the United States alleging violations of civil rights or claims for breach of contract or specific performance.
Page 6 of 7

• •

The Montana Attorney General will exercise continuing supervisory authority over the MCAO to ensure compliance with this Agreement. If a question arises regarding the MCAO's performance or compliance with this Agreement, the Montana Attorney General shall give the MCAO notice of the issue and the parties will attempt to resolve the issue promptly by mutual Agreement. In the absence of a mutually acceptable agreement to resolve the issue, the Montana Attorney General shall have the sole authority and discretion under Mont. Code Ann, Section 2-15-501(5), to determine appropriate supervisory measures to obtain compliance with this Agreement.

Interpretation of this Agreement relating to the U.S. Department of Justice (USDOJ}. The MCAO and the Montana Attorney General expressly deny that the USDOJ has any authority over locally elected county attorneys who fall under the statutory supervisory control of the Montana Attorney General pursuant to Mont. Code Ann. Section 2-15-501(5). Therefore, nothing in this Agreement constitutes any admission or agreement by the MCAO or the Montana Attorney General that the USDOJ has jurisdiction or authority to investigate or seek a remedy against the MCAO regarding its handling of sexual assault cases.

The MCAO expressly denies any claims of bias or statutory/constitutional violations. Consequently, nothing in this Agreement shall be construed as an acknowledgment, an admission, or evidence of liability of the MCAO for any violation of State or Federal law, violation of the State or Federal Constitution, or for any alleged gender bias by the MCAO. By entering into this Agreement, the MCAO does not imply that there is validity to any allegations alleged by the USDO)'

This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but all of which, taken together, shall constitute one and the same Agreement.

thilO~ay Dated

of June, 2014.

L()+! Dated this

day of June, 2014.

MISSOULA COUNTY ATIORNEV'S OFFICE
wli

• Page 7 of 7

Memorandum of Understanding 
 Between 

Office of the Missoula County Attorney and the City of Missoula Police Department 
 December 13, 2013

This Memorandum of Understanding (~10U), dated December 13th. 2013 is an Agreement by and between the Missoula County Attorney's Office (ilereinaHer MCAO) and the City of Missoula Police Department (hercinafler MPO), reterenced collectively as "'the Parties".
Purpose
'nle purpose of this Agreement is to t..'nhance the Parties collaboration and communication in the investigation and prosecution ofrl.-ported criminal sex offenses, seeking to
attuiu positive outcomes in h>eping with the best interest ofjustice. The Parties are committed to working together with community partners to provide victims with timely investigations and prosecution decisions and to improve the experience of victims in the ('TIminal justice system to whatever degree possible.
The MCAO understands that the MPD is operating under an agreement to'ntered into with the United States Department of Justice (DOJ) on 5/15/2013 and desires to support MPD efforts in complying with that agreement. The MeAO is the criminal justice agency responsible fi:)r prosecuting felony sex offenses that occur within the jurisdiction of the ylPD, when reports have been sufficiently investigated and submitted for a charging decision.
The Parties acknowledge that nothing in the DOJ/MPD agreement of 51 1512013 or this Agreement is construed to restrict the MeAO's legal authority to conduct its responsibilities
under Montana laws, the rules of criminal procedure and the Montana Rules of Professional Conduct applicahle to attorneys.
Agreements of the Parties
Jli<;stmla Police Department
The MPD has separately and plior to this MOU entered into an agreement with DOJ which requires the ~vlPD to improve and increase its communication, coordination and coiJaboration with community and law enforcement partners for the improvement of sexual assault investigations. MPD has adopted changes to improve policies, training, and investigations using victim-centered, ofl'ender-focused techniques.
To fulfill its responsibilities in this agreement with the MCAO, MPD agrees to conduct thorough investigations of all reported sex oHcnses in a timely, comprehensive and unbiased manner. Victim advocacy services will be sought for every victim, although victims will have the .lbility to decline those services. Consultation with prosecutors during the investigation phase is also encouraged to increase collahoration and assist in identifYing priority cases ti:)r MeAO assistance.

MOU MCAO_MPD Final 20131213

EXHIBIT 

I ---....:-f}_

Page 1 of 4

I,.

• 


Memorandum of Understanding 
 Between 

Office of the Missoula County Attorney and the City of Missoula Police Department 
 December 13, 2013 


Completed felony sex offense investigations will he referred to the MeAO as a request

lor either:

I. REVIEW - Referred for Prosecutor Review Only 
 These referrals are cases where, in the eyes of the MPD deh".
Ctivc, the investigation has not developed probable cause necessary for arrest and prosecution.

•

2. CHARGING DECISION - Referred for Prosecution Charging Decision This category of referral will include cases where a custodial arrest hac; already taken plaee fbr a specific charge and/or where in the opinion of the MPD detective there is probable cause sufficient to charge an offender with a felony otrcnse.

All MPD submissions will include all written reports. statements or detailed statement
summaries, identified evidence and a recommendation of specified charges the investigator believes are supported by tacts found in those materials. The materials will be accompanied by a referral f<mn to t:.-nable consistent documentation of the decisions reached in the process.

Office oftile I',li~soula COUllty Attorney




The MCAO is committed to helping MPD effiJrts to improve the experience of sex assault victims in the criminal justice system and thereby agrees to:
1. j\lake assignments of cases referred for a charging dedsion a priority for its

prosecutors.

Ll. Sex assault cases referred for a charging decision are to be given high priority in the interest of achieving timely review and charging decisions. It is understood a charging decision should not be made in haste. To achieve improved communication and collaboration the prosecutor should make contact with the investigator within two weeks of reterral. Charging decisions or requests for additional investigation should be reflected in writing upon the referral form and returned in a timely fashion. Regardless, tvlCAO reserves
the right to decide when charges will be filed, what charges will be tiled, whether to seek an arrest warrant tor an alJeged offt.l1der. what hail, if any, to
seck with respect to alleged offenders and other such matters that are solely within the appropriate dis('Tction of the prosecuting attorney.

MOU MCAO_MPD Final 20131213

Page 2 of 4

Memorandum of Understanding 
 Between 

Office of the Missoula County Attorney and the City of Missoula Police Department 
 December 13, 2013· 

h. In instances of declination of prosecution. will provide a detailed written
..:xpbnution as to the reason the case will not be prosecuted, i.c. - why the evidence is insutlicicnt to obtain conviction, or prosecution is not in the best interest ofjustice, etc.
c. Prosecutors will make a reasonabJe effort to review any sex assault case
referred for review only within one month or provide explanation for delay.
At1er review MeAO prosecutors will provide written guidance as to
concurrence or suggested aitematives, including a request f'Or additional investigation.
2. Consult with MPD investigative supervisors to discuss cases before closure.
a. The MCAO will be responsive to efforts of:YIPD investigative supervisors to
meet and discuss whether sexual assault cases were appropriately investigated and/or whether additional investigation could be useful prior to :\lPD closing the case.
3. Participate in 'face--to-face meetings with victims, advocates and the case investigators.
3. The MCAO agrees that it can be helpful to victims to hear a unitied message
about the outcome of their criminal complaint and agrees to participate in joint victim meetings during the process as appropriate f'Or the circumstances.
\\then a referral f'Or prosecution is made and results in a declination of charges. the prosecutor will be responsible for arranging tor a joint meeting.
.... Commit to participation in the .:\lPD-led Community Safety and Accountahility Audit planned for 20) 4.
l. The City of Missoula is responsible for organizing and leading a sexual
assault saIety and accountahility audit during the h.'.ITll of the MPO agreement with DOJ. The MeAO agrees to be an engaged and collaborative participant in the audit alongside MPD. the University of Montana - Office ofPublic
Safety and other community partners involved in responding to rcports of Sexual nssault in the Missoula community.

MOU MCAO_MPD Final 20131213

Page 3 of4

• 


Memorandum of Understanding 
 Between 

Office of the Missoula County Attorney and the City of Missoula Police Department 

December 13, 2013 


Term of Agreement

This Agreement shall remain in full force and etIect from this date until modification by mutual agreement of both Patties, or until rescinded by either purty after reasonable attempts to attain necessary modifications.

This Agreement entered into this 13th day of December, 2013 in Missoula County, MT.

Fred Van Vulkenburg Missoula County Attorney
•

AP~
(~,,/y:. ~

~/

·7'::-,

/ JO~lri Engen, Mayor

/
,

/ City of Missoula

~ f

/

ATTEST:

•

MOU MCAOJ'v1PD Final 20131213

Page 4of4

Missoula County 
 Attorney's Office Status 

Report - Dated 
 December 9, 2014 


• • •

STATUS REPORT - December 9, 2014 MISSOULA COUNTY ATTORNEY'S OFFICE
The following is a status report to the AG's Office regarding the Missoula County Attorney's Office accomplishment of various requirements we agreed to undertake in the MOD regarding Sexual Assault Prosecution entered into between our two offices on July 8,2014.
1. Development of policies and guidelines for sexual assault. Completed 12/9/14. See Exhibit "A";
2. Training for county attorney supervisors and prosecutors in response to sexual assault provided this year:
a. Prosecuting the Difficult Sexual Assault Case, put on by Prosecution Services Bureau in Great Falls on May 23,2014. Topics included: Laws of Sex Offenses, Common Prosecution and Defense Arguments, Nuts & Bolts of Investigations, Ethics & the Prosecutor, WitnessNictim Relationships, Dispelling Myths, and Expert Witnesses;
b. Corroborating the Forensic Interview, put on by the Western Regional Children's Advocacy Center, June 24-25, 2014 in Missoula.
c. Roundtable discussion with Montana AG Prosecutor Services Bureau on 9/4114­ Subject: Sexual assault policy, procedure and/or protocols;
d. Webinar on 9116/14 - Rebecca Campbell- Subject: Neurobiology of Sexual Assault & Forensic Experiential Trauma Interview;
e. MCAA CLE on 12/4114 - Anne Munch - Subject: Conducting Voir Dire in Sexual Assault Cases;
3. Assurances as to on-going practices within the Missoula County Attorney's Office. Letter to AG from FVV (see attached Exhibit "B") providing assurances as to policies implemented:
a. In-person meetings with complaining witnesses; b. Case related communications with victims and victim advocates; c. Designation of sexual assault prosecutors; Jennifer Clark, Suzy Boylan and Jordan
Kilby; Supervisor - Jason Marks;
d. Supervisor review; e. Adherence to all agreed responsibilities set out in MODs with MPD and MCSO;
f. Participation in and support of sexual assault safety and accountability audit; g. MCAO training ofMPD and MCSO detectives on requirements of successful sexual
assault prosecutions;
MCAO Status Report Page 11

• •

1. The Missoula County Attorney's Office has been conducting regular in­ service trainings with the MPD detectives assigned to investigate sexual assault cases as part of the weekly SVU meeting. The Missoula County Sheriff-elect has pledged to specifically assign at least one detective to investigate these cases and has agreed to have the Missoula County Attorney's Office provide 8 hours of initial training in January of2015;
11. On-going responsibility of County Attorney elect.
4. In-house Victim Coordinator; County Attorney's FY '15 budget approved by Board of County Commissioners includes $48,136 for this purpose. The position has been advertised, interviews of applicants will take place on 12111114 and a hiring should take place a day later;
5. MOUs with MPD and MCSO; Attached as Exhibits "C" and "D";
6. Computer tracking system; - JustWare case management system is available to Victim Advocates for this purpose;
7. Improved communication and coordination with law enforcement and community partners. Designated sexual assault prosecutors participate in weekly SVU meetings with MPD; at least monthly Just Response team meetings and quarterly meetings with Just Response Committee members;
8. Working with stakeholders to clarify in writing the roles and responsibilities of the MCAO, crime victim advocates and community advocates related to supporting and communicating with victims of sexual assault; Responsibility of County Attorney elect;
9. Public education and outreach; on-going responsibility of County Attorney elect; a. Data collection; First quarterly report provided to AG on 11125114; See attached report, Exhibit "E";
b. Victim and advocate survey; On-going responsibility of County Attorney elect;
10. Expert Witness Expenses. County Attorney's FY '15 budget approved by Board of County Commissioners includes $10,000 for this purpose.
If you or anyone in the AG's Office have any questions or concerns, please let me know.

•

Fred Van Valkenburg 
 Missoula County Attorney 
 200 West Broadway 
 Missoula, MT. 59802 
 406-258-4737 
 fvanvalk(tlJ,co.missoula.mt.us

MCAO Status Report Page I2

Assurances to 
 Requirements in 
 Memorandum of 
 Understanding 


MISSOULA COUNTY

FRED VAN VALKENBURG COUNTY ATTORNEY 200W. BROADWAY
MISSOULA, MONTANA 59802-4292
(406) 258-4737 FAX (406) 258-4915

December 9,2014
Tim Fox Attorney General Department ofJustice 215 North Sanders P.O. Box 201401 Helena, Montana 59620-1401
Re: Assurances as to Requirements in MOU
Dear Attorney General Fox,
I am writing to provide you with my assurance that I have issued various policy directives to my staff requiring them to ensure that the following requirements in the Memorandum of Agreement Regarding the Prosecution of Sexual Assault cases between our offices dated June 10, 2014, are fully satisfied:
1. All attorneys responsible for the prosecution of sexual assault case shall conduct in-person meetings with complaining witnesses and shall communicate regularly with victims and victim advocates as to case related developments;
2. The following attorneys have been designated within our office to be primarily responsible for sexual assault prosecutions: Jennifer Clark, Suzy Boylan and Jordan Kilby. In addition, Assistant Chief Deputy County Attorney Jason Marks, is designated as the direct supervisor of such attorneys with respect to such sexual assault prosecutions and is providing the enhanced supervision referenced in the MOU;
3. The County Attorney's Office is in substantial compliance with all applicable requirements in MOUs entered into with MPD and the MCSO regarding the handling of sexual assault case referrals from such agencies; ;
4. The County Attorney's Office is participating in and supporting the sexual assault safety and accountability audit;
5. The Missoula County Attorney's Office has been conducting regular in-service trainings with the MPD detectives assigned to investigate sexual assault cases as part of the weekly SVU meeting. The Missoula County Sheriff-elect has pledged to specifically assign at least one detective to investigate these cases and has agreed to have the Missoula County Attorney's Office provide 8 hours of initial training in January of2015;

III

Tim Fox December 9,2014 Page 2 of2
If you need any additional information, please let me know. Yours truly,
Fred Van Valkenburg Missoula County Attorney

Memorandum of 
 Understanding 

between Missoula 
 County Attorney's 
 Office and Missoula 
 County Sheriff's Office 


Memorandum of Understanding 
 Between 

Office of the Missoula County Attorney and the Missoula County Sheriffs Office 
 September _ . 2014 

..... #­
This Memorandum of Understanding (MOU), dated September.s ,2014 is an Agreement by and between the Missoula County Attorney's Office (hereinafter MCAO) and the Missoula County Sheriff's Office (hereinafter MCSO), referenced collectively as ''the Parties".
Purpose
The purpose of this Agreement is to enhance the Parties collaboration and communication in the investigation and prosecution of reported criminal sex offenses, seeking to attain positive outcomes in keeping with the best interest ofjustice. The Parties are conunitted to working together with conununity partners to provide victims with timely investigations and prosecution decisions and to improve the victim's experience in the criminal justice system to whatever degree possible.
The MCSO understands that the MCAO is operating under an agreement entered into with the Montana Attorney General and desires to support MCAO efforts in complying with that agreement. The MCAO is the criminal justice agency responsible for prosecuting felony sex offenses that occur within the jurisdiction of the MCSO, when reports have been sufficiently investigated and submitted for a charging decision.
The Parties acknowledge that nothing in the Montana Attorney General/MCAO agreement of 6/10/2014 or this Agreement is construed to restrict the MCAO's legal authority to conduct its responsibilities under Montana laws, the rules of criminal procedure and the Montana Rules of Professional Conduct applicable to attorneys.
Agreements of the Parties
Missoula County Sheriff's Office
To fulfill its responsibilities in this agreement with the MCAO, MCSO agrees to conduct thorough investigations of all reported sex offenses in a timely, comprehensive and unbiased manner. Victim advocacy services will be sought for every victim, except when rejected by the victim. Consultation with prosecutors during the investigation phase is also encouraged to increase collaboration and assist in identifying priority cases for MCAO assistance.
Completed felony sex offense investigations will be referred to the MCAO as a request for either:
1. REVIEW - Referred for Prosecutor Review Only These referrals are cases where, in the eyes ofthe MCSO detective, the investigation has not developed probable cause necessary for arrest and prosecution.

Memorandum of Understanding 
 Between 

Office of the Missoula County Attorney and the Missoula County Sheriff's Office 
 September -,2014 

2. CHARGING DECISION· Referred for Prosecution Charging Decision This category of referral will include cases where a custodial arrest has already taken place for a specific charge and/or where in the eyes of the MCSO detective there is probable cause sufficient to charge an offender with a felony offense.
All MCSO submissions will include all written reports, statements or detailed statement summaries, identified evidence and a recommendation of specified charges the investigator believes are supported by facts found in those materials. The materials will be accompanied by a referral fonn to enable consistent documentation of the decisions reached in the process.
In evaluating cases and preparing prosecutions for trial, the MCAO reviews and evaluates investigations and may request further investigatory efforts when necessary to making a charging decision or in preparing a case for trial. MCSO will ensure that appropriate and adequate investigative services are available for the handling of sexual assault cases from intake through trial. If further investigation after referral of the case to MCAO is necessary, MCAO will request . further investigation from MCSO. MCAO and MCSO agree to utilize the services of specialized investigative expertise within the DCI whenever the necessary expertise for a particular sexual assault investigation is not available within local law enforcement offices. In addition, such expertise shall be requested whenever a conflict of interest would prevent an objective investigation or caseload demands on local law enforcement would unreasonably delay an investigation.
MCSO understands and acknowledges that MCAO supervisors are required to evaluate sexual assault investigations and prosecutions to ensure they are not undennined by lack of knowledge or impennissible bias and provide feedback to law enforcement. MCSO further understands and acknowledges that MCAO is required to conduct periodic supervisory review of sexual assault cases, to include identification of any deficiencies or delays in sexual assault investigations by law enforcement, and report their findings to the Montana Attorney General.
MCSO is aware that MeAO has agreed to conduct training for law enforcement. MCSO agrees to make suggestions for and cooperate in the development ofthat training.
Office ofthe Missoula County Attorney
The MCAO is committed to helping MCSO efforts to improve sex assault victims 
 experience in the criminal justice system and thereby agrees to: 

1. .Make assignments of referred sex offense cases a priority for its prosecutors.

Memorandum of Understanding 
 Between 

Office of the Missoula County Attorney and the Missoula County Sheriff's Office 
 September - ' 2014 

a. Sex assault cases referred for a charging decision are to be given high priority in the interest of achieving timely review and charging decisions. It is understood a charging decision should not be made in haste. To achieve improved communication and collaboration the prosecutor should make contact with the investigator within two weeks of referral. Charging decisions or requests for additional investigation should be reflected in writing upon the referral form and returned in a timely fashion. Regardless, MCAO reserves the right to decide when charges will be filed, what charges will be filed, whether to seek an arrest warrant for an alleged offender, what bail, is any, to seek with respect to alleged offenses and such other matters that are solely within the appropriate discretion of the prosecuting attorney.
b. In instances of declination of prosecution, will provide written explanation as to reasons case will not be prosecuted, i.e. - why the evidence is insufficient to obtain conviction, or prosecution is not in the best interest ofjustice, etc.
c. Prosecutors will make a reasonable effort to review any sex assault case referred for review only within one month or provide explanation for delay. After review MCAO prosecutors will provide written guidance as to concurrence or suggested alternatives, including a request for additional investigation.
2. Consult with MeSO investigative supervisors to discuss cases before closure.
a. The MCAO will be responsive to efforts ofMCSO investigative supervisors to meet and discuss whether sexual assault cases were appropriately investigated andlor whether additional investigation could be useful prior to Meso closing the case.
3. Participate in face-to--face meetings with victims, advocates and the case investigators.
a. The MCAO agrees that it can be helpful to victims to hear a unified message about the outcome of their criminal complaint and agrees to participate in joint victim meetings during the process as appropriate for the circumstances. When a referral for prosecution is made and results in a declination of charges, the prosecutor will be responsible to arrange for the joint meeting.

Memorandum of Understanding 
 Between 

Office of the Missoula County Attorney and the Missoula County Sheriffs Office 
 September -.--J 2014 


Term of Agreentent

This Agreement shall remain in full force and effect from this date until modification by mutual.

agreement ofboth Parties, or until rescinded by either party after reasonable attempts to attain

necessary modifications~

. ~.=. ~ ~ay County~ MT~ Enteredinto Agreement this

of September, 2014 in Missoula

fred Van Valkenburg, C ty
Missoula County Attorneys Offi

Catl Ibsen, Sheriff Missoula, County Sheriff's Office

Memorandum of 
 Understanding 

between Missoula 
 County Attorney's 
 Office and the Missoula 
 Police Department 


Amended Memorandum of Understanding Between 
 Office of the Missoula County Attorney ~~i the Missoula Police Department 

Septemberfg'1'o14 

This Amended Memorandum of Understanding (MOU), dated September _,2014 is an Agreement by and between the Missoula County Attorney's Office (hereinafter MCAO) and the Missoula Police Department (hereinafter MPD), referenced collectively as "the Parties".
Purpose
The purpose ofthis Agreement is to enhance the Parties collaboration and communication in the investigation and prosecution of reported criminal sex offenses, seeking to attain positive outcomes in keeping with the best interest ofjustice. The Parties are committed to working together with community partners to provide victims with timely investigations and prosecution decisions and to improve the experience of victims in the criminal justice system to whatever degree possible.
The MCAO understands that the MPD is operating under an agreement entered into with the United States Department of Justice (DOJ) and desires to support MPD efforts in complying with that agreement. The MCAO is the criminal justice agency responsible for prosecuting felony sex offenses that occur within the jurisdiction of the MPD, when reports have been sufficiently investigated and submitted for a charging decision.
The MPD understands that the MCAO is operating under an agreement entered into with the Montana Attorney General and desires to support MCAO efforts in complying with that agreement
The Parties acknowledge that nothing in the DOJ/MPD agreement, the Montana Attorney GenerallMCAO agreement or this Agreement is construed to restrict the MCAO's legal authority to conduct its responsibilities under Montana laws, the rules of criminal procedure and the Montana Rules of Professional Conduct applicable to attorneys.
Agreements of the Parties
Missoula Police Department
The MPD haS separately and prior to this MOU entered into an agreement with DO] which requires the MPD to improve and increase its communication, coordination and collaboration with community and law enforcement partners for the improvement of sexual assault investigations. MPD has adopted changes to improve policies, training, and investigations using victim-centered, offender-focused techniques.
To fulfill its responsibilities in this agreement with the MCAO, MPD agrees to conduct thorough investigations of all reported sex offenses in a timely, comprehensive and unbiased manner. Victim advocacy services will be sought for every victim, although victims will have the

Amended Memorandum of Understanding Between 
 Office of the Missoula County Attorney an~ the Missoula Police Department 

Septembe(t~014 

ability to decline those services. Consultation with prosecutors during the investigation phase is also encouraged to ~crease collaboration and assist in identifying priority cases for MCAO assistance.
Completed felony sex offense investigations will be referred to the MCAO as a request for either:
1. REVIEW - Referred for Prosecutor Review Only These referrals are cases where, in the eyes of the MPD detective, the investigation has not developed probable cause necessary for arrest and prosecution.
2. CHARGING DECISION - Referred for Prosecution Charging Decision This category of referral will include cases where a custodial arrest has already taken placefor a specific charge andlor where in the opinion of the MPD detective there is probable cause sufficient to charge an offender with a felony offense.
All MPD submissions will include all written reports, statements or detailed statement
summaries, identified evidence and arecommendation of specified charges the investigator
believes are supported by facts found in those materials. The materials will be accompanied by a referral form to enable consistent documentation of the decisions reached in the process.
In evaluating cases and preparing prosecutions for trial, the MCAO reviews and evaluates investigations and may request further investigatory efforts when necessary to making a charging decision or in preparing a case for trial. MPD will ensure that appropriate and adequate investigative services are available for the handling of sexual assault cases from intake through trial. If further investigation after referral of the case to MCAO is necessary, MCAO will request further investigation from MPD. MCAO and MPD agree to utilize the services of specialized investigative expertise within the Montana Division of Criminal Investigation whenever the necessary expertise for a particular sexual assault investigation is not available within locallaw enforcement offices. In addition, such expertise shall be requested whenever a conflict of interest would prevent an objective investigation or caseload demands on local law enforcement would unreasonably delay an investigation.
MPD tmderstands and acknowledges that MCAO supervisors are required to evaluate sexual assault investigations and prosecutions to ensure they are not tmdennined by lack of knowledge or impennissible bias and provide feedback to law enforcement. MPD further understands and acknowledges that MCAO is required to conduct periodic supervisory review of sexual assault cases, to include identification of any deficiencies or delays in sexual assault investigations by law enforcement, and report their findings to the Montana Attorney General.
MPD is aware that MCAO has agreed to conduct training for law enforcement. MPD 
 agrees to make suggestions for and cooperate in the development of that training. 


Amended Memorandum of Understanding Between 
 Office of the Missoula County Attorney anst,..the Missoula Police Department 

Septemberlct'W14 

Office of the Missoula County Attorney
The MCAO has separately and prior to this Amended MOU, entered into an agreement with the Montana Attorney General which requires the MCAO to improve policies and practices related to sexual assault prosecutions in Missoula County.
The MCAO is committed to helping MPD efforts to improve the experience of sex assault victims in the criminal justice system and thereby agrees to:
1. Make assignments of cases referred for a charging decision a priority for its prosecutors.
a. Sex assault cases referred for a charging decision are to be given high priority in the interest of achieving timely review and charging decisions. It is understood a charging decision should not be made in haste. To achieve improved communication and collaboration the prosecutor should make contact with the investigator within two weeks of referral. Charging decisions· or requests for additional investigation should be reflected in writing upon the referral form and returned in a timely fashion. Regardless, MCAO reserves the right to decide when charges will be filed, what charges will be filed, whether to seek an arrest warrant for an alleged offender, what bail, if any, to seek with respect to alleged offenders and other such matters that are solely within the appropriate discretion of the prosecuting attorney.
b. In instances of declination of prosecution, will provide a detailed written explanation as to the reason the case will not be prosecuted, i.e. - why the evidence is insufficient to obtain conviction, or prosecution is not in the best interest ofjustice, etc.
c. Prosecutors will make a reasonable effort to review any sex assault case referred for review only within one month or provide explanation for delay. After review MCAO prosecutors will provide written guidance as to concurrence or suggested alternatives, including a request for additional investigation.
2. Consult with MPD investigative supervisors to discuss cases before closure.
a. The MCAO will be responsive to efforts ofMPD investigative supervisors to meet and discuss whether sexual assault cases were appropriately investigated

Amended Memorandum of Understanding Between 
 Office of the Missoula County Attorney an e Missoula Police Department 

September: 14 

andlor whether additional investigation could be useful priortQ MPD closIng the case.
3. Participate in face~tf1..:face meetings with victims, advocates and the case
investigators~
a. The MCAO agrees thatit can be helpful to victims to heafaunified message about the outcome of their criminal complaint and agrees.toparticipatein jQint victim meetings duritig the process as appropriate for the circumstances.
When a refemil fur prosecution is made and resultsin adeclination of
charges, the prosecutor will be responsible for arranging for a joint meeting.
4. Commit to participation in the MPD led Community Safety and Accountal;Jility Audit planned for 2014.
a. The City ofMissoula is responsible for organizing and leadi:rtga.sexual assault safety and accountability audit during the term ofthe MPD agreement with DOl. The MCAO agrees to be an engaged and collaborative participant in the audit alongside MPDj the University ofMontana - Office ofPublic Safety and other community partners involved in responding to reports of Sexual assault in the Missoulaoommunity.
Term ofAmended Agreement
This Amended AgreementshaU remflin in full force and effect from this date until modificatiDn by mutual agreement of both Parties:~ or until rescinded by either party after reasottable attempts to attain necessary modifications.
This Amended Agreement entered into this I fdfla. y of Sept~ber, 2(H4in Missoula County,
MT.
Fred Van Valkenburg Missoula County Attorney

Spreadsheet of 
 Missoula County Sexual 

Assault Reviews 


IThe cases below were referred to the Missoula County Attorney's Office by law enforcement for review only. Cases referred for review only are cases in which the investigator has determined that probable cause for a charge does not
no suspect has been identified and all leads have been exhausted, or the victim has requested that the investigation be discontinued. The assigned prosecutor reviews that investigation and either agrees with the law enforcement decision to make the case inactive or refers the case back for further investigation.

LE Case Number 2014-854 2014-11348
2014-5100

Date Referred for review 7/8/2014 7/9/2014

Decision - 1) Review complete ­ agree with assessment or 2)
Review complete - referred for further iIlVC:UI6cUIUII

Time Between Referral

Date of Decision

and Decision

review complete - ~

9/8/2014

2 months

review complete - agree

7/29/2014

20 days

7/25/2014

review complete - agree

9/16/2014

1 month 22 days

P131012-010

6/18/2014

2014-2526

6/20/2014

'n1L1.-~1:\1:\9
2014-6195 2014-18539 2014-8880 2014-1341

6/23/2014
7/15/2014 8/5/2014
_~2Q14
9L18/2014

2014-26666

9/25/2014

2014-14419

9/29/2014

2014-14419 2014-27553

9/29/2014
1~0/~14

2014-2209/2014-2310 8/26/2014

5121126-013
• 


8/29/2014

review complete - referred for further investigation
review compl~ agree
review complete - agree review complete - referred for
further investigation review c~plete - agree review complete - agree review complete - agree
review complete - agree
review complete - agree
review complete - <'lg~ee review complete - agree reviewed - referred for more
investigation reviewed - referred for more
investigation

8/21/2014 8/12/2014 8/12/2014 11/13/2014 8/15/2014
_~/12/2014
10&_9/2Q14 11/14/2014
11/14/2014 11/14/2014 10Q!/2Q14 9/19/2014
9/4/2014

2 months 4 days 1 month 22 days 1 month 19 days 4 months 11 days
10 days 7 days 32 days 1 month 19 days
1 month 14 days 1 month 14 days
1 day 24 days 5 days

Spreadsheet of 
 Missoula County Sexual 

Assault Referrals 


LE Case Number

Date Referred

Decision ­

l)Charged,

Referred back 2) Declined,

before charging 3) Referred for

decision

investigation

2014-12873 9/23/2014 2014-1661 6/11/2014

Charged

No

DC-14-527

Charged

Yes

CR-2014-12687-Cl

Date of Decision

Time Between Referral
(receipt) and Decision

Date of first contact with Victim or evA

Time between referral and first contact with victim or evA

9/24/2014

1 day

10/20/2014 3 mo 9 days

10/23/2014 7/25/14

30 days 40 days

Initial Plea Offer Not yet made Not yet made

Time between Date of Intial charging/meeting
Plea Offer and plea offer

case Disposition

Sentence

Time between initial offer
and disposition

Time

Time

between

between charging

referral and and

disposition disposition

2014-4203 6/12/2014

2014-20800 8/8/2014

2014-29367 9/29/2014

2014-35246 2014-35246
(co­ defendant)

11/5/2014 11/5/2014

No No No Ongoing Ongoing

Declined - Victim would not respond to correspondence from detecive and CVA

6/17/2014

Charged DC-14-436

8/8/2014

Charged DC-14-530 Charged DC-14-598

9/29/2014 11/6/2014

Charged DC-14-599

11/6/2014

4 days
odays odays
1 day

Detective and advocate

unable to contact

victim. Call to victim

advocate 6/24/2014

12 days

N/A

N/A

N/A

N/A

Charging: 2 months

2 months 13 25 with 15 suspended

21 days; Contact: 8

10/21/2014

days

MSP

10/29/2014 days

CVA-ODAYS

evA - 9/29/2014

VICTIM-O

VICTIM - 9/29/2014

DAYS

Not yet made

11/7/2014

2 days

Not yet made

1 day

11/7/2014

2 days

Not yet made

N/A

N/A

N/A

N/A

2014-14691 2014-15207 2014-5768 2014-15769

7/9/2014 8/26/2014

CVA- 5 DAYS,

CVA - 07/15/2014

VICTIM-

VICTIM - voicemail: phone: 27 days,

Charged

8/6/2014; meeting:

meeting 1

No

DC-14-373

7/10/2014

1 day

08/20/2014

month 10 days

Not yet made

Charged

No

CR-2014-12491-Cl 9/2/2014

7 days

Not yet made

•

•

•

Missoula County 
 Attorney's Office Sexual 

Assault Policy and 
 Procedure Manual 


• 


MISSOULA COUNTY ATTORNEY'S 
 OFFICE 


SEXUAL ASSAULT 
 POLICY & PROCEDURE MANUAL 

•

•

First Edition, December 2014
1

•
TABLE OF CONTENTS

Introduction

6

Chapter 1: Victim-Centered, Offender-Focused Prosecution

12

THE VICTIM-CENTERED RESPONSE

14

THE OFFENDER-FOCUSED RESPONSE

14

Chapter 2: Developing and Maintaining Relationships with Victims

19

TIMELINES

19

ADVOCATE INVOLVEMENT

22

RELATIONSHIPS WITH ADVOCATES

22

MEETINGS WITH VICTIMS

25

Tips for Meetings with Victims 


26

Topics for Meetings with Victims 


30

Chapter 3: Rape Myths, Commons Responses to Sexual Assault, and Trauma 37

RAPE MYTHS

37

UNDERSTANDING COMMON VICTIM RESPONSES TO SEXUAL

ASSAULT

39

Delayed Reporting

41

Inconsistent Accounts ofthe Assault

43

Apparently Cooperative Behavior ofthe Victim

47

Misunderstood Emotion

48

Lack ofResistance

49

TRAUMA

Definition ofTrauma

51

The Science ofTrauma

53

Common Reactions to a Traumatic Event

54

Common Cognitive Reactions to Sexual Assault

55

Common Emotional Reactions to Sexual Assault

55

Common Social Reactions to Sexual Assault

56

Common Physical Reactions to Sexual Assault

56

Neurobiology ofTrauma

57

Fight, Flight, or Freeze

58

Tonic Immobility

60

Trauma and Memory

61

Recovery from the Trauma ofSexual Assault

62

Stages ofTrauma and Recovery

64

Chapter 4: Rape Myths and the Realities of Offenders of Sexual Assault

69

2

• •

• • 
 • 


OFFENDERS OF NON-STRANGER SEXUAL ASSAULT TEND TO BE

SERIAL CRIMINAL OFFENDERS

71

OFFENDERS OF NON-STRANGER SEXUAL ASSAULT SEEK TO CREATE

OR EXPLOIT VICTIM VULNERABILITY, ACCESSIBILITY, AND LACK OF 


CREDIBILITY

75 


USE OF ALCOHOL BY SEXUAL OFFENDERS

78 


Chapter 5: Montana Sexual Assault Statutes SEXUAL INTERCOURSE WITHOUT CONSENT Sexual Intercourse Without Consent Sentencing in Sexual Intercourse without Consent Cases SEXUAL ASSAULT Sexual Contact Without Consent Sentencing in Sexual Assault Cases KNOWLEDGE Laws Generally Applicable to Sex Crimes Failure to Make a Prompt Outcry Resistance is Not Required Rape Shield Statute

85 
 86 
 87 

88 
 94 

98 
 99 

101 
 103 
 103 
 104 
 104 
 105 
 105 


Chapter 6: Issues in Prosecuting Sexual Assault Cases

110 


INVESTIGATING AND ANALYZING SEXUAL ASSAULT CASES

111 


General Questions

112 


Reporting Issues

113 


Injuries/Victim's Physical Condition

114 


Investigation ofthe Suspect

114 


Analyzing Credibility and Corroboration

117 


DRUG- AND ALCOHOL-FACILITATED SEXUAL ASSAULT

130 


Charging AFSA Cases

135 


Analyzing Consent: General Factors

140 


Analyzing Consent: Defendant's Predatory Behavior

140 


Trying Alcohol- and Drug-Facilitated Sexual Assault Cases

142 


VICTIMS WITH MENTAL ILLNESS

145 


RECANTING VICTIMS

148 


ISSUES SPECIFIC TO ADOLESCENT VICTIMS

150 


Negative Stereotypes ofAdolescents

151 


Adolescents to Make Bad Decisions/Lie To Cover Themselves/Tell Partial 


Truths

154 


Interviewing Adolescents

156 


Adolescent Runaways

162 


Adolescents Have Sex

166 


Adolescents Easily "Get in Over Their Heads"

167 


Adolescent Grooming Behaviors

170 


3

Consent Issues The Internet Multiple Offenders Gang Rape Cases Adolescent Prostitution Adolescents with a History of Victimization WORKING WITH MARGINALIZED POPULATIONS Barriers to Seeking Justice Culture Specific Barriers Native American Women African-American Women Latina Women Undocumented Women Hmong Women Justice-Involved Women LGBTQ Populations Victims ofHuman Trafficking Victims with cognitive or Developmental Disabilities Victims with Mental Health Problems Considerations in Working with Marginalized Populations SEXUAL ASSAULT IN INTIMATE PARTNER RELATIONSHIPS

173 176
179 180 183 
 184 

185 
 186 
 187 

189 

191 193 194
197 198
200 204 207 209 211

Chapter 7: Issues in Charging Sexual Assault Cases

224

IS THE INVESTIGATION COMPLETE?

225

SEARCH FOR CORROBORATING EVIDENCE

226

MEETING WITH THE VICTIM

226

CHARGING CONSIDERATIONS/ANALYTICAL FRAMEWORK

228

USE OF NON-SEXUAL ASSAULT CHARGES IN THE INFORMATION 229 


DETERMINE IF PFO STATUTE APPLIES

231

TIMING OF FILING OF CHARGES

232

PROCEDURES FOR DECLINED CASES

233

Chapter 8: Issues in Trying Sexual Assault Cases PROTECTING VICTIMS PRE-TRIAL Pretrial Motions Working with the Victim JURY SELECTION OPENING STATEMENT ORDER OF WITNESSES DIRECT EXAMINATION OF THE VICTIM EXPERT TESTIMONY Determining When Expert Testimony is Needed Who Can Be an Expert Direct Examination ofthe Expert Witness and Cautions DEFENSE EXPERTS

235 236
236 238 241 252
255 256 261 262 263
256 279

4

•
•
•

• •

CROSS-EXAMINATION OF THE DEFENDANT EVIDENCE OF DEFENDANT'S "GOOD CHARACTER"

280 
 286 


COUNTERING COMMON DEFENSES TO SEXUAL ASSAULT "He Said/She Said" Cases Overcoming the False Report Myth Lack ofPhysical Injury The Consent Defense Other Potential Defenses
CLOSING ARGUMENT AND REBUTTAL

289 
 289 
 292 
 295 
 295 
 302 

305 


Chapter 9: Issues in Plea Agreements and Sentencing in Sexual Assault Cases 307 


CONSULTING WITH THE VICTIM

311 


OFFENDER-FOCUSED APPROACH

313 


PLEA AGREEMENT LIMITATIONS

315 


Chapter 10: Coordination with Community Partners

318 


MISSOULA'S COLLABORATIVE RESPONSE - THE JUST RESPONSE 


MDT

320 


Team Members

321 


Mission Statement and Guiding Principles

321 


REFERENCES

326


•

5

INTRODUCTION!

•

Sexual assault cases are among the hardest to successfully prosecute.

While no manual can take the place of the hard work, collaboration, skill,

training, and experience needed to successfully prosecute sexual assault

cases, this is an attempt to provide necessary information to experienced and

inexperienced prosecutors alike to assist in evaluating and trying cases and

in developing relationships with victims and with community partners. The

Manual includes information on issues that prosecutors will encounter in

their first sexual assault case, and in their hundredth. There is no formula

prosecutors can apply to every sexual assault case; however, the information •

in this manual will assist in developing critical, nonjudgmental, and sensitive

frameworks for approaching the very difficult issues inherent in sexual

assault cases.

This manual starts at the beginning; in addition to providing legal information and practice tips, it covers critical areas such as the stereotypes and rape myths seen in jury pools, society in general, and sometimes within

1 A substantial portion of this chapter has been excerpted and modified with permission from the Michigan Domestic and Sexual Violence Prevention and Treatment Board and the Prosecuting Attorneys Association of Michigan. Originally published in The Michigan Prosecutors Sexual Assault Prosecution Manual (2013). All rights reserved.
6

•

•

the criminal justice system itself; offender dynamics; and communicating

with victims. Several sections focus on specific issues in prosecuting sexual

assault cases; however all chapters contain themes and practice tips that

universally apply to responding to and prosecuting sexual assault cases.

• 


Because of the prevalence of the stereotypes and biases surrounding sexual assault, we must recognize that sexual assault truly is not like other crimes, and the scope of knowledge required is broader than that required to prosecute other types of crimes. Prosecutors, therefore, must be armed with current research and employ best practices, defined as "commercial or professional procedures that are accepted or prescribed as being correct or most effective.,,2

This Manual also includes detailed information about recent research on trauma. Emerging research in psychology and neurobiology shows that many common victim behaviors and reactions upon which rape myths are based actually have a basis in psychology and neurobiology. The application of trauma research to the prosecution of sexual assault cases is relatively new; therefore a significant portion of this Manual is devoted to

•

2 Oxford Dictionary.

7

the research underlying common victim behaviors that often serve as obstacles to successful prosecution.

•

The guidelines laid out in this Manual are intended to promote

consistency and coordination and reflect a comprehensive set of best

practice responses to sexual assault. While these guidelines reflect the

priorities of victim safety and offender accountability, the ways to get there

may vary from one case to another. These guidelines are not intended to

serve as a rigid set of rules, but rather as a solid foundation of information

and guidance.

These guidelines are based on the following principles:

•

• We recognize that victims are never responsible, in all or in part, for their victimization, regardless of the circumstances leading up to or surrounding the assault, such as lifestyle choices or behavior;

• We recognize that sexual assault is the ultimate loss of personal control and autonomy and we are committed to working with advocates, law enforcement, and our Just Response multi­ disciplinary team to empower victims by giving them choices, support, and respect;

• We recognize that most sexual assaults are non-violent and are

committed by someone known to the victim, and reject the "real

rape" stereotype;

• 8

• • 


• We recognize that rape myths and stereotypes commonly employed by defense attorneys, reflected in popular culture, and believed by some jurors must be confronted and dispelled by the criminal justice system wherever possible;
• We recognize that victims display a wide range of behaviors and emotions, and are committed to becoming more trauma­ informed;
• We recognize that prosecuting sexual assault cases is particularly demanding and complex, and requires expertise in many areas, including trauma and victim and offender dynamics.
The gender-specific language used in this Manual is not intended to
minimize the experience of male victims of sexual assault; we know that
many men of all ages experience sexual assault. However, most victims of
sexual assault are women and girls, and most offenders are men. The use of
those pronouns in this Manual reflects that reality. And because the English
language contains no singular gender neutral pronoun, the writing quickly
becomes stilted and confusing if one or the other is not used consistently.

The term "sexual assault" is used throughout this manual to refer to sexual offenses in general, not a specific offense.

This Manual is the result of a collaboration between the Missoula

•

County Attorney's Office and the Montana Attorney General's Office. Some
9

parts of this manual are original writing. We also reviewed a number of excellent manuals from other jurisdictions and have cited many of them

•

here, including the Oregon Sexual Assault Task Force's 2009 Oregon SART

Handbook and The Massachusetts District Attorneys Association's

Massachusetts Prosecutors' Manual: Domestic Violence & Sexual Assault.

We want to express particular gratitude to several organizations who

generously permitted us to use full excerpts of, and adapt several section of,

their publications: the Prosecuting Attorneys Association of Michigan, the

Wisconsin Office of Justice Assistance, and the National District Attorneys

Association. Their research made ours much easier. We have included some of their research references at the end of this Manual. We also thank Anne

•

Munch for her assistance.

Tim Fox Montana Attorney General
Brant Light Bureau Chief, Prosecution Services Bureau
Montana Attorney General's Office
Ole Olson Assistant Attorney General, Prosecution Services Bureau 

Montana Attorney General's Office 


•10

• • 


Joel Thompson Assistant Attorney General, Prosecution Services Bureau
Montana Attorney General's Office
Dan Guzynski Assistant Attorney General, Prosecution Services Bureau 

Montana Attorney General's Office 

Fred Van Valkenburg Missoula County Attorney
Jennifer Clark ChiefDeputy Missoula County Attorney
SuzyBoylan Assistant ChiefDeputy Missoula County Attorney
Jason Marks Assistant ChiefDeputy Missoula County Attorney

•

11

Chapter 1 VICTIM CENTERED, OFFENDER-FOCUSED

•

PROSECUTION3

According to a White House study, nearly one in five women is sexually assaulted in her lifetime. 4 In light of this extraordinarily high rate

of victimization, developing a coordinated community response - in which

the victim's needs are prioritized - is more important than the defendant - to

provide effective medical care, support and advocacy to survivors and

meaningful criminal justice intervention with sex offenders is imperative.

The primary role of prosecution

~;'~victim-c¢lltered,~~ffitJ;;er-focused respollse :,y 0),
the prosecutioll .iJ! s~ittll;, assault crimes ".iJ;)

•

is to see that justice pr(ulicateion the~~eetli;'t'xp'(qtect the victim~s;(

safety, pril,iacy and .. well:'belhg while holdi is accomplished.5 In offenders accountable.

pursuing that goal in

cases of sexual assault, prosecutors must work in a coordinated and

collaborative fashion with law enforcement, advocates, medical

3 A substantial portion of this chapter has been excerpted and modified with permission from the Michigan Domestic and Sexual Violence Prevention and Treatment Board and the Prosecuting Attorneys Association of Michigan. Originally published in The Michigan Prosecutors Sexual Assault Prosecution Manual (2013). All rights reserved. 4 Rape and Sexual Assault: A Renewed Call to Action. White House Council on Women and Girls, January 2014. 5 NDAA Prosecution Standards, 1991.
12

•

• • •

professionals and crime labs. Prosecutors are responsible for assessing reports of sexual assault to determine if enough evidence exists or could be obtained to file criminal charges. Prosecutors must also consider the ethical issues involved in determining whether or not to file a criminal complaint, and to consider the victim's wishes and well-being in making decisions in a particular case, with the understanding that going through the criminal justice process is not the right thing for all victims.

When someone who has been sexually assaulted comes to a prosecutor as a victim, the actions

power~ prosecut;rshqve:,cthe

to UY,U",

r~duc~ viJti:;: ')itraumtl and helJr

then:~d}~c~tiae~ivors.~~llr

that prosecutors takes, and the choices the prosecutor makes, can have a life­

long impact on that victim. Research has confirmed that the initial

interactions the victim has with medical personnel, law enforcement and

prosecutors have a profound impact on their recovery. Prosecutors have the

power to help reduce victims' trauma, and to help them move from being

victims to becoming survivors - regardless of the outcome of the criminal

justice process.

A victim-centered, offender-focused response to the prosecution of sexual assault crimes is predicated on the need to protect victims' safety,
13

privacy and well-being while holding offenders accountable. The goal of this • approach is to decrease re-victimization by ensuring survivors of sexual assault are treated with compassion and respect. Myths and misinformation surrounding the crime of sexual assault, along with the tendency of the defense and jurors to focus on the victim's actions instead of the offender's, present unique challenges in the successful prosecution of the crime of sexual assault. Prosecutors are uniquely positioned to educate the community, jury by jury, about sexual assault dynamics and the tactics used by offenders.

The need for prosecutors to support victims cannot be overstated. In communities that lack victim advocates, the prosecutor's office may be the

•

only resource available to support victims through the process and to educate

victims about their rights as crime victims - rights to participation,

information, confidentiality, financial restoration and restitution.6

The Victim-Centered Response A victim-centered response to sexual assault prioritizes the needs of victims, seeks to preserve their safety and restore their dignity, and supports victims

6 See Mont. Code Ann., Title 23, Chapter 24.

•14

• • 
 •

in their efforts to seek justice and healing. At its core, it includes: • Recognizing that victims are never responsible for the crimes 
 committed against them; 
 • Recognizing that offenders are always responsible for their crimes; • Recognizing that the victim's choices, safety, and well-being are the primary focus; • Recognizing and respecting victims' choices about and input into the criminal ju~tice response; • Recognizing that the victim is at the center of all decisions regarding recovery and any involvement with the criminal justice system and that pursuing prosecution may not be in the best interest of every victim; and
• Recognizing that responding to the needs of the victim become everyone's concern and a collective effort. A victim-centered approach acknowledges that justice represents
more than a successful prosecution. It is important for victims to have an
experience ofjustice, regardless of the legal outcome of an individual case.
Justice exists when victims are listened to and taken seriously. This is
particularly important given that victims often choose not to report out of
fear that they won't be believed. Furthermore, research has increasingly
demonstrated that victims who experience a supportive and compassionate
response, regardless of the criminal justice system outcomes, have lower
rates of post-traumatic stress than victims who experience a secondary
15

trauma in the form of disbelief and blame. The goal is to create response

•

protocols that mitigate the harm and trauma that victims experience and that

allow individual survivors to experience justice regardless of the legal outcome of the case.7

The Offender-Focused Response

Prosecution of sexual assault crimes should also be offender-focused.

An offender-focused response acknowledges that offenders purposefully,

knowingly and intentionally target victims whom they believe they can

successfully assault. This includes

Ofi~l'lders;purposely, knoJi;l,gly

aniiintentionall·· .

whom· ·····;Fa

can

potential victims who offenders perceive as vulnerable, accessible,

•

h
victims and/or lacking in credibility. The

it as vulnera41f!~
acc~$$ible, ~ndlor ~ackin~lItiij; victim's perceived lack of credibility

credibility~,

;;l}~lif:

"f;
is seen by the offender as an

assurance of the offender's ability to escape accountability. Unfortunately, a

lack of focus on the offender is exactly what the offender needs to continue

offending. Therefore, an offender-focused response draws attention to the

7 Oregon Sexual Assault Task Force SART Handbook, p.6.

•16

• • •

actions, behaviors, characteristics and, to the extent permitted by the Rules of Evidence, the prior criminality of the offender.

An offender-focused response requires knowledge of the nature of sex offenders and considers the following:

• Adult sex offenders are often repeat or serial offenders;

• Adult sex offenders often target people they know;

• Adult sex offenders are often practiced liars who have a history of avoiding detection through deception and manipulation.
Prosecutors should incorporate this

knowledge of sex offenders into the investigation and prosecution of sexual

amounts
the oJle~der'~

assault cases while keeping an open mind

about the facts and not prejudging the case during the course of an

investigation.

In an offender-focused response, taking care to make decisions about a case can only be done after a full and fair investigation, to do justice for victims, hold offenders accountable, and uncover the rare but real false
17

reports.8 "Knowing what we do about sexual assaults - that truth is stranger

•

than fiction - no sexual assault report should ever be dismissed or deprived

of a fair and full investigation on the basis of anyone's initial reaction to the

facts. Offenders count on such responses, and our falling prey to them ­

whether it is the investigating detective or the prosecutor - it amounts to

playing into the offender's hands.,,9

•

8 A study of false reporting research found that when "methodologically rigorous research has been conducted, as opposed to estimates for the percentage of false reports begin to converge around 2-8%." False Reports: Moving Beyond the Issue to Successfully Investigate and Prosecute Non-Stranger Sexual Assault, Lonsway, Archambeault, and Lisak. The Voice, Vol. 3, No.1, published by the National Center for the Prosecution of Violence Against Women, 
 National District Attorneys Association. 
 9 Wisconsin Prosecutors' Sexual Assault Reference Book, p.130. 

18

•

•

Chapter 2

DEVELOPING AND MAINTAINING

RELATIONSHIPS WITH VICTIMS10

Because the physical, emotional, and psychological well-being of the victim is considered in all phases of the case, communication with victims is of paramount importance. Advocates playa critical role in this process.

Although prosecutors may not be in the position to oblige all the

requests of victims, research has demonstrated that showing an interest in a

victim's perspective and giving consideration to her requests may have a

•

more significant impact on the victim than the resolution of the case in the

criminal justice system. 11

Timelines

Prosecutors will meet with victims as early in the process as possible and, if possible, before the decision to charge a case has been made. When a case is referred to the Missoula County Attorney's Office for possible prosecution, the assigned prosecutor will make contact with the law

• 


10 Parts of this chapter are sourced from the Oregon Sexual Assault Task Force SART Handbook and The Massachusetts Prosecutor's Manual: Domestic Violence and Sexual Assault, Third Edition, Massachusetts District 

Attorney's Association, 2010. 
 11 Oregon SART Handbook, p.49. 

19

enforcement investigator within two weeks. The prosecutor will make requests for additional investigation, in writing, in a timely fashion. We

•

agree that "it is best practice for prosecutors to take a proactive role in

identifying and acquiring information and corroborative details necessary to

prosecute the case" and that, in circumstances where a suspect has not

already been arrested, "choosing to file or not to file charges should be

avoided until all of the information related to the circumstances leading up

to and surrounding the sexual assault has been fully pieced together.,,12

In cases in which a probable cause arrest is made and a complaint has

to be filed within 48 hours, a pre-charging meeting with the victim will often not be feasible. In those cases, the victim meeting will occur as soon as

•

possible.

In cases in which the investigator does not believe a prosecutable case exists, a prosecutor will be assigned to review the case. The prosecutor will review the case within one month of referral or provide explanation for any delay. The prosecutor will then provide written guidance as to concurrence or suggested alternatives, including a request for additional investigation. If

12 Oregon SART Handbook, p.4S.

•20

•

the victim wishes to meet with the investigator and the prosecutor, the

investigator will schedule a meeting.

• 
 •

In cases referred for prosecution and cases referred for review only, as well as cases still in the investigative phase, an investigator or prosecutor wanting input or assistance can request the case be staffed at a Missoula County Attorney's Office staff meeting, a Just Response case review meeting, or the weekly meeting between the Missoula County Attorney's Office and the Missoula Police Department Special Victims Unit. Any prosecutor or investigator can request a staffing meeting at any time.
Whether a case is charged or declined, it is helpful to victims to hear a unified message about the case. The assigned prosecutor and detective will meet with the victim and the victim's advocate to explain a decision to charge the case, a decision to decline the case, or a decision to request additional investigation before making a charging or declination decision. In some cases, particularly those in which a decision is delayed by the need for additional investigation, multiple meetings with the victim and advocate will be necessary, although some victims may wish to minimize their contact with the criminal justice system and will choose to delay meeting until the followup investigation has been completed.
21

-- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - .

Advocate Involvement

•

Often, victims will have an advocate assigned to their case before the

case is referred to the Missoula County Attorney's Office, as law

enforcement attempts to facilitate contact between the victim

~d~qca(~~plQ;y .a 'critical ~(Ji,j{"in guidin& ~ictim's;.t;ltell1jl .~, mi~l)tt~$"t\ahd W'iltne~s~
~6r(Jugh' the' ~ri~inal justi~e~l~~f'em and' · ."einvalllaJjletui~he sui:c'itss({}f~.;·i:ase.

and an advocate at the earliest possible stage in the investigation. Law

enforcement will also indicate on the referral form whether the victim

prefers contact from the advocate, the investigator, or by the prosecutor

directly, as well as whether the victim prefers to be contacted by phone, email, or other means. Every effort will be made to accommodate the

•

victim's preferences. If the victim has not had contact with an advocate or

has previously declined advocacy services, the prosecutor, with the

assistance of the Missoula County Attorney's Office Victim/Witness

Coordinator, will explain the advocacy services available and make contact

with the Crime Victim Advocate Program to obtain advocacy services for

the victim, if the victim so wishes.

Relationships with Advocates

Advocates playa critical role in guiding victims, their family members,
22

•

• • 


and witnesses through the criminal justice system and can be invaluable to the success of a case. They explain the process, notify victims of the scheduling and outcomes of court hearings, attend court hearings and trials with victims, and provide information about victims' rights and services available to victims. They "help victims and witnesses 'cope with the realities of the criminal justice system and the disruption of personal affairs attending a criminal prosecution during a time of personal trauma. ",13 Prosecutors, law enforcement, and advocates should work together to provide direct and referral services to victims of crimes and assist in protecting the victim's right to privacy regarding personal identifying information and other personal information. 14
Advocates can be of enormous assistance to prosecutors as well. Most victims come into the system having had little exposure to the criminal justice process. The complexities of statutes, evidentiary rules, court procedures, and the multi-layered analyses involved in evaluating a case, negotiating plea agreements, and strategizing and preparing for trial can be overwhelming for victims who are already dealing with the complexities and

•

13 The Massachusetts Prosecutor's Manual: Domestic Violence and Sexual Assault, p.III . 14 NDAA National Prosecution Standards 2-9.4.

23

difficulties of coping with a traumatic event. Victims often need assistance remembering, processing and

•

understanding the large amounts of complex information imparted to them

by prosecutors, and significant misunderstandings can result if they are not

provided an opportunity to react to and process the often complicated - and

sometimes gut-wrenching - conversations prosecutors frequently have to

initiate. Advocates can also provide notification and support services that are

time-consuming and difficult for prosecutors to provide at times, due to high

caseloads and full court schedules.

Every effort should be made to develop a collaborative relationship with advocates, preferably through a coordinated community response, or

•

MDT (multi-disciplinary team). Developing collaborative relationships can

also result in prosecutors obtaining valuable feedback from advocates, on

everything from the prosecutor's interviewing style and demeanor in talking

with victims and paying attention to victims' wishes and needs to courtroom

presentation. The Missoula County Attorney's Office is a longstanding

member of Missoula's sexual assault multi-disciplinary team (MDT), which

operates under the organizational umbrella of Just Response, Missoula's

coordinated community response to sexual violence, domestic violence, and
•24

• • •

child abuse. See Chapter 10 for more information about Just Response and sexual assault collaborations in Missoula.
Meetings with Victims
Whenever possible, meetings between the prosecutor and victim should also be attended by an advocate. Meetings regarding decisions to charge, decline, or request additional information in a case should also be attended by the investigator whenever possible. The victim should be consulted as to who will attend the meetings. The prosecutor has the ultimate responsibility to make sure the victim is kept informed of developments of the case and is provided opportunities to meet and consult with the prosecutor, and will consult with the Missoula County Attorney's Office Victim/Witness Coordinator and the victim's advocate to schedule those meetings.
Depending on the stage of the case, meetings with victims will generally include general information, case-specific information, discussion about strategy, and/or consultation about decisions to be made in the case. However, it is critically important for the prosecutor to gauge how much information a victim can reasonably handle in one sitting. Some victims will have a great need for information in great detail; others will be able to
25

process only small amounts of information at a time and may initially need a simple assurance that they will be consulted and listed to.

•

The volume of information prosecutors must impart to victims will

likely necessitate several meetings to orient the victim to the criminal justice

system, even before the case specifics are discussed in detail. Some victims

will want to meet with the prosecutor frequently, while others will want

contact only when necessary. If possible, the prosecutor should consult with

the advocate and/or investigator before meetings with victims, particularly

the first meeting, in order for the prosecutor to get a sense of what the victim

can handle.
Tips for Meetings with Victims
The best thing a prosecutor can do when

•

It;>Yi~1~':>critji ~. impt,tfilnt. lor the.

prose~utor"}o gal,ge~:r'kow mu~~l

iliformatio~':i victim, can reasonalijJ

handle in'o~e sittini:.

".'1

talking to a victim is to be

honest - about the strengths and weaknesses of the case, the likelihood of

conviction or of a particular sentence, anticipated defenses, possible defense

motions and tactics, trial, and any other topics. This includes delivering bad

news about a case and taking care not to promise anything that can't be

delivered.

•26

• 
 • 
 •

The impulse;, to shield a,/victim lit;'
may:' be well-intentioned,'·however:tht1;htll:t;kl'v~f ef!I1~,aling!;if1;formationi/ is an a~;:fJ}(lt'iJtiis:
(:ont;ol .awaYlrom the victim bas~dtoi.i ," ,

soiii'iOl1,e 'Ythlnks,)j best forA ··him.:

i~fl8J~~ii::~ ,nate: "lit; disempowertny' .

:R~:;~t: ... n.eJ (~at\has no' pJactilt a vict;

i~ r:espiJl~N~ .;..' ,

.'

It is important for prosecutors to remember that:
During the course of a prosecutor's work on a sexual assault case, there will be times of setbacks and potential barriers, motions for suppression of evidence by the defense, rulings to bar certain testimony, and even motions for case dismissal. When these setbacks arise, it is sometimes a prosecutor's instinct to not disclose them for fear they may unduly "upset" the victim, particularly if it is a motion or ruling the prosecutor intends to fight. This impulse to shield a victim from bad news may be well-intentioned. It is important to remember, however, that the act of concealing information is an act that takes control away from the victim based on what someone else thinks is best for her or him. It does not allow the victim a chance to make decisions about how to react and assumes that the victim does not have the emotional strength to "handle" the news, This is a compassionate but disempowering approach to the victim, one that has no place in a victim-centered response. Instead of shielding the victim from "upsetting" news, the prosecutor should make sure the victim has an advocate available to offer support. A prosecutor might want to inform the victim's advocate when bad news has been delivered to ensure the
27

advocate is available to the victim, if needed. Spending time to fully prepare a victim for all possibilities and outcomes of a case in the very first

•

prosecutor/victim meeting will also help ensure that

setbacks, when they arise, can be handled in a way

that minimizes trauma to the victim. IS

To that end, prosecutors should:

• Develop a rapport with the victim, and realize that developing a rapport takes time. Prosecutors are put in the position of having to ask victims to trust them, as total strangers, with very private information about a very personal, traumatic event. Without that information, prosecutors are less equipped to protect victims from defense tactics during a criminal case, but it takes time to gain that trust. Let them know you will give them that time. Victims should be encouraged to ask questions about the prosecutor's background and experience in addition to questions about the case and the criminal process.

• Recognize that all members of the criminal justice system can have a

•

significant impact on the victim, and on the victim's experience with

the criminal justice system. Every member of the criminal justice

system the victim deals with has the ability to make or break that

victim's feelings about the system, and therefore his or her ability and

willingness to cooperate with and trust in the system.

• Take care to tell victims they are never responsible for the assault.

• Approach difficult subjects with care. Be mindful of language and non-verbal communication. Some questions and statements that seem benign to a prosecutor can feel very judgmental or victim-blaming to the victim. For example, ask "why did you decide to report when you did?" rather than "why didn't you report right away?"

15 Oregon SART Handbook, p.48.

•28

• • •

• Recognize that sexual assault victims can sometimes be difficult to interview.

• Acknowledge and empathize with the victim's fears. Many victims have multiple fears: the fear of not being believed, the fear of being ridiculed, the fear of confronting the offender, fear of retribution, fears of both winning and losing the case, fear of testifying in open court, the fear of the social stigmas surrounding being a victim, etc. Direct expressions of genuine concern and sympathy are appropriate and critical. 16

• Give victims the time, space, and support to make decisions when reacting to bad news, considering a plea agreement, or preparing for trial. Victims may need to process some things with you, and to process some things without you and come back to talk again.

• Examine your own attitudes and experiences.

• Be prepared to discuss the victim's concerns about trial and hopes for

how the case will be resolved. And, be prepared for disagreements.

Many victims are reluctant to participate in a trial. Some victims feel

conflicted about participating in the prosecution of someone they know, and some don't want to see their offenders go to prison or register as a sexual offender,

S~t!n{ll' ".la/ulll/
vi~#mf:;f6 "" ll.
'meS of~:~
: p~(Jt£~cut(Jrlvictim meetiri h1 / sure thatl~;~i6(Jck

arise,. caiz.;be" handled

,

,'"'

; ' , ',.

in

a

wa"v",

that
'

particularly in cases in

which the victim knew and

trusted the offender.

16 The Massachusetts Prosecutor's Manual: Domestic Violence and Sexual Assault, p.117.
29

• Don't interrupt. It is a common reaction to try to guide, or even

•

control, a conversation with a victim, particularly when the victim is

having difficulty staying on track. However, allowing victims to 


express themselves fully will give the prosecutor better information 


and can result in the victim trusting more in the system. To 


accomplish that, it is also important to schedule ample time to meet 


with a victim. 


• Keep in mind that talking to victims about how "hard" the process can 
 be can sound discouraging to a victim. 


• Ask if the victim has any other concerns, fears, or questions and 
 respond fully and honestly. 


Topics for Meetings with Victims

• The role of the prosecutor.

•

Prosecutors should be mindful that victims, like most of the public,

might believe that the prosecutor is the victim's attorney and

represents the victim's individual interests. Because prosecutors

actually represent the state and community, this misperception may

result in misunderstandings and disappointment on the part of the victim if this is not addressed and clarified from the first contact. 17

The prosecutor should also explain to the victim that, although the

prosecutor must also consider the safety and well-being of the

community in deciding how to resolve a sexual assault case, the needs

and wishes of the victim will remain at the forefront of the

prosecutor's analysis of the case.

17 Oregon SART Handbook, p.48.

•30

• • •

• Information about advocacy services, if such services have not yet been provided.
Victims should be encouraged to use advocacy services; however, whether to do so must be left up to the victim. If the case is getting close to trial and the victim has previously declined advocacy services, the prosecutor should consider making another attempt. Because the prosecutor is essentially unavailable to the victim during a trial, a victim might decide that advocacy services would be helpful during trial.
• The phases of the criminal justice system and the victim's role in the system.
Most victims will want to know how the system works and how long it takes. They should be advised of the general chronology of events in a criminal case and when their participation will be required. While most victims vacillate about their feelings about participating in a public trial, it is never too early to let the victim know that is natural and expected, and that the victim will be consulted along the way.
• Delays.
Repeated delays in the proceedings can be traumatizing to victims. The prosecutor should discuss how and why delays occur and assure the victim that while attempts will be made to minimize delays, the risks of creating appeal issues and/or ineffective assistance of counsel claims must be considered in determining whether to agree to, oppose, or request a continuance of any proceeding.
• Interviews.
The victim should be informed that every attempt will be made to minimize repeated interviews, but the victim should also be advised that interviews with the defense attorney and/or defense investigator
31

will likely be necessary, and that additional law enforcement interviews may be necessary if new issues develop in the case.

•

• Preparation.

The prosecutor should assure victims that they will be prepared for all stages of the case, from arraignment through sentencing and appeal. Although people working within the criminal justice system understand that the entry of a "not guilty" plea serves as a mechanism to get a case moving, victims are often unprepared to hear their assailants plead "not guilty." Victims need to know that they will be prepared for their interviews with defense counsel and their direct examination and cross-examination at trial. Prosecutors should also inform the victim's supporters about what they can do to support the victim throughout the process and what is expected of them both inside and outside the courtroom.

• Legal Protections for Victims. Victims are often terrified that they will be further victimized by

•

defense attorneys in pretrial pleadings or hearings and at trial. This 


fear is often centered on things in the victim's past that are not 


relevant or admissible in the case, but most victims do not understand 


that rules of evidence regarding character evidence and the Rape 


Shield statute can exclude evidence and arguments defense attorneys 


may want to use. While prosecutors should never promise a victim 


that a defense attorney will not be able to use victim-blaming tactics 


in a criminal case, victims are often relieved to know there are pretrial 


motions prosecutors can file to be sure victims are protected to the 


fullest extent possible, and that the prosecutor will fight to do just that. 


• Defense discovery requests.

Defense discovery requests are often significant intrusions into the

victim's privacy. In the digital age, more requests are being seen for
32

•

•

victims' text messages, social media, and other digital information. Some of these are subjects in which the law is just beginning to

develop. Victims should be told that they will be informed of defense

discovery requests or requests for such information by law

enforcement or the prosecutor and why such evidence could be

important to a case, and that the prosecutor will take care to protect

any private information that is not relevant or admissible in the case.

• Media.

Victims are also often nervous and scared about the possibility that

the media will cover their case. Assuring victims that their names and

photographs will not be used by the media can go a long way in

helping victims feel more comfortable participating in the process.

Prosecutors should also take care when writing Affidavits of Probable

Cause and other pleadings to not include unnecessary information that

•

may identify or embarrass the victim. • Victim's Wishes.

Victims should be advised that they will be consulted as to their wishes regarding charging, testifying, and plea negotiations. It is important to assess a victim's ability to participate in the legal process. The best way of doing so is to establish a rapport with the victim and talk openly about the strengths and weaknesses of the case and the victim's desired outcome, preferably with the assistance of an advocate.

• Later Meetings and Discussions About Difficult Topics.

Unless a victim is ready and willing to talk about the specifics of the

assault, or unless discussing those specifics is critical to an initial

meeting (such as when additional investigation is being requested and

there are time-sensitive reasons for doing so in an initial meeting), it is

•

generally best for prosecutors to let the victim know in an initial
33

meeting that the discussion will not go into the assault itself. Victims

•

need to develop a rapport and build trust with the prosecutor; it is

simply asking too much of victims to expect they will immediately

trust everyone in the system while they are still processing the trauma

of the assault itself.

• Victims' Rights under Montana law.

Victims of sexual offenses have the right under Montana law to:

o Receive emergency social and medical services;18

o Receive notice of the availability of crime victim compensation, community-based victim treatment programs, and contact information for the law enforcement officer and prosecutor assigned to the case; 19

o Receive information on the availability of services to protect victims from intimidation, including the process for

•

obtaining an Order ofProtection;20

o Have a victim advocate present when the victim is interviewed about the offense;21

o Receive notification, in advance if possible, of proceedings pertaining to the case, including: the arrest of the accused; release of the accused; the charge(s) filed and an explanation of the elements of the offense(s) when necessary to an understanding of the nature of the crime; hearings, trial dates, and scheduling changes; 22

18 Mont. Code Ann. 46-24-201(1). 19 Mont. Code Ann. 46-24-201. 20 Mont. Code Ann. 46-24-202. 21 Mont. Code Ann. 46-24-106(7). 22 Mont. Code Ann. 46-24-203.

•34

•

o Be consulted, wherever possible, in decisions concerning the

reduction of charges, plea agreements, offers of diversion

programs, dismissal, or other dispositions;23

o Receive information about pre-sentence reports; sentencing hearings; and the sentence imposed;24

o Attend any hearing or trial, and may not be excluded unless a judge deems it necessary or for disruptive behavior;25

o Receive a copy of all public documents filed in the case;26

o Provide a victim impact statement for sentencing purposes?7

o Request assistance with contacting employers, if the victim

•

requests assistance in communicating to the employer that the victim's cooperation in the prosecution of the case may necessitate the victim's absence from work;28

o Request assistance with explaining to creditors the reason for any financial strain resulting from the crime or cooperation with the case;29

o Promptly receive any of the victim's property held for evidentiary purposes, unless there is a compelling law enlC'o. rcement reason C lor r'e.ta.m.mg the property;30

23 Mont. Code Ann. 46-24-104.

24Id.

25 Mont. Code Ann. 46-24-106.

26 Mont. Code Ann 46-24-106(6).

27 Mont. Code Ann. 46-18-112(1)(e), 46-18-115(4).

• 


28 Mont. Code Ann. 46-24-205. 
 29 Mont. Code Ann. 46-24-205. 30 Mont. Code Ann. 46-24-205.

35

o Receive information about appeals, petitions for post­ conviction relief, related hearings, and decisions;31

•

o Receive information about an offender's incarceration.32 


In addition, prosecutors should be mindful of the National District 


Attorneys Association National Prosecution Standards pertaining to victims

and witnesses?3

•

31 Mont. Code Ann. 46-24-211. 32 Mont. Code Ann. 46-24-212. 33 NDAA National Prosecution Standards, 2-9.1 - 2-9.8; 2-10.1 - 2-10.10.

•36

•

Chapter 3

RAPE MYTHS, COMMON RESPONSES TO

SEXUAL ASSAULT, AND TRAUMA34

• 


Rape Myths Rape myths are stereotypes or false beliefs that are widely held about
sexual assault, victims, and offenders. They blame victims, trivialize their experiences, and minimize and justify sexual assault.
Prosecutors are forced to confront rape myths on a daily basis. We confront them in our dealings with defense attorneys, jury panels, the media, and at times, within the criminal justice system itself. Rape myths are exploited by offenders and many defense attorneys, believed by many jurors, and internalized by many victims. They are not "just a set of harmless beliefs ....They encourage silence, shame and pain.35
Rape myths are, at their core, a fundamental misunderstanding about sexual assault. It is against this backdrop of unfair rape myths that prosecutors must evaluate cases, conduct trials, and persuade juries to

• 


34 A substantial portion ofthis chapter has been reprinted with permission from the Michigan Domestic and Sexual Violence Prevention and Treatment Board and the Prosecuting Attorneys Association of Michigan. Originally published in The Michigan Prosecutors Sexual Assault Prosecution Manual (2013). All rights reserved. 
 35 Rape Myths. Research and Advocacy Digest, Washington Coalition of Sexual Assault Programs (wcsap.org), 
 Volume 9, May 2007. 

37

convict offenders. The playing field for prosecutors, who already have a

•

substantial burden of proof, is not level when defense attorneys unfairly

characterize normal victim behaviors as credibility problems. Prosecutors

therefore must arm themselves with knowledge of rape myths and the

research that refutes them.

The science oftrauma refutes the assumptions, inferences, and

conclusions people make about victim behavior. In order to achieve justice

for victims, science must trump myth, in the courtroom, the media, and

society as a whole. It is critical for prosecutors to understand the link - or

disconnect - between societal expectations and the science of trauma. Prosecutors must be adept at identifying rape myths, understand the ways in

•

which trauma manifests, and be able to present the underlying science of

trauma to a jury.

The most insidious rape myths are those which make assumptions

about both victims and offenders - who they are, and how they behave. As

applied to victims, they attack a victim for not behaving like a "real" victim of a "real" sexual

Therf;;"-<~fFi,"'~,-,~<{i~c'e'''nc, e>,.6. ..,rF:J!;~~_~~<. :~L;trauma re~F.utes
i(/sjithtIJ,don~!;;;:~f~<}lnferences" iii.. and~

conclusion~r:"people make . :, al)out

:,';

,-, "4:;"

victim beltavior~

"M*;i~. ~,,:>

38

•

•

assault. Expectations of strenuous resistance, a hysterical response, a clear,

coherent, and chronological memory of an assault, and an immediate report

to law enforcement are some of the most common rape myths.

• 
 •

This section will provide the groundwork to better understand the trauma associated with being a victim of sexual assault. It will describe common responses to the trauma of sexual assault, stages of healing and the underlying neurobiology of trauma. The purpose is to provide prosecutors with information in order to offer a positive victim-centered response and be able to effectively confront and refute defenses that seek to exploit ignorance and misunderstanding.
Understanding Common Victim Responses to Sexual Assault Many of the normal human responses to the trauma of sexual assault
run counter to the ingrained societal views as to how a victim of sexual assault should respond. For this reason, victim responses often are termed "counterintuitive" or "paradoxical," in that victim responses are not what people would intuitively expect. These terms describe the perceptions of others that a "real" victim should act in a certain manner. A "real" victim would do everything in her power to fight off the offender. A "real" victim would look and act like a victim; she would be hysterical and report right
39

away to the police. A "real" victim wouldn't have put herself in that position to begin with.

•

It is useful to underscore that sexual assault victim responses are

anything but counterintuitive; they are in fact indicative of how the human

brain responds to trauma. In fact the presence of such "counterintuitive"

responses should support the presence of a real trauma, not negate it.

However, because of societal stereotypes of how a "real" victim of sexual

assault should behave, normal responses to trauma create credibility

problems for prosecutors in

The presence of "c;lunterili;tuitive"t!;Cri~l

the courtroom. For example, our society expects a victim

rl!sponses should s'upport t~,~;PreS(!ll~~J

ofa real trauma, ,',c d

• ~>h " . . .

1I;0t IlegQ,tfJj~!~

. , . . ~::::>;(f?:

•

of sexual assault to have all the details of the assault seared into her memory

with crystal clarity. These expectations are held by jurors in sexual assault

cases and they will be exploited by the defense to argue that the victim is not

credible because she did not conform to the expectations of how a "real

victim" would behave. Furthermore, because these myths are ingrained in

our society, victims of sexual assault may believe them as well. Thus a

sexual assault victim may delay reporting the assault not only due to the

•40

•

A sexualassault
victim 's resp()~~eitlr~

memory impact caused by trauma, but also because of a fear of not being believed once

I .' thing but\~;'P;'n)~i!l;,

she does come forward.

.. , I.terintuitive/they'

drl!;in/a(;#;il'ldlctltiVtl;'oj
A;;':":::!~j.•

The following discussion reviews some of the more common counterintuitive

..' ·veriexpeetations.; ab(Jut"lJ~ftJ;fjictim; is .";,§."uppo.s'e·d.·"·....;'. are strongly hil~~

victim responses.
Delayed Reporting

edelim(~;

Delayed reporting of sexual assault,

•

the vieti;;")
~:~:::~;~;~

particularly in non-stranger sexual assaults, is the norm rather than the exception. It can

tIle.

. 01flOW

be directly attributed to the consequences of

trauma described above - including the

neurobiological response to trauma and the inhibition of memory. Additionally, victims who are sexually assaulted by someone they know may not

The·~icti1n., .m t.~ve~t rec"ognize. ~lili
,what happ~'~Il~;; . ..~ )e1ql definitio~:~J

sexuala.~$ault bee .....tBe offef'tielt,9.~d/(Jr

o/tli'e:;ti'sSllttlt ;; db , ,.:,>:,>;

>.'~: c., ;·.~';I~t'·< :\..\; ~.;~ '. ". '. <. " :~'f.,·,~1(y;i1;~;~('!

~,

ircum~'tanees

it~~~·

1'1 ... ,t the;~9Id(JI.rhat our siJi:ietY:.7J:fi

ojj~nders'jjA~i~~ual .a$sf!,ult; a;"if}:

assault itselfi;;:I~~Rli......' .:'" .:}.,

•

report right away for many

41

reasons. One may be because it does not fit the stereotype that most people are sexually assaulted by strangers. Thus the victim may not even recognize

•

that what happened to them fits the legal definition of sexual assault because

the offender, or the circumstances of the assault itself, do not fit the mold of

whom our society believes are offenders. Another reason may be fears about

the consequences or potential safety concerns that may arise from reporting

a sexual assault by someone the victim knows, whether it is a family friend,

co-worker, or former intimate partner.

Delayed reporting of sexual assault is seen as counterintuitive because

jurors expect that a victim of sexual assault will report immediately to law
~e!;Ii,~'1:;;.~~ 
enforcement. As a result, the presence of

•

o,nd~;'ectedre'tlctt~nf <t()i

it'· trauma; t4at~ii·vJfy common,;
nf:frtj~(tlrly non-stranger

J~'£uqlf~ssault .... .

cases.

. ..

a delayed report creates a perceived credibility issue for the prosecution. It is critical to begin to view delayed

reporting as a natural and expected reaction to trauma. Prosecutors also

have the opportunity to educate the jury about trauma - and explain that

what is seen as a problem with the victim's credibility is really a normal

psychological reaction to trauma. This can be done as early as voir dire, and

•42

•

can continue throughout the trial via expert testimony and direct

examination of witnesses.

Inconsistent Accounts ofthe Assault

The effects of trauma-related neurochemicals on memory may also

affect a victims' ability to report a chronological or "consistent" narrative.

Neurochemicals released as a result of a traumatic event may cause certain

portions of the 
 traumatic event to be 


Thft. imjiit~~·i".A;jnemorj;
and acc~;i,,~JJit:e;;by law

remembered clearly, 


•

while other portions of 


the event remain fuzzy
p~~cti;e .;i:

or forgotten

strategies

completely.

Additionally, memories of the traumatic event may be fragmented and

surface in pieces over time. Thus, the victim's report naturally may evolve

over time, but is then perceived by others as "inconsistent."

The impact of trauma on memory has major implications as to when

and how a victim reports the sexual assault. A sexual assault victim may not

•

report the assault right away because she has no memory, or unclear
43

memories, of the assault. Furthennore, a sexual assault victim with an

•

unclear or fragmented memory may not give a clear, coherent, chronological

description of the assault, which may lead to inconsistencies in the reports.

The fact that memories come in pieces may lead to ongoing disclosure of

certain facts related to the assault, which some tenn "layered reporting."

The impact of trauma on memory is now understood and

accommodated by law enforcement when officers are involved in "critical

incidents," such as officer-involved shootings. In these situations, the

involved officer typically will be asked only to provide very basic

infonnation immediately after the incident. A more comprehensive interview will be conducted after some time has lapsed, often two sleep cycles,

•

allowing the officer's brain some time to integrate and recover memory. It is

now best practice to apply similar interviewing strategies to sexual assault

victims.

Layered reporting may create credibility problems as a case makes its

way through the criminal justice system. Additionally, layered reporting may

occur when some victims withhold or change facts of the story because of

fear ofjudgment or criticism. For example, although an estimated 50% or

more of sexual assaults involve alcohol, societal stereotypes hold that

44

•

• • •

drinking makes a woman more sexual and available. A woman who is drunk

may be seen as "asking for it" despite the fact that the use of alcohol actually

hampers the ability for a woman to give consent. Many victims may not

immediately disclose that they were drinking or how much they had to drink

for fear that they will be judged or 
 not be believed. When these 


The;:'i:Forensi/Ii(; 1:!;X'lJel'lel1fll (fE,Tl)

inconsistencies come to light, defense 


attorneys, jurors and sometimes 


investigators, prosecutors may 


question the veracity of the entire 


report. Again, this behavior is 


normal in response to sexual assault.

When viewed through a trauma-

informed lens and understood in

relationship to the guilt, shame, and

fear victims experience - as well as unrealistic or victim-blaming attitudes in

society - it can be seen for what it is: a normal and expected behavior

following a sexual assault. As a result of this more sophisticated

understanding of trauma and memory, new techniques have been developed

to obtain better information from victims with less traumatic impact. The
45

Forensic Experiential Trauma Interview (FETI), developed by Russell Strand, acknowledges the ways in which traumatic memories are encoded

•

and retrieved by combining the principles used in critical stress incident

debriefing and defusing, the neurobiology of memory and psychological

trauma, and the principles and techniques developed for forensic child

interviews, to interview victims of sexual assault. "This method has resulted

in reports of better victim interviews by those who have used it. More

importantly, the FETI interview process obtains significantly more

information about the experience, enhances a trauma victim's ability to

recall, reduces the potential for false information, and allows the interview to recount the experience in the manner in which the trauma was

•

experienced....This technique significantly enhances the equality and

quantity of testimonial and psychophysiological evidence obtained. This

method had also been shown to drastically reduce victim recantations,

increase victim cooperation and participation and significantly improves

chances for successful investigations and prosecutions.,,36

36 The Forensic Experiential Trauma Interview (FETI), Russell Strand, United States Army Military Police School.

•

46

• • 
 •

Apparently Cooperative Behavior ofthe Victim

One of the immediate psychological reactions to trauma is the feeling

of intense fear, helplessness and horror. Sexual assault victims commonly

report fearing for their lives during an assault, whether or not weapons, violence, or threats were used by the offender. In an effort to

an' I n ,

e'.iI:t.lJ(lG> j;

i
,

ve\/
f

a

i

t

u

a>t'

i»o,

n>

i

:»:>::,

'

l

l

'

victim m(1~\I f!n~~g'e in >.~ij~e;J6J}~~ative

'itk > the >offende~, both;. dijring

r andaltei; the ass> ):}lior ~.,!~ample,'\.th.~
vlctimTflight give t l t i l t1,.ride huiii~

after theas~fJult~>Ji

survive the situation, a victim may engage in some cooperative behavior

with the offender, both during and after the assault. This is normal. The

victim may be in shock and not making what others would see as rational

choices. The victim may be doing what she needs to do to get the offender

away, or to ensure she survives the assault. The victim may be in denial and

trying to normalize the assault.

For example, the victim might give the offender a ride home or have contact with the offender after the assault. This type of behavior may be seen as evidence of consensual sexual activity rather than sexual assault, and defense attorneys will latch onto these behaviors as part of a consent defense. Prosecutors should anticipate these defense strategies in a sexual

47

assault case, and educate juries to view these cases through an informed and

•

educated perspective, usually through the use of expert testimony.

Misunderstood Emotion

Societal stereotypes hold that a "real" victim of sexual assault should

be hysterical. But the stereotypes also suggest that a victim should move on

after "enough" time has passed. However, as described in subsequent

sections, victims of trauma have a variety of responses that may vary

depending on the stage of healing they are experiencing. One common

psychological reaction to sexual trauma is for a victim to withdraw or shut

down.

•

This may manifest itself as "flat affect" in which the victim displays

little to no emotion, which may be wrongly perceived as evidence of a false

report. Reactions to trauma can also include anger or irritability, especially in later stages of healing. Although these reactions may make the victim more difficult to work

Victim/fexperience a wide ra~g~ of emotions, .
... ral"o:K'~'/flatil.fj .. .~1tis is
....... '~evill~~t~L oJr"t/f!iteption; but
r~theli ';'Vidence·o/ a traum'tttic
response.

with and less sympathetic to a jury, these emotions may be positive signs of

healing. Prosecutors should anticipate a range of emotions from sexual
48

•

•

assault victims they encounter. They should also understand that these

emotions should not be considered evidence of deception, but rather as

evidence of a traumatic response.

Lack ofResistance

Many people expect victims to fight vigorously against a sexual

assault. There may be two reasons a victim does not resist during a sexual

assault. First a victim may choose not to act, being passive or even

cooperating with the assailant,

in an attempt to survive the

•

event. As has been mentioned

before, most sexual assault

victims perceive that their life is in danger, regardless whether a weapon is

present, even if doing so seems irrational to an outsider. Passivity or

apparent cooperation may be the best way to survive the assault, or to

survive without serious physical injury. Passivity or apparent cooperation do

not imply consent.

Another normal response to a traumatic event is tonic immobility (TI).

This response is one in which the human body enters a state of paralysis.

•

What is important to understand about this response is that it is an automatic
49

response, not a choice a person makes. Tonic immobility differs from choosing not to act; it also differs from "freezing," in that the freeze

•

response in a momentary response and tonic immobility is an ongoing

physical paralysis that may occur during and immediately after the assault.

Both tonic immobility and making the conscious choice not to resist

or otherwise act - both of which are perfectly normal and adaptive responses

to sexual assault -- defy the rape myth that a

Both "to;nicl1ntl1obility,alld

, ~'.'."

". '.: '.~>At+f~~~1;£\:kc

' :~:<' ' ..,

(,i::conscious choice, 


"real" victim of sexual assault will resist to

ih IstiJr otherwise d~t'~ 
 the utmost. Montana law recognizes this, the are normal:;atfU '

',' , nse~.:~:{r;~~u~j , Legislature having enacted a statute which
defy thtit.\,rape' myth '
."real victim'!':; of sexual states that "resistance is not required. Force,

•

aJs'sia;~nltbwisltl..·resist' to the fear, or threat is sufficient alone to show lack

of consent.37

However, people nevertheless often expect a victim of sexual assault to fight back, even at the risk of serious injury. Many prosecutors have encountered a juror who expected that a legitimate victim would "fight to the death." If she does not, her "acquiescence" is held against her in terms of

37 Mont. Code Ann 45-5-511 (5).

•50

•

her credibility. These rape myths are so ingrained in our society that many

victims may adhere to them as well. Thus a victim who did not act during an

assault, whether because of tonic immobility or survival strategy, may feel

increased levels of guilt and self-blame because she did not fight back or

scream for help. These feelings of guilt and self-blame, in addition to other

impacts of trauma, may lead to delayed reporting of the sexual assault to law

enforcement.

• 


Trauma Definition of Trauma
Psychological trauma is a disruption of equilibrium that severely taxes a person's ability to cope in response to an experience that is emotionally painful, distressing, or shocking. It may leave lasting mental and physical effects. Psychological trauma is a normal human response to an extreme event.

People often use the word "traumatic" to describe stressful life events.

However, mental health professionals define a traumatic event in a very

specific way. According to the American Psychiatric Association, a

traumatic event must involve both of the following:

•

51

• The person experienced, witnessed, or was confronted with an event

•

where there was the threat of or actual death or serious injury. The

event may also have involved a threat to the person's physical well­

being or the physical well-being of another person; and

• The person responded to the event with strong feelings of fear, helplessness or horror.
Traumatic events can be differentiated from stressful events and crises

by the nature and severity of the event. A stressful event is one that

provokes a physical and emotional stress response. Stressors can be

categorized as acute or chronic, and as external or internal to the person. A

crisis is an emotionally significant event or radical change of status in a

person's life. Certainly a traumatic event is both stressful and a crisis, but the reverse is not always true. It is important to note that an event is not defined

•

as traumatic by the severity of
it';;· Althougk2,';!»QstFisexual;"'"
the reaction to the event but by ~~~~!tin ·~al:,·~it.r~;l;

presence of the factors

~'t!1?J!'t; expe., , .... . I n ,

of

iit1#~y antll~fd~~t~~during~~"

described above.

Using these definitions, a sexual assault would always be categorized

as a traumatic event. Although most sexual assaults do not result in physical

injury, most victims report experiencing intense fear of injury and/or death

during an assault. Sexual assault victims report feeling terror, helplessness,
52

•

•

and horror during the event. These experiences and feelings occur

regardless of the amount of force used, the presence of a weapon or the

relationship with the offender.

The Science ofTrauma

Although the medical and psychological community began to recognize

and treat traumatized soldiers during World War II, an understanding of

e.xperiences a traumatic 


····;r~lways

'.

'. tl}thileven

nature and dynamics of trauma was propelled into the national consciousness by the Vietnam War. During that time, research

•

........ to. cope may S~ ).
~f!{1~':l!~'

into the impact of traumatic events beyond the battlefield exploded as sexual assault, child abuse, and natural disasters began to be

cl},~~e.rprod
co' . tllilive io:o
the,~.,f!tliide range
ti!acti~jf;;'1Iiizt are normal~

defined as events that could traumatize. Today, trauma, and in particular post­

and even expectetlJi:

traumatic stress disorder (PTSD), is well-

recognized by the general public. Yet, while

considerable resources are devoted to the needs of traumatized veterans, the

needs of victims of rape and sexual assault are not as widely understood. Yet

rape survivors represent the largest non-combat group of individuals with

•

PTSD.

53

Common Reactions to a Traumatic Event

•

A person who experiences a traumatic event always has a reaction to

the event, although their reaction may not be apparent or logical to others.

Reactions to traumatic events involve conscious and unconscious

employment of coping strategies in the attempt to return the person to

equilibrium. Although these attempts to cope may seem strange,

counterproductive or counterintuitive to others, there are a wide range of

reactions that are normal and even expected. There are a number of factors

that influence a person's response including but not limited to: pre-trauma

functioning, age at the time of the trauma,

Rtl£cilolJ~;; tt) \> traumatic evtll1!t~( inv.·· .

,

,

"

,.'

,:;.' ',~;; 0

conscious and unco~~cious;;?i1Pploy

;~:::in;,:tT~~1~~~:ti!ilffI~

•

frequency of the traumatic event (one-time v. repeated), resources, and social support.

. ...," ese ;~tfkmpts to cope may seem

ge,<: ;c f"< ~ <;c

'ci/ttnterprodu~tive. Xc: or ~~. ' ", '<0;<,'~\" .." -.': >~{;.~::> '

normal countftrintuitive tot;;otnf{ 'ihere,\,i:;::.;U:.>.....:;>4. ,.: a.
wideral'g'lJl!f re¢~ti(Jns;; . ',' are

q,nd even,! g;,~J;~eted.~:'Ihl!re· are a: number'of

~?-> <:i~'~}J ·:Y">:.:iy~?(~~r,<: .'. ~.~ .'/ 'c,' "
factors thati,., ,"

a.pers~!!r.$: ;;':\'r. esp,!1js' t: '!.: ~J"

All traumatic events evoke cognitive, emotional, physical and social

responses. Often they include avoidance of reminders of the event, re­

experiencing the event through intrusive memories, flashbacks and

nightmares and hyperarousal displayed as anxiety, heightened startle

•54

•

response, irritability, or insomnia. There is significant overlap in these

responses across all types of trauma with obvious specification to the nature

of the event. Victims typically experience a range of cognitive, emotional,

social, and physical reactions to a sexual assault.

• 
 • 


• Common Cognitive Reactions to Sexual Assault
o Minimizing the assault o Blaming herself for the assault by thinking she did
something to cause the assault (e.g. "if only I had/hadn't done X") o Feeling like "damaged goods" and worrying about ever being okay or be able to be in a relationship o Feeling unlovable o Feeling like a burden/not wanting to bother people o Avoiding associations with the trauma o Being unable to control memories surfacing o Having difficulty with concentration and/or memory o Worrying she isn't "getting over it" fast enough
• Common Emotional Reactions to Sexual Assault
o Feelings of guilt/self-blame o Shock and/or disbelief o Hyper alertness/hypervigilance o Feelings of helplessness, panic, feeling out of control o Flashbacks (i.e., feeling as if the trauma is currently
happening) o Nightmares o Worrying or ruminating o Irritability, restlessness, outbursts of anger or rage o Grief, disorientation, denial o Fear and/or anxiety o Mood swings (e.g., crying then laughing) o Feelings of detachment 

55

o Emotional numbing or restricted range of feelings o Difficulty trusting and/or feelings of betrayal o Shame

•

o Depression or diminished interest in everyday activities

• Common Social Reactions to Sexual· Assault

o Tendency to isolate oneself o Fear of being alone o Increased sexual activity or withdrawal from sexual
contact o Avoidance of friends and family/isolating o Increased conflicts in relationships due to mood swings,
anger, misunderstandings o Increased need to control situations and environment

• Common Physical Reactions to Sexual Assault

o Aches and pains, such as head, back, and/or stomach

aches

o Sudden sweating and/or heart palpitations

o Changes in sleep patterns, appetite, interest in sex

•

o Digestive problems -- Constipation or diarrhea

o Easily startled by noises or unexpected touch

o More susceptible to colds or illnesses

o Physical discomfort from sexual activity

o Increased use in alcohol or other drugs and/or overeating

Reactions to traumatic events usually do not involve the development

of post-traumatic stress disorder or mental illness. In fact, only 8% of

people in the US who experience a traumatic event develop PTSD. However,

this rate changes depending on the type ofevent experienced. The estimated

risk for developing PTSD for people who have experienced rape is 49%, and

24% for people who have experienced other types of sexual assault. By

contrast, the rate of PTSD for people who have experienced a shooting or
56

•

•

stabbing is 14%, and the rate for those who have experienced a natural

disaster is 4%.

.Th'j~f:~fObioloii~at"···'·

/" Sci' ;,;>,;. , c"c

, ••,;~

·trau"la is a'!;

Neurobiology of Trauma

'ction to:tht/

When a person experiences a traumatic event, there is a cascade of neurological and

i!~~~~Rt:l"

.,. <,'

£tbf~=t,i;s ,n~ot~' ".,.:,i6Y;"i.·

biological responses that occur during and after the

hand alfa;lfr'l'mtttl!liO~\f;';; s"rfac~,,: ....;

event. These reactions influence physical and

involve$. the

psychological responses to the event and may

continue for weeks, months or years following the

•

experience. The neurobiological response is controlled by our autonomic nervous system

meni~iy.:

These

.

i
·

invol~;'tilJf.~;

(ANS) - our survival system. The ANS bypasses

neurothemical resJJ(Jn~e$.h~ve a '

s{ghifiit'a~l~effect itot

our "thinking" brain to provide us with critical

only\,~J .

."

'

b

e

h

a

vior the

a

I1Iz{t

responses that insure our survival. Most of us have

,.::\

heard of the "fight or flight" response. Recent research suggests that our reaction to feeling threatened is more complex and nuanced than the

mel1loriesand perceptiiJn8'theviciim .. may,have, and be able
tociJnu'nJtttitate following' the event.·

fight or flight dichotomy.

•

57

The neurobiological response to trauma is a physical reaction to the

•

perception of threat that is not mediated by conscious thought - it is like

pulling your hand away from a hot surface. This reaction involves the

release of chemicals in the body that control respiration, blood flow, heart

rate, muscle control, speech, as well as cognition and memory. These

involuntary neurochemical responses have a significant effect not only on

the behavioral response during the event but also on the memories and

perceptions the victim may have and be able to communicate following the

event.

Fight, Flight, or Freeze

•

One's reaction to threat depends on two factors: 1) the level of fear

and 2) the proximity of the threat. An initial response to threat is to freeze.

When a threat appears distant (spatially, temporally, or perceived likelihood)

and the fear is low, freeze is the involuntary, momentary reaction. It allows

the organism to assess the situation, and avoid detection in the hopes that the

threat may pass without incident. For example, the mouse freezes when it

hears movement in the brush. This response allows it to assess whether a

predator is present, and if it is, the stillness may protect the mouse from

being detected. In a sexual assault scenario, "freeze" may happen when an
58

•

•

offender first crosses a boundary initiating an assault. Offenders may take

advantage of this momentary lack of response to further their goal of sexual

assault.

• 


The "fight orflight" response is next. If danger is determined to be

present and fear is increasing, the chemicals released encourage a response

of fight or flight. In the case of the mouse, if the fox has found the mouse's

scent and is moving closer sniffing the ground, the mouse can choose to

make a run for cover, or bare its teeth and claws to take on the fox. For

humans, this process is more complicated and can involve a series of

/{l.s; a,; sexual asill;'" 

hapDen . when ,<tan.'

, 'illitiaiJ~lf,,~;"1J

strategies a victim may

employ from non-verbal communication of resistance (turning away, pulling

on clothes, non-responsiveness) to verbal resistance (saying no, pleading to

stop, bargaining with the offender) to direct physical resistance (hitting,

punching, biting). It can also involve psychological defenses such as

dissociation in which the victim may have the sensation of leaving her body

- and detaching from the horror of the assault. This can be a form of flight.

•

59

Tonic Immobility

•

A less well-known response that is critical for understanding sexual

assault is tonic immobility. This response happens when the threat is

imminent and fear is high - the victim's central nervous system feels there is

no escape. It is similar to what occurs when the mouse is trapped under the

fox's paw and he can feel the fox's mouth is closing around him. The

chemicals released involve a type of paralysis - a profound motor inhibition.

The victim is physically unable to move or respond, and the ability to speak

is lost. Victims often describe feeling unable to speak or move; tonic

immobility may be the reason.

•

This paralysis may have a few benefits to the victim. One common

phrase that describes it is "playing possum." Tonic immobility may serve as

an involuntary form of playing possum, increasing the prey's chance of

survival because the predator believes its prey already dead. The predator

may leave the victim to return for a meal later - allowing the prey to escape.

Tonic immobility may also serve to reduce the amount of pain and

suffering the prey may experience. The chemicals released during tonic

immobility may dull the senses lessening the experience of physical

experience of pain as well as distorting the cognitive functions such as

60

•

•

memory, a physiological attempt to lessen emotional pain. Research

indicates that 12-50% of rape victims experience tonic immobility. This

response has critical implications for the prosecution of sexual assault cases

- as it is an oft-repeated question to the sexual assault survivor: "why didn't

you scream/fight back?" The answer may lay in part in the fact that many

physically cannot.

Trauma and Memory

• 
 •

The nature of the neurobiological response to a traumatic event also impairs the normal process for encoding of memories. This can affect a victim's memory immediately after the assault as well as over the long-term. For example, the event may be remembered over a period of days, weeks, months or even in some cases years. Also the chronology of the event may be disrupted so that it is difficult for a victim to give a clear, linear story. Parts of the event may be remembered in vivid detail, while other aspects of the event that may seem important or memorable to others are not remembered at all by the victim. For example, a victim may remember the smell of garlic on the offender's breath with nauseating detail, but not be able to recall how he removed her pants. However, victim-centered techniques such as the FETI interview can assist in retrieving memories.
61

Recovery from the Trauma ofSexual Assault Recovery from sexual assault begins immediately after the assault

•

occurs and continues for days, weeks, months and years after the assault.

Research shows that the initial responses a victim receives when she

discloses the assault affect the trajectory of her recovery. A victim who is

believed, supported and encouraged to regain a sense of control may move

more quickly to the later stages than victims who are met with disbelief or

criticism.

'A victim who i9;/Jel;~ed,. supporteda~4

Many survivors who

encouragedto reg4~~";(lsense; of con~~~

maJ!;;move more q,lIi~~ly to. the<l~t~t

engage in the criminal justice system experience re­

i$t(J;j~s,:(J1 recovery tha~;~ictims wh(J; lIre.

v

~"

' , " •. ; ' " ,

",'

• c,

"',, A'

;.

.di$beli~for criticisin~

•

victimization. Even if a victim is met with uniform support and a victim-

centered response from sensitive and understanding law enforcement and

prosecutors, the criminal justice process is designed to "prove or disprove"

her experience. This requires repeated retelling of the story, and facing

those seeking to undermine the victim's credibility, including the offender

and his counsel. Often it involves many procedures, interactions and

situations that the survivor is unable to control.

•62

• • 


Additionally, neurologic responses to trauma may cause a victim to respond to certain stimuli related to the assault as if it were occurring again. These "triggers" are unconscious and often connected to the senses; for example, the sound of the assailant's voice or the smell of his aftershave. This has major implications for victims of sexual assault who are going through the criminal justice system. Dr. David Lisak states that "to participate in that process - to endlessly recount their trauma, to appear in the court room where the offender sits - is equivalent to the zebra choosing to return to the water hole where the lion attacked." This analogy speaks volumes about how important it is to institute a victim-centered response that has as a main part of its focus the minimization of retraumatization by the criminal justice system.

In working with victims in the criminal justice system, it is important

to understand the stages of trauma and recovery. The stage the survivor is experiencing will affect her

'rlilpartii/batecin the l pro,fe.5s ":'/0 ',' " 

~::c:!;~~::~~:;j~ 

~quil)alent tlJ't~t" :. a cltoosiHRlJi~~t~rn to
the ~(!tltr h~lew/t;~~l!;;;thel~~!!:,«h .ke"'! '

thoughts, emotions, and

behavior. It may also manifest in physical symptoms or reactions.

•

63

Stages of Trauma and Recovery

•

The following stages of trauma and recovery are generalizations. Each

victim has her own path and process. Some may never experience certain

stages or symptoms, some may fluctuate between stages, and some may

become stuck in a particular stage.

Pre-Impact Terror

This stage occurs during the very frightening moments just prior to

the assault itself, when the victim knows, without a doubt, what will happen

but is powerless to stop it. In other words, trauma does not start after the

•

assault; it starts before it. The concept of pre-impact terror has been used to

describe the pain and suffering (beyond loss of life or limb) of airplane

passengers who know the plane is going to crash.

Initial Crisis or Acute Stage of Trauma

The acute phase of trauma occurs immediately after the event and

often lasts a few days or weeks, but could also last only a few minutes or a

few hours. The initial reaction following a sexual assault can take on many

forms. As described above, a victim may experience emotional as well as
64

•

•

physical shock such as feeling weak, nauseated, moving slowly, nightmares,

and insomnia. During this phase the victim may appear withdrawn -- having

flat affect, being unresponsive or appearing confused. The victim may also

be highly expressive, including crying, screaming or shaking. Or, she may

vacillate between many presentations.

• 


Working with victims in this stage may be difficult due to the intense

nature of the emotional reactions - whether the victim is withdrawn and

unresponsive or highly expressive. Memories of the event may come in

pieces during this time, and new memories may bring

The victi~',,)ntiy,H

',express,i# '

includi i lYing, <$~re'fzhJ' "(Jr';~llking~'< 


sJU! maY~~fill~~f:\,b~~eel!:fJJartYp~~!!ntd~~",$~


another wave of intense emotional and physical reactions. Victims in this

phase may be emotionally and physically exhausted by simple tasks of daily

living, and have difficulty engaging in discussion about the event.

Outward Adjustment

Once a victim has moved through the initial crisis, she often moves

into Outward Adjustment. In this stage, the victim returns to her normal

routine, wanting to forget about the assault. Often well-intentioned family

•

members, friends, or significant others encourage this "moving on." While
65

in this phase, victims may attempt to make sense out of the crime, or block the experience out of memory. This can be an important and self-protective

•

coping mechanism for the short term. Victims focus most of their emotional

energy attempting to resume their day-to-day activities. This stage may last

weeks, months or years.

Victims in this stage may be very reluctant to talk about the assault or

to engage in any activity that is a reminder of the event. If a victim reports

an assault during the initial crisis, she often will enter into this second stage

during the criminal justice process. This may mean a victim who appeared

very interested and cooperative with police during the initial phase may

become reluctant, withdrawn or combative during the Outward Adjustment

phase. This is due to the normal healing process, and is not indicative of the

veracity of the report, or the victim's mental health. If the victim did not come forward during the initial crisis, most of them will not decide to report during this second stage, as most of their efforts are focused on returning to "normal." If a victim does report during this stage, it

A victim ma~," be', welT
interested, an{I<~o{}jJ~i~tJv~ with poli~edll~itlll<:ih~fJ;iJal; phase, ,·.~u·'" 'become;

'relucifii,t, ",

of;

com

ring. the

OUPfl(l,r .

stmetltphase..

Thijkl~l~'due to thtti normal

ct, '~.~" ;>' /,.',\' .,.

"

If "process, al'ld i8',n9t.

-.. .>' .~: '~

.,".,\'" ·t.~~:;J:

' ....: \<{:::'\'.; ,~.

indicative~}o/ the veracit1;<o/ 


tlll:;'~~.,.eportt ,( or 
 the ViirJtiIJfl

i!~~t'ilhealth. 


66

• •

• • •

may be in response to pressure from family or friends, and not the victim's true desire to engage with the criminal justice system.
Secondary Crisis or Reactivation
This stage involves a re-experiencing many of the feelings from the pre-impact terror stage, usually brought on by the triggering of memories of the assault. Feelings of depression, anxiety and shame increase. Also the victim may experience intense anger as she moves through this stage. Other symptoms can include nightmares, flashbacks, a sense of vulnerability, mistrust and physical complaints. When a victim seeks help at this stage, it can confuse family and friends who thought that their loved one had fully recovered.
Victims are more likely to seek out help and the criminal justice system in this stage than in the previous outward adjustment stage. The anger that surfaces during this stage may fuel a desire for justice, and be an important part of the victim's healing.
Integration
The integration phase may be the most challenging. One day, a victim may announce her recovery. Another day, she may fear that she will never
67

be what she considers to be nonnal again. Eventually, most victims' 
 intrusive memories and emotional tunnoillessen. The victim may still spend 


•

time thinking about and talking about the assault, but finds that when

triggers and flashbacks do occur, the feelings surrounding the experience are

abbreviated and less intense. The sexual assault is integrated into a victim's

life as a significant life event among many others.

Most prosecutors will not see victims in this stage, as it usually takes

time, sometimes years, to reach. Some victims never do. However, a victim

in this stage will be more able to identify her needs and boundaries related to

the assault and an ongoing court case, if there is one. She may be more aware of her triggers and able to predict her reactions. She may still have

•

intense responses to situations that remind her of the assault but should have

more resources to cope. However, it is possible that if her coping is

overwhelmed she could return to an earlier stage, for example the stress of a

court case may bring up anxiety, anger, nightmares, and flashbacks. She may

return to previous coping strategies, helpful or unhelpful, that she had used

in the past.

•68

• • •

Chapter 4 RAPE MYTHS AND THE REALITIES OF OFFENDERS OF SEXUAL ASSAULT38
The term "rape myth" applies to beliefs about offenders and their behaviors as well as to victims. There are many myths and misconceptions about sexual assault and about those who perpetrate sexual assault. Many people mistakenly believe that "real" offenders:
• Are strangers to their victims and select their victims randomly; • Stalk and attack the victims at night in dark but public places, or break
into the victims' homes and attack them there; • Use weapons and violence to perpetrate their assaults, leaving victims
with obvious physical injuries; • Look like offenders, i.e. mean, thug-like, or weird and scary; and • Don't have consensual sex partners and are driven to rape by unmet
sexual needs, or that offenders have abnormal sexual needs that they can only meet through raping non-consenting victims. These myths are believed for a variety of reasons. The stereotype of the "typical offender" gives potential victims a sense of security. If you can figure out who the likely offenders are based on their appearance, and if you
38 A substantial portion of this chapter has been reprinted with pennission from the Michigan Domestic and Sexual Violence Prevention and Treatment Board and the Prosecuting Attorneys Association of Michigan. Originally published in The Michigan Prosecutors Sexual Assault Prosecution Manual (2013). All rights reserved.
69

can avoid being in a place where strangers who look like an offender could

•

attack or abduct you, then you can protect yourself from being sexually

assaulted.

"[W]e all seem to recognise that crimes are common. However, 
 we simultaneously believe that "it can't happen to me"..... 
 Janoff-Bulman suggests we make sense of our world by 
 regarding what happens as controllable. We believe we can 
 prevent misfortune by engaging in sufficiently cautious 
 behaviours, and that we are protected against misfortune by 
 being good and worthy people.,,39 


Additionally, our culture has formed its beliefs about what "real" rape

looks like, and who "real" offenders are, in part based on media portrayal of

only a small subset of sexual assaults. Cases involving strangers,

•

abductions, and weapons receive the most publicity and generate the most

fear and attention from the public. These myths about offenders function to

hide the majority of actual sex offenders from the public eye and to shield them

"> ...'relitltf' fi :~tl;'itj;>liell~fs abo~t. what
,ur~~r_~t:~:i;~:;;;:;l~J:;:!:

s , s ; .·'~!'\~f sl!Xualass~ults. TAftsemyths
a/ji}~t o1f~~d~~s function to:hide the ilJl'ajority 0/
tl~itlaJoJienJe~s frolJl the public eye and to ~'hield

tlletnjcOIn accountability for their crimes.

,<."

' "

~c

39 Cook et al. (1999) Victim's Needs, Victim's Rights: Policies and Programs for Victims of Crime in Australia.
Australian Institute o/Criminology Research and Public Policy Series, 19: 19-20.
70

•

•

from accountability for their crimes. In reality, the great majority of sexual

assaults are perpetrated by someone known to the victim.

• 


In part as a result of these erroneous yet widely held beliefs, when a victim reports having been raped by a friend, co-worker, or someone she met in a social setting, the report is likely to be viewed with more suspicion by law enforcement and less likely to be charged by prosecutors. People often refer to non-stranger sexual assault as "date rape," perceive it as having resulted from a "miscommunication" or "misunderstanding" between the offender and the victim, and believe it is somehow less serious than "real" rape. Nothing could be further from the truth.
However, there is no profile of a typical offender. Their personalities and characteristics are far too diverse. Research has emerged that sheds light on offenders of non-stranger sexual assault that sharply contradicts stereotypes about non-stranger rapes as being misunderstandings, miscommunications, or the result of too much alcohol.

Offenders ofNon-Stranger Sexual Assault Tend to Be Serial Criminal Offenders
Until fairly recently, the great majority of research looking at sexual

offenders was drawn from studies of convicted and incarcerated offenders.

•

71

These were the "detected" offenders, the ones who were pursued and caught. • Significantly, their crimes were more likely to have been reported and prosecuted because violence and weapons were used, because there was injury, and/or because the offender targeted a stranger.

It has been known for some time that a significant percentage of

offenders who have been caught are serial offenders. In studies in which

convicted offenders were assured of confidentiality and asked to self-report

about other sexual assaults and crimes, a significant number disclosed that

they had committed many more offenses, and against more victims, than

those offenses for which they had been convicted. In one study, 127 offenders admitted to 907 paraphilic acts against 882 victims. In another

•

study, 37 men in a sex offender treatment program had been charged with 66

offenses against a mean of 1.8 victims. However, in confidential self-

reporting, the 37 offenders admitted to 433 rapes against a mean of 11.7

victims.

In the last 10-15 years, however, some researchers began looking at

the population of undetected offenders and asking how those offenders

might be similar to, or different from, the offenders who had been caught.

This was an important question, given the numbers of cases that go

•72

•

unreported. Because most research focused on convicted or incarcerated

offenders, there was a huge population of undetected sexual offenders about

whom little was known.

• 


As it turned out, a substantial number of undetected sex offenders are also serial criminals. Dr. David Lisak, associate professor of psychology and researcher at the University of Massachusetts-Boston, conducted a comprehensive research project examining these "undetected rapists" to determine whether they were similar to their convicted counterparts in terms of engaging in multiple sexual assaults and other crimes. The offenders identified in the study were not asked if they had committed various forms of sexual assault. They were given a survey on life experiences, including sexual experiences. They were asked if they had ever 1) tried to have sexual intercourse by using or threatening to use physical force (twisting her arm, holding them down, etc. if they did not cooperate; 2) had sexual intercourse with someone, even though they did not want to, because they were too intoxicated to resist; 3) had sexual intercourse with an adult who didn't want to by using or threatening to use physical force; or 4) had oral sex with and adult who didn't want to by using or threatening to use physical force.

•

73

Dr. Lisak's research showed that 120 (6.4%) of the men in the study

•

had committed rape or attempted rape while in college, and those crimes had

never been reported. 76 of these men (63%) reported committing repeated

rapes, against multiple victims and/or against the same victims. These 120

undetected offenders were responsible for a total of 483 rapes; the 76 repeat

offenders averaged 5.8 rapes each.

These undetected offenders also acknowledged committing other

crimes, including sexual assault or attempted sexual assault, physical or

sexual abuse of children, and physical assaults against intimate partners.

Including the 483 admitted rapes, these 120 men committed a total of 1225 acts of interpersonal violence. Like those offenders who have been caught

•

and convicted, the majority of undetected sexual offenders are one-man

crime sprees who present a serious risk of harm to many different victims.

Lisak's findings were replicated in a study of 1146 male Navy

recruits. In that study it was found that 13% had committed sexual offenses,

and 71 % of those were serial offenders who admitted to an average of 6

rapes per offender. Of the total 865 rapes admitted to, 95% of them were

committed by the serial offenders. Dr. Lisak's research has also been

duplicated in other studies, with similar results.

•74

•

Offenders ofNon-Stranger Sexual Assault Seek To Create or Exploit Victim Vulnerability, Accessibility, and Lack of Credibility

It is now becoming more widely understood that offenders of non-

stranger sexual assault deliberately target victims who:

• Are vulnerable, or can be made so; • Are accessible, or can be made so; and/or • Are lacking in credibility, or can be made so.
When people think of sexual assault by strangers, it is not hard for

them to perceive how stranger offenders take advantage of victims who are

vulnerable and accessible. The stranger in a car who pulls up next to an

adolescent girl walking alone to school in an urban area and asks for

•

directions, then pulls her into the car and

drives away; the two men who wait in an

unlighted area of a mall parking lot late at

night and sexual assaults the woman who

walks to her car after her shift - these are

easily seen as acts that take advantage of

someone who is vulnerable and accessible. After all, these offenders didn't

go into the school or the crowded mall where they could be seen or stopped.

It has been harder for people to recognize that offenders of non-

•

stranger sexual assault also engage in selective and predatory behavior with
75

their victims. The undetected offenders in Lisak's research provide a

•

strikingly clear example of this strategic behavior. The majority of those

offenders:

• Knew their victims, at least casually;

• Were proficient at identifying potential victims;

• Tested victims' boundaries for vulnerability and ease of access;

• Used physical force or violence only instrumentally and

strategically, and only as much as was required in order to

frighten or intimidate the victim into submission;

• Used psychological strategy (cunning, control, manipulation,

and threats) to accomplish the sexual assault, with physical

force only as a backup;

• Almost never resorted to use of weapons;

• Used alcohol deliberately to render victims more vulnerable or

completely unconscious;

•

• Isolated the victim using manipulation.

Sexual offenders target someone who is already vulnerable and then

test that victim's boundaries. For example, a predator will look for someone

who is already drinking a lot, or who is already in a situation where the

victim is socially off balance or nervous. The

Off(mdefr~ffjJl nOfl:,*st~tl)iger.s.uiJ!;lINsault . also·· ~f1Il~ge' i~~;'~elective:'a,;iJd .....• tory bihavfuf".wit,.tlu~lFvi'ttil1js;,. ' "'~\t\L·· .

offender will test to see how vulnerable that potential victim is. He may

approach and invade that victim's personal space - sitting or standing too

close, putting an arm around her, to gauge whether she demonstrates a

76

•

• • •

capacity to resist that small violation of personal boundaries. The offender will ignore a request to be left alone to see if doing so overcomes the victim's expression of her personal wishes. Ifit does, the offender has identified a potential vulnerable victim.
Then, the offender seeks to enhance that vulnerability. He may draw the victim away from her friends, give her alcohol and encourage her to drink. He may act overly solicitous, and play the "white knight" who offers to help the victim get home.
The manner in which non-stranger offenders create or exploit victim vulnerability, accessibility, and credibility is nowhere more clearly demonstrated than in the video-recorded re-enactment of one of Dr. Lisak's research interviews with a male pre-law college student referred to as "Frank.,,40 The student recounts in his interview how he and his fraternity brothers would "scout" the campus for "easy prey." He and his fraternity brothers would prepare a sweet punch laced with alcohol and serve these drinks to their "targets." When the alcohol clearly was affecting the women,
40 The "Frank" video is available from the National Judicial Education Program, bttps:1Iwww.legalmomentum.org/store/undetected-rapist-dvd
77

Frank and his fraternity brothers would "make [their] move" and take their

•

specifically invited guests to the rooms prepared for the assault.

In the video, Frank explains how he took his targeted guest up to this

special room. He noticed that she was "really woozy," so he brought her

another drink. Then he "leaned her down on the bed," and began working

her clothes off even as she told him she didn't want to do this. When she

"squirmed" underneath him and tried to resist, Frank pushed her down and

put his arm across the woman's upper chest and neck. She stopped

squirming, and Frank raped her.

Use ofAlcohol by Sexual Offenders

•

"Frank" and his fraternity brothers are not unique in their use of alcohol

to create vulnerable victims. In Dr. Lisak's research, 80.8% of the

undetected offenders reported that they raped women who were

incapacitated because of drugs or alcohol. Other studies have confirmed that

alcohol is used as a tool -- and voluntary intoxication is used as an

opportunity -- by those who perpetrate sexual assault. In one study of

college men:

• 15% acknowledged using some form of alcohol-related sexual

coerCIOn;

•78

• • 


• 35% reported that their friends approved of getting a woman drunk to have sex with her;
• 20% acknowledged having 
 friends who had gotten a 
 woman drunk or high to have 
 sex. 

Sexual assault offenders need not purposely ply their victims with alcohol, although some do. An offender may target a victim who has voluntarily consumed alcohol and is intoxicated. An intoxicated woman is more vulnerable than a sober one, due to the effects of the alcohol on cognitive functioning and motor skills.
Offenders also may target an intoxicated victim because those victims can more easily be made accessible and isolated by the offender. The offender may use the pretext of "helping" her by walking her to her dorm room or driving her home, where he can assault her without fear of discovery or intervention.

Finally, societal perceptions about intoxicated women can make the

victim appear less credible when she reports the assault and the offender

•

claims she consented. Offenders understand these perceptions and take
79

advantage of them. Experiments conducted among sober college students

•

revealed that participants perceived women who consumed a few alcoholic

drinks as behaving more sexually and more interested in having sex than

women who had consumed only non-alcoholic beverages, despite the fact

that the description of the women's actual behavior was the same.

Alcohol consumption can make anyone more vulnerable, more

accessible, and less credible. But alcohol consumption does not by itself

create the risk of victimization. For example, a person can be extremely

drunk with friends who are not sexual predators and be in absolutely no

danger. It is the presence of an offender willing to exploit the vulnerability created by intoxication that creates the danger. Just as a gazelle may drink at

•

a watering hole without harm if there are no lions waiting to pounce, any

person may safely drink alcohol, even to the point of intoxication, if there is

no sexual predator waiting to take advantage.

One of the reasons why society perceives reports of non-stranger

sexual assault with doubt or as somehow less serious is because the

offenders of these assaults do not fit the stereotype of the stranger offender.

Non-stranger sex offenders can be the neighbor, the co-worker, the high

school star athlete, or someone's intimate partner. It is important to

•80

•

remember that the typical non-stranger sex offender would not seem at all

frightening or intimidating to others, including to his victim, in his day-to­

day interactions. Like everyone else, he is adept at showing the world only

his "first persona." Dr. Russell Strand of the United States Army Military

Police School, notes that "[e]veryone has three personas. The first persona is

the one we show most people or acquaintances. We show our second

r - - - - - - - - - - - _ persona to people we trust not to judge us, such

'~ena person is 
 a~aaulted by'somelme

as our family and close friends. The third

• 


she knows, she. longer knows: wh'O'
'do' rea{cly i~) or wJ,at
Wlli:l,cllcti}.

persona we usually keep to ourselves; this persona is the part of us that we feel most people wouldn't accept about us."

People want to believe that they can

truly know a person, but the third persona

remains hidden from us until the actor chooses

reveal it. "[W]hether our third persona is

harmless or not, a wicked trick of the mind is that we almost always fail to

recognize that it exists in others. We assume, tragically at times, that we can

fully know people around us because of the personas they reveal to us. We

tell ourselves that we can sense, we can see, we can discern."

•

81

It is vital that prosecutors recognize this phenomenon. Friends,

•

family, and acquaintances of the offender will jump to the offender's

defense, because he has never seemed to them like anyone who could

possibly sexually assault another person. That is because they have never

seen that third persona, they may have only ever seen the person he has

presented to the world at large. The jury may not understand, for example,

how this man could be a sex offender when the victim has known this

person, gone to the movies with him, or hung out with him and their group

of friends several times. That is because, unless the prosecutor addresses it,

they will not understand the ways in which offenders can mask their true selves from others. The jury may not understand why the victim did not

•

physically resist, or may not believe the victim if she testifies that she was

afraid the offender was going to kill her. After all, the offender was

someone the victim knew and never threatened to hurt her during the assault.

It is imperative that we help the jury understand that there is a "third persona" that the non-stranger sexual offender reveals to his victim when he makes clear that the sexual contact is going to happen whether or not she consents. At that moment, he becomes a stranger, someone she doesn't know, because she never thought that the person she knew would do this to
•82

•

OneiJjt/1.i!retlfflis:wlly sl1eiety Pf!tl:~i:ve$; repor~;;~fn~n~trltl,ger! rQPtf<Jvitlt:lt;;~u!l~10;

as SOI1J;4how 1~t(r,ser:iou$\y;\iS01

.tJiJ

her. And because he is a stranger, the victim may

offend~;;1 of t ":( a~saults>do. not:fit:i~~ experience fear and terror,

ster~6WR~1ejt.

.

...

:,//i:~

regardless of whether there

was any express threat of physical harm. The victim no longer has any

foundation for predicting the offender's propensity for violence - she no

longer knows who he really is or what he is willing to do if she resists.

• 


This more recent research has led to a greater understanding of offenders. The research "conflicts sharply with the widely-held view that sexual assaults .... are typically the result of a basically 'decent' young man who, were it not for too much alcohol and too little communication, would never do such a thing. While some... assaults do fit this more benign view, the evidence points to a far more sinister reality, in which the vast majority of sexual assaults are committed by serial, violent predators.,,41 In fact, this research has led to the term "date rape" being viewed with disfavor, the criticism being that the connotation associated with "date rape" is that

•

14, 4 41 Understanding the Predatory Nature of Sexual Violence, David Lisak, Sexual Assault Report, Volume no.
MarchiApril2011
83

victims suffer less harm, and "date offenders" are less serious offenders, than stranger offenders.

•

All of these things conspire to normalize sexual assault, or to disguise it as something consensual. Sexual assault is excused as "hooking up," "one-night stand," or drunk sex that the victim later regrets. Offenders count on the jury thinking that, at worst, this was sex gone wrong or a misunderstanding. The prosecutor's job is to remove the disguise and recreate the reality of what happened.

When police receive a report of a non-stranger sexual assault, there is

a high likelihood that the suspect is a serial offender. Accordingly, the

•

investigation and case development should be as rigorous and thorough as

the investigation and prosecution of any other crime where there is reason to

believe that the offense is not likely the first offense. Instead of viewing the

report with skepticism and scrutinizing the victim and her behavior, law

enforcement and prosecutors need to engage in an offender-focused

investigation and prosecution, with the current research on offenders firmly

in mind.

•84

•

Chapter 5

MONTANA SEXUAL ASSAULT STATUTES

Montana's core criminal statutes prohibiting various types of non-

consensual sexual contact are contained in Title 45, Part 5 of the Montana

Code Annotated and include Sexual Assault, Sexual Intercourse without

Consent (SIWOC), Indecent Exposure and Incest. Of these, Sexual Assault

and SIWOC will be the focus of this chapter since they are most often the

statutes at issue in non-stranger sexual assault cases. There are, however,

other sexually related criminal statutes that may occasionally be of

•

consideration in a case involving sexual conduct including the crimes

entitled "Offenses Against the Family," which are found in Title 45, Part 6.

These include the human trafficking related offenses of promoting

prostitution and the child pornography focused offense of sexual abuse of

children.

The statutory definitions and case law applicable to the crimes of

Sexual Assault and SIWOC are sufficiently distinct that separately

considering these topics lends itself to less confusion. Accordingly, this

Chapter will first address the elements and critical definitions relating to

•

SIWOC, followed by a separate discussion elements and critical definitions
85

related to Sexual Assault. This will be followed by a discussion of statutes generally related to sex crime prosecutions, including statutory provisions on

•

evidence in sex cases, and statutory jury instructions on sex cases, and a

basic discussion of Montana's rape shield statute.

Sexual Intercourse Without Consent

Montana Code Annotated § 45-5-503 provides that "[a] person who

knowingly has sexual intercourse without consent with another person

commits the offense of sexual intercourse without consent." Montana's

Standard Criminal Jury instruction requires that the State prove the

following elements, beyond a reasonable doubt to convict on this crime:

•

1. The Defendant had sexual intercourse with the victim;

AND

2. The act of sexual intercourse was without the consent of the victim;

AND

3. The Defendant acted knowingly.

•86

•

The elements of "sexual intercourse" and "without consent" are

defined by statute, and each will be discussed in tum.

Sexual Intercourse

"Sexual intercourse" is defined at Mont. Code Ann. § 45-2­ lOl(68)(a):

• 


"Sexual intercourse" means penetration of the vulva, anus, or mouth of one person by the penis of another person, penetration of the vulva or anus of one person by a body member of another person, or penetration of the vulva or anus of one person by a foreign instrument or object manipulated by another person to knowingly or purposely (i) cause bodily injury or humiliate, harass, or degrade; or (ii) arouse or gratify the sexual response or desire of either party.
Furthermore, sexual intercourse includes "any penetration, however slight."
Mont. Code Ann. § 45-2-101 (68)(b).

It is important to remember, however, that the State must present

affirmative evidence of penetration by the Defendant in order to secure a

conviction. For example, it is insufficient when the only evidence of penetration is the female victim stating that "he was performing oral sex on me" and that "I was lying down

In tiSexuallnt(ircQRr~ei'~
Without Consent ca$e, ~l a'tijpenetradQP, howevef)! [ii/lght, isisuJii~ientfor a .. chl!~g,~;i . ·~;;r;,·.

•

and he had his arms over my legs and his head between my legs." State v.
87

Lundblade, 221 Mont. 185, 187-88, 717 P.2d 575 (1986). The Lundblade

:Che'diiftnititinioi~'without~jii>:: c~ns:;Utf!'J(}litu/Jn MC:PlJ'45~

•

5:t5f11 applieS" only to "e;:, ." '.

court held that the prosecutor needed to oJlJnse ojSe.,"tual Iltt~fc~urse

without Consent.
elicit specific evidence from the victim

establishing that her vulva was penetrated, assuming that was the case, in

order to prove this element beyond a reasonable doubt. Id.

Without Consent

"Without consent" is defined at Montana Code Ann. § 45-5-501. This

definition only applies to use ofthe term in

f'Without(jaIi8ent!~:'; ..' Jnciuf{~sjdl'Jer .... , decejJ#iJ/i" coercion~
"n . ". 's""."lJ'.(,r;rlse, phy~~".·.p(l.~I""~'ii',:~~J:':~{f.:+>:~

SIWOC cases. For purposes this manual, this statute is divided into three categories of

•

h~iPlessnes~~;:"eftt~i .'. '.~i;, "without consent:" 1) the victim was

illcapacitatioircause(#>

by intoxication, al,ldit,£ ... compelled to submit by force; 2) the victim's
!::;~b;;;1~:;~: 
 physical or mental disability made her

timlsincap
consetlt.~;l.L

incapable of consent, or 3) the victim's

circumstances made her incapable of consent.

The victim is compelled to submit by force:

A victim is deemed to have acted "without consent" if the State can

show that she was compelled to engage in sexual intercourse because of
88

•

•

"force against the victim or another." Mont. Code Ann. § 45-5-5-1(I) (a) (i).

"Force" is defined as:

(a) the infliction, attempted infliction, or threatened infliction of bodily injury or the commission of a forcible felony by the offender; or (b) the threat of substantial retaliatory action that causes the victim to reasonably believe that the offender has the ability to execute the threat.
Mont. Code Ann. § 45-5-5-1 (2).

The Montana Supreme Court has strictly construed this statutory

definition of "force." In State v. Haser, the State argued a theory of

"constructive force" when the Defendant suddenly and without warning,

•

digitally penetrated the vulva of women he was supposed to be photographing. State v. Haser, 2001 MT 6, ,-r 43,304 Mont. 63,20 P.3d

100. The court rejected this theory, pointing to "Montana's clear legislative

mandate tha~ 'force' must be related somehow to bodily injury, the

attempted infliction of bodily injury, or an actual threat of some kind." Id. at

In the wake of this decision, the Montana legislature filled this gap by

defining a person as incapable of consent who is "overcome by deception,

coercion, or surprise." Mont. Code Ann. § 45-5-501 (I) (a) (ii)(C) (effective

•

October 1, 2001). While this provision is apparently meant to at least
89

encompass someone who is digitally penetrated without prior warning in a

•

massage or photography session, this language could also be more broadly

applied to non-stranger assault situations where the deception or coercion

takes place through the use of isolation or other common techniques.

The meaning of part Mont. Code Ann. § 45-5-5-1(2) (b) also is best defined by reference to the Montana Supreme Court case that prompted its passage. In State v. Thompson, a teacher threatened a high school student with non-graduation if she refused to perform oral sex. State v. Thompson, 243 Mont. 28, 29, 792 P2d 1103,47 St. Rep. 1065 (1990).

The State charged SIWOC based on the theory that the high school

•

principal had "in his position of authority as the principal, intimidated Jane

Doe into the alleged acts." Id. at 32. The State argued "the fear and

apprehension of Jane Doe show [that the school principal] used force against her." Id. The statutory definition of "force" in effect at the time of these

events, however, was limited to situations where "the victim is compelled to submit by force or by threat of imminent death, bodily injury, or kidnapping

to be inflicted on anyone." Id. at 31. The district court granted a motion to

dismiss because no "force" was alleged in the charging document. Id. at 31 .

•90

•

The Montana Supreme Court reluctantly affirmed, finding that the facts did

not fit within the definition of "force" in effect at the time. Id. at 33.

In the wake of this decision, the Legislature passed part (b), which defines force as "the threat of substantial retaliatory action that causes the victim to reasonably believe that the offender has the ability to execute the threat." Mont. Code Ann. § 45-5-501(2)(b) (effective April 27, 1991).

• 


The victim is incapable of consent because of physical or mental disability:
"Without consent" includes a victim who is incapable of consent because she is "mentally defective," "mentally incapacitated," or "physically helpless." The term "mentally defective" "means that a person suffers from a mental disease or defect that renders the person incapable of appreciating the nature of the person's own conduct." Mont. Code Ann. § 45-2-101 (40). The Montana Supreme Court has not interpreted this definition directly. Proof that a victim meets this definition would likely be best addressed with expert testimony after an appropriate examination of the victim.

The term "mentally incapacitated" means that a person is rendered

temporarily incapable of appreciating or controlling the person's own

conduct as a result of the influence of an intoxicating substance. Mont. Code

•

91

Ann. § 45-2-101 (41). It makes no difference whether the victim is

•

intoxicated voluntarily or involuntarily. State v. Gould, 273 Mont. 207, 220,

902 P.2d 532 (1995). Where the intoxicating substance at issue is alcohol,

lay opinion testimony of eyewitness may be sufficient to prove the victim

was "mentally incapacitated." See generally State v. Carter, 285 Mont. 449,

948 P.2d 1173 (holding that lay persons may offer an opinion on

intoxication). However when drugs or other substances are at issue, proof of

this element should be handled with the testimony of a toxicologist, along

with analysis of the victim's blood, if available. See State v. Nobach, 2002

MT 91 (holding lay people are not sufficiently knowledgeable about common symptoms of drugs to offer lay opinion testimony.)

•

The term "physically helpless" means that a person is unconscious or

is otherwise physically unable to communicate unwillingness to act. Mont. Code Ann. § 45-2-101 (58). The Montana Supreme Court has made it clear

that a person who is sleeping is "physically helpless." See State v. Stevens,

2002 MT 181,,-r 44,311 Mont. 52,53 P.2d 356. This remains true regardless

of whether the sleep is drug-induced or achieved normally, and even if that

person had some sensory perception. Id. at,-r 45.

•92

• • 


The evidence must establish, however, that the victim was "physically helpless," which includes the state of being asleep, at the time of the sexual intercourse. In State v. Stevens, evidence that the victim "awoke ... when she felt the sensation of something inside her vagina" was sufficient to support a conviction for SIWOC. Stevens, ~~ 11,45. Evidence that the victim was aware of a sexual assault, but then "stops breathing," becomes "glued to the table" or is "frozen out of fear" at the time of the penetration was not sufficient to support SIWOC conviction. Id. at ~~ 47-49. The court reasoned that this particular victim was not "physically helpless" because she was "not sedated and, although frightened" she had control over her body and therefore was "conscious and otherwise physically capable of communicating unwillingness to act." Id. at 49.

Notably, the Stevens case did not address the issue of tonic immobility. The Stevens case does not foreclose the possibility that with the proper expert testimony a jury may be within its bounds in finding that a sober, awake and aware person may in fact be "physically helpless" because of the effects of tonic immobility.

The victim is incapable of consent due to other circumstances:

•

93

Finally, Montana Law provides a list of circumstances under which

•

the victim is incapable of consent to sexual intercourse. See 45-5-501(1)(a)­

(c). These circumstances are generally described as:

• The victim is overcome by deception, coercion or surprise, as described above;

• The victim is under 16 years of age;

• The victim is incarcerated in an adult or juvenile correctional,

detention, or treatment facility or is on probation or parole and

the offender is an employee, contractor, or volunteer of the

supervising authority and has supervisory or disciplinary

authority over the victim, unless the act is part of a lawful

search; • The victim is admitted to a mental health facility, a community­

•

based facility or a residential facility, or is receiving

community-based services, as those terms are defined by

statute; and the offender has supervisory or disciplinary

authority over the victim or is providing treatment to the victim;

and is an employee, contractor, or volunteer of the facility or

community-based service.

Sentencing in Sexual Intercourse Without Consent

Any person convicted of a SIWOC will face up to life imprisonment.

Mont. Code Ann. § 45-5-502. The statute provides for a mandatory

minimum of "not less than 2 years" in a state prison. This means that the

defendant must be sentenced to a minimum of two years in either the

•94

•

Montana State Prison or a commitment to the Department of Corrections.

However, the court can reduce this to a minimum of two years deferred

execution of sentence, pursuant to Mont. Code Ann. § 46-18-205(2), if the

Court finds one of the following exceptions applies:

• 
 •

(1) the offender was less than 18 years of age at the time of the commission of the offense for which the offender is to be sentenced;
(2) the offender's mental capacity, at the time of the commission of the offense for which the offender is to be sentenced, was significantly impaired, although not so impaired as to constitute a defense to the prosecution. However, a voluntarily induced intoxicated or drugged condition may not be considered impairment for the purposes of this subsection.
(3) the offender, at the time of the commission of the offense for which the offender is to be sentenced, was acting under unusual and substantial duress, although not such duress as would constitute a defense to the prosecution;
(4) the offender was an accomplice, the conduct constituting the offense was principally the conduct of another, and the offender's participation was relatively minor;
(5) in a case in which the threat of bodily injury or actual infliction of bodily injury is an actual element of the crime, no serious bodily injury was inflicted on the victim unless a weapon was used in the commission of the offense; or
(6) the offense was committed under 45-5-310,45-5-311,45-5­ 502(3),45-5-503(4),45-5-507(5), 45-5-601(3), 45-5-602(3), 45-5-603(2)(b), or 45-5-625(4) and the judge determines, based on the findings contained in a sexual offender evaluation report prepared by a qualified sexual offender evaluator pursuant to the provisions of 46-23-509, that treatment of the offender while incarcerated, while in a residential treatment facility, or while in a local community affords a better opportunity for rehabilitation of the offender and for the ultimate protection of the victim and society, in which
95

case the judge shall include in its judgment a statement of the reasons for its

•

determination.

Mont. Code Ann. § 46-18-222.

With regard to subsection (5), the Montana Supreme Court has held

that because "the threat or infliction of actual bodily harm may, depending

on the circumstances, be an element of the offense of sexual intercourse

without consent, it is reasonable to conclude that the exception to the

minimum sentence found at § 46-18-222(5), MCA, when no "serious bodily

injury was inflicted on the victim" is applicable to that offense. State v.

Goodwin, 249 M 1,813 P2d 953, 48 St. Rep. 539 (1991). Accordingly,

where the victim has not suffered at least the threat of "bodily injury," this

•

finding is appropriate, and the court's discretion is only limited by a

mandatory minimum of a two-year deferred imposition of sentence. See

Mont. Code Ann. § 46-18-205 (where restricting deferrals or execution of

sentence based on age of victim implies that a deferral or suspension of

sentence is otherwise appropriate).

The mandatory minimum sentence becomes increasingly severe based

on the age of the victim and the relative age of the Defendant. If the victim

is under 16, the first 30 days of the sentence may not be deferred or

suspended. Mont. Code Ann. § 46-18-205(1). This means that the minimum
96

•

•

sentence would be a two-year sentence to a state prison with all but 30 days

suspended. If the victim is under 16 and the offender is four or more years

older than the victim, then the minimum would be four years with all but 30

days suspended. Mont. Code Ann. § 45-5-503(3)(a); Id. If the victim is 12

or younger and the Defendant is 18 or older at the time of the offense, the

Defendant will be subject to a mandatory life sentence with 25 years of no

parole, unless the Court finds one of the exceptions described in Mont Code

Ann. § 45-18-222, as described above. Mont. Code Ann. § 45-5-503(4)(a).

• 
 •

Finally, the Defendant must be sentenced to life without release if he has previously been convicted of one of the following qualifying offenses: deliberate homicide, aggravated kidnapping, sexual intercourse without consent, sexual abuse of children, and ritual abuse of a minor. Mont. Code Ann. § 46-18-219. The only exception to this minimum is provided at § 45­ 19-219(3). This language is confusing, and has yet to be directly addressed by the Montana Supreme Court. The likely interpretation would be that the court may depart from mandatory life without release if the court that previously sentenced the defendant for one of the qualifying offenses found that a Mont Code Ann. § 45-18-222 exception applied to that offense, and sentenced accordingly.
97

Sexual Assault

Montana Code Annotated § 45-5-502 provides that "[a] person who knowingly subjects another person to any sexual contact without consent commits the offense of sexual assault." Unlike SIWOC, sexual assault can be charged as a misdemeanor or a felony. In order to charge and convict as a felony, the State must allege and prove one or more of the following circumstances:

• The present offense is a third or subsequent offense of sexual

assault;

• The victim is less than 16 years old and the offender is 3 or

more years older than the victim; or • The offender inflicted bodily injury on the victim in the course

•

of the sexual assault, regardless of the victim's age.

With regard to the third circumstance, "bodily injury" is defined at §

45-2-101(5) as "physical pain, illness, or an impairment of physical

condition and includes mental illness or impairment."

In order to convict a Defendant of Sexual Assault, Montana's Standard Criminal Jury Instructions require that the State to prove the following elements, beyond a reasonable doubt:

l. The Defendant subjected the victim to sexual contact;

•98

•

AND

2. The act of sexual contact was without the consent of the victim;

AND

3. The Defendant acted knowingly.

The two critical definitions required to be proved in these elements are "sexual contact" and "without consent." Each is addressed here in tum.

Sexual Contact

• 


"Sexual contact" means touching of the sexual or other intimate parts of the person of another, directly or through clothing, in order to knowingly or purposely cause bodily injury to or humiliate, harass, or degrade another; or to arouse or gratify the sexual response or desire of either party. Mont. Code Ann. § 45-2-101 (67). The legislative policy underlying this definition "is to criminalize and punish sexual or intimate impositions that do not involve penetration ... but which express a societal concern for such impositions because they provoke outrage, disgust or shame in the victim." State v. Kern, 2003 MT 77,,-r 24,315 Mont. 22, 67 P.3d 272.

•

99

Applying this policy, the Montana Supreme Court has determined that • 
 the definition of "sexual contact" reaches a broad swath of conduct. Essentially any type of intimate contact is sufficient regardless of who does the touching or what body part is involved, especially when the victim is under the age of consent. All of the following factual scenarios were deemed to fall within the definition:

• An adult male rubbing the belly and chest of a 9-year old girl. State v.

Weese, 189 Mont. 464,467-68,616

P.2d 371,373-74 (1980).

In sexual assa'Uij·c;.sesi
cqi!rgetl')lntle~i:M€A 45·

• An adult male ordering a seven-year­ old female to touch his penis. State v. Kern, 2003 MT 77, ,-r 24, 315 Mont. 22, 67 P.3d 272.

. .• ·5';o····~ift· ~~ ··t··f1<:... ,.,: :·#1_'# :

5. ' -
::,'

z;,t'.ei· C'i: :,c~~~;}~,~~::~ ermWl"uiOUf,f{,0~,:&~t0

consent'retains its· .

ordina,ry mealt"" few n .. ' 'wly'iir

•

• An adult male admitting that he

ct",.

';c

',.c
nces wnere

"touched [a minor female] intimately c~nsentis;int!;ffective. .

and told her not to tell." State v.

Kao, 245 Mont. 263,268, 800 P.2d 714 (1990).

Furthermore, the Montana Supreme Court has repeatedly held that the

State need not prove direct evidence of arousal, or intent to be aroused, in

order to meet its burden of proving the "sexual contact" element of sexual

assault. "[1]t is well-settled that the jury may infer intent of sexual arousal

from the defendant's acts." State v. Rogers, 2007 MT 227, ,-r 30,339 Mont.

132, 168 P.3d 669.

•100

•

Without Consent

The term "without consent" is not defined for purposes of its use in

the crime of sexual assault. Instead, "without consent" retains its ordinary

meaning, with a few narrowly defined circumstances where consent is

ineffective. Mont. Code Ann. § 45-5-502(5); State v. Williams, 2010 MT 58,

,-r 24,355 Mont. 354,228 P.3d 1127. The circumstances where consent is ineffective generally include:42

• 
 •

• Where the victim less than 14 years old and the offender is 3 or more years older than the victim;
• Where the victim is incarcerated in an adult or juvenile correctional, detention, or treatment facility or is on probation or parole and the offender is an employee, contractor, or volunteer of the supervising authority and has supervisory or disciplinary authority over the victim, unless the act is part of a lawful search;
• Where the victim receiving services from a youth care facility, as defined in 52-2-602, and the offender has supervisory or disciplinary authority over the victim or is providing treatment to the victim; and is an employee, contractor, or volunteer of the youth care facility;
When sexual assault and SIWOC are charged in the same information,
the instructions must clearly distinguish the different definitions of without
consent. For example, the "without consent" instruction could state that "In
42 Mont. Code Ann 45-5-502.
101

regard to Count I, Sexual Assault, the term "without consent" retains its ordinary meaning, In regard to Count II, SIWOC, the term "term without

•

consent means ...." This type of instruction will prevent confusion in cases

where the both sexual assault and sexual intercourse are charged in the same

Information.

This all begs the question of what is the "ordinary meaning" of

"without consent." The dictionary definition of "consent" is "to give assent

or approval." Merriam Webster Dictionary, Online, 2013. Arguably, this

definition may permit a judge or jury to convict on cases where the victim

fails to give affirmative consent to sexual contact, which would be broader in scope than the definition of "without consent" that applies to SIWOC

•

cases.

The Montana Supreme Court appears to disagree. The court has held, in the context of a lesser included offense analysis that the plain meaning of "without consent" in sexual assault is actually included, and thus narrower in scope, than the statutory definition of "without consent" used in SIWOC
cases. State v. Williams, 2010 MT 58, ,-r 27, 355 Mont. 354, 228 P.3d 1127.
The court reasoned that "[t]he ordinary meaning of "without consent" fits
•102

•

squarely within the definition under § 45-5-501(1)(a)(i), MCA, that "the

victim is compelled to submit by force against the victim or another."

Sentencing in Sexual Assault Cases

• 


A person convicted of felony sexual assault based on the fact that it is a third conviction is subject to up to five years in prison. Mont. Code Ann. § 45-5-502(2)(c). A person convicted of felony sexual assault based on the age of the victim being less than 14 or the infliction of bodily injury is subject to up to life in prison. Mont. Code Ann. § 45-5-502(3). The mandatory minimum when the victim is less than 14 or bodily injury is inflicted is four years to a state prison with two years suspended. ld.; Mont. Code Ann. § 46-18-205(2)(0. If the judge wishes to suspend less than 4 years, the judge must make a "written finding that there is good cause." Mont. Code Ann. § 45-5-502. If the judge wishes to impose less than two years in prison or the Department of Corrections, the jury must make a finding pursuant to Mont. Code Ann. § 46-18-222, as described above in sentencing for SIWOC cases.

Knowledge

It is critical to pay close attention to the "knowingly" element in sexual

•

offense cases. As discussed throughout this manual, offenders take
103

advantage of the stereotypes many people hold in order to commit a sexual

•

assault. Many defendants claim, and juries often believe, that the sexual act

was not an assault, but simply the result of a "misunderstanding" or

"miscommunication." This can make proving a defendant's knowledge more

difficult. It is easy for prosecutors to focus primarily on the "without

consent" element, since that is often the biggest issue in non-stranger sexual

assault cases; however, the State must prove mental state as to each and

every element. Mont. Code Ann. § 45-2-103. Therefore, attention must be

paid to all indications, large and small, of a defendant's knowledge, starting

in the investigative stage of the case. Laws Generally Applicable to Sex Crimes

•

Montana Code Ann. § 45-5-511 provides a number of miscellaneous provisions that are important to SIWOC and Sexual Assault cases. First, this section provides the basis for two important jury instructions that attempt to dispel common rape myths.

Failure to Make a Prompt Outcry

Jurors unfamiliar with the dynamics of sexual assault

Several Monta1i'a'statute9directly . 


counter s~;',e oftliietmost long­

stand~f!g andfirmly entri!nch 

rap~~ths;.;

•104

•

might assume that a person being assaulted would immediately yell, scream

and report the crime to police. They may assume that someone who does

otherwise must be lying. Section 45-5-511(4) counters this myth with a

statement of law that "[e]vidence of failure to make a timely complaint or

immediate outcry does not raise any presumption as to the credibility of the

victim."

Resistance is Not Required

• 


Jurors might also mistakenly assume that anyone who is sexually assaulted would physically resist. Section 45-5-511 (5) states, to the contrary, that "[r]esistance by the victim is not required to show lack of consent. Force, fear, or threat is sufficient alone to show lack of consent." While neither of these principles have been adopted as standard jury instructions, they are commonly offered and given as instructions by judges in Montana and should be considered in any case where these issues arise.

Rape Shield Statute

The second important provision in § 45-5-511 is what is commonly called the "rape shield" statute. Section 45-5-511 (3) states:

•

Evidence concerning the sexual conduct of the victim is inadmissible in prosecutions under this part except evidence of
105

the victim's past sexual conduct with the offender or evidence of specific instances of the victim's sexual activity to show the origin of semen, pregnancy, or disease that is at issue in the

•

prosecution.

The Montana Supreme Court has strictly enforced this statute to

prevent the trial from becoming a trial of the victim. See e.g. State v.

Detonancour, 2001 MT 213, ,-r 21, 306 Mt 389,34 P.3d 487.

There are three exceptions to the statute. Before discussing these

exceptions, it is important to realize that the rape shield is a rule of

exclusion, not a rule of admissibility. Evidence that passes through the rape

E~idence~iifai; .

;ass~~th.r:oughiJi~>J shield pursuant to an exception must still comply

rapeshi~ld

>

pursuan~ to: an
excep~4tj~tillmust/

with the remaining rules of evidence in order to be admissible. See State v. Bishop, 2012 MT 259, ,-r

•

t·o;,plj:';'fth'the ' ~ ii.

remaining rules ~j;i 40,367 Mont. 10,291 P.3d 538. Frequently,

/Nld¢'nceim+otder
to beX(id';'issible~' <·"0'

evidence of past sexual conduct is irrelevant under

Rule 401 or unfairly prejudicial under Rule 403,

regardless of the rape shield statute. ld.

The first exception to the rape shield is "evidence of the victim's past

sexual conduct with the offender." The important question here is defining

what constitutes "sexual conduct." The Montana Supreme Court has

interpreted this term to include "sexually intimate" behavior, but to exclude
106

•

•

"flirtatious behavior." State v. Detonancour, 2001 MT 213, ,-r 24, 306 Mt

389,34 P.3d 487. The Court did, however, exclude evidence of flirtatious

behavior on relevance grounds, stating,

• 


We decline to adopt this broad definition of sexual conduct. As the compiler's comments note, if Detonancour and [the victim] had been sexually intimate previous to the assault, that evidence would have been admissible. However, flirtatious behavior is not, contrary to Detonancour's opinion, an invitation to engage in sexual relations. An examination into the nuances of the victim's interactions with the defendant days before an alleged rape would effectively put the victim on trial. Not only is this evidence irrelevant to the issue of consent, it is precisely the harm that the rape shield statute is designed to prevent." Id.
Where the conduct in a specific case falls on this spectrum is fact-
intensive and will depend on the particular circumstances of the case, and
will typically be intertwined with an a relevancy analysis under Rules 402
and 403. See e.g. Bishop, ,-r 48.

The second exception to the rape shield is "evidence of specific

instances of the victim's sexual activity to show the origin of semen,

pregnancy, or disease that is at issue in the prosecution." The important

issue to keep in mind here is that just because the facts of the case involve

semen, pregnancy or disease does not mean that evidence falls within this

exception. The semen, pregnancy or disease must be "at issue in the

•

prosecution." For example, in State v. Bauer, seminal fluid of a person other
107

than the Defendant was allegedly found in the bed sheets of the victim. State v. Bauer, 2002 MT 7, ,-r 28,308 Mont. 99,29 P.3d 689. The court

•

held that this DNA is not at issue in the prosecution and excluded by the

rape shield where the State has not offered the seminal fluid as evidence that

the Defendant committed the rape. Bauer,,-r 31. On the other hand, if the

State offered evidence that the Defendant impregnated the victim around the

time of the sexual assault, the rape shield would probably not exclude

evidence that the victim had sex with someone else around the time of c

Finally, there is a Sixth Amendment exception to the rape shield that

permits the Defendant to offer past sexual conduct of the victim, if the evidence is probative to the victim's credibility. However, "speculative or

•

unsupported allegations are insufficient to tip the scales in favor of a

defendant's right to present a defense and against the victim's rights under

the rape shield statute." State v. Johnson, 1998 MT 107, ,-r 24,288 Mont.

513,958 P.2d 1182. The Montana Supreme Court has specifically

articulated a test for offering evidence of prior false allegations of non-

consensual sexual conduct:

[t]he defendant must establish, by a preponderance of the evidence, that (1) the accusation or accusations were in fact made; (2) that the accusation or accusations were in fact false; and (3) that the evidence is more probative than prejudicial. If

•108

•

the defendant satisfies these three conditions, the trial court will authorize cross-examination of the complaining witness

concerning the alleged false accusations. The defendant may

thereafter present extrinsic evidence of the false accusations

only if the complaining witness denies or fails to recall having

made such accusations.

State ex. Rei. Mazurek v. Fourth Judicial District Court, 277 Mont. 349, 922

P.2d 474 (1996).

• 


•

109

Chapter 6 ISSUES IN PROSECUTING SEXUAL ASSAULT

•

CASES43

In a non-stranger sexual assault case, rape myths and societal attitudes

about victims and offenders conspire to normalize sexual assault, or to

disguise it as something consensual. Sexual assault is excused as "hooking

up," a "one-night stand, or drunken sex that the victim later regrets.

Offenders count on the jury, media, and society at large thinking that, at

worst, it was sex gone wrong or a misunderstanding. The prosecutor's job is

to remove the disguise and recreate the reality of what happened.

•

When police receive a report of a non-stranger sexual assault, there is

a high likelihood that the suspect is a serial offender. Accordingly, the

investigation and case development should be as rigorous and thorough as

the investigation and prosecution of any other crime where there is reason to

believe that the offense is not likely the first offense. Instead of viewing the

report with skepticism and scrutinizing the victim and her behavior, law

43 This chapter was excerpted and modified with pennission from: the Michigan Prosecutors Sexual Assault Prosecution Manual, published by the Domestic and Sexual Violence Prevention and Treatment Board and the Prosecuting Attorneys Association of Michigan (2013); the Wisconsin Sexual Assault Reference Book, published by the Wisconsin Office of Justice Assistance (2009); Prosecuting Alcohol-Facilitated Sexual Assault, published by the National District Attorneys Association (2007); and Prosecuting Intimate Partner Sexual Assault, The Voice, Volume II, No.2, published by the National District Attorneys Association. All rights reserved.
110

•

• • 


It.is'impo;'ta~tlo.lUtk~ .. proYJciit~rto'taJiit.itl >.! pr()J(itiVi{~~lein···
,',! .... :g>the
'. n neededta . ,;-;Y>~'"
Sll'ccess!ullp:prosecute! thesecoses•..

enforcement and prosecutors need to engage in an offender-focused investigation and prosecution.
It is important for the prosecutor to take a proactive role in identifying and

acquiring the information needed to successfully prosecute these cases. This

may mean being in direct communication with law enforcement as the case

is being reviewed, and requesting additional investigation and witness

interviews, to ensure that all corroborative details have been addressed.

Further, it is vital that the prosecutor wait until all the information has been

collected before deciding whether or not to file charges.

Investigating and Analyzing Sexual Assault Cases

The prosecutor's responsibilities in an offender-focused sexual assault prosecution include oversight and involvement in the investigation of the sexual assault. In order to properly analyze a sexual assault case, the investigation should be designed to uncover and address a number of topics. The investigation should provide the prosecutor the ability to develop:

•

111

• Pretrial motions in limine to exclude information that invades the victim's privacy or is otherwise irrelevant and/or

•

prejudicial;

• Expert witnesses to address the jury's culturally created 
 skepticism of victim behavior; and 

• A trial strategy that will demonstrate the predatory nature of the victim's conduct.

Perhaps most importantly, prosecutors must be

willing to prosecute cases that may not be easy to win. The following sections contains information

Pr(}$ttCtttOFS tnU9'PIirJ;,:::;
ljJiliing~~{1;pFose ,:.:;! .....

cases tfilli may nolo

eC ca" sy

to

: . c ,!
wIn.

c

and questions that investigators and prosecutors could

keep in mind, on issues both general and specific, starting at the beginning of the case.

•

General Questions

• Is there a motive to lie? Although the defense will always claims there is a motive for the victim to lie, the better question to ask is whether there is compelling, corroborated evidence that the victim did lie or likely lied. However, anticipating defense claims about a victim's alleged motive to lie is important to do from the outset of a case.
• If there is no evidence the victim lied, why is her veracity being questioned?
•112

•

• Where did the incident happen? Which of the parties was at the incident location first? Is this a case where the victim went to

bed and the defendant followed her to her bedroom? Are the

facts of the incident consistent with a consensual encounter?

Reporting Issues

• What are the time and circumstances of the report? Did the

victim come forward as soon as she was physically able or did

she wait? What made her come forward? Did she tell anyone

about the incident prior to going to the hospital or calling the

police? What prompted her to report when she did and why? A

delayed report is the norm and should not be considered fatal to

the prosecution of a sexual assault case; however, considering

and understanding the circumstances surrounding the report,

and the reasons for any delay, must be explored. Investigators

•

must interview any eye or ear witnesses to the delayed report, the sexual assault itself, and to anything that might have happened in the intervening time between the sexual assault and

the report to the police.

• When analyzing the impact of a delayed report, remember that,

according to the National College Women Sexual

Victimization Survey, almost half of the women who are by

definition rape victims do not self-identify as rape victims.

These women know that something bad happened to them, that

someone had sex with them when they were too drunk to

consent, or that someone held them down and forced them to

have sex against their will. But they often do not label

themselves as victims of sexual assault. If a victim does not

self-identify as such, it will impact her choice to call the police

immediately. Victims also need time to process what has

happened, as well as people to confide in about what happened.

•

113

Injuries/victim's Physical Condition

•

• What was the victim's physical condition? Was she menstruating? Was she wearing a tampon? Was she previously injured? Was she undergoing medical treatment for a yeast or fungal infection or other uncomfortable condition? Was there anything else that would argue against the intercourse being voluntary?

• Was the victim injured? If so, what do the injuries show?

• Was there prior interaction between the victim and the defendant? Are they boyfriend and girlfriend? Did they even know each other before the night in question?

• Can the victim testify to all elements of the crime?

• What theory applies? Did the defendant use force or threaten

•

the victim? Use deception, coercion, or surprise? Was the

victim "mentally incapacitated due to intoxication? Was the

victim asleep, unconscious, or passed out?

Investigation ofthe Suspect

Although approaching other potential victims who have not reported a

sexual assault is an extremely sensitive issue, the investigation should

include looking into the suspect's past to determine if there are other

victims. If other victims are located, the investigator and prosecutor should

involve an advocate, and consider staffing the case with the MDT to

•114

•

determine whether it is advisable to approach other potential victims. The

investigation of the suspect should include:

• Where the suspect hangs out;

• What has he told his friends, co-workers about his sexual activities with others;

• Investigation of the suspect's behavior before, during and after the incident for evidence of premeditation and partial admissions;

• How he selected the victim;

• What he did to test the victim for vulnerability;

•

• What did he do to create and/or exploit vulnerabilities, e.g., did he buy the victim drinks;

• What did he do during the incident;

• The suspect likely will concede significant information to officers, such as acknowledging that the victim was really drunk or that she threw up just before the sexual act

• Exactly how each sexual act occurred and who did what, in anticipation that some of what the suspect describes will indicate a lack of mutuality;

• What he is claiming is evidence of consent;

• What he did after the assault - who he talked to, whether he

•

bragged about the assault, whether he made partial admissions; typically there are witnesses who observed the suspect's
115

behavior and his interaction with the victim, and to whom the

•

suspect spoke after the assault, yet all too often those victims

are never interviewed;

• Look at the defendant's level of intoxication. What was his capacity to do other things? Could he walk? Talk? Play pool? Drive a car? Was his speech slurred? The more sober he was, the easier it is to show he was a predator, especially if the victim was extremely intoxicated.

• Was there any planning or manipulation on the part of the defendant? Were there any attempts to deceive the victim? Did the defendant do anything to control the situation and overcome the victim's will? Did he isolate her? Did he lie to her?

• Is there any evidence of grooming? Did the defendant do anything during the time prior to the sexual assault to gain the victim's trust? Did he do anything to make it easier to sexually • assault her? Is there any evidence that he set her up? For example, did he talk about making a "'special punch" to get his "target" drunk? Did he buy her drinks and encourage her to drink them in an attempt to get her drunk?

• Did the defendant prey upon the victim's vulnerabilities? Did he do anything to wear down the victim's resistance? Is there any evidence that the defendant selected the victim because he knew that she would be an easy target?

• Has the defendant done it before? Have anyone else ever accused him of rape or other misconduct? Has anyone ever seen women leaving his room/apartment/home crying or distraught?"

• Did the defendant know the victim? If so, did he use his knowledge or familiarity with the victim to gain access to her or •
116

• 


to isolate her? Did he use his knowledge to attempt to silence her?

• 
 •

Analyzing Credibility and Corroboration
Critical to the prosecution of sexual assault cases is performing an analysis of the victim's credibility as well as any corroboration that exists. Jurors' negative perceptions of a victim's credibility can be a significant barrier to successful prosecution. Unfortunately, those negative perceptions are usually based on rape myths. In sexual assault cases, credibility of the victim and provability of the case are inherently intertwined, in large part because sexual assault is a crime of secrecy. There are

Jurors may bereluctailtil"~ to con~lct on the victim's;

word alonebeca~se they

believe tltej need'...

,

"c· . ~

. ,"'

evidence to corroborate

f~ii;tillJ '8 testimo~y:·

;reg~4···

mtJ:nii.t
a;s~ult o~ck~. ·..

beliefis sos~lig\

number ofstate$' . .;
including MiJ1.t~na, .
J• Ury•In,>structi*o~,<nl:s'

.advisingjurorsthat

victim 'sword need not
be CQ~i~bi,~ated"

:However, ·aprosecutor ,,"
shouldJtot be

discoutaget/: when,

presentl!d:JjJith a:cllse .

l15her~ "c ~>~'

r-F .
;,,'>

almost never eyewitnesses to a sexual

assault. Moreover, sexual assault cases

rarely have physical evidence that conclusively proves that a sexual assault

occurred. Prosecutors are often left with the victim's word, which means that
117

a jury must find the victim credible before they will convict the defendant.

•

Jurors may be reluctant to convict on the victim's word alone because they

believe they need evidence to corroborate the victim's testimony regarding

the actual moment the sexual assault occurred. This belief is so strong that a

number of states, including Montana, have

jury instructions advising jurors that the victim's word need not be corroborated.
However, a prosecutor should not be

Tlt'e};vi~1!!r';'S';cret(i/jility
callb~b~oken down iJ'Ito fi~r~~o.ponents:;'(t), actutzl ~redibility; (2) thtJ:,:
's .,yictim ability to . .
pe~ceive at the time of'·

discouraged when presented with a case

the iI,cldent; (3) the

where the primary evidence is the victim's testimony. Although a prosecutor may be unable to present physical or other evidence

victim's ability: (q rememberwha~~)
happe~ed;;(4) tRee
~i;e~c~;~'

•

to corroborate the victim's testimony about the moment of the sexual assault, the

L '. '~i~ity. The first/our factors are valid,

prosecutor can give context to the victim's

version of events, thereby allowing the jury to evaluate her credibility.

The victim's credibility can be broken down into five components:

(I) actual credibility; (2) the victim's ability to perceive at the time of the

incident; (3) the victim's ability to remember what happened; (4) the

•118

•

existence of corroborative evidence; and (5) the victim's likeability. The

first four factors are valid charging considerations; the fifth is not. However,

victim likeability must be understood and recognized by law enforcement

and prosecutors if they are to obtain a conviction; therefore it is discussed

herein.

Actual Credibility

The first factor is actual credibility. A victim who was voluntarily

intoxicated at the time of a sexual assault may feel shame or self-blame for

allowing herself to be placed in a risky situation. Consequently, she may be

•

reluctant to reveal embarrassing details. As a result, she may appear to have

something to hide. She may also become hostile and defensive in order to

protect herself. Furthermore, a victim may withhold information she views

as insignificant without realizing that it is critical to be truthful about every

minor detail, regardless of how insignificant it may seem to her. In a case

where the victim deliberately withholds information, lies about small details,

or is inadvertently inaccurate, jurors will likely be reluctant to convict the

defendant because they will be worried that a victim who lies about small

details may be inclined to lie about the sexual assault itself, especially when

•

119

the law requires the jury to believe the prosecution's case beyond a

•

reasonable doubt.

Prosecutors should encourage the victim to be completely honest,

even about embarrassing or seemingly insignificant details. First, explain to

the victim the importance of telling the truth, no matter how painful or

embarrassing it might be. Explain to the victim the significance of omitting

information, even about seemingly insignificant details. Again, it may take

time to develop a rapport with a victim before she is comfortable sharing

personal details, but taking the time to do so can make an enormous

difference - to the case, and to the victim's experience with the criminal justice system.

•

Ability to Perceive

The second factor that relates to a victim's credibility is how well she

was able to perceive what was happening at the time of the incident. This

generally weighs more heavily in drug- and a1cohol- facilitated sexual

assault cases, as the ability to perceive diminishes as the level of intoxication

increases. A victim who could not clearly perceive what was happening at

the time of the crime will not be able to testify in detail about what happened

because she does not know. lfthe victim was passed out at the time of the
120

•

•

sexual assault, she had no ability to perceive because she was unconscious.

Unless the victim woke up during the sexual assault, the prosecution will

have to find an alternative way to prove what happened.

In an a1cohol- or drug-facilitated sexual assault, it rare to know the

victim's BAC at the time of the sexual assault. Even in cases where the BAC

is known, the prosecution must analyze the victim's ability to perceive by

determining how the victim was impacted by the consumption of alcohol. It

is important to explain the relevance of perception to victims, especially in

cases where the lack of perception is the primary barrier to prosecution.

•

In determining whether the victim's ability to perceive was impaired,

look at the following:

• What is the victim able to tell you she perceived at the time? • Can she relate details of the incident? • Can she tell you who else was there? What were they doing? • How intoxicated was the victim? • Were the victim's motor skills impaired? Was she able to walk?
Did she fall? • What was the victim's physical condition? Was she vomiting? • Was her speech slurred?

The defense may attempt to challenge the witness's testimony on the

grounds that the witness is not competent; however, it is unlikely that a court

•

will find a witness incompetent on this basis as long as the witness can
121

testify that she was able to perceive the incident. There is a distinction between attacks on competence and attacks on credibility. When a witness

•

is intoxicated at the time of an occurrence about which the witness has

testified, intoxication is a proper matter for the jury to consider as affecting

the witness's credibility.

Ability to Remember

A victim's memory may be impaired due to trauma, or by the

consumption of alcohol or drugs. In order to be able to testify about what

happened, the victim must, of course, be able to remember what happened.

If she does not remember, there must be some other way to prove what

•

happened or the case cannot go forward. Although the victim may not

remember every detail of the assault, she may have other information that is

crucial to the case. When interviewing the victim about her memory,

explain why you are asking. Encourage the victim to speak with an

advocate for additional support.

Existence of Corroborative Evidence

The fourth factor that relates to victim credibility is the prosecution's

ability to corroborate the victim's version of events. In cases where

•122

•

corroborative evidence exists, it may compensate for lack of perception or

memory. There is always something more to corroborate the victim if we

look hard enough.

• 


Corroboration is important because it gives the jury a context in which to evaluate the victim's testimony. The evidence might only corroborate a small piece of the victim's version of events, but each piece of corroboration builds upon the last and enhances a jury's ability to find the victim credible. In the majority of sexual assault cases, there are almost never any eyewitnesses to the sexual assault. In order to decide who is credible, jurors need a context in which to evaluate the victim's credibility. Prosecutors can give jurors a context by giving them the "circles of credibility." These include, among other things, medical evidence, eye and ear witnesses, and physical evidence. In some cases, a prosecutor might be able to corroborate a victim's testimony with expert testimony that explains behavior that is counterintuitive to juror expectations. In others, corroboration might consist of the defendant's statement or confession. The corroborative evidence need not conclusively prove that a sexual assault occurred; rather, it must give the jury a sufficient context in which to evaluate the victim's credibility.

•

123

Consequently, prosecutors should corroborate everything possible.

•

Corroboration may include the following:

• Physical evidence.

Instruct investigators to look for physical evidence that not only proves that the act occurred, but also evidence that over- comes the consent defense. In addition to traditional physical evidence, investigators should look for photos on digital cameras and cell phones, cell phone records, and any recordings that might exist. Investigators should also look for proof of where the victim was and what was done there. Such evidence can include blood, hair, urine, vomit, clothing, personal items, or even credit card receipts. Photographs of any scene related to the sexual assault should be taken in all cases.

• Outcry witnesses.

•

As in many sexual assault cases, in cases where the victim was

intoxicated, the victim may delay reporting, thereby causing

evidence collection problems. A delay in reporting may also

cause credibility issues. Therefore, it is crucial to explore why

the victim delayed reporting. What did she do after the

incident? Who saw her first after the incident? Who did she

first tell? Why did she report when she did and to whom did

she report? Law enforcement must interview each of those

people.

• Eyewitnesses to any part of the chain of events.

When looking for corroboration, investigators should ask the

victim whether anyone else was present during any part of the

incident. Are there any witnesses to the ingestion of the alcohol

or to the incident? What did they see or hear?

•124

• • 
 •

• Bartenders and waitresses.
These witnesses can be critical to a sexual assault prosecution, even if the case is proceeding under a theory other than mental incapacitation. Investigators should ask them how much the victim had to drink. Did she appear to be drunk or high? In addition, they should be asked whether the defendant frequents that bar and, if so, how he behaves when he is there, given the research that tells us that a high number of these offenders are serial offenders.
• Friends and family of the victim.
Who sees the victim on a regular basis? Who saw the victim around the time of the incident? What can the victim's friends tell you? Before doing so, however, it may be advisable to discuss this with the victim, as there may be people in her life she does not want to know about the assault.
• Other women the defendant may have dated.
Although they may not offer anything beneficial to the prosecutor, they may be victims who never reported.
• Friends of the defendant.
Even though interviewing these witnesses may seem illogical because one would presume they would be on the defendant's side, they can frequently corroborate innocuous details, or even disclose details they do not believe to be important, but which are crucial to the prosecution's case.
125

• Surveillance recordings.

•

Recordings from any place the victim and/or defendant may

have gone, can uncover important evidence.

• Medical evidence.
Are there any physical injuries? What, if anything, do they demonstrate? Remember that seemingly innocent injuries, such as scrapes to the victim's knees from falling down, might provide corroboration of force or incapacitation.

• Interview the defendant whenever possible.

Although the defendant may refuse to speak to an investigator, many times suspects in sexual assault cases will want to tell the police why they are not guilty. They will often want to talk about how the victim consented. In DFSA cases, the suspect will often admit that he had sex with the victim, but [will claim] • that it was a consensual act. The suspect may use the victim's history of substance abuse or promiscuous behavior to direct blame to her and hold her responsible for the sexual contact. In the case of a consent defense involving a DFSA, investigators should get the suspect to acknowledge the victim's extreme level of intoxication. For example, he may admit that she was throwing up and lying in her own vomit. He will often try to convince the investigator that the sex act was still consensual, but it becomes more difficult for the jury to believe. However, even if you know the defendant will refuse to make a statement, making an attempt to do so will foreclose defense arguments that the investigator didn't try to get the defendant's "side" of the story.

•126

• • 


• Pretext phone calls44•

Montana allows pretext phone calls in which the victim calls

the defendant and the conversation is recorded. A warrant is

required. In these calls, Defendants may acknowledge that

intercourse occurred and that the victim was intoxicated, which

can be useful as corroboration even if, by itself, the recording of

the pretext call does not conclusively prove that a sexual assault

occurred. Investigators planning to do a pretext phone call

should check the law and plan carefully. What is going to be

said during the call? What is the goal of the call? Is it to

corroborate intercourse, to

corroborate that the victim was

passed out, to show that the

victim said no, or some other

goal? Decide who is going to

make the call. Will it be the

victim or a mutual friend? Ifit

is going to be the victim, make

sure that the victim is

emotionally stable enough to

handle the call. If the victim is

working with a victim advocate

or

unable;ftJ prqtettlierselfiA

JuffJl:s·:will biFi1tnt:6 likely
tofiiJtiivicti; :c;r~dible
w#~~'tJtheF(";~ .•:: tsof

counselor, work with that individual as well. A pretext phone call should not be made at the cost of further emotionally injuring the

corrtJi1~rate{l~ F,
re/llstJn~:~iJ1ttoboration is
key,.;.,§'······ .

victim. Jurors will be more likely to find a

•

44 See International Association of Chiefs of Police Training Key #574 (theiacp.org).

127

victim credible when other aspects of her testimony are corroborated. For

•

this reason, corroboration is key, regardless of how small the point being

corroborated. Although the evidence may corroborate non-essential points

in the case, when it surrounds the victim's testimony, it gives the jury a

context in which to evaluate it.

Victim Likeability

Although victim likeability is not a valid charging consideration, nor

is it legally relevant for a jury to consider, jurors tend to believe people they

like. In addition, a jury may decide that a victim who engaged in risky

behavior is not as worthy of protection as a victim who did not engage in

•

risky behavior. The unfortunate reality of sexual assault cases is that the

flaws that make the victim a target for the offender also make the victim less

credible in a jury's eyes. For example, a victim who goes to a bar and drinks

to the point of vomiting and unconsciousness will be an easy target for a

predator. This victim may be viewed with skepticism or dislike by a jury

that assumes that she put herself in danger with her behavior. The jury may

be inclined to believe that she assumed the risk of sexual assault by

becoming intoxicated to the point of being unable to protect her. Although

assumption of the risk is not a defense to sexual assault, defense attorneys
128

•

•

may use it to achieve jury nullification. Also, the jury may believe that the

victim's risky behavior translated into a "yes" and was equivalent to

consent; therefore, they may find the defendant not guilty.

ApllroxiitltliJly h.
sexttlil~ssaults(tyt!i";i'Xj;i\l
ass;ocitited witli~;i1{.
al~oholu8e bi/tJi~

off~

;. J~;;;,~~·<»W~:· i~
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Furthermore, a victim who was voluntarily intoxicated at the time of the sexual assault may blame herself for putting herself in a risky situation. As a result, she may not want to

cooperate with the prosecution. She may appear hostile or defensive, which

may cause her to appear less sympathetic or less credible.

•

It is important for the prosecution to consider whether the victim is

likeable because there are a number of strategies that can limit the impact of

victim likeability on the jury's decision making. For example, prosecutors

should force the defense to follow the rules which were established to

protect victims and level the playing field by filing motions in limine.

All victims deserve protection; prosecutors and allied professionals

should implement strategies for protecting each and every one. In doing so,

however, prosecutors must be cognizant of any flaws that may exist either

with the victim or the case in order to ensure the greatest chance of success

•

at trial.

129

Alcohol- and Drug-Facilitated Sexual Assault

•

Widespread anecdotal evidence indicates that the majority of rape and

sexual assault cases being reported to law enforcement involve alcohol use

by the victim, the defendant, or both. Arriving at a definitive statistic on the prevalence of alcohol in rape and sexual

Jurors may question whiJt~ilr tl'leoffender;'
~C;t}l7JI~;:c~mfmitte4

assault cases is an arduous, if not

impossible, task. Only a fraction of sexual

/~" il~tli.

victimizations are reported to police, and

~i~tim .\'sk~plliismor·

those that are reported rarely include accurate details on the level of offender or

disl,i/,fe,tznd may :assul1l e i 
 tf,'il ', ,,put~hilrselfi' 

"ivith:. ill~' 
 i behaviQn 'R1S~~I!~!11'las

•

victim intoxication. Statistics on the prevalence of alcohol in sexual assault cases

d onstrated that

?

• ualj:t(!,ndto~l!.i~


" '.' ". 'nk~;(~~t 


/ '. mtll;e:.sexua!IJ!l?;l 


vary. "Research with convicted offenders, community samples of sexual assault offenders and victims, and college student

avdiiitb!e,.at,fA:moriP:Jt;;i:,:. 

likely t~engag~ in~eXual
~~il:tha.n.}p,pmen Wh,UI/' '~bstilil'l j;o"f4~foh~~/~;;;'{

offenders and victims consistently finds that approximately half of sexual

assaults are associated with alcohol use by the offender, victim, or both."

'Crowell and Burgess suggest that alcohol use as been reported in up to
130

•

• • 


seventy-five percent of acquaintance rapes.' Yet another estimate finds that 97,000 college students between the ages of eighteen and twenty-four are the victims of alcohol related sexual assaults each year. Clearly, a high percentage of sexual assaults are facilitated by alcohol.
Despite the prevalence of alcohol-facilitated sexual assault (AFSA), a number of barriers to successful prosecution exist. First, the use of alcohol in American society is quite common. Jurors may question whether the offender actually committed sexual assault or just had consensual, albeit drunken, sex with the victim. Second, jurors may view a voluntarily intoxicated victim with skepticism or dislike, and may assume that she put herself in danger with her behavior. Research has demonstrated that individuals tend to view women who drink or get drunk as more sexually available, and more likely to engage in sexual acts than women who abstain from alcohol. Third, AFSA cases are complicated by the physical manifestations of alcohol. "Alcohol decreases inhibitions, impairs perception, and may cause amnesia and/or loss of consciousness, especially ifused in conjunction with other drugs." Victims may not be able to clearly perceive and/or remember the details of the assault.

•

131

"If recreational drugs were tools, alcohol would be a sledgehammer. Few cognitive functions or

lfrecr~ationoJ ... drugs are tools,

•

al'cohol;;')v(}uld be behaviors escape the impact of alcohol, a fact that has q; sJediilhammer~~<.

long been recognized in literature." Alcohol is a

central nervous system (eNS) depressant." As the consumption of alcohol

increases, its effect increases as well. "A small amount of alcohol eases

tension, a large amount removes inhibitions, and a sti111arger amount

prevents the potential victim from resisting the aggressor."

Alcohol impairs both cognition (the process of knowing, thinking,

learning, and judging) and psychomotor skills (voluntary movement). Alcohol first affects the most recently developed parts of the brain, which

•

are responsible for judgment, inhibition, personality, intellectual, and

emotional states. As alcohol concentration increases, the impairment of

psychomotor functions such as muscular coordination, balance, eye

movement, etc. also increase. As alcohol concentration continues to

increase, involuntary movement, such as respiration, is affected, leading to

possible coma or death.

•132

• • • 


Alcohol progressively impairs all bodily functions and abilities

governed by the brain. Impairment increases as blood alcohol concentration

(BAC) increases. BAC can be measured with a sample of blood or breath.

The effects of alcohol are exacerbated when ingested in the presence of

other drugs having depressant effects such as sedatives, hypnotics,

anticonvulsants, some antidepressants,

b;: Iltfl,tortlfl1l4trments . ~: i:<:'/

' • ..o.,<',b'>;.,) ~

'7~J,~i: <~'
v<~~~v:

c~,~sed Jleohol~.,,~.j':i/i:\?

i~toxicated.. .: ~;'~ay

lie less likel:.llHiiYn: sober
women torealJi~tltat the,:
off~l1df!~ i;;~llg to ..~

/4!;~~i

Ph;~i;ilIlPjorce/al ;"iti,t<
htr~;"ely into...:\:.icat...'ifi , /.
rietims beea~~r' . .. ree
:lsrequired t,j;sub tltem.

tranquilizers, some analgesics, and opiates.
Due to the cognitive and motor impairments caused by alcohol, intoxicated women may be less likely than sober

women to realize that the offender is trying
to sexually assault them. Moreover, "offenders may not need to be as physically forceful with extremely intoxicated victims

because less force is required to subdue

them." "The desirable effect of alcohol to a sexual offender is its similarity

to therapeutic and abused drugs such as tranquilizers, narcotics, sedatives,

and hypnotics." However, unlike many other drugs used to facilitate sexual

assault, alcohol is legal and readily available.

133

Alcohol and drug consumption also diminish memory. "As the

•

amount of alcohol consumed increases, so does the magnitude of the

memory impairments." Large quantities of alcohol, particularly if consumed

rapidly, may result in the victim experiencing

either a fragmentary or an en bloc blackout. Fragmentary blackouts occur when people may recall portions of the episode after the incident when cues for events are provided. En bloc blackouts have "definitive starting

Wilen beg4nning to
~;'~lrzew4ether chafges . !;I'lo~!l"xJjeJj'ed, the· . pro~~cut()~shlill1$c ...c.. assume that iit,;victim'~!f~

, version ofevel'its"and any

" ' , ~,~"

. '

,

tl"ngtf4Y*l..u..1'ence I'.Sf

,Atrnau'.f',cy.i...t...~>...;od...>J.(~av r(''e{1!t,~f~l:S~nl~ra~/,te"i.;;·:}',:~~>:·~.,":~·;~•;:•;•.·,.'.~•~

a n d ·c~~t~boratillJ:twill

points, contain amnesia for all events within a discrete period, end with a sense of lost time,

•

and require a high blood alcohol concentration." "The en bloc blackout is not a "process of forgetting, but rather one of not remembering." "In contrast, fragmentary

tsoJlhe crime
;:t!Jt;:~lt:;j

the'prosecutoruJ:timately'

'i~ilint)isU~ceed at trial• .

,

,

'.

u '. r~\i*J~(:; ,

,'h .::fJ,f:'d '

blackouts involve a more transient, perhaps forgetful memory loss for which

aspects of experience are recalled via provision of pertinent cues. Thus,

memory traces form but require facilitation to be accessed." For offenders,

the toxicological effects of alcohol are a useful weapon. However, for

prosecutors, the toxicological effects of alcohol can present an extreme
134

•

•

challenge. One reason the cases are so difficult is that most cases are

reported at a time when the victim is no longer intoxicated, making it

difficult to assess the victim's BAC at the time of the incident.

Too often, AFSA cases are lost due to improper charging decisions or investigations that are inadequate to support the charging decision that was made.

Charging AFSA Cases

• 


The most important step in successfully prosecuting AFSA where the victim is voluntarily intoxicated is making the correct charging decision. A prosecution cannot succeed if the charges have not been properly filed. When beginning to analyze whether charges should be filed, the prosecutor should assume that the victim's version of events and any supporting evidence is true and accurate. Analysis of credibility and corroboration will occur next, but prosecutors should start with the best possible case scenario. If the elements of the crime cannot be proven when this assumption is made, the prosecutor ultimately will not succeed at trial.

To begin, the prosecutor should determine which theory of sexual

assault to allege. Three potential charging theories exist for proving sexual

•

135

assault of a voluntarily intoxicated victim. First, sexual assault can be proven in the traditional way by demonstrating that the defendant had intercourse

•

with a victim without consent by using force or the threat of force. In these

cases, the victim is intoxicated but proof of the level of intoxication is not an

element of the crime. Intoxication is only relevant to the victim's credibility

and vulnerability. Second, sexual assault can be proven by showing that the

victim was unconscious at the time of the sexual assault and therefore could

not consent. Third, sexual assault can occur when the victim was "mentally

incapacitated," or too intoxicated to consent. In those cases, the victim's

level of intoxication must be to the level of the victim being "temporarily unable of appreciating or controlling the person's own conduct as a result of

•

the influence of an intoxicating substance.,,45

When possible, the prosecution should proceed under a theory of force as this is more consistent with the stereotype of sexual assault believed by the public, and thus, by potential jurors. Moreover, the victim's state of intoxication, which can be difficult to prove, need not be proven under this theory.

45 Mont. Code Ann. 45-5-201(41).

•136

•

Even where the measured values are reliable and accurate, substantial

variability in tolerances for alcohol, absorption rates, and clearance rates,

both among individuals and within the same individual from one situation to

another, complicates efforts to deduce the true extent of intoxication at the

time of an arrest or accident. "Expert testimony would ordinarily be needed

to establish that the party with the measured or inferred BAC was

intoxicated during the period in question."

• 


If no physical force was used but the victim was unconscious or asleep, whether intoxicated or not, the prosecution should proceed under the theory that the victim was "physically helpless," or that the victim was "unconscious or otherwise physically unable to communicate unwillingness to act.,,46When dealing with a victim who was unconscious, the primary challenge will be showing that the victim actually was unconscious for all or part of the sexual assault. Meeting the element of penetration also will usually be a challenge with an unconscious victim. If the first two alternatives are not options, the prosecution can proceed under the theory that the victim was too intoxicated to consent.

•

46 Mont. Code Ann. 45-2-101(58).

137

The State must also prove that the defendant knew the victim was

•

incapacitated or physically helpless. Once the charging theory has been

determined, a chart analyzing what evidence exists regarding each element

should be prepared. Can the victim testify to all elements of the crime? It is

not uncommon for victims who were intoxicated at the time of the crime to

forget pieces of the incident. This mayor

may not be fatal to a prosecution, depending on whether other evidence exists. For this reason, the chart is helpful in visualizing

Instead ojassuming that
it w~spl'obably s~~'kal
as~~iiM,beca,jje"the , c c', ~.,~"k
"womiiHJ&was· dru
c(}IJsenZp~ople t~~dto ...

assum.e that the victim·.

which memory lapses are fatal and which are not.

C01r;t~tedb<lcauseshe'; f'":!
~~int~~lfat~~'q~d
$lmply t~lirettedf!Je.

•

sexual~encounte;l;iater.. . .

~:~t!;t=,,;h:~t The primary challenge in prosecuting

sexual assault cases where the victim is

voluntarily intoxicated is that society tends

to have difficulty distinguishing between drunken sex and sexual assault.

Instead of assuming that it was probably sexual assault because the woman

was too drunk to consent, people tend to assume that the woman consented

because she was intoxicated and simply regretted the sexual encounter later.

In these cases, the defense tends to argue it was regret or "buyer's remorse."
•138

•

Prosecutors must overcome the tendency to focus on and blame the

victim and re-direct the focus back to the offender's actions, and thus on the

elements of the crime. It is the prosecutor's job to show jurors why the case

before them is a case of sexual assault and can be distinguished from

drunken or "regret" sex.

• 
 •

Generally, there is not a bright-line test for showing that the victim was too intoxicated to consent, thereby distinguishing sexual assault from drunken sex. In drunk driving cases, the prosecution can show that the driver had a certain BAC; therefore, the driver is guilty. Sexual assault cases involving alcohol are not as clear cut. There is not a universal BAC at which the law or the experts agree that people are no longer capable of consenting to intercourse. Instead, the equation involves an analysis of the totality of the circumstances and numerous factors. The factors discussed herein are divided into two parts: (1) general factors; and (2) predatory behavior on the part of the defendant. By analyzing these factors and considering the totality of the circumstances, the prosecutor can determine whether the case is sexual assault or not. Analyzing Consent: General Factors
How drunk was the victim? The more intoxicated the victim was, the
139

less likely it is that she was capable of consenting. The following factors can aid in this determination:

•

• Was she conscious or unconscious? Did she regain conscious­

ness during the sexual assault? Did she pass out during the

sexual assault? If so, what did the accused do?

• Did she black out?

• Did she vomit?

• Could she speak? Was she slurring? Was she able to

communicate coherently?

• Was she able to walk or did someone (in particular, the

defendant) have to carry her? Did she have to lean on

someone?

• Was she able to dress/undress herself?

• Were her clothes disheveled?

• Was she responsive or in a nonresponsive state?

• Was she able to perform physical tasks or was her coordination

•

impacted? For example, did she light the wrong end of a

cigarette or spill things?

• Did she urinate or defecate on herself?

• What was her level of mental alertness?

• Did she do anything else to indicate whether she was capable of

cognitive functioning? For example, did she use her credit

card? Did she use her cell phone or e-mail?

Analyzing Consent: Defendant's Predatory Behavior Prosecutors will face perhaps their greatest challenge in AFSA cases

where the defendant was drunk as well. Alcohol consumption by offenders

and victims tends to co-occur. The reality is that approximately fifty percent

of all sexual assaults are committed by a man who has been drinking.

140

•

• • 


"Although alcohol consumption and sexual assault frequently co-occur, this phenomenon does not prove that alcohol use causes sexual assault." Nevertheless, many defendants will attempt to use alcohol as an excuse for sexual assault. The public has a tendency to view sexual assault of a voluntarily intoxicated victim as more of an opportunistic crime than a predatory crime. When a jury hears that the defendant was drinking, it is easy for jurors to assume that it was drunken sex as opposed to sexual assault unless prosecutors disenchant them of the idea. Jurors may think: "There but for the grace of God, go I (or my son or my friend)." It is the prosecutor's job to keep the focus on the defendant and his behavior.
Most states, including Montana, do not recognize voluntary intoxication as a defense. Prosecutors can overcome the hurdle of the intoxication defense by looking for the defendant's predatory behavior. The prosecutor must look carefully at all the facts of the case to determine whether the defendant is a predator. Often, a successful predator will mask his actions in such a way that they appear opportunistic as opposed to predatory.

•

141

Trying Alcohol- and Drug-Facilitated Sexual Assault Cases
AFSA cases are difficult to win at trial. Jurors tend to view AFSA cases

•

as crimes of opportunity rather than deliberate, intentional crimes; therefore,

it is not uncommon for them to be forgiving of defendants accused of AFSA.

The prosecutor can overcome this tendency by using an offender-focused

approach to the trial. This focus explains to the jury why an offender would

prey upon a person like the victim. The characteristics that cause the victim

to seem flawed to the jury--and thus

Tt,e ch~~~f~~~isti~i~l~at,
causettim tQ;seem:~
'.if:::~~;!!t~J

unlikeable--are the same characteristics that made her an appealing victim to the

, ~,!:,";/, ,,;~~tf!i! tIuJ~ offender. The offender selected her because •

ntadqilt'etttr,;a . . .ling . j:~

~icti~tb'th;~

r.. ...:. of those very characteristics.

Communicating this to the jury refocuses

the jury's attention on the defendant's predatory behavior. Utilizing an

offender-focused investigation and prosecution can show jurors why the

defendant before them is a predator, not a nice guy caught in a bad

predicament through no fault of his own. Although prosecutors generally

focus on the offender when trying any other criminal case, they tend to focus

on the victim and any of the victim's flaws or vulnerabilities in sexual
•142

•

assault cases. Sexual assault cases must be tried in the same way that other

criminal cases are tried--with a focus on the offender.

Instead of viewing a victim's vulnerabilities as weaknesses, explain

why a predator would target a person with those vulnerabilities. The reality

of sexual assault cases is that the better a target a victim is for an offender,

the worse the victim generally will be viewed as a witness for the

prosecution. The flaws that make the victim a target for the offender also

often make the victim less credible in a jury's eyes. For example, a victim

who goes to a bar and drinks to the point of vomiting and unconsciousness

•

will be an easy target for a predator. A victim who becomes voluntarily intoxicated does not

do so with the expectation that she will be sexually assaulted. Voluntary intoxication does not equal consent to sexual acts. Remind the jury that defendants generally select their victims with the intention of not getting caught. Show the jury that the crime was intentional and deliberate, even if it was opportunistic.

vulnetaoilities~; ;1ize
teajit;z"/JJs'it~l,llas~au
:::r~ th-th~i

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victimgefferaIIYlVilloe···

vieWed as a witltessfor.

: ,,:,

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th.

Using an offender-focused approach to the investigation and prosecution

•

143

of sex crimes can overcome a number of common challenges in sexual assault cases, for example, a prosecutor may be able to explain how a

•

defendant was able to sexually a victim without using a traditional weapon.

Jurors generally expect that an offender will use a weapon, or at least use

some form of excessive force. However, in 2005, only seven percent of

sexual assaults involved the use of a firearm and three percent involved a

knife." Non-stranger offenders generally use only the force necessary to

overcome the victim's resistance. In many

cases, this may equate to nothing more than

,~};\~~
em~tionaI/(Jrc~-thluse

lying on top of the victim and pinning her arms down. Non-stranger offenders are also

•

o/deceptlon,'

~anipulation, planltlng, 
 far more likely to gain control of their

R~~,,.editatit;Jn'fJnd ' . 
 victims through psychological or emotional

force-the use of deception, manipulation, planning, premeditation, and

betraying victims' trust. One of the most common tools used by non-stranger

offenders is alcohol. Prosecutors should look for evidence of all of these

tools.

• Did the defendant lie to the victim by promising her a safe ride

home and then driving her to a field where he sexually

assaulted her?

•144

•

• Did he trick her by asking to come inside her home to use the bathroom?

• Did he buy her drinks or convince her to keep drinking when she wanted to stop?

The prosecutor can focus on other themes as well when prosecuting

an offender-focused AFSA case. Sample themes include: "Who needs force

when you have alcohol?" or "The defendant committed the perfect crime."

The prosecutor can also argue, "A predator picks his prey;" however, use

caution when labeling an offender of AFSA a "predator" at trial. Although a

person who sexually assaults an incapacitated victim is a predator, the jury

•

may view the prosecution as overzealous ifjurors are not convinced that the defendant is a predator. Instead, show that the defendant acted intentionally,

deliberately, thoughtfully, and freely, and that he was in charge.

Victims with Mental Illness In working with survivors of sexual assault, it is important to

understand how mental health and mental illness may interact with sexual

assault to affect the person's thinking, emotions and behavior. One must

understand the nuances of mental health issues or normal coping responses

and mental illness. This may be difficult as mental health and mental illness

•

exist on a continuum. Mental health can be defined as a psychological state
145

of someone who is functioning at a satisfactory level of emotional and behavioral adjustment. This definition does not exclude one from

•

experiencing a full range of emotions--anger, sadness, happiness, frustration­

-or from exhibiting a wide range of behaviors. For example, a person who

comes home and picks a fight with their spouse every night during a difficult

week at work may be experiencing a mental health issue--stress and anger.

However, she would not necessarily be diagnosed with a mental illness.

A mental illness is the psychological state of someone who has

emotional or behavioral problems serious enough to require psychiatric

intervention. If the same person realizes over a few months that she is chronically angry and has begun to fight with multiple people in her life, is

•

experiencing insomnia, tearfulness, and feels hopeless about future

possibilities, she may be diagnosed with depression. Her coping skills have

been overwhelmed to a point that her emotional experience and her

behaviors are interfering with her ability to function well.

When one experiences a traumatic event like sexual assault, there are

three possible scenarios for the interaction of that event with mental illness.

All three of them are important to understand.

Scenario 1

•146

• • 


Any person who experiences a sexual assault and has no pre-existing mental illness will engage in coping behaviors--which is the normal response to trauma. Some of those behaviors may appear to be "mental illness" but may simply be a normal response to trauma. For example, a victim may cry frequently, experience extreme anxiety at going out with friends, and/or lose her appetite. These may be described as mental health issues, but they are not an illness. However, the victim may benefit from and be receiving mental health support and services around these issues. As is described previously, there is a wide variety of cognitive, psychological, physical and emotional coping behaviors a victim may use in an attempt to regain her equilibrium. If these behaviors continue unabated, or are so severe that she is unable to function, the victim may develop mental illness as is depicted in Scenario 2.

Scenario 2

Another scenario that may happen to the person who has no pre­

existing mental illness is the sexual assault overwhelms this person's ability

to cope and their efforts to regain equilibrium are unsuccessful. This

situation may lead a person to develop a mental illness in response to the

•

event. Research suggests that victims of sexual assault are more likely than
147

the non-victimized population to develop depression, substance abuse and eating disorders. It is estimated that 17-65% may develop post-traumatic

•

stress disorder.

Scenario 3

In the third scenario, a person who has a mental illness experiences a

sexual assault. A traumatic experience will increase the likelihood of re­

occurrence or the worsening of symptoms of a mental illness. It is also

important to note that people who suffer from a mental illness are more

likely to be targeted by an offender of sexual

assault. This may be due to several factors. A person with mental illness may be seen as a less

C'? ;;~~~eal~!Q,ti(Jn is,

•

n(Jt~he sam/e'thing

capable or credible witness. For example, a

a* ~'jalse;,repor~'.

person who experiences delusions or psychotic episodes may have a difficult

time giving a clear account of the assault, and those who are hearing that

account may have difficulty distinguishing reality from the person's illness.

People with mental illness may be more accessible as well, especially when

in institutional settings or needing care.

Recanting Victims

It is critically important to know that a recantation is not the same thing
148

•

•

as a false report. A false report is when the investigation factually proves

the sexual assault never occurred. Recantation is when there is a retraction or

withdrawal of a reported sexual assault. A recent study found that the actual

percentage of false reports in sexual assault is between 2-8%. This is no

different than false reports for any other crime.

There are many reasons why a victim would recant a report of sexual assault even if the sexual assault really did occur. Victims of sexual assault may recant because:

• 
 •

• They did not realize the toll that the criminal investigation (lengthy court delays, etc.) would take on them mentally, emotionally, physically, and financially. They just want it to end and try to go on with their life and put it behind them.
• Pressure from the offender his or offender's family or friends to recant because the victim is "ruining" his life; or, pressure from the victim's family or friends, particularly in a higher-profile sexual assault case.
• Pressure that they are the whole case for the prosecution and therefore they are responsible for sending the offender to prison. Many times victims do not want the offender to go to prison--they just want the abuse to stop. A victim may also worry about the offender, worry about whether the offender is okay while waiting for the outcome of the trial, and worry if the offender will be okay in prison.
149

• Victims are dealing with the trauma of the sexual assault and

•

are unable to cope with even the basic life tasks, such as

working or school, let alone testifying in a courtroom.

• Victims fear that they will be blamed or attacked within the system for the sexual assault and therefore drop out to avoid further attacks and doubt from others in their life (family, criminal justice professionals, friends, etc.).

Because recantation is used by victims to halt criminal justice

involvement, it should never be viewed, in and of itself, as an indication of a

false report." A victim-centered response necessitates that prosecutors and

police investigate whether a recantation is a result of a system failure,

witness tampering or other factors that are outside the control of

•

investigators or responders. While recantations present challenges for the

criminal justice system, they should not deter prosecutors from considering

the viability of the case. In the event that a recantation is the result of duress

the victim experienced, prosecutors may be able to successfully educate the

judge and jury on the causes of the recantation. Prosecutors should carefully

consider the victim's needs and wishes in making a decision when a

recantation arises.

Issues Specific to Adolescent Victims

•150

•

Adolescent victims face their own unique challenges, and are targeted

by the same rape myths and stereotypes adult victims face, and then some.

This section will discuss some of the negative stereotypes the defense may

use and strategies prosecutors can use to educate juries about how offenders

prey on adolescents.

Negative Stereotypes ofAdolescents

• 
 •

Adolescents face an uphill battle when they are reporting themselves as victims of sexual abuse. There are many negative stereotypes within our society concerning adolescents. These include that adolescents are:
• Promiscuous • Liars • Lazy • Untrustworthy • Rebellious • Drug and alcohol-using • Delinquents • Difficult • Disrespectful • Gang members • Have bad attitudes
151

As with any stereotype, sometimes one or more of these

•

generalizations may be true for a particular individual. However, most

adolescents are not most of these things, and if one or more generalization

does apply, it should not dictate an out-and-out disregard for an adolescent

report of abuse. In fact, sometimes adolescents engage in these behaviors

because they have been physically or sexually abused or neglected. Many

of these qualities are responses to trauma, or armor which the adolescent

wears to cover up his/her vulnerability and seem tougher than he/she really

IS.

Knowing that you and/or the investigating officers might approach an adolescent case viewing it through the lens of one or more of these

•

stereotypes is the first step in getting past the stereotype and assessing the

case with a more objective lens. Knowing that your jury may also view the

case through a stereotype--or that the defense might exploit these stereotypes

to discredit an adolescent victim--requires planning during the pre-charging

stage. Prosecutors can deconstruct the stereotype by taking the time to learn

about the individual adolescent:

• What is his/her life like, and how did he/she get to this place in

his/her life?

•152

• • 


• How/why did this victim become involved with the offender?
• What did the offender exploit in hislher relationship with the adolescent?
• Why did the adolescent make the decisions he/she did concerning cooperating with abuse?
• When did the adolescent disclose the assault and to whom? • How does the adolescent view his/her involvement with the
offender?
• Does the "stereotype" hold up wider this scrutiny or can it be humanized and understood?
Once you start to deconstruct the stereotype, you must continue to develop ways to explain the adolescent's actions, not only in your presentation of the child, but also in the supporting evidence you provide. Is this the kind of case that could benefit from an expert to explain about a particular adolescent lifestyle or about adolescent developmental issues?

In addition, prosecutors should explore strategies to: (a) expose the

stereotypes about adolescents; (b) move jurors past making a decision based

upon stereotypes (starting with voir dire questions); and (c) identify ways to

develop testimony designed to raise this sort of consciousness. For instance,

•

emphasizing that adolescents are protected by the law, and eliciting
153

responses as to why adolescents are viewed by the legislature as children

•

and not "little adults" may be one area of topic development during voir

dire. Asking an expert or a police officer to expound on how adults are able to prey on adolescents may develop this theme further

As;iJzf~e~~lt;jf thfJi..lt;verat:
wlii~h; th~ii:)jrai~iJr~';' '
op~r;tihg,;their d~~isi~n'"
m~king isfreque~tly

during the presentation of evidence. This

irrational, and

emotionally (iriven.

fi:~~~TiiuJ . strategic planning should begin at the pre-

charging level. Adolescents Make Bad DecisionslLie to

ilerlii~;'m~",,,
wh'tna:;keilwhytheYl>~ j

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Cover Themselvesffell Partial Truths

Adolescents do not have fully
';t,>
ar

•

developed frontal lobes, which is where

ikplilnatjh

there r~~lly isn , '

rational thinking takes place. In addition, adolescents are, developmentally speaking,

e:rl!tl(!nal6!fP~alnation. :~~;Jti~~~

operating very much within the "emotional" world. As a result of the level at which their

,c,'. '

c:;<'f.~\:.><~

the ti'r'e they areina/ling

it, tlliill.~t!eciSJqlts usually

t!onrl'1J~lJ!j,(te!";'p.t{J;·;the.

brains are operating, their decision-making

same l~~iofratl~~ql.
thought that we e..tP~ct "

is frequently irrational, and emotionally

frotJ! iin;aill!lt:decision.

driven. Consequently, adolescents make bad decisions. Furthermore, when

asked why they made a particular bad decision, adolescents often cannot
154

•

•

really provide a rational explanation--because there really isn't a rational

explanation. While their decision may make sense to them at the time they

are making it, these decisions usually don't measure up to the same level of

rational thought that we expect from an adult decision.

Covering Behavior

• 
 •

Adolescents, like adult victims, will at times lie or mislead about how they got into that situation, what they did prior to or during the situation, or leave out important facts. Adolescents do this because they believe that revealing accurate information will get them into trouble and/or they'll be blamed or disbelieved.
For example, an adolescent may have slept late and missed the school bus, and then accepted a ride from a stranger, who then took the adolescent somewhere other than school and assaulted the adolescent. The adolescent, when disclosing the abuse, made up a story about being forced into the car in some fashion, thinking that he'd get into trouble for admitting that she missed the bus and/or that she accepted a ride from a stranger. The part about the abuse is true and accurate, but how and why she ended up in the car with the stranger in the first place is a lie.
155

Other typical topics about which adolescents frequently lie to cover for a bad decision include:

•

• Skipping school • Drinking alcohol • Using drugs • Engaging in cooperative sexual activity • Lying to the offender about their age • Prostituting • Runaway status

Withholding Information

In addition to outright lying, adolescents also may leave out this

•

negative information. For instance, in the example given above, add that en

route, the adolescent smoked marijuana with the stranger. The detail about

the marijuana may be completely absent from the adolescent's story.

Investigators often find these sorts of facts out in conversation with the

offender, who has every motive to want to make the child look bad and

unbelievable, and therefore provides lots of negative information about the

child. Or, the adolescent may disclose the negative fact to a friend, or may

be "caught" being truant, drunk or high, etc.

Interviewing Adolescents

•156

•

These behaviors create credibility issues which have to be assessed at

the pre-charging stage. There are several strategies that prosecutors can use

to encourage adolescents to provide a full and accurate accounting of events:

• 


• Get the most factually complete, accurate and truthful information from the adolescent victim. Utilizing interview techniques that address the potential concerns of the adolescent, including that they may be "in trouble" should be done at the outset.
• Reassure the adolescent that her drinking is not the focus of your inquiry, and that a sexual assault is a serious matter that far outweighs the gravity of the adolescent's drinking.
• Emphasize that crime deals in reality and that you can handle whatever the truth is--in fact, that you need to know the whole truth because that is the only way that you can properly address it in your case.
• Let the adolescent know that lots of kids initially choose to withhold important information or even make up something they think might make them look better. Stress that the best time to set the record straight is at the beginning of the case.

The types of "lies" or omissions outlined above are not

insurmountable credibility hurdles to a criminal prosecution. They will

require that the adolescent be truthful under oath, even if that means

admitting that part of what he/she said was initially a lie. This would be an

•

157

area to flesh out during a direct exam of the victim at trial, and to prepare the victim for thoroughly. It may also be appropriate to consider the testimony

•

of an expert who is well-versed in adolescent issues to remind jurors that this

kind of poor decision-making is typical of adolescents. You can also remind

jurors that this is one of the reasons why we have laws protecting

adolescents from their own bad decisions in the first place. These are also

issues which should be addressed in voir dire with a jury.

Adolescent Brain Development Issues

As with child victims, a basic understanding of adolescent brain

development is useful to inform prosecutor's interactions with youth during

•

the investigation and prosecution of a sexual assault. Knowledge of brain

development can also be used to educate a jury on why a youth behaved the

way that he/she did before, during and following the assault.

While many adolescents have a mature physical appearance, no one should be deceived into thinking that an adolescent is equal to an adult in maturity or cognitive development.

Research shows that the capacity for "formal operation thought"
begins in adolescence, according to developmental psychologist Jean Piaget.
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• • 


This kind of thought characterizes adult cognition, and involves the ability to reason hypothetically, to take into account a wide range of alternatives, and to reason "contrary to fact." Studies have shown that this capability exists in only 30-40% of adolescents and adults in America." A formal thinker can understand similes, allegories and metaphors. They can also think about their own thinking and about other people's thinking. They can consider someone else's motives and perspectives. They can develop theories and concepts apart from concrete reality. In contrast to these abilities, most adolescents think concretely, which is more black and white, immediate and has a more restricted perspective.
Egocentrism

In their interaction with the world, adolescents display this

egocentrism. In their world, there is an "imaginary audience," (a term used

by psychologist David Elkind) who, from the standpoint of the adolescent,

knows the adolescents private thoughts and feelings. They feel very much

like they are always being watched and judged by this "audience." Elkind

also describes that adolescents have a "personal fable" which results in an

unrealistic belief in their own invulnerability and uniqueness. In other

•

words, they believe and act like they are a lot older and more mature then
159

they really are. As a result, an adolescent can put himself or herself into a situation that is way over his/her head, but which he/she thinks he/she can

•

handle just fine. Youth who have been sexually victimized experience the

ultimate assault to their egocentric belief that they are invulnerable.

Self-Blame

Adolescents may have some cognitive ability to understand how the

world works, but they are psychologically predominantly egocentric. Since

they are so self-focused, they have a more difficult time seeing the

perspectives of others, and they also tend to blame themselves for events,

even when that attribution of blame is excessive. Adolescents may blame

•

themselves for things beyond their control. This kind of self-blame

differentiates adolescent egocentrism from that of the younger child. While

the younger child thinks "everything happened because of me," the

adolescent thinks "I should have been able to stop it." The implications for

youth who have been sexually victimized are clear.

An adolescent's emotional development is focused on forming his/her

identity and fitting in with peers. They are far less concerned with how

adults view them. Adolescents have been described as being more confident

than competent. Most adults are familiar with adolescent emotional

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•

volatility. Some of the ramifications of adolescent brain development

include that the adolescent may include:

• 


• Fearing being disbelieved • Being embarrassed by the topic or hislher actions • Feeling responsible • Wanting to protect others, including the abuser • Expressing the belief that he/she is the only one who can and
should address the situation • Being uncertain of how their actions in the situation will be
judged by you • Fearing retaliation or social consequences
In addition, adolescents may also experience language or communication issues that result in the adolescent having trouble putting events in order, not completely understanding questions, answering only parts of questions, and not listening well.

For the adolescent, control is an important issue. Allow the

adolescent to feel in control of as much of an interview as possible. Also,

give the adolescent some control over decisions. Examples include asking

the adolescent for input and feedback, and planning with the adolescent for

•

future safety at pre-charging, as well as throughout the course of any case.
161

In cases where you have an adolescent who looks at lot older than

•

he/she is cognitively or emotionally, it may be helpful to consider how you

can inform the jury about this. Is there a teacher or social worker who can

provide information that will be helpful to the jury in their credibility

determinations, especially if you think the jury may initially have unrealistic

or uninformed opinions about your victim?

Adolescent Runaways

An adolescent runaway lives an extremely high-risk lifestyle (a risk they do

not appreciate), in which his/her vulnerability is almost always exploited and

manipulated. When "on the run," the adolescent necessarily has to find food •

and shelter, and is generally at the mercy of

the adult who steps in to provide those basic

needs. Perhaps the adolescent is required to have sex with the adult. Perhaps the adolescent is required to prostitute himself or herself for the adult, or to pose for pornographic photos, engage in "exotic" dancing, etc. The adolescent may consider

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this to be voluntary activity on their part. In addition to these behaviors, the
162

•

•

offender will often reward the adolescent with alcohol or require the

adolescent to engage in drug use, making the adolescent even more

vulnerable and enhancing the adolescent's feelings of self-blame.

• 


As a general rule, runaway adolescents do not come from healthy, stable homes. Many have been abused within the family and the family is unstable and dysfunctional. Life on the streets may seem safer and more appealing to the adolescent for this reason. It is easy to manipulate the vulnerable adolescent by telling her what she wants to hear, treating her like the "adult" she thinks she is, and yet providing basic needs. Often the sexual abuse is pitched as a quid pro quo for this protection and case. He's "helping her get on her feet." As time with an adult pimp continues, however, the "feel-good" techniques are replaced with more overt violence. They are watched. Runaways are also beaten and threatened. They are isolated and imprisoned, literally and figuratively.

It is very hard for this adolescent to disclose her runaway status. She

may not view himself as a victim. She might conclude that the

consequences of reporting are worse than the consequences of not reporting.

She may have little opportunity to report, and if she does, is faced with

•

disbelief and blame. She might have built up a tough shell, hard to puncture.
163

Often, adolescent runaways are arrested for prostitution or picked up as missing and treated as suspects instead of as victims.

•

Strategies for Working with Runaways

• Before an interview, get as much history about the adolescent as possible. CPS or prior delinquency files should be reviewed.

• Do not lecture or interrogate the adolescent. These are surefire ways for shutting the child down and creating impenetrable barriers. Instead, use a more open-minded, empathetic listening approach, not only in getting a disclosure, but in cementing a relationship with the child that can carry through the prosecution.

• Runaway adolescents present with a number of personal

physical, medical and psychological needs, all of which should

•

be attended to.

• Find out what the adolescent is concerned about and allay any fears you can. Stick to the truth.

• Recognize that the adolescent has been groomed not to disclose. Understand how the child was particularly vulnerable and how the offender used that to groom the adolescent.

• Prepare for the reality that the adolescent will likely come armed with rationalizations for what happened and probably have a history involving law enforcement that has probably negatively colored his/her views of authority figures. This will color his/her interest in cooperation.
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• • 


• Talk about protecting others, about what the offender may have wanted in return for being "nice." Stress a focus on the "facts" before turning to any judgments about "what should happen."
• Although tempting, do not lower your vocabulary to match the adolescent. An equally fatal mistake is to engage in questioning that carries with it negative assumptions. Take care with your language to avoid judgments and don't assume that the adolescent felt one way or another.
• Adolescent runaway cases can almost always be corroborated. Make sure your investigator has obtained search warrants for the various places involved and a list of names of people who witnessed anything. This could include other adolescent victims, adult prostitutes, or adult "customers." Adolescents are sometimes advertised on Craigslist or other websites or newspapers. Motels may have security cameras or records that could yield corroborative information. The large market for child porn makes it tempting for predatory adults to film or photograph these adolescents, as well.

In deciding on charges, factor in what you can prove with witness statements and outside evidence. Realistically, you may not have the victim available for trial, as there is always the possibility that the child will run again. To this end, there may be a need to call for CPS services, even including placement in a facility where it would be difficult to run away. This is, of course, entirely dependent on the needs of the adolescent.

•

165

Keeping track of this victim, and having periodic meetings, just to keep in

•

touch, can be helpful.

Adolescents Have Sex

It's a bad idea for adolescents to have sex with each other, but they

do. They don't think it's a bad idea. Sometimes a prosecutor will charge

these adolescent-on-adolescent cases, usually when there is some

aggravating factor, like a pregnancy, or a significant age difference.

Adolescent-on-adolescent cases may also require, if they are going to be

charged, mutual charges. Often these cases resolve with misdemeanors

which can be expunged, via deferred prosecution agreements or diversion

•

agreements. Deciding on what facts should come into play about whether to

charge, what to charge, and how to resolve these cases is good to do as a

matter of policy, with an eye toward the goal of reducing irresponsible

adolescent sex. Important points to remember include:

• It is always a crime when an adult has sex with an adolescent. Adults and adolescents are not on the same playing field, and virtually anyone would agree that the 30 year old man cannot reasonably be said to be a legitimate boyfriend of the 14 year old girl.

• When dealing with a case where an adolescent has had sexual

intercourse with others, cooperatively, prior to the situation you 

166 


•

• • •

are reviewing, it is important to remember that such prior actions by the adolescent do not explain, excuse or justify the decisions of the adult in having intercourse with that adolescent. They are also inadmissible under the Rape Shield statute. Her reputation of promiscuity is irrelevant to a determination of any of the issues in your case.
• Discussion about therapy to help the adolescent make better decisions about sexual behavior is also in order. Having the adolescent's parent on board with this is essential. It may be preferable to delegate that conversation to the advocate.
• With adolescents who have engaged in "promiscuous" behavior, it is important to make advocacy and mental health referrals, if they haven't already been made. Sexual acting out is often a sign of other serious issues in that adolescent's life.
Consistent with a victim-centered approach,
prosecutors must educate judges and juries about
the realities about adolescent sexuality in our
society and help juries to understand that the past
sexual behavior of the adolescent victim does not justify the assault.
Adolescents Easily "Get In Over Their Heads"
Adolescents often find themselves in situations that move beyond
their ability to effectively handle. This is because adolescents feel invincible,
are more confident than competent, disregard or don't understand potential
167

• rg to the adolescent, it is alwllJ!s '

risks, and are trying to develop their independence. These factors all operate

•

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decision-making. Their judgments are more

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Like adult victims, once an adolescent is in a situation that is "over

her head," an adolescent may experience panic and fear, confusion about what to do, and be unable to think of a way to extricate her other than

•

"cooperating" with the demands of the offender. The adolescent may also be

feelings the neurobiological effects of trauma or tonic immobility.

This "cooperation" can look like consent and the adolescent may even

describe that she "willingly" engaged in sex. Adolescents are not good at

parsing out true "consent" from buckling under pressure or subtle coercion

that resulted in her cooperation. Given the adolescent tendency to accept

blame and responsibility, the perspective that she "consented" is

understandable, although flawed.

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• • •

In talking to an adolescent, it is always important to try to get at the

issue of "consent" from several angles. First, stop using the word "consent."

Instead, talk about whether she "wanted" to

have sex with the offender. Ask about what led

up to the sex. Ask who brought up the idea of

having sex. Discuss how she was feeling and

what she was thinking leading up to the sex.

Many times the adolescent will say that

offender suggested sex, or tried to take her

clothes off, and she didn't want him to. Find

out what she said to let him know that--or

whether she didn't know how to tell him to

stop, or that she did not want to have sex. Be sure to ask whether the perpetrator would have seen or heard anything to indicate she did not want to have sex.

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If she initially said "no" or "stop," what

was the offender's reaction? How did that make her feel? What was she

thinking at that point? Why did she end up having sex? Was she planning

169

on having sex before she went therelbefore Joe brought it up? Did she think the offender might bring sex up?

•

Adolescent Grooming Behaviors

The goals of the offender in grooming an adolescent are the same as when

an offender grooms a young child--to make sexual assaulting the child

"easier" to do and to get away with. Methods used by offenders with

adolescents can be the same as some used with smaller children: exposure

to ever-increasing physical contact in the context of some initially

"innocent" play, which serves to blur the place where the line is crossed

from "innocent" or 'accidental" to sexual and purposeful.

•

One might also see the use of "rewards" like money, taking the

adolescent to fun special places, or buying her desired objects.

With adolescents, grooming can also include other, more "mature" rewards, like providing alcohol, drugs or cigarettes, sexy underwear or clothes (that the child may have to keep at the offender's home) and viewing adult pornography. Other offender grooming strategies specific to adolescents include:

•170

• • 
 •

• Offenders also take advantage of the adolescent's egocentricity and desire for independence. They become the "best friend" or the adolescent's confidant. They nurture the impression that they really care about the adolescent and plant seeds in the adolescent's mind that no one else understand them the way the offender does. They are "always there" for the victim, often offering the chance to get out of the house, to talk, to have dinner, a place to crash, etc. for the adolescent.
• Offenders also exploit any troubles (even ordinary issues) the adolescent might be experiencing at home and take the opportunity to offer exaggerated characterizations of how the adolescent's parents really don't understand, don't care, or are bad parents. If any of these things happens to be true, it works to the offender's advantage even more.
• Offenders will often play to the adolescent's desire to be considered competent and "adult." They may foster the belief that the adolescent doesn't need to be at home, doesn't need parents. They may encourage runaway behavior.
• Offenders will often compliment adolescents on their adult appearance, which the offender can easily manipulate into physical actions that flatter the adolescent. These compliments may make the adolescent uncomfortable, or the adolescent may tolerate these advances because of all the perks the offender offers.
• Sometimes the offender will characterize the relationship with the adolescent as an "affair" and introduce sexual behavior with the adolescent as though the adolescent is an equal partner. To the extent that the adolescent goes along with, or even enjoys, the sexual activity, then the offender can point out that the adolescent "wanted it" or that the adolescent even "initiated it." The offender will make the adolescent feel responsible by
171

saying they "can't control themselves" because of the adolescent's "sexiness" or their "affection/love" for the adolescent.
• Adolescents can also be "seduced' by the prospect of making money in exchange for sexual pictures, films, or acts. Offenders pose as photographers who set up appointments to photograph girls in sexy clothes. These operators easily introduce sexy underwear, then require removal of some or all of the clothes. They may convince groups of girls to participate, even getting them to pose in lewd or sexually suggestive ways with each other, or to even engage in sexual contact or sexual intercourse which he photos or films. An offender may commit sexual assaults during or after the filming, under the guise of his role as the photographer having been "seduced" by the adolescent.

As one can see, there are a number of ways that many of these

grooming techniques can be corroborated--which can offer powerful

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evidence of mental state and may provide a basis for additional crimes. Whenever there is any sort of "relationship" or longer-term contact between the offender and the adolescent it is worth exploring the grooming techniques he used.

172

• • •

•

Consent Issues

From the strictly legal perspective, no adult can ever have sexual

intercourse or sexual contact with anyone under the age of consent. This is

true even if the minor "consents."

When an adolescent is "willingly" engaging in sexual behavior with an adult, several factors must be taken into account:

• 
 •

• What is the age difference between the victim and the offender and what is the relationship between them? If they are legitimately "boyfriend/girlfriend" and are close in age, it may be more equitable to consider issuance of a lesser charge, or the use of a deferred prosecution or diversion agreement, or to keep the case in Youth Court. In addition to the equities, issuance of harsher charges may be viewed as unwarranted or unfair by a jury, who may sympathize with the defendant, or ruminate about how his life will be ruined by conviction for the greater charge, even if the facts support it.
• What are your prosecution goals? This is often determined, in part, by not only the age difference, but the nature of the acts, whether there were other types of crimes involved, whether there was manipulation of the younger victim, or whether pregnancy or an STD was involved.
• What are the victim's and his/her family's wishes?
• How will the prosecution impact the victim? Is there any potential that she will respond to the filing of charges by running away or otherwise engaging in high risk behaviors?
173

Even if there is potential for this, there may be significant

•

community interests in prosecution. These interests should be

communicated to the victim.

• What is the defendant's history? Is this his first run-in with the system or is he always having sex with the young neighborhood girls?

• What are the personal characteristics of your victim? Is she average or does she have special needs? Is she vulnerable for some other reason?

• Was this truly "willing" on the victim's part or more the product of subtle coercion or pressure that she was not able to overcome?

In cases where the adult offender is significantly older than the victim, • the fact that the victim and the defendant are not on the same playing field is easier for a jury to see and there is less sympathy for the older adult than to the victim. In these cases, it is still important to develop the idea that "statutory rape" is part of our law, and it's there for a reason. This discussion should help weed out those who simply cannot put aside the "consent" issue, and should further help in getting the jurors to focus on the elements of the crime.

It is often the case that the adolescent believes that he/she is "in love"

with the offender, that they have a "relationship" and that the offender really
174

•

•

loves them, too. This comes, of course, from what they have been told by the

offender. Adolescents can believe this after only a very short time of being

involved with the offender.

In cases like this, the adolescent usually feels very guilty about having

disclosed the sex (if they have disclosed it at all) and especially guilty about

the fact that charges may be or have been issued. Often the disclosure is to a

friend, who then disclosed to an adult who contacted parents or police. This

adolescent accepts all blame and responsibility and will be heavily invested

in reminding you and the court that they wanted to do this, that the offender

•

did not do anything wrong, and that they do not want any bad consequences to befall the offender.

In addition, the adolescent may

An

decide to foil prosecution efforts by being

uncooperative, running away, or refusing to

cooperate with the prosecution. She may persist in the belief that the defendant is

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•

even stronger bond between themselves and thl~';'ff;kd~~";+~\'7:
175

the offender. Adolescents often do not engage in safe sex for this reason.

•

Offenders know that if they continue to keep in contact with an adolescent, by writing letters, placing calls and making arrangements to meet, they can manipulate the adolescent to their advantage. No contact orders are important, as well as surveillance efforts to try to prevent continued manipulation.

The victim, too, may initiate contact with the defendant. It would be

entirely predictable ifhe/she were to contact the offender by phone or mail,

or even go visit him/her in the jail.

These cases require continued and steady attention to the adolescent's

•

medical and emotional needs. Adolescents with lower self-esteem seem to

be especially vulnerable to oaths of love and promises of a future. The loss

of that attention--whether because the offender is taken out of the picture, or

the offender shows his true colors somehow to the victim--can result in self­

destructive behaviors by the adolescent. thes~~ases require

continued and steady a~ention to

Predatory Use o/the Internet

the. adolescent's.·

nfedical

In the broadest sense, the Internet intersects

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with sex crimes against adolescents in two ways:
176

•

•

(a) it is used to commit crimes; and (b) it is used by offenders to prejudice

the community's view of the adolescent victim.

When used to commit crimes, the Internet can be used by offenders in multiple ways, including meeting in chat rooms, connecting with an adolescent using social networking sites such as Facebook or other social media, and continuing to have inappropriate contact via instant messages and texting.

Offenders may pretend to be a child themselves, or they may identify

themselves as an adult. They introduce topics of sex and are extremely

•

graphic in these discussions, which can be very enticing to the adolescent

that sees herself as older, wiser and more mature than her years. Offenders

play on these feelings. They may exchange pornographic photos with the

child, or may convince an adolescent to take photos of herself and send it to

the offender. They may convince an adolescent to actually meet them for

the purpose of engaging in sexual behaviors together. They use many of the

grooming techniques described above in convincing an adolescent to

become involved.

•

177

Offenders are also adept at finding out personal information about

•

adolescents, which they can use either to locate the adolescent, or to further

manipulate the adolescent to engage in illegal behavior.

Using the Internet to Discredit the Adolescent

The Internet is also a very handy tool for offenders who want to ruin the character of the adolescent, to tum community sentiment against the adolescent and to try to fatally damage a prosecution involving the adolescent. Adolescents have been known to put compromising photos of themselves onto the internet, thinking it's funny, cute or sexy. They may also engage in vulgar, sexually explicit conversations or make those types of • statements putting them onto Facebook or other social media. Of course, once these materials are out there, it is publicly consumable, and offenders (and often defense attorneys) will try to use this material to suggest that the adolescent "wanted it" or that the adolescent "victimized" the offender. Offenders or their supporters may publish these materials via news media, or by sending it on to others in the community, including the victim's peers. This kind of campaign can devastate a victim, as well as a prosecution, by damaging the victim's credibility and permanently silencing her.
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•

Prosecutors should be honest with adolescent victims about what

would be found if someone went into his/her Facebook or other social media

accounts, and learn whether she has ever engaged in sexual conversations

with peers or adults. This will enable prosecutors to engage in damage

control to the greatest extent possible.

• 
 •

Aside from preventing adolescents from putting things like this out there on the Internet, the prosecutor should also consider motions like Rape Shield if it appears that an offender may try to attack victim character or credibility through the use of these kinds of materials.
Multiple Offenders
The issue of multiple offenders arises in several scenarios. There can be many individuals who are all participating in concert to sexually assault an adolescent, as in cases of gang rapes. There can be cases involving individuals who are each assaulting the adolescent or who are connected with the assault of the adolescent, as in cases of an adolescent prostitution ring where some of the offenders are pimps or pimp helpers and some are the "customers." And there are cases where the same adolescent is assaulted first by one person, then later by another, and so on. Considerations for each are discussed below:
179

Gang Rape Cases

•

In "gang rape" cases, the situation is usually one where the adolescent

has voluntarily placed him or herself into the situation in the first place.

Often the adolescent is on the run from home or a placement, or is otherwise

where he/she should not be at a time when he/she should not be there. The

adolescent may "know" (as in "be acquainted with") one or more of the

subjects who ultimately participate in the assault. Often these situations

involve initial "cooperation" of the victim, which frequently becomes less

"cooperative" and more "I couldn't get away," although sometimes there is

"cooperation" throughout the assaults by the victim. Almost always, the victim was not expecting that he/she would end up having sex with the

•

number of individuals he/she has sex with. Challenges in these kinds of

cases include the following:

• The victim may run away again;
• While the case is pending, the victim may engage in this same sort of risky behavior;
• The victim may be or become too emotionally fragile to participate in the prosecution;
• The victim may have significant psychological issues that have led her to be seduced by this kind of encounter;
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•

• The victim may not be able to identify by name some or any of the participants, or may only know the nicknames used during

the event;

• Often there are multiple acts occurring at the same time, and the victim may not be able to say who did what in what particular order;

• Drugs and/or alcohol may have been used by the victim, which might compromise his/her ability to recall things as accurately or as completely;

• The adolescent may have difficulty articulating when events got out of hand, or when he/she was no longer "wanting" to engage in sex, but being "forced" to do so, and there may be no overt "force" used of any kind;

• Victim demeanor during the assaults, as described by the

•

offenders, may be inconsistent with what the community expects a "victim" of a "gang rape" to look like or do;

• The media may put a spin on the story that is harmful to the

prosecution of the case;

• There may be medical issues of a confidential nature (i.e. HIV status.).

Knowing that these challenges may come into play, the best defense is

a good offense. Recommendations include:

• Plan for the eventuality that you may not have the victim available to testify;

• Have your investigators work hard to get statements from those

involved to try to develop other means of gaining convictions;

•

181

• Consider negotiating in exchange for testimony

•

• Make sure that all witnesses are interviewed and consider

taping those interviews;

• Record the victim's statement;

• Secure all physical evidence;

• Determine whether anyone recorded the acts on a cell phone or other electronic device.

• Make sure the adolescent is safe and secure. Protecting hislher identity, making sure therapy is in place and considerations of placement in or out-of-home should be addressed early

• It is important to learn as much as possible about how this

adolescentbecame involved in this-what was he/she hoping to

gain from this encounter? Has this happened before? What

•

victimization issues or other serious concerns are present? Do

these need to be addressed before a jury should the matter get

that far? If they would need to be, would that exposure cause

problems for the victim that outweighs the benefits of

prosecution? For instance, if your victim is a high school

student who has a serious mental health problem that others do

not know about, is it likely that the mental health issue will

become generally known as a result of prosecutions? Is this

exposure "wOlih it" to the victim, or will it cause more

psychological damage than is acceptable?

• Consider using expert testimony-about what, and who may be able to provide that testimony will come into play in these sorts of cases.

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•

Adolescent Prostitution

In cases where an adolescent is exploited by a prostitution scheme,

offenders include those who set her up into the situation (and are probably

getting the money she makes) along with those who are the customers. Most

prosecutors would view the pimps as being more culpable than the johns and

you may be able to use that to your advantage in getting cooperation from

the johns to testify against the pimp.

• 


These kinds of cases have many forms of corroborating evidence, due to the rise of Internet use. In addition to the more traditional kinds of corroboration (hotel receipts, DNA, etc.), you may want to determine whether the pimp has used any media source to advertise. For instance, Craigslist may contain the ads, including photos, of your victim that were taken and then disseminated there by the pimp. You can get some of this information from the victim, or possibly the john, or even by generally searching those kinds of sites. Search warrants should take into account that this media is probably being used.

Challenges in these cases include, again, that the adolescent is

probably a runaway, and may run again. The adolescent in this case most

•

likely has some significant issues that have led to a "choice" on her part of
183

this risky lifestyle. Being able to understand this adolescent's life and her

•

choices is important to overall credibility, and there may also be a need for

enlightenment via an expert witness. The adolescent may not view

himself/herself as a victim--this may be one in a long series of episodes of

prostituting that has become a way of life. In addition, most adolescents in

this situation perceive of themselves as equivalent to adults, who are making

"choices" and are not being "forced" to do this.

Adolescents with a History of Victimization

Cases involving the adolescent who has been assaulted during the

course ofhis/her life, by more than one individual, are frequent.

•

Statistically, a person who has been victimized sexually before is at a greater

risk of being assaulted again.

Defense attorneys may attempt to use past abuse in several ways. First, they may argue that the victim is "confusing" the offender with an old abuser and that hislher perceptions can't be trusted. They may also argue that the victim "learned" about abuse via the past acts and that's why they are able to describe it now. They may try to paint past abuse as a "prior false allegation" of sexual assault. Or, they may argue that the victim is simply
•184

•

making up the current allegations to get attention, having "learned" that they

get attention through allegations of sexual abuse from the past episode.

• 


In cases involving adolescents, arguments that the victim wouldn't otherwise know about sex but for the past abuse are generally ludicrous positions. Adolescents do know about sex, through school and general exposure to life by the time they are adolescents. "Confusion" arguments and "learned attention-getting" arguments are devices designed to try to circumvent the prohibition in the Rape Shield Law that clearly state that other sexual behavior is not admissible. What the defense really wants to do, in making these arguments, is to muddy the waters and get the jury to focus on matters other than the defendant's culpability. These efforts should be strongly rebuffed via the application of the Rape Shield statute.

Working with Marginalized Populations

As a prosecutor, you want to obtain convictions, make communities safer,

and increase the safety of sexual assault survivors who are at the center of

your case. In order to accomplish this, it is your responsibility as a

prosecutor to: (a) know the make-up of your community; (b) understand the

diverse cultures who live within it; (c) understand survivors' issues and the

•

challenges they face in coming forward and in healing; (d) hold offenders
185

accountable for crimes against vulnerable populations; and (e) be familiar

•

with local resources that are available to support sexual assault survivors in

their efforts to heal from the trauma of sexual assault and seek justice. A

victim-centered response to sexual assault also requires that prosecutors

understand the strengths, challenges and needs

A/$victim...centere4 re~~~lIsei6j'~ex~tifc~;Z

of victims who are seeking justice.

. ass~itlfal~d requir~s that

It is especially critical that prosecutors understand the needs of marginalized

; prosecut'Ors understand t~l.sttength~, chall~ltg'!j1~
(initin~Jit.,'Olvif1i~;iVJilit
flri~eekj~gJu~iice. It Ii;;

populations--Iow-income women, women of color, non-English-speaking women, undocumented women, justice-involved women

~~pecially critical that::

:·1·;<' ecutQrsunitersta~'

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and LGBTQ people---because they are the most

likely victims of sexual violence. Offenders seek them out because they are

vulnerable and because offenders know that marginalized people will be the

least likely to report a sexual assault, and if they do, the chances are they

won't be believed.

Barriers t'O Seeking Justice

Marginalized populations face tremendous, sometimes overwhelming,

barriers to seeking justice. These barriers fall under the following themes:
186

•

•

• Fear of formal systems, including law enforcement and prosecution;

• Fear of repercussions from within their own communities;

• Cultural myths and beliefs that prevent them from coming forward;

• Lack of culturally competent resources to support them in seeking justice and healing;

• Accessibility issues (language, social and environmental, etc.);

• 


All of these barriers converge to drive the crime of sexual assault underground, keep offenders from being held accountable, and re-victimize sexual assault survivors who do not have access to justice and healing. Prosecutors who understand these barriers--and who actively work with victims and advocates to remove victim barriers--will experience increased victim participation in the successful prosecution of sexual assault crimes in their communities.

Culture Specific Barriers

Montana is a vibrant state comprised of richly diverse communities.

We are fortunate that so many people of different cultures that have made

our state their home. While we enjoy the benefits of having neighbors who

•

187

bring a wealth of diversity to our state, we must also appreciate that they

•

bring different beliefs and values with them.

Marginalized populations are not homogenous. While they do face

similar barriers to seeking justice, they are also unique communities with

their own unique strengths, challenges, and culture-specific needs. Having

at least a basic understanding about the cultural differences between these

.
o MaJ~inalized

communities--and how those differences shape

. pOhulatigns at:~,nqt . victim participation in prosecution--will better

homogehous.,·IWhil

t'"

equip prosecutors to provide the support and

,~"'s; . they'll;'e also "''Iique communities with thdiiiOwn unique

assistance marginalized people need in order to seek justice.

•

~f,;engths,. challenges, .

'~~rd ~Uliure~speciftc1'

A full discussion of the unique needs

it~eds:'

..

and challenges experienced by marginalized

populations is beyond the scope of this document. However, in the interest

of encouraging prosecutors to learn more, this section will describe some of

the most predominant cultures that comprise marginalized populations in

Montana. It is our hope that this information will educate prosecutors about

the values and intricacies of each community, how they respond to sexual

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•

assault, and encourage prosecutors to show victims that they respect their

unique cultural difference.

Native American Women

Native American Women experience the highest rates of sexual assault of any marginalized population--they are 2.5 times more likely to experience sexual assault as other women of color. One in three Native American women has experienced sexual assault in their lives. And 80% of the offenders who prey on them are non-Native American.

• 


Native American survivors of sexual assault also face tremendous cultural barriers to seeking justice. The Native American culture places a huge emphasis on harmony and getting along. Most Native American communities are close knit communities. Native American victims who come forward therefore risk disrupting the very fabric of their community. Native American women also stand a high risk of losing their children in instances of physical or sexual abuse.

They often stay with abusive husbands in order to keep their children.

For these reasons, they may be reluctant to report or participate in

prosecution. And most never see their cases prosecuted due to the alleged

•

189

confusion by law enforcement about federal and tribal jurisdictions--when as • a matter of fact, these laws are clearly defined.

The issue of statutory rape in the Native American community also

presents a challenge for prosecutors. Native American women receive

mixed messages from within their culture. While it is looked down upon by

tribal elders, there is an unspoken message in some Native American

communities that young Native American women (as young as 15 or 16)

somehow caused the sexual assault--and because of this myth it is

sometimes accepted.

African-American Women

•

It is important for prosecutors to recognize that many African­

American view formal systems with suspicion. They do not believe that

systems are there to help them; in fact, many believe that the justice system

will fail them. Many African-American women have had negative

experiences with law enforcement or know someone who has. They are also

keenly aware that African-American men are disproportionately represented

in the criminal justice system and they believe that men in their culture are

treated unfairly. For these reasons, some will be reluctant to participate in

prosecuting an African-American assailant because they won't want to do
190

•

•

that to "one of their own." If the offender is kin, they will also resist

breaking up the family, subjecting the family to shame, or putting their

children at risk of involvement with the child protective services.

• 


African-American women also fear that they will not be believed simply because they are women of color. Rather than seeking justice through formal systems, African-American women are more likely to seek assistance through informal supports--kin, clergy and neighbors. They also face multilayered issues that have a direct effect on their ability to participate in the prosecution of a crime--poverty, housing, child care, lack of supportive resources, etc.
Their inclination to choose race over gender, and informal systems over formal systems, presents a challenge to prosecutors. But the challenge can be overcome when prosecutors make an effort to acknowledge their lack of trust and make an attempt to earn it.

Latina Women Latina women are among the least likely to report a sexual assault.

Latina survivors face a number of cultural barriers to coming forward-­

sexual assault and abuse continues to be an "off-limits" subject in the Latino

•

community. Deeply held stereotypes in the Latino community make it
191

difficult for women to share a history of sexual violence with their partners

•

and families. Survivors fear that coming forward may result in their being

ostracized, labeled as "damaged goods," or even blamed for the assault.

Some Latino males have an extremely difficult time dealing with the

sexual assault of a loved one by a stranger, believing that a woman's chastity

is broken during an assault. Latina women know this and they may be

unlikely to report a sexual assault out of fear of the long term damage it will

create in her relationship with her male partner. Latina women are also

fearful of causing shame to their families and this may present another

barrier to participating in prosecution.

•

Latina women are also fearful of formal systems. Like African

American women, many have experienced unequal treatment by law

enforcement, health care and other systems that are supposed to protect

them.

Many believe they will not be treated fairly or will be subject to brutality. They are more likely to seek help through informal supports like clergy.

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•

The lack of bilingual service providers, support systems and sexual

assault providers in many communities also presents a challenge for Latino

women--making it even more difficult for survivors to seek help.

Undocumented Women

• 


Undocumented women are among the marginalized groups who are the least likely to seek justice. The primary reasons for this are a belief that justice is not available to them and a fear of retribution and deportation by law enforcement. This distrust oflaw enforcement and prosecution often follows them from their countries of origin where the law enforcement and justice systems are viewed as opportunistic, corrupt and not helpful to victims of crime.

Undocumented victims also fear retaliation from the offender, who is

likely to have threatened to have them deported if they report the crime. Like

many women of color, they fear not being believed. They also fear that their

own community will not support them or will tum against them to side with

the offender -particularly if the offender is also undocumented. The power

imbalance in these types of relationships always favors the person with

documentation .

•

193

---------------------------------------------,

Finally, given the current political climate in the U.S., many undocumented women fear drawing any attention at all to the undocumented

•

community at all. For this reason, many victims will put the needs of the

community before their own.

HmongWomen

The most important social structure in the Hmong community is the

Hmong kinship, defined by blood relationships or clans. There are about

twenty Hmong clans ("xeem") in the world. Clan membership comes

through birth, marriage, or adoption. All children acquire membership into

the father's clan group at their birth. Women acquire the clan membership

•

of their husbands upon their marriage. All Hmong cultural norms are

dictated by the beliefs of their clan.

Hmong victims of sexual assault face tremendous cultural barriers. It is important to note that in the Hmong language there are no words equivalent to "rape" or "sexual assault." Hmong women who are sexually assaulted do not even have the language to describe their experience within their own culture.

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• • 


When a Hmong woman is sexually assaulted, she is expected to seek help of the clan leader and not involve outsiders. All problems are to be resolved within the clan. Because the clan system is driven by male privilege, wives are viewed as possessions. Hence, a wife cannot claim to have been sexually assaulted by her husband. She is expected to have sex with him is part of her "duty"--whether she wants sex or not. If a Hmong woman charges her husband with sexual assault, she will likely face scorn from her own community who will take the position that he is her husband and she is supposed to have sex with him. If a woman is disowned from her husband's clan, she will be forced to return to her clan of origin, where she may also be disowned. Thus, if a Hmong woman reports a sexual assault she risks losing all connections to family.

Hmong families will preserve clan dignity and avoid shame at all

costs. If a Hmong woman is sexually harassed or fondled against her will,

she is expected to accept this violation. Otherwise her family might

minimize it or claim that she brought it on herself. Hmong women who are

sexually assaulted by a stranger are often expected to marry the offender so

as not to shame their family. The message Hmong women receive is that if

you are sexually assaulted it is your fault.

•

195

International marriages present another challenge for prosecutors. It is not an uncommon practice for a married Hmong man to travel to Laos to

•

marry a second wife. The wife will likely be underage, sometimes as young

as 11-14 years old. Hmong men will bring the child back to the U.S. with

promises of securing her an education and a better life. Once here, he will

expect both "wives" to live under the same roof. This implicit polygamy

often falls under the radar of formal systems because more often than not,

the child comes to the U.S. with a forged birth certificate. Prosecutors may

actually encounter cases where a Hmong man is having sex with a minor

who lives in his home--tolerated by a wife who has few options. Prosecutors may also have difficulty corroborating the age of the child without an

•

authentic birth certificate.

Prosecutors should move cautiously when working with Hmong victims of sexual assault who observe the traditional norms and practices of their culture, and respect the victim's decision about whether or not to participate in the investigation and prosecution. Developing strong ties with organizations who provide services to the Hmong community is critical to increasing your understanding about the unique cultural beliefs of this

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•

population, especially in communities where there is a significant Hmong

presence.

Justice-Involved Women

Poverty, trauma, substance abuse and abusive relationships with men

are the primary pathways for women into

the criminal justice system. Research has shown that approximately 90% ofjustice-

; ::;,,,' ~C\!*0~<%\~t;'.~
:lu~mll;

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~bu~ell~~; ..

involved women have experienced repeated

sexual assaults and abuse throughout their

•

lives. The trauma of abuse not only shapes

their lives, it also creates a mistrust of law

enforcement, and prosecutors, and most

formal systems, formal systems have failed

them. Formal systems have put them in jail.

Formal systems have returned them to their communities upon their release

with few resources to help them escape the cycle of poverty and abuse that

put them there in the first place. Justice involved women are more likely to

have been involved in the sex trade industry at some point in their lives. For

•

this reason they fear they won't be believed or treated fairly if they are
197

sexually assaulted. They also face tremendous challenges when they return to their communities: finding a safe place to live, securing employment, and

•

reunifying with their children. These priorities will often trump any desire

they have to seek justice for a sexual assault committed against them.

It is important for prosecutors to educate juries that just because a woman has committed a crime it doesn't mean that she is not a victim of sexual assault.

LGBTQ Populations

LGBTQ people (Lesbian, Gay, Bisexual, Transgender and Questioning) are

•

subject to the same spectrum of sexual

violence as the general population. In fact, according to many statistics, they

are subject to more. Approximately 10% of hate crimes against gay men

and lesbians include sexual assault. This percentage may be higher, since it

is sometimes difficult for lesbians to discern whether they were attacked

because of being identified as a lesbian or as a woman. In a study of 162

gay men and 111 lesbians, 52% reported at least one incident of sexual

coercion by same-sex partners. Gay men experienced 1.6 incidents per

person; while lesbians experienced 1.2 incidents per person." In a survey of
198

•

•

412 university students, 42% ofLGBTQ students indicated they had been

forced to have sex against their will compared to 21 % of heterosexual

students. "

Unfortunately, LGBTQ people may also face further victimization when dealing with sexual violence. Often an offender will use homophobialheterosexism as a weapon to threaten victims. Their tactics include suggesting that:

• 


• No help is available because the police/justice system is homophobic.
• The victim/survivor will not be believed because LGBTQ people do not sexually assault.
• LGBTQ people deserve to be sexually assaulted for being LGBTQ.
• The victim/survivor will be "outed" or threatened with being outed to friends, family, employer, police, church, or others if the victim/survivor reports a sexual assault experience.

Because of this, LGBTQ victims may not come forward. They may

also fear that they are betraying their close knit LGBTQ community, which

is already under attack, by "accusing" another LGBTQ person of sexual

•

assault. Some LGBTQ victims may fear that they are exposing their
199

assailant to a homophobic criminal justice system if they pursue a legal solution. Most importantly, many fear that they have nowhere to tum for

•

help because they expect hostile and homophobic responses from the police,

courts, and service providers.

Victims ofHuman Trafficking

Human trafficking is a complex social and legal problem that requires

specialized attention from prosecutors. Human trafficking is modem day

slavery. Article # 3 of the 2000 UN Protocol to Prevent, Suppress and

Punish Trafficking in Persons, Especially Women and Children defines

human trafficking as: "the recruitment, transportation, transfer, harboring or

•

receipt of persons, by means of the threat or use of force or other forms of

coercion, of abduction, of fraud, of deception, of the abuse of power or of a

position of vulnerability or of the giving or receiving of payments or benefits

to achieve the consent of a person having control over another person for the

purpose of exploitation. Exploitation shall include, at a minimum, the

exploitation of the prostitution of others or other forms of sexual

exploitation, forced labor or services, slavery or practices similar to slavery,

servitude or the removal of organs."

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•

US Federal Legislation addressing human trafficking, the TVPA ­

Trafficking Victims Protection Act passed in 2000 (reauthorized in 2003,

2005 and 2009), is grounded in this international law.

A full discussion of the needs of human trafficking victims is beyond

the scope of this document. However, the crime of human trafficking does

intersect with sexual assault because victims of trafficking are often

subjected to sexual assault, torture and other inhumane treatment by their

traffickers. While trafficking affects men, women and children of all ages,

races and social standings, populations

•

most vulnerable to trafficking are impoverished women and children.

Human trafficking includes labor, sex

1'osecutorSl.·•. . .

and other forms of exploitation, and

they often overlap (e.g. labor trafficking cases with sex component). Victims
include foreign nationals and u.s. citizens (often referred to as victims of

international and domestic trafficking). The crime may originate in Montana,

in a different state or in another country, and can occur in urban and rural

•

201

settings, especially large farming communities. Offenders may be part of an

•

organized crime group or act on their own.

One of the greatest challenges of addressing human trafficking is that

it is a hidden crime. Prosecutors may encounter victims of sexual assault

who are also victims of human trafficking.

Unfortunately, identifying victims of human

trafficking is a challenge, because

traffickers are experts at controlling victims

and coaching them about how to respond to

questions. In most cases trafficking victims will not self-identify--in fact, they may not

que~

es.?

!ir~.fJic .victit. "ill;" ;<~

n6tself-itlentify--infa~t;··

•

understand what the term "trafficking"

they rna}' n()t,qntle~stand

i ,'~.~~.::

,<- :~ ~ ,

, '

means, or even view themselves as a victim.

." mean~~.a·

~~~n vi~ themsel~J~~$··

There are a number of "red flags" that a victim.

may indicate a sexual assault victim is also a victim of human trafficking:

• Is anyone forcing the victim to do anything that they do not want to do?
• Can the victim leave their situation and/or job if they want?
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•

• Has the victim been physically harmed in any way or threatened?

• Has the victim been recruited for one purpose and forced to do some other job?

• Is the victim's salary being garnished?
• Was the victim forced to perform sexual acts?

rat "om~Ii;)i,ith(Jut 9il~f(kilides. >.<,~<

• Is the victim a juvenile engaged in commercial sex?

• Has the victim been harmed or deprived of food, water, sleep, medical care, or other life necessities?

•

• Can the victim freely contact friends or family? • Has the victim or family been threatened with harm if she

attempts to escape?

• Is the victim allowed to socialize or attend religious services?

• Was the victim coached on what to say to law enforcement or immigration officials?

• Is the victim in possession of identification and travel documents; if not, who has control of those documents?

• Has the victim been threatened with deportation or other law enforcement action?

Prosecutors are uniquely positioned to identify victims of human

•

trafficking and support them in seeking justice and restoration of their
203

human rights. Prosecutors who are working with a sexual assault victim who • they suspect may also be a victim of human trafficking should familiarize themselves with federal and state efforts to address the issue.

Victims with Cognitive or Developmental Disabilities

Historically, people with disabilities have experienced discrimination

because of their disabilities. They have been viewed as incapable or

helpless, separated from society at large, and denied opportunities for

education and other life experiences. Misperceptions and stereotypes about

people with disabilities--and a subsequent history of oppression--put people

with disabilities at increased risk to experience sexual assault.

•

Statistics indicate that women with developmental disabilities are

sexually assaulted at twice the rate of women without disabilities.

According to one study, 90% of people with developmental disabilities will

experience sexual abuse at some point in their lives and 49% of them will

experience 10 or more abusive incidents. Only 3% of sexual abuse cases

involving people with developmental disabilities are ever reported." Of that

3%, only 22% of the offenders are charged and only 8.5% are convicted.

• In a 1991 study by Sobsey and Doe they estimate that more

than half of the abuse perpetrated against people with

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•

disabilities is generally by family members and peers with disabilities, and that disability professionals (i.e., paid or unpaid

caregivers, doctors, nurses) are generally believed to be

responsible for the other half.

• There are few studies that document sexual assault against women with physical and/or sensory disabilities, but Young, M.E., et al. reported that 40% of women with physical disabilities reported being sexually assaulted.

• 


It is critically important to remember that sexual offenders deliberately seek out individuals they perceive to be vulnerable and those they believe may be easier to manipulate, control, and groom for the sexual abuse. Offenders target people with disabilities because they think they will be able to get away with abusing a victim who may be unable to communicate what has happened to them and who is unlikely to be believed even if they are able to disclose. In addition, people with disabilities are often isolated from services and supports and denied education about sexual abuse. As a result, individuals may have no one to disclose the abuse to, and/or may not understand that what happened to them is abusive.

•

205

Many people within the society at large, as well as people within the

•

criminal justice system have preconceived notions about who are the victims

of sexual assault; generally speaking most people do not think of people

with disabilities as potential or likely victims of sexual crimes. Some of the

common myths are about this population are: (a) that they are oversexed;

(b) they are grateful for any sexual attention; (c) they are too undesirable to

be targeted for sexual abuse; and (d) they are unreliable, lie and are more

prone to fantasizing. It is important to address

Desoitetneilisturbing,... these preconceived ideas and myths with

fr~~~ency ofsexual .

as;saults (lg~instoe~ule 
 juries when prosecuting a case with a victim

Jvi1~dis_l?:iliti¢~;Jiijijitl, ,i 

:1: offend~;;kt~;~l!iti~ ...

with disabilities.

•

accountable.,

Despite the disturbing frequency of

sexual assaults against people with disabilities, few offenders are held

accountable. There are numerous reasons for this. Some victims with

disabilities may not report the assault because they are not aware that the

experience was abusive. Some may not report because they fear reprisal

from the offender, fear they won't be believed, or are afraid of entering the

legal system. Barriers related to communication and accessibility may also

prevent victims from reporting the assault. Additionally, some prosecutors
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•

may believe that juries will not perceive individuals with disabilities as

credible witnesses; therefore, they may choose not to prosecute. Prosecutors

may also aim for plea agreements (which often come with lesser sentences)

as a means of "protecting" victims with disabilities from jury trials.

As with any victim who reports, navigating the legal system and

retelling the details of the assault can be traumatic. Advocates can help minimize the possibility of further trauma by providing

Systelnsofteir/ocuson 
 what':the:p "'",,,I,.1Ii with r.,1,i~~" !1!JelrsOJ

support to victims who are coping with an

•

assault and facing the prospect of potentially lengthy or emotional court procedures.

Victims with Mental Health Problems Previous sections have discussed the
impact of sexual trauma on victim's mental health. Mental illnesses affect a person's psychological or emotional functioning and ability to think, feel, and ability to relate to others to a mild, moderate, or severe degree.

"

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f~~j.ltojeiIo~ts to~ope '

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• 


207

Most mental illnesses are considered to be a biological occurrence or the

•

result of trauma, such as a sexual assault

Offenders target victims they perceive to be vulnerable, including those who had mental illnesses that preceded the assault. In addition, individuals with trauma related mental health issues are targeted for repeat assaults.

• A 200 I study found that women with a psychiatric disability had a 
 high rate of sexual victimization. They also found that 74% of 
 women with co-occurring mental health and substance abuse related 
 problems have histories of sexual abuse." 


• Another study found that the lifetime risk for violent victimization

was so high for homeless women with severe mental illness (97%) as

to amount to normative experiences for this population."

•

• For individuals with psychiatric disabilities, the rate of violent 
 criminal victimization including sexual assault was 2 times greater 
 than in the general population (8.2% vs. 3.1 %) 


The stigma associated with mental illnesses and difficulty survivors have finding trauma-informed services and supports can have a profound effect on individuals. Systems often focus on what they think is wrong with the person instead of what has happened to them. As a result, victims with mental illness may develop alcohol and other drug problems, eating disorders, and other health problems, as a result of efforts to cope with a
•208

•

sexual assault. Systems that overlook the holistic needs of victims will tend

to see individuals as problematic, hopeless, and/or lacking credibility.

• 


People with mental illnesses face many barriers to reporting a sexual assault. These include fears that they will not be believed, fears that people will think they "made up" the sexual assault because of their illness, and fears about having their mental illness revealed to their families and community. Cases involving victims with a mental health diagnosis may be dropped because of assumptions that evidence will not be considered reliable. Mental health issues may also be used to discredit victims, no matter how far in the past it occurred. Some victims with serious and persistent mental illness may also be so overwhelmed by the assault that they can't imagine coping with the stress of a trial. For victims with mental illness, the assault often exacerbates their symptoms of anxiety, depression, worthlessness and hopelessness. For these reasons, victims with mental illnesses may not believe they are even worthy ofjustice. Or, they may make their healing from the assault a necessary priority over justice. Therefore, it is important that victims feel supported by trauma informed advocates and prosecutors in order to overcome many of these barriers.

• 


Considerations in Working with Marginalized Populations 


209

An understanding and appreciation of the unique world view of

•

marginalized populations can guide prosecutors in their interactions with

underserved victims and provide the support and encouragement that

marginalized people need to seek justice. Strategies that prosecutors can use

to increase their own cultural competency include:

• Practice vertical prosecution whenever possible. It will help you gain and retain the trust of marginalized victims.

• Remember that trust is not a given. It must be earned.

• Listen and don't judge.

• Acknowledge the injustice that marginalized people have experienced in their lives.

•

• Learn key phrases in other languages. It is not necessary to speak fluently. However a few common phrases like "I'm sorry," Thank you" and "'You are courageous" "I believe you," will help to build rapport with non-English speaking people. This genuine gesture will also go a long way to demonstrate your compassion and respect.

• Increase your visibility within communities of color. Attend cultural events in your community where marginalized people gather.

• Know your community and reach out to community-based

agencies and resources that support specific cultures and

populations.

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•

• Seek to increase your knowledge about marginalized populations by reaching out to advocates and/or agencies that

reach communities of color for guidance.

• Understand that communities of color are small and because of this they are interconnected. Be cautious to use interpreters who are independent and not connected to the victim's immediate family, friends or distant relatives.

• Coordinate interviews with victims to include advocates from

within the victim's community.

A .cuf:r;~tjt or fo .

• Seek to increase diversity in your staff. If you do not have staff from the victim's culture, reach

.~,~
,
d~jimdant ca~Je(itl to>

out to community advocacy

addi·,f;f~f:~g, .

•

agencies--they may have staff available to assist.
• Engage the victim's informal

;jfth~~*ft~ft~ 

pro$~t;~t!on,. an4f
~~~~': ~ ~

support people -clergy, friends

and kin--ifthe victim chooses.

• Identify resources to address barriers to participation that are often experienced by marginalized people, e.g. safe shelter, transportation, child care, immigration status, and emergency assistance.

• Become knowledgeable about Federal and State statutes related to human trafficking, and state and regional resources available to support trafficking victims.

•

Sexual Assault in Intimate Partner Relationships

211

•
The majority of sexual assault victims know their assailants. Despite this fact, the public still expects offenders to be weapon-wielding strangers who attack their victims in dark alleys.

This expectation, grounded in cultural bias, victim blaming, rape myth

acceptance, and faulty expectations about victim behavior, creates unique

challenges to the successful prosecution of non-stranger sexual assault.) A

current or former relationship between the victim and the defendant can lead

to additional complexities that often make the arrest, prosecution, and

conviction of an intimate partner offender even more difficult.

•

Historically, additional barriers to prosecution were created by

exempting spouses from the rape statutes. Although the marital exemption

is no longer codified, some allied criminal justice professionals have

continued to ignore, dismiss, or blame victims of intimate partner sexual

assault. A growing number of allied criminal justice professionals recognize

the validity of intimate partner sexual violence and conduct aggressive

investigations and prosecutions of these offenders. Despite their efforts,

however, jurors and judges often fail to hold intimate partner offenders

accountable.

•212

•

The criminal justice system is a critical piece of the coordinated

response to sexual violence. If its response is indifferent or ineffective,

sexual violence victims are left vulnerable, offenders are not held

accountable, communities are less safe, and justice system's response to

sexual violence, allied criminal justice professionals must recognize the

serious impact of intimate partner sexual assault on the victim as well as the

community, understand the contexts in which intimate partner sexual assaults occur, and

TI.~ie is'a pervasive iilea} tna/in-nome . . .

appreciate the individual responses that victims

•

of intimate partner sexual assaults have to their victimization. In addition, prosecutors must

develop strategies to overcome jurors' belief in

common sexual violence myths which become barriers to the successful prosecution of an intimate partner sexual assault.

~'
cal·andju!mii;i conflict;, {lnd are m~te ....
p,y~hologic{lilylemotion
idly involveil in .

The Impact ofIntimate Partner Sexual Assault

Intimate partner offenders, like all non-stranger offenders, "hide

behind the context of their relationships with their victims. They mask

•

themselves as 'nice guys.' They play upon society's biases and stereotypes.
213

"There is a pervasive idea that in-home offenders are somehow not as

•

dangerous or problematic as 'community' offenders, i.e., offenders who are

strangers. They are, however, more experienced; more invested; cross more

boundaries; are safer from exposure; create

more betrayal and family conflict; and are more psychologically/emotionally involved in offending." In addition, intimate partner sexual assault victims suffer a higher number of assaults.
For example, most victims of marital rape "report being raped more than once, with

Be(:ause oJthe ....;r
reI4#ll.!,sIiiAIl¢~tn: the' i 'dtj~;'da~t: u~tltJl~ victi~;
there may bea ten4~'Y
if~~iC?4;"'ife'-"j 


maya silbe coinplex.,}· , ~~. ,,~~.' ~
feelings involved sil¥i~J: .....
tlteJrmalJA{f!Ve1 t~~;.,·{...:.~y~~!

offeltde~ .1iiit ~fJ:tft·th·e offense.

•

at least one third of the women reporting being raped more than twenty

times over the course of their relationship. Offenders of intimate partner

sexual assault violate their victims physically and emotionally. Offenders

are individuals with whom victims share their lives, homes, and possibly

children. "In addition to the violation of their bodies, victims are faced with

a betrayal of trust and intimacy." Further, because of the relationship

between the defendant and the victim, "there may be a tendency for victims

to blame themselves, [and] there may also be complex feelings involved
•214

•

since they may love the offender but hate the offense." As a result, although

often minimized, intimate partner sexual assault victims often "suffer long-

lasting physical and psychological injuries as severe--or more severe--than

stranger sexual assault victims, because of the nature of the emotional

trauma surrounding their assault."

Many victims do not recognize their sexual assault as an assault.

Some believe that the law protects their

offender. Some believe that a spouse has the

nol rape out,

ofto,.,{'

•

right to sexual assault his wife. Others rely on their partners' insistence that spouses or other intimate partners who have previously given

:~~t.a~L~~~··
p~j.,~;, and;, , :, ':}s a,;W~fJPpnand4'

consent to a partner are not able to withdraw it. :mlt~n$';/;j""""'ressini !lz~';;~

offende"$aggressi(jlJ\pr:l~i;

Unfortunately, society often also shares these views and refuses to hold offenders accountable.
Understanding the Context ofan Intimate Partner Sexual Assault

l!1~er.·~J~~gugh soif'r1:i

tnllmatlt partner ...;. .:<:),

'··r;z

assailants(iimit their ,.. ;' :u, /~c ' t c; ,-..., ~f',

violrtl1€:t!: tase;:tual' .

assault,: the maib~iiy:oj~:

intij.~~partnerisitxuall~; .'

'c//:'".'''->·- >,

'

'}is~>;:

(tsSJulits oc

d::"·

pil,sicallya

The term "context" refers to the

f~l~tionship.

circumstances surrounding an incident as well as the intent of the offender's

•

use of violence. Prosecutors must determine the context in which a violent
215

incident occurs in order to accurately analyze, charge, try, and dispose of the • case. Significantly, not all intimate partner assaults occur in the same context.

Offenders do not sexually assault out of sexual desire of to achieve

sexual satisfactions. Rather, sexual assault is about power, and, therefore,

sex is a weapon and a means of expressing the offender's aggression or

power. Although some intimate partner assailants limit their violence to

sexual assault, the majority of intimate partner sexual assaults occur within a

physically abusive relationship. As a result, many intimate partner sexual

assaults also involve domestic violence dynamics. All violent relationships include some level of control or attempt on the batterer's part to control his

•

partner. Some relationships may include a cycle of violence. The term

"cycle of violence" was developed by Lenore Walker to describe three

distinct phases in an abusive relationship: tension building, physical abuse,

and the honeymoon phase. Prosecutors must understand, however, that

although these theories are helpful in understanding domestic violence, not

every relationship involves a cycle of violence or the dynamics featured in

the Power and Control Wheel. Domestic violence exists on a continuum,

and, therefore, most relationships exist at some place--or in many places-­
•216

•

along the continuum, is critical that prosecutors understand the dynamics of

each relationship in which an intimate partner assault occurs in order to

accurately evaluate and prosecute the case.

Common Domestic and Sexual Violence Victim Behaviors

Despite the extent of the research on domestic and sexual violence,

many jurors still believe stereotypes about sexual

Victim:sofintintate

and domestic violence victim behavior. For example, jurors expect domestic violence victims

eartnersf!Xual assault: lI,wy exliilJitmallyofthe' hehaviorstlescribed . above. Til'

•

to accept responsibility and leave batterers. They also expect victims to be cooperative with prosecutors and to behave in ways consistent with

vadllattri' coojjerl/titln~ith ""! '.. nrosectl;tion,'recan(,ot:;, ,.;
a1so,' t.est,ify.o,. n,'tlie1/!jd:,e;fe1lfdantlj·i

<to'iii~<

other crimes. As experienced domestic violence prosecutors understand, the opposite is often true: domestic violence victims often stay with their abusers, regularly minimize their abuse, recant, request the dismissal of charges against their

ai:tivitY witli ,thelr .•.. a:a'$uiltinIYa,t; ".,.. , , j(}lliJli~iiig/h

.The 'beliavi'

!ttmt

'es'ilt

tfz~R~f{&~futi(1,nk(}fg.n ,

i~~il~~~~partnej.·/·'!+

~sf!Clilant ;andrequlre .

iXj11al1ations by the fvic;ti~f!!~:,an f!Xnitr'f

batterers, refuse to testify for the prosecution or

testify on behalf of their batterers.

•

217

The behaviors of sexual assault victims--particularly non-stranger sexual assault victims--also frequently conflict with the type of behavior the

•

public expects from a "real" victim. For example, the public expects sexual

assault victims to scream during their sexual assault, to forcefully resist their

attackers, to report their sexual assaults immediately, to remain vigilant

following their attacks, and to avoid their assailants. Sexual assault victims,

however, often do not scream or resist during a sexual assault; they

frequently delay reporting their sexual assault; they often do not remain

hypervigilant; and they may continue to have contact with their assailant.

Victims of intimate partner sexual assault may exhibit many of the behaviors described above. Specifically, they may vacillate in their cooperation with

•

the prosecution, recant, or testify on the defendant's behalf. They may also

"consent" to sexual activity with their assailant at some point following their

assault. The behaviors create significant difficulties in the prosecution of an

intimate partner assailant and require explanations by the victim or an

expert.

Overcoming Obstacles to the Successful Prosecution ofIntimate Partner Sexual Assault

•218

•

The prevalence of myths surrounding sexual and domestic violence

creates significant barriers to the successful prosecution of intimate partner

sexual assault, but prosecutors can take steps to overcome them.

• 
 •

Since many offenders of intimate partner sexual assault use sexual violence in the context of a physically violent relationship, many victims face collateral consequences relevant to domestic assault. Therefore, prosecutors must approach intimate partner sexual assaults in a multidisciplinary manner. Unlike a victim of a random crime, a domestic violence victim's involvement with the criminal justice system may put her at risk of: losing her housing (ifher abuser is the primary household wage­ earner); losing her employment (if she repeatedly misses work in order to attend the numerous court appearances that may accompany the criminal and civil hearings related to her abuse); losing custody of her children (if the state feels she is unable to protect or provide for her children); losing financial support for herself and her children (if her abuser loses his job once he is convicted or sent to prison); losing her immigration status (if she is unable to qualify for a visa under VAWA provisions); and being prosecuted (if her attempts to protect herself or her children are not recognized as self­ defense). In addition, as discussed earlier in this article, victims of intimate
219

partner sexual assault feel a deep sense of betrayal over their assaults. They

•

also engage in self-blame.

Prosecutors must identify and form relationships with community

advocates and agencies to address and attempt to resolve the collateral

problems domestic violence victims face as a result of their abuse and to

address the emotional distress caused by the assault. Prosecutors alone are

not able to provide victims with the attention, advocacy, and resources

required to address and resolve the victim's needs. By working with

community advocates, prosecutors can help victims procure counseling,

create a safety plan, obtain assistance with childcare, secure or maintain housing, and receive vocational training or assistance with a current

•

employer.

Prosecutors can explain the context of an intimate partner sexual assault by

T11'itntrQ~lJ~tionoi:; .
other (.lets' Ctllt;' . demonstrate.i,:l3£11;. ~ defl~ntlaq~~lntent':~ith

introducing evidence of an assailant's other respe(:~lt;the i1':#mate i parlne~;;'exual {tss'fltJ1t

bad acts. The introduction of other acts can for which h~J$Y~J~~ntly

demonstrate the defendant's intent with

o!J. ~rilt4 .1(o,.·example,.(j···~.;
il!l~nda~t's prilJrvifjlent

respect to the intimate partner sexual assault history witn)iJ:iti~tii~may

ber~~a"t to explain,\~:4"ft.\If

for which he is currently on trial. For

lJ,er i~t:k ofrt!~is~altCI!;r:'
220

•

• • 


example, a defendant's prior violent history with a victim may be relevant to explain her lack of resistance. If the victim has been previously abused by her partner, her perception of her batterer's ability to cause her imminent harm, even where there has been a passage of time between her batterer's threat and the sexual assault is well-grounded. Domestic violence victims' experience of the repeated violent cycles enable them to predict their partner's impending violence based upon his behavior preceding previous assaults of the victim. Therefore, evidence of the defendant's victimization by the batterer and the cyclical nature of her relationship is relevant and may be admissible establish that the victim's fear is reasonable and well­ grounded.
Finally prosecutors must understand the impacts of a victim's lack of cooperation, and the impact of Crawford v. Washington and Davis v. Washington on their ability to prosecute an intimate partner sexual assault. A prosecutor will rarely be able to successfully prosecute an intimate partner sexual assault of competent adult victim without the victim's cooperation because of the difficulty in overcoming the consent defense.

In the rare instance where an intimate partner sexual assault of a

•

competent adult without the victim's cooperation is prosecuted, prosecutors
221

must anticipate defense objections to the introduction of hearsay as well as

•

any "testimonial" statements under Crawford and Davis. Crawford held that

testimonial statement of an unavailable witness can be admitted at trial only

when the defendant has had a prior opportunity to cross-examine that

witness. This holding was clarified in Davis, in which the Court explained

that statements made to government agents for the primary purpose of

receiving assistance in an ongoing emergency are non-testimonial.

Statements are testimonial when circumstances objectively indicate there is

no ongoing emergency and the primary purpose of the interrogation is to

establish or prove past events potentially relevant to later criminal prosecution.

•

Intimate partner sexual assaults pose significant challenges for

prosecutors. In order to successfully prosecute these cases, prosecutors must

overcome cultural bias, victim blaming, and domestic and sexual violence

myth acceptance. Further, they must persuade judges and juries that

intimate partner sexual assaults are serious cases that significantly impact

the safety and well-being of the community. Prosecutors can debunk

prevailing myths by understanding and explaining sexual and domestic

violence dynamics and victim behaviors. They can overcome barriers by
•222

•

demonstrating the context in which an intimate partner sexual assault occurs.

They can also persuade judges and juries to hold intimate partner sexual

assailants accountable by ethically and aggressively charging and litigating

intimate partner sexual assaults in a manner that exposes them as critical

weapons in an offender's abuse of his partner.

• 


•

223

ISSUES IN CHARGING SEXUAL ASSAULT

•

CASES47

The prosecutor's authority to exercise discretion on charging

decisions is a key component of our criminal justice system. ABA Model

Rule 3.8(a) requires that the prosecutor refrain from prosecuting a charge not

supported by probable cause, while national standards establish that a

prosecutor should only proceed on the basis of sufficient admissible

evidence to support a conviction.

Aprosile~torsltiiflld 


Prosecutorial discretion is subject to constitutional constraints such as equal

onlypr~i~edonthe . 


b~is ofsufficient '.£;;) . 

tiLnissibltt:ieviden(j:,{io 
 ',~:'l~,~';;":~ ~·t ','

•

sup/Wftll .

protection and due process. The prosecutor

should only file charges that adequately encompass the offense or offenses

believed to have been committed and that rationally address the nature and

scope of the alleged criminal activity.

The ultimate decision of how a case will proceed rests solely within the role of the County Attorney; however, input from the victim is an

47 Portions of this chapter were excerpted and modified with permission from: the Michigan Prosecutors Sexual Assault Prosecution Manual, published by the Domestic and Sexual Violence Prevention and Treatment Board and the Prosecuting Attorneys Association of Michigan (2013); and the Wisconsin Sexual Assault Reference Book, published by the Wisconsin Office of Justice Assistance (2009). All rights reserved.
224

•

•

important component in the decision-making process and carries

considerable weight in determining the best course of action. A charging

decision should not be made in haste.

Is the Investigation Complete?

It is important that the law enforcement investigation is complete before filing charges against the accused. Before charging a case it is important to consider the following items (or lack thereof):

• Forensic interview/statement from the victim (recorded)

• Written reports from law enforcement

•

• Medical evidence or a sexual assault examination • Medical report from a Sexual Assault Nurse Examiner
(SANE)

• Recorded statement from the suspect

• Recorded statement from all critical witnesses

• Corroborating evidence (anything that might corroborate the

victim's statement)

• Documented and properly inventoried physical evidence

• Photographs (crime scene, victim's injuries, etc.)

• Forensic examination and results from State Crime Lab

• Criminal History of suspect(s)

• 404(b) (other acts) 0 f the suspect(s)

• Any requested follow-up investigation by law enforcement

The prosecutor should address any problems, concerns, or needs for

follow-up investigation before filing charges, as well as be prepared for

•

defense attorney's arguments.

225

Search for Corroborating Evidence Corroboration is essential to the prosecution of sexual assault cases.

•

As part of the analysis of the case, the prosecutor should develop a time line

that includes everything leading up to the assault, including what the victim

and offender did after the assault. The prosecutor should then attempt to

corroborate as many facts as possible to bolster the victim's credibility.

During this process the prosecutor may

determine that there needs to be additional

~ecut(JF~i'~;

investigation. While some of this may occur .

:'case they

C(/,I}f/"o(get/Fom n~ading

before the filing of charges, corroboration should not stop once charges have been filed.

the reparts. Meeting with
the victim is also a part
0/4eing victilfl:-£~entered,~,!~
a~JdT,l{~s;;:ate~,tl!: ." ',;

•

vt'fllatthe's,

Meeting with the Victim

':~ .: <'<c ~<~:~, "'." v•.c' ;,;) J'"

pFO$Certuttqn'ts ta

,

i t 'C/ c'' c'

'~.:,

case seriouslv.

The prosecutor shall meet with the

victim prior to making a determination about whether or not to charge the

offender. Meeting with the victim provides prosecutors a feel for the case

they cannot get from reading the reports. Meeting with the victim is also a

part of being victim-centered and demonstrates to the victim that the

prosecution is taking the case seriously.

•226

•

It is recommended that a third party, such as an investigator,

paralegal, or fellow prosecutor be present during the interview with the

victim if any facts of the case will be discussed. Failure to have a witness

present could result in the prosecutor becoming a witness. Using an advocate

as the third-party witness is discouraged, as advocates should not be put in

the position of potentially having to impeach their own clients.

• 


A victim advocate can, however, provide emotional support to the victim and encourage the victim to share details that are important to reviewing and potentially charging the case. Victims have a statutory right to have a victim advocate during an interview.48
Interviewing the victim provides an opportunity to review the case from the victim's perspective, explain the process, uncover details that may have been overlooked in the initial investigation, and determine what outcome the victim is seeking. To ensure the best outcome prosecutors should:

• Allow adequate time for the interview.
• Conduct the interview in a place where the victim feels safe and able to speak freely.

•

48 Mont. Code Ann 46-24-106(7).

227

• Adopt a "seeking to understand" perspective in questioning the

•

victim.

• Review the victim's rights and explain the victim's role in the 
 prosecution process, including the rape shield law, the charging 
 process, trial and possible plea negotiations. 


• Inquire about any threats suspects may have made toward the victim and respect and support the victim's efforts to maintain their safety.

A victim-centered approach also means that prosecutors should

support victims who choose not to cooperate in moving the case forward.

However, all victims should be assured they will be consulted as the case

progresses and well prepared for trial.

Charging Considerations/Analytical Framework

•

Determining whether to file charges is a broader decision than merely

evaluating the evidence; the nature of the sexual assault crimes often results

in little or no physical evidence. However, corroborative evidence, witness

statements, participation of the victim/witness in the case, and 404b

evidence committed by the offender are likely to playa significant role in

the prosecution.

Probable cause must exist to file any criminal charge. However, the

inquiry does not end with the question of whether probable cause exists to

charge the case. The prosecutor must also consider whether there is

•228

•

sufficient credible, admissible evidence support a reasonable likelihood of

prevailing at trial. The prosecutor should consider a number of factors:

• 


• Legal sufficiency. Is there sufficient evidence to prove each element of the offense beyond a reasonable doubt?
• Trial sufficiency: It is simply reality that some cases cannot make it at trial. A case in which a victim's behavior fits neatly into widely held rape myths should not be declined for that reason. Nor should a case be declined because the trial outcome is uncertain; doing so contributes to a vicious cycle. To determine whether a case is sufficient to take to trial, the prosecutor should carefully analyze:
o The prosecutor's ability to meet anticipated defenses, address rape myths, address victim credibility issues, and address and explain "counterintuitive" victim behavior. Any prosecutors concerned about their level of expertise should consult with the Prosecution Services Bureau;
o The presence or absence of physical evidence;
o The presence/absence of corroborative evidence;
o Opportunities to present expert testimony; and
o The victim's wishes and well-being, including her ability to testify and be cross-examined.

Use of Non-Sexual Assault Charges in the Information

Frequently there are a multitude of non-sexual assault charges that are

supported by the facts. These may include:

•

229

• Burglary • Theft

•

• Criminal Endangerment

• Kidnapping or Unlawful Restraint

• Privacy in Communications

• Assault/PFMA

• Intimidation

• Stalking

• Tampering with Witnesses/Evidence

• Any number of misdemeanors

There are a number of reasons to include these charges in your

original information. These crimes may provide corroboration of the victim

as to the circumstances of non-consent. In addition, including them in the

original information and discovery may provide sufficient notice of 404(b) evidence or "other acts." Finally, some charges may be stronger than others,

•

and it may be possible to negotiate from a position of strength to accomplish

the goals of the prosecution. If the case goes to trial, however, the prosecutor

should consider whether giving the jury a choice between felonies and

misdemeanors is a wise course of action, as juries at times render "split the

baby" verdicts that could leave the prosecutor and/or the victim disappointed

that the jury convicted on less important charges with less significant

penalties.

•230

•

Determine If PFO Statute Applies

Pursuant to Section 46-18-501 a "persistent felony offender" is an

offender who has previously been convicted of a felony and who is presently

being sentenced for a second felony committed on a different occasion than

the first, if the second felony is committed in the time period specified in the

statute.

• 


Prosecutors should review the defendant's prior criminal history and determine pursuant to Mont. Code Ann. § 46-18-501(1) & (2) ifhe/she can be designated a persistent felony offender.
Except as provided in Mont. Code Ann. § 46-18-219, a persistent felony offender shall be imprisoned in the state prison for a term of not less than five years or more than 100 years or a fine not to exceed $50,000, or both, if the offender was 21 years of age or older at the time of the commission of the present crime.

Because the intent of the persistent felony offender statutes is that they "replace the sentence for the underlying felony," they should not be made consecutive to a sentence. State v. Gunderson, 2010 MT 166, 357

•

231

Mont. 142,237 PJd 74; State v. Brooks, 2010 MT 226,358 Mont. 51,243

•

P.3d 405.

Timing of Filing of Charges The decision when to file charges in a sexual assault case requires
balancing of several factors. While it is desirable for the investigation to be complete before filing charges, prosecutors should carefully balance the desire for a full and complete investigation with the safety concerns of the victim when deciding when to file criminal charges in a sexual assault case.

Upon receiving an investigative file from law enforcement, requesting

that criminal charges be filed, the prosecutor shall make contact with the

•

assigned investigator within two (2) weeks of receiving the file to discuss

the case. After reviewing the investigative materials the prosecutor should

put all requests for follow-up investigation in writing to the lead

investigator.

Upon receiving an investigative file from law enforcement for review

purposes only, the prosecutor shall complete

;T~tlJlil~i$ioltabout

.

the review within one (1) month or provide whether and when toftliil

chargf!s is /J:'fsedon.~L:
a written explanation to law enforcement for lf~lan. .te~tiJl·~dny·

Pictors~.·;!~· .'.

• . . 232

•

the delay. The prosecutor shall provide written guidance as to concurrence

with law enforcement or suggested alternatives.

Once a complete file has been presented to the prosecutor, including any and all follow-up investigation, and the prosecutor has met with the victim, a decision to charge a case should be made within 60 days.

Any and all decisions to charge a sexual assault case should be reviewed by the supervising attorney within a reasonable period of time prior to actually filing charges.

• 


Procedures for Declined Cases After determining that a case should not be charged the prosecutor
should review the declined case with the assigned investigator to discuss the issues surrounding the "no file" decision.

After meeting with the assigned investigator and discussing the decision not to file charges in the case, the prosecutor should review the case with his/her supervising attorney and/or staff the case with the other specialized sexual assault prosecutors in the office.

After reviewing the case with his/her supervising attorney and/or

•

staffing the case with the other specialized sexual assault prosecutors in the
233

office, if it is still the decision of the prosecutor not to file charges then the prosecutor shall prepare a detailed written explanation of why the evidence

•

is insufficient to obtain a conviction or why prosecution of the case is not in

the interest ofjustice. The written explanation should be forwarded to the

investigator and made a part of the case file.

If the prosecutor has made a decision to not file charges and the above-listed criteria has been completed, the prosecutor should arrange a meeting with the victim and victim advocate to explain the decision.

•

•234

•

Chapter 8 ISSUES IN TRYING SEXUAL ASSAULT CASES49

There are few categories of cases that require a prosecutor to use such

a wide array of tools as sexual assault cases. Sexual assault cases often

require forensics experts, psychologists and psychiatrists, medical experts,

counselors, and others.

In addition, few categories of cases

t(isimportantfftj*~Vlifil.~ require the attention to the victim and hislher

reilltiolzsnip ojtriist /;.
with It· l'ictim(·;A:

family throughout the criminal adjudication. In

•

be built

in onedtlii!ting; it takes

" . ',~ -y"','

,

effort

, "

' ~

.e.

addition, it is important to build a relationship of trust with the victim. A rapport cannot be

built in one meeting; it takes effort and time.

It is the prosecutor's job to shepherd the victim and others through the criminal justice system, explaining what is happening or will happen, and being available to answer questions and alleviate concerns.

•

49 A substantial portion of this chapter was excerpted and modified with permission from: the Michigan Prosecutors Sexual Assault Prosecution Manual, published by the Domestic and Sexual Violence Prevention and Treatment Board and the Prosecuting Attorneys Association of Michigan (2013); the Wisconsin Sexual Assault Reference Book, published by the Wisconsin Office of Justice Assistance (2009); Prosecuting Alcohol-Facilitated Sexual Assault, published by the National District Attorneys Association (2007); and Prosecuting Intimate Partner Sexual Assault, The Voice, Volume II, No.2, published by the National District Attorneys Association. All rights reserved.
235

Protecting Victims Pre-Trial

•

Pretrial Motions

Prosecutors should utilize pretrial motions to protect the victim's safety and privacy. Pretrial motions also clarify the parameters of admissible evidence, force the defense to reveal and justify some of its tactics, and keep prejudicial and private information about the victim from the jury.

The following are some pretrial motions the prosecutor should consider filing:

• Bail. Conditions of bail should include measures to protect the

•

victim. Ask the judge to prohibit the defendant from having

contact with the victim and witnesses. Consider GPS, Pretrial

Supervision, testing for drugs and/or alcohol, and anything else

that protects the victim from contact or harassment by the

defendant, and that protects the safety of the community. File a

petition to revoke bail if the defendant violates any conditions

of release.

• Courtroom.

Let the victim get familiar with the courtroom and where you

and the victim's supporters will be while she is testifying.

Consider requesting additional law enforcement presence in the

courtroom if there are indications the defendant, his supporters,

or anyone else may disrupt the courtroom or attempt to

•236

• • 
 •

intimidate the victim. You may not always succeed, but the victim will see that you are fighting to protect her.
• Rape Shield and other motions to protect unfair character attacks.
File a proactive motion to foreclose defense attempts to violate the Rape Shield statute by introducing evidence of the victim's past sexual conduct. Think carefully about anything else the defense might try to use to make the victim look bad. Does she have tattoos or piercings? Did she have a baby at a young age? Does she have a history of using alcohol or drugs? Prostitution? Mental illness? Criminal convictions? Political activities the jury could look down on? How would they look at her job, or that she is on some sort of assistance program? Look for anything that is irrelevant or prejudicial, and determine whether those things are actually inadmissible. By identifying those issues early, you can protect the victim, even if the judge lets some of that evidence in.
• 404(b) evidence.
When possible, the prosecutor may file a motion to introduce evidence of the defendant's other bad acts. All too often, in non-stranger sexual assault cases, the investigation looks only at the current case and does not look for prior sexual assaults. When possible, the prosecutor should ask police officers to interview the defendant's friends, prior girlfriends, and others who might know about prior acts. Although these people may have a reason to lie, they may also be willing to assist. If the defendant has any prior cases, review those cases, even if they were dismissed. Further investigation might be warranted. Do not only look for completed sexual assaults; also look for evidence that can be used to demonstrate the defendant's pattern of behavior toward women. Prior bad acts stopping short of actual sexual assault may support the argument that he
237

deceived the victim, manipulated her, or planned and premeditated the sexual assault.

•

Working with the Victim

Prosecutors can do at least three things to assist the victim in testifying in a competent and credible manner: (1) support; (2) protect; and (3) prepare the victim.

• Support the Victim.

Support can be provided in a number of ways - by the

prosecutor, investigator, and/or advocate. Show the victim the

courtroom to ensure the victim is as comfortable as possible on

the witness stand. Provide a safe and comfortable place for the

•

victim to wait to testify. A victim who feels supported is more

likely to feel more comfortable on the witness stand, which will

make her a better witness.

• Protect the Victim.

A prosecutor should protect the victim to the best of his or her

ability, through pretrial motions, objections at trial, and other

strategies. A victim who feels protected through the process is

less likely to become defensive or angry on the witness stand.

When a victim becomes angry or defensive, jurors are likely to

believe that she has something to hide, rather than recognizing

these reactions as normal human behavior. When the defense

files frivolous motions intended to harass and intimidate the

victim, oppose them. For example, if the defense files motions

requesting a psychological examination of the victim or asking
238

•

• • 


for the victim's medical or counseling records, oppose them. The State is not required to tum over any information not in its possession.50 Such records are privileged.51 The Montana Supreme Court has recognized such privileges and has protected confidential records from disclosure.52
• Prepare the Victim.
Testifying in court can be as traumatic as the sexual assault itself because the victim is forced to relive the assault. Prosecutors should prepare victims not only for direct examination but also for the harsh reality of cross-examination. To prepare a victim, discuss her substantive testimony as well as basic rules for testifying. Tell the victim that the most important rule for her to follow in the courtroom is to be truthful. Explain to the victim that if she attempts to hide or exaggerate small details, the defense will probably be able to show this on cross- examination. The defense will then argue in closing that the victim is a liar and cannot be believed about the sexual assault if she cannot be believed about the small details. Instruct the victim on the importance of accuracy. For example, a victim may be inclined to say that the defendant "ripped" off her panties, when in fact he pulled them off, but did not rip them. The slightest imprecision opens the door for cross­ examination and may call the victim's credibility into question. Ask her to try to stay calm, since a victim who becomes angry will be unable to think clearly. Working with victim advocates can make the preparation for direct examination more comfortable for the victim and thus, more productive for the prosecutor.

•

50 Mont. Code Ann. §46-15-322. 51 Mont. Code Ann. §26-1-805, 807. 52 See State v. Reynolds, 243 Mont.l,8, 792 P.2d 111, 1115 (1990); State v. Donnelly, 244 Mont. 372, 798 P.2d 89 (1990); State v. Muir, 263 Mont. 211, 867 P.2d 1094 (194); State v. Duffy, 2000 MT 186,300 Mont. 381, 6 P.3d 453; State v. Little, 260 Mont. 460, 861 P.2d 154 (1993); State v. Rhyne (253 Mont. 513, 833 P.2d 1112 (1992).
239

In cases in which the consent defense is used, cross-examination may

•

be particularly harsh. Victims who are prepared in advance for the challenge

of the experience will be better witnesses when they testify. An advocate

may be extremely helpful to the victim and to the prosecutor by being

present during preparation for cross-examination and during the trial itself. It

might also be helpful to have someone other than the prosecutor conduct a

mock cross-examination of the victim.

In addition, when prepping the victim for trial, the prosecution team

should reinforce that the victim is not responsible for the sexual assault. The

defendant, not the victim, is responsible for his behavior, and thus, the assault. Although the victim is not responsible for the assault, it is crucial to

•

be honest about all details of the case, especially drug and alcohol use.

When preparing the victim for cross-examination, discuss questions

the defense attorney is likely to ask. Explain that the defense is likely to

portray her as a promiscuous party girl. If there is any memory loss, they

will be certain to focus on the fact that there are things she does not

remember. They might ask questions like, "You consented to drink, and you

consented to drug use, didn't you?" Let the victim know that it is

appropriate to respond truthfully that she might have consented to other
240

•

•

things, but she did not consent to intercourse. If there is a delay in reporting,

the defense will inquire about it. If there were potential consequences for

the victim that were not enforced, such as being kicked out of college for

drinking or drug use, these will certainly be raised at trial.

Finally, consider asking in your direct examination of the victim the questions you expect the defense to ask in the victim's cross-examination. The victim will be more comfortable answering you, and the jury will appreciate that you didn't shy away from difficult facts.

• 


Jury Selection Jury selection is an often overlooked but critical part of a trial. Jury
selection in Montana is controlled by M.C.A.§46-l6-ll4 through 118. The purposes of voir dire are to discover grounds for challenges for cause and to gain knowledge to facilitate an intelligent exercise of peremptory challenges. However, prosecutors should look at voir dire as another opportunity to educate the jury.

Jury selection can be persuasive and informative, and at its worst, dull

and harmful to the case. The best voir dire is one that sparks a conversation

between the panel and the lawyer. It is the only chance prosecutors have to

•

talk directly with the jury. And while voir dire should be persuasive,
241

prosecutors cannot use it to get the jury to commit to the state's theory of the case, indoctrinate them, or argue the prosecution's case.

•

One of the first tasks in jury selection is to identify the issues that will

likely cause difficulty in the case. The goal is to identify which myths are

likely to be most prominent in the minds of the jury given the facts of the

case. It may be the absence of injury, or that the victim was drinking with

the defendant, but whichever it is the focus of the questions must be on those

prominent beliefs.

The. goal is to identify
rtj,ll~~hmyt:hs are likely to'; 'b~!"q~,tjJ~"inen~dn·thJ;,'·'" mil;~i;ofthe jMry1iveJ't' the faet~rofthe,ea~Jti:lt may be

Once the issues in the case are identified the process of formulating appropriate jury questions can begin. Due

•

th~:absenee ofinjury, pr 
 i~at th~;~~~~tim was ," ','".,"',;.01""; to its limited nature and based on your 


'ilrinkittjwitl't the defenda~t, but whichever

judges' rules about time limits and subject

it.J~ thefoeus ofthe}

qtttisti~tjs;it~ ,: tbe.o4:t.40:s~:

els" ",.,\, p"

r

,,om,',',in',e,,",:',~'i,t,; • • ,fi', "

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,'.J," ... .. :,; <\ Ji;;:!'f~

matter, voir dire cannot be exhaustive. What follows are a few suggested questions

that can be considered. The suggested questions are just that, suggestions.

They are not intended as a script to be scrupulously followed.

• Lack of Physical Resistance

•242

•

o Analogize to a party store robbery. If someone walks into a convenience store and points a gun at the clerk to demand the

money from the cash register, would anyone expect the clerk to

physically fight back? Why not?

o And everyone would agree that the clerk made a choice to give the robber the money, wouldn't you? It was a choice? And you would agree that it was a smart choice?

o Does anyone think that the clerk consented or voluntarily gave the robber the money when she made the choice to comply?

o And if the robber tells police that the gun wasn't loaded, or it

wasn't a real gun, and the clerk was never in danger, do we

expect the police to tell the clerk that it was all a

misunderstanding, she was never in any danger and so didn't

have to hand over the money? So we all agree that what's

•

important is that the clerk was afraid of what might happen ifhe resisted and said "No"?

o We don't judge consent by what was in the robber's mind, do

we? We judge consent by what the clerk believed and

understood, don't we?

o The judge is going to tell you at the end of the trial that the victim does not have to resist. Now, you have taken an oath to tell the truth. You haven't yet taken an oath to follow the law. So if any of you think and believe that if the victim didn't resist, then it can't be sexual assault, it's okay to tell me now. If you believe that if the victim didn't resist, that means she consented to the sexual contact, it's okay to tell me that now. Do any of you believe that? [If no one says yes, "That's good, you all agree that when the judge tells you that the victim need not resist, you will be able to follow the law, is that right?"]

•

o Does anyone think you have to be threatened with a weapon in order to fear being injured or fear for your life?
243

o You would all agree, wouldn't you, that someone [a man] who

•

is physically bigger or stronger could make another person [a

woman] feel afraid by what he says? Or by how he looks or

acts? Or perhaps by how he positions his body, say, by

standing between that person and the door, or lying on top of

them?

• Coercion and Threats

o Does everyone agree that if someone threatens you with gun, like in the robbery example, that is a threat? The robber wants the clerk to believe that the robber will shoot the gun ifhe doesn't get what he wants, doesn't he? Putting that all together that's coercing someone by threat of force?

o Are there other ways besides pointing a gun at someone? What are some of those ways?

o Parents are good at using their voices, and facial expressions,

•

and body posture to "convince" their children to behave in a

certain way, aren't they. That's a kind of coercion, too, isn't it?

o What was it that got us to behave just by hearing a tone of voice? Did we know what was going to happen if we didn't? When we suspected that something bad was going to happen if we didn't obey, weren't we really just accepting that we had no practical choice but to do as we were told? Where did we get that idea from (experience and circumstances)?

o So does everyone agree that a person can be coerced into doing something when that person reasonably believes that there's no practical choice but to do it?

•244

• • 
 •

• Victim's Response to Trauma o Is there anyone here who has ever been through a traumatic event, such as a car accident or physical injury, perhaps even a mugging or burglary?
o How did you respond right after it occurred? (Ask more than one juror to explain their responses to the trauma; you should get varying responses.)
o Mr. Jones, you described a response to your situation which was different than Ms. Green's response to hers. Do you think different people react in different ways to stress?
o After the traumatic event, were you able to think clearly?
o Did you rely on your instinct to get through it?
o After the emergency was over and you had some time to reflect, did you come up with things you wish you would have done differently?
o Did you react the same way you had thought you would?
o Do you think that victims of sexual assault might respond in a variety of ways to trauma as well?
o Can you make room in your mind for that possibility and not judge the victim based on the way you think she should react?
• Intoxicated Victim
245

Cases in which the victim is voluntarily intoxicated without reaching

• 


the level of physical helplessness can be challenging. A common defense

argument is that the victim in fact consented to sexual activity, but because

she was drunk she doesn't remember that she did so. The defense can use

intoxication to attack the victim's credibility, too. Offenders rely on the jury

disbelieving the victim when she says she

didn't consent, because she was drunk

Offenders rely on thet;'i,;y;;~ jury disbelieJfi~g the ;:y,y .

enough to do something she wouldn't have

..., ,when'~I;ft: ',~ays she
e···· ,'. ;bet~use

done sober and now regrets it. The task in

she J,ii1;'Orunk'enough t{J~

d~:so . ·. )ng she

.

jury selection is to find out which of the venire might hold those beliefs, and begin to

'w~itldn#t~have done
sober a~d n(}"'regre~;t1·: .Thet~k irl}llry'~~>;"*

•

reframe intoxication as vulnerability.
o Everyone can agree that young people drink, right? And sometimes to excess?

is'tIJ' diJiltwhih' 'ilt~ veit~~~~ighthold .
those b~ti'eft, and begin;.,::
to rejrllmeilltoxief; as!,~){ult'erajility. '''''C'';

o How many of you have seen really drunk people? How did you know that they were drunk?

o Do you think you could have persuaded that really drunk friend to hand you their wallet? Or that you could have gotten their wallet out of their purse or their pants pocket without resistance?
•246

•

o Did you do it? Why not? Folks that are that drunk are pretty vulnerable, aren't they? The fact that your friend was drunk

doesn't mean that he was consenting to you taking his wallet,

does it? That friend might act very differently if you tried to

take his wallet while sober, wouldn't he?

Another challenge when the victim was intoxicated is the fact that

many people can and do consent to sexual contact while drunk. When one

judges whether someone has agreed to something, they look to other facts

and not solely that the other person was intoxicated. The prosecutor should

try to get jurors to acknowledge that intoxication does not equal consent, and

that when someone is intoxicated their physical coordination and judgment

•

are affected in a way that makes the defense argument suspect.

o How many of you have had surgery or have had relatives who had surgery where you were anesthetized? Perhaps even dental surgery where you were given something to relax you?

o And, thanks to all of us lawyers, how many forms dI.d you'
have to sign acknowledging that you understood the risks and consented to the surgery? Those doctor's didn't have you sign those forms AFTER you were given the sedatives that made you loopy, did they? You were asked to sign those before they gave you anything that would affect your judgment, weren't you? Why do you think that is?

o In our earlier example, how would you know if your drunk

•

friend really consented to giving you the wallet? You would
247

look to other things, wouldn't you? What kind of things?

•

How many of us would feel comfortable relying on what he

says if we ask if we can have his wallet?

• Inconsistent Statements

o In our county, there are several parades every year. Let's imagine that you went to a parade and saw 5 marching bands, 10 politicians shaking hands and kissing babies, and 3 beauty queens. You talked to your neighbor right after the parade, and you told your neighbor that you saw 5 marching bands, 10 politicians shaking hands and kissing babies, and 2 beauty queens. Several hours later you see a friend of yours at dinner, and you tell that friend that you saw 5 marching bands, 10 politicians shaking hands and kissing babies, and 2 beauty queens.

o Now, that is inconsistent with what you told your neighbor ­ • have you lied? How many of you think that under those circumstances you are a liar? Memory is a tricky thing, isn't it?

o Let's suppose a month later you were asked by a reporter, say, and you told the reporter that you saw 5 marching bands, 10 politicians shaking hands and kissing babies, 2 beauty queens and the Shriners in their little cars. Are you lying to the reporter? Were you lying to your neighbor and friend when you didn't tell them about the Shriners?

o Suppose your pastor asks you if you visited the beer tent

before you went to the parade, and you lie and say "no"

because you don't want the pastor to think you are a bad

person. Does that mean you are lying about what else

happened at the parade?

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•

• Delay in Reporting

Potential jurors may believe that a victim of a "real" sexual assault

would act in specific ways, and of course if the victim's response to the

assault doesn't meet those beliefs those potential jurors may not believe that

the victim was assaulted.

o What do you think would be a person's first concern if they were a victim of a traumatic event? Can you think of a reason why a victim may not report immediately? Ex. Embarrassment, humiliation, fear of retaliation, fear of not being believed.

o Do you think that all women report being the victim of a sexual

•

assault immediately? Can we agree that not every woman who is sexual assaulted reports it immediately?

o Do you think that the sexual assault might have an emotional

impact on a victim? And what might some of those emotions

look like to you?

o Have any of you had the experience where you see something unexpected and amazing, something where you say, "I can't believe my eyes." And you didn't tell anyone right away because you weren't quite sure what it was you just experienced?

• The Defendant becomes a Stranger

One of the most traumatic circumstances of non-stranger sexual assault is

the betrayal of trust that a victim experiences when someone she knows

•

turns into a stranger.

249

o Have you or someone close to you been taken advantage of or

•

been betrayed somehow by someone close to you? Did you

expect this to happen or did it take you by surprise? And at

times do we look back and still say, "I can't believe he did

that?"

o How many of us, when that betrayal happened, were

speechless? Didn't know how or even if to react? And later

when someone asks, "What did you do?" or "What did you say

to that?" all we can say is that we we're stunned, or speechless?

o We've all heard the story about Dr. Jekyll and Mr. Hyde--- how Dr. Jekyll undergoes a complete personality change to become Mr. Hyde. Now that's an extreme case, but has anyone in their own life experience encountered someone whose personality seemed to change? Tell us about that. Did you see it coming or were you surprised?

• Consent

•

Since most non-stranger sexual assaults are defended on the issue of

consent it is imperative that the prosecutor ask about the potential jurors'

conception of what consent is, what it looks like, and how to recognize it.

Prosecutors should cover any definitions or jury instructions on consent that

are going to be read to the jury.

o In our everyday lives how can we tell if someone is consenting to a request?

o Imagine for a minute that when traveling here I was stuck in a

line of traffic because of some construction, and someone was pulling into the lane in front of me. How would he know that I
250

•

• • • 


consented to him pulling into the lane ahead of me? I might raise my hand and gesture to the other driver.
o Do we all agree that we can communicate are consent by our actions? In fact, isn't that usually how we do communicate it?
o Now, if I held up my hand and I was trying to tell the other driver to stop inching into my lane, and the other driver misinterpreted my actions and thought I was consenting, does that mean I really was? All agree that what was in my mind is what's important? (Possible follow up with a question about willingness to follow the law that consent is in the victims mind, not the defendants. There's no reasonable mistake of fact defense.)
o Have any of you ever made an online donation to a charity using a credit card? If you're like me, it makes you feel pretty good for having contributed to a worthy cause.
o And if your experience is anything like mine, about a month later you get something in the mail from the charity. A "free gift" like a refrigerator magnet or return address labels. Of course, there's always another letter asking for another donation. Have most of us had that experience?
o So what happens next? Don't we get the phone call asking for a donation? And we think about it, but let's say we decide not to donate at this time.
o So then maybe a few months later you open up your credit card statement and you see another charge to the charity, only you didn't authorize another donation. What do you do? Imagine that the charity says that they charged the card because you donated before. It's no big deal, right? 

251

o How would that make you feel? Does anyone think that we

•

should have to prove to them that we didn't consent to the

charge? Can we all agree that it's up to the charity to seek our

consent, that it cannot be assumed? And that's true for a whole

lot of other things, isn't it?

Opening Statement Every sexual assault is unique. When a sexual assault case proceeds
to a jury trial, the goal of the prosecution is to convince the jury that the assault occurred and that the defendant's conduct meets all of the elements of the offense charged.

The best way to meet the goal of establishing the defendant's guilt is to relate an account of the events that makes sense, explains undeniable

•

facts, and provides reasons for why people acted the way they did through

the testimony of witnesses. In other words, you have to have a theory to

explain what it is that the defendant did and relate the account in such a

way that the jury understands and believes it happened.

The opening statement should be relatively brief, quickly grab the

attention of the jury, succinctly relay important facts for the jury through

the witnesses they will hear form during the trial, tell them what to look for

during the presentation of evidence, and tell them what you expect them to
252

•

• • 


do after they hear all of the evidence.
First, develop a theme and theory for your case. Then, begin your opening by using a short phrase that quickly and accurately summarizes what the central issue of the case is. Another method is to provide a theme that the jury will be readily able to identify with and provide a perspective through which to view the evidence as it is presented. Another method is to immediately shock the jury with a statement that the defendant made during the course of the assault that they will remember when it is repeated.
Selection of the best method depends on the style of the prosecutor and a careful evaluation of the evidence that will be presented at trial. Take care to repeat your theme and theory, through your opening statement and throughout your trial presentation.

After the introduction, tell the jury through a narrative about the key

facts you expect to present in evidence. The narrative should be compelling,

using descriptive words and active voice verbs. Other strategies for an

effective opening include:

•

253

• Using visual aids, like an exhibit such as a photograph you are

•

certain will be admitted at trial, which is simple and presented

so that it is easily viewable by all members of the jury.

• Using a PowerPoint presentation. If you decide to use the PowerPoint, make certain that you are familiar and comfortable with its use so that it does not interfere in the message you are trying to convey.

• Holding the jury's interest by using gestures and body language appropriate to the story you are telling. Vary your voice in pitch, rate or pace, volume, and tone. Pause when appropriate to focus attention on the point you want the jury to remember. Look all individual jurors in the eye, but do not make them feel uncomfortable.

• Setting the scene, identifying the critical players and

establishing important time sequences and significant events.

•

Continue to introduce the theme of the trial. Identify for jurors

the human values present in the facts of the case. Select a

point of view from which to narrate the facts and stick with it

throughout your opening statement.

• Not arguing the case. The opening statement is not an opportunity to argue the case, nor is it the time to bore the jury with details that in the end are not going to matter one way or the other how the jury is going to find the defendant guilty. Style is just as important as having a command of the facts. It is vital that you relate the facts of your case without being condescending, wooden, argumentative or inarticulate.
Finally, end your opening statement by telling the jury what you
expect them to do when they deliberate their verdict. Tell them to find
•254

•

the defendant guilty. Engage the jury in the process by having them

adopt your perspective and the theme that you selected for the trial.

Order of Witnesses

Presentation is key in a jury trial. Juries do not want to hear a

collection of facts, they want to hear a story that convinces them that the

'"P,,l,~,e"ieitting',
li'itnesses wltiJ call;,
~~tablis1t th~fitcts and ,: ~ '; cunllst(J~nC'l;~s;'Whi!lA'

victim was sexual assaulted by the defendant. Any good story should begin strong and end strong. If the victim is not

•

a strong witness it may be better to call the initial officer or SANE nurse as the first

inl1~:ller to place tlte, vil;4fjtis frrstimony in
p~tlerc~~text.

witness, so that the jury can understand the emotional impact or trauma of the assault. In some cases it is the actual

testimony of the victim giving graphic details about the assault that will

grab the attention of the jury.

Presentation is always case specific. Prosecutors must also pay close

attention to the order of witnesses presented at trial in order to facilitate the

jury's understanding of the context in which the sexual assault took place.

•

Corroboration of the victim's account of the assault is essential to the jury's
255

understanding of the case. Typically, presenting witnesses who can

•

establish the facts and circumstances which made it possible for the

defendant to commit the assault assists the jury and should be presented

before the victim testifies in order to place the victim's testimony in proper

context. The victim's testimony should be the focal point of the State's case

after the context is set with remaining expert witnesses used to corroborate

the victim's testimony. Corroborating testimony typically are fact

witnesses who corroborate the victim's version of the event and can

include observations by lay witnesses, documentary evidence including

bank transactions telecommunication and computer records, medical expert testimony, forensic expert testimony, and/or expert testimony on

•

reactive behavior of victims.

Witness order is important throughout the prosecutor's presentation of the case from beginning to end. The conclusion of the story in your case-in-chief should end as strongly as it began. It is important that the last witness have a powerful impact upon the jury, convincing the jury of the defendant's guilt. Direct Examination of the Victim
•256

• • 


No one knows better what happened, how she felt and why she responded as she did during and after the sexual assault than the victim. This is the reason why the victim's testimony is the most fundamental aspect of your case, and why her credibility is crucial. In order for the jury to properly assess the credibility issues in your case, they must be able to figuratively "walk in her shoes" (although it is impermissible to ask the jury to do so) and look at the assault from her perspective rather than judging and second-guessing from the comfort of their 20-20 hindsight juror seats.
The victim's experience needs to be made known to the jury, especially in cases where consent is the defense, which means that you must, through her, tell the whole story and paint a vivid and clear picture of the crime for the jury. A good place to start in preparing for direct exam, therefore, is by asking the victim to tell you about what she wants to say.

From the time of the first meeting with the victim, through

analyzing, preparing, and trying to the case, listen to her to gain

information about how the offender observed vulnerability and capitalized

•

257

upon it. Her vulnerability is, therefore, a key aspect that must be explored in her testimony. Accordingly, the direct exam of the victim must:

•

• Humanize the jury and allow them to get to know her;

• Allow the jury to see, her and feel what the victim had to say, what she heard, and how she felt (physically and emotionally) during the assault and after;

• Provide evidence, in the testimony itself, and in addition to

any physical evidence you have, that proves every element of

the crime(s) charged beyond a reasonable doubt. At the end of

the direct, any corroboration is icing on the cake - the jury

should be viewing all corroboration as almost expected,

because they find themselves believing what the victim had to

say; • Explain the facts fully so that the jury is not left to speculate;

•

• Make your victim invulnerable to cross-examination..

By this point, you have a developed theme and theory of your case.

How does your victim fit into the plan of proving the elements of the

crime? How can you ensure that blame is falling where it should - on the

offender, and not on the victim? Your theme should be pointing in the

direction of the offender.

Preparation is key to effective victim testimony. During an effective

direct examination of the victim you are going to have to go into

•258

•

excruciating detail with her, and she is going to have to trust you to get her

safely through what is going to be an ordeal. She must feel prepared, non­

defensive and confident in both her ability to field all questions, and in

your ability to present her story. Therefore, you cannot be a stranger to her.

Developing a good working relationship with the victim is essential for

effective presentation of her case. In your pre-trial preparation you must:

• 
 •

• Allow you victim to express herself as she does;
• Allow her to voice her concerns;
• Identify any special skills or problems she has - does she have a somewhat limited vocabulary? Does she think for a long time before she answers? You will have to adjust to, and help the jury adjust to and expect her idiosyncrasies;
• Assess her ability to introduce exhibits;
• Thoroughly vet all the facts;
• Explore apparent "inconsistencies" - is it truly inconsistent, or something else?
• Prepare the victim for expected defense questioning;
• Assure her that you are not afraid of the truth, that knowledge is power, for both of you;
• Show her the courtroom. Tell her where the major players will be sitting when she comes in to testify, where she will go to be sworn in, where you will be, and where her supporters will be in the gallery.
259

Once the victim can approach the witness stand with confidence and

•

dignity, you are prepared to proceed before the jury to introduce her.

• Ask about school, family, skills and goals.

• Introduce the advent of the defendant into the victim's life - have her explain any relationship, and any changes in the way she feels about him now, vs. before she was attacked.

• Move into a slower, quieter discussion of the events leading up to the assault itself. Begin focusing on every possible sensory and peripheral detail, asking specific questions about what she saw, heard, felt, etc.

• Allow the victim to narrate, and go back over and into details as

necessary. As she relates the events of the assault, slow the pace of

the questions down even more, and take her and the jury back

through important segments, getting more details. Include any words

said by either, what the offender looked like, how his voice sounded,

how his face, voice or body changed during the assault, how he

•

reacted to her words or actions, what she was thinking at very major

point during the assault.

• Have her explain what options she considered, and why she chose the options she did.

• Have her explain any physical sensations

• Have her explain her perceptions of the defendant before, during and after the attack. Remember to include words and phrases that echo your theme, and emphasize the words and phrases she uses that help further the theme, too.

• When consent is an issue, spend time on how she communicated to the defendant through her words and actions that she was not freely and voluntarily engaging in the acts. Use any corroboration available to show her unequivocal "No"

• Discuss her decision to report and her experiences with the police and

medical personnel.

• If possible, have her describe the immediate physical and mental
260

•

•

impact of the assault on her, as well as any longer term effects on her life. Include any expressions of humiliation and/or degradation.

• Anticipate areas of cross-examination and defuse them

• End on a strong note

Expert Testimony

In Chapter 3, we discussed the impact of trauma on sexual assault

victims, and how it affects memory and

behavior in ways that are often

misinterpreted by others. Victims of sexual

assault are subjected to intense scrutiny and

•

often times it is their behavior, rather than

the offenders', that ends up being put "on

trial." Offenders count on the jury believing

that certain behaviors mean that the victim

is lying. For example, the offender wants the jury to believe that a "real"

sexual assault victim would immediately report the assault to police, or

would scream or cry out for help during the assault. Prosecutors need an

expert to explain that these behaviors are not unexpected and, rather than

being proof that the victim is lying, they are in fact evidence consistent with

•

the victim's reported history of assault. An expert's testimony can provide
261

the necessary framework for jurors to accurately interpret a victim's behavior, assess a victim's credibility and to ensure

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assault prosecutions. Do not underestimate

the extent to which inaccurate beliefs about what victims "should" do, or

what constitutes "real rape," will affect the jury's understanding of the case.

• 


These beliefs are so deeply ingrained, there is going to be some aspect of the

victim's behavior that will need to be explained to the jury. Is it the failure

to cry out for help or perceived lack of resistance? Did the victim act in a

way that appears to be "cooperative?" As discussed previously, these are

behaviors frequently interpreted by jurors as evidence of consent.

Was there a delay in reporting? Did the victim make apparently

inconsistent statements? These factors are often used by the defense to

impeach the victim's credibility.

•262

• • •

The prosecutor's first task, then, is to determine which of these issues will need to be addressed and explained through expert testimony in the case. The prosecutors' second task is to identify an appropriate expert and prepare them for trial.

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Who Can Be an Expert

Once it is determined that expert testimony will be necessary the prosecutor needs to find an expert to testify. Potential sources of experts include:

• Sexual assault service providers (counselors or advocates) • Mental health professionals (psychiatrists, psychologists, social
workers, etc.) who specialize in working with sexual assault victims)
• Medical professional (preferably a forensic nurse examiner, or some other professional with substantial experience performing the sexual assault medical forensic exams)
• Police officers The choice of expert will be driven by the issues that need to be
explained, and by the predilections of the judge who will be deciding the
263

admissibility of the expert's testimony. For example, it shouldn't be necessary in most cases to call a neurobiologist to explain the complex

•

chemical processes that occur during trauma. Instead, a professional with

substantial experience working with victims of trauma will be able to

explain that gaps in memory, intermittent recall of details of the event, and

inconsistent statements, are all common ways in which victims of sexual

assault react to the trauma of the assault.

One is qualified as an expert through education, training, specialized,

knowledge and experience. MR.Evid.702. The most significant of these will

be the expert's experience with victims of sexual assault. While education and training are important, those factors are not sufficient. It is the practice

•

wisdom, the knowledge and experience that comes from working with

victims over time and integrating education with real life that is most

compelling. This is true in many arenas - if one must have surgery, one

typically will choose the doctor who has successfully performed this surgery

many, many times, and will pass over the doctor who has only performed the

surgery a few times even though that doctor graduated from the best

university, top in the class.

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If at all possible, the prosecutor should avoid using a treating physician, or a sexual assault counselor or advocate who provided services that are protected by privilege. This helps protect the victim's right of privacy in treatment. When the prosecutor calls the treating professional, it may inadvertently put the victim's mental state at issue in the trial. This could allow the defense an unwarranted opportunity to seek testimony about treatment and diagnosis from that expert. Moreover, calling the treating professional as one's expert can create strong feelings of insecurity and uncertainty in the victim as to what that professional's role is. Victims may worry that what they say to their counselor will not be kept confidential, or they may feel betrayed or disappointed when that professional does not act as an advocate for them at trial. Finally, calling a treating professional gives the defense an opportunity to challenge the expert as biased because of their intimate knowledge of the victim and the circumstances of that victim's case, and can be seen as impermissibly bolstering victim credibility simply by the association of the two people.

Explaining Common Reactions to the Trauma ofSexual Assault

Experts are called to explain that many of the normal human

•

responses to trauma run counter to the ingrained societal views as to how a
265

victim of sexual assault should respond. An expert might be called to explain behavior a jury perceives as being inconsistent with one who has

•

been sexually assaulted, such as:

• Delayed reporting

• Victim recantation • Victim self-blame or minimization • ~emorylapses • Lack of resistance during sexual assault • Incomplete or inconsistent recall of the sexual assault

• Lack of physical injuries • Lack of apparent disruption in daily activities of living

•

• Inappropriate Affect

• Freeze response

• Compliance during assault

• Continued contact and/or relationship with offender

• Post assault victim behavior It is important that prosecutors consider that an expert may be helpful

not only in explaining victim behavior leading up to and during the assault,

but also explaining post-assault behaviors of the victim that are consistent

with someone who has experienced a traumatic event. Examples might be
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•

•

changes in daily life patterns, avoidance of things associated with trauma,

diminished interest in day-to-day activities. A woman assaulted at college

might stop attending classes, might drop out of school, or might avoid being

at the place where the offender is likely to be. This testimony can serve to

rebut the defendant's claim of consent.

Direct Exam of the Expert Witness and Cautions

The questions listed below are not intended to replace the questions typically asked when laying a foundation for the prosecution expert.53

• 


• Laying Foundation
Occupation
o What is your occupation? o How long have you been employed in that capacity? o Describe the responsibilities of your position. o How long has the program/agency been in existence? o What services does your program/agency offer? o Do you supervise? o Do you train staff? o What is the total number of staff?
Rape Crisis Center/Shelter

•

53 These questions were published in the Wisconsin Sexual Assault Reference Book and were adapted with pennission from the American Prosecutors Research Institute of the National District Attorneys Association by the Prosecuting Attorneys Association of Michigan.
267

o How many contacts do you receive yearly from victims identifying • themselves as having experienced sexual abuse or violence?
o How many crisis calls do you receive yearly? o How many residents in your shelter at one time? o How many residents yearly? Adults? Children? o How long can residents stay? o Does your program offer any other services?

Counseling/Support Services

o Are your services solely for victims of sexual assault?

o Are your services solely for women?

o How many persons are served by this program yearly?

o Do you provide counseling/support services to victims of sexual

violence?

o Do you have direct contact with victims of sexual assault

o How many victims do you directly come in contact with yearly?

o What is the approximate period of time you have contact with an individual victim?
o What is the nature of your contact with victims?

•

o Do you or your program conduct interviews with victims?

o What is the purpose of the interviews?

o Are interviews conducted with both crisis calls and clients?

o What kind of information do you maintain? Type of assault? Age

of victim and assailant? Length of relationship?

Previous occupation (if relevant)

o What was your previous occupation? o How long did you perform those duties? o What were your responsibilities? o Did you have direct contact with victims of sexual violence? o What was the nature of that contact? o Have you had any other relevant job experience with victims of
sexual violence?

Education

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• • 
 •

o What is the highest degree you have obtained? 
 o What was your area of concentration? 
 o Did you conduct any fieldwork related to sexual violence? 
 o Have you conducted research in this area? o Were the results of your study developed into a paper? Were they
published?
Professional affiliations (if relevant)
o Do you belong to any professional organizations or associations? Any related to sexual violence?
o What is the nature and purpose of those organizations? o Do you belong to any county, state, or national organizations
which specifically address sexual violence issues? o What is the purpose of those organizations? o Are you involved with any committee work of these organizations?
What is that nature of that committee work?
Training
o When you began your work at your program, did you receive any training in the issues of sexual? Please describe that training
o Have you received any additional training in sexual issues? Please describe that training
o Have you conducted any trainings yourself? o What were the topics of the trainings? o For whom did you conduct the trainings? o For what purpose were the trainings designed? o How many attended the trainings? o How often do you conduct such trainings?
Conferences
o Have you attended state or national sexual violence conferences? o Who sponsored the conference? o What was the purpose of the conference? o When and where was the conference? o Did you attend any workshops relevant to sexual violence issues? o Have you conducted any workshops or presentations at these
conferences?
269

Previous Expert Testimony o Have you testified previously in court?

•

o Was it a criminal or civil case?

o How many times?

o For the defense or the prosecution?

After laying this foundation, it is important that you proffer your

expert as qualified in as broad an area of expertise as needed. It is too

narrow to suggest, for example, that the expert is qualified in the area of

delayed reporting, for example. Rather, the expert should be recognized as

qualified to testify regarding the effect of sexual assault on victims, and the

common victim response to trauma in sexual assault cases. Once the expert

is qualified, questions to him or her should immediately begin educating the jury. The questions should focus on telling the jury what they do not know.

•

The following introductory questions can be used to educate the court and

jury about sexual violence, as well as to explain victim behavior and dispel

rape myths.

• Testimony About Myths Surrounding Sexual Violence
o Do you give presentations to civic groups, schools, and other public forums on issues associated with sexual assault or have other opportunities to talk with members of the public about those issues?
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 •

o Have you found the public to be well informed about sexual assault- how it happens, and how victims react? This addresses common misperceptions and this is where you can hone the facts in the case that are at issue.
o Does the public have misconceptions about sexual assault? (Typical answer: Yes. They expect them to report immediately, etc. . . . They believe that there is a set of behaviors and responses that a "real victim" should exhibit.)
o From your experience, how do most people develop these misconceptions?
o Are you familiar with any articles or books (or have your attended any trainings) discussing the myths versus the realities of sexual violence?
o Based on your experience, do all victims behave the same way? 

• Testimony About Victim Behaviors
o Based upon your experience, training, education, and work with victims of sexual assault, what are some common victim behaviors/reactions to assault?
o Do all victims behave the same way?
o Through your numerous experiences with sexual assault victims, have you gathered insight into the reasons why a victim may behave a certain way?
o Based upon your experience, please explain the reasons.
271

o In your experience, do victims of sexual assault generally

•

report that they have been sexually assaulted right away?

o Do some never report or report only years later? Why is that?

o Do all sexual assault victims characterize what happened to them as a crime or violation?

o Have you personally observed victims having difficulty relating the actual facts of the violence? Why is this so?

o Do some sexual assault victims minimize their experience of

a sexual assault or the impact she has endured?

o Based on your knowledge and experience, is it possible that

someone could be sexually assaulted and not acknowledge

that it was a crime? o Why does that happen?

•

o Based on your knowledge, training and experience, what is the impact of a traumatic event like sexual assault?

o Is it unusual for victims of sexual assault to disclose in layers?

o For example, have you ever had a sexual assault victim who

when initially asked by police about what happened, gives a

very brief account, and then later more details come out?

The answer will be something like: Yes, they may not have

been able to provide all the details for many reasons. They

may not have been able to recall the details because of the

traumatic impact on memory recall. They may have made a

conscious decision not to give all the details because of lack
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•

•

of trust and rapport with the officer. Victims respond according to recall and trust.

o In your experience, do victims sometimes deny the level of violence as the incident passes in time?

o Have you ever had a victim tell you they used some sort of illegal substance, like marijuana, but did not tell the police that information?

o Does a victim of trauma recall the event exactly or precisely in the order in which it occurred?

o When you talk to victims of sexual assault, do you expect them to be able to give you a linear, chronological and complete narrative of the incident? Why?

•

o From your experience, is it common for a victim of sexual violence to completely deny the incident? Why?

o From your experiences with sexual assault victims is it common for victims to be reluctant to testify by the time the trial occurs? Why?

o From your experience, do victims sometimes deny the incident of violence as time passes? Why?

o How does that relate to the dynamics of sexual violence?

o Is it common for the victim to protect the offender? Why?

o Does every victim react to the trauma of sexual assault in the same way?

•

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o Is it uncommon for a victim to show little emotion, or even

•

exhibit seemingly inappropriate emotions, when asked to

recount the trauma of sexual assault?

o Do some victims even react angrily?

o What are some of the reasons you have discovered for this behavior?

o Based upon your experience, are you aware of victims who have maintained contact with the individual who allegedly assaulted them?

o What are some of the reasons for this behavior?

o Have you interviewed the victim in this case?

o Have you interviewed any witness connected with this case? •

o Are you familiar with the facts of the case?

o Is your testimony today based on your experience, training, education, and work with victims of sexual assault?

• Cautions about "Rape Trauma Syndrome" and "Post Traumatic Stress Disorder" Using the term Rape Trauma Syndrome (RTS) in a criminal case is
inappropriate, not only because it misleads the jury into believing that the victim suffers from a mental or emotional disorder - a "syndrome,' but because it unnecessarily and wrongly pathologizes the victims of crime.
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Calling something a "syndrome" also assumes that it has a beginning,

middle and end, which is not the case with traumatic response. Rape Trauma

Syndrome (RTS) was first coined by Ann Burgess and others as a way of

describing a constellation of'symptoms that they observed among survivors

of sexual assault in their clinical practices. The use of the term RTS began

as a clinical tool; however, it has never become a diagnosis on the

Diagnostic and Statistical Manual of Mental disorders (DSM), and was

never intended to be a diagnosis of any disorder or syndrome.

• 


PTSD is in fact a recognized disorder in the DSM. However, not all victims of sexual assault will be diagnosed with PTSD, and whether they are is not relevant. It is the behavior of sexual assault victims in general that needs to be explained to the jury in order to assist them in understanding the issues in the case before them, not whether those behaviors are part of any recognized diagnosis. It is better practice to talk in terms of common reactions to the trauma of sexual assault. That has the added benefit of often being based in large part on the expert's experience working with sexual assault victims. This approach also allows the expert to recognize that each victim is unique, their manner of reacting to the trauma of sexual assault is

•

275

unique, and if that behavior seems non-intuitive to the jury it can be explained by an expert with appropriate experience.

•

The National District Attorneys Association has endorsed the use of "blind" expert testimony to assist the jury in fairly assessing a victim's behavior:

Prosecutors must explain victim behavior to provide jurors

with an accurate context in which to evaluate victim behavior

so that jurors do not misjudge certain conduct as evidence of a

victim's dishonesty and incredibility. Many courts have

recognized that expert testimony is necessary to prevent jurors

from misjudging the victim based upon their misperceptions

of victims. For example, in u.s. v. Rynning, a case involving
child sexual abuse, the Unites States Court of Appeals for the Armed forced noted: "the victim's behavior will not

•

necessarily undermine his or her credibility if an expert can

explain that such patterns of counterintuitive behavior often

occur in sexual abuse cases.' Prosecutors therefore, should

consult an expert - social worker, therapist, counselor,

psychologist or physician, among others - to explain victim

behavior to the jury. If the prosecutor does not address and

attempt to explain victim's behavior, either through expert

testimony or the victim herself, the jury will be left without

the proper context in which to evaluate her credibility.54

54 Introducing Expert Testimony to Explain Victim Behavior in Sexual and Domestic Violence Prosecutions, p.9, National District Attorneys Association/American Prosecutors Research Institute (2007).
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•

• • •

The Montana Supreme Court has recognized that victims of sexual abuse respond with seemingly "puzzling and contradictory behavior." State v. Robins, 2013 MT 71, ~ 16,369 Mont. 291, 297 P.3d 1213. An expert's testimony in this regard was challenged in Robins, a case involving the sexual assault of a child.
The Montana Supreme Court stated of Dr. Dutton, the State's expert:
Dutton's testimony qualifies under M. R. Evid. 702 as educational testimony on a to~ic outside of most jurors' common experience. Dutton s testimony was intended to help the jury comprehend some ofC.G.'s beliavior that might have otherwise seemed inconsistent with abuse. For example, Dutton explained that it was not unusual for sexual aouse victims to not report the abuse, especiallY when the victim has a close relationship with the offender, or for the victim to act inappropriately when discussing the abuse. Dutton also may have helped tlie jury see Robins's actions as a pattern of abuse. Dutton's testimony did not impinge upon the jury's obligation to ultimately decide C.G.'s crediollity; it merely allowed the jurors to make an informed decision. Id. ~ 17 (emphasis added). The Montana Supreme Court has also held that expert testimony of this kind is admissible in cases involving adult victims of sexual assault and domestic violence. In State v. Brodniak, expert testimony on rape trauma syndrome in a case involving an adult victim was found to be generally admissible, although the expert could not testify as to the victim's credibility. State v. Brodniak, 221 Mont. 212, 222; 718 P.2d 322,329 (1986). In State v. Liddell,
277

the Court found that "psychiatric testimony is admissible to aid a jury in determining whether there was consent to engage in a sexual act which all parties agree occurred. It remains up to the jury to determine whether the evidence is credible." State v. Liddell, 211 Mont. 180, 188; 685 P.2d 918, 923 (1984).
In State v. Ankeny, a social worker testified in a domestic violence case that it was not unusual for victims of domestic violence to recant. The Court noted that the social worker "did not offer any opinion or testimony relating to the fact or parties involved in this case. Instead, the purpose of his testimony was to educate the jury as to why victims of domestic violence often recant." State v. Ankeny, 358 Mont. 32; 243 P.3d 391, ~42 (2010). The defendant in that case made a claim similar to the one being made in the case at bar - that the testimony went to credibility and therefore invaded the province of the jury. Id. at~41, 42, The Court noted the precedent that [t]he test for admissibility of expert testimony is whether the matter is sufficiently beyond common experience that the opinion of the expert will assist the trier of fact to understand the evidence or to determine a fact in issue." Id. at ~43. The Court in Ankeny also looked to their holding in State v. Stringer, in which expert testimony was allowed because
278

• • •

•

the evidence was not offered to bolster [the wife's] testimony, but to provide the jury with an explanation for the inconsistencies in her

testimony. Furthermore, the expert did not comment as to which of

[the wife's] statements were more credible or offer an opinion on

whether [the wife] is a battered spouse. Rather, she merely provided

the jury with information to aid the jury in evaluating the evidence.

This type of limited testimony does not invade the jury's role in

determining the credibility of witnesses. Ankeny at ~44.

• 
 •

Prosecutors need to be prepared for the challenges experts in this arena typically face, and need to make sure that the expert is prepared too. It is imperative that the prosecutor meet with expert ahead of time, find out how he or she would address any challenges, be prepared to rehabilitate the expert after cross examination if necessary.
Defense Experts Although Mont. R. Evid. 703 permits experts to rely on inadmissible
evidence in forming their opinions, the Montana Supreme Court has made it clear that Rule 703 "does not give a witness permission to repeat inadmissible out-of-court statements to bolster his or her expert opinions before a jury." Perdue v. Gagnon Farms, Inc., 2003 MT 47, ~ 34,314 Mont. 303, 65 P.3d 570. A district court should carefully evaluate the proposed statements and determine pursuant to Mont. R. Evid. 401 through 403 whether the statements are relevant, and if so whether the probative value of
279

the evidence is substantially outweighed by the danger of unfair prejudice.

•

See State v. Van Dyken, 242 Mont. 415, 428, 791 P.2d 1350, 1358 (1990).

In Van Dyken, the Defendant similarly tried to avoid cross-

examination of his statement by offering it through his expert witness. Van

Dyken, 242 Mont. 415 at 429, 791 P.2d at 1358-59 (1990). The district court

prohibited the expert from testifying to the Defendant's out of court

statements regarding the events surrounding his charges because they were

inherently unreliable. The district court explained that permitting an expert

to "repeat defendant's version [of the events at issue] would be to throw out

the other rules of evidence and to ignore the time-honored reasons for excluding hearsay and unreliable evidence." Van Dyken, 242 Mont. at 429,

•

791 P.2d at 1359. The Montana Supreme Court agreed, holding that the

district court properly exercised its discretion prohibiting this end run on the

rules of evidence. See Id. at 430.

Cross-Examination of the Defendant

The purpose of cross-examination of the defendant in a sexual assault

case is typically governed by the same basic principles for cross examining

any witness at trial. Remember the defendant has a lot at stake and will

most likely attempt to portray an account of a forcible sexual assault as
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•

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consensual in nature, or that in some way the victim is accountable for what

occurred. This is true if the defendant has not given a previous statement to

law enforcement, but is equally true if the defendant provided a statement to

law enforcement that may initially appear to be inculpatory. Prepare for the

fact that the defendant's testimony may be substantially different than the

initial encounter with law enforcement, and inconsistent with the victim's

account of the assault.

• 


Preparation for cross-examination of the defendant needs to occur at the earliest stages of the investigation and prosecution. The prosecutor needs to be well prepared on the rules of evidence and the techniques used to impeach in order to conduct a cross-examination of the defendant with as little interruption from the court and opposing counsel as possible.

The main goals of cross-examination are to: • Provide favorable information for your case; • Discredit unfavorable information to your case; • Discredit the defendant as a witness;
• Discredit other defense witnesses;
• If necessary, establish the foundation for the later introduction of other evidence.

•

281

It is extremely likely that the testimony of the defendant will have been well prepared, and in addition, the defendant has had the

•

opportunity to hear all of the testimony in the case and will be prepared

to exploit any weaknesses in the State's case. This is not the time to get

into an argument with the defendant as to how the assault occurred.

Evaluate the direct testimony of the defendant using these criteria: Did

what the defendant said hurt the State's case? Can the damage done by

the defendant's direct testimony be fixed by cross- examination? Can I

establish favorable facts with this witness?

Often, the best approach on cross-examination is to establish favorable facts already testified to by the victim. For example, in an alcohol­

•

facilitated sexual assault cross-examination should be designed to elicit

concessions to signs of intoxication testified to by the victim or other

witnesses who observed the victim's behavior before and after the assault.

The cross-examination should be organized by topic and needs to

be thoroughly prepared before the defendant testifies and written in the

form of leading questions. It should also be conducted in a different

organizational format from the defendant's direct testimony. For example,

in alcohol facilitated-sexual assaults, the topics could be what

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• • 


corroborating witnesses were present, physical layout of where the assault took place, and the degree of intoxication of the victim. The main focus of the defendant's cross-examination should be preparing for the jury to hear your closing argument, establishing in advance which facts and exhibits support the conclusion you want the jury to reach. Questions should be designed and executed in such a way as to lead the jury to reach a conclusion. You do not want to ask the defendant to agree to the conclusion you want the jury to reach because it is unlikely that the defendant will concede it. You will also have to be prepared for executing alternative cross-examination questions as you force the defendant to choose one path over another, or to add questions depending on how the defendant and/or other witnesses testified at trial. It is also important to consider that shorter cross- examinations usually have more impact. Don't cross-examine on everything you can. Pick out the important points that will stick out in the jurors' minds.

Maintaining Control over the Defendant

Because the defendant will have been well prepared to withstand

cross- examination, control over the defendant and the examination is

•

critical to its success. Control is maintained by preparation in advance,
283

careful planning of the words of the question posed to the defendant, and

•

the manner in which the question is posed by the prosecutor.

If the defendant is reluctant to answer the question as posed it is

essential that the prosecutor maintain control over the defendant. The

primary way to maintain control over the defendant during cross-

examination is by asking questions that: (a) are short, one fact questions

that are based on facts; (b) are not conclusions or opinions; (c) do not

require the defendant to make an evaluation in answering the question; and

(d) do not contain words that are subject to disagreement.

The prosecutor should also maintain control over the defendant in

•

the manner the prosecutor allows the defendant to answer the question. If

the defendant expresses reluctance in answering the question posed, it can

demonstrate to the jury that the defendant is untruthful. If there is an

escalation of hostility between the prosecutor and the defendant during

cross-examination it is vital that the jury becomes upset with the defendant

and not the prosecutor.

If you are having difficulty with the defendant during cross-
examination there are a number of quick assessments you can use to see if
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• • •

the problem that is developing can be fixed by making sure the questions are properly framed:
• Your question is not leading; • Your question is too complex/multiple; • You are arguing with the witness; • You mischaracterize the witness's previous answer; • Your questions wander and do not progress to a conclusion.
Impeachment ofthe Defendant
A key component of cross-examination is impeachment of the defendant. The decision on whether to impeach a defendant on crossexamination can be the difference between a successful cross-examination and a failure that results in the defendant becoming credible in the minds of the jury. However, impeachment should not be conducted simply for its own sake.
Impeachment should be done only on an issue that is significant to the case, when what the defendant is asserting is truly implausible. If there is a significant amount of impeachment on several minor issues such that the number impacts the defendant's overall credibility, a longer crossexamination may be warranted.
285

Keep in mind that the defendant will have an opportunity to address

•

the impeachment on redirect examination through his attorney. Familiarity

with the evidentiary rules for the basis of impeachment is also essential.

Execution of the impeachment needs to be flawless in order to be

successful.

Ethical rules require that prosecutors be fair to the opposing party and counsel, and only ask questions that anticipate an answer for which there is good faith basis to believe will be admissible at trial.

Evidence of Defendant's "Good Character" Limiting the number of character witnesses a defendant may call in

•

support of his character is a proper exercise of the Court's discretion. Loux

v. United States, 389 F.2d 911, 917 (9th Cir. 1968). In Goggans v. Winkley,

159 Mont. 85,495 P.2d 594 (1972), despite the defendant's objections that

the defendant would be unduly and unfairly prejudiced if the court limited

the number of character witnesses he could call from five to three, the court

restricted the number of character witnesses the defendant was able to call to

three finding that such a number was sufficient. Id., 159 Mont. at 93.

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• • 


Montana Rule of Evidence 404(a), generally excludes evidence of a person's character for proving action in conformity therewith. The rule allows an exception for a defendant to present evidence of a "pertinent trait of character" to support an inference that he did not commit the offense. Rule 405 established the manner in which that testimony may be presented: by testimony as to reputation or testimony in the form of an opinion. Therefore, testimony that the Defendant is a generally good guy, for example, is irrelevant under Rule 403 to a pertinent character trait, has no nexus to sexual assault, and does not constitute reputation or opinion testimony under Rule 405. The Montana Supreme Court has held that it is improper to allow the Defendant to question character witnesses on the ultimate issue of the Defendant's guilt. State v. Smith, 1998 MT 257,291 Mont. 236, 967 P.2d 424. Specifically, the opinion testimony in Smith that was held to be properly prohibited was that, due to his good character, he was not capable of committing the offense. Id.

In Smith, the Court also noted its caution against allowing an expert to

give an opinion which, "instead of being an opinion embracing an ultimate

issue of fact, amounts to an opinion of guilt or innocence embracing all

issues." Smith, 291 Mont. at, 240, 967 P.2d at 427 (citations omitted). The

Court notes that caution "applies even more to opinions of non-expert

•

287

witnesses that, ordinarily, more prejudice than benefit is likely to be gained from such opinion testimony." Id., 291 Mont. at 24l. The Court cited

•

Montana Rule of Evidence 70 I, stating that it has "held that lay witnesses

may offer their opinions as long as those opinions are based on the

witnesses' own observations." Id (citing State v. Henricks, 201 Mont. 157,

164,653 P.2d 479, 482(1982)).

As noted above, Rule 404(a) requires character evidence to be

pertinent to the charge. Many states differ on whether or not truthfulness or

veracity is a pertinent character trait in a sexual assault, but the only

Montana case on point holds that it is. State v. Anderson, 211 Mont. 272, 686 P.2d 193 (1984). It is clear that any other character traits must be

•

pertinent to some aspect of sexual assault. In State v. Harper, 670 P.2d 296

(Wn. App. 1983) review denied 100 Wash. 2d 1035 (1984), the Court held

that a defendant's character trait for truthfulness was not a pertinent trait to

the charge of indecent liberties under Rule 404(a)(1) and, more importantly,

stated that the only pertinent traits were sexual morality and decency.

In most cases, the only pertinent character traits in a good character
defense are veracity and traits that fall into the realm of "sexual morality and
decency." Specific instances of good conduct are irrelevant in a Sexual
•288

•

Intercourse without Consent case. General opinions of the Defendant's

moral character or standing in the community are likewise irrelevant on the

issue of whether or not he would commit the charged offense.

• 


Countering Common Defenses to Sexual Assault There are a variety of defenses commonly seen in sexual assault
cases. At the crux of many of these defenses is the implication that the victim is lying about being sexually assaulted. This is tied to the myth that there are a high number of false reports of sexual assault. The defense may use a variety of explanations to argue why the victim is lying about being assaulted, however, they are mostly variations on a single theme - that the victim's claim of sexual assault is false. These defenses place the focus squarely on the victim, and when combined with other rape myths that blame the victim for her vulnerability (i.e. drinking alcohol/using drugs, a history of mental illness, lack of fighting back, consented to certain activities, etc.) they serve to diminish the credibility of the victim.

"He Said/She Said" Cases

One common refrain from defense attorneys is that sexual assault

•

cases are simply classified as "he said/she said" cases. The implication of
289

this defense is that the "only" evidence of the assault is the victim's own

•

statement, which has been contradicted by the defendant. Some of this is a

result of the nature of the crime itself; there are rarely witnesses to the

sexual assault because offenders tend to not assault their victims in front of

others. This enhances the importance of the victim's story, and again

allows the defense to focus on the victim's behavior, and in particular

those actions that depart from how we expect a "real" victim to behave.

The "he said/she said" problem occurs most often in cases in which:

(a) the victim knows the offender; (b) there is a lack of physical evidence;

or (c) the physical evidence does not prove the elements of the crime. The defense will often argue that the lack of physical evidence, particularly in

•

regard to injury, bruising, or tearing, equals reasonable doubt. This plays

into the common belief that a "real" sexual assault victim is one who

sustains serious physical injuries. The reality is, however, that most victims

do not experience physical injuries, apart from the sexual assault itself.

Even in cases in which there is physical evidence of sexual activity, (semen

for example) that evidence is no different than what would be left behind by

consensual sexual activity.

•290

•

In these types of cases, lack of consent is the crucial element the

prosecutor must prove. Unfortunately, the legal definition of consent

puts the focus squarely on the victim, and this plays into the defense's

attempts to portray the case as "he said/she said." Despite these

challenges, there are some ways in which a prosecutor can overcome

the "he said/she said" problem:

• 
 •

• Look for ways to corroborate the victim's story. Taking a broad view of corroboration can be helpful. Although it may not be possible to corroborate the assault itself, what other facts else can the investigation corroborate about the victims story? Can the timeline of the events leading up to and after the assault be corroborated? What about the demeanor of the victim? These are just a few examples of ways in which the victim's story can be corroborated. The more corroboration, the less the case is a "he said/she said" case.
• It is also possible that the defendant will corroborate much of the victim's story as well. Particularly in cases in which consent is the defense, the defendant may corroborate many of the facts leading up to and after the assault. If the defendant admits to many of the facts but for the one that would convict him - consent - it opens the defendant up to attack on cross examination.
• Consider calling an expert witness to address the confusing myths and misinformation constructed by defense attorneys. Expert testimony can help dispel some of the rape myths so that the jury avoids making a decision based on those myths or misconceptions.
291

Overcoming the False Report Myth One of the most common rape myths about sexual assault is that

•

there is a high incidence of false reports. One of the most frequently cited

studies on the false reporting of sexual assaults, the Kanin study, asserted

that the 41 % of sexual assault reports made to a Midwestern police agency

were deemed to be false over a nine year period. This study has

subsequently come under attack, and as noted in Chapter 2, more

methodologically rigorous research indicates that the percentage of false

reports is actually somewhere between 2-8%. In other words, the incidence

of false reports for sexual assault cases is no higher than for any other

cnme.

•

The key point is that when the facts of a sexual assault are

inconsistent with the expectations about what a "real" sexual assault looks

like, there is a tendency in our society to view these cases with heightened

suspicion. The defense will exploit these myths and argue to the jury that

because the facts of the particular case do not meet our societal

expectation of what a "real" sexual assault should look like; it must be that

the victim is lying about the assault.

•292

•

The traumatic nature of a sexual assault has a direct impact on how

a victim discloses the incident. Additionally, the rape myths that exist in

our society may cause a victim to experience high levels of guilt and

shame because the assault did not conform to the societal expectations of

what a "real" rape looks like (i.e. non-stranger offender, no injures/weapon

used, victim did not resist).

This self-blame may cause the victim to change the details of the

assault to make it sound more like the stereotype. While this can present

serious problems for the prosecution in terms of victim credibility, one of

•

the key strategies to overcome this challenge is to view the omissions, inconsistencies, and perhaps even untrue

statements as understandable. In no way

should these "problems" be confused with a false report. Layered reporting is also common, and can lead to opportunities for defense attorneys to exploit what they

can

..... .......... .

;~:!:il{/::::iJ;o)

victim cretlibility~ On'tf;ojii'

.

. 1

the ki!l~stl:·ate'i!:.te,

believe are inconsistent statements. An investigator or prosecutor who anticipates

is to vie;)t?w-"··0tvl<l,B.:,'" ",
inconsl~ti:il(:ies,
perhap;;~~fi .,,''''''''.....

•

these perceived credibility challenges can

293

then ask the victim in a non-judgmental manner for clarification of the relevant details. Other strategies that can be used to overcome the false

•

report defense:

• Prosecutors can avoid inconsistent statements made by the victim by

utilizing the professional expertise of a Sexual Assault Response

Team (SART) during the investigation. A SART is a

multidisciplinary response team (comprised of advocates, law

enforcement, sexual assault nurse examiners and prosecution) that

provides direct intervention to sexual assault victims as they interact

with the criminal justice system and coordinates effective

investigative and prosecutorial efforts in connection with a report of

sexual assault." Participation in a SART may reduce the number of

unnecessary professional contacts a victim has during the

investigation and therefore, reduce the likelihood of inconsistent

statements • Vertical prosecution is another strategy that will reduce inconsistent

•

statements. With vertical prosecution, victims are able to work with

the same prosecutor and investigator from the time potential charges

are first reviewed through the sentencing of the offender. Vertical

prosecution reduces the number of persons the victim has to share

her story with, thereby reducing the likelihood of inconsistent

statements. Vertical prosecution has also been shown to improve

conviction rates, reduce victim trauma, and provide more consistent,

appropriate sentencing. It is therefore considered best practice.

• Prosecutors can also overcome the false report myth by

corroborating as many details of the victims account of the incident.

Corroboration will highlight the accuracy of the victim's story and

thus bolster her/his credibility.

•294

• • 
 •

• Finally, the prosecutor could consider using an expert witness to educate juries on rape myths as well as specific information about trauma and its impact on memory and disclosure.
Lack ofPhysical Injury Society expects that a victim will physically resist a sexual assault
implies that jurors and judges expect to see injuries in a true sexual assault. Professionals who are educated about victim responses know that physical injuries are rare and that 70% of the time there are no injuries and 24% of the time there are minor injuries. Only 4% ofvictims ofsexual assault have serious physical injuries. Many cases involve minor physical injuries or physical findings consistent with, but not specific for, sexual assault.
It is also important to stress that sexual assault is a profound injury by itself. Psychological injury experienced by sexual victims is often overlooked or devalued. It is imperative for judges to know the destructive quality and the extended length of this psychological injury so that offenders can receive appropriate sentences. Witnesses close to the victim who can describe a before/after view of the victim can be critical in helping corroborate the victim's statement and making the impact of the assault clear to the judge at sentencing. The Consent Defense
295

Perhaps the most common defense, particularly in non-stranger assault cases, is the consent defense. This is also known as the "rape is not

•

regret" defense, or in other words, the victim engaged in, but now regrets,

the consensual sexual activity with the defendant. This defense may be

particularly common in cases in which the victim knows her offender. In

this strategy, the defense claims that in an effort to avoid being caught

cheating on an intimate partner, or taking responsibility for engaging in

sexual activity outside the relationship, the victim instead claims that she

was sexually assaulted.

What make these cases so difficult are the various rape myths that lead jurors to believe that these cases do not look like "real" sexual assault.

•

Given that the consent defense is most common in cases in which the

victim knows that defendant, we are already dealing with the myth that the

defendant does not conform to the cultural belief what an offender looks

like. Furthermore, even if there is DNA evidence, it is not helpful in

proving an assault occurred.

Defense attorneys will likely portray these cases as "he said/she

said" cases, as described previously. Additionally, the defense will focus

on the victim's behavior, particularly behaviors that contradict the rape
296

•

• • 
 •

myths that are pervasive in our culture - i.e. delayed reporting, lack of

injury, no weapon involved in the assault - and they will use these myths

to attack the victim's credibility.

c~j§'e~t\r#:jeltse cases
re,t!,tjlli;'inore time and. r~sources to prosecute;
successfullY;h~heJ'will l.;~'
require ide~!ifyiitgthe faB~i myths'impli~titild'bYJhe;T,;;;
lact$i"1i}:1'~; tlfe ,c,:a.~:,!.+f'.l.. i;'d th~n'
figt!c'fing o",'ih'i1w}to go .... :
ab,<: .re!146tlg!1temJ1They . 'tJui~e educating the'
JUpt, b:egi~ning in voir: dire.t
s(lthatthey do notvi~ik{:,·
tliese cases through: . . ofignoran ; ... .'

by thecul
.surriJundi~ig:~ex·.·

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sign(fj(]llnt'tiflfo.ulttlJj ,. ':'::titi~!!,:'Atifticularly in

. '. :oftil$pondliti)o qu:,:e,':s'..tii"J.''"J.siLs".:tlroun. d.r'ap:e
mytli~}..17ieprosecutor will " n~ed tll be veryfamiliar , 11'~th the iltvestigation, al1d.:;
JlJay need to ask for fo/~()>>:),
up investigation to ., P~\::'>

,eorroborate;tls many fll;cls> as possible. iWitho~.,cr:iS'

corroborative detail$~:tlie .

JUry tobUji'i:1,f' ' .

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thed~fense'1!,~~he:said/slie):;:.

said~~Jll'gllme!tt '

"' ',

Unfortunately, the statutory definition of consent invites this focus on the victim's behavior. This, combined with the defense's focus on the victim's behavior, presents a challenge for the prosecution.
Overcoming the Consent Defense
There are several strategies that prosecutors can use to overcome the consent defense.
Consent defense cases require more time and resources to prosecute

297

successfully. They will require identifying the rape myths implicated by

•

the facts of the case, and then figuring out how to go about refuting them.

They will require educating the jury, beginning in voir dire, so that they do

not view these cases through a lens of ignorance brought about by the

cultural stereotypes surrounding sexual assault. Victims will require a

significant amount of preparation, particularly in terms of responding to

questions around rape myths, such as why the victim didn't report right

away. The prosecutor will need to be very familiar with the investigation,

and may need to ask for follow-up investigation to corroborate as many

facts as possible. Without corroborative details, the jury is more likely to buy the defense's "he said/she said" argument.

•

Connect the Victim to Advocates

Victims of sexual assault have internalized many of the rape myths

that exist in our society. As a result, sexual assault victims may experience

self-blame, guilt, and shame after the assault. Victims of sexual assault also

fear the loss of privacy that often accompanies an individual's experience

with the criminal justice system. Finally, victims will have to deal with the

consequences of the assault long after the criminal justice process has run

its course.

•298

•

As a result, it is vitally important that the victim be linked with

supportive services during the criminal justice process. A victim advocate

is protected by privilege in Montana, which may help address some of the

victim's privacy concerns.

• 


Use Pre-Trial Strategies To challenge the consent defense, prosecutors can also protect the
victim's privacy through pretrial motions and prepare the victim for testimony - both direct testimony and cross examination. This includes prepping the victim for rape myth questions as well as addressing any inconsistencies that exist in the case.
Practice Offender-Focused Prosecution

One of the main ways a prosecutor can overcome the consent defense

- and the inevitable defense focus on the victim - is to develop an

offender-focused prosecution. One of the best ways to do this is to develop

an offender-focused theme to the case. The theme of the case is a one­

sentence statement which represents the thrust of your evidence. It is the

prosecutor's read on the human dynamics in the case, or on why the

defendant is guilty.

•

299

Although the theme will often depend on the facts of the particular case, there are some key traits of sex offenders that may be useful in

•

developing an offender-focused theme. For example sex offenders target

their victims based on vulnerability. This vulnerability often presents a

challenge for the prosecutor in the form of credibility issues. However, an

offender-focused prosecution will take some of the weaknesses/bad facts in

the case - which are often about the victim - and demonstrate that these

are precisely the reasons that the offender targeted the victim for the assault.

As a result, the prosecutor embraces some of the weaknesseslbad facts and

turns them into good facts and a strong case. Examples of strategies prosecutors can use to keep the focus on the defendant include:

•

• Defendant is a predator -- This keeps the focus squarely on the 
 defendant, and portrays the victim as a true victim, rather than one 
 who contributed to the defendant's acts. However, be aware that 
 using the term "predator" could, in some courts, be seen as 
 objectionable. In some courts, it may be safer to argue the 
 defendant abused his power or betrayed the victim's trust to get the 
 point that he is a predator across to the jury without drawing an 
 objection or risking a mistrial. 


• Defendant is a manipulator -- This presents the defendant as a 
 person who knew full well what he was doing every step of the way. 

All of his actions were directed toward the same goal - sexual 

assault. 


• Defendant is an opportunist -- While sexual assaults are

premeditated crimes, there may be cases in which the facts or the nature of the defendant don't lend themselves to portraying the
300

•

•

defendant as a predator or manipulator. This may be particularly true in cases in which the defendant is likely to appear to

Cor1toborqtton
p~(Je

the jury as sympathetic. In these situations,

the prosecutor can portray the defendant as

someone who exploited a situation and

assaulted the victim. This allows the jury to

convict the defendant even if they don't

believe the assault was "planned."

Corroboration Corroboration is probably the prosecutor's best friend in a consent

defense case. As part of the analysis of the case, the prosecutor should

develop a time line that includes everything leading up to the assault,

including what the victim and offender did after the assault. The

•

prosecutor should then corroborate as many facts as possible to bolster the victim's credibility. This includes what is often called micro

corroboration, which includes even the smallest details of her report. Even

these small details can help build the credibility of the victim. During this

process, the prosecutor may determine that there needs to be additional

investigation. While some of this may occur before filing the complaint,

corroboration should not stop once the complaint is filed. Although certain

avenues of investigation may be cut off once the complaint is filed, such as

interviewing the suspect, the prosecutor should not cease trying to

corroborate as many facts as possible leading up to trial.

•

301

Potential Areas of Corroboration • Victim's Post-Assault Behavior - What did the victim do after the

•

assault? Who did she talk to? What was her demeanor? This type 


of evidence can help establish that something traumatic happened. 


Did the victim develop problems in school, work, or in her 


relationships? Any of this evidence may help corroborate that the 


victim was sexually assaulted, because the victim could not fake 


these after-effects. 


• SANE Exam - Although injuries in sexual assault cases are 
 uncommon, any injury discovered by a SANE exam should be used, 
 no matter how small. Additionally, a victim who had a SANE exam 

may help counter the implication that she is lying. A SANE exam is 
 an extremely lengthy and intrusive procedure, and the prosecutor 
 may be able to elicit these facts in a way that refutes the implication 
 that someone would put themselves through such an exam without a 
 valid reason. 


• Expert Witnesses - An expert witness can corroborate the victim's

behavior by comparing it to other known victims of sexual assault.

This evidence is often termed "counterintuitive victim behavior"

evidence, and it helps disabuse the jury of common misconceptions

about sexual assault victims. This type of expert testimony is

•

admissible in Wisconsin.' Advocates who work with sexual assault

victims can be valuable resources for expert testimony.

• Details - Details provide concrete evidence as to the facts of a sexual 
 assault. Prosecutors should strive to provide and corroborate as many 
 details as possible, including: (a) photos of the crime scene and photos 
 of any injuries; (b) statements from any witnesses before or after the 
 assault; and (c) any other detail, no matter how small! Above all, be 
 creative and think big picture. 


Other Potential Defenses
Although the list below is not exhaustive, it does represent some of the more common defenses a prosecutor may encounter in sexual assault cases:
•302

•

• The victim is trying to cover up for her bad behavior

Ifthe pYQseeutof<is(l,D,le
to demonstrate tl.ht'iiii' '

• The victim is looking for revenge preCisajJfl},caua~""'>' ,

victim~Jf~qs vu

• The victim is a "gold digger."

'.' ilhe wu,s,targ

.~~:"~,/:;:~iic~ • The victim is looking for attention

• The victim is exchanging sex for drugs

foc~i~d d:/" '1$ will
lJ~~somfl:o; ;
~J,pact.

These defenses represent further

attempts to shift the focus to the victim's behavior. A prosecutor who

has engaged in the good factlbad fact analysis as described above may

•

identify some of these potential defenses early on in the case. After performing an evidentiary analysis of these potential defenses, there

may be pre-trial motions the prosecutor can file to limit these potential

defenses.

Additionally, an offender-focused prosecution can also help ensure

that the focus is not squarely on the victim. As discussed above,

offenders target their victims based on vulnerability. While this

vulnerability often presents challenges for the prosecution in terms of

credibility, if the prosecutor is able to demonstrate that it is precisely

•

because the victim was vulnerable that she/he was targeted for
303

S~~ojlendirs'4r~;.
mq~!~t~dJJy(~dbsire to

victimization, some of these more victimfocused defenses will lose some of their

•

~~rtp'{)wer.and;:: .

domt"nation over their,

impact.

victt"ms. Wht"le thet:i$.ji·

$fXual ttomp(Jnent t(),+.§y;,~

their bekQivior, s~ '. '.

" ,,>c,. gre arousedioy;

,~~ ~ >< ~ \ , . ,

~iant..stimuli

'

'.

.,

" ., ,

iiz iJyl#ch~ th(lll!,:~~:, .'

advantage ofthe victim's

The defendant is impotent/did not ejaculate.
This defense falls under the rape
myth that sexual assault means

,v~lnerabililY:~

penis/vagina penetration. Obviously, our

statutory definitions of sexual intercourse and sexual contact broaden the

definition of sexual assault to include acts other than penis/vagina

penetration (i.e. oral intercourse, digital penetration, etc.). Keeping the

•

focus on the statutory definition of sexual assault, which includes other

non-consensual sexual acts helps to limit the impact of this defense.

Additionally, sex offenders are motivated by a desire to exert power and

domination over their victims. While there is a sexual component to their

behavior, sex offenders are aroused by sexually deviant stimuli in which

they take advantage of the victim's vulnerability. Thus the fact that the

defendant is impotent does not negate his ability to be aroused by

sexually deviant stimuli.

•304

•

Closing Argument and Rebuttal

Your closing argument is also prepared before the trial begins and

should carry through the themes that were developed throughout the

entire trial and lead the jury to return a verdict of guilty on the charges

that are being tried. Many of the techniques about style and presentation

that are contained in the section regarding opening statements are

equally applicable in closing statements.

Your primary objective in closing is to get and keep the jury's

attention. The themes that were developed throughout the trial are now

•

brought together and repeated again for the jury as the facts support the

theme and theory. Now is the time to argue what the jury knows to be the

case based on the evidence that was presented, and how that evidence

meets the elements of the charges that the jury is considering. Remind the

jury by showing them again the particular pieces of evidence that establish

and corroborate the assault as recounted by the victim during the trial.

Emphasize portions of testimony, exhibits and other evidence

which forcefully and succinctly establish the guilt of the defendant and

•

do so in a manner that is consistent with your style and personality
305

Consider whether to save elaboration on some arguments for rebuttal based on what you expect the defendant to argue in the defendant's

•

reply. A strong opening in rebuttal with an emphasis that refocuses the

jury's attention on the defendant's conduct will add to a strong rebuttal.

•

•306

•

Chapter 9 ISSUES IN PLEA AGREEMENTS AND

SENTENCING IN SEXUAL ASSAULT CASES55

Plea agreements are a necessary and important part of the criminal

justice system. Without them, prosecutors would be able to pursue only a

small fraction of the cases they prosecute.

Plea agreements provide certainty to

victims, allow traumatized victims to avoid

the difficulties involved with testifying at

•

trial, and foreclose most lengthy appeal and post-conviction proceedings. In Santobello

cases:t~~j pr .
Pleli .,'

v. New York, 404 U.S. 260 (1971), the

Supreme Court characterized the

negotiation of plea agreements as "an

':ati

..

forec .:!"ost l'f~.ft~:·

essential component of the administration of

justice" that is "to be encouraged."

•

55 Portions of this chapter were excerpted and modified with pennission from: the Michigan Prosecutors Sexual Assault Prosecution Manual, published by the Domestic and Sexual Violence Prevention and Treatment Board and the Prosecuting Attorneys Association of Michigan (2013); and the Wisconsin Sexual Assault Reference Book, published by the Wisconsin Office of Justice Assistance (2009).
307

Plea agreements are contracts and are generally governed by contract principles. State v. Rardon, 2005 MT 129,327 Mont. 228, 115 P.3d 182. However, a plea agreement is a unique kind of contract. It is an agreement between a prosecutor and a defendant for the sole purpose of settling a pending criminal charge, or charges, against the defendant. See Section 46-12-211, MeA. Unlike other contracts, a plea agreement is not self-executing; it is contingent on approval by the court. The court is not bound by a plea agreement, and it may be accepted or rejected, in whole or in part. Upon sentencing, a plea agreement terminates. That is, once each party has fulfilled its obligations under the agreement (each party has performed), the plea agreement has served its purpose and any duties under the contract are discharged. The controlling document becomes the judgment and sentence, which embodies the plea agreement in whatever form the court accepted. Ronning v. Yellowstone County, 2011 MT 79; 360 Mont. 108; 253 P.3d 818.

• •

Section 46-12-204 MCA Plea alternatives.
(1) A defendant may plead guilty, not guilty, or, with the consent of the court and the prosecutor, nolo contendere. If a defendant refuses to plead or if a defendant corporation fails to appear, the court shall enter a plea of not guilty.
•308

• • 
 •

(2) The court may not accept a plea of guilty or nolo contendere without first determining that the plea is voluntary and not the result of force or threats or of promises apart from the plea agreement. The court shall also inquire as to whether the defendant's willingness to plead guilty or nolo contendere results from prior discussions between the prosecutor and the defendant or the defendant's attorney.
(3) With the approval of the court and the consent of the prosecutor, a defendant may enter a plea of guilty or nolo contendere, reserving the right, on appeal from the judgment, to review the adverse determination of any specified pretrial motion. If the defendant prevails on appeal, the defendant must be allowed to withdraw the plea.
(4) The court may not accept a plea of nolo contendere in a case involving a sexual offense, as defined in Section 46-23-502, except an offense under Section 45-5-301 through 45-5-303.
Section 46-12-211MCA Plea agreement procedure
(1) The prosecutor and the attorney for the defendant, or the defendant when acting pro se, may engage in discussions with a view toward reaching an agreement that, upon the entering of a plea of guilty or nolo contendere to a charged offense or to a lesser or related offense, the prosecutor will do any of the following:
(a) move for dismissal of other charges;
(b) agree that a specific sentence is the appropriate disposition of the case; or
(c) make a recommendation, or agree not to oppose the defendant's request, for a particular sentence, with the understanding that the recommendation or request may not be binding upon the court.
309

(2) Subject to the provisions of subsection (5), if a plea agreement has

•

been reached by the parties, the court shall, on the record, require a

disclosure of the agreement in open court or, on a showing of good

cause in camera, at the time that the plea is offered. If the agreement is

of the type specified in subsection (1 )(a) or (1 )(b), the court may

accept or reject the agreement or may defer its decision as to the

acceptance or rejection until there has been an opportunity to consider

the presentence report. If the agreement is of the type specified in

subsection (1)(c), the court shall advise the defendant that, if the court

does not accept the recommendation or request, the defendant

nevertheless has no right to withdraw the plea.

(3) If the court accepts a plea agreement, the court shall inform the defendant that it will embody in the judgment and sentence the disposition provided for in the plea agreement.

(4) If the court rejects a plea agreement of the type specified in

•

subsection (l)(a) or (l)(b), the court shall, on the record, inform the

parties of this fact and advise the defendant that the court is not bound

by the plea agreement, afford the defendant an opportunity to

withdraw the plea, and advise the defendant that if the defendant

persists in the guilty or nolo contendere plea, the disposition of the

case may be less favorable to the defendant than that contemplated by

the plea agreement.

(5) For purposes of this section, a disclosure of the agreement through

the use of two-way electronic audio-video communication, allowing

all of the participants to be heard in the courtroom by all present and

allowing the party speaking to be seen, is considered to be a

disclosure in open court. Audio-video communication may be used if

neither party objects and the court agrees to its use and has informed

the defendant that the defendant has the right to object to its use. The audio-video communication must operate as provided in 46-12-20l.
310

•

• • 
 •

Section 46-12-212 MeA Determining accuracy orplea.

(1) The court may not accept a guilty plea without determining that there is a factual basis for the plea in charges of felonies or misdemeanors resulting in incarceration.

(2) A defendant who is unwilling to admit to any element of the offense that would provide a factual basis for a plea of guilty may, with the consent of the court, enter a plea of guilty or may, with the consent of the court and the prosecutor, enter a plea of nolo contendere to the offense if the defendant considers the plea to be in the defendant's best interest and the court determines that there is a factual basis for the plea.
Consulting with the Victim
Prosecutors should meet with the victim and discuss plea negotiations

when a decision to prosecute has been made. One important consideration in

a prosecutor's initial meeting with the victim is ascertaining the unique

perspectives of individual victims, whether there are particular safety issues

that will need to be addressed at sentencing, collateral issues for victim, and the impact the case and criminal

tJ;'~ lniportallt cOllsideratioll in aprosecutor's UlZlIUI,· meeting witltthe.vlctlttl ascertaining

process on the victim.

A victim-centered response prioritizes the participation of victims in

will need to be addfe~~edat $e~t~nci~g,(:oIIiite~aI issues . iQ;~lh8.~·J#etim, alld the tmp4~it~e case anderiminal priiCi!s~;,;~;,. t#etvi(:tim~.

311

deciding the State's recommendation for the outcome. A victim-centered

•

response includes explaining the rationale for seeking a plea agreement and

asking the victims for their feedback when negotiation options are being

considered. Minimally, the prosecutor should:

• Educate the victim about the impact that the defendant's decision to 
 plead other than not guilty would have on the process and the 
 potential outcome. 


• Discuss plea agreement options with the victim and solicit their 


Victim:s' should be aware

feedback about what the prosecution is 
 seeking. 


that'the:plea agreement

('I}ll!tJcis~ is' /

• Keep the victim informed of what

'tliat\i~sues '. majarise duringtl'~ri.;!
f:(lurs,~i!:itl"~<!~;J,,"~G;(lh~tj'

plea agreement is being offered to the defendant before any plea agreement offer is made. Educate the victim on the process

•

iitily i;p~~t~~:change!!

of plea negotiations including the different types of plea agreements and the very

ne~otiatio", strategies~

broad options available to Montana judges.

• Be up front with the victim. Make sure she/he is aware that while their 
 thoughts and opinions are very important, and will be given due 
 consideration, ultimately it is up to the prosecutor to determine the 
 optimal way to proceed with plea agreement negotiations. 
 Victims should be aware that the plea agreement negotiation process
is fluid, and that issues may arise during the course of the case that may
impact or change negotiation strategies. The victim should be aware that the
plea offer may change based upon these new factors. The impact of the new
•312

•

factors should be addressed with the victim, before modification of the offer.

A plea offer on a sexual assault case should never be presented to a

defendant without first attempting to contact the victim.

Offender-Focused Approach The prosecutor should also approach plea agreement negotiations
from an offender-focused perspective. This includes consideration of the need for:

• 
 •

• The offender to be subject to Sex Offender Registration; • Prison/punishment; • Sex offender treatment - as part of a probation term or prison term as
a condition of sentence; • Specific deterrence - sending a message to the defendant that the
conduct will not be tolerated An offender-focused approach to plea negotiations that carefully
considers all of the offender's actions, behaviors and character is consistent with best practice. Any history of sex offenses or other crimes should be fully considered when determining a possible outcome through negotiations. An offender-focused approach does not end at conviction; it continues through sentencing, where the prosecutor can and should advocate for a
313

sentence that accurately reflects the true nature of the offense and the

•

offender.

Reviewing the Sexual Offender Evaluation Section 46-l8-lll(I)(b) MeA requires that the Pre-Sentence

Investigation and report of a defendant convicted of a sex crime include a

psychosexual evaluation of the defendant and a recommendation as to

treatment of the defendant in the least restrictive environment, considering

the risk the defendant presents to the community and defendant's needs,

unless the defendant is subject to mandatory life without release.

The evaluation must be completed by a sex offender therapist who is a member of the Montana Sex Offender Treatment Association or has

•

comparable credentials acceptable to the department of labor and industry.

The assessment of sexual offenders involves performing a comprehensive psychiatric evaluation, reviewing available police reports and criminal history, and contacting available collateral sources of information to verify information provided by the defendant.

If a Sexual Offender Evaluation has been provided to the State prior to
a plea of guilty or prior to a plea agreement being negotiated, the prosecutor
•314

•

should carefully review the evaluation and determine its impact on plea

negotiations.

When receiving a sexual offender evaluation report, the prosecutor should determine the following:

• 


• Whether the report prepared in accordance with the MSOTA Standards for Evaluation and Ongoing Assessment of Adult Sexual Offenders (see msota.org).
• Whether the evaluator contacted collateral sources to verify the information provided by the defendant.
• Whether, pursuant to the evaluation, the defendant is amendable to treatment
• Whether a tier level indicating whether the defendant is a low, 
 moderate, or high risk to reoffend. 


Plea Agreement Limitations Prosecutors have the discretion to resolve cases according to the

strength of the evidence, the victim's needs and wishes, community safety

concerns, and the individual facts and circumstances of each case and each

offender. However, in recognition of the fact that: 1) most sex offenders are

serial offenders; 2) treatment is ineffective if the offenders refuse to admit

their conduct; 3) sexual offenses are serious criminal offenses; and 4)

•

victims and the community as a whole need to see sexual offenses treated
315

seriously and as consistently as possible, some limitations on plea agreements are appropriate.

•

The prosecutor shall not enter into a deferred prosecution agreement on a sexual assault case unless extraordinary circumstances exist and the County Attorney agrees to and signs off on the agreement. If approved, a memo must be place in the file explaining the rationale for the agreement.

The prosecutor shall not amend a sexual assault charge to a non­

sexual assault offense (i.e. criminal endangerment) pursuant to a plea

agreement without the permission of the supervising attorney. If approved a

memo must be placed in the file explaining the rational for the amended

•

charge.

The prosecutor shall not amend a felony offense to a misdemeanor offense pursuant to a plea agreement without the permission of the supervising attorney. If approved a memo must be placed in the file explaining the rational for the amendment to a misdemeanor charge.

The prosecutor shall not enter into a plea agreement that allows the defendant to enter a plea of nolo contendere in a case involving a sexual

•316

•

offense, as defined in Section 46-23-502, except an offense under Section

45-5-301 through 45-5-303.

The prosecutor shall not enter into a plea agreement that calls for a recommendation for deferred imposition of sentence, where allowed by statute, unless extenuating circumstances exist and the supervising attorney has approved the agreement. If approved a memo must be placed in the file explaining the rational for the recommendation of the deferred imposition of sentence.

• 


The prosecutor shall not enter into an agreement that allows the defendant to plead to a sexual assault offense pursuant to an Alford Plea, unless extenuating circumstances exist and the supervising attorney has approved the agreement. If approved a memo must be placed in the file explaining the rationale for allowing the defendant to plead via an Alford plea. See North Carolina v. Alford, 400 U.S. 25 (1971).

•

317

Chapter 10

•

COORDINATION WITH COMMUNITY PARTNERS

The community's response to sexual violence directly impacts when,

where and how a victim seeks medical and legal help, the victim's trust in

and cooperation with the criminal justice

AI'l,MDTisa

process, and the extent to which the offender is held accountable. A coordinated, victim-

cqliafjolattdltiJ.f
rf!pre*{(tlt·~ ~

v,ari'O. U"sc:',. ,

.

. .;:"c.~:f?,>

1'$111'>,

th~communitythat '

centered response includes good and

, 6vlIJlltPte
impr(J~e. tltitfJ;~rall··

frequent communication between law enforcement, prosecutors, advocates,

criminaljustice:systel'l'tS;

,respoltse'tfJ sexual,~ >~:>;;,

aass~~u~ltfcri~mets"aannd/~or lIs;;

•

medical health professionals, and other

a t

',\, agencies. Forming a multi-disciplinary team 'C.t,Fl'~lCt~"e~O:~'Q.&,:rimiFJalj.u~ st:i~.,"eU':.~0~x:­,:<..:~~"<:t>':.'··~;~~,·'',

system•. ~ttindividli'"al

(MDT), also referred to as a Sexual Assault membe'rs;'o/an MDT

have different roles, but ~ ~

Response Team (SART), can make a

each co1ttributes to the"

significant improvement in a community's

others' work.

response to the crime of sexual violence.

A sexual assault MDT is a collaborative, multidisciplinary team of

representatives from organizations and agencies that respond in some way to

the crime of sexual assault. The MDT approach is a community-based
318

•

• • •

problem solving approach. An MDT is a collaboration of representatives from various organizations in the community that works to evaluate and improve the overall criminal justice systems response to sexual assault crimes, and/or as a case processing and evaluation tool in individual sexual assault cases moving through the criminal justice system. The individual members of an MDT have different roles, but each contributes to the others' work.
Studies of communities with active, well-functioning MDTs have revealed many improvements to the response to sexual assault, including:
• Better, more victim-centered care for victims in the acute stage; • An increase in the number of victims coming forward for help; • More requests for advocacy services by victims after the acute
stage; • More medical and mental health follow-up services accessed by
victims after the acute response; • Better quality of evidence collection and a more consistent use of
evidence and expert witness testimony during prosecution; • An increased percentage of victims reporting their assault to law
enforcement; • Victims expressing greater satisfaction with the acute care they
received from medical personnel and law enforcement, as well as a
319

greater confidence in the legal system's ability to achieve a form of • justice for them;

• More law enforcement cases referred to the prosecutor for review;

• More cases ending in findings of guilty.56 In similar research, the American Prosecutors Research

InstitutelNational District Attorneys Association confirmed that the

SANE/SART intervention model is a valuable tool in the criminal justice

system's ability to effectively respond to adult sexual assault cases. One

finding of particular note was the importance of the SANE/SART

intervention in collecting and preserving valuable

Missoula';Jttjs a·

evidence for prosecution, including DNA evidence.

lonl/~tandingMl)T
1I!::~~iftJ; to .

•

Missoula's Collaborative Response - the Just

Response MDT

Missoula has a longstanding MDT which

responds to adult and child sexual assault. In acknowledgment of the fact

that historically, the criminal justice system's response to sexual assault

mirrored the larger community response and often re-victimized those whom

it is supposed to protect, the MDT was developed through the efforts of a

56 Oregon Attorney General's Sexual Assault Task Force, SART Handbook, p.2

•320

•

number of dedicated individuals from various agencies over the course of

several years.

Team Members

Now organized under the umbrella of Just Response, which coordinates Missoula's MDTs addressing adult sexual violence, child abuse, and domestic violence, the MDT includes representatives from:

• 
 •

• Missoula County Attorney's Office

• Missoula Police Department

• Missoula County Sheriffs Office

• Missoula County's Crime Victim Advocate program

• YWCA of Missoula

• Student Assault Resource Center at the University of Montana

• University of Montana administration; .-~-----------------.
• Mental health;

• St. Patrick Hospital/First Step 


Resource Center; 


• Youth Court; • Department of Child and
Family Services.
Mission Statement and Guiding Principles
The Just Response MDT continues to develop and improve Missoula's

\; ." 'soula '$i~f'ilt~!,ar:'

jtts'::t~iY!e;?".'sy.'•s.~t'e:m anl/); 'f,7:c~.\'&:':'~~::n:"~:"f~"~'i:i;.':.I..~.~ .¢.fllJlmunlty·to prove vlctlln
.~;"J;ety and healing and. ,.•

offender . '.' ::/""''''k-k'

"

i11/i~rease

~

", v

,

·~/·.. ·'~~~ntability il~J0;:< '.';' '.

r~jfitiiJnshipl'ioi~n~e,! ....t:~

s~1 violence·'ltltd ci,iliJ .

abil~~'·cases. .<l":"? ;'

coordinated response to sexual assault. Just Response is an interagency

321

network of dedicated people who unite Missoula's criminal justice system

•

and community to prove victim safety and healing and increase offender

accountability in relationship violence, sexual violence and child abuse

cases. The team builds supportive, accountable

relationships, shares information, and provides training to improve the system and provide continuity of victim services at any point of entry. This response is both victim-centered and offenderfocused. Ultimately, a victim-centered and offenderfocused response strives to hold the offender fully accountable for the sexual assault while at the same time respecting the victim's needs. The Just Response MDT is the key to creating and sustaining this response among all organizations that respond to victims and offenders.

While p~osecuto,t~l¥tre
responsible/o.;~\: .. . ...
ting~eharging!~nd.
. . .ihiJf(:ase, tht!J ;~
catlnot succeed l~itliout .i
the work and!~,!;'p~rtol . . ' ,plpviclerlid~:' .

. '. .. ~cilmimt,{;,}:;
Inedicalpto/ession,is;

statf!;.·~rime IPr:bs;,.' i«lllloctites, 'and~tJth .

·altled:Pf,jessionals.. Missoula COli ..

!l.ttor~~l!Y 's '. i.'1l.""la}t.~·.tF#'.a;.n.·.

rol_ln. . . '" .":.''A,,•i•

tke initiatantl ctjJ't#nued~

developme.n . .teaRt'
~Jspd1z~td.'sexua >~i~;~~':;;

assault 'in Missoula.

A formal MDT with a written mission statement, guiding principles, and officially adopted community response protocols is more likely to be sustained long-term and to survive the inevitable changes in membership, as well as providing a forum and a mechanism for resolving conflict among
•322

• • •

team members in a way that keeps members participating, rather than allowing conflict to weaken the collaborative partnership.
To that end, the Just Response MDT member agencies have come together to define common objectives and goals that work towards accomplishing its mission. The team has developed protocols for its responses to sexual assault, child abuse, and domestic violence which are reviewed and modified as the teams develop.
The Just Response Sexual Violence Team members meet regularly to review policy and procedure and to trouble-shoot areas in which problems are identified. The team also meets monthly for a confidential review of challenging or problematic cases in order to improve the response in those cases and in future cases. These meetings provide a forum for members to resolve occasional disagreements about how any particular case has been handled by one or more of the members. The team periodically engages in trainings to further its work.
323

The Just Response Sexual Violence team members regularly engage in conversations to reach a shared understanding of their respective roles and

•

responsibilities in working with victims of sexual assault. Team members

regularly bring to the surface, explore and understand the roles and

limitations that each member may have in responding to sexual assault in the

community. These discussions often focus on confidentiality and

information sharing, as the goal of providing seamless and supportive

services to victims is always at the forefront of the discussion.

Understanding the different roles, limitations, and obligations has

resulted in vast improvement in relationships between member agencies and has significantly reduced the frustration and miscommunication that was

•

previously common. Team members now have accurate expectations of

other members of the team and are able to better coordinate efforts on behalf

of a victim. Team members are in frequent contact outside of the formal

team meetings, coordinating efforts on behalf of victims. The team has

found that this improved interagency communication improves the criminal

justice response and minimizes the trauma for sexual assault victims when

they seek medical and legal help in the community. A recent review of cases

found that approximately 2/3 of sexual assault victims over the age of 16
•324

•

who seek medical care and assistance at the First Step clinic report their

assaults to law enforcement.

While prosecutors are responsible for evaluating, charging and trying the case, they cannot succeed without the work and support of health care providers, law enforcement, medical professionals, state crime labs, advocates, and other allied professionals. The Missoula County Attorney's Office has played an active role in the initial and continued development of the team response to sexual assault in Missoula.

• 


In addition to the formal team, informal communication between team members is frequent. The Missoula County Attorney's Office and the Missoula Police Department Special Victims Unit investigators meet weekly to discuss cases.

•

325

REFERENCES

•

CHAPTER!

Campbell, R. (2008). The psychological impact of rape victims' experiences with the legal, medical, and mental health systems. American Psychologist, 68, 702-717.

Lisak, D. and Miller, P. (2002). Repeat Rape and Multiple Offending Among Undetected Rapists, Violence and Victims, l7:l.

Salter, Anna C. (2004). Predators; Pedophiles, Rapists and Other Sex Offenders New York: Basic Books.

Ullman, Sarah E. (2010). Talking about sexual assault: Society's

response to survivors. Washington, DC, US: American Psychological

Association.

CHAPTER 3

•

American Psychiatric Association. (2000). Diagnostic and statistical manual of mental disorders (4th ed., text revision). Washington, DC: Author.

Ballenger, J.C., Davidson, J.R.T., Lecrubier, Y., Nutt, DJ., Foa, E.B., Kessler, R.C., et al. (2000). Consensus Statement on Posttraumatic Stress Disorder from the International Consensus Group on Depression and Anxiety. Journal of Clinical Psychiatry, 61 [suppl 5], 60-66.

Campbell, R. & Wasco, S. (2005). Understanding Rape and Sexual Assault: 20 Years of Progress and Future Directions, Journal of Interpersonal Violence 20 (1): l27-l3l.

Campbell, R. (1998). The Community Response to Rape: Victims' Experiences with the Legal, Medical, and Mental Health Systems, American Journal of Community Psychology 26(3): 355-379.
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 •

Campbell, R. (2008). The psychological impact of rape victims' experiences with the legal, medical, and mental health systems. American Psychologist, 68, 702-717.
Clum, G. A., Calhoun, K. S., & Kimerling, R. (2000). Associations among symptoms of depression and posttraumatic stress disorder and self­ reported heath in sexually assaulted women. Journal of Nervous and Mental Disease, 188,671-678.
Fanflik, P.L. (2007). Victim Responses to Sexual Assault: Counterintuitive or Simply Adaptive, Washington, D.C.: American Prosecutor's Research Institute, Office of Violence Against Women.
James, R. K., & Gilliland, B. E. (2001). Crisis intervention strategies (4th ed.). Belmont,CA: Brooks/Cole.
Kessler, R.C., Sonnega, A., Bromet, E., Hughes, M., Nelson, C.B. (1995). Posttraumatic Stress Disorder in the National Comorbidity Survey. Archives of General Psychiatry, 52, 1048-1060.
Kilpatrick, D. & Seymour, A. (1992). Rape in America: A Report to the Nation, Arlington, VA: National Victim Center.
Koss, M. P., Bailey, J. A., Yuan, N. P., Herrera, V. M., & Lichter, E. L. (2003). Depression and PTSD in survivors of male violence: Research and training initiatives to facilitate recovery. Psychology of Women Quarterly, 27, 130-142.
Lisak, D. (2002).The Neurobiology of Trauma. Unpublished article. University of Massachusetts Boston. Available online at: http://www.nowldef.org/html/njep/dvd/pdf/neurobiology.pdf.
Marx, B.P., Forsyth, J.P., Gallup, G.G., Fuse, T. Lexington, J.M. (2008). Tonic Immobility as an Evolved Predator Defense: Implications for Sexual Assault Survivors. Clinical Psychology: Science and Practice, 15(1), 74-90 .
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Perkonigg, A., Kessler, A.C., Storz, S., Wittchen, H-U. (2000). Traumatic Events and Post-Traumatic Stress Disorder in the Community: Prevalence, Risk Factors and Comorbidity. Acta Psychiatr Scand, 101, 46­

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59.

Regehr, C., Cadell, S., & Jansen, K. (1999). Perceptions of control and long-term recovery from rape. American Journal of Orthopsychiatry, 69, 110- 114.

Office for Victims of Crime. SART Toolkit: Resources for Sexual Assault Teams, found at: http://ovc.ncjrs.gov/sartkit/focus/understand­ print.html, May 14,2012.

Center for Substance Abuse Prevention. SAMHSA. 5 Stages of Recovery, found at http://pathwayscourses.samhsa.gov/vawp/vawp_5~g 12.htm, May 12, 2012.

Ullman, Sarah E. (2010). Talking about sexual assault: Society's

response to survivors. Washington, DC, US: American Psychological

Association.

•

White Kress,V. E., Trippany, R. L., & Noland, J. M. (2003). Responding to sexual assault victims: considerations for college counselors. Journal of College Counseling, 6, 124-133.

CHAPTER 4

Abbey and Ortiz, Alcohol and Sexual Violence Perpetration, , available at http://www.vawnet.org/applied-research-papers/print­ document.php?doc_id= 1586

Abel, et. aI., (1987). Self-Reported Sex Crimes of Nonincarcerated Paraphiliacs. Journal of Interpersonal Violence, 2(1): 3-25.
Organization (2011). Best Practices Checklist, Baltimore SART Annual Report, October 2011.
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http://www.ncdsv.org/images/MCASA_BaltimoreCitySARTAnnualReport_ October2011.pdf.

Canaff, R. Of Angels, A Stranger, and an Absent Father, available at
http://rogercanaff.com!site/20 III III0 f-angels-a-stranger-an-institution-and­
an-absent-father/

Cook et al. (1999) Victim's Needs, Victim's Rights: Policies and Programs for Victims of Crime in Australia. Australian Institute of Criminology Research and Public Policy Series, 19: 19-20.

Norris, 1. The Relationship Between Alcohol Consumption and Sexual Victimization, http://www.vawnet.org/Assoc_Files_VAWnetIAR_AlcVictimization.pdf.

Strand, R. 15 Myths That Enable Sex Offenders, available at

http://www.safvic.org/members/news/documents/15Mythsthatenablesexoffe

•

nders- RussStrand- OOO.doc.
Weinrott, ? & Saylor, ? (1991). Self-Report of Crimes Committed By Sex Offenders, Journal of Interpersonal Violence, 6, 286-300.

• 


CHAPTER 6
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Abel, et. aI., (1987). Self-Reported Sex Crimes of Nonincarcerated Paraphiliacs. Journal of Interpersonal Violence, 2(1): 3-25.
Maryland Coalition Against Sexual Violence (2011). Best Practices Checklist, Baltimore SART Annual Report, October 2011, retrieved from http://www.ncdsv.org/images/MCASA BaltimoreCitySART AnnualReport October201 l.pdf
Canaff, R. (2011). Of Angels, A Stranger, and an Absent Father, retrieved from http://rogercanaff.com!site/20111 11lof-angels-a-stranger-an­ institution-and-an-absent-father/ 

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Carr, J. L., & VanDeusen, K. M. (2004). Risk factors for male sexual aggression on college campuses. Journal of Family Violence, 19(5),279-289

•

Cook et al. (1999) Victim's Needs, Victim's Rights: Policies and Programs for Victims of Crime in Australia. Australian Institute of

Criminology Research and Public Policy Series, 19: 19-20

Harwell, M.C. and Lisak, D. (2010). Why Offenders Run Free, Sexual Assault Report, Vol. 14, No.2.

Lievore, D. (2005). Prosecutorial Decisions in Adult Sexual Assault Cases, Trends and Issues in Crime and Criminal Justice, Australian Institute of Criminology, Vol. 291, retrieved from

Lisak, D., Rape Fact Sheet, retrieved from http://www.binghamton.edulcounseling/documents/RAPEFACTSHEET! .pd f

Lisak. D. The Undetected Offender, video/curriculum available from National Judicial Education Program, njep@legalmomentum.org

Lisak, D., and Miller, P. (2002) Repeat Rape and Multiple Offending

•

Among Undetected Offenders, Violence and Victims, Vol. 17, No. 1.

McWhorter, S.K., Stander, V.A., Merril, L.L., Thomsen, C.J. & Miller, J.S., (2009).

Reports of Rape and Re-Perpetration by Newly Enlisted Male Navy Personnel. Violence and Victims, Volume 24, Number 2.

National Intimate Partner and Sexual Violence Survey: 2010 Summary Report

Norris, J. (2008). The Relationship Between Alcohol Consumption and Sexual Victimization.

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Page, A. (2010). True Colors: Police Officers and Rape Myths Acceptance, Feminist Criminology 5(4): 315-334.

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Valliere, V., (2007). Understanding the Non-Stranger Offender, The Voice, National Center for the Prosecution of Violence Against Women, Vol I, No 11 retrieved from http://www.ndaa.org/pdf/thevoicevollnol12007.pdf

Weinrott, M.R.. & Saylor, M. (1991). Self-Report of Crimes Committed By Sex Offenders, Journal of Interpersonal Violence, 6, 286­ 300.

• 


CHAPTER 10
M. Elaine Nugent-Borakove, Patricia L. Fanflik, David Troutman,Nicole Johnson, Testing the Efficacy ofSANEISART Programs, American Prosecutors Research Institute, (2006) full text at https://www.ncjrs.gov/pdffiles1inij/grants/214252.pdf.

Oregon Attorney General's Sexual Assault Task Force, SART Handbook, Version III; July 2009.
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•

331

 
 Timothy C. Fox Attorney General

ATTORNEY GENERAL 

STATE OF MONTANA
Department of Justice 215 North Sanders P.O . Box 201401 Helena, MT 59620-1401

Montana Attorney General's Office
QUARTERI_JY REPORT 

MARCH 2015
Re: MOUIAgreement Requirements between the Montana Attorney General, the US Department of Justice and the Missoula County Attorney's Office.

Montana Attorney General's Office 
 OUARTERLY REPORT 
 MARCH 2015 

TABLE OF CONTENTS: • Introduction from MT Attorney General Tim Fox..... .. ... .. .. ... ... .. .... .... ...... ....p. 3 
 • Outline of Work Conducted Pursuant to the MOUs in the Reporting Period..........p. 6 
 • Outline of Compliance Updates..................................... . .......................p. 9 
 • Outline of Aggregate Data Analysis . ...... . ...... . .. ,... ... .. ... .. . .......... . ... .. ........p. 13 
 • Conclusion.... ... ..... .. ....... ..,.... .... ... ... ,........ ..... . .. .... ...... ..... .... ..... ... ...p. 18 
 • Attached Exhibits 1-6:
o Exhibit I, Condensed Policy and Guidelines for Handling Sex Assault Cases o Exhibit 2, Monitoring and Compliance Plan o Exhibit 3, Case Data Sheet o Exhibit 4, Victim's Rights Fonn o Exhibit 5, Spreadsheet of Cases Referred to MCAO for Prosecution, June 2014-March 2015 o Exhibit 6, Spreadsheet of Cases Referred to MCAO for Review Only, June 20 I4-March 2015
2

Timothy C. Fox Attorney General

ATTORNEY GENERAL 

STATE OF MONTANA
Department of Justice 215 North Sanders P.O. Box 201401 Helena, MT 59620-1401

AN INTRODUCTION FROM TIM FOX,
ATTORNEY GENERAL OF MONTANA
On June 10,2014, I signed a memorandum of understanding (MOU) , with Missoula County, the Missoula County Attorney's Office (MCAO), and the United States Department of Justice (USDOJ) resolving USDOJ's investigation of the MCAO's handling of sex assault prosecutions. This MOU outlined a cooperative agreement between the Montana Attorney General's Office (MTAGO) and the MCAO to ensure the success of the MCAO's efforts to improve its response to sexual assault. My office provided the first, semi-annual report to the USDOJ in December 2014 and we published the first quarterly report in January 2015. The first quarterly report is available here: hups:l/dojmt.govlwp-contentluploadsIQuarterly-Report-Januaf1!-2015.pd(.
I am now pleased to present to the public our second quarterly report covering progress and compliance with the agreements through March 2015. I've assigned a member of our Sex Assault Prosecution Unit to work with our technical advisor-nationally recognized sex assault expert Anne Munch-to work together to assist the MCAO and monitor compliance as described in the various MOUS. As part of this process, this team of experts spent a week in Missoula in early May working with the MeAO to review ongoing cases and discuss advanced investigative and trial strategy issues for these cases. They observed one of the weekly SVU meetings where
I This and the other MOUs are attached to the First Quarterly Repol1, available here at https:/ldojmt.gov!wp­
conlent!uploads!Ouarterlv-Report-Janualy-2015.pd(. 3

investigators and prosecutors who specialize in sex assault cases meet to discuss ongoing cases. They also met with an Attorney from the USDO]'s Civil Rights Division to review in person the USDOJ's comments to a first draft of this report.
Based on these and many other interactions, my staff reports that MeAO is sincerely dedicated and hard at work in ensuring they fulfill their obligations under these agreements and make improvements to sex assault prosecutions in Missoula. A few of the more notable accomplishments since the first quarterly report include:
• The MeAO and my office have implemented a formalized monitoring and compliance plan to streamline and add transparency to the compliance and monitoring process for the involved parties and the public.
• The MCAO now has an in-house victim witness coordinator to improve communication between the MCAO and sex assault victims.
• The MCAO has added a fourth prosecutor to the SVU unit to help ensure individual workloads in the SVU permit for proper attention to be given to sex assault cases.
• The MCAO is requesting further investigation in a significantly greater proportion of cases referred from law enforcement-indicating increased diligence and communication between prosecution and law enforcement to ensure that all investigative avenues are thoroughly explored prior to a charging decision.
We also continue to take the resources developed from our work with the MeAO and provide them to prosecutors all over Montana. We have made available and distributed the Sex Assault Policy and Procedures Manual to prosecutors allover Montana and the public at:
httns:lldojmt.govl"'P-conlentl/m/oadsISEXUAL -ASSAULT-POLICY-AND-PROCEDURE-MANUAL.pd(
Finally, my staff is working with Anne Munch to develop proposals to strengthen our sex assault laws in Montana and for our Sex Assault Prosecution Unit to provide a series of sex assault trainings for prosecutors all over Montana.
4

Although great things are happening, our efforts are far from over. As would be true in any prosecution office, we have identified opportunities for improvement in the way that the MCAO handles sex assaults. I look forward to continuing cooperation with the MCAO and the USDOJ to address these opportunities and continue to make strides this extraordinary effort to make MCAO a model for the prosecution of these critically important cases.
Tim Fox
5

WORK CONDUCTED PURSUANT TO THE MOU'S IN THE REPORTING 
 PERIOD JANUARY 2015 - MARCH 2015 

In addition to continued monitoring of compliance with the agreements, our efforts in the last quarter were focused on the implementation of the comments that Anne Munch (the Technical Advisor) made in response to the first quarterly report. The following is a summary of the progress in the same order as those topics were recommended in The Technical Advisor's letter, Dated December 26, 2014.2
L Development ofPolicies and Guidelines for Sexual Assault Cases: Recommendation: The Technical advisor recommended that the Montana AG create an additional condensed version of the specific policy and guideline language and use that document to develop compliance measures and processes.
Response: Our office has created a Condensed Policy and Guidelines for Handling Sex Assault Cases. This document is attached as Exhibit I . We worked cooperatively with the US DOJ and the MCAO to develop and revise these policies. This document is intended to provide all parties to the MOU, and particularly the Sex Assault Prosecutors in the Missoula County Attorney's Office, with a concise summary of critical policies applicable to sex assault cases pursuant to the various MOUs and the Sex Assault Policy and Procedures Manual.
IL Training for county attorney supervisors and prosecutors in response to sexual assault: Recommendation: The Technical Advisor recommended that all multi-disciplinary partners who are available to attend the training on Interviewing Sexual Assault Victims, including law enforcement, do so. She also recommended that any Missoula County Sheriff's Deputy assigned to sex assault cases be trained to the same level as was required in the USDOJ agreement, which the Missoula Police Department and the University of Montana had already received.
Response: Several multi-disciplinary partners, including three Missoula County Sheriffs
2 This lener is attached to the First Quarterly Report, available here al hltps:l/dojml.gov/wp­
contentlllploadsIQllarterly-Report-Janllarv-20 /5.pd[. 6

Deputies from the Detectives division, one of the crime victim advocates, and all of the MCAO SVU attorneys attended a Webinar training that covered interviewing Sexual Assault victims. The Webinar was a three part series that included training on Neurobiology of Sexual Assault, the Neurobiology of Trawna, practical implications, and the Forensic Experiential Trawna Interview. The training was presented by the National Center for the Victims of Crime in spring 2014 and September 2014.
IlL Assurances as to on-going practices within the Missoula County Attorney's Office: Recommendation: The Technical advisor recommended meetings between the new victim advocate together with other members of the MCAO to discuss how the new MCAO victim advocate will fit into existing service position structure and work proactively with outside advocacy and law enforcement partners.
Response: The MCAO has filled the new Victim Witness Coordinator (VWC) position. Her name is Cathy Dorle. The VWC currently participates with other victim advocacy organizations as member of the MCAO Special Victim's Unit (SVU). She meets weekly with members of the Missoula County Crime Victim Advocate Office and SVU detectives from the Missoula City PD and Missoula County Sheriff's Office.
The VWC also participates in the monthly Missoula County Multidisciplinary Task Force meetings (MDT), which includes law enforcement, prosecutors, medicallhealth care providers, victim advocates and other social service professionals. The MDT's purpose is a unified approach to addressing child abuse and sexual assault in Missoula County.
The VWC participates in another multidisciplinary monthly meeting at First Step, wherein cases involving sexual assault are reviewed and discussed. The members of this team include, among others, law enforcement, the YWCA, and Child and Family Services.
Finally, the VWC is working with the Missoula Crime Victim Advocates on an ongoing basis. The VWC reports that the cooperation, communication and infonnation sharing between the VWC and the MCVA has been proceeding smoothly. While this position is only a few months
7

old, the VWC's role at this point has been to assist the MCAO in fulfilling their duties of communication and consultation with the victims as well as informing the victims of their rights. Along these lines, the MCAO has developed a document entitled, "Victim Rights." This document is provided to and discussed with victims during the initial meetings between the victim and the MCAO. It is attached at Exhibit 4.
IV. Improved communication and coordination with law enforcement and community partners:
Recommendation: The Technical Advisor recommended a joint training be conducted on "the requirements of successful sexual assault prosecutions to facilitate effective investigations and minimize the influence of impermissible bias" for the Missoula Police Department (MPD), the University of Montana Police Department (fonnerly known as the University of Montana Office of Public Safety), and the Missoula County Sheriff's Office (MeSO) detectives, public safety officers or sheriffs deputies.
Response: The MCAO has informed us that Officers with the University of Montana and the Missoula Police Department are current on this training. In addition, the MCAO SVU attorneys conducted further training for the MCSO on this topic on April 28 and 29, 2015.
V. Assessment ofthis Agreement and Review ofCases by the Montana Attorney General: Recommendation: The Technical advisor recommended our office develop a fonnal plan for monitoring compliance.
Response: Our office worked with the MCAO and the USDOJ to develop a fonnal plan. It is complete and was fonnally implemented in the MCAO earlier this Quarter. The plan is attached as Exhibit 2.
8

COMPLIANCE UPDATES 

On Friday, March 13, a representative from the MT AGO's Prosecution Services Bureau (PSB), met telephonically with Missoula COWlty Attorney Kirsten Pabst and Criminal Chief Jason Marks. Two weeks prior to this meeting, the MCAO had provided the MT AGO with the data described in the Monitoring and Compliance Plan, including a list of training and the updated Sexual Assault Case Data Forms. Having reviewed these materials, the MT AGO and MCAO discussed the reporting points outlined in the Monitoring and Compliance plan. The MT AGO followed up with specific queries on several particular cases.
Finally, a representative from MT AGO PSB made an in person visit to the MCAO during the first week of May, 2015 along with Anne Munch to discuss cases and policy with the MCAO. During that time the parties also met with a representative from the USDOJ Civil Rights Division to discuss USDOI's comments to a first draft of this report. The parties also participated in one of the weekly SVU meeting where the SVU prosecutors and investigators discuss ongoing sex assault investigations.
During all these interactions the MCAO was professional, prompt and forthcoming in assisting the MT AGO in gathering the data and answering questions. The MCAO suggested some proposed changes to the Condensed Policies and Guidelines. The following is a summary of the updates provided by the MCAO to the MT AGO in order of the subject topics provided in the Monitoring and Compliance Plan.
I. Changes, ifany, to policies and guidelines for handling sexual assault cases: As explained above, the MT AGO, MCAO and US DOJ have developed a formalized Monitoring and Compliance Plan as well as a Condensed Policy Guidelines for Handling Sex Assault cases. Pursuant to this plan the MCAO has developed a Case Data sheet to be included and updated in each case file and a Victim's Rights Form to guide discussion during meetings with the victim(s). These documents are attached at Exhibits 3and 4 respectively.
9

lL A list and description and copies ofany materialsfor Sexual Assault related trainings conducted or attended by MCAO attorneys and supervisors, including victim advocates, the MPD or MSO since the last Quanerly Repon:
• Prosecuting Sexual Violence, NDAA. August 2013 . (Jen Clark) *
• Trauma Webinar, 3 part series, Presented by The National Center for Victims of Crime. Spring 2014 (Suzy Boylan) [Attended the first and third again in September 2014] o Neurobiology of Sexual Assault; o The Neurobiology of Trauma - Practical Implications; and o The Forensic Experiential Trauma Interview
• Prosecuting the Difficult Sexual Assault Case, Presented by Prosecution Services Bureau, MT AGO. May 2014. (Attended by Suzy Boylan and Jen Clark)
• Corroborating the Forensic Interview, Western Regional Children's Advocacy Center. June 2014. (Attended by Suzy Boylan and Jordan Kilby)*
• Roundtable discussion with MT AG PSB, September 2014. (Attended by Suzy Boylan, Jen Clark, Jordan Kilby)
• Sexual Assault - Investigation Through Prosecution, Sponsored by the Helena Police Department, Helena, MT. March 2, 201S. (Attended by Suzy Boylan, Jen Clark, Jordan Kilby, Brian Lowney)
*indicates multi day training.
IIL A list and description ofSexual Assault Related trainings scheduled to be attended or conducted by MCAO attorneys and lor supervisors:
• End Violence Against Women International Conference, New Orleans, LA. April 201 S. (Attended by Suzy Boylan and Jen Clark)*.
• Child Forensic Interview Training, Sponsored by MT Department of Justice, Division of Criminal Investigation, MCSART Program, Montana Child and Family Services Division, and the Children's Alliance of Montana. Helena, MT. May 201S. (Attended by Brian Lowney and Jen Clark)*
10

*indicates multi day trainings
IV. A list ofthe designated sex assault prosecutors, supervisors, and in-house victim 
 advocate: (* Indicates there has been a change since the last Quarterly Report) 

• SVU Supervisor: Jason Marks • SVU Attorneys: Jen Clark, Suzy Boylan, Jordan Kilby, & Brian Lowney· • Victim Witness Coordinator: Cathy Dorle*
V. Changes, ifany, to MoU's between MCA 0 and MPD and MCSo since the last 
 Quarterly Report: 

• None.
VL Current Sex Assault Case Data Forms on all sex assault cases referred to MCAo for charging or review. Dataforms show new referrals and/or changes in status of previous referrals since the last Quarterly Report:
• The MCAO forwarded all current Sex Assault Case Data Forms to the AG.
VII. Updates as to participation and/or results ofMissoula's sex assault safety and 
 accountability audit and the victim and advocate survey through the University of 
 Montana and MPD. 

• The Missoula County Sexual Assault Safety and Accountability Audit report was released on May 1.
• The MCAO is working with the University of Montana and the MPD to include MCAO's suggested questions in the victim and advocate survey. MCAO Criminal Chief Jason Marks was a member of the committee tasked with developing this Audit.
VIII. Status update on the Special Victims Unit process at the MPD:
• The SVU attorneys meet weekly with the MPD SVU detectives and the victim advocate assigned to the MPD SVU. The MCAO victim witness coordinator also attends the weekly meetings. The parties discuss cases that have been referred to
11

the MCAO as well as cases that are under investigation. There have also been instances where the parties have discussed strategies for engaging reluctant victims who the advocate is aware of but who are reluctant to make a report. The MCSO will be included in these meetings once they have a dedicated investigator.
IX Status update on MCAO involvement with law enforcement and community partners and update on community education efforts:
• MCAO prosecutors have scheduled several outreach opportunities in the community for this quarter including presentations for Leadership Missoula, Frenchtown High School (Healthy Choices), and the Montana Victim Advocate Academy. The County Attorney will also participate as a guest speaker at Kiwanis and will spend an hour talking about the MCAO's agreement with the MTAG and USDOJ aimed at improving the prosecution of sexual assaults.
X Status ofthe $10,000 Expert Witnessfeesfund: The fund has been used to pay the following experts in sexual assault cases tried this past Quarter:
• Jean McAllister, MSW: Jean testified as a blind expert to the nature and dynamics of trauma. She explained the counterintuitive behaviors exhibited by victims of trauma and discussed the symptoms that may arise after a traumatic event. She discussed the dynamics of sexual assault specifically, and the differences that are seen with non­ stranger assaults.
• Cat Otway, RN, SANE-A: Cat is a registered nurse and a SANE-A. She discussed the injuries to the victim and how they are consistent with the report the victim made for sexual assault. Cat also dispels some myths of sexual assault and explains that there are not always physical injuries associated with a sexual assault.
XI. Review ofall MCAO file~'for all declined sexual assault cases ~·jnce the prior Quarterly report, ifany:
12

• There were no sexual assault cases referred to MCAO for charging that were declined for prosecution since the prior Quarterly report.
AGGREGATE DATA ANALYSIS
The MOU between the MT AGO and MCA03 contemplates that the MT AGO will provide in this quarterly report "an analysis of collected data from the MCAO and a report on all measurable improvements in the response to allegations of sex assault." For purposes of this report, the Data analyzed will include those items listed on page 3 of the MOU between the MCAO, MT AGO and USDOJ, which includes the Aggregate Data on Sex Assault cases from June 2014 through March 1,2015, specifically including:
• The number of sexual assault cases referred for review by 10ca1law enforcement to MCAO;
• The number of sexual assault cases charged by MCAO; • The disposition of charged sexual assault cases; • The number of sexual assault cases in which additional investigation was requested of
local law enforcement; • The number of victims of sexual assault who have utilized the services of the in-house
victim witness-coordinator.
As a pre-requisite to gathering this Aggregate Data and as a way to monitor compliance in particular cases, the MCAO also is providing the MT AGO with the following case specific data as outlined in the Monitoring and Compliance Plan (Exhibit 2):
• Copies of all Current Sex Assault Case Data Forms on all cases referred to MCAO for charging or review since the last Quarterly Report.
• Copy of the complete files for all declined sex assault cases, if any, since prior Quarterly report.
• Data on sexual assault cases, organized by Defendant name and Case Number, which includes: • Referral type: review or charging. • Decision made • Disposition • Sentence
J All the MOUs referenced in this report are attached as Exhibit to the First Quarterly Report, available here at
hltpS:lldojml.govlwp-conlentlup{oadsIOuarter{v-Reporl-Januarv-20 J5.pd(. 13

• The following dates and time spans: Date of referral, Date of any request for further investigation; Date ofprosecution decision; Date ofmeeting with victim; Date of meeting with advocate; Date of plea offer; Date of Disposition.
The Aggregate Data provided by the MCAO is presented in attached Exhibits 5 and 6. Exhibit 5 represents cases referred for a charging decision from June 2014 through March I, 2015. Cases referred for a charging decision are cases where law enforcement feels it has completed investigation and that there is probable cause to charge the case.
Exhibit 6 represents cases referred from June 2014 through March 1,2015 for "review only." Cases referred for "review" are cases "where, in the eyes of the MPD detective, the investigation has not developed probable cause necessary for arrest and prosecution.,,4. The assigned prosecutor reviews that investigation and either agrees with the law enforcement decision to make the case inactive or refers the case back for further investigation.
L Comparative Analysis ofCases Referredfor Charging Decisions:
An analysis of the aggregate data for cases referred for a charging decision is provided below in Table 1. Table I is based on data compiled in November 2014 for the first quarterly report. Data gathered since the first quarterly report through March 1, 2015 indicates that no cases were referred for charging in the current reporting period ending March I, 2015. There is no clear explanation for the fact that no cases were referred for charging in this quarter. It appears that this may simply be due to a lull in referrals due to the natural ebb and flow of crime, the fact that sexual assault investigations take time, and/or the fact that the MCAO is referring many cases back for further investigation.
The absence of cases referred in this reporting period provides no opportunity for any comparison to last quarter's cases referred for charging. However, in the interest of further developing the baseline for future comparison, this report will briefly address two important metrics: (I) the time between when a case is referred for charging and the MCAO makes first contact with the victim; and (2) the time between when a case is referred for charging and the MCAO makes a charging decision.
4 Memorandum of Understanding Between Office of the Missoula County Attorney's Office and the City of
Missoula Police Department (Dec. 13, 2013), at p.2.
14

According to the MCAO Sex Assault Manual there is no specific deadline for making a charging decision on cases referred for prosecution or meeting with the victim. The manual states at pages 19 to 20 that the prosecution should make contact with the investigator within two weeks of referral and emphasizes that communications with victims is of paramount importance.
In 80% of the cases referred for charging, the MCAO made a charging decision within I week of referral. The remaining 20% consists of two cases that took 129 days and 70 days respectively. The MCAO explained these longer delays were explained as due to heavy workload. With respect to contacting victims, the MCAO made (or attempted to make) contact with victims in 70% of the cases within 30 days of the case being referred for prosecution. In the remaining 30% of cases, the MCAO took 44 days, 73 days, and 147 days respectively to contact the victims. The 147 day delay in contacting the victim was for a legitimate reason, which for privacy reasons, is not disclosed here. The MCAO stated that the 44 and 73 day delays were due to heavy workload.
While the longer delays in both charging and victim contact appear to be a in the minority of cases, the MCAO acknowledges that this metric needs to be improved. To address these delays the MCAO has added a fourth prosecutor to the SVU unit and requires SVU attorneys to obtain supervisor permission to extend any deadlines for charging or victim contact. Additionally, one of the primary duties of the in-house victim witness coordinator will be to ensure victim contact occurs as soon as possible after the case is referred.

Table 1: Analysis of Sex Assault Cases Referred for a Charging Decision 

Between June 2014 and November 25, 2014 (Exhibit 5). 
 SA Cases Referred to MCAO for Charging by MPD and 10 MCSO

SA Cases Charged by MCAO

8

SA Cases Referred for Further Investigation by MCAO I

SA Cases Declined by MCAO

I

SA Cases in Which Prosecutor Made Contact with

8'

,: Regarding the two cases in which the victim was not contacted. one victim was unable t.o be reached despite
attempts by the Detective and Crime Victim Advocate. The other victim had not been contacted at the time of this
15

Victim

Average Time Between Referral and First Contact with Victim Longest Time Between Referral and First Contact with Victim.

35 days 147 days

o Shortest Time Between Referral and First Contact with days
Victim

Average Time Between Referral and Charging Decision
Longest Time Between Referral and Charging Decision Shortest Time Between Referral and Charging Decision

21.4 days 70 days
odays

IL Comparative Analysis ofCases Referredfor "review only":
An analysis ofthe aggregate data for cases referred for "review only" is provided below in Tables 2 and 3. Table 2 includes data compiled in November 2014 for the first quarterly report. Table 3 includes all data gathered since the first quarterly report through March 1,2015.
The Sex Assault Policy and Procedure Manual, at page 19 through 21, provides that cases referred to MCAO for "review only" should be reviewed by a prosecutor within one month of referral. Only 6 out of the 16 (or 38%) of cases referred for review in the quarter ending November 2014 were reviewed with 30 days. In the current reporting quarter 6 out of the 9 cases (or 67%) of cases where the review is complete were completed within the 30 day window.6 This appears to be a substantial improvement.
Furthennore, the average time period for review of these types of cases has decreased from 40 days for a review for the first quarterly reporting period down to 16 days during this current reporting period. Finally, there was comparative increase in this reporting period for the relative number of cases referred back for further investigation. We see this as evidence that the MCAO is taking a more affirmative role in ensuring investigations are exhaustive and complete from the prosecution perspective, before a case is closed.

report. • At the time of the March I, 2015 data, review was still pending in 4 cases and it is possible that subsequent data
will show that that review will have been completed in less than 30 days or more than 30 days.
16

Table 2: Analysis of Sex Assault cases Referred for "Review Only"

(Exhibit 6--June 2014 throu2h November 25. 2014)

Average Time Cases in Which Cases in Which Cases in

Between CA Agreed with CA Referred Which the

Referral and

Investigator

Back for

CA's

Decision

Further

Review is

(Days)

Investigation Pending

Total SA Cases

16

40

12

4

0

Referred for

Review

SA Cases

9

41

7

Referred for No

PC

SA Cases

8

40

5

Referred Where

Victim Declined

to Participate

2

1

3'

0

Table 3: Analysis of Sex Assault cases Referred for "Review Only"

(Exhibit 6-November 26, 2014 throu2h March 1,2015)

Average Time Cases in Which Cases in Which Cases in

Between CA Agreed with CAReferred Which the

Referral and

Investigator

Back for

CA's

Decision

Further

Review is

(Days)

investigation Pending

Total SA Cases

13

16

2

7

4

Referred for

Review

SA Cases

5

19

I

Referred for No

PC

2

2

7 The reasons for referring a case back for further investigations are varied. In one case the CA made contact with the victim and the victim decided to participate. Even where the victim has declined to participate, the CA will sometimes want to insure the timely coUection of ephemeral evidence in the event the victim decides to later participate.
17

SA Cases

4

4

1

3"

0

Referred Where

Victim Declined

to Participate

CONCLUSION
The MT AGO concludes on the basis of the data collected and discussions with the MCAO and Technical Advisor that the MCAO is making significant substantive improvements in way MCAO handles sex assault cases. Specifically, this Quarter it is clear that the communication between the MCAO and law enforcement on these cases has improved, as evidenced in part by the weekly SVU meetings and the significant increase in cases referred for more investigation. We do see an opportunity for improvement for quicker decision making and victim contact on cases referred for charging. Based on the additional SVU prosecutor and closer supervisor control over deadlines, we expect that we will see fewer delays in future data.

8 The reasons for referring a case back for further investigations are varied. In one case the CA made contact with the victim and the victim decided to participate. Even where the victim has declined to participate. the CA will
sometimes want to insure the timely collection of ephemeral evidence in case the victim decides to later participate.
18

 
 Tim Fox Attorney General

ATTORNEY GENERAL 

STATE OF MONTANA
Joseph P. Mazurek BuiJding 215 North Sanders P.O. Box 201401 Helena, MT 59620-1401

Montana Attorney General's Office
QUARTERLY REPORT 

For Period Ending June 2015
Re.: MOUIAgreement Requirements between the Montana Attorney General, the US Department of Justice and the Missoula County Attorney's Office.

Montana Attorney General's Office 
 QUARTERLY REPORT 
 JUNE 2015 

TABLE OF CONTENTS:
• Introduction from MT Attorney General Tim Fox ...... ..... ..... .. ...... .. ... ...... .. ...p. 

• Outline of Work Conducted Pursuant to the MOUs in the Reporting Period..........p. 
 • Outline of Compliance Updates .. ..... ... ........... ..... ................. .. ................p. 
 • Outline of Aggregate Data Analysis ... .................. ............... ....... ...... ....... p. 
 • Conclusion.. .. .... ......... ... .......... ... ................. ................. ........ .. ........p. 
 • Attached Exhibits 1-4:
o Exhibit 1, Victim Advocate Survey o Exhibit 2, Spreadsheet of Cases Referred to MCAO for Prosecution, June 2014-June 42015 o Exhibit 3, Spreadsheet of Cases Referred to MCAO for Review Only, June 2014-June 42015 o Exhibit 4, Letter from Technical Advisor, Anne Munch, June 23, 2015
2

Tim Fox Attorney General

ATTORNEY GENERAL 

STATE OF MONTANA
Joseph P. Mazurek Building 215 North Sanders P.O. Box 201401 Helena, MT 59620-1401

AN INTRODUCTION FROM TIM FOX,
ATTORNEY GENERAL OF MONTANA
A little over one year ago , on June 10, 2014, I signed a memorandum ofunderstanding (MOU) I with Missoula County, the Missoula County Attorney's Office (MCAO), and the United States Department of Justice (USDOJ) resolving USDOJ's investigation ofthe MCAO's handling of sex assault prosecutions. This MOU outlined a cooperative agreement between the Montana Attorney General ' s Office (MTAGO) and the MCAO to ensure the success ofthe MCAO's efforts to improve its response to sexual assault. My office provided the first, semi-annual report to the USDOJ in December 2014 and we published the first quarterly report in January 2015. The fITst and second quarterly reports are available here: https:/ldojmt.gol ·lagoomcelrnissoula-county-agreement
I am now pleased to present to the public our third quarterly report covering progress and compliance with the agreements through June 4, 2015. One of the more notable accomplishments since the second quarterly report include the MCAO' s creation of a new Investigative Specialist position. This prosecutor will be assigned to work in the MPD and to advise the MPD on investigations, subpoenas, warrants, and charging decisions in sex assault cases. This prosecutor
I This and the other MOUs are attached to the First Quarterly Report, available here at https:lldojmt.govIYtp­ contentlup!oadsIQuarter!v-Report-January-20J 5.pdf
3

should help increase the efficiency of sex assault investigation and charging decisions and may serve as a model for other prosecution offices in Montana. We are also in the initial planning stages of developing a multi-disciplinary team to work on developing, training, and implementing best practices in sex assault investigations, prosecution, and victim advocacy in Montana's communities. Finally, we are working closely with the MCAO office to develop a more formalized process to review declined cases. This process will create documented feedback on declined cases to both investigators and prosecutors to improve both aspects of case work in future cases, where appropriate. We have attached the letter written to our office from our technical advisor as an exhibit to this report and I am pleased to hear from my staff that all her recommendations are being implemented. We will update progress on her recommendations in the next report. I look forward to continuing cooperation with the MCAO and the USDOJ on this matter and other efforts to bring Montana to the forefront of sex assault prosecutions.
4

WORK CONDUCTED PURSUANT TO THE MOU'S IN THE REPORTING 
 PERIOD - March 2, 2015 through June 4, 2015 

COMPLIANCE UPDATES 

On June 30, 2015, a representative from the MT AGO's Prosecution Services Bureau (PSB), met telephonically with Missoula County Attorney Kirsten Pabst, Criminal Chief Deputy Jason Marks and Technical Advisor Anne Munch. Two weeks prior to this meeting, the MCAO had provided the MT AGO with the data described in the Monitoring and Compliance Plan, including a list of training and the updated Sexual Assault Case Data Forms. Having reviewed these materials, the MT AGO and MCAO discussed the reporting points outlined in the Monitoring and Compliance plan. The MT AGO followed up with specific queries on several particular cases. Finally, the MT AGO received a letter from the technical advisor, Anne Munch, dated June 23, as attached as Exhibit 4. The letter summarizes progress on compliance with the various MOUS and provides recommendations for further action. This letter will be used as a guide for planning compliance work in the upcoming quarter. Progress on Ms. Munch's recommendations will be reported in the next quarterly report.
The following is a summary of the updates provided by the MCAO to the MT AGO in order of the subject topics provided in the Monitoring and Compliance Plan.
I. Changes, if any, to policies and guidelines for handling sexual assault cases:
• There have been no changes during this reporting period.
IL A list and description ofany Sexual Assault related trainings conducted or attended by MCAO attorneys and supervisors, including victim advocates, the MPD or MSO since the last Quarterly Report:
• Jen Clark conducted a Quarterly In-Service training with the MCSO Deputies, entitled, Overcoming Rape Myths. Materials have been provided to the AG and will be forwarded to USDOJ under a separate cover letter.
• Kirsten Pabst attended a Webinar entitled, Trauma-Informed Practice Scales for DV Programs. No materials were provided.
• All four SVU attorneys attended the Sexual Assault Investigation Through Prosecution training in Helena on March 2.
• Suzy Boylan participated as a panelist at the YWCA Advocate Training on March 4. 5

• Jen Clark and Suzy Boylan went to EVAWI [End Violence Against Women International] April 7-9 in New Orleans. Topics included Impact of Sexual Violence and Trauma; Contesting "He said, She said" Defense; Sexual Assault on College Campuses, Ethical Considerations in Special Victims Prosecution; Effective Strategies for Engaging Victims of Crime; Providing Law Enforcement with Information to Hold Sexual Offenders Accountable; Improving Investigations and Prosecutions of Alcohol Facilitated Sexual Assault; and Sexual Predators.
• Kirsten Pabst spoke to the Missoula Breakfast Club on April 21 and then to Kiwanis club on April 23 about our SVU unit and our new initiatives to combat sexual assault.
• Anne Munch and Ole Olson visited the MCAO on May 4, 5 and 6 and worked with our SVU on case review, building better cases and strategically dealing with rape myths at trial.
• Suzy Boylan spoke at the SANE training at St. Patrick's Hospital on May 20
IlL A list ofthe designated sex assault prosecutors, supervisors, and in-house victim advocate: (* Indicates there has been a change since the last Quarterly Report.)
• SVU Supervisor: Jason Marks • SVU Attorneys: Jen Clark, Suzy Boylan, Jordan Kilby, & Brian Lowney • Jordan Kilby is the newly assigned "Investigative Specialist."* • Victim Witness Coordinator: Cathy Dorle
IV. Changes, if any, to MOU's between MCAO and MPD and MCSO since the last
Quarterly Report:
• None.
V. Current Sex Assault Case Data Forms on all sex assault cases referred to MCAO for charging or review. Data forms show new referrals and/or changes in status of previous referrals since the last Quarterly Report:
• The MCAO forwarded all current Sex Assault Case Data Forms to the AG.
VL Updates as to participation and/or results ofMissoula's sex assault safety and accountability audit and the victim and advocate survey through the University of Montana and MPD.
6

• The Missoula County Sexual Assault Safety and Accountability Audit report was released on May 1. The MCAO is participating in discussions regarding gaps in the audit and the way forward with suggestions.
• Victim Advocate Survey: This survey officially began the week of June 29,2015. The final victim survey questions are attached as Exhibit 1. This survey will be administered by a phone interview after any and all sexual assault cases are closed. The MCAO reports that the University of Montana Sociology Department will conduct research based on the results. Data from these surveys will be made available to the MT AGO and the USDOJ.
VIL Status update on the Special Victims Unit process at the MPD:
• The MCAO has assigned Jordan Kilby to the MPD to act as an in-house "investigative specialist" at the MPD. Her duties will be to provide advice to the MPD SVU detectives on active investigations, reviewing search warrants and subpoenas related to those investigations, and work in real time with detectives to decide when a case under investigation is ready to be charged.
VIIL Status update on MeAD involvement with law enforcement and community partners and update on community education efforts:
• As noted above, Jen Clark conducted an in service training with Sheriffs deputies during this reporting period.
• The MCAO and MT AG have made preliminary plans for the formation of a Multi­ disciplinary team that would develop and disseminate best practices for community-wide response to sexual assault investigation, prosecution, and advocacy. The parties plan to conduct an initial meeting in September with community partners, with Anne Munch as the coordinator. Members on the team are expected to include prosecution, law enforcement, victim advocacy representatives, members of the medical community, and representatives from the University of Montana.
IX. Status ofthe $10,000 Expert Witnessfeesfund: The fund has been used to pay the following experts in sexual assault cases tried this past Quarter:
7

• Nothing new in this reporting period.
X Review ofall MeAD files for all declined sexual assault cases since the prior Quarterly
report, if any:
• One case was declined during this reporting period. The case has been received and reviewed by the AG and the Technical advisor. The AGO is preparing feedback for the MPD and the MSCO on this case pursuant to a more formalized case review and feedback policy to be rolled out in the coming quarter.
AGGREGATE DATA ANALYSIS
The MOU between the MT AGO and MCA02 contemplates that the MT AGO will provide in this quarterly report "an analysis of collected data from the MCAO and a report on all measurable improvements in the response to allegations of sex assault." For purposes ofthis report, the Data analyzed will include those items listed on page 3 of the MOU between the MCAO, MT AGO and USDOJ, which includes the Aggregate Data on Sex Assault cases from June 2014 through March 1,2015, specifically including:
• The number of sexual assault cases referred for review by local law enforcement to MCAO;
• The number of sexual assault cases charged by MCAO; • The disposition of charged sexual assault cases; • The number of sexual assault cases in which additional investigation was requested of
local law enforcement; • The number of victims of sexual assault who have utilized the services of the in-house
victim witness-coordinator.
As a pre-requisite to gathering this Aggregate Data and as a way to monitor compliance in particular cases, the MCAO also is providing the MT AGO with the following case specific data as outlined in the Monitoring and Compliance Plan (March, 2015 report, Exhibit 2):
• Copies of all Current Sex Assault Case Data Forms on all cases referred to MCAO for charging or review since the last Quarterly Report.
2 All the MODs referenced in this report are attached as Exhibit to the First Quarterly Report, available here at
https:lldo jmt.govlwp-contentluploadsIQuarterly-Report-January-2015. pdf.
8

• Copy of the complete files for all declined sex assault cases, if any, since prior Quarterly report.
• Data on sexual assault cases, organized by Defendant name and Case Number, which includes: • Referral type: review or charging. • Decision made • Disposition • Sentence • The following dates and time spans: Date of referral, Date of any request for further investigation; Date of prosecution decision; Date of meeting with victim; Date of meeting with advocate; Date of plea offer; Date of Disposition.
The Aggregate Data provided by the MCAO is presented in attached Exhibits 2 and 3. Exhibit 2 represents cases referred for a charging decision from June 2014 through March, 2015. Cases referred for a charging decision are cases where law enforcement feels it has completed investigation and that there is probable cause to charge the case.
Exhibit 3 represents cases referred from June 2014 through June 4,2015 for "review only." Cases referred for "review" are cases "where, in the eyes of the MPD detective, the investigation has not developed probable cause necessary for arrest and prosecution.',3 The assigned prosecutor reviews that investigation and either agrees with the law enforcement decision to make the case inactive or refers the case back for further investigation.
We note that the sub-categories of "cases referred for review," which includes cases where victims declined to participate, should not be read to imply that the MPD or the MCAO or the MT AGO considers a victim's decision to cooperate with the case as a pre-requisite for probable cause to arrest or sufficient evidence to charge. Regardless of the way that these cases are referred to the MCAO, all the cases are subjected to the same substantive review by a prosecutor to determine whether the case should be charged, declined, or referred for further investigation. The victim's decision to participate is only one of the many factors that play into the prosecutor's decision, and does not necessarily foreclose the possibility of charging the case.
L Comparative Analysis ofCases Referredfor Charging Decisions:
An analysis of the aggregate data for cases referred for a charging decision is provided
3 Memorandum of Understanding Between Office of the Missoula County Attorney's Office and the City of Missoula Police Department (Dec. 13,2013), at p.2.
9

below in Tables 1 and 2. Table 1 is based on data compiled in the first quarterly report (June 2014 through November 2014). Data gathered for the second quarterly report (November, 2014 through March 1, 2015) indicates that no cases were referred for charging in the reporting period ending March 1,2015. Table 2 is based on the Data compiled during the current reporting period of March 2,2015 through June 4,2015. Three cases were referred for charging in the current reporting period. As of June 4,2015 none had been charged. One has been declined for prosecution, one has been referred for further investigation, and the MCAO has offered a pre­ charge plea agreement on the third.
According to the MCAO Sex Assault Manual there is no specific deadline for making a charging decision on cases referred for prosecution or meeting with the victim. The manual states at pages 19 to 20 that the prosecution should make contact with the investigator within two weeks of referral and emphasizes that communications with victims is of paramount importance. While the number of cases reported in this period are few, the cases that have been reported show improvement in the time elapsed between referral and first contact with the victim. The time between referral and charging remains at an average of less than 30 days, and the longest time between referral and charging was significantly less than this reporting period as compared to prior reporting period. We expect that the charging decisions will become quicker with the placement of the "investigative specialist" at the MPD.

Table 1: Analysis of Sex Assault Cases Referred for a Charging Decision Between June 2014 and November 25, 2014 (Exhibit 2).
SA Cases Referred to MCAO for Charging by MPD and 10 MCSO

SA Cases Charged by MCAO

8

SA Cases Referred for Further Investigation by MCAO 1

SA Cases Declined by MCAO

1

SA Cases in Which Prosecutor Made Contact with Victim
Average Time Between Referral and First Contact with Victim

8'+ 35 days

4 Regarding the two cases in which the victim was not contacted, one victim was unable to be reached despite attempts by the Detective and Crime Victim Advocate. The other victim had not been contacted at the time of this report.
10

Longest Time Between Referral and First Contact with Victim.
Shortest Time Between Referral and First Contact with Victim

147 days
odays

Average Time Between Referral and Charging Decision 21.4 days

Longest Time Between Referral and Charging Decision 70 days
o Shortest Time Between Referral and Charging Decision days

. Table 2: Analysis of Sex Assault Cases Referred for a Charging Decision
March 1, 2015 thrOU!Jh M ay 31
SA Cases Referred to MCAO for Charging by MPD and 3 MCSO

SA Cases Charged by MCAO

0

SA Cases Referred for Further Investigation by MCAO 1

SA Cases Declined by MCAO

1

SA Cases in Which Prosecutor Made Contact with

3

Victim

Average Time Between Referral and First Contact with Victim Longest Time Between Referral and First Contact with Victim.

28 days 55 days

Shortest Time Between Referral and First Contact with 9 days Victim

Average Time Between Referral and Charging Decision 27 days

Longest Time Between Referral and Charging Decision 38 days

Shortest Time Between Referral and Charging Decision 16 days

11

IL Comparative Analysis ofCases Referredfor "review only":
An analysis of the aggregate data for cases referred for "review only" is provided below in Tables 3, 4 and 5. Table 3 includes data collected from June 2014 through November 2014 for the first quarterly report. Table 4 includes all data gathered collected from November 2014 through March 1,2015 for the second quarterly report. Table 5 includes all data collected from March 2, 2015 through June 4,2015 for this third quarterly report.
The Sex Assault Policy and Procedure Manual, at page 19 through 21, provides that cases referred to MCAO for "review only" should be reviewed by a prosecutor within one month of referral. For the first quarterly report (period ending November 2014), only 6 out ofthe 16 (or 38%) of cases referred for review were reviewed within 30 days. For the second quarterly report (period ending March 1,2014),6 out of the 9 cases (or 67%) of cases were reviewed within the 30 day window. 5 For the current reporting period 6 out of 6, or 100% of the cases, were reviewed within the 30 day window.

Table 3: Analysis of Sex Assault cases Referred for "Review Only"

(Exhibit 3--June 2014 through November 25, 2014)

Average Time Cases in Which Cases in Which Cases in

Between CA Agreed with CA Referred Which the

Referral and Investigator

Back for

CA's

Decision

Further

Review is

(Days)

Investigation Pending

Total SA Cases

16

40

12

4

0

Referred for

Review

SA Cases

9

41

7

Referred for No

PC

SA Cases

8

40

5

Referred Where

Victim Declined to Participate6

2

1

3'

0

5 At the time of the March 1, 2015 data, review was still pending in 4 cases and it is possible that subsequent data will show that that review will have been completed in less than 30 days or more than 30 days.
7 The reasons for referring a case back for further investigations are varied. In one case the CA made contact with the victim and the victim decided to participate. Even where the victim has declined to participate, the CA will sometimes want to insure the timely collection of ephemeral evidence in the event the victim decides to later participate.
12

Table 4: Analysis of Sex Assault cases Referred for "Review Only"
(EXhO1boIt 3--November 26, 2014 th rougJh M archI, 2015)

Average Time Cases in Which Cases in Which Cases in

Between CA Agreed with CA Referred Which the

Referral and

Investigator

Back for

CA's

Decision

Further

Review is

(Days)

investigation Pending.

Total SA Cases

13

16

2

7

4

Referred for

Review

SA Cases

5

19

1

Referred for No

PC

SA Cases

4

4

1

Referred Where

Victim Declined

to Participate

2

2

311

0

Table 5: Analysis of Sex Assault cases Referred for "Review Only"
(March 2, 2015 througJh J une 4, 2015)

Average Time Cases in Which Cases in Which Cases in

Between CA Agreed with CA Referred Which the

Referral and Investigator

Back for

CA's

Decision

Further

Review is

(Days)

investigation Pending

Total SA Cases

6

19

4

2

0

Referred for

Review

SA Cases

3

25

1

Referred for No

PC

2

0

SA Cases

4

15.25

3

Referred Where

Victim Declined

to Participate

1

0

8 The reasons for referring a case back for further investigations are varied. In one case the CA made contact with the victim and the victim decided to participate. Even where the victim has declined to participate, the CA will sometimes want to insure the timely collection of ephemeral evidence in case the victim decides to later participate.
l3

CONCLUSION The MT AGO concludes on the basis of the data collected and discussions with the MCAO and Technical Advisor that the MCAO continues to make significant substantive improvements in way MCAO handles sex assault cases. Specifically, data from the current reporting period makes it clear that all cases referred for review are being reviewed within the 30 day deadline. We continue to see an opportunity for improvement for quicker decision making and victim contact on cases referred for charging. We expect that the MCAO's assignment of an investigative specialist will improve this metric.
14

Thank you for agreeing to answer a few brief questions. I would like to talk with you about your experience with the Missoula County Attorney’s Office. I appreciate any information that you are willing to provide. It is important to recognize that your participation is voluntary. You may skip any question(s) that you do not feel comfortable answering. Your responses to the survey questions will be kept strictly confidential. At no point will your name and/or identity be connected with this survey and the answers that you provide. In other words, prosecutors will not know who has taken the survey or who has provided a particular answer. The information that your answers provide is important to us, and we ask that you answer candidly. Your answers will be used to identify key issues and will provide a basis for informing future efforts to, where needed, reform and improve the responses of prosecutors to victimization reports.

1. Did a prosecutor from the Missoula County Attorney’s Office meet or offer to meet with you to discuss whether or not charges would be filed in your case?

O No O Yes -------- If yes, please answer Question 1a before answering Question 2.

1a. Comments:

If yes, did the prosecutor give a good explanation as to why the

Missoula County Attorney’s Office decided to file or not file

charges?

O No

O Yes

______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________

2. Did the Missoula County Attorney’s Office file any charges in your case? O No --------- If no, skip ahead to question 12.
 O Yes -------- If yes, continue with the rest of the survey.


Ex.1

3. If the case was charged, did you meet with the prosecutor in person?

O No


O Yes----------If yes, answer questions 3a and 3b before answering question 4.
 3a. If yes, how many times did you meet in person with the prosecutor?

O 1 or 2

O 5 or 6

O 3 or 4

O more than 6

3b. Did you meet in person with the prosecutor before the case was charged?

O No

O Unsure

O Yes

4. At what stage(s) of the case did you meet with the prosecutor in person? ________________________________________________________________ ________________________________________________________________ ________________________________________________________________

5. Did you meet or speak with an advocate or the Victim/Witness Coordinator before the case was charged? O No O Yes
6. Did you meet or speak with the prosecutor and/or Victim/Witness Coordinator by phone while the case was pending? O No O Yes -------- If yes, answer Question 6a. 6a. How many times did you meet or speak with the prosecutor and/or Victim/Witness Coordinator by phone while the case was still pending?

O 1 or 2 O 3 or 4

O 5 or 6 O more than 6

7. Did you have to go to court for a pre-trial hearing, trial or sentencing hearing? O Yes
 O No
 O Unsure


8. Did the prosecutor prepare you for court? O Yes
 O No
 O Unsure


Comments: ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________

9. Did the prosecutor describe the prosecution process to you? O Yes
 O No
 O Unsure

Comments: ______________________________________________________________________ ______________________________________________________________________

______________________________________________________________________
10. Did the prosecutor inform you of your rights as a victim in the following stages of the case?
a. Investigative O Yes
 O No
 O Unsure
 O N/A

b. Pretrial O Yes
 O No
 O Unsure
 O N/A

c. Trial O Yes
 O No
 O Unsure
 O N/A

d. After Trial/Sentencing O Yes
 O No
 O Unsure
 O N/A


Comments: ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________
11. If the case was charged by the Missoula County Attorney’s Office, what was the result?
O Plea agreement for the charged offense
 O Plea agreement for a reduced charge
 O Convicted at trial 
 O Acquitted at trial
 O Hung jury
 O Dismissed
 O Other
 O Unsure
 O Case is still pending

12. Do you have any final comments about your interactions with the Missoula County Attorney’s Office? Comments: ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________

LE Case Number

Pre-referral Consult

2014-12873

Yes

Date Referred

Referred back before charging decision

Decision 1)charged, 2) declined, 3)referred for investigation

9/23/2014

No

Charged - DC-14-527

Date of Decision

Time

Between

Referral/

rereceipt

and

Date of first contact

Decision with Victim or CVA

9/24/2014 1 day 10/23/2014

Time between referral and first contact with victim or CVA
30 days

Initial Plea Offer 30 MSP w/ 15 susp (waiting for victim
approval before sending)

Date of Intial Plea Offer

Time between charging/meeting
and plea offer

Case Disposition

2/11/2015

Charging: 4 mo. 18

days, Contact: 3 mo.

17 ays

Trial: 8/10/15

Sentence

Time between initial offer and disposition

Time

Time

between Victim

between charging Witness

referral and and

Corrdinator

disposition disposition involved

No

2014-1661

Yes

2014-4203

Yes

2014-20800

Yes

2014-29367

No

2014-35246

No

2014-35246

(co-

defendant)

No

2014-

14691/2014-

15207

No

6/11/2014 6/12/2014 8/8/2014 9/29/2014
11/5/2014
11/5/2014 7/9/2014

Defendant to

be evaluated

at Montana

Charging: 3 mo. 19 State

Charged CR-2014-

3 mo 9

days, Contact: 6 mo. 3 Hospital:

Yes

12687-C1

10/20/2014 days 7/25/2014

40 days

40 years MSP

1/28/2014

days

Order 6/3/15

Yes

Declined - Victim

Detective and

would not respond

advocate unable to

to correspondence

contact victim. Call to

from detecive and

victim advocate

No

CVA

6/17/2014 4 days 6/24/2014

12 days

N/A

N/A

N/A

N/A

N/A N/A

N/A

N/A

No

Pleaded

Guilty- 12

years all

suspended Sentencing:

Charging: 2 months subject to

3/11/2015:

2 months 13 25 with 15 suspended

21 days; Contact: 8 exeption to 12 years with 4 mo. 10 7 mo. 3 7 mo. 3

No

Charged - DC-14-436 8/8/2014 0 days 10/21/2014

days

MSP

10/29/2014

days

man min. 10 suspended days

days

days

No

defendant

Met with victim

pleaded

2.25.15 to discuss

guilty; PSE

possible plea offers

being

CVA - 0 DAYS came up with offer:

charging: 151 days; completed;

CVA - 9/29/2014

VICTIM - 0 20 years MSP, 12

first meeting: 151 SENT set for

No

Charged - DC-14-530 9/29/2014 0 days VICTIM - 9/29/2014

DAYS

suspended

2/27/2015

days

9/3/2015

No

11/7/2015 - Victim did

not show up for

meeting, called her and

spoke with her over

the phone, she did not

want to come in at that

time. Met with her

finally on 3/4/2015

Defendant has been

when her father

clear he will not plead

Trial:

Ongoing Charged - DC-14-598 11/6/2014 1 day brought her in

2 days

to SIWOC, no offer

10/5/2015

Yes

11/7/2015 - Victim did

not show up for

meeting, called her and

spoke with her over

Pleaded

the phone, she did not

guilty and

want to come in at that

Tier 1: 20 with 10

agreed to

time. Met with her

suspended, Tier 2: 30

testify

finally on 3/4/2015

with 10 suspended,

4/1/2015. 20

when her father

Tier 3: 40 with 20

Charging: 4 months. years with 18

Ongoing Charged -DC-14-599 11/6/2014 1 day brought her in

2 days

suspended

3/6/2015

Meeting: 2 days suspended

Yes

Charging: 4 months

CVA - 5 DAYS,

20 with 10*

11 days; Contact: 3

Sentence

CVA - 07/15/2014

VICTIM -

suspended MSP, 6

months 1 day

2/24/15: 30

VICTIM - voicemail: phone: 27 days, months, 6 months,

(however, requests

years with 15

8/6/2014; meeting:

meeting 1 unless eval comes

made through CVA 5 Pleaded

suspended

7 mo. 15 7 mo. 14

No

Charged DC-14-373 7/10/2014 1 day 08/20/2014

month 10 days back as tier 2 or 3 11/21/2014

days)

Guilty

MSP 3 mo. 3 days days

days

Yes

Ex.2

2014-

5768/2014-

15769

Yes

8/26/2014

P140219-010

Yes

11/12/2014

2015-4283

Yes

3/5/2015

2015-8782 2015-5207

Yes

4/10/2015

Yes

4/6/2015

Sentence: COUNT I: DISORDERLY CONDUCT 1. 10 days Missoula County Detention Facility, all suspended but time served 2. $100 fine
3. $85 surcharge

Charged CR-2014-

No

12491-C1

9/2/2014 7 days Feb-15

5 months

21 months suspended, consecutive

COUNT X:

ASSAULT -

REASONABLE

APPREHENSIO

N OF BODILY

INJURY

1. Six months

Missoula

County

Detention

Charging: 2 months Pleaded

Facility, all 5 months 6 9 mo. 11 9 mo. 4

11/30/2014

28 days

guilty 3/9/15 suspended days

days

days

Yes

Referred to LE for

2 mo. 10

Yes

more investigation 1/22/2015 days 3/31/2015

4 mos 9 days

3/19/15:

extension

granted to

because of

difficulties

contacting

victim.

Subsequest

extensions

granted to

voicemail left

allow pre-

plan to offer to settle for defense Initial meeting and

Uncharged -

charge plea

for misdemenaors attorney on plea offer: 2 months

extensions granted negotiations

3/25/2015

20 days

pre-charge.

6/8/2015

14 days

Yes

4/27/15:

charging

deadline

extended to

5/8/2015 to be

reviewed with

Anne Munch

Multiple unsuccefsul

5/18/2015:

attempts to contact

referred back

victim. Finally able to

Referred for

to law

1 month contact her through a 1 month 25

Yes

investigation

enforcment 8 days relative on 6/15/15.

days

Yes

2)Declined - victim

No

discontinuation

4/22/2015 16 days 4/15/2015

9 days

Yes

The cases below were referred to the Missoula County !ttorney’s Office by law enforcement for review only. Cases referred for review only are cases in which the investigator has determined that probable cause for a charge does not exist, no suspect has been identified and all leads have been exhausted, or the victim has requested that the investigation be discontinued. The assigned prosecutor reviews that investigation and either agrees with the law enforcement decision to make the case inactive or refers the case back for further investigation.

LE Case Number

Pre-referral consult

Date Referred for review

Reason for review only

Decision - 1)review complete - agree with assessment or 2) review complete - referred for further investigation

Date of Decision

Time Between Referral and Decision

2014-854 2014-11348 2014-5100

yes

7/8/2014

No PC for charges review complete - agree

9/8/2014 2 months

Victim

yes

7/9/2014

discontinuation review complete - agree 7/29/2014 20 days

1 month 22

no

7/25/2014 No PC for charges review complete - agree 9/16/2014 days

P131012-010 2014-2526 2014-3559

No PC for charges; review complete - referred

victim

for further investigation -

2 months 4

no

6/18/2014

discontinuation Review -complete agree 8/21/2014 days

Victim

1 month 22

yes

6/20/2014

discontinuation review complete - agree 8/12/2014 days

1 month 19

?

6/23/2014 No PC for charges review complete - agree 8/12/2014 days

2014-6195 2014-18539

Victim

review complete - referred

4 months 11

yes

7/15/2014

discontinuation for further investigation 11/13/2014 days

Unable to contact

yes

8/5/2014

victim

review complete - agree 8/15/2014 10 days

2014-8880

yes

8/5/2014 No suspect identified review complete - agree 8/12/2014 7 days

2014-1341

yes

9/18/2014 No PC for charges review complete - agree 10/20/2014 32 days

Ex.3

2014-26666 2014-14419 2014-14419
2014-27553
2014-2209/20142310 S121126-013
2014-37431
2014-33668 2014-12205/ UM: 1406-00221 2014-12205/ UM: 1406-00221 2014-31728
2014-41168

No suspect

identified; victim

1 month 19

no

9/25/2014

discontinuation review complete - agree 11/14/2014 days

1 month 14

no

9/29/2014 No PC for charges review complete - agree 11/14/2014 days

1 month 14

no

9/29/2014 No PC for charges review complete - agree 11/14/2014 days

No PC for charges;

victim

yes

10/30/2014 discontinuation review complete - agree 10/31/2014 1 day

reviewed - referred for

more investigation;

Received report 2.26.15 -

no

8/26/2014 No PC for charges review pending

9/19/2014 24 days

Victim

reviewed - referred for

no

8/29/2014

discontinuation more investigation

9/4/2014 5 days

reviewed - referred back

Victim

because victim now wishes

?

12/23/2014 discontinuation to proceed

1/2/2015 10 days

reviewed and met with

victim on 2/3/15, referred

yes

12/19/2014 No PC for charges for more investigation

2/9/2015 1 mo. 20 days

MPD wanted review

while DNA being reviewed - referred for

no

12/23/2015

processed.

more investigation

1/28/2015 1 month 5 days

MPD wanted review

while DNA being reviewed - referred for

no

12/23/2015

processed.

more investigation

1/28/2015 1 month 5 days

reviewed - referred for

yes

1/2/2015 No PC for charges more investigation

1/6/2015 4 days

No suspect

identified; victim

no

1/5/2015

discontinuation review complete - agree

1/6/2015 1 day

2014-37104 2015-1242 2015-1519
2014-39542 2014-13070
2015-4946, 20154985 2015-2668

referred back:

reviewed and referred for 1/30/2015,

Victim

more investigation. then, complete: 1 day and 28

yes

1/29/2015

discontinuation review complete - agree 2/26/2015 days

No PC for charges;

yes

2/2/2015 No suspect identified review complete - agree

2/5/2015 3 days

no

2/10/2015 No suspect identified review complete - agree 3/20/2015 1 month 8 days

initially:

2/17/2015

referred back:

Initially: Victim

5/11/2015

discontinuation

after meeting

rereferred for reviewed - referred for

with Anne

no

2/11/2015

review: No PC more investigation

Munch 6 days

Reason for review

yes

2/11/2015

only

review complete

2/27/2015 16 days

No PC for

charges/unable to

yes

2/20/2015

locate victim review complete

reviewed 2/25/2015, but waited on finding victim and review complete 3/20/2015 5-30 days

no

2/23/2015 No suspect identified review complete

4/1/2015 37 days

2014-12354
2015-5041 2015-9405 2015-8222 2014-37546 2015-14905

Referred back to

MCAO after

further

No PC for charges,

investigation on

victim did not wish to reviewed and referred for

5/1/2015 and 2nd

pursue

more investiagion on

review complete

no

3/6/2015 charges/recanted 3/31/2015

3/31/2015 25 days

6/1/2015

Staffed with Anne

Munch on

5/8/2015 and

referred back for

review complete/referred

investigation on

Yes

3/24/2015 No PC for charges for further investigation 4/21/2015 27 days

5/22/2015

Victim

Yes

3/26/2015

discontinuation review complete

4/13/2015 18 days

Victim

Yes

4/1/2015

discontinuation review complete

4/6/2015 5 days

Victim

Yes

4/14/2015

discontinuation review complete

4/27/2015 13 days

no

5/11/2015 No suspect identified review complete

6/4/2015 24 days

JJuunnee 23, 20155
Montaannaa Atttoorrnneeyy GeneralTTiimm FFooxx 11771122 99tthh AAvvee.. PPOO BBooxx 2O01L440 Helena, MT 596200,-11444400

RREECCEEMIVEEDD
JJUUNN 2 g9 22001155 ATTO:~l\J~ENERALS OFFice
•.", MONTANA

Dear Mr. FFooxx,,

II am once againn writinngg in my capacittyy aass thee Technical Advissoorr to your office purssuuaanntt to the agreemeennttss reached between the Departmmeenntt off Justtiiccee,, The Montannaa Attorrnneeyy Generall''ss Office aanndd the Missoulaa Countyy Attornneeyy''ss Office as they relatee to the handlliinngg of sexual assault ccaasseess and otheerr related initiativveess in Missoula, MMTT.. Noww that we are approacchhiinngg the end of the first year of our work pursuaanntt to the Memoranduumm of Understtaannddiningg (MOU), this letter is to provide you with informmaattiioonn on each aspect off the MOU and to outlinee the progrreessss that hhaass been made since my last letteerr to you as well as those areas where I see room for
continued work and improvement..

AAss a reference, Ilwwill provide information by categoryy as outlined in the "Agreement between
the MMoontana Attorneyy General and The Missoula County Attorney'ss OOffice" (MOU)

11.. Developmentt of policiess and guidelines for sexual assault cases:

At the ttime oof mmy wwrriting oof mmy llast lletter to you iinn DDecember oof 2014, tthhee MMCAO hhad aauutthhored aa ccoomprehensiivvee ddoocument tthhat ccoontains ppoollicies aand gguuidelines ffor sexual aassssaauult ccaasseess iinn aaddddiition ttoo mmany ""bbeest pprractices" ffrom tthe ffiieeld tto hheelp gguuide pprrosecutorrss iinn tthhe ooffffiiccee.. II mmaadde aa ssuugggestion tthhat tthhee MMCCAO iiddentify mmeetthhoodds bby wwhhiicchh ttoo mmeeaassure ccoommpliance wwiitth tthhee gguuiidelines aanndd ppoolliicies aanndd iinnclude tthheemm iinn aann aaddddiittionaltccoonnddeennsed ddooccuummeenntt.. MMeembers ffrrom yyoouur ooffffiiccee,, tthhee MMCCAAO aanndd II ccrreeated tthhiis ddooccuument eennttiitled, ""CCoonnddeensed PPoollicy aanndd GGuuiiddelines ffoor HHaanndling SSeexxuuaallAssault CCaasseess"" aanndd iitt iiss bbeeiinngg uusseedd ttoo aaiidd iinn tthhee ccoollleeccttiioonn oof ddaatta ttoo bbeetttteerr uunndderstand tthhee ddyynnaammics iinn tthhee ccaasseess aanndd ttoo aaiidd iinn tthhee rreeppoorrting pprroocceess uunnder tthhee MMOOUUs. RReeccoommmendations:: II rreeccommend tthhaat CCoonnddeennsseedd PPoolliiccy aanndd GGuuiiddeelines ffoorr HHaannddlling SSeexxuuaallAssault CCaasseessddooccuummeennt ccoonnttiinnuuee ttoo bbee uuttiilliizzeedd bbyy tthhee MMCCAAOO..

Ex.4

2. Training for county attorney supervisors and prosecutors in response to sexual assault:
The MCAO sexual assault prosecutors attended numerous training sessions as detailed in the 4th quarter report. In addition to the listed trainings that the MCAO has provided or participated in to date, I provided some brief training on "Meeting the Consent Defense" and some technical assistance/training in the area of jury selection in non­ stranger sexual assault cases to the members of the sexual assault prosecution team during my site visit May 4-7. Recommendations: I recommend that members of the MCAO prosecution team continue to receive training on the topics listed in this portion of the MOU in addition to other topics that are specifically relevant to the Missoula victims community such as prosecuting cases involving Native American victims or drug and alcohol facilitated sexual assault. I also recommend that additional training opportunities be provided to the more junior members of the team in order to enhance their abilities to prosecute these complicated cases. I also recommend that I spend additional time with the MCAO per their request and/or the request of the Montana Attorney General's Office (MAGO) developing additional training blocks for use in Missoula and the larger Montana community per the MOU as time limitations during my last site visit did not allow me to complete this task.
3. Assurances as to on-going practices within the Missoula County Attorney's Office
There are seven bullets in the agreement under this sub topic; I will generally address the ones on which I have been consulted.
• In-person meetings with complaining witnesses: The time between when the prosecutor makes a charging decision and the first contact with the victim is improving with the addition of a 4th prosecutor to the prosecution team and the addition of a MCAO victim advocate. Recommendation: I recommend that the MCAO victim advocate be utilized to reduce this time period by facilitating meetings with the prosecutor and the victim as quickly as possible. The MCAO's active participation in the Special Victim's Unit (SVU) provides an additional opportunity for early and consistent meetings with victims by MCAO staff.
• Case related communication with victims and victim advocates: Improvements are being made in this area based on data collected thus far this year and with the addition of an additional sex crimes prosecutor. Recommendation: I recommend that the process of collecting and evaluating data with regard to communication with victims and advocates continue in order to ensure that this positive trend results in long term system changes.

• Victim advocates: The hiring of the MCAO victim advocate has added value to the office, the victims and other victim advocates in the community. Her involvement with the MCAO, the SVU and with the community is helping to bring additional information and resources to the MCAO and the victims as they step into the process of having their cases prosecuted. Recommendation: Because the addition of a victim advocate in the MCAO is a brand new position, I recommend that the MCAO solicit and consider feedback of victims and community based victim advocates in order to ensure that her role and the introduction of these services to victims in the community are maximally effective and that services are not unnecessarily duplicated.
• Utilization of specialized sexual assault prosecution expertise: The addition of the fourth prosecutor to handle sexual assault cases is improving the response to victims by cutting down on the amount of time between when cases are referred for charges and when they are accepted for filing of charges. The addition also helps to lessen the work load for the other attorneys. Recommendation: The MCAO has committed itself to being a positive and active presence on the SVU, which is relatively young in its formation. I recommend that the MCAO and its more experienced prosecutors participate in some strategic planning with the SVU partners to identify the best methods for utilizing and growing prosecutorial expertise on the SVU. Given the stressful nature of this assignment, I recommend that a process be identified and implemented by the MCAO to help the prosecutors in the unit evaluate stress levels and effectiveness on a routinely scheduled basis in order to assist with any vicarious trauma and other normal responses consistent with working in a speCialized sex crimes unit.
• Utilization of specialized sexual assault investigation expertise: The MCAO has entered into MOUs with local law enforcement agencies including the Missoula County Sheriff's Office (MCSO). The creation of the SVU is improving the more consistent and timely accesses that the investigators, prosecutors and victim advocates have to each other during the course of the investigation and filing decision. The MPD has selected experienced investigators with special expertise to handle sexual assault cases which the MCAO is supportive of and has added value to the quality of cases they are seeing. The MCSO is not yet participating on the SVU. The specialized services of the Division of Criminal Investigation (DCI) also remain available to the MCAO. Recommendations: I recommend that the MCAO continue in its active role in the ongoing development of the newly formed SVU started by the MPD. Per my recommendation in the previous section, I suggest that strategic planning by the SVU will also enhance and improve the quality of the investigations by law enforcement partners. I also recommend that the MOU's which were signed by the MCAO and each law enforcement agency be reviewed to determine whether

they are being implemented and followed, and whether there is any need for revision of the MOUs. Finally, I recommend that the member of the MCSO who will be handling the sexual assault cases be identified and join the SVU as quickly as possible.
• Computer tracking system: Nothing to report. If requested, I will be happy to review the computer tracking system.
• Supervisor Review: Supervisors are actively involved in the review and evaluation of sexual assault cases at the MCAO. Recommendations: The MCAO has just started doing this type of data gathering and analysis and thus should continue this process over a longer period of time in order to guarantee forward progress and to watch trends over time.
4. Improved communication and coordination with law enforcement and community partners:
Significant improvements have been made with law enforcement partners as the result of the successful efforts per the requirements contained in the MOU. As an example, the MCAO delivered a two hour training session (twice) to the Missoula County Sheriffs Office on investigating sexual assault. The most significant improvements can be seen as a result of the SVU formation which includes an active role for law enforcement partners, prosecutors and victim advocates. I was able to attend one SVU weekly meeting during my visit May 4-7, and believe that the SVU would benefit from refining the case review process as well as better defining its overall purpose and operation. Efforts are currently underway for some members of the SVU to participate in one or more site visits of other similar SVUs in order to glean expertise as they continue to develop. Recommendations: This is an area that is ripe for strategic planning. I recommend that members of the SVU, including MCAO attorneys, advocates and supervisors receive additional technical assistance to improve and solidify the roles and responsibilities of people who serve on the SVU. If possible, I recommend that members of the MCAO be included in one or more site visits to other SVUs that are operating in similar communities. I also recommend that the SVU identify specific areas where additional training for all SVU members would be helpful to improve the quality of the cases. For example, how to improve investigations and prosecutions of cases that impact specialized communities in Missoula such as Native Americans, victims with developmental disabilities, alcohol and drug facilitated sexual assault, interviewing suspects or other topics where additional expertise could be helpful. As the multi-disciplinary expertise in handling sexual assault cases continues to improve, I will restate my earlier recommendation that MCAO consider being a partner in the formation of a multi-disciplinary training team that could provide training in other parts

of Montana as time allows. Someone from the University of Montana has expressed willingness to seek grant funding for the training project and to assist in the formation of the team. The community of Missoula Montana seems to be in a good position to seek grant funding for this or other initiatives, to support their continued efforts in improving their response to sexual assault. I recommend that the MCAD partner with law enforcement and other community members to explore the possibility of securing federal funding to support and expand on these current efforts.
5. Public Education and Outreach:
In addition to the activities listed in the report, I have provided technical assistance to the MCAD on numerous occasions. This technical assistance has mostly focused on providing some examples of how to disseminate information about the MCAD role in sexual assault response on the web page and on visible displays in the front office, providing some education in the area of sexual assault prevention and risk reduction for the community, providing educational materials upon request, facilitating MCAD involvement with the Victim's Academy at the University of Montana and continuing outreach to community clubs and groups with information about the prosecution of sexual assault in Missoula. Recommendations: Missoula has been continuously in the spotlight for how it has been impacted by the crime of sexual assault. Public perception about how cases are investigated and prosecuted in Missoula has been negative and many victims have expressed dissatisfaction and concern over how their cases have been handled in the criminal justice system. The Safety and Accountability Audit which focused on, "How Does the Community Response to Sexual Assault Engage and Support Victims, and Enhance Victim Safety and Offender Accountability" was released in the spring of 2015.
It lists as one of three gaps "Societal myths and misperceptions about sexual assault are deterrents to victims reporting and offenders being held accountable". The need for
active involvement with the community by members of the MCAD and its criminal justice partners is high. I recommend that the MCAD create a strategy for how to continue outreaching to and educating the public about the improvements they are making in their office in an effort to both educate and receive feedback from the public whom they serve.
6. Assessment of this Agreement and Review of Cases by the Montana Attorney General:
Monitoring: Monitoring of the agreement is going smoothly with the creation of the monitoring and compliance plan and tools previously mentioned that assist in data collection by the MCAD. Recommendation: I recommend that monitoring ofthe cases and data continue and that any areas of concern that emerge from this process be considered for training topics for the prosecutors in the future.

Review of Cases: The practice of reviewing cases is rich and instructive. I encountered some difficulties reviewing declined and pending cases due to not having access to full reports, complete case files or victim and suspect interviews from outside of Missoula during the first six months that the MOU was in place, and more recently due to a lack of time for reviews during a site visit to Missoula in May of 2015. Interestingly, the number of cases sent over from MPD for filing dropped significantly in the second half of the year (as noted in the 4th quarter report) thereby reducing the opportunity to review cases. Case reviews are an important tool in improving the quality of prosecutable cases as well as the outcomes of the cases themselves. Recommendation: I recommend that a more formal case review process be identified and implemented by the MCAO and MAGO in order to create a more consistent method for case reviews where data and feedback can be collected and reviewed in a manner that will be helpful to the MCAO. I also recommend that this practice continue beyond the first year of the MOU in order to review a sufficient number of cases over time and to identify and document any trends.
Please let me know if you have any questions or need any clarification from me. It is indeed an honor to assist your office and the citizens of Missoula, Montana.
Anne Munch, Esq. 
 Technical Advisor to the Montana Attorney General 


 
 Tim Fox Attorney General

ATTORNEY GENERAL

STATE OF MONTANA
Joseph P. Mazurek Building 215 North Sanders P.O. Box 201401 Helena, MT 59620-1401

Montana Attorney General’s Office
FINAL QUARTERLY 
 REPORT

For Period Ending January 31, 2016
Re: MOU/Agreement Requirements between the Montana Attorney General, the US Department of Justice and the Missoula County Attorney’s Office.

Montana Attorney General’s Office FINAL REPORT February 2016
TABLE OF CONTENTS:  Introduction from MT Attorney General Tim Fox………………………………….p. 3
  Outline of Work Conducted Pursuant to the MOUs in the Reporting Period……....p. 5
  Outline of Compliance Updates…………………………………………………….p. 5
  Technical Advisor Recommendation Updates……………………………….……..p. 9
  Outline of Aggregate Data Analysis………………………………………………...p. 15
  Conclusion……………………………………………………………………….….p. 23
  Attached Exhibits 1-3:
o Exhibit 1, Victim Witness Coordinator Survey o Exhibit 2, Spreadsheet of Cases Referred to MCAO for Prosecution, June 2014-Jan. 31, 2016
 o Exhibit 3, Spreadsheet of Cases Referred to MCAO for Review Only, June 2014-Jan. 31, 2016

2


Tim Fox Attorney General

ATTORNEY GENERAL

STATE OF MONTANA
Joseph P. Mazurek Building 215 North Sanders P.O. Box 201401 Helena, MT 59620-1401

AN INTRODUCTION FROM TIM FOX,
ATTORNEY GENERAL OF MONTANA On June 10, 2014, I signed a memorandum of understanding (MOU)1 with Missoula County, the Missoula County Attorney’s Office (MCAO), and the United States Department of Justice (USDOJ) resolving USDOJ’s investigation of the MCAO’s handling of sex assault prosecutions. This MOU outlined a cooperative agreement between the Montana Attorney General’s Office (MT AGO) and the MCAO to ensure the success of the MCAO’s efforts to improve its response to sexual assault. My office provided the first report to the USDOJ in December 2014 and we have since published four quarterly reports for the periods ending in January, March, June and September of 2015. These reports are available here: https://dojmt.gov/agooffice/missoulacounty-agreement
This document represents the final Quarterly report that will be prepared by our office pursuant to the agreements, but work on these agreements will continue through June, 2016. The MCAO will continue to collect and provide data to the MT AGO through June 2016 as set forth in Section G(2)(e) of the MOU between US DOJ, MT AGO, and MCAO. The parties have also agreed to begin working with the MCAO, the USDOJ and our Technical Advisor, Anne Munch to provide
1 This and the other MOUs are attached to the First Quarterly Report, available here at https://dojmt.gov/wpcontent/uploads/Quarterly-Report-January-2015.pdf.
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the public with a final reflection on this extraordinary effort, to be published after June, 2016, when all obligations under the agreements are scheduled to be complete. For now we should take a moment to celebrate the accomplishments that the MCAO has achieved through cooperation with all the parties to the agreements. The MCAO has made dramatic improvements in their pace of prosecution, services to victims, and administrative structure in handling these cases. The MCAO, along with their colleagues in the Missoula Community are truly a model we can all look to in how to better bring justice to victims of this terrible crime. While we celebrate these accomplishments, we also must not forget that there is always more that can be done . It remains true that most victims of sexual assault never come forward and even those who do, many do not want to participate in prosecutions. I see the work done under these agreements not as a finish line, but as a starting point for further improvements in handling of sex assault cases all around our great state. This is why my office is currently working with stakeholders from Missoula and all around Montana on a number of initiatives, including proposed legislative improvements to our statutory definitions of "consent" and a pilot training to be held in Helena, MT on May 24 through 25 to provide best practices to attendees and a strategic plan to improve sex assault prosecutions within the Helena community. With these and many other efforts to follow, we look forward to continuing to work tirelessly to bring justice to all victims of sexual violence.
4

WORK CONDUCTED PURSUANT TO THE MOU’S IN THE REPORTING 
 PERIOD – September 9, 2015 through January 31, 2016

On September 17 and 18, 2015, Ole Olson of the MT AGO’s Prosecution Services Bureau (PSB) and Technical Advisor Anne Munch (TA) visited the Missoula County Attorney’s Office. Over the two-day period they conducted on site reviews and in person interviews with attorneys with regard to the declined cases and other cases requested to be reviewed during the prior reporting period. They also facilitated the formation of the Montana Multi-Disciplinary Training Team on Sex Assault, and attended the weekly Special Victims Unit meeting. Additionally, Anne Munch and local Missoula Police Detective Brad Waln conducted a twohour training with the Missoula County Sheriff’s Detectives on best practices for conducting sex assault investigations.
On February 1, 2016, the MCAO provided the MT AGO with the data described in the Monitoring and Compliance Plan, including a list of training and the updated Sexual Assault Case Data Forms. Having reviewed these materials, the MT AGO, TA and MCAO discussed the reporting points outlined in the Monitoring and Compliance plan. The MT AGO followed up with specific queries on several particular cases. Additionally, the MT AGO followed up on specific points that the TA had raised in her letter which accompanied the June 2015 Quarterly Report.
MOU COMPLIANCE UPDATES

The following is a summary of the updates provided by the MCAO to the MT AGO in order of the subject topics provided in the Monitoring and Compliance Plan.

I. cases:

Changes, if any, to policies and guidelines for handling sexual assault

 No changes in this reporting period.

II.

A list and description of any Sexual Assault related trainings conducted or

attended by MCAO attorneys and supervisors, including victim advocates, the MPD or

MSO since the last Quarterly Report:

 9/17/15 Anne Munch facilitated a sexual assault meeting with our Special Victims Unit to review cases, strategize and identify any remaining gaps;

5

 10/6/15 Cathy Dorle and Brian Lowney attended training by expert Gael Strack, entitled Saving Lives: Assessing, Investigating and Prosecuting Strangulation Cases;
 10/7 & 8/15 Cathy Dorle attended the Montana Board of Crime Control’s MONTANA CRIME PREVENTION CONFERENCE at the University of Montana;
 10/16/15 Investigator Mike Dominick attended Profiling Abusers and Killers: 
 Common Traits and Differences in Hamilton, Montana;

 11/9 & 10/15 Not in Our State Summit – Sexual Assault in Montana: Fact, Fiction, and Future – Kirsten Pabst was a panelist; all members of the Special Victim’s Unit attended the conference;
 12/10/15 Jordan Kilby, Suzy Boylan and the Missoula County Sheriff’s detectives participated in a webinar entitled Raped or "Seduced"? How Language Helps Shape Our Response to Sexual Violence;
 1/20-22/16 Jordan Kilby attended the Montana Children’s Justice Conference, in Big Sky, Montana; and
 Jordan Kilby will be attending the EVAWI annual conference March 22-24, 2016.

III.

A list of the designated sex assault prosecutors, supervisors, and in-house

victim advocate: (* Indicates there has been a change since the last Quarterly Report.)

 SVU Supervisor: Jason Marks;
  SVU Attorneys: Jen Clark, Suzy Boylan, Jordan Kilby, & Brian Lowney;
  Investigative Specialist: Jordan Kilby;
  MCAO Investigator: Mike Dominick.
  Victim Witness Coordinator: Cathy Dorle.


IV.

Changes, if any, to MOU’s between MCAO and MPD and MCSO since the

last Quarterly Report:

 None.

V.

Current Sex Assault Case Data Forms on all sex assault cases referred to 


MCAO for charging or review. Data forms show new referrals and/or changes in 


status of previous referrals since the last Quarterly Report: 


 The MCAO forwarded all current Sex Assault Case Data Forms to the AG.

VI.

Updates as to participation and/or results of Missoula’s sex assault safety and

accountability audit and the victim and advocate survey through the University of

Montana and MPD.

6

 Since the last report the MCAO has conducted one additional victim survey in a case that has been resolved. As with the previous surveys, this survey was conducted by the victim witness coordinator by telephone with the victim. The feedback was once again positive. The victim responded that the prosecutor “made sentencing so much more comforting than I ever could have imagined.” She also stated “I have nothing but great things to say about the Missoula County Attorney’s Office and am so grateful that Jen Clark stayed by my side the whole way.” The complete survey is attached as Exhibit 1.

VII.

Status update on the Special Victims Unit process at the MPD:

 Jordan Kilby continues to be co-located at MPD in the Special Victims Unit to assist in ongoing investigations and facilitate more rapid case review and charging decisions. MPD has expressed that her presence in their SVU has continued to be tremendously valuable in assisting detectives in their investigations and in preparing cases for charging.
 On January 8, 2016, Missoula Police Chief Mike Brady sent County Attorney Kirsten Pabst a letter praising the County Attorney’s Office in general and Jordan Kilby, Jason Marks and Kirsten Pabst in particular for their recent work with the police department on major cases. Chief Brady wrote,
“We would also like to emphasize the importance of having Ms. Kilby’s presence within our Detective Division. . . [H]er presence cannot be overstated [because of] the good work and assistance she provides to our investigators.” He continued, “Thank you to your and your office for their assistance. We look forward to maintaining the great working relationships we have established.”

VIII.

Status update on MCAO involvement with law enforcement and community

partners and update on community education efforts:

 Suzy Boylan has been actively participating in statewide efforts to re-write the 
 statutes pertaining to sexual intercourse without consent and sexual assault. 

 The MCAO’s individual outreach efforts this last quarter include: o 9/14/15 University Council on Student Assault meeting UM Boardroom, attended by Kirsten Pabst; o 9/17/15 Multi-Disciplinary Team Steering Meeting UM Boardroom, with AG’s Office, Anne Munch, Jason Marks, Jennifer Clark, Suzy Boylan, Brian Lowney, Jordan Kilby, Cathy Dorle and Kirsten Pabst; o 9/18/15 Kirsten Pabst met with Anne Munch to discuss progress to date and identify remaining gaps and ideas for continued outreach;
7

o 9/28/15, 10/19/15, 11/2/15 Montana MDT Training Team on Sex Assault conference, with Kirsten Pabst, Cathy Dorle, Jordan Kilby, Jennifer Clark and Suzy Boylan;
o 9/29/15 Kirsten Pabst and Cathy Dorle met with the CVA staff for our quarterly meeting/sharing;
o 10/8/15 Kirsten Pabst was the guest lecturer at UM Criminal Adjudication class on changes in how sexual assault cases are handled in Missoula and in particular on the benefits of the integrated SVU unit;
o 10/14/15 Kirsten Pabst was the guest speaker at the Sunrise Rotary Club, discussing changes in the office and the building of our SVU;
o 10/28/15 Jennifer Clark presented at the Citizen’s Law School in part on how sexual assault cases are handled in Missoula;
o 11/9 & 10/15 Not in Our State Summit – Sexual Assault in Montana: Fact, Fiction, and Future – Kirsten Pabst was a panelist; all of the Special Victim’s Unit attended the conference;
o 11/19/15 Jennifer Clark presented a CLE at the law school on prosecuting sexual assault and domestic violence cases;
o 11/30/15 Suzy Boylan and Jennifer Clark participated in the Montana MDT Training Team on Sex Assault, Helena meeting; and
o 12/9/15 First Step Advisory Board Meeting– Jason Marks and Suzy Boylan participated.

IX.

Status of the $10,000 Expert Witness fees fund:

 The fund has been used to pay the following experts in sexual assault cases tried this past Quarter: No cases tried in this period.

X.

Review of all MCAO files for all declined sexual assault cases since the prior

Quarterly report, if any, as well as any other cases requested to be reviewed by the TA

and MT AGO:

There were no declined sexual assault cases between September 8, 2015 and January 31, 2016.

 The TA and MT AGO have completed the case review process for LE case number 2015-4283 which was charged and then dismissed prior to September 8, 2015, pursuant to the victim’s request. The MT AGO and the TA reviewed the case file and conducted an in person meeting with the prosecuting attorney and SVU supervisor Jason Marks. This case was an example of the struggle in balancing respect for a victim’s wishes with the need to hold offenders accountable. Ultimately, MT AGO and the TA suggested to the MCAO that this was a case where the MT AGO and TA 8

believed that more could have been done to hold the offender accountable. The MCAO maintains that it would not have been appropriate to continue prosecution of a sexual assault against the wishes of the victim. This case remains unfiled. The MT AGO is not recommending that the MCAO reverse course after the fact on this case as victim’s request to dismiss has already been granted and reversing course at this point would not be just to either the victim or the defendant. As a result of this review, however, the MCAO and MT AGO agree that on future cases the MCAO will specifically look for what more can be done to engage or re-engage victims on cases where the victim is reluctant to prosecute. The MCAO will at least consider proceeding on cases against the victim’s wishes where the sexual assault case dynamics of the case are more informed by domestic violence case as opposed to a sexual assault case.
 The TA and MT AGO also conducted formal case review on LE case numbers 20151951; 2015-27095; 2015-29653; and 2015-15509. These cases were all referred to the MCAO by MPD for review. All four cases involved homeless victims and were placed inactive by MPD after victim discontinuation. These cases highlighted the difficulty faced by law enforcement in completing investigations of sexual violence against this vulnerable population. The MT AGO and the TA reviewed the case files and conducted a telephone conference with the prosecuting attorney who reviewed the cases and SVU supervisor Jason Marks.
 As a result of issues identified and discussions arising out of this case review process MCAO has identified a number of opportunities to try and improve outcomes on cases where the victim does not wish to participate or is reluctant. The MCAO has engaged a trainer from the Montana Native Women’s coalition to help the MCAO engage with Native Victims of sexual assault. The MCAO has also communicated with the MPD to ensure that the MPD will contact the “on-call” SVU attorney when an “off hours” rape case is reported so that appropriate guidance can be ensured at the outset of a case.

TECHNICAL ADVISOR RECOMENDATION UPDATES

Anne Munch made a number of recommendations in her letter dated June 23, 2015. Some of these updates were addressed in the Quarterly Report for Period ending September 8, 2015. For continuity, the prior updates are included here along with the updates that occurred in the current reporting period.

I.

Development of Policies and Guidelines for Sexual Assault Cases:

9

 Ms. Munch recommended that the MCAO continue to utilize the Condensed Policy and Guidelines for Handling Sexual Assault cases: o A review of the Sex Assault Data Sheets indicates this is the case.
II. Training for County Attorney Supervisors and prosecutors in response to sexual assault:
 Ms. Munch recommended continued training for MCAO prosecutors in the areas listed in the MOU as well as on additional topics such as prosecuting cases involving Native American Victims and Drug and Alcohol Facilitated Assault: o The MCAO continues to look for training opportunities and will schedule and attend trainings on these topics. The MT AGO and the MCAO have scheduled a training session on working with Native American Victims for the second week in March of 2016.
 Ms. Munch recommended that she spend additional time with the MCAO developing training blocks for use in the larger Montana community: o Ms. Munch provided sample curriculum for sexual assault and domestic violence training at the inaugural meeting of the Montana Multi-Disciplinary Training Team on sex assault held in September, 2015. Development of a training program utilizing community partners is ongoing in conjunction with the MT AGO. The members of this team include the Prosecution Services Bureau out of the MT AGO, the MCAO, the MPD, Just Response, the UM PD, the crime victim’s advocacy center, the Title IX office of the University of Montana, and many others. The team’s mission statement is as follows:
The mission of the Montana Multidisciplinary Training Team on Sexual Assault is to provide trauma-informed training and technical assistance to communities across Montana by enhancing a coordinated, competent, professional and consistent response by criminal justice professionals with the goal of creating improved outcomes for victims, increasing offender accountability, and creating safer communities.
10

The training team is currently preparing to present a statewide training and workshop in Helena, Montana to take place on May 24 and 25 of 2016. This training will provide best practices in law enforcement and community response to sex assault, as well as a facilitated goal setting session for improving response to sex assault in the Helena Community.
III. Assurances to on-going practices within the Missoula County Attorney’s Office
 Ms. Munch recommended that the MCAO utilize the victim advocate and SVU to reduce the time period between the charging decision and the first meeting with the victim: o Under the administration of Missoula County Attorney Kirsten Pabst, the time between charging decision and first meeting with the victim has improved dramatically. For example, in the first report, the average time between referral of a case and contact with victim was 35 days. In this final reporting period, the average time between referral and contact with the victim was less than one day. This improvement is due in large part to not only a focus on this metric, but also the availability of a dedicated victim advocate within the MCAO to ensure immediate contact with victims.
 Ms. Munch recommended that the MCAO continue to collect and evaluate data with regard to communication with victims and advocates in order to ensure long term changes: o The parties to the MOUs have all agreed MCAO will continue to collect and provide data to the MT AGO through June 2016 as set forth in Section G(2)(e) of the MOU between US DOJ, MT AGO, and MCAO.
 Ms. Munch recommended that the MCAO solicit and consider feedback of victims and community based advocates in order to ensure that her role and the introduction of these services to victims in the community are maximally effective and the services are not unnecessarily duplicated: o On June 29, 2015, the MCAO implemented a victim survey that is conducted on each closed sex assault case. These surveys are conducted either in person or over the phone by the MCAO’s victim advocate on every closed sex assault case. 11

As of this report a total of four surveys have been completed and all indicate positive experiences by the victims. Additionally, Kirsten Pabst and Cathy Dorle have been meeting with the Crime Victim Advocates on a quarterly basis, to discuss on-going positive relationships between the offices, identify gaps in services and reduce duplication of efforts.
MCAO reports that duplication of services has been identified and addressed primarily through regular communication between the Ms. Dorle, the community advocates, and the victims in order to identify the needs of each victim, given that each case/victim is different.
MCAO reports that gaps in services were identified primarily in the area of postconviction services. Accordingly, the MCAO has directed Ms. Dorle to provide post-conviction services to victims. This has proven to be a very valuable and appreciated service to victims in the community. The victim advocate works to track down victims to notify them of their offender's parole hearings, and assist them as needed to testify and prepare written statements. Ms. Dorle has personally spoken to the Parole Board on their behalf. Following parole hearings, Ms. Dorle notifies victims of the outcome, and provides follow up information such as explaining the Dept. of Corrections programs to them, and keeping them informed of the inmate's movements within the DOC, referring them to the VINE system, and other helpful/informational resources.
 Ms. Munch recommended that the SVU participate in some strategic planning with the SVU partners to identify the best methods for utilizing and growing prosecutorial and investigative expertise in the SVU: o The MCAO is an active member of Just Response and Just Response as a whole is working toward the long term goal of a Family Justice Center in Missoula. There are also ongoing efforts within Just Response to identify gaps in services and areas for improvement. Finally, the MPD is heading up the efforts of the SVU around policies and practices and by all reports operations are going well.
12

 Ms. Munch recommended the SVU identify and implement a process to help SVU prosecutors evaluate stress levels and effectiveness on a routinely scheduled basis: o MCAO supervisors are monitoring stress levels with the understanding that SVU attorneys are at a high risk for burnout. Of particular concern is the high caseload being handled by the SVU attorneys. Current staffing in the MCAO does not allow for either a reduction in caseload or rotation of attorneys out of the SVU. This issue will be addressed in the next budget cycle with a request for an additional attorney as well as an enhancement to pay for professional debriefing with a local expert on vicarious trauma associated with these cases.
 Ms. Munch recommended that the SVU review MOU’s between MCAO and the law enforcement partners to ensure they are being implemented and followed and whether they need revision: o The MCAO reports that the MOU’s between the MCAO and the MCSO, and the MCAO and the MPD are in compliance by all partners. The MCAO and the MT AGO would prefer for the MCSO to assign a specific SVU detective to handle sex assault cases, however, those items are not covered in the MOU’s and it is clear at this point that the MCSO will not accept such a term.
 Ms. Munch recommended that a member of the MCSO who will be handling sex assault cases be identified and join the SVU as quickly as possible: o The MCSO has specifically declined to designate an investigator to handle sex assault cases and join the SVU. The MCSO chose to have sex assault cases as part of the general detective rotation out of a concern for investigator burnout. There is no plan to change this in the foreseeable future.
 Ms. Munch recommended that supervisor review continue over a longer period of time in order to guarantee forward progress and watch trends over time: o The MCAO intends to have sex assault cases reviewed by the SVU supervisor on a permanent basis.
IV. Improved communication with law enforcement and community partners:
13

 Ms. Munch recommended that the SVU participate in an on-site visit to other SVU’s operating in similar communities: o The SVU conducted a site visit to an SVU in Boise, Idaho in August, 2015. The SVU has also been in phone contact with other similar units around the country.
 Ms. Munch recommended that members of the SVU identify specific areas where additional training for all SVU members would be helpful to improve the quality of the cases: o While not directly related to the quality of any of the current cases being prosecuted by the MCAO, as noted above, MT AGO has already discussed with the MCAO SVU plans for a training on working with Native American Victims which is planned for March. Ms. Munch and the SVU supervisor have also had significant conversations about the best way of dealing with a victim’s wish to decline a case and those conversations have served to inform the supervisor’s review of cases being handled by the SVU. Specifically, the supervisor reviews focus on what efforts have been made to engage or re-engage victims in a particular case. If possible the supervisor also likes to meet with the victim and the attorney handling the case. We have also discussed the possibility that a particular case may need to be treated as a domestic violence case where we prosecute even if the victim does not wish to proceed.
 Ms. Munch recommended that the MCAO consider being a partner in the formation of a multi-disciplinary training team that could provide training in other parts of Montana: o On September 17, 2015, Kirsten Pabst and all the MCAO SVU attorneys attended the facilitation meeting for the creation of the Montana Multi-Disciplinary Training Team on Sex Assault. Over twenty members of the professional community attended and brainstormed ideas for the structure, funding and mission of the team. The team has applied for various grant funds and is currently planning a pilot statewide training and workshop to take place in Helena, MT on May 25 and 26, 2016. The plan is for additional trainings to take place in other parts of the state under this initiative. MCAO staff are involved in planning and executing the multi-disciplinary training.
14

V. Public Outreach and Education:
 Ms. Munch recommended that the MCAO create a strategy for how to continue outreaching to and educating the public about the improvements they are making in their office in an effort to better educate and receive feedback from the public from whom they serve: o Kirsten Pabst has been a regular guest on TalkBack radio program, discussing the SVU, the role of the Victim Witness Coordinator, the new investigator's role and Jordan Kilby's specialization at the MPD's SVU. Members of the MCAO are also involved in the formation of the new Montana Multi-Disciplinary Training Team on Sex Assault and are contributing time and expertise to its development. Specific outreach efforts are described in detail above.
VI. Assessment of this Agreement and Review of Cases by the Montana Attorney General
 Ms. Munch recommend that case reviews continue and that a more formal case review process be identified and implemented by the MCAO and MT AGO in order to create a more consistent method for case reviews: o The MT AGO and TA have completed their final formal case review of MCAO sex assault cases. However, the MT AGO will continue to review case data provided for the remainder of the term of the agreements and MCAO will continue its formal internal supervisor review of all sex assault cases for the foreseeable future.
AGGREGATE DATA ANALYSIS
The MOU between the MT AGO and MCAO2 contemplates that the MT AGO will provide in this quarterly report “an analysis of collected data from the MCAO and a report on all measurable improvements in the response to allegations of sex assault.” For purposes of this report, the Data analyzed will include those items listed on page 3 of the MOU between the MCAO, MT AGO and USDOJ, which includes the Aggregate Data on Sex Assault cases from June 2014 through January 31, 2016, specifically including:
2 All the MOUs referenced in this report are attached as Exhibit to the First Quarterly Report, available here at
https://dojmt.gov/wp-content/uploads/Quarterly-Report-January-2015.pdf. 15

 The number of sexual assault cases referred for review by local law enforcement to MCAO;
 The number of sexual assault cases charged by MCAO;  The disposition of charged sexual assault cases;  The number of sexual assault cases in which additional investigation was requested of
local law enforcement;  The number of victims of sexual assault who have utilized the services of the in-house
victim witness coordinator.
As a pre-requisite to gathering this Aggregate Data and as a way to monitor compliance in particular cases, the MCAO also is providing the MT AGO with the following case specific data as outlined in the Monitoring and Compliance Plan (See March 2015 report, Exhibit 2):
 Copies of all Current Sex Assault Case Data Forms on all cases referred to MCAO for charging or review since the last Quarterly Report.
 Copy of the complete files for all declined sex assault cases, if any, since prior Quarterly report.
 Data on sexual assault cases, organized by Defendant name and Case Number, which includes:  Referral type: review or charging.  Decision made  Disposition  Sentence  The following dates and time spans: Date of referral, Date of any request for further investigation; Date of prosecution decision; Date of meeting with victim; Date of meeting with advocate; Date of plea offer; Date of Disposition.
The Aggregate Data provided by the MCAO is presented in attached Exhibits 2 and 3. Exhibit 2 represents cases referred for a charging decision from June 2014 through January 31, 2016. Cases referred for a charging decision are cases where law enforcement feels it has completed investigation and that there is probable cause to charge the case.
Exhibit 3 represents cases referred from June 2014 through January 31, 2016 for “review only.” Cases referred for “review” are cases “where, in the eyes of the MPD detective, the investigation has not developed probable cause necessary for arrest and prosecution.”3 The assigned prosecutor reviews that investigation and either agrees with the law enforcement decision to make the case inactive or refers the case back for further investigation.
3 Memorandum of Understanding Between Office of the Missoula County Attorney’s Office and the City of Missoula Police Department (Dec. 13, 2013), at p.2.
16

We note that the sub-categories of “cases referred for review,” which includes cases where victims declined to participate, should not be read to imply that the MPD or the MCAO or the MT AGO considers a victim’s decision to cooperate with the case as a pre-requisite for probable cause to arrest or sufficient evidence to charge. Regardless of the way that these cases are referred to the MCAO, all the cases are subjected to the same substantive review by a prosecutor to determine whether the case should be charged, declined, or referred for further investigation. The victim’s decision to participate is only one of the many factors that play into the prosecutor’s decision, and does not necessarily foreclose the possibility of charging the case.
I. Comparative Analysis of Cases Referred for Charging Decisions:
An analysis of the aggregate data for cases referred for a charging decision is provided below in Tables 1 and 2. Table 1 is based on data compiled in the first quarterly report (June 2014 through November 2014). Data gathered for the second quarterly report (November, 2014 through March 1, 2015) indicates that no cases were referred for charging in the reporting period ending March 1, 2015. Table 2 is based on the Data compiled during the reporting period of March 2, 2015 through June 4, 2015. Table 3 is based on the Data compiled during the current reporting period of June 5, 2015 and September 8, 2015. Table 4 is the current quarter, based on Data compiled during the reporting period of September 9, 2015, through January 31, 2016.
According to the MCAO Sex Assault Manual there is no specific deadline for making a charging decision on cases referred for prosecution or meeting with the victim. The manual states at pages 19 to 20 that the prosecution should make contact with the investigator within two weeks of referral and emphasizes that communications with victims is of paramount importance.
The six cases reported during this period were all charged. The data on these cases illustrates a trend of improvement in the pace of prosecution since the June 2015 Quarterly report. The average time between referral and charging has improved from 27 days in the June 2015, to 9 days in the September, to less than one day in the current reporting period. The time between the referral and contact with the victim has improved from 28 days in June to 7 days in September and now less than one day in the current reporting period.
17

Table 1: Analysis of Sex Assault Cases Referred for a Charging Decision


June 2014 and November 25, 2014 (Exhibit 2).


SA Cases Referred to MCAO for Charging by MPD and 10

MCSO

SA Cases Charged by MCAO

8

SA Cases Referred for Further Investigation by MCAO 1

SA Cases Declined by MCAO

1

SA Cases in Which Prosecutor Made Contact with Victim Average Time Between Referral and First Contact with Victim Longest Time Between Referral and First Contact with Victim. Shortest Time Between Referral and First Contact with Victim Average Time Between Referral and Charging Decision

84 35 days 147 days 0 days 21.4 days

Longest Time Between Referral and Charging Decision 70 days

Shortest Time Between Referral and Charging Decision 0 days

Table 2: Analysis of Sex Assault Cases Referred for a Charging Decision
 March 2, 2015 through June 4, 2015 (Exhibit 2)

SA Cases Referred to MCAO for Charging by MPD and 3 MCSO

SA Cases Charged by MCAO

0

SA Cases Referred for Further Investigation by MCAO 1

SA Cases Declined by MCAO

1

SA Cases in Which Prosecutor Made Contact with Victim Average Time Between Referral and First Contact with Victim Longest Time Between Referral and First Contact with Victim.

3 28 days 55 days

4 Regarding the two cases in which the victim was not contacted, one victim was unable to be reached despite attempts by the Detective and Crime Victim Advocate. The other victim had not been contacted at the time of this report.
18

Shortest Time Between Referral and First Contact with 9 days Victim Average Time Between Referral and Charging Decision 27 days
Longest Time Between Referral and Charging Decision 38 days
Shortest Time Between Referral and Charging Decision 16 days

Table 3: Analysis of Sex Assault Cases Referred for a Charging Decision


June 5, 2015 through September 8, 2015 (Exhibit 2)


SA Cases Referred to MCAO for Charging by MPD and 2

MCSO

SA Cases Charged by MCAO

1

SA Cases Referred for Further Investigation by MCAO 1

SA Cases Declined or Dismissed by MCAO

2

SA Cases in Which Prosecutor Made Contact with Victim Average Time Between Referral and First Contact with Victim Longest Time Between Referral and First Contact with Victim. Shortest Time Between Referral and First Contact with Victim Average Time Between Referral and Charging Decision

2 7 days 13 days 1 days 9 days

Longest Time Between Referral and Charging Decision 12 days

Shortest Time Between Referral and Charging Decision 7 days

Table 4: Analysis of Sex Assault Cases Referred for a Charging Decision


September 9, 2015 through January 31, 2016 (Exhibit 2)


SA Cases Referred to MCAO for Charging by MPD and 6

MCSO

SA Cases Charged by MCAO

6

19

SA Cases Referred for Further Investigation by MCAO 0

SA Cases Declined or Dismissed by MCAO

0

SA Cases in Which Prosecutor Made Contact with Victim Average Time Between Referral and First Contact with Victim Longest Time Between Referral and First Contact with Victim. Shortest Time Between Referral and First Contact with Victim Average Time Between Referral and Charging Decision

6 0.5 days 3 days 0 days 0 days

Longest Time Between Referral and Charging Decision 0 days

Shortest Time Between Referral and Charging Decision 0 days

II. Comparative Analysis of Cases Referred for “review only”:
An analysis of the aggregate data for cases referred for “review only” is provided below in Tables 4, 5, 6, 7 and 8.
 Table 4 includes data collected from June 2014 through November 2014 for the first quarterly report.
 Table 5 includes all data collected from November 2014 through March 1, 2015 for the second quarterly report.
 Table 6 includes all data collected from March 2, 2015 through June 4, 2015 for the third quarterly report.
 Table 7 includes all data collected from June 5, 2015 through September 8, 2015 for the fourth quarterly report.
 Table 8 includes all data collected from September 9, 2015 through January 31, 2016 for the final quarterly report.
The Sex Assault Policy and Procedure Manual, at page 19 through 21, provides that cases referred to MCAO for “review only” should be reviewed by a prosecutor within one month of referral. The Current report shows a continued decline in the review time taken on these cases by the MCAO. In the previous reporting period the average time to review a case was 5 days. In
20

the current reporting period the average time was 4 days. The MCAO now has been consistently within the one month standard on all cases referred for review since March of 2015.

Table 5: Analysis of Sex Assault cases Referred for “Review Only”

June 2014 through November 25, 2014 (Exhibit 3)

Average Time Cases in Which Cases in Which Cases in

Between CA Agreed with CA Referred Which the

Referral and Investigator

Back for

CA’s

Decision

Further

Review is

(Days)

Investigation Pending

Total SA Cases

16

40

12

4

0

Referred for

Review

SA Cases

9

41

7

Referred for No

PC

SA Cases

8

40

5

Referred Where

Victim Declined

to Participate

2

1

35

0

Table 6: Analysis of Sex Assault cases Referred for “Review Only”

November 26, 2014 through March 1, 2015 (Exhibit 3)

Average Time Cases in Which Cases in Which Cases in

Between CA Agreed with CA Referred Which the

Referral and Investigator

Back for

CA’s

Decision

Further

Review is

(Days)

investigation Pending

Total SA Cases

13

16

2

7

4

Referred for

Review

SA Cases

5

19

1

2

2

Referred for No

PC

SA Cases

4

4

1

3

0

Referred Where

Victim Declined

to Participate

5 The reasons for referring a case back for further investigations are varied. In one case the CA made contact with the victim and the victim decided to participate. Even where the victim has declined to participate, the CA will sometimes want to insure the timely collection of ephemeral evidence in the event the victim decides to later participate.
21

Table 7: Analysis of Sex Assault cases Referred for “Review Only”

March 2, 2015 through June 4, 2015 (Exhibit 3)

Average Time Cases in Which Cases in Which Cases in

Between CA Agreed with CA Referred Which the

Referral and Investigator

Back for

CA’s

Decision

Further

Review is

(Days)

investigation Pending

Total SA Cases

6

19

4

2

0

Referred for

Review

SA Cases

3

25

1

2

0

Referred for No

PC

SA Cases

4

15.25

3

1

0

Referred Where

Victim Declined

to Participate

Table 7: Analysis of Sex Assault cases Referred for “Review Only”

June 5, 2015 through September 8, 2015 (Exhibit 3)

Average Time Cases in Which Cases in Which Cases in

Between CA Agreed with CA Referred Which the

Referral and Investigator

Back for

CA’s

Decision

Further

Review is

(Days)

investigation Pending

Total SA Cases

9

5

8

1

0

Referred for

Review

SA Cases

3

13

2

Referred for No

PC

1

0

SA Cases

6

7

6

Referred Where

Victim Declined

to Participate

0

0

22

Table 8: Analysis of Sex Assault cases Referred for “Review Only”

September 9, 2015 through January 31, 2016 (Exhibit 3)

Average Time Cases in Which Cases in Which Cases in

Between CA Agreed with CA Referred Which the

Referral and Investigator

Back for

CA’s

Decision

Further

Review is

(Days)

investigation Pending

Total SA Cases

15

4

13

2

0

Referred for

Review

SA Cases

5

4

3

2

0

Referred for No

Did Gregory

PC

Bray fall in this

category? No,

when the

investigator lost

contact with the

victim it went

into the category

below

SA Cases

10

4

10

0

0

Referred Where

Victim Declined

to Participate

CONCLUSION
The data from this report shows that the MCAO has sustained the great improvement in the pace of its sex assault prosecutions, both in reaching decisions and communicating with the victim. This is likely due to the focus on these metrics by the SVU supervisor, the addition of more specialized prosecutors, the placement of an Investigative Specialist in the MPD and the work of the Victim Witness Coordinator. The data also shows that challenges remain in these cases in encouraging victims to come forward and participate in the prosecutions. It can be equally challenging for prosecutors to balance the wishes of the victims with the need to hold offenders accountable. A complete analysis of overall the successes, challenges, and further opportunities for improvement will be reserved for a final reflection after June 2016. For now, it suffices to say that the MCAO is in a drastically better position to meet the challenges that these cases pose and to make further strides bringing justice to victims.
23

The improvements seen in this final report are a credit to Missoula County Attorney Kirsten Pabst who brought to office a spirit of cooperation and a new focus on the pace of sexual assault prosecutions and specialized training as part of a broader goal of improving the experience victims of sexual assault have with the criminal justice system in Missoula. Her leadership, her placement of an Investigative Specialist in the MPD, and her hiring of an inhouse investigator have helped make the Missoula County Attorney’s Office SVU a model program for the state. Most importantly, credit for the improvements seen in this report goes to the prosecutors in the Missoula County Attorney’s Office who have shown tremendous dedication to their work, their community, and to continually evaluating themselves to find ways to improve the work they do
24

TThhaannkk yyoouu ffoorr aaggrreeeeiinngg ttoo aannsswweer aa ffeeww bbrriieeff qquueessttiioonnss.. IIwwoouultdd lliikkee ttoo ttaaltkk wwiitthh yyoouu aabboouut yyoouurr eexxppeerriieennce wwiitthh tthhee MMiissssoouullaa CCoouunnttyy AAttttoorrnneeyy's's OOffffiiccee.. II aappppredciaate aannyy iinnffoorrmmaation tthhaatt yyoouu aarree wwiillliinngg ttoo pprroovviiddee.. Iltt isis iimmppoorrttant ttoo rreeccooggnniizzee tthhaatt yyoouurr ppaarfttiicciippaattiioonn iiss vvoolluunnttaarryy.. YYoouu mmaayy sskkiipp aannyy qquueessttion(s) tthhaatt yyoouu ddoo nnoot ffeeeell ccoommffortable aannsswweerring. YYouUr rreessppoonnses ttoo tthhee ssuurrvey qquueesstions wwiilll bbee kkeepptt ssttrriicctly ccoonnffiiddeential. AAtt nnoo ppooiinntt wwiilll yyoouurr nnaammee aanndd/or iiddeennttiittyy bbee ccoonnnneecctteed wwiitthh tthhiiss ssuurrvvey aanndd tthhee aannsswweerrss tthhaatt yyoouu pprroovviiddee.. Ilnn ootthher wwoorrddss,, pprroossecutors wwiilllt nnoott kknnooww wwhhoo hhaass ttaakkeen tthhee ssurveyyoorr wwhhoo hhaass pprroovviided aa ppaarrttiicular aannsswweerr.. TThhee iinnffoorrmrnaattiioonn tthhaat yyoour aannsswwers pprroovviide iiss iimmpportant ttoo uuss,, aanndd wwee aask tthat yyoouu aannswer ccaannddiiddllyy., YYour aannswers wwiilll bbee uusseed ttoo iiddentify kkeeyy iissssues aanndd wwiilll pprroovvide aa bbasis ffoor iinnfforming ffuuttuurree eeffffoorrttss ttoo,, wwhheerree nneeeded, rreeffoorrmm aanndd iimmprove tthhee rreessppoonses oof pprros~ec-cuuttoorrs ttoo vviictimization rreeppoorrttss..
1.1. DDid a pprosecutoorr from tthhee MMiisssoula CCoounty AAtttorney's OOfffice mmeet or oofffer
to mmeet wwiith yyou ttoo ddiscuss wwhether oor nnot cchhaarges wwoouulldd bbe ffiledd iin yyoouur case?

OONo

_ @@ yfeess__-_=-.-~----;--i:1::-ffl_lyx,eess,, p/leaaS§ee?_oa0ssw4/w_e.t QQ!U,J_~esstfiroonn 1ahbeeifoore answering QQuuestiaon 22-..

11aa.. Comments: 


Ilf 
yes, did the prosecutoorr give a good explanation as to why the

Missoula County Attorney's Offlice
decided to file or not file

charges?

ONo

f@) Yes 


22.. Did the Missoulaa cCoouunnttyy Attornneeyy''ss oOffffiiccee file annyy chargess in youurr casee??
o No --------- If no, skip ahead to question 12.
Yes @.@ Yes -------- lIff yyes, ccoonnttiinnuuee wwiitthh the rest ooff tthhe ssuurrvveeyy.

EX.1

3. If the case was charged, did you meet with the prosecutor in person?
o No 


@ Yes~---------If yes, answer questions 3a and 3b before answering question 4. 


3a. If yes, how many times did you meet in person with the prosecutor?

01or2
o 30r4

050r6 (t) more than 6

3b. Did you meet in person with the prosecutor before the case was charged?

ONo

o Unsure

4. At what stage(s) of the case did you meet with the prosecutor in person?
m o {'"£ +\:)0~'\'N~ SC~ ~\vJ("::'i<S o.q~(e·o\ \V\,e­

5. Did you meet or speak with an advocate or the VictimlWitness Coordinator before the case was charged? DNa 
 III Yes 

6. Did you meet or speak with the prosecutor and/or VictimIWitness Coordinator by phone while the case was pending? DNa 

t)' Yes -------- If yes, answer Question 6a. 

6a. How many times did you meet or speak with the prosecutor and/or Victim/Witness Coordinator by phone while the case was still pending?

01 or 2 '03 or 4

050r6 (I more than 6

7. Did you have to ga ta court for a pre-trial hearingt trial or sentencing hearing? It) Yes ONo
o Unsure

8. Did the prosecutor prepare you for court? @Yes ONo
o Unsure

Comments:

9. Did the prosecutor describe the prosecution process to you? _Yes ONo
o Unsure

Comments:

·,:EN C(Cl..fIL... ,ld,!/A~ tv/DW uh~'b -I-he ! tD::t::Lli6f \

-fJ(ODe~5\ \r!o...S, O-i-'.V:£ ("JJtCt0 I iN'~ t-06 Pv 6e, ' ) ex:pJcLI~\j'e,RA

I jv·t /CJ ' I'I\J Ia;.e~fCl.f

cb€.. (tJv1lC- "",.jT lrJo~j{(j /1l I

/\J'.C__

f

~ (j

/I1e... IV (V1E...,

uncAers+V~h J ~

10. Did the prosecutor inform you of your rights as a victim in the following stages of the case?
a. Investigative
i> Yes
o No
o Unsure
ON/A
b. Pretrial
<I Yes
o No o Unsure o N/A
C. Trial ~Yes
o No o Unsure
o N/A
d. After Trial/Sentencing
Il Yes
o No
o Unsure
o N/A

Comments:
11. If the case was charged by the Missoula County Attorney's Office, what was the result?
'I> Plea agreement for the charged offense
o Plea agreement for a reduced charge
o Convicted at trial o Acquitted at trial o Hung jury
o Dismissed o Other
o Unsure
o Case is still pending
12. Do you have any final comments about your interactions with the Missoula County Attorney's Office? Comments:

L.E Cassee
N{umber

P,rree--rreeffeerrrraall Datee

C:oonnssuulltt

RReeffeerrred

RReeferrrreedd backk bbeeffore cchargiinngg ddeeccisiioohn

DDeecciisionn -­

11)chhaarrggeedd, ,22)

D)ate oof

declined,3)referred D)eacissiioonn

flor investiiggaattiioonn

Tfimmee Between RleeffeerrrraaUl/ D)ate offfiirrsstt contactt rereceipt wviith VVictimm or CVVAA atnd D)ecision

Time between rreeferral and ffirst contact wwith victimm or eCVVAA

L-EE Case
N{umber

Innitiaall Plea OOffer

2to0144--712248-73 Yes

9/23/22001144 No

Clhhaarsged - DC-14-527 9/24/2200114 11 day

1t00//2233//22O0r14 3300 days

20714--7122487733

30 MMSSPP w/ 15 ssusp
((waittiinngg for victim aappprovvaall beeffore sending)

21001144--1661 Y/ees

66/h1L1//2200114 Yes

Caharggeed CR-2014-­­ 1122668477--CC1l

33mo9 110O//220/22O0t1, 4
ddayvs

77//225s//1t44..

4l0 days

20714--11666671 4l0 yvears MSP

D)ate of Ilntial TTiime between

P,lleeaa Offfeerr

cchaarginngg//mmeeeettiinngg aand pleaa ooffer

C:ase SSeenntenccee
Disposition

Cchhaarrggainngg::44 mmoo., 18 22/171u/22o071:5 ddayys, CCoonnttaacctt::33 mo.
17 aayyss

TTrniaal:l 3/1166//7116

C:harging::33 mmoo.. 19 P,lleeaaddeedd

1L/l28/2O01r 4 dlayss, Contacctt:: 6 mo. 3 GiuUiillttyy via

dlavys

A\llffoortdi

Sentencciinngg 4//77/2016

TTiime between initiaall offeerr aand ddiispositioonn

TTiime Tlimee
between b)etween
chaarging referral and
aand d,isposittiioonn
dispositiioonn

V/ictim WAi/titnneess
Corrdinator involveed

N\to

Yes

2t0-01744--442203 Y/ees

6/12/22001144 No

D)eclined - VViictim wvoouulld not responndd too corrrreessppoonnddeenncece frrom deeteecive and CVA

6//1177/2O01t,4 44 dayvs

D)etectivvee 
and arddvvocattee 
unabllee to croonntactt viacctitmim.. Calll to v,iictimm 
advooccaattee 6;/24/2007144

12 days

2014--44220033 N/A

N/A

N/A

N/A

N/AA

N/A

N/A

N/A

N,1oo


PPleaded

G6uilttyy--112

CChhaarrggiing:22 mohntthhss yyeeaarrs alll

Sentenciinngg::

220174-2200880000 Y/ees

8/8/2200L144 No

C:harged - DC-14--443366

88//88//220o174 odays

2I mmoonths 13 1L0o//2217/201 4

20714--2200880000 225 with 15

1L0/12299/20114 221 days; Contaacctt:: 8 sruussppeennddeedd 12 yearrss with

Nioo

dlays

sruussppeennddeedd MIMSSP

ddayss

ssubjecctt to 10 suspended

eexxeptiioonn to

mman min.

220174-299336677 N!o

9/29/22007144 No

C:hhaarrggeedd - DC-14--553300

99//2299//22001t/4 o) days

CcVvAA-- 9/29/22007144 VvrICcrTtIMM -9/229/2014

C]VVA.-OO DDAAYYSS V/tIcCTTtIM -00 D)AAYYSS

20174-2299336677

MMet with victim 22.25.15 to discuss ppossible plea offers c.ame up with offer: 220 years MSSPP,, 12 ssuuspendedd

c:hhaarrgginingg::1151 days; 22/2277//2200115 fiirrst mmeeeettiing:115511
dlays

17/25/2071s5

AAgggg Asssaultti:

20 years MSP

with 12

dlefendant susppeennddeedd,,

p)leeaaddeedd

parollee

gIuuiillttyy;; PSE b)eainngg

reessttriction:44 years; SsIlWwOoCc: 11 montthhss 2 114 mmoonths 14 mmoonths N{o

c:ommppleted; 20 years MSP ddayvss

S;ENT set for with 12

9t/3/2200175s susppeennddeedd,,

parollee

reessttriction 44

yeeaarrss

concurrent

11.7.1155 - VViictim didd nhot

showw up for meetainngg,

called herr and spokke

with herr oveerr the

D)efendaantt haass been

220174-3355224466 N{o

171,//5s/2001144 Ongoiinngg

C:hhaarrggeedd - DC-14-598 1tt1/6/6//220014 11 dayv

phonnee,, she didd not 2 days
waant to commee in at that

d)leeaar he will not 20174-33s5224466 p)lead to SsIlWwoOcC,, nho

Trrial 4/13/22007166

Yes

timee.. Met with her

o)ffer

finaallly on 3.4.2001155

wheen her fatheer

brought her in

EX.2

2014-35246

(co­

No

defendant)

2014­ 14691/2014­ No 15207

2014­ 5768/2014­ Ves 15769

P140219-010 Ves

11/5/2014 Ongoing 7/9/2014 No
8/26/2014 No 11/12/2014 Ves

11.7.15 - Victim did not

show up for meeting,

Pleaded

called her and spoke

Tier 1: 20 with 10

guilty and

with her over the

2014-35246 suspended, Tier 2: 30

agreed to

Charged -DC-14-599 11/6/2014 1 day

phone, she did not 2 days
want to come in at that

Charging: 4 months.

Sentencing

(co­

with 10 suspended,

3/6/2015 Meeting: 2 days

testify

3/16/2016

Ves

defendant) Tier 3: 40 with 20

4/1/2015. 20

time. Met with her

finally on 3.4.2015

suspended

years with 18

suspended

when herfather

brought her in

Charged DC-14-373

7/10/2014 1 day

CVA ­ 07/15/2014 VICTIM - voicemaiJ: 8/6/2014; meeting: 08/20/2014

CVA ­ 5 DAVS, VICTIM phone: 27 days, meeting 1 month 10 days

20 with 10*

2014­

suspended MSP, 6

14691/2014­ months, 6 months,

15207

unless eval comes

back as tier 2 or 3

Charged CR-2014­ 12491-Cl

9/2/2014 7 days

Feb-15 5 months

2014­ 5768/2014­ 15769

21 months suspended, consecutive

Referred to LE for more investigation Email from Detective on 7/23/2015 that follow up is nearly complete

2 mo. 10 1/22/2015
days

P140219­ 3/31/2015 4 mos 9 days
010

Charging: 4 months 11 days; Contact: 3 months 1 day 11/21/2014 (however, requests made through CVA 5 days)

Pleaded Guilty

Sentence 2/24/15: 30 years with 15 suspended MSP

3 mo. 3 days

7 mo. 15 days

Charging: 2 months 11/30/2014
28 days

Sentence:

COUNT I:

DISORDERLV

CONDUCT

1. 10 days

Missoula

County

Detention

Facility, all

suspended

but time

served

2. $100 fine

Pleaded

3. $85

guilty 3/9/15 surcharge

5 months 6 days

9 mo. 11 days

7 mo. 14 Ves
days 9 mo. 4 days Ves

COUNTX: ASSAULT ­ REASONABLE APPREHENSIO N OF BODILV INJURV 1. Six months Missoula County Detention Facility, all c:"c:n""nrl""rl

2015-4283 Yes
2015-8782
2015-5207 Yes 2014-37431 Yes 2015-8886 No 2015-22922 Yes 2015-39359 Yes 2015-44365 Yes 2015-18565 Yes 2015-18072 Yes 2015-44525 Yes

3/5/2015

Charged after extensions granted

3/19/15: extension granted to because of difficulties contacting victim. Subsequent extensions granted to allow attempt to reach plea agreement before charging. Charged 7/21/2015

4 months 16 days

3/25/2015 20 days

2015-4283

offer to settle for misdemenaors precharge.

voicemail left for defense attorney on 6/8/2015

Initial meeting and plea offer: 2 months 14 days

Dismissed at victims request

4/10/2015 Yes

Referred for investigation

4/27/15: charging deadline extended to 5/8/2015 to be reviewed with Anne Munch 5/18/2015: referred back to law enforcment

1 month 8 days

Multiple unsuccefsul attempts to contact victim. Finally able to contact her through a relative on 6/15/15.

1 month 25 days

2015-8782

10/1/2016

Declined

n/a

Prosecution

4/6/2015 No

2)Declined - victim discontinuation

4/22/2015 16 days

Yes (from prior 6/18/2015 referral for
review)

2) Declined

6/25/2015 7 days

6/19/2015 then rereferred 8/14/2015

Referred for further investigation on 6/30/2015

3) Referred for more

6/30/2015

investigation then 1)

then

decision to charge

8/26/2015

8/26/2015

First: 11 days Second: 12 days

9/30/2015 No

l)Charged

9/30/2015 same day

10/21/2015 No

1) Charged

10/21/2015 same day

10/21/2015 No

l)Charged

10/22/2015 same day

10/26/2015 No

l)Charged

10/26/2015 same day

11/5/2015 No 1/19/2016 No

l)Charged l)Charged

11/6/2015 same day 1/19/2016 same day

4/15/2015 9 days 6/19/2015 1 day

2015-5207 n/a 2014-37431 n/a

9/2/2015 13 days

2015-8886 No offer

9/30/2015 same day 10/21/2015 same day 10/21/2015 same day 10/29/2015 3 days
11/5/2015 same day 1/19/2016 same day

Waiting on victim 2015-22922
response to offer 2015-39359 No offer 2015-44365 No offer
2015-18565 No offer
2015-18072 No offer 2015-44525 N/A

Litigating Motions
Trial 03/28/2016 Trial 6/08/2016 Trial 04/13/2016 Omnibus hearing 2/17/2016 Trial 4/29/2016
Warrant active

Yes

6 months 9

n/a

days

n/a

Yes

Yes No
Yes
Yes Yes Yes Yes Yes Yes

The cases below were referred to the Missoula Counttyy Attorney's Office by law enforcemmeenntt for review oonnllyy.. Cases referred for review only are cases in which the investigatoorr has determlinneedd that probable cause for a charge does not exist, no suspect has been identifieedd and all leads have been exhausteedd,, or the vviicdtim has requested that the investi8gationn be dissccoonnttiinnuueedd.. The assigned prosecutor reviews that investigation and either agreess with the law enforcemeenntt decision to make the case inactive or refers the case baacckkfor further innvveessttiigtaattion.

LE Casee Number
201.44--88554 2011,44-1,1L3348 2014-5100 P1310122--001100 201L4-2526 2014-3559 201L4-6195 201L4-18539 201L4-8880

Pre-referral consult Date Referred Reason for review

for review

only

Decision - lL})rreevviiew complete - agree with assessment or 2}) review complete - referred for further investigation

Date of Decision

Time Betweeenn Referral and Decision

yes

71/88/220011.44

No PC for charges review complete - agree 9e/8/220011.4 2 months

yes

7/le9/2014

VViictim

review complete - agree 71/22e91/20011.44 20 days

dCiisscconttiinnuation

1 month 22

no

77 /2s5/2014

No PC for charges

review complete - agree

9s1/1661/220011.44 days

No PPCC for charges; review complete - referred

2 months 4

no

6/lt188/2/20011.44 victim

for further investigation ­- 81/211.1/220011.44

days

discontinnuuaattiioonn

Review -complete agree

Victim

1 month 22

yes

66/12200/220011.44

review complete - agree 8/11122/122001144

discontinnuuaattiioonn

dayvs

??

6/231/22014

No PC for charges review complete - agree 88/l1t22//220014 1 monnth 19

days

review complete - referred

Victim

4 months 1l-1

yes

77 /1s5/2014

discontinuuaattiioonn

for furtherr investigation

11.L/l1L33/l2O01t44 days

Review complete - agree

yes

8l/s5l/220011.44

Unable to contact review complete - agree 81/11.5s/220011.44 10 days

victim

yes

8/5s/2014

No suspect

review complete - agree 81/112/220011.44 7 days

identifiieedd

EX.3

2014-1341

yes

2014-26666

no

2014-14419

no

2014-14419

no

2014-27553

yes

2014-2209/2014­ no
2310

5121126-013

no

2014-37431

Yes

2014-33668

yes

2014-12205/ UM: no
1406-00221

9/18/2014 9/25/2014 9/29/2014 9/29/2014 10/30/2014
8/26/2014
8/29/2014 12/23/2014

No PC for charges No suspect identified; victim discontinuation No PC for charges
No PC for charges No PC for charges; victim discontinuation
No PC for charges
Victim discontinuation
Victim discontinuation

review complete - agree 10/20/2014 32 days

review complete - agree review complete - agree review complete - agree

1 month 19 11/14/2014
days
1 month 14 11/14/2014
days 1 month 14 11/14/2014 days

review complete - agree 10/31/2014 1 day

reviewed - referred for more investigation; Received report 2.26.15 ­ review pending - review complete - agree

9/19/2014

24 days

reviewed - referred for more investigation

9/4/2014 5 days

reviewed - referred back because victim now wishes
1/2/2015 to proceed - see referred for charges list

10 days

12/19/2014 12/23/2015

No PC for charges

reviewed and met with victim on 2/3/15, referred 2/9/2015 for more investigation

1 mo. 20 days

MPD wanted review reviewed - referred for
while DNA being more investigation
processed.

1/28/2015 1 month 5 days

2014-12205/ UM: no
1406-00221

2014-31728

yes

2014-41168

no

2014-37104

yes

2015-1242

yes

2015-1519

no

2014-39542

no

2014-13070

yes

12/23/2015 1/2/2015 1/5/2015 1/29/2015 2/2/2015 2/10/2015
2/11/2015
2/11/2015

MPD wanted review while DNA being processed. No PC for charges No suspect identified; victim discontinuation
Victim discontinuation
No PC for charges; No suspect identified No suspect identified
Initially: Victim discontinuation rereferred for review: No PC

reviewed - referred for more investigation reviewed - referred for more investigation review complete - agree
reviewed and referred for more investigation. then, review complete - agree
review complete - agree
review complete - agree
reviewed - referred for more investigation ­ review complete - agree

1/28/2015
1/6/2015
1/6/2015
referred back: 1/30/2015, complete: 2/26/2015
2/5/2015
3/20/2015 initially: 2/17/2015 referred back: 5/11/2015 after meeting with Anne Munch

1 month 5 days 4 days 1 day 1 day and 28 days 3 days 1 month 8 days
6 days

No PC for charges review complete - agree 2/27/2015 16 days

2015-4946, 2015­ yes
4985

2015-2668

no

2014-12354

no

2015-5041

Yes

2015-9405

Yes

2015-8222

Yes

2014-37546

Yes

2015-14905

no

2015-15509

Yes

2/20/2015 2/23/2015

No PC for charges/unable to locate victim
No suspect identified

review complete - agree review complete - agree

reviewed 2/25/2015, but waited on finding victim and review complete 3/20/2015

5-30 days

4/1/2015 37 days

3/6/2015

No PC for charges, victim did not wish to pursue charges/recanted

reviewed and referred for more investiagion on 3/31/2015 - review complete - agree

3/31/2015

25 days

3/24/2015

No PC for charges

review complete/referred 4/21/2015

27 days

for further investigation

3/26/2015 4/1/2015 4/14/2015 5/11/2015 6/17/2015

Victim discontinuation Victim discontinuation Victim discontinuation No suspect identified Victim discontinuation

review complete - agree 4/13/2015 18 days review complete - agree 4/6/2015 5 days review complete - agree 4/27/2015 13 days review complete - agree 6/4/2015 24 days review complete - agree 6/18/2015 1 day

Referred back to MCAD after further investigation on 5/1/2015 and 2nd review complete 6/1/2015
Staffed with Anne Munch on 5/8/2015 and referred back for investigation on 5/22/2015

2015-17707

Yes

2015-8575

Yes

2015-27095

Yes

2015-79

No

2015-25311

Yes

2015-29096

Yes

2015-28669

Yes

2015-29653

Yes

2015-30199

Yes

2015-41339

No

2015-17134

No

2015-33341

Yes

2015-35453

Yes

2015-18763

No

2015-16532

Yes

2015-46206

Yes

6/24/2015 7/23/2015 7/22/2015

No PC for charges Victim discontinuation No suspect

Review complete - agree 7/16/2015 22 days Review complete - agree 7/23/2015 same day Review complete - agree 7/22/2015 same day

8/17/2015
8/27/2015 8/28/2015 9/8/2015 9/8/2015 9/11/2015 10/2/2015 10/14/2015 10/26/2015

No PC for charges
Victim discontinuation Victim discontinuation Victim discontinuation Victim discontinuation Victim Discontinuation Victim discontinuation Victim discontinuation
No PC

Review complete - waiting 9/2/2015
for victim contact

16 days

Review complete - agree 8/28/2015 1 day

Review complete - agree 9/2/2015 5 days

Review complete - agree 9/8/2015 same day

Review complete - agree 9/8/2015 same day

Review complete - agree 9/11/2015 same day

Review complete - agree 10/5/2015 3 days

Review complete - agree 10/29/2015 15 days

Review complete - agree 10/26/2015 same day

10/20/2015 No PC

11/6/2015

No PC

11/20/2015 20-Nov

Victim discontinuation Victim discontinuation

Review complete -agree 10/21/2015 1 day

Review Completereferred for more investigation

11/11/2015 5 days

Review Complete - agree 12/1/2015 11 days

Review Complete - agree 11/20/2015 same day

2015-28866

Yes

2015-17891

Yes

2015-37030

Yes

2015-46454

Yes

2015-40197

Yes

2015-21478

No

2015-41553

Yes

12/4/2015 12/9/2015 12/15/2015 12/15/2015 12/29/2015 1/4/2016
1/13/2016

Victim discontinuation Victim discontinuation Victim discontinuation Victim discontinuation Victim discontinuation

Review Complete - agree 12/4/2015 same day Review Complete - agree 12/17/2015 8 days Review Complete - agree 12/17/2015 2 days Review Complete - agree 12/17/2015 2 days Review Complete - agree 12/31/2015 2 days

No PC

Review complete - agree 1/15/2016 11 days

No PC- waiting on 
 DNA 


Review Complete ­ referred for more investigation: waiting on DNA

1/18/2016 5 days

 
 U.S. Department of Justice
950 Pennsylvania Ave, NW Washington DC 20530
FEB 14 2014
VIA EMAIL AND U.S. MAIL
Mr. Fred Van Valkenburg County Attorney Missoula County Courthouse 200 West Broadway Missoula, Montana 59802
Re: The United States' Investigation of the Missoula County Attorney's Office
Dear Mr. VanValkenburg:
As you know, for the last ten months, the Civil Rights Division ("Division"), in partnership with the U.S. Attorney's Office for the District of Montana, has been engaged in an investigation of the Missoula County Attorney's Office (the "County Attorney's Office" or "MCAO") concerning allegations of bias by the County Attorney's Office in the investigation and handling of sexual assault cases. This letter summarizes the evidence we have uncovered to date and describes the legal framework for assessing whether a constitutional or statutory violation has occurred.! As you are aware, we have delayed issuing this letter in the hopes that we might agree upon remedies to address the problems our investigation has found. You so far have been unwilling to respond to or even discuss the set of remedies we have proposed. Nonetheless, we are hopeful that, in light of your January 9, 2014 letter indicating a desire "to resolve this matter amicably," this letter can serve as a starting point for us to meet with you promptly and discuss a mutually agreeable resolution that will best serve the people of Missoula County, rather than expending scarce resources on protracted litigation.
We are aware of the complaint for declaratory judgment that you recently filed. As we have discussed on several occasions, and as set out further below - and contrary to each claim raised in your complaint - the Department of Justice has jurisdiction to investigate and to seek injunctive reliefto remedy discriminatory conduct. This jurisdiction arises from both the Violent Crime Control and Law Enforcement Act of1994, 42 U.S.C. § 14141 ("Section 14141"), and the Omnibus Crime Control and Safe Streets Act of 1968,42 U.S.C. § 3789d ("Safe Streets Act"). This letter is sent pursuant to these authorities.
1 Previous to this letter, the Division's Special Litigation Section investigated and publicly issued findings regarding the response to sexual assault by five other law enforcement agencies: the New Orleans (LA) Police Department; the Maricopa COIDlty (AZ) Sheriffs Office; the Puerto Rico Police Department; and, most recently, the University of Montana's Office of Public Safety and the Missoula Police Department. All but one of these law enforcement agencies - the Maricopa County Sheriffs Office - have entered into agreements with DOJ, aimed at cooperatively resolving the issues identified in DOJ's investigations and fmdings letters. DOJ initiated a civil lawsuit against the Maricopa County Sheriffs Office, based on the concerns described in its letter of findings, in May 2012.

In April 2012, we informed you of our investigation into allegations of bias regarding the MCAO's response to sexual assault cases and invited you to work with us as we explored these allegations. You declined, and throughout the investigation you have refused to provide requested documents, information, or access to staff for interviews. Despite this, we have learned significant information by reviewing documents available from other sources and by interviewing persons knowledgeable about the policies, training, and practices related to the County Attorney's Office's investigation and prosecution of sexual assault.
Our investigation to date has revealed substantial evidence suggesting that MCAO's response to allegations of sexual assault and rape discriminates against women and that this discrimination is fueled, at least in part, by gender bias. This bias erodes public confidence in the criminal justice system, places women in Missoula at increased risk of harm, and reinforces ingrained stereotypes about women. It also undennines sexual assault investigations in Missoula from the outset, impairing the ability of both police and prosecutors to uncover the truth in these cases and hold perpetrators of sexual violence accountable.
In addition, our investigation indicates that the County Attorney's Office has often failed to take the steps necessary to develop sexual assault cases properly so that informed and fair prosecutorial assessments may be made. As a result, female sexual assault victims in Missoula are deprived of fundamental legal protections and often re-victimized by MCAO's response to their reports of abuse.
Specifically, our investigation has uncovered evidence indicating that the County Attorney's Office engages in a pattern or practice of gender discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitntion and relevant statutes. In particular, there are strong indications that the decisions of the County Attorney's Office regarding the investigation and prosecution of sexual assaults and rape, particularly non-stranger assaults and rapes, are influenced by gender bias and gender stereotyping and adversely affect women in Missoula.
The County Attorney's conduct must be viewed in its totality. While no single fact is determinative, the following facts - talcen together - strongly suggest discrimination:
• Sexual assaults of adult women are given low priority in the County Attorney's Office;
• Adult women victims, particularly victims of non-stranger sexual assault and rape, are often treated with disrespect, not informed of the statns of their case, and re-victimized by the process - in many instances, victims are not even interviewed by a prosecutor before the decision is made to decline charging their case or to offer a plea agreement to the perpetrator;
• The County Attorney's Office neither has its own dedicated victim-witness personnel, as are routinely employed in prosecutors' offices across the nation, nor sufficiently coordinates with the Missoula Crime Victim Advocate Office to ensure the proper and respectful treatment of and communication with victims;
2

• The County Attorney's Office routinely fails to engage in the most basic communication about its cases of sexual assault with other law enforcement and other partners;
• The County Attorney's Office generally does not develop evidence in support of sexual assault prosecutions, either on its own or in cooperation with other law enforcement agencies; and
• Not until we began our investigation did the County Attorney's Office begin providing Deputy County Attorneys with the basic knowledge and training about sexual assault necessary to effectively and impartially investigate and prosecute these cases. This training remains insufficient and incomplete.
Our investigation indicates that an institutionalized indifference to crimes of sexual violence, coupled with bias against the women who represent the overwhelming majority of victims of sexual assault, handicaps the County Attorney's Office's ability to protect victims of . crime effectively or handle sexual assault cases fairly. Women consistently told us that Deputy County Attorneys treated them with indifference or disrespect, and frequently made statements to women victims, advocates, and the public diminishing the seriousness of sexual violence and minimizing the culpability of those who commit it. We learned that prosecutors did not communicate with female victims about their cases, did not inform them of the charges to be filed and did not seek their input about the type of relief to seek against the accused if convicted. In many cases, prosecutors failed even to return victims' phone calls.
Manifested in these ways, the County Attorney's Office's handling of crimes of sexual assault is indicative of unlawful gender bias, perpetuates a culture that tolerates sexual assault, dissuades victims from reporting crimes, leaves violent criminal activity unaddressed, and compromises the safety of all women in Missoula. Such a situation strongly suggests that MCAO stands in violation of the Constitution and federal anti-discrimination laws. See Village ofArlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 265-66 (1977) (law enforcement action with adverse discriminatory impact violates the Fourteenth Amendment when it is motivated, at least in part, by a discriminatory purpose).
We also have repeatedly emphasized, in discussions with you and your Office, that our investigation is focused on the MCAO's policies and practices, not the CountyAttorney's exercise ofprosecutorial discretion. We do not seek to second-guess the decisions of you or your attorneys to charge an individual with a crime. Our goal has been and continues to be identifying gender bias where it may exist in MCAO policies and practices; eliminating that bias in a constructive and cooperative manner; and thereby enhancing the public's trust in your Office's ability to respond to and make effective prosecutorial decisions about allegations of sexual assault and better protecting women in Missoula.
BACKGROUND
Our investigation of MCAO was part ofa larger inquiry conducted by the Division's Special Litigation Section and the U.S. Attorney's Office for the District of Montana. It focused not only on the role of the County Attorney's Office but also on the actions of the University of
3

Montana's Office of Public Safety ("OPS") and the Missoula Police Department ("Missoula Police" or "MPD") in handling allegations of sexual assault against women in Missoula. In May 2013, the Civil Rights Division reached agreements with those two agencies. The Division's Educational Opportunities Section also concluded an investigation ofthe University of Montana and reached an agreement to protect students from sexual harassment and sexual assault. At the same time it announced these agreements, the Division issued letters documenting its findings regarding OPS, the Missoula Police, and the University of Montana.2 The reforms carried out pursuant to those findings and agreements have already begun to improve the response of Missoula law enforcement to sexual assault and to serve as models for other campuses and communities nationwide.
The Division's investigation was prompted by widely expressed community concerns that Missoula law enforcement, including the County Attorney's Office, was failing to respond appropriately to reports of sexual assault, both on the University of Montana campus and elsewhere in Missoula. We received information indicating that the MCAO failed to pursue viable sexual assault prosecutions and that this reflected problematic dynamics beyond the generally acknowledged challenges of prosecuting sex crimes. There were concerns in Missoula that, as a result, women reporting sexual assaults were being denied access to criminal justice, and perpetrators of sexual assault were not being held accountable. There were further concerns that because of the experience many women had with the criminal justice system in Missoula, including the widely held perception of poor treatment of women reporting sexual assault, many victims chose not to report the crime.
The Special Litigation Section brought its investigation of the County Attorney's Office pursuant to 42 U.S.C. § 14141, and the Safe Streets Act. Specifically, the investigation sought to detennine whether the County Attorney's Office, as well as the Missoula Police Department and the University of Montana's Office of Public Safety, engage in a pattern or practice of unlawful gender discrimination in violation of the Fourteenth Amendment, the Safe Streets Act, and the regulations implementing the Safe Streets Act, 28 C.F.R. §§ 42.201-215. Under these laws, the County Attorney's Office is prohibited from discriminating against female sexual assault victims.
Under Section 14141(a), "[ilt shall be unlawful for any governmental authority, or any agent thereof, or any person acting on behalf of a governmental authority to engage in a pattern or practice of conduct by law enforcement officers ... that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States." Section 14141(b) gives the Attorney General the authority to seek "equitable and declaratory relief to eliminate the pattern or practice."
2 See http://www.justice.gov/crtlaboutlspllfiudsettle.php#police (under "Montana") and http://www.justice.gov/crtlaboutleduldocuments/c1asslist.php (under "Sex"). The investigation of sex discrimination by the University of Montana was conducted by the Division's Educational Opportunities Section pursuant to Title IV of the Civil Rights Act of 1964, 42 U.S.C. § 2000c-6, and Title IX of the Education Amendments of 1972, 42 U.S.C. § 2000h-2.
4

The Safe Streets Act provides in part that "[n]o person in any State shall on the ground of race, color, religion, national origin, or sex be excluded from participation in, be denied the benefits of, or be subjected to discrimination under or denied employment in connection with any programs or activity funded in whole or in part with funds made available under this title." Section 3789d(c)(1). The Safe Streets Act further authorizes the Attorney General to file a civil suit "[w]henever the Attorney General has reason to believe that a State government or unit of local government has engaged in or is engaging in a pattern or practice in violation ofthe provisions of this section." Section 3789d(c)(3). The County Attorney's Office is covered by Section 3789 as a recipient offederal funding authorized under the Safe Streets Act.
The County Attorney's Office serves as the state prosecutor in Missoula and employs 17 Deputy County Attorneys in two sections, criminal and civil. The Criminal Division prosecutes all felony offenses that occur in Missoula County and all offenses that occur in the County outside Missoula city limits. The County Attorney's Office has been led by the same County Attorney since 1998.3
METHODOLOGY
The Special Litigation Section's investigation of Missoula law enforcement has to date included interviews with law enforcement officers and with advocates, victims, witnesses, and other members of the Missoula community, in person over the course of 13 days on-site in Missoula and by telephone over the past year and a half. Our interviews included conversations with a former sex-crimes prosecutor with MCAO; former Missoula Police Chief Mark Muir4 and nine Missoula Police detectives and officers; representatives of 12 local, statewide, and university organizations that work on behalf of women and victims of sexual assault; and more than 30 women reportedly victimized by sexual assault in Missoula, or their representatives.
We engaged two expert consultants, one with nearly a decade of experience supervising a police department's sex-crimes unit and the other a former sex-crimes prosecutor and national training consultant in sexual assault response. With them, we reviewed policies, procedures, training materials, case files, related court filings, and other data and documentary evidence, including the case files for the more than 350 reports of sexual assault received by the Missoula Police between January 2008 and May 2012. We have made every effort to confirm witness accounts, where possible, with other evidence, including police reports, transcripts, and video recordings of investigative interviews, and gave weight only to those statements we could corroborate or otherwise deem credible. We have consulted with a wide range of advocates, practitioners, and academics with expertise in this field; reviewed academic studies and literature; reviewed Montana state laws relevant to the law enforcement and advocacy response to sexual assault;5 and reviewed national prosecution standards and training materials published
3 Missoula COIDlty Attorney Home, Missoula County Official Website, http://www.co.missoula.mt.us/cattorney/ (last visited Feb. 14,2014). 4 Mark Muir retired as Chief of the Missoula Police Department on December 20,2013. 5 Missoula advocates and attorneys expressed frustration with the limitations that Montana's sexual assault laws and sentencing standards impose on law enforcement's ability to effectively seek criminal justice for victims of sexual assault. Without expressing an opinion on these laws, we found that Montana law neither explains nOf excuses the deficiencies discussed in this letter.
5

by the National District Attorneys Association ("NOAA") and the American Bar Association ("ABA,,).6
LEGAL STANDARDS
The Constitution and federal statutes prohibit discrimination by law enforcement, including prosecutors, in responding to reports of sexual assault. When this discrimination amounts to a pattern or practice of unlawful conduct, the United States can sue for equitable and declaratory relief under 42 U.S.C. § 14141 or the Safe Streets Act or both. Sex discrimination by law enforcement may occur in either of two ways: where law enforcement practices reflect intentional sex discrimination, or where law enforcement practices have an unjustifiable disparate impact.
The Equal Protection Clause of the Fourteenth Amendment prohibits intentional sex discrimination, including selective or discriminatory enforcement of the law. Whren v. United States, 517 U.S. 806, 813 (1996) ("[T]he Constitution prohibits selective enforcement of the law based on considerations such as race."); Elliot-Park v. Manglona, 592 FJd 1003, 1007 (9th Cir. 2010) (Equal Protection Clause prohibits law enforcement from intentionally discriminating in the provision of any services to any degree); Estate ofMacias v. Ihde, 219 FJd 1018, 1019, 1028 (9th Cir. 2000) (in case alleging "inferior police protection on account of status as a woman, a Latina, and a victim of domestic violence," holding that there is an equal-protection right to have law enforcement services administered in a nondiscriminatory manner).
In addition to affirmative discrimination against members of protected groups, a failure to take action, on a discriminatory basis, can constitute unlawful discrimination. See DeShaney v. Winnebago County Dept. ofSocial Services, 489 U.S. 189, 197 nJ (1989) ("The State may not, of course, selectively deny its protective services to certain disfavored minorities without violating the Equal Protection Clause."); Bell v. Maryland, 378 U.S. 226, 311 (1964) (Goldberg, J., concurring) ("[D]enying the equal protection of the laws includes the omission to protect."). The Ninth Circuit has explained specifically that the constitutional right to have law enforcement services delivered in a nondiscriminatory manner "is violated when a state actor denies such protection" to members of protected groups on a prohibited basis. Estate ofMacias, 219 FJd at 1028 .. The courts have applied this principle to under-enforcement of the law when deliberate under-enforcement adversely affects women. See, e.g., id.; Balistreri v. Pacifica Police Dep 't, 901 F.2d 696,700-01 (9th Cir. 1988) (recognizing an Equal Protection claim based upon the discriminatory denial oflaw enforcement services to a victim of domestic violence because of her sex).
Law enforcement action violates the Fourteenth Amendment when a discriminatory purpose is a contributing factor; discrimination need not be the sole motivation for the action or failure to act to violate the Constitution. Arlington Heights, 429 U.S. at 265-66. Recognizing that discriminatory purpose is rarely admitted or blatant, courts look to the totality of
6 See, e.g., Na!'l Dis!. Att'ys Ass'n, National Prosecution Standards (3d ed. updated 2009), http://www.ndaa.org/publications.html; Am. Bar Ass'n, Standards for Criminal Justice: Prosecutorial Function Standards.
6

circumstances to evaluate whether a law enforcement activity or a failure to act was motivated by discriminatory intent. Courts will consider factors that indirectly indicate an intent to discriminate. A "not exhaustive" summary of the factors that courts may properly consider in conducting an inquiry includes: evidence of discriminatory impact; the "historical background" of the challenged discriminatory conduct; evidence of departures from "the normal procedural sequence" or "substantive departures" from a decision, "particularly if the factors considered by the decision maker strongly favor a decision contrary to the one reached"; and contemporaneous statements by the decision maker. See id. at 265-68; see also Balistreri, 901 F.2d at 701 (evidence of police officer's statement to domestic violence victim that ''he did not blame [the victim's] husband for hitting her, because of the way she was 'carrying on,'" "strongly suggest[s] an intention to treat domestic abuse cases less seriously than other assaults, as well as an animus against abused women").
Differential treatment of women premised on sex-based stereotypes, including stereotypes about the role women should play in society or how they should behave, also violates the Equal Protection Clause. See, e.g., United States v. Virginia, 518 U.S. 515, 517 (1996) (holding invalid explicit sex-based classification, and stating that "generalizations about 'the way women are,' estimates of what is appropriate for most women, no longer justify denying opportunity to women"); Nevada Dep 't a/Hum. Res. v. Hibbs, 538 U.S. 721, 730 (2003) ("Reliance on such [invalid gender] stereotypes cannot justify the State's gender discrimination [in employment]."); Mississippi Univ.for Women v. Hogan, 458 U.S. 718, 726 (1982) (holding that denying otherwise qualified males the right to enroll in state nursing school violated the Equal Protection Clause). Thus, where a law enforcement agency's failure to adequately respond to allegations of sexual assault is premised, at least in part, on sex-based stereotypes, that failure violates the Equal Protection Clause.
When law enforcement's handling of sexual assault cases is intentionally discriminatory or has an unnecessary disparate impact, it also violates the Safe Streets Act and its implementing regulations. A disparate impact violates the Safe Streets Act and its implementing regulations, even where the discrimination is not intentional, unless the defendant can demonstrate that the discriminatory impact is necessitated by some legitimate law enforcement or other purpose. See 28 C.F.R. § 42.203 (prohibiting recipients of federal funds made available under the Safe Streets Act from "utiliz[ing] criteria or methods of administration which have the effect of subjecting individuals to discrimination") (emphasis added); see also United States v. Virginia, 620 F.2d 1018, 1022 (4th Cir. 1980) (Safe Streets Act requires showing that defendants' discriminatory employment practices had an adverse impact on female job applicants, not proof of intentional discrimination, before defendants must demonstrate that challenged practices have a necessary relationship to the job).
The Safe Streets Act applies to entities receiving federal funds during the time ofthe discriminatory acts. The United States has jurisdiction to address discrimination based on gender by the County Attorney through the Safe Streets Act because the County Attorney's Office has received qualifying federal funding during the period in question and during the current fiscal year.
7

DISCUSSION
Prosecuting sex crimes is difficult. They often present investigative and evidentiary challenges that other crimes do not. Notwithstanding these difficulties, however, the County Attorney's Office's frequent failure to prosecute sexual assaults of women stands out. Based on an analysis ofthe information available to us, between January 2008 and May 2012, the Missoula Police referred 85 reports of sexual assault of adult women to the County Attorney's Office. According to the Missoula Police, a referral to the County Attorney's Office indicates that the Missoula Police has concluded its investigation of the case and is recommending that the case be prosecuted. During that same period, the County Attorney's Office filed charges in only 14 of the 85 reports of sexual assault referred for prosecution -less than 17 percent. During that same period, the County Attorney's Office notified the Missoula Police that it had declined prosecution in 42 of these 85 referrals, and all but one of these declinations involved a nonstranger sexual assault.7 The County Attorney's Office did not provide any notification to the Missoula Police in the remaining 29 cases.
MCAO's failure to prosecute sexual assault, particularly non-stranger sexual assault, does not seem to reflect inherent or insurmountable evidentiary hurdles. Rather, it is indicative of bias in the way the County Attorney's Office responds to sexual assault cases as a class. It also demonstrates how ill-prepared MCAO is with respect to prosecuting the bulk of sexual assault cases it receives from the Missoula Police. As discussed further below, our investigation revealed evidence that MCAO has a general disregard for sexual assault cases and the women who report them. This disregard is apparent in statements made by the County Attorney and Deputy County Attorneys, and in the manner in which Deputy County Attorneys interact with, or fail to interact with, women reporting sexual assault.
MCAO's bias against women victims of sexual assault is also apparent in its handling of non-stranger sexual assault cases, its failure to explain or document its decisions not to file charges in those cases, and what appear to be excessively long delays in completing its work in cases of sexual assault. Deputy County Attorneys often do not work with, or in some cases even communicate with, Missoula Police detectives to develop evidence for prosecution or to explain why existing evidence is insufficient to charge a case. They failed to communicate with victims about charging decisions or the status of their cases. Before our recent resolution with OPS and MPD, Deputy County Attorneys lacked sufficient training in the legal and scientific knowledge
7 We arrived at these numbers by comparing sexual assault and rape charges filed in the Missoula District Court between January 1, 2008, and May 1, 2012, with MPD case reports involving adult women referred to the County Attorney's Office during the sarne time period. Additional analyses of the 29 cases referred for prosecution by MPD between January 2008 and May 2012 that the COlmty Attorney's Office neither prosecuted nor expressly declined for prosecution was precluded by the COlmty Attorney's refusal to cooperate with our investigation. While the County Attorney's Office filed charges against 68 defendants in sexual assault cases between January 2008 and May 2012, insofar as we can detemaine based on the information available to us, only 14 of these involved adult women and were referred by MPD after January 1,2008. For our comparison to be accurate, we had to restrict our count of prosecutions to prosecutions of cases referred after January 1,2008. Also to ensure an accurate comparison, we excluded referrals from agencies other than MPD (such as the Missoula County Sheriff's Office) because, without the cooperation of the County Attorney, we did not know the number ofreferrals from other agencies and thus could not calculate the prosecution rate for those referrals.
8

and strategies necessary to effectively prosecute sexual assault against women. These and other practices related to the prosecution of non-stranger sexual assault cases are at odds with the practices of prosecutors' offices around the nation and run counter to guidance set forth by the NDAA and the ABA.
In addition, MCAO's approach to sexual violence in Missoula has had significant, detrimental impacts on the law enforcement community's overall response to sexual assault. The work of Missoula Police detectives is compromised by the fact that, even if they expend the resources to conduct a comprehensive investigation, the County Attorney's Office often will not charge the case. One woman reported that the Missoula Police detective in her case infonned her that because "no one had a limb cut off and there was no video of the incident," prosecutors "wouldn't see this [the rape] as anything more than a girl getting drunk at a party." Whether or not the detective's characterization was accurate, the County Attorney's actions over time left this detective -and many others like him -with the understanding that non-stranger sexual assault of women, and especially drug-facilitated sexual assault, must involve physical force or overwhelming and irrefutable evidence to be considered a crime worthy of prosecution.
For victims of sexual assault, MCAO's response indicates that a decision to report and participate in an assault investigation will be, at best, a waste of time or, at worst, a revictimization. Indeed, in one case from early 2013, a detective told both the victim and the offender that the detective's role was limited to collecting physical evidence of sexual assault and that the County Attorney's Office would never file charges in the case - despite the fact that the detective acknowledged to the victim that she had been raped by the offender. Similarly, the advocates, social service providers, police officers, and medical and mental health professionals who together comprise Missoula's sexual assault response team (the First Step Resource Center Multidisciplinary Team) are undennined and discouraged by a County Attorney's Office that apparently leaves sexual assault and rape laws largely unenforced.
Moreover, MCAO's inability to investigate adequately or file charges in cases of sexual assault has an adverse effect not only on survivors of sexual assault, but also on the safety of women in the Missoula community as a whole. Since the majority of sexual assaults are committed by repeat offenders,8 the effect is compounded because perpetrators who escape prosecution remain in the community to reoffend.
Deficiencies in the County Attorney's Office's Response to Sexual Assault Indicate an Impermissible Bias Against Female Victims of These Crimes
Our investigation to date has developed evidence indicating that the County Attorney's Office's failure to adequately respond to sexual assault results at least in part from unlawful bias against women who report sexual assault, and thus violates the Equal Protection Clause of the Fourteenth Amendmeot and the statutes that we enforce. See United States v. Armstrong, 517 U.S. 456, 465 (1996); Washington v. Davis, 426 U.S. 229, 239-40 (1976) (a governmental entity
8 M. Claire Harwell & David Lisak, Why Rapists Run Free, Sexual Assault Report, Vol. 14, No.2, at 17-27 (Nov.lDec. 2010) (research "clearly demonstrates that most rapes are in fact committed by serial offenders"); Nat'l Dist. Att'ys Ass'n, National Prosecution Standards Pt. II cmt. to § 2-9.
9

violates the Equal Protection Clause when it adopts a policy or practice that has an adverse effect on a protected group and its actions are motivated in part by discriminatory intent).
The question of whether bias motivates the actions of a law enforcement agency must be assessed by considering the totality of circumstances. See Arlington Heights, 429 U.S. at 265-67 (determination of whether actions were motivated by discriminatory intent can be based on both circumstantial and direct evidence, including, inter alia, adverse effect, historical background, departures from normal procedures, and substantive departures from decisions supported by nondiscriminatory motives). The County Attorney's Office's practices discussed below indicate its failure to vindicate the rights of women victims of sexual assault and suggest that MCAO is violating the law. See Estate o/Macias, 219 FJd at 1028 (discriminatory failure to enforce the law or otherwise administer governmental services violates equal protection).
Together, these failures reflect the County Attorney's Office's disregard for crimes of sexual assault - one of the most violent categories of crimes, and a category of crime whose victims are overwhelmingly female. According to the Montana Board of Crime Control, across the State of Montana, 800 adult women were victims of sexual assault in 2012, compared to 180 men.9 Of the most serious assaults, rape and forcible sodomy, the gender disparity is even more lopsided: 368 adult women victims and 43 men. Missoula County reported to the State 102 sexual assaults and rapes against adult women and 21 against men for the same period. lo See Arlington Heights, 429 U.S. at 266 ("Detennining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into circumstantial and direct evidence of intent as may be available. The impact of the official action- whether it bears more heavily on one
[group1than another - may provide an important starting point.") (quotation marks and citation
omitted).
1. The County Attorney's Office's Treatment of Female Victims of Sexual Assault Indicates a Significant Level of Animus Toward These Women
Under Montana law, a prosecutor is required to consult with victims offelony and misdemeanor offenses "involving actual, threatened, or potential bodily injury to the victim," including sexual assault, to obtain the victim's views about the disposition of the case, including about plea negotiations. See Mont. Code Ann. § 46-24-104 (2013). Our investigation has shown that the County Attorney's Office often neglects to hold these consultations with sexual assault victims, in contravention of Montana law. And the interactions that the County Attorney's Office does have with victims of sexual assault often leave them feeling offended, disregarded, and disbelieved by prosecutors. The comments made by prosecutors and their treatment ofthese victims suggest gender bias on the part of those charged with the obligation to prosecute crimes in Missoula. Such bias is unlawful where it results in decisions and conduct that discriminate against women.
In one instance, for example, a Deputy County Attorney quoted religious passages to a woman who had reported a sexual assault, in a way that the victim interpreted to mean that the
9 See http://mbcc.mt.gov(lastvisitedJan. 13,2014). 10 [d.
10

Deputy County Attorney was judging her negatively for having made the report. We also spoke to a woman whose daughter was sexually assaulted, at the age of five, by an adolescent boy. In response to a question about why the perpetrator had been sentenced to only two years of community service, the prosecutor handling the case reportedly told the woman that "boys will be boys." Advocates told us that Deputy County Attorneys "said terrible things to victims," including saying to one woman, in the course of discussing the decision not to prosecute her sexual assault, "All you want is revenge."
One woman described her interaction with a Deputy County Attorney as "traumatic." Another woman stated that, by the time the prosecution was over, she was so frustrated by the Deputy County Attorney's treatment and the MCAO's failure to keep her informed about key developments in the case that she "would never suggest" that another woman pursue a sexual assault prosecution in Missoula. She said further that it "broke her heart" that other women had to go through a similar process to have their cases prosecuted. Other women reported that prosecutors treated them with "no compassion," and acted like the prosecutors were "forced to speak" with them. Several women informed us that they left meetings with prosecutors feeling like they were being "judged" for their prior sexual history, or that the prosecutors did not believe them.
Some women told us that they or others had declined to pursue prosecution because of the negative accounts they had heard from friends and acquaintances about their treatment by the County Attorney's Office. For instance, we interviewed a young woman who had suffered a gang rape as a student at the University of Montana and described feeling re-traumatized by the experience of seeking to have the assault prosecuted by the County Attorney's Office. As a result of hearing about that experience, a friend of the woman declined to report her own rape to either the police or to prosecutors. In another example, a clinical psychologist told us that she had counseled numerous sexual assault survivors in Missoula who had pursued criminal charges against their assailants and described their experience with the County Attorney's Office as being so horrendous that, when the psychologist herself was sexually assaulted, she was reluctant to have her case prosecuted by the County Attorney's Office.
In addition to the types of troubling statements and treatment of women described above, prosecutors compound the trauma sexual assault victims experience by failing to convey important information about charging decisions and other aspects of sexual assault cases to women directly, in a timely manner, or sometimes at all. For example, we heard from women that they had to repeatedly request information and updates from MCAO attorneys handling their cases. They told us that the County Attorney's Office failed to initiate communication with them, did not provide status updates or notices of scheduling changes for court dates, and, unless repeatedly prompted, did not even explain expectations for testifying witnesses in advance of hearings. As a result, the task of infonning women about charging decisions generally falls to detectives with the Missoula Police or to advocates with the Missoula Crime Victim Advocate Office, despite the fact that those detectives and advocates are not involved in the prosecutor's decision-making process and thus cannot describe that process in any depth.
One woman told us, for example, that she had no contact with the County Attorney's Office during the year after her first and only meeting with the prosecuting attorney handling her
11

case. She only learned that the prosecutor had offered her assailant a plea agreement from an advocate with the Missoula Crime Victim Advocate Office, despite the fact that she and her mother had left numerous phone messages for the prosecuting attorney throughout the year. The woman told us that she had understood nothing about the Deputy County Attorney's decision to file charges in her case or reasons for offering a plea agreement; that she was frustrated both by what she believed to be a weak plea agreement and by MCAO's lack of responsiveness and regard for her perspective; and that the County Attorney's Office had made her and her mother "feel like [the case] wasn't that important" to the Office. Her advice to other women reporting sexual assault in Missoula, she said, would be "if at all possible, not to go" to the County Attorney's Office. Her statement underscores the reality that, where prosecutors fail to communicate with women directly, it discourages not only their own participation in the criminal justice process but also that of others who hear about their negative experiences with the justice system.
In another case, when the woman finally did meet with the prosecutor assigned to her
case, she described getting the sense that the prosecutor was 'just telling [her] what [he] want[ed] her to know." This woman asked a Missoula Police detective whom she trusted to accompany her to the meeting to support her and ensure that her questions were answered fully and completely. Through her own advocacy and the detective's prompting, they learned that the defendant's psychosexual evaluation, which provided infonnation relevant to sentencing, had been conducted by doctors of the defendant's choosing. During the evaluation, the defendant had stated that the rape - to which he had already confessed - had been consensual. No one, however, challenged this statement. The WOll)an explained to the prosecutor that the evaluation could not, therefore, be considered particularly reliable. Although MCAO could request a second evaluation, she learned, thanks to the detective's questioning, that it almost never did so. lt is the rare sexual assault victim who will advocate for herself in this manner, and access to criminal justice should not depend upon self-advocacy.
MCAO's failure to communicate regularly and appropriately with complaining witnesses is exacerbated by the Office's failure adequately to coordinate and communicate with crime advocates, either by having advocates on staff, or by making proper use of available crime advocates. The Missoula Crime Victim Advocate Office is located right outside of the County Attorney's Office and has a memorandum ofunderstanding with MCAO to notify victims of the court dates where they have a right to be present. Nonetheless, we were told that the County Attorney's Office almost never solicits the involvement of the Crime Victim Advocate Office with its complaining witnesses in cases of sexual assault. Rather, the burden of identifying and communicating with complaining witnesses falls entirely to the Crime Victim Advocate Office, whose advocates do a daily review ofjail rosters to identify potential victims of sexual assault. Moreover, the Crime Victim Advocate Office is only rarely included in in-person meetings between Deputy County Attorneys and complaining witnesses. Nor is the Crime Victim Advocate Office involved in working with victims before a case is charged, even though this is when prosecutors need to demonstrate that they will support a meritorious victim through a difficult process.
Treating women with disregard in this manner not only provides evidence ofbias and undennines MCAO's ability to successfully prosecute sexual assault cases, it also directly
12

contravenes national standards for prosecutors. The National District Attorneys Association's standards, for example, require prosecutors to keep victims infonned about their cases, to "be mindful of the possibility of intimidation and harm arising from a witness's cooperation with law enforcement," and, to the extent feasible and appropriate, to provide assistance and protection to witnesses of crime. I I Indeed, the NDAA commentary to these standards states that "[e]ffective prosecution includes a sound understanding ofthe value of victims and witnesses within the criminal justice system," and that prosecutors have an obligation "to facilitate the relationship with victims and witnesses" to encourage victims to report crime and "follow[ ] through with identifications, statements, and testimony. ,,12
2. Public Commeuts by the County Attorney Raise Concerns of Impermissible Gender Bias
Public comments you have made further suggest that, at the very least, sexual assault is not a high priority for MeAO. Such comments are probative of discriminatory intent, Arlington Heights, 429 U.S. at 266-68 ("contemporary statements" by decision makers "may be highly relevant" in detennining discriminatory intent), and add to the totality of circumstances indicating impennissible gender bias by the County Attorney's Office, Balistreri, 901 F.2d at 701 (statements from decision makers that reflect gender-based stereotypes and bias are among the factors that courts will consider in assessing discriminatory intent).
For example, in responding to questions about delays in charging decisions, you reportedly said that your attorneys review charging decisions in sexual assault cases "when they have spare time.,,13 While you have subsequently attempted to explain that by "spare time" you were referring to the "additional time" after other courtroom and litigation functions have been completed, the statement seems inconsistent with the diligent investigation and prosecution of sexual abuse. 14
Additionally, you reportedly told the Independent Reviewer for the Division's agreements with the Missoula Police and the University'S Office of Public Safety (the "Independent Reviewer") that, rather than having attorneys review sexual assault investigations to assess the merits of the case, they "rely on [Missoula Police] detectives to stay on top ofthe [a]ttorneys to get the decisions they need," and "that ifhe does not hear from the detective of the case he assumes the case is not a priority for the detective."ls The statement seems to suggest that unless a detective is willing to aggressively push attorneys in your Office to prosecute sexual assault cases, there is little chance that such cases will receive serious consideration. We note
lOU that you have recently acknowledged that are starting to work on a protocol to ensure timely
charging decisions in sexual abuse cases. l
11 Nat'l Dist. Att'ys Ass'n, National Prosecution Standards PI. II §§ 2-9.1, 2-10.6, 2-10.7 (3d ed. rev. 2009). 12 Nat'l Dist. Att'ys Ass'n, National Prosecution Standards Pt. II cmt. to §§ 2-9 & 2-10 (3d ed. rev. 2009). 13 First Report of the Independent Reviewer, [rei The Agreement between the City of Missoula Police Dep't and the U.S. Dep't ofJustice 24 (Nov. 5, 2013), available at http://www.ci.missoula.mt.usI1621/Improving-Our-Responseto-Sexual-Assault. 14 Fred Van Valkenbmg, Editorial, Words Twisted on DOJ Compliance, The Missoulian, Dec. 16,2013. 15Id. 16 Id.
13

3. The County Attorney's Office's Handling of Non-Stranger Sexual Assault Cases and Its Failure to Explain or Document Its Decisions Not to File Charges in Those Cases Raise Further Concerns of Impermissible Discrimination
While, as stated above, this investigation is not aimed at second-guessing the exercise of prosecutorial discretion, the County Attorney's handling of non-stranger sexual assault cases, and its consistent failure to explain or document its decisions not to file charges in those cases, raises further concerns about impermissible bias. Cf. Arlington Heights, 429 U.S. at 267 (it may be further relevant evidence of decision makers' purposes "if the factors usually considered important by the decision maker strongly favor a decision contrary to the one reached").
After an extensive review of police files, our prosecutorial expert concluded that the factors considered as part ofthe charging decision process depart from the standards ofthe profession. In some cases reviewed by our expert, for example, Missoula Police officers had developed substantial evidence to support prosecution, but MCAO, without documented explanation, declined to charge the case. Non-stranger sexual assault cases rarely have evidence of significant force being used, a confession, or an eyewitness account. l7 But our investigation to date reveals that the County Attorney's Office declined to prosecute some sexual assault cases even where it did have a confession or an eyewitness.
In one case, for example, the Missoula Police obtained a confession from a man who admitted raping a woman while she was unconscious. The Missoula Police referred the case to the County Attorney's Office with a recommendation that the prosecutor charge the suspect with sexual intercourse without consent, as well as car theft. The County Attorney's Office declined to bring any charges, citing "insufficient evidence." In another case, the Missoula Police obtained incriminating statements from a suspect who admitted to having intercourse with a mentally ill woman, including statements that he couldn't "determine" how soon he had stopped having sex with the woman after she asked him to stop and told him he was causing her "vagina" to "hurt." The Missoula Police referred the case to the County Attorney's Office, recommending that the prosecutor charge the suspect with sexual intercourse without consent. Despite the incriminating statements, the County Attorney's Office declined to bring any charge in the case.
Of equal concern, we found that the County Attorney's Office declined to prosecute nearly every case of non-stranger assault involving an adult woman victim who was, at the time of the assault, subject to some type of heightened vulnerability - for example, in cases where the assault was facilitated by drugs or alcohol. As noted above, the County Attorney's Office declined prosecution in assaults facilitated by drugs or alcohol, even when the assailant had confessed or made incriminating statements. This pattern of declining to prosecute sexual assault of women with heightened vulnerabilities is particularly troubling given the realities of how perpetrators of sexual assault identify potential victims, and the likelihood of drug- or
17 See Teresa P. Scalzo, Prosecuting Alcohol-Facilitated Sexual Assault 12 (Nat'l Dis!. Att'ys Ass'n Aug. 2007), http://www.ndaa.org/pdf/pub~rosecutinLalcoholjacilitated_sexual_assault.pdf (noting that there are "almost never eyewitoesses to a rape" and that "rape cases rarely have physical evidence that conclusively proves that a rape occurred"),
14

alcohol-fueled sexual assault affecting women in Missoula. Women who are intoxicated are at increased risk of sexual assault, and more than half of all non-stranger sexual assault involves alcohol use by the victim, assailant alcohol use by the victim, assailant, or both. IS Moreover, women in campus settings may be particularly likely to be vulnerable or incapacitated due to drug or alcohol use. 19
We also found that the County Attorney's Office declined to prosecute nearly every case of non-stranger sexual assault involving an adult woman victim who had a mental or physical disability, even in cases where there was evidence such as a confession or incriminating statements by the perpetrator. Here, too, the County Attorney's Office appears to resist prosecuting those sexual assault cases most likely to occur in Missoula. Local advocates report that Missoula is one of Montana's principal locations for services for persons with mental health and physical disabilities and, relatedly, is home to a substantial population of individuals with mental health issues, including a significant transient population. Moreover, women with disabilities are particularly likely to be targeted as victims by perpetrators of sexual assault.20 Given the realities of sexual assault, and the makeup of the population in Missoula, MCAO's apparent resistance to prosecuting cases of sexual assault against women with disabilities, as well as cases of drug- or alcohol-fueled sexual assault, is of particular concern.
For instance, a woman reported that she had been drugged and raped by an acquaintance the previous day. Missoula Police officers developed evidence that included video footage of the alleged assailant slipping something into the woman's drink. The Missoula Police also obtained admissions by the assailant that although he did not remember putting something in the woman's drink, it was possible htl had and, as he slated, "If I were trying to malce her relax it would be Xanax." When confronted with the video footage, the assailant also stated, "My memory tells me no, but I can't argue with surveillance." The Missoula Police obtained a search warrant for the suspect's home and learned that the suspect had recently refilled prescriptions for two drugs common in drug-facilitated sexual assaults, including Xanax. Nonetheless, MCAO declined to charge the case, citing insufficient evidence, but with no documented further explanation?l

18 See Jeanette Norris, The Relationship Between Alcohol Consumption and Sexual Victimization, Na!'l Online Res.

CIr. on Violence Against Women, at 1 (Dec. 2008), http://www.vawnet.org/sexual-

violence/summary.php?doc_ id~1630&find_typ~web_desc_AR.

.

19 See Rana Sampson, Acquaintance Rape of College Students, in Problem-Oriented Guides for Police Series Guide

No. 17, at 13 (U.S. Dep't of Justice, Office ofCo1ll1nunity Oriented Policing Servs. 2002) (noting that in over 75%

of college rapes, the offender, victim, or both had consumed alcohol).

20 Bnreau of Justice Statistics, Crime Against People with Disabilities, Nat'l Crime Victimization Survey, at table 2

(2008); Jeanette Norris, The Relationship Between Alcohol Consumption and Sexual Victimization, Na!'l Online

Res. CIr. on Violence Against Women, at 1 (Dec. 2008), http://www.vawnet.org/sexual-

violence/summary.php?doc_id~1630&find_type~web_desc~AR; William Paul Deal & Viktoria Kristiansson,

Victims and Witnesses with Developmental Disabilities and the Prosecution of Sexual Assault, vol. 1, no. 12 The

Voice, 1 NOAA Nat'l CIr. for the Prosecution·ofViolence Against Women (2007).

21 While toxicology tests did not detect drugs in the woman, given the other evidence, there are indications that this

ruay have been due to a false-negative caused by setting the toxicology levels too high. See, e.g., Adam Negrusz &

R.E. Gaensslen, Analytical Developments in Toxicological Investigation of Drug-Facilitated Sexual Assault, 376

Analytical & Bioanalytical Chemistry 1192-97 (Apr. 8, 2003) (noting that the sensitivity of the drug screening

technique is crucial, as some compounds commonly used in drug-facilitated sexual assaults are typically

administered io a single low dose, and discussing various screeniog techniques).

15

Moreover, we found no indication that the County Attorney's Office had given any guidance to Missoula Police detectives about how to develop evidence that it believed would be sufficient to support bringing charges in this case.22
Between 2008 and 2010, the Missoula Police provided a written referral form to the County Attorney's Office, including a section designed for narrative comments about the reasons for declining prosecution. MCAO attorneys rarely documented their decision to decline prosecution in sexual assault cases in a meaningful way. The most common comments were "insufficient evidence" or "insufficient corroboration." After 2011, the written referral form disappeared from the Missoula Police files we reviewed. We learned that this was due to MCAO's chronic failure to return the form to the Missoula Police - a source of frustration for Missoula Police detectives who were often left with no specific information about the reason for MCAO's decision not to prosecute, as well as the responsibility of explaining MCAO's decision to the victim of the sexual assault.
As part of its initial efforts to implement its agreement with DO], MPD is revising and reinstating the use of this written referral form, once again seeldng feedback from MCAO about its charging decisions in cases referred by the police department. Although we credit the Missoula Police for these efforts, their impact will be limited without the active cooperation of the County Attorney's Office. MCAO's decision not to provide feedback leaves both Missoula Police detectives and women sexual assault victims in the dark about the MCAO's declination decisions - particularly as the County Attorney's Office consistently relies on Missoula Police detectives to communicate with victims of sexual assault about the status oftheir criminal cases. The lack of information also deprives Missoula Police detectives of an important soun;e uf information about how they can improve their investigative techniques to collect the type of evidence the County Attorney's Office deems sufficient or to otherwise assist MCAO attorneys in developing cases for prosecution. The failure to provide material information to the Missoula Police falls far short of meeting a prosecutor's responsibility to provide information to police to aid them in performing their duties.23
22 Of course, in some cases, a prosecutor may have good reasons to exercise discretion not to charge a particular case, Under the usual circumstances for conducting an investigation such as this one, we would have met with the relevant agency to discuss specific decisions made; but as noted, the County Attorney has refused to cooperate with this investigation. 23 National standards for prosecutors recognize the importance of maintaining clear lines of communication between prosecutors and police. These standards state that the chief prosecutor, here the Cmmly Attorney, "should actively seek to improve communications between his Of her office and other law enforcement agencies," and "should keep local1aw enforcement agencies informed of cases in which they were involved and provide information on those cases in order to aid law enforcement officers in the performance of their duties." Na!'l Dist. At!'ys Ass'n, National Prosecution Standards Pt. II §§ 2-5.1 to 2-5.2, at 22 (3d rev. 2009). Our expert also observed that the County Attorney's Office's practices in this area were significantly out of step both with national standards for prosecutors and with the common practice of prosecutors' offices across the nation.
16

4. The Practices of the County Attorney's Office Depart from Procedures Commonly Used by Prosecutors Across the Nation and Further Indicate Bias Toward Victims of Sexual Assault
a. The County Attorney's Office Fails to Adequately Investigate Sexual Assault Crimes or Communicate with Law Enforcement Partners to Aid in Their Development of Sexual Assault Cases
Our investigation to date indicates that the County Attorney's Office fails to adequately investigate cases of sexual assault, cf. Arlington Heights, 429 U.S. at 267 ("Departures from the nonnal procedural sequence also might afford evidence that improper purposes are playing a role."); fails to collaborate with Missoula Police detectives to develop evidence, especially evidence of incapacitation, sufficient to support sexual assault charges; fails to engage in any independent investigative responsibility; and, where additional evidence could be gathered, fails to explain adequately to the Missoula Police why cases are declined. Our expert found that the MCAO's practices concerning sexual assault depart from the standards of other prosecutors' offices, indicating bias.
We also found that the County Attorney's Office fails to develop, or work with Missoula Police detectives to develop, the evidence necessary to make non-stranger sexual assault cases into viable prosecutions, particularly in cases involving drug- or alcohol-facilitated sexual assault. Under Montana law, a victim who is incapacitated is incapable of consent. See Mont. Code Ann. § 45-5-501(l)(a) (2013) (defining "without consent" to include an incapacitated victim). During our investigation, we examined several cases in which Missoula Police detectives did not attempt to develop evidence of incapacitation where the other evidence strongly suggested that incapacitation was relevant to establishing the woman's lack of consent.24 The Missoula Police then referred these cases to the County Attorney's Office for review. Prosecutors, however, did nothing to ensure the Missoula Police lmew what additional evidence they would need in order to build legally sound prosecutions from these cases.25
In addition, our investigation revealed that the practices of the County Attorney's Office depart from the standards of respected professional associations. While police departments undertake the majority of criminal investigations, national standards for prosecutors recognize that the investigation of crimes, both independently and through oversight of police investigators, is one of the core functions and duties of a prosecutor's office. The American Bar Association Standards provide that while "[a] prosecutor ordinarily relies on police ... for investigation, ... the prosecutor has an affinnative responsibility to investigate suspected illegal activity when it is not adequately dealt with by other agencies.,,26
24 We discuss these cases in more detail in our May IS, 2013 letter to Mayor John Engen regarding the Missoula Police. That letter is available at: http://www..iustice.gov/crtlaboutlsplldocuments/missoulapdfmd_5-15-13 .pdf. 25 See, e.g., Teresa P. Scalzo, Prosecuting Alcohol-Facilitated Sexual Assault, at 17-19 Nat'l Dis!. Attorney's Ass'n (Aug. 2007) (discussing categories of corroborating evidence and providing numerous examples). 26 See Amer. Bar Ass'n, Prosecutorial Function Standard § 3-3.1(0).
17

Similarly, the NDAA standards note that "there are times when the prosecutor must use his or her authority to initiate or continue an investigation," and states that "[a] prosecutor should have the discretionary authority to initiate investigations of criminal activity in his or her jurisdiction.,,27 These situations may include cases where the primary investigative law enforcement agency has a conflict of interest; where the investigation has been handled improperly; or where the investigation calls for expertise available at the prosecutor's office.28 It is in keeping with national standards for prosecutors' offices for prosecutors to work collaboratively with police departments to develop or corroborate evidence, and to follow additional investigative leads.
Moreover, both the ABA and the NDAA recognize that prosecutors should employ investigators to supplement law enforcement investigations and, in limited circumstances, conduct independent investigations. See ABA Prosecutorial Function Standard § 3-2.4(b) ("Funds should be provided to the prosecutor for the employment of a regular staff of professional investigative personnel and other necessary supporting personnel, under the prosecutor's direct control ...."); NDAA National Prosecution Standard § 3-1.6 ("Chief prosecutors should employ properly trained investigators to assist with case preparation, supplement law enforcement investigations, [and] conduct original investigations ...."). Our expert has stated that it is quite common for prosecutors to employ their own investigators.
The NDAA further recognizes that prosecutors have a responsibility to provide oversight and training to police investigators. See NDAA National Prosecution Standard § 2-5.3 ("The chief prosecutor should encourage, cooperate with and, where possible, assist in law enforcement training."). In its guidance on prosecution of alcohol-facilitat~d s~xuaI assault, for example, the NDAA recommends that prosecutors "instruct investigators to look for evidence that not only proves the act occurred, but also evidence that overcomes the consent defense" and "train police to conduct offender-focused investigations in rape cases.,,29
We recognize that it is primarily the responsibility ofthe police to conduct investigations. But it is the responsibility of the prosecutor to work with the police to ensure that investigations are sufficient to support viable prosecutions. The County Attorney's Office falls short of this duty when it comes to crimes of sexual assault. By ignoring its role in the investigation of crimes of sexual assault, the County Attorney's Office substantially departs from national standards for prosecutors and common prosecutorial practices across the nation.
b. The County Attorney's Office Fails to Offer Prosecutors Traiuing that Would Facilitate Their Proper Handling of Sexual Assault Cases
Despite its location in a college town, and widespread community attention to the issue of sexual assault, the evidence we gathered to date indicates that the County Attorney's Office has failed to provide attorneys with sufficient training on prosecuting sexual assault against women,
27 Nat'! Dist. Att'ys Ass'n cmt. § 3-1; Na!,1 Dist. Att'ys Ass'n, Na!,1 Prosecution Standards § 3-1.2 (3d ed. 2009). 28 Na!,1 Dist. At!'ys Ass'n cmt. § 3-1. 29 Teresa P. Scalzo, Prosecuting Alcohol-Facilitated Sexual Assault, Na!,1 Dist. Atl'ys Ass'n (Aug. 2007), h t t p : / / w w w . n d a a . o r g / p d f l p u b y r o s e c u t i n L a l c o h o l j a c i l i t a t e d_ sexual_assault. pdf.
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and especially non-stranger assaults. Indeed, prior to the initiation of our investigation, the County Attorney's Office provided little, if any, such training. Without training, prosecutors do not have the tools to build strong prosecutions of non-stranger sexual assault, and thus they are more likely to erroneously assess the strength of a case and rely on personal misperceptions or bias in exercising prosecutorial discretion in charging decisions.
Specifically, MCAO attorneys lack sufficient training in the bodies oflegal and scientific knowledge necessary to prosecute assaults against adult women, including non-stranger sexual assault. While Deputy County Attorneys have attended trainings concerning domestic violence and the sexual abuse of children, our investigation indicates that until recently, they received no training on sexual assault.
The successful prosecution of sexual assault, like that for most offenses, relies on a grasp of relevant legal and scientific knowledge. An attorney would struggle to prosecute a homicide case that turned on DNA evidence without being familiar with the underlying science, and the same is true of sexual assault cases and the science relevant to sexual assault. As the NDAA explains in its monograph on "Victim's Responses to Sexual Assault," it is "imperative for state and local prosecutors to be aware of rape myths and how juries may be influenced by these myths"; to be educated about the various physical and psychological responses that a woman may have following sexual assault; to be able to persuasively describe to a jury how and why a sexual assault victim may not have expressed her lack of consent in a way that meets the jury's expectations of a response to a violent crime; or to explain why a victim may not be able to recall or describe the details of her sexual assault.3o This means that, in cases involving sexual assault, the prosecutor should be familiar with core concepts such as tonic iImnobility, counterintuitive response to sexual assault, the interrelationship between psychological trauma and memory, and means of addressing misinformation about violence and sex.3l
The County Attorney's Office's inadequate training impacts both charging decisions and the ability to successfully prosecute sexual assault. For instance, under Montana law, the sexual history of a woman is legally protected from introduction at trial in sexual assault cases in all but the most limited circumstances.32 Yet one woman informed us that the County Attorney's Office stated that MCAO had declined to prosecute her case because of her sexual history. Basing prosecutorial decisions on women's sexual histories not only demoralizes and stigmatizes
30 Patricia L. Fanflik, Victim Responses to Sexual Assault: Counterintuitive of Simply Adaptive?, Nat'! Dist. Att'ys Ass'n (Aug. 2007). " See, e.g., Patricia L. Fanflik, Victim Responses to Sexual Assault: Counterintuitive or Simply Adaptive?, Nat'l Dist. Att'ys Ass'n (Aug. 2007); Veronique N. Valliere, Understanding the Non-Stranger Rapist, I The Voice II (NDAA Nat'l Ctr. for the Prosecution of Violence Against Women 2007); Jennifer Gentile Long, Explaining Counterintuitive Victim Behavior in Domestic Violence and Sexual Assault Cases, I The Voice 4 (NDAA Nat'l Ctr. for the Prosecution of Violence Against Women 2006); Teresa P. Scalzo, Overcoming the Consent Defense, I The Voice 7 (NDAA Nat'! Ctr. for the Prosecution of Violence Against Women 2006). 32 See Mont. Code. Ann. § 45-5-511.
19

victims, it disregards laws and national prosecutorial standards designed to sexual assault prosecution and protect women who report assaults.
According to recent correspondence we have received from you, two Deputy County Attorneys attended a weeklong sexual assault prosecution training session conducted by the National District Attorneys Association in August 2013. Since the announcement of our investigation and in particular since the issuance of the findings letters and the entry of agreements with MPD and OPS, several prosecutors have attended the training provided to MPD and OPS investigators and first responders as part of the DOJ settlement agreements. This is a welcome development. Under the agreements with the Missoula Police and the University, there have been· several required training sessions for local law enforcement, and it is our understanding that Deputy County Attorneys have attended these trainings.
While this increased attention to training is important, it is not enough. As national standards from the NDAA and the ABA indicate, training must be targeted to the function of the prosecutor, address the dynamics of working with victims and developing the evidence for a successful prosecution, and be ongoing.
We believe the commonsense remedies we have proposed to you over the last several months will help augment the trainings you have instituted by providing additional tools to prepare Missoula prosecutors to respond appropriately, respectfully and fairly to victims of sexual assault, as well as work with other law enforcement and victims to identify and develop the evidence necessary for successful prosecutions.
CONCLUSION
Discrimination, including gender bias and stereotypes, undennines law enforcement's ability to effectively vindicate the rights of sexual assault victims and hold perpetrators accountable, and weakens public confidence in the criminal justice system. The United States has worked cooperatively with the University of Montana and the Missoula Police Department to develop durable and comprehensive remedies that better protect women and make law enforcement more effective. We urge you to join us in these collaborative efforts. We stand ready to meet with you to discuss a mutually agreeable and prompt resolution of this matter.
Please note that this letter is a public document and will be posted on the Civil Rights Division's website. If you have any questions, please contact Jonathan Smith, Chief of the Special Litigation Section, at (202) 514-6255.

~J~S Acting Assistant Attorney General Civil Rights Division
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Michael W. Colter United States Attorney District of Montana

 
 USDOJ: Department of Justice Reaches Landmark Agreement to Improve Missoula County Attorney’s Office’s Response to Reports of Sexual Assault


Home » Briefing Room » Justice News

Department of Justice

Office of Public Affairs FOR IMMEDIATE RELEASE

Tuesday, June 10, 2014

Department of Justice Reaches Landmark Agreement to Improve Missoula County Attorney’s Office’s Response
to Reports of Sexual Assault

The Department of Justice announced today that it has reached a comprehensive agreement with the Missoula County Attorney’s Office, as well as Missoula County, Montana, and the Montana Attorney General’s Office, to resolve the department’s investigation of alleged gender bias in the prosecution of sexual assaults by the Missoula County Attorney’s Office (MCAO). Under this first-of-its-kind agreement, MCAO and the county agree to take a number of significant steps to improve MCAO’s response to allegations of sexual assault and eliminate discrimination and gender bias. This agreement completes the Civil Rights Division’s investigation of the response by the Missoula criminal justice system and the University of Montana to sexual assault.     
 
"This historic agreement will fundamentally transform the way in which the Missoula County Attorney's Office responds to sexual assault allegations," said Attorney General Eric Holder. "By taking key steps and implementing robust new safeguards to eliminate gender bias, improve communication and prosecution techniques, and increase support for victims, county law enforcement officials will strengthen their ability to combat sexual assault crimes, increase public safety, and protect those who are victimized. This action marks a critical step forward in the Justice Department's comprehensive efforts to ensure the safety and civil rights of all people across the country. And it is my hope that these remedies can serve as a model for the resolution of other cases moving forward." 
 
Under the agreement, the MCAO will take the following steps, which will address gender bias in MCAO’s response to sexual assault and help to restore community confidence in the criminal justice system: 

·          Develop and implement sexual assault policies and training for prosecutors, including supervisors;
·          Improve treatment of individuals who report sexual assault, including in-person interviews and improved communication;
·          Use prosecution techniques that have been shown to result in better sexual assault investigations, through improved communication with law enforcement and victims, use of investigators, closer supervision of the development of cases, hiring an in-house victim coordinator, and the use of expert witnesses;
·          Improve communication and coordination with other Missoula stakeholders regarding sexual assault response, including through public outreach and collaboration with the Missoula Police Department in conducting, and analyzing the results of, a victim witness survey; and
·          Improve the tracking and sharing of data regarding sexual assault prosecutions, so that MCAO has a broader picture of what it is doing and can better identify any general concerns or necessary improvements. 
 
Missoula Attorney General Tim Fox, who has oversight authority over all Montana County
Attorneys, has agreed to monitor the implementation of these measures, review sexual assault cases MCAO declines to prosecute, and retain a technical advisor, Anne Munch. Munch is a former sex crimes prosecutor and one of the country’s foremost experts in the subject area. As technical advisor, Munch will provide training to MCAO, advise the Montana Attorney General regarding policies, and make recommendations and provide reports regarding implementation that will be made publicly available, alongside the quarterly reports the Attorney General’s office will also publicly disseminate.

http://www.justice.gov/opa/pr/2014/June/14-crt-618.html[6/10/2014 6:32:57 PM]

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USDOJ: Department of Justice Reaches Landmark Agreement to Improve Missoula County Attorney’s Office’s Response to Reports of Sexual Assault


 
“Sexual assault is a crime that is all too pervasive and that has devastating consequences,” said Acting Assistant Attorney General for Civil Rights, Jocelyn Samuels. “Today’s agreement completes a plan for comprehensive reform at every stage of the law enforcement response, from the handling of complaints of assault by the University of Montana, through the investigation of crimes by the Missoula Police Department, to the prosecution of those crimes by the County Attorney.   This holistic approach will enable the Missoula community to improve women’s safety and ensure respect for their civil rights.” 
 
“Over the past year, the City of Missoula, the University of Montana, and the Missoula Police Department already have made important strides toward improving their response to sexual assault and strengthening the community’s confidence in its local police,” said Michael Cotter, United States Attorney for Montana. “We are delighted that the Missoula County Attorney has agreed to partner with them and to work cooperatively with the Justice Department to improve the safety of women in Missoula.” 
 
Today’s agreement resolves the last outstanding component of the department’s multi-pronged investigation, launched in May of 2012, regarding the handling of sexual assault complaints made by women in Missoula. The investigation, conducted under the Violent Crime and Law Enforcement act of 1994, the Safe Streets Act, Title VI of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972, evaluated the response to sexual assault at the University of Montana at Missoula, the University’s Office of Public Safety (OPS), the Missoula Police Department (MPD) and MCAO. In May of 2013, the department entered into agreements with the university, OPS and MPD to resolve findings related to those parties and address deficiencies in their response to sexual assaults. The implementation of those agreements has already improved these parties’ response to sexual assaults. 
 
As part of today’s agreement, Missoula’s County Attorney will dismiss with prejudice the declaratory judgment action filed on behalf of the county attorney against the department in February of 2014. The department has agreed not to file suit regarding its allegations, outlined in a February 2014 letter of findings, that the MCAO’s response to sexual assault violated federal law. 
 
The agreement, as well as a description of the Department of Justice’s work regarding sexual assault in Missoula, Montana, will be available at: http://www.justice.gov/crt/about/spl/
.

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Civil Rights Division

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http://www.justice.gov/opa/pr/2014/June/14-crt-618.html[6/10/2014 6:32:57 PM]

 
 MEMORANDUM OF UNDERSTANDING BETWEEN, THE MONTANA ATTORNEY GENERAL, THE MISSOULA COUNTY ATTORNEY'S OFFICE, MISSOULA COUNTY,
AND THE UNITED STATES DEPARTMENT OF JUSTICE
A. This Memorandum of Understanding ("MOU") is entered into by the Missoula County Attorney's Office (lithe MCAO"), Missoula County ("Missoula County" or "County"), the Montana Attorney General's Office ("Montana Attorney General"), and the United States Department of Justice ("United States" or "USDOJ") (collectively, lithe Parties"). This MOU is intended to resolve USDOJ's investigation of the MCAO, initiated pursuant to 42 U.s.c. § 14141 and the Omnibus Crime Control and Safe Streets Act of 1968, 42 U.S.c. § 3789d.
B. The purpose of this MOU is to provide for a cooperative effort by the parties, to ensure that the MCAO responds to sexual assault in a nondiscriminatory manner that complies with the Constitutions and laws of Montana and the United States; improves the safety and security of victims of sexual assault in Missoula County; and increases the Missoula County community's confidence in the MCAO's response to sexual assault. Entry of this MOU is in the public interest since it provides for expeditious changes to improve public safety and adherence to state and federal law.
C. The United States investigated claims of gender discrimination by the MCAO in its handling of reports of sexual assault, and on February 14, 2014, provided a letter to the MCAO regarding that investigation. The MCAO enters into this MOU expressly denying any claims of constitutional or statutory violations.
D. The United States asserts that it has jurisdiction both to investigate and to bring suit against the MCAO pursuant to 42 U.S.c. § 14141 and the Omnibus Crime Control and Safe Streets Act of 1968,42 U.S.c. § 3789d. The MCAO, the County, and the Montana Attorney General expressly deny that the USDOJ has any authority over locally elected county attorneys who fall under the statutory supervisory control of the Montana Attorney General pursuant to Mont. Code Ann. Section 2-15-501(5). Nothing in this MOU constitutes any admission, concession, or agreement by the MCAO, the County, or the Montana Attorney General that the United States has such jurisdiction or authority to investigate or seek remedy against the MCAO regarding its handling of sexual assault cases, nor a concession by the United States that it does not have such jurisdiction or authority.
E. Nonetheless, prior to entering into this MOU, the MCAO had begun working to improve the MCAO's handling of reports of sexual assault, and, through this MOU, agrees to make further
Page 1 of 8

changes to improve the MCAO's practices in this regard. In addition, the Montana Attorney General is working with the MCAO to improve the MCAO's handling of sexual assault cases. F. As part of the consideration for this MOU and the agreements contained herein, the MCAO and the Montana Attorney General agree to execute the "Agreement" attached as Exhibit 1 by and between the MCAO and the Montana Attorney General. The Agreement between the MCAO and the Montana Attorney General (Exhibit 1) is not intended to create legal rights or obligations except as between the MCAO and the Montana Attorney General. Under no circumstances does Exhibit 1 subject the MCAO or the Montana Attorney General to any liability, claim or action by the United States, including, without limitation, civil rights claims or claims for breach of contract or for specific performance. G. As further consideration for this MOU and the agreements contained herein, subject to the limitations in paragraph F, above, the Montana Attorney General agrees to: 1. Consult with USDOJ on the following items related to the implementation of the Agreement
(Exhibit 1) between the MCAO and the Montana Attorney General: a. The Montana Attorney General's selection of a Technical Advisor and the Montana Attorney General's contract with the Technical Advisor; b. The Montana Attorney General's review and approval of MCAO's policies and guidelines for handling of sexual assault cases; and c. The Montana Attorney General's review and approval of MCAO's sexual assault training program for its prosecutors, supervisors, and in-house victim advocate.
After consulting with USDOJ, the Montana Attorney General shall have sole authority and discretion to make any and all final decisions concerning paragraphs G.1.a. through G.1.c., above. 2. Except as prohibited by applicable privacy laws including the Montana Confidential Criminal
Justice Information Act, obtain and provide the following information to USDOJ on a semiannual basis for a period oftwo (2) years after the date ofthis MOU:
a. Copies of sexual assault policies implemented pursuant to the Agreement between MCAO and the Montana Attorney General (Exhibit 1).
b. Copies of MOUs executed between the MCAO and other local law enforcement agencies with respect to sexual assault crimes.
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c. Copies of all materials used by MCAO for training prosecutors on sexual assault cases pursuant to the Agreement between the MCAO and the Montana Attorney General (Exhibit 1).
d. Copies of all written recommendations and/or conclusions made to the Montana Attorney General by the Technical Advisor pursuant to the Agreement between the MCAO and the Montana Attorney General (Exhibit 1) will be provided to USDOJ by the Montana Attorney General within 30 days of receipt.
e. Data on the following: i. The number of sexual assault cases referred for review by local law enforcement to MCAO. ii. The number of sexual assault cases charged by MCAO. iii. The disposition of charged sexual assault cases. iv. The number of sexual assault cases in which additional investigation was requested of local law enforcement. v. The number of victims of sexual assault who have utilized the services of the in-house victim witness-coordinator provided for in the Agreement between the MCAO and the Montana Attorney General (Exhibit 1).
H. The Montana Attorney General has begun to implement a state-wide training program and is developing a state-wide policy guidance with respect to the handling of sexual assault cases by county attorneys, law enforcement, victim advocates, and the state and local court systems. In support of these initiatives and in support of the MCAO's efforts, subject to the limitations in paragraph F, above, the Montana Attorney General will utilize the services and work product of a Technical Advisor as provided for in Exhibit 1 to this MOU.
I. The Parties acknowledge that this MOU is intended to ensure the success of MCAO's efforts to improve its response to sexual assault. Nothing in this MOU will be construed as an acknowledgement, an admission, or evidence of liability of Missoula County or the MCAO for any violation of state or federal law, violation of the State or Federal Constitution, or for any alleged gender bias or discrimination in the performance of sexual assault prosecution duties.
J. Upon execution and implementation of this MOU, the United States agrees to forego the filing of any claims or actions against the MCAO and Missoula County with regard to the handling of sexual assault cases in the past, including, without limitation, any and all civil rights claims. The MCAO, in turn, agrees to dismiss its pending Complaint for Declaratory Judgment against the
Page 3 of8

USDOJ. The Parties acknowledge that nothing in this MOU precludes USDOJ from filing any other claims against the MCAO for any future conduct, including claims under 42 U.S.c. §14141, subject, however, to any and all defenses that the MCAO and the Montana Attorney General now have, or may have in the future. This MOU may be executed in counterparts, each of which shall be deemed to be an original, but all of which, taken together, shall constitute one and the same agreement.
III
Page 4 of 8

Dated this 0 day of June, 2014.
III
Page 5 of 8

Dated this For the MISSOULA COUNTY ATTORNEY'S OfFICE Fred Van Valkenburg, Missoula County t~! ney
Page 6 of 8

t-Q
Dated this __ day of June 2014. For MISSOULA COUNTY
Page 7 of 8

~ Dated this

day of June, 2014.

For the UNITED STATES OF AMERICA:

MICHAEL W. CanER United States Attorney District of Montana

JOCELYN SAMUELS Acting Assistant Attorney General Civil Rights Division
MARK KAPPELHOFF Deputy Ass'stant Attorney General Civil RiUH7'KAlII\/

CHRISTY E. LOPEZ
Deputy Chief Special Litigation Section
JENNIFER L. MONDINO JEFF BLUMBERG Trial Attorneys United States Department of Justice Civil Rights Division 950 Pennsylvania Avenue, NW Washington, DC 20530 Tel. (202) 514-6255 Fax. (202) 514-4883

Page 8 of S

EXHIBIT 1
AGREEMENT BETWEEN THE MONTANA ATTORNEY GENERAL AND THE MISSOULA COUNTY ATTORNEY'S OFFICE
The Montana Attorney General and the Missoula County Attorney's Office (MCAO) enter into this Agreement because the Montana Attorney General and MCAO are committed to ensuring that allegations of sexual assault are handled appropriately, that victims are treated with compassion and respect, and that the criminal justice system operates without gender bias.
Purpose. The purpose of this Agreement is to promote public confidence in the criminal justice system through agreement and cooperation between the MCAO and the Montana Attorney General by improving policies and practices related to sexual assault prosecutions in Missoula County. For purposes of this Agreement, the term "sexual assault" means sexual contact without consent as defined in Mont. Code Ann. Sections 45-5-502,503, exclusive of sexual assault cases involving victims under the age of 16.
Authority. Pursuant to Mont. Code Ann. Section 2-15-501(5), the Attorney General of the State of Montana has the sole authority to supervise the MCAO in the handling of any specific case. Only the Montana Attorney General shall have the authority to provide input on the MCAO's decision to exercise its prosecutorial discretion with respect to any individual case, specifically whether to charge a case that has been declined; investigate or direct further investigation of a referred sexual assault case; or take, or refrain from taking, any actions related to the prosecution of charged cases.
Technical Advisor. The Montana Attorney General agrees to enter into contract with Anne Munch Consulting, Inc. (hereafter the "Technical Advisor") for a total amount including fees, costs and expenses not to exceed $150,000. The Technical Advisor shall assist with training attorneys in the Montana Department of Justice Prosecution Services Bureau and the MCAO's supervisors to standards acceptable to the Montana Attorney General regarding the proper handling of sexual assault cases, and to assist the Montana Attorney General with the assessment of the MCAO's performance under this Agreement.
The Technical Advisor will only have the contractual duties and responsibilities conferred by the Montana Attorney General as may be needed to facilitate the MCAO's performance under this Agreement. The maximum amount of compensation, including costs and expenses, payable to the Technical Advisor will be specified in the contract with the Technical Advisor and shall not exceed that amount.
The Technical Advisor shall not have any authority with respect to the MCAO's prosecutorial discretion; specifically she shall not have the authority to direct the MCAO to charge a case that has been declined; investigate or direct further investigation of a referred sexual assault case; take or refrain from taking, any actions related to the prosecution of charged cases; or related to proposing or accepting plea agreements.
The Technical Advisor will be hired for a period of not less than one year, but may have her contract extended at the Montana Attorney General's sole discretion. The MCAO has agreed to seek funding for the fees and costs of the Technical Advisor from the Missoula County Board of Commissioners for a maximum period of two years from the date this Agreement is executed by the Montana Attorney
Page 1 of 7

General. The Montana Attorney General will work with the Technical Advisor to reach a mutually agreed upon fees and costs arrangement based on a contract amount that will not be exceeded.
Development of policies and guidelines for sexual assault cases. Within 90 days of execution of the contract with the Technical Advisor, the MCAD agrees to develop written policies and guidelines for handling of sexual assault cases. The MCAD agrees these policies and guidelines will be consistent where appropriate, with guidance ofthe National District Attorneys Association (NOAA) regarding sexual assault prosecutions and will include the following standard topics relevant to sexual assault prosecutions: plea guidelines, internal timelines for handling sexual assault cases, including charging decisions, coordination with law enforcement and community partners, communication with victim advocates and complaining witnesses, response to stranger and non-stranger sexual assault, response to drug- or alcohol-facilitated sexual assault, and supervisory review of case handling and charging decisions. The Montana Attorney General, in consultation with the Technical Advisor, shall have sole authority and discretion to review and approve the MCAD's written policies and guidelines. Following their approval by the Montana Attorney General, the MCAD's written policies and guidelines shall be published on the MCAD's website.
Training for county attorney supervisors and prosecutors in response to sexual assault. Within the first year of the agreement and every year thereafter for the life of this Agreement, the MCAD agrees to provide prosecutors, supervisors and the in-house victim advocate initial and on-going training in handling sexual assault cases to ensure they are fully equipped to handle these matters. The training will be consistent with the guidelines of the NOAA and will be approved by the Montana Attorney General in consultaNon with the Technical Advisor. The training will include, but is not limited to: methods of proving non-stranger, drug- or alcohol-facilitated sexual assault, sexual assault where
consent is a defense, the body of scientific knowledge commonly accepted as necessary for prosecuting
sexual assault cases, effective techniques for interviewing sexual assault victims, and addressing misinformation about bias and sexual assault victimology, including misinformation about victim response to sexual assault. The MCAD agrees, at its own expense, to ensure that deputy county attorneys handling sexual assault cases participate in any sexual assault prosecution training offered by the Montana Attorney General.
Assurances as to on-going practices within the Missoula County Attorney's Office. The MCAD agrees to implement or continue the following on-going practices with respect to its response to sexual assault allegations, which the Attorney General shall have sale authority and discretion to review and approve in consultation with the Technical Advisor:
• In-person meetings with complaining witnesses: Prosecutors will make every reasonable effort to conduct in-person meetings with the detectives and complaining witnesses prior to making a determination whether to file charges in sexual assault cases referred and recommended for prosecution. Consistent with Montana law, advocates will be invited and encouraged to participate in such meetings between prosecutors and complaining witnesses.
• Case related communication with victims and victim advocates: Subject to the cooperation and availability of victims, prosecutors will communicate key substantive information and decisions about cases and the underlying rationale directly to victims or their victim advocates as required by Montana law.
Page 2 of 7

• Victim Advocates: The MCAO agrees to seek funding from the Missoula County Board of Commissioners for a full-time in-house victim-coordinator for the MCAO, in order to provide improved notification, support, and referral services to victims and to provide victims with information not available to the Missoula Crime Victim Advocate Office or external advocates.

• Utilization of specialized sexual assault prosecution expertise: Within 60 days of the execution of this Agreement, the MCAO agrees to designate an appropriate number of attorneys, based on caseload, to be primarily responsible for sexual assault cases. The attorneys will be selected based on their demonstrated skills and interest and will be required to attend periodic sexual assault-specific training. Nothing in this Agreement prohibits the MCAO from pairing less-experienced county attorneys with county attorneys who specialize in sexual assault cases to develop skills, provided the deputy county attorney who specializes in sexual assault cases has primary responsibilities in the prosecution. In. addition, the MCAO will utilize the services of specialized prosecution expertise within the Montana Department of Justice Prosecution Services Bureau whenever the necessary expertise for a particular sexual assault prosecution is not available within the MCAO or, because of caseload demands, is unreasonably delayed.

• Utilization of specialized sexual assault investigation expertise: The parties acknowledge the

MCAO does not employ internal investigators, but rather relies upon the investigatory

expertise of cooperating law enforcement agencies. However, in evaluating cases and

preparing prosecutions for trial, the MCAO does review and evaluate investigations and may

request further investigatory effo~ts when necessary to making a charging decision or in

preparing a case for trial. The MCAO will enter into a Memorandum of Understanding

(MOU) with local law enforcement agencies to formalize past practices and ensure that

appropriate and adequate investigative services are available to prosecutors for the

handling of sexual assault cases from referral through trial. The MOU will include the

provision that i( after case referral to the MCAO, further investigation is necessary, the

MCAO will request further investigation from law enforcement or the Montana Department

of Justice Division of Criminal Investigation (DCI). The MCAO agrees to utilize the services of

speCialized investigative expertise within the DCI whenever the necessary expertise for a

particular sexual assault investigation is not available within local law enforcement offices.

In addition, such expertise shall berequested whenever a conflict of interest would prevent

an objective investigation or caseload demands on local law enforcement would

unreasonably delay an investigation.

.:

Nothing herein shall be construed to, or is intended to infer, that the MCAO has supervisory authority over, or control of, the investigatory functions of law enforcement.

• Computer Tracking System: Unless extended by mutual agreement of the parties, the MCAO will, within 120 days of the date of this Agreement and at MCAO's cost, design and implement a computer tracking system for victim advocates and victims to track the status of their cases. Subject to privacy limitations imposed by state and federal laws, the information in this tracking system will be accessible by in-house and external victim advocates.

Page 3 of 7

• Supervisor Review: The MCAO agrees to continue enhanced supervision of prosecuting attorneys responsible for prosecuting sexual assault cases.
Supervisors will closely evaluate sexual assault investigations and prosecutions and ensure that such prosecutions are not undermined by lack of knowledge or impermissible bias and are conducted with the same level of attention and quality as prosecutions of other crimes.
Supervisors will review and approve decisions to decline prosecutions in sexual assault cases. This review will include an evaluation to assess whether the declination decision was made for any inappropriate reason. Supervisors will document their review.
The MCAO will conduct a periodic examination of supervisory review data in all sexual assault cases, including closed cases, declined cases and cases where the complaining witness declined to participate in the prosecution of such cases in an effort to identify any systemic problems, including deficiencies or delays in the investigation, charging deciSion, and prosecution of sexual assault cases, and indications, if any, of gender bias. The review will include information gathered from a review of case files and feedback from victims and victim advocates.
Improved communication and coordination with law enforcement and community partners. The MCAO agrees to implement measures to improve communication and coordination to effectively handle sexual assault cases. The Montana Attorney General, in consultation with the Technical Advisor, shall have sole authority and discretion to approve such measures, which will include:
• Cooperation with law enforcement and community partners: The MCAO agrees to increase and improve its communication, coordination and cooperation with community and law enforcement partners, including the Missoula Police Department (MPD), Missoula County Sheriff's Office (MCSO), University of Montana Police Department (UMPD), Crime Victim Advocate Office, and community advocates, including, without limitation, the Missoula YWCA, JUST Response, and the University of Montana SARC program. These efforts will be aimed at increasing the willingness and ability of sexual assault victims to participate in prosecutions of meritorious cases, facilitating the collection and analysis of relevant evidence, and minimizing the additional hardship that this participation can cause for sexual assault victims. These efforts will include:
• Adherence to all agreed responsibilities set out in the Memorandum of Understanding between the MCAO and the MPD dated December 13, 2013 (a copy of which is attached hereto as Exhibit ((A") and which shall also be applicable to any cases submitted to the MCAO by MCSO or UMPD. Exhibit A will be amended to 1) ensure that supervisors in the MCAO assess the quality of sexual assault investigations, provide written feedback to the Missoula Police; and 2) provide more guidance about the responsibilities of the MCAO for cases referred for review.
• Entering into an MOU with the MCSO with substantially the same terms as the MOU with the MPD.
Page 4 of 7

• Working with stakeholders to clarify, in writing, the roles and responsibilities of the MCAO, crime victim advocates and community advocates related to supporting and communicating with victims of sexual assault.
• Agreeing to participate in and support the City of Missoula's efforts to organize and lead a sexual assault safety and accountability audit.
• The MCAO agrees to provide training to the MPD and the MCSO detectives on the requirements of successful sexual assault prosecutions to facilitate effective investigations and minimize the influence of impermissible bias.
• Public education and outreach: In the interest of transparency and improved communication with its community and law enforcement partners, the MCAO agrees to provide the public with information about the criminal justice process, including basic information about the roles of prosecutors and law enforcement in responding to sexual assault, the types of charges available in cases of sexual assault, and the policies applicable to plea negotiation. Such information will be disseminated in a manner designed to reach the greatest number of victims of sexual assault and the law enforcement and community partners that interact with the victims of sexual assault in Missoula County, including through publication on the MCAO's website. This outreach will include outreach focused on communities at particular risk of perpetrating or being victimized by sexual assault. In collaboration with law enforcement and community partners, the Montana Attorney General and the MCAO agree also to conduct outreach to communities at particular risk for perpetrating or being victimized by sexual assault. The community outreach efforts will be funded at a level approved by, and paid by, the Montana Attorney General's Office.
• Data collection: To identify shortcomings and assess improvement, the MCAO agrees to collect specific information about decisions related to sexual assault referrals, initial meetings with victims, charging decisions, plea offers, case dispositions, and sentences, including, but not limited to, the dates and periods oftime between each of these steps in the MCAO's handling of a sexual assault case. Except as to confidential criminal justice information, the MCAO agrees to collect and disseminate on a quarterly basis aggregate data on sexual assault cases to the Montana Attorney General and the public.
• Victim and advocate survey: The MCAO agrees to participate in the victim survey program currently underway through the University of Montana to obtain feedback from victims and advocates to help the MCAO continue to improve its handling of sexual assault cases. The MCAO will work cooperatively with the Missoula Police Department and the University of Montana to ensure that the sexual assault victim survey includes questions about the experience of sexual assault victims with the MCAO, including those victims who decline to participate in an investigation. The MCAO will seek to include questions asking whether and when victims meet with prosecutors; whether and how prosecutors prepare victims for proceedings related to the prosecution of their cases, including motions hearings, trials, and sentencing; whether and how prosecutors describe the prosecution process to victims; and whether and how prosecutors inform victims about their rights during the investigative or pretrial phases, during trial, and after trial and sentencing.
Page 5 of 7

Expert Witness Expenses. In order to facilitate and support prosecution of sexual assault cases, the MCAO will seek additional funding from the Missoula County Board of Commissioners in the amount of $10,000 a year for the next two fiscal years for the purpose of paying expert witnesses who may be needed to provide additional evidence in such cases. In addition, the Montana Attorney General will seek funding from the Montana Legislature to assist county attorneys for' such purpose in the next session of the legislature. This funding is in addition to other sources of funding for experts and is not a limit on the ability of the MCAO to hire such experts as are necessary to pursue cases.
Assessment of this Agreement and Review of Cases by the Montana Attorney General. The Montana Attorney General, in consultation with the Technical Advisor, agrees to establish an appropriate plan to monitor compliance with the terms of this Agreement.
• Monitoring: The monitoring duties of the Montana Attorney General will include: the development and implementation of policies and training, and assessing implementation of other provisions of this Agreement, including, for example, the duty to evaluate supervision of sexual assault cases, coordination with law enforcement partners, and data collection. The Montana Attorney General will also provide technical assistance to the MCAO, as appropriate pursuant to the Agreement. Unless extended by agreement of the parties, an appropriate monitoring and compliance plan will be developed within 60 days of entering into a contract with the Technical Advisor. Following development of the monitoring and compliance plan, in consultation with the Technical Advisor, the Montana Attorney General will monitor compliance with this Agreement for a period of one (1) year.
• Reviewof Cases: For a period of one (1) year following execution of this Agreement by the Montana Attorney General, the Montana Attorney General will review all sexual assault cases where the MCAO has declined prosecution.
Reporting. The Montana Attorney General, in consultation with the Technical Advisor, will provide public quarterly reports regarding whether the requirements of this Agreement have been implemented, including an analysis of collected data from the MCAO and a report on all measurable improvements in the response to allegations of sexual assault. In the interest of transparency and improved communication with its community and law enforcement partners, the Montana Attorney General's quarterly reports and all recommendations and/or conclusions of the Technical Advisor shall be public with the exception of material covered by applicable privacy laws including the Montana Confidential Criminal Justice Information Act.
No Third-Party Rights. This Agreement does not create or give rise to any third-party rights, claims, damages, or causes of action. No person or entity is intended to be a third-party beneficiary of any provision of this Agreement for purposes of any civil, criminal, or administrative action, and accordingly, no person or entity may assert any claim or right as a beneficiary or protected class under this Agreement.
Enforcement. This Agreement is not intended to create legal rights or obligations except as between the MCAO and the Montana Attorney General. Under no circumstances does this Agreement subject the MCAO or the Montana Attorney General to any liability, claim or action by the United States, including, without limitation claims by the United States alleging violations of civil rights or claims for breach of contract or specific performance.
Page 6 of 7

The Montana Attorney General will exercise continuing supervisory authority over the MCAD to ensure compliance with this Agreement. If a question arises regarding the MCAD's performance or compliance with this Agreement, the Montana Attorney General shall give the MCAD notice of the issue and the parties will attempt to resolve the issue promptly by mutual Agreement. In the absence of a mutually acceptable agreement to resolve the issue, the Montana Attorney General shall have the sole authority and discretion under Mont. Code Ann. Section 2-15-501(5), to determine appropriate supervisory measures to obtain compliance with this Agreement. Interpretation of this Agreement relating to the U.S. Department of Justice (USDOJ). The MCAD and the Montana Attorney General expressly deny that the USDDJ has any authority over locally elected county attorneys who fall under the statutory supervisory control of the Montana Attorney General pursuant to Mont. Code Ann. Section 2-15-501(5). Therefore, nothing in this Agreement constitutes any admission or agreement by the MCAD or the Montana Attorney General that the USDDJ has jurisdiction or authority to investigate or seek a remedy against the MCAD regarding its handling of sexual assault cases. The MCAD expressly denies any claims of bias or statutory/constitutional violations. Consequently, nothing in this Agreement shall be construed as an acknowledgment, an admission, or evidence of liability of the MCAD for any violation of State or Federal law, violation of the State or Federal Constitution, or for any alleged gender bias by the MCAD. By entering into this Agreement, the MCAD does not imply that there is validity to any allegations alleged by the USDDJ. This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but all of which, taken together, shall constitute one and the same Agreement.
Dated this
Dated this MISSOULA COUNTY ATIORNEY'S OFFICE
torney
Page 7 of 7

Memorandum of Understanding Between
Office of the Missoula County Attorney and the City of Missoula Police Department December 13, 2013

This Memorandum of Understanding (MOU), dated December 13th, 2013 is an Agreement by and between the Missoula County Attomey's Office (hereinafter MCAO) and the City of Missoula Police DepaJ.iment (hereinafter MPD), referenced collectively as "the Parties".
Purpose
The purpose of this Agreement is to enhance the Palties collaboration and communication in the investigation and prosecution of rep01ied criminal sex offenses, seeking to attain positive outcomes in keeping with the best interest ofjustice. The Parties are committed to working together with community partners to provide victims with timely investigations and prosecution decisions and to improve the experience of victims in the criminal justice system to whatever degree possible.
The MCAO understands that the MPD is operating under an agreement entered into with the United States Department of Justice (DOJ) on 51 15/2013 and desires to support MPD efforts in complying with that agreement. The MCAO is the criminal justice agency responsible for prosecuting felony sex offenses that occur within the jurisdiction of the MPD, when reports have been sufficiently investigated and submitted for a charging decision.
The Parties acknowledge that nothing in the DOJ/MPD agreement of 5115/20 13 or this Agreement is construed to restrict the MCAO's legal authority to conduct its responsibilities under Montana laws, the mles of criminal procedure and the Montana Rules of Professional Conduct applicable to attomeys.
Agreements of the Parties
J'l--fissoula Police Department
The MPD has separately and prior to this MOU entered into an agreement with DOJ which requires the MPD to improve and increase its communication, coordination and collaboration with community and law enforcement partners for the improvement of sexual assault investigations. MPD has adopted changes to improve policies, training, and investigations using victim-centered, offender-focused techniques.
To fulfill its responsibilities in this agreement with the MCAO, MPD agrees to conduct thorough investigations of all reported sex offenses in a timely, comprehensive and unbiased manner. Victim advocacy services will be sought for every victim, although victims will have the ability to decline those services. Consultation \\lith prosecutors during the investigation phase is also encouraged to increase collaboration and assist in identifying priority cases for MCAO assistance.

MOU MCAO_MPD Final 20131213

EXHIBIT
I

Pagelof4

Memorandum of Understanding Between
Office of the Missoula County Attorney and the City of Missoula Police Department December 13, 2013
Completed felony sex offense investigations will be reielTed to the MCAO as a request for either:
I. REVIEW - Referred for Prosecutor Review Only Thcse referrals are cases where, in the eyes oftbe MPD detective, the investigation has not developed probable cause necessary for arrest and prosecution.
2. CHARGING DECISION - Referred tor Prosecution Charging Decision This category of referral will include cases where a custodial arrest has already taken place for a specific charge and/or where in the opinion of the MPD detective there is probable cause sufficient to charge an offender with a felony offense.
All MPD submissions will include all written reports, statements or detailed statement summaries, identified evidence and a recommendation of specified charges the investigator believes are supported by facts found in those materials. The materials will be accompanied by a referral form to enable consistent documentation of the decisions reached in the process.
Office ofthe Missoula County Attorney
The MCAO is committed to hel ping MPD efforts to improve the experience of sex
assault victims in the criminal justice system arld thereby agrees to:
1. Make assignments of cases referred for a charging decision a priority for its prosecutors.
a. Sex assault cases referred for a charging decision are to be given high priority in the interest of achieving timely review and charging decisions. It is understood a charging decision should not be made in haste. To achieve improved communication and collaboration the prosecutor should make contact with the investigator within two weeks of referral. Charging decisions or requests for additional investigation should be reflected in writing upon the referral form and retumed in a timely fashion. Regardless, MCAO reserves the right to decide when charges will be filed, what charges will be filed, whether to seek an arrest warrant for an alleged offender, what bail, if any, to seck with respect to alleged offenders and other such matters that are solely within the appropriate discretion of the prosecuting attorney.

MOU MCAO_MPD Final 20131213

Page 2 of 4

Memorandum of Understanding Between
Office of the Missoula County Attorney and the City of Missoula Police Department December 13, 2013
b. In instances of declination of prosecution, will provide a detailed written explanation as to the reason the case will not be prosecuted, i.e. - why the evidence is insuf1icient to obtain conviction, or prosecution is not in the best interest ofjustice, etc.
c. Prosecutors will make a reasonable effort to review any sex assault case referred for review only within one month or provide explanation for delay. After review MCAO prosecutors will provide written guidance as to concurrence or suggested alternatives, including a request for additional investigation.
2. Consult with MPD investigative supervisors to discuss cases before closure.
a. The MCAO will be responsive to efforts ofMPD investigative supervisors to meet and discuss whether sexual assault cases were appropriately investigated and/or whether additional investigation could be useful prior to MPD closing the case.
3. Participate in face-to-face meetings with victims, advocates and the case investigators.
a. The MCAO agrees that it can be helpful to victims to hear a unified message about the outcome of their criminal complaint and agrees to participate in joint victim meetings during the process as appropriate for the circumstances. When a referral for proseeution is made and results in a declination of charges, the prosecutor will be responsible for arranging for a joint meeting.
4. Commit to participation in the MPD-Ied Community Safety and Accountability Audit planned for 2014.
a. The City of Missoula is responsible for organizing and leading a sexual assault safety and accountability audit during the te1111 of the MPD agreement with DOJ. The MCAO agrees to be an engaged and collaborative participant in the audit alongside MPD, the University of Montana - Office of Public Safety and other community pminers involved in responding to reports of Sexual assault in the Missoula community.

MOU MCAO MPD Final 20131213

Page 3 of4

Memorandum of Understanding Between
Office of the Missoula County Attorney and the City of Missoula Police Department December 13, 2013

Term of Agreement

This Agreement shall remain in full force and effect from this date until modification by mutual agreement of both Pmiies, or until rescinded by either party after reasonable attempts to attain necessary modifications.

This Agreement entered into this 13th day of December, 2013 in Missoula County, MT.

_Mil! ) , 1It-1A~..---~~~,.~~~-----
Fred Van Valkenburg

. 1t; /' " / --~-- ..../f~'1,"~f1A,Ii/c/-' ~"/v~r.///;tUi,l/!
Mark 'Muir, Chief of Police

Missoula County Attorney

Missoula Police Department

/~:~ AP/PROVE;EIJ/D::..,?

./ Jol:Hl Engen, Mayor

/

.'

/ 0ty of Missoula

~//

MOU MCAOJv1PD Final 20131213

Page 4 of 4

 
 Case: 9:14-cv-00038-DLC As of: 06/12/2014 09:03 AM MDT 1 of 3
U.S. District Court District Of Montana (Missoula) CIVIL DOCKET FOR CASE #: 9:14−cv−00038−DLC

CLOSED

Van Valkenburg v. County Attorney's Office for Missoula County, Montana et al Assigned to: Judge Dana L. Christensen Cause: 28:2201 Constitutionality of State Statute(s)
Plaintiff

Date Filed: 02/11/2014 Date Terminated: 06/11/2014 Jury Demand: None Nature of Suit: 890 Other Statutory Actions Jurisdiction: U.S. Government Defendant

Fred Van Valkenburg in his official capacity as County Attorney for Missoula County, Montana

represented by Natasha Prinzing Jones BOONE KARLBERG, P.C. 201 West Main Street PO Box 9199 Missoula, MT 59807−9199 406−543−6646 Fax: 549−6804 Email: npjones@boonekarlberg.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Randy J. Tanner BOONE KARLBERG, P.C. 201 West Main Street PO Box 9199 Missoula, MT 59807−9199 406−543−6646 Fax: 406−549−6804 Email: rtanner@boonekarlberg.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas J. Leonard BOONE KARLBERG, P.C. 201 West Main Street PO Box 9199 Missoula, MT 59807−9199 406−543−6646 Fax: 549−6804 Email: tleonard@boonekarlberg.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
County Attorney's Office for Missoula County, Montana

represented by Natasha Prinzing Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Randy J. Tanner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas J. Leonard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 9:14-cv-00038-DLC As of: 06/12/2014 09:03 AM MDT 2 of 3

V. Defendant United States Department of Justice
Defendant Eric H. Holder, Jr. in his official capacity as Attorney General, United States Department of Justice Defendant Michael W. Cotter in his official capacity as United States Attorney for the District of Montana, United States Department of Justice
Defendant Jocelyn Samuels in her official capacity as Acting Deputy Assistant Attorney General for the Civil Rights Division, United States Department of Justice Defendant Jonathan M. Smith in his official capacity as Chief, Special Litigation Section, Civil Rights Division, United States Department of Justice Defendant John Does 1−10 in their official capacities as officials with the United States Department of Justice

represented by Victoria L. Francis OFFICE OF THE U.S. ATTORNEY 2601 Second Avenue North Box 3200 Billings, MT 59101 406−657−6101 Fax: 406−657−6058 Email: victoria.francis@usdoj.gov ATTORNEY TO BE NOTICED
represented by Victoria L. Francis (See above for address) ATTORNEY TO BE NOTICED
represented by Michael W. Cotter OFFICE OF THE U.S. ATTORNEY 2601 Second Avenue North Box 3200 Billings, MT 59101 406−247−4689 Fax: 406−657−6055 Email: michael.cotter@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Victoria L. Francis (See above for address) ATTORNEY TO BE NOTICED
represented by Victoria L. Francis (See above for address) ATTORNEY TO BE NOTICED
represented by Victoria L. Francis (See above for address) ATTORNEY TO BE NOTICED
represented by Victoria L. Francis (See above for address) ATTORNEY TO BE NOTICED

Date Filed 02/11/2014

# Docket Text
1 COMPLAINT FOR DECLARATORY JUDGMENT filed by Fred Van Valkenburg, County Attorney's Office for Missoula County, Montana. (Attachments: # 1 civil cover sheet) (ASG, ) (Entered: 02/11/2014)

Case: 9:14-cv-00038-DLC As of: 06/12/2014 09:03 AM MDT 3 of 3

02/11/2014 02/11/2014 04/17/2014 04/17/2014
04/21/2014 05/20/2014 05/20/2014 06/10/2014 06/11/2014

2 Summons Issued as to Michael W. Cotter, Eric H. Holder, Jr., Jocelyn Samuels, Jonathan M. Smith, United States Department of Justice. Originals mailed to Counsel Jones. (ASG, ) (Entered: 02/11/2014)
Filing fee: $400.00 paid, receipt number 0977−1360063. (ASG, ) (Entered: 02/11/2014)
3 Unopposed MOTION for Extension of Time to File Answer Michael W. Cotter appearing for Defendant Michael W. Cotter (Attachments: # 1 Text of Proposed Order) (Cotter, Michael) (Entered: 04/17/2014)
4 ORDER granting 3 Motion for Extension of Time to Answer re 1 Complaint All Defendants. Defendants shall file their response to Complaint no later than 5/21/2014. Signed by Chief Judge Dana L. Christensen on 4/17/2014. (dle) (Entered: 04/17/2014)
5 NOTICE of Appearance by Victoria L. Francis on behalf of All Defendants (Francis, Victoria) (Entered: 04/21/2014)
6 Unopposed MOTION for Extension of Time to File Answer Michael W. Cotter appearing for Defendant Michael W. Cotter (Attachments: # 1 Text of Proposed Order) (Cotter, Michael) (Entered: 05/20/2014)
7 ORDER granting 6 Motion for Extension of Time to Answer 6 . Response to complaint due 6/11/2014. Signed by Judge Dana L. Christensen on 5/20/2014. (ASG, ) (Entered: 05/20/2014)
8 Unopposed MOTION to Dismiss Natasha Prinzing Jones appearing for Plaintiffs County Attorney's Office for Missoula County, Montana, Fred Van Valkenburg (Attachments: # 1 Text of Proposed Order) (Jones, Natasha) (Entered: 06/10/2014)
9 ORDER granting 8 Motion to Dismiss. This matter is dismissed with prejudice. Signed by Judge Dana L. Christensen on 6/11/2014. (ASG, ) (Entered: 06/11/2014)