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Attacking The Investigation of Date – Acquaintance Sexual Assault – The Investigation – Part I of II

De-constructing Law Enforcement Investigative Techniques By Colorado Sex Crimes Defense Lawyer – H. Michael Steinberg

The Consent Defense and Implications for Police Investigation of Sexual Assault Allegations

The vast majority of sexual assault cases will hinge on the issue of “consent,” and not on the identity of the alleged assailant. Therefore the police – as a tactic during an interview – will downplay the seriousness of the situation and the charge. By intimating that the case doesn’t sound like “real rape,” and that the interviewer shares the suspect’s views on women and sex, the police investigator hopes to elicit incriminating statements from the accused.

It Was Just ” Rough Sex” Defense – ONE Reason You NEVER Allow The Police To Interview You

Many of those under investigation for sexual assault believe they can “talk”their way out of trouble. Wrong – they believe in the societal stereotypes associated with the “real rapists” and firmly believe that they can convince the police this was completely different.

These suspects think they can get away with the –just a “little force” or simply “rough sex;” or that it is not “real rape” defense… especially if they had drinks with the victim or if there was previous sexual activity. The police investigator plays on this ignorance and will not disabuse them of these beliefs, which inevitably leads to the disclosure of possible incriminating statements.

The Police Will Attack The “He Said – She Said Defense”

When a sexual assault investigation hinges on the issue of consent, the police sometimes refer to it as a “he-said-she-said” situation, … a contest of credibility.

The police will then – as a tactic in any investigation – comb the suspects social circles for other alleged victims. It might be favorite bars and clubs, a college campus, or the office where he works. Former girlfriends and women previously dated can be legally questioned for stories of battery or old allegations of sexual assault.

Suspect Interviewing Techniques In Colorado Sex Assault Investigations

In the vast majority of reported sexual assault crimes the accused knows the accuser… AND the accused most likely has never been in contact with law enforcement.

Preparation for the Sex Crime Suspect Interview

Law enforcement officers have been traditionally trained to interview victims and interrogate suspects.

In most interrogations police will allow the suspect to offer as much information as he wants without interruption. They will not attempt to confront or interrogate the suspect about any admissions and inconsistencies in his statement until his complete statement is recorded.

While complete confessions are rare, the officer try to produce numerous admissions.

Admissions might appear insignificant at first, but in the case of a one-on-one assault with limited physical evidence, they will be used by the DA to boost the credibility of the victim. And therefore are extremely useful evidence at trial.

Is the Sexual Assault Viewed as a “Blitz” or a”Confidence”

“Blitz rape” and “confidence rape” are terms that were developed by researchers to describe stranger and non-stranger sexual assaults.

A “blitz rape” is a sudden surprise attack by an unknown assailant. This is the type of assault that most people think of as “real rape,” and the type that has traditionally received societal attention and concern.

A “confidence rape” involves some nonviolent interaction between the rapist and victim before the attacker commits the sexual assault. The perpetrator is said to use the relationship to gain access to the victim.

The Time and Place for the Interrogation

The timing of the interview is always critical. The police most often believe that the suspect is confronted as soon as practical — before he learns about the investigation and his rights — and to lock him into his story. If the suspect is surprised, it is believed he will be less able to construct mental defenses and alibis.

In addition to the timing, the location of the interview is important because it has an impact on whether:

The suspect feels free to leave

The suspect feels more versus less threatened, and

Whether Miranda warnings must be given to the suspect.

Confident Suspects

If the suspect is someone with a lot of personal power, removing the suspect from his home or place of employment is used to reduce his feeling of control. If the suspect is someone with very little personal power or presence, taking the suspect “to the station” may cause him to feel so threatened that he will only think about protecting himself.

Homework Performed By The Investigator To Prepare For The Interrogation

Officers become familiar with the background information on the suspect. They study the:

Criminal history, conviction history, and reports of uncharged acts, (even traffic tickets).

Information from other officers who know or who have previously investigated the suspect.

Probation record, parole status and any psychiatric treatment reports.

Any information from/about family members, friends, neighbors, etc.

Relationship between suspect and victim. (For example, do the suspect and victim(s) know each other from work, are they neighbors, friends, or partners etc.)

In addition to these general considerations, investigators take into account any personality characteristics or disorders of the suspect that might affect the style and tone of a suspect interview.

The Trick / Tactic Of Using the Polygraph with Sexual Assault Suspects

Colorado law prohibits using the polygraph on alleged sexual assault victims. It is used as a tactic when interviewing suspects. The evidence from a polygraph is inadmissible in court, instead it is used to direct an investigation and provide additional evidence to an investigator.

To that extent, the polygraph should be considered one tool among many that can be utilized in the context of an entire sexual assault investigation.

Polygraphs are used with sexual assault suspects to play on their often narcissistic personalities. These suspects are more than willing to submit to its use. They are often confident in their ability to use these biases to their advantage.

The polygraph test provides the investigator with a second opportunity to observe and talk with the suspect. If and most likely when the suspect fails, the polygraph provides a basis for confronting him to try to force a confession or to make incriminating admissions.

In preparing for the polygraph examination, investigators meets with the polygraphist in advance to discuss the investigation and prepare test questions that will be asked. Questions are supposed to be specific, with no room for interpretation.

Getting Incriminating Statements -A Difference In Crimes

Imagine that an officer is assigned to investigate a burglary. He interviews the victim, who tells him that she knows who committed the crime — it was one of the victim’s friends. The officer then interviews the suspect, and he admits that he broke into the victim’s home and took the victim’s property. For all practical purposes this statement has guaranteed that the suspect will be prosecuted.

Now imagine that this same officer is assigned to investigate a sexual assault. He interviews the victim, who tells him that she knows who raped her — it was the victim’s boyfriend. The officer then interviews the suspect, and he admits that he had sex with the victim. However, unlike the burglary investigation, prosecution is not guaranteed.

In fact, the case may have actually become more difficult to prosecute. This is particularly true if the suspect claims that the victim consented to have sex with him. When the suspect raises the issue of consent, the focus of the investigation changes from a question of who committed the crime to whether a crime was committed at all.

The Consent Defense – Redux

Consent is a defense that is unique to sexual assault prosecutions. While it is theoretically possible for the burglary suspect to raise the issue of consent, this defense is unlikely to succeed: “Yes, I broke into the house and took the stuff, but the owner wanted me to.” This is because the public in general is not prepared to believe that someone would allow another person, even someone they know, to break into their home and take their property.

However, in the case of sexual assault the investigator will not only try to elicit a statement from the suspect that the sexual act occurred, he will also ask questions that will attempt to elicit information pertaining to the element of force or threat that are assumed to preclude the victim’s consent.

Exoneration vs. Confession

Most statements fall on a continuum that ranges from exoneration to confession.

Exoneration

A statement from a suspect exonerates him when he both denies committing the offense and can provide verifiable information that establishes the impossibility of his involvement. For example, if a suspect is accused of sexual assault he would be exonerated by both denying that he committed the crime and also by proving that he was incarcerated when the assault occurred.

Confession

A confession is a statement in which the suspect admits committing all the elements of the offense, raises no affirmative defenses or mitigating factors and provides investigators with previously unknown information or evidence about the crime. For example, in a case in which the suspect is accused of raping a woman in his apartment, he could confess by both admitting that he forced her to have sex with him and by providing the investigators with a videotape he secretly made recording the sexual assault.

Exculpatory vs. Incriminating Statements

Exculpatory Statements

This type of statement acts to clear one of blame. It does not necessarily exonerate a suspect completely, but it provides a piece of information that challenges the idea that he committed the crime as described by the victim or other witnesses.

Incriminating Statements

This type of statement involves a suspect in a wrongful act/crime. Incriminating statements are those that either support the victim’s story or catch a suspect in a lie or seeming inconsistency.

How does one determine whether a statement points to innocence – exculpatory or guilt -incriminating?

….consider the following:

The suspect denies being with the victim when she claims she was sexually assaulted.

The suspect admits to having sex with the victim and to hitting her.

These statements could be either exculpatory or incriminating depending on what other evidence the investigator has discovered. No statement “stands alone” and ALL must be viewed in the context of all the evidence.

Although the first statement might initially appear to be exculpatory because the suspect is denying involvement, it could actually be incriminating if there is evidence that proves the suspect had sex with the victim, and/or witnesses who will testify that they were together. Thus, this statement becomes incriminating by using other evidence that proves the suspect is lying. This type of incriminating statement is frequently overlooked.

In contrast, the second statement initially appears to be incriminating because the suspect is admitting to both sexual involvement and physical violence. However, the statement could be considered exculpatory if the suspect says: “We had consensual sex. When we finished, I started to leave and the victim became upset. We started fighting, she hit me and I hit her back.” This statement is exculpatory because it provides a reasonable alternative account of the events.

It explains the presence of DNA and the victim’s injuries, without admitting to the elements of sexual assault.

Only In Context

The bottom line is that any statement can be deemed exculpatory or incriminating only in the context of other evidence, including the victim’s account.

Provable Lies, Implausible Accounts of an Incident, and Partial Admissions

To determine if a given statement is incriminating when considered in the context of other evidence, one looks to see if the alleged incriminating statements include provable lies, an implausible account of an incident, and/or partial admissions.

Suspects tell several different types of provable lies, such as a statement of fact that can be disproved by evidence. For example, if the suspect states that he never had sex with the victim, this can be shown to be untrue with a DNA test. A second type of provable lie is a contradiction in the suspect’s account of events.

The Danger of “Variations” and Inconsistencies

When required to give repeated detailed accounts of an event, the suspect’s summary of the incident might change from version to version. One or two minor variations will not be incriminating, but when the suspect’s account is riddled with contradictions, it can be used to destroy his credibility.

An implausible account of an incident may also constitute an incriminating statement. When unexpectedly confronted with an accusation, some suspects will attempt to explain the evidence with a convoluted portrayal of the event. The more complex an explanation, the less likely it is to be true, and the more likely the investigator will recognize the suspect’s explanation as an attempt to explain away unfavorable facts.

A partial admission may also be an incriminating statement. A partial admission is a statement in which the suspect admits to some but not all of the elements of the crime. For example, a suspect might say that the victim said “no” and struggled to get away when he initially requested sex, but explains that she then later changed her mind and consented to have sex.

Investigators will follow up on a partial admission with additional questions to elicit more incriminating information. In this case, the investigator might ask how the suspect knew the victim changed her mind. The suspect might say, “She stopped struggling.” This statement is incriminating because most jurisdictions no longer equate compliance with consent.

Techniques Used to Encourage Additional Details

The danger in speaking to the police is that seemingly unimportant details can provide necessary links to other pieces of evidence or information, or they can be used to uncover inconsistencies in previous or subsequent statements. Techniques to encourage additional details from the suspect may be as follows.

The investigator will not challenge lies offered by the suspect. Rather, suspects are allowed to develop them and add details to them. Often, the details are later used at trial to “dismantle the lies,” and may increase the likelihood of an admission. A well-documented lie can sometimes be very powerful evidence for prosecution.

Investigators will encourage the suspect’s excuses or justifications (denial). Big “egos” are often at work here so the investigator will “go along” with this conversation which may result in an admission.

Most alleged suspects will tend to rationalize their behavior to justify their actions or deny the allegations. A common rationalization is entitlement: “I paid for dinner,” “This is my girlfriend/wife,” etc. Another offender may rationalize that the victim “disrespected” him. For example: “I gave her drugs, so she owed me sex.”

The police encourage these rationalizations or otherwise “play along,” so that the suspect is encouraged to provide additional details to his account of events.

Why You Should NEVER Speak To The Police!

Obtaining an incriminating statement frequently means the difference between a conviction and an acquittal.

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H. Michael Steinberg has been a Colorado criminal law specialist attorney for 29 years. For the First 13 years of his career, he was an Arapahoe – Douglas County District Attorney Senior prosecutor. In 1999 he formed his own law firm for the defense of Colorado criminal cases. In addition to handling tens of thousands of cases in the trial courts of Colorado, he has written hundreds of articles regarding the practice of Colorado criminal law and frequently provides legal analysis on radio and television, appearing on the Fox News Channel, CNN and Various National and Local Newspapers and Radio Stations. Please call him at your convenience at 720-220-2277