Massachusetts District Attorneys Association the massachusetts prosecutors’ manual: domestic violence & sexual assault

2.2.YOUR RELATIONSHIP WITH THE VICTIM

1. Make a connection with the victim -- a truthful connection.
Give the victim as much detail as possible, as early and as often as possible. She will ask difficult questions; in answering them, take care not to twist or omit information. When discussing matters that are not certain, don’t make promises about things you can’t control, such as promising or implying that she won’t have to testify, that the trial will definitely begin on a certain day, that the defendant will change, that the violence will stop, or that the defendant will receive a certain sentence. Convey to her your concern for her safety, conduct thorough safety planning, and set up as many services as possible -- but don’t imply that we can guarantee to protect her from harm. And don’t conceal problems or shortcomings in proving the case. The minute a victim loses trust in you, you’ve lost the connection, and you may also lose her cooperation. If you are not being completely truthful, can you expect her to be?

2. Never underestimate the impact you have on a victim.
The direct and indirect feedback you give to victims, no matter how small or seemingly insignificant the underlying contact, has a dramatic impact. Victims often see the prosecutor as representative of the entire criminal justice system. Prosecutors’ remarks, body language, and behaviors may be interpreted by victims as messages relaying how “their” case is valued, or as guidance on how they should act and react during the entire process.

3. Examine the “baggage” you carry: your own attitudes and experiences.
How do you react when speaking to gays and lesbians, to people who have worked as prostitutes or abused drugs, to people with histories of mental illness or disability, to people of races or religions different from your own, to people who don’t comply with social norms such as fidelity, to people on welfare, or even to people who dress unconventionally? Do you ever have feelings of disgust or fear or confusion? Do your feelings affect your ability to assess a witness’s account fairly, and provide the support and professional lawyering required? Do you dread difficult trial issues which may arise when victims have records or histories of substance abuse, and does this dread translate into inaction on your part? Does your sensitivity dull after repeatedly seeing victim after victim in similar traumatic condition?
Step outside your own attitudes and reactions and provide the attention and respect each victim is due. And then go one step further. Turn the “baggage” around and use it in your case. If you had an uncomfortable or inappropriate reaction to a victim, maybe the perpetrator did too -- was that his motivation? Can you show the jury that this victim was targeted and raped because her drug use made her easy prey, or because she was a street walker, or because she was a lesbian? If you’re disheartened by the number of times a woman has called the police, and then was unable to cooperate in a domestic violence prosecution, can you use the history to illustrate the dynamics of abusive relationships to the judge or jury? Your cases will involve complex social issues -- make them your explicit points, not the defendant’s latent defenses.


4. Examine your behavior from the victim’s perspective.
Think of the most humiliating experience in your life. Now imagine having to come to a public place, with no privacy, and share all of the intimate details of that experience with a complete stranger who acts busy and abrupt, and who keeps shuffling through reports and taking notes as you do your best to answer his or her questions -- questions which range from insultingly mundane to devastatingly personal. What would you want that person to do to make the experience less oppressive?

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  Make sure you read all police reports or 209As before talking with the victim, to help prevent conveying a message that hers is “just one more case.”
  

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  Find as quiet and private a place to talk as possible.
  

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  Don’t stand over the victim: if she is sitting, sit at her level.
  

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  Don’t keep your face buried in your reports or notepad: make and sustain eye contact. (N.B.: some cross-cultural victims, particularly from certain Asian cultures, may be offended or uncomfortable with attempts to have sustained direct eye contact.)
  

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  Use a respectful tone of voice. Don’t be condescending, glib, or patronizing.
  

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  Ask open-ended questions.
  

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  Don’t interrupt. Genuinely listen.
  

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  Whenever possible, prepare early: be sure the victim has the time and space she needs to make decisions (i.e. her reaction to a plea negotiation, sentencing recommendation, or request that she testify).
  

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  Never joke or socialize with the defendant, defense counsel, or anyone working on the defense team in the presence of the victim or her friends and family. No matter how close a friend defense counsel may be, no matter how many trials you have been through together, when the victim is present, maintain a professional distance. Do not refer to defense counsel as “my brother” or “my sister.”
  

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  Choose your words and phrases carefully -- both in dealing directly with the victim, and in speaking to the Court. The words you choose will convey the measure of your support.
  

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  For example, if the judge inquires whether the victim will be testifying, answer “The Commonwealth is proceeding without the victim’s testimony” rather than “the victim is unwilling to cooperate.” Choose words which will show that you treat the victim with dignity and respect.
  

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  If a victim blames herself for getting hurt, or is uncertain about participating in the prosecution, don’t belittle these emotions, “normalize” them: “many people feel the feelings you’re describing.” Then follow with firm support: “Nothing justifies violence.” “You don’t deserve to be hurt.” “Regardless of what you think you have done to disappoint him, he does not have the right to hurt you.” “If a stranger did this to you, would you blame yourself?”
  

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  If a victim appears ambivalent about her safety, show concern for her and motivate her without threatening or insulting her: “I’m concerned for your safety and for the safety of your children.” “We need to think about what we can do to prevent this from happening again.” “We’ve found that people continue certain behaviors unless there are consequences.”
  

5. Be empathetic. Acknowledge the victim’s pain; understand the victim’s fears.
Direct expressions of genuine concern and sympathy are critical. Acknowledge the pain she has endured. Articulate any fears you have for her safety. (see infra section 2.6: Safety Planning). Be sensitive to any fears she may have in participating in a criminal case: the fear of not being believed, the fear of being ridiculed, the fear of confronting her abuser or rapist, the fear of retribution, the fear of not knowing where to go or what to say, the fear of possibly losing her children, the fear of losing the case, the fear of winning the case, the fear of speaking publicly about personal or sexual matters, the fear of legal jeopardy or social stigma (see infra section 2.4 : Addressing Victims’ Reluctance to Prosecute and section 2.5: Factually Specific Victim Issues).


6. Thoroughly prepare the victim for all court procedures and all possible outcomes.
Preparation involves emotional support, the sharing of detailed information, and an honest assessment of the case. At every stage, the victim should be fully informed -- not just about the next court date, but about legal issues, procedures, and consequences. (see infra section 7.4: Preparing the Victim for Trial). Predict all possible outcomes, not just the one the Commonwealth wants and/or foresees. Work closely with the advocate on these critical issues.

7. Remember that “every survivor needs an ally, not necessarily a victory.”
You are not the victim’s private attorney. You have obligations and duties to the entire Commonwealth. But your role as the victim’s ally must not be minimized or lost in your attempts to achieve a court victory. The Rape Survivors Law Project, connected to the Boston Area Rape Crisis Center, put together materials for training pro bono attorneys to assist their clients. Part of a description of their attorneys’ role may also be applied to your role as a prosecutor:
The biggest challenge for an attorney representing a rape survivor does not come in court. It comes in the quiet, private moments when you discuss the ‘case’ with the survivor. The relational alliance you forge in these moments is equally important as the outcome. Every survivor needs an ally, not necessarily a victory.
Rape Survivors Law Project, Attorney Practice Manual, 5 (2001). You cannot guarantee a victim that a prosecution will be successful. You cannot guarantee a victim that a just sentence will be imposed. You cannot guarantee that a defendant will serve his full sentence. You cannot guarantee that safety planning will prevent future violence. (Though you will certainly do all you can to make these things happen). But you do have the ability to guarantee that you will treat a rape victim with respect, that you will take her seriously, that you will listen, that you will be empathic, that you will validate – that you will be her ally. Even in cases where you or your supervisor decide you must continue to prosecute a case after a victim has expressed a desire that it be dropped, you have the ability to communicate that decision-making process in a respectful, compassionate, and informative manner. It is your privilege and your honor to do so.