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

3.3. INTERVIEW THE VICTIM

3.3.1.Establish a rapport

Prior to meeting with a victim, review supra the issues addressed in the following sections, including the suggested responses to victim’s fears, questions and concerns:

Section 2.2, Your Relationship with the Victim.

Section 2.4, Addressing the Victim’s Reluctance to Prosecute.

Section 2.6, Factually Specific Victim Issues.

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  In no uncertain terms, tell the domestic violence victim she is not responsible for the abuser’s violence. Tell her the defendant must take responsibility for his anger, his substance abuse, and his criminal actions. Explain that intervention is warranted, that he most likely cannot change on his own.
  

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  In no uncertain terms, tell the sexual assault victim she is not responsible for the rapist’s violence. Discuss her emotional reactions, and the reactions she is receiving and/or perceiving from others. Discern the level of support she is receiving from friends and family.
  

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  Never assume a sexual assault or domestic violence victim knows you care just because you are listening to her account and working hard on the case. Articulate your empathy.
  

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  Be prepared for some of the more difficult aspects of interviewing sexual assault victims.
  

Often sexual assault victims experience memory problems; this can be due to disruptions in memory caused by the trauma itself. Amnesia, a lack of conscious memory, and hypernesia, a distinct memory of one or more aspects of the traumatic event, can both occur after any traumatic event.

Alcohol or drug ingestion before or during the assault frequently impairs the memory of sexual assault victims.
Disclosure of the assault is very often delayed, due to the shame and isolation that are common responses among sexual assault victims. It doesn’t mean the assault wasn’t terrible or traumatic.
As a defense, victims of domestic violence and of sexual assault may preface their description of the incident with minimizing statements such as “It wasn’t too bad, but ..” or “I don’t know if it was really rape, but …” Minimization is a defense that assists victims to psychologically process the event. Minimizing statements should not be misinterpreted.

3.3.2.Gather information

The following lists are presented as condensed, grouped topics to be covered when interviewing victims, but are not intended to represent the actual questions you should ask. Avoid proceeding through the topics as a checklist: that would not encourage the victim to open up, might make her feel she is participating in an inquisition instead of an interview, and simply would not be polite. Be sure all of these topics are covered, but ask open-ended questions, and follow up as needed without interrupting.
About the victim:

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  height, weight, age, health, physical fitness, physical strength
  
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  family, employment, education
  
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  alcohol or substance abuse
  

About the suspect/defendant in general:

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  height, weight, age, health, physical fitness, physical strength
  
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  family, employment, education
  
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  ownership of firearms; where located
  
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  ownership of other weapons; where located
  
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  fascination with weapons
  
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  training in boxing, military, karate or other forms of fighting
  
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  use of alcohol, prescription drugs, other drugs
  

About the past relationship between the victim and the suspect/defendant:

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  how and when they met; the nature of the relationship
  
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  specific threats of violence
  
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  veiled threats of violence
  
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  annoying telephone calls
  
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  threatening telephone calls
  
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  victim ever followed, pursued, spied on
  
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  correspondence
  
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  fits of rage, displays of anger, emotional outbursts; intimidating behavior (e.g. throwing things, looming over the victim; ripping phone from wall)
  

About the defendant’s criminal record and any past history of violence:

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  any acts of violence against the victim
  

● first incident of violence directed at the victim

● most serious incident of violence directed at the victim

● whether the acts were reported to police

● whether the violence resulted in injuries

● whether medical care was required for the injuries.

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  knowledge of his criminal record, including other states/countries
  
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  previous protective/restraining orders, including other states/countries
  
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  protective/restraining order in place (number; issue date; service; expiration)
  
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  acts of violence, against any person (including other victims the suspect/defendant has abused); were the acts reported to police
  
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  acts of violence (including acts purported to be discipline) against children
  
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  acts of violence against pets or animals
  
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  acts of vandalism or other destruction of property; were the acts reported to police
  

About the incident:
in the weeks preceding the incident:

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  any changes in the relationship (e.g. discussion of breaking up, romantic interest in other people --whether real or perceived, financial difficulties, stress from job or family or other sources, mood changes)
  

in the 24 hours preceding the incident:

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  what the victim did
  

(including what she ate and drank, who she saw, who she spoke to)

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  full description of any contact with the defendant
  
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  knowledge of what the defendant was doing (including whether he worked, what his mood appeared to be, any use of alcohol or drugs, any stress or conflict)
  
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  who else may have seen the defendant
  

during the incident(s):

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  full description of “the scene”
  

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  what were you wearing
  

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  what was he wearing
  

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  time of day
  

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  weather
  

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  who was present
  

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  what was on TV
  

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  what each person was doing at the time
  

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  detailed, specific descriptions of the assault, step by step, including
  

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  which hands used
  
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  open or closed fist
  
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  number of blows
  
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  where blows landed
  

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  where victim was pushed or shoved
  
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  what items were thrown, broken, overturned, or pushed
  

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  anything the defendant said
  

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  defendant’s tone of voice
  

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  all possible statements
  

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  excited utterances by the victim and/or others at the scene
  
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  declarations of physical or mental state by the victims
  
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  admissions or partial admissions by the defendant
  
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  “first” complaints by the victim
  

aftermath:

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  how the assault ended
  
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  who, if anyone, intervened, at any point
  
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  who, if anyone, called police or ambulance
  
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  description of injuries and pain; what done to alleviate or treat; medical care received; lasting effects;
  
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  description of changes to the scene or to property resulting from the assault
  

About pressures the victim faces:

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  Has the assailant/abuser talked to the victim since the incident? What did he say?
  
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  Has any relative or friend of the assailant/abuser talked to the victim? What has been said?
  
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  Have any threats or pressures been put on the victim by anyone (especially her own family) regarding the prosecution?
  
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  Is the victim facing issues of economic support?
  
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  Are there children in common? Are there custody issues? Are there probate proceedings?
  
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  Is it a long term relationship?
  
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  Are government agencies involved? (e.g. DSS, DYS, DMR, DMH)
  

3.3.3.Stress the Need for Candor and Clarity

Most sexual assault and domestic violence cases pivot on the credibility of main witnesses: the victim, and the defendant who refutes a lack of consent and denies force and abuse. Given the importance of credibility in cases in which the jury will be forced to choose whom to believe, you must successfully convey the need for candor.

You must explain that you insist on complete candor not because you are skeptical of her account, but rather, because you need to ensure effective prosecution. Falsehoods and inaccuracies about collateral issues such as smoking marijuana or drinking alcohol, extra-marital affairs, prior arrests, or breaking rules or curfews may have no direct bearing on the elements of the crime, but if exposed, can give a judge or jury enough reason to distrust her.
Victims may leave out such things in their initial interview with you, because they are embarrassed or ashamed to speak about certain things, or because they want to retain at least some feeling of privacy and control. You need to be alert and unearth any ambiguities or gaps. You need to convince the victim to be fully candid with you, even if she has been less than fully candid with police or in prior interviews.

3.3.4.View the Scene Together

If the victim agrees and will not be traumatized, it may be extremely beneficial to visit the scene of the crime and walk through it with her, verifying the sequence of events and the location of people and objects. With or without the victim, it is imperative that you go to the scene prior to trial.

3.3.5.Inform the Victim About the Process and Assess her Safety

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  Provide an overview of the criminal process and prepare the victim for the next event.
  

At your initial interview you will need to explain the parties, players, and processes involved in a criminal prosecution. Prepare the victim for the possibility of a change of plea at a pretrial conference or motions date. Discuss your options for a sentencing recommendation, and solicit her opinion. Show her the Grand Jury room and explain the Grand Jury procedure. You should meet again, closer to the trial date, to focus on trial preparation.

(See infra section 7.4, Preparing the Victim for Trial and section 9.7.2, Suggestions for Witnesses.)

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  Explain that it is up to the victim to decide whether or not to speak with the defendant’s investigators or lawyers.
  

Never instruct or suggest that a witness not speak with defense counsel. Such an instruction would violate article 12 of the Declaration of Rights. Commonwealth v. St. Pierre, 377 Mass. 650, 658 (1979).

Carefully explain that if a lawyer or investigator initiates contact or calls to set up an appointment, the decision whether to meet with them and/or speak with them is hers alone to make. Explain she is not obliged to speak, nor is she obliged to refrain from speaking. Explain that if she chooses to speak with the defendant’s lawyer or investigator, the defense attorney may be allowed to use whatever she says in court in an attempt to impeach her or otherwise undercut her testimony. Explain that she also has the option of agreeing to speak with the defense under conditions of her choosing, such as having other people present whom she wishes to be present.
Explain that if someone goes beyond requesting her to talk, and instead, is repeatedly bothering her to the point of harassment, she should give you the details of this behavior and you will bring it to the court’s attention. Explain that the court takes the harassment and attempted intimidation of witnesses extremely seriously, and that your office can even bring criminal charges where appropriate.

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  Assess the present and future danger to the victim.
  

Review supra section 2.7., Risk Assessment.

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  Draw up a safety plan and make referrals.
  

Review supra section 2.7, Safety Planning.

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  Make sure that the victim has completed an address form for notification purposes.
  

A prototype form follows.

_____________________ County District Attorney

______________________

______________________

Victim/Witness Address Form
Please complete this form and mail or bring it to the above address so that we will be able to keep you informed
Commonwealth v. ___________________________________________

(the defendant’s name)

Your name: __________________________________

Your Current Address: __________________________________

__________________________________
Your Work Address: __________________________________

__________________________________

Phone: Home __________________ Work: ________________
In case of an emergency, is there another address where we may be able to contact you?
Name: __________________________ Relationship: _________________________
Address: __________________________________
__________________________________

Phone: Home __________________ Work: ________________

Your signature: ______________________________ Date: ______________________
It is your responsibility to provide us with any changes of address or telephone number so that we may stay in contact with you.