Sexual aSSault LEGAL ADVOCACY MANUAL - Texas Association ...

The Criminal Investigation
Introduction: The Role of Law Enforcement
For many survivors of sexual assault, the process of reporting the crime to police and having it investigated is
very traumatic—so much so that the idea of it discourages many from reporting at all. However, in cases where
the survivor does come forward, the reporting and investigation stage is the time when legal advocates can
usually do the most to protect victims’ rights.
At the outset, it is important to step back and think about the criminal justice system as a whole. Our system
is designed to maximize confidence in the convictions we dole out by minimizing the risk of punishing the
innocent. And that makes sense: when we convict someone of a crime, we want to do it completely fairly.
We want to be able to say we proved the defendant’s guilt beyond a reasonable doubt, even in the face of all the
defendant’s very best defenses. By placing tough burdens on itself, the state is attempting to ensure certainty
about its convictions. It is true that convictions would be easier to obtain without those burdens, but that would
also make it easier for defendants to challenge them afterward.
In practice, all of that means police have to navigate a number of constitutional safeguards throughout the
investigation process. They also need to be extremely careful with how they collect and handle evidence,
because even small mistakes can prevent prosecutors from charging a defendant with a crime. For example,
under the “exclusionary rule,” due process requires that evidence collected illegally cannot be used against the
defendant at trial (Mapp v. Ohio, 367 U.S. 643 (1961)).
In many circumstances constitutional safeguards might cause delays before police act. To protect the integrity
of the case, police may have to take a lot of time obtaining search warrants, building evidence, and even
asking survivors to retell their stories multiple times. Because the safeguards often cause stress and trauma
for survivors, it is important for advocates to understand the reasons things happen the way they do during
criminal investigations. Having a good perspective on the system as a whole will help the advocate explain why
police do certain things and to provide much-needed emotional support during the investigation. And, just as
important, it also helps the advocate correct errors when things go wrong.
Survivors should be prepared for the general sequence of events during the investigation, including the actions
the police will most likely take. Making a report to police is the first event that sets everything in motion. After
that, police will begin collecting evidence of the crime. That process can include many different things. Some
typical actions include taking the victim’s statement or interviewing the victim, a nurse administering a medical
forensic examination (this can be done without making a report at all if the victim wants) (p. 39, Medical
Forensic Exams), interviewing any possible witnesses to the crime, asking the victim to identify the attacker,
apprehending a suspect, and interrogating the suspect.
Finally, during the investigation, keep in mind that the role of law enforcement is slightly different from the
role of the prosecutor. Unlike prosecutors, police investigators are not responsible for proving that a crime
occurred or that a particular defendant is guilty. Instead, the role of investigators is to determine the truth by
collecting and interpreting all the evidence available, and then passing that information on to prosecutors.
Even if investigators truly believe a survivor, they might not make an arrest if they know there is insufficient
evidence to bring a criminal case in court. Therefore, providing them with as much accurate information as
possible is critical to successful investigations. The more information a survivor can provide police, the better
police will be able to do their jobs, and the better chance there is of ultimately convicting the perpetrator.
This chapter examines the entire process of reporting and investigating a sexual assault. As you read it, keep in
mind the general criminal justice principles laid out here in the introduction. Without that understanding, much
of what occurs within the criminal justice system would seem illogical or counterintuitive. But that is precisely why
legal advocates are so valuable. Equipped with the knowledge in this chapter and the rest of this manual, advocates
can empower sexual assault survivors to manage a chaotic experience. Read this chapter and refer back to it when
preparing survivors for the investigation process and to explain the confusing things that may happen along the way.
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