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EVAWI > Resources > Best Practices > FAQs > Reluctant Victims
Q Can a victim decide whether a case will be investigated or prosecuted?
Q How should I respond to victims who are reluctant to participate?
Q What percentage of victims withdraw from the criminal justice process, after initially reporting their sexual assault to law enforcement?
A Can a victim decide whether a case will be investigated or prosecuted?

The short answer is no: Decisions about whether to investigate or prosecute a case are made by criminal justice personnel, not victims. As we know from the field of intimate partner violence, cases can be – and often are -- pursued against the wishes of a victim and prosecuted on the basis of the evidence without any testimony by the victim. However, the reality is that sexual assault cases are far more difficult to investigate and prosecute without a participating victim – and victims CAN make their own personal decisions about whether they will participate in the criminal justice process. For example, when victims decide they are not able to participate in the process of an investigation and prosecution, it is unlikely that this process will move forward without them. These challenges are discussed in detail in the article entitled, Best Practice or Buzzword: Sorting out Fact From Fiction in the Community Response to Violence Against Women by Joanne Archambault and Kim Lonsway. It originally appeared in the e-news for Sexual Assault Training & Investigations (SATI) on January 29, 2007.

Typically, a sexual assault case is only likely to be pursued against the wishes of a victim if it is perpetrated in the context of intimate partner violence or if it is a high profile case (e.g., involving a public figure or a series of stranger sexual assaults). Therefore, best practice is to acknowledge this possibility and prepare for it by working proactively with the range of multidisciplinary professionals who are involved in responding to sexual assault. Ideally, this discussion should take place before the issue arises in an actual case, and it should result in a written protocol that documents a good faith agreement that sexual assault cases will generally not be pursued against the wishes of the victim.

Part of the preparation should also be to develop written materials that provide victims with accurate information. For example, a consent form could include language such as the following: “I realize that law enforcement can still conduct an investigation of this report, even if I do not provide my name or participate in the process. However, I understand they generally do not, except in extreme circumstances (for example, in cases with a serial stranger rapist, when the sexual assault is committed by an intimate partner, or when the victim is severely injured).”

These issues are discussed in detail in an article published in the Journal of Forensic Nursing, by Dr. Kim Lonsway and Joanne Archambault. Information on how to obtain a copy of the article is available under the Articles tab in the Forensic Compliance Resources section of the EVAWI website.

Sample language addressing this issue is also included in the template materials for Anonymous Reporting within the Forensic Compliance Resources section of the EVAWI website. In particular, please see the information on Options for Victims (informational materials and documentation form).

These issues are also addressed in detail in the OnLine Training Institute module entitled, The Earthquake in Sexual Assault Response: Implementing VAWA Forensic Compliance.

A How should I respond to victims who are reluctant to participate?

One of the most common mistakes that law enforcement investigators make is to prematurely ask sexual assault victims whether they want to participate in a criminal prosecution (i.e., do they want to “press charges”). However, the time for this question is NOT during the law enforcement interview, but rather at THE END of a thorough, evidence-based investigation – at which point the investigator knows what evidence is available and can make a determination regarding whether or not the case will be forwarded for prosecution.

Of course, even if the investigator does not ask the victim about criminal prosecution, it is likely to be one of the victim’s primary concerns. Therefore, investigators will often have to address the victim’s concerns about criminal prosecution and their initial reluctance to participate in the investigation. For example, many victims are concerned that talking with law enforcement means they will be responsible for the suspect being arrested and incarcerated. When victims are uncertain about their participation, investigators can respond by explaining the importance of a thorough investigation and highlighting the fact that evidence must be identified and collected as quickly as possible. Again, this does not necessarily mean that the case will be prosecuted, but it leaves the door open at least for now.

  • When addressing issues of prosecution, investigators must also be honest with victims, and not promise anything they cannot deliver. For example, investigators should never promise victims that the suspect will be arrested, prosecuted, and convicted. Investigators cannot know that with 100% certainty.
  • Investigators also must not tell victims that they need to cooperate in order to prevent the suspect from sexually assaulting anyone else. This puts an inappropriate burden upon the victim for behavior that is clearly the suspect’s responsibility.

The bottom line is that victims should never be pressured into cooperating with the investigation and prosecution of their sexual assault. The decision regarding whether or how much to participate is the victim’s, and the reasons for this decision must be respected. As Mills (1989) wrote in the Police Chief:

The victim, of course, is the main concern and the investigator should not try to cajole her into pursuing legal action against the identified offender. Arrest and prosecution are major goals during rape investigation, but pursuing these goals should not take precedence over the psychological welfare of victims (Mills, 1989, p. 119).

This response is an adapted excerpt from the OnLine Training Institute (OLTI) module entitled, Interviewing the Victim: Techniques Based on the Realistic Dynamics of Sexual Assault.

Mills, J.K. (1989). The initial interview of sexual assault victims: A humanistic approach to investigation. Police Chief, 56 (4), p.119-122.

A What percentage of victims withdraw from the criminal justice process, after initially reporting their sexual assault to law enforcement?

As many as one-third to one-half of all sexual assault victims withdraw their participation from the law enforcement investigation at some point after initially reporting – and this is especially likely when the victim and offender know each other (Frazier et al., 1994; Spohn, Rodriguez & Koss, 2008); Tellis & Spohn, 2008). There are many reasons for this, but it is clear that a sexual assault case is extremely unlikely to be prosecuted without a participating victim. In other words, there are a number of critical fears, doubts, and other concerns that prevent victims from reporting their sexual assault to law enforcement – and many of these same factors get in the way of victims remaining engaged with the criminal justice process. They also deter many victims from reaching out for help by accessing other community services (Campbell, 2008).

Campbell, R. (2008). The psychological impact of rape victims’ experiences with the legal, medical and mental health systems. American Psychologist, 63 (8), 702-717.

Frazier, P., Candell, S., Arikian, N., & Tofteland, A. (1994). Rape survivors and the legal system. In M. Costanzo and S. Oskamp (Eds.), Violence and the Law (Chapter 6, pp. 135-158). Newbury Park, CA: Sage.

Spohn, C., Rodriguez, N., & Koss, M. (2008, November). The “victim declined to prosecute”: Accounting for lack of cooperation in sexual assault cases. Paper presented at the annual meeting of the American Society of Criminology, St. Louis, MO.

Tellis, K. M., & Spohn, C. (2008). The sexual stratification hypothesis revisited: Testing assumptions about simple versus aggravate rape. Journal of Criminal Justice, 36, 252-261.

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