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EVAWI > Resources > Best Practices > FAQs > Release Waivers
Q Why do police officers sometimes ask victims to sign a release waiver when they say they do not want to participate in the investigation?
Q Are there situations where law enforcement might pursue an investigation or prosecution even when the victim has voluntarily signed such a release waiver?
A Why do police officers sometimes ask victims to sign a release waiver when they say they do not want to participate in the investigation?

There is evidence that many law enforcement professionals prematurely address the issue of prosecution with sexual assault victims, asking them in their initial interview whether they “want to prosecute” the suspect and/or pressuring them into signing a release waiver if they say they do not want to or they are unsure. This practice is patently unfair to victims, because it sidesteps the police department’s responsibility for investigating the report. It certainly “shuts down” any meaningful inquiry into the matter. Many law enforcement agencies would say that they use such a release waiver only as a last resort, when the victim is unable to participate in an investigation and the investigation is suspended. However, it is clear that the purpose is to protect the agency from later claims that they did not pursue an investigation of a sexual assault report when they should have. The forms are often used by campus law enforcement agencies, for example, to protect themselves against potential claims by parents that they are not investigating reports of sexual assault made by students.

It is true that law enforcement agencies should have such a form that the victim can sign, to document the fact that the investigation is being suspended, until or unless additional information requires reopening it. However, best practice is to use such a form ONLY in relatively rare circumstances, where victims ASK to have the investigation of their case suspended – and the law enforcement agency has reason to believe that they might be faced with a claim that they failed to pursue the case for questionable reasons. For example, this might be the case when the suspect is a high profile person (e.g., politician, celebrity, or a member of the agency itself).

Such a form should NOT be used because the officers responding to the sexual assault report simply decide not to conduct an investigation, either because they do not believe the victim or do not think that the case is worth pursuing. In fact, this type of form has no place whatsoever in the preliminary investigation, except in extreme circumstances where victims proactively insist that they will not participate in any law enforcement investigation or possible prosecution.

Here is an excerpt from a poor example of a release wavier, with extreme wording that went well beyond suspending an investigation to actually preventing the victim from making any further inquiries or cooperating with any future investigation and/or prosecution.

“I affirm that I will not pursue this matter further, nor will I initiate any criminal prosecution against any persons involved in or responsible for this offense. I will make no further inquiries as to any subsequent investigation conducted by the [law enforcement agency], nor will I voluntarily appear as a witness in any potential criminal prosecution resulting from this complaint.”

Clearly, this type of form will shut down the investigation of the report and fuel suspicion that it is false. Better language is seen in the Victim Preference Statement that was developed by the Naval Criminal Investigative Service (NCIS). This form offers a tool that can be used to implement best practices.

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.

A Are there situations where law enforcement might pursue an investigation or prosecution even when the victim has voluntarily signed such a release waiver?

While it is theoretically possible, it is difficult to imagine such a scenario – where the victim is unable or unwilling to participate in the process of an investigation or prosecution, and has signed a release waiver documenting this wish – but police or prosecutors pursue the case anyway.  This is because the form is presented to the victim by law enforcement, so it is going to be used in situations where investigators do not plan to pursue the case. If this were to happen, it would probably be because a responding officer presented the victim with the form, but then additional facts came to light (e.g., a series of sexual assaults) or higher-ranking personnel within the agency wanted to see the case pursued.

Police and prosecutors have the clear legal authority to pursue an investigation or prosecution, regardless of whether the victim is participating or has signed such a form, but the reality is that this is unlikely to be successful. For one, it would be difficult to develop sufficient evidence to prosecute the case without the victim’s cooperation. Moreover, if the victim has signed an official form indicating that she/he does not want to pursue prosecution in this case, this will almost certainly be highlighted by the defense as a serious challenge to the credibility of the victim as well as the legitimacy of the charges.

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