Happy New Year to all!
At the beginning of each new year, I like to take time to think about what we can be doing to bring about more justice to those who have suffered from the ravages of sexual abuse. However, thinking alone is not enough. If our our thoughts don't move us to action, we really haven't helped and justice remains elusive for so many. Attorney and victim advocate, Neil Jaffee, is someone who has spent his life moving thoughts into actions. Actions that have made a real difference in the life of so many abuse survivors. In this fantastic guest post, Neil describes and advocates for a a set of specialized practices that will revolutionize our approach to the handling of child sexual abuse cases in the criminal justice system. As a former child sexual abuse prosecutor, I can tell you that these proposed practices have a real possibility of delivering genuine justice and real hope to those who deserve it most. My prayer is this post will challenge each of us to help Neil in move these thoughts into action across the country. - Boz
Cases involving adult survivors of childhood sexual abuse are unique at their core because they involve survivors who were victimized as children but enter the legal system as adults. This fundamental aspect of adult survivor cases drives the need for specialized protocols and policies to address the particular dynamics of these cases.
The legal system must apply a specialized, trauma-informed approach to the investigation, prosecution, and disposition of adult survivor cases.
1. Trauma-informed systemic practices are essential
Childhood sexual abuse is recognized as a form of complex psychological trauma in that it typically involves repetitive, ongoing abuse, a fundamental betrayal of trust in a primary relationship, perpetrated by someone known by or related to the victim. The timing of the abuse events during a critical period of development during childhood has adverse long-term psychological and behavioral effects on the victims. Due to developmental impairments in cognitive functioning and language production related to the occurrence of the abuse events during childhood, some adult survivors may not be able initially to remember clearly and recount to investigators the details of the abuse events and recovered memories are often fragmented, incomplete, and nonspecific. The legal process itself can be re-traumatizing for survivors. Accordingly, the development of a trauma-informed approach is essential to support survivors in filing their legal claims, preparing them for the challenges posed by the justice system, and presenting their cases effectively in court.
- Specialized Practice: Forensic interviewers of adult survivors need to be trained in the neurobiology of traumatic memory. First responders and all subsequent interviewers of adult survivors should understand that suffering sexual abuse at an early developmental stage affects a survivor’s memory and ability to translate childhood memories into adult language that is coherent, complete, and chronological. Prosecutors should develop the skills to place recovered abuse memories in their proper context so as to explain delays, omissions, and/or inconsistencies in a survivor’s statements. Experts are often necessary to educate jurors (and judges) as to the correlation between childhood sexual abuse and traumatic amnesia. There must be a victim-centered approach at all stages that proceeds from the presumption that the survivor is credible unless the evidence proves otherwise.
2. Adult survivor “cold cases” require particularized investigations
In contrast to acute child sex abuse cases and adult sexual assault cases, adult survivor cases involve events that occurred years or even decades before the crimes were reported to authorities. Therefore, the investigation of these “cold cases” often depends on the ability to reconstruct past events accurately.
- Specialized Practice: A thorough investigation into the facts and circumstances surrounding the abuse events should be conducted by police investigators and prosecutors who have received special training on the legal, psychosocial, and scientific aspects of investigating and litigating adult survivor cases. Contrary to the oft-heard defense contention that adult survivor prosecutions are typically “s/he said, s/he said” cases, there is always some evidence to corroborate a survivor’s report of abuse. That evidence may consist of documents or other tangible evidence that establish a connection between the survivor and the perpetrator, evidence of the perpetrator’s grooming behavior, witness accounts of interactions between the survivor and the abuser, or evidence that the perpetrator also abused other children.
3. Discretion must be exercised properly when reviewing a case
The exercise of broad discretion by police and prosecutors plays a significant role in determining whether an adult survivor’s case moves through the various stages of the justice system or is derailed during the case screening process. The law enforcement decision to make an arrest and refer a survivor case for prosecution is almost entirely subject to the discretion of the assigned officers and detectives. Among the factors prosecutors consider in their screening decisions, the probability of conviction is typically the determinative factor.
- Specialized Practice: All cases in which probable cause exists for arrest should be referred for prosecution and prosecutors should file charges where the evidence is legally sufficient to support a conviction. In other words, all cases that are legally supportable should be referred for prosecution and prosecuted to the full extent of the law. While survivor cases typically present investigative and evidentiary challenges that do not exist in other sexual assault cases, properly trained investigators and prosecutors will recognize that the particular types of evidence in survivor cases can constitute strong corroboration of the survivor’s testimony. Police and prosecution supervisors should routinely evaluate investigations, referral/no-referral decisions, and charging/no charging decisions to ensure that they are being conducted fairly, professionally, and with an eye toward achieving justice for adult survivors who seek to hold their perpetrators accountable under the law.
4. The accessibility of reliable data and comprehensive assessments of police and prosecution performance
By all accounts, ineffective and unresponsive police and prosecution practices contribute to an unacceptable level of survivor case attrition. Official data on rates of arrest, prosecution, and conviction in survivor cases does not appear to exist or, if such information is in the possession of law enforcement agencies or prosecutor offices, it is not accessible to the public. Nor is information available to establish that police are conducting thorough investigations and prosecutors are striving to build strong cases against perpetrators.
- Specialized Practice: Police departments and prosecutors’ officers should be required to compile and maintain public-accessible data on rates of arrests, referrals, prosecutions, and convictions in adult survivor cases. In addition, law enforcement and prosecution agencies should issue periodic public reports identifying specific performance measures in survivor cases and the internal practices and procedures employed consistent with such measures.
Implementing the specialized practices discussed here will reflect an enlightened systemic understanding of the important ways in which adult survivors differ from other sexual assault victims and will incentivize survivors to break their silence and hold their perpetrators accountable under the law. In turn, transforming the legal process into one that gives victims the voice to which they are entitled and that no longer favors abusers over those abused will result in better case outcomes, thereby protecting children by taking more child predators off the street and by deterring other potential perpetrators from committing such crimes. Then, and only then, will justice for adult survivors be achieved, finally.
Neil Jaffee is legal counsel for a foundation that advocates on behalf of the legal rights of adult survivors of child sex abuse and lobbies for legal reforms that support survivors who seek to hold their perpetrators accountable in the justice system. He is a member of the National Crime Victim Bar Association and the National Alliance of Victims' Rights Attorneys.