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Kristina Marie Korobov, JD National District Attorneys Association National Center for the Prosecution of Violence Against Women

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Kristina Marie Korobov, JD National District Attorneys Association National Center for the Prosecution of Violence Against Women. Oooh , ahhh . . . The consent defense (How Novel). My First Question.

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slide1
Kristina Marie Korobov, JD

National District Attorneys Association

National Center for the Prosecution of Violence Against Women

Oooh, ahhh . . .

The consent defense

(How Novel)

my first question
My First Question
  • What’s the first thing that comes to mind when you hear a woman say that she has been raped?
i didn t believe her because women make this stuff up
I Didn’t Believe Her Because . . . Women Make This Stuff Up
  • “The realistic and evidence-based estimate of 2-8% thus suggests that the American public dramatically overestimates the percentage of sexual assault reports that are false.”
      • Lonsway and Lisak (2009), p. 3.
i didn t believe her because
I Didn’t Believe Her Because . .
  • She’s Had Sex with Him Before
    • Charitable Donation
i didn t believe her because1
I Didn’t Believe Her Because . . .
  • She Wasn’t Injured
    • Are armed robbery victims injured?
      • People walk away from car accidents?
      • Why not rape victims?
        • How hard should she have to fight?
i didn t believe her because2
I Didn’t Believe Her Because . . .
  • She Can’t Keep Her Story Straight
    • Childbirth analogy
    • Car Accident / Haunted House:
    • Trauma = inconsistency but ≠ deception
i don t believe her because
I Don’t Believe Her Because . . .
  • She Didn’t Tell Right Away
    • Delayed Disclosure = victim kept a secret
    • Almost every adult has kept very serious secret at some point
do not sexualize rape
Do Not Sexualize Rape
  • Watch the language!
    • Victim account vs. the victim’s story
    • He put his penis in her vagina vs. he had sex with her
    • He ordered her to take off her clothes vs. she removed her clothing
case building
Case Building

I want your jury to see the case like a 5 year old

strategies case assessment case building
Strategies:Case Assessment / Case Building
  • What evidence corroborates things your victim says?
    • The Devil is in the details!
      • Pre- and post-attack occurrences
    • Phone records and text messages
      • Not only for their content but for the time
    • Physical evidence of assault
      • Whatever shows the struggle
investigator response put blame on offender
Investigator Response:Put Blame on Offender
  • “Rapport building:”
    • NEVER call victim names
    • NEVER minimize victim
    • Do not say things about victim that will give jury excuse to not deliver justice!
variations on consent defenses
Variations on Consent Defenses
  • Hell Hath No Fury . . .
  • Blame it on the Alcohol
  • Just a He Said, She Said
  • 3 Guys in 3 Days
preparation
Preparation
  • Analyze the case:
    • Defendant’s statements
    • Defense attorney motions
    • Suspect/victim family dynamics
  • Look for weaknesses in your case:
    • Victim’s statement
    • Recantation
the defense case
The Defense Case
  • Consent defenses
    • Do DNA testing & present evidence in court
      • JURY APPEAL
      • May answer specific questions about what type of acts occurred
      • Force the defendant to testify and submit to cross-examination
defenses adult sex crimes hell hath no fury
Defenses: Adult Sex CrimesHell Hath No Fury
  • She is making it up because
    • She’s mad
    • She got caught “cheating”
    • She feels rejected
    • She feels stupid
defenses adult sex crimes hell hath no fury1
Defenses: Adult Sex CrimesHell Hath No Fury
  • Here’s the catch: Most of the time, it is only the victim’s disclosure that reveals the sexual contact
defenses adult sex crimes countering hell hath no fury
Defenses: Adult Sex CrimesCountering Hell Hath No Fury
  • Investigators:
    • Who else knew about sexual contact
    • Was victim in trouble?
    • If she did break a rule, was she in trouble when she told, or is it her own disclosure that got her into trouble?
defenses adult sex crimes countering hell hath no fury1
Defenses: Adult Sex CrimesCountering Hell Hath No Fury
  • Investigators:
    • Who did victim tell first?
    • If she’s just trying to get out of trouble, why blame a friend?
      • Why not claim “assault by mysterious stranger?”
    • Had defendant actually rejected her?
defenses adult sex crimes blame it on the alcohol
Defenses: Adult Sex CrimesBlame it on the Alcohol
  • She was drinking so:
    • Can’t trust what she says
    • She really wanted sex
    • This isn’t rape, it’s regret
    • She is too drunk to be reliable or worth your time . . . But she was not so drunk that I couldn’t have sex with her consensually and of her own free will.
defenses adult sex crimes countering alcohol
Try to determine intoxication:

What was victim drinking?

Over what period of time?

Any food?

Types of alcohol?

What signs of intoxication did victim exhibit?

How would defendant have known not to engage in sexual touching?

Defenses: Adult Sex CrimesCountering Alcohol
defenses adult sex crimes countering alcohol1
Find witnesses

Look to social networking, testing – anything to establish victim and offender state of mind

Talk to bartenders, cab drivers

Find surveillance footage

TREAT THIS LIKE A STRANGER RAPE OF YOUR GRANDMA!

Defenses: Adult Sex CrimesCountering Alcohol
defenses adult sex crimes just a he said she said
Defenses: Adult Sex CrimesJust a “He Said, She Said”
  • Since no one else saw sexual contact, you can’t convict! That’s reasonable doubt!
    • Law doesn’t require any corroboration.
    • No law.
    • Anywhere in the country.
defenses adult sex crimes countering he said she said
Defenses: Adult Sex CrimesCountering “He Said, She Said”
  • Someone saw something
    • Look to pre and post-offense witnesses
  • Is there a motive to lie?
    • “Girls lie about this” isn’t a motive
    • When investigating, always remember “it’s always consent . . . The first time”
defenses adult sex crimes countering he said she said1
Defenses: Adult Sex CrimesCountering “He Said, She Said”
  • Advocates:
    • Preparing these witnesses for court is key.
    • They need to know when
      • To admit error
      • To stand their ground
      • To say “I don’t know” or “I don’t remember”
defenses adult sex crimes countering he said she said2
Defenses: Adult Sex CrimesCountering “He Said, She Said”
  • Advocates:
    • Surround these victims with support
      • Facebook is not the place to discuss your case
      • People who you think are your friends will testify for the defendant
    • Find a confidential therapist
      • Have a list of people who are legally required to keep the victim’s confidences
defenses adult sex crimes 3 guys in 3 days
Defenses: Adult Sex Crimes3 Guys in 3 Days
  • If victim does have injuries, the defendant will have to explain them
    • Rough Sex / Big Penis Defense
    • She “gets around,” so I don’t know who could have caused injuries!
defenses adult sex crimes 3 guys in 3 days1
Defenses: Adult Sex Crimes3 Guys in 3 Days
  • “Big Penis” Defense:
    • Childbirth
  • Rough Sex:
    • If this is normal and usual, why tell police?
    • If this is normal and agreed upon, then body will lubricate
defenses adult sex crimes 3 guys in 3 days2
Defenses: Adult Sex Crimes3 Guys in 3 Days
  • “She gets around” defense
    • Rape Shield
    • Encourage victim candor with investigators and prosecutors!
  • The Jersey Shore Defense to Consent:
    • If hooking up is no big deal, why make a false report?
victim interviewing as a strategy
Victim Interviewing as a Strategy
  • Conduct investigation in an atmosphere that encourages victim to be candid and in which he / she feels non-judgmental support
  • Specifically encourages admissions about embarrassing or even illegal behavior
  • Watching facial expressions / note-taking behaviors
  • Make the interview location conducive to self-disclosure
victim interviewing as a strategy1
Victim Interviewing as a Strategy
  • When an omission, inconsistency, or untrue statement is suspected, the investigator / prosecutor can point out the issue and ask for clarification.
    • Victim may have made a mistake or misunderstood a question
    • Listener may have misheard or misunderstood the response.

Lonsway and Lisak (2009), p. 6

victim interviewing as a strategy2
Victim Interviewing as a Strategy
  • Allow the victim / witnesses to tell their story in the narrative first, uninterrupted.
    • Then go back and ask specific questions
    • Watch the victim and listen for areas of hesitance, embarrassment, or withholding that might merit gentle but deeper exploration.

Lonsway and Lisak (2009), p. 6

victim interviewing as a strategy3
Victim Interviewing as a Strategy

4. Encourage the presence of a victim advocate (not a witness), so that the victim feels more comfortable asking for a break, food, sleep, clarification, an interpreter, etc.

victim interviewing as a strategy4
Victim Interviewing as a Strategy

5. Reduce unnecessary professional contacts

  • Use a SART and a single investigator to reduce the number of times that a victim is required to give her account of events.
  • The purpose of follow-up questioning should be to gain additional information or to clarify a point, rather than to “see if she can give the same story again.”

Lonsway and Lisak (2009), p. 6

document the suspect s version of events
Document the Suspect’s Version of Events
  • Sex acts
    • What does the suspect admit about the acts alleged by victim?
    • What if anything did victim say or do during acts?
    • Where they occurred?
    • Recorded?
    • Condom used?
    • Same sheets still on bed?
    • Anyone else present?
document the suspect s version of events1
Why does accused think the encounter was consensual (if he does)?

Subsequent contact with victim?

Document the Suspect’s Version of Events
  • Intoxication:
    • Did accused know victim was drunk?
    • How much did she drink?
    • What signs of intoxication did she exhibit?
    • Who purchased alcohol?
    • Who provided the alcohol?
    • Did victim drive?
suspect s version
Suspect’s Version

Investigate It!

If suspect provides a motive to fabricate , investigate that!

Also investigate suspect’s alibi

  • Interview witnesses before defense attorney does
  • If defendant gives an alibi, attempt to verify ASAP
    • Include electronic ones
the defense case1
The Defense Case
  • Defense witnesses
    • Often exist to prove the victim’s craziness
      • Show’ motive to fabricate
    • May be testifying that victim was “all over” the defendant
      • What they observed, motive to fabricate, loyalty to defendant
      • Don’t allow them to provide conclusions – must specifically describe behaviors
        • “You could tell she was into him. She wanted it”
          • “What things specifically made you think that?”
the defense case2
The Defense Case
  • Consent defenses
    • If the defense is claiming consent, then
      • The victim must be lying – what’s the motive to lie?
      • The victim must have really planned this – how was she so scheming and yet still left out details?
      • He must have thought she wanted it – then he needs to explain the post-assault behaviors
the defense case3
The Defense Case
  • Demonstrate
    • Absence of victim motive to lie
    • Good relationship with her
      • Resumed relationship!
    • He wasn’t breaking up with her – no jilted girlfriend
    • That he is manipulative / deceptive
    • That he may have originally lied during the investigation
    • That he may have changed his story to fit the evidence
questions for victims
Questions for Victims

Is there anything, no matter how crazy it seems, that the Defendant would tell his attorney about you?

Have you ever previously alleged that someone raped you?

If the Defendant was going to tell his attorney something about why you made this up, what would he say?

questions for victims1
Has the Defendant ever been violent with you in past?

If defense attorney asked you why you didn’t fight, what would you say?

What did you think would happen if you physically fought?

Why did you think that?

Is there anything about Defendant that has made you afraid of him, at anytime that you knew him?

Has Defendant spoken to you about talking to police?

What has he said?

Questions for Victims
contact information
Contact Information

This project is supported by Grant No. 2004-WT-AX-K047 awarded by the Office on Violence Against Women, U.S. Department of Justice. The opinions, findings, conclusions, and recommendations expressed in this publication are those of the authors and do not necessarily reflect the views of the DOJ, OVW or NDAA.

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