By Catherine Johnson
Law enforcement’s main goal in a sexual assault investigation is to gather the facts surrounding the allegation with the purpose of meeting the elements of the crime as written in the state or federal statute. Law enforcement officers understand this has to be done for the prosecuting attorney to be able to move forward with the case. A very large piece of this process involves interviews with the victim(s), witnesses and any potential suspect(s).
During the interviews, law enforcement must ask the victims difficult questions to determine the lack of consent, location and type of evidence available, potential witnesses and possibly additional crime scenes. When force is not present, it is common for law enforcement to ask all those interviewed, “Did the victim say no?” or “Did the victim say stop?” This is not intended to place blame or responsibility on the victim but has simply long been taught as a clear and easy way to establish the victim’s lack of consent.
The information obtained from these questions along with physical evidence (or lack thereof) is used by prosecuting attorneys to make decisions on whether or not to pursue the case in criminal court. Since most individuals do not communicate in clear yes/no language, asking yes/no questions can hinder the direction of the investigation and possibly even the prosecution.
The Nature of Soft Rejections: Gender Socialization & Communication
To better understand why yes/no questions can set up a criminal assault case for failure, it’s prudent to first discuss gender socialization, communication and cultural norms. Consider how children are taught to interact within our society.
Historically there have been very clearly defined roles identified as “male” and “female.” Although society is evolving and gender roles are becoming less defined, it is happening slowly.
Traditional societal norms encourage girls to be “soft and sensitive,” and boys are encouraged to be “rough and tough” and not to be a “sissy.” As children grow and mature into adulthood these differences grow as well, albeit in subtle ways. Young men are taught it is not only okay but encouraged to be aggressive in their behavior, take charge, be in control and to not take no for an answer.
All of these behavioral norms and expectations translate into how individuals communicate. As the differences in how men and women are taught to communicate become grayer, it is more common for women to be less direct.
The different ways children are raised are pertinent to the issue of consent and how a lack of consent may be communicated. A person’s culture, geographic location and family dynamic influence how they respond and communicate to others.
Think about how children are taught to decline an invitation. Typically, children, especially girls, are trained to issue soft rejection. A soft rejection can be defined as declining in a manner that will not offend or hurt someone’s feelings. As a result of cultural norms, these rejections are often accompanied by an explanation or other justification rather than a clear yes or no. This method continues into adulthood.
For example, if Bob invites Susie out to dinner, but Susie does not want to go because she does not like Bob, she will often issue a soft rejection followed by an explanation or justification.“ I would love to, but I have to take my car to the shop.” Even though Susie did not say “no” it should be clear that she was not accepting the dinner invitation. Declining an invitation to dinner is not the same as declining a sexual advance, but the communication habits are often reflected in the same manner.
Unwanted sexual advances/contact creates a stressful situation. As a result, a victim may revert to their prior habits, training and experiences and issue a soft rejection versus a direct command. Therefore, asking a victim if they said, “No” or “stop” can set a victim up for failure and be very harmful to an investigation.
When the victim hears the question “Did you say no or stop?” and did not use those exact words, they may answer in the negative to avoid lying even though they may have communicated a lack of consent by words or actions. Or, if a victim fears their case will not be taken seriously if they admit to not using the exact words “No” or “Stop” they may lie and say they did. The suspect and witnesses may contradict the victim’s statement, which creates a challenge for the prosecution.
Finally, if a victim did not use the words “No” or “Stop,” but communicated their lack of consent with other words or actions, they may determine they were not actually victimized because they did not use those exact words. As a result, they may withdraw from the investigation and an offender will not be held accountable.
How to Determine Lack of Consent in 7 Steps
Even though we have a better understanding of how individuals communicate it does not take away the need to determine a lack of consent when force or age are not factors. So, how do we obtain the necessary information without asking the questions “Did you say no?” or “Did you say stop?”
Consider the neurobiological effects of trauma to memory and recall. How long has it been since the assault occurred? When did the victim last eat, drink, shower, sleep, etc.? Is there a victim advocate present? If not, can you get one? Where is the interview being conducted? Is it in a private place where the victim feels safe and able to provide a full, detailed account of their experience? Is the victim experiencing symptoms of shock or the effects of substance withdrawal? Does the victim trust the interviewer and feel supported?
2. Consider the totality of the circumstances.
Is there a size and strength differential between the victim and suspect? If there is a substantial size difference between the victim and suspect, force may not have been necessary. This information can be documented in the biographical section of the report and emphasized in the narrative.
Is there a power differential between the victim and suspect? For example, is the suspect the victim’s supervisor, commanding officer (in cases of military and para-military organizations), teacher, doctor, probation/parole officer, person of power in the community, etc.?
A power differential may be more intimidating than size. Any possible power differentials should be documented in the report as well. Was the victim experiencing fear? What did the victim think would happen if they refused the sex act? Were threats made to the victim or their family? Was there a weapon or knowledge of a weapon present? A gun does not have to be pointed at a person to put them in fear. If a person is afraid, they cannot consent to sex. Has the victim disclosed a history of sexual trauma which may have influenced their response?
3. Was the victim impaired and incapable of consent?
Most, if not all, state statutes have wording that addresses a person’s impairment and inability to give consent. An investigator needs to know the wording in their specific state statute when faced with a question of impairment.
The question of impairment can be answered by asking the victim questions about alcohol and drug consumption in non-threatening, non-victim blaming ways, see “Suggested Questions for Drug/Alcohol Facilitated Sexual Assault.”
In addition to asking the victim, an investigator should ask witnesses about the victim and suspect’s alcohol and drug consumption as well as behaviors that could indicate impairment. Investigators should document descriptive accounts of victim and suspect behavior as provided by witnesses.
Because people’s interpretations of intoxication can be different, additional questions should be asked if a witness says, “They were drunk.” Ask specifically what the person was doing that made them think they were drunk. Suggested questions include asking who drove the car, called for a cab (or ordered Uber/Lyft) and who opened the door. What did the victim and suspect sound like when they spoke? Were their words clear or were they slurring their words?
Ask witnesses to describe behaviors and provide examples of things that were said. For example, if a witness describes the victim as “falling down and unable to control their movements” but the suspect’s behavior as being “in control,” a clear depiction is created of the victim’s inability to give consent as well as the suspect’s knowledge of the victim’s impairment and knowledge of their inability to consent.
Investigators should ask the suspect the same questions. The suspect’s observations and statements can be as important (and often more important) than those made by the victim and witnesses. Ask the suspect about their level of consumption and impairment as well as what they know about the victim’s consumption and behaviors. For example, if a suspect describes the victim as having an altered level of consciousness or vomiting, it can demonstrate a victim’s lack of ability to give consent and their knowledge of this incapacitation. Were the victim’s eyes open or closed during the initiation of sexual contact? What did the victim say or do in response to the sexual contact?
4. Was the victim physically and mentally able to consent?
Consider the facts and statements provided by the victim, witnesses, and suspect to establish if the victim was mentally disabled or mentally incapacitated and incapable of giving consent. Determine if other circumstances are present that would influence a person’s ability to communicate consent or lack of consent. All of these things must be considered before asking the victim any questions regarding consent.
5. Ask the victim to use their senses.
Investigators should ask questions such as, “What did you say when ___?” Follow-up with questions such as: “What was going through your mind when ___?” “What did you feel when you were directed to the bedroom.” “How did you respond when __?” “What did you see/hear/smell when ___?”
These questions will cause the victim to access their emotions and recall their specific actions and thoughts during the crime. As a result, investigators will obtain a clear explanation of how the victim communicated a lack of consent.
For example, if a person were to watch the rape scene from the film “The Accused,” there will be no doubt that what they are watching was a criminal act. When asked if the victim in the film said “No” or “Stop,” viewers will often answer in the affirmative even though those words are not actually used during the assault or the minutes leading up to it. The victim tells the offender she is too drunk, has to go, has to work the next day. She puts her hands up in a defensive manner and attempts to pull away. Even though she does not use the words “No” or “Stop,” the victim clearly communicates a lack of consent through other words and actions which the viewers of the film translate into the words “No” or “Stop.” Suspects in sexual assaults also recognize these actions and words as lack of consent; they simply choose to ignore it.
6. How did the suspect respond?
Ask victim questions regarding the suspect’s response to their words/actions. For example, “What did ___ do when you pushed their hand away?”
This will reaffirm the victim’s attempt to communicate a lack of consent, as well as establish that the suspect should have understood the victim’s actions and communication. The answers may also help establish whether the suspect turned a blind eye to the victim’s attempt to communicate non-consent or the victim’s inability to consent.
7. Establish the suspect should have understood the victim’s communication.
Questions similar to those listed above must be asked of witnesses and the suspect. Do not ask the witnesses or suspect if the victim said “No” or “Stop” but, again, ask what the victim said or did in response to the suspect’s actions. When talking to the suspect ask them what they did in response to the victim’s statements or actions. For example, if the suspect says the victim pushed their hand away ask what they did in response to that action.
The suspect’s response may provide information to support a clear understanding of the victim’s denial and/or lack of consent. If the suspect is arguing consent, ask what the victim said or did to make them believe they wanted to have sex. The suspect’s answers will often communicate the victim’s lack of consent as well as their own understanding.
By asking the right questions of victims, witnesses and suspects an investigator can establish an understanding of the events that took place as well as the victim’s lack of consent and the suspect’s understanding of that lack of consent. This can result in better support of victims and more offenders being held accountable.
About the Author
Catherine Johnson is a former detective and subject matter expert with experience in developing and implementing training on violence against women for law enforcement, military, and other multi-disciplinary partners both locally and internationally. She also serves as Secretary on the Board of Directors for End Violence Against Women International. For more information and resources, visit the EVAWI resource library.