Prosecution

Although adult and juvenile arrests for sex offenses represent only a small fraction of arrests for all types of crimes (FBI, 2006; Snyder & Sickmund, 2006), the absolute numbers are nonetheless considerable and require a significant investment of time and resources within the courts. The weight of managing these cases rests heavily on prosecutors, who bear the primary responsibility for making decisions about the charges or petitions to be filed, representing the state’s interests if these cases proceed to trial, participating in plea negotiations, and offering disposition recommendations to the courts.

Pre–Trial Management

After charges are filed, decisions must be made about whether to detain defendants or release them to the community pending resolution of the case. The court must take into account a number of factors, including the nature and severity of the cases, history of violence or aggression, risk to abscond, and the threat of harm to self or others. Critically important to review are victim safety concerns, particularly when allegations involve stalking, domestic violence, or child victims within the home. Additional considerations might include current employment, the presence of appropriate community supports, and the potential hardship (e.g., financial) that the defendant’s removal from the community may have on dependents. If a defendant who was initially detained is later deemed to be suitable for release, appropriate bail schedules (commensurate with the level of risk posed by the defendant) should be in place. No contact orders and other restrictions may then be necessary to protect alleged victims from pressure, intimidation, or harm, while assuring that due process safeguards are maintained for the defendant.

Similar factors warrant consideration during initial appearances/detention hearings with juveniles alleged to have committed sex offenses (e.g., seriousness of allegations, prior delinquency, suicide risk, history of running away). Several family and home variables must be assessed at this point as well, including the ability and willingness of parents or guardians to provide sufficient structure and supervision and the presence of parental risk factors such as substance abuse or current legal involvement. When allegations involve a child victim within the home, the juvenile and family courts must determine whether adequate safeguards can be established to ensure the ongoing safety of the child and other potentially vulnerable individuals within the home, or whether more appropriate alternative placements (e.g., extended family, foster care) are available. Sometimes, a significant period of time has elapsed between the time that the offenses were alleged to have occurred and the juvenile’s ultimate appearance in court (either because of delayed disclosure or prolonged investigation). Under these circumstances, and if the juvenile remained in the community during that period, the court may take into account the juvenile’s adjustment in school, at home, and in the community when deciding whether to release or detain the juvenile.

Prosecutorial Practices

To facilitate the consistent and effective handling of cases involving sex crimes, the philosophies and policies established within prosecutors’ offices must be transparent; expectations of chief prosecutors and juvenile court officials should be clearly conveyed to their staff, including preferred approaches to managing caseloads, charging, and negotiating. For example, an ideal approach to caseload management is vertical prosecution, whereby a single prosecu–tor follows the case from the point of charging, through witness preparation, pre–trial motions, trial, and disposition. Vertical prosecution for sex offense cases has multiple benefits, including the following (APRI, 2003; Holmgren, 1999):

Another important prosecutorial practice that is ideal for sex offense cases is the assurance that the charges filed accurately reflect the nature and seriousness of the allegations (Holmgren, 1999; NAPN, 1993; Schafran, Bayliff, & Baldini, 2001b; Simon, 2003; Strate, Jones, Pullen, & English, 1996). Beyond sending a clear message to the public that sex offenses are taken seriously, this charging practice can provide validation to victims, prevent minimization of the severity and impact of the crimes, and ultimately promote greater accountability for the individuals who have committed these offenses.

Creating specialized sex crimes units within prosecutors’ offices can be an effective and efficient approach to ensuring that these and other philosophies and practices are implemented consistently (see, e.g., English et al., 1996; NAPN, 1993). By providing specialized training to a limited number of prosecutors, internal expertise and greater capacity can be developed and staff can be deployed more rationally. However, when staff resources are limited, establishing dedicated sex crimes units may not be a viable option. As an alternative, individual prosecutors can be trained as specialists. At a minimum, all prosecutors who will be responsible for sex crimes should receive specialized training about these cases (Holmgren, 1999; NAPN, 1993).

Special Considerations with Juvenile Defendants

At a minimum, all prosecutors who will be responsible for sex crimes should receive specialized training about these cases.

As is the case with adults who have committed sex offenses, experts suggest that some form of legal intervention can facilitate the effective management of sexually abusive youth, by providing necessary leverage to support compliance with treatment and supervision expectations (ATSA, 2000; NAPN, 1993). However, when juveniles are the defendants, the court officials responsible for prosecuting these cases must be particularly mindful of age, maturity, cognitive functioning, and other developmental factors that may impact mens rea (criminal intent) or competency issues. In those instances, deferred prosecution, informal adjustments, and juvenile court diversion may be appropriate options, particularly when expectations for treatment services are included as part of the disposition. Conversely, in some exceptional cases—such as when the offenses are particularly violent or serious, or when the juvenile has not responded to multiple previous interventions—the youth may be deemed to be beyond the scope of the juvenile justice system. This may result in transfer/waiver to the adult courts for prosecution.

At all times, it is important for prosecutors and other juvenile court officials to keep in mind that juvenile sex offenders are not identical to their adult counterparts and, as such, the ways in which they are approached in the courts should be not be identical (see, e.g., Becker & Hicks, 2003; Letourneau, 2006; Letourneau & Miner, 2005; Zimring, 2004). Indeed, applying the same legal strategies to youth that were designed for adults may result in unintended negative consequences and could lead to undesirable outcomes (Becker & Hicks, 2003; Letourneau, 2006; Letourneau & Miner, 2005; Zimring, 2004). Thorough investigations and relevant forensic evaluations can assist prosecutors with making informed decisions about how best to proceed.

Victim–Centeredness

The progression of a case through the prosecution phase can be a particularly difficult time for many individuals who have been victimized sexually. As such, both system and non–system based victim advocates should be available to provide education, support, and assistance to victims and their families (see, e.g., CSOM, 2000, 2006; D’Amora & Burns–Smith, 1999; English et al., 1996; OVC, 2000). Among the services provided by victim advocates at this juncture include the following:

Victims must always be allowed to determine their own level of participation in the various proceedings within the criminal justice system. For some victims, involvement may be therapeutic and facilitate recovery, while for others, participation in the criminal justice process is not desired and may exacerbate the trauma already experienced. As such, it is incumbent upon those in the legal system to ensure that the desires and needs of victims are respected at all phases of the process. In many jurisdictions, specific provisions of victims’ rights laws address these very issues.

Testifying in court can have a significant impact on victims for a host of reasons (English et al., 1996; Myers et al., 2002; Schafran, Baldini, & Bayliff, 2001a; Schafran et al., 2001b). Facing the defendant in court can be extremely difficult and intimidating for some victims, and recounting the victimization experience may be especially difficult for victims and their families. Moreover, the victim’s reliability or credibility may be called into question, placing them in a defensive and uncomfortable position. When child victims are required to testify, these and other issues become even more pronounced. Therefore, defense attorneys, prosecutors, and judges must be sensitive to the age, maturity, development, and emotional adjustment of children so that they are better able to frame questions in an understandable and non–threatening manner, and so that they can communicate to children the importance of truthful responses.

Taken together, these concerns highlight the unfortunate reality that victims can be further traumatized by the court process. To minimize this potential, prosecutors and victim advocates should meet with victims and families early to explain the various steps in the court process, assess the ability and willingness of victims to testify, prepare them for the dynamics of the proceedings, and identify any allowable accommodations that may be necessary (APRI, 2003; D’Amora & Burns–Smith, 1999; Schafran et al., 2001a, 2001b). For example, prosecutors and other court officials should take steps to ensure that safe and separate waiting rooms or loca–tions are available for victims and their families during the court proceedings.

Prosecutors and defense attorneys should work collaboratively to avoid unnecessary delays and continuances in the process; such delays are neither beneficial to the alleged offender nor the victim, and may increase the stress and potential trauma to victims and impact their ability to recall critical details (APRI, 2003; Myers et al., 2002; Schafran et al., 2001a, 2001b). In some circumstances, however, expediting a case before a victim is emotionally prepared can also have a negative impact on victims.

Judges can also play a key role in promoting victim–centeredness during the court proceedings while still remaining impartial (Schafran et al., 2001b). Specifically, they have significant influence over the following:

Plea Negotiations

To the extent possible, plea negotiations should ensure that the sexually abusive aspects of the crime remain visible.

Many cases involving sex offenses do not proceed to trial; rather, they are commonly resolved through plea negotiations. Plea negotiations can be beneficial in multiple ways, such as promoting the timely resolution of cases, minimizing the likelihood of system–induced trauma for victims and their families, avoiding the potential for a not–guilty verdict at trial, and limiting appellate issues.

Despite the advantages, however, certain aspects of plea negotiations must be taken into account when adult and juvenile sex offense cases are involved, namely because of the potential for unanticipated collateral consequences (see, e.g., Cumming & Buell, 1997; Holmgren, 1999; Klotz, Wexler, Sales, & Becker, 1992; NAPN, 1993; Strate et al., 1996). To illustrate, some plea agreements may eliminate the sex offense component of the case (e.g., reducing a charge from forcible rape to aggravated assault), which can inadvertently imply to the victim that the offense was actually less harmful or serious. And when cases involve multiple victims, agreeing to drop some of these charges in exchange for a guilty plea to a more limited set of charges can have the same effect. Furthermore, eliminating the sex offense nature of the crime through plea negotiations can limit the eventual applicability of common sex offender management strategies such as offense–specific treatment, specialized supervision and monitoring strategies, and sex offender registration and community notification laws (Holmgren, 1999; NAPN, 1993). Thus, to the extent possible, plea negotiations should ensure that the sexually abusive aspects of the crime remain visible.

The use of Alford and nolo contendere/no–contest pleas in sex offense cases can be similarly problematic (Cumming & Buell, 1997; Klotz et al., 1992; Strate et al., 1996). Typically, when defendants offer a plea of guilty, the factual basis for the plea must be established, whereby the individual must acknowledge in open court the details contained in the allegations or charging document. With Alford pleas, however, criminal defendants are allowed, under certain circumstances, to plead guilty to an offense while maintaining their innocence. And with nolo contendere pleas, defendants agree to accept the consequences for a crime without either admitting or denying the facts of the crime. Much like charge bargaining, these types of plea agreements can invalidate victims’ experiences in sex offense cases. Moreover, because the defendants are not required to acknowledge having committed the offenses for which they ultimately receive convictions, plea agreements of this nature can exacerbate offender denial and minimization, and undermine the treatment and supervision process (Cumming & Buell, 1997; Holmgren, 1999; Klotz et al., 1992).

In order to ensure that plea agreements are well–informed and appropriate for both offenders and victims, they must be guided by sufficient information about the defendant, the offense behaviors, and community safety needs (English et al., 1996; Holmgren, 1999; NAPN, 1993; Schafran et al., 2001b). Therefore, prior to engaging in plea negotiations, prosecutors should seek thorough assessments of the defendant (Holmgren, 1999; NAPN, 1993). (For additional information about these and other assessments, see the Assessment section of this protocol.)

Generally speaking, it is not recommended that forensic evaluators conduct specialized psychosexual evaluations prior to the adjudication process because of the potential for ethical and other controversies (e.g., self–incrimination, revealing additional undetected offenses that may be charged, undermining the presumption of innocence). However, these evaluations can be potentially useful during the plea negotiation process under prescribed circumstances, such as when all parties agree to the evaluation to facilitate negotiations, or when the prosecution agrees not to file additional charges based on information disclosed during a pre–plea evaluation.

Ideally, victims should be consulted prior to reaching plea agreements; this is mandated in many states’ victims’ rights provisions. Furthermore, plea negotiations and alternative disposition recommendations should include requirements that sexually abusive individuals accept responsibility and demonstrate a willingness to fully engage in sex offense–specific treatment (Holmgren, 1999; NAPN, 1993; Schafran et al., 2001a, 2001b). Given the overarching goal of ensuring community safety, prosecutors may decide not to participate in plea negotiations. In the event that they do, judges may choose not to accept such pleas, particularly when defendants deny responsibility, fail to demonstrate treatment amenability, or refuse to cooperate with assessment processes (English, Jones, & Patrick, 2003; Holmgren, 1999; NAPN, 1993).

Plea negotiations will remain a common and sometimes necessary case management strategy at this phase in the criminal and juvenile justice process. As such, prosecutors, defense attorneys, and judges must understand the potential caveats of certain plea bargaining practices with sex offense cases, and ensure that any plea agreements appropriately balance due process, offender accountability, and victims’ needs and interests in a way that promotes effective management efforts.

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