Best Practices in Law Enforcement Response to Domestic Violence and Sexual Violence

By: Claire Harwell

Failing to use accepted investigative practices in domestic violence and sexual violence cases can be a civil rights matter under the Fourteenth Amendment and many states’ antidiscrimination laws.1 Routinely inadequate investigation of the reports is a denial of police protection based on gender, since women constitute the majority of reporting victims. A persistent pattern of impermissible gender-based discrimination can trigger an investigation of the law enforcement agency itself. Findings of discrimination in those agency investigations typically lead to external oversight of the agency to ensure proper case handling.2

The use of best practices in the investigation of domestic violence and sexual violence not only stops the ongoing harm to these crime victims who are subjected to multiple crimes; it also avoids external investigations of the law enforcement agency. Domestic violence and sexual violence are frequently interwoven with stalking, assault, battery, vandalism, companion animal abuse, and kidnapping.3 The initiative of a single investigator using best-practice techniques will often put an end to a crime spree of many crimes with multiple victims.

Best practices in these cases include: investigator specialization, victim-centered approaches; evidence-based case development; meticulous evidence handling and testing, lethality assessment, strangulation symptom identification; and insightful interviewing and interrogation.4

Investigator specialization leads to expertise in relevant science.5 Specialized investigators recognize tonic immobility descriptions(which is freezing due to terror’s impact on the brain), and don’t attribute it to consent to abusive contact.6 A highly trained investigator knows that submission and appeasement are a brain-based default set of behaviors in the same way that body memory defines behavior for athletes and musicians who practice extensively.7 In a specialist’s investigation, common elements of crimes are not misinterpreted.

A specialized investigator cedes some control of the process to the crime victim in a victim-centered strategy which provides choice about scheduling interviews, and offers regular updates, keeping the survivor engaged in the investigation while building trust.

Considering the survivor’s trauma at each step of the investigative process reduces the personal cost of survivor participation. To further reduce the psychic toll on the survivor, an investigator assesses aspects of the crime(s) that carry the most emotional load for the survivor and limits when that part of the crime is discussed.

Things that trigger the survivor are both evidence that support the survivor’s narrative of the offense, and challenges to be managed. For example, a reaction to an inaccessible exit door underscores a narrative about nonconsensual isolation. Paying attention to the survivor’s positioning so that she/he never feels as if they are blocked into a room during the investigation is a victim-centered consideration.

Evidence-based case development is a victim-centered best practice recognizing that some survivors will be unable to testify at trial. Survivor statements such as 911 calls, police body worn camera videos, medical history, and sworn testimony at administrative or order for protection hearings, form the foundation for a trial without the survivor. A Preliminary Hearing may pave the way for these statements’ admissibility as hearsay substituting for the survivor’s live trial testimony (Crawford v. Washington). 8

Evidence collection and handling are the keys to building a strong case. Meticulous tracking of chain of custody of physical evidence is essential. Photo evidence of bruising as it develops over time is compelling. Proper handling and storage of sexual violence evidence kits remains a litmus test of adequate police response. Routine testing of kits, regardless of their necessity in an individual case, has consistently revealed recidivists across multiple states.10 The offender’s social media accounts also provide very useful evidence of witnesses who may have heard confessions or inconsistent versions of the relevant events.

Interview and interrogation skills are the cornerstone of these investigations. Best practice interviewing never uses interrogation techniques in a survivor interview. Although it’s an accepted interrogation technique, asking a traumatized individual to provide a narrative of events from multiple different points in a chronology ignores terror’s neuro-chemical effect on the brain’s ability to create memory chronologically during the trauma. Instead, in-depth interviews need to be conducted with attention to body-based memory using techniques such as those taught in FETI (Forensic Experiential Trauma Interview) instruction.11 Interrogation of suspects is done only after extensive background investigation of the crime and the suspect, so that the detective can confront the suspect with inconsistencies.

Use of these best practices enhances success in the courts while underscoring respect for the survivors’ experiences. How could anyone justify doing anything less?

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Claire Harwell, J.D., has worked in sexual assault prevention and response for over three decades. She advises universities, the U.S. military, prosecutors’ offices, and the U.S. Dept. of Justice on matters relating to effective response to crimes of sexual violence. As a victim advocate and prevention expert, she worked with rape crisis centers in North Carolina, Pennsylvania, Virginia, and New Mexico. She has also served as a state-certified campus law enforcement officer, attaining the rank of Corporal (a training officer) in the state of North Carolina. Later, as a sex crimes prosecutor, she worked in a district attorney’s office, and as the Director of the NM Attorney General’s office Violence Against Women Division. She has also previously served as project and legal director for New Mexico Coalition of Sexual Assault Programs, a specialized non-profit legal practice at eight sites across the state of N.M., representing sexual assault survivors statewide in a wide range of civil and criminal law issues.

1 Whren v. United States, 517 U.S. 806, 813 (1996), Estate of Macias v. Ihde, 219 F.3d 1018, 1019, 1028 (9th Cir. 2000). Rosenbaum v City and County of San Francisco, 484 F3d 1142, 1152 (9th Cir. 2007).

2 See for example, New Orleans Police Department Consent Decree which continued for twelve years: https://nola.gov/nola/media/NOPD/Consent%20Decree/778-Second-Amended-and-Restated-Consent-Decree.pdf

3 David Lisak & Paul Miller, Repeat Rape and Multiple Offending by Undetected Rapists, Violence and Victims, Vol. 17, No. 1, (2002); Ouellet et al., Research report: The Criminal Career of Intimate partner Violence Offenders: generalists or specialists? To the attention of Immigration, Refugees and Citizenship Canada / Government of Canada (February 8, 2021).

4 For more detailed guidance on best practices see IACP’s guidelines:
https://www.theiacp.org/sites/default/files/all/i-j/IACPIntimatePartnerViolenceResponsePolicyandTrainingGuidelines2017.pdf

5 P. Rumney, et al., A police specialist rape investigation unit: a comparative analysis of performance and victim care. Policing and society, 30 (5), 548–568, (2020).

6 For information on tonic immobility and sexual violence see: Michele Bovin, et al., Tonic Immobility Mediates the Influence of Peritraumatic Fear and Perceived Inescapability on Posttraumatic Stress Symptom Severity on Sexual Assault Survivors, Journal of Traumatic Stress, Vol. 21, No. 4, August 2008, pp. 402–409 (2008).

7 See Dr. Jim Hopper’s explanation of this here: https://www.psychologytoday.com/us/blog/sexual-assault-and-the-brain/202102/reflexes-and-habits-is-much-better-than-fight-or-flight

8 Crawford v. Washington, 541 U.S. 36 (2004), 124 S. Ct. 1354; 158 L. Ed. 2d 177; 2004 U.S. LEXIS 1838

10 Rebecca Campbell et al., The Detroit Sexual Assault Kit (SAK) Action Research Project (ARP), Final Report iv (2015) (emphasis in original), available at https://www.ncjrs.gov/pdffiles1/nij/grants/248680.pdf 

11 See more about FETI here: https://www.certifiedfeti.com