The American legal system evolved from the English system of justice. Common-law crimes came from a series of specified offenses deemed to be crimes against the king. Rape and sodomy were in that series. Over time, however, American legislatures realized that a number of other sexual crimes were not covered by the common-law definitions of and punishments for rape and sodomy. Currently, the phrase “sex crime” typically embodies a broad spectrum of sexually related or sexually motivated crimes.

Some state laws divide sexual assaults by degrees and impose greater punishment when specific aggravating circumstances are involved, such as using a weapon; inflicting strangulation, suffocation, or serious bodily harm; or being aided or abetted by other perpetrators. State laws have broadened to make criminal the touching or penetration of a victim’s various body parts by foreign objects or by a perpetrator’s various body parts. There are statutes that address sexual child abuse by household members, strangers, and those with temporary care or custody. Other laws involve the sexual exploitation of children, which covers sexual gratification of the perpetrator without a requirement that the child be physically touched or harmed. Sex crimes also include incest, obscenity, public nudity, and child pornography.

The law is constantly changing to expand and clarify definitions of criminal acts, alter requirements of proof, and increase punishment. Most often, such
changes result from actual cases or incidents, which, because of an unforeseen hole in an existing law, cannot be prosecuted. In recent years, lawmakers have been challenged by changes in technology that strain typical criminal definitions and alter one’s view of personal privacy. One example is in the area of child pornography. Because of legal requirements for identifying a specific victim, child pornographers can thwart investigation and may escape prosecution by creating photographs of nude children from body parts of several (even adult) individuals rather than taking a picture of a single identifiable child victim.

While basic constitutionally constructed and protected procedures within the criminal justice system remain constant from state to state, each state has established specific differences. Therefore, this discussion of the criminal justice system is undertaken with the understanding that the particulars of the criminal process and procedure depend on the geographic location of the crime.

The prosecution and punishment of a sexual assailant or predator require the effective interplay of multiple components of the criminal justice system. Law enforcement, the judicial branch of government, and the corrections system each play a significant role in identifying, prosecuting, and processing criminals effectively and fairly. The first component of the criminal justice system, law enforcement, serves as the charging and investigative arm of the criminal system. Police officers, investigators, or law enforcement agents interview victims, witnesses, and suspects; pursue leads to identify the alleged perpetrator(s) of a crime; and make arrests. Crime lab technicians collect, analyze, and preserve tangible evidence and generate a report of their findings. Prosecutors review the evidence gathered by police and various experts, evaluate the sufficiency of the case against an accused, and consider whether to proceed to trial. Assuming that the decision is to go forward, the prosecutor prepares and presents the evidence to the trier of fact. Police and prosecutors exercise significant discretion in performing their duties, ideally guided by constitutional, statutory, and departmental requirements.

The courts represent the judicial branch and have the authority to hear facts and evaluate evidence within an accusatorial and adversarial legal model. In this model, the state must prove beyond reasonable doubt that the defendant committed the crime. Criminal proceedings are presided over by a judge, who must ensure that the substantive and procedural rules are upheld by the prosecution and defense. During a jury trial, the judge decides what facts can be presented to the jury, maintains order, and instructs the jury as to the law. Depending upon the jurisdiction, the judge or the jury determines the sentence.

A not-guilty verdict means that a defendant must be released from the charges for which he was tried. A defendant convicted after a trial has the automatic right to an appeal. However, a defendant who pleads guilty may appeal on very limited grounds.

As informative as the abstract may be, it is helpful to put the theory into a practical application. Consider the following scenario and commentary. A jogger is raped and beaten while running in the park. A man walking his dog happens upon the injured jogger, who blurts out what just occurred. The man calls for help. Uniformed police arrive on the scene and glean just enough information to determine the nature of the attack and to initiate standard investigative procedures, including broadcasting a description of the perpetrator and how he left the area. An ambulance transports the victim to the nearest hospital staffed by a forensic nurse examiner team. At the scene, police officers cordon off the scene to prevent the contamination or destruction of valuable evidence. Mobile crime lab technicians scour the crime scene, searching for physical evidence that might show that a crime occurred and who committed that crime. Physical evidence includes fingerprints, hair, clothing fibers, body fluids, and any items that may contain trace evidence linking the assailant to the crime. Police officers canvass the area and interview potential witnesses.

At the hospital, the victim’s medical history is documented. In addition, the forensic nurse examiner gathers information about what happened in order to treat the victim appropriately and to know what type of samples to collect. After the medical evaluation and treatment, detectives from the sex crimes unit interview the victim and obtain a more detailed description of the events. The victim spells out what transpired before, during, and after the assault. What the assailant did before might provide clues about whether the victim was randomly selected or targeted. Specific acts committed during and after the attack may link the perpetrator to other similar crimes. The police learn the exact nature of the sexual assault to decide what charges to bring if an arrest is made. The victim is asked whether force, threats, or weapons were used during the attack. Small bits of information blossom into significant clues about the perpetrator’s identity.

Crucial to any investigation of a sexual assault is the cooperation of the victim. As evidenced in the above scenario, important details known only to the victim can lead directly to the assailant. Building a strong case brings that assailant into court. Why then do some victims withdraw from the criminal investigation? Telling total strangers repeatedly about what happened and using graphic terms is embarrassing and extremely uncomfortable. A victim may become reluctant after realizing that participation in the criminal process is not necessarily limited to testimony at trial. The victim may be asked to present evidence to a grand jury and testify at a preliminary hearing or a pretrial motion. The major court appearance will require the victim to face the accused and point him out to the trier of fact. The prospect of the whole process can be overwhelming.

Some victims analyze and reanalyze whether they caused or contributed to the assault. They fear being judged and not being believed. Some victims of sexual assault perceive insensitivity from the criminal justice system and law enforcement personnel. Efforts have been made to make the process more accommodating to the victim to encourage prosecution. For example, rape shield laws have been enacted to exclude mention of a rape victim’s sexual history, unless the previous sexual activity involved the defendant or could explain the victim’s injuries or pregnancy. Police departments around the country have created speciality units staffed with professionals who have a special interest and expertise in investigating sex crimes. Prosecutors refer sexual assault victims to support programs. Nevertheless, victims are not convinced, and perhaps rightly so, that old attitudes have disappeared. At a training class on sexual assault, one small-town police officer remarked, “If a woman goes to a place where her mother or husband said not to go and something happens to her, it isn’t rape.”

Occasionally, victims alleging sexual assault are asked to take a polygraph test. In some situations, such a request may be appropriate. Lie detector devices can be effective investigative tools, particularly when the evidence does not add up and the case has stalled. However, such devices should never be used as blackmail. A victim should not be instructed to submit to a lie detector device as a prerequisite for the investigation to continue.

The police will expand their investigation to include possible witnesses, especially the first person to have contact with the victim after the assault. The victim’s sudden, unsolicited statement to the dog walker in the scenario is a powerful piece of evidence. In some jurisdictions, the first report of a sexual assault (i.e., the statement of the victim to a third party) is admissible at trial. A statement made by an out-of-court declarant offered in court to prove the truth of the matter asserted is hearsay. Ordinarily, hearsay is not admissible, but there are exceptions. An excited utterance, such as one made by the newly injured sexual assault victim, to the first passerby or a police officer may be admissible in court. This excited utterance is deemed trustworthy because the statement is likely made under stressful circumstances, when the speaker has not had time to fabricate the remark.

At various stages of the investigation, the detectives reevaluate their case. Eyewitness accounts of the crime, witness descriptions of suspicious people in the area, the victim’s own account, forensic evidence from the crime scene, and medical evidence from the sexual assault get reviewed. All of this information is used to identify an accused person and to develop the prosecution’s case.

In the assault scenario, several days pass after the attack on the jogger. Police on routine patrol near another small city park hear a woman scream. A citizen runs up and reports noticing a suspicious man, oddly dressed considering the season. The citizen saw the man hastily emerge from among the trees and toss an object into the bushes. Acting on this information, the officers search the bushes and recover a knife. The broadcast on the police radio band brings other officers to the area, and a search for the man begins. Within minutes, a man matching the description given by the citizen is stopped a few blocks from the park. The police ask the man for identification and want to know why he is in the area. He says he does not have any identification and claims to live near the park.

In the meantime, other officers locate the intended female victim. Her description of the assailant sounds very much like the description from the broadcast. The intended victim is taken to where the police are interviewing the oddly dressed man. She shouts, “That’s him! He attacked me with a knife!” The man is arrested.

The law supports the actions of the police in this scenario. They have reason to believe a violent crime is occurring or is about to occur. The observations of the citizen coupled with the police officers’ independent observations are reason enough to stop the man and ask him basic questions about who he is and why he is there. The US Supreme Court case of Terry v. Ohio, 392 US 1 (1968), and its progeny give police the authority to stop a citizen in the manner set forth in the scenario. In addition, when the police have a reasonable belief based on specific and articulable facts, the officers may conduct a limited
search of outer clothing to discover a weapon. The courts examine the totality of the circumstances and then weigh the individual’s Fourth Amendment protection from unreasonable searches and seizures against an officer’s safety.

The identification made by the intended victim established probable cause for the arrest. Furthermore, it is likely that a pretrial challenge to the one-on-one identification would not be successful. Such “show up” identifications are not deemed to be impermissibly suggestive.

Typically, police read a suspect his Miranda rights immediately, although the rights are not required until a custodial interrogation takes place. Blurts made by a suspect who has not been asked a question and has not been advised of his/her rights may still be ruled admissible. Responses to questions asked before the advice of rights or after a request for legal counsel are likely to be excluded at trial. If a suspect’s statement is obtained illegally, other incriminating information or tangible evidence that was unearthed on the basis of that statement cannot be presented at trial. Such evidence is considered “fruit of the poisonous tree” and must be excluded. (See Wong Sun v. United States, 371 US 471 [1963].)

The scenario arrest is warrantless because the suspect was apprehended at the scene of the crime on the basis of evidence or observation that supports a determination of probable cause. Since a felony was allegedly committed, the police were not required to request a warrant from a judge. Had the crime been a misdemeanor, the police could arrest without a warrant only if the crime had been committed in their presence. When the police do not witness the commission of the misdemeanor, the victim must go before a judicial officer, file charges, and take an oath that the allegations are true.

When a suspect is not apprehended contemporaneously with the crime, the victim or witnesses may be asked to view a photo array or attend a lineup. In either of these identification procedures, the police and prosecutors must ensure that the “filler” individuals share very similar physical characteristics and clothing with the suspect. To do otherwise makes the procedure impermissibly suggestive and taints the identification, making it inadmissible at trial. When identification is to be made using a photo array, the police must follow strict departmental procedures, including using either all-color or all-black-and-white photographs. During a physical lineup, the participants may be asked by the police to repeat certain statements allegedly made during the commission of the crime. This allows the victim to hear the voice of the alleged perpetrator and may be the sole basis for identification when the victim or witness did not get a good look at the assailant. The lineup is conducted in a manner and place that prevents the suspect from seeing the witness.

After being arrested by the police, the suspect is transported to the police station or a central pretrial holding facility for booking. Booking is a police administrative process, which essentially records specific information about the suspect and the nature of the crimes committed. When booked, the suspect is fingerprinted and photographed. In jurisdictions using modern technology, the suspect places each finger on a glass, where his prints are read and recorded by the computer. His photograph is taken in color by a digital camera. Police check a national database for outstanding warrants on the defendant. Those warrants can act as detainers, a mechanism for holding a suspect even if the charges that gave rise to the present arrest are dropped. Typically, a suspect is permitted to make one phone call following the booking process.

In serious crimes against persons, such as sexual assault, a suspect may also be photographed to document his overall appearance and particular physical characteristics. The photo memorializes his clothing, which may fit the description of what was worn during the crime. The suspect’s clothing may be confiscated and carefully packaged so that valuable trace evidence is preserved. Blood droplets, fibers, and natural products may link the suspect to the victim and/or the crime scene. In addition, police will take close-up shots of any injuries, which may be consistent with the victim’s account of the crime.

After booking the suspect, police may get a court order to collect certain evidence from the suspect’s body. For example, in a sexual assault, a forensic nurse examiner may extract head and pubic hairs and bodily fluids. Police are required to obtain a search and seizure warrant to get such samples from a suspect.

The police officer or detective files a complaint, the initial charging instrument. The complaint contains a statement of the facts, demonstrating the existence of probable cause and forming the basis of the offense charged. When a warrant is requested, the complaint is presented to a judge in support of the warrant. In a warrantless arrest, the complaint serves as the charging document at the initial appearance or preliminary hearing.

The prosecuting attorney, whose proper title may be district attorney, state’s attorney, attorney general, or
United States’ attorney, represents the government in all criminal cases within his or her jurisdiction. While the prosecutor confers with police to review and assess the adequacy of evidence, the decision whether to proceed with the case rests with the prosecutor. The prosecutor evaluates the weight and admissibility of the evidence, the credibility of the witnesses, and the overall impression the victim will make on the trier of fact. Further, the prosecutor must be convinced that the case against the defendant can be proved beyond reasonable doubt. At any time before the case concludes, the prosecutor may withdraw or reduce charges. In some situations, the prosecutor and the defense may negotiate a plea.

The prosecutor may find it necessary to delay bringing the case into court and order the suspect’s release for the moment. Statutes of limitations, which set a specific time frame during which a charge can be brought, vary from state to state and crime to crime. Sexual offenses may have no statute of limitations or may have a set period for charging, depending on the jurisdiction.