Wednesday, June 24, 2009

Intimate Partner Rape & the Use of Pretext Telephone Calls

Marital/ intimate partner rape is the most underreported sexual assault. It is also the most difficult to prosecute. 14% of women who have been married are raped by their husband or ex-husband. Sexual assault often accompanies other types of violence and degradation in a relationship. It is often not a one time incident. Of all crimes, rape is the only crime that the victim is consistently blamed as much as the perpetrator is. The perception of perpetrator responsibility is diminished even more so in the context of a marriage. Aside from the obvious reasons for not reporting, such as shame, embarrassment, fear of retaliation and fear of not being believed there are also persona, cultural, religious and societal beliefs to contend with. Since forced sex by a spouse is seldom reported it is ‘used as punishment, retaliation and a bargaining tool in child custody disputes.’1. When a woman submits to sex out of fear or intimidation it is rape. If she cannot consent due to intoxication or drug/ medication or due to sleeping or unconsciousness it is also rape. If she is permanently or temporarily disabled and cant consent - it is rape. Every legitimate, sexual encounter must be a separate, consensual act, regardless of what has happened before or since. Married or not, conscious or not, a woman “owns” her body. Any nonconsensual intrusion or violation is a crime, a sexual “trespassing”.

Professor Evan Stark (2007), a leading researcher on violence against women writes:

“[M]arital rape…should be treated differently and more severely than similar crimes committed by strangers. As a result of its unique

relation to personal life, sexual assault is far more likely to be repeated when it is committed by partners and almost always occurs amid other forms of violence, intimidation, and control. The level of unfreedom, subordination, dependence, and betrayal associated with marital rape has no counterpart in public life.” (p. 388) 2.

If the victim does report, marital and intimate partner sexual assaults are some of the most dreaded by police officers and prosecutors. Even if there is physical evidence to be collected there is still the consent defense to contend with .

One of the most effective investigative tools in sexual assault is pretext, recorded phone call. Usually made by the victim, working with the investigator, the perpetrator is unaware that the call is being recorded. The call, whether accusatory or distressed, almost always elicits admissions that corroborate the victim’s account, if not a confession. This has even been accomplished with text message “conversations” with the police as witness. These recordings become very powerful evidence in court however, faced with such powerful evidence, many suspects plead guilty sparing the victim the pain of trial.While legal in Michigan, the use of pretext phone calls will be different according to each jurisdiction. It is illegal in some states to conduct a pretext phone call and this evidence is therefore not admissible in court. Policies and procedures will also vary between region and agency

Great care regarding the emotional strength of the victim must be taken. An advocate should be present and officers should discuss at length the process and potential traumatic consequences. Every case is different The foremost concern is always the safety of the victim. That said, I have found that a intimate partner sexual assault victim who is willing to participate in this type of investigation frequently has a feeling of reclaiming power over her life. A successful pre-text call can almost always take a case from “he said-she said” to a conviction.

1. Jonathan S. Olshaker, M. Christine Jackson, William S. Smock(2006)

Forensic Emergency Medicine

P Published by Lippincott Williams & Wilkins, 2006

2.Stark, E. (2007). Coercive control: How men entrap women in

personal life. New York: Oxford University Press.

1 comment:

  1. My daughter is a victim of spousal rape and abuse. In May 2006 her then abusive husband handcuffed her, brutally raped and beat her. She was able to escape. He called 911 and reported the rape, he then confessed verbally and later wrote a confession to the rape. This all enabled the DA to charge him with criminal sexual assualt , unlawful restarint and aggravated domestic violence. They let him out on bail he raped my daughter numerous other times, tried burning her with a propane torch. She reported he viol OP they'd let him out again. Finally in Oct they rearrested for contmpt and put him in jail. At the last momment they allowed him to plea out of the sex crime status and to Aggravated Domestic Violence, this has tainted every other case brought against him as the rape is hidden from the court.

    My daughter is working with Illinois Congresswoman Debbie Halvorson in the drafting of a bill which will stop DA's from pleas bargaining when there is a confession, physical, forensic evidence and the victim's cooperation.

    The court disposition said "nolle Prosequi" and is used when a plea bargain is made to a lessor charge. This does not mean that the defendant is not guilty of rape, nor does it mean the defendent has been tried and found not guilty. It means the state has determined to save tax payers money by not taking the case to trial and defendent has accepted a lesser charge wwhich grants him a guarantee of a lesser sentence. So long as a jury trial has not commenced, the judgement on an application for nolle prosequi is not an adjudication on the merits of the prosecution, and so the charges may be brought again.


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