Your confusion is normal. Most people think “rape” only happens when a stranger jumps out of the bushes. In reality, most sexual assaults occur between people who know each other.
While state laws vary, the short answer is that you were raped if you did not consent to any part of a sex act. You CANNOT consent to sexual activity if you are intoxicated or under the influence of drugs, or if you are a minor. Your consent can be withdrawn at any time, meaning that you can consent to certain sex acts (like kissing) but not consent to others
If you feel that someone may have engaged in a non-consensual sex act with you, contact us for free, no obligation advice at ____________. We will help you find support and talk you through your options.
You should absolutely seek support from people you trust. However, you should understand that some people—like teachers, school administrators, doctors and nurses may be required to report what you tell them to the police. If you don’t know if the person you want to talk to is a “mandatory reporter,” ask them.
You can also contact us, RAINN or your local rape crisis center and talk through your options with a victim advocate—who will not report to law enforcement, unless you tell them to.
Even if you are unsure whether you want to report what happened to you to police, it is best to get a hospital forensic exam as soon as possible. Every state allows you to get the exam as a “Jane Doe”—meaning that the hospital will preserve any evidence and/or findings from the exam under an anonymous number. If you never decide to report to the police, the evidence will be destroyed. If you decide to report, it will be provided to law enforcement.
It is important to make sure you are going to the right kind of hospital to meet your needs. Only certain hospitals in every community are set up to serve sexual assault victims so going to the wrong hospital could cause you to wait for hours just to be sent to another hospital. The best thing to do is to call 911 and tell the operator you were sexually assaulted and that you want to be transported to the nearest emergency room that performs sexual assault or rape exams. Federal law is required to offer to transport a victim of sexual assault to the nearest hospital capable of performing a sexual assault forensic exam (SAFE exam) regardless of where the sexual assault occurred. So if you were raped in New York and you decide to go home to New Jersey before calling the police, the New Jersey police will take you to a New Jersey hospital;
Any hospital you go to will examine and treat you for injuries and give you antibiotics for sexually transmitted infections (STIs). If you are concerned about becoming pregnant, you will be offered emergency contraception (EC). EC is 95 percent effective if taken within 24 hours of a sexual assault.
Once you are at the hospital, you will be asked to decide if you want a SAFE exam. It is your choice whether to get a forensic exam and nothing will be done to you without your permission.
Getting a forensic exam DOES NOT mean you have to report the assault to the police. Federal law requires the hospital to offer you the option of a “JANE DOE” SAFE exam in which your name or identity are withheld. The hospital will give you a paper with an identification number you can use to retrieve the results of your exam and any collected evidence. Most places will hold the exam and evidence for up to 60 days to allow you to consider whether to report to law enforcement.
Forensic exams are conducted by nurses with specialized training in collecting evidence. The sooner you get a forensic exam after the assault, the better, because important evidence—like blood alcohol level, bruising, swelling, etc. can go away in a manner of minutes. The best thing to do is to call 911 and tell the operator you want to go for a “rape exam.” Police or EMS are required to take you to the nearest hospital that performs forensic exams—regardless of where the assault occurred. Not all hospitals perform forensic exams so, if you don’t call 911, you should call the hospital and ask whether it performs forensic exams and, if not, ask for the nearest hospital that does.
To preserve as much evidence as possible, it is best not to shower or change clothes before going for the exam. You should get the exam if there is any chance you might want to seek criminal prosecution or other forms of justice later.
You have the right to refuse any aspect of the forensic exam once it starts. The exam is conducted by a trained forensic nurse examiner under the supervision of a doctor. The examiner closely follows an evidence collection checklist that requires her to take hair samples, swab for bodily fluids and to conduct an in-depth internal vaginal and/or anal examination looking for any evidence of injury. The examiner may also ask to take photographs. If you are uncomfortable with any part of the exam, you can ask the examiner to tell you why that portion of the exam is necessary and you can decide whether you want to allow it. The evidence from the exam may be used later in court but the presence or absence of evidence does not prove whether you were sexually assaulted.
Usually, you must get a forensic exam within 72 hours of the assault. If you are not eligible for a forensic exam, it does not mean you can’t report to police.
Deciding whether to report an assault is a hard decision each survivor has to face based on her own circumstances. If there is any chance you might want to report, it is best to get a forensic exam as soon as possible [LINK TO ABOVE]. Once you have preserved the evidence, you can talk through whether reporting is a good idea for you with a rape crisis counselor or with us by clicking here. The biggest thing to keep in mind is that once you make the police report, the decision on whether the perpetrator is prosecuted is out of your hands—police and prosecutors will decide whether criminal charges are brought.
Generally, the sooner you make a police report, the better. Contacting a trained sexual assault advocate prior to reporting can be very helpful because the advocate – which you can find by clicking here – can help make sure you only need to tell your story once – to the right person.
Until you decide whether you want to report to police, you should also avoid deleting any texts, voicemails or other evidence that could be used to help support your case. You should preserve (don’t discard, wash or alter) any clothing, sheets or other items that the perpetrator touched or came into contact with.
The exact process for police interviews varies widely from community to community so there is no one answer to what to expect. In just about every jurisdiction, however, there is a specialized police unit dedicated to handling sexual assaults and you will be placed with a detective who has some training in interviewing sexual assault victims. The best jurisdictions have trained forensic interviewers who are instructed on techniques for conducting interviews in a way that does not re-traumatize victims. Other jurisdictions treat the interview more like an interrogation. It does not matter where you go, telling your story to the police will not be easy and you should get as much support as you can if you decide to make a report.
Here are five tips to keep in mind before, during and after the police interview.
First, ask for your identity and your address to remain private. Tell every officer with whom you come into contact that you do not want your name or address on any public documents or on any documents that goes to the perpetrator. Almost every state has a process for this, but officers will not do it unless you ask.
Second, give only one RECORDED statement to the detective who will investigate your case. Anything you say to police can be used against you in future criminal, civil or other cases. The most common way victim’s statements are used “against them” is when defense attorneys are able to point to “inconsistencies” in the victim’s statement. The victim may give a statement to the responding officer, another statement to a police officer who comes to the hospital, and another statement to the detective. You want to avoid this by giving a single recorded statement to the detective who will be investigating your case. Having the statement recorded removes the error associated with officer’s misinterpreting or misquoting what you have said. Also, making one statement eliminates the normal minor differences that happen whenever we retell a story.
Third, be careful when asked about your own conduct that could be used to prosecute you or get you in trouble. You have the 5th Amendment right to decline to answer any question about any illegal activity you may have engaged in. Technically, you could be prosecuted for admitting to drinking, doing drugs and/or physically assaulting the perpetrator. Admitting to these actions could also get you in trouble with your school, university or work. You should consult with a lawyer if you have any concerns about questions the police ask but, in the meantime, it is better to politely decline to answer any question that would require to admit to conduct that violates the law and/or rules of your school, university or workplace.
Fourth, remember that you are not required to speak to police at all and you have the right to choose what you say the police, where you say and when you say it. Just because an officer tells you that you need to report to the station at x p.m. does not mean that you do. You have the right to leave the police station, you have the right to ask for breaks, and you have the right to seek whatever emotional support you need. While you will generally not be allowed to have a supportive person in the police interview room itself, you can always bring a friend or relative with you to the station. Have that person bring drinks and snacks and take breaks from the interview to be with your supportive person. If you do not have someone available, ask for a victim advocate to be with you.
Finally, seek out as much support as you can get after the police interview and take good care of yourself. Retelling such a horrible story to a stranger is scary and triggering even under the best conditions. You can find support here. You can find tips for self-care here.
Police will conduct an investigation and will present the evidence to the prosecutor, a lawyer who works for the state, who will decide whether there is enough evidence to issue criminal charges against the perpetrator. While you have the right to be updated on the investigation and to talk to the prosecutor about her decision to issue charges or not, the prosecutor makes the final decision about whether charges will be brought.
Most sexual assaults are never prosecuted. There are a variety of reasons for this that have nothing to do with you or your case. The national statistics are bleak.
Unfortunately, victims cannot “appeal” a prosecutor’s decision not to prosecute. Many national organizations such as RAINN, Human Rights Watch and others are advocating for more aggressive prosecution of sexual assault and we can help advise you on ways to advocate for prosecution in your case.
You have the right to file a civil suit against the perpetrator and against any person or organization that enabled, facilitate and or failed to protect you from the assault itself. You can find out more about civil suits and connect with a lawyer here.
If you were assaulted in a school that receives federal funds (most schools do), you have the right to file a Title IX complaint with your school. This may result in disciplinary action against the perpetrator and may allow you to get academic and other types of accommodations to help you cope with the assault. You can find out more about Title IX here. Click here to contact an attorney to advise you on Title IX.
1. Arrest or Summons—Protect your safety
The defendant is either arrested or issued a summons. Summons is an order to appear before a judge or magistrate. Either way, you have the right to be protected from the defendant, which can happen in one of two ways. Most commonly, the defendant’s “release” can be conditioned on the defendant having no contact with you or your family. The prosecutor can seek to impose a no-contact order as a condition of release of any defendant—regardless of whether the defendant was arrested and released on bond or whether he just got a summons in the mail. This is far superior to a traditional protective order because the defendant knows he will be incarcerated if he violates it and, in many cases, violating the terms could result in a revocation of the defendant’s bond—which would mean that any property or cash he put up to get bailed out would be lost.
In more extreme cases, a defendant can be held pending trial. Courts will usually impose that type of incarceration where the defendant is a flight risk or where he has made particular threats against you and/or your family.
In most jurisdictions, the prosecutor will send you a letter asking whether or not you want to be notified of what is happening and whether you want to participate. Every prosecutor’s office has a victim advocate who can guide you through the process. If you do not complete the necessary paperwork, you will not be notified of hearings or other events in the case and you will not be notified of changes in the custody of the defendant.
The first thing to understand is that you are not a “party” to the criminal case. You do not decide whether to bring charges and you can’t decide whether the charges go forward—these decisions are made by the prosecutor—usually called a “district attorney” or a “state’s attorney.” The prosecutor is not your lawyer—she works for the state. While the prosecutor is supposed to talk to you about the case and seek your input, they often make important decisions, such as to drop charges, accept plea deals, grant release, etc. without ever talking to the victim. We can help you to be sure your rights are protected.
Arraignment is a court hearing where the defendant is presented to the court, informed of the charges against him, and where the defendant enters a plea—almost always not guilty. You have the right to attend this proceeding although victims are rarely informed of these hearings and these hearings are generally not important. However, in some jurisdictions, the state engages in plea negotiations at the arraignment so it is best to ask the prosecutor whether there is any change the state will be accepting a plea deal (meaning offering the defendant less incarceration time, reduced charges or other benefits in exchange for pleading guilty) at the arraignment before deciding whether to attend.
3. The Discovery Phase
In the discovery phase, the prosecutor is required to turn over all the evidence collected that supports the criminal charges to the defense attorney. During this phase, the defense attorney can attempt to get evidence relating to you such as school records, medical records, social media, phone records, etc. You have the right to oppose any such request and you should let the prosecutor know that you want to be informed about any attempt to get any information about you. We can help you to oppose these efforts.
During the discovery phase, the defense attorney may hire private investigators to talk to your friends, teachers, classmates, neighbors and others. Defense attorneys and their representatives may also try to talk to you. Neither you nor any other person is under any obligation to talk to defense attorneys and you should report any such attempted contacts to the prosecutor.
4. Preliminary Hearing
The Court will conduct a preliminary hearing to determine whether there is sufficient evidence to allow the charges to stand and to decide whether evidence should be excluded from trial based on errors by police. While the prosecutor may tell you that you do not need to be at the preliminary hearing because it is “not important,” any time the prosecutor and defendant are in court together is important. This hearing will also feature testimony from the police and possibly others and can therefore provide a lot of information about what to expect at trial.
Most criminal cases resolve by plea agreement before trial. The cases that do make it to trial are often delayed by defense attorneys eager to prolong their client’s freedom and by courts, which lack sufficient judges and/or available jurors. You should always contact the prosecutor the day before the trial to see if the trial is expected to go forward and expect that you may have to show up for court several times before the trial begins.
Prior to trial, the attorneys argue pretrial motions and select a jury, which can take hours, days or weeks in some cases. As a crime victim, you have no formal role in the trial unless you are a witness. If you are a witness, you have the right to attend the trial and you cannot be excluded from trial, except under very limited circumstances. You should tell the prosecutor you want to attend the trial in advance and contact us immediately if anyone attempts to exclude you from the trial.
The trial itself consists of opening statements by the prosecutor and the defense, previewing for the jury what evidence each side will present. After the opening statements, the prosecutor will put on witnesses and enter evidence. After the state has rested or finished its case, the defendant will ask the court to dismiss the charges for insufficient evidence. That motion is almost always denied. The defense then puts on its case and both parties present closing statements to the jury. The jury then deliberates and returns a verdict. If the jury cannot reach a verdict, the court declares a mistrial and the state has the right to retry the defendant.
The sentencing is a hearing at which the judge imposes a sentence on the defendant, who has been found guilty. In most places, an agent of the state—usually a probation agency, conducts a presentencing investigation which gathers information about the defendant’s history, the impact on the victim, the severity of the crime, etc. to aid the court in imposing the sentence. You have the right to address the court and to give a victim impact statement either in writing, orally, or both. You can find out more about victim impact statements here.
State Compensation Fund--Every survivor is eligible for compensation from their state’s criminal injuries compensation fund. You can find your local compensation program here: http://www.nacvcb.org/index.asp?sid=6 The compensation funds will reimburse you for your medical costs, lost wages and they will pay for counseling. You are eligible to receive this compensation even if the perpetrator is never charged. While the online application is designed to be simple, you can seek assistance from your local sexual assault or victim advocacy organization.
Restitution—If the perpetrator is charged with a crime, you can ask the court to force the perpetrator to pay for your medical bills, counseling expenses, lost wages and other expenses related to the crime. Restitution is a judgment that the judge orders the perpetrator to pay as part of the criminal sentence. You can only seek restitution if the perpetrator is convicted or pleads guilty—in which case asking for restitution is by far the best way to make sure the perpetrator is forced to pay back some of the expenses he or she caused you to incur. If you have questions about restitution, contact us here.
Civil Suit against the Perpetrator—Every sexual assault survivor has the right to file a civil claim against the perpetrator regardless of what happens in the criminal case. A civil case is a private lawsuit that you (or a lawyer acting on your behalf) files that is completely separate from the criminal case. You can file a civil case even if no charges were ever brought against the perpetrator and even if the perpetrator was found not guilty in the criminal case. The civil standard of proof is much lower than the criminal standard—as illustrated by the O.J. Simpson case. In most cases, filing a separate civil lawsuit only makes sense if the offender is not convicted and/or prosecuted. If the offender has assets, we can help you find an attorney who would take your case on a contingency fee—the attorney pays all the expenses and the attorneys’ fees and case expenses come out of the recovery. If there is no recovery, you do not have to pay anything. In addition, I Have a Right to provides pro bono assistance to help survivors whose perpetrators were not prosecuted to bring civil claims against the perpetrator. As part of this service, we provide consultations to survivors interested in bringing a suit against the perpetrator. Contact us here to get more information about a consult.
Civil Suit against Others—Survivors often have the right to sue businesses, schools, institutions or others who either facilitated or failed to prevent the sexual assault and/or who failed to offer you support and accommodations to which you were legally entitled. Under Title IX, for instance, survivors have the right to sue any educational institution which receives federal funds if the institution failed to prevent an assault, if the institution failed to offer you required accommodations, and/or if the institution permitted retaliation against you for complaining of sexual assault and/or harassment. You can find out more about Title IX here https://www.knowyourix.org/. We can connect you with a national network of attorneys who specialize in representing victims of sexual violence. For a free, no obligation consultation on your right to bring a civil suit, contact us here.