These materials will attempt to answer, briefly, questions you may have about the legal procedures followed by the police and court system when a sexual assault is reported. All cases differ, however, so do not be concerned if the handling of your case deviates somewhat. If you do have questions about the propriety or purpose of a procedure you should talk to your attorney.
Special Procedures for Adjudicating Charges of Sexual Assault
The following procedures are applicable to George Mason University
students. The sexual assault hearing will be conducted in accordance with
the rules and procedures established by the University Judicial Board,
with special sensitivity to the nature of the charge and the best
interests of the parties involved. In recognition of the unique nature of
sexual abuse cases, these procedures supersede the University Judicial
Code where necessary. The office of Associate Dean for Student Services
(the Judicial Administrator) is the office designated to administer
these procedures.
1. Upon becoming aware that an act of sexual assault is alleged, the
Judicial Administrator or designee will initiate an investigation and take
actions deemed necessary to protect the emotional well-being of the student
involved, as well as the educational environment by the changes of residence
hall room assignment, placing restrictions on entrance into certain campus
areas or buildings, or forbidding contact between the accuser and the
accused (See Judicial Code, Section XVI). These actions are subject to
appeal to the Associate Vice President and the Dean for Student Services,
and will remain in effect until resolution of the charge unless explicitly
continued as a sanction imposed by the hearing board.
2. The sexual assault hearing panel will be comprised of five students, no
more than three of whom shall be of the same sex. These students will be
selected from the membership of the University Judicial Board. A chairperson
for each hearing will be selected by the panel members from among the
students appointed to the panel.
3. The student judicial system will have jurisdiction if the charge is filed
with the Judical Administrator within one year of the occurrence ,or
within one year of the date on which the identity of the accused is
determined.
4. The hearing will normally take place within sixty days of the filing of
the charge by the Judicial Administrator.
5. The University Judicial Administrator or designee will present the case
unless the accuser requests that he/she personally make the presentation.
The hearing board will determine whether there has been a violation of the
student Judicial Code, and will impose or recommend sanctions to the judicial
administrator as set forth in the student Judical Code.
6. The accuser and the accused may have advisers present during the hearing,
but advisers are not allowed to address the the board or examine the
witnesses.
7. The accuser has the right to remain present during the entire hearing.
If the accuser is to be a witness, care must be taken by the hearing board
to call him/her as the first witness or in a sequence that will not
compromise the testimony.
8. Statements or questions regarding the irrelevant past sexual history of
both the accuser and accused will generally not be admitted into evidence
at the hearing except for evidence which could be introduced under
Section 18.2-67.7 of the Code of Virginia.
9. During these proceedings, should the accuser or the accused desire to
avail himself/herself of counseling or other services provided by the
university, he/she is encourage to seek assistance from the office of the
Associate Vice President and Dean for Student Services.
10. A finding of guilty of sexual assualt requires an affirmative vote of a
majority of the members of the Sexual Assault Hearing Panel.
11. If the panel determines that accused has engaged in sexual assault, the
members are to impose or recommend sanctions according to conditions
established in Sections XIII, XIV, and XV of this code.
12. The outcome of the hearing and any sanctions that are imposed are normally
made available in writing to both the accused and the accuser within
10 day of completion of the hearing.
13. When it is mutually agreeable and with the consent of both the accuser and
the accused, the Associate Vice President and Dean of Student Services may
appoint a university faculty or staff member who has been trained to hear
sexual assault cases to adjudicate the case. All guidelines for hearing
procedures and appeals outlined in this code shall apply. This procedure
may also be used if, in the judgement of the judicial administrator and with
the consent of both parties, the timing of the complaint precludes the
use of a hearing panel.
14. Due to the private nature of these actions, the university will not
normally pursue charges of sexual assault unless the alleged victim acts as
the accuser. However, in cases where there may be a witness to the alleged
violation, or in cases where the victim asks the university to pursue the
case when he/she does not act as the accuser, or in cases where
nonprosecution would constitute a danger to the university community, or
would materially affect the learning environment or operations of the
institution, the university reserves the right to pursue a case to its
conclusion.
15. As a matter of university policy, the accuser is urged to pursue all
charges of sexual assault and rape in the criminal justice system. Actions
by the police or criminal courts do not in any way prejudice the right of a
student to bring a charge in the student judicial system.
16. Sanctions for Individuals: The following sanctions are provided and may be
imposed upon students or recommended by all courts and administrative
hearing officers:
A. Admonition
B. Warning
C. Censor
D. Disciplinary Probation
E. Restitution/Service
F. Suspension
G. Expulsion
1. What do the police do?
The police are generally the first people called when an assault occurs. Their job is to assure that the victim is taken care of and the evidence is gathered. The victim does not have to decide whether they want to press charges at this point, but the routine procedure will be followed in case a prosecution occurs. The police will:
Transport victim to hospital for treatment, gather evidence.
Contact sexual assault support services, if requested.
Procure other needed services for the victim.
Interview the victim and any other witnesses. The initial police
interview will be fairly short.
Examine the scene of the crime and collect any available physical
evidence (e.g. hair, skin, blood, semen samples, fingerprints,
photographs).
May assign a police investigator trained to handle sexual assault cases,
along with a victim-witness coordinator, who will be called in as soon
as possible and who will conduct follow-up investigations.
Take steps to identify perpetrator (if unknown to the victim), and to
arrest perpetrator as soon as possible.
Testify at all hearings as to their findings.
This process may take anywhere from a few days or weeks to months or even longer. In some cases an arrest is never made. The police may interview the victim on several occasions to obtain all the information needed. It is a good idea for the victim to contact the police even if he/she is not sure about prosecuting the case. It is better to have the evidence gathered, even if it is not used, than to lose the evidence and later try to prosecute.
2. What support systems exist?
A. GMU Sexual Assault Service Coordinator: (703) 993-4364
Provide comprehensive assistance and support to victims.
Provide assistance concerning medical, legal, and psychological
issues. Academic and housing intervention also available.
B. George Mason University Police: (703) 993-2810
(993-2800 for emergencies)
Victim Wittness Coordinator available for support of victims and
witnesses throughout any and all proceedings.
Provide escort services and will respond to emergencies quickly and
efficiently.
C. GMU Sexual Assault Counselor (703) 993-2380
Provides both crisis and followup counseling and information to
victims, secondary victims, and others.
Provides community and campus referrals.
D. Victim Assistance Network provides counseling and advocacy services
for victims. They have a 24 hour hotline= (703) 360-7273.
Provides information regarding medical, legal and psychological
aspects of sexual assault.
Escort and advocacy for victims who need assistance in securing
safe shelter or medical treatment, or in following through with
prosecution or other legal matters.
Counseling through ongoing telephone contact and support groups.
Third Party Reporting: when a victim does not wish to report an
attack to the police, VAN's anonymous report will not result
directly in an arrest, but will help the police compile information
on patterns of rape and suspected assailants.
3. What does the Commonwealth's Attorney do?
In Virginia, the prosecutor, called the Commonwealth's Attorney, represents the interests of the state in having the perpetrator brought to justice. The Commonwealth's Attorney functions like an attorney for the victim, with one crucial difference - the Commonwealth's Attorney does not act solely for the victim and may on occasion act contrary to the victim's wishes if she/he feels it is for the good of the state. The victim will have input into the actions of the Commonwealth, but cannot control the final decisions made by the prosecutor. You should be aware that the prosecutors almost never act contrary to the wishes of the victim in a sexual assault case. The Commonwealth's Attorney's role includes:
A. Evaluate evidence from the police to determine if enough proof exists
to find the accused guilty beyond a reasonable doubt. If the
Commonwealth's Attorney does not believe the evidence supporting the
case is strong enough, the charges may be dropped.
Dropping the charges does not mean that the Commonwealth does not
believe you, only that the evidence is too weak.
In some cases the evidence is tainted by improper police procedures
violating the accused's Constitutional rights. In such circumstances
crucial evidence may exist, but be inadmissible at trial.
B. Appear at bond hearing.
The hearing is to determine if the accused will be kept in jail or
freed until trial.
Bond is a payment of money or security in the form of property given
to the court to assure the accused will appear at trial.
Commonwealth's Attorney may oppose bond or request a high bond if
the crime was violent or there is reason to believe the accused
will flee.
Commonwealth's Attorney can request the Court to require the accused
to stay away from the victim as a condition of bond.
Victim usually does not appear.
C. Conduct a preliminary hearing.
Commonwealth presents enough incriminating evidence to the judge to
justify sending the charge to the grand jury for formal indictment.
Victim will testify, and be cross examined. The defense usually
does not present their side, but can attack the Commonwealth's
evidence and argue against referral to the grand jury.
D. Supervise presentation of the case to the grand jury.
A jury of local citizens reviews the evidence and determines whether
or not to indict the accused.
Victim usually does not testify before the grand jury.
E. Negotiate any plea agreement.
A plea agreement can be reached at almost any point in the case,
usually initiated by the accused.
Factors considered in entering a plea agreement include: strength of
prosecution case, case-load, victim's wishes.
Some victims prefer a plea agreement since there is no trial and no
need to testify. Other victims may oppose a plea agreement because
they feel the accused may not be punished appropriately.
F. Conduct the trial.
The Commonwealth's Attorney prepares the case for trial and presents
it in court.
Along with the victim-witness coordinator, he/she prepares the
victim for the trial.
4. What does the Defense Attorney do?
As the victim and (usually) primary witness against the accused, you may view the defense attorney as an enemy, but his/her role is essential to the just resolution of the case. While he/she may take actions which unnerve or anger you, he/she is there to be sure that the system treats his/her client fairly. The Defense Attorney may be hired privately by the accused, or he/she may be court-appointed. In general, the work of the Defense Attorney will mirror that of the Prosecutor, including:
A. Evaluate the evidence.
Defense focuses on the weight of the evidence against the accused
and the credibility of the witnesses.
Accused's alibi or explanation may be critical. Most accused offer
one of two defenses:
1) Denial, i.e.: It wasn't me (mistaken identity); It never
happened (victim is making it up).
2) It was a consensual act.
B. Bond Hearing
Defense Attorneys are not always retained this early in the case.
If they are, they can argue for release on bond, for a low bond
or no bond.
Accused may determine at the hearing that he/she is eligible for a
court- appointed attorney, who will represent him/her in the future.
If bond is denied while he/she is without an attorney, another bond
hearing, with representation, can be set;
Accused can waive right to counsel, although few do.
C. Preliminary Hearing.
Defense Attorney's role is to listen to evidence presented by
Commonwealth's Attorney and argue in favor of dismissal of the
charges based on insufficient evidence.
Cross-examine the victim and other prosecution witnesses.
It is rare for the defense to succeed in having charges dismissed at
this stage.
D. Create a defense strategy.
Based upon evidence, may attack police and court procedures,
credibility of the accused and other witnesses.
May offer an alternative version of the incident. Defense does not
make up such evidence, but will work from the accused's story and
locate any other evidence which supports it.
Defense only has to create a reasonable doubt as to the guilt of the
accused, not prove the accused innocent.
May file civil defamation claim to intimidate the victim.
E. Negotiate a plea agreement.
Where the case against the accused appears strong, the defense
attorney may propose a plea agreement.
The agreement may work to minimize the penalty for the accused.
No agreement can go forward without the consent of the accused, the
Commonwealth's Attorney and the Court. The Court can always reject
an agreement if it does not seem proper.
F. Trial Defense.
Conduct trial with the intent of creating doubt as to the guilt of
the accused.
Exploit flaws in the prosecution case and minimize the value of
prosecution witnesses.
In general, cannot explore the sexual history of the victim as a
part of the attack on his/her credibility, but can attack victim's
character, credibility in other ways.
5. Verdict and Sentencing.
A. At the end of the trial the case is turned over to the judge or the
jury for a decision as to the guilt or innocence of the accused.
B. Sentencing may be done separately in Virginia, and usually is.
If the accused is found guilty he/she will have several months to
prepare information to present to the court to minimize the sentence.
The prosecutors will also prepare materials in efforts towards a
heavier sentence. The accused's prior offenses, value to the
community, family, and psychological analyses may come into play.
6. Appeals.
A. A defendant may always appeal a conviction based upon errors
he/she says were made by the judge, prosecution, or defense at trial.
It may take a long time for the case to move through the higher
courts, but, eventually, there will be a final decision. The defendant
usually stays in prison while the appeals are in process.
B. On rare occasions an appeal may result in a new trial requiring the
victim to testify again, but the appeals themselves are handled by the
attorneys, based upon the trial transcript.
C. The prosecution almost never has the right to appeal an acquittal.
Once the accused is found innocent, he cannot be retried.
7. Publicity.
A. Most local media will withhold the name and specific address of a rape
victim; however, general identifying information may be disclosed,
such as the street or apartment complex where you live, your age
and race. The choice to disclose information to authorities who are
not bound to confidentiality is up to you.
B. Your name will be a matter of public record in court files and in
police reports but this information is confidential and not accessible
to the lay public.
The following is a general but not universally applicable overview of the sequence of a criminal case from arrest to trial.
A. Misdemeanors are all tried initially in the General District Court by a
judge without a jury. Includes:
Bond hearing if required.
First appearance when defendant is advised of right to counsel and
trial date is set.
Trial, usually within a few weeks.
If you are convicted an appeal is available in the Circuit Court if
filed within 10 days after trial.
B. Felonies comprise the more serious criminal offenses and are tried in the
Circuit Court. Either the defendant or the Commonwealth may request a jury
trial. Includes:
Bond hearing, if required, in General District Court.
Initial appearance in the General District Court, when the defendant
is advised of his right to counsel and a date set, usually a few
weeks ahead, for the preliminary hearing.
Preliminary hearing, also in the General District Court. The
prosecution must now present sufficient evidence for the judge to
consider whether the case should be certified to a grand jury.
Grand jury hears evidence and, if so minded, issues an indictment
which states the exact charges on which the defendant will stand
trial.
Immediately after the grand jury proceedings are over, a trial date
is set by the Circuit Court and any request for a jury is made.
Pre-trial motions, if any, will be made and ruled on by the judge.
Trial, usually within four to six months of the indictment.
In conclusion, an accusation of sexual assault should never be falsely brought nor taken lightly. You should always protect your interests by being careful with whom you talk to about the case and by seeking legal assistance early.
Although most sexual assault cases are handled in the criminal system, civil suits for money damages between the victim and the accused may and do occur.
A. Victim vs. Accused.
The victim may sue for physical and/or psychological injury done by the
assault. Damages claimed are medical and other out-of-pocket expenses,
such as lost wages, counseling costs, as well as for pain and
suffering. Such a suit should not be considered as an easier
substitute for a criminal charge. There are many difficulties involved
in bringing such a suit, and it may be as stressful as a criminal
trial.
B. Accused vs. Victim
The accused can sue the victim for slandering his/her reputation;
damages are measured by loss of reputation and damage to career,
business and/or standing in the community.
Often an accused will bring, or threaten to bring, such a suit against
the accuser as soon as an accusation is made. This is typically an
attempt to use the suit preemptively to intimidate the victim into
dropping the charges.
If the accused is acquitted criminally, he/she may sue for the
reputation damages and for malicious prosecution, including costs
incurred in defending the criminal case.
C. In both actions:
Plaintiff's attorney representation is usually on contingent fee basis,
(i.e. the attorney receives a percentage of the judgment, not an hourly
fee). Plaintiff pays all out-of-pocket costs such as court filing
fees, expert witness fees, etc.
Defense attorneys are usually hired and paid on an hourly basis.
A lower standard of proof is applied (preponderance of the evidence as
opposed to beyond a reasonable doubt).
Can be tried by a judge alone or in front of a jury.
Rape shield laws do not apply. Victim's past sexual history can be
used as evidence.
Courts are not very familiar with these types of suits, and may not
deal with them in best way.
The case can result in a verdict awarding money damages to the
plaintiff, or in a verdict for the defendant where no money is awarded.
In the event a suit is brought, a counterclaim by the other party
often occurs.
Civil actions can be useful as an impetus to a creative settlement of
the dispute, such as counseling, as well as to obtain monetary
compensation.