Non-authorisation reasoning formally stated

Regarding cases that were not authorised, reasons were extracted first from formal statements in a report and/or Brief-head. Where these reasons are reported below in specific terms the wording is taken verbatim or as close to verbatim as possible from the case file as cited by police. That is, more elaborate or detailed explanation could not be discovered from file materials made available to PJO researchers. Formally stated reasons were sourced predominantly to the investigator; and recommending and authorizing officers normally indicated no reasons or simply agreed with those cited by the investigator, most often ticking-the-box on the Brief-head.

Formal non-authorisation argument. In contrast to authorisation cases, the decision to not authorise was framed within formal argument giving reasons in 38 (81%) of the total of 47 examined cases that were not taken to Court (see Appendix 13, Grid 1).

Nine cases involved no formal reasoning evident on file (see s. 6.2.2.1). There were seven other cases with a ‘no offence disclosed’ or ‘unsolved’ status (see s. 6.2.2.2).

Table 6.2 presents data on formally stated non-authorisation rationale factors in 13 categories. Two outcomes are distinguished according to whether the victim withdrew a complaint - thus relieving police of the formal decision - or whether the summons was not authorised even if the victim wished to pursue the matter. Notably these two outcomes are not conceptually exclusive since a summons might not be authorised because the victim withdraws a complaint (Appendix 12). Moreover, although police distinguish between ‘complaint withdrawn by the victim’ and ‘no further police action’, this is a conceptually ‘muddy’ distinction that is not utilized in the following analysis. Nor were there any cases found with a ‘charge withdrawn by prosecution’

status except case 26 (see Table 6.1 footnote and s. 6.2.2.3 for this unusual case).

Table 6.2. Non-authorisation factors identified in formal reports by case by outcome

RECOMMENDATION: Attention should be paid to ensuring that all case files include reports of formal reasoning for the non-authorisation decision.

Policing Just Outcomes: Improving the Police Response to Adults Reporting Sexual Assault Final Report.

Case number Insufficient evidence Success unlikely Victim’s word only Victim a poor witness Victim uncooperative victim blameworthy Other victim reasons Accused denial Accused credible Issue of consent unclear Witness contradictive Historical sexual assault Other reasons

Complaint withdrawn by victim

54 x x x

77 x x x x x

78 x

79 x x

81 x

82 x x x x

87 x x x x

88 x x

Summons not authorised

1 x x

2 x x x x x x x x

12 x x x x x x x x

13 x x x x x x x x x x

14 x x x x x

33 x x x x

36 x x

43¹ x x x x x

56 x x x x x x x

57 x x x x x x x x x

58 x x

59 x x x x

60 x

61 x x x x

62 x x x x x x

63 x x x

64 x x x x x

65 x x x x x x x x x

66 x x x x

67 x x x x

68 x x x x x x

69 x x x x x

70 x x x x x

71 x x x x

72 x x x

73 x x x x

74 x x x x x

75 x x

Policing Just Outcomes: Improving the Police Response to Adults Reporting Sexual Assault Final Report.

76 x x x x x

89 x

NOTES: n = 38; 1. Case 43 is listed here under SNA although it was in fact prosecuted at least to a committal hearing, having been formally not authorised beforehand, without clarification on file.

Table 6.2 data show that police referred to ‘insufficient evidence’ in 16 cases (42%) and/or ‘success unlikely’ in ten cases (26%) in their decision-making. Although these two factors appear similar they are separated out in analysis because police cited them separately in formal reports in four cases, indicating different goals of police decision-making, the former being a matter of simply lacking evidence and the latter

suggesting a need to ‘win’ at court. The former was phrased in various terms of insufficient evidence; no sufficient admissible, substantial and/or reliable evidence;

and/or with reference to prosecutorial guidelines (12, 36, 56, 57, 58, 59, 62, 63, 65, 66, 67, 68, 72, 73, 76, 79). The latter was phrased in either terms of no reasonable prospect of conviction (2, 13, 57, 77) or successful prosecution unlikely (61, 62, 65, 69, 74, 76). Police referred to one or both of these two factors in 22 cases (58%). The VCCAV (1991) study found on the basis of police advice that ‘insufficient evidence’

referred to the lack medical evidence, absence of physical injuries to the victim, uncooperative victims and so on as noted earlier.

An AO interviewee explained that generalised wordings such as ‘insufficient evidence’ and ‘complaint withdrawn’ are all that is required for the LEAP database system and the entire investigation folder complete with any evidentiary items is filed in the serious crime management file for future reference. However, where utilized in formal reports that are supposed to provide clear explanations, these generalised terms do not explain the reasoning behind non-authorisation, which has been observed as problematic in the literature (e.g., Fitzgerald, 2006; Gregory & Lees, 1996; Taylor &

Gassner, 2010) and the redress of which has been called for by the VLRC (2004) and Victoria Ombudsman (2006). Frohmann (1997) has argued that such ‘explanations’

conceal unofficial justifications for not going forward with complaints. Clearly

documented reasons are needed to ensure police non-authorisation decision-making is transparent and accountable. From a discourse analysis viewpoint, this is another form of obscure reasoning that has only the symbolic appearance of explaining.

Policing Just Outcomes: Improving the Police Response to Adults Reporting Sexual Assault Final Report.

The significance of victim related factors. Five distinct victim related factors were induced from reading the case file formal reports justifying non-authorisation:

victim’s word only evidence; victim a poor witness; victim uncooperative; victim blameworthy; and other victim related reasons. Only case 60 did not reflect a victim related factor in authorisation. Each of these factors was reflected in terms of a variety of formally stated specific reasons.

Victim’s word only evidence was indicated as a reason in the following terms: no victim evidence (64, 87), no corroboration (12, 13, 43, 57, 68, 70, 71, 73, 76), no physical evidence (12, 14, 77, 81, 82), no DNA evidence (62, 65, 72), no

corroborating medical evidence (2, 12, 13, 56, 76), no forensic evidence (14, 61, 68, 69, 77, 81, 87), no useful forensic evidence since accused admitted and claimed consent (64), no visible injury (57, 75), victim not injured (69, 77), assault not

witnessed (70, 71, 75), CCTV footage erased (65), no (independent) witnesses (2, 13, 14, 54, 61, 69, 74, 81, 87), and absence of security footage (75). As shown in Table 7.2, the victim’s word only was a decision-making factor in 24 of the 38 examined cases (63%). It was also reflected in a total of 50 specific reasons across those 24 cases, showing this as an especially frequent line of reasoning. One notable aspect of these reasons is the appearance of the ‘physical harm rule’’, which can be inferred in many and clearly indicated in the ‘no visible injury/victim not injured’ reasons.

The victim was cited as a poor witness in non-authorisation reasoning in several ways, including: the victim had emotional problems/difficulty in coping with Court pressures (2, 63, 68), victim’s memory appeared scattered (14), victim was unable to recall some events (56), victim’s “clarity and reliability of events is questionable”

(57), victim had no recollection (65), victim was vague (67), victim was inconsistent (56, 66), victim credibility would have been ‘sorely tested’/an issue in Court (12, 13, 57, 59, 67), and VATE statement did not clearly disclose a criminal act (33, 43).The victim as a poor witness was a factor in 13 cases (34%) and cited 17 times in terms of specific reasons.

RECOMMENDATION: Police should avoid using generalised reasoning to justify non-authorisation and instead cite the precise reasons in terms of evidentiary materials lacking in the cases concerned.

Implementing this recommendation is necessary to fulfill the requirements of the relevant recommendations of the VLRC (2004) and Victoria Ombudsman (2006):

ie., to enable decision-making that is consistent and transparent, provide for adequate written explanations to complainants, introduce mechanisms to

systematically analyse all sexual assault Briefs, and allow for regular evaluation of prosecution decision-making.

Policing Just Outcomes: Improving the Police Response to Adults Reporting Sexual Assault Final Report.

Police formally referred to the victim being uncooperative also in several ways: the victim withdrew the complaint (36, 54, 60, 63, 71, 78), reluctance of the victim (36, 68, 82, 87), lack of available evidence without victim’s assistance (57, 79, 82), the victim failed to keep a number of appointments (78), victim was hostile to police at scene and not prepared to provide further assistance (79), the victim refused to complete a statement or to make a statement of no complaint (58), and the victim did not identify crime scene (81). Uncooperative victims were thus also evident in police reasoning in 13 cases (34%), again with some 17 specific citations.

As noted at the front of this section, these and other specific reasons reflect police records as closely as possible to the verbatim written statements by police. Further elaboration is either not possible or adds no substantive detail of explanation. Thus, in respect to the ‘lack of victim assistance’ for example, in case 57 the RO wrote that the victim “refused to participate in medical exam, and therefore no forensic evidence and no witnesses”. In case 79, the RO simply stated “victim not prepared to provide further assistance to police”. In case 82, the RO wrote “lack of available evidence without victim’s assistance”.

Police wrote of the victim as blameworthy in many terms as well, including: the victim reported an earlier indecent assault on herself which she later withdrew (13), the victim was not heard to yell and denied to witnesses that anything took place (14), the victim did not complain to friends at the earliest opportunity (65), the victim’s behaviour was questionable or belied the allegation (12, 31, 64, 66, 70), the victim was intoxicated by alcohol (56, 57, 65, 68), the victim instigated meeting with the accused (1), the victim had ulterior motives for reporting (2), the victim did not see a doctor (12, 62), the victim had sex with another male (2, 43), the victim “did not object to what he was doing and pretended that she was enjoying it” (56)’ and the victim did not physically demonstrate sex was non-consensual (64). Victim blaming was part of the police rationale against authorisation in 14 cases (37%), being mentioned 20 times across those cases.

There was a range of other victim reasons that were not readily categorized as a distinct factor, including: no obvious motive for a false report (13), the victim liked the accused (57), victim did not wish to proceed (63), victim’s complaint was due to pressure from family members (67), the victim was doing year 12 and needed no extra pressure (71), the victim was healing and not expecting to go to court (73), the

victim’s wishes outweigh public interest factors (82), family concerned for victim (who had been admitted to a psychiatric hospital subsequent to the rape) (89), police similarly concerned for the victim’s well-being (89), and victim had a better

understanding of the process and believed investigation would be futile (87).

Additionally, other victim reasons were mentioned in formal non-authorisation decision-making in 10 cases (26%), with a total of 11 reasons.

Policing Just Outcomes: Improving the Police Response to Adults Reporting Sexual Assault Final Report.

Table 6.2 data demonstrate that one or more of the victim related factors were cited in formal non-authorisation argument in all but one of the 38 cases (97%).

Non-authorisation decisions predominantly involved reference to the victim’s word only (63%) and/or one or more negative assessments of the victim, especially in terms of victims being poor witnesses (34%), uncooperative (34%) or blameworthy in some sense (37%). A negative assessment of the victim was evident in the specific reasons cited in 26 cases (68%). The above detailed itemization of police reasoning against authorisation shows partial exceptions to this line of typical reasoning in the ‘other victim factors’ reason set, albeit those also included negative or ambiguous reasoning about victims. In short, the victim was a key focus of non-authorisation decision-making and that focus was heavily oriented to finding fault with the victim rather than looking for ways to support the victim in making and sustaining a complaint. Chapter Eight provides further data and analysis on the management aspects of preparing Briefs as distinct from the reasons which are the focus at this point.

Current findings from the operational police case files are consistent with the

commonly reported findings in the literature that victim’s word only evidence is not a significant driver of police response to sexual assault (e.g., Heenan & Murray, 2006) related as it is to issues of victim credibility and consent (Hopkins & Koss, 2005).

Interview and focus group data collected in 2011 also supported these findings, as did the views of victim/survivors, police and CASA counsellors drawn from the 2010 interviews (ss. 3.3, 4.4 and 5.1 respectively). Investigators cited the easiest Briefs to write are recent with corroborative evidence: “the easiest ones to write, which are the most difficult for the victim, are recent rapes. You know, where you’ve got forensic, medical” (Investigator). AOs/ROs similarly said the easy ones were where there are good, reliable, competent victims (clear memory, articulate, consistent story). As one RO put it: Easy ones are where there is “a clear recollection, it’s truthful, it’s honest, it’s open … nothing in their history that makes you doubt … (and) corroborative evidence and when offender confesses.” Another RO indicated: “There’s evidence of sex. There’s evidence of rough sex. There’s evidence of, you know, scratches and where you’ve got forensic evidence. They’re the easiest ones.”

By contrast, among the most difficult Briefs to write and supervise were those where victims were alcohol/drug affected, intellectually or hearing impaired, suffering mental health problems, and historical cases, since these typically were those where

“the defence will pick holes in that particular person’s credibility” (RO). Policing of sexual assault cases generally is very demanding and complex and is replete with vexed issues such as the need to obtain particularisation of the offence despite the difficulties the victims have with memory and recall due to the trauma itself as well as those cases complicated by the use of alcohol and/or drugs, including spike-drinked events. This difficulty was appropriately highlighted by an officer: “Memory issues (are) very difficult, because you’ve got to think they get to court and they’re in the witness box” (RO). Again, AOs also mentioned these for the same reason. Sometimes

Policing Just Outcomes: Improving the Police Response to Adults Reporting Sexual Assault Final Report.

also “historic because incest and … they’re drawn out or it’s been buried by the family, been dusted off, put over in a little box in the corner and no one talked about it.” (Investigator). “Sex workers can be problematic but that’s only because of pre-conceived ideas that others have of them.” (RO).

The gist of these narratives is illustrated further by these quotations:

Some are fantastic and will just come in and tell you stuff, and others it’s like drawing teeth – pulling teeth. And just keeping appointments. You ring them to ask them a question and you’ve got to chase them four times and others will be fantastic (IO).

slipped into a girl’s drink at a nightclub or whatnot … snapshots. It’s like the shutter of a camera opening and closing … very difficult to – because one, you don’t know whether she’s telling the truth or not because she’s leaving out all this stuff (RO).

And it’s difficult because they can be difficult to deal with. They’ll start making a statement and then decide they don’t want to do the statement anymore and then they’ll come back a week later and say, “No, I want to do it again now,” and then they’ll go away and then they’ll come back again. It can be very difficult. It’s not sitting down normally just trying to get your investigation done. The person’s yes, no, yes, no. “Today I’m too sick.

Tomorrow I can be good.” So they’re the sort that can be difficult and we get quite a number of those (RO).

I know what will happen to them in the witness box in relation to (drug/alcohol use) (AO).

If you say to somebody, “I want you go to court and stand in the witness box and give evidence on your own that’s not going to be backed up with

anything,” that’s a big ask of someone who has been through what they’ve been through (AO).

Well, if a victim doesn’t want to give evidence it’s going to be a bit hard to proceed then. And, and there are a lot of reasons why complaints are withdrawn. We, we do get quite a bit of it (AO).

But both investigators and ROs were reluctant to link the ease or difficulty of writing to whether or not these were also types of Brief that generally could or could not be recommended for authorisation. It is notable also that investigators and AOs/ROs generally emphasised that these were issues not of their making but of judges, juries, defence lawyers, the general public, and victims themselves. That is, although police

Policing Just Outcomes: Improving the Police Response to Adults Reporting Sexual Assault Final Report.

were cognizant of these as decision-making factors they saw them in relation to the perceived likelihood of a prosecution being successful at Court and, indeed, with a view to the impact of Court processes and unsuccessful prosecution upon victims.

“It’s a bit sad for all those people who are so frightened that, you know, you may not have that punch or the rough sex… really sad, because that’s the way the courts look at it.” (RO). “The last thing you want is one on one. Because then, why does the jury believe the victim any more than the offender?” (RO). “Sometimes I agonise over them. Because you think, now do I prosecute them, I’ve seen the results of failed prosecutions and you think, oh, why did I put that person through that?” (AO).

Research evidence from strand one also supported this line of decision thinking by police (see s. 4.4).

However, as one AO pointed out, the majority of sexual offence cases involved ‘word against word or oath against oath’ given the reality of delayed reporting and the general absence of physical evidence. For this officer it was frustrating to deal with an attitude among some police of avoiding recommendations to proceed where there was only the victim’s word against that of the alleged offender:

Oath on oath is common in sex offences and oath against oath evidence is accepted in law so it shouldn’t be a barrier to prosecution or a consideration in police decision making... our job is not to assess what the prosecutor or jury will think or determine. Our job is to investigate a case and weigh up the facts and if it comes down to oath against oath then let the OPP decide... whether [oath against oath] is accepted will be determined by a jury and ought not to be in the remit of police... I see a lot of police who see it [word against word]

as a fatal weakness in a case and therefore a basis for discontinuation of the investigation or not laying charges... but I’ve been doing these cases a long time and I’ve seen many oath against oath lead to convictions and I often have to drive this point home to the [detectives] I’m supervising or whose briefs they want non-authorised... (AO).

Nonetheless, the over-riding theme in relation to Brief preparation was whether or not there was corroboration of the victim’s word, especially where there were perceived victim-related problems of particularization, consent, character, reliability of memory, and credibility and competency ‘in the box’. The outcome of this decision-making approach by police - where corroborative evidence is sought and victim’s word only evidence is avoided as the basis for prosecution - is to not challenge the courts and public to change because police tend to charge and prosecute mainly in stereotypical cases with ideal victims and so embed the problem further (Taylor & Gassner 2010).

It is apparent that Victoria Police efforts consequent to the VLRC (2004) and Ombudsman (2006) recommendations still require robust and transparent change outcomes in respect to victim complaints that stand significantly on the victim’s word.

It is also apparent that there is a genuine challenge in a number of these cases in these

Policing Just Outcomes: Improving the Police Response to Adults Reporting Sexual Assault Final Report.

terms – the question is whether Victoria Police as an organisation is rising to and meeting that challenge.

Accused related factors. Reading of the case files showed accused related factors were also weighed in police non-authorisation decision-making. Three factors were induced in this regard: accused denial, accused credible and issue of consent unclear.

Accused related factors. Reading of the case files showed accused related factors were also weighed in police non-authorisation decision-making. Three factors were induced in this regard: accused denial, accused credible and issue of consent unclear.

In document Policing just outcomes: improving the police response to adults reporting sexual assault (Page 184-200)