This “brief” discusses the considerations that should be examined by prosecutors when deciding whether to use next-level measures to compel victim testimony in sexual assault cases.
The brief advises that a victim of sexual violence who refuses to testify or who is unwilling to testify should not be considered “uncooperative.” Instead, this individual should be viewed as unable or unwilling to be subjected to what they may perceive as an intrusive, traumatizing, potentially life-changing adverse experience. This brief reviews the discretion that prosecutors have when deciding whether to use compulsive measures to pressure sexual assault victims to testify in their cases. Beyond issuing a subpoena, the decision to resort to a battery of compulsive measures should be made with prudence, an awareness of the potential consequences for the victim, and consideration of possible alternatives. This brief advises that whenever possible, prosecutors should use strategies that will eliminate the need to resort to extreme compulsive measures to force sexual assault victims to testify in court. Alternative suggestions discussed are 1) to provide consistent and comprehensive access to advocacy for victims through criminal justice and community-based victim advocates; 2) discuss with victim advocates and victims themselves strategies to reduce adverse experiences of case processing; 3) offer a plea to a lesser crime that does not require victim participation; 4) use evidence-based prosecution practices that maximize the ability to move forward with the case without victim testimony; and 5) consider whether justice may be served using charges that do not require the victim’s involvement. The concluding section of this brief provides advice on what prosecutors should consider if the previous alternatives do not resolve issues with victim testimony and the prosecutor must determine whether public safety requires the prosecution of this particular offender for this offense regardless of the potential harm to the victim in compelling their testimony.
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