Legal Representation During the Investigative Process
As Module 2 explained, the investigative process of the criminal justice system will require sexual assault victims to provide a detailed narrative to law enforcement and prosecutors about their victimization. Victims may fear engaging with law enforcement and providing a forthcoming account of the sexual assault for many reasons. Some victims may fear that their own actions surrounding the sexual assault could expose them to criminal liability. Example: Victim, 19 years old, attended a party during which she voluntarily ingested alcohol and cocaine. Perpetrator, a fellow party-goer, sexually assaulted the victim later that evening. Victim fears being prosecuted for possession of drugs and/or underage drinking if she reports the crime to law enforcement. In any instance in which a sexual assault victim communicates with their advocate that the victim fears possible criminal culpability, the advocate should recommend that the victim seek legal advice/representation.
Victims who do not have a specific legal concern during the investigative process may still feel more comfortable having legal representation during interviews with law enforcement and/or prosecutors. While victims do not have the same constitutional right to counsel that criminal defendants do (discussed in Module 2), as Module 3 explained, victims have some rights in every jurisdiction that an attorney can argue give victims the right to have legal representation during interviews if they so choose.1
Disclaimers and Footnotes
1. See The National Crime Victim Law Institute, “Crime Victims Have the Right to Retained Counsel’s Presence During Investigative Interviews,” available at https://law.lclark.edu/live/files/17836-victim-law-position-paperright-to-counsel-in which explains the legal basis for victim legal representation during law enforcement interviews.