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Legal Concerns

Making a Police Report

With accurate information about the law and support for their feelings, many sexual assault survivors choose to report the crime and participate in a criminal case against the perpetrator. It is not an easy process for survivors, but some
have found it to be helpful in their healing journeys. If you decide to speak to the police, you can have a friend or advocate
present to support you. You may want to write down everything you can remember about the assault and the perpetrator. This will help you when you meet with the police. The police will interview you about what happened. Some questions may be embarrassing. You can ask for an explanation of why the information is needed.

After the police report is made, a detective will be assigned to investigate the crime and submit the case to the prosecuting or city attorney’s office. The decision to prosecute belongs to the prosecutor or city attorney. This decision is based on the evidence that the detective found in his/her investigation. Sometimes cases are not prosecuted. This is usually because it is believed that there is a lack of evidence to prove to a jury (beyond a reasonable doubt) that the defendant is guilty, not because the prosecutor doesn’t believe you.

Your Role in the Criminal Justice Process

It is important to know that you are not pressing charges against the assailant. The State of Montana is pressing charges and you are a witness in
the state’s case. This means that you cannot “drop the charges”. You will be subpoenaed to testify during the criminal process. The prosecuting attorney will present the case on behalf of “the people of the State of Montana” and does
not represent you specifically.

However, as the victim of this crime, you do have special rights. Some of these include: the right to be notified of all court proceedings; the right to talk with the prosecutor about the case; and the right to call the prosecuting attorney’s office to find out which prosecutor is working on the case and attempt to contact him or her.

An advocate from the YWCA or the Crime Victim’s Advocate office can help you with this and other aspects of working through the criminal justice system. Montana has several laws that are designed to make participation in the prosecution of a rapist easier for the victim.
1. Your sexual history cannot be brought up by the defense attorney as evidence in the criminal trial unless there was a previous sexual
relationship between you and the perpetrator, or if there was specific sexual activity that could account for the presence of semen, disease, disfigurement or other injury. In these exceptions the defense must specifically request access to this evidence, and the judge can use his or her discretion in limiting this type of evidence.
2. The prosecutor does not need to show that you resisted.
3. Your testimony does not need to be corroborated by witnesses.
4. You cannot be required to take a polygraph test.
5. The law does not specify the sexes or limit the relationship of the parties involved. It is possible to bring CSC charges against a same-sex
assailant or an assailant to whom you are or have been married to, or involved with in previous consensual sexual activity.

Your Rights as a Survivor

Montana’s Constitution outlines the following as some of the rights that crime victims possess:

  • The right to be treated with fairness and respect for your dignity and privacy throughout
    the criminal justice process.
  • The right to be reasonably protected from the accused throughout the criminal justice
    process.
  • The right to notification of all court proceedings.
  • The right to attend the trial and all other court proceedings that the accused has the
    right to attend.
  • The right to confer with the prosecution.
  • The right to make an impact statement to the court at sentencing.
  • The right to restitution.
  • The right to information about the conviction, sentencing, imprisonment, and release of
    the accused.

What to Expect if You Press Charges

  1. Warrant Request and Authorization: The detective/officer assigned to your case will
    forward a report to the prosecuting attorney’s office. The prosecutor may want to interview you. Because sexual assault is a crime against the citizens of Montana, the prosecutor represents the people of the State of Montana and not you specifically. The prosecutor will make the
    decision about whether or not to prosecute.
  2. If you haven’t heard from the prosecutor, you can call the prosecuting attorney’s office and ask to speak with him or her. If the decision to prosecute is made, there will be an arrest warrant issued or a notice to appear in court for the defendant (perpetrator).
  3. Arraignment in District Court: The district court judge will read the charges and the defendant will be given the opportunity to plead. Bond will be set at this time. Bond is an amount of money that needs to be paid to ensure that the perpetrator will show up for court
    again Sometimes no bond or a very high bond is set so that the perpetrator is forced to stay in jail. If the defendant is released the judge may order conditions of bond.
  4. The prosecuting attorney may request a condition of bond that orders the defendant not to come near you or contact you. You can talk with the prosecutor and havehim/ her request this type of bond condition, usually referred to as a “no contact order.”
  5. The victim may submit an affidavit (sworn statement) asserting acts or threats of physical violence or intimidation by the defendant against the victim or the victim’s immediate family. If you are experiencing harassment, intimidation or threats by the perpetrator, contact the
    local police and notify the prosecutor assigned to the case.
  6. The prosecutor may initiate Bond Revocation proceedings. The local police may arrest the perpetrator if he or she violates a protective condition of bond.
  7. Preliminary Exam: This is a formal hearing in front of the district court judge. The prosecutor will try to prove that a crime took place, that it took place in your county, and the perpetrator is a likely suspect. The prosecutor must prove that there is reasonable cause to believe that the crime took place and the accused committed it for the case to continue.
  8. You will be required to testify. At the beginning of your testimony you will have to look at the perpetrator and identify him for the court. The prosecutor and the attorney for the defendant will ask you questions.
  9. The case may be dismissed at this point or bound over to circuit court for trial. Sometimes the defendant may waive the right to a preliminary exam and the case will go straight to circuit court.
  10. Arraignment in Circuit Court: The charges will be read to the defendant in circuit court. The defendant will be again given the opportunity to plead. If the defendant pleads guilty or no contest, a sentencing date will be set. If the defendant pleads not guilty, a trial date will be set.
  11. Pretrial Conference and Motions: The court may hear motions to determine what evidence will be admitted. The defense attorney and the prosecutor may discuss a plea bargain.
  12. Trial: The prosecutor will try to prove beyond a reasonable doubt that the defendant committed the crime. The victim has the right to be present throughout the entire trial of the defendant, unless the victim is going to be called as a witness. If the victim is called as a witness the court may for good cause, order the victim to be sequestered until the victim first testifies. This means that you will not be able to be in
    courtroom while other people are testifying. You will usually be the first witness to testify. After you testify you will need to leave the courtroom. You are not allowed to hear the rest of the testimony because you are a witness and you may be called back to testify.
  13. As the accused, the defendant has the right to stay in the courtroom throughout the entire trial. The trial could take several days to complete. If the defendant is convicted, a sentencing date will be set.
  14. Sentencing: If the defendant is convicted or pleads guilty or no contest, the probation department will make a sentencing recommendation to the judge. You have the right to submit or make a written or oral impact statement to the probation officer for use in preparing the presentence investigation report.
  15. Written statements turned in before the sentencing date will become part of the file. This means that the defense attorney will have access to it and may share it with the perpetrator. If you so choose, you will have the right to make your oral statement at the time of the
    sentencing proceedings (even if you do not complete a written statement). Your Victim Impact Statement may include but is not limited to the following:

    • nature of any physical, psychological or emotional harm suffered
    • explanation of any economic loss or property damage, opinion of
    • the need for or extent of restitution and a recommendation for the defendant’s
      sentence.
  16. If you are physically or emotionally unable to make the oral impact statement, you may designate any other person 18 years or older, to make the statement on your behalf. The court shall consider the victim’s statement when imposing sentence on the defendant.
  17. Appeal: The defendant has the right to appeal the decision. Upon the request of the victim, the prosecutor shall notify the victim that the defendant and/or prosecutor has filed an appeal and whether the defendant has been ordered released on bail or other recognizance pending the outcome of the appeal. The prosecutor will notify the victim of the time and place of any appellate court proceedings and the result of the appeal.

Crime Victim’s Compensation

As a victim of crime, you may be eligible for monetary assistance. Assistance may include compensation for medical expenses, counseling, rehabilitation, and loss of earnings resulting from an injury that is the direct result of a crime. Claims should be filed within one year;
however, there are exceptions for child victims of sexual abuse and upon petition for good cause. You can get a claim form from your YWCA advocate, the local Prosecuting Attorney, or any State Police Post.

Law enforcement considerations that must be met to receive victim’s compensation:

 

  • The crime must be reported to a law enforcement agency within 48 hours unless there was good cause for the delay. This provision is waived for child victims.
  • The victim must be willing to cooperate with law enforcement agencies.

 

*If you are having difficulties with the paperwork, a YWCA Advocate can provide you with assistance.

Civil Suit

You have the option of filing a civil lawsuit. By doing this, you could possibly be awarded monetary damages. Here are some key points to keep in mind about this option:

  • You will need to hire an attorney.
  • You do not have to pursue criminal charges in order to file a civil lawsuit.
  • You will be the Plaintiff and the perpetrator will be the Defendant.
  • The process can take 2-5 years to complete.
  • If the defendant is found guilty in the criminal trial, the only issue in the civil trial is over
    the type and amount of damages you should receive.
  • If the defendant was found not guilty in a criminal proceeding, or if there was no criminal proceeding, then the plaintiff only needs to prove that the defendant committed wrong by a “preponderance of the evidence”, rather than beyond a “reasonable doubt”.
  • Your past or present sex history may be brought into the trial.

The goal of a civil suit is to compensate the survivor for injury caused by the action of the defendant. If the defendant is found responsible in the civil action, he or she cannot be sentenced to time in prison/jail. An award of damages may be compensatory, punitive, or both. The goal of compensatory damages is to pay for the losses suffered by the victim. The primary purpose of punitive damages is to punish and deter criminals or third parties.

Stalking

It is common for criminals to make threats during the incident (such as: “If you report this, you’re
going to regret it”). Although it feels utterly frightening, these threats are usually empty and used as a means of gaining control. If you were raped by someone that you know, you may be at risk of being stalked or harassed by the perpetrator or by friends or family of the perpetrator.
If the person who raped you was a stranger, the chances of being stalked by him/her are less likely.
Montana’s Anti-Stalking Laws

  • Stalking: This is a crime defined as purposely or knowingly causes another person substantial emotional distress or reasonable apprehension of bodily injury or death by repeatedly following the stalked person; harassing, threatening, or intimidating the stalked person, in person or by mail, electronic communication, or any other action, device, or method. This crime is a misdemeanor punishable by up to one year in prison or up to a $1,000 fine. [MCA 45-5-220]
  • Aggravated Stalking: This is a crime that includes the factors listed above that constitute
    stalking plus one of the following aggravating factors: Violating a Personal Protection Order; violating a bond condition, or having a previous conviction for stalking. This crime is a felony punishable by up to 5 years in prison or up to a $10,000 fine. [MCA 45-5-220]

What to do if you are being stalked:

  • Report harassing/uninvited contact to your local police department. Even if the police cannot take any action at first, reporting the incident will begin to document the history of stalking.
  • Plan for your safety. Tell your co-workers and neighbors what is going on. Get a cell phone if you can. Teach your children how to call 911. Consult the YWCA for safety planning that is specific to your situation.
  • Keep a log of all the harassing incidents. Include the time, place, and description of the incident, as well as any witnesses to the incident.
  • Get a Personal Protection Order. You can fill the paperwork out on your own, have a Crime Victim Advocate assist you, or retain an attorney.

Orders of Protection

A Temporary Order of Protection (TOP) is a court order designed to provide you and your family members with immediate protection from your assailant. In order to get a permanent Order of Protection, you need to have a full court hearing where your assailant has an
opportunity to appear and tell his side. A Temporary Order of Protection will protect you from the time you file for the Permanent Order of Protection until your full court hearing. The court hearing is normally scheduled within 20 days of your applying for a protection order. You may
receive a Temporary Order of Protection without your abuser present.

A Written Order of Protection is a written court order to protect you and your family members from violent and/or harassing behavior by your assailant. It may last for a specific period of time or remain in effect permanently.

An Order of Protection is an order from the court to the stalker that prohibits certain activity. If the stalker violates the order he/she could be sentenced to up to 93 days in jail and/or a $500 fine. A PPO can prohibit the stalker from any or all of the following:

  • Stop hurting you or other family members
  • Stop threatening you or other family members
  • Stop harassing, annoying, contacting you or other family members
  • Stop making threats to hurt you
  • Stay away from your home
  • Stay away from you at work or other place that you frequently visit
  • Prevent the abuser from having any contact with your minor child

Filing for a TOP: The paperwork is available at the Crime Victim’s Advocate Office. The YWCA can help you fill out the form and answer any questions you may have. There is no cost to file a request for a TOP.