One of the fundamental principles of Theme Development, (Step 2 of the Reid Nine-Steps of Interrogation), is to shift the blame for the suspect’s criminal behavior to someone or something other than the suspect. For example, during an interrogation of a person who has been embezzling money from a company for several years the investigator may blame the company’s poor controls for allowing the suspect to continue to steal money for an extended period of time. During the interrogation of a suspect who has physically abused a child the investigator may blame the child’s misbehavior and outside life circumstances (a fight with their spouse) for causing the suspect to lose control and take it out on the child. The investigator may suggest that if the child would have heeded the caregivers warning to cease the misbehavior it would not have escalated to the physical abuse. The investigator may also suggest that if the suspect was not stressed from the fight they had with their spouse earlier that day, they may not have lost control.
However, we suggest that investigators avoid blaming the victim in sexual abuse interrogations. Investigators should refrain from directly blaming the victim’s actions or behavior for causing the assault and instead blame the suspect’s perception of the victim’s actions and behavior. Instead of suggesting that the victim dressed in a provocative manner or acted in a provocative manner to seduce the suspect the investigator should suggest the following.
“When you saw her dressed that way you thought it meant she was interested in you. When you saw her act that way you thought she was being flirtatious and was inviting your advances. You misread the signals.”
This misinterpretation of a victim’s behavior is sometimes illustrated by the suspect’s own statements. For example, a sexual offender who was accused of sexually assaulting a 15-year-old girl stated the following during his interview when asked “What do you think should happen to an adult who would sexually touch a minor?”:
“I think they would need some counseling. People tend to jump to conclusions sometimes. They look at one aspect of the situation and assume the person is Chester the Molester, when maybe that’s not the case. Maybe what happened was the person was getting signals from the young lady and you don’t even know what those signals are but somehow they just psychologically affect you.”
The suspect was suggesting that he may have misread the signals. The juvenile was acting in an age-appropriate manner, but the suspect’s distorted perception viewed the behavior as sexually provocative.
The primary defense in a sexual assault case is to attempt to discredit the victim. The defense attorney will aggressively attack the victims’ actions and behavior suggesting that they were a willing actor in the assault or ‘invited’ the assault. Investigators should avoid shifting the blame to the victim in sexual assault cases to avoid contributing to the defense attorneys’ approach in the trial.
This approach was clearly on display in the rape trial of Yee Xiong, a 20-yr-old student of UC Davis who was raped by a fellow student, Lang Her in 2012. It took four years and two rape trials to send Yee Xiong’s attacker to jail. And to get there, Xiong says she felt continuously attacked by the defense attorney. The assailant pled no contest to a felony assault charge after two mistrials because juries could not reach a unanimous verdict. He was sentenced to one year in jail, five years on probation and must register as a sex offender. In a six-page statement the victim stated that she was asked “every imaginable question” that seemed to put blame on her. She stated she was asked “Why were you there in the first place? How much did you have to drink? What were you wearing? Why didn’t you call the cops? Why didn’t you do anything right away?” Victims in two other University rape cases expressed a similar experience: the victim in the Vanderbilt University gang-rape case and the victim in the Stanford University campus rape case. Each of the victims stated in their victim impact statements that they felt blamed and had their character dragged through the mud during the criminal trials.
Law professors, legal advocates for rape victims and defense attorneys agree that these sorts of tactics are part of the unfortunate and emotionally difficult reality of what it is like for a sexual assault survivor to go through the criminal justice system.
“Let’s not mince words, the job of the defense lawyer when a witness’s word is the bulk of the prosecution, the defense’s job is to undermine that witness,” Abbe L. Smith, Director of the Criminal Defense and Prisoner Advocacy Clinic at Georgetown University. (Professor Smith has represented accused rapists.)
Smith argues that prosecutors should do a better job preparing the victims to face questions in court that they may feel as blaming them for their own assault. She further stated the following,
“I would argue that better a vulnerable victim should withstand a withering cross-examination than an innocent person be convicted. “
In the Stanford University case the defense attorney Michael Armstrong asked the victim if she drank a quantity of vodka in a red cup all at once ― “Like, chugged it,” he said, and then “that was a decision you made; right?” The woman replied, “yes” to those questions. Armstrong asked if she’d had blackouts before and whether she did a lot of partying in college. The prosecutors did not object to these questions. In the victim’s statement, which was read at the sentencing hearing she stated,
“After a physical assault, I was assaulted with questions designed to attack me, to say see, her facts don’t line up, she’s out of her mind, she’s practically an alcoholic, she probably wanted to hook up,”
The victim in the Vanderbilt case stated in her impact statement,
“It is also hard for me to push aside all of the attempts by the defendant to misrepresent himself and disparage my character, because I could stand here for hours talking about the impact of all the lies, I’ve had to sit in this courtroom and listen to,” she said. “I remember each and every one of them, and every time it hurt me.”
Victim advocate, Lynn Hecht Schafran of Legal Momentum stated that …” while in theory the defendant is on trial, in a case where the prosecutor has to ‘prove’ the victim did not consent, the burden is on the victim in these cases. There is no way around it.”
One reason this approach is utilized by defense attorney’s is because they have success convincing juries that somehow it was the victim’s fault. Defense attorneys play into the basic human psychology of Attribution, Actor – Observer Bias, and Fundamental Attribution Error.
Attribution is the process of inferring the causes of events or behaviors.
Actor-Observer Bias is how we judge or interpret why something happens to us; we are more likely to blame external forces than our personal characteristics. In psychology, this tendency is known as the actor-observer bias.
Fundamental Attribution Error is when something happens to someone else, we tend to blame personal characteristics rather than external forces.
If something happens to us such as failing a test, getting into a car accident, or getting upset to the point of initiating physical violence – we tend to evaluate our behavior in a way where we attribute our actions to external forces rather than our own personal shortcomings or characteristics. One explanation for this is we have more information about our own situation than we do about others. If we receive a poor grade on a test, we tend to attribute this to the room conditions (it was too hot, there were too many distractions – construction outside etc.) or the teacher included information that was not discussed in class or there were trick questions. We completely ignore the fact that we did not study for the test. If a classmate gets a good grade on the test, we attribute it to ‘luck’ not the fact that they have excellent study habits. However, if you scored well on the test and another student is complaining about their bad grade, we tend to attribute their bad grade on the fact that they did not study.
When it comes to explaining our own behavior, we have more information about ourselves and the situational variables at play. When it comes to explaining other people’s behavior, we only have the information that is readily observable. People are more likely to fall into the Fundamental Attribution Error with a stranger than with people they are close to or know very well. Because you are more familiar with the individual's personal characteristics, you are apt to take their point of view and are more likely to be aware of possible situational causes for their behavior. When it comes to evaluating or judging other people’s behavior we tend to ignore or minimize external factors and attribute causes to internal factors such as personality characteristics. For this reason, we often misinterpret the behavior of others.
I once had a participant in a class repeatedly twisting a pen which made a very obnoxious squeaking sound. As the day progressed, I could see class participants were getting distracted and annoyed by the obnoxious sound the pen was making. I talked to the participant who was making the noise at a break and asked him to stop twisting the pen because the squeaking noise was disrupting the class. He was confused by my request because he could not hear any squeaking. He said he is unable to hear high pitch noises. Everyone assumed he was doing it intentionally and had a negative view of him as a person (he was a jerk). As it turns out he was a very nice person and felt terrible that he was unknowingly disrupting the class.
Even though situational variables are easily observable, we automatically attribute the cause to internal characteristics. This fundamental attribution error is why people often blame other people for things over which they usually have no control. Therefore, people blame innocent victims of crimes suggesting that they failed to protect themselves, they took unnecessary risks, they behaved in a manner that made them vulnerable to the crime or did not take precautionary steps to prevent the crime or may have engaged in behavior that may have provoked their attacker.
Another psychological principal defense attorneys exploit is Hindsight Bias (Roese NJ, Vohs KD. Hindsight bias. Perspectum Psychol Sci. 2012;7(5):411-426. doi:10.1177/1745691612454303).
Hindsight Bias causes people to mistakenly believe that victims should have been able to predict future events and therefore take steps to avoid them. After an event people often say, “I knew that was going to happen.” You often hear this on the golf course after a bad shot. Any golfer can relate to this. Imagine yourself on the tee box with your buddies and there is water on the left side of the fairway. Your buddies, of course, warn “don’t go left Dave or you’ll be in the lake’. You tee off and sure enough you go left into the water. All three of your buddies laugh and say, “I knew you were going to do that”. Did they know? We often say “I knew that was going to happen” after an event. However, prior to the event did we really ‘know’?
Another illustration of hindsight bias was demonstrated by researchers Dorothee Dietrich and Matthew Olson (1993) who asked college students to predict how the U.S. Senate would vote on the confirmation of Supreme Court nominee Clarence Thomas. Prior to the Senate vote, 58% of the participants predicted that he would be confirmed. When students were polled again after Thomas was confirmed, 78% of the participants said that they thought Thomas would be approved.
Research suggests that we tend to see things as more predictable than they really are and have identified the following psychological variables that contribute to this tendency.
Cognitive: People tend to distort or even misremember their earlier predictions about an event. It may be easier to recall information that is consistent with their current knowledge.
Metacognitive: When we can easily understand how or why an event happened, that event can seem like it was easily foreseeable.
Motivational: People like to think of the world as a predictable place. Believing an outcome was "inevitable" can be comforting for some people.
When all three of these factors occur readily in a situation, the hindsight bias is more likely to occur. This is exemplified by a defense attorney suggesting to a jury “what did the victim think was going to happen? Wearing such provocative clothing, excessive drinking and then spending the night at the defendant’s apartment?” Juries may think that the victim should have avoided these behaviors and assess blame to the victim for putting themselves in such a vulnerable position.
If an investigator blames the victim in a sexual assault interrogation the defense will use the investigators statements and attitudes to enhance their argument. However, if the investigator blames the suspect’s perception of the victims’ actions and behavior it becomes the fault of the suspects misinterpreting the information.