After the Webinar: The Investigation & Prosecution of Strangulation Cases. Q&A with the Presenters

Webinar presenters Hilary Weinberg and Kate Loudenslagel answered a number of your questions after their presentation, The Investigation and Prosecution of Strangulation Cases. Here are just a few of their responses.

 

Audience Question: If a victim uses the wrong term like choking or whatever on the stand, are they immediately discredited as a victim? How do you handle that when you are trying to make a distinct difference between the between choking versus strangled and the victim ends up abusing the wrong term. Does it discredit them or is it easily overcomeable? 

Kate Loudenslagel: I find that it is easily overcomeable. I try to use the language that the victim uses when speaking with the victim. The police officer also uses that language when I sit with him. When I bring in my medical expert, I would explain is this something commonly meant, commonly misused? What are we actually talking about? Kind of like use that in my opening or preface that or even in my voir dire questions, try to get some of that out. During my forensic interviewing training, I have learned that it is best to articulate the words back to the victim that they use. They should be able to explain a little bit more or ask them questions. Are you saying that there is something actually in your throat, you felt something on your neck or something else? Try to get them to explain more what they were feeling but not try to get them to use the term strangle or strangulation because that is not their vernacular. You are going to look more like coaching.

Hilary Weinberg:  You don’t want the victim to look like they are doing something wrong. They are just trying to explain what happened to them. For a lot of our victims and especially the ones who want to go forward to prosecution, this could be hands down one of the worst moments of their life. They are on the stand. They are in front of the bunch of strangers and trying to talk about this horrible moment that happened with their intimate partners. I don’t really care what they call it. They are just trying to tell you what happened. You never want to really step in and say, “Oh, do you mean strangle?” You don’t want them to think that they did something wrong or said something wrong just kind of roll with it. The jury will understand when you are talking with a medical professional. But let the person, let them talk about what happened to them because, in the end, I don’t think there’s going to be an argument that just because they used the word choking instead of strangle that this incident never happened.

 

 

Audience Question: Are victims starting to recognize that strangulation is part of assault and recognizing it as the crime that it is? Is there still some kind of a disconnect there? 

Hilary Weinberg: I think it depends on the victim. We have some victims who kind of appreciate the danger that they are in and some that have been in a bad relationship for so long that this is just a Tuesday. It is really hard to answer if they appreciate the danger that they are in. I mean obviously, through this kind of webinar and through other trainings and things that we do. We definitely try to reach out to the community and explain the lethality of this and how dangerous this is and I know our nurses are incredible when they are sitting down with our victims when they are trying to talk to them about how dangerous this is. Something could happen down the road to you. We want to make sure that you are okay. We are definitely trying to educate the public but it just really comes down to the victim.

Kate Loudenslagel: I really think it really comes down to your rapport with your victims. I tend to find that with my victims, when I meet with them before the trial, even when I know that they are going to get on the stand and just say they don’t remember or say they don’t know or try to minimize that when I start to going over with them ahead of time, I would say, “Ok, I want to show you the nurse’s exam, I want to show you the statements you said. I want to show you the photographs now because when you get on the stand, you would say that you’ve seen them.” At that point, when I’m really showing them what happened to them, what they are going through, what strangulation means, that’s when they tend unfortunately emotionally breakdown with me. Whether or not they are getting it to the trial process, I don’t know. I do think that for a lot of them, the point that it gets to strangulation as opposed to just assault is when more victims call for police assistance.

 

Audience Question: There’s been a lot of press coverage or media play about how a victim might have “simply have died” because it was just “sex play gone wrong.” Are you aware or are you seeing this defense come up more and more? How does a prosecutor refute this claim? 

Hilary Weinberg:  We have definitely have seen the, “We were doing this as part of sex, we do this all the time. She likes it when I do that to her.” I think that’s Tuesday for us. Kate and I see that on a fairly regular basis. It’s something that we just have to we throw it out before the jury and just talk about the realistic, do you think that this is really something that was consensual that she wanted (indiscernible 58:05).

Kate Loudenslagel: And some of that might be a hindrance to you being able to go forward with charging. Unfortunately, that sex play or that type of relationship does exist nowadays more frequently or more openly. There could be evidence that this was part of sex play and then at that point, do they consent to that act is something that you’re going to have to independently with your statute and your evidence determine, can you charge them because you know of that facts? It is something that you should be considering. This is the defense that comes out more often. I think it comes out of the backend after the defendant has already spoken with their attorney I find a lot more. Kind of like the purge of my statements. If you can go from the defendant if they are willing to discuss it with the victim, with the other people who might have been around the assault up front to combat that on the back end.

Hilary Weinberg:  It does become a challenge for us because there is some issue of you know that it was all part of sex play. A lot of victims will not get on the stand and talk about what they like to do during sex. That is something that people don’t want to get up in front of a bunch of strangers and start talking about. It is something that winds up challenging about cases and sometimes guiding our charging decisions. Sometimes it sort of comes out of nowhere when we have a very cohesive scenario from the victim that had absolutely nothing to do with that. We sort of get a last-minute dig on that. Sometimes when the victim is willing to say no we don’t do that. They are willing to go forward with that, we may go ahead and take that to the jury. It kind of depends on the situation.

 

 

Audience Question: We have had victims go to the emergency room after strangulation and the hospital refuses to do imaging of the affected areas. Do you have any suggestions on how to get doctors on board for the preservation of injuries and evidence? 

Hilary Weinberg:  That is kind of tough one. The nice thing that we have about our forensic nurses is they will respond to pretty much anywhere. If we have a victim who just wind up in an emergency room, we can actually contact a forensic nurse to go there and they will bring their cameras and all of the equipment that they have and they will do their examination right there in the hospital bed. It’s really hard to make certain doctors do these examinations. That’s kind of one reason why we have our family advocacy centers. Because we don’t want to take victims to a cold, sterile hospital ER, have them waiting there for hours in the hall for some people because that is not a good environment. We have the luxury of having our family advocacy centers. If there are nurses or people who would view those types of examinations thing if they can get involved if you are getting some pushback from the medical staff, it might be a good time to contact those folks having to leave to document everything they can with the cameras and things that they have will certainly help in getting something. Something is better than nothing.

Kate Loudenslagel: Imaging is hard to request because of health insurance issues and it can be cost-prohibitive. But if you can’t get imaging, can the doctor maybe explain why the imaging isn’t necessary. You get that obtained now. Edema or soft tissue swelling might not show up in scans. Things that they can’t get in CT but is visible or palpable to the touch. Can you explain the way why maybe you don’t have imaging with your medical professional? Imaging may be seen to be appropriate but cost-prohibitive or unavailable. Can you have the victim come back a few days later and if there is edema or swelling then they can further document it with a follow-up exam. I’m not sure what the answer is besides educating your medical professional about how imperative it is to get some of this information but they have a different purpose when treating the patient so they might not want to collect all forensic evidence as you might seek it. Maybe that is something that can come out of the trial

 

 

Audience Question: I often see law enforcement writing “no visible injuries” on their reports. Is this okay to note in their reports or what they should write especially since as you’ve said very often in strangulation cases, there aren’t visible injuries? What should they do?

Hilary Weinberg:  I always hated that part. I always hated when I saw that because I don’t know if this patrol officer has enough training where to look. And certainly doesn’t make us thrilled when we see that opinion because when we get to the forensic nurse and the nurse is like the document 16 different injuries that the officer may have missed. Part of that could be it’s a few hours later and things have shown up. Then, we wind up having to explain and argue to a jury these distinctions between what the officer saw and what the victim saw. Sometimes my preference is not really to comment on what they saw but after hearing that she was choked or strangled or whatever language the victim used, I suggest to that because of the lethality of that or because of the danger of that, that should be checked out by the forensic nurse to make sure that she is okay and a medical professional take a look at her just so you know I feel more comfortable as an officer leaving her after this if I know she has some medical attention. Obviously, the officer is going to put in their report what they put on their report, sometimes there are injuries and they do document those and that’s great. Sometimes the injuries just start going to be there at the time the officer starts looking for them and that does cause some issue.

Kate Loudenslagel: I don’t personally mind it. I actually appreciate it because it gives me the opportunity to explain, “Well, officer, you’re out in the middle of the night in a not-well-lit area, you are not doing a medical exam, you’re documenting initial impressions based on x.” I think it gives greater credence to your medical professional when they come in and explain how they document injuries and things like that. I combatted it in trial successfully. It doesn’t bother me at all. It does create a dichotomy that you are going to have to figure out how to address.

 

 

Audience Question: Have you encountered issues in having the nurse in forensic nurse examinations paid for by the victim compensation due to it being a forensic examination that includes evidence documentation? 

Kate Loudenslagel: Ours are not paid by victim compensation. They are paid by a contracted grant that basically has the forensic nurse continue to be an independent employer of the hospital and not in any way associated with the actual prosecution of the case. They remain separate and part of a medical provider. I could see that coming in a trial and a defense attorney would commonly try and attribute this nurse as an offshoot of the police and things like that. We keep our nurse separate for that purpose. I think what you really just want to make sure to explain there to your jury is the primary purpose of the nurse is not evidence-gathering. She has the dual function to aid the victim and having to go and get a separate exam for the purpose of collecting evidence. Her primary purpose is in treatment and medical evaluation of the patient after a traumatic event that could create life-threatening events. I think if you could create that dichotomy as well with that separation of purpose then you should be okay.

Hilary Weinberg:  You always want to have your nurse talk about that that their role as a nurse comes first. It is not about evidence collection. It is about I have a patient and my job is to treat my patient. Harping on that is incredibly important because that is their primary function.

 

 

Audience Question: Have you tried admitting ultraviolet or infrared photos which can reveal bruising that has yet to appear or increase the contrast of existing marks? 

Hilary Weinberg: The short answer is no. We have not tried that yet. Any evidence that we have, any photographs that we have will tell you that there are nurses trying to make documentation of things. they are not professional photographers. Sometimes their photos are better than others but they do an overall pretty good job. We will admit anything that we have. The one thing that we can do is if we have certain cases, we may recommend to our case stations and area detectives, can you go out and contact this victim a couple of days later and see if you can get any follow-up pictures. Like I said, initially, the officer might say, oh I didn’t see any bruising but three days later they look like they’ve really been through the wringer. Our detectives to go to out and get those follow-up shots from a few days later. I have a case where a victim proactively took her own photos and documented them and sent them as they were going on to the detective. We have like a whole progression of what her injuries look like from the time it happened when there was almost nothing there to a day or two later where you have big purple bruises and then about week later it was yellowy – I think everyone in the jury has probably in their lifetime unless they lived in a bubble, everyone has pretty much a bruise in their life. They kind of know the life pattern of a bruise and when the blood gets reabsorbed into the body and so forth. Having those follow-up photos is certainly something that may sub for these any infrared photos or photos that just show bruises and things that just haven’t appeared yet.

 

Click Here to Watch a Recording of The Investigation and Prosecution of Strangulation Cases.

 

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