Charging Decisions

Overview of the trial technique of charging decisions:
charging decisions

Victim Advocate privilege:(new 2012) MRE 514 : [See Combined Deskbook, Volume II, Tab R, section IX.]

— privilege lost if VA tells TC (or anyone else not a VA)

— does not apply to VWLO; who is agent of TC; avoid disclosure that destroys the privilege

K. Charging decisions : [See Appendix A to this Tab – Analysis of 2012 Art. 120]

— avoid decisions filtered through rape myths, recantation, inconsistency

— actively consider prosecutorial discretion; charge the crime, not the personality of
victim or offender

— what crime? Know “sexual act” and “sexual contact”

– Rape: hardest elements to prove; panel “knows” what rape means, but usually

wrong; necessarily invokes rape myths

– Sexual Assault : less colloquial; easier elements to prove; max. punishment still

high;

– Agg. Sexual Contact – like “rape”; harder to meet elements

– Abusive Sexual Contact – lower max. punishment, but lesser culpability; easier

elements to prove;

–Substantial incapacity : always hard to prove;

-if victim can describe sexual act (contact), charge SA bodily harm; – 2012:
“knew or should have known”; rarely charge “knew;” “Should have known” =
objective standard, eliminates “mistake” defense; “Knew” is subjective;