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RQs for a case of he said/she said

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Author Topic: RQs for a case of he said/she said
Dan Mangan
Member
posted 07-04-2012 08:55 PM Click Here to See the Profile for Dan Mangan Edit/Delete Message
A criminal defense attorney has a "he said/she said" case. He wants to polygraph his client in hopes of using the results to get the charges dropped.

Here's the gist of the story:

An adult male is accused of rubbing the breast of the adult female babysitter of his children, and then reaching under her dress to fondle her vagina.

He says the contact was consensual. She says otherwise.

The dude was arrested and is in jail, awaiting a hearing.

Looking down range... What RQs do you propose be used in this test for the defense attorney's client?

Thanks,
Dan

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Gordon H. Barland
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posted 07-05-2012 12:02 AM Click Here to See the Profile for Gordon H. Barland Edit/Delete Message
Dan,

If both parties have provided a detailed written statement as to their versions of what happened, prior to the test I would compare them looking for differences to formulate questions that get at the primary discrepancy. If only the complainant has provided a statement, I would go over it sentence by sentence with the examinee during the pretest asking if each is correct, and use his replies to guide me.

Just a general principle, as I know no details regarding the context.

Gordon

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Poly761
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posted 07-05-2012 02:53 AM Click Here to See the Profile for Poly761 Click Here to Email Poly761 Edit/Delete Message
After pre-testing this issue with an emphasis on the definition of "consent", I'd consider the following:

1. Did you rub/touch "Susan's" breast without her consent?

2. Did you place you hand(s) under "Susan's" dress without her consent?

3. Did you touch "Susan's" vaginal area without her consent?

At this time the examinee knows touching (as reported) is illegal or he wouldn't be in jail. I would also discuss and define legal vs illegal touching in order to consider asking:

4. On (date) or (day/night in question), did you illegally touch "Susan" in any manner?

END.....

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necotito2
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posted 07-05-2012 10:06 AM Click Here to See the Profile for necotito2 Click Here to Email necotito2 Edit/Delete Message
9.2.5 Free of unnecessary legal terms and jargon.

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Dan Mangan
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posted 07-06-2012 09:11 AM Click Here to See the Profile for Dan Mangan Edit/Delete Message
Thanks to everyone for their input.

The situation begs the question, "What comprises consent (for sexual contact) in an adult relationship?"

When a romantic relationship blossoms, lines are crossed without any forms being filled out, so to speak. At least that's what I still think. I haven't been down that road in a while, as I've been married for some 34 years...


[This message has been edited by Dan Mangan (edited 07-06-2012).]

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Poly761
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posted 07-06-2012 12:54 PM Click Here to See the Profile for Poly761 Click Here to Email Poly761 Edit/Delete Message
Although I may use the word “consent” as structured in my questions, what I learn from the examinee during pretest will determine specific words I end up using. I might also use the following words or term (permission, willingly, with his/her assistance) or others used by the examinee.

I want to ensure the examinee understands, regardless of what word or term is used, we want to verify the victim was a willing participant in the entire incident.

For purposes of the exam, I believe if we can verify there was no objection in any way to the act(s) at any time, there was consent.

END.....

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Dan Mangan
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posted 07-06-2012 01:35 PM Click Here to See the Profile for Dan Mangan Edit/Delete Message
It's still a murky undertaking.

Sometimes the element(s) of sheer surprise, shock, fear (in some cases, abject terror) can override the typical signals one might attribute to "objection"...

The accused is a cop, BTW.

[This message has been edited by Dan Mangan (edited 07-06-2012).]

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Poly761
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posted 07-06-2012 04:54 PM Click Here to See the Profile for Poly761 Click Here to Email Poly761 Edit/Delete Message
I agree there could be many reasons why a victim might not indicate an objection to an action in which they are involved.

In my opinion, your structuring of the exam should be made easier by the fact the examinee is in law enforcement. The average citizen may think something they did was right or wrong. Cops know, without doubt, whether or not something the did was illegal; unlawful. It could be easier to eliminate any grey areas.

END.....

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Ted Todd
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posted 07-06-2012 06:02 PM Click Here to See the Profile for Ted Todd Edit/Delete Message
Dan,

When Dr. Barland speaks, you should listen.

Ted

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rnelson
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posted 07-07-2012 12:00 PM Click Here to See the Profile for rnelson Click Here to Email rnelson Edit/Delete Message
Are we supposing that we can attach polygraph sensors to the body of the examinee and determine the state of mind (consent) of another person (victim)? As far as we know today, we may not even reliably be able test the alleged offender's state of mind. Surely testing the state of mind of the victim is even more complicated.

Keep in mind that victims of sexual assault are not required - according to past legal experience - to protest, or say no, resist, attempt to escape, or try to stop an assault. There are some times in which they simply don't do these things - yet it is abuse.

Talking like a sex therapist here... consensual sexual contact is, by some perspectives, an agreement between two people (usually 2) to use each other. According to some views it is inherently physical and invasive, and therefore a bit inextricably tied to aggression. According to our common values these things would occur in the context of a safe and caring relationship and both persons would benefit or enjoy the situation.

This is the part of the complication, a victim of sexual assault might also chose to allow an offender to use the victim - but the motivation for that choice is not the safe and caring relationship but fear of the alternative choice... greater harm.

Of course, there are some times in which a victim is permitted to make no choice at all.

These different circumstances play themselves out differently in the degree and nature of traumatic impact on the victim. Some victims are harmed more physically. Some are harmed more psychologically. Some recover faster. Some slower. Some have a greater sense of betrayal. Some lesser. Sometimes the sense of betrayal is more fundamental and pervasive and extends itself to contaminate other normal relationships more. Sometimes the sense of betrayal is more encapulsated socially and psychologically. All of this goes for the sense of terror too. And the sense of isolation and damagedness that comes from being victimized sexually (because sexualility - going Freudian now - sits near the core of self-concept and identity from the time people discover the difference between whether they are little boys or little girls).

Bottom line is that victim have intensive treatment needs (sometime physical, sometimes psychological). Part of these needs are to find a safe context to talk out loud about the usual kind of "how could I let this happen" type of questions - or more complex stuff - and find a perspective that allows the victim to proceed normally with life while placing responsibility where it belongs.

I suggest we not try to use the polygraph to read the victim's mind...

It will only aggravate other professions (psycholgy, victim's services, etc.) whose work we want to support, and whose support we want.

Why not just focus on the behavior of the alleged perpetrator?

As always,

.02

r


------------------
"Gentlemen, you can't fight in here. This is the war room."
--(Stanley Kubrick/Peter Sellers - Dr. Strangelove, 1964)


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Poly761
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posted 07-07-2012 01:27 PM Click Here to See the Profile for Poly761 Click Here to Email Poly761 Edit/Delete Message
Ray - With information provided regarding this issue, what do you think of the questions I posted?

Considering your thoughts about an issue such as this, what question(s) would you consider asking?

In my questions 1-3 I'm not asking the examinee to "read the victims mind." In pretest of the examinee I would be attempting to learn if there was anything the victim said or did that would indicate they were not a willing participant.

If, as you suggest, we want to deal only with the actions of the suspect I may ask Question #4 in two parts:

1. On (date) or (day/night in question) DY illegally touch "Susan?"

2. On (date) or (day/night in question) DY illegally touch "Susan" in any manner?

END.....

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rnelson
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posted 07-07-2012 02:20 PM Click Here to See the Profile for rnelson Click Here to Email rnelson Edit/Delete Message
Keep in mind that sex offenders are enormously distorted in their thoughts and perceptions and judgement about issues of consent.

"Illegally" is a matter of fact that must be decided by the court as to whether someone's actions have violated a law.

In this case example the victim is an adult babysitter not an underage babysitter.

Our task is to determine what the alleged perpetrator did or did not do. What the person did or did not do will form the basis for reaction or non-reaction to the polygraph test stimulus questions. That basis will be in the form of emotion (fear of consequences), cognition (memory of events), and behavioral conditioning (the body learns to respond physiologically to cues regarding past actions).

1. Did you physically force or restrain Susan for sexual contact?

2. Did you physically force or threaten to harm Susan to engage in sexual contact with you?

In view of an emerging consistent trend in the published scientific literature, I find it difficult to justify the selection of the 2 question you-phase when we have some reasons to believe that the 3 question zct will give slightly better average accuracy and fewer inconclusive results.

So,

3) Did you physically force or coerce Susan to engage in sexual contact with you?

Now,

Force = real or implied violence (therapists sometimes goof this up).

Restrain = physical restraint using one's body or any physical device or object (e.g., rope, zip ties, handcuffs, locked door, etc.) to prevent a person from leaving or escaping.

Threats = threats of violence, not threats of non-violent coercion (therapists sometimes goof this up too). Threats of violence = violence; this is why threatening someone with a knife or gun is generally not allowed.

Coercion = non-violent means of making someone do something they do not want to do. (example: if you don't give me a blow job I won't drive you home).

Sure "coercion" is a conceptually different behavioral problem than real or implied violence. It is still mean, and I don't care. If the alleged perpetrator did this then he deserves to fail the test and be interrogated until he confesses. Its just the right thing to do. Though there is some distinction between "force" and "coercion" the two are not very distinct to many people.

You'll notice that I am stacking two verbs in each question. You can kick me for that, but my job is to stimulate the issue so the guilty person reacts significantly and fails the test the way he should. It will not harm a truthful person to hear and answer these questions (force/restrain, force/threat, force/coerce). If the alleged perpetrator did not do these things then he will know that and will pass the test.

If the alleged perpetrator reacts significantly to questions about physically force, physically restrain, threaten to harm, or coerce the alleged victim into sexual contact then we need to get to the point of behavioral admissions on what exactly was done.

If the alleged perpetrator did not do these things then this will change the conversation a bit. The alleged victim will have to provide a bit more detail about what was done.

You will also notice that I don't ask about touching the breasts or reaching under the dress. This is because he admits it - stating that it was consensual. Therefore the only remaining issue is how he engaged her compliance at that time.

It is my opinion that describing the admitted/know sexual acts is not necessary and could cause reactions in terms of emotion (because sexual behavior is loaded with a bit of emotion), cognition (because he will remember it if he did it, and he will therefore think about it if we prompt him to do so by describing it), and behavioral conditioning (because he did it).

The issue is how the sexual contact occurred: the choices are: 1) consensual, or 2) forced/coerced.

In other cases the sexual contact is more opportunistic as when the victim is unconscious, or predatory as when the perp drugs the victim or sets up to trap the victim. This does not seem to apply to the present case.

Still other cases involve manipulation and trickery in which the victim does not initially know that the intent fo the behavior is sexual (e.g., wrestling, frottage, or other disguised offenses). Again this does not seem to apply to the present case.

There may be other cases in which someone initiates sexual contact so suddenly that the the victim does not have time to protest, resist or escape. These case may be the blitz-rape type case, or may involve socially invasive sexual touching that occurs without any sexual discussion or relationship context.

Given what we hear and know about sexual relations in the 21st century - with casual sexual contact, in the absence of an ongoing relationship, being somewhat not uncommon - it is possible that sexual contact may occur between persons who are acting sexually towards each other without a relationship and without the usual discussion. There are, of course, lifestyle, and personality (and health) issues attached to these behaviors. Mostly, these are games that people play (to borrow an pop-psych term from the 70s).

Bottom line: if he did not force/restrain/threaten/coerce her, then someone needs to help figure out what this really is.

Polygraph cannot solve every problem, but it can sure help with many of them.

Again,

.02

r

------------------
"Gentlemen, you can't fight in here. This is the war room."
--(Stanley Kubrick/Peter Sellers - Dr. Strangelove, 1964)


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Dan Mangan
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posted 07-07-2012 02:36 PM Click Here to See the Profile for Dan Mangan Edit/Delete Message
quote:
Bottom line: if he did not force/restrain/threaten/coerce her, then someone needs to help figure out what this really is.

What this really is? Ray, I'm not following you.

Even if was over before it started -- meaning, the whole "encounter" literally took just a few seconds -- it's still unprivileged contact.

If the victim trusted the guy, it's plausible that she was so taken aback by his actions that she simply stood still as she tried to process what was happening...

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Bill2E
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posted 07-07-2012 02:55 PM Click Here to See the Profile for Bill2E Click Here to Email Bill2E Edit/Delete Message
I would pretest the suspect and insure he understood the difference between force and mutual consent. Force can be verbal, physical and demeanor. Then using the Backster "You Phase "A"" format I would ask the following questions.

33. Did you force Susan to have sexual contact with you?

35. Regarding Susan, Did you force her to have sexual contact with you?

Sorry Ray, I like to keep it simple, short questions and use actions "Force" in my questions. I don't like "Force or Coerce". We use coercion in most sexual activities and it is not illegal. We can describe force as an illegal act requiring the victim to submit to our sexual advances against her will. To restrain is a form of force which can be discussed in the pretest and explained when the questions are formulated.

Just my .02 worth.

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wpd2688
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posted 07-07-2012 06:28 PM Click Here to See the Profile for wpd2688 Click Here to Email wpd2688 Edit/Delete Message
Is asking a RQ about consent asking the test subject about the victims state of mind? Unless the victim specifically said yes you have permission, how can the suspect really know if he had consent? Maybe a question like "When you touched XXX's breast, did she tell you stop?".

As Ray said, offender perceptions can be very distorted. In his mind, it may be possible he thought he had consent, even if he didn't.

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rnelson
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posted 07-07-2012 07:08 PM Click Here to See the Profile for rnelson Click Here to Email rnelson Edit/Delete Message
Victims are not required say stop, or resist for an offense to occur. What then would it mean if he passed? Also, testing the offender about the victims actions is just about as bad as trying to test the state of mind.

No problem with limiting the questiong to force, using a you phase. Just offering my perspective. Any solution at all will be criticized by someone. Its really a matter of what position do you want to argue from.

Suppose this was a few seconds of kissing and touching before she realized what was happening... the offender will say he thought she wanted it and meant no harm. The victim will say she did not consent. Do we think the polygraph can determine the truth about his belief and intent, and her state of mind?

I will argue that the viable targets are force/threat/restraint/coercion - however you want to pursue them.

.02

R

------------------
"Gentlemen, you can't fight in here. This is the war room."
--(Stanley Kubrick/Peter Sellers - Dr. Strangelove, 1964)

[This message has been edited by rnelson (edited 07-07-2012).]

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Dan Mangan
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posted 07-07-2012 09:39 PM Click Here to See the Profile for Dan Mangan Edit/Delete Message
Let's go back to my original post... Here's a key excerpt:

>>>A criminal defense attorney has a "he said/she said" case. He wants to polygraph his client in hopes of using the results to get the charges dropped. <<<

How does this affect the selection of the RQs?

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Dan Mangan
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posted 07-07-2012 09:40 PM Click Here to See the Profile for Dan Mangan Edit/Delete Message
double post (deleted)

[This message has been edited by Dan Mangan (edited 07-07-2012).]

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Poly761
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posted 07-08-2012 12:11 PM Click Here to See the Profile for Poly761 Click Here to Email Poly761 Edit/Delete Message
I agree a court makes the final determination on whether or not someone' s actions violated a law. But, for polygraph purposes all we are trying to determine is whether or not a person did something that is identified by law as illegal. The courts ultimate decision relative to the issue is not my concern prior to an examination. The examiners concern should be to ensure the examinee understands the act(s) they are accused of committing (as reported by the victim) is identified by law as being illegal.

Are we getting too much into “head tripping,” trying to think about what the victim was thinking to structure the questions? Would anyone disagree, in the majority of cases of this type, the victim generally finds a way to express or indicate to the suspect their unwillingness to cooperate or go along with the suspect's actions?

In this case example there is no indication force, restraint or threats were used to complete the touching (if touching occurred). I will agree; and I would want the examinee to agree, that placing his hands under the dress and on the vaginal or breast area is an act that requires a certain amount of force.

Does the age of the victim do any more than determine the subsequent charge(s) that could be filed?

I'm not suggesting use of a “2 question you-phase,” only that question (#4) I used as one of my initial questions can be broken down into two separate questions for use in whatever examination technique is chosen.

I don't believe the disposition hoped for by an attorney should have any impact on the structure of the relevant questions.

END.....

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Barry C
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posted 07-09-2012 09:19 AM Click Here to See the Profile for Barry C Click Here to Email Barry C Edit/Delete Message
Wasn't it the New Jersey Supreme Court that said sex isn't possible without force (making the issue one of consent)? They already played this game of mental calisthenics, and they made a good point....

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rnelson
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posted 07-09-2012 01:36 PM Click Here to See the Profile for rnelson Click Here to Email rnelson Edit/Delete Message
Barry:
quote:
Wasn't it the New Jersey Supreme Court that said sex isn't possible without force

Interesting, but it doesn't solve much. Some people's values do not allow them to endorse this animalistic view. We should be prepared to encounter a variety of values-based (and sometimes emotionally reactive perspectives) when we deal with matters of sex.

Sex is complicated and confusing stuff (which is probably why kids seem to be better off when they don't start at young ages).

Bottom line: do we think that polygraph test results from the alleged offender can tell us the state of mind of the alleged victim?

If the alleged offender is a law enforcement officer... what do you think an attorney will do with that, regarding the victim's lack of protest or resistance? Answer: the absence of protest and resistance (basis of consent?) will be characterized as an issue of terror because there was no safe place to turn for protection and help...

If we are not careful we will end up attempting to use the polygraph to answer existential questions (what is the nature and meaning of it?), instead of using the polygraph to find the truth about someone's behavior. To me that is something to avoid, because we can win arguments about the polygraph and behavior, but it will be difficult to prevail in arguments about epistemology and existential meaning.

Poly671:

quote:

I agree a court makes the final determination on whether or not someone' s actions violated a law. But, for polygraph purposes all we are trying to determine is whether or not a person did something that is identified by law as illegal. The courts ultimate decision relative to the issue is not my concern prior to an examination. The examiners concern should be to ensure the examinee understands the act(s) they are accused of committing (as reported by the victim) is identified by law as being illegal.

Are we getting too much into “head tripping,” trying to think about what the victim was thinking to structure the questions? Would anyone disagree, in the majority of cases of this type, the victim generally finds a way to express or indicate to the suspect their unwillingness to cooperate or go along with the suspect's actions?

In this case example there is no indication force, restraint or threats were used to complete the touching (if touching occurred). I will agree; and I would want the examinee to agree, that placing his hands under the dress and on the vaginal or breast area is an act that requires a certain amount of force.


All interesting points.

My point is that IF we eventually want someone to be able to do something with the results, then the results need to be able to hold useful meaning to whomever that is. Good results, from good questions, will provide useful interpretable meaning whether the person passes or fails.

"illegally" is a judgement and interpretation (finding of fact) that is to be made by judges and juries. But first, prosecutors are paid to make intelligent decisions about whether the factual evidence and circumstances would seem to be capable of help assisting a judge or jury to achieve a finding of guilt regarding the "illegality" of someone's behavior. Asking polygraph questions about doing someting "illegally" will probably not win friends and influence people (prosecutors) in the way we hope. Try telling theme they do not have to do their job interpretting the legality of someone's behavior because the polygraph already determinated that whatever happened was not illegal. I predict this will not impress them. It is, after all their job, not the polygraph, to evaluate the evidence as whether it appears that someone has done something illegally. I doubt they will appreciate the linguistic subtlety that our use of the word "illegally" would be intended only as a descriptive adjective and not a legal finding of fact.

Questions about "illegally" doing something are not useful to the people we will want to use the results (prosecutors, judges, juries), because it is their job to make this decision. Fine if the person fails, but if the person passes it will probably only make them suspicious of the polygraph.

It seems that what we really want to do is test the victim. Except we cannot. So we are seeking to attach polygraph sensors to the alleged perpetrator to test the victims' state of mind or the victims verbal or non-verbal behavioral indication of non-consent. This will probably not win friends with victim's advocates - for whom we actually want to win there friendship as colleagues in the pursuit of community safety and justice for victims.

So, I do think we are engaged in too much head-tripping when we try to read the victims' mind (state of consent or absence of consent) or test the offender regarding the victim's behavior.

An offense can occur without the victim ever stating "no" or "stop," and without the victim ever resisting. How do you think the victim's advocates are going to support the polygraph profession if we try to assert that no offense occurred because the victim did not say "no" or "stop," or did not try to resist. This will be viewed as the equivalent of blaming the victim for the offense. I suggest we not do that.

So, again if the person fails there is probably no problem. But this is a private test for an attorney. So those results will go nowhere. If the person passes the prosecutor will have to explain to the victim's advocate that the polygraph already established the victim's consent thereby clearing the alleged offending officer of any illegality.

This will only make victim's advocates (typically people with training in social work or mental health) not want to use polygraphs.

Dan:
at one point you asked how this can help avoid criminal charges.

Answer: if the alleged offender did not force/restrain/threaten/coerce (bend, fold, spindle, mutilate) then the prosecutor will be forced to defend a case of misunderstanding, or signals, or buyer's remorse and the victim will have to answer questions about what kind of game was being played. Prosecutors, judges, and juries will not have their professional (role) toes stepped on regarding preemptive judgments about illegality and guilt. Victim's advocates will be faced with the need to find physical evidence of wrongdoing or acknowledge that the situation is a complex matter of social and interpersonal boundaries that may not be correctly remedied with the filing of sexual assault charges.

If you want to characterize this as a "misunderstanding" that should not result in a criminal filing, then it will be important to do this based on the behavior of the alleged offender - thereby illustrating that the alleged victim has experienced or expressed some form of misunderstanding. This stops short of accusing the victim of some form of viscous or vindictive behavior when making the allegation, and stops short of insulting the victim by attempting to read and express the victim's state of mind.

Of course, if the alleged offender cannot pass polygraph questions about his own behavior, then what have you got?

Regardless,

super interesting discussion.

Peace,

r

------------------
"Gentlemen, you can't fight in here. This is the war room."
--(Stanley Kubrick/Peter Sellers - Dr. Strangelove, 1964)


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Dan Mangan
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posted 07-09-2012 08:28 PM Click Here to See the Profile for Dan Mangan Edit/Delete Message
Ray,

Thanks for reminding us of the risks, realities and limitations of the hokey-pokey world of polygraph.

All together now!
Put your left foot in
Your left foot out
Your left foot in
And shake it all about
Do the hokey pokey
And turn yourself around...

It's no wonder we're not taken seriously by anyone but ourselves.

Dan

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clambrecht
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posted 07-09-2012 10:55 PM Click Here to See the Profile for clambrecht Click Here to Email clambrecht Edit/Delete Message
Questions of consent are for the courtroom, not the polygraph suite. I would not be surprised if the future of polygraph evolves past these types of exams. We need to better educate attorneys and detectives on polygraph's limitations and only test for specific behaviors that cannot be rationalized away.

I agree with Ray and others who advocate force/threaten/coerce questions-yet even these may not fit this scenario. If they do not fit then refuse the test.

If he quickly touched her, thinking she would like it,there may be zero force. Gordon was spot on when he suggested a line-by-line review of each person's statement. What else happened according to the victim? Did he hold up a finger over his mouth, begging her to be quiet? Did he shake his head back and forth and mouth the words "Please don't tell" ? Did he do any other behaviors that show remorse-or joy? What was his other hand doing? These are potential targets although not the greatest.

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Poly761
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posted 07-09-2012 11:14 PM Click Here to See the Profile for Poly761 Click Here to Email Poly761 Edit/Delete Message
Again, I believe we're getting too much into our heads relative to the illegality of an issue, taking it too literal and making it more complex than necessary.

For polygraph purposes the examiner advises the examinee the act(s) they are accused of committing is defined by law/code as being illegal. If this is understood by the examinee questions are structured based on the investigation, statements made by the examinee and denials of wrongdoing in the incident under investigation. How else do we structure the best examination possible if we do not use the words that best fit the issue? We only use words on whose definition we agree.

As an examiner, I don't advise the examinee they have violated the law based on the accusation and have committed an illegal act, only that they are accused of involvement in an act(s) identified as illegal.

We are not making the determination of legal vs illegal for a defense attorney or a prosecutor. All we are doing is investigating an issue that has been defined by law as illegal and determining whether or not the examinee was involved in the act(s). If the issue in a criminal investigation wasn't considered illegal we wouldn't be conducting a test!

Ray, not sure I understand what you mean when you refer to “blaming the victim” in paragraph 7. As previously stated, I don't concern myself with the ultimate decision of a court issue prior to examination and while I don't want to do anything to reflect negatively on our profession, I certainly don't worry about how victim's advocates will think about polygraph or the possible loss of their support due to an examination. Our job is to do the best work possible for the examinee with known & reported information. If it is determined a victim didn't state “no” or “stop” or didn't resist, in your post when you state “ I suggest we not do that,” are you suggesting we (do not test) a suspect as it might be viewed as blaming the victim?

END.....

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rnelson
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posted 07-10-2012 11:18 AM Click Here to See the Profile for rnelson Click Here to Email rnelson Edit/Delete Message

Poly671

I think I understand your position. Do the best professional work for the examinee.

I am not suggesting that we do not test the guy. I am suggesting we test the guy in a manner that is defensible, and which will not alienate other professionals whose support we want in the future.

I am suggesting we test the examinee around the examinee's behavior. I am suggesting we select examination target issues that are testable, and not get into the bid'ness of conducting tests that make the profession more vulnerable due to their complex and indefensible assumptions (testing the victim's state of mind, or attempting to use the polygraph to make legalistic findings of fact).

Professionalism is constructed around not only the needs of individual cases, but the needs of the community to be protected from reckless practices, and the needs of the profession to ensure its effectiveness in the future. As a profession we have to think a little bigger than the individual case. What would the if it were not one small case? What would happen if everyone did that?

Simple rules, and standards of practice allow us to proceed easily through the work without having to engage a lot of OCD discussion activity to determine the best approach. The real challenge is to make sure we have correctly formulated rules and standards.

When there are no standards and when the case facts present ambiguities regarding our existing standards, then the discussion is both necessary and unavoidable. In this case I think it is just an interesting discussion example, but I am not completely sure.

When we find it necessary to discuss and cuss our way through some ambiguous situation for which the standards or rules are not completely clear, we will be doing our own profession a big disservice if we neglect to think about the long term impressions we will make on prosecutors, judges, juries, victims advocates, therapists, and other referring professionals (perhaps even defense attorneys) whose work adjoins and abuts our work.

Long term impressions extend to legislators who make decisions about both lawful and unlawful professional activities such as polygraph testing, and funding of polygraph programs. Those legislators will here from professionals such as prosecutors and victims advocates.

This case is typical of defense cases - with a subtle twist. Attorneys in the past would have made the referral with the request something like this: "ask him if she started it," or "ask him if she wanted it." These are obviously problematic. My point is that "ask him if she consented" is actually not much different - it simply uses the legal and clinical word "consent." This word (consent) is actually a form of jargon for which most people may think they have a basic understanding, while issues of consent in reality are rather complex and dicey. With that said I agree that questions of consent are for the courtroom not the polygraph.

The thrust (metaphorically speaking) of this case is this: the alleged offending police officer is not actually the offender. Instead he is the victim - because that mentally deranged alleged victim actually wanted him to kiss and touch her and is now attempting to destroy his future for some unknown reason. She is not actually the victim. Instead, she is the perpetrator. I'm not endorsing this argument - but simply articulating that it is embedded in the subtext of the argument that is being prepared by the attorney. Worse version is this: the freaky lady has a thing for guys in uniform and is now acting out her own sick fantasy to destroy a decent hard-working public servant.

As for not caring about the victims advocates... try to imagine our professional future if we irritate and alienate professionals and professions with whom we want to work.

The real challenge here is to construct a test that addresses the issues without attacking or blaming the victim, without usurping the role of the judge and jury (if the case does go to court), and without compromising the obligation of the prosecutor to protect the community.

Now, we could just do a simply test. Report him DI, get paid, and never have to deal with anyone except the attorney who will bury the confidential test result. But it would be unethical and just plain wrong to give this test without sincerely attempting to make a professional presentation of a test result that will help all the people involved to make responsible professional decisions about what to do with the guy.

We are going to deal with the victim's advocate whether we want to or not - either directly or indirectly. We may never speak to the victim's advocate. But the district attorney will hear from victim's advocates, and will be accused of being hostile or non-supportive towards victims of sexual assault, overly friendly towards police, and soft on crime if this case is not filed.

There is some obvious missing detail in this case: what exactly is he alleged to have done to violate this alleged victim's right to consent to sexual contact? If he force/threatened/restrained/coerced her then it is clear. If not, then what did he do? Did he kiss and touch her in a blitzkrieg assault, before she knew what was happening? Is there something else going on? Buyer's remorse? Flirtatious and sexualized behavior that proceeded further than planned or intended? Is one person simply toying sexually with the other, leading to a sense of betrayal? Is one person Revenge for some unmet expectation of a particular type of relationship?

So there you have it. Do a DI test, get paid, and have no hassles. Or do a real test and try to help the defense attorney help the prosecutor make a decision with the support of victim's advocates to not ruin the person's future - if he is innocent of the alleged assault. Only one of these choices is a correct choice. As a profession, we cannot afford to endorse the practice of doing any test simply to get paid. We do tests because they matter.

quote:
As an examiner, I don't advise the examinee they have violated the law based on the accusation and have committed an illegal act, only that they are accused of involvement in an act(s) identified as illegal.

We are not making the determination of legal vs illegal for a defense attorney or a prosecutor. All we are doing is investigating an issue that has been defined by law as illegal and determining whether or not the examinee was involved in the act(s). If the issue in a criminal investigation wasn't considered illegal we wouldn't be conducting a test!


So we should ask questions like this:

1) Did you engage in the illegal act of kissing and touching her sexually by force?

2) Did you engage in the illegal act of touching her sexually without her consent?

Nah. Same problems. If you did take that to court it would irritate the prosecutor, judge, and jury. Use of the term consent is vulnerable to dismantling by an opposing expert who will point out the unscientific attempt to mind-read the victim's intend while our own professional standards say we cannot test the examinee's intent.

I have learned that we do not know in advance which exams are going to go to court. We should therefore conduct every exam as if it may go to court. And we should be prepared to win any argument in court if necessary. Lets face it, loosing an argument just ain't fun.

If the goal is to help the prosecutor make a no-file (drop charges) decision, with the understanding and support of victim's advocates, or if the goal is to win an argument in court if necessary and help convince the court that this complex situation does not amount to a sexual assault warranting a conviction that will result in the loss of a career and sex offender registration and years of sex offender treatment then the best thing to do is not to insult the professionals whose thoughtful decisions we want to assist.

Of course, if the alleged offender did force/threaten/restrain/coerce/bend/fold/spindle/mutilate - then it will help the attorney to help this person more effectively if the attorney knows this.

If the alleged offender kissed and touched the person so quickly that she did not have time to react (blitz assault), the I would expect that there is other evidence of impulsive behavior, either sexual or non-sexual, in this person's history. Somehow he passes police psychological, background, and screening processes undetected. Given what we know about hazard rates for the onset of sexual assault behaviors among adults (they generally do not wake up one day with the problem suddenly starting in the midst of their normal adult life) I would expect there is other evidence of sexualized problems, relationship problems, sexual behavior problems, or problem sexual behavior that has been observed at some time. Yet he passed police psychological, background and screening processes, and works around other trained observers (law enforcement personnel). Not sayin' it can't happen. I'm just sayin'...

.02

r

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"Gentlemen, you can't fight in here. This is the war room."
--(Stanley Kubrick/Peter Sellers - Dr. Strangelove, 1964)


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Bill2E
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posted 07-10-2012 06:27 PM Click Here to See the Profile for Bill2E Click Here to Email Bill2E Edit/Delete Message
We beat this dead horse to death, with all the details from the alleged victim and alleged perpetrator we should be able to construct an excellent examination IF we do a proper pre-test. We sometimes forget the heart of the examination is the pre-test interview, nothing more or less. Also we need to remember we are not 100% with polygraph. Our percentages increase when we limit the scope of the examination to only one item, not multiple items. Should we need to ask multiple questions about the same incident, we are not on target with our RQ's.

I'm sure some will argue with my post, and I have no problem with argument if it is productive and accomplishes the goal of "What questions should we ask". Poly761, nelson and i posted the questions we might use, others should post questions and then we might become enlightened and be able to come to a conclusion. Step out there and make some assumptions then post questions, lets discuss the questions more in-depth.

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ebvan
Member
posted 07-11-2012 11:08 AM Click Here to See the Profile for ebvan Click Here to Email ebvan Edit/Delete Message
It seems to me that thorough coverage of how the alleged offender determined that the alleged victim was giving her consent to sexual contact might very well develop some more easily testable issues. I have seen liars exaggerate signs of consent in support of their behavior more than once, providing some relevant material.

Of course in this situation, you have to at least look at intent. One should explore whether the behaviors that the suspect viewed as consent is characterized as compliance by the victim. If that is the case, I don't think polygraph is going to help because both parties will have a firm belief of legitimacy regarding their behavior

In this context "consent" is defined as permission, approval or agreement and "compliance" is defined as yielding from a position of physical or psychological weakness/disadvantage, whether or not that disadvantage was perceived or actual.

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