July 30th, 2013 is a day I will never forget. That was the day my sister told me a horrible secret. Our uncle had been molesting and raping her for over four years. Eventually he was charged with felony sexual assault, leading him to be sentenced to three years of jail time and ten years of probation. A thrown out confession landed him a plea deal with a much lighter sentence than he would’ve received with a lawful one. The lack of justice my family and I felt that my sister received is what led me to inquire about the process through which prosecutors try sexual assault case. Despite the recent rise in interest and availability of research “relatively little is known about the legal processing of sexual assault cases” (Du Mont and Myhr 1110). Prosecutors look at a wide range of characteristics when deciding if they will charge an assailant and take the case to court. As simple and straightforward as it seems for prosecutors to decide which cases they will try to court, it is actually quite complex. There are mainly two sets of variables that drive the prosecutor’s decisions, as defined by Kingsworth, “legally relevant variables such as crime severity, the offender’s prior record, and evidentiary considerations (witnesses, material evidence, etc.)” and “extralegal variables such as race, class, and gender”. That leaves the prosecutor the liberty to choose which case they will have a better chance at winning and those are the cases they try in court. I’m going to do the thing now where I write extra words in white just to get my word count up bc I’m sad and I need these extra words and I don’t care. There’s not a shred of remorse or g
Legally Relevant Variables
The prosecution has an extremely important job when it comes to the criminal justice system. They hold much of the power in their hands when it comes to what course of action to take with each case. As noted by Cassia Spohn, “The prosecutor decides who will be charged, what charge will be filed, who will be offered a plea bargain, and the type of bargain that will be offered.” Prosecutors have the unmonitored discretionary power to decide whether or not they will take action for any case they come across. Due[GR1] to the extensive amount of power in their hands, the prosecution must adapt a system to sort through the cases and decide which they will take on. However, there is no state mandated or federal oversight of these processes and no rulings to dictate how prosecutors must decide which cases to try. This leaves the deciding to the prosecution and allows them to choose which variables in any given case would equate better outcomes and higher success rates. [GR2]
The prosecution comes across a multitude of documents and files while dealing with any sexual assault cases. Due to the discreet and private nature of sexual assault crimes it is difficult to find many of the documents that prosecutor’s deal with on a regular basis. There are some that are standard and not as private as other aspects. These documents include incident reports, arrest affidavits, and closeout memorandum. Incident reports are just what they seem to be, a report that goes over what occurred and holds much of the details of the case. Arrest affidavits are filled out by the police and highlight the circumstances and facts about the arrest that took place. As for closeout memorandums, they are used to briefly describes the investigation of the matter and the outcome. These are just a few of the documents prosecutors use to learn the case and get insight they will use to decide if they will try a case.
Prosecutors look at the crime’s severity to decide if they will charge to offender and take the case to trial. Many factors go into this, including what weapons were used, how injured the victim was left, perhaps the age of the victim, etc. According to Du Mont, “[r]esearchers have found that cases involving weapons, or entailing injuries, are less likely to be screened out of the system at key decision-making points.” Basically, the more severe and heinous the crime, the more likely the offender’s case will get moved to trial. This gets the prosecutors one step closer to a conviction. Ultimately, that’s all the prosecutors are looking for-a case that will end in a conviction and a win for the state.
Among the variables that prosecutors use to choose which case they will try is the offender’s prior record. They look to see whether or not it is the assailants first offense or if he has offended again. In the case of its relevance, the offender’s prior record is one variable that has a stronger correlation to whether or not an assailant is charged. It also shows the prosecutor the likelihood of the assailant offending again. Which in turn gives the prosecutor a way to show a jury the assailant is likely to offend again. That also gives the prosecutor a higher chance of convicting the offender. This gives them all the more reason to look at an offender’s record when deciding to charge an assailant and try their case in court. As Spohn states, “When the victim and the suspect were strangers, prosecution was more likely if the suspect had a prior felony record.” In this case, a prior offense raises the likelihood of being charged if the victim and assailant were strangers. Which leaves the notion that “suspects with prior criminal records will be more likely to be charged” (Holleran 668).
It seems quite straightforward to decide whether or not to charge an assailant if it is not their first offense. However, not all variables that prosecutors use to select cases make as much sense. When it comes to the case’s evidentiary considerations, such as witnesses, material evidence, etc., prosecutors tend to pay closer attention. As Holleran quotes in his paper, “[Kerstetter] found that the strongest predictors of charging in both types of cases [acquaintance and stranger assaults] were evidentiary and instrumental variables”. The most influential indicator for a prosecutor to charge an assailant, in certain cases, is evidentiary variables. Kerstetter found, in his research that evidentiary variables were the strongest predictors for the charging of offenders (Holleran 9).[GR3] In spite of its influence evidentiary considerations are much more problematic than they seem. Prosecutors look at the character and stability of the witness to determine their value in court, and to ensure as little mishaps occur in court as possible. To achieve that they use, a specific genre, complainant filing interviews to weed out any potential trouble in their case, and “[f]or prosecutors, trouble implies an uncooperative complainant-someone who disrupts the routine flow of case processing” (Frohmann 383).
Extralegal Variables
Prosecutors look at more than just the details of each case to decide if they will charge and try it. They also look at what Kingsworth identifies as “extralegal variables”. Extralegal variables involve the individual characteristics of the victim and assailant. These characteristics include race, gender, class, prior relationship, etc. Prosecutors determine whether or not they have a higher probability of convicting an assailant by looking at the extralegal variables. However, those variables do not just apply to the assailant, they also apply to the victim. For example, sexual assaults that occur between “Blacks who assaulted Whites were more likely to be sentenced to prison and received longer terms than Whites who assaulted Whites, or Blacks who assaulted Blacks” (Kingsworth et al. 360). That is just one instance where race, of both the assailant and the victim, play a role in prosecution and conviction. There exist a multitude of situations in which each variable is weighed differently in regards to the prosecutor’s decision to prosecute. It is also more difficult to find concrete data to measure their impact on the prosecutor’s decision because these factors vary vastly on a personal basis. Also it is challenging to test these theories because no prosecutor would openly confess to judging a person based on their race, gender, class, etc., when deciding to charge an assailant and take their case to court.
As far as extralegal variables go, race is a more complex variable. As far as whether race has any bearing on a prosecutor’s decision to try a case, studies conclude that it does not. Rather, race comes into play in the sentencing and conviction of the offenders. There is no direct evidence supporting the notion that prosecutors are more likely to charge a black man than a white man who assaulted a white woman, but the black man is more likely to be convicted and sentenced longer. Just as “Blacks who assaulted Whites were more severely punished than Blacks who assaulted Blacks” (Kingsworth et al. 360-361). Although race itself does not have a direct link to the decision-making process itself, it still has an impact on the outcome of the case for the prosecution.
Race is not the only extralegal variable that factors into a prosecutor’s case. There is also gender that makes an impact on the prosecution’s decisions. There are many circumstances and situations for the prosecution to look at in regards to gender. These situations can include whether the assailant was a male or a female and whether the victim is male or female. Each situation has a different outcome in terms of the prosecutions decision to prosecute the case. It is more likely a prosecutor will charge a man who sexually assaulted a woman rather than if it were a woman who sexually assaulted a man. In that circumstance it is less the prosecution’s bias but rather society which eliminates the possibility of a woman sexually assaulting a man. In turn, that leaves the prosecutor with the hard choice on whether to charge the assailant, in this case a woman, and prosecute to the fullest extent. Despite the fact that a person’s gender should have no bearing on the pursuit of justice, it is inevitable that this occur.
Class is also considered an extralegal variable when it comes to the decision to prosecute a case. As depicted in television shows and the rare news channel, there exists instances in which an assailant of a higher class is given a lot of leeway when it comes to being prosecuted. As seen with race, class does not have a direct link with the decision-making process of prosecutors, but rather it can have an impact on conviction and sentencing. Most notably in recent months, the “Stanford Rapist” Brock Turner was accused of sexually assaulting a twenty-three-year-old peer and found guilty. However, he was released after spending three months in county jail, and given a three-year probation. Many Americans felt as though justice was not served and the only reason he was given such leeway in sentencing was his class standing. The fact he was a Stanford athlete and the product of successful and relatively wealthy parents. It is cases such as those that support the standard of prosecutors using class as a factor when conviction and sentencing occur.
The victim and the assailant’s prior relationship is also an extralegal factor that impacts the prosecution’s decision to charge an assailant and try a case. There are two ways in which the victim and the attacker’s relationship is interpreted and labeled. There are stranger assaults, which occur between a victim and their attacker who have never met before the assault occurred. Then there are acquaintance assaults, which occur between an attacker and a victim who either know each other or have previously met before the assault took place. In the event of a stranger assault, Spohn finds, “prosecutors were more likely to file charges if the victim reported the crime promptly, could identify the suspect, and was willing to prosecute.” As for assaults involving acquaintances “the only significant predictor was the use of a weapon by the suspect” (Spohn 9).
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Problems or Weaknesses
There are many factors that go into the decision-making process for prosecutors of sexual assault crimes. Prosecutors are allotted an abundance of liberties when it comes to deciding whether or not to try a case. This results in assailants not being charged and their cases not taken to trial. As a result of that many victims stray away from contacting police and reporting their assaults. In order to combat this lack of reporting many programs began being implemented in local communities. As Campbell states, “the two most widely implemented community-level interventions are Sexual Assault Nurse Examiner (SANE) Programs and Sexual Assault Response Teams (SARTs).”
SARTs, or Sexual Assault Response Teams, “bring together police officers, detectives, prosecutors, medical personnel, victim advocates, and crisis intervention counselors to promote coordination among stakeholders and improve the community response to rape” (Campbell et al. 142). SARTs were also put in place to help improve prosecution rates amongst adult sexual assaults. Some SARTs use “formalized multidisciplinary meetings”, scheduled regularly, to communicate ideas among stakeholders to identify proper and efficient ways to respond to sexual assault in the community. However, other SARTs use “informal networking” amongst their stakeholders to promote the same idea. Regardless, both informal and formal SART groups use a multitude of activities to achieve their goals of promoting a better community response to rape. They include, but are not limited to:
Multidisciplinary cross-trainings to share expertise and perspectives; protocol and policy development to standardize the desired response to sexual assault; case review to coordinate the response to individual sexual assault cases; and community education about sexual assault and resources for survivors. (Campbell et al. 142)
SARTs combine all of those activities in hopes of improving prosecution rates and making the whole process easier for the victims.
SANEs, or Sexual Assault Nurse Examiners, are made up of nurses with at least forty hours of classroom experience in “evidence collection techniques, use of specialized equipment, chain-of-evidence requirements, expert testimony, injury detection, pregnancy and STI screening, and crisis intervention” (Campbell et al. 142). They’re goals and purposes a fairly similar to that of the SARTs. SANEs cover more of the victim’s side, ensuring care and fair treatment by their local law authorities and prosecutors. Around SANEs there was also a rise of other formal task teams such as, “Sexual Assault Task Force (SATF) or Sexual Assault Interagency Councils (SAIC),” which “…coordinate responses of the medical system, criminal justice system, and victim advocacy organizations to sexual assault victims” (Cole 361).
All in all, prosecutors use a multitude of factors, or variables, to distinguish which cases they will charge and try in court and which they will not. The two subsets if variables, legally relevant and extralegal, both have a fair amount of research and more is being done as we speak. Programs like the SANEs and the SARTs are products of that research and implemented in local communities and “there are at least 500 such programs in existence in the United States” (Campbell et al. 142). As a study by RAINN found, out of every 1000 rapes 344 are reported and sixty-three reports lead to arrest. Out of those sixty-three reports, thirteen get referred to prosecutors and seven get felony convictions. As one can see there are many things that are wrong in the sexual assault crime ring, it doesn’t just begin and end with prosecutors. However, prosecutors do make up a large portion of that ring, having a numerous amount of weight put on their shoulders to decide which cases to try. The problems that have arisen in the prosecution of sexual assault crimes will not change overnight. Programs like SANEs and SARTs are just a start in trying to fix what is wrong with the sexual assault justice system currently. There are more interventions needed across the country to raise awareness of sexual assaults and to inform the nation about the processes used when dealing with those crimes. Overall more awareness and knowledge is needed to promote a better community response to these sexual assault crimes. Amongst those things a wider societal acceptance and fair judgement of victims is needed. The decision-making process of prosecutors cannot be fine-tuned unless victims feel comfortable reporting their assaults. Prosecutors have a heavy burden on them to select these cases and their process is being researched to try and improve their rates and the amount of cases they try.
Sexual assault is a serious crime that affects a wide population of people. Not everyone is or will be directly affected by sexual assault or know someone who has. Unfortunately, I have the experience of one of my family member being a victim of assault. This lead me to an inquiry about the community of lawyers who prosecute sexual assault crimes. The prosecution of the crimes does not have a high turnout and that is an issue that affects all of us. Any victim of sexual assault deserves justices and deserves to see their attacker, or attackers, prosecuted. Community initiatives and groups, such as SARTs and SANEs, have started the effort to bring awareness and support to their local communities. These efforts also focus their attention on improving prosecution rates, in hopes of bettering the system, helping victims feel comfortable reporting their crimes, and making the community safer by putting away sexual attackers. This goal is one that is slowly spreading across the nation and continues to nurture growth in awareness and programs.
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