Most critiques of today’s justice system focus on “overpolicing” and aggressive prosecution tactics that have a disproportional impact on at-risk neighborhoods and people of color.
But the failure to pursue crimes like rape and sexual assault have had an equally harmful impact on minority populations, according to a forthcoming paper in the Richmond University Law Review.
“The under-prosecution of sexual assault is an especially disconcerting problem because victims of these crimes are often marginalized, including racial and other minorities, who have been under-served by a legal system that has failed to provide them with equal protection of law,” writes Michal Buchhandler-Raphael, an assistant professor at Widener University- Commonwealth Law School.
“The problem, however, has received only scant scholarly attention.”
Proposing a new standard for prosecuting sex crimes like rape and sexual assault, Buchhandler-Raphael writes that prosecutors often blame their failure to pursue such cases on the “lack of sufficient evidence” to win a conviction.
In what she describes as a “civil-rights model of prosecution,” she calls for allowing more discretion in the presentation of evidence, and a more equitable—and less adversarial—treatment of victims, even if the case is not likely to be won.
“Criminal prosecution is not a competition, and neither legal nor normative reasons suggest that securing a conviction ought to be the exclusive factor guiding prosecutors’ charging decisions,” Buchhandler-Raphael wrote.
“Prosecutors [who] are inculcated in an office culture that prioritizes winning as an independent goal, gravitate towards avoidance in pursuing cases that they perceive as ‘hard to win,’ preferring to take on the relatively ‘easy’ cases, where conviction is more likely.”
But the juxtaposition of overpolicing and aggressive prosecution of some crimes with the under-prosecution of others represents “‘twin symptoms of a deeper democratic failure of the criminal legal system: its non-responsiveness to the needs of the poor, racial minorities, and otherwise politically vulnerable,” the paper argues.
Refusing to pursue charges in sexual assault cases not only devalues the victim, but “results in preventing victims from testifying, which is in itself a form of silencing,” Buchhandler-Raphael adds.
Cases of rape often go unreported due to many complicating factors regarding the victims and their unique situation. According to the paper, even when cases do get reported, they typically are under-prosecuted in comparison to other crimes.
In 100 cases of forcible rape, five to 20 percent of victims will report the case, four to 5.4 percent of the cases will progress to prosecution, .2 to 5.2 percent will result in a conviction and only .2 to 2.5 percent will lead to incarceration, said the paper.
The lack of prosecution of sex crimes can be largely attributed to the fact that prosecutors will choose not to pursue charges, many times because of non-legal factors or because they don’t think that the victim will win the case.
Scant research on prosecutorial discretion or bias makes it hsard to quantify what accounts for decisions to prosecute or not, and usually paper over the influence of non-legal factors like race, ethnicity, sex or sexual orientation in decision-making.
“Prosecutors have neither a legal duty to publicly disclose their decisions nor an obligation to publicly state their reasons for declination, resulting in lack of transparency and meaningful oversight,” writes Buchhandler-Raphael.
This can be especially problematic considering that women of color are less likely to be believed as credible.
“While the notion of credibility appears at first sight to be gender and race neutral, gendered and racialized norms pervasively shape its content because fact-finders’ decisions regarding whether an individual receives credibility excess or deficit often turns on the race of this individual.”
And if a victim has a criminal history, known drug use or was consuming alcohol the night of the suspected crime studies show that the jury is less likely to convict a defendant for sexual assault, meaning that a prosecutor might not want to pursue the case either.
Buchhandler-Raphael cites as an example a case adjudicated in March of this year by the Minnesota Supreme Court which overturned a rape conviction because the victim was “willingly intoxicated” at the time that the alleged assault took place.
“The prosecutor’s refusal to bring sexual assault charges exemplifies a deprivation of state protection from those who need it the most, given the intersectional dimensions of gender, race, class, social orientation and other factors contributing to victims’ marginalization,” the paper says.
This is also common in the case of acquaintance rape, where the victim and perpetrator know each other beforehand.
The discrediting of witnesses further contributes to the mistrust that disadvantaged communities already have at each level of the criminal justice system, Buchandler-Raphael observes.
“Sexual assault victims are not monolithic,” she writes, nor are their reasons for not “cooperating” with their prosecutor: “Some find the engagement with the legal system to be a re-victimizing experience, which is unresponsive to their unique needs for healing.”
The under-prosecution of sex crimes has caused victims to lose trust in the system as a whole, perceiving it as “racist and unjust, especially to people of color.”
“The failure to adequately prosecute sexual assault poignantly illustrates how the most vulnerable and disempowered members of society, who arguably need the law’s protection the most, are ironically the least protected in our criminal legal system,” writes Buchhandler-Raphael.
“To counterbalance the effects of vigorous prosecution of sexual assault against defendants’ right to equitable treatment, the criminal legal system must envision innovative ways to disentangle criminalization decisions from over-punitive policies.”
This summary was produced by TCR justice reporting intern Emily Riley.