“Sexual violence is a deeply traumatic crime that can cause severe damage to survivors’ emotional, spiritual, and psychological well-being.”2 Studies estimate that 1 in 5 women and 1 in 71 men have been raped at some point in their lives.3 Sexual assault victimization is both physically and psychologically harmful. In addition to the physical harm, which studies show 1 in 3 female victims and 1 in 6 male victims experience, victims suffer from an invasion of personal autonomy and dignity.4 In fact, the largest proportion of crime victims suffering from post-traumatic stress disorder are sexual assault survivors.5
1.1 The Need for a Model Response
A Note on Terminology
Across the United States, sex crimes are named and defined differently. The criminal acts range from sexual penetration to sexual contact or exposure, with additional elements ranging from physical force to lack of consent. This document will use the terms rape, sexual assault, and sexual violence interchangeably when referring to any of these crimes. When referring to specific statutorily-defined crimes, the appropriate term (e.g., “rape,” “sexual battery,” “sexual assault,” “sexual misconduct”) will be used.
Like many other crime victims, sexual assault victims experience anxiety about engaging with the criminal justice system and feel a loss of control as they move through it.6 There are, however, many dynamics unique to sexual assault that exacerbate the experience for survivors of these crimes. While we know that the justice system is a critical component of a comprehensive response to sexual violence,7 many cases still go unreported. Two-thirds of sexual assault victims do not report their assault to police for reasons that include fear, embarrassment, loyalty towards the perpetrator, or belief that the criminal justice system cannot or will not help them.8 Many victims do not view the criminal justice system as an appropriate vehicle for resolving their experiences of violence.9
Negative experiences with police or prosecutors discourage many victims from proceeding with the process. Their reports may be viewed with skepticism or outright victim-blaming. Victims may be cross-examined the first time they sit down for an interview, or asked to explain themselves and their actions to the satisfaction of the officer or prosecutor. Why did they go to the attacker’s home? Why did they wait so long to report? Why did they have so much to drink? Any discrepancies in their accounts, even in the wake of deeply traumatic events, may be seized upon and picked apart. They may be accused of not being able to “get their story straight.” Such experiences cause many to feel disbelieved or blamed.
Believing that everyone, including a jury, will have the same reaction, many victims conclude it isn’t worth going through the ordeal of a trial. Similarly, a victim’s criminal conduct, whether committed around the time of their assault or long prior — particularly arrests for prostitution-related crimes — may be used as a basis to dismiss their allegations, causing further mistrust of the system. Such grounds for discounting the victim’s report overlook the fact that perpetrators commonly select victims for their particular vulnerabilities, which they then exploit. To the extent perpetrators intentionally target “imperfect” victims, justice is foreclosed for those victims and the attackers escape accountability, remaining free to victimize others.
On the criminal justice side of the equation, there is an evident disparity between the number of sexual assaults reported and the number actually prosecuted. Regardless of our intentions as prosecutors to do good and despite our belief in the strength of our office’s response to these crimes, the research, both direct10 and indirect,11 reveals that reporting rates,12 arrest rates, prosecution rates,13 and conviction rates for crimes of sexual violence are, overall, staggeringly low.14 In a six-site study, researchers found that between 80 and 89 percent of cases reported to the police were either never referred to the prosecutor’s office or were declined for prosecution.15 Additional research shows that “[o]ne of the most enduring realities of sexual assault is that very few cases result in arrest, prosecution, and conviction of [perpetrators].”16
What causes this gap between reports of sexual assault and actual prosecutions? Is law enforcement failing to investigate or refer cases for prosecution? Are officers “exceptionally clearing” these cases17 based on perceptions about downstream decision-making?18 Are cases being referred for prosecution but then declined based on inadequate or inaccurately analyzed investigations? Are triable cases being declined for some other reason? Answers to these questions can be gleaned from attrition studies,19 reports from untested sexual assault kits,20 investigative reports,21 victim feedback,22 and anecdotal evidence, such as multidisciplinary participant feedback at trainings. Among the likely explanations are uninformed credibility assessments of victims (e.g., those who are intoxicated, substance abusers, or involved in commercial sexual exploitation are unworthy of belief);23 lack of information and training about sexual violence perpetration, victimization, and trauma; agency resource shortages; and concerns over conviction rates.24
Collectively, these factors paint an unacceptable picture of the criminal justice response to sexual assault — a picture that is likely distressing and discouraging for the countless prosecutors dedicated to justice and victims and community safety. Improving the response to sexual violence will not only increase the number of cases investigated and prosecuted, but will encourage more survivors to report their assaults, and reduce the occurrence of these crimes as communities identify more perpetrators.
Our dedication to seeking justice can make it difficult to see and accept our failures. When we hear survivors say that they feel ignored or abandoned by the system, our defenses kick in. We stubbornly insist that survivor perceptions are not accurate — not in our jurisdictions. However, a better response is to hear survivors’ feedback, review the research, acknowledge the fact that our approach to prosecuting sexual violence may not be fully achieving its goal of protecting victims and communities, and revise our strategies accordingly.
AEquitas has partnered with the Justice Management Institute and the Urban Institute in an effort to improve the response of prosecutors to sexual violence committed against adult victims.25 SAJI26 challenged prosecutors to look beyond conviction rates as the primary measure of success or effectiveness and identified other factors that serve as the hallmarks of an effective criminal justice response. In celebrating the culmination of our pilot initiative, we are re-releasing the Model Response to Sexual Violence for Prosecutors (RSVP Model), now rebranded as the RSVP Model Volume I: Prosecution Practices. This Model, along with Volume II on performance management, provides the foundation for implementation, continual evaluation, and refinement of sustainable prosecution practices that will advance the prosecution goals of justice, victim safety, and offender accountability.
RSVP Volume I is a collection of office- and case-level promising practices, identified through the research and experience of AEquitas staff and partnered prosecutors and allied professionals, to produce more positive case outcomes.27 It links specific prosecution practices to outcomes identified as consistent with, and integral to, prosecution goals.
RSVP Volume II provides performance management systems with a tool for offices and individual prosecutors to measure their effectiveness in achieving intended outcomes, and proposes a methodical, routine evaluation of prosecution practices that can be refined as necessary in response to evolving research, emerging issues, or changing conditions in a jurisdiction. Performance management can help us understand the extent to which prosecutors are employing promising practices (e.g., the use of expert testimony to explain victim behavior at trial; litigating motions in limine to exclude irrelevant evidence of the victim’s past sexual conduct), and whether the resulting outcomes (e.g., an increase in percentage of cases charged, increase in victim satisfaction with the criminal justice process) correlate with improved victim safety and offender accountability.
The RSVP Model is intended to serve as a comprehensive tool for making decisions on office policy and individual cases of sexual violence. When implemented, the policies and practices described will allow for all adult sexual assault victims who interact with prosecutors across the United States to experience prosecution practices that are trauma-informed, victim-centered, offender-focused, informed by research, and sustainable over the course of changes in administration and personnel.
2 Bea Hanson, The Importance of Understanding Trauma Informed Care and Self-Care for Victim Service Providers, Office of Violence Against Women: Blog (July 30, 2014), https://www.justice.gov/ovw/blog/importance-understanding-trauma-informed-care-and-self-care-victim-service-providers.
3 See Michele C. Black, et al., National Intimate Partner and Sexual Violence Survey, 2010 Summary Report, Ctr. for Disease Control (Nov. 2011), https://www.cdc.gov/violenceprevention/pdf/nisvs_report2010-a.pdf.
4 See Patricia Tjaden and Nancy Thoennes, Extent, Nature, and Consequences of Rape Victimization: Findings from the National Violence Against Women Survey, Nat’l Inst. Just. (Jan. 2006), https://www.ncjrs.gov/pdffiles1/nij/210346.pdf.
5 See Rebecca Campbell & Sharon Wasco, Understanding Rape and Sexual Assault: 20 Years of Progress and Future Directions, 20(1) J. Interpersonal Violence 127-131 (2005).
6 See The Trauma of Victimization, Nat’l Ctr. for Victims of Crime (2012), https://victimsofcrime.org/help-for-crime-victims/get-help-bulletins-for-crime-victims/trauma-of-victimization (last visited Mar. 29, 2017).
7 See Jennifer Long & Elaine Nugent-Borakove, Beyond Conviction Rates: Measuring Success in Sexual Assault Prosecutions, 12 Strategies (Apr. 2014), available at: https://aequitasresource.org/wp-content/uploads/2018/09/beyond-conviction-rates.pdf; Jennifer Long, et al., Legal Issues in Sexual Assault from a Prosecutor’s Perspective, AEquitas (Glenn Whaley 2015) (unpublished comment). See also Viktoria Kristiansson & Charlene Whitman-Barr, Integrating a Trauma-Informed Response in Violence Against Women and Human Trafficking Prosecutions, 13 Strategies (Feb. 2015), available at https://aequitasresource.org/wp-content/uploads/2018/09/Integrating-A-Trauma-Informed-Response-In-VAW-and-HT-Strategies.pdf.
8 See Amy Cohn, et al., Correlates of Reasons for Not Reporting Rape to Police: Results from a National Telephone Household Probability Sample of Women with Forcible or Drug-or-Alcohol Facilitated/Incapacitated Rape, 28(3) J. Interpersonal Violence 455-73 (2013).
9 See Susan Herman, Parallel Justice for Victims of Crime (Nat’l Ctr. for Victims of Crime 2010).
10 Attrition studies show that many cases are not investigated or are declined for prosecution because they are perceived to be too difficult to prosecute or unlikely to result in a conviction. These perceptions are seldom based on the legal standards for charging, but rather are grounded—consciously or unconsciously—on sexual violence myths such as those about victim credibility, the relationship (if any) between victim and offender, and the age, race, and socioeconomic status of the victim or offender. See generally, Rodney Kingsnorth, et al., Adult Sexual Assault: The Role of Racial/Ethnic Composition in Prosecution and Sentencing, 26(5) J. Crim. Just. 359-71 (1998); Cassia Spohn, Dawn Beichner & Erika Davis-Frenzel, Prosecutorial Justifications for Sexual Assault Case Rejection: Guarding the “Gateway to Justice,” 48(2) Soc. Problems 206-35 (2001); and Sharon Murphy, et al., Pathways To Justice: Movement Of Adult Female Sexual Assault Cases Across The New Hampshire Criminal Justice System, Univ. N.H. (Jan 2012).
11 See generally, Joseph Peterson, et al., Sexual Assault Kit Backlog Study: Final Report, Nat’l Inst. Just. (Mar. 2012); Mark Nelson, Making Sense of DNA Backlogs—Myth Versus Reality, 226 Nat’l Inst. Just. J., 20-25 (May 2010).
12 See Tjaden & Thonnes, supra note 4.
13 See Dawn Beichner & Cassia Spohn, Prosecutorial Charging Decisions in Sexual Assault Cases: Examining the Impact of a Specialized Prosecution Unit, 16 Crim. Just. Pol’y Rev. 461 (2005).
14 See The Criminal Justice System: Statistics, RAINN, https://www.rainn.org/statistics/criminal-justice-system (last visited August 12, 2019).
15 See Rebecca Campbell, et al., The Impact of Sexual Assault Nurse Examiner Programs on Criminal Justice Case Outcomes: A Multisite Replication Study, 20(5) Violence Against Women 607-25 (2014), available at https://vaw.msu.edu/wp-content/uploads/2014/06/Violence-Against-Women-2014-Campbell-607-25.pdf.
16 Cassia Spohn & Katharine Tellis, Policing and Prosecuting Sexual Assault: Inside the Criminal Justice System 101 (2014).
17 Cassia Spohn & Katharine Tellis, The Criminal Justice System’s Response to Sexual Violence, 18(2) Violence Against Women 160-192 (2012).
18 See April Pattavina, Melissa Morabito & Linda Williams, Examining Connections Between the Police and Prosecution in Sexual Assault Case Processing: Does the Use of Exceptional Clearance Facilitate a Downstream Orientation, 11(2) Victims & Offenders (2016). Downstream decision-making occurs where criminal justice professionals decide not to investigate or refer a case for prosecution, based upon their perception that a particular type of case will be declined by prosecutors or by their prejudgment of the merits of the case — that a jury will not convict. See also Melissa Morabito, Linda Williams, & April Pattavina, Decision-Making in Sexual Assault Cases: Replication Research on Sexual Violence Case Attrition in the U.S. (February 2019), available at https://www.ncjrs.gov/pdffiles1/nij/grants/252689.pdf.
19 For review of literature on attrition rates in sexual assault cases, see AEquitas, Literature Review: Sexual Assault Justice Initiative (2017).
20 For review of literature on the backlog of untested sexual assault kits, see AEquitas, Literature Review: Sexual Assault Justice Initiative (2017).
21 See, e.g., T. Christian Miller & Ken Armstrong, An Unbelievable Story of Rape, The Marshall Project & Pro Publica (Dec. 16, 2015), https://www.propublica.org/article/false-rape-accusations-an-unbelievable-story; and Alison Knezevich & Catherine Rentz, Maryland Lawmakers Call for Uniform Police Standards on Rape Kits, Baltimore Sun (Dec. 9, 2016), http://www.baltimoresun.com/news/maryland/politics/bs-md-rape-kits-reaction-20161209-story.html.
22 For review of literature on performance measures, see AEquitas, Literature Review: Sexual Assault Justice Initiative (2017); and Martin Wood, et al., Victim and Witness Satisfaction Survey, Crown Prosecution Service (Sept 11, 2015).
23 Please note that sexually exploited persons may not self-identify as victims of sexual violence. See Colleen Owens, et.al., Identifying Challenges to Improve the Investigation and Prosecution of State and Local Human Trafficking Cases, Urban Institute (Apr. 2012), available at http://www.urban.org/publications/412592.html.
24 See Long & Nugent-Borakove, supra note 7; and Rebecca Campbell, et al., The Detroit Sexual Assault Kit (SAK) Action Research Project (ARP) (2015), https://www.ncjrs.gov/pdffiles1/nij/grants/248680.pdf.
25 While the RSVP Model is written for sexual violence cases involving adult victims, parts of it may be relevant to cases involving child, adolescent, and elder victims..
26 Sexual Assault Justice Initiative: Promoting and Measuring Success in Sexual Assault Prosecutions, AEquitas, https://aequitasresource.org/singleinitiative/?initiativeId=%204 (last visited Apr. 7, 2017). In an effort to address the issues raised by the limited research available, AEquitas convened a Roundtable on Prosecutorial Performance Beyond Conviction Rates in Sexual Assault Cases. Prosecutors and experts representing other allied professions were brought together to discuss the elements of effective prosecution and the limitations of using conviction rates as the sole measure of success in sexual assault cases. See AEquitas, Valuing Prosecutorial Performance Beyond Conviction Rates in Sexual Assault Cases: Summary of a Roundtable Discussion (2014).
27 “Outcomes reflect the long-term change that is envisioned (i.e., what will be different as a result of the activities).” See Long & Nugent-Borakove, supra note 7. Positive case outcomes in sexual violence cases include a broader sense of safety and justice for the victim as well as offender accountability, punishment/retribution, deterrence, rehabilitation, and restoration. See also AEquitas, supra note 26.