2.1 Assess Current Practice in Your Jurisdiction39

Current attrition studies have revealed that certain victim, assault, and perpetrator characteristics are associated with case attrition in sexual violence cases – i.e., cases that don’t process through the criminal justice system. This suggests a gap in access to justice exists for many victims of sexual violence. What is the attrition rate in your jurisdiction? What the reasons for attrition in your jurisdiction? And why is this information important in order to improve practices?

The difference between the number of sexual violence cases reported and the number prosecuted reflects individuals who have reported a crime of sexual violence but on whose behalf no justice was sought. Documenting the number of cases that don’t proceed to prosecution is an important measure of an office’s responsiveness. However, this number only tells the “what,” i.e., of the X number of sexual assaults referred to prosecution, Y are prosecuted.

Further insight can be gained by documenting the characteristics of cases that aren’t prosecuted. For instance, by identifying cases in which the victim was voluntarily intoxicated during the sexual violence incident, one can determine how many cases with such victims have progressed through the criminal justice system. This information does not by itself identify why certain types of cases are not commonly prosecuted, but it can provide a foundation for deeper analysis. For example, there may be legitimate problems with available and admissible evidence, or extralegal reasons for declining charges – suggesting a need for enhanced strategies and training.

Obtaining a clear picture of the problem’s scope requires us to assess, regularly and often, the incidence of sexual assault and the quality of the criminal justice response. Accurately calculating the prevalence of sexual assault in one’s jurisdiction, as well as the rate and causes of attrition (“the rate at which cases are lost or dropped”40), is a huge undertaking — one that requires partnership with researchers. Although the results of such an undertaking would be invaluable, few jurisdictions have the resources to commit to an evaluation this comprehensive.41 It is very possible, however, for any jurisdiction to obtain rough estimates for purposes of developing a very general, big-picture view of the extent and sources of attrition. A short summary of the process by which prosecutors can capture case attrition is provided below; a more comprehensive explanation can be found in RSVP Volume II, Chapter III.


2.1-A. What Does Attrition Look Like in Your Jurisdiction?

Capture prevalence.

  • Determine the best sources for data on the incidence of sexual assault.
    • These may include data from law enforcement, victim advocacy organizations, medical providers, child welfare agencies, schools, mental/behavioral health agencies, and the department of corrections.
    • Other federal and state agencies can also be a source for this critical data.42
  • Data might include reports to police, calls to crisis hotlines, hospital visits for medical forensic exams, etc. Another way to collect relevant data may be to partner with local or state sexual assault coalitions to conduct victim surveys. See RSVP Volume II, Chapter X for additional information on obtaining feedback and outcome information from victims.
  • Estimate the number of sexual assaults occurring within the jurisdiction.43

Capture reports to law enforcement.

  • Identify the total number of incidents reported to law enforcement (to compare to the total number of incidents estimated in the previous step assessing prevalence).

Capture reports referred for prosecution.

  • What is the total number of cases referred by law enforcement agencies to the prosecutor’s office? Does the prosecutor’s office have access to the total number of reports or only those that are referred?

Identify the existing gaps in reporting and referring cases for prosecution.

  • Once the data is collected, the Performance Management tools in RSVP Volume II can be used to identify existing gaps in reporting, referral for prosecution, and prosecution of those cases (including disposition by way of plea). Over time, periodic evaluation will allow for assessments of progress regarding these outcomes.


2.1-B. Identify, Review, and Link Prosecution Policies and Practices to Specific Outcomes

Review existing office policies on responses to sexual assault crimes, from initial reporting through final disposition.

  • Where no written policies exist, capture office practices — even informal, unwritten practices — and map them so they can be reviewed.
  • Does your protocol ensure the prosecutor’s office is notified of every report made to law enforcement in your jurisdiction?
  • Is there a method for tracking each report to ensure that appropriate follow-up investigation, if necessary, is conducted?
  • Develop and implement standardized and periodic reviews of office policies.

Track cases through the criminal justice system.

  • Develop a system for case tracking, if one does not already exist.
  • Track cases as they proceed from initial police report, to referral to prosecutor or “exceptional clearance,”44 to the prosecutor’s charging decision, to conclusion of trial or entry of guilty plea, and finally to sentencing.
  • Determine how long it takes for each phase of the case to conclude and identify any roadblocks to timely advancement. Do cases with vulnerable victims (g., persons with disabilities) progress significantly slower or experience greater delays in the justice system?

Review and evaluate charging decisions standards, whether initial charges are made by law enforcement or prosecutors.

  • Is this a written, formal standard (including a standard required by law or court rule) or is it informal/tacitly understood?
  • What is the standard for charging or approving charges? Probable cause, reasonable probability of conviction, or something else?
  • If the standard includes the probability of conviction, how is probability defined?

Analyze impact of office policies and practices on the number of cases referred from law enforcement or other sources.

  • Assess how prosecution practices — even promising ones — may negatively impact other aspects of the office response to sexual violence.
    • For example, does vertical prosecution come at the expense of an office’s ability to charge the maximum number of cases referred to it? Might it lead to inappropriate pleas to reduced charges or non-sex crimes because of inadequate resources to handle case volumes?

Analyze data collected at each stage of the prosecution of sexual assault cases to identify strengths and weaknesses in current practice and determine which procedures and practices will best improve prosecution rates.45 Such data may include:

  • Number of reports to police.
  • Victim participation rates.
    • In collecting data on victim participation rates, note all the criminal justice processes in which the victim engaged before deciding to disengage, to see if the reason(s) for non-participation can be narrowed down.
  • Rate of referral from law enforcement for prosecution.
  • Prosecution attrition data (e., number of referred cases declined for prosecution, administratively dismissed or nolle prossed, etc., as well as the reason).
  • Number of cases pled to sexual-assault-related charges with an agreement for a low end sentencing range.
  • Number of cases pled to non-sexual-assault-related charges.
  • Data collected from victim surveys.

Assess salient case characteristics (g., victim’s use of alcohol/drugs; perpetrator’s use of alcohol/drugs; victim-offender relationship; victim age; victim’s involvement in commercial sexual exploitation; and victim behaviors, such as delayed reporting, that might be misunderstood) to determine how they affect whether a case moves forward. More information on assessing reasons for case attrition can be found in RSVP Vol II, Chapter III.

Review other criminal reports for indicators of sexual assault. Professionals46 responding to domestic violence, child abuse, gang violence, or human trafficking crimes may fail to recognize that victims of those crimes may also have been sexually assaulted.

Conduct candid case evaluations for declined or dismissed cases to learn what factors led to those decisions. Are triable cases being inappropriately weeded out?

Assess the practices of multidisciplinary partners for their impact on the overall investigative and prosecution process. Where appropriate, advocate for partners to improve practices or respectfully challenge practices that adversely affect the quality of cases or victim safety and well-being.


2.1-C. Capture Case Complexity

Despite the fact that conviction rates are an unreliable measure, standing alone, of the success of prosecution responses to sexual assault cases, conviction is not without meaning. Prosecution of any case implies the perpetrator should be convicted. But the complexity of a criminal case has an obvious bearing on the weight that the legal outcome should be given. A high number of acquittals in relatively less-complex cases may be more indicative of the need for improvement in practices than acquittals in highly complex, more challenging cases.

Overreliance on conviction rates creates an incentive to avoid prosecution of complex cases. Prosecutors should not be penalized or blamed for assuming the risk of a lowered conviction rate by advancing the cases that are more challenging to prosecute. Sexual assault cases are often described as the most difficult cases to prosecute — and the greatest source of that difficulty is the enormity and breadth of myth and misunderstanding prosecutors are forced to overcome. This Model proposes a strategy that accounts for case complexity and credits, not penalizes, prosecutors for taking difficult cases to trial.

Common factors that contribute to case complexity include:

  • Intoxicated victims
  • Intoxicated offenders
  • Relationship between offender and victim
  • Multiple offenders
  • Victim is a sexually exploited person
  • Victim has substance abuse problems
  • Lack of physical injury
  • Perceived risk-taking by victim
  • Presence of cognitive disability (in either victim or offender)
  • Immigration status of victim or offender
  • Technology used to facilitate or perpetuate victimization
  • Victim/witness intimidation
  • Victim’s post-assault behavior did not meet common expectations

Not all sexual assault cases are the same, but the factors that contribute to the complexity of a case are common; where one or more of those factors are present, the level of case difficulty increases. This means that legal outcomes for cases with these factors should be assessed accordingly. While overall conviction rates may go down (initially, at least), other measures of success — victim participation, increased reporting rates, victim experience surveys, increased community confidence/trust in the criminal justice system — provide important counterweights. Outcome assessments for each case should thus be linked to their complexity. For more on case complexity, see RSVP Vol. II, Chapter 5.


2.1-D. Routinely Capture, Analyze, and Communicate About the Data

Offices should regularly collect, analyze, and report on performance outcomes that account for case difficulty and encourage continuous improvement. For resources to support self-assessment, see RSVP Vol. II, Chapter II, which describes sources of data for victim-centered performance measurement.47

Assessment should be ongoing, as discussed below under “Share Information and Expertise.” Following each performance report, hold a “How Are We Doing?” meeting with allied professional partners to discuss highlights of the report and what actions or policy changes should be implemented to alleviate apparent problems or concerns. Prosecutors must critically examine their own practices and frankly acknowledge at such meetings any areas requiring improvement. Doing so will encourage similar transparency on the part of allied partners.


2.1-E. Properly Allocate Resources to Address Sexual Violence

First, assess the office’s current allocation of resources — including dedicated, specially trained staff — and identify areas of need. Consider options for obtaining necessary resources, such as borrowing or reassigning staff from other prosecutorial units or seeking some forms of assistance from the private sector.48 Nearby law schools or criminal justice programs might be able to provide interns to assist with some tasks, such as listening and transcribing to jail phone calls or collating data.

Dedicate line items in your budget for appropriate resources, such as victim-witness assistance expenditures; prosecutorial, investigative, clerical, and support staff funding (e.g., paralegal assistance); expert witness expenses;49 victim-witness accommodation and accessibility costs; and software fees for case tracking (which could be as simple as excel or similar spreadsheet software), file maintenance, or surveys.50 Be prepared to argue for sufficient appropriations from your jurisdiction.

Many federal agencies offer grants to sex assault prosecutors, but local foundations are another source of potential funding. These funding opportunities should be identified and aggressively pursued.51 There may be specific programs that support specialized training for prosecutors or salaries for victim-witness personnel. Local partners or national organizations may also be able to provide assistance or services at no cost.


39 See Beichner & Spohn, supra note 13; Anthony V. Salvemini, et al., Integrating Human Factors Engineering and Information Processing Approaches to Facilitate Evaluations in Criminal Justice Technology Research, 39(3) Evaluation Review 308-38 (2015); and AEquitas, Literature Review: Sexual Assault Justice Initiative (2017) (on performance measures, generally).

40 Jean Gregory & Sue Lees, Attrition in Rape and Sexual Assault Cases, 36 The Brit. J. of Criminology 1 (1996).

41 See Grant Programs, Department of Justice, https://www.justice.gov/ovw/grant-programs (last visited June 14, 2017).

42 See, e.g., Data.Gov, https://www.data.gov (last visited May 18, 2017); and Violent Crime, Bureau of Justice Statistics, https://www.bjs.gov/index.cfm?ty=tp&tid=31 (last visited May 18, 2017).

43 The number of assaults known to non-law-enforcement sources still do not reflect the actual prevalence within a jurisdiction, since so many sexual assaults are never reported to any agency. For more information on underreporting of sexual assault, see Rebecca Campbell, et al., Understanding Rape Survivors’ Decisions Not to Seek Help from Formal Social Systems, 34(2) Health Soc. Work 127-36 (May 2009); and Arnold S. Kahn, Calling it Rape: Differences in Experiences of Women Who Do or Do Not Label Their Sexual Assault as Rape, 27 Psychol. Women Q. 233-42 (2003).

44 See, e.g., Patricia A. Frazier & Beth Haney, Sexual Assault Cases in the Legal System: Police, Prosecutor, and Victim Perspectives, 20(6) Law and Human Behavior 607-28 (1996); Regina A. Schuller & Anna Stewart, Police Responses to Sexual Assault Complaints: The Role of Perpetrator/Complainant Intoxication, 24(5) Law and Human Behavior 535-51 (2000); Vivian B. Lord & Gary Rassel, Law Enforcement’s Response to Sexual Assault: A Comparative Study of Nine Counties in North Carolina, 11(1) Women & Criminal Justice 67-88 (2000); Jan Jordan, Beyond Belief? Police, Rape and Women’s Credibility, 4(1) Criminal Justice 29-59 (2004); and Cassia Spohn & Katharine Tellis, Policing and Prosecuting Sexual Assault in Los Angeles City and County: A Collaborative Study in Partnership with the Los Angeles Police Department, the Los Angeles County Sheriff’s Department, and the Los Angeles County District Attorney’s Office, Nat’l Inst. Just. (Feb. 2012), https://www.ncjrs.gov/pdffiles1/nij/grants/237582.pdf.

45 See AEquitas, Literature Review: Sexual Assault Justice Initiative (2017) (on performance measures, generally).

46 Agencies serving specific populations may also be a source for information (e.g., disability service providers).

47 Guidance for basic data analysis and reporting is available through Technical Assistance from the SAJI partners.

48 For example, some jurisdictions use part-time prosecutors engaged in private practice.

49 Note that some experts may not require payment, which may be factored in to office/case strategy and resource allocation.

50 These are helpful to putting together a specialized response; however, if resources are tight, these things can be done individually.

51 Funding opportunities to support specialized prosecutorial units and programs are available from the Office of Violence Against Women, Bureau of Justice Administration, and the Office on Victims of Crime. Where possible, seek opportunities to develop partnerships with community-based organizations to improve access to care through victim services — partnerships may make grantors more open to funding new programs, increasing the likelihood of funding approval.