A significant majority of sexual assaults are never reported, often because survivors fear police and prosecutors will blame them or unfairly challenge their credibility.124 Of those assaults that are reported, varied research on case processing,125 untested sexual assault kits,126 prosecutorial decision-making,127 and investigative reports128 demonstrates that few cases are accepted for prosecution129 and even fewer proceed to trial.130 Survivor accounts, sadly, mirror the research. It is as painful to hear that survivors and communities believe “that prosecutors just don’t want to take hard cases”131 as it is to face the reality that their perception may be accurate. Regardless of how effectively we think our offices handle sex crimes, data and anecdotal evidence paint a different picture; even the most effective jurisdictions have room for improvement. Failure to bring all of our resources to bear when responding to these devastating crimes is a failure to fulfill our mission to achieve justice.
While the reality may be discouraging, dedicated prosecutors across the country are working to change the narrative. Even with the imperfect and varied laws across our country, there are few insurmountable legal obstacles to justice in most cases. Rather, decisions not to pursue prosecution tend to rest on judgments about the facts of the case or the characteristics of the victim. Research and experience show that the factors most common in sexual violence cases – alcohol use by the victim or perpetrator, a current or former relationship between the victim and perpetrator, and a lack of physical force, physical injury, victim participation in the prosecution, and corroboration – are the same factors most often relied upon when deciding to decline prosecution due to perceived problems bringing the case.
Experienced prosecutors acknowledge that high conviction rates often mask high attrition rates. “If you don’t lose a few cases every now and then — you’re not trying enough cases.”132 We also know that the more frequently we try hard cases, the more successful we become at winning them, and the more educated our communities, judges, and juries become. Rather than defining a prosecutable case from the perspective of the lowest common denominator (the least informed factfinder), we need to ensure that every case decision, from referral for charging through final disposition, is supported by the core principles articulated in Chapter 1 and informed by research and experience.133