3.3 Capturing Prevalence and Reasons Why Law Enforcement Does Not Refer Cases

This sub-chapter suggests procedures for obtaining the number and percentage of cases not referred to the prosecutor’s office (Measure 5) and the number of these cases categorized by reason for not reporting (Measure 5a).

To help provide reliable, more accurate assessments, Exhibit 3-2 provides a starter list of such reasons. This list of factors is supported by research examining the reasons why police close out cases without referring for prosecution.

A possible concern of law enforcement is reporting the reasons for individual cases. Such information would likely best be treated as for internal use only. For purposes of reporting the information, it is sufficient to tabulate only the total number of cases declined for each reason.

EXHIBIT 3-2
Reasons Why Police Don’t Refer Cases to Prosecutors

Those responsible for entering the information on each case may check all the reasons that apply. Another option is to ask those entering the data to identify the most important reason. (The data can then be tabulated in either or both ways). The following list has been compiled from available research on reasons police close cases without referring them to prosecution.

  1. Victim was unwilling to participate in the investigation/participate in the criminal justice process.27
  1. Victim recanted their report.28
  1. Victim perceived as not credible by police.29 If checking this option, identify the victim characteristics that apply:

a. Victim has behavioral health/mental health issues.30
b. Victim was using drugs or alcohol during the time of the assault.31
c. There was a delay in reporting the sexual violence crime.32
d. Victim is perceived as making a false report.33
e. Victim behavior runs counter to what is perceived to be a “typical” victim’s behavior (g., flat affect, contacting the perpetrator after the assault, return to normal daily routine).34
f. Victim occupation perceived as problematic (g., victim is employed as a stripper or has been a victim of commercial sexual exploitation).35

  1. There was delay in reporting the crime. If checking this option, choose any/all that apply”

a. The delay led to questions about victim credibility.36
b. Due to the time lapse, corroborating physical evidence could not be collected/preserved.37
c. The statute of limitations for the offense has expired.38

  1. Victim was engaging in “risky” behavior at the time of the assault.39

a. Victim was using drugs or alcohol during the time of the assault.40
b. Victim was engaged in criminal behavior during the time of the assault (g., prostitution-related crimes, gang activity).41
c. Victim was engaged in other sexual behavior at the time of the assault.42
d. Victim did not have permanent housing at the time of the assault.43

  1. The suspect has not been identified.44
  1. The suspect is an acquaintance or intimate partner of the victim.45
  1. There is little/no corroborating evidence.46

a. There was no witness to the sexual violence crime.47
b. Victim was unable to give details of the assault.48

  1. The assault was not perceived as serious. If checking this option, choose any/all that apply:

a. The victim was not physically injured or verbally threatened by the alleged perpetrator.49
b. The assault did not involve penetration.50
c. No weapon was used to facilitate the assault.51
d. The victim did not physically resist the assault.52

  1. Police believe/know that the case will be declined by the prosecutor but believe that the case should be considered for prosecution.53

a. If checking this option – please ensure to also check off one of the above options or to explain reasoning in space below.

 

27 See Frazier & Haney, supra note 21, at 611; see also Morabito, supra note 9, at 11; Megan Alderden & Sarah Ullman, Creating a More Complete and Current Picture: Examining Police and Prosecutor Decision-Making When Processing Sexual Assault Cases, 18(5) Violence Against Women 525, 541 (2012); Morabito, Williams, and Pattavina, supra note 1.

28 See Morabito, Williams, and Pattavina, supra note 1.

29 See Morabito, supra note 9, at 4; see also Morabito, Williams, and Pattavina, supra note 1.

30 See Id.

31 See Morabito, supra note 9, at 12; see also Morabito, Williams, and Pattavina, supra note 1; Regina Schuller & Anna Stewart, Police responses to sexual assault complaints; the role of perpetrator/complainant intoxication, 24(5) Law Hum. Behav. 535-51 (2000).

32 See Morabito, Williams, and Pattavina, supra note 1; see also Jan Jordan, Beyond Belief? Police, Rape, and Women’s Credibility, 4(1) Criminology & Crim. Justice 29, 39 (2004).

33 See Sexual Violence Justice Institute, Research Finds Most Sexual Assault Myths to be True: Uncovering Myths and Practices, Influencing Change (2016).

34 See Lisa Frohmann, Discrediting Victims’ Allegations of Sexual Assault: Prosecutorial Accounts of Case Rejections, 38(2) Social Problems 213, 218 (May 1991).

35 See Morabito, Williams, and Pattavina, supra note 1.

36 See Jordan, supra note 32, at 39.

37 See, e.g., Christine Rotenberg, Police-reported sexual assaults in Canada, 2009 to 2014: A statistical profile (Canadian Centre for Justice Statistics, 2017).

38 See End the Backlog, Statute of Limitations, available at http://www.endthebacklog.org/information-survivors-survivors-rights-locating-rape-kit/statute-limitations.

39 See Morabito, supra note 9, at 8; see also Morabito, Williams, and Pattavina, supra note 1; Alderden & Ullman, supra note 27, at 544.

40 See Morabito, supra note 9, at 12.

41 See id; see also Erbe, supra note 9, at 616-17.

42 See Chen Shen, Study: From Attribution and Thought-Process Theory to Rape Shield Laws: The Meanings of Victim’s Appearance in Rape Trials, 5 J.L. & Fam. Stud. 435, 437 (2003).

43 See Lisa Goodman, Katya Fels, and Catherine Glenn. No Safe Place: Sexual Assault in the Lives of Homeless Women (ViolenceAgainstWomen.net, 2006).

44 See Frazier & Haney, supra note 21, at 622.

45 See Alderden & Ullmann, supra note 27, at 544; see also Morabito, Williams, and Pattavina, supra note 1.

46 See Morabito, supra note 9, at 4; see also Morabito, Williams, and Pattavina, supra note 1.

47 See Frazier & Haney, supra note 21, at 624; see also Morabito, supra note 10, at 11.

48 See Morabito, supra note 9, at 15; see also Morabito, Williams and Pattavina, supra note 1.

49 See Frazier & Haney, supra note 21, at 624.

50 See id. at 625.

51 See Morabito, supra note 9, at 11; see also Morabito, Williams, and Pattavina, supra note 1.

52 See Alderden & Ullman, supra note 27, at 542.

53 See Lisa Frohmann, Convictability and Discordant Locales: Reproducing Race, Class, and Gender Ideologies in Prosecutorial Decisionmaking. 31(3) LAW & SOCIETY REV. 531-555 (1997). In a 2014 study by Cassia Spohn and Katherine Tellis, the authors found that detectives would sometimes present cases to the prosecutor prior to making an arrest for a pre-arrest filing decision. CASSIA SPOHN & KATHERINE TELLIS, POLICING AND PROSECUTING SEXUAL ASSAULT: INSIDE THE CRIMINAL JUSTICE SYSTEM (Lynn Reinner Publishers, 2014).