3.4 Capturing Prevalence and Reasons Why Prosecutors Decline Cases

This subchapter suggests procedures for obtaining the number and percentage of cases that were referred to the prosecutor’s office but declined for prosecution (Measure 6) and the number of these cases categorized by reason for not reporting (Measure 6a). To help provide assessments that are more reliable and accurate, Exhibit 3-3 provides a starter list of such reasons. This list of factors is supported by research examining the reasons prosecutors do not charge cases.54

Note that more than one percentage point can be useful. The numerator for each percentage would be the number of cases declined by the office of the prosecutor. Useful denominators include: (a) number of cases referred to the prosecutor’s office (for each reporting period); (b) number of cases reported to the police; and (c) the sum of the number of cases reported to police and the number provided by other victim support organizations.

The reasons for declining individual cases should likely be kept for internal use only. For reporting purposes, it is sufficient to tabulate only the total number of cases declined for each reason.

An analysis of case attrition at the prosecution stage can also take place as part of a larger, systematic case review examining the prosecutor’s office handling of sexual assault using a randomly-selected sample of cases. A sample case review protocol, data tracking spreadsheet, and sample timeline are included in the Appendices.

EXHIBIT 3-3
Reasons Why Prosecutors Decline Cases

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 prosecutors decline cases.

  1. Victim is unwilling to participate in the investigation/criminal justice process.55
  1. Victim recanted their report.
  1. Victim could not be located.56
  1. Victim failed to appear for meetings or hearings.57
  1. Victim perceived as not credible by prosecutors. If checking this option, identify victim characteristics that apply:

a. Victim has behavioral health/mental health issues.58
b. Victim was using drugs or alcohol during the time of the assault.59
c. There were inconsistencies in the victim’s account of the assault.60
d. There was a delay in reporting the crime.61
e. Victim is perceived as making a false report.62
f. Victim behavior runs counter to what is perceived to be a “typical” rape victim’s behavior (g., flat affect, contacting perpetrator after the assault, return to normal daily routine).63

  1. There was a delay in reporting the crime. If checking this option, check any/all that apply:

a. The delay led to questions about victim credibility.64
b. Due to the time lapse, corroborating evidence could not be preserved.65
c. The statute of limitations for the offense has expired.

  1. Incident does not constitute a sexual violence crime under the jurisdiction’s code.66
  1. Evidence for a particular element (g., penetration; force, threat, coercion; capacity) of the offense is missing. Indicate it in the space below.67
  2. Evidence critical to prosecution of sexual violence was suppressed.68
  1. Lack of jurisdiction.
  1. Victim was engaging in “risky” behavior at the time of the assault.69

a. Victim was using drugs or alcohol during the time of the assault.70
b. Victim was engaged in criminal behavior during the time of the assault (g., prostitution-related crimes, gang activity).71
c. Victim was engaged in other sexual behavior at the time of the assault.72
d. Victim did not have permanent housing at the time of the assault.73

  1. Suspect has not been identified.74
  1. Suspect is an acquaintance or intimate partner of the victim.75
  1. There is little/no corroborating evidence.76

a. There was no witness to the sexual violence crime.77
b. Victim was unable to give details of the sexual violence crime.78

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

a. Victim was not physically injured or verbally threatened by alleged perpetrator.79
b. The assault did not involve penetration.80
c. No weapon was used to facilitate the assault.81
d. Victim did not physically resist the assault.82

  1. After investigation or preliminary hearings/motions, victim requested case not proceed.83
  1. The case is perceived as unlikely to result in conviction.84 

a. If checking this option, choose one of the above options or explain below.

 

54 This list contains a large number of reasons for declining cases. Jurisdictions may consider narrowing down this list to fewer factors.

55 See Frazier & Haney, supra note 21, at 611; see also Morabito, supra note 9, at 11; Alderden & Ullman, supra note 27, at 541

56 See Cassia Spohn, Dawn Beichner, & Erika Davis-Frenzel. Prosecutorial Justifications for Sexual Assault Case Rejection: Guarding the “Gateway to Justice,” 48(2) Social Problems 206 (May 2001).

57 See id.

58 See Morabito, supra note 9, at 12.

59 See Morabito, supra note 9, at 12; see also Schuller & Stewart, supra note 31.

60 See Alderden & Ullman, supra note 27, at 541.

61 See Jordan, supra note 32, at 39.

62 See Sexual Violence Justice Institute, supra note 33.

63 See Frohmann, supra note 34, at 218.

64 See Jordan, supra note 32, at 39.

65 See, e.g., Rotenberg, supra note 37.

66 See generally Criminal Justice Standards: Prosecution and Defense Function, Standard 3-3.9. (Am. Bar Ass’n 1993).

67 See What to Expect from the Criminal Justice System (Rape, Abuse, & Incest National Network, 2018).

68 See generally Mapp v. Ohio, 367 U.S. 643 (1991) (holding that evidence obtained in violation of the Constitution may not be used in state law criminal prosecutions).

69 See Morabito, supra note 9, at 8; see also Alderden & Ullman, supra note 27, at 544.

70 See Morabito, supra note 9, at 12.

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

72 See Shen, supra note 42, at 437.

73 See Goodman, supra note 43.

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

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

76 See Morabito, supra note 9, at 4.

77 See Frazier & Haney, supra note 21, at 624; see also Morabito, supra note 1, at 11.

78 See Morabito, supra note 9, at 15.

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

80 See Frazier & Haney, supra note 21, at 625.

81 See Morabito, supra note 9, at 11.

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

83See generally Garvey, supra note 23.

84 See Frohmann, supra note 34; see also Morabito, Williams, and Pattavina, supra note 1.