Although sexual violence crimes are among the most challenging cases to try, the level of complexity varies among cases based upon a variety of factors.
According to research, these factors impact decision-making about whether or how a case proceeds through the system, as well as affecting the case outcome. In this context, “complexity” refers to the presence or absence of certain case, victim, or suspect characteristics, many of which are common in sexual assault cases but may affect a prosecutor’s perception about the strength of the case.
Such factors may lead to case attrition.86 Prosecutors may decline to charge a case due to the presence of certain complexity factors that they perceive, based on past experience and anticipated juror response, would make it nearly impossible to secure a conviction at trial. Law enforcement may also fail to refer a case for prosecution based on a perception that the prosecution will decline to charge it. Victims may even decide to not report the sexual violence crime based on the perception that police and/or prosecutors won’t believe them or won’t bring the case forward.
The minimum ethical standard for charging a crime is probable cause. While some offices have policies requiring a higher charging standard — a reasonable likelihood of conviction — speculation about what a (potentially uninformed) jury will do should never be the standard for prosecuting a case.87
To the extent that cases are declined based upon the presence of complexity factors that can be addressed through training, technical assistance, and the use of promising strategies, justice is not served. Understanding the impact of complexity on case processing and outcomes in one’s own jurisdiction is an important part of assessing prosecutors’ capacity (i.e., their level of knowledge and experience) to properly evaluate the relevance of particular factors present in their cases and to achieve the best possible outcome. It effectively exposes areas where additional prosecution training or technical assistance is needed, as well as areas where community, law enforcement, or judicial education is necessary.
Accounting for case complexity will also provide necessary context for case outcomes. One foundational premise of the RSVP is that conviction rates, used alone, are not a fair measure of whether justice is being achieved in sexual violence prosecutions.
Additionally, a prosecutor’s skill level cannot be assessed solely by conviction rate, a measure that fails to account for the complexity of the cases tried. Prosecutors and their offices should never be penalized for advancing complex cases that might lower their conviction rate, nor should they be encouraged to decline complex cases to ensure high conviction rates.
Encouraging prosecutors to take on the difficult cases requires their offices to develop a system that consistently captures the complexity of their cases, examines how those cases are being handled, and permits identification of those areas where improvements can be made. When areas needing improvement are identified, the office must identify, obtain, and allocate the resources necessary to make those improvements.
Certain characteristics of a sexual violence case (e.g., lack of physical injury, intoxication by the victim or suspect, presence of a developmental disability) may make the crime more difficult to prove beyond a reasonable doubt and thus may be associated with lower conviction rates. By accounting for case complexity, we can obtain a more comprehensive, meaningful, and reasonable view of case resolutions.
For example, complexity ratings can help explain why certain less-than-desirable resolutions occurred in certain reporting periods; perhaps those periods had a greater number of highly complex cases. As prosecutors begin to take on more complex cases, their conviction rates may go down, at least initially. It takes time for prosecutors and their offices to become accustomed to handling these cases and for judges and juries become accustomed to hearing them. These lower conviction rates should improve over the long term as prosecutors’ proficiency increases and as judges and juries become more acquainted with sexual violence dynamics.
Armed with a more complete picture of case complexity and case outcomes, prosecutors can be incentivized to pursue challenging cases, and their offices can support their efforts by ensuring that prosecutors have sufficient training, knowledge, skills, and resources (e.g., experts) to pursue these cases proficiently. Offices can also determine whether bias, misinformation around the perpetration of particular types of sexual violence, or general lack of public awareness may be resulting in unjust acquittals.
The outcome for each case should be linked to the complexity rating for that case. This yields an outcome measure for each level of complexity, such as “percentage of very complex cases with guilty disposition.” Case outcomes would be reported for each level of case complexity. This can help alleviate prosecutors’ natural hesitancy to take on complex cases. It also provides data users with explanations for potentially low overall disposition rates. (“My overall rate of convictions decreased this reporting period because my cases became more complex.”)
A secondary reason to examine case complexity is that it enables prosecutors to use the list of complexity factors as a checklist to guide them in planning their cases. Taking stock of particular complexities presented in a case can help the prosecutor plan for and systematically address (to the extent possible) each factor to mitigate its effect on the ultimate case outcome.
For instance, if a case checklist indicates that the victim had consumed alcohol or drugs immediately prior to the assault, the prosecutor may consider identifying a toxicologist to explain the effects of the intoxicant on a victim’s capacity to consent.
Incorporating a complexity checklist into case planning may be particularly helpful to prosecutors who are new to prosecution of sexual violence cases. Understanding the percentage of cases involving victims who consumed drugs or alcohol may also identify more long term needs, such as the identification of nearby toxicology experts and ensuring that assigned staff have received the appropriate training.
Finally, accounting for case complexity can help with office workload planning. More complex cases require more time and attention than less complex cases. Estimating trends in case complexity over time will better enable prosecutor offices to estimate their staffing needs.