Prosecutors’ Charging Decisions in Sexual Assault Cases

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Prosecutors’ Charging Decisions in Sexual Assault Cases

June 8, 2012

“ Case screening is the gateway to the criminal justice system. Prosecutors, acting as gatekeepers, decide which instances of alleged victimization will be passed on for adjudication by the courts” (Frohmann, 1991, p. 213). As Supreme Court Justice Jackson acknowledged in 1940, “the prosecutor has more control over life, liberty, and reputation than any other person in America” (Davis, 1969, p.190). Frohmann examined the powerful discretion prosecutors have in their justification for sexual assault case rejections in her research article, Discrediting Victim’s allegations of Sexual Assault: Prosecutorial Accounts of Case Rejections. Her research was replicated and extended in a 2001 study by Spohn, Beichner, and Davis-Frenzil titled Prosecutorial Justifications for Sexual Assault Case Rejection: Guarding the “Gateway to Justice”.

Frohmann conducted a seventeen month field study. She observed the prosecutorial case screening process of over three hundred cases in the sexual assault units of two separate west coast district attorney (DA) offices in 1989 and 1990 (Frohman,1991). She followed up her case screening with interviews of prosecutors in the sexual assault units and investigating officers to analyze their explanations and rationalizations for case rejections (Spohn, Beichner, & Davis-Frenzel, 2001). Frohmann notes that the DA’s office measures prosecutorial performance by conviction rates, encouraging prosecutors to pursue only winnable cases. Frohmann suggests that taking uncertain cases to trial that may result in not guilty verdicts is discouraged in three ways. First, the DA’s office views too many not-guilty verdicts as prosecutor incompetency. Second, prosecutors are rewarded for rejecting cases because it demonstrates their loyalty to office by reducing the huge case load of an overcrowded court system. Third, judges frown upon prosecutors pursuing cases that should have been rejected and may view it as incompetence (Frohman, 1991). Because of the pressure to secure convictions, “prosecutors are actively looking for 'holes' or problems that will make the victim's version of 'what happened' unbelievable or not convincing beyond a reasonable doubt" (Frohmann, 1991, p. 214).

Frohmann cites in her research that prosecutors use two techniques to justify case rejections: discrepant accounts and ulterior motives. A discrepant account means the victim’s story is inconsistent, or there are differences between the victim's account and prosecutor’s beliefs about “typical” sexual assaults. Her story can also be questioned if it is inconsistent with the prosecutor’s “repertoire of knowledge” of rape and the conduct of rape victims (Spohn, Beichner, & Davis-Frenzel, 2001). Frohmann breaks down the prosecutors “typifications” of rape related behavior into four categories: typification of rape scenarios, typification of post-incident interaction, typification of rape reporting, and typification of victim demeanor.

“Prosecutors develop the basis for ulterior motives from the knowledge they have of the victim’s personal life and criminal connections” (Frohmann, 1991, p.224). Frohmann identifies two types of ulterior motives prosecutors utilize to justify case rejection. First, when the victim has a motive to file a false rape complaint, such as incidents where the complainant needs to explain away a sexually transmitted disease to her husband. The second type recognizes that the accusation is legitimate, but discredits the explanation because of its unconvictability, such as incidents where the victim was a drug addicted prostitute (Frohmann, 1991).

Frohmann concludes that a significant percentage of sexual assault cases are rejected by prosecutors through the process of discrediting victims. Many of these cases are rejected because the prosecutors believe that a conviction is unlikely, not because the crimes...
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