How the Criminal Justice System is Failing Sexual Assault Victims

There is compelling evidence that sexual assault is a seriously underreported crime.

For example, Patricia Tjaden and Nancy Thoennes, who analyzed the results of the National Violence Against Women Survey, found that only 19.1% of women who were raped since their 18th birthday reported the crime. A similar survey in Canada that was conducted by Janice De Mont and Terri L. Myhr found that only 6% of sexual assaults were reported to the police. Studies using datafrom the National Crime Victimization Survey (NCVS) also found that reporting rates for sexual assault were lower than those for other violent crimes and that incidents involving non-strangers had especially low reporting rates. 

Reasons that victims gave for not reporting included: fear of retaliation from the rapist; feelings of shame and embarrassment; a belief that the rape was a minor incident and not a police matter; and a concern that police and prosecutors would question their veracity and credibility.

Victims of sexual assault who report the crime and are willing to cooperate with police and prosecutors as the case moves forward may confront criminal justice officials who are skeptical of their allegations and who question their credibility. The process begins with the police, who decide whether a crime has occurred, the amount of investigative resources to devote to identifying the suspect, whether to make an arrest of an identified suspect and, if so, the charges to file, and whether to refer the case to the prosecutor. 

These gatekeeping decisions, which largely determine the fate of the case, do not necessarily produce the outcome — arrest and successful prosecution — that the victim expected. According to Julie Taylor, the police “determine how rape victims and cases are treated by the criminal justice system ... After giving a valid rape report and fully cooperating with the police, a woman may find herself in the unexpected and bewildering predicament of having come to the police for aid ... only to have the door slammed firmly in her face.”

The process continues with the prosecutor, who makes the decision to file charges or not and who prosecutes the case if charges are filed. Research reveals that prosecutors’ charging decisions in sexual assault cases are strongly influenced by legally relevant factors such as the seriousness of the crime, the offender’s prior criminal record, and the strength of the evidence in the case. 

However, research also documents the influence of victim characteristics, including the victim's age, occupation, and education; "risk-taking" behavior such as hitchhiking, drinking, or using drugs; and the character or reputation of the victim. These victim characteristics are especially likely to affect charging decisions in cases in which the victim and suspect are acquaintances or intimate partners. As Susan Estrich notes in her book Real Rape, in these “she said/he said” cases, the credibility of the victim becomes the key factor in determining whether charges will be filed and the suspect convicted.

The response of the criminal justice system to the crime of sexual assault has recently received national attention. In September of 2011, the U.S. Senate’s Judiciary Committee held public hearings on the chronic failure of the criminal justice system to investigate and prosecute sex crimes. Witnesses testified about the downgrading and misclassification of sexual assaults in various jurisdictions. Carol Tracy from the Women’s Law Project and Professor Michelle Dempsey from Villanova Law School discussed the role of the FBI’s UCR reporting standards and clearance criteria, specifically the outdated definition of rape and confusion around the exceptional clearance.

Largely as a result of these hearings, in 2012 the FBI changed the definition of forcible rape to include oral copulation, sodomy, and penetration with an object.

Although this is an important first step, much remains to be done if sexual assault is to be treated as the violent crime that it is and if victims of sexual assault are to be treated with respect and dignity.