Australian Institute of Criminology

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Prosecutorial decisions in adult sexual assault cases: an Australian study

Denise Lievore
ISBN 1 877042 296 X
January 2004

A report prepared for the Australian Government Office of the Status of Women by the Australian Institute of Criminology.

Abstract

The objective of this study was to describe and analyse factors influencing prosecutorial decisions to proceed with, discontinue, or enter into charge negotiations in cases of adult sexual assault referred to state and territory Offices of the Director of Public Prosecutions (DPP). The analysis was based on a sample of 141 case files which were referred to the DPP in five jurisdictions between 1999 and 2001, supplemented by a qualitative analysis of interviews with 24 Crown Prosecutors who were experienced in prosecuting sexual assault cases. The study presents findings on the disposition of the cases studied and factors underlying prosecutorial decisions. Statistically significant differences are found between cases that were withdrawn from prosecution and those that proceeded to trial or sentencing. Most of these variables are related to the prospects of securing a conviction. Regression analyses showed that prosecutors' decisions to proceed or withdraw from prosecution were predicted by an interaction between non-consent and force. Field notes showed that charge negotiations usually reflected evidentiary factors. Defendants who pleaded or were found guilty were significantly more likely to have threatened the victim during the assault and to have been linked to the offence by additional evidence such as DNA, video footage showing the two together, or objects found at the crime scene. The findings suggest that existing prosecution policies and guidelines provide a reasonable safeguard against biased decision-making in sexual assault cases. However, the study highlights tensions between the lawyer's and the 'outsider's' perspective on various matters. The significantly higher withdrawal of cases involving prior relationships raises the question of whether prosecutors continue to regard 'acquaintance rapes' as less serious crimes than 'real rapes' (i.e. stranger rapes), while there is a further tension between the victim's reluctance to proceed in some cases and the prosecutor's role in ensuring that the criminal law fulfils its objectives.