Prosecutorial decisions in adult sexual assault cases: an Australian study
ISBN 1 877042 296 X
A report prepared for the Australian Government Office of the Status of Women by the Australian Institute of Criminology.
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found between cases that were withdrawn from prosecution and those that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.