Prosecutorial decisions in adult sexual assault cases

Abstract

Prosecution agencies are often criticised for their performance in prosecuting sexual assault. A lack of external transparency means there is little knowledge about the specific criteria used in decisions to proceed with or discontinue prosecutions. Understanding the factors that impact on the exercise of prosecutorial discretion therefore constitutes an important step towards improving criminal justice outcomes in sexual assault prosecutions. This paper analyses prosecutorial decisions to proceed with or discontinue prosecution in a sample of adult sexual assault cases. The results indicate that case decisions are primarily based on evidentiary considerations related to the ability to secure a conviction, but they also raise questions about the handling of cases involving prior relationships. Toni Makkai Director Prosecutors employed by the state and territory offices of the Director of Public Prosecutions (DPP) are vested with a range of discretionary powers in relation to prosecuting indictable offences. Some of the most important decisions include whether to proceed with a prosecution and whether to discontinue prosecution by either deciding not to find a bill of indictment (no bill), or declining to present an indictment to the court (nolle prosequi). Each DPP has developed a prosecution policy to guide prosecutors in making decisions about the conduct and disposition of cases. While there are differences in the various guidelines, they all identify two essential elements to be considered in determining whether to prosecute (Refshauge 2002). First, there must be sufficient evidence to justify prosecution and provide reasonable prospects of conviction. This assessment takes into account factors such as the competence, credibility and availability of witnesses, the admissibility of evidence, and any other factors that could affect the likelihood of a conviction. Once it is established that there is sufficient evidence, the second and overriding concern is whether it is in the public Interest for the matter to proceed. The public interest is not a question of political or popular pressure; relevant factors Include the seriousness and prevalence of the offence, factors related to the victim and the defendant,1 and the need to maintain public confidence in institutions such as the courts. Few Australian studies have examined factors that predict prosecutorial decisions in adult sexual assault cases. A Queensland study (Briody 2002) and United States research show that case decisions are shaped by a complex Interplay of structural and attitudinal factors (Kerstetter 1990; Kingsnorth, Macintosh & Wentworth 1999; Spohn, Beichner & Davis-Frenzel 2002). Decisions are largely driven by legal considerations relating to the prospects of conviction, such as the seventy of the crime, the type and strength of the evidence, and the defendant's culpability. The data also show that prosecutorial decisions are open to influence by variables that are extraneous to the legal elements of the case, including sociodemographic characteristics of victims and defendants and the victim-defendant relationship. These decisions often involve legal issues that are matters of professional judgment and require a degree of subjectivity, so prosecutors can have different views on a matter and some decisions may reflect personal biases. An influential perspective on legal decision-making, derived from a study by Albonetti (1987), suggests that the relative weight given to legal and extralegal factors will vary, as prosecution decision-making is principally oriented towards eliminating uncertainty in pursuing cases that are likely to lead to a conviction. Prosecutors know that they cannot predict or control the behaviour of the defendant, defence counsel and jury, so the probability of proceeding increases in the presence of legal and extralegal factors that boost the likelihood of success and decrease uncertainty over potential outcomes (Al bon etti 1987). …

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