Explaining Public and Prosecutor Sexual Violence Prosecution Preferences

• In Event: Gender and Political Violence

Abstract

A growing body of research has accused U.S. chief prosecutors of inappropriately dismissing sexual violence cases at high rates. According to data from the Federal Bureau of Investigation’s National Incident-Based Reporting System, on average from 2014-2019, chief prosecutors declined to prosecute over one in five reported rape and sexual assault cases for reasons other than insufficient evidence for prosecution or victim-initiated case attrition. This case dismissal rate is substantively higher than that for commensurate violent crimes. Interestingly, though most chief prosecutors are democratically elected, evidence suggests that, on average, the public prefers to prosecute sexual violence cases at high rates relative to other violent crimes. What explains this apparent gap in prosecutor behavior and public preferences? To answer this question, I conduct a public survey experiment in which respondents are shown a series of case profiles and asked to select which crimes to prosecute when faced with budget constraints. I combine the findings from this experiment with empirical data on chief prosecutor case handling and qualitative interviews with legal actors to test two possible explanations for the apparent gap between prosecutor behavior and public preferences. First, given that the rate of sexual violence case prosecution varies substantially across chief prosecutor jurisdictions, it is possible that although chief prosecutor actions differ from public preferences on average, they align on a subnational level. That is, cross-jurisdictional variation in public preferences could match cross-jurisdictional variation in case handling. Second, qualitative evidence suggests chief prosecutors are concerned with securing long sentences and high conviction rates. Meanwhile, empirical evidence suggests crime severity predicts public prosecution preferences for violent crimes. Thus, it is possible that chief prosecutors and the public are driven by different underlying utility functions when making prosecution decisions, with prosecutors attempting to optimize sentencing (conviction probability times sentence length for a given crime) and the public attempting to optimize harm reduction (population prevalence times severity for a given crime). Given the low democratic accountability of chief prosecutors, it is possible for chief prosecutors’ prosecution preferences, rather than public preferences, to emerge as the status quo. Understanding the interaction between public preferences and prosecutor behavior is crucial for informing how practitioners can better provide survivors of sexual violence with justice.

Author

• Madison Dalton, Stanford University