CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Wednesday, April 7, 2021

Buchhandler-Raphael on Under-Prosecution and Sexual Assault

Michal Buchhandler-Raphael (Widener University - Commonwealth Law School) has posted Under-Prosecution Too (56 Richmond University Law Review (2022 Forthcoming)) on SSRN. Here is the abstract:
Conventional wisdom holds that the criminal legal system suffers from over-enforcement, including over-prosecution. This account, however, obscures data suggesting that some crimes, including sexual assault, are under-prosecuted. High attrition rates in sexual assault cases are caused not only by insufficient reporting and inadequate police investigation but also by prosecutors’ frequent refusal to file charges due to what they describe as “insufficient evidence.”

Yet, studies suggest that the designation “insufficient evidence” is often a pretext, disguising the actual reason for prosecutorial declination decisions - prosecutors’ prediction of the low likelihood that hypothetical juries would convict, a test commonly referred to as the “convictability” standard.

The under-prosecution of sexual assault is an especially disconcerting problem because victims of these crimes are often marginalized, including racial and other minorities, who have been under-served by a legal system that has failed to provide them with equal protection of law. The problem, however, has received only scant scholarly attention.

This makes two contributions to existing literature. First, it argues that the convictability standard that prosecutors rely on to assess evidentiary sufficiency should be rejected. In its stead, this Article proposes the “reasonable prosecutor” standard for prosecutors to adhere to in deciding whether to bring sexual assault charges. Under this standard, the threshold is whether, as a legal matter, based on the law’s substantive definition of the crime and the likely admissible evidence, the suspect should be found guilty beyond a reasonable doubt. Second, this Article uses the under-prosecution of sexual assault as a case study for making broader arguments about the prosecutor’s role in promoting social justice goals. To send the expressive message that both defendants and victims deserve the law’s protection, this Article develops the Equitable Prosecution Model. The model uses the concept of equitable prosecution to justify a more vigorous prosecution of crimes like sexual assault that have largely been under-prosecuted. Drawing on a civil rights underpinning, and theorizing the roles for progressive prosecutors in curbing sexual violence, this model highlights the prosecutor’s role in bringing criminal charges for historically under-prosecuted crimes. It requires prosecutors to equitably balance defendants’ and victims’ conflicting interests. This model thus reconciles the goals of the BLM and #MeToo movements, demonstrating that they are complementary, rather than contradictory.

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