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Rape: Why prosecutors don't prosecute

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Earlier today, a Painesville man on trial for rape was freed after he was found not guilty of three counts of rape, among other charges. Based on the report filed by Tracey Read of the News Herald, the accused's defense team maintained that the sex between the defendant and the woman who reported that she was raped was "consensual". In today's issue of Red & Black, journalist Juanita Cousins reported that three cases of rapes in Georgia were dismissed due to the difficulty to prove the crime of rape in a courtroom. While this column will not challenge the guilt or innocence of the Painesville defendant, as he was acquitted, nor the "rightfulness or wrongfulness" of the actions in Georgia, a short examination of the challenges of prosecuting a rape charge will be made.

Defenses used against rape charges may include the assertion that penetration had not occurred, although this is rarely used since then the defense is admitting that there was "attempted rape", that the accused had not committed the crime, which is also becoming rarer due to DNA evidence and lastly, that the rape was consensual. As most rape cases have only two witnesses (i.e. the defendant and the victim), the trial will often come down to "who is believed?"

According to research published by the Center for Research on Violence Against Women, only 37% of reported rapes are prosecuted with 18% of those resulting in conviction. Due to the fact that most rapes are not reported, it has been estimated that 3.4% of rapes that were committed result in conviction of the offender (ibid).

Why are most rapes not prosecuted? Quite simply, prosecutors only prosecute cases they believe they can win (i.e. results in a conviction).

Whether elected or appointed, a prosecutor is responsible for ensuring that resources are utilized in such a way as to have maximum impact. "Winning cases" is a good expenditure of scarce resources (e.g. time, money, etc.) while "losing cases" is not. Prosecutors will find that there is more crime than there are resources to prosecute - resources such as time and money are not infinite. Similarly, the more cases a prosecutor "wins", the higher their ratio of wins to losses. When residents look to community safety, a prosecutor who wins cases will be seen as being "tough on crime". Lastly, prosecutors will not file a case if they do not believe they have the evidence to win the case. The standard for burden of proof is "beyond a reasonable doubt" which is a high burden to meet. In the case of rape, this evidence is difficult to obtain. Even if DNA evidence is available, the assertion by the defendant that sex was consensual, or even that force was not used, is enough to cast reasonable doubt on most juries.

When the charge against a defendant is that of rape, unless the prosecutor has a high degree of confidence that the trial will end in a conviction, the charges are likely to be dismissed. And, as research has shown, when the prosecution of a defendant goes forward in a rape case, the likelihood of a conviction is low.

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