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Arizona Sonoran News

Arizona Sonoran News

The exceptional difficulty of prosecuting rape



Sexual assault remains the most underreported and underprosecuted violent crime in the United States. Of the small fraction of incidents that are reported, even fewer incidents actually result in investigations, charges and convictions.

“It’s extremely underreported, both on and off campus,” said Rene Hernandez, police officer and crime prevention specialist at the University of Arizona. “There is still a major stigma that keeps victims from coming forward.”

According to a recent report by the U.S. Bureau of Justice Statistics, (BJS) considered the gold standard of statistical analysis by specialists in criminology and law enforcement, fewer than 1 in 4 victims of sexual assault or rape report their experiences to the police. Of those who report in Arizona, only 1 of every 10 reports result in an arrest.

Sexual assault, according to the BJS, encompasses a “wide range of victimizations,” such as attempted attacks, unwanted contact and verbal intimidation. This is a separate category from rape, which is defined as “forced sexual intercourse including both psychological coercion, as well as physical force.”

When focusing on incidences of rape, there is a stark drop off between the amount of rapes reported to the police and the number of arrests, charges and sentences actually made.

The FBI, which gathers crime data throughout the U.S., recorded 3,290 rapes as reported to law enforcement agencies throughout Arizona in 2016. But police only made 344 arrests of alleged rapists.


The FBI’s definition of rape is slightly more inclusive than the definition used by the BJS. This is because it doesn’t require that a rape must be “forcible,” just that vaginal, anal or oral penetration by a sex organ is against the victim’s consent.

This change was made to reflect a growing body of evidence that indicates the majority of rapes came from friends, colleagues or family members. These perpetrators usually exercise psychological or emotional coercion over their victims rather than brute force.

Recent data on the prosecution of sexual assault suggests that even when victims do press charges, very few reports of rape or sexual assault result in a trial.

Many cases are either thrown out or don’t reach a sentencing phase. According to a 10-year study by the Arizona Criminal Justice Commission, less than half of arrests lead to charges actually being filed. Of these, even fewer lead to convictions. Those that do get convicted face a minimum sentence of more than five years in prison if it’s their first assault offense.


“Coming forward as a rape victim is extremely challenging, especially if the perpetrator is a former friend or colleague,” said Tracy Miller, a prosecutor at the Pima County Attorney’s Office.

“Other crimes like burglary and physical assault are also very invasive and emotionally taxing,” Miller said. “But with sexual assault, you are forced to grapple with a deep, intimate invasion of privacy that you can’t escape, that you just have to get through by finding strength within yourself and hopefully from your friends and family.”

When an arrest is made, it is just the first step of what tends to be a long procedure in the U.S. criminal justice system. In order to ensure a perpetrator is held accountable, prosecutors typically rely on three main factors, ideally in combination: forensic evidence, a victim who is willing to testify, and a narrative that judges and jurors will find convincing.

But ensuring even one of those factors can be a very difficult, delicate and time-consuming task.

“More frequently, the victims I assist don’t have visible signs of forcible rape, which could include tearing, bruising or marks,” Miller said. “This lack of clean-cut evidence can make prosecuting a case more difficult.”

For instance, the process of obtaining forensic evidence immediately after a rape can be invasive, particularly when victims unintentionally wash away potential DNA evidence.

In addition to physical obstacles of obtaining evidence, there are immense cultural obstacles that survivors and prosecutors must work against. Because of the social stigma surrounding the status of rape survivors, many refuse to testify or press forward with criminal charges.


Survivors also must deal with strategies of defense lawyers that cast doubt on their credibility, personal stories and motives for bringing charges of rape. This is despite peer-reviewed publications indicating that the rate of false accusations falls between 2 to 10 percent of national cases.

“The default position tends to be to blame the victim,” said Julia Schimmel, a political science and Arabic major at the University of Arizona. “To ask what they were wearing, what they were doing, or what they could have done differently. It shifts blame away from the perpetrator.”

In response to new pressure from students and advocacy groups, police organizations are trying to reconsider their approach to the crime.

“We used to just stick to a completely fact-based investigation in collecting evidence,” said Hernandez. “Now, in addition to the evidence, we do our best to understand how the survivor has been traumatized and what we can do to ease the process for them.”

Sometimes, the very act of collecting evidence through questioning the circumstances of a rape can evoke feelings of shame for a survivor.

“All too often, people frame their questions in a way that blames the victim,” said Miller. “The feeling that it’s her fault plays a great role in deterring a victim from speaking out.

“Jurors often craft narratives to judge the credibility of a victim,” said Miller. “Testifying in front of a jury, bearing all the circumstances of an attack, can be extremely difficult for a survivor.”

The systemic inertia of the U.S. criminal justice system can deter many victims from reporting assaults or bringing charges. Some proponents suggest lowering the burden of proof for convicting perpetrators of sexual assault, which currently stands at beyond a reasonable doubt, the heaviest legal burden in the justice system.

In 2011, the Department of Education pushed for universities to alter their codes of conduct to address sexual assault on campus. Specifically, his administration required universities to lower the burden of proof for sexual assault conviction to a preponderance of the evidence, which only means by the greater weight of the evidence (or more than 50 percent). This change left the burden of proof in state and federal courts – beyond a reasonable doubt – unchanged.

But others don’t think such drastic changes are necessary.

“I don’t think we need to alter the burden of evidence,” said Schimmel. “I think we just need to work more on elevating victims, on trusting them. Rather than seeing their stories as aberrations, we need to come to terms with how uncomfortably common they are. I think the #MeToo movement has done a good job of that, so far.”

Many proponents also appeal to human decency, rather than institutional forces, as the key to addressing sexual assault.

“What more people need to realize in these circumstances is, could this person be my future wife? Or the future wife of someone else?” asked Hernandez. “If we get more people to realize the humanity of individuals, both before and after a crime occurs, we can put a dent in sexual assault.”

Click here for a Word version of this story and infographics.

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The exceptional difficulty of prosecuting rape