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CHAPTER II

DETOURS ON THE ROAD TO EQUAL JUSTICE:
THE NUMBERS

For a rape survivor, the road from offense, to arrest, to
conviction and sentence is filled with potential detours. The
offense may not be reported, and the offender may not be arrested.
Even where this occurs, the prosecutor may decide to dismiss the
case or a jury may decide to acquit because they believe the victim
is to blame.

Given all the points at which a case may be lost in the system, it
is not surprising that many survivors ask whether it is worth
reporting the crime at all. The figures we release today help to
show why:

* Approximately one in ten (reported) rapes result in time
served in prison;

* Nearly half of all reported rape cases are dismissed
before trial, drastically reducing the chance that a
victim will see her attacker sent to prison.

Given these circumstances, it is not surprising that rape victims
express little confidence in the system: From their perspective
justice is remote.

To try to pinpoint the vulnerable parts of the system, we asked a
series of questions of state criminal justice agencies. First, we
asked how many individuals were charged with rape in their states.
Second, we asked how many cases resulted in dismissal before or
during trial. Third, we asked how many cases resulted in a
conviction. And, finally, we asked how many convicted rapists were
sent to prison or local jail.

A Summary of the Survey's Results

The results of our survey are alarming. In a system that, on paper,
appears to be generally fair, overall outcomes are far from
equitable. Far too many rape cases are lost in the system. They are
lost when the system discourages victims from reporting; they are
lost when the system fails to arrest; they are lost when the system
fails to prosecute, and they are lost when the system refuses to
punish. Unfortunately, each time a case is lost, we reenact the
cycle that breeds a sense of injustice; with every case that
demonstrates how difficult it is to prevail one more case is likely
to go unreported.

Our findings show severe difficulties both at the front end and at
the back end of the system. At the front end, compared to the
number of rapes actually committed in the United States, very few
rape charges are ever brought. Of those that are brought, almost
one half are dismissed. At the back end of the system, almost one
quarter of those charged with rape never go to jail but, instead,
receive a sentence of probation, community service, or a fine.

In an effort to understand better the weaknesses of the system, we
asked about each point at which a rape case could falter. What
follows is an explanation of how we obtained the state data and how
we analyzed that data, comparing our numbers to those generated by
other sources. At each point we stop to consider the possible
reasons why rape cases face detours on the road to equal justice.

From the Victim's Perspective

Most rape cases never reach our criminal justice system. While rape
reports continue to increase -- between 1989 and 1990 reported
rapes increased by six percent nationwide and topped 100,000 for
the first time -- the vast majority of these crimes remain
unreported.(13) According to conservative estimates, as many as 84%
of rapes each year are never reported.(14) According to one study,
"[T]he stigma, intrusiveness, and risk of retaliation that
accompany criminal charges have kept rape the most underreported
major felony."(15) Often, the reason for this lack of reporting is
fear of the criminal justice system. In the words of one witness
before the Senate Judiciary Committee: "The message that gets out
into the community is to not report because as a victim you will be
tried, battered, and abused by the system."(16) Survivors fear that
they will not be believed, that reporting will be futile, and that
they will be revictimized by the system.

Do rape victims have something to fear from the system?
Unfortunately, the figures tend to bear out their concern. From the
perspective of a rape survivor, there is less than a 2% chance that
the attacker will be arrested, convicted, and sentenced to serve
time behind bars. The "two percent response" of the system works
out as follows. Applying our figures to conservative estimates of
the number of rapes nationwide, we conclude that a woman has:

* A 2.5% chance of seeing her attacker convicted, and;

* A 1.9% chance of seeing her attacker incarcerated.(17)

Even if one excludes all unreported rapes, the odds are still slim.
Applying the most conservative estimates of the number of reported
rapes --102,555 according to the FBI's Uniform Crime Reports for
1990 -- to figures obtained by the committee from state criminal
justice information centers yields disappointing results. These
figures show that:

* 84% of reported rapes never result in a conviction; and,

* 88% never see their attacker actually incarcerated.

A. The First Detour: Arrest

An arrest begins the legal process in every criminal case. But, in
rape cases, it begins the process of case attrition. Most reports
of rape never result in an arrest. Simple division of existing FBI
figures reveals that 62% of the reported rape cases never result in
the apprehension of an individual for the crime.(18) When you
consider that over half of all rapes are committed by someone the
victim knows,2 this figure is startling. After all, this is not a
faceless car theft or burglary where the criminal is never of
identified; the victim has almost always seen her attacker and, in
many cases, knows her attacker.

There are no easy answers to why the arrest rate in rape cases is
so low. In some cases, the defendant cannot be located; still other
reports may languish because of limited law enforcement resources
to conduct the necessary investigation. These factors may explain
a less-than-perfect record; they do not explain why more than 60%
of all rape reports do not result in an arrest.

We must consider what other factors explain such a high percentage
of rape cases without arrest. Police officers who do not believe a
victim, and therefore find the complaint to be without merit, have
the power to decide that a rape complaint is "unfounded."
Unfortunately, the discretion to "unfound" a reported crime is
often influenced by the kind of prejudices we will see elsewhere in
the system. For example, scholars have speculated that the high
degree of rape cases lost at the arrest stage is due principally to
the "unfounding" of complaints by police officers, who are
operating based on stereotypes of violence that presume someone the
victim knows is not a "real" rapist.(19)

B. The Second Detour: Dismissal

Once a sex offender has been located and evidence has been gathered
to show probable cause that a rape has been committed, the legal
process has just begun. The road from arrest to prosecution is
often complex. Unfortunately, in rape cases, this process leads too
often to stalemate and dismissal, rather than successful
prosecution.

Our figures show that a substantial number of rape cases are
dismissed before trial. We found that, of nearly 6,000 rape cases
disposed of through the criminal justice system, more than 3,000
cases were dismissed. That means:

* Almost half (48%) of all rape cases are dismissed before
trial;

* Nine out of ten rape cases that do not result in a
conviction are the result of a dismissal rather than an
acquittal;

* 25% more rape cases are dismissed before trial than
result in a prison sentence. (3)

We compared these figures to the dismissal rates for other crimes.
We found that rape dismissal rates were significantly higher:

* A rape case is more than twice as likely to be dismissed
as a murder case;

* A rape case is nearly 40% more likely to be dismissed
than a robbery case.

Prosecutors often argue that they have a very high rate of
"prosecuting rape cases." Indeed, figures from the Bureau of
Justice Statistics boast that 77% of persons arrested for rape are
prosecuted.(20) But this figure does not present an accurate
picture of the reality of rape prosecutions. In the fine print, we
are told this figure includes cases where prosecutors agree to
charge felonies as minor misdemeanors, and that it does not account
for the many cases in which rape prosecutions are dismissed before
trial. Clearly, this number is not the proper measure of the number
of felony rape cases that actually result in prosecution and time
served behind bars.

Cases may be dismissed before trial for any number of reasons. For
instance, physical evidence may be subject to scientific challenge,
or victims may decide not to testify. For most crimes, this leads
to a number of "dismissals" before trial.

But, in rape cases, there is another factor at work. Prosecutors
are hesitant to bring any case -- whether it be a robbery case, an
assault case, or a kidnapping case -- in which the offender knew
the victim. A study of the disposition of felony arrests in New
York City concluded that a prior relationship between the victim
and offender is the most common factor which prevents cases from
going forward and results in their "deterioration" in the criminal
justice system.

This hesitation increases in the cases we call "acquaintance rape."
Even though many of these situations involve persons who barely
know each other,(22) prosecutors nevertheless tend to believe that
these cases are extremely difficult to win. As more than one gender
bias study has concluded, prosecutors "do not file
acquaintance-rape cases because they feel convictions are
unlikely."(23) Indeed, prosecutors have acknowledged this publicly,
defending their actions on the theory that the prior relationship
of the parties will make it difficult for a jury to find lack of
consent.(24)

No one expects prosecutors to bring unwinnable cases -- cases that
could not meet the "beyond a reasonable doubt" standard. But
prosecutors must also understand that there is more at stake in the
prosecution of rape cases than an individual "win" or "loss."

In rape cases the reputation of the system is at stake in every
prosecution. When survivors hear that prosecutors will not bring
cases if they happen to recognize the perpetrator -- the kid down
the street, the UPS delivery man, the father of a friend -- that
has consequences. Why report the crime if you know it will not be
prosecuted?

Why pursue a case if you know you will have to fight barriers of
institutionalized disbelief Why believe in our system of justice at
all?

C. The Third Detour: Acquittal

98% of rape survivors have no chance of seeing their attacker
brought to justice -- they have dropped out of the system one by
one. At least 84% did not report the crime;(25) 62% found that the
perpetrator could not be arrested; and 48% of those remaining found
that their case was dismissed.

Having met these hurdles, a survivor faces yet another barrier --
the jury. It has often been said that a rape case is more difficult
to prosecute than a murder case. There are a number of reasons why
that may be true, including the availability of witnesses or other
evidence. But, in rape cases, potential jury prejudice is also a
significant factor. In general, prosecutors believe that juries are
more likely to convict in cases where the offender is a
stranger.(26)

Based on information collected from the states, we found that:

* Less than half of the individuals arrested for rape are
convicted of rape;

* This compares to 69% convicted for murder and 61%
convicted for robbery.(27)

These differences in conviction rates tend to be masked by
statistics that measure conviction rates only on cases that survive
the dismissal process. Often, prosecutors claim very high
conviction rates in rape cases, failing to acknowledge that many
cases are weeded out long before trial. Once in the courtroom, rape
conviction rates are roughly comparable to conviction rates for
other crimes,(28) although jury stereotypes tend to affect the few
acquaintance rape cases that actually go to trial. Studies have
shown, for example, that juries are far more likely to convict,
perhaps four times as likely, in a stranger rape case as opposed to
an acquaintance rape case.(29)

D. The Fourth Detour: Sentencing

Sentencing is the final stage in a criminal proceeding. Typically,
judges have great discretion in determining the proper sentence,
although that discretion has been narrowing as more and more states
pass determinate sentencing laws. Rape has traditionally been
viewed as a crime for which heavy sentences have been levied -- a
legacy of the day in which rape was a capital crime.(30) Our
figures show, however, that rape charges do not necessarily mean a
stiff rape sentence.

Surveying states representing 50% of the population of the United
States, we found that:

* More than one fifth of convicted rapists (21%) are never
sentenced to time in jail or prison;

* Almost one quarter of convicted rapists (24%) receive
sentences in a local jail, which typically means they
will spend 11 months behind bars.(31)

These figures show, dramatically, the differences in "theory" and
"practice" present in our criminal justice system.

To ensure that our figures are meaningful, we used an extremely
conservative methodology. Our figures reflect only convictions for
forcible rape offenses, however those may be labelled in law. They
do not include convictions for misdemeanor offenses or any offense
"lesser" than forcible sexual assault. In theory, the sentences for
rape are very high; in the states we surveyed, we found that
sentences for forcible rape often extend to life imprisonment. (32)
But, as our figures show, many rapists are never sentenced to jail
or prison at all, and many more serve sentences of extremely short
duration.

How can the practice vary so much from the theory? First, it can
vary because judges have the discretion to vary it; they have the
discretion to set sentences in rape cases. Second, it can vary
because prosecutors have the power to recommend a lesser sentence.
Third, it can vary because both prosecutors and judges tend to
sentence all first-time violent offenders -- including rapists --
to probation on the theory that first-time offenders are less
dangerous to the community.(33) This assumption is questionable in

Finally, the assumptions we all share have a role to play here --
judges and prosecutors alike respond to the community's
assumptions. When we assume that rape by an acquaintance deserves
a less severe sentence, then we are likely to find judges handing
down less severe sentences. When we assume that a rape victim is
partially to blame for meeting her ex-boyfriend or going to a bar
for a drink with an acquaintance, then we are likely to see less
severe sentences. And, when we assume that a rapist who is young
and otherwise an exemplary student and athlete is not sufficiently
dangerous to send to prison, then we are likely to see less severe
sentences.

Conclusion

The figures we release today powerfully demonstrate how our system
of justice fails rape victims. But they also demonstrate how
influential our attitudes are in the processing of rape claims. Far
more rape claims fail before trial than at trial. It is the fear of
what a jury will think that drives survivors not to report, police
to refuse to arrest in "futile" cases, and prosecutors to dismiss
prosecutions they describe as "unwinnable." In the end, the figures
we release today provide dramatic testimony of the power of our
stereotypes of crime -- how these stereotypes distort our
understanding of violence against women and deprive individuals of
the "equal protection" of our laws.

NOTES

13. Violence Against Women: The Increase of Rape in America 1990,
Majority Staff of the Senate Committee on the Judiciary, 102nd
Congress, 2d Session, at 2.

14. Rape in America: A Report to the Nation, National Victim Center
and the Crime Victims Research and Treatment Center, Medical
University of South Carolina, 1992 at 6. According to this report,
only 16% of all the sexual assaults experienced by respondents to
the survey were reported to the police. This appears to be an
extremely conservative estimate. Other studies show that the number
of unreported and reported rapes may be as high as two million
annually with an arrest rate of 1.6%. (See Testimony of Dr. Mary
Koss before the Senate Committee on the Judiciary, Senate Hearing
101-939, Part 2, 101st Congress, 2d Session, August 29, 1990.)

15. Rhode, Deborah, L., Justice and Gender: Sex Discrimination and
the Law. Cambridge, Harvard University Press, 1989 at 248.

16. Testimony of Gill Freeman before the Senate Judiciary
Committee, Senate Hearing 102-369 at 137, April 9,1991.

17. According to Deborah Rhode, "Even if only reported rapes are
considered, the attrition rate from complaints to convictions is
high....the likelihood of a complaint actually ending in conviction
is generally estimated at two to five percent." (Citing James
Galvin and Kenneth Polk, "Attrition in Rape Case Processing: Is
Rape Unique?" Journal of Research in Crime and Delinquency, 20:126
(1983).

18. This percentage is derived by comparing the number of reported
rapes of 102,555 and the total number of arrests of 39,160. The FBI
maintains that the "Clearance rate" for rape cases is higher than
what simple division reveals, but this "clearance rate" "adjusts"
this figure to account for cases that drop from the system for a
variety of reasons, including cases in which the offender cannot be
extradited or cases in which police claim the victim will not
"cooperate."

19. See Estrich, Susan, Real Rape. Cambridge: Harvard University
Press, 1987. estrich notes that national statistics on police
unfounding of rape complaints are unreliable due to the fact that
"cases may be 'unfounded' for reasons that have nothing to do with
the merits of the complaint." (Estrich at 15).

20. United States Department of Justice, Bureau of Justice
Statistics, Tracking Offenders. 1988, Table 1.

21. Felony Arrests: Their Prosecution and Disposition in New York
City's Courts, Vera Institute of Justice, New York, 1981. "And
although this deterioration may be rational from the perspective of
the decision makers, it may not be rational or desirable in all
cases from the perspective of injured wives, tenants, and
neighbors." (Vera Institute of Justice at 135).

22. "Most acquaintance rapes, as discussed in these studies, do not
include prior close or sexual relationships between the victim and
the assailant." Minnesota Supreme Court Task Force for Gender
Fairness in the Courts, reprinted in, William Mitchell Law Review,
Vol. 15, no. 4 at 895 & n. 4 (1989).

23. Committee on the Judiciary, The Violence Against Women Act of
1991, Report No. 102-197 at 47 (quoting Report of the Florida
Supreme Court Gender Bias Study) at 142 (1990)).

24. Colorado Supreme Court Task Force on Gender Bias in the Courts,
Gender and Justice in the Colorado Courts, (1990).

25. This is based on an extremely conservative estimate of the
number of rapes committed every year. According to Rape in America:
A Report to the Nation, a 1992 report compiled by the National
Victim Center and the Crime Victims Research and Treatment Center
at the Medical University of South Carolina, there are 683,000
rapes every year. Other studies show that the reporting rate may be
quite a bit lower. (See supra note at 13).

26. Williams, Kristin, "The Prosecution of Sexual Assaults,"
Washington D.C., Institute for Law and Social Research at 32,"
(Cited in S. Estrich, Real Rape, "In the District of Columbia
researchers found that the relationship between the victim and the
accused was substantially more important than the seriousness of
the incident in explaining conviction rates: the closer the
relationship, the lower the conviction rate." (Estrich at 18.))

27. The average conviction rate for all felonies, according to the
Bureau of Justice Statistics, hovers in the 54% range. (U.S.
Department of Justice, Bureau of Justice Statistics, The
Prosecution of Felony Arrests 1988 (Feb. 1992)).

28. According to data in United States Department of Justice,
Bureau of Justice Statistics, The Prosecution of Felony Arrests.
1988, Table 3, at 30-34, we can extrapolate that the conviction
rates are comparable for murder, 84%, robbery, 85% and rape, 82%.
The data contained in these charts details felony arrests that
result in felony indictment. These cases, however, do not represent
the disposition of all arrestees for a particular crime, but rather
reflect only those cases that make it past the early dismissal
process.

29. See Kalven, Harry and Hans Zeisel, The American Jury, Boston:
Little Brown, (1966); and Susan Estrich, Real Rape, Cambridge:
Harvard University Press, 1987 at 4.

30. In a 1977 Supreme Court decision, Coker v. Georgia. (433 U.S.
584), the Court held that "a sentence of death is grossly
disproportionate and excessive punishment for the crime of rape and
is therefore forbidden by the Eighth Amendment as cruel and unusual
punishment." (Coker v. Georgia, at 592).

31. Bureau of Justice Statistics, Felony Sentences in State Courts,
1990. table 3 (1992) (showing a mean jail sentence for rapists of
11 months and a median jail sentence for rapists of six months).

32. See e.g., Alabama Code Sec. 13A-5-6 & 13A-6-61 (prescribing a
maximum penalty of life imprisonment for first degree rape); Rhode
Island Code sec. 11-37-2 & 11-37-3 (prescribing a maximum of life
imprisonment for first degree rape).

33. According to Deborah Rhode, however, the opposite is true,
"Studies of American rapists' attitudes have revealed a striking
absence of guilt and a consistent perception of their conduct as
normal sexual behavior." Rhode, Deborah, L., Justice and Gender:
Sex Discrimination and the Law, Cambridge: Harvard University
Press, 1989 at 252.