last updated 1 June 2009

Sexual assault cases present difficult challenges to prosecutors.  Consequently, conviction rates for sexual assault claims are very low.  This is due to the unique nature of sexual assault, including the victim’s willingness to participate in the prosecution and difficult evidentiary problems.  The prosecutor’s cooperation with other agencies involved in the sexual assault case is very important, as it will lead to victim healing and the strongest possible case against the offender.

Prosecutors are faced with many problems associated with holding offenders of sexual assault accountable including: recanting victims, witness credibility, evidence requirements, the rejection of un-corroborated testimony, the focus on the victim’s resistance instead of consent, and more.  In many countries, rape reform laws have helped with many of these challenges.  However, some countries still have stringent requirements for sexual assault prosecution. Thus, prosecutor protocols must focus on putting the victim’s needs at the center of the prosecution, and coordinating the prosecution with the rest of the sexual assault investigation and healing process.  This not only aids the victim in healing, but results in practical benefits to the prosecutor.  Prosecutors will be able to obtain the maximum amount of information and evidence from victims.  If the justice system develops a reputation for being victim-centered, more victims are likely to come forward.  Victim-centered witness preparation is very important to sexual assault prosecution. Victims are ashamed of their experience and afraid to face their perpetrators, which results in victims recanting or inconsistency in their story and victims not participating in court process.   Further, victims who work with informed and sensitive prosecutors will be more at ease on the witness stand, thus enhancing their credibility.  Witnesses and victims should be prepared on how to enhance their credibility through testimony and appearance.  Furthermore, prosecutor trainings should emphasize the importance of being aware of sexual assault difficulties associated with specific populations. 

Because of these difficulties with victims and witnesses, prosecutors in the United States are beginning to move toward more evidence based prosecution, which emphasizes obtaining evidence and its admissibility in court.  Juries are more likely to convict based on objective evidence, putting victim, witness and defendant credibility as secondary issues.  Juries are more likely to agree that the sexual assault charge has merit when it is based on hard evidence.

Prosecutors are often hesitant to charge offenders in sexual assault cases because of these difficulties, as well as the low conviction rates.  Acquaintance rape cases are exceptionally difficult to prosecute, because it is very difficult to prove the victim did not consent to the sexual act.  Prosecutor trainings are aimed at improving conviction rates by teaching prosecutors how to make the most of the evidence and witnesses they have.  Prosecutors must learn how to present the victim and the evidence in a manner that is convincing to jurors.  Further, protocols sometimes provide for mandatory prosecution to prevent prosecutors from screening out unwinnable cases. 

In the United States, the Violence Against Women Act of 1994 mandated the STOP Violence Against Women grant program, which stands for service, training, officers and prosecutors.  The STOP program provided funding to state initiates to reduce violence against women and promote offender accountability.  The National Institute of Justice  (NIJ) performed an evaluation of STOP funded programs for law enforcement and prosecutors.  The NIJ focused the evaluation on two comprehensive state programs: Michigan and California.  Training programs covered training on violence against women issues, trial advocacy, and working with victims of sexual violence.  In general, the NIJ found that most prosecution programs were attempting to shift toward evidence-based prosecution to avoid difficulties such as recanting victims and witness credibility.  Also, the evaluation showed that as a result of trainings that enabled prosecutors to identify ways in which to improve a case, more cases that would have been dismissed were being charged. 

Prosecutor protocols should ensure a victim-centered prosecution.  Prosecutors should keep victims updated on the court status, make the court very aware of the victim’s attitude and view on the sexual assault as well as the level of consent, making sure the focus that the court’s attention is on the defendant’s failure to obtain consent rather than the victim’s failure to resist.  Prosecutor protocols should also call for prosecution of any defendant for harassing or intimidating witnesses.  Prosecutors should do whatever possible to avoid continuances, which delays the healing process for the victim.

In the CEE/FSU region, few states have established protocols and trainings for prosecutors.  Prosecutorial malpractice and misconduct remain significant concerns across the region.  Despite efforts to remove obstacles which victims must face, such as the necessity to repeat their story numerous times, rape and other sexual assaults remain severely underreported in CEE/FSU countries.  Many prosecutors continue to approach victims with skepticism and do not have the training to maximize the evidence and witnesses in a case.  Trainings available in some states are generally implemented by NGOs and local women’s rights groups and are not required by law. However, in many states awareness of the need for establishing protocols is on the rise, and legislators have begun discussions that may result in new regulations in the years to come.  Estonia has implemented general protocols for special prosecutors and other judicial officials when dealing with female crime victims.  Finally, in the CEE/FSU region, legislative efforts are being made to expand the legal definition and public understanding of sexual assault, including recognizing marital rape as a crime, as in Albania, Bosnia and Herzegovina, Hungary, and Serbia.

For the 2008 United Nations expert group report, "Good practices in legislation on violence against women," including recommendations for duties of prosecutors (Section 7.B) and specialized prosecutorial units (Section 2.G), click here.  For the Russian version of the report recommendations, click here.

Compiled from:

David P. Bryden, "Redefining Rape," 3 Buff. Crim. Rev. 317 (2000).

Amanda Conradi, "Too Little, Too Late: Prosecutors' Pre-court Preparation of Rape Survivors," 22 LSINQ 1 (Winter 1997).

"The Evaluation of the STOP Violence Against Women Grant Program: Law Enforcement and Prosecution Components," Institute for Law and Justice (15 June 2001). (PDF, 133 pages).

"Process Evaluation of the South Carolina’s Attorney General’s Office Domestic Violence Training Project," Institute for Law and Justice (September 1998). (PDF, 19 pagse).

"Prosecution Attorneys Association of Michigan: Violence Against Women Training Programs," Institute for Law and Justice (March 1999). (PDF, 27 pages).

"Review of the California District Attorneys Association Violence Against Women Training Program," Institute for Law and Justice (May 1999). (PDF, 14 pages).

"Sexual Assault Response Team (SART) Guidelines," Pennsylvania Coalition Against Rape (2002). (PDF, 35 pages).

"Report of the Special Rapporteur on Violence Against Women, Its Causes and Consequences, Ms. Radhika Coomaraswamy," United Nations Economic and Social Council, 53rd Sess., U.N. Doc. E/CN.4/1997/47 (12 February 1997).

United States Department of State Country Reports on Human Rights Practices (2008).