DOJ Looks To End A Legacy Of Bias In Sex Assault Cases

By Hannah Albarazi | May 31, 2024, 8:47 PM EDT ·

The U.S. Department of Justice says that legal fallacies and misogynistic stereotypes often lead prosecutors to decline to charge alleged perpetrators of sexual violence, but new guidance from the department is pushing prosecutors to give more credence to victims and see that their claims are more thoroughly investigated.

The May 20 guidance urges prosecutors at the federal, state and local levels not to automatically decline to charge alleged perpetrators based on "legal fallacies" around the impossibility of proving "he said, she said" cases or based on what the DOJ called "misogynistic stereotypes about women."

Instead, prosecutors should more thoroughly investigate claims and learn to build criminal cases involving sexual assault and intimate partner violence with a victim's account as the foundational evidence.

"Sexual assaults and domestic violence are, in large part, underreported, underinvestigated, and underprosecuted because of gender bias (and other intersecting biases) rooted in the fallacies that surround these crimes, including that women lie about sexual assault and domestic violence and that their own behavior contributes to their victimization," the DOJ's guidance says.

Victims' attorneys, advocates and former prosecutors told Law360 that the DOJ's guidelines, if implemented, could result in more people reporting incidents of sexual violence, more prosecutors bringing charges, more perpetrators being held to account, and maybe one day an overall decrease in sexual violence in our society.

Out With the Old

Experts say the DOJ guidelines place a magnifying glass over many of the problematic ways that sexual violence cases — including sexual assault, rape, intimate partner violence and stalking — have been handled, and could help prosecutors interact with victims in a way that doesn't retraumatize them, while also building the strongest cases possible against alleged perpetrators.

"Sexual assault and domestic violence are among the most challenging cases to prosecute, and as a result, meritorious allegations are too often declined for prosecution," the DOJ framework states, citing the research of Ashley Fansher, an assistant professor of criminal justice at the University of North Dakota.

Fansher, whose research focuses on sexual assault jurisprudence, told Law360 she was pleased to see the DOJ encouraging prosecutors to adopt a trauma-informed response, as well as its suggestions for how prosecutors can include statements in their cases without violating hearsay rules, its guidance on corroborative evidence, and its emphasis on prosecutors meeting with victims before making any charging decisions.

"In cases where there is only the victim's account, it can seem that there is only one piece of evidence to be used in the case. However, the examples and logic provided here can help prosecutors think outside of this mentality and look outside the box for small details to support their case," Fansher told Law360.

In her estimation, Fansher said the DOJ guidelines address many of the unique challenges prosecutors face when handling these types of cases and offer practical strategies to win them.

"I appreciate the [DOJ's] acknowledgment that these are not public crimes, there is rarely physical evidence, and that offenders target vulnerable victims. This is important for a public so consumed by crime shows and misperceptions," she said. "Additionally, 'flipping the script' to focus on why the perpetrator chose this victim is a vast improvement from traditional cases where all attention is on why the victim was in the position to be assaulted."

Fansher said the question now is: Will prosecutors adopt it?

If they do, they'll follow the DOJ instructions to check their biases.

Prosecutors' decisions not to take up cases of meritorious allegations, the DOJ said, may result from misconceptions about how crimes involving sexual assault and domestic violence are committed and reported, how victims give their accounts, and the evidence required to prove their accounts beyond a reasonable doubt.

To enhance the prosecution's response to sexual assault and intimate partner violence in a trauma-informed manner, the DOJ is instructing prosecutors to rely on the evidentiary value of the victim's account and to use it to frame the investigation.

The DOJ also has tasked prosecutors with considering what accountability and justice look like — beyond just conviction rates — and has rooted the guidelines in the maxim that a prosecutor represents a government whose interest in a criminal prosecution is "not to 'win a case' but to see 'that justice shall be done,'" quoting the 1935 U.S. Supreme Court case Berger v. United States .

The DOJ lays out pages of practical suggestions for how prosecutors can use the law and evidentiary rules strategically and effectively, such as by establishing the alleged perpetrator's pattern of misconduct or corroborating the victims' account with those of eyewitnesses who can speak to the person's condition or demeanor before or after the assault.

"We must take care not to unwittingly project assumptions on an imagined jury and make prosecutive decisions based on those assumptions," the guidance says.

Evidence: In With the New

Former Philadelphia prosecutor Jennifer Long says it is not uncommon for prosecutors to speculate that a jury won't believe the accuser in a sexual assault case and won't convict the defendant unless there is dispositive physical evidence, eyewitness accounts or video evidence of the assault, leading some prosecutors to view such cases as unwinnable.

"But these cases are provable. Prosecutors can have success on the merits, uphold the rule of law, and serve victims and the public, all while relying on a victim's account," the Justice Department's guidance states.

The department reminds prosecutors that their primary obligation is to the U.S. Constitution and the rule of law, even if public sentiment or a victim demands the opposite, saying prosecutors have a responsibility to the public to bring charges against alleged perpetrators of sexual violence if they believe the evidence supports the charge. Of course, just like in any other case, the DOJ says charges must only be brought when they are supported by credible, admissible evidence that prosecutors believe can sustain a conviction beyond a reasonable doubt.

Long said the DOJ guidance makes clear that prosecutors need to move away from making a judgment on an initial report and, instead, must actually interview the accuser and investigate the case.

The estimated 400,000 untested rape kits in the U.S. can be seen as quantitative evidence of criminal sexual assault cases not moving forward, said Long, who now teaches Georgetown University Law Center students about how to prosecute cases of sexual violence. She also helms the nonprofit AEquitas, which receives DOJ funding and is cited throughout the DOJ's new framework.

If prosecutors investigate these types of crimes, Long said, they are likely to find more evidence than they might expect.

The DOJ says that in addition to forensic or medical evidence, prosecutors should look for "ear witness" accounts from people whom the victim or the suspect told about the alleged assault around the time it occurred, social media evidence, device location evidence, and expert witness testimony that can educate jurors about the presence or absence of evidence, or about victim behavior and traumatic memory.

Not prosecuting sexual violence cases, meanwhile, can have a negative ripple effect, Long said.

When prosecutors decline to bring charges in a sexual assault case without conducting an adequate investigation due to a feeling that there is insufficient evidence or because of a victim's perceived lack of credibility, police officers may not refer similar cases for prosecution, and alleged perpetrators may think their misconduct doesn't have legal consequences, Long said.

"Every time these cases don't go forward, you're [risking] leaving a serial perpetrator out there who is going after someone else," Long said.

The DOJ guidelines inform prosecutors that "the law consistently recognizes that a victim's account is evidence" and that "learning to build a case with a victim's account as its foundation often requires a shift in mindset as to what a prosecutable case looks like."

Attorneys and legal experts in the area of sexual assault jurisprudence told Law360 this guidance is a long-needed push in the right direction.

"Overall, publication of the framework is an important step toward transforming prosecutorial responses to gender-based violence," said Deborah Tuerkheimer, a professor at Northwestern University Pritzker School of Law.

Tuerkheimer told Law360 that the DOJ's new framework "encourages an expansive view of corroboration, which in turn shifts how prosecutors understand their role in investigating and proving cases involving sexual assault."

"It develops a more comprehensive approach to thinking about how sexual assault and domestic violence cases should be charged, how they can be proved — including with experts — and how prosecutorial success should be measured," said Tuerkheimer, whose research was also cited in the Justice Department's framework.

To Sigrid McCawley, managing partner at Boies Schiller Flexner LLP, the DOJ's new framework wisely directs prosecutors to focus on making the victim's account the centerpiece of the prosecution.

McCawley, who has spent much of the last decade representing victims of sexual assault, including those of deceased financier Jeffrey Epstein, told Law360 the DOJ framework "reinforces the importance of believing the victim's account, something that has been lacking generally in our society for a very long time."

"Abusers typically attack their victims by claiming they are 'liars' that are after 'money.' DOJ's new framework addresses those common defenses head-on and directs prosecutors to shape their cases with that in mind," McCawley said.

Instead, the DOJ instructs prosecutors to challenge the "liar" defense, stating that purported motives for people to lie — such as for monetary gain, revenge, because the victim was actually the primary aggressor, or because the victim regrets an embarrassing consensual sexual encounter — "may play into misogynistic stereotypes about women."

"It can be an effective argument to pierce the logic of these tropes," the DOJ instructs prosecutors nationwide.

Perpetrators, the DOJ says, frequently choose people whom they expect no one to believe, anticipating that they will evade responsibility. But a victim's decision to come forward, along with their reason for doing so, can also lend credence to their account, as can their reason for delayed reporting, the DOJ says.

Trauma-Informed Prosecutors

In addition to evidentiary guidance, the DOJ also offers a trauma-informed way for prosecutors to interact with people reporting sexual or intimate partner violence, which may also require a significant shift in mindset for veteran prosecutors.

"This guide seeks to turn the tide and strengthen our collective response to these crimes, equipping prosecutors to build provable cases in a trauma-informed manner that treats victims with humanity and ensures due process for defendants," the DOJ guidelines state.

Elizabeth A. Fegan, a co-founding partner of FeganScott LLC who represents victims of sexual violence, said the DOJ's guidance "is so important to legitimize the fact that victims of sexual assault will sometimes act in a counterintuitive manner."

Fegan has represented a number of Harvey Weinstein's survivors, including Jennifer Siebel Newsom, the wife of California's sitting governor, who in 2022 recounted at a criminal trial her alleged rape by Weinstein nearly two decades earlier. Weinstein's defense team tried to discredit Newsom on the stand, questioning her about seemingly upbeat emails she sent to Weinstein following the alleged assault.

While the jury hung on the charges involving Newsom, the jury convicted the disgraced media mogul of raping and sexually assaulting an Italian model. A Los Angeles judge sentenced Weinstein to 16 years in California state prison.

"My hope is that the framework helps to dismantle the 'rape myths' and misogynistic stereotypes that defendants spout in court, and make it more likely that courts will allow expert testimony discrediting those myths and stereotypes on a societal level (or grant motions in limine to prevent their admission in the first place)," Fegan said in an email to Law360.

Tuerkheimer, the Northwestern University law professor, said the DOJ stresses the importance of prosecutors "suspending disbelief," even in the face of victims' counterintuitive behaviors.

"It reminds prosecutors to attend to the effects of trauma, not only when building their case, but in the course of building their relationship with the victim, particularly across different group identities," Tuerkheimer told Law360. "It centers survivors in the decision-making process in ways that challenge traditional understandings of the prosecutorial function."

If followed, the DOJ's guidance will be decisive for the prosecution of sexual violence cases, said Judie Saunders, a partner at ASK LLP who specializes in representing victims of sexual violence.

Saunders said she's heartened to see the DOJ instructing prosecutors to educate law enforcement, courts, potential jurors and investigators about the lack of a typical demeanor or behavior for a victim of sexual assault, either at the time of the incident or when interviewed later.

Rachel Green, an associate at Katz Banks Kumin LLP lauded the DOJ's citations to neurological research confirming that victims' brains are injured by the trauma they experienced, saying "this explicit reliance on science-backed conclusions is welcome."

"One of the biggest challenges all advocates for survivors of sexual and intimate partner violence face in investigating and prosecuting civil and criminal claims against perpetrators is society's persistent, and incorrect, perception of how a 'normal' victim should behave after sexual or intimate partner violence," Green told Law360.

"There is no 'normal' victim," she said. "Victims are traumatized, and we cannot expect them to act intuitively."

A Long Way to Go

The DOJ's framework makes important strides toward centering victims in its pursuit of accountability for sex crimes, but attorneys and legal scholars say there is still a long way to go.

Given that the U.S. criminal justice system has historically acted as "a reinforcer of society's myths about victims, it will take more than mere guidelines to meaningfully reverse the lack of trust victims have in it," Green said.

"Further, guidelines do not necessarily mean that all prosecutors will suddenly change their ways. The framework is welcome, but its impact remains to be seen," Green added.

Fansher, the University of North Dakota criminal justice professor, said there's room for further DOJ guidance to prosecutors, including on how best to handle delayed reporting of sexual violence.

"In my study [cited in the DOJ's framework] and in others like it, delayed reporting leads to a significant decrease in the likelihood of a prosecutor accepting a case," Fansher noted.

The DOJ policy only briefly mentions how vertical prosecution — in which a single prosecutor, or a team of prosecutors, sticks with a case from beginning to end, rather than multiple prosecutors handling various aspects of the litigation — may improve victim cooperation and mental well-being. Fansher thinks the DOJ should outright endorse vertical prosecution.

"I believe that a call to action on implementing more vertical prosecution, particularly in cases such as these, should be highly recommended," she said.

While victims of sexual violence and intimate partner violence are disproportionately women and offenders are disproportionately men, Fansher found the Justice Department's use of gendered language in its guidance may imply to prosecutors "that men cannot be victims, and women cannot be offenders, which is fully untrue."

She said the DOJ would also do well to provide further guidance to prosecutors on plea bargains.

"If these cases are being plea-bargained, which we know is an extremely common occurrence, how do we approach that?" Fansher asked. "What are the pros and cons of this for sexual assault cases, where victims are arguably experiencing a different type of trauma and, if there is no deal offered, you may be facing a jury that subscribes to dated views on these crimes?"

But Fansher and other experts in the field of sexual assault jurisprudence told Law360 that, overall, they see the publication of the DOJ framework as a needed push toward transforming prosecutorial responses to sexual violence and intimate partner violence.

"Ideally, the guidance will be followed by targeted training programs and concrete efforts to ensure compliance with best practices," Tuerkheimer, the Northwestern University law professor, told Law360.

Having seen the damage done by Florida prosecutors who cut a sweetheart deal with Jeffrey Epstein in 2008, after which he continued to traffic underage girls, McCawley of Boies Schiller told Law360 she thinks the DOJ framework has the potential to help more victims' voices be heard.

"Our society will benefit greatly from having prosecutors who are trained to remember that it is incredibly difficult for a victim of abuse to report their abuser and if they do, their report needs to be taken seriously," McCawley said.

--Editing by Lakshna Mehta.

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