Decision-Making Of The District Attorney: Diverting Or Prosecuting Intrafamilial Child Sexual Abuse Offenders
| Author | Lorie A. Fridell |
| Published date | 01 October 1990 |
| Date | 01 October 1990 |
| DOI | http://doi.org/10.1177/088740349000400304 |
| Subject Matter | Articles |
249
Decision-Making
Of
The
District
Attorney:
Diverting
Or
Prosecuting
Intrafamilial
Child
Sexual
Abuse
Offenders
Lorie
A.
Fridell
Florida
State
University
Abstract
This
research
involves
the
assessment
of
the
consistency
between
stated
referral
guidelines
and
the actual
criteria
used
by
a
District
Attorney’s
office
to
select
defendants
for
participation
in
a
pre-trial
diversion
program
for
intrafamilial
child
sexual
abuse
offenders.
Diverted
and
non-diverted
groups
were
compared
with
regard
to
two
sets
of
factors
(formal
screening
criteria
and
offender
and
offense
variables
that
were
unrelated
to
the
formal
diversion
guidelines)
to
assess
target
population
coverage
and
bias.
The
results
are
discussed
in
the
context
of
legal
parameters
of
prosecutorial
discretion.
Introduction
Diversion
programs
for
intrafamilial
child
sexual
abuse
offenders
were
developed
to
alleviate
the
potentially
devastating
effects
of
criminal
justice
proceedings
on
the
victim
and
other
family
members.
Diversion
proponents
maintain
that
these
programs
(1)
spare
the
victim
the
ordeal
of
testifying
in
court,
(2)
spare
the
victim
the
burden
of
responsibility
for
the
punishment
of
the
offender
and
the
breakup
of
the
family,
(3)
save
the
family
from
the
expense
and
stigma
of
a
public
trial,
(4)
preserve
the
family
unit
and
allow
for
continued
financial
support
of
the
family
by
the
offender,
and
(5)
effect
immediate
treatment
for
the
victim,
offender
and
other
family
members
(see
e.g.,
Giarretto,
1978;
Kirkwood
and
Mihaila,
1979;
MacFarlane
and
Bulkley,
1982;
Tyler
and
Brassard,
1984;
Tipple
et
al.,
n.d.).
In
addition
to
sparing
the
victim
and
family
the
negative
consequences
of
criminal
justice
processing,
diversion
programs
can
facilitate
more
com-
prehensive
and
effective
intervention
by
the
criminal
justice
system.
Specifi-
This
research
was
supported
by
grant
84-IJ-CX-0070
from
the
National
Institute
of
Justice.
An
earlier
version
of
this
paper
was
presented
at
the
Annual
Meeting
of
the
Midwestern
Criminal
Justice
Association
in
Chicago,
Illinois
(October
1988).
250
cally,
proponents
claim
that
the
existence
of
diversion
programs
increases
the
number
of
reports
of
abusive
situations
to
authorities
and
decreases
the
attrition
of
cases
from
the
judicial
system
(e.g.,
due
to
the
lack
of
victim
and
family
cooperation)
(Kirkwood
and
Mihaila,
1979;
Herman,
1981;
Giar-
retto,
1982).
The
Santa
Clara
Child
Sexual
Abuse
Treatment
Program
(CSATP)
was
one
of
the
first
specialized
facilities
developed
to
provide
counseling
services
for
families
which
have
experienced
intrafamilial
child
sexual
abuse
and
has
served
as
a
model
for
at
least
65
similar
treatment
agencies
nationwide
(Giar-
retto, 1982).
These
programs,
working
in
conjunction
with
the
criminal
justice
system,
provide
treatment
for
offenders-along
with
their
victims
and
other
family
members-and
diversion
from
prosecution
and/or
lengthy
prison
sen-
tences.
In
the
post-adjudication
programs,
offenders
are
given
suspended
sentences,
or
sentenced
to
a
few
months
of
jail
with
work
furlough,
and
are
required
to
receive
treatment
as
a
condition
of
probation.
In
the
pre-trial
diversion
programs,
defendants
are
diverted
from
the
criminal
process
prior
to
trial
in
exchange
for
successful
completion
of
a
treatment
program.
The
Prosecuting
Attorney’s
Decision
To
Divert
In
pre-trial
diversion
programs,
client
selection
decisions
are
made
primari-
ly
by
the
District
Attorney.
Prosecutors
maintain
broad
discretion
regarding
appropriate
action
to
be
taken
on
cases
referred
to
their
attention.
This
ex-
tensive
prosecutorial
discretion
has
led
to
concerns
regarding
its
abuse.
An
area
of
concern
relevant
to
pretrial
diversion
is
the
prosecutors’
decisions
regarding
who
will
and
who
will
not
be
diverted.
An
important
issue
relating
to
diversion
screening
involves
the
extent
to
which
decisions
are
made
in
accordance
with
designated
guidelines.
It
is
necessary
to
ensure
that
inap-
propriate
factors
(e.g.,
the
defendant’s
race
or
socioeconomic
status)
are
not
entering
into
the
decision
to
divert
or
prosecute,
and
that
the
guidelines
are
applied
to
each
case
fairly
and
consistently.
Though
some
jurisdictions
allow
for
judiciary
review
of
diversion
decisions,
all
courts
which
have
addressed
the
issue
of
diversion
screening
have
held
that
the
central
role
belongs
with
the
prosecutor.2
The
considerable
discretion
allocated
prosecutors,
however,
does
not
sanction
arbitrariness
or
bias.
According
to
the
Board
of
Directors
of
the
National
Association
of
Pre-Trial
Service
Agencies;
a
growing
body
of
opinion
sees
the
screening
and
diversion
of
classes
of
cases
by
prosecutors
as
beyond
and
different
from
the
traditional
sort
of
prosecutorial
discretion
and
thus
subject
to
outside
review
to
insure
fairness
of
application
(National
Association
of
Pre-Trial
Service
Agencies,
1978:
66).
Outside
review
should
assess
whether
the
diversion
decision
is
being
made
in
accordance
with
program
policy.
It
is
necessary
to
determine
if
persons
who
are
similar
with
regard
to
stated
criteria
are
being
treated
similarly
and
that
the
decisions
of
the
prosecutor
reflect
the
assessment
of
factors
that
the
policy-makers
in
the
system
feel
the
decisions
should
reflect.
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