Discretionary Prosecutorial Decision-Making: Gender, Sexual Orientation, and Bias in Intimate Partner Violence

• DOI: http://doi.org/10.1177/00938548221106498
• Published date: 01 November 2022
• Date: 01 November 2022
• Subject Matter: Articles

CRIMINAL JUSTICE AND BEHAVIOR, 2022, Vol. 49, No. 11, November 2022, 1699 –1719.

DOI: https://doi.org/10.1177/00938548221106498

Article reuse guidelines: sagepub.com/journals-permissions

© 2022 International Association for Correctional and Forensic Psychology

1699

DISCRETIONARY PROSECUTORIAL

DECISION-MAKING

Gender, Sexual Orientation, and Bias in Intimate

Partner Violence

JENNIFER COX

JANE C. DAQUIN

The University of Alabama

TESS M. S. NEAL

Arizona State University

Prosecutors exercise substantial discretion within the criminal justice process, potentially allowing for discrepant treatment

of criminal cases. The purpose of this research was to examine the association between prosecutorial implicit biases and

victim gender and sexual orientation in an intimate partner violence (IPV) case. Participants, 201 prosecutors from across the

United States, completed two Implicit Association Tests to measure implicit gender attitudes and implicit attitudes regarding

lesbian, gay, bisexual, and queer individuals. Participants were randomly assigned to one of four conditions (opposite-sex

couple/female victim, opposite-sex couple/male victim, same-sex couple/female victim, same-sex couple/male victim) and

read a case file of an alleged IPV arrest. Consistent with our hypotheses, prosecutors were 65% more likely to prosecute under

the severest criminal penalty when the victim was female or included an opposite-sex couple. However, we found no evi-

dence that implicit biases related to prosecutorial decisions.

Keywords: prosecutor; implicit bias; decision-making; gender; intimate partner violence

The legal system of the United States necessarily allows prosecutors substantial discre-

tion when determining how to proceed with criminal charges (O’Neill, 2004). Many

jurisdictions allow these “gatekeepers of the criminal justice system” (Jacoby & Ratledge,

2016) decision-making power at multiple stages of criminal case processing, including the

discretion to determine what criminal charges to apply following an arrest, how to proceed

AUTHORS’ NOTE: The authors would like to acknowledge Sydnee Erickson, Hannah Lind, Elizabeth

MacNeil, and Lauren Meaux for their help with data collection and cleaning. Any opinions, findings, and

conclusions or recommendations expressed in this material are those of the authors and do not necessarily

reflect the views of the National Science Foundation. This material is based upon work supported by the

National Science Foundation (Award Number: 1748371). Correspondence concerning this article should be

addressed to Jennifer Cox, Department of Psychology, The University of Alabama, Tuscaloosa, AL 25487;

e-mail: Jennifer.m.cox@ua.edu.

1106498CJBXXX10.1177/00938548221106498Criminal Justice and BehaviorCox et al. / Discretionary Prosecutorial Decision-Making

research-article2022

1700 CRIMINAL JUSTICE AND BEHAVIOR

with plea bargain negotiations, trial strategy, and in some jurisdictions, sentencing recom-

mendations. This discretion, however, may allow individual biases, including implicit

biases, to influence prosecutorial case processing.

Implicit biases are associations between a social concept (e.g., male) and an evaluation

(e.g., good, powerful) identified via indirect measurement (Greenwald & Lai, 2020). Two

such biases, the implicit gender role bias and the implicit bias regarding lesbian, gay, bisex-

ual, and queer individuals (LGBQ+), may become particularly salient in criminal cases

involving nontraditional gender role behavior and/or same-sex couples. Criminal cases of

intimate partner violence (IPV), which involve coercion, dominance, and isolation in the

context of an intimate relationship (Jackson, 2007), may represent such a situation—par-

ticularly when the intimate relationship involves a same-sex couple or male victim. Of note,

the experiences of trans and gender diverse individuals are important and imperative for a

comprehensive understanding of implicit biases and IPV. However, the experiences of this

community within this context may be distinct from the broader LGBQ+ community

(Peitzmeier et al., 2020). For the purposes of this research, we focus specifically on lesbian,

gay, bisexual, and queer individuals.

Despite the vast literature on unconscious biases (see Greenwald et al., 2015; Oswald

et al., 2015), to date, there is a dearth of research concerning implicit biases within the con-

text of judicial decision-making (see Kang et al., 2012). Furthermore, while acknowledging

the extensive literature concerning prosecutor charging decisions, particularly in cases of

sexual assault (see Spohn & Tellis, 2014), few experimental studies have examined prose-

cutorial consideration of the gender and sexual orientation of the IPV defendant/victim

dyad, and there is no research considering if implicit biases are associated with prosecuto-

rial discretionary decision-making. The current study had two objectives: (a) examine how

prosecutors consider the gender and sexual orientation of the defendant/victim dyad in a

case of alleged IPV and (b) determine whether prosecutor implicit biases predict discretion-

ary decision-making in a case of alleged IPV.

PROSECUTORIAL DECISION-MAKING

Legal scholars and criminologists have studied prosecutorial discretion for decades

(Kerstetter, 1990; McDonald, 1979). More recently, public discourse and popular media

have focused on the power of this group at multiple stages of criminal case processing. As

noted by O’Neill (2004), some level of discretion is necessary at both the state and federal

levels. Constraints on resources make it impossible for prosecutors to pursue every case,

and differences in legal statutes and regional priorities make mandatory prosecution

impossible.

Despite the considerable control prosecutors exercise over the criminal justice process,

when compared with other decision-making groups (e.g., juries), research with this popu-

lation is relatively sparse, typically nonempirical, and has generally focused on a single

decision point (i.e., plea bargaining; see Redlich et al., 2017) or case type (i.e., sexual

assault; see Spohn & Tellis, 2014). One major research focus concerns the legal (e.g.,

evidentiary factors) and extralegal (e.g., defendant race and economic class) factors that

relate to prosecutorial discretion. Regarding extralegal factors, some nonexperimental

studies suggest defendant race may be related to charging decisions (Kaiser et al., 2017;

Petersen, 2017). However, experimental research has failed to identify such effects in the