Identification, Corroboration, and Charging: Examining the Use of DNA Evidence by Prosecutors in Sexual Assault Cases

• DOI: 10.1177/1557085120940795
• Date: 01 December 2020
• Published date: 01 December 2020
• Subject Matter: Articles

https://doi.org/10.1177/1557085120940795

Feminist Criminology

2020, Vol. 15(5) 634 –658

© The Author(s) 2020

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DOI: 10.1177/1557085120940795

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Article

Identification, Corroboration,

and Charging: Examining

the Use of DNA Evidence

by Prosecutors in Sexual

Assault Cases

Tri Keah S. Henry1 and Alicia L. Jurek2

Abstract

This study examines the influence of DNA evidence on prosecutorial decisions in

sexual assault cases. Thirty-eight prosecutors experienced with prosecuting sexual

violence cases were surveyed regarding the use of biological evidence in sexual assault

cases, including the ways in which it is generally used, the cases in which it is most

critical to have, and factors impacting case attrition. Results indicate that prosecutors

perceive DNA evidence to be extremely valuable in prosecuting sexual assault cases.

Several themes related to the perspective, context, process, and conditions under

which DNA evidence plays a vital role in sexual assault case processing are identified.

Keywords

prosecutors, sexual assault, DNA, qualitative research, case processing, discretionary

decision-making

Introduction

Researchers have long been concerned with how sexual assault cases are processed

through various stages of the criminal justice system. Much attention has been given

to sexual assault victims’ interactions with criminal justice actors at the earliest stages

of case processing, specifically the reporting stage and initial police responses

(Bachman, 1993; Campbell et al., 2015b; Chon, 2014; Clay-Warner & Burt, 2005; Du

Mont et al., 2003; Felson & Paré, 2005; Fisher et al., 2003). The interactions between

law enforcement and victims during these initial contacts can have significant implica-

tions for future stages of case processing, most notably decisions made by prosecutors.

1Indiana Univeristy- Bloomington, Bloomington, IN, USA

2Sam Houston State University, Huntsville, TX, USA

Corresponding Author:

Tri Keah Henry, Indiana University, Sycamore Hall 302 1033 E Third Street, Bloomington, IN 47405-7005,

USA.

Email: trihenry@iu.edu

940795FCXXXX10.1177/1557085120940795Feminist CriminologyHenry and Jurek

research-article2020

Henry and Jurek 635

According to the 2016 National Crime Victimization Survey (NCVS), approximately

23% of individuals experiencing a sexual assault reported their victimization to police

(Morgan & Kena, 2016). Of the approximately 20% of rapes committed that are

reported to police, only 7% to 27% are prosecuted (0.4%–5.4% of total sexual assaults)

and 3% to 26% of those prosecuted (0.2%–5.2% of total) result in a conviction1

(Lonsway & Archambault, 2012).

Many factors contribute to the high attrition rate of sexual assault cases. Prosecutors

are concerned with maintaining positive win-loss ratios, and therefore make decisions

based on likelihood of convictibility (Albonetti, 1987; Frohmann, 1997; Spohn et al.,

2001). As such, prosecutors give special consideration to case characteristics that may

influence other members of the courtroom workgroup (i.e., judges and jurors). For

example, research suggests that prosecutors are less likely to file charges in sexual

assault cases when the victim knows the offender, exhibits risky behavior or perceived

questionable character, and does not immediately report the victimization to law enforce-

ment authorities (Beichner & Spohn, 2005, 2012; Frazier & Haney, 1996; O’Neal &

Spohn, 2017; Spears & Spohn, 1997; Spohn & Holleran, 2001). Many of these factors

are based on rape myths, widespread beliefs that serve to deemphasize the seriousness of

male violence against women by excusing the behaviors of perpetrators and blaming the

victims of sexual violence (Bohner et al., 1998; Lonsway & Fitzgerald, 1994). While

many of these factors are not legally relevant and have no basis in fact, they continue to

be influential in those sexual assault cases that make it to trial (Temkin et al., 2018).

Legally relevant factors are also important to prosecutors. Specifically, physical evi-

dence significantly increases the likelihood of case progression (Alderden & Ullman,

2012; Beichner & Spohn, 2005, 2012; Frazier & Haney, 1996; Horney & Spohn, 1996;

Spohn & Holleran, 2001). In the context of sexual assault investigations and trials, the

presence of physical evidence, especially DNA evidence, may be of particular impor-

tance because it serves to refute the commonly held rape myth that many victims are

lying about their sexual assault (Grubb & Turner, 2012).

While research in recent years has examined the role forensic evidence plays in police

investigations, and specifically in the investigation of sex crimes, it has not examined

how prosecutors use this evidence. The current study addresses this limitation by exam-

ining how forensic evidence, specifically DNA evidence, impacts the prosecutorial deci-

sion-making process. Using survey data collected from prosecutors with experience

prosecuting sexual assault cases, this study advances our knowledge of the uses of DNA

evidence in discretionary decision-making by (1) examining the characteristics that

make DNA evidence most crucial for the successful prosecution of sexual assault cases

and some of the common reasons prosecutors drop these cases, and (2) employing meth-

odological techniques that more fully address the context of these decisions.

Literature Review

Prosecutorial Decision-Making Processes in Sexual Assault Cases

Unlike judges, whose decision-making power is sometimes constrained by sentencing

guidelines, prosecutors can make decisions (e.g., whether to file charges, the level of