A Prosecutor’s Misguided Attempt To Get More Sexual Assault Convictions

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Case workers at the Sexual Assault Support Services of Midcoast Maine report that they counseled 503 people who said they were survivors of sex crimes last year. Only 76 filed a police report. This is a troubling statistic, but the response from a local prosecutor is far more troubling. District Attorney Natasha Irving says prosecutors should no longer decline to prosecute a case just because they “think it’s too hard to prove.” That response, she believes, “is very damaging to a survivor,” she said. According to the Bangor Daily News, “Irving has simplified the criteria for how her office will prosecute sexual assault allegations to a two-step process.” First, “Is there a credible allegation?” and second, “is the victim willing to move forward with prosecution knowing they might have to testify publicly?”

One attorney who defended a student accused of sexual assault in a case against Irving last month says that lowering the standard for prosecuting these types of crimes can be harmful and dangerous to defendants. Irving holds that this should not be a primary concern. But she failed to get a conviction in that case after the judge ruled the state had not met the burden of proof beyond a reasonable doubt. “It didn’t feel good for any of us to lose that case. But I do think personally, I would rather show a victim that we will fight for them, than [rejecting a case] because it’s too hard to prove beyond a reasonable doubt,” Irving said. Since “rapes aren’t [typically] occurring in front of an audience,” Irving said prosecutors need to think outside of the box in terms of proving that an assault occurred.

It is difficult for many prosecutors to prove sexual assault beyond a reasonable doubt. But for a prosecutor to say, as Irving does, that she will not allow her obligation to meet her burden to interfere with her notion of justice, is to misunderstand the system we have. It isn’t a question of “how bad are these allegations in theory?” or “how much do we as a society condemn this type of crime?” Our criminal system is premised on the idea that prosecutors, to obtain a conviction, must prove their case beyond a reasonable doubt. That’s the metric we have for determining guilt.

According to Arian Clements, the executive director of Sexual Assault Support Services of Midcoast Maine, only a small fraction of people who say they experience sexual violence ever report it to law enforcement because they worry that “they somehow will be put on trial for what happened instead of the perpetrator.”

But in a system where the objective for defense counsel is to discredit the prosecution’s case, which means discrediting their witnesses, it is the defense attorney’s job to undercut the credibility of the complainant. Any defender who fails to do so should be fired.

This is the main complaint we hear over and over about the way we prosecute sex assault cases in general: Survivors don’t come forward because they are afraid their case can’t be proven beyond a reasonable doubt, and because they are afraid they will be discredited at trial. But no amount of aggressive charging, as Irving is promising to do, will change this, as demonstrated by the fact that the judge recently threw out her case for lack of sufficient proof. The only way to change the outcomes of sex assault cases is to change our system.

We use proof beyond a reasonable doubt as a proxy for guilt. It is not a perfect system. There will always be cases where evidence points strongly to one person, who happens to be innocent, and other cases where scant evidence implicates the actual culprit. But generally, the system is accepted as the best one possible. It is, however, particularly ill-suited for sex assault cases.

Criminal sanctions are what law professor Adam Kolber calls “bumpy,” meaning that “a gradual change to the input sometimes dramatically affects the output and sometimes has no effect at all.” He writes in a 2014 article for the California Law Review, “A man who has sex with a woman negligently believing she consents may be convicted of rape and sentenced to several years in prison. Had he made the same mistake but been slightly more cautious, he might have had no criminal liability whatsoever.” If we wanted, he writes, we could “fine-tune damage awards and the severity of prison sentences anywhere along a spectrum.”

Another scholar goes further. In a 2017 article, professor Doron Teichman challenges the idea of our criminal system as purely dichotomous and posits “that this common assumption does not adequately depict the manner in which the criminal justice system operates.” Instead, Teichman argues for “a much more refined penal regime that is attuned to both questions of culpability and proof” and “presents an evidentiary theory of punishment according to which sanctions are calibrated to the degree of certainty that wrongdoing has occurred.”

Teichman’s idea may be chilling to some, who fear that people facing scant evidence against them would nonetheless be convicted, albeit of lesser crimes. But this is precisely the system we already have, at least when it comes to plea bargains. As a public defender, I would routinely encounter evidence favorable to my client, show it to the prosecutor, and hear the prosecutor say, “OK, I’ll drop the charge down to a misdemeanor.” It was rarely, if ever, “Oh, there’s a real possibility of innocence here. I guess I’ll dismiss the case entirely.”

The only way to get a consistently fairer outcome for both defendants and accusers, especially in cases where sexual assault is alleged, would be to change from an adversarial system to a restorative system. Such a move would allow both parties to be heard in a context free from harsh cross examination. It would shift the emphasis away from the singular drive to prove the case beyond a reasonable doubt, and, where appropriate, allow the survivor to set the terms of the resolution depending on his or her needs. It would also encourage the defendant, if guilty, to take responsibility in a more profound and immediate way than a term of imprisonment alone ever could. Instead, however, we keep doing things the same way and wondering why they don’t change.