Can A Prosecutor Be Progressive And Take Sex Crimes Seriously?

The progressive prosecutor movement has a problem: how to address the public health crisis of sexual violence without perpetuating mass incarceration. More than one in five women have experienced physical sexual assault in their lifetime, but only a quarter of sexual assaults are reported to law enforcement, much lower than the over 60 percent of robberies or assault and batteries reported. What’s more, at police departments around the country, clearance rates for rape are scandalously low. Tuscon has a 7.3 percent clearance rate, and Las Vegas’s is 10.7 percent. New York City’s clearance rate is far higher but still comes in at a dismal 39.4 percent.  

If we’re serious about supporting survivors we must offer tangible relief. But the criminal legal system largely functions as a blunt instrument. That may change because prosecutorial reform candidates are offering new approaches in many important areas of the criminal legal system; they should turn their attention to sex crimes. 

As a survivor advocate, I have watched the rise of the progressive prosecutor movement with hope. Here are people who want restorative justice, advocate for spending on their communities and diversion instead of punishment, and pledge to run transparent and fair offices. Yet most rarely address how they will specifically confront sex crimes other than by pledging more prosecution. Sexual violence is a scourge on our society holding back every community: It’s in our homes, schools, workplaces, streets, public transportation, places of worship. It’s not bound by race or class or geography. 

My story of sexual assault by a Columbia University gynecologist has been covered widely by the media. But in their stories, the New York Times and BuzzFeed News centered prison time for my abuser who was accused of sexual assault by dozens of women. “19 Women Accused a Gynecologist of Abuse. Why Didn’t He Go To Prison?” read the Times headline in October 2019. My concerns are not so much about sentencing but instead focus on why police and prosecutors at the Manhattan district attorney’s office didn’t conduct a thorough investigation—or why I was told by an assistant district attorney that my accusation was outside of the statute of limitations when it wasn’t. I also question if justice is my abuser being added to the sex offender registry and losing his medical license after a 25-year career. Prosecutors seemed to think so; my case was called a “win” by the Manhattan DA’s office. But I didn’t win anything. The DA simply checked a box and moved on. Nothing about the outcome in the case addressed the root causes of the sexual violence I experienced.

There is a gap between the #MeToo movement and the reality of a victim’s experience in the criminal legal system. Victims are encouraged to speak up but when they do, they are often met with police and prosecutors who don’t offer much justice. Although the rate of those who say they have been raped in the past year nearly doubled in 2018, the number of sexual assaults reported to law enforcement has actually decreased. If victims find the courage to speak up, they must overcome mountains of disbelief from law enforcement and unchallengeable prosecutorial discretion. 

Chesa Boudin, San Francisco’s newly elected district attorney, campaigned on a promise to “test every rape kit.” His platform for addressing sex crimes is the most detailed among progressive prosecutors that I’ve seen to date. But by centering rape kit testing, what message is sent to the countless victims of sex crimes who don’t have physical DNA evidence? The promise shouldn’t be to test every rape kit, but support every survivor. If we’ve learned anything about sex crimes in the last few years, it’s that often the only witnesses and evidence are the victims themselves. There isn’t always a kit to test; prosecutors must evolve from this old way of thinking. 

Manhattan DA Cyrus Vance Jr. has led a highly publicized campaign to end the untested rape kit backlog. But this effort could counterintuitively dissuade new victims from coming forward. Some may wonder whether they will be believed if the crimes against them are anything other than a violent stranger rape with perfect DNA evidence. Eliminating the rape kit backlog also doesn’t mean that sexual violence is solved; sexual assault cases falter in so many other areas, especially at the front-end investigation by the police. And it is law enforcement that created the backlog in the first place.

Even Tiffany Cabán, the public defender who narrowly lost her bid for Queens district attorney, made no specific mention of sex crimes in her progressive campaign platform. She called for an expansion of the survivor services unit which ostensibly would include survivors of sexual assault. Though not a Queens resident, I campaigned for Cabán and supported her candidacy because it showed a different path to these powerful positions. I felt a painful absence of an acknolwedgment of sexual violence, however, a problem that is central to many of the issues she hoped to address like racial, social, and economic justice.  

Andrea Harrington, the district attorney in Berkshire County, Massachusetts, pledged in her 2018 campaign to review sex crimes cases left unindicted by predecessors. Harrington, who has been in office since early 2019, has made good on her promise with the establishment of a domestic and sexual violence task force. It will be interesting to see if Harrington’s recommendations are traditional “tough on crime” ideas. Hopefully her work offers new insights into fighting sex crimes and can serve as a model for others.

If we’re going to reform how prosecutors approach sex crimes, their careers must be judged by more than simply how many cases they win. Prosecutors’ working relationships with their police departments and other referral agencies should also be evaluated. What if prosecutors underwent a 360-degree performance review including “client” victims and police officers? 

More data is also needed. How many victims are reporting sex crimes, and how many cases are referred from other agencies? How are prosecutors acting on those reports, and what are the outcomes? If DA offices remain opaque, the public, survivor advocates, and sexual violence experts are unable to participate in a meaningful conversation or offer fact-based solutions. 

Sexual violence puts prosecutors in a tight box. Their tools are inherently punitive, but the most desirable outcome is sexual assault prevention, not punishment. 

I am a survivor—not an expert in prosecutorial reform—looking to contribute to the fight to end sexual violence. I shouldn’t have to be here but now that I am, I want to work with others on solutions. The #MeToo movement made space for me to share my story of abuse publicly. I hope the progressive prosecutor movement makes space for #MeToo.

Marissa Hoechstetter is the founder of Reform the Sex Crimes Unit.