The Criminal Justice System’s Response to Sexual Violence

Police Decision Making: Unfounding and Arrest

Victims of sexual assault who report the crime and are willing to cooperate with police and prosecutors as the case moves forward may confront criminal justice officials who are skeptical of their allegations and who question their credibility (see Estrich, 1987). The process begins with the police, who decide whether a crime has occurred; the amount of investigative resources to devote to identifying the suspect; whether to make an arrest of an identified suspect and, if so, the charges to file; and whether to refer the case to the prosecutor. These “gatekeeping” (Kerstetter, 1990) decisions, which largely determine the fate of the case, do not necessarily produce the outcome—arrest and successful prosecution—that the victim expected. As Taylor (1987, p. 89) explains, “Police determine how rape victims and cases are treated by the criminal justice system. . . . After giving a valid rape report and fully cooperating with the police, a woman may find herself in the unexpected and bewildering predicament of having come to the police for aid . . . only to have the door slammed firmly in her face.”

One of the most important, and highly criticized, decisions made by the police is the decision whether to “unfound” the charges. If the police officer investigating the crime believes the victim’s account of what happened and determines that the incident constitutes a crime, the case becomes one of the “crimes known to the police” that will be included in the jurisdiction’s crime statistics. If, on the other hand, the officer does not believe the victim’s story and therefore concludes that a crime did not occur, the case is unfounded.

Technically, cases can be unfounded only if the police determine that a crime did not occur. In reality, police may use the unfounding decision to clear—or “erase” (Konradi, 2007)—cases in which they are convinced that a crime occurred but also believe that the likelihood of arrest and prosecution is low. According to Martin (2006), police departments are evaluated in terms of clearance rates, which “encourages officers to unfound ambiguous or difficult cases, including those where a victim is reluctant, emotional, uncooperative, or compromised in some way (e.g., had smoked marijuana, was a prostitute, had a former sexual relationship with the rapist” (p. 53). Martin (1987; see also McCahill, Meyer, & Fischman, 1979) similarly argues that police may label a case unfounded for illegitimate reasons, including the fact that they harbor biases against the woman reporting the sexual assault (e.g., she is poor, African American or Hispanic, a prostitute, or has a criminal record), they believe that the victim in some way precipitated the attack, or they believe that her case will not stand up at trial.

There is very limited research on police unfounding decisions in sexual assault cases and most of the research that does exist is dated (Kerstetter, 1990; LaFree, 1989; McCahill et al., 1979; for more recent research see Bouffard, 2000; Tellis & Spohn, 2008). An early study by the Law Enforcement Assistance Administration (1977), in which police officers were asked to identify the factors that affected their decisions, found that the two most important predictors of whether cases would be founded or unfounded were proof of penetration and the suspect’s use of physical force. A later study (Kerstetter, 1990) examined sexual assaults reported to the police in Chicago in 1981. Kerstetter differentiated between cases in which the identity of the suspect was not known and those in which the victim and the suspect were acquainted in some way. In the “identity” cases, the most important predictors of the police founding decision were the complainant’s willingness to prosecute, whether the victim physically resisted the attack, whether a weapon was used, and whether the suspect was in custody. In contrast, in cases in which the victim and suspect were acquainted, the police were more likely to label the case a crime if the suspect was in custody, if the victim suffered collateral injury, and if there was no discrediting information, such as a pattern of alcohol or drug use or a history of mental illness or false complaints about the victim. These findings led Kerstetter to conclude that the police unfounding decision was affected by a combination of legally relevant instrumental factors and legally irrelevant victim characteristics.

A somewhat different approach was taken by Frazier and Haney, who examined case attrition in 569 sexual assaults reported during 1991 to a Midwestern metropolitan police department. They focused on whether a suspect was identified by the police, whether an identified suspect was questioned by the police, and whether the suspect was referred to the prosecuting attorney for charging. They found that suspects were identified in 273 (48%) of the cases, that the police questioned suspects in 187 (68%) of these cases, and that 68% of the suspects who were questioned were referred to the prosecutor (p. 617). Their analysis of the factors that affected these outcomes revealed that identified suspects were more likely to be questioned by the police if they were strangers to the victim, if there was evidence of penetration, if the victim was injured, and if there was a witness to the crime. The only variables that affected whether the case would be referred to the prosecutor for charging were whether the victim was injured and whether the suspect verbally threatened the victim. Similar to Kerstetter, they concluded that “evidentiary and credibility factors as well as offense severity are associated with cases proceeding to the prosecuting attorney’s office” (Frazier & Haney, 1996, p. 624).

Similar results were found in studies examining the police decision to make an arrest (Bachman, 1998; Bouffard, 2000; Du Mont & Myhr, 2000; Horney & Spohn, 1996; LaFree, 1981; Rose & Randall, 1982). LaFree’s analysis of sexual assaults reported to the police in a large metropolitan jurisdiction in the Midwest revealed that the arrest decision was influenced by a combination of legal and extralegal factors: the victim’s ability to identify the suspect, the victim’s willingness to prosecute, whether the victim engaged in any type of misconduct at the time of the incident, the promptness of the victim’s report, whether the victim was assaulted by an acquaintance rather than a stranger, and the suspect’s use of weapon. On the other hand, the arrest decision was not affected by the victim’s race, whether the victim resisted, the location of the incident, whether there was a witness who could corroborate the victim’s allegations, or whether the victim was injured. These findings led LaFree to conclude that, at least in this jurisdiction, the emphasis on the role played by the victim’s background characteristics was “greatly overstated” and that “legally relevant variables were paramount” (p. 592).

Two more recent studies call this conclusion into question. Although Bouffard found that crimes involving African American suspects and White victims were not more likely than other crimes to result in arrest, he did find that arrest was more likely if the victim and suspect had a prior relationship, if the victim agreed to undergo a sexual assault exam, and if the credibility/seriousness score of the crime (which measured whether other crimes were committed during the sexual offense, whether a weapon was used, and whether the crime occurred outdoors) was higher. He concluded that the “positive effect of the credibility scale might indicate increased police effort devoted to investigating the offense, because they believed the claim was true or was otherwise ‘worthy’ of investigation” (Bouffard, 2000, p. 537). Evidence of the role played by victim characteristics also surfaced in a study in which police officers evaluated vignettes in which the beverage consumption (beer or cola) of the victim and suspect was systematically varied (Schuller & Stewart, 2000). The authors of this study found that whereas officers’ perceptions of the suspect’s level of intoxication had no effect on their evaluation of the suspect’s credibility, blame, or guilt, perceptions of the victim’s intoxication did affect their assessment of the case. In fact, “the more intoxicated the respondents perceived the victim to be, the less blame they attributed to the alleged perpetrator and the more likely they were to believe that the perpetrator honestly believed that the complainant was willing to engage in intercourse” (Schuller & Stewart, 2000, p. 547).

In summary, the police decision to arrest a suspect accused of sexual assault or unfound a case involving allegations of sexual assault is influenced by both legal and extralegal criteria. Legally relevant variables that shape police decision making in sexual assault cases include the presence of physical evidence and the victim’s willingness to cooperate with the prosecution. Extralegal factors refer to victim, suspect, and case characteristics about which police make informal assessments such as the victim’s and/or suspect’s race, class, demeanor, and level of intoxication. The decision to unfound is particularly important because it reflects both organizational and individual case concerns that police officers must balance. Depending on the officer’s specialized training, awareness, and professionalism, a victim is either empowered to or discouraged from pursuing the prosecution of her rapist.

Prosecutors’ Charging Decisions

All of the decision makers in the American criminal justice system have a significant amount of unchecked discretionary power, but the one who stands apart from the rest is the prosecutor. The prosecutor decides who will be charged, what charge will be filed, who will be offered a plea bargain, and the type of bargain that will be offered. The prosecutor also may recommend the sentence the offender should receive. As Supreme Court Justice Jackson noted in 1940, “The prosecutor has more control over life, liberty, and reputation than any other person in America” (Davis, 1969, p. 190).

None of the discretionary decisions made by the prosecutor is more critical than the initial decision to prosecute or not, which has been characterized as “the gateway to justice” (Kerstetter, 1990, p. 182). Prosecutors have wide discretion at this stage in the process; there are no legislative or judicial guidelines on charging and a decision not to file charges ordinarily is immune from review. As the Supreme Court noted in Bordenkircher v. Hayes (434 U.S. 357, 364), “So long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion.”

Research on prosecutors’ charging decisions in sexual assault cases reveals that these decisions are strongly influenced by legally relevant factors such as the seriousness of the crime, the offender’s prior criminal record, and the strength of the evidence in the case (Frazier & Haney, 1996; Kingsnorth, MacIntosh, & Wentworth, 1999; Spohn & Holleran, 2001; Spohn & Spears, 1996; Tellis & Spohn, 2008). A number of studies, however, also document the influence of victim characteristics, including the victim’s age, occupation, and education (McCahill et al., 1979); “risk-taking” behavior such as hitchhiking, drinking, or using drugs (LaFree, 1981; McCahill et al., 1979; Spohn et al., 2001; Spohn & Holleran, 2001; Spohn & Spears, 1996; Tellis & Spohn, 2008); and the character or reputation of the victim (Feild & Bienen, 1980; Feldman-Summers & Lindner, 1976; Martin & Powell, 1994; McCahill et al., 1979; Reskin & Visher, 1986; Spohn et al., 2001).

Research also has demonstrated that the relationship between the victim and the accused has a significant effect on decision making in sexual assault cases. Consistent with Black’s (1976) relational distance theory, these studies conclude that reports of sexual assaults by strangers are less likely than reports of sexual assaults by acquaintances or intimate partners to be rejected by the prosecutor (Battele Memorial Institute Law and Justice Study Center, 1977; Loh, 1980; Spohn et al., 2001; Tellis & Spohn, 2008); sexual assaults involving strangers also are more likely to result in police and prosecutor agreement on the severity of charges to be filed (Holleran, Beichner, & Spohn, 2008). More recent and methodologically sophisticated research, on the other hand, concludes that prosecutors’ charging decisions in sexual assault cases are not directly affected by the victim–suspect relationship (Kingsnorth et al., 1999). Rather, different predictors affect charging decisions in stranger and acquaintance cases (Kingsnorth et al., 1999; Spohn & Holleran, 2001). Spohn and Holleran, for example, found that characteristics of the victim affected charging decisions only in cases involving acquaintances and intimate partners and that the suspect’s use of a gun or knife affected charging only in cases involving strangers.

Adding to the already complicated dynamics particular to sexual assault case processing is the role played by the race of the victim and the race of the suspect (Brownmiller, 1975; Kennedy, 1997; Spohn, 1994). The sexual stratification hypothesis (LaFree, 1989) posits that reactions to crimes will vary depending on the race of the suspect and the race of the victim. More to the point, the hypothesis is that sexual assaults involving White women and African American men will be treated more harshly—and thus will be more likely to result in the filing of charges—than those involving other racial combinations.

The findings of research examining the effects of offender and victim race on sexual assault case processing decisions are somewhat inconsistent. Whereas early research (LaFree, 1989) provided support for the sexual stratification hypothesis, more recent research revealed either that the racial combination of the victim–offender dyad had no effect on case processing decisions (Kingsnorth, Lopez, Wentworth, & Cummings, 1998; Tellis & Spohn, 2008) or that the effect of race was confined to cases in which the victim did not engage in some type of “risk-taking” behavior (Spohn & Spears, 1996). Moreover, a recent study of prosecutorial charging decisions found interactive effects of victim race and victim–suspect relationship; prosecutors were more likely to file charges in stranger sexual assault cases involving White victims (Spohn & Holleran, 2001). In other words, extant research indicates that the effect of race on charging decisions is mitigated by both the relationship between the victim and the offender and by victim characteristics such as “blame and believability” and “moral character” (Holleran et al., 2008; Horney & Spohn, 1996; Kalven & Zeisel, 1966; Kerstetter, 1990; Spears & Spohn, 1997; Spohn & Holleran, 2001; Spohn & Spears, 1996; Stanko, 1988; Whately, 1996).

Three studies used qualitative data to explore in more detail the reasons why prosecutors reject charges in sexual assault cases (Frohmann, 1991, 1997; Spohn et al., 2001). The notion that decisions in rape cases are affected by the “typifications of rape held by processing agents” (LaFree, 1989, p. 241) plays a central role in the research conducted by Frohmann (1991, 1997), who used data gathered during observations of the case screening process and interviews with prosecutors to analyze explanations of and justifications for case rejection. Frohmann (1991) asserted that prosecutors’ concerns about convictability lead them to question the credibility of the rape victim and the veracity of her story. She suggested that “prosecutors are actively looking for ‘holes’ or problems that will make the victim’s version of ‘what happened’ unbelievable or not convincing beyond a reasonable doubt” (Frohmann 1991, p. 214). According to Frohmann (1991), this focus on victim credibility reflects prosecutors’ orientation toward potential jurors. Thus, “the ability to construct a credible narrative for the jury and the jurors’ ability to understand what happened from the victim’s viewpoint are pivotal in prosecutors’ assessment of case convictability” (Frohmann, 1997, p. 536).

Frohmann’s observations and interviews led her to conclude that prosecutors use a variety of techniques to discredit victims’ accounts of sexual assault and, thus, to justify case rejections. One technique, which Frohmann (1991) labeled “discrepant accounts,” involves using inconsistencies in the victim’s story or incongruities between the victim’s account and prosecutors’ beliefs about “typical” rapes to justify case rejection. The victim’s credibility, in other words, will be called into question if her story changes with each retelling or is contradicted by the version told by the suspect or other witnesses. Her account also may be discredited if it conflicts with prosecutors’ “repertoire of knowledge” about the characteristics of sexual assault incidents and the behavior of sexual assault victims. A second technique used by prosecutors to discredit victims’ allegations of sexual assault, according to Frohmann, is to impute ulterior motives to the victim. Prosecutors use their knowledge about the victim’s current circumstances, relationship with the suspect, and behavior at the time of the incident to question her assertion that the sexual activity was nonconsensual and/or to suggest that she had a reason to file a false complaint. Evidence that the victim was attempting to cover up nonmarital sexual activity or illegal behavior or to explain away a pregnancy or sexually transmitted disease, in other words, can be used to justify case rejection or to bolster the argument for rejection based on “discrepant accounts.”

In a later study, Frohmann (1997) identified an additional method—the “construction of discordant locales”—used by prosecutors to account for sexual assault case rejection. Frohmann argued that legal agents, including prosecutors, tend to ascribe the stereotypical features of a neighborhood to the victims, suspects, and jurors who live or pass through there. Because victims and suspects typically reside in racially mixed, lower-class neighborhoods that differ significantly from the White middle- and upper-class neighborhoods inhabited by potential jurors, the likelihood of conviction rests to some extent on potential jurors’ ability to understand, interpret, and make sense of the behavior of the victim and suspect. Cultural differences in the places where victims and jurors live, in other words, “lead to misinterpretation by jurors of victims that would result in ‘not guilty’ verdicts if the cases were forwarded.”

Spohn and her colleagues (Spohn et al., 2001) used data on all sexual assaults cleared by arrest in Miami in 1997 to replicate and extend Frohmann’s (1991) research on prosecutorial accounts of case rejection. Their examination of prosecutors’ written justifications for rejecting charges in these cases led them to conclude that the explanation for the high rate of charge rejection in these cases was complex. Whereas Frohmann (1991, 1997) argued that the decision to reject charges in sexual assault cases is inextricably linked to prosecutors’ “downstream concern with convictability,” which is itself linked to stereotypes concerning real rapes, credible victims, and rape-relevant behavior, they found that the prosecutor’s assessment of the likelihood of conviction was based on factors other than typifications of rape and rape victims. In a substantial number of their cases, the decision to reject charges could be traced to the victim’s failure to appear for a pre-file interview, the victim’s refusal to cooperate in the prosecution of the case, or the victim’s admission that the charges were fabricated. As they noted, in these types of cases, “the odds of conviction were low (or nonexistent), not because the prosecutor believed that the facts in the case contradicted potential jurors’ assumptions about rape and rape victims, but because the unavailability of a victim who was willing to testify made it impossible to proceed with the case” (Spohn et al., 2001, p. 228).

Specialized prosecution units developed with the intention of decreasing the negativity associated with rape victims’ experiences in the criminal justice system. In the sections that follow, we examine the research that evaluates specialized police and prosecution units for sexual assault cases and take a closer look at the social context of sexual assault. We begin with a discussion of simple versus aggravated rape, followed by an overview of the small but burgeoning body of research about intimate partner rape. We conclude with unanswered questions that future research must address.

The Effect of Specialized Police and Prosecution Units

One consequence of the rape reform movement and the concomitant focus on violence against women was the establishment of specialized units to investigate and prosecute sexual assaults. Police departments established specialized sex crimes units to investigate reports of sexual assault and other sex offenses; some of these units also developed formal protocols for handling these types of cases. Similar units were created in prosecutors’ offices. Typically, these units use vertical prosecution; each case is assigned to an assistant prosecutor, who stays with the case until final disposition. In some jurisdictions, the prosecutors assigned to the unit handle all of the case decisions, including the decision to file charges. In other jurisdictions, cases are forwarded to the specialized unit only after a decision to file charges has been made.

Legal scholars contend that investigation and prosecution within a specialized unit provide several potential advantages in the processing of cases, such as sexual assaults, involving reluctant or fearful victims and potentially difficult evidentiary issues. Abadinsky (1988, p. 125), for example, argues that the use of one attorney with continuous case responsibility is beneficial to the victim, as doing so means that the victim “does not have to discuss the case anew with each new assistant.” Researchers also contend that specialized units increase the likelihood of arrest and successful prosecution (Beichner & Spohn, 2005; Loh, 1980). One assumption underlying this expectation is that routine exposure to sexual assault cases results in an accumulation of experiences that enhance a police officer’s or a prosecutor’s ability to develop a case that has a strong likelihood of successful prosecution. The specialized attorney, for example, is better able to assess the strengths and weaknesses of a case, to anticipate and respond to defense tactics, and to communicate sensitively and confidently with the victim. A second assumption is that having a smaller group of police officers and attorneys responsible for sexual assault cases will reduce disparity in decision making. Decisions, in other words, will be made more consistently, and fewer legally irrelevant factors will come into play in case processing decisions. A third assumption is that police officers and attorneys assigned to specialized units will embody a more aggressive organizational posture toward sexual assault cases. As a result police officers will unfound fewer cases and will make more arrests; prosecutors will decline fewer cases and take more cases to trial.

With only two exceptions (Beichner & Spohn, 2005; LaFree, 1989), these predictions concerning the effects of specialized units for prosecuting sexual assaults are largely untested. LaFree examined sexual assault case processing decisions before and after the creation of a specialized sex offenses unit in the Indianapolis Police Department. Although he found differences in attitudes toward rape and rape victims between officers assigned to this unit and officers assigned to the homicide and robbery unit, he did not find that arrest and felony filing rates increased following the creation of the unit. He also found little support for the hypothesis that extralegal variables would have a reduced effect on decision making in the postreform period. LaFree (p. 88) concluded that “some factors are difficult to change no matter how enlightened or motivated the public official. Arrest and felony screening require elements, such as a reasonable suspect and a victim willing to testify, that are often beyond the control of the police.”

Beichner and Spohn (2005) examined sexual assault charging decisions and case outcomes in two jurisdictions: Kansas City, Missouri, which has a specialized sex crimes unit that makes charging decisions and uses vertical prosecution, and Dade County (Miami), Florida, where sexual battery cases involving teenagers and adults are prosecuted vertically by the Felony Division, but only after cases are screened by the Felony Screening Unit. Their hypothesizing that charging rates would be higher and that legally irrelevant victim characteristics (e.g., risk-taking behavior by the victim at the time of the incident or questions about the victim’s moral character) would be less influential in Kansas City than in Miami was not confirmed. The odds of charging did not differ between the two jurisdictions, and the predictors of charging in each jurisdiction were a combination of evidentiary factors and legally irrelevant victim characteristics. Furthermore, interviews revealed that prosecutors in both jurisdictions based their filing decisions on a standard of proof beyond a reasonable doubt. These results led Beichner and Spohn (p. 491) to conclude that “prosecutors’ charging decisions, like judges’ sentencing decisions, are guided by a set of ‘focal concerns’” and that, “regardless of whether decisions are made in a specialized unit or not, victim credibility is a real focal concern of the prosecutor in sexual assault cases.”

Simple Versus Aggravated Rape

Many feminists argue that research documenting the influence of victim characteristics on sexual assault case outcomes generally signals widespread distrust of rape victims and specifically indicates that women who are seen as behaving in sex-inappropriate ways are not given the full protection of the law. Estrich, however, asserts that historically the processing of rape cases has not been characterized by indiscriminate sexism. She contends that “all women and all rapes are not treated equally” and suggests that both case law and criminal justice decision makers differentiate between the “aggravated, jump-from-the bushes stranger rapes and the simple cases of unarmed rape by friends, neighbors, and acquaintances” (Estrich, 1987, pp. 28-29).

Estrich’s (1987) assertions not only suggest that there will be differences in outcomes for simple and aggravated rape cases but also that the influence of victim characteristics on case outcomes will depend on whether a rape is simple or aggravated. According to Estrich, because the essential features of aggravated rape cases meet the requirements of “real rape,” there is no inherent reason to distrust the victim in these cases. Thus, “blame and believability” characteristics of the victim—factors that might lead decision makers to blame her for being victimized or to question her credibility—are ordinarily irrelevant to the processing of aggravated rape cases. If, in other words, a woman is raped by a complete stranger who held a gun to her head or a knife to her throat, criminal justice decision makers normally would not be concerned with whether she had been using drugs, was assaulted by a man she met in a bar, or was employed as a topless dancer. Because simple rapes are not considered “real rapes,” such victim characteristics would play a more important role in determining the outcome of these cases. If, for example, a woman was raped by a man she was dating, her behavior at the time of the incident, her background, and her reputation might be taken into consideration in deciding how to handle the case.

There are several studies that explore the effect of victim characteristics on case processing decisions in different types of sexual assaults. The results of these studies are mixed. Two studies, for example, found that victim characteristics did not have a differential effect on simple and aggravated rape cases in Detroit (Horney & Spohn, 1996; Spears & Spohn, 1997), but a third found that the victim’s age and whether the victim was under the influence of drugs or alcohol affected prosecutors’ charging decisions only in simple rape cases (Spohn & Horney, 1996). Although two studies found that legally irrelevant victim characteristics such as use of alcohol or drugs or other risk-taking behavior at the time of the incident did not have a more pronounced effect on sexual assault cases involving nonstrangers than on cases involving strangers (Kerstetter, 1990; Kingsnorth et al., 1999), another study found that risk-taking behavior by the victim and questions about the victim’s moral character affected prosecutors’ charging decisions only in cases involving friends, relatives, and intimate partners (Spohn & Holleran, 2001).

Intimate Partner Sexual Assault

There is a dearth of research focusing specifically on sexual assaults involving intimate partners (for reviews see Bergen, 2004; Bergen & Bukovec, 2006; Yllo, 1999). According to Tellis (2008), this reflects the “invisibility” of sexual assault in the context of domestic violence as well as the tendency of researchers to conceptualize intimate partner sexual assault and domestic violence as separate issues. It also reflects the fact that researchers often dichotomize the relationship between the victim and the offender as one involving either strangers or nonstrangers, with assaults involving family members, acquaintances, and intimate partners included in the nonstranger category.

Less than 20 years ago, rape within marriage or other intimate relationships was not only legal but deemed an oxymoron by many (Bergen, 2004; Monson & Langhinrichsen-Rohling, 1998; Russell, 1990; Yllo, 1999). This is evident when considering the last of the marital rape exemptions was removed from state laws in 1993 (X, 1999). Despite well-documented findings of a significant overlap among heterosexual couples of male-perpetrated physical and sexual aggression (Basile, 2002; Bergen, 2004; Bergen & Bukovec, 2006; Campbell & Soeken, 1999; Finkelhor & Yllo, 1985; Monson & Langhinrichsen-Rohling, 1998; Rand & Saltzman, 2003; Russell, 1982, 1984; Saunders, 2002; Smith, Thornton, DeVellis, Earp, & Coker, 2002; Swan & Snow, 2002; Walker, 1979), extant research tends to dichotomize intimate partner rape and domestic violence as separate issues. This trend began in the 1980s when various scholars cautioned that marital rape victims’ experiences should not be classified under the battered woman rubric because rape within intimate relationships may not necessarily follow the same pattern as physical assault (e.g., Russell, 1982; Walker, 1979; Finkelhor & Yllo, 1985). These issues, however, are not far from being mutually exclusive. For example, Bergen (1996) observed that in clinical studies of battered women, from one third to one half of battered women in clinical trials reported being sexually assaulted at least once by their partner. This suggests that prevalence rates may be higher than previously estimated if it is taken seriously that battered women are particularly susceptible to being raped by their partner (Bergen & Bukovec, 2006).

Estimates from the 1980s projected that 10% to 14% of married women and at least 40% of battered women were raped by their husbands at least once (Finkelhor, Gelles, Hotaling, & Strauss, 1983; Finkelhor & Yllo, 1985; Russell, 1990). In fact, half of Finkelhor and Yllo’s female respondents reported being raped by their husbands more than 20 times (p. 23). The authors observed two patterns when rape followed physical assault: (a) Either the hitting and punching would continue through the rape, or (b) the male was finished with his violence and he wanted to “make up” through sex (rape). They concluded that rape is an extension of other violence in the context of intimate relationships, that it is not necessarily a precipitating act, but it is not a conflict over sex either.

Researchers have developed typologies of marital rape based on either the context in which the rape occurs or the preferences of the perpetrator. After conducting interviews with 50 women who had been raped by their husbands, Finkelhor and Yllo (1985) developed a three-part typology of marital rape ³ that included battering rapes, nonbattering rapes, and obsessive rapes. Battering rapes refer to sexual assault in the context of battering or in addition to verbal and physical assault. Nonbattering rapes refer to sexual assault where little to no physical assault coexists and rape tends to result from sexual conflicts. Obsessive rapes refer to sexually obsessive behaviors in the context of a marital rape that are influenced by the consumption of large amounts of pornography (Finkelhor & Yllo, 1985). In contrast, Russell’s (1982, 1990) typology offers a third example, which is an increasingly detailed typology that categorizes men by their preferences for rape vis-à-vis consensual sex, in relation to intimate partner rape: (a) men who prefer raping to consensual sex, (b) men who are able to enjoy both rape and consensual sex and are indifferent to which one it is, (c) men who prefer consensual sex but are willing to rape when their sexual advances are refused, (d) men who would like to rape but do not act on their desires, and (e) men who have no desire to rape.

In short, these typologies reflect the complex dynamics involved in intimate partner sexual assault and provide insight as to why these crimes are particularly hard to uncover (Dutton, Kaltman, Goodman, Weinfurt, & Vankos, 2005). Victims often redefine what they experience, believing that it cannot be rape if the offender is a husband or boyfriend (Belknap, 2007, p. 293). In fact, it is often not until years later that a woman recognizes that the forced sex she experienced was indeed rape (Basile, 1999; Bergen, 2004; Campbell & Soeken, 1999; Swan & Snow, 2002; see also Koss, 1996; Warshaw, 1994). Similarly, some of the most violent rapes are those occurring in marriage, whereas others, though highly coercive in nature, are not violent per se (Campbell & Soeken, 1999).

Given the increased recognition that a significant component of domestic violence includes sexual assault, current research focuses on the context and social dynamics associated with this form of partner abuse. Raquel Bergen conducted interviews with 40 intimate partner rape survivors and 37 service providers, surveyed 621 battered women’s shelters and rape crisis centers, and was a participant observer at both a battered women’s shelter and a rape crisis center. In terms of women’s response to intimate partner rape, one third of the women in Bergen’s sample reported having immediately defined their experiences of forced sex as rape, whereas for others it took more time and repeated episodes of violence in order for them to define their experiences as rape. Bergen found that women use psychological defense mechanisms such as rationalization and minimization to manage the violence for the purposes of survival. For example, the women in this sample describe using such strategies as resistance, avoidance, and placating their partners in order to preserve their physical and emotional integrity and to minimize the extent of injury suffered while being raped (Bergen, 1996).

A more recent study built on the findings of both Finkelhor and Yllo (1985) and Bergen (1996) by questioning the difficulty involved in “assign[ing] a name to experiences of unwanted sex when there is no physical force and no lack of consent” (Basile, 1999, p. 1039). Basile interviewed a sample of 41 women drawn from a nationally representative telephone survey about their sexual experiences in marital and cohabiting relationships. The findings from this study resulted in a typology that describes five ways in which women give in to unwanted sex with their husbands. They fell on a continuum ranging from initially not wanting to engage in sexual relations but ultimately being able to enjoy it, to knowing what will happen if she does not comply based on prior experiences of rape and/or other serious forms of violence with her partner. In between the two extremes lie the remaining three rationalizations: first, the “it’s my duty” line of reasoning, which suggests that marital obligation requires acquiescence even though the woman personally does not desire the sexual relations; second, the “it is easier not to argue” position, meaning that the woman decides that it is better to give into the man’s sexual demands than to tolerate any further nagging, coercion, or intimidation; or third, the woman acquiesces because of fear of what will happen if she does not. This research is important because it extends Finkelhor and Yllo’s discussion of nonphysical coercion in the context of sexual assault illustrates that the processes and consequences of “giving in” to unwanted sex with an intimate partner have not been given as much scholarly attention as other forms of forced sex that are traditionally associated with rape (Basile, 1999, p. 1036). Belknap (p. 293) notes another important implication about marital rape research from Basile and others (Bergen, 1996, 2004): Trying to resist increases the potential for injury; thus, nonresistance becomes a learned mechanism to minimize the level of injury accompanying rape. Furthermore, it is likely these same behaviors are experienced by men and women in dating relationships (Belknap, 2007).

In summary, typologies of marital/intimate partner rape and associated forms of partner abuse provide insight into patterns and themes related to the social context of relationship violence. Despite an initial tendency to conceptualize battering and rape as mutually exclusive acts, researchers increasingly document that sexual assault is often a critical, though seldom explored, component of domestic violence. The most recent research in this area suggests that two critical elements of traditional rape law, force and lack of consent, must be reevaluated when examining sexual assault involving intimates given the complex issues that emerge when a woman is legally bound to—and often has procreated with—her rapist.

Intimate Partner Sexual Assault and the Criminal Justice System

Sexual assault case processing scholarship is inextricably linked to rape law reform research because it examines whether prejudicial treatment of victims by criminal justice system officials such as the police, attorneys, and judges inhibits full prosecution of these cases in the present day. This prejudicial treatment comes in the form of using legally irrelevant criteria—often rooted in sexism, classism, and/or racism—to discredit the complainant’s status as victim, thus obviating the need to prosecute the suspect. Studies tend to emphasize that the outcomes of reported sexual assaults are largely contingent upon the combined sociodemographic characteristics of the victim and offender and—perhaps most important—the existence of a prior relationship between them.

In a study of reported sexual assaults in California, Kingsnorth et al. (1998, p. 360) tested the hypothesis that some sexual assaults may be of sufficient seriousness to require full prosecution regardless of extralegal considerations. The authors summarized three major findings from previous tests of the sexual stratification hypothesis ⁴ :

1) no support has been found for the hypothesis at decision points related to guilt determination; 2) all studies have found an effect in the predicted direction on punishment severity; and 3) racial composition is mediated by the victim/offender relationship to produce significantly less severe punishment for African American offenders who assault African American acquaintances. (p. 369)

The authors found no relationship between the racial composition of the victim–offender dyad and the decision whether to fully prosecute or judges’ sentencing decisions. However, their explicit focus on the most serious assaults is noteworthy because discrimination might be least apparent at the most severe end of the offense continuum (Kingsnorth et al., 1998, p. 370). It is important to reiterate that offense severity is often measured by the degree of aggravation, that is, victim injury, offender(s) use of a weapon, and no prior relationship between the victim and offender(s) (see Estrich, 1987; Kalven & Zeisel, 1966).

In the same jurisdiction 1 year later, Kingsnorth et al. (1999, p. 288) observed that although stranger and nonstranger sexual assaults were equally likely to be prosecuted, the same information was not necessarily weighted equally in making that decision in both types of cases. This finding was replicated in Spohn and Holleran’s (2001) study of prosecutors’ charging decisions in sexual assaults involving strangers, acquaintances, and intimates. They found that although women raped by strangers were more likely than women raped by nonstrangers to “engage in precisely the types of risky behaviors that might lead jurors to conclude that they precipitated or were to blame for the assault” (p. 679), legally relevant factors dominated prosecutorial decision making in rape cases involving strangers. In other words, victim characteristics affected charging decisions only in cases involving nonstrangers. Considered together, extant research confirms that the criminal justice system is not necessarily a source of legal protection for women when they are acquainted—let alone intimately involved—with their rapist. This begs the question of how the criminal justice system’s response differ between rapes involving acquaintances and rapes involving intimates.

There is a dearth of research addressing either the predictors of victim compliance with prosecution or the dispositions of reported intimate partner rape (Bergen, 2004; see Tellis, 2008). The first step to addressing this void in the research, according to Judith Berman (2004), is to name it; domestic sexual assault is a term used to emphasize the connection between this act of domestic violence and sexual assault (p. 23). Berman notes the irony that despite all the consciousness raising that emphasizes women are most at risk of victimization at the hands of loved ones, domestic sexual assault—which contains elements of the two most common crimes against women: domestic violence and sexual assault—remains unaddressed in our current case processing system. This is partially attributable to the development of specialized domestic violence and SART in police and prosecutors’ offices throughout the country, which—ironically—resulted from feminist activism. The domestic violence and sexual assault movements, however, have developed along different trajectories, resulting in differences in terms of resources, ⁵ visibility, and criminal justice responses at the local, state, and national levels. Berman states that “While specialization plays an important role in effective management of these cases and in protecting victims, the division has left a crack through which domestic sexual assault frequently falls” (p. 26). Two examples of this include (a) domestic violence cases get charged as misdemeanors whereas sexual assaults get charged exclusively as felonies, and (b) there are inconsistencies in sentencing, depending on whether the case is managed as a domestic violence or sexual assault case. In other words, the previously reviewed factors that explain the dearth of knowledge about the nature of intimate partner rape are also at work in the realm of case processing, thus rendering it invisible. Therefore, advocates, policy makers, criminal justice officials, and court processing researchers can prevent domestic sexual assault from falling through the cracks in the future by working to identify the offenders, victims, and situational correlates more effectively and through the development of more appropriate offender intervention and victim empowerment strategies.

In summary, the current criminal justice response to intimate partner abuse retains some of its historical tendency to characterize it as “private matter” and not as a crime (Belknap & Potter, 2006). Despite the existence of rape law reform, sexual assaults involving strangers are more likely to be investigated thoroughly (Bachman, 1998; McCahill et al., 1979; Spohn & Spears, 1996), less likely to be unfounded by police (Bouffard, 2000; Kerstetter, 1990; LaFree, 1985, 1989; McCahill et al., 1979; Tellis & Spohn, 2008), more likely to result in police and prosecutor agreement on the severity of charges to be filed (Holleran et al., 2008), and more likely to result in arrest and harsher outcomes (Bouffard, 2000; Horney & Spohn, 1996; Spohn & Horney, 1992) than are cases involving acquaintances and intimate partners. Even in the few studies that indicate relative parity in the treatment of cases involving strangers and nonstrangers, researchers note that the criteria used to determine the likelihood of conviction vary by type of case (see Kingsnorth et al., 1999, p. 288; Spohn & Holleran, 2001, pp. 676-677). The extent to which these varying criteria work in women’s favor in the prosecution of intimate partner rape is unknown. However, the sizable gap in case processing research about this type of rape (Bergen, 2004) suggests that what Bachman and Paternoster (1998) describe as an “acquaintance discount” is perhaps a “free ride,” so to speak, for intimates. Future sexual assault case processing research is greatly needed to provide in-depth insight into the social context of intimate partner rape and the factors associated with its alarming attrition rate in the criminal justice system.