Sex Offender Risk Assessment

Abstract

Jurisdictions in the United States, United Kingdom, and Australia now have laws that enable preventive detention of post-sentence sex offenders based on an assessment of the offender’s likely recidivism. Measures of recidivism, or risk assessments, rely on the criminal justice process to produce the “pool” of sex offenders studied. This article argues that recidivism research needs to be placed in the context of attrition studies that document the disproportionate and patterned attrition of sexual offenses and sexual offenders from the criminal justice process. Understanding the common biases that affect criminal prosecution of sex offenses would improve sexual violence prevention policies.

Keywords

attrition risk assessment sex offenders

Introduction

A number of jurisdictions in the United States, the United Kingdom and Australia now have laws that enable “preventive detention”—that is, continued detention or ongoing supervision in a community setting—of post-sentence “high-risk” or “dangerous” sex offenders. Such detention is based on an assessment of the offender’s likely recidivism. The existence and operation of such post-sentence detention laws, and their impact on civil liberties, has given particular impetus to research that aims to identify the characteristics of sex offenders and factors associated with their criminal recidivism. An expanding body of criminological and psychological research into recidivism and risk assessment now informs the design of actuarial tools used in a range of corrections settings to assess the ongoing risk that convicted sex offenders pose to the community.

The knowledge of sex offenders and of the characteristics associated with recidivism that underpin risk assessments is invariably derived from studying the “pool” of sex offenders produced by criminal justice processes. Most commonly, data sources include only those offenders with an initial criminal conviction for a sex offense that resulted in a term of imprisonment, and recidivism is also measured by subsequent contact with the criminal justice system, be it through report, arrest, charge, prosecution, or conviction. This reliance on criminal justice identification (charging, prosecution or conviction) of sex offenders needs to be problematized given the disproportionately low rate of reporting, prosecution and conviction that distinguishes sexual offenses within criminal justice systems. Recidivism research must also be problematized given that the attrition of sexual offenses within the criminal justice system is known to be patterned, with slight variations across jurisdictions, such that offenses and victims with certain characteristics are preferred by the key decision-makers at all stages within the system: police, prosecutors and juries (see, for example, Brown, Hamilton, & O’Neill, 2007; Du Mont, 2003; Estrich, 1987; Lievore, 2004a; Spohn, Beichner, & Davis-Frenzel, 2001). In short, the criminal justice system favors those assaults that look most similar to “violence” (or “real rape”) and least similar to (potentially “appropriate”) “sex.” The attrition of sexual offenses within the criminal justice system on this basis, both before and after reporting to police, ensures that the minority of cases that secure a conviction for a sexual offense are not reflective of the most common or injurious forms of sexual violence experienced by women and children.

Importantly, the minority of sexual offense cases that secure convictions are also not reflective of the range of persons who commit sex offenses. This distortion or bias in the “sample” of convicted sex offenders will be reflected and even amplified in sex offender research focused on recidivism and risk assessment. Biases in the sample may thus contribute to inaccurate assessments of some offenders as high-risk, at significant cost to both the detained offender and the community. From a public policy and violence-prevention perspective, however, the greater concern is that resourcing of sexual violence prevention strategies may in turn be distorted by the profile of “high-risk” sex offenders produced through recidivism research. If convicted and “high-risk” sex offenders are mistakenly considered to be typical of those who commit sex offenses, or of those offenders who pose the most serious “danger” to women and children, public perceptions of risk (and safety) will also be distorted.

This article argues that, for public policy purposes, the knowledge of “sex offenders” produced by recidivism research needs to be placed in the context of prevalence and attrition studies that document the disproportionate and patterned attrition of sexual offenses and sexual offenders from the criminal justice process. To date, research on sex offender recidivism and risk assessment has not addressed the patterned nature of sex offense attrition in the criminal justice system. The present article demonstrates that the decisions of police, prosecutors, and juries actively shape the pool of convicted sex offenders relied on in recidivism studies. The argument is made by analyzing Australian data sources on prevalence and reporting of sexual offenses and attrition in reported rape cases. Reading these studies “against the grain,” the article identifies the features of assaults and the characteristics of offenders preferred within the criminal justice process. This analysis indicates that the attrition of sexual offenses is patterned not only in relation to well-known offense and victim characteristics, but also in particular (and undesirable) ways in relation to offender characteristics. It is clear that those charged and prosecuted with rape in Australia represent a distorted sample of the range of persons against whom rape complaints are made. Although risk assessment tools may usefully identify which of the convicted offenders is at high risk of returning to the corrections system post-sentence, violence-prevention strategies need to also address the vast majority of sex offenders who will never be reported, prosecuted, or convicted. Sexual violence prevention policy should thus pay close attention to feminist and criminal justice research into sexual assault prevalence and attrition, not only to recidivism research and its consequent risk assessment instruments and preventive detention measures.

Sex Offenders and Risk Assessment

Research on sex offender recidivism, and development of tools to assess the degree of ongoing risk that offenders pose, have advanced significantly over the past decade (see Chung, O’Leary, & Hand, 2006; Hanson & Morton-Bourgon, 2007; Richardson & Huebner, 2006). However, the development and use of sex offender risk assessment tools is not without controversy, particularly as their results are increasingly used in some jurisdictions to justify the imposition of preventive detention, control orders, and ongoing monitoring regimes on “high-risk” offenders who have completed their custodial sentences (see Doyle & Ogloff, 2009; Janus & Prentky, 2003; Webster, Gartner, & Doob, 2006).

In the United States, for example, “sexually violent person/predator” (SVP) laws authorize civil confinement post-sentence of offenders that present a “risk of future criminal sexual misconduct” (Janus & Prentky, 2003, p. 1447). In several Australian jurisdictions, “serious” sex offenders can be held in criminal detention on indefinite sentences (Doyle & Ogloff, 2009; McSherry, Keyzer, & Freiberg, 2006). In the United Kingdom, similarly, courts can impose extended or indefinite sentences on offenders who pose a significant risk of serious harm to the public, and it has been noted that “courts appear to have taken to using these new powers with considerable alacrity and for a much wider group than originally envisaged” (Hebenton & Seddon, 2009, p. 348). Preventive detention is only the most extreme form of offender control with widespread use of sex offender registers, residential restrictions, and post-release supervision in a number of jurisdictions (see McSherry et al., 2006). In the United States, community notification schemes and electronic tracking of sex offenders on supervised release are also in use (see Hebenton & Seddon, 2009).

As Janus and Prentky (2003) note, an accurate assessment of future “dangerousness” and the ability to differentiate offenders according to risk levels are central to both the ethical justification and practical effectiveness of preventive detention and ongoing supervision:

The central justification for spending huge sums of money on SVP programs is that the “most dangerous” offenders are incapacitated. Public policy is not well served if, because of inaccurate assessment of risk, extraordinary resources are devoted to the ordinarily dangerous. (p. 1448)

The need to reduce uncertainty and improve efficacy within the science of risk prediction, given its contemporary uses, has driven efforts to improve measures and methods. Although clinical judgment or expert opinion has traditionally been used and preferred by courts, various actuarial risk assessment tools designed specifically to predict risks of recidivism for sexual offenders have now been developed and validated, including Static-99 and SVR-20 (see Hanson & Morton-Bourgon, 2009; Langton et al., 2007; Stadtland et al., 2005). Recent studies have concluded that the predictive accuracy of actuarial risk assessment is superior to structured professional judgment and should be preferred by courts and parole boards (Hanson & Morton-Bourgon, 2009; Janus & Prentky, 2003). However, uncertainty is not entirely resolved by actuarial tools, given that the different tools are known to produce different risk ratings for individual sexual offenders (Barbaree, Langton, & Peacock, 2006). The risk of a “false” risk assessment may be offset by using more than one instrument; however, there is presently no scientific method for reconciling divergent ratings, and researchers suggest that combined results may not be as accurate as the “predictive validity of the single best actuarial scale” (Hebenton & Seddon, 2009, p. 352). Deciding which is the “single best actuarial scale” to use in a given situation, and knowing how to interpret the results, remain matters of professional judgment at this time (Hanson & Morton-Bourgon, 2009, p. 10).

There is healthy debate in the criminological and psychological-research literature about the merits of different instruments and methods of offender risk assessment and also the ethics of using (imperfect) risk assessments to justify restrictions on civil liberties (Doyle & Ogloff, 2009; Hebenton & Seddon, 2009; Janus & Prentky, 2003; Webster et al., 2006). This article takes up a broader issue: the patterned attrition of sexual offenses through the criminal justice system. Research into sex offender recidivism, and hence risk assessment, relies on criminal justice processes to identify the “sample” of sex offenders from whom data on offender characteristics and rates of recidivism are derived and predictive tools developed. The majority of sex offender risk assessment tools are developed and validated through analyses of populations of released sex offenders—that is, those who have been convicted and completed a term of imprisonment (see Hanson & Morton-Bourgon, 2007, 2009; Home Office UK, 2002; Richardson & Huebner, 2006). This is a subset of convicted sex offenders. Recidivism is then generally measured by counting the number of subsequent convictions (or occasionally arrests or prosecutions) for either sex offenses, violent nonsexual offenses, and/or all criminal offenses within a given time frame (commonly 5-10 years). As Janus and Prentky (2003) explain, risk-assessment tools are developed by isolating and analyzing offender and offense characteristics to identify variables that predict rearrest, prosecution, and/or conviction. However, the ability of those variables truly to differentiate between offenders who reoffended and those who did not, compared with differentiating only between those who were apprehended and prosecuted for reoffending and those who were not, is dependent on the effectiveness of the criminal justice system.

The limitations of assuming that the criminal justice system works effectively and objectively are generally acknowledged in recidivism research (see, for example, Payne, 2007). However, it is suggested here that particular limitations are likely to affect criminal justice data sources for sex offenses given their disproportionate attrition.

Reporting of Sexual Offenses and Attrition Through the Criminal Justice System

The extraordinary attrition or “dropout” rate for sexual assault and rape within the criminal justice process has received concerted attention in recent years from feminist activists and legal critics (Kelly, Lovett, & Regan, 2005; Regan & Kelly, 2003; Temkin & Krahé, 2008). It is well established that sexual offenses are the least likely of all criminal offenses to be reported to police and that, when reported, they are less likely than other offenses to result in a criminal conviction (Gelb, 2007; Temkin & Krahé, 2008; Victorian Law Reform Commission [VLRC], 2004). Indeed, the “gap” between reporting and conviction rates for sexual offenses appears to have widened in recent years to the extent that leading UK researchers in this field note that the “justice gap” is better described as a “chasm” (Temkin & Krahé, 2008, p. 10; see also Kelly et al., 2005).

In this context, several recent studies of sexual violence prevalence, of victims’ decisions to report to police, and of the attrition of reported sexual assault cases within the criminal justice system provide information about the features of cases in which offenders are most likely to be charged, prosecuted, and convicted (Brown et al., 2007; Kelly et al., 2005; Lievore, 2004a; Spohn et al., 2001; Statewide Steering Committee to Reduce Sexual Assault, Victoria [SSCRSA], 2006).¹ These empirical studies give a strong indication of the extent of underreporting and the disproportionate attrition of sexual offenses within criminal justice systems across common law jurisdictions. Notwithstanding the limitations of individual studies and the difficulty of comparing studies,² there is sufficient consistency in certain findings about sexual assault prevalence and attrition to enable a number of general conclusions to be drawn.

First, sexual offenses are not isolated or rare occurrences. As Kelly et al. (2005) note, “Rape is a more frequent and mundane crime than conventionally believed, with present and ex-partners featuring strongly, and for a substantial proportion of women rape involves repeat victimization” (p. 33). Sexual violence is prevalent and has a disproportionate impact on women and children (see for example, Australian Bureau of Statistics [ABS], 2006; Kelly et al., 2005; Mouzos & Makkai, 2004; Temkin & Krahé, 2008; Tjaden & Thoennes, 2000). Most offenders are known to their victims and overt force resulting in physical injury is generally not necessary to effect an assault.

Second, only a minority of sexual offenses is reported to the police and those incidents that are reported are not necessarily the most injurious or serious (Kelly et al., 2005; Lievore, 2003; Temkin & Krahé, 2008). As a consequence, “[o]fficial statistics on apprehensions, convictions and incarcerations for sexual assault . . . represent only the tip of the iceberg of all sex crimes perpetrated” (Lievore, 2004b, p. 24).

Finally, within the criminal justice process across jurisdictions there are three points at which sexual offense cases are consistently “lost” or filtered out: the police decision to investigate, charge or arrest; the prosecutor’s decision to commence or continue a prosecution; and, if defended, the jury decision.³ Although these attrition points are common for all criminal offenses, as Gelb (2007) notes and as discussed below, “there is a substantial difference in the way that sexual assault and related offenses move through the courts when compared with all offense types” (p. 5). As a result, conviction rates for reported sexual offenses are consistently below conviction rates for other criminal offenses (Gelb, 2007; Regan & Kelly, 2003).

The idea of “real rape,” conceived and developed by Susan Estrich in 1987, has been particularly influential in explaining why so many sexual offenses are filtered out of the criminal justice process. The real rape theory proposes that the rapes that are legitimated in cultural stereotypes and within the criminal justice process—“real” rapes—are a small and unrepresentative minority of sexual assaults. Specifically, Estrich (1987) proposes that a case is more likely to be regarded as a real rape (by victims, police, prosecutors, jurors, and the community) if it is clearly interpretable as violence: if the offender is a stranger; if force, threats or a weapon are used; if the victim/survivor’s resistance is overt and physical injury is sustained and documented (1987). Empirical research into the prevalence and attrition of sexual offenses supports the “real rape” theory that certain kinds of assaults and certain kinds of victims are far more likely than others to secure convictions. As a consequence, some victims and some forms of sexual assault—those that do not fit the “real rape template”—are effectively without legal redress.

Australian data support the real rape theory. At least one in five women reports experiencing sexual violence in her lifetime.⁴ Young, single, unemployed women aged 15 to 24, and girls aged 10 to 14, are most at risk of being sexually assaulted (ABS, 2003; Mouzos & Makkai, 2004). The vast majority of offenders are known to their victims and the majority of sexual assaults occur in a private residence (ABS, 2003). Weapons are rarely used; more commonly, offenders rely on threats and psychological tactics to complete the assault (Lievore, 2003). Contrary to popular opinion, most sexual assaults result in only slight to moderate physical injury (bruising and scratching), if any (Lievore, 2003), although the severity of physical injury is closely associated with the relationship between the offender and the victim. Victims are most likely to suffer physical injury when assaulted by an ex-partner; in turn, more injuries are likely to result from stranger assaults than from assaults by known men and family members (ABS, 2004b). Women assaulted by present or ex-partners are at risk of repeat victimization by the same offender (Lievore, 2003). Experiences of childhood sexual abuse and prior adult sexual violence are also risk factors for adult sexual assault, indicating a general association between past victimization and future vulnerability (Lievore, 2003).

Fewer than one in five sexual offenses are reported to police in Australia. Studies indicate that there was a slight increase in reporting over the decade between 1995 and 2005, but only from 15% to 19% (Phillips & Park, 2006).⁵ Importantly, the sexual offenses reported to police do not reflect the general profile of sexual offenses identified through incidence and prevalence studies (Lievore, 2003).⁶ A number of factors are known to affect the decision to report. For a range of reasons, assaults by present intimate partners are the least likely to be reported and assaults by strangers are the most likely to be reported (Lievore, 2003; Mouzos & Makkai, 2004). Reporting is also “positively correlated with the use or threat of physical force and weapons, physical injury and a completed assault” (Lievore, 2003, p. 27). Sexual offenses are thus more likely to be reported if they conform to standard ideas of a “violent” assault. A victim’s level of fear following the attack and her attitudes toward and knowledge of police are additional factors affecting her decision to report (Lievore, 2003). In part this can be explained by the fact that, for a woman to report a sexual offense, she must be reasonably confident that the police will regard the incident as a crime. Standard scripts of sexual violence and of appropriate victim behavior thus affect sexual offenses even at their point of entry to the criminal justice system.

In Australia, as elsewhere, most reported sexual offenses do not proceed beyond the initial police investigation stage (Kelly et al., 2005; SSCRSA, 2006). For example, independent studies in the Australian states of Victoria and New South Wales found that criminal proceedings were initiated for only 15% of reported incidents (Fitzgerald, 2006; SSCRSA, 2006). A further proportion of cases is then dropped or withdrawn at the prosecution stage as prosecutors will only proceed if they determine that a case has “reasonable prospects” of securing a conviction (Lievore, 2004a; see also Spohn et al., 2001). A study of prosecutorial decision-making in rape cases found that 38% of the cases referred for prosecution were dropped at this stage (Lievore, 2004a).⁷ Even then, the acquittal rate at trial is higher for sexual offenses than for other offense types (Lievore, 2004a; VLRC, 2004). In Lievore’s (2004a) study, only 38% of the offenders who defended charges were found guilty. Combined with those who pleaded guilty, even to a lesser sexual offense, these figures indicate a conviction rate of 5% or less for reported sexual offenses in Australia (see also Gelb, 2007).⁸ The conviction rate for committed sexual offenses in Australia is estimated to be less than 1% (Gelb, 2007).

It is important to note that there will always be a degree of attrition in the criminal justice process for any offense type as the evidentiary requirements increase at the different stages. As Lievore (2004a) notes, “the police decision to charge is based on the prima facie test, which is a more inclusive standard than the reasonable prospects test applied by the prosecutor, whereas the jury’s decision to convict is based on the stringent standard of beyond reasonable doubt” (p. 5, emphasis in the original). The issue of concern here is that the rates of attrition are higher for sexual offenses than for all other offenses (Gelb, 2007; Lievore, 2003) and that this is so despite the fact that only a small minority of sexual offenses are reported to police in the first instance. Furthermore, the types of cases that enter and progress through the criminal justice process to secure a criminal conviction are not representative of sexual assaults in general. Correspondingly, convicted sex offenders are not representative of those who commit sex offenses. Attrition studies can provide insight into the ways in which the characteristics of convicted sex offenders differ from the characteristics of those against whom sex offenses are reported.

Rape Case Attrition and the Characteristics of Charged and Prosecuted Sex Offenders

Research into the attrition of sexual offenses within the criminal justice process usually analyzes the characteristics of the offenses and of the victims whose cases are less likely to proceed through the criminal justice system. Although victims are, appropriately, the focus of much feminist research, attrition studies are reviewed here for the information they provide about the characteristics of offenders whose cases are more likely to proceed through the criminal justice system. Two recent Australian studies of rape case attrition provide important information about the characteristics of offenders who are more likely to be “retained within” as well as “filtered out” of the criminal justice process following a reported rape. Both studies were concerned with penetrative sexual assaults committed by adults—variously called rape, sexual assault, or aggravated sexual assault in the different Australian jurisdictions. The study of police investigations of rape reports in Victoria, Australia (SSCRSA, 2006), and Lievore’s (2004a) study of prosecutorial decisions and outcomes for rape cases in Australia collected additional information about the factors that affected police and prosecutors’ decisions, and about the characteristics of both victims and offenders whose cases proceeded.⁹ This gives insight into the legal and nonlegal offender-related factors that affect attrition of sexual assault cases and thus the characteristics of convicted sex offenders.

Police Charging in Rape Cases

The SSCRSA (2006) study analyzed a random sample of 850 case files that documented police investigations of rape offenses reported in the state of Victoria between 2000 and 2003. Police laid charges in only 15% of reported incidents and in almost half the cases in the study they made a decision to take no further police action (NFPA). The complaint was withdrawn in 15.1% of cases and the report was classified as a “false report” in only 2.1% of cases.

Charges were more likely to be laid when the victim and offender were not of an age and/or gender to be conventionally considered as “potential sexual partners”—that is, where it was less likely that the offender could feasibly claim that the victim consented to sex. Consequently, male victims were more likely than female victims to see their (male) offenders charged (27.1% compared with 14%) (p. 22). Victims less than 14 years of age were also more likely than adult women to see their offenders charged; of the victims aged less than 10 years at the time of the offense, charges were laid in 42% of cases (p. 37), and for 10-14 year olds, charges were laid in 32% of cases (compared with 15% of cases overall) (p. 22).¹⁰

Whereas offenders who assaulted children and male victims were more likely to be charged, those who assaulted women from particular “vulnerable” groups were least likely to be charged. Three groups were proportionally overrepresented as victims of rape and yet underrepresented in the cases in which charges were laid: young women aged 15-24, women with disabilities, and indigenous women. None of the 16 victims identified by police as Aboriginal or Torres Strait Islander saw charges laid against their offenders (p. 36).¹¹ Victims with disabilities were also overrepresented in the study sample (26.5%), and they were only slightly more likely than indigenous women to see their offenders charged. Of the victims identified by police as having a disability, nearly 60% were noted as having a psychiatric disability or mental health issue and charges were laid in just 4% of these cases (p. 34). Police were also more likely to make a decision not to take further action (NFPA) in cases involving victims with mental health/psychiatric disabilities (p. 35).¹² Young women 15-24 years old made up nearly half the victims in the study (p. 16), yet they were significantly underrepresented in the cases where charges were laid and overrepresented in the cases where police decided to take no further action (NFPA) (p. 22). Case files indicated that young women were “amongst those most likely to be the subject of police disbelief” (p. 46).

When the offender and victim could be considered as potential sexual partners, charging decisions were strongly affected by police perceptions of the victim’s credibility: the case was likely to be finalized as NFPA if police doubted the victim’s account or her capacity to act as an effective witness (p. 24). By contrast, in the cases that resulted in charges being laid, police expressed high levels of confidence that the allegations were genuine and the victims believable (p. 27).¹³ Cases in which charges were laid were also associated with a presence of corroborative evidence (e.g., evidence of physical injury or DNA, witness corroboration, CCTV footage) confirming the victim’s account. As the authors comment, “[t]he rape victim most likely to see charges laid against the offender is still one who is injured, who is medically examined and who can demonstrate sobriety around the time of the offences” (p. 25).

Offender-related factors were also found to be significant in the police decision to lay charges. Almost one-third of offenders (39.8%) were already “known” to police, including 72 offenders (8.5% of the total sample) who were known due to prior allegations/convictions of sex offenses against them, and 30 offenders (3.5% of the total sample) who had been defendants of intervention orders (not necessarily in relation to the present victim; p. 17). There was a strong association between charging decisions, multiple offenses (in addition to rape), and previous allegations/convictions for sexual offenses: half of the offenders who were known to police for allegations/convictions related to previous sex offenses were charged with rape compared with 15% of cases overall (p. 24). The data thus indicate that “[p]olice confidence to charge continues to be buoyed by offenders who have prior convictions for sexual offences or where other offences are committed against the victim in addition to the rape” (p. 25). Police beliefs about sexual offending and either specific or general criminal recidivism appear to be a factor in charging decisions.

Police beliefs about the propensity of men from particular socio-demographic groups to commit sexual offenses may also affect charging decisions. The study provides some support for concerns that men from disadvantaged groups are “over-policed” and more likely than offenders from mainstream and privileged groups to be charged, prosecuted and incarcerated for sexual offenses (Warner, 2001). For example, of the 16 offenders identified by police as Aboriginal or Torres Strait Islander, 15 had had prior involvement with the police (p. 40). Charges were laid in six of these cases (50% of the cases where an outcome was known, compared with 15% overall) and in only four cases was a decision made to take NFPA. Similarly, of the 89 offenders identified by police as non-Australian born, charges were laid in 32.5% of cases where case outcomes were known—double the percentage for the total sample (p. 41). A lower proportion of these cases was finalized as NFPA (38.6%) compared with the overall sample (46.4%), indicating that police were less likely to view these cases as unwinnable. Finally, offenders identified by police as having a disability were more likely to be charged than the overall sample: 59 offenders were identified as having a disability, including 25 with an intellectual disability and 18 with a psychiatric disability. Charges were laid in 23.7% of these cases compared with 15% for the overall sample (p. 40).

Particular offense and victim characteristics are known to be associated with sexual offense attrition in the criminal justice system (Kelly et al., 2005; Temkin & Krahé, 2008; VLRC, 2004). However, as the present study indicates, offender characteristics or offender-related factors also play a role, particularly once the victim is assessed as credible. Offenders who are already known to police, particularly for prior allegations and convictions for sexual offenses, are more likely to be charged although the prior allegation/conviction has no legally probative or corroborative value. Offenders who commit other offenses at the time of the rape are also more likely to be charged, indicating that police prefer to charge sex offenders who exhibit general criminality. The socio-demographic characteristics of offenders identified as significant in this study—indigenous, non-Australian born, and disabled—are likely to be associated with disadvantage and social marginalization, factors known to increase the likelihood of arrest and prosecution for a range of criminal offenses (Lievore, 2004b). These biases in the sample of sex offenders who were arrested or charged are of concern, particularly as it appears that the same factors affect prosecutors’ decisions to proceed with sexual offense cases.

Prosecution Decisions in Rape Cases

Denise Lievore’s (2004a) study of prosecutorial decisions in adult sexual assault cases in Australia collected and classified information based on the typology developed by Spohn and colleagues (2001), which categorizes variables in terms of victim characteristics, defendant characteristics, case characteristics, and case outcomes. Additional defendant variables were included in Lievore’s study, however, so that information was collected about defendants’ gender, age, relationship status, race/ethnicity, employment, substance use, criminal history, and relationship to the victim (p. 22). A total of 141 case files from the period 1 July 1999 to 30 June 2001 were analyzed.¹⁴

Of the 152 offenders included in the study, all were male, 38% were aged 25-34 years old with a mean age of 31 years, almost half had present partners, and 51% were unemployed or otherwise not in the labor force (for example, in receipt of a government pension) (p. 27). Where race/ethnicity was indicated (for 134 of the 152 defendants), 40% of the defendants were identified (through police interviews or officers’ assessments) as Caucasian, 48% as Aboriginal or Torres Strait Islander (indigenous), and 12% as “Asian” and “Other” (p. 25). This means that indigenous defendants are significantly overrepresented and Caucasian defendants underrepresented in the rape cases forwarded to Crown prosecutors. Using data from the Australian Bureau of Statistics on indigenous populations for each of the jurisdictions represented in the study, only 12% of the cases would involve indigenous defendants if indigenous people were proportionally represented.¹⁵ Indigenous defendants were thus overrepresented by a factor of four in the cases forwarded for prosecution.

Information on the defendants’ prior criminal record, if any, was available for 126 defendants; of these, only 14% had no prior criminal convictions, whereas 86% had prior convictions. All defendants with convictions had convictions for “nonviolent” offenses such as property, drug, or traffic offenses. In addition, 34% of defendants had prior convictions for violent, nonsexual offenses against the person and 18% had prior convictions for sex offenses and violence offenses (pp. 27-8). Most defendants assaulted victims who were known to them: 23% of defendants were strangers, 15% were present partners at the time of the assault, 11% were former partners, 15% were family members, and 35% were otherwise known to the victim (p. 28). Information was available on substance use at the time of the assault for 83% of defendants, and 88% of these were identified as under the influence of alcohol or other drugs, with the majority reported as having been drinking alcohol (p. 27).

Of the cases in Lievore’s sample, 37% were withdrawn or dropped, either on the basis of the victim’s reluctance to proceed or on an assessment of the prospects of conviction. Lievore notes that in all cases in which the victim chose to withdraw from prosecution, the files indicated that the prosecutors believed that the victim was “telling the truth” about the assault (p. 30). In other respects, however, the cases that were withdrawn at the prosecution stage “differed significantly from cases that proceeded” (p. 32). Cases were significantly more likely to proceed when: the victim physically or verbally expressed non-consent; the victim was injured during the assault; the defendant used force, threats or a weapon; the defendant was non-Caucasian; the defendant was a stranger; and there was additional evidence linking the defendant to the assault and confirming the victim’s account (pp. 32-33). As a set, these six variables reliably distinguished between cases that were withdrawn and cases that proceeded, although no individual variable was a significant predictor of case withdrawal. The combination of expressed non-consent and use of physical force was a strong predictor of cases proceeding (p. 34) although these are no longer required elements of the offense of rape (or its equivalent) in Australian jurisdictions.

Only 35% of the defendants involved in the cases referred to the Crown prosecutors were convicted of a sexual offense of some kind (p. 31). Cases involving strangers and family members (other than partners) were the least likely to be withdrawn, and those involving present or ex-partners were the most likely to be withdrawn: 20% of stranger cases and 23% of family member cases were withdrawn, compared with 53% of cases involving ex-partners and 48% of those involving present partners (p. 30). In the cases that proceeded, approximately half of the defendants pleaded guilty and, of those, 53% negotiated a reduction in charges: in 40% of these cases to a nonsexual offense. Of the defendants who defended charges at trial (30% of the total sample), 62% were acquitted: all the present partners, all but one of the former partners, five of the eight family members, 11 of the 15 otherwise known to the victim, but only four of the 13 strangers. Consequently, although only 23% of defendants in the study were “strangers,” strangers formed the majority of those found guilty at trial.

Evidently, deviation from the “real rape template” is still a strong predictor that a case will be dropped by prosecutors within the criminal justice system (see also Kelly et al., 2005). Non-Caucasian race, prior convictions, unemployment, and drug or alcohol use are notable characteristics distinguishing the offenders referred for prosecution in Australia. It appears that rape myths and gender stereotypes affecting offenders as well as victims are reinforced through the criminal justice process to the disadvantage of certain already disadvantaged social groups (see also Brown et al., 2007; Lievore, 2004a; Spohn et al., 2001).

Reviewing Recidivism Research in the Context of Attrition Studies

Attrition studies generally expose the particular difficulties that affect the criminal prosecution of sex offenses: police are less likely to initiate criminal proceedings, victims are more likely to withdraw complaints, defendants are less likely to plead guilty, and juries are more likely to acquit in sexual assault matters than for other criminal offenses. Rape myths and gender stereotypes affect all stages of the criminal justice process. The uncertainties regarding convictability for sexual offenses also affect police and prosecutorial decisions. The Australian studies reviewed here indicate that particular offender-related factors feature in the “typical” rape scenarios that affect the decisions to charge and prosecute for sexual offenses (Brown et al., 2007; Lievore, 2004a; Spohn et al., 2001). The offender’s (lack of) prior convictions, race/ethnicity, employment status, dis/ability, and use of drugs or alcohol warrant further investigation as factors that affect the decision to proceed with or drop a sexual offense charge/prosecution. The studies indicate that the offenders most likely to be prosecuted are those who have had prior contact with the police and those who commit offenses against victims who do not constitute “potentially appropriate sexual partners”—children, male victims, and female victims who are strangers. Evidently, the attrition of sexual offenses through the criminal justice process is patterned in particular ways that advantage or disadvantage certain offenders. These “biases” are presently naturalized in sexual offense recidivism studies—that is, they are re-presented as independent variables associated with the commission of sexual offenses, rather than only with convictability (or the prospects of successful prosecution and conviction).

Recidivism studies concur that sexual recidivism is associated with two dominant offender characteristics: deviant sexual interests and antisocial orientation/lifestyle instability (Hanson & Morton-Bourgon, 2005).¹⁶ In a meta-analysis of recidivism studies, these two factors were the major predictors of rearrest or conviction for a subsequent sexual offense (Hanson & Morton-Bourgon, 2005). However, released sexual offenders are more likely to be subsequently arrested for a nonsexual offense than a sexual offense, and for general recidivism (both violent and nonviolent) by sexual offenders only antisocial orientation/lifestyle instability was relevant (Hanson & Morton-Bourgon, 2005).¹⁷ If antisocial orientation/lifestyle instability is the best predictor of both sexual and general recidivism in convicted sex offenders, it is doubtful that it is predicting the probability of reoffending rather than only the probability of being arrested and convicted for subsequent offending. As Jones (2004) observes, the event of “being reported, getting caught and being convicted” of a sexual offense is very rare indeed (p. 35). In that context, the intersections between “lifestyle instability” and the forms of social marginalization and socioeconomic disadvantage identified in the above analysis must be acknowledged as affecting the prospects of successful criminal prosecution (convictability) and, hence, both sexual offense attrition and recidivism research.

When recidivism research is viewed in the context of sexual offense attrition in the criminal justice process, it can be seen to amplify and consolidate certain biases within the latter system. It is evident that the criminal justice process produces/convicts a very distorted and unrepresentative sample of sex offenders. Both police and prosecutorial discretion are evidently exercised on the basis of a range of “nonlegal” as well as “legal” factors. Attrition research to date has primarily explored the gender stereotypes associated with the victim’s behavior and credibility, and her relationship to the offender. However, the “real rape” theory also dis/advantages offenders with particular characteristics. Thus, it would be useful for future attrition research to examine police and prosecutors’ perceptions of the guilt, culpability, and dangerousness of sex offenders with a range of characteristics. As risk assessment procedures and recidivism research becomes increasingly familiar to correctional services staff, parole boards, and criminal justice personnel, it would also be useful for future research to assess whether police and prosecutors’ decisions are influenced by that research’s concept of a sexually deviant and antisocial “sex offender.” Of course, such convergence would confirm the predictive accuracy of the risk-assessment tools, but only at the expense of reproducing certain stereotypes and biases in the prosecution of sex offenses within the criminal justice process.

Conclusion

The underreporting and filtering of sexual offenses within the criminal justice system make it highly unlikely that sex offenders will be prosecuted and convicted in the first instance, and recidivism is only slightly more likely to be detected. Yet, prevalence and attrition research is at best footnoted and more commonly ignored in criminological and psychological studies of “sex offenders.” This article suggests that as recidivism research comes increasingly to underpin offender treatment programs and post-sentence supervision regimes, it is important that, in the broader policy and violence-prevention context, recidivism research is placed in the context of attrition research so that the characteristics of those sex offenders who are filtered out of the criminal justice system are kept in mind. Offender studies that use conviction, or even apprehension and prosecution, as a starting point to develop knowledge of “sex offenders” inherit the partial or distorted sample of offenders produced by criminal justice systems. Recidivism and risk assessment research cannot produce reliable information about those who commit sex offenses; rather, they produce information about those against whom convictions can be secured. The latter information is of use if the problem to be addressed is the return of certain offenders to the corrections system. However, if the problem to be addressed is the prevalence and impact of sexual violence against women and children, then convictions within the criminal justice process cannot be the starting point for developing prevention policies. The present concentration of concern and resources on those offenders designated as high-risk will not be effective in addressing women’s and children’s “ordinary” experiences of sexual violence. As noted above, it may also detract from the resourcing of community-wide measures and programs to reduce and prevent sexual violence in its most common forms and contexts.

It is also of concern that the support offered by recidivism research to the stereotype of the sexually deviant and antisocial sex offender may further distort decision-making and policy development within the criminal justice system in the future. If recidivism research and the knowledge it produces about sex offenders are not to reproduce and magnify the biases and distortions that presently affect sexual offenses entering and progressing through the criminal justice system, they will need to recognize more explicitly the high attrition rates for sexual offenses and the particular ways in which the prosecution of sexual offenses is patterned. Particularly while conviction rates for rape remain at all-time lows across a number or jurisdictions (Kelly et al., 2005; Regan & Kelly, 2003; Temkin & Krahé, 2008), it is important to remember that the characteristics of convicted sex offenders do not reflect those of sex offenders generally, nor even of those who inflict the most serious harm or pose the highest “danger” to women and children.

Footnotes

Declaration of Conflicting Interests

The author declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author received no financial support for the research, authorship, and/or publication of this article.

Notes

Bio

Wendy Larcombe has taught and researched at the Melbourne Law School since January 2006. Her doctoral research was published by the Federation Press in 2005 as Compelling Engagements: Feminism, Rape Law and Romance Fiction. Her present research continues to focus on the regulation of gender and sexuality, with a particular interest in issues of responsibility and risk in rape law, and issues of autonomy and subjectivity in abortion law and women’s health.

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