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

Abstract

This study examines the influence of DNA evidence on prosecutorial decisions in sexual assault cases. Thirty-eight prosecutors experienced with prosecuting sexual violence cases were surveyed regarding the use of biological evidence in sexual assault cases, including the ways in which it is generally used, the cases in which it is most critical to have, and factors impacting case attrition. Results indicate that prosecutors perceive DNA evidence to be extremely valuable in prosecuting sexual assault cases. Several themes related to the perspective, context, process, and conditions under which DNA evidence plays a vital role in sexual assault case processing are identified.

Keywords

prosecutors sexual assault DNA qualitative research case processing discretionary decision-making

Introduction

Researchers have long been concerned with how sexual assault cases are processed through various stages of the criminal justice system. Much attention has been given to sexual assault victims’ interactions with criminal justice actors at the earliest stages of case processing, specifically the reporting stage and initial police responses (Bachman, 1993; Campbell et al., 2015b; Chon, 2014; Clay-Warner & Burt, 2005; Du Mont et al., 2003; Felson & Paré, 2005; Fisher et al., 2003). The interactions between law enforcement and victims during these initial contacts can have significant implications for future stages of case processing, most notably decisions made by prosecutors. According to the 2016 National Crime Victimization Survey (NCVS), approximately 23% of individuals experiencing a sexual assault reported their victimization to police (Morgan & Kena, 2016). Of the approximately 20% of rapes committed that are reported to police, only 7% to 27% are prosecuted (0.4%–5.4% of total sexual assaults) and 3% to 26% of those prosecuted (0.2%–5.2% of total) result in a conviction¹ (Lonsway & Archambault, 2012).

Many factors contribute to the high attrition rate of sexual assault cases. Prosecutors are concerned with maintaining positive win-loss ratios, and therefore make decisions based on likelihood of convictibility (Albonetti, 1987; Frohmann, 1997; Spohn et al., 2001). As such, prosecutors give special consideration to case characteristics that may influence other members of the courtroom workgroup (i.e., judges and jurors). For example, research suggests that prosecutors are less likely to file charges in sexual assault cases when the victim knows the offender, exhibits risky behavior or perceived questionable character, and does not immediately report the victimization to law enforcement authorities (Beichner & Spohn, 2005, 2012; Frazier & Haney, 1996; O’Neal & Spohn, 2017; Spears & Spohn, 1997; Spohn & Holleran, 2001). Many of these factors are based on rape myths, widespread beliefs that serve to deemphasize the seriousness of male violence against women by excusing the behaviors of perpetrators and blaming the victims of sexual violence (Bohner et al., 1998; Lonsway & Fitzgerald, 1994). While many of these factors are not legally relevant and have no basis in fact, they continue to be influential in those sexual assault cases that make it to trial (Temkin et al., 2018). Legally relevant factors are also important to prosecutors. Specifically, physical evidence significantly increases the likelihood of case progression (Alderden & Ullman, 2012; Beichner & Spohn, 2005, 2012; Frazier & Haney, 1996; Horney & Spohn, 1996; Spohn & Holleran, 2001). In the context of sexual assault investigations and trials, the presence of physical evidence, especially DNA evidence, may be of particular importance because it serves to refute the commonly held rape myth that many victims are lying about their sexual assault (Grubb & Turner, 2012).

While research in recent years has examined the role forensic evidence plays in police investigations, and specifically in the investigation of sex crimes, it has not examined how prosecutors use this evidence. The current study addresses this limitation by examining how forensic evidence, specifically DNA evidence, impacts the prosecutorial decision-making process. Using survey data collected from prosecutors with experience prosecuting sexual assault cases, this study advances our knowledge of the uses of DNA evidence in discretionary decision-making by (1) examining the characteristics that make DNA evidence most crucial for the successful prosecution of sexual assault cases and some of the common reasons prosecutors drop these cases, and (2) employing methodological techniques that more fully address the context of these decisions.

Literature Review

Prosecutorial Decision-Making Processes in Sexual Assault Cases

Unlike judges, whose decision-making power is sometimes constrained by sentencing guidelines, prosecutors can make decisions (e.g., whether to file charges, the level of charging offense, and the continuation of cases) with little interference from other parties. Additionally, prosecutorial discretion influences the decisions of other actors in the justice system (Spohn & Tellis, 2010). Prosecutors strive to make rational case processing decisions; however, they are not always presented with sufficient information to accomplish this goal (Albonetti, 1987). Consequently, prosecutors engage in decision-making with bounded rationality, which attempts to avoid uncertainty in later stages of prosecution. As prosecutors are concerned with obtaining convictions, they make decisions they believe will lead to the most favorable outcome.

Building on Albonetti’s (1987) work, Frohmann (1997) suggests that prosecutors are not only concerned with avoiding uncertainty generated by case characteristics, but also how others will “interpret and respond to a case” (p. 535). Prosecutors attempt to predict how other members of the courtroom workgroup (i.e., jury and defense) will evaluate case characteristics, such as offense severity, weapon use, and victim and suspect race and relationship. This creates a downstream orientation in prosecutorial decision-making, effectively labeling victims as “good” or “bad” based on assessments of convictability and credibility. Spohn et al. (2001) suggest that this downstream orientation influences the focal concerns prosecutors take into consideration when making decisions. Prosecutors’ decisions are influenced by perceptions of offender blameworthiness, the danger the offender poses to the community, and practical constraints of their decisions (Steffensmeier et al., 1998). Whereas judges may be concerned with jail capacity, for prosecutors the decision to proceed with a case is heavily influenced by the likelihood of conviction. Therefore, prosecutors create “perceptual shorthands” that may incorporate stereotypes of “real” crimes and believable victims, some of which may be rooted in rape myths and the rape culture that perpetuates our society (Herman, 1984).

These decision-making frameworks have been shown to be particularly influential in sexual assault cases where prosecutors may use stereotypes of “real rapes” to guide their decisions. For example, Alderden and Ullman (2012) examined factors that led prosecutors to file charges in felony sexual assault cases and found that prosecutors were significantly less likely to move forward with cases when the prosecutor perceived the victim’s character as questionable, there was delayed victim reporting, when the suspect was known to the victim (i.e., an intimate partner and/or acquaintance), and if the prosecutor noted a discrepancy in the victim’s story. Similarly, Beichner and Spohn (2012) found evidence that the charging decision was driven by extralegal victim characteristics. Specifically, sexual assault charge filing was less likely when victims exhibited signs of engaging in risky behavior (i.e., alcohol use and inviting suspect into residence), when their moral character was questioned (i.e., had a criminal record), and when the suspect was a relative. Similar findings have been evidenced across studies examining the decision to charge suspects in sexual assault cases (Beichner & Spohn, 2005; Frazier & Haney, 1996; O’Neal & Spohn, 2017; Spears & Spohn, 1997; Spohn & Holleran, 2001). While traditional applications of the focal concerns theory (i.e., judicial decision-making) suggests that legally relevant factors drive decision making, it appears that extralegal factors, specifically those related to victim credibility, are more influential for prosecutorial decision-making in the context of sexual assault (Spears & Spohn, 1997; Spohn & Holleran, 2001).

Regardless, it is important to recognize the importance of legally relevant factors, specifically physical evidence. Without physical evidence, many sexual assault cases would be relegated to what prosecutors refer to as “he said, she said” cases in which it is the victim’s word versus the suspect’s (Spohn & Tellis, 2014). In a patriarchal society, this frequently pits women as victims against men as defendants, with the latter having relatively more social and economic power and more credibility (i.e., are more likely to be believed) than the former. While false allegations of rape are among the lowest of any crime type (only between 2% and 10% of reported rapes are false (Lisak et al., 2010)), myths about false reporting for sexual violence are widely held, potentially making the perceived need for physical evidence particularly acute in these types of cases.

DNA Evidence in Sexual Assault Cases

Sexual assaults are unique crimes given that physical evidence of a crime is most often on the victim’s body. Definitions of sexual assault vary by jurisdiction, but generally include unwarranted, nonconsensual sexual acts that may involve threatened or actual physical force, use of weapons, coercion, or intimidation (National Institute of Justice, 2010). This includes oral, anal, or vaginal penetration while the victim is under the influence of drugs or alcohol, mentally or physically disabled, or is not of age to consent. Upon experiencing a sexual assault, many victims are advised to seek medical attention from local clinics or hospital emergency departments (Resnick et al., 2000). There, medical professionals can collect forensic evidence, which may include vaginal, anal, and oral swabs, head and pubic hair, and victim’s clothing with the use of sexual assault kits (SAKs). Though best practices recommend having specially trained medical professionals (i.e., sexual assault nurse examiners (SANEs)) administer sexual assault kits to facilitate victim-centered care and the correct preservation of forensic evidence (Office on Violence Against Women, 2013), these programs are far from ubiquitous. Evidence collection for sexual assaults can often be invasive, and to some extent re-traumatizing for victims (Campbell et al., 2005). The evidence obtained, however, can be used to create DNA profiles of the perpetrator that may aid in establishing or confirming the identity of the suspect.

Until recently, forensic evidence has been available and analyzed in a relatively small portion of the already underreported sexual assault cases (Rennison, 2002; Tjaden & Thoennes, 2006). To reiterate, only about 23% of victims experiencing a sexual assault report their victimization to police (Morgan & Kena, 2016). In many cases (14%–49% of sexual assaults), a SAK is never collected (Cross et al., 2017; Peterson et al., 2010). Even when SAKs have been collected, they have not always been submitted to a crime lab for analysis (Campbell et al., 2017; National Institute of Justice, 2017). For example, Peterson et al. (2010) reported that only 32% of the forensic evidence collected in cases in their study was submitted for analysis, with only 42.3% of submitted samples examined by laboratory staff.

Even so, research suggests that physical evidence plays a significant role in criminal justice case processing (Peterson et al., 2013), and indeed may be the most important legally relevant factor in sexual assault cases (Alderden & Ullman, 2012; Beichner & Spohn, 2005, 2012; Campbell et al., 2014; Frazier & Haney, 1996; Horney & Spohn, 1996; Spohn & Holleran, 2001). For example, Campbell et al. (2009) examined factors that influenced the prosecution of adult sexual assault cases in a large Midwestern county with a SANE program and found that the evidence collected by SANEs significantly increased the odds of case progression (i.e., referred to prosecutor but not prosecuted, warranted for prosecution but later dropped, or convicted). Specifically, DNA evidence increased the odds of case progression by 2.68 times. Notably, other forms of physical evidence (i.e., abrasions, tears, bruises) were not significantly associated with case progression and prosecutorial decision-making. Similarly, Campbell et al. (2012) also examined the impact of SANE programs on sexual assault case progression and found that more cases reached the final stage of prosecution (i.e., conviction at trial or plea bargain) after the implementation of the SANE program.

Horney and Spohn (1996) examined the effect of physical evidence on case progression in sexual assault cases and found that physical evidence of a crime increased the odds of a case advancing to the next stage of criminal processing. Similarly, Spohn and Holleran (2001) found that prosecutors were two times more likely to file charges when physical evidence was available, while Beichner and Spohn (2005) found that the effect of physical evidence on charging decisions varied by jurisdiction. Moreover, in an examination of factors influencing charging decisions in two metropolitan jurisdictions (i.e., Philadelphia and Kansas City), Holleran et al. (2010) found that the presence of physical evidence significantly increased likelihood that prosecutors maintained the most serious charge (i.e., forcible rape), rather than a charge reduction. O’Neal et al. (2015) build on this line of inquiry further by exploring the factors that influence charging decisions using qualitative interviews and found that physical evidence, including injuries, drove assessments of case viability.

However, some studies suggest that the importance of physical evidence on prosecutorial discretion is dependent on the outcome examined. As such, several studies fail to find significant relationships between prosecutor’s decisions and physical evidence. For example, using data from 821 sexual assault cases in Duval County, Florida, Gray-Eurom et al. (2002) explored whether the presence of spermatozoa increased the odds of conviction. Findings suggested that this type of evidence was not significantly related to the odds of successful prosecution. The researchers note, however, that at the time of data collection, DNA testing was not yet the standard practice and was only conducted if requested by law enforcement, which may account for why it was not significantly related to conviction. Similarly, Spohn et al. (2001) found that physical evidence was not significantly related to the decision to prosecute in sexual battery cases disposed in Miami, Florida in 1997.

Moreover, Johnson et al. (2012) investigated the effects of several types of physical evidence on the decision to charge, convict, and the sentencing outcome (i.e., sentence length) in incidents of rape. Findings indicated that prosecutors were approximately six times more likely to charge an offender when forensic evidence was examined in a laboratory, however, it was not significantly related to conviction. Similarly, the odds of charging increased by 21.62 times when victims who sought medical care (a proxy for victim injury) but was less important at the conviction stage. Notably, physical evidence was not significantly related to terms of incarceration offenders received. In contrast, in an examination of intimate partner sexual assault cases, O’Neal and Spohn (2017) found that the collection of physical evidence was not significantly related to the decision to file charges, either before or after an arrest was made. Spears and Spohn (1997) found similar results when examining prosecutorial decision-making in Detroit.

Finally, Spohn and Tellis (2019) suggest that decisions related to case-processing of sexual assault cases should not be examined in isolation. Rather, the factors that influence law enforcement and prosecutorial discretion overlap and may have implications for how we understand this process. As such, they examined what factors influenced prosecutor’s decisions to charge a suspect before or after an arrest. In incidents where a case was presented to a prosecutor prior to the arrest, physical injury was not significantly related to the charging decision, however physical evidence decreased the odds of charging. Neither victim injury nor physical evidence was related to charging decisions after a suspect’s arrest. Moreover, these factors were not significant regardless of time of arrest (Spohn & Tellis, 2019).

While there has been no national census conducted of the number of SAKs collected that have not been tested, media coverage of the problem of unsubmitted SAKs has brought national attention to the issue in recent years (Campbell et al., 2017). This attention has had wide-ranging consequences, including the Sexual Assault Kit Initiative (SAKI)² and various state laws that have mandated universal testing of SAKs. Advocates for these programs argued that more thorough testing of SAKs would populate the national offender DNA database (i.e., CODIS), help bring previously unidentified sexual offenders to justice, exonerate innocent suspects, and aid in the identification of serial sexual offenders (Campbell et al., 2017; Lovell et al., 2018). Indeed, in its first 3 years of operation SAKI has resulted in the upload of more than 15,000 profiles to CODIS and more than 900 charges being filed (SAKI, 2019). Research from these projects has also identified a higher rate of serial sexual offenders than was previously suggested (Campbell et al., 2015b; Lovell et al., 2017, 2018), highlighting the value of testing DNA evidence in sexual assault cases. Mandatory testing laws and training and technical assistance from national and regional grant programs to test SAKs (such as SAKI), combined with technological advances increasing the sensitivity of testing and decreasing time to results, will likely result in an increase in the number of sexual assault cases with DNA evidence available at the prosecution phase. Thus, it is important to understand how DNA evidence is used by prosecutors to build and prosecute sexual assault cases.

Current Study

Though there are a number of intermediate steps between a sexual assault occurring and the use of DNA in the prosecution of a suspect, including the victim seeking post-assault medical care, the successful completion of a SAK, and testing of the kit, this does not limit the importance of studying the use of DNA by prosecutors. Research has established that physical evidence (e.g., physical injury, forensic evidence) positively affects case processing outcomes in sexual assault cases. However, research has not examined exactly how prosecutors use DNA evidence in their cases. Understanding this process is important given the wide discretion that prosecutors wield in building cases, the importance of physical evidence in case progression, and the increase in the availability of DNA evidence that is likely to occur in the near future with mandatory testing laws and ever-increasing technology to test DNA evidence. The current study contributes new knowledge by examining prosecutors’ perceptions about how DNA evidence influences sexual assault case processing.

Methodology

Data for the current study were derived from a paper-and-pencil survey administered to prosecutors in the Harris County District Attorney’s Office (HCDAO) as part of the Houston Action-Research Project (ARP) on unsubmitted sexual assault kits. The ARP collected data from multiple criminal justice system actors to understand the response to sexual assault (see Wells et al., 2016). Harris County is well-suited for the current analysis given that it maintains one of the highest workloads among prosecutors’ offices in the United States (Gershowitz & Killinger, 2011). Data collection occurred between December 2011 and January 2012. During this time, prosecutors were presented with a survey instrument containing a series of closed and open-ended items measuring their work experiences as a prosecutor, the role of DNA evidence and other case characteristics in decision-making, opinions regarding the use of sexual assault kits, the crime lab, and professional relationships with the local police department and victim advocates. The current study focuses on prosecutors’ responses as they relate to the uses of DNA evidence and decision-making.

Sampling Procedure

Purposive sampling techniques were utilized to ensure that data were collected from prosecutors who had first-hand experience working with sexual assault cases. A Bureau Chief in the District Attorney’s Office assisted researchers in identifying a sample of prosecutors who could provide information related to the sexual assault prosecution process. The Bureau Chief distributed surveys to 45 prosecutors who were selected for inclusion in the study. Of those administered, 38 were returned (84% response rate). Analysis for the current study are based on these returned surveys.

Analytical Procedure

Descriptive information about the respondents (these data are not available for nonrespondents; 16% of the sample), including their years of service as a prosecutor, their current position in the DA’s office, and their experience prosecuting sexual assault cases are presented first, followed by bivariate analyses of prosecutor characteristics and orientations toward the use and importance of DNA evidence. Responses to three open-ended survey items are then analyzed using dimensional analysis (Schatzman, 1991).

Dimensional analysis is a qualitative method that shares similarities with grounded theory but differs in key ways. First, dimensional analysis strives to understand the contexts, conditions, processes, and consequences of the situation(s) under study (Kools et al., 1996; Schatzman, 1991) rather than a complete theory of the social process of a situation. Thus, it is broader in scope than is grounded theory. Second, dimensional analysis employs a more linear and defined analytic process. Dimensional analysis proceeds in three steps: (1) initial coding, in which the researchers use an open coding process to identify everything involved in the situation, (2) dimension reduction, in which similar themes are grouped together into a set of dimensions, or attributes, that characterize the situation under study, and (3) designation, where researchers organize the dimensions into a standardized matrix with the goal of achieving saturation. See Schatzman (1991) for detailed discussion of the dimensional analysis process

The matrix consists of five elements that explain: in what context, under which conditions, do the specified actions occur (process), and with what consequences? Finally, the matrix captures the perspective (selected from the identified themes) that best explains the relationships between the other dimensions (see Kools et al., 1996, Figure 2, p. 320 for diagram of the explanatory matrix) (Schatzman, 1991). The matrix is particularly useful for the analysis of complex social situations because it recognizes that actions and reactions are dependent on the events surrounding them.³

For the current project, three qualitative questions were analyzed: (1) In general, please explain the ways that you use DNA evidence in sexual assault cases, (2) Describe the sexual assault case characteristics that make DNA evidence most crucial for successful prosecution. In other words, in what kinds of sexual assault cases is it most necessary for you to have DNA test results in order to get a conviction?, and (3) In your experiences, what are the primary reasons why charges get dropped in sexual assault cases?⁴ For all three questions, we focus on the use of DNA evidence in the prosecution of adult sexual assault cases given that laws governing sexual assault cases differ between juveniles and adults.

Each author performed the initial coding stage independently. For each question, the authors read all survey responses and developed a series of codes by identifying everything respondents had mentioned for that survey item. Initial coding identified 34 codes for the first question, 29 codes for the second question, and 21 codes for the final question. Authors then collaboratively reduced the codes into dimensions by combining similar items (for example, the first author’s codes for one response included “establishing contact,” “excluding/identifying suspects,” and “corroborating victim statement.” The second author coded the same response as “defendant at scene, victim at scene (corroboration),” “proof,” “proof of sexual contact,” and “exclusion of suspect.” The reduced codes the authors arrived at were “establishes sexual contact,” “identity,” and “corroboration of victim story”). Finally, the authors worked together to assign each dimension to one of the components of Schatzman’s (1991) explanatory matrix (context, conditions, processes, consequences, perspective) through consideration of the content of the dimension itself and its relationship to other dimensions. See Figure 1 for example of the three-step coding process. In order to ensure the rigor of the coding procedure, a reliability check of the coding was conducted by two researchers unrelated to the project. Each researcher was given a random sample of 21% (n = 8) of the responses to the first question and asked to follow the initial coding procedure outlined above. Researchers exhibited a high degree of concordance in the themes identified through the initial coding stage (Armstrong et al., 1997). Independent researchers did not identify any themes that the authors had not in the initial coding stage. All questions about meaning and the few disagreements in coding were discussed by all four researchers until an agreement was met about the final code.

Figure 1.

Example of coding process.

Results

Table 1 presents a descriptive analysis of prosecutors surveyed in our sample. On average, individuals had been serving in the capacity of prosecutor for approximately 10 years and had been in their current position for a little over 4 years. Those serving as chief prosecutors comprised 47.4% (n = 18) of our sample, while assistant district attorneys and other prosecutors accounted for 21.1% (n = 8), and 31.6% (n = 12), respectively. In the 12 months prior to the administration of the survey, prosecutors processed, on average, 6.56 sexual assault cases and reported having a moderate amount of experience (1 = not much experience; 4 = extensive experience) working on these types of cases (x̅ = 2.82).

Table 1.

Descriptive Statistics.

	N	Mean (%)	SD	Min	Max
Years of service	38	9.97	5.84	3	22
Current position	38
Chief prosecutor		(47.4)	—	—	—
Assistant district attorney		(21.1)	—	—	—
Other prosecutor		(31.6)	—	—	—
Years of service in current position	38	4.11	3.63	0	15
Sexual assault cases prosecuted in last 12 months	32	6.56	8.12	0	25
Experience prosecuting sexual assault cases	38	2.82	0.955	0	4

Prosecutors were asked a series of questions related to the value of DNA in sexual assault case processing (results presented in Table 2⁵). First, respondents were asked to indicate under what circumstances they believed DNA evidence would be most beneficial. Respondents were about evenly split in terms of perceptions of whether DNA evidence is more valuable during the investigation (47.8%) or prosecution phase (52.2%). Second, prosecutors were asked to indicate the most common ways in which DNA evidence is used in sexual assault cases. The emphasis placed on the value of DNA as an essential tool in case processing is further evidenced by the way prosecutors report using DNA in cases in the closed-ended question. Over half of the prosecutors in our sample (58.1%) indicated that the most common way DNA is used during sexual assault cases is to connect the accused to the crime. Similarly, it is also often used to exclude suspects (12.9%). Using DNA evidence in this manner highlights its effectiveness as an investigative tool. Approximately 13% of prosecutors indicated that DNA evidence is very useful for enhancing the credibility of victims, countering defense arguments (6.5%), obtaining plea agreements (6.5%), and meeting jurors’ expectations of evidence (3.2%). These findings highlight the utility of DNA evidence during the prosecutorial process.

Table 2.

How Prosecutors Describe Using DNA in Sexual Assault Cases.

	Mean (%)	SD	Min	Max
Based on your experiences with sexual assault cases, are DNA test results more valuable for successfully investigating sexual assaults or prosecuting them? (n = 23)
Investigating cases	(47.8)	—	—	—
Prosecuting cases	(52.2)	—	—	—
In general, please rank order the most common ways you use DNA evidence testing results in sexual assault cases (n = 31).
To connect the accused to the crime	(58.1)	—	—	—
To exclude suspects	(12.9)	—	—	—
To enhance victim credibility	(12.9)	—	—	—
To obtain plea agreements	(6.5)	—	—	—
To counter defense arguments	(6.5)	—	—	—
To meet jurors’ expectations for evidence	(3.2)	—	—	—
Based on your experiences investigating and prosecuting sexual assaults, how influential are each the following case characteristics on prosecution outcomes? (n = 36)
Prosecution outcomes (guilty plea/conviction)	8.86	1.44	3	10
Filing charges	2.08	0.49	1	3

Note. Scores ranked from 1 (least important) to 6 (most important). Values represent the percent of individuals indicating factor is the most important use.

Beyond understanding how and when DNA evidence is used during these cases, it is also important to understand its influence on prosecution outcomes. Prosecutors were asked to rate the importance of DNA evidence for case outcomes on a scale of 1 (not at all influential) to 10 (extremely influential). Results indicate that prosecutors perceive having DNA test results to be highly influential on prosecution outcomes (i.e., guilty plea or conviction) (x̅ = 8.86) and moderately important when deciding to file charges in a sexual assault case (x̅ = 2.08 on a scale ranging from 1 to 3). Bivariate correlations were examined for these and individual characteristics listed in Table 1, however, no significant correlations were found. This indicates that prosecutors’ perceptions about the use of DNA are consistent and do not differ based on characteristics such as length of service, experience with sexual assault cases, and the number of sexual assault cases in their caseload.

The Use of DNA in Sexual Assault Cases

On the survey, prosecutors were asked, “In general, please explain the ways that you use DNA evidence in sexual assault cases.” Of the 38 respondents to the survey, 37 (97%) responded to this question. The results of the dimensional analysis both reiterate and enrich quantitative findings reported above and are summarized in Table 3.

Table 3.

Explanatory Matrix of Prosecutors’ Use of DNA in Sexual Assault Cases.

Context (boundary of the situation)	Conditions (circumstances impelling actions)	Process (actions or interactions)	Consequences (results of actions/interactions)
Each case	• Type of case○ Stranger vs. acquaintance• Defense mounted by suspect	• Identification of suspect• Victim corroboration• Defense of defendants• Satisfy jury need for evidence• Support theory of case• Establish guilt/innocence• Aid when there is no confession	• Obtain pleas• Enhance sentence
Perspective: Legal

Context

In dimensional analysis, context refers to the limits, or boundaries, of a social phenomenon (Kools et al., 1996; Schatzman, 1991). The context in which prosecutors make decisions about the use of DNA evidence is each individual case. Respondents reported using DNA evidence differently based upon the type of case (conditions, reported below) and referred to specific ways in which the evidence is used (processes), such as identifying perpetrators and corroborating victim testimony. The prosecutors were implicitly referencing an audience in each of these responses: decision-makers such as judges and juries. The context, then, was the set of decisions made by prosecutors in each individual case.

Conditions

Conditions are the most essential dimensions because they influence future actions and interactions in the social situation (Kools et al., 1996; Schatzman, 1991). The conditions that the prosecutors referred to as influencing how they used DNA evidence was the type of sexual assault case, including the age of the victim, relationship between the victim and perpetrator, and the type of defense mounted by the suspect. A number of the respondents referred to using DNA evidence differently for adult and juvenile victims, with one respondent specifically indicating that it was more useful in juvenile than adult cases. The analysis, however, was limited by the researchers to adult sexual assault cases because juvenile cases are processed in a substantively different manner than adult cases. Specifically, cases involving minors remove the question of consent. Respondent 16 highlighted the conditional nature of the use of DNA evidence well:

It varies depending on the case. DNA may help develop the suspect in a sexual assault case where the perpetrator is a stranger. DNA will be used to identify the suspect where the victim is unable to ID the suspect (didn’t get a good look at the suspect, unable to communicate [because] of age or disability). DNA corroborates a victim’s testimony and is especially helpful when the victim is not a strong witness and the suspect denies the assault . . . (Emphasis added).

Six respondents indicated that DNA was particularly useful in cases in which the identity of the suspect was at issue. Five respondents noted that DNA evidence is particularly salient in cases of stranger assault because it allows them to identify the assailant.

Four responses indicated that DNA is especially useful in cases where the defendant denies having sexual contact with the victim, because the presence of DNA is definitive evidence that contact occurred. Three respondents also made note that this significantly narrowed the defense options for the defendant. Respondent 1, for instance, said:

DNA is less definitive with an adult case, since the Defendant can argue consensual sex if the DNA comes back to him. If the police can pin the Def. down to a story before DNA comes back to him, and the Def. lies and says he did not have sex with [the victim], then DNA is great evidence, since the Defendant is already caught in a lie, and a jury is less likely to believe consensual sex.

Relatedly, one of the prosecutors interviewed said that DNA “is especially helpful when the victim is not a strong witness and the suspect denies the assault.” (Respondent 16). In total, nine respondents made note of particular conditions under which DNA evidence was more or less helpful in prosecuting sexual assault cases.

Process

Processes flow from specific situations, and “include the intended or unintended actions or interactions that are impelled by specified conditions” (Kools et al., 1996, p. 318). Due to the nature of the question (“please explain the ways that you use DNA evidence in sexual assault cases.”), the responses were dominated by processes.

The most frequent use of DNA evidence cited by the prosecutors was the identification of suspects. Eighteen of the respondents mentioned “identity” or “identification” in their answer to this question. “DNA proves the identity of the biological material donor,” stated Respondent 25. Another, Respondent 36 said, “To prove identity in adult stranger cases.” Issues of identity were frequently (n = 11) combined with an indication that DNA evidence was used either to link a suspect to the offense or as proof that sexual contact occurred between the victim and suspect. For example, Respondent 6 said,

DNA cases really only that helpful in situations where the issue is 1) Identity (meaning the defendant is claiming that he’s being mis-identified) or 2) to prove sexual contact occurred (when the defendant is not claiming to be misidentified, but rather is claiming that no sex occurred.) #1 Usually occurs between strangers #2 Usually occurs when victim and defendant are known to each other.

The use of DNA evidence to identify suspects in the process of the case differs substantively from identification as a condition and demonstrates how conditions influence processes. The condition is a characteristic of the case, which can then affect the process. For example, in a case with an unknown offender, a DNA profile can be used to identify a suspect. So a process flowing from the condition of “unknown perpetrator” is the act of identifying a suspect. In the current study, some prosecutors said that DNA evidence is particularly useful when the identification of the suspect is an issue in the case (a condition under which DNA is used), others indicated they use the evidence to establish the identity of the suspect in the case (process). DNA is particularly useful in stranger cases because the prosecutor can use that evidence to establish the identity of the perpetrator.

The second most widely-cited use of DNA evidence was victim corroboration. Fifteen included victim corroboration in their responses. All of these were straightforward, providing no additional information about corroboration: “DNA evidence corroborates victim testimony” (Respondent 3), “To bolster the complainant’s disclosure, if DNA is present” (Respondent 9), and “DNA Evidence is used to prove identity of the defendant in many cases or to corroborate a victim’s account or to corroborate a victim’s account of the [offense]” (Respondent 17) are some examples.

Exclusion of suspects and defense of defendants (n = 8) were other oft-cited uses of DNA evidence. Respondent 31 spoke about the importance of DNA for both victim corroboration and defense of defendants, saying,

The most important use of DNA results is to narrow down the contested issues, and to corroborate the victim’s version of the fact. Of course, the reverse is true also: DNA can help us to exonerate a wrongfully charged defendant, and allow us to see if a victim is not telling the truth.

Others, such as Respondent 24, simply said something along the lines of “Exclude other perpitraitors (sic) . . . Prove someone may be innocent.”

Another use of DNA was to satisfy the jury’s need for evidence. Respondent 10 explained, “In this ‘CSI era’, juries want scientific evidence to convict.” “Show the Jury the State tested all available evidence” reported Respondent 24. In total, four prosecutors mentioned the juror need for evidence.

Other ways the respondents reported using DNA evidence was to support the theory of the case (n = 3), establish guilt/innocence (n = 3), and as an aid when no confession was obtained (n = 1).

Consequences

Consequences of a social situation are a result of the context, conditions, and processes that precede it (Kools et al., 1996; Schatzman, 1991). In the case of the use of DNA evidence in sexual assault cases, the consequences were all tied to the final case outcomes, including plea bargains and sentencing. For example, Respondent 10 said “Making DNA evidence greatly increases the probability that a defendant will plead guilty (+ not put the victim thru (sic) a trial).” Similarly, Respondent 2 said “to plea bargain cases.” Respondent 11 made clear that they use DNA evidence in the sentencing phase as well: “DNA evidence . . . is used to get connections & longer prison sentences for those that otherwise would serve less time.” Four respondents mentioned a downstream orientation in their response to this question.

Perspective

The final dimension in this type of analysis is perspective. Perspective is the dimension that binds all the other dimensions together and provides a framework from which to understand the rest of the data (Kools et al., 1996). In this particular case, what was not mentioned spoke just as loudly as what was. Not a single mention was made of identifying serial offenders (though one did say DNA could be used to develop a suspect who was previously entered into CODIS), obtaining justice for victims, or increasing public safety by putting sexual offenders in prison, and only one respondent mentioned bringing a perpetrator to justice. In contrast, the word “prove” was used by the respondents 18 times in the 1,189 words of text. It appears, therefore, that the prosecutors understood the use of DNA evidence in sexual assault cases from a legal perspective, rather than from a justice perspective.

Case Characteristics Affecting Prosecution

Next, prosecutors were asked to “Describe the sexual assault case characteristics that make DNA evidence most crucial for successful prosecution. In other words, in what kinds of sexual assault cases is it most necessary for you to have DNA test results in order to get a conviction?” This question focuses on the conditions under which DNA evidence is most useful, so none of the responses spoke to the context, processes, consequences, or perspective of the use of DNA. The results of 35 responses are reported.

Conditions

Six respondents reported that the importance of DNA evidence is not conditional on the type of case, rather, they indicated it is always important. Respondent 8 said, “So rarely do we have DNA, that it is ALWAYS crucial we do have it. We can prove sexual contact!” Another respondent expanded on why it is important to have DNA in all cases, saying, “Jurors expect them in all cases so it is necessary to have at least attempted to locate DNA evidence for them . . .” (Respondent 34). The majority of respondents, however, identified at least one type of case that DNA evidence was especially crucial for.

Nearly half of respondents (48.6%, n = 17) reported that DNA evidence was most useful in stranger cases, or those in which the identity of the perpetrator was an issue in the case. Respondent 34, who reported the importance of DNA evidence in all cases, followed up their previous statement, “. . . Stranger cases seem to be the type of cases that DNA is most beneficial for prosecuting cases, as that many times maybe (sic) our only way of [identifying the perpetrator].” Another respondent reiterated that DNA evidence is important for the jury, though specifically in stranger cases:

In a stranger on stranger assault that was immediately reported to police because jurors expect DNA most often in these cases. It is also especially important in cases where we have a sample of suspect’s DNA and there was an immediate report. (Respondent 9).

These results, combined with the results of the previous question, recapitulate how important DNA evidence is when the identity of the perpetrator is unknown.

The second most highly cited condition under which DNA is most useful for prosecution was in cases in which the defendant denied sexual contact. Respondent 22 argued that DNA evidence is most important in these types of cases, saying, “First and foremost are cases in which the defendant denies having sexual contact with (or in some cases any contact with) the victim.” Respondent 37 underscored the importance of DNA in both stranger cases and in those in which the defendant denied contact: “It [DNA] is most important on stranger attacks- It is second most important when sexual contact is denied. By the suspect.” In total, 11 (31.4%) of the respondents indicated that DNA was especially useful in these cases.

The prosecutors mentioned several other case characteristics that they felt DNA evidence was crucial for successful prosecution. Five brought attention to some type of victim credibility issue. One example was Respondent 16, who said, “. . . Cases involving victims with mental disabilities and suspect denies assault. Cases involving victims with a veracity issue and suspect denies assault. . .” Another described a different type of victim credibility issue: “. . .It’s also very helpful when corroborating a complainant who may have credibility issues, such as a prostitute or stripper” (Respondent 21). Finally, two prosecutors made unique observations. Respondent 12 said that this type of evidence is crucial when a victim has recanted, and Respondent 25 said it is critical when there has been a CODIS hit. Neither gave further explanation.

Case Attrition

The survey also asked prosecutors to estimate, in their experiences, what the primary reasons charges were dropped in sexual assault cases. This question was similar to the previous question, in that it essentially asked under which conditions sexual assault cases are dropped (other elements of the matrix were thus not identified). Of the 38 respondents to the survey, 37 answered this question. Only two of the respondents reported not having enough experience with charges being dropped in adult sexual assault cases (one reported that they had never experienced that); the others listed one or more case characteristics that they viewed as increasing the likelihood of charges being dropped. The responses to this question were also unlike the others in that most of the respondents wrote in only a few words to answer, choosing not to expand. The quotes chosen for this section, therefore, are not representative of the responses.

Conditions

Victim credibility concerns were mentioned by 19 of the 37 respondents (51.4%). In most cases, the prosecutors simply listed “victim credibility” or “inconsistent” statements in response to this question. Respondent 31, however, gave more detail:

If the victim has given inconsistent versions of what happened and there is not physical evidence or other witnesses to corroborate what happened, then we may have to dismiss. It all depends on whether or not there is an explainable and credible reason for the inconsistencies.

Respondent 23 also provided more information:

In adult victim cases, I believe the primary reason why charges are dropped is usually the victim’s credibility, especially on non-stranger cases where the victim and defendant have a past or existing relationship. This is the case whether or not there is DNA to connect the defendant to the offense.

Victim credibility was the top reason listed for dropping adult sexual assault cases. One respondent stated that this was especially important in non-stranger cases.

Victim cooperation was another highly-cited reason for dropping cases. In most cases (n = 16, 43.2%), the respondent specifically mentioned cooperation, reporting things such as, “[Complainant’s] cooperation level drops” (Respondent 4). Nearly 30% (27.0%, n = 10) said that victim recantation was one of the conditions under which sexual assault cases are frequently dropped. Respondent 7 expanded, saying “Recantation by the complainant in cases without physical evidence (i.e., DNA or medical injuries).” Three of the respondents specified that cases were dropped when they were unable to locate the victim. Respondent 10, for instance, combined many of the victim cooperation issues:

Unavailable victims—refuse to cooperate or unable to locate

Adult victim recants and we have no other evidence to prove our case

Finally, one respondent mentioned that adult sexual assault cases were likely to be dropped when, “Victim is too fearful or embarrassed to proceed” (Respondent 17).

Most of the remaining conditions that impelled prosecutors to drop charges in sexual assault cases were evidentiary in nature. Five (13.5%) of the respondents cited a lack of evidence as an issue. In addition, two (5.4%) mentioned the lack of witnesses in sexual assault cases as an obstacle to moving forward. Respondent 18, for instance, named both of these and others, saying “Situations where there is a delayed outcry, no physical evidence, no witness and the credibility of the [complainant] has been compromised.” Finally, one respondent each referred to “New found information,” (Respondent 25), “Disposable evidence- like DNA,” (Respondent 26), and being unable to meet the standard of proof in the case.

Discussion

Feminist theorizing on criminal justice has long highlighted the impact of rape culture and associated rape myths on sexual assault case processing. One of the common myths is that many allegations of rape are false (Bohner et al., 1998; Grubb & Turner, 2012; Lonsway & Fitzgerald, 1994) which may make evidentiary standards higher in these types of cases. The current study provides an in-depth examination of the ways in which prosecutors report using DNA evidence in sexual assault cases. Specifically, this study offered two unique contributions to this area of research. First, it examined the ways in which DNA evidence is used when prosecuting sexual assault cases. Moreover, this study employed methodological techniques that systematically address the contexts in which these decisions are made. Researchers provided descriptive analyses of prosecutors with first-hand experience with sexual assault cases, in addition to examining the bivariate relationship between prosecutors’ demographic characteristics and perceived utility of DNA evidence. The focus of the current study, however, used dimensional analysis to interpret responses about sexual assault case processing from 38 prosecutors. Results from our analysis reiterated findings from the previous literature about the importance of DNA evidence and clarified our understanding of the specific ways in which it is used in sexual assault case processing. These findings have several implications for research and practice.

First, the findings support a consistent theme found across studies, which suggests that prosecutors make decisions based at least partially on the environment in which they are situated (Albonetti, 1987; Frohmann, 1997; Spohn et al., 2001). The prosecutors in this study understood the use of DNA in sexual assault cases from a legal perspective, indicating that they used it to prove elements of the crime, to meet standards of evidence, and to win convictions. This may be a cultural expression flowing from the courtroom workgroup (Eisenstein & Jacob, 1977) with an emphasis on legality rather than justice and has implications for the way sexual assault cases are processed. For example, the prosecutors did not appear to be as concerned about offender blameworthiness or the danger they might pose to the community (as would be suggested if they had mentioned using DNA to identify serial offenders) as they were about practical constraints (i.e., showing the jury that they had tested all available evidence; Steffensmeier et al., 1998). This may have the effect of the prosecutors filing charges based on perceptions of convictability rather than an assessment of guilt of the offender.

It is important to note that many of the perceptions of convictability in sexual assault cases are likely based in rape myths. O’Neal (2019) found evidence of this among police investigators, who were more likely to question the credibility of sexual assault complainants with “character flaws” such as having a poor reputation and/or mental health issues, and less likely to question complainant credibility when complainants cooperated with investigators and when suspects physically assaulted complainants. It is likely that prosecutors are basing their perceptions of convictability on similar criteria. One widely accepted rape myth is that there is a high rate of false reports of sexual assault, and prosecutors may believe it is too difficult to overcome this perception if complainants are not perceived as credible and/or are uncooperative. Indeed, victim credibility and cooperation were the top two reasons prosecutors in our sample gave for dropping cases. The third, evidentiary issues, highlights the role that DNA evidence or physical injury (itself a myth that “real rapes” are violent acts resulting in injury) may play in preempting beliefs that complainants are lying.

Second, the use of dimensional analysis, rather than traditional qualitative methodologies (e.g., grounded theory), allowed the researchers to gain a nuanced understanding of the social situation in which prosecutors use DNA evidence in sexual assault cases. This was important because the respondents themselves indicated that the evidence is used differently in different types of cases. For example, many of the prosecutors stated that they used DNA evidence differently for stranger and acquaintance cases. Additionally, they reported that the context of the case mattered: DNA was used to identify suspects when the cases involved strangers, but the use was less well-defined when victims and suspects were acquainted. In acquaintance or non-stranger cases, prosecutors suggested that DNA evidence was best served in connecting the suspect to the incident, specifically when the suspect denies sexual contact. Investigators have noted similar patterns when considering the evidentiary value of SAKs (Cross et al., 2017; Strom & Hickman, 2016). While the policy response to SAK testing backlogs has been to continue to push for the testing of SAKs, researchers should also examine the differences between perceived utility and objective examinations of its use.

Third, prosecutors’ reports of their use of DNA evidence were dominated by processes, or the actual ways they used this evidence to build their cases. Among the top responses to this question were identification of the perpetrator and victim corroboration, but they also noted that excluding suspects and satisfying jurors’ need for evidence were also important. This last finding supports Frohmann’s (1997) assertion that prosecutors are concerned with how others (in this case, members of the jury) view the case and the general downstream orientation held by prosecutors (Spohn et al., 2001). It is also interesting that they are concerned about what jurors will think of their case, given the low probability of sexual assault cases going to trial (Spohn & Tellis, 2014). Finally, the prosecutors identified some of the consequences of the use of DNA evidence. Specific examples included obtaining plea bargains and securing more punitive sentences. This further highlights the downstream orientation prosecutors’ exhibit when making decisions.

Fourth, prosecutors are keenly aware of what would ultimately lead to a successful or unsuccessful prosecution. When asked about the case characteristics that made DNA evidence most crucial for successful prosecution, the results were unequivocal. DNA evidence is particularly useful in cases in which (1) the victim and perpetrator are strangers, and (2) the perpetrator denies having had sexual contact with the victim. In both cases, DNA serves as proof that sexual contact did occur, thus limiting the defense options in acquaintance cases and allowing for a positive identification to be made of the perpetrators in stranger sexual assaults.

In contrast, more than half of the respondents stated that concerns about victim credibility led to charges being dropped. While they did not provide any context in their responses about what those issues were, previous research has suggested that both police investigators and prosecutors assess victim credibility with a number of legally irrelevant factors, including risk taking behaviors at the time of the assault and moral character (Beichner & Spohn, 2012; Campbell et al., 2015a; O’Neal, 2019). While factors affecting prosecutors’ perceptions of victim credibility is an area in need of study, respondents in the current study highlighted the usefulness of DNA evidence for corroborating victims’ stories. District attorney’s offices should consider implementing policies to encourage testing of SAKs, as this might bolster perceptions of victim credibility and reduce case attrition.

Taken together, the quantitative and qualitative data analyzed in this study showed that prosecutors view DNA evidence as being very useful. When asked how influential DNA evidence is for sexual assault cases, prosecutors reported an average score of 8.86 (out of 10 for “extreme importance”). Additionally, approximately half (52.2%) of the prosecutors said it is more important for prosecution than for investigation. Unfortunately, DNA evidence is rarely available in sexual assault cases (McEwen, 2011; Peterson et al., 2010; Pierce & Zhang, 2011), and a number of the prosecutors surveyed for this project noted the lack of DNA evidence as being problematic.⁶ Increasing the timely testing of SAKs would benefit sexual assault case processing by allowing prosecutors to positively identify perpetrators in stranger sexual assaults, and to prove that sexual contact did occur in acquaintance cases. Interestingly, there appears to be some crossover between the role of prosecutor and investigators in these cases. Prosecutors are not idle in the early decision-making process, but rather are sensitive to investigative work and take into consideration how this work may influence prosecution.

The current study is not without limitations. All of the prosecutors who responded to this survey were from one large and diverse county in the southern United States. Future research should replicate this study in different contexts to see if the use of DNA evidence is similar across the country and if different DA’s offices have different perspectives (i.e., legal vs. justice) on sexual assault cases. The responses in this survey may also have been limited by the format and wording of the questions. In-depth interviews with prosecutors regarding the use of DNA evidence would provide richer detail and allow researchers to ask for clarification when needed. Notably, this data was collected during the early stages of SAKI reform movement. As such, the awareness surrounding the importance of DNA evidence and SAK testing has undoubtedly increased, which may impact the ways in which prosecutors view the utility of this type of evidence. Future research should examine the subsequent impact of increased awareness and policy reforms prosecutorial decision-making in this area. Finally, more research should examine how prosecutors make judgments of victim credibility. This was the most frequently mentioned reason for dropping charges in sexual assault cases (highlighting the continued impact of rape myths on criminal justice system personnel) and has a significant impact on sexual assault case attrition.

Conclusion

Prosecutors are often considered the gatekeepers of the criminal justice system. Given their ability to decide if and how cases are processed, it is important to understand the factors that may influence these assessments. Examining these decisions in the context of sexual assault offenses may be of particular importance, as they are potentially influenced by strongly held assumptions regarding sexual relations between women and men, “appropriate” victim behaviors, and other societal misconceptions of rape, as well as a downstream orientation that emphasizes the perceptions of other decision-makers (i.e., jurors). The current study suggests that DNA evidence helps to moderate the influence of these extralegal factors. Specifically, this type of evidence can help corroborate victim’s accounts of an offense and satisfy jurors need for physical evidence. The extent to which this occurs, however, is conditioned by other case attributes. Taken together, this study highlights the utility of DNA evidence in sexual assault case processing and underlines the ways in which prosecutorial decision-making is not summarily a function of the presence or absence of physical evidence, but rather an assessment of the degree to which such evidence is valuable.

Footnotes

Acknowledgements

The authors would like to thank William Wells for the use of his data and suggestions for improvement on previous drafts of this manuscript. They would also like to thank Katherine A. Meeker and Micaela M. Alvarado for assisting with the data reliability check.

Declaration of Conflicting Interests

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

Funding

The author(s) disclosed receipt of the following financial support for the research, authorship, and/or publication of this article: This project was supported by the National Institute of Justice, Office of Justice Programs, and the United States Department of Justice (Award Number 2011-DN-BX-0002).

ORCID iD

Tri Keah Henry

Notes

Author Biographies

Tri Keah S. Henry earned her PhD in criminal justice and criminology from Sam Houston State University and is currently an assistant professor in the Department of Criminal Justice at Indiana University-Bloomington. Her recent work has appeared in Crime & Delinquency, Criminal Justice Policy Review, Journal of Aggression, Conflict, and Peace Research, and Violence Against Women. Her current research interests include examining the effects of extralegal disparities on discretionary decision-making during case processing.

Alicia L. Jurek is a doctoral candidate in the Department of Criminal Justice and Criminology at Sam Houston State University. Her research interests include police organizations, representative bureaucracy, police investigations, and the intersection of policing and victimology. Her recent work has appeared in Policing and Society, Policing: An International Journal of Police Strategies and Management, and the Journal of School Violence.

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