Untouchable by Elie Honig

Author:Elie Honig
Language: eng
Format: epub
Publisher: HarperCollins
Published: 2022-12-08T00:00:00+00:00

Chapter 12

Biases, Individual and Systemic

The recent spate of high-profile serial sexual assault cases underscores that our criminal justice system is infected by bias against women, particularly young women and minorities, and in favor of men who are powerful, rich, and famous. This disparity in treatment is now widely recognized, and there’s little dispute that other biases pervade our criminal justice system. But the extent to which the scales are tilted against women, girls, and racial minorities, specifically in sexual assault cases, is extraordinary. I was a prosecutor for over fourteen years, and I’ll admit I was taken aback at the broad-lens data.

Sexual assault is, by a wide margin, the most underreported category of crime. Numbers vary depending on source and time period measured, but the data consistently establishes that only between 25 and 40 percent of all sexual assaults are reported to law enforcement. For example, a 2013 Justice Department study found that just 36 percent of rape and sexual assaults against women were reported to the police from 2005 through 2010. More recent DOJ data consistently lands in the same range; in 2017, 2018, and 2019, approximately 40, 25, and 34 percent of sexual assaults were reported, respectively. By comparison, Justice Department statistics typically show reporting rates of approximately 45 to 50 percent for burglary, 45 to 65 percent for robbery, and 50 to 60 percent for aggravated assault.

The bias at play here takes two forms: human bias and institutional bias embedded in our rules and procedures. Let’s start with the human factors, those conscious or unconscious biases that lead us to value or devalue particular groups of people. Even among those sexual assault crimes that are reported to police, a disproportionate number do not result in referral to prosecutors for potential charges—a judgment call, at bottom, that requires a cop to decide, Is this allegation serious and credible enough to justify arrest and potential prosecution? Justice Department statistics show that only about one in six sexual assault cases that are reported to police result in arrest. This is far lower than the arrest rate for robberies (more than one in four reported cases result in arrest) and assault and battery (about two out of five). The difference is even more pronounced given that in sexual assault cases the suspect’s identity is almost always known to the victim and police, whereas in robbery cases, for example, law enforcement may be unable to identify the suspect in the first place. Yet arrest rates are lower in sexual assault cases.

These disparities are even more striking based on the race of the victim or complainant. Several studies have proven that, even among those cases that are reported to law enforcement, prosecutors are more likely to charge a case involving a white victim than a black or other minority victim.

In 1983, a group of professors led by David Baldus conducted a groundbreaking study of over two thousand murder cases in Georgia in the 1970s. The study, published in the Journal of Criminal Law

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