Justice Denied? the Exceptional Clearance of Rape Cases in Los Angeles

Article excerpt

With homicide your victim isn't going to be interviewed; their trauma is over. In most property crimes sure there is trauma, your car was stolen. But nothing can compare to sexual assault. We don't get enough training in trauma, in dealing with the trauma of victims, and the when and how of interviewing them. It's a very unique crime that victims don't get over, and they definitely won't get over it as long as the perp is rolling around.

--Detective, Los Angeles County Sheriffs Department. (1)

I worked patrol for a long time and I was one of "those" officers. The key is not to get jaded and to realize that weird stuff does happen with regards to sex crimes. Patrol officers are our first line of contact for victims and once they [victims] have a bitter taste in their mouths it's difficult. Guys [police officers] are nervous to handle it because they don't know how to talk about it and are too embarrassed to say penis, etc. I'm not saying that women rule, because there are guys out there that are fabulous. But, fortunately or unfortunately, patrol has first contact [with victims].

--Detective, Los Angeles Police Department. (2)

More often than not once they have [victims] gotten to the DA's office it's fairly rare and unlikely that they will not want to talk. They have no idea about the system and what we say means a lot. They take their cues from what we say.

--Deputy District Attorney, Victim Impact Program, Los Angeles County District Attorney's Office. (3)

I. INTRODUCTION

Thirty-five years ago, Susan Brownmiller wrote in Against Our Will: Men, Women and Rape that the complaints of rape victims often were met with insensitivity and/or hostility on the part of police and other criminal justice officials. (4) Brownmiller noted that, contrary to Lord Hale's assertion that "rape is an accusation easily to be made," (5) many rape victims did not report the crime to the police, and that those who did soon discovered that, consistent with Lord Hale's homily, it was a crime "hard to be proved." (6) As we enter the second decade of the twenty first century, the issue of police and prosecutor handling of sexual assault complaints continues to evoke controversy and spark debate. (7) Critics charge that police make inappropriate decisions regarding whether rape cases should be accepted for investigation, misclassify rape and other sex crimes as non-crimes based on archaic notions of what constitutes "rape," unfound reports at unreasonably high rates, and fail to adequately investigate the cases they do accept. (8) Such critics also allege that prosecutors' assumptions regarding "real rapes" and "genuine victims" lead them to decline to file charges in cases in which it is clear that a sexual assault occurred but in which it also is clear that the odds of proving the case to a jury are low. (9) As Michelle Madden Dempsey put it in her testimony at a recent United States Senate hearing convened to investigate the response of the criminal justice system to the crime of rape, "the chronic failure to report and investigate rape cases ... is part of a systemic failure to take rape seriously both within the criminal justice system and within our communities more generally." (10)

Missing from these critiques is any discussion of the use (and misuse) of the exceptional clearance by police. As we explain in more detail below, cases can be cleared, or solved, by the police in two ways: by the arrest of at least one suspect or by clearing the case exceptionally. Although cases that are exceptionally cleared do not result in the arrest of the suspect, they are considered solved in the sense that the suspect is known to the police but there is something beyond the control of law enforcement that precludes the police from making an arrest (e.g., the victim refuses to cooperate in the prosecution of the suspect, or the suspect has died or cannot be extradited). If police officers are clearing cases inappropriately--the rules for doing so are clearly articulated by the Federal Bureau of Investigation's Uniform Crime Reporting Handbook (11)--and are either failing to investigate sexual assault cases thoroughly or not making arrests when they have probable cause to do so and when the victim is willing to go forward with the case, there is the potential for a miscarriage of justice. …