Rape, Political Transparency and the Rule of Law Commentary
Rape, Political Transparency and the Rule of Law
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JURIST Guest Columnist Michelle Madden Dempsey of Villanova University School of Law says the chronic failure of police to investigate and prosecute sexual offenses signals a massive failure of public safety, and the chronic failure of police to document and disclose information regarding sexual offense cases is a threat to the fundamental principles of the rule of law….

On January 23, 2013, Human Rights Watch (HRW) released a scathing report detailing the failure of the Washington DC Metropolitan Police (MPD) to investigate sexual offenses and the counter-productive methods often adopted by detectives in pursuing many such investigations. As with previous investigations regarding chronic failures to investigate and prosecute sexual offenses, the HRW report documents widespread non-compliance by detectives with respect to internal procedures and a lack of systematic supervisory review within the MPD.

The 196-page report reveals a culture of incompetence within the MPD’s Sexual Assault Unit (although abbreviated “SAU” the unit is internally referred to as the “Sex Squad”). Based upon evidence gathered from the FBI’s Uniform Crime Report (UCR) — specifically, documents produced by the Washington DC Mayor’s Office of Victim Services and the Sexual Assault Nurse Examiner (SANE) program at the Washington Hospital Services (WHS), information provided pursuant to a lawsuit filed under the Freedom of Information Act [PDF] (FOIA) against the MPD, deposition testimony from a 2008 lawsuit filed by a sexual assault survivor against the MPD, and over 150 interviews of stakeholders — HRW carefully documented the failure of the MPD to investigate and report rape cases between October 2008 and September 2011.

The report’s main findings include:

  • MPD officers failed to document many reported sexual assaults, instead choosing to “unfound” cases without even filing a police report;
  • MPD officers failed to investigate several cases of reported serious sexual assault, instead classifying the reports as for “office information only” or “miscellaneous” cases, thereby ending any investigation;
  • MPD officers misclassified some cases of reported serious sexual assault as misdemeanors or non-sexual offenses;
  • MPD officers presented arrest warrant requests to prosecutors prior to undertaking a thorough investigation, resulting in the cases being rejected for prosecution based on evidential insufficiency.

This brief comment will focus on the first finding: the failure of MPD to document reported sexual assaults. First, I will recount the basis upon which HRW reached its conclusion that there was, indeed, widespread failure to document such cases. I will then discuss the problem of police failing to document and disclose information regarding sexual offenses generally and highlight the significant threat to the rule of law posed by these failures.

While the official MPD policy required police to file an incident report for all reported sexual assaults, the HRW investigation revealed that, indeed, a vast number of sexual assault reports were not documented. HRW identified MPD’s failure to document many reported sexual assaults by comparing the number of cases reported by victims to the Washington Hospital Center (WHC) — the hospital where forensic “rape kit” tests are performed — to the number of cases in which the MPD opened an incident report or recorded the case in its internal database. HRW investigators determined that there was no corresponding incident report (and thus, no police follow-up) in 35.4 percent of cases in which victims reported their assault while at the hospital undergoing a forensic exam. Given that 41 percent of victims who report sexual assaults to the police do not undergo a forensic exam, the data uncovered by the HRW investigation supports the conclusion that the percentage of undocumented cases overall is likely much greater than 35.4 percent.

Without documentation to track a case from the time of reporting by the victim through to final disposition, it is impossible to evaluate how police departments and prosecutors are handling sexual assault cases. Are feminist groups correct to complain that they are prosecuting too few cases? Are men’s rights groups correct to complain that they are prosecuting too many? Without the relevant data to evaluate precisely what is happening with reported cases, it is impossible even to begin this conversation.

Unfortunately, however, such data is not available in any US jurisdiction. While the best estimates in the social science literature conclude that seven percent to 27 percent of reported rape cases are prosecuted, this estimate is based on incomplete, piecemeal data.

The primary reason the data is incomplete is that police departments typically fail to track this information. Once a decision is made not to file an incident report, the matter is simply dropped — there is no “paper trail” in existence to document the reasons why the case was not investigated. The failure to document cases, of course, is not unique to MPD. As a 2010 Baltimore Sun investigation uncovered, the Baltimore police “[d]epartment statistics show that about 40 percent of the 911 calls involving rape allegations each year … result in reports not being taken at the scene. For most of those calls, there is no documentation of why they were handled in that way.”

Moreover, even when allegations of sexual assault are documented and investigated by the police, it is common for the departments to refuse to provide the information to researchers. As was the case in the HRW investigation of MPD, researchers often must file lawsuits to compel disclosure under FOIA. Yet, even FOIA will not guarantee transparency in state and local jurisdictions where FOIA or open-access laws either do not exist or exempt criminal police reports from the disclosure requirements.

Finally, even where the information exists and is legally discoverable, it is often the case that such disclosures are delayed and incomplete. Indeed, the continuing fallout from the HRW report illustrates this point well. Despite having been provided numerous opportunities to disclose all relevant information to the HRW researchers — and despite having agreed (pursuant to settlement of the FOIA case) that HRW was entitled to review all sexual assault cases from the relevant timeframe — the MPD now claims to have identified additional documentation regarding many cases reported at WHC for which HRW was unable to locate either a corresponding incident report or an entry into the MPD’s internal database.

The chronic failure of police to investigate sexual offenses is a crisis for our communities and signals a massive failure of public safety. Moreover, the failure to document and disclose such information is also a crisis: it is a threat to the fundamental principles of transparency in the rule of law and signals a massive failure of political legitimacy in our criminal justice systems. HRW is to be commended for having pursued this investigation so thoroughly, and MPD is to be condemned not only for its mishandling of sexual assault cases, but for its persistent failure to be transparent and accountable to the citizens it is meant to protect and serve. One can only hope that HRW’s report will encourage other police departments to improve their investigation and reporting of sexual offenses and follow best practices in transparent policing of sexual offenses.

Michelle Madden Dempsey is a Professor of Law at Villanova University School of Law. She teaches and writes in the areas of criminal law, feminist legal theory and jurisprudence. She is an editor of Criminal Law and Philosophy.

Suggested citation: Michelle Madden Dempsey, Rape, Political Transparency and the Rule of Law, JURIST – Forum, Mar. 14, 2013, http://jurist.org/forum/2013/03/dempsey-hrw-mpd-rape-transparency.php

This article was prepared for publication by Ben Klaber, a senior editor for JURIST’s academic commentary service. Please direct any questions or comments to him at academiccommentary@jurist.org

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