Prosecutorial Decision Making
If a victim has made the decision to report a rape and that charge was cleared by arrest, the next phase involves prosecuting the suspect. Out of all the decisionmakers in the criminal justice system, the prosecutor has the most discretion. Prosecutors decide who will be charged and who will not, what charge will be filed, who will be offered a plea bargain—an agreement between the prosecutor and defendant where the defendant enters a guilty plea for a particular charge in exchange for some concession from the prosecutor—and what the nature of the plea bargain will be. This is usually a lesser charge, a reduced sentence, or both.
The initial decision of whether to prosecute a rape is the most critical phase of the process. As "gatekeepers of justice," prosecutors have considerable discretion, and there are neither legislative nor judicial guidelines that prosecutors must follow in reaching their decisions. These decisions are also not subject to review by the courts. Only 22% to 25% of all reported rapes are prosecuted (Spohn, Beichner, & Davis-Frenzel, 2001).
Research on prosecutors' charging decisions reveals they are strongly influenced by legally relevant factors, such as the seriousness of the crime, the offender's criminal record, and the strength of the evidence (Frazier & Haney, 1996). A number of studies, however, also point to the powerful influence of victim characteristics (Fro- hmann, 1997; Beichner & Spohn, 2012). Similar to decision-making by law enforcement officials in unfounding a case, prosecutors may consider the victim's age, occupation, and education; "risk-taking" behavior, such as hitchhiking, drinking alcohol or using other drugs; and the character or reputation of the victim, despite rape shield laws that prohibit consideration of these factors (Kerstetter, 1990).