Partiality in Prosecution? Discretionary Prosecutorial Decision Making and Intimate Partner Violence

Abstract

In the United States, prosecutors are typically allotted a large amount of discretion when litigating a criminal case. Although some level of discretion is necessary for various reasons (e.g., lack of resources), concerns have arisen in both scholarly and popular discourse that prosecutorial discretion remains generally unchecked. Furthermore, research suggests prosecutors may be influenced by extralegal factors when making decisions about how to proceed with criminal charges. In this study, prosecutors responded to a case of alleged intimate partner violence, in which the sex and sexual orientation of the defendant and victim were manipulated. Neither sex nor sexual orientation impacted prosecutor choice to proceed with charges, the severity of the charge selected, or the harshness of the plea bargain offered. However, prosecutors were more willing to proceed without the victim’s cooperation when the victim was female and perceived heterosexual males as more aggressive than heterosexual females. These data suggest prosecutorial decision making in cases of intimate partner violence may not be unduly influenced by defendant/victim sex and sexual orientation.

Discretionary Prosecutorial Decision-Making: Gender, Sexual Orientation, and Bias in Intimate Partner Violence

“…These results are somewhat consistent with Romain and Freiburger’s (2016) correlational study, which examined IPV census data from one Midwestern county and determined female-on-female (their characterization) cases were least likely to be dismissed. However, of note, Cox and colleagues (2021) reported different findings in a sample similar to the present study (i.e., U.S. prosecutors). Specifically, these researchers reported victim gender did not impact charge severity or harshness of the plea bargain offered, although (consistent with current findings) there was also no impact of victim gender on the decision to proceed with charges.…”

“…Participants were recruited via email solicitations using publicly available email addresses as well as via “snowballing” sampling in that participants were asked to forward the solicitation to other potentially interested individuals. The response rate (~3% of those contacted participated in the study) is somewhat lower than those reported previously with a similar population and methodological approach (e.g., ~9%; Cox et al, 2021). The reason for this low response rate is not immediately clear but may be partially attributed to the task burden (approximately 2 hr over 2 sessions).…”

“…Only one empirical study has considered prosecutorial decision-making and defendant/victim gender. Cox and colleagues (2021) manipulated the gender and sexual orientation of a defendant victim dyad for a case of alleged IPV, effectively creating four conditions: opposite-sex couple/male aggressor, opposite-sex couple/female aggressor, same-sex couple/male aggressor, and same-sex couple/female aggressor. A total of 107 prosecutors from across the United States responded to a vignette describing the alleged IPV incident, including witness statements and victim injuries.…”

“…To increase ecological validity, these materials were created in consultation with a practicing district attorney and closely resembled information typically available to prosecutors at case onset. In addition, based on previous research exploring prosecutor decision-making in IPV cases (Cox et al, 2021), the defendant and victim were described as similar physical sizes, and the victim was characterized as "cooperative." Independent variables (i.e., defendant and victim sexual orientation and gender) were manipulated creating four conditions.…”

De‐prosecution and death: A synthetic control analysis of the impact of de‐prosecution on homicides

“…Some research focuses on the prosecutor's role and impact in affecting the certainty, celerity, and severity of sanctions, with the subsequent impact on crime (Mourtgos & Adams, 2019). In addition, there is research exploring the decision not to prosecute a single category of crimes, such as domestic violence or drug offenses (Cox et al., 2021; Nicosia et al., 2017; Romain & Freiburger, 2013).…”