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Sex Offender Risk Assessment: The Need to Place Recidivism Research in the Context of Attrition in the Criminal Justice System
Wendy Larcombe Violence Against Women 2012 18: 482 originally published online 16 July 2012 DOI: 10.1177/1077801212452249 The online version of this article can be found at:

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Sex Offender Risk Assessment: The Need to Place Recidivism Research in the Context of Attrition in the Criminal Justice System
Wendy Larcombe1

Violence Against Women 18(4) 482501 The Author(s) 2012 Reprints and permission: DOI: 10.1177/1077801212452249

Abstract Jurisdictions in the United States, United Kingdom, and Australia now have laws that enable preventive detention of post-sentence sex offenders based on an assessment of the offenders likely recidivism. Measures of recidivism, or risk assessments, rely on the criminal justice process to produce the pool of sex offenders studied. This article argues that recidivism research needs to be placed in the context of attrition studies that document the disproportionate and patterned attrition of sexual offenses and sexual offenders from the criminal justice process. Understanding the common biases that affect criminal prosecution of sex offenses would improve sexual violence prevention policies. Keywords attrition, risk assessment, sex offenders

A number of jurisdictions in the United States, the United Kingdom and Australia now have laws that enable preventive detentionthat is, continued detention or ongoing supervision in a community settingof post-sentence high-risk or dangerous sex offenders. Such detention is based on an assessment of the offenders likely recidivism. The existence and operation of such post-sentence detention laws, and their impact on civil

The University of Melbourne, Victoria, Australia

Corresponding Author: Wendy Larcombe, Melbourne Law School, The University of Melbourne, Victoria 3010, Australia Email:



liberties, has given particular impetus to research that aims to identify the characteristics of sex offenders and factors associated with their criminal recidivism. An expanding body of criminological and psychological research into recidivism and risk assessment now informs the design of actuarial tools used in a range of corrections settings to assess the ongoing risk that convicted sex offenders pose to the community. The knowledge of sex offenders and of the characteristics associated with recidivism that underpin risk assessments is invariably derived from studying the pool of sex offenders produced by criminal justice processes. Most commonly, data sources include only those offenders with an initial criminal conviction for a sex offense that resulted in a term of imprisonment, and recidivism is also measured by subsequent contact with the criminal justice system, be it through report, arrest, charge, prosecution, or conviction. This reliance on criminal justice identification (charging, prosecution or conviction) of sex offenders needs to be problematized given the disproportionately low rate of reporting, prosecution and conviction that distinguishes sexual offenses within criminal justice systems. Recidivism research must also be problematized given that the attrition of sexual offenses within the criminal justice system is known to be patterned, with slight variations across jurisdictions, such that offenses and victims with certain characteristics are preferred by the key decision-makers at all stages within the system: police, prosecutors and juries (see, for example, Brown, Hamilton, & ONeill, 2007; Du Mont, 2003; Estrich, 1987; Lievore, 2004a; Spohn, Beichner, & Davis-Frenzel, 2001). In short, the criminal justice system favors those assaults that look most similar to violence (or real rape) and least similar to (potentially appropriate) sex. The attrition of sexual offenses within the criminal justice system on this basis, both before and after reporting to police, ensures that the minority of cases that secure a conviction for a sexual offense are not reflective of the most common or injurious forms of sexual violence experienced by women and children. Importantly, the minority of sexual offense cases that secure convictions are also not reflective of the range of persons who commit sex offenses. This distortion or bias in the sample of convicted sex offenders will be reflected and even amplified in sex offender research focused on recidivism and risk assessment. Biases in the sample may thus contribute to inaccurate assessments of some offenders as high-risk, at significant cost to both the detained offender and the community. From a public policy and violence-prevention perspective, however, the greater concern is that resourcing of sexual violence prevention strategies may in turn be distorted by the profile of high-risk sex offenders produced through recidivism research. If convicted and high-risk sex offenders are mistakenly considered to be typical of those who commit sex offenses, or of those offenders who pose the most serious danger to women and children, public perceptions of risk (and safety) will also be distorted. This article argues that, for public policy purposes, the knowledge of sex offenders produced by recidivism research needs to be placed in the context of prevalence and attrition studies that document the disproportionate and patterned attrition of sexual offenses and sexual offenders from the criminal justice process. To date, research on sex offender recidivism and risk assessment has not addressed the patterned nature of sex offense attrition in the criminal justice system. The present article demonstrates that the decisions of


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police, prosecutors, and juries actively shape the pool of convicted sex offenders relied on in recidivism studies. The argument is made by analyzing Australian data sources on prevalence and reporting of sexual offenses and attrition in reported rape cases. Reading these studies against the grain, the article identifies the features of assaults and the characteristics of offenders preferred within the criminal justice process. This analysis indicates that the attrition of sexual offenses is patterned not only in relation to well-known offense and victim characteristics, but also in particular (and undesirable) ways in relation to offender characteristics. It is clear that those charged and prosecuted with rape in Australia represent a distorted sample of the range of persons against whom rape complaints are made. Although risk assessment tools may usefully identify which of the convicted offenders is at high risk of returning to the corrections system post-sentence, violence-prevention strategies need to also address the vast majority of sex offenders who will never be reported, prosecuted, or convicted. Sexual violence prevention policy should thus pay close attention to feminist and criminal justice research into sexual assault prevalence and attrition, not only to recidivism research and its consequent risk assessment instruments and preventive detention measures.

Sex Offenders and Risk Assessment

Research on sex offender recidivism, and development of tools to assess the degree of ongoing risk that offenders pose, have advanced significantly over the past decade (see Chung, OLeary, & Hand, 2006; Hanson & Morton-Bourgon, 2007; Richardson & Huebner, 2006). However, the development and use of sex offender risk assessment tools is not without controversy, particularly as their results are increasingly used in some jurisdictions to justify the imposition of preventive detention, control orders, and ongoing monitoring regimes on high-risk offenders who have completed their custodial sentences (see Doyle & Ogloff, 2009; Janus & Prentky, 2003; Webster, Gartner, & Doob, 2006). In the United States, for example, sexually violent person/predator (SVP) laws authorize civil confinement post-sentence of offenders that present a risk of future criminal sexual misconduct (Janus & Prentky, 2003, p. 1447). In several Australian jurisdictions, serious sex offenders can be held in criminal detention on indefinite sentences (Doyle & Ogloff, 2009; McSherry, Keyzer, & Freiberg, 2006). In the United Kingdom, similarly, courts can impose extended or indefinite sentences on offenders who pose a significant risk of serious harm to the public, and it has been noted that courts appear to have taken to using these new powers with considerable alacrity and for a much wider group than originally envisaged (Hebenton & Seddon, 2009, p. 348). Preventive detention is only the most extreme form of offender control with widespread use of sex offender registers, residential restrictions, and post-release supervision in a number of jurisdictions (see McSherry et al., 2006). In the United States, community notification schemes and electronic tracking of sex offenders on supervised release are also in use (see Hebenton & Seddon, 2009). As Janus and Prentky (2003) note, an accurate assessment of future dangerousness and the ability to differentiate offenders according to risk levels are central to both the ethical justification and practical effectiveness of preventive detention and ongoing supervision:



The central justification for spending huge sums of money on SVP programs is that the most dangerous offenders are incapacitated. Public policy is not well served if, because of inaccurate assessment of risk, extraordinary resources are devoted to the ordinarily dangerous. (p. 1448) The need to reduce uncertainty and improve efficacy within the science of risk prediction, given its contemporary uses, has driven efforts to improve measures and methods. Although clinical judgment or expert opinion has traditionally been used and preferred by courts, various actuarial risk assessment tools designed specifically to predict risks of recidivism for sexual offenders have now been developed and validated, including Static-99 and SVR-20 (see Hanson & Morton-Bourgon, 2009; Langton et al., 2007; Stadtland et al., 2005). Recent studies have concluded that the predictive accuracy of actuarial risk assessment is superior to structured professional judgment and should be preferred by courts and parole boards (Hanson & Morton-Bourgon, 2009; Janus & Prentky, 2003). However, uncertainty is not entirely resolved by actuarial tools, given that the different tools are known to produce different risk ratings for individual sexual offenders (Barbaree, Langton, & Peacock, 2006). The risk of a false risk assessment may be offset by using more than one instrument; however, there is presently no scientific method for reconciling divergent ratings, and researchers suggest that combined results may not be as accurate as the predictive validity of the single best actuarial scale (Hebenton & Seddon, 2009, p. 352). Deciding which is the single best actuarial scale to use in a given situation, and knowing how to interpret the results, remain matters of professional judgment at this time (Hanson & Morton-Bourgon, 2009, p. 10). There is healthy debate in the criminological and psychological-research literature about the merits of different instruments and methods of offender risk assessment and also the ethics of using (imperfect) risk assessments to justify restrictions on civil liberties (Doyle & Ogloff, 2009; Hebenton & Seddon, 2009; Janus & Prentky, 2003; Webster et al., 2006). This article takes up a broader issue: the patterned attrition of sexual offenses through the criminal justice system. Research into sex offender recidivism, and hence risk assessment, relies on criminal justice processes to identify the sample of sex offenders from whom data on offender characteristics and rates of recidivism are derived and predictive tools developed. The majority of sex offender risk assessment tools are developed and validated through analyses of populations of released sex offendersthat is, those who have been convicted and completed a term of imprisonment (see Hanson & MortonBourgon, 2007, 2009; Home Office UK, 2002; Richardson & Huebner, 2006). This is a subset of convicted sex offenders. Recidivism is then generally measured by counting the number of subsequent convictions (or occasionally arrests or prosecutions) for either sex offenses, violent nonsexual offenses, and/or all criminal offenses within a given time frame (commonly 5-10 years). As Janus and Prentky (2003) explain, risk-assessment tools are developed by isolating and analyzing offender and offense characteristics to identify variables that predict rearrest, prosecution, and/or conviction. However, the ability of those variables truly to differentiate between offenders who reoffended and those who did not,


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compared with differentiating only between those who were apprehended and prosecuted for reoffending and those who were not, is dependent on the effectiveness of the criminal justice system. The limitations of assuming that the criminal justice system works effectively and objectively are generally acknowledged in recidivism research (see, for example, Payne, 2007). However, it is suggested here that particular limitations are likely to affect criminal justice data sources for sex offenses given their disproportionate attrition.

Reporting of Sexual Offenses and Attrition Through the Criminal Justice System
The extraordinary attrition or dropout rate for sexual assault and rape within the criminal justice process has received concerted attention in recent years from feminist activists and legal critics (Kelly, Lovett, & Regan, 2005; Regan & Kelly, 2003; Temkin & Krah, 2008). It is well established that sexual offenses are the least likely of all criminal offenses to be reported to police and that, when reported, they are less likely than other offenses to result in a criminal conviction (Gelb, 2007; Temkin & Krah, 2008; Victorian Law Reform Commission [VLRC], 2004). Indeed, the gap between reporting and conviction rates for sexual offenses appears to have widened in recent years to the extent that leading UK researchers in this field note that the justice gap is better described as a chasm (Temkin & Krah, 2008, p. 10; see also Kelly et al., 2005). In this context, several recent studies of sexual violence prevalence, of victims decisions to report to police, and of the attrition of reported sexual assault cases within the criminal justice system provide information about the features of cases in which offenders are most likely to be charged, prosecuted, and convicted (Brown et al., 2007; Kelly et al., 2005; Lievore, 2004a; Spohn et al., 2001; Statewide Steering Committee to Reduce Sexual Assault, Victoria [SSCRSA], 2006).1 These empirical studies give a strong indication of the extent of underreporting and the disproportionate attrition of sexual offenses within criminal justice systems across common law jurisdictions. Notwithstanding the limitations of individual studies and the difficulty of comparing studies,2 there is sufficient consistency in certain findings about sexual assault prevalence and attrition to enable a number of general conclusions to be drawn. First, sexual offenses are not isolated or rare occurrences. As Kelly et al. (2005) note, Rape is a more frequent and mundane crime than conventionally believed, with present and ex-partners featuring strongly, and for a substantial proportion of women rape involves repeat victimization (p. 33). Sexual violence is prevalent and has a disproportionate impact on women and children (see for example, Australian Bureau of Statistics [ABS], 2006; Kelly et al., 2005; Mouzos & Makkai, 2004; Temkin & Krah, 2008; Tjaden & Thoennes, 2000). Most offenders are known to their victims and overt force resulting in physical injury is generally not necessary to effect an assault. Second, only a minority of sexual offenses is reported to the police and those incidents that are reported are not necessarily the most injurious or serious (Kelly et al., 2005;



Lievore, 2003; Temkin & Krah, 2008). As a consequence, [o]fficial statistics on apprehensions, convictions and incarcerations for sexual assault . . . represent only the tip of the iceberg of all sex crimes perpetrated (Lievore, 2004b, p. 24). Finally, within the criminal justice process across jurisdictions there are three points at which sexual offense cases are consistently lost or filtered out: the police decision to investigate, charge or arrest; the prosecutors decision to commence or continue a prosecution; and, if defended, the jury decision.3 Although these attrition points are common for all criminal offenses, as Gelb (2007) notes and as discussed below, there is a substantial difference in the way that sexual assault and related offenses move through the courts when compared with all offense types (p. 5). As a result, conviction rates for reported sexual offenses are consistently below conviction rates for other criminal offenses (Gelb, 2007; Regan & Kelly, 2003). The idea of real rape, conceived and developed by Susan Estrich in 1987, has been particularly influential in explaining why so many sexual offenses are filtered out of the criminal justice process. The real rape theory proposes that the rapes that are legitimated in cultural stereotypes and within the criminal justice processreal rapesare a small and unrepresentative minority of sexual assaults. Specifically, Estrich (1987) proposes that a case is more likely to be regarded as a real rape (by victims, police, prosecutors, jurors, and the community) if it is clearly interpretable as violence: if the offender is a stranger; if force, threats or a weapon are used; if the victim/survivors resistance is overt and physical injury is sustained and documented (1987). Empirical research into the prevalence and attrition of sexual offenses supports the real rape theory that certain kinds of assaults and certain kinds of victims are far more likely than others to secure convictions. As a consequence, some victims and some forms of sexual assaultthose that do not fit the real rape templateare effectively without legal redress. Australian data support the real rape theory. At least one in five women reports experiencing sexual violence in her lifetime.4 Young, single, unemployed women aged 15 to 24, and girls aged 10 to 14, are most at risk of being sexually assaulted (ABS, 2003; Mouzos & Makkai, 2004). The vast majority of offenders are known to their victims and the majority of sexual assaults occur in a private residence (ABS, 2003). Weapons are rarely used; more commonly, offenders rely on threats and psychological tactics to complete the assault (Lievore, 2003). Contrary to popular opinion, most sexual assaults result in only slight to moderate physical injury (bruising and scratching), if any (Lievore, 2003), although the severity of physical injury is closely associated with the relationship between the offender and the victim. Victims are most likely to suffer physical injury when assaulted by an ex-partner; in turn, more injuries are likely to result from stranger assaults than from assaults by known men and family members (ABS, 2004b). Women assaulted by present or ex-partners are at risk of repeat victimization by the same offender (Lievore, 2003). Experiences of childhood sexual abuse and prior adult sexual violence are also risk factors for adult sexual assault, indicating a general association between past victimization and future vulnerability (Lievore, 2003). Fewer than one in five sexual offenses are reported to police in Australia. Studies indicate that there was a slight increase in reporting over the decade between 1995 and 2005,


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but only from 15% to 19% (Phillips & Park, 2006).5 Importantly, the sexual offenses reported to police do not reflect the general profile of sexual offenses identified through incidence and prevalence studies (Lievore, 2003).6 A number of factors are known to affect the decision to report. For a range of reasons, assaults by present intimate partners are the least likely to be reported and assaults by strangers are the most likely to be reported (Lievore, 2003; Mouzos & Makkai, 2004). Reporting is also positively correlated with the use or threat of physical force and weapons, physical injury and a completed assault (Lievore, 2003, p. 27). Sexual offenses are thus more likely to be reported if they conform to standard ideas of a violent assault. A victims level of fear following the attack and her attitudes toward and knowledge of police are additional factors affecting her decision to report (Lievore, 2003). In part this can be explained by the fact that, for a woman to report a sexual offense, she must be reasonably confident that the police will regard the incident as a crime. Standard scripts of sexual violence and of appropriate victim behavior thus affect sexual offenses even at their point of entry to the criminal justice system. In Australia, as elsewhere, most reported sexual offenses do not proceed beyond the initial police investigation stage (Kelly et al., 2005; SSCRSA, 2006). For example, independent studies in the Australian states of Victoria and New South Wales found that criminal proceedings were initiated for only 15% of reported incidents (Fitzgerald, 2006; SSCRSA, 2006). A further proportion of cases is then dropped or withdrawn at the prosecution stage as prosecutors will only proceed if they determine that a case has reasonable prospects of securing a conviction (Lievore, 2004a; see also Spohn et al., 2001). A study of prosecutorial decision-making in rape cases found that 38% of the cases referred for prosecution were dropped at this stage (Lievore, 2004a).7 Even then, the acquittal rate at trial is higher for sexual offenses than for other offense types (Lievore, 2004a; VLRC, 2004). In Lievores (2004a) study, only 38% of the offenders who defended charges were found guilty. Combined with those who pleaded guilty, even to a lesser sexual offense, these figures indicate a conviction rate of 5% or less for reported sexual offenses in Australia (see also Gelb, 2007).8 The conviction rate for committed sexual offenses in Australia is estimated to be less than 1% (Gelb, 2007). It is important to note that there will always be a degree of attrition in the criminal justice process for any offense type as the evidentiary requirements increase at the different stages. As Lievore (2004a) notes, the police decision to charge is based on the prima facie test, which is a more inclusive standard than the reasonable prospects test applied by the prosecutor, whereas the jurys decision to convict is based on the stringent standard of beyond reasonable doubt (p. 5, emphasis in the original). The issue of concern here is that the rates of attrition are higher for sexual offenses than for all other offenses (Gelb, 2007; Lievore, 2003) and that this is so despite the fact that only a small minority of sexual offenses are reported to police in the first instance. Furthermore, the types of cases that enter and progress through the criminal justice process to secure a criminal conviction are not representative of sexual assaults in general. Correspondingly, convicted sex offenders are not representative of those who commit sex offenses. Attrition studies can provide insight into the ways in which the characteristics of convicted sex offenders differ from the characteristics of those against whom sex offenses are reported.



Rape Case Attrition and the Characteristics of Charged and Prosecuted Sex Offenders
Research into the attrition of sexual offenses within the criminal justice process usually analyzes the characteristics of the offenses and of the victims whose cases are less likely to proceed through the criminal justice system. Although victims are, appropriately, the focus of much feminist research, attrition studies are reviewed here for the information they provide about the characteristics of offenders whose cases are more likely to proceed through the criminal justice system. Two recent Australian studies of rape case attrition provide important information about the characteristics of offenders who are more likely to be retained within as well as filtered out of the criminal justice process following a reported rape. Both studies were concerned with penetrative sexual assaults committed by adultsvariously called rape, sexual assault, or aggravated sexual assault in the different Australian jurisdictions. The study of police investigations of rape reports in Victoria, Australia (SSCRSA, 2006), and Lievores (2004a) study of prosecutorial decisions and outcomes for rape cases in Australia collected additional information about the factors that affected police and prosecutors decisions, and about the characteristics of both victims and offenders whose cases proceeded.9 This gives insight into the legal and nonlegal offender-related factors that affect attrition of sexual assault cases and thus the characteristics of convicted sex offenders.

Police Charging in Rape Cases

The SSCRSA (2006) study analyzed a random sample of 850 case files that documented police investigations of rape offenses reported in the state of Victoria between 2000 and 2003. Police laid charges in only 15% of reported incidents and in almost half the cases in the study they made a decision to take no further police action (NFPA). The complaint was withdrawn in 15.1% of cases and the report was classified as a false report in only 2.1% of cases. Charges were more likely to be laid when the victim and offender were not of an age and/or gender to be conventionally considered as potential sexual partnersthat is, where it was less likely that the offender could feasibly claim that the victim consented to sex. Consequently, male victims were more likely than female victims to see their (male) offenders charged (27.1% compared with 14%) (p. 22). Victims less than 14 years of age were also more likely than adult women to see their offenders charged; of the victims aged less than 10 years at the time of the offense, charges were laid in 42% of cases (p. 37), and for 10-14 year olds, charges were laid in 32% of cases (compared with 15% of cases overall) (p. 22).10 Whereas offenders who assaulted children and male victims were more likely to be charged, those who assaulted women from particular vulnerable groups were least likely to be charged. Three groups were proportionally overrepresented as victims of rape and yet underrepresented in the cases in which charges were laid: young women aged 15-24, women with disabilities, and indigenous women. None of the 16 victims identified by


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police as Aboriginal or Torres Strait Islander saw charges laid against their offenders (p. 36).11 Victims with disabilities were also overrepresented in the study sample (26.5%), and they were only slightly more likely than indigenous women to see their offenders charged. Of the victims identified by police as having a disability, nearly 60% were noted as having a psychiatric disability or mental health issue and charges were laid in just 4% of these cases (p. 34). Police were also more likely to make a decision not to take further action (NFPA) in cases involving victims with mental health/psychiatric disabilities (p. 35).12 Young women 15-24 years old made up nearly half the victims in the study (p. 16), yet they were significantly underrepresented in the cases where charges were laid and overrepresented in the cases where police decided to take no further action (NFPA) (p. 22). Case files indicated that young women were amongst those most likely to be the subject of police disbelief (p. 46). When the offender and victim could be considered as potential sexual partners, charging decisions were strongly affected by police perceptions of the victims credibility: the case was likely to be finalized as NFPA if police doubted the victims account or her capacity to act as an effective witness (p. 24). By contrast, in the cases that resulted in charges being laid, police expressed high levels of confidence that the allegations were genuine and the victims believable (p. 27).13 Cases in which charges were laid were also associated with a presence of corroborative evidence (e.g., evidence of physical injury or DNA, witness corroboration, CCTV footage) confirming the victims account. As the authors comment, [t]he rape victim most likely to see charges laid against the offender is still one who is injured, who is medically examined and who can demonstrate sobriety around the time of the offences (p. 25). Offender-related factors were also found to be significant in the police decision to lay charges. Almost one-third of offenders (39.8%) were already known to police, including 72 offenders (8.5% of the total sample) who were known due to prior allegations/convictions of sex offenses against them, and 30 offenders (3.5% of the total sample) who had been defendants of intervention orders (not necessarily in relation to the present victim; p. 17). There was a strong association between charging decisions, multiple offenses (in addition to rape), and previous allegations/convictions for sexual offenses: half of the offenders who were known to police for allegations/convictions related to previous sex offenses were charged with rape compared with 15% of cases overall (p. 24). The data thus indicate that [p]olice confidence to charge continues to be buoyed by offenders who have prior convictions for sexual offences or where other offences are committed against the victim in addition to the rape (p. 25). Police beliefs about sexual offending and either specific or general criminal recidivism appear to be a factor in charging decisions. Police beliefs about the propensity of men from particular socio-demographic groups to commit sexual offenses may also affect charging decisions. The study provides some support for concerns that men from disadvantaged groups are over-policed and more likely than offenders from mainstream and privileged groups to be charged, prosecuted and incarcerated for sexual offenses (Warner, 2001). For example, of the 16 offenders identified by police as Aboriginal or Torres Strait Islander, 15 had had prior involvement with the police (p. 40). Charges were laid in six of these cases (50% of the cases where an outcome was



known, compared with 15% overall) and in only four cases was a decision made to take NFPA. Similarly, of the 89 offenders identified by police as non-Australian born, charges were laid in 32.5% of cases where case outcomes were knowndouble the percentage for the total sample (p. 41). A lower proportion of these cases was finalized as NFPA (38.6%) compared with the overall sample (46.4%), indicating that police were less likely to view these cases as unwinnable. Finally, offenders identified by police as having a disability were more likely to be charged than the overall sample: 59 offenders were identified as having a disability, including 25 with an intellectual disability and 18 with a psychiatric disability. Charges were laid in 23.7% of these cases compared with 15% for the overall sample (p. 40). Particular offense and victim characteristics are known to be associated with sexual offense attrition in the criminal justice system (Kelly et al., 2005; Temkin & Krah, 2008; VLRC, 2004). However, as the present study indicates, offender characteristics or offenderrelated factors also play a role, particularly once the victim is assessed as credible. Offenders who are already known to police, particularly for prior allegations and convictions for sexual offenses, are more likely to be charged although the prior allegation/ conviction has no legally probative or corroborative value. Offenders who commit other offenses at the time of the rape are also more likely to be charged, indicating that police prefer to charge sex offenders who exhibit general criminality. The socio-demographic characteristics of offenders identified as significant in this studyindigenous, non-Australian born, and disabledare likely to be associated with disadvantage and social marginalization, factors known to increase the likelihood of arrest and prosecution for a range of criminal offenses (Lievore, 2004b). These biases in the sample of sex offenders who were arrested or charged are of concern, particularly as it appears that the same factors affect prosecutors decisions to proceed with sexual offense cases.

Prosecution Decisions in Rape Cases

Denise Lievores (2004a) study of prosecutorial decisions in adult sexual assault cases in Australia collected and classified information based on the typology developed by Spohn and colleagues (2001), which categorizes variables in terms of victim characteristics, defendant characteristics, case characteristics, and case outcomes. Additional defendant variables were included in Lievores study, however, so that information was collected about defendants gender, age, relationship status, race/ethnicity, employment, substance use, criminal history, and relationship to the victim (p. 22). A total of 141 case files from the period 1 July 1999 to 30 June 2001 were analyzed.14 Of the 152 offenders included in the study, all were male, 38% were aged 25-34 years old with a mean age of 31 years, almost half had present partners, and 51% were unemployed or otherwise not in the labor force (for example, in receipt of a government pension) (p. 27). Where race/ethnicity was indicated (for 134 of the 152 defendants), 40% of the defendants were identified (through police interviews or officers assessments) as Caucasian, 48% as Aboriginal or Torres Strait Islander (indigenous), and 12% as Asian and Other


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(p. 25). This means that indigenous defendants are significantly overrepresented and Caucasian defendants underrepresented in the rape cases forwarded to Crown prosecutors. Using data from the Australian Bureau of Statistics on indigenous populations for each of the jurisdictions represented in the study, only 12% of the cases would involve indigenous defendants if indigenous people were proportionally represented.15 Indigenous defendants were thus overrepresented by a factor of four in the cases forwarded for prosecution. Information on the defendants prior criminal record, if any, was available for 126 defendants; of these, only 14% had no prior criminal convictions, whereas 86% had prior convictions. All defendants with convictions had convictions for nonviolent offenses such as property, drug, or traffic offenses. In addition, 34% of defendants had prior convictions for violent, nonsexual offenses against the person and 18% had prior convictions for sex offenses and violence offenses (pp. 27-8). Most defendants assaulted victims who were known to them: 23% of defendants were strangers, 15% were present partners at the time of the assault, 11% were former partners, 15% were family members, and 35% were otherwise known to the victim (p. 28). Information was available on substance use at the time of the assault for 83% of defendants, and 88% of these were identified as under the influence of alcohol or other drugs, with the majority reported as having been drinking alcohol (p. 27). Of the cases in Lievores sample, 37% were withdrawn or dropped, either on the basis of the victims reluctance to proceed or on an assessment of the prospects of conviction. Lievore notes that in all cases in which the victim chose to withdraw from prosecution, the files indicated that the prosecutors believed that the victim was telling the truth about the assault (p. 30). In other respects, however, the cases that were withdrawn at the prosecution stage differed significantly from cases that proceeded (p. 32). Cases were significantly more likely to proceed when: the victim physically or verbally expressed non-consent; the victim was injured during the assault; the defendant used force, threats or a weapon; the defendant was non-Caucasian; the defendant was a stranger; and there was additional evidence linking the defendant to the assault and confirming the victims account (pp. 32-33). As a set, these six variables reliably distinguished between cases that were withdrawn and cases that proceeded, although no individual variable was a significant predictor of case withdrawal. The combination of expressed non-consent and use of physical force was a strong predictor of cases proceeding (p. 34) although these are no longer required elements of the offense of rape (or its equivalent) in Australian jurisdictions. Only 35% of the defendants involved in the cases referred to the Crown prosecutors were convicted of a sexual offense of some kind (p. 31). Cases involving strangers and family members (other than partners) were the least likely to be withdrawn, and those involving present or ex-partners were the most likely to be withdrawn: 20% of stranger cases and 23% of family member cases were withdrawn, compared with 53% of cases involving ex-partners and 48% of those involving present partners (p. 30). In the cases that proceeded, approximately half of the defendants pleaded guilty and, of those, 53% negotiated a reduction in charges: in 40% of these cases to a nonsexual offense. Of the defendants who defended charges at trial (30% of the total sample), 62% were acquitted: all the present partners, all but one of the former partners, five of the eight family members, 11 of the



15 otherwise known to the victim, but only four of the 13 strangers. Consequently, although only 23% of defendants in the study were strangers, strangers formed the majority of those found guilty at trial. Evidently, deviation from the real rape template is still a strong predictor that a case will be dropped by prosecutors within the criminal justice system (see also Kelly et al., 2005). Non-Caucasian race, prior convictions, unemployment, and drug or alcohol use are notable characteristics distinguishing the offenders referred for prosecution in Australia. It appears that rape myths and gender stereotypes affecting offenders as well as victims are reinforced through the criminal justice process to the disadvantage of certain already disadvantaged social groups (see also Brown et al., 2007; Lievore, 2004a; Spohn et al., 2001).

Reviewing Recidivism Research in the Context of Attrition Studies

Attrition studies generally expose the particular difficulties that affect the criminal prosecution of sex offenses: police are less likely to initiate criminal proceedings, victims are more likely to withdraw complaints, defendants are less likely to plead guilty, and juries are more likely to acquit in sexual assault matters than for other criminal offenses. Rape myths and gender stereotypes affect all stages of the criminal justice process. The uncertainties regarding convictability for sexual offenses also affect police and prosecutorial decisions. The Australian studies reviewed here indicate that particular offender-related factors feature in the typical rape scenarios that affect the decisions to charge and prosecute for sexual offenses (Brown et al., 2007; Lievore, 2004a; Spohn et al., 2001). The offenders (lack of) prior convictions, race/ethnicity, employment status, dis/ability, and use of drugs or alcohol warrant further investigation as factors that affect the decision to proceed with or drop a sexual offense charge/prosecution. The studies indicate that the offenders most likely to be prosecuted are those who have had prior contact with the police and those who commit offenses against victims who do not constitute potentially appropriate sexual partnerschildren, male victims, and female victims who are strangers. Evidently, the attrition of sexual offenses through the criminal justice process is patterned in particular ways that advantage or disadvantage certain offenders. These biases are presently naturalized in sexual offense recidivism studiesthat is, they are re-presented as independent variables associated with the commission of sexual offenses, rather than only with convictability (or the prospects of successful prosecution and conviction). Recidivism studies concur that sexual recidivism is associated with two dominant offender characteristics: deviant sexual interests and antisocial orientation/lifestyle instability (Hanson & Morton-Bourgon, 2005).16 In a meta-analysis of recidivism studies, these two factors were the major predictors of rearrest or conviction for a subsequent sexual offense (Hanson & Morton-Bourgon, 2005). However, released sexual offenders are more likely to be subsequently arrested for a nonsexual offense than a sexual offense, and for general recidivism (both violent and nonviolent) by sexual offenders only antisocial orientation/lifestyle instability was relevant (Hanson & Morton-Bourgon, 2005).17 If antisocial orientation/lifestyle instability is the best predictor of both sexual and general recidivism


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in convicted sex offenders, it is doubtful that it is predicting the probability of reoffending rather than only the probability of being arrested and convicted for subsequent offending. As Jones (2004) observes, the event of being reported, getting caught and being convicted of a sexual offense is very rare indeed (p. 35). In that context, the intersections between lifestyle instability and the forms of social marginalization and socioeconomic disadvantage identified in the above analysis must be acknowledged as affecting the prospects of successful criminal prosecution (convictability) and, hence, both sexual offense attrition and recidivism research. When recidivism research is viewed in the context of sexual offense attrition in the criminal justice process, it can be seen to amplify and consolidate certain biases within the latter system. It is evident that the criminal justice process produces/convicts a very distorted and unrepresentative sample of sex offenders. Both police and prosecutorial discretion are evidently exercised on the basis of a range of nonlegal as well as legal factors. Attrition research to date has primarily explored the gender stereotypes associated with the victims behavior and credibility, and her relationship to the offender. However, the real rape theory also dis/advantages offenders with particular characteristics. Thus, it would be useful for future attrition research to examine police and prosecutors perceptions of the guilt, culpability, and dangerousness of sex offenders with a range of characteristics. As risk assessment procedures and recidivism research becomes increasingly familiar to correctional services staff, parole boards, and criminal justice personnel, it would also be useful for future research to assess whether police and prosecutors decisions are influenced by that researchs concept of a sexually deviant and antisocial sex offender. Of course, such convergence would confirm the predictive accuracy of the risk-assessment tools, but only at the expense of reproducing certain stereotypes and biases in the prosecution of sex offenses within the criminal justice process.

The underreporting and filtering of sexual offenses within the criminal justice system make it highly unlikely that sex offenders will be prosecuted and convicted in the first instance, and recidivism is only slightly more likely to be detected. Yet, prevalence and attrition research is at best footnoted and more commonly ignored in criminological and psychological studies of sex offenders. This article suggests that as recidivism research comes increasingly to underpin offender treatment programs and post-sentence supervision regimes, it is important that, in the broader policy and violence-prevention context, recidivism research is placed in the context of attrition research so that the characteristics of those sex offenders who are filtered out of the criminal justice system are kept in mind. Offender studies that use conviction, or even apprehension and prosecution, as a starting point to develop knowledge of sex offenders inherit the partial or distorted sample of offenders produced by criminal justice systems. Recidivism and risk assessment research cannot produce reliable information about those who commit sex offenses; rather, they produce information about those against whom convictions can be secured. The latter information is of use if the problem to be addressed is the return of certain offenders to the



corrections system. However, if the problem to be addressed is the prevalence and impact of sexual violence against women and children, then convictions within the criminal justice process cannot be the starting point for developing prevention policies. The present concentration of concern and resources on those offenders designated as high-risk will not be effective in addressing womens and childrens ordinary experiences of sexual violence. As noted above, it may also detract from the resourcing of community-wide measures and programs to reduce and prevent sexual violence in its most common forms and contexts. It is also of concern that the support offered by recidivism research to the stereotype of the sexually deviant and antisocial sex offender may further distort decision-making and policy development within the criminal justice system in the future. If recidivism research and the knowledge it produces about sex offenders are not to reproduce and magnify the biases and distortions that presently affect sexual offenses entering and progressing through the criminal justice system, they will need to recognize more explicitly the high attrition rates for sexual offenses and the particular ways in which the prosecution of sexual offenses is patterned. Particularly while conviction rates for rape remain at all-time lows across a number or jurisdictions (Kelly et al., 2005; Regan & Kelly, 2003; Temkin & Krah, 2008), it is important to remember that the characteristics of convicted sex offenders do not reflect those of sex offenders generally, nor even of those who inflict the most serious harm or pose the highest danger to women and children.

Declaration of Conflicting Interests

The author declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

The author received no financial support for the research, authorship, and/or publication of this article.

1. The term victim is used in this article in keeping with criminal justice designations; however, its negative implications for survivors are acknowledged. Female pronouns are used to refer to victims, acknowledging the disproportionate impact of sexual violence on women and girls. The term offender is used in this section, although it is acknowledged that no finding of guilt has been established for incidents that may not be reported, or for incidents that have not progressed through the criminal justice process. However, as it is precisely the designation of offenders as only those against whom a criminal conviction has been secured that is being put in question in this article, it seems appropriate to explore the different understanding of offenders that is gained when victims designation of sex offenders is accepted, rather than the designation of the criminal justice system. Although this usage would be over-inclusive, recent research suggests that the rate of false reporting of sexual offensesthat is, cases where there is evidence available that negates the reportis only around 2-8% (Kelly et al., 2005; SSCRSA, 2006). The term defendant is used in the next section to refer to offenders who have had to defend criminal charges.


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2. It is always difficult to compare and synthesize information across studies and across jurisdictions, and sexual assault prevalence and attrition studies, no less than recidivism studies, inherit limitations from their data sources in terms of the types of information collected and the classification systems (or lack of systems) being employed to code cases. For example, police and prosecutors in different jurisdictions use different terminology or classifications when registering and clearing cases; legal definitions of rape, sexual assault, and other sexual offenses vary across jurisdictions. Some studies include rape and sexual assault of children; others are limited to offenses committed against adults. Some studies include attempted offenses; others investigate only reports of completed offenses, and so on. 3. In different countries and jurisdictions the proportion of cases dropped at the prosecution stage rather than the police investigation stage can vary significantly depending on the role and office of the Crown prosecutor and their level of interaction with/independence from police investigations. Rates of acquittal at trial for sexual offenses also vary across jurisdictions. It should be noted that jury decision-making has been a particular focus of important recent attrition research (see, for example, Finch & Munro, 2006; Taylor, 2007; Temkin & Krah, 2008). However, very few sexual offenses reported to police come before a judge or jury for determination. So, although jury decision-making is an important consideration at all stages within the criminal justice process, for present purposes it is sufficient to analyze information available about official decision-making. Finally, it must be noted that a guilty verdict is not the end of the attrition of sexual assault cases within the criminal justice system. One study of appeals against conviction for sexual offenses against children in Victoria found that sexual offenses convictions are among the most unstable in the criminal justice process (Courtin, 2006; see also Temkin & Krah, 2008). 4. The Australian Bureau of Statistics (ABS) Personal Safety Survey 2005 found that 19% of women had experienced sexual assault since the age of 15, and 12% experienced sexual abuse before the age of 15 (ABS, 2006). The Australian data from the International Violence Against Women Survey returned slightly higher results, finding that 34% of women reported experiences of sexual violence during their lifetime (Mouzos & Makkai, 2004). As an indicator of the severity and impact of this sexual violence, 9% of women reported completed forced intercourse and almost one third of the women who had experienced sexual violence reported that they felt their life was in danger during the most recent incident (Mouzos & Makkai, 2004). 5. UK studies have similarly found reporting rates for sexual offenses to be 15-20% (Kelly et al., 2005). 6. Even incidents reported to specialist sexual assault services have been found to differ in profile from incidents identified through prevalence studies (Kelly et al., 2005). 7. Kelly et al. (2005) suggest that it may be useful in thinking about attrition to distinguish between cases that are lost and those that are dropped. They propose that the former category be used to describe cases that are lost despite the best efforts of police and prosecutorsfor example, cases in which the offender cannot be identified or located; the victim has been fully and effectively supported to proceed, but decides to withdraw; and acquittals in court. Cases that are dropped are those in which a police officer or prosecutor makes a clear and explicit decision to not proceed with a case (p. 31). Evidently, there is far more potential to affect outcomes if the latter group of cases is isolated and



8. 9.





interventions are designed to address attrition through these processes. A certain proportion of reported cases will always be lost, but the proportion that is dropped may be significantly affected by institutional and personal attitudes, values, practices, and accountability for decision-making. Further research into the types of cases that are dropped and the reasons why they are dropped would be extremely valuable. However, it is beyond the scope of the present article to employ or analyze this distinction. Again, this is similar to the conviction rate for rape in England and Wales, which reached an all-time low of 5.6% in 2002 (Kelly et al., 2005). The information collected and analyzed in rape attrition studies generally relates to the features of the offense, the characteristics of the victim, and the relationship between the victim and the offender. Recorded offense or case characteristics may include: the relationship between the victim and the offender (for example, family member, intimate partner, acquaintance, stranger); the time and place of the offense; the length of time over which assaults took place and the recency of the complaint; and the presence or absence of forensic evidence, physical injury, witnesses, or other forms of evidence that may corroborate or falsify the complaint. Information recorded in relation to victim characteristics may include age, gender, physical or intellectual disability, indications of a psychiatric disability or mental health problem, ethnicity, and influence of drugs or alcohol at time of the offense. Information recorded in relation to offender characteristics may include age, gender, any previous allegations or charges for sexual offenses, otherwise known to police, and number of offenders (single or multiple). Both the SSCRSA (2006) study of police charging decisions and Lievores (2004a) study of prosecutorial decisions in rape cases collected additional information on offender characteristics, which is analyzed and discussed here. Because child victims were most likely to be assaulted by family members, the higher rates of charging in cases involving children meant that 20% of the cases in which charges were laid involved offenders who were family members (as distinct from present or former partners), although family members made up only 7.9% of offenders overall. This means that indigenous women were proportionally overrepresented in the study sample. The Australian Bureau of Statistics estimates that Aboriginal and Torres Strait Islander people made up 0.6% of the Victorian population in 2001 (ABS, 2004a). By contrast, the 49 cases involving victims with an intellectual disability were no less likely to result in charges being laid (18.8% compared with 15% overall) and were less likely to result in NFPA (31.3% compared with 46.4% overall). This indicates that evidence gathering may not be the main problem in relation to cases involving victims with a mental health issue or psychiatric disability and that police perceptions of credibility were an issue (SSCRSA, 2006, p. 34). Training plays a particularly significant role. The study notes that detectives in the Criminal Investigation Unit (CIU) were consistently more likely than members of the specially trained Sexual Offences and Child Abuse Unit (SOCAU) to express concerns about the case or the victim, or to express a view that the complaint was possibly false (SSCRSA, 2006, p. 29).


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14. Although the files were drawn from five separate Australian jurisdictions, the statistical analyses were conducted for the pooled sample. Lievore (2004a) notes that this method gave more weight to the Northern Territory cases than would be the case in a random sample. Otherwise, however, Lievore notes, there was no reason to suspect sampling bias in the files selected for inclusion in the study (p. 23). 15. This calculation takes into account the comparatively high number of Northern Territory files in the sample and the Territorys higher indigenous population: the indigenous population is estimated to have been 2.4% of the total Australian population and 28.8% of the Northern Territory population in June 2001 (ABS, 2004a). 16. Deviant sexual interests include enduring attractions to sexual acts that are illegal (e.g., sex with children, rape) or highly unusual (e.g., fetishism, autoerotic asphyxia), whereas antisocial orientation/lifestyle instability refers to antisocial traits such as impulsivity, substance abuse, unemployment, and a history of rule violation (Hanson & Morton-Bourgon, 2005, p. 1154). 17. A range of other variables showed little or no relation to either the sexual or general recidivism of sex offenders, including sexual attitudes, intimacy deficits, neglect or abuse during childhood, loneliness, and low self-esteem, and denial of sexual crime or lack of victim empathy (Hanson & Morton-Bourgon, 2005, p. 1157).

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Wendy Larcombe has taught and researched at the Melbourne Law School since January 2006. Her doctoral research was published by the Federation Press in 2005 as Compelling Engagements: Feminism, Rape Law and Romance Fiction. Her present research continues to focus on the regulation of gender and sexuality, with a particular interest in issues of responsibility and risk in rape law, and issues of autonomy and subjectivity in abortion law and womens health.