Gender, Victimisation and Prosecutorial Discretion in the Attrition of Sexual Offences

Abstract

This study is the first systematic historical examination ofabandonment of sexual offence cases in common lawjurisdictions. Examining the records of hundreds ofdiscontinued prosecutions from the nineteenth andtwentieth centuries reveals patterns in thesediscontinuations. At the macro level, abandonment insexual offence cases differed from that for other violentcrime, with discontinuation related to case characteristicssuch as the age and sex of the complainant; young womenwere the most affected by discontinuations. At theindividual case level, focusing primarily on issuing of nolleprosequi shows that the reasons prosecutors gave forabandonment most often referred to a lack of evidence.Although the theoretical concept of discontinuing aprosecution was based in discretionary, individualiseddecision making, in practice it appears that decisions toprosecute had structural bases in gendered and legalbiases that were often conflated under the umbrella ofcomplainant 'credibility'. These findings are similar tothose in contemporary studies of attrition andprosecutorial discretion, indicating the longevity of theseissues in the prosecution of sexual offences. Theyadditionally highlight a new dimension, in showing theprevalence of judicial direction and intervention inprosecutors' decisions to issue a nolle prosequi