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103 Minn. L. Rev. 844, *896

sexual assault reports are ineffective. Police clearance-by-arrest rates are low. 174 Detailed studies of how police departments
handle reported sexual assault cases find "substantial attrition," [*897] typically at the point when police decide whether to
make an arrest. 175 In the Los Angeles Police Department, only one report in nine was cleared by arrest; one in ten resulted in
prosecution. 176 One hurdle lies in forensic evidence development: law enforcement agencies nationwide have suffered long
backlogs in testing rape evidence kits, 177 although federal funding has recently helped reduce that problem. 178

Notoriously, things used to be much worse. Under the common law definition, rape convictions required proof that the offender
used force to overcome the victim's "utmost resistance." 179 Evidence of women's - and only women's - prior sexual conduct or
reputation for "unchastity" was a permissible basis on which to infer consent. 180 The law excluded rape of one's spouse from
[*898] the offense definition. 181 Prosecutors and police were openly skeptical of rape accusations and reluctant to
investigate. 182

Yet much of this legal infrastructure intended to restrict rape law enforcement has been abolished. Rape offenses have been
revised to eliminate resistance requirements, and many states also removed the requirement to prove use of force. 183 Evidence
rules are now more favorable to sexual assault complainants: rape shield laws in all jurisdictions prohibit use of a complainant's
past sexual behavior as character evidence or a basis on which to infer consent, 184 while evidence rules in federal courts and
nineteen states permit evidence of the defendant's past sexual offenses to show propensity to commit sexual assaults. 185 Some
police departments have officers specially trained in sexual assault investigations, and prosecutors' offices (as required by
statute in some states) have specially trained units dedicated to sexual assault prosecutions. 186 Hospitals and [*899] social
service agencies likewise now have staff trained in forensic interviewing and evidence-gathering in the course of aiding assault
victims. 187

that the "prosecutor ... shall confer with the victim in the case before pretrial diversion is granted ... [or] before amending or dismissing a
charge").

121 No rights of administrative review are specified in the state victims' rights laws cited supra note 120.

122 Five states place all their prosecutors within a single state agency, which at least potentially makes possible hierarchical oversight. In
New Jersey, Connecticut, Rhode Island, Delaware, and Alaska, local prosecutors are appointed by, and under the supervision of, the state
attorney general. See Steven W. Perry, Bureau of Justice Statistics, U.S. Dep't of Justice, Prosecutors in State Courts, 2005, at 2 (2006),
https://www.bjs.gov/content/pub/pdf/psc05.pdf (noting Alaska, Connecticut, and New Jersey do not elect prosecutors; Delaware and Rhode
Island elect attorneys general who appoint all prosecutors; all other states elect prosecutors at the local level). Id. at 11. For an example of a
state attorney general's limited authority over locally elected prosecutors, see, for example, Va. Code § 2.2-511 (2018).

123 Equal protection and due process doctrines nominally empower courts to review charging decisions motivated by racial bias or retaliation
for exercising fundamental rights, and inquiry into selective charging implicitly requires examining biased declinations as well. But these
doctrines are wholly deferential to prosecutorial discretion. See United States v. Armstrong, 517 U.S. 456, 469 (1996) (holding that equal
protection doctrine bars racially biased charging); Wayte v. United States, 470 U.S. 598, 607-08 (1985) (holding that due process bars
charging in retaliation for exercising fundamental rights); see also McCleskey v. Kemp, 481 U.S. 279, 312-314 (1987) (holding that statistical
evidence of bias in death penalty administration insufficient to prove constitutional violation without proving purposeful discrimination in
defendant's case). For a classic account, see Kenneth Culp Davis, Discretionary Justice: A Preliminary Inquiry 188, 207-08 (1969) ("The
affirmative power to prosecute is enormous, but the negative power to withhold prosecution may be even greater, because it is less protected
against abuse... . The plain fact is that nine-tenths of local prosecutors' decisions are supervised or reviewed by no one.").

DAVID SCHOEN

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