What it means when prosecutors decline to charge sexual assault

Hint: it is most likely not what you think it means

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Trevor Bauer
Trevor Bauer
Photo: Getty Images

I have a love/hate relationship with Olivia Benson and the ubiquitous Law & Order: Special Victims Unit (SVU to those of us who have it on the background at least 65 percent of the time). On one hand, it’s copaganda of the highest order, where police are nearly always the good guys, and one cop in particular, Olivia Benson, played by Mariska Hargitay, is the ultimate victims’ advocate. The SVU team will stop at nothing until justice has been meted out, whether that means a sex offender winds up in prison or that a victim simply gets to look her rapist in the eye and accuse him in public. There is almost always closure for victims in SVU, which is a far cry from how the system handles sexual assaults in real life. This is where, for disclosure’s sake, I tell you that I never reported my sexual assault.

But I do appreciate some of the education that show has done of the general public, taking down old tropes like “women only accuse rich and powerful men for money,” “we were both drunk so it’s not rape,” and “if she really didn’t want it, she would have fought harder.” For all its faults, the show does a good job, I think, of showing how a case gets to prosecution and, more importantly, why certain cases don’t get prosecuted, even if it’s fairly clear that a crime has been committed. In large part, it’s all still about what prejudices the jury brings to viewing the victim, which has led to some good discussions about why a victim not only has to lay her own pain bare for the whole world to see, but also has to be likable. Any woman who is viewed to have gotten herself raped due to bad choices or “looking like she was asking for it,” or “leading him on” is going to be a hard sell to the jury, no matter how many hard truths Olivia Benson can tell us over the course of an hour.

All of this brings me to the announcement yesterday that Dodgers pitcher Trevor Bauer will not be criminally charged for sexual assault or battery. Bauer was accused of violently sexually assaulting a 27-year old San Diego woman back in April. Those allegations prompted another woman to come forward and claim that Bauer had also assaulted her back in 2020 in Ohio. The allegations made by both women were disturbingly similar. Bauer, however, has always maintained his innocence.


But Olivia Benson and company can only do so much. Because Twitter is a toxic hellsite, it was immediately bombarded with misogynistic comments about women lying about sexual assault, women ruining men’s lives with false accusations (still waiting for an example of this one), and anonymous men commiserating about what hellacious jezebels women are in general. Whenever this happens, it takes me back to what a male friend told me once: “I have a lot of friends who love sleeping with women, but they don’t actually like women.”

We’ve been down this road enough times that we all know how it plays out. A famous man is accused of harming a woman. Then his lawyers swoop in and dig up some dirt on the woman. Or someone tweets something unflattering about her and the athlete’s fans take it up as gospel and amplify it. Or the victim simply gets cold feet and stops cooperating with the police. Or the athlete and the woman reach a private settlement (which, by the way, is not “blackmail” and is how our legal system is designed to work). Or she gets harassed to within an inch of her life and has to go radio silent for her own safety. Either way, when no prosecution happens, the fans declare the athlete innocent and move on as if nothing ever happened. Any mention of the allegations afterwards are met by stiff pushback and harassment, usually claiming that it was “proven” that the woman was “lying.”


So rather than scream at each other about Trevor Bauer’s guilt or innocence, let’s talk about what the decision not to prosecute is and is not. It is an acknowledgement by the prosecutor that the so-called “he said-she said” crimes are more difficult to prosecute than other crimes, largely because our society has been conditioned to believe that a woman’s word counts for less than a man’s. It is a realization by the prosecutor that the victim may not be “perfect” enough for a jury to believe, that there may be things she has said or done that will make her story less likable, especially if a defense attorney can take her words or actions out of context and make them seem nefarious. Victims can be angry or vengeful, and society, as a whole, doesn’t like angry, vengeful women. We like soft, sobbing women who need rescuing. Preferably a virgin, preferably who was grabbed in a dark alley. Preferably who was wearing long johns at the time and walking home from church. Anything less and jurors get judgy.

According to the Rape, Abuse, and Incent National Network (RAINN), only 310 rapes are reported per every 1,000. Of those 310, only 50 result in an arrest and only 28 will be prosecuted. That’s a .025 prosection rate, shameful lack of justice for rape victims, and one that has largely to do with the stigma surrounding sexual assault and the way in which we view the testimony of a woman against a man. And while false allegations are abhorrent and should be charged criminally, just based on numbers alone, it’s clear that unprosecuted rapes are a miuch bigger problem than false accusations. In fact, a 2016 study found that only 5.2 percent of rape claims were false, as compared to the 99.975 percent of rape victims who will never get their day in court.


Here’s what a decision not to prosecute is not: It’s not a declaration that the victim is lying, It is not a finding of innocence by a judge or jury. It’s also not a bar to bringing charges at a later date, should more evidence become available. Too often in this county, prosecutors are judged by their conviction rate, not their record of fomenting justice. Prosecutors don’t like to lose and they especially don’t like to lose high-profile cases. And while it’s unfair, the reality is that victims who accuse star athletes have to contend not only with a team of defense attorneys, but with player agents, publicists, advisors, fans, other players, the power of MLB or an athlete’s team. It’s daunting for victims and prosecutors alike.

And just because one prosecutor thinks a case is unwinnable, another may not. I’ve come back to this letter a former prosecutor, Roger Canaff, wrote to the District Attorney who refused to prosecute Ben Roethlisberger over and over again. In it, Canaff said:

“The news conference, where you laid out your reasons for not pursuing this case, to the extent that it accurately reflected your analysis, should stand as a training tool in how not to evaluate a sexual assault case … If a woman, because of shock, fear, mistreatment, intoxication, confusion, the weight of circumstances, the attacker’s celebrity and the psychological punch of being raped, can’t recite facts flawlessly within hours of the attack, she’s done for. The case can’t be proven.

I can’t say for certain whether you could have proven this case beyond a reasonable doubt and you can’t either. I can say for certain that the standard you invoked for whether charges should be brought is utterly false, in addition to being misleading and needlessly defeatist.”


It’s a serious allegation to say that a prosecutor is afraid of charging a celebrity, but the reality is that it eats up manpower and resources and can wind up as a public relations disaster. It’s a pain in the ass, and one that too many prosecutors are loath to take on without a guaranteed win.

Maybe one day, our society will have evolved enough that these cynical calculations aren’t necessary, that every victim gets his or her day in court, and that we view allegations of sexual assault as just as likely to be true as false. That’s fair to both sides and, ideally, how we would view every case against anyone. That’s an enormous leap from where we are now, but maybe with another 25 years of Olivia Benson et al, we’ll get there.