Is Denver Soft on Sex Crimes?

7News recently ran a fairly sensational story here about the case-filing decisions of the Denver District Attorney’s Office in cases of felony sexual assault.    The basic criticism was that the Denver DA, Mitch Morrissey, uses an unreasonably high standard when deciding whether to file a criminal case, and that is likely resulting in meritorious prosecutions going unfiled.

The author may or may not have been on to something, but the treatment of the subject was misguided.   Most importantly, the author’s premise was much ado about nothing: of course the Denver office uses a “trial” standard of beyond a reasonable doubt, when deciding whether to file cases. If the prosecutor didn’t, the jury still would at trial.

It makes no sense to push forward cases where there is not proof beyond reasonable doubt, in fact it is unethical. Innocent people can be forced into plea bargains when falsely charged with serious crimes that are sensational– sex crimes that sound so awful that a jury want to hold someone accountable, even if the evidence is somewhat short of “beyond a reasonable doubt”. The risk of being wrongly convicted at trial, even when small, is sometimes so serious that a completely innocent person must take a plea bargain that is offered. It is a terrible dilemma for an accused to be in, and one that criminal lawyers see often enough. This is just one reason why cases should not be filed lightly.

The author presents an apparent alternative of “reasonable likelihood of success”, a lower standard that would lead to more prosecutions in sex assault investigations.   Well, the question is, “success” at what?  If “success” means a guilty verdict at trial, then we’re back at “beyond a reasonable doubt”.  The two standards, in fact, work in tandem in most prosecutor’s offices.   Because not everybody agrees about what constitutes proof beyond a reasonable doubt, the “reasonable likelihood of success” makes it a somewhat more objective test, one that depends on professional estimates of the outcome of a trial.  But it is not an either/or.  In the end, there is only one standard: proof beyond a reasonable doubt.

Further, notwithstanding that sex crimes like rape are traumatic and awful experiences, it is not clearly desirable to file more sex assault cases.  Perhaps Denver rejects more cases because it investigates more of them than other jurisdictions, due to having encouraged more reporting through various outreach programs. Perhaps the other jurisdictions cited by 7News wind up dismissing many more sex assault cases in later stages of the case, or losing them at trial, at great cost to taxpayers and with added hardship both to real victims and to falsely accused defendants, depending on the case.

In fact, a criminal prosecutor being realistic about likelihood of success at trial (where the burden is always proof beyond a reasonable doubt) is a critical moment in the criminal justice process.  Contrary to the suggestion of the article, filing felony sex crime charges against a person is not an investigative device to see where things go, it is a gravely serious and somewhat irreversible act against the accused. To take such action lightly would be contrary to our system of justice.

I don’t know whether Denver files too many or too few sex assault cases.  But I know sex crimes can be very difficult to prove. Drugs and alcohol are often involved. An alleged victim may be honest but completely unable to corroborate her story.  An accused may have sincerely and completely misunderstood the situation.   A prosecutor who takes those difficulties seriously, and  who respects the gravity of filing criminal charges against a person who is presumed innocent, is doing his job. If 7News is on to something, they haven’t begun to explain what or why.