A Gap in Justice for Sexual Violence

TFC’s Jaime Gabrielli discusses the disparity between how common sexual violence is and how rarely offenders are held legally accountable within the criminal justice system.

The journey to justice is an uphill battle for victims of sexual assault. From the initial police interview to the final stages of a criminal trial, victims are forced into a system that struggles to understand the unique dynamics of sexual violence and resulting effects of trauma. As such, sexual assault remains one of the most misunderstood crimes within both the criminal justice system and society at large. It is also one of the most difficult crimes to investigate and prosecute. These crimes often occur in private, with no eyewitnesses or video recordings, and they may leave little or no physical evidence. In most cases, the perpetrator is someone the victim knows, such as a friend, current or former partner, or spouse. When there is no dispute about the identity of the accused, the case often comes down to one central question: Is the victim believable? As a result, a victim's perceived credibility can have a profound impact on both the investigation and the outcome of a criminal trial.

An Impossible Decision

Although sexual assault is alarmingly common, it remains one of the most underreported crimes. Only about one in three sexual assaults are reported to law enforcement. As advocates, we often work with survivors who are unsure whether to report. These conversations are never easy. Our role is not to pressure victims into making a particular choice but to make sure they understand their options, know what to expect in the process, and have the information and support they need to make the decision that is right for them. For many survivors, deciding to report means weighing the hope for justice against the risk of experiencing more trauma within the very system that is supposed to protect them and hold offenders accountable.

While survivors are considering if they should make a formal report, we often ask what they hope will happen if they do. The answers are usually the same. Most want to prevent the offender from hurting someone else, and they want the person who assaulted them to be held accountable. Unfortunately, those outcomes are far less common than many people realize.

Having supported many victims through the criminal justice process, we know there is no way to predict what will happen if they choose to speak with law enforcement. After a report is made, survivors have very little control over what happens next. Sexual assault investigations can take months or even years, and there is no guarantee that charges will be filed or that the case will end in a conviction. In fact, one of the most sobering realities of sexual violence is how many cases are lost as they move through the criminal justice system. Statistics compiled by RAINN, the nation’s largest anti-sexual violence organization, show that for every 1,000 sexual assaults, only about 50 lead to an arrest, around 28 result in a felony conviction, and only about 25 offenders are sentenced to prison. These numbers show the wide gap between how common sexual violence is, and how rarely offenders are held legally accountable.

We also talk with survivors about why they feel hesitant to report the assault. Many worry that they will not be believed, that they don’t have control over what happens next, that they will be blamed for the assault, or that they will have to face the offender in court. Others fear retaliation, public exposure, or the emotional pain of telling and retelling one of the most traumatic experiences of their lives to police officers, investigators, prosecutors, and sometimes a jury. Our advocates, who each accompany dozens of clients to court every year, can attest that their fears are well-founded.

False Notions About “Real” Victims

When victims decide to report, they must deal not only with the enduring trauma of the assault, but also the deeply rooted myths that can bias investigators, prosecutors, defense attorneys, jurors, and the public. Misinformation about the reality of sexual assault regularly influences how a victim's credibility is judged and how decisions are made throughout the legal process, which partly explains why so few sexual assault cases end in a criminal conviction. These common misconceptions suggest victims are somehow responsible for what happened, that perpetrators cannot control their sexual behavior, and that sexual assault only happens under certain circumstances. Many among us, including our peers and neighbors who make up jury pools, have confounded ideas about how "real" victims should think, act, or respond before, during, and after an assault. This is why attention is so easily diverted away from the offender's actions to the victim's behavior, which can compound the harm and trauma they’ve already experienced.

One of the most destructive misconceptions contributing to this justice gap is the pervasive belief that victims make up or later change allegations of sexual assault because they feel rejected, regret a sexual encounter, or want attention. Decades of research have found no evidence to support this belief. Even so, this myth continues to shape public opinion and influence decisions in the justice system.

Trauma impacts memory, emotions, and decision-making in ways that many people do not understand. Traumatic experiences affect brain function, stress responses, and memory processing, influencing how events are perceived, encoded, and later recalled. After an assault, victims may engage in seemingly counterintuitive behaviors that differ from common expectations, underscoring the importance of trauma-informed approaches within investigations and legal proceedings.

It is common for survivors of sexual violence to wait days, weeks, months, or even years before reporting the assault. They may continue communicating with the offender or stay in contact because they share children, work together, or belong to the same social circle. They may also have difficulty remembering events in a clear, chronological order. These are normal and well-documented responses to trauma, but within the criminal justice system they are easily spun by defense attorneys as signs of dishonesty, inconsistency, or implied consent.

A Courtroom Verdict Is a Legal Decision, Not a Moral One

“There's a world of difference between truth and facts. Facts can obscure the truth.” When I am supporting victims during a sexual assault trial, I am constantly reminded of these words from Maya Angelou. Defense attorneys are skilled at strategically shifting focus to the behavior, clothing, sexual history, and personality of the victim as way of taking the attention off the deliberate actions of the accused. When sexual assault cases go to court, victims are regularly regarded in ways aimed at undermining their experiences based on convenient biases rather than the truth of what happened to them.

Research shows that perpetrators target people they see as more vulnerable or less likely to be believed. They may single somebody out based on age, mental health, substance use, disability, social or economic disadvantage, or unequal power relationships. Inherent vulnerabilities should never be used to doubt an allegation or reduce its seriousness. Instead, sexual assault cases require a trauma-informed approach that avoids stereotypes and focuses on what happened. Improving juror understanding and providing clear guidance in court can help reduce bias and support fairer outcomes. Broader public education about how victims may respond to trauma is also important for improving justice system responses and protecting public safety.

Public education is a crucial component of our mission at TFC because justice is not possible when the public holds inaccurate beliefs about sexual violence. Misunderstandings about how sexual assault occurs, how victims respond, and what “counts” as evidence can directly influence investigations, charging decisions, and jury outcomes. For this reason, it is essential to ground our understanding in evidence-based knowledge rather than common myths or assumptions.

Whether the outcome is guilty, or the case is never charged at all should not be viewed as proof that an assault did not occur. As Chief Criminal Deputy County Attorney Mary Barry points out in our 2026 partner spotlight, “Every criminal defendant, no matter the type of crime or the strength of the evidence, has a fundamental right to a jury trial in Montana.” Moreover, the criminal justice system is built on the presumption of innocence until proven guilty beyond a reasonable doubt, which for many jurors, can feel like an impossible standard to meet. Criminal justice outcomes reflect the legal limits of what can be proven in court, and are not a definitive statement about the truth of what happened. Understanding this distinction is essential to having informed and fair conversations about sexual violence and the criminal justice system.

Protecting and Supporting Survivors

As advocates, we know all too well that the criminal justice system was not designed with victims’ well-being as a central focus. For survivors, taking part in the prosecution can feel almost as painful and harmful as the original crime. A client once told me that after testifying at her rapist’s trial, she felt as if her humanity had been erased. Sadly, her experience is more of the norm than the exception—even when the outcome is a guilty verdict.

From the first report to the final judgment and beyond, survivors pay a heavy personal cost for coming forward. Sexual assault is a profound violation, and the justice system should not add to that harm. In many cases, cross-examination becomes less about testing evidence and more about attacking a survivor’s character. While every accused person has the right to a strong defense and the presumption of innocence, survivors are often forced to repeatedly defend reality. Defense attorneys are obligated to represent their clients, but their work should not rely on degrading or humiliating tactics that mirror the abuse survivors have already endured.

Reporting a sexual assault is a significant act of courage. Victims deserve fair treatment and the opportunity to share their stories without shame or fear. They may go through multiple interviews, invasive medical examinations, and years of legal proceedings, only to see no one held accountable in the end. This gap in justice harms not only individual survivors, but also allows offenders to avoid consequences, discourages others from reporting, and undermines public trust in the criminal justice system. That’s not to say that it’s not worth it to bring sexual assault cases to trial.

The challenges of getting a conviction are well-known to prosecutors, advocates, and victims, but there’s also tremendous power in hearing a survivor’s testimony. Jurors may not always return the verdict that we’d like to see, but that speaks to the limits of the criminal justice system. As advocates and individuals who stand with survivors, we don’t have control over those outcomes. The justice gap is arguably inherent in the system we have, but something that is within our power and control is to not make it wider. The system might not be able to deliver the accountability we’d like, but as individuals, we can minimize the harm it can do by educating ourselves and others about the realities of sexual assault, what victims go through, and the limits of the criminal justice process.

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If you or someone you know is experiencing sexual violence, The Friendship Center can help. Check out our services page to learn about our free, confidential, 24/7 services and visit our sexual assault resource page to explore resources for victims and advocates.