Partner Spotlight: A Prosecutor’s Perspective on Sexual Assault and the Criminal Justice Process

Lewis and Clark County’s Chief Criminal Deputy County Attorney Mary Barry talks about the criminal justice process, the challenges of successfully trying sexual assault cases, and what led her to become a prosecutor.

Something The Friendship Center is always clear about as a victim advocacy program is that rape and sexual assault are violent crimes. That may sound self-evident, but the prevalence of these crimes is part of why they’re so normalized and why accountability can feel so elusive. Over half of women and almost 1 in 3 men in the U.S. have experienced sexual violence involving physical contact during their lifetimes. At the same time, RAINN, the nation’s largest anti-sexual violence organization, reports that 98% of sexual assault perpetrators will walk free. There are many reasons for this accountability gap, with low reporting rates being one of the most obvious: Only about 31% of victims will ever report their sexual assaults to law enforcement. Without a law enforcement report, a case can’t be prosecuted. Even cases that are referred to prosecutors might not be resolved inside a court room, and many don’t result in a conviction.

Aspects of our work that overlap with the criminal justice system can be mystifying to victims and the public alike, and outcomes can be baffling to even some of our advocates who accompany dozens of clients to court in an average year. What happens if a victim reports an assault and it does get referred to prosecution? What if it goes to a jury trial, and what kinds of cases are most likely to result in a conviction? The fact is there are A LOT of nuances in the answers to these questions, and we are not experts on the criminal justice system…which is why we sought out a prosecutor’s perspective for this month’s partner spotlight.

Mary Barry is currently Chief Criminal Deputy County Attorney for Lewis and Clark County. In other words, Mary is the senior prosecutor managing the criminal division of the County Attorney’s Office, and much of her work is focused on cases involving violent crimes like intimate partner violence, sexual assault, and stalking that affect many of our clients. In the following Q&A, Mary was kind enough to shed some light on the criminal justice process, share what inspired her to become a prosecutor, and address why sexual assault cases are among the hardest cases to successfully try.

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Very 101-level to get us started: For folks who might not understand the distinction between the civil legal and criminal justice systems, how do you explain the difference?

MB: This is a tougher question to answer than one might think. While it is generally believed there only two types of cases filed in our district court—civil and criminal—often the case type does not adequately reflect what the case is about. For example, when juveniles are prosecuted by the government for committing crimes, one might logically believe these cases are criminal. Yet, juvenile criminal cases are actually considered civil in nature. There are instances where the government requests that a juvenile be treated as an adult. If the request is granted, the case becomes criminal, not civil.

Another example concerns victims of crime who seek Orders of Protection. Order of Protection (OOP) proceedings are considered civil in nature, even though those proceedings typically stem from a crime being committed. If a person violates the OOP, the government can file a criminal case against that person.

It is worth noting there are other types of cases that do not neatly fall into criminal or civil law, such as bankruptcy, probate and estate, and administrative law.

Generally speaking, when the government seeks to hold a person accountable for committing a crime, the case is a criminal one and everything else is civil or some specialized area of law.

You're currently Chief Criminal Deputy County Attorney here in Lewis and Clark County, but you've worked in other jurisdictions. Has your entire legal career been in criminal prosecution? Of all the areas of law you could specialize in, what drew you into the work you do now?

MB: I started out as an accountant and for a few years worked as an auditor for a large international accounting firm. Six months into my work as an auditor, I went backpacking in Alaska. I was about to fill out a job application to be a guide when a wise friend suggested maybe being an accountant was not the right fit for me if I was thinking about starting a nomadic lifestyle far from home. So, I went back home and for the first time really thought about what I wanted to be when I grew up. I shadowed a victim rights attorney, and the light bulb went off for me. I knew right then what I wanted to be.

I believed, and still do believe, that if people feel secure in their home life, they have the best chance at a fulfilling life. I decided to become a prosecutor. I have always been drawn to prosecuting crimes against children and crimes of interpersonal violence. My hope is that through my work as a prosecutor I can help folks find safety and security, break the cycles of violence, and give people hope.

During my third year of law school, I worked for Missoula County prosecuting misdemeanor cases. After law school I clerked for a year at the Montana Supreme Court and then spent 18 months with the Office of Public Defender, working in Kalispell and Billings. In 2011, I switched back to prosecution and have been prosecuting ever since.

Crimes can obviously happen without a perpetrator ever being reported, charged, or convicted. No matter what the crime is, what has generally happened in the reporting and investigation process before a case gets referred to you? And from there, what determines whether a case rises to the level of a criminal trial?

MB: A case does not come to our office without a report from law enforcement. Sometimes cases are sent over to our office to review for charging. Sometimes law enforcement makes an arrest, and our office receives and reviews case information after the arrest. In either scenario, our office reviews a case and determines the appropriate next steps.

There are a considerable number of factors that go into the decision to charge a case. Prosecutors evaluate all the evidence and consider whether a case can be proven or not. In many instances, our office will meet with the victim/s in an effort to understand their input. We also review a suspect’s criminal history. These steps I just listed are not exhaustive, but I think it gives you an understanding of how cases come into our office and some of the things we consider when we receive a case to determine next steps.

The biggest determining factor for whether a case goes to trial is the defendant. 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. Only the defendant can waive that right. Although that consideration may sound intimidating to a survivor of crime, the good news is the vast majority of criminal cases do not go to a jury trial as most cases resolve prior to trial.

Where our work and yours overlaps is in the context of domestic violence, sexual assault, rape, or stalking cases. Is there anything that sets these crimes apart from other violent crimes? When you think about the types of cases referred to your office, how rare are common is it to see these crimes?

MB: I consider homicide, assault, sexual assault, stalking, and the like all violent crimes. Most violent crimes are perpetrated by someone the victim knows. Whereas “stranger on stranger” violent crime is more rare. Thus, the bulk of our violent crimes overlap with the kind of work that is done at The Friendship Center. I am guessing here, but I think violent crime makes up a quarter of our active caseloads.

We know from our work with clients and even with the public that many people don't realize that it can be rare to see a conviction for somebody accused of sexual assault or rape. The presumption of innocence until a defendant is proven guilty can even make a criminal trial frustrating to sit through for advocates who know how low false reporting rates are, and how common it is for offenders to walk free of a criminal conviction. How often have you seen sexual assault or rape cases that go to trial result in a conviction? Does a guilty verdict for sexual assault feel like a unicorn to prosecutors?

MB: When I started trying sex cases back in 2012, a senior attorney told me the chance of conviction in a sexual assault case was a coin flip—no matter how strong the case. Having worked through these cases, I cannot give the same advice to new attorneys. You never know who is going to be in your jury pool and what experience they bring that will affect how they view the evidence. There is no doubt, sexual assault cases are the hardest cases to successfully try, but they are worth the fight. My experience has been that juries are oftentimes more inclined to believe younger children. On the flipside, juries are oftentimes acquitting in cases involving teenagers (regardless of gender) and adult women.

Our office’s conviction rate on sexual offense-related cases is high. Specifically for cases that go to trial (and do not resolve with a plea agreement), in 2025 our office completed seven felony sexual offense-related jury trials. From those seven jury trials, we obtained five convictions on the felony offenses; in one trial the jury convicted the defendant on a lesser included offense of misdemeanor sexual assault; and in one trial the jury found the defendant not guilty. Four of the seven jury trials involved abuse of a child where our office obtained a conviction in those four jury trials. Guilty verdicts were harder to obtain in cases involving adult survivors. In sum, a conviction does not seem like a unicorn, but there are no guarantees that a conviction will be successful after a jury trial.

Another thing that the general public may not realize is that, while procedural, there can be an element of performance as well in criminal trials. What is one of the most unusual or entertaining things you’ve seen in a courtroom?

MB: I have seen some crazy things. I recall hiding my face once while a rapist used his attorney’s legal assistant to act out—in front of the jury—how he had sexual intercourse with the victim, claiming it was consensual. He was convicted.

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The Friendship Center is just one of many organizations in our community working to ensure everyone is supported with care and dignity. We regularly highlight some of the fantastic people and organizations that we partner and collaborate with for our blog. Sign up for our email newsletter to make sure you don't miss a partner spotlight and learn more about some of the services available in our community.

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.