Why Alleged Victims of Sexual Assault Are Sometimes Unfairly Forced To Prosecute Their Cases

Why Alleged Victims of Sexual Assault Are Sometimes Unfairly Forced To Prosecute Their Cases?

By H. Michael Steinberg, A Colorado Criminal Defense Lawyer – Practicing Colorado Criminal Law from both sides for over 40 years.

Introduction:

A lot of people will see a headline like “Victim Refuses to Testify, Prosecutors Move Forward Anyway,” and their first reaction is pretty much. “Wait. How is that allowed?”

And then the next reaction is often anger. Sometimes at the prosecutor’s. Sometimes at the alleged victim. Sometimes for the entire system.

Because it feels easy on a human level.

Why are we dragging them back into it if the person harmed doesn’t want to go through it?

The uncomfortable answer is that the system was not built around personal closure. It was built around the state deciding what public harm looks like, and then acting on it. Sometimes that lines up with what an alleged victim wants.

Sometimes it very much does not.

This is one of those topics where the logic of the law and the reality of trauma just slam into each other. Over and over.

So let’s walk through why this happens, what “forced to prosecute” actually means, and what’s really going on behind the scenes. Not in a courtroom drama way. In the boring, procedural, sometimes brutal way it plays out in real life.

First, the biggest thing people miss: the case is not “hers” or “his”

In criminal law, the case is usually titled something like:

State of X v. John Doe

The People v. John Doe

That is not a stylistic choice. It is the whole point.

In most jurisdictions, sexual assault is a crime against the public order, not a private dispute like a contract disagreement. The government is saying: this conduct harms society, we have an interest in punishment and deterrence, and we control the prosecution.

So even if the alleged victim is the key witness, even if they are the person most affected, they are not technically the “party” bringing the case. The prosecutor represents the public, not the individual. Which feels cold, because it is cold. But it explains why the state can continue even when the alleged victim says please stop.

“Forced to prosecute” often really means “the state refuses to drop it”

Let’s be precise for a second, because words matter here.

In most places, the government cannot literally force an alleged victim to “press charges” in the way people say on TV. It is not a vending machine. The victim does not insert a coin and select prosecution.

What happens instead is this:

Police investigate and write reports.
Prosecutors then review the evidence.
Based on the evidence, prosecutors decide whether to file charges.
Once filed, prosecutors decide whether to dismiss, plea bargain, or go to trial.

An alleged victim can ask them not to do it. They can beg. But they cannot veto the DA’s decision.

So the “force” is about the loss of control the alleged victim feels. It’s a feeling of, I said no, and the system did it anyway.

For someone who has already experienced a violation of control, it can feel like a second assault.

Prosecutors have legal and political incentives to keep a case going

This is the part that sounds cynical, but it matters.

A prosecutor is elected or appointed. Their office tracks their “stats” such as conviction rates, dismissal rates, number of filings, all to demonstrate a “tough on crime” reputation. Some prosecutors genuinely believe in the mission. Some are careerists. Most are a blend, depending on the day.

Now add sexual assault to that mix. Sexual assault cases are publicly sensitive, and prosecutors get criticized from two directions:

If they drop cases, they are accused of not protecting victims.
If they prosecute aggressively, they are accused of re-traumatizing victims and overreach.

But the first criticism often has sharper teeth politically. No one wants to be the office accused of letting alleged rapists off too easy.

So once a case is in motion, the default momentum is always forward. Even when the alleged victim wants to get off the train.

Witness tampering, coercion, and “recantation dynamics”

Here’s the thing: prosecutors understand more than any other population that alleged victims change their story, or they change their mind. Sometimes, it is because they lied. Yes, that happens.

To be fair in this piece, it must be stated that often in sexual assault and domestic violence contexts, a change happens because of pressure.

threats from the accused.
pressure from family or community.
financial dependence.
“Think about what you’re doing to him.”
guilt, shame, religious pressure,
fear of retaliation.
fear of being dragged so publicly.
just exhaustion.

So when an alleged victim says, “I don’t want to prosecute,” prosecutors often do not interpret that as a free choice. They interpret it as possibly coerced.

And if the system’s job is to reduce future harm, the prosecutor’s office will say: we cannot let intimidation become the off switch.

That is one of the core justifications for going forward without the victim’s cooperation. Sometimes it is “protective.” Sometimes it is purely paternalistic.

Mandatory arrest and “no drop” policies changed the landscape

In many jurisdictions in Colorado, especially since I started in the 1980s and 1990s, there has been a push toward mandatory arrest policies in domestic violence cases and broader “evidence-based prosecution” approaches.

Some offices adopted “no drop” or “mandatory prosecution” policies for certain categories of cases. The idea was: if you always drop a case when a victim recants, offenders learn they can pressure victims to recant. So the state commits to continuing that case when there is enough evidence.

Even when the alleged victim says no, I don’t want that.

Not every office uses these policies in the same way, and some have “softened” them. But the cultural impact remains: prosecutors feel responsible for continuing to prosecute because they believe that dropping cases perpetuates the “cycle of coercion.”

Sexual assault cases are not identical to domestic violence cases, but the logic is similar. Especially where there is a relationship between the accused and the accuser, which is common.

“We can prove it without you”

People assume a sexual assault case always requires the victim to take the stand. Often it does. But not always.

Prosecutors might have other evidence, like:

admissions by the accused (texts, recorded calls, partial confessions)
surveillance video
witness testimony about the victim’s condition right after the incident
medical records or forensic exams
physical evidence, DNA
digital evidence, location data
prior consistent statements, depending on the rules of evidence
911 recordings, body cam footage, interview recordings

If a prosecutor thinks they can meet the burden of proof, they might continue even if the alleged victim does not want it. And sometimes they genuinely can.

This is also why some alleged victims feel blindsided. They think that if I stop cooperating, it stops. Then they learn it doesn’t. Because the state has built a case that is bigger than one person.

Subpoenas are the lever that makes “forced” feel literal

Even if you cannot force someone to “press charges,” you can subpoena them as a witness.

A subpoena is a court order to appear. If the alleged victim ignores it, she or he can be held in contempt. In extreme situations, people can be detained to ensure their appearance. It is rare, but it happens.

So yes, the system can effectively compel participation.

And here’s where it gets really messy. Prosecutors will often say, ” We do not want to traumatize you; we want to support you. and then the same office will seek a material witness warrant if you do not show up. The tone flips fast when a trial date is on the calendar.

This is one of those moments where the criminal legal system shows its true colors. It is not therapy. It is not empowerment. It is coercive by design.

The state thinks it is preventing future harm

Prosecutors and judges tend to frame this in terms of public safety. And sometimes it is.

If the accused is a serial offender or there is a credible risk to others, the argument for going forward is stronger. The state will say: “Even if this individual wants to drop it, we have a duty to protect the next person.”

This is also why you will see cases continue when the alleged victim and accused reconcile, or marry, or move away, or request dismissal. The State does not want a private settlement to override public enforcement.

But, and this is important, the system often assumes “future harm” in a broad way. It may be right. It may be wrong. Either way, the alleged victim becomes part of a public policy project. That is the tradeoff the system makes.

Sometimes, the alleged victim does not want to prosecute for very rational reasons

This is the part that gets flattened in public debate. People hear “victim refused” and assume it means the victim is lying or confused.

No. Sometimes they are making a clear, rational decision based on what the process will do to them.

They might be thinking:

I cannot handle cross-examination.
I do not want my sexual history dragged into open court, even with Colorado’s rape shield laws.
I do not want my family to know details.
I cannot miss work for court dates that keep getting continued.
I do not want to be labeled forever by this.
I am scared of retaliation.
I want counseling, not a trial.
I want to move on.
I do not trust the police.
I do not trust that the system will treat me like a human being.

If you have ever watched how slowly, how impersonally, and how aggressively criminal cases move, you can see why someone would want out.

Even people who desperately want accountability can reach a point where they just want their life back.

The system’s concept of “justice” is narrower than people think

Criminal prosecution is designed around a few outcomes:

conviction and punishment
acquittal
dismissal
plea deal
probation, registration, incarceration

Those are the tools. That’s the only menu.

But what many alleged victims want is something else entirely. They might want:

acknowledgment
apology
prevention
treatment
safety planning
financial support
a clear boundary
a sense of control
the ability not to be publicly dissected

The criminal system is not good at those things. It can sometimes deliver one slice of them, sort of, but it is not built for it. So an alleged victim’s “I don’t want this” is often really “I don’t want this version of justice.”

The system does not have many alternatives ready to offer.

Plea bargaining makes it worse, in a strange way

Most criminal cases do not go to trial. They end in plea deals.

So an alleged victim might think: If I go along with this, maybe there will be a trial where I can tell my story.

Then what happens is months of delays, then a plea offer, then a quick hearing where the accused says a few words, maybe, and the case ends.

Sometimes the alleged victim is relieved. Sometimes they feel robbed. Like they endured all the buildup for a paperwork ending.

Prosecutors also use the possibility of trial as leverage to get pleas. That means the alleged victim can be kept “on call” for a trial that never comes.

And if they try to step away, the state may push harder because the plea leverage depends on the credibility of going to trial.

There’s also liability, policy, and institutional fear

Prosecutors live in a world of hindsight blame.

If they drop a sexual assault case and the accused later harms someone else, people will ask: why did you drop it.

Even if the alleged victim asked them to. Even if the evidence was shaky. Even if the case was likely to be lost at trial.

That institutional fear encourages continuing.

Some offices have internal rules. Supervisors review dismissals. Some require written justification. Some have victim advocates in office, but the final decision is still the prosecutor’s.

Prosecutors, being human, choose the path that looks defensible later.

Continuing the case can feel safer for them, bureaucratically.

The result: alleged victims get treated like evidence, not people

This is the central tragedy of it.

The system says it cares about victims. It does, in certain ways. But structurally, it treats them as:

a witness to be scheduled.
a statement to be introduced.
a credibility problem to be managed.
a compliance issue.

So when an alleged victim says, “I don’t want to do this,” the system often hears, “My evidence is weakening.”

And then it applies pressure. Calls. Meetings. Subpoenas. Sometimes threats of contempt and arrest. Sometimes guilt, wrapped in soft language.

All of this can happen even when the prosecutor believes they are doing the right thing.

Are there any alternatives?

Sometimes. Not always. And it varies wildly by jurisdiction.

A few options that exist in some places:

Declining to prosecute when evidence is insufficient, even if politically uncomfortable.
Trauma informed prosecution practices, meaning fewer continuances, better witness prep, less adversarial treatment, realistic expectations.
Restorative justice programs, in limited contexts, are usually not for high-risk offenders and typically only if the survivor wants it. These are controversial and can be mishandled, but when done carefully, some survivors prefer them.
Civil suits or protective orders, which are still difficult but operate differently from criminal prosecution.
Victim rights statutes, which sometimes give victims a right to be heard about dismissal and plea decisions. But “right to be heard” is not “right to decide.”

The hard truth is the mainstream system still has one main gear: prosecute or don’t. And once it chooses to prosecute, it tends to keep going unless something breaks the case.

So why does it keep happening?

Because the criminal system is designed to prioritize public enforcement, not private healing.
Because prosecutors fear coercion and repeat offending, and sometimes they are right to fear it.
Because the state believes it has a duty to act even when individuals do not want it.
Because institutions protect themselves.

And because, on paper, compelling a witness is just a procedure. Not a moral crisis. But for the person living it, it can feel like being dragged through the worst day of your life, again, on a schedule you do not control.

Where I land on this.

I get why “no drop” thinking exists. I do. There are real cases where dropping charges would basically reward intimidation. There are also real cases where a survivor is safest if the state takes the burden and says, ” You don’t have to negotiate with your abuser; we will handle it.

But the other side is also real.

Forcing participation can shatter trust in the system. It can discourage reporting in the future. It can take someone who came forward seeking help and teach them, very clearly, that their autonomy is still negotiable.

If the justice system wants survivors to report, if it wants cooperation, if it wants truth, it has to treat people like people. Not just as the means to a conviction.

And yes, sometimes that means letting a case go when the alleged victim says no, even if the state technically can keep pushing.

Not because the crime is not serious.

Because the person is.

FAQs (Frequently Asked Questions)

Why can prosecutors continue a sexual assault case even if the alleged victim refuses to testify?

In criminal law, cases like sexual assault are considered crimes against the public order, not just private disputes. The prosecutor represents the state or public interest, not the individual victim. Therefore, even if the alleged victim does not want to proceed, the state can continue prosecution because it aims to address harm to society and enforce punishment and deterrence.

What does ‘forced to prosecute’ really mean in sexual assault cases?

‘Forced to prosecute’ often means that while an alleged victim cannot be literally forced to press charges, once charges are filed, prosecutors may choose to continue with prosecution despite the victim’s wishes. This reflects a loss of control for the victim rather than literal coercion; prosecutors decide whether to dismiss or pursue charges based on evidence and public interest.

What incentives do prosecutors have to keep prosecuting sexual assault cases even without victim cooperation?

Prosecutors face legal and political pressures, including maintaining conviction rates, office reputation, and being seen as ‘tough on crime.’ They risk criticism both for dropping cases (seen as failing victims) and for aggressive prosecution (seen as re-traumatizing victims). Politically, accusations of letting offenders go free often carry more weight, creating momentum to continue prosecution.

Why might prosecutors doubt an alleged victim’s decision not to prosecute?

Prosecutors are aware that victims may recant or refuse cooperation due to external pressures such as threats from the accused, family or community pressure, financial dependence, fear of retaliation, shame, or exhaustion. Because of these dynamics, prosecutors may interpret a refusal as coerced or influenced rather than a free choice and continue prosecution to prevent intimidation from shutting down justice.

What are ‘mandatory arrest’ and ‘no drop’ policies in relation to sexual assault cases?

‘Mandatory arrest’ policies require police to arrest suspects in certain cases, such as domestic violence, automatically. ‘No drop’ or ‘mandatory prosecution’ policies mean prosecutors commit to pursuing charges when sufficient evidence exists, regardless of the victim’s input. These policies aim to prevent offenders from pressuring victims into recanting by ensuring cases proceed even without victim cooperation.

The legal system focuses on protecting public interest by prosecuting crimes against society, which can override an individual’s desire for closure or peace. For victims who have experienced trauma and loss of control during the assault, being compelled into court proceedings against their will can feel like a second violation. This creates ongoing tension between legal imperatives and the realities of trauma recovery.

Balancing these competing interests requires sensitive approaches, such as trauma-informed prosecution models and increased victim support, to minimize harm while still holding offenders accountable and ensuring justice is served.

Ultimately, fostering collaboration between legal professionals and mental health experts can help create processes that respect victims’ autonomy, promote healing, and strengthen trust in the justice system.

By integrating these strategies, the legal system can better address the complex needs of trauma survivors, leading to more equitable outcomes and a more compassionate approach to justice.

Summary And Conclusion – Why Alleged Victims of Sexual Assault Are Sometimes Unfairly Forced To Prosecute Their Cases?

As our society continues to evolve its understanding of trauma, ongoing training and policy reform will be essential to ensure that justice systems remain responsive, fair, and supportive for all individuals affected by crime.

Continued research and collaboration between legal professionals, mental health experts, and community organizations will further enhance the system’s capacity to serve victims while upholding the principles of justice and due process for everyone involved.

By fostering open dialogue and embracing innovative practices, stakeholders can help build a justice system that not only addresses harm but also promotes healing and long-term community well-being.

Ultimately, a balanced approach ensures that both accountability and compassion remain at the forefront of justice, paving the way for safer, more resilient communities where every voice is heard and valued.

The reader is alerted to the fact that Colorado criminal law, like criminal law in every state and at the Federal level, changes constantly. The article appearing above was accurate when it was drafted, but it cannot account for changes occurring after it was uploaded.

ABOUT THE AUTHOR: H. Michael Steinberg – Email The Author at: hmsteinberg@hotmail.com

A Denver Colorado Criminal Defense Lawyer – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – please call 720-220-2277.

“A good criminal defense lawyer is someone who devotes themselves to their client’s case from beginning to end, always realizing that this case is the most important thing in that client’s life.”

Putting more than 40 years of Colorado criminal defense experience to work for you.

You should be careful to make a responsible choice when selecting a Colorado criminal defense lawyer. We encourage you to “vet” our firm. Over the last 40 years – by focusing ONLY on Colorado criminal law – H. Michael has had the necessary time to commit to the task of constantly updating himself on nearly every area of criminal law, to include Colorado criminal law and procedure and trial and courtroom practice.

H. Michael works hard to get his clients the best possible results in and out of the courtroom. He has written, and continues to write, extensively on Colorado criminal law and he hopes this article helps you in some small way.