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Page 27 of 42 103 Minn. L. Rev. 844, *896 sexual assault reports are ineffective. Police clearance-by-arrest rates are low. !’4 Detailed studies of how police departments handle reported sexual assault cases find "substantial attrition," [*897] typically at the point when police decide whether to make an arrest. !7° In the Los Angeles Police Department, only one report in nine was cleared by arrest; one in ten resulted in prosecution. !7° One hurdle lies in forensic evidence development: law enforcement agencies nationwide have suffered long 177 178 backlogs in testing rape evidence kits, although federal funding has recently helped reduce that problem. Notoriously, things used to be much worse. Under the common law definition, rape convictions required proof that the offender used force to overcome the victim's "utmost resistance." !7? Evidence of women's - and only women's - prior sexual conduct or reputation for "unchastity" was a permissible basis on which to infer consent. '8° The law excluded rape of one's spouse from [#898] the offense definition. '°! Prosecutors and police were openly skeptical of rape accusations and reluctant to investigate. 18? Yet much of this legal infrastructure intended to restrict rape law enforcement has been abolished. Rape offenses have been revised to eliminate resistance requirements, and many states also removed the requirement to prove use of force. '8? Evidence rules are now more favorable to sexual assault complammants: rape shield laws in all jurisdictions prohibit use of a complainant's 184 hile evidence rules in federal courts and past sexual behavior as character evidence or a basis on which to infer consent, nineteen states permit evidence of the defendant's past sexual offenses to show propensity to commit sexual assaults. !85 Some police departments have officers specially trained in sexual assault investigations, and prosecutors’ offices (as required by statute in some states) have specially trained units dedicated to sexual assault prosecutions. !° Hospitals and [*899] social service agencies likewise now have staff trained in forensic interviewing and evidence-gathering in the course of aiding assault victims. 187 that the "prosecutor ... shall confer with the victim in the case before pretrial diversion is granted ... [or] before amending or dismissing a charge"). 21 No rights of administrative review are specified in the state victims' rights laws cited supra note 120. 122 Five states place all their prosecutors within a single state agency, which at least potentially makes possible hierarchical oversight. In New Jersey, Connecticut, Rhode Island, Delaware, and Alaska, local prosecutors are appointed by, and under the supervision of, the state attorney general. See Steven W. Perry, Bureau of Justice Statistics, U.S. Dep't of Justice, Prosecutors in State Courts, 2005, at 2 (2006), https://www.bjs.gov/content/pub/pd{/psc05.pdf (noting Alaska, Connecticut, and New Jersey do not elect prosecutors; Delaware and Rhode Island elect attorneys general who appoint all prosecutors; all other states elect prosecutors at the local level). Id. at 11. For an example of a state attorney general's limited authority over locally elected prosecutors, see, for example,Va. Code § 2.2-5/] (2018). 223 Equal protection and due process doctrines nominally empower courts to review charging decisions motivated by racial bias or retaliation for exercising fundamental rights, and inquiry into selective charging implicitly requires examining biased declinations as well. But these doctrines are wholly deferential to prosecutorial discretion. See United States v. Armstrong, 517 U.S. 456, 469 (1996) (holding that equal protection doctrine bars racially biased charging); Wayte v. United States, 470 U.S. 598, 607-08 (1985) (holding that due process bars charging in retaliation for exercising fundamental rights); see also McCleskev v. Kemp, 48] U.S. 279, 312-314 (1987) (holding that statistical evidence of bias in death penalty administration insufficient to prove constitutional violation without proving purposeful discrimination in defendant's case). For a classic account, see Kenneth Culp Davis, Discretionary Justice: A Preliminary Inquiry 188, 207-08 (1969) ("The affirmative power to prosecute is enormous, but the negative power to withhold prosecution may be even greater, because it is less protected against abuse... . The plain fact is that nine-tenths of local prosecutors’ decisions are supervised or reviewed by no one."). DAVID SCHOEN HOUSE_OVERSIGHT_016536