Prosecuting sensitive crimes presents unique challenges

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It is axiomatic that not every lawyer is qualified to try a criminal case. Less understood is that not every criminal lawyer is qualified to try a sexual assault case.

Whether prosecuting or defending, such cases pose challenges that are unique in criminal law.

And few are as expert in trying them as Assistant Milwaukee County District Attorney Miriam Falk, who has tried roughly 300 since joining the sensitive crimes unit in 1991.

Numerous factors make such crimes difficult to prosecute. First is that sexual assault is the only crime that results in the victim’s conduct being scrutinized. “When someone is robbed, no one asks, ‘well, what did you expect?’” Falk said. “But in sensitive crimes, people do.”

Second is that perpetrators know this and purposely take advantage of it. “Perpetrators are very aware that this is a tool they can use,” Falk said. “And they know that if a victim has been drinking or is cognitively disabled, people start by questioning the victim.”

Third, Falk notes the public perception of sexual assault as a crime committed by a stranger hiding in wait with a weapon, when, in fact, more than 90 percent of sexual assaults are committed without a weapon by someone the victim knows.

“The use of a weapon is rare, because it’s not necessary,” Falk said. “Perpetrators know that, and have other means of coercion. They also know that the lack of a weapon makes it look more like consensual activity. They know how to take advantage of the public’s misconceptions.”

Falk added that it is much more difficult to rehabilitate offenders and it is much more difficult for them to admit their own guilt.

The costs of going to trial and losing are greater, too. “The last thing I want to do is go to trial and lose. The victim has to relive experiences that were humiliating and deathly frightening.”

Falk is also active in the American Prosecutors Research Institute, teaching throughout the country, and developing a curriculum for training prosecutors to try non-stranger sexual assault cases.

Falk also leads the Girl Scout troops of both her daughters and is active in their schools and church.

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