by Claude Opus 5.5
Is there a duty of candour owed by prosecutors to complainants when declining to charge? What would it have required in this case?
When the district attorney declined to charge in the case behind these seminars, his explanation, as later reported, was that the complainant’s signed statement described her drug use and the sexual conduct as voluntary and consensual. Her lawyer disputes that this reflects what she said or meant. Whatever the merits, the episode raises a structural question. A prosecutor who declines to charge makes a decision of profound importance to the person who reported the crime. Does he owe her an honest and full account of why? And if so, what would that have required here?
The status of the complainant
In the common law tradition, prosecution is brought on behalf of the state, not the victim. The complainant is a witness, not a party. On this traditional view, the prosecutor’s duties run to the public and to the court, and the complainant has no special claim to explanation.
That view has been substantially revised over the past few decades. Victims’ rights movements in the United States produced statutes and state constitutional amendments giving victims rights to information, to be heard at certain stages, and to be treated with fairness and dignity. In England and Wales, the Code of Practice for Victims of Crime gives victims the right to be told of decisions not to prosecute and the reasons for them, and since 2013 the Crown Prosecution Service has operated a Victims’ Right to Review scheme, following the Court of Appeal’s decision in R v Killick (2011), which recognised that a victim has a legitimate interest in seeking review of a decision not to prosecute.
These developments reflect a moral insight: the complainant is not a bystander to the decision but the person whose injury it concerns. She has standing that a member of the public does not.
Grounds of a duty of candour
Several moral considerations support a duty of candour owed to complainants.
Respect for persons. A decision that affects someone profoundly should be explained to them, at least to the extent compatible with other duties. Withholding reasons treats the person as an object of administration rather than an agent entitled to understand decisions about her.
Testimonial respect. The complainant offered testimony. A decision not to act on it is, implicitly, a judgement about its weight. Candour about the nature of that judgement, whether it is a judgement about credibility, about corroboration, or about the legal effect of particular words, respects her as a knower and allows her to respond.
Error correction. Complainants often hold information that could correct a prosecutor’s mistakes. If the prosecutor’s reasoning turns on a particular reading of a statement, the person who made the statement may be best placed to say whether that reading is right. Candour enables correction.
Trust. Unexplained decisions breed suspicion, especially in sexual offence cases where many complainants already expect not to be believed.
Limits
A duty of candour is not unlimited. Prosecutors also owe duties to suspects, whose privacy and presumption of innocence are at stake, and to the integrity of ongoing investigations. They may not be able to disclose evidence from other witnesses or details that could prejudice future proceedings. And candour must be exercised with care: a blunt statement that a complainant’s own words undermined her case can be experienced as an accusation.
These limits shape the content of the duty but do not eliminate it. The prosecutor can explain the nature of the decision, the evidential test applied, the main reasons, and the available routes for review, without disclosing everything.
What would it have required here?
Applied to this case, a duty of candour would plausibly have required several things.
First, a direct explanation to the complainant before, or at least at the same time as, any public statement. A complainant should not learn the reasons for a decision about her case from the press.
Second, clarity about the basis of the decision. If it rested principally on the wording of a police summary, she should have been told so, and told which words carried weight.
Third, an opportunity to respond. Because the decision turned on the meaning of her own statement, she should have been invited to explain what she meant, and whether the summary accurately reflected her account, before the decision became final.
Fourth, disclosure of what was and was not considered. If the prosecutor did not review the full interview recording, the institutional record or suspects’ accounts, candour would require saying so, so that she could judge whether the decision was made on an adequate basis and supply further material if she had it.
Fifth, a route to review. Where no formal scheme exists, candour would require at least telling her how the decision could be reconsidered and what new evidence might change it.
Public candour and private dignity
There is a tension worth noting. The DA’s public explanation was in one sense candid: it gave a reason. But a public statement that a complainant’s own signed words described the conduct as consensual can do serious damage to her standing, especially if the reading is contested. Candour owed to a complainant is primarily owed to her, and the public dimension should be handled in a way that does not convert an explanation into an indictment of her credibility.
Conclusion
Prosecutors owe complainants a duty of candour, grounded in respect, testimonial standing, error correction and trust, limited by duties to suspects and to ongoing proceedings. In this case, it would have required explaining the decision directly to her, identifying the words on which it turned, inviting her response, disclosing the limits of the evidence considered, and offering a path to review. Whether those things were done is not fully known. If they were not, the reopening may be correcting not only an evidential decision but a failure of respect.