Analyzing Justice Department data
The data used in Little Victims is a compilation of statistics published under the Tribal Law and Order Act and case processing statistics from the Executive Office for United States Attorneys, both part of the Justice Department.
FBI Case Processing
As part of the Tribal Law and Order Act, enacted in 2010, the Justice Department produces an annual report to Congress titled “Indian Country Investigations and Prosecutions Report,” which reviews case investigations by the FBI and prosecutions by individual U.S. Attorneys’ offices across the U.S.
The Howard Center compiled statistics from the available nine years of this report, through 2019. For FBI investigations, the reports distinguish child sexual assaults from other crimes. It reports annually the number of “administratively closed” cases, but does not reveal the total number of cases investigated or referred to prosecution by type of crime. These statistics allowed the center to report on the number of suspected cases of child sexual assault closed by the FBI over the period, but not its closure rate.
The report also excludes any investigations conducted and closed by other federal or tribal agencies, such as the Bureau of Indian Affairs in the Interior Department.
The annual reports were not useful for analyzing federal prosecutions because the Justice Department combines child sexual assault, adult sexual assault, sexual exploitation (such as child pornography) and related charges into one large category.
However, those reports are based on the defendant case processing information released monthly by the Justice Department in its publicly accessible CaseView database of more than 6 million federal criminal cases. The Howard Center followed the methodology laid out in those reports to isolate cases identified as occurring in Indian Country, then categorized the data as child sexual assault if the initial charge was identified as 18 USC 2441(c), sexual assault of children, and 18 USC 2443, sexual abuse of a minor or ward.
Over the decade ending in 2020, these amounted to 1,855 child sexual assault defendants and 22,432 other defendants.
Each defendant included in the data available through June 2021 was categorized based on the first action taken, which could be:
- Declined prosecution
- Referred the matter to another jurisdiction (a subset of the declined cases)
- A criminal case filed in federal District or Magistrate court
- Some other outcome
Once cases were filed, they were further broken down into the last action taken in federal District or Magistrate Court. Here, they were either dismissed, found not guilty (in a bench or jury trial) or found guilty (through a plea or a trial). Cases still in progress were excluded from this part of the analysis.
There are several ways in which the FBI statistics published as part of the Tribal Law and Order Act reports are incomparable to the prosecution statistics. Most importantly, the prosecution database excludes any matter still under active investigation — those in which the government has yet to decide on its action. This means that we could not estimate the number of cases that the FBI referred to prosecutors from this data. There is no way to know how many of those would have fallen into this analysis, since the government redacts information about the type of crime or the charge until it takes an action. It also excludes information on court cases that have been sealed or expunged.
In addition, the Howard Center excluded any matter from Oklahoma. Prior to 2020, these were rare — the three districts combined averaged only two child sexual assault defendants a year. But as a result of a Supreme Court ruling in September 2020, the number jumped to 24 at the end of 2020. Because of the amount of time it takes to file a case in court, including these defendants would skew the statistics toward declinations and referrals to other jurisdictions. (Those that would be filed in court usually take longer, and they are redacted from the database until they are.)