Beyond the Wall, HMP Glenochil, Scotland Gold Award for Watercolour Koestler awards

Rape on trial: The influence of jury bias on verdict outcome

For many, the English criminal justice system is considered to be among the best in the world. An important aspect of the system’s success is thought to be the jury trial, where use of ordinary people as the ultimate decision makers is said to make for fairer verdict outcomes. But the question remains: is the jury process actually fairer? And is this true across all types of crime?

This articles is by Dominic Willmott and Professor Daniel Boduszek. Dominic is a doctoral researcher in forensic and criminal psychology at Huddersfield University exploring the impact of psychological influences upon decision making in our courts. Daniel is a professor of criminal psychology at the university.

Certainly, you don’t have to look far to find examples of justice systems elsewhere lacking a jury system, where questionable verdicts were returned: whether its Egypt’s jailing of three western employed journalists for their ‘biased’ coverage of the authorities; or Saudi Arabian Courts ruling a 17 year old boy be sentenced to death for involvement in a pro-democracy rally. Yet despite being a more democratic process, the jury system is by no means flawless.

Under English law it is rare for the courts to ask prospective jurors any questions to assess their suitability to make decisions in a case. In fact, jurors are allocated to cases by a process of random selection from the local electoral register and only excused from sitting as a juror when they fall outside the 18 to 70 age range or have a history of serious mental health issues or criminal convictions.

This broad inclusion criteria is thought to ensure varied and representative members of the community are present within different cases. Yet with such a wide spectrum of people acting as jurors, comes a whole host of associated biases. Biases which bring this impartial assumption into question.

Studies have shown that personal characteristics of jurors themselves may have a bearing on the verdicts they return. In 2002 a review of a number of studies displayed juror’s gender, occupation, level of education and ethnicity (here) can all effect decisions made surrounding a defendant’s guilt in a case. Likewise, attitudes towards specific aspects of a case including; the defendant’s race, involvement of drugs, mental health issues and even the victim’s perceived attractiveness have been shown to effect the verdict choice jurors make.

Importantly, this mounting body of evidence has led some researchers to speak out against the English jury, criticising recruitment procedures as having a blind faith in random selection. One prominent law professor went as far as to say that closer inspection of decision making would likely display such an ‘intolerably high degree of irrationality, prejudice, stupidity and other forms of undesirable conduct’ that the abolishment of the jury would likely be called for. However, is there an alternative? An alternative where just within those cases most at risk of these effects, highly biased jurors are screened out of the process. An example of one such crime – is rape.

Despite most people assuming rape is committed by strangers lurking in a dark alleyways, statistics show (here) that the majority of rapes, around 90%, are committed by people known to the victim. Of these 56% are committed by a partner or ex-partner making what’s termed acquaintance and domestic rapes much more prevalent than those committed by strangers.

This in itself adds to the difficulty of the jury’s job as these disputed ‘sexual acts’ tend to take place in private, resulting in little availability of witness or CCTV evidence at crucial points in time. Further still, unlike other crimes DNA evidence in rape cases where the accused is known to the victim, is often of little value, displaying only that the sexual act happened, not whether this took place with consent.

Arguably even more damaging, are the negative attitudes jurors and society more generally hold toward victims of rape (a notion recently played out on BBC3 in the Is this Rape? Sex on Trial documentary), where the victims’ not defendants’ actions come under the most scrutiny.

Substantial research has shown inaccurate beliefs around; how a ‘real rape victim’ behaves and typical motivations for claiming rape, are so profound that judges now routinely warn jurors against drawing upon these rape myths when making decisions at trial. However, the extent to which these instructions are taken into consideration remains questionable.

Research recently displayed mock jurors made very limited, if any reference at all to these legal instructions during rape trial deliberations (here) and a 2010 Ministry of Justice report found only 31% of real jurors actually understood legal directions in full (here).

Screening solutions
In an attempt to test the extent that juror bias effects the fairness of decision making and therefore the need for screening procedures, a new approach was devised. Building upon past research, we began to examine not only juror attitudes but their psychological make-up too.

Every ‘juror’ completed attitudinal and personality assessments, some of which have never before been applied to jurors in this context. To explore whether these aspects had any effect upon the verdicts jurors returned, 360 ‘jurors’ comprised within 30 mock jury panels, observed video recorded reconstructions from one of three differing rape trials. Real barristers and professional actors were filmed reconstructing these genuine cases which the jurors then observed, before reaching a verdict.

Emerging findings have already given some interesting insights. For example, one trial observed by 10 different mock juries, produced five guilty verdicts and five not guilty verdicts, based upon observing the exact same case evidence. Importantly, the need to control others, attitudes towards rape and affective responsiveness (one aspect of a new measure of psychopathy), appear to be predictive of the verdicts jurors will choose. Further still, personal experiences of sexual victimisation seem to have an important influence on how jurors ultimately vote and whether they are likely to change their vote during deliberation.

So what does all this mean? If a relationship exists between a jurors’ psychological makeup, attitudes towards rape and ultimate verdict returned, then this would strongly suggest preconceived biases have much more of a direct influence upon the fairness of rape trials than been previously accepted.

Should the jury system in England be overhauled and abolished? Absolutely not. Should it be modernised based upon scientific evidence? Most definitely, which in turn will address this justice gap and make for fairer verdicts not just for defendants. But for victims as well.

If you would like to talk in confidence about sexual victimisation please click the following links for free and impartial support: Victim Support or Rape Crisis.