Mock Jurors, Ex Jurors, Real Jurors: What Can Jury Research Tell Us about Rape Trials?
Last week, the Scottish Government published its Victims, Witnesses and Justice Reform (Scotland) Bill, the most controversial part of which is a proposal to pilot single judge trials in rape and attempted rape cases. The Scottish Government has justified this proposal, which would implement a recommendation by the 2021 Dorrian Review, by reference to a “compelling body of evidence” which “suggests that the existence of rape myths has an influence on decision-making by juries in these cases” (para 548 of the Policy Memorandum accompanying the Bill).
Some of this evidence comes from what the Government describes as “operational experience”, quoting a judge who said “I see a number of acquittals each year in rape cases which, to my mind, are not explicable by rational application of the law to the evidence” (Policy Memorandum, para 551). But the Government draws more broadly on a much wider range of research. Critics of its proposal are, understandably, sceptical of aspects of that body of knowledge. So what can jury research tell us about rape myths and jury decision making?
There is a an extensive body of research worldwide, summarised by Fiona Leverick in a 2020 article as providing “overwhelming evidence that prejudicial and false beliefs by jurors about rape affect their evaluation of the evidence and their decision making in rape cases”. But in the context of the Dorrian Review, two sources of evidence have been particularly important: evidence from the Scottish Jury Research and from the UCL Jury Project (conducted by Professor Cheryl Thomas KC (hon)), two sources of evidence which critics sometimes place in opposition to each other. To that, we should now add significant new research conducted in New Zealand and published after the Dorrian Review reported.
The Scottish Jury Research
The Dorrian Review relied in part on the findings of the Scottish Jury Research (we were members of the team that undertook it). The research involved 64 mock juries, whose deliberations were recorded. Because 32 of these juries deliberated on a rape trial, and those deliberations were video recorded, the research provided insight into the way that jurors discuss such cases. The research showed that jurors frequently expressed false beliefs about rape and rape victims such as the belief that rape is always accompanied by violence, that even a short delay in reporting rape is evidence that the allegation is fabricated, and that a truthful complainer would always be highly distressed when giving evidence. You can read more about these findings here and here. They are by no means isolated findings, but are consistent with the body of research that exists worldwide on the topic.
Some critics have rejected the Dorrian Review’s reliance on this work. In a piece for Scottish Legal News entitled “Juryless trials – fact and fiction”, Tony Lenehan KC suggested that the pilot of single judge trials for rape and attempted rape cases has been justified on a “blinkered view of the evidence”. Mr Lenehan argued that the findings stemming from the Scottish Jury Research are of little value because, as he put it, they were undertaken with “pretend jurors”. Instead, we should look to the findings of studies that have involved “real jurors”. In this respect, he suggests that it is “surprising to see how little mention there is of exactly such a study conducted by Professor Cheryl Thomas”, which concluded that public subscription to rape myths is not supported by the evidence.
Now, in fact, the Dorrian Review did make extensive reference to the Thomas study (see paras 5.37-5.44), as does the Policy Memorandum accompanying the Bill (see para 553). So what did that research show?
The UCL Jury Project
Professor Thomas published a paper in the Criminal Law Review ([2020] Crim LR 987) exploring attitudes towards selected “rape myths” of 771 individuals who had just completed jury service (whether in a sexual offence trial or otherwise) across four court centres in England and Wales. She concluded that “previous claims of widespread ‘juror bias’ in sexual offences cases are not valid”, attributing this difference primarily to the fact that there are “fundamental differences between real jurors and volunteers”, with previous studies undermined by the self-selecting nature of participation, which she suggests ‘builds in’ bias. (We have previously published a detailed response to this work.)
Unlike the Scottish Jury Research, the fact that this work was carried out at court centres meant it involved exclusively persons who had served as jurors. But those jurors were not being asked about their deliberations, and had sat on a range of cases, not just sexual offence ones. Instead, the research started from scratch after their jury service had been completed, asking jurors to complete questionnaires asking whether they “agreed”, “disagreed” or were “unsure” about a list of some of the main rape myths. As any social science student could tell you, there is a risk that respondents give socially desirable answers when asked abstract questions such as these. And we know that people who give negative responses when asked in the abstract about their beliefs about rape can nonetheless express the exact same false beliefs when deliberating in a concrete case. Despite this, 27% of Thomas’s participants still reported that they either agreed, or were unsure whether they agreed, with the statement “it is difficult to believe rape allegations that were not reported immediately”; 17% either agreed, or were unsure if they agreed, with the statement that “a woman who wears provocative clothing puts herself in a position to be raped”; 15% agreed or were unsure whether “if a person doesn’t physically fight back, you can’t really say it was rape”; and 13% agreed or were unsure whether “a rape probably didn’t happen if the victim has no bruises or marks”. This is hardly a resounding rejection of rape myths.
Mr Lenehan said that he is “certain that the academics involved [in the Scottish Jury Research] would have preferred access to real jurors, from real cases, selected at random rather than relying on volunteers”. We would certainly have loved to have listened in on the deliberations in real rape cases, but no-one has done that, or is ever likely to. We would maintain that we have done the next best thing. Our mock jurors were indeed volunteers. But “real jurors” and those who participate in mock jury studies are not two entirely different populations. Those who participated in the Scottish Jury Research were all eligible for (compulsory) jury service. If research with voluntary participants demonstrates that a significant number of those participants subscribe to false beliefs about rape and rape victims, those participants do not disappear from the jury pool merely because they are compelled rather than volunteers. These are the people who sit on juries. And they do not magically change their beliefs simply by virtue of this fact. Moreover, as we have discussed elsewhere, there are distinctive benefits to the use of mock jury methods in terms of being able to manipulate specific variables whilst holding other factors constant in order to increase confidence regarding their effects.
Evidence from New Zealand
But if only research with real jurors will do, it is worth looking to recent work in New Zealand. Unlike either the Scottish Jury Research or the UCL Jury Project, this did involve examining actual deliberations in real sexual offence cases (which is prohibited by law in the UK). The researchers conducted a series of detailed post-verdict interviews with jurors following their deliberations in sexual offence cases (having also observed the unfolding of some of those trials as part of the research) and found plenty of evidence that false beliefs about sexual violence were present in jurors’ discussions. The jurors they interviewed often drew on ‘real rape’ stereotypes, including the extent of a complainant’s physical resistance, in determining credibility, and placed undue weight on delayed reporting, despite having been directed otherwise. Complainants who did not display an appropriate degree of emotion when giving evidence were judged not to be credible and defendants who had been intoxicated at the time of the events in question were judged leniently as having made ‘drunken mistakes’. By contrast, jurors endorsed victim-blaming attitudes relating to the complainant’s clothing, flirtatious behaviour, lifestyle, intoxication and prior sexual history.
Whether you look to mock jury studies (such as the Scottish Jury Research) or to studies undertaken with real jurors who have sat on sexual offence cases (such as the New Zealand research), the evidence that jurors hold false beliefs about rape and rape victims is overwhelming. Juries have many strengths. They represent the community and bring common sense and life experience to decisions that have weighty consequences for complainer and accused alike. But if they are making their decisions through the lens of false and prejudicial beliefs, then these advantages fade away. It is perfectly possible to hold the view that juries are a valuable component of our criminal justice system but that something needs to be done to address the problem of juror attitudes in sexual offence cases. Whether the solution to that lies in removal of juries remains to be seen, and it is a question that the establishment of a judge only pilot is designed to help answer.
Professor James Chalmers and Professor Fiona Leverick (University of Glasgow); Professor Vanessa Munro (University of Warwick)
Photo credit: Scottish Court in Session by Mike McBey (Creative Commons Attribution 2.0 Generic Licence)
