The Impact of Judicial Instructions and Social Stereotypes on Juror Decision-Making in Rape Cases

The Impact of Judicial Instructions and Social Stereotypes on Juror Decision-Making in Rape Cases Presented by: Mrs. Leverick Date: 17 March 2022 Summary of potential impact of changes - Reducing jury size • Might lead to more individual jurors switching their position towards the majority view - • Might lead to more jurors participating more fully in discussions • But would be unlikely to affect length or scope of deliberation Requiring unanimity • Might tilt more jurors in favor of acquittal (and so might lead to more acquittals over larger number of trials) • May lead to longer deliberations, and to more jurors feeling they have been involved - Removing not proven • Might lead to more jurors favoring a guilty verdict (and so might lead to more convictions over larger number of trials) • May not have much impact on other aspects of the deliberation process • May slightly increase juror dissatisfaction How Were Jurors Directed About The Not Proven Verdict? - Finally, I need to tell you that there are three verdicts you can return on this charge: not guilty, not proven, or guilty. Not guilty and not proven have the same effect, acquittal, which means that the accused cannot be tried again for the same offence. Discussion of not proven during the deliberations - Meaning and consequences of not proven rarely discussed at length - even in juries where that verdict was returned - Some uncertainty over the verdict and its effect • In 9/32 of the 3-verdict juries, jurors stated that they did not understand it or asked what it meant - Jurors rarely expressed beliefs that were definitively incorrect • The NP verdict does not have a specific definition beyond it being one of two verdicts of acquittal • This leaves room for a number of different understandings about its meaning and purpose Understandings of not proven in the deliberations - A compromise verdict • “If you didn't have the not proven verdict and you either had to find him guilty or not guilty then ... • - - We would be here all week.” Guilty but you can't prove it • “Not guilty is completely different to not proven ... • Not proven is guilty, but you can't prove it ... Not officially...” Accused has not been proved innocent • “Not proven means that the jury feel that they cannot prove that the person is innocent. It means that ... they think that there has possibly been a rape, but they don't feel that the evidence is strong enough.” - A lingering stigma • “You walk away innocent, but everyone knows” Methods for this additional work - 32 rape jury deliberations, involving 431 individual jurors - Reviewed transcripts for evidence of the following attitudes: • A lack of physical resistance may indicate consent • A lack of calling for assistance may indicate consent • False allegations are routine [beyond a bare acknowledgment that they happen] • A delay in reporting is indicative of a false allegation • A victim of rape may "freeze" in response to the attack • We quantified the extent to which such views were expressed and challenged, and reviewed the specific content of the discussions Limitations of this work (similar but distinct from main study) - - Fictional trial • Jurors are aware they are role-playing • That said, jurors took it seriously • Cannot control for impact of artificial nature of mock juries Single rape trial scenario • Can describe how jurors reacted to aspects of the evidence • Cannot say what difference those aspects made (no parallel experiments without them) - Analysis of what jurors said • Analysis restricted to what jurors said in deliberations • We do not know what jurors who did not express views on particular points thought Absence of physical resistance and consent - In 28 of the 32 juries, the view was expressed that a failure to physically resist (or to resist more than the complainer) might indicate consent: • "Surely if it was rape, you would expect scratch marks?" (M01F) • "If you're being attacked ... then to me you would scratch, you would scream, you would try and do anything possible to get him off." (M01G) • "Even though the doctor said that it doesn't necessarily have to be internal trauma, if it had been sort of a violent rape like she was making, like there was bruises on her body, there would have been internal trauma as well." (M01E) - This view was challenged in 22 of those 28 juries (79%): • "I feel...I've been in a situation like that and if you have got a heavy man on top of you and he is holding your wrist, you're not going to be able to do anything. It's a physical penetration of your body and it's a shock, because you're not expecting it.." (M03G) The expectation that a victim would scream or call for help - The belief that a victim would be expected to scream or call for help was expressed in 16 of the 32 juries • "If you were getting held down and raped you would be screaming your lungs out." (M02E) • "I think if you're getting raped you're going to shout, you're going to scream." (M02E) - This view was challenged less often that the claim about the absence of physical resistance: only in 7 of those 16 juries (44%) - Where it was challenged, jurors usually pointed to the possibility of a "freeze" response (influence of RCS "I Just Froze" campaign?) Corroboration and proof beyond reasonable doubt - The prosecution case: the complainer's account, plus evidence from a forensic examiner that external injuries were consistent with rape but for which alternative explanations could not be ruled out. - In 23 of the 32 juries, the (incorrect) view was expressed that this was insufficient for conviction. • Medical evidence was described as e.g. "50/50" (M03E); "not helping" (M01F); "not having huge value" (M01F); not being "very strong" (M02E); and not "valid as a categoric way of convicting" (M01H). • "[The doctor] says it's consistent, but at the same time she also says it could have happened another way, so at the end of the day you can't get a definitive answer. It's no definitive, I'm sorry and if we don't have a definitive thing we cannot find the guy guilty." (M04G) - The view that the evidence was insufficient for conviction was challenged in 17 of the 23 juries where it was raised: • "I would be amazed if there is a crime that happens anywhere in the world, that physical evidence is provided for, that the defence can't turn round and say, 'but could something else not have caused that injury?' I don't think there's any injury that you can't say that for." (M01G) • "How are rape cases proven then?"; "How is anybody going to prove a rape case?" (M05H) - We cannot tell how influential the corroboration requirement was in this regard and whether jurors' views would have been different without it Insufficiency of evidence and the not proven verdict - The perceived insufficiency of the evidence did not always lead jurors to conclude that the allegation was false, and the not proven verdict was sometimes suggested as a compromise approach: • "It's not definitive, I'm sorry and if we don't have a definitive thing we cannot find the guy guilty. Not necessarily find him not guilty, we've got to find it as not proven, and the reason it's not proven there is just not enough evidence there for us to actually buy into." (M04G) • "It's practically the same as not guilty, but obviously if we say not guilty in this case we would be implying that we think, for example, that [the complainer] is not a credible witness, that she is lying. We might feel more comfortable saying not proven because we don't want to make that implication." (M03F) The spectra of false allegations - In 19 of the 32 juries, it was claimed that false allegations of rape are "common" or "routinely made" (or words to that effect) • Possible motives included that the complainer "wants her man to come back" (M01H), was "obsessed" with the accused (M04F), might be a "psycho bunny" (M07F), out for revenge ["it's a female thing of no hell like a woman scorned" (M03G)]; or that "women can be vindictive" (M04G), "bad" or "mad" (M06H). - Some jurors suggested that the complainer's injuries might have been self-inflicted: • "pressing yourself very hard to make yourself bruised, you can do it" (M01H) "fairly easy to scratch yourself if you really want to" (M07G) - The view that false allegations were common was challenged in 14 of the 19 juries where that claim was made: • "It's very rare for a woman or anyone to make an accusation of rape to the police like that if it's not true, because the motives simply aren't there, and there is no evidence of any psychological reasons as to why she would want to be vengeful in such a way." (M08E) • It's a "big step to take, for women to take, unless it happened". (M05E) Conclusion - Persistent focus on the existence of injury and resistance - Lack of clarity over the extent to which testimony from a medical expert could corroborate the complainer's account - Credence to the idea that rape allegations are often unfounded - But evidence of a willingness to challenge peers' attitudes, including through reliance on judicial instructions and awareness campaigns