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Is jury bias preventing justice for rape victims?

Former star athlete, Brock Turner, has been sentenced to six months in jail after what became known as the “Stanford sex assault case”. The length of Turner’s sentence along with his apparent lack of remorse led to public outcry and the launch of a petition to remove the judge who gave the sentencing with many claiming it was too light and accusing him of bias.

Research has previously found that judges are more lenient at the start of the day and immediately after a scheduled break in court proceedings – such as after lunch – which suggests a level of bias in their decision making.

Now new research shows how jurors – who are supposed to be a better option than a lone judge – could also be biased when it comes to deciding a verdict.

We already know that personal characteristics of jurors may influence the verdicts they return. In 2002 a review of a number of studies found juror’s gender, occupation, level of education and ethnicity can all impact 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 a victim’s perceived attractiveness have been shown to have some effect on the verdict jurors make.

To test the extent to which juror bias affects the fairness of decision making within rape cases, we recreated rape trials, with the participation of professional lawyers and actors. Members of the public and university students were invited to take on the role of “juror”.

The research saw 360 “jurors” within 30 mock jury panels, who observed a video recorded reconstruction from one of three differing rape trials that were reconstructed in a real courtroom with barristers and actors. The jurors were asked to reach a verdict after observing the video.

Analysis is ongoing, however results so far suggest there is juror prejudice in rape cases where the victim already knew their attacker – and given that this is the majority of cases, it doesn’t bode well for conviction rates.

One trial observed by ten different mock juries, produced five guilty verdicts and five not guilty verdicts, based upon observing the exact same case evidence. This in itself suggests “juror characteristics” have an important impact on the ultimate verdict outcome.

Rape on trial

Despite many people assuming rape is committed by strangers lurking in a dark alleyway, statistics show the vast majority of rapes – around 90% – are committed by people already 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 if a case reaches trial, as these disputed “sexual acts” tend to take place in private, resulting in little availability of witnesses or CCTV evidence. And unlike other crimes, DNA evidence in rape cases where the accused is known to the victim, is often of little value – demonstrating only that a sexual act happened, not whether this took place with consent.

Arguably even more damaging, are the negative attitudes jurors and society hold toward rape victims. A notion recently played out on BBC3 in the Is this Rape? Sex on Trial documentary – which saw the victim, rather than the defendant, come under the most scrutiny.

Substantial research has shown many people hold inaccurate beliefs around how a “real rape victim” behaves. Including beliefs around how the victim’s own actions may have “invited” unwanted sexual activity – such as flirtatious behaviour or provocative clothing. So much so, 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. Recent research showed that many jurors take little notice of these legal instructions in rape trial deliberations and a 2010 UK government report found only 31% of jurors actually understand legal directions in full.

Jury bias

As part of our research, we also examined jurors psychological makeup by analysing their responses to attitudinal and personality assessments – to see whether these aspects also had any effect upon the verdicts jurors returned.

The results show that attitudes towards rape, interpersonal interactions – such as the need to be in control or included – and egocentricity (one aspect of a new measure of psychopathy, all appear to be somewhat predictive of the verdicts jurors will choose. People who score highly on these tests appear to be more predisposed towards “not guilty” verdicts.

This means the attitudes and personality traits jurors bring with them to trial, appear to have a much more of an influence and biasing effect upon the collective verdict returned than has previously been accepted.

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 18–70 age range, have a history of serious mental health issues or criminal convictions. Although, when they are picked some might be excused for having some agreed conflict with the case.

Though, this is different in the US, where extensive quizzing of jurors occurs – this is known as “voir dire” and it is a bit like a mini hearing. Though it has been argued this type of jury vetting is often ineffective at detecting juror bias.

The jury system is by no means flawless. Author provided

The broad inclusion criteria in the UK 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.

Our findings make a case for jury vetting – overturning centuries of tradition in England. Which in turn, will make for fairer verdict decisions, so that victims of rape will finally get the chance to see their perpetrators brought to justice.

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