Judicial directions – a look at some of the research
Guest blogger Dawn Kofie takes a look at research which offers an insight into the importance of judicial directions in sexual offence cases...
The Abusive Behaviour and Sexual Harm (Scotland) Act 2016 became law in April. And its most controversial part was the use of jury directions in sexual offences cases.
This involves the judge (where it’s relevant) giving juries clear, factual information to help explain why survivors might not fight back during an attack, or tell anyone about what they’ve experienced straight away.
A handful of vocal MSPs strongly opposed jury directions being included in, what was then, the bill. (Margaret Mitchell MSP said they could set, ‘a dangerous and unwelcome precedent by eroding the judiciary’s discretion’.)
But as the research summarized below shows, because of the enduring and widespread misconceptions about the nature of rape and sexual assault, these directions are vital.
Louise Ellison and Vanessa E. Munro (Professor of Socio-Legal Studies at the University of Nottingham), specialise in research into sexual violence and rape prosecution. And they gave evidence to the Scottish Parliament’s Justice Committee when the Abusive Behaviour and Sexual Harm (Scotland) Bill 2016 was considered.
All the research below was carried out by Ellison and Munro, and based on data collected from a set of reconstructed mini rape trials.
• Munro and Ellison drafted a series of mini rape trial scenarios with help from barristers, prosecutors and other criminal justice experts
• Live reconstructions of mini trials were held in front of an audience of mock jurors (because research with real jurors isn’t allowed in England and Wales). The main roles were played by barristers and actors
• Each reconstruction lasted about 75 minutes, and was watched by around 25 participants who, after receiving judicial instructions, were grouped into three juries
• Their deliberations took up to 90 minutes and were recorded, coded and analysed
• The mock jurors were members of the public, recruited by a market research company and chosen because of their eligibility for jury service. There was an even distribution of women and men on each jury
• Nine different scenarios were used, and the trials varied depending on: how much the complainant resisted, how quickly she reported the incident to the police and how visibly distressed she was in the courtroom
• In some trials jurors were given an extended judicial instruction about how likely complainants would be to freeze during an attack, how often they delay reporting, or the different emotional reactions they might have
• In others, an expert called by the prosecution and cross-examined by the defence gave this information
• No additional guidance was given in the rest of the trials
Reacting to rape: explaining mock jurors’ assessments of complainant credibility
Focus: how jurors were influenced by specific aspects of the victim’s behaviour:
• Not fighting back
• Not reporting the attack straight away
• Being calm and composed when giving testimony
• Although participants acknowledged that different people will react differently to these type of experiences, they still made incorrect assumptions
• Many jurors assumed a rapist would use force, and a woman would fight back and defend herself
• Many of the jurors felt a delay in reporting had ‘seriously weakened the prosecution case.’ (But, if they report at all, victims don’t necessarily report straight away. Police Scotland’s 2013-14 management information shows that a quarter of all sexual offences, and over a third of rapes, were reported a year or more after they happened)
• Most jurors expected the complainant to show more emotion and have a strong reaction to seeing their attacker in the courtroom
Conclusions and implications: Ellison and Munro concluded that this research, ‘clearly testifies to the falsity of any suggestions that jurors in rape cases can be entrusted to leave their personal prejudices and stereotypical preconceptions behind them when they enter the courtroom.’
Normal sex and ‘real rape’ exploring the use of socio-sexual scripts in (mock) jury deliberation
Focus: the relationship between misconceptions about rape, and public expectations about how men and women navigate, and behave in, sexual relationships. And the scripts (the sequence of behaviours you’d expect in a particular scenario) they used to draw a boundary between normal sex and ‘real rape’.
• One of the main themes in the jurors’ deliberations was ‘normal’ sex is communicated indirectly, and that 1) it’s women’s responsibility to manage this indirect communication 2) women should know that men would be checking for sexual signals, so they should watch how they responded – and forcefully and, if necessary, clearly verbally communicate if they don’t consent
• Jurors also drew on the age-old notion that once a man’s sexually aroused he just can’t stop himself
• and that a typical rapist would be abnormal or unwell, and so he’d be different from normal men who use less violent ways to secure sex
• Some felt that ‘normal’ sex happens between couples who have a similar level of physical attractiveness – a person would be less likely to say yes to sex with a partner was much less physically, or socially, appealing
• And that ‘normal’ sex doesn’t involve force or, if it does, only certain specific kinds of force
• They also accepted, unquestioningly, the idea that women have more interest in relationships than men. Which means they might look for revenge if they’re rejected sexually
• And jurors assumed that having a reputation for being sexually promiscuous is bigger issue for women. So they’d feel dirty, but men would feel proud
Conclusions and implications: Munro and Ellis concluded that the scripts jurors used clearly played a part in helping them decide where the boundaries between normal sex and rape are. Jurors also used scripts to come to individual and shared conclusions about consent.
Their research suggested that many of the assumptions in the jurors’ sexual scripts were, ‘highly suspect either in terms of their factual grounding or normative value.’ So myth-busting in rape cases could be helpful, and incorrect assumptions about ‘normal’ sex and rape should be challenged more widely too.
Informing judicial challenge to jurors’ stereotypes in rape trials
Focus: whether judicial directions would be an equally, or more, effective alternative to expert testimony
• Jurors’ responses were generally similar whether guidance was presented by an expert near the start of the trial, or by the judge at the end
• Participants who were given directions were more likely to question the significance of how soon a rape’s reported
• These participants were also willing to accept that a genuine victim could testify without looking distressed. (But most still expected the complainant to fight back, and have injuries)
Conclusions and implications: Jury directions might change the way jurors deliberate and could help achieve greater justice.
Ellison and Munro’s research clearly shows that jurors don’t necessarily realize, or understand, that trauma, fear and shame mean victims of sexual offences can react counter-intuitively.
This means juries may be relying on misconceptions about victims’ behaviour. And, even though these sometimes ill-founded beliefs can be worlds away from what victims might actually do in reality, they can still have an impact on decision-making in rape and sexual assault trials.
So jury directions are a step in the right direction when it comes to improving access to justice for victims. Because they can help make sure verdicts are based on evidence, instead of being shaped by myths, received wisdom and flawed assumptions about how victims ‘should’ act.