We’ve had multiple ‘independent reviews’ into the failings of the police and the CPS in rape complaints, and yet nothing has changed. It feels like every day we hear news of a police officer arrested for rape or domestic abuse, or having behaved appallingly in relation to a serious crime carried out by someone else. And yet, after each outcry recedes, nothing seems to change.
The statistics themselves are gut-wrenching: just 1.6 per cent of reported rapes result in a suspect being prosecuted, let alone convicted.[1]
We know fundamental changes are needed:
to the way the police investigate sexual crimes against women
to the way victims and survivors are treated
to the way the CPS handles prosecution decisions
to the length of time it takes to get from report to trial
to how trials are handled.
There are so many problems to face, but one of the thornier issues is that of whether using juries in rape trials is working.
The right to trial by jury is, many would say, a cornerstone of our criminal justice system, having been used since before the Magna Carta.
Any attempt to question its efficacy is met with intense attack. In Scotland, a recent consultation on improving victims’ experiences of the justice system led to Ministers considering the use of single judge trials in serious sexual offence cases. This has been referred to, by the President of the Scottish Bar Association, as an attempt to “strip the democracy out of Scotland’s higher criminal courts”. The most senior woman at the Scottish Bar, Frances McMenamin KC, likened the proposals to Hitler abolishing trial by jury and setting up the People’s Court in 1933.
The main charges levelled by those defending juries in rape trials is that they are anonymous, and so less likely to be subject to political or media pressure than judges, and that juries are more probably reflective of society than a single judge, thereby reducing the possibility of unconscious bias influencing decision-making.
But these charges don’t stand up to scrutiny. Scratch the surface and it’s clear juries are not the gold standard some wish them to be.
First, many legal cases are heard and ruled on by single judges sitting alone. Commentators purporting to be concerned about judges being vulnerable to political or media pressure don’t seem to have the same concern for judges sitting in immigration tribunals, the family courts[2] or the civil courts. The idea that criminal court judges would start finding perpetrators of sexual assault guilty when the evidence to support that finding is not supported by evidence. It is an irrational fear. Whereas the contention that two-thirds of jurors do not understand legal direction and that the prevalence of rape-myths prevents convictions has been sadly supported by the evidence time and again.
Second, the insinuation of rape-myths throughout society makes it cold comfort to consider that juries are ‘more reflective of society’. Opinion polls show that society believes that false allegations of rape are far more frequent than they really are, that a lack of visible injuries makes it less likely that a rape occurred because ‘you’d fight back’, that not saying ‘no’ means it isn’t rape, and that delays in reporting are suspicious. There is no reason to suppose that jurors are less likely than the rest of the general population to subscribe to rape-myths. Indeed, the evidence from many studies of rape trials suggests a lot of them they do. In contrast, Judges are supposed to be trained in rape myths to avoid falling into society’s trap.
There is a vast body of jury research, often using mock juries involved in extremely realistic reconstructed trials, with actual barristers and content written by legal experts. These mock juries are drawn from the jury-eligible population, and volunteers could realistically be summoned at any time. This research has shown, again and again, that rape-myths infiltrate and influence jury deliberations. Even those who, prior to the ‘trial’ commencing, do not score highly on abstract rape-myth scales can express biased views when deliberating in a particular case. In one study individual participants were found not to endorse the particular rape-myths that injuries are needed for a rape to have occurred, but when deliberating in a scenario where injuries were relatively minor, this became a prominent factor in the group deciding they lacked sufficient certainty to convict.[3]
Third, this issue does not need to be approached with the only alternatives being either jury trial or single-judge. For example, trials could be heard by more than one judge, or alongside a panel of experts who specialise in working with victims and survivors of sexual violence, or victims could have the choice to elect trial by Judge or jury.
A radical overhaul is needed in a criminal justice system that routinely fails women. While it may feel like a difficult pill to swallow, trial by jury in serious sexual assault cases is a part of the problem – and dealing with this should be a part of the solution.
[1] Caelainn Barr and Alexandra Topping, ‘Fewer than one in 60 rape cases lead to charge in England and Wales’, Guardian 146 (23 May 2021): https://www.theguardian.com/society/2021/may/23/fewer-than-one-in-60-cases-lead-to-charge-inengland-and-wales
[2] Whilst there are concerns about some family court judge’s approach to rape allegations, there is a judgment at the conclusion of a fact-finding hearing in which allegations of rape are determined. This allows for careful scrutiny of the reasons given for either finding or not finding rape proven.
[3] From those staunchly defending jury trials in rape cases, much has been made, and continues to be made, of Professor Cheryl Thomas KC’s 2020 study. Professor Thomas KC was given permission, which is very rarely granted, to communicate with 771 jurors after the trial they were involved in had finished. She found that the perception that jury members can hold entrenched biases that make prosecutions of serious sexual assault so difficult is untrue. However, her findings were drawn from the outcome of a questionnaire with the apparent use of a blunt “agree/disagree/unsure” scale, not observation of deliberations.
Polly Jackman is a campaigning lawyer and the Women’s Rights Lead at Good Law Practice. She has a particular interest in reproductive justice, and the way the law is used to govern women’s bodies.
You can follow her on Twitter @polly_jackman, and get in touch by emailing pjackman@goodlawpractice.com.
