A new study out of Australia is both disheartening and easily predictable. The Australian Institute of Criminology looked into the conviction rates of rape cases that actually made it to trial, saw how low they were and decided to find out if juror bias had anything to do with it. Of course, it did. The study found that jurors in rape cases had generally already made up their mind about the case before the trial. And no, it’s not in an “I always believe rape victims” sort of way.
It seems myths surrounding rape still have a huge influence on jurors’ thinking.
The institute wanted to find out what juries where thinking when they considered these cases, so they held 18 mock trials.
Dr Natalie Taylor conducted the research.
“What we found was that it wasn’t what they saw or what the testimony of the complainant was that was affecting their judgments about guilt or about the complainant’s demeanour, it was more to do with the attitude that they brought, and the beliefs that they brought with them into the courtroom,” she said.
“They were stereotype beliefs really. Like, a ‘real’ victim would cry out and shout during a rape. A ‘real’ victim would report an incident to police straight away, they wouldn’t delay reporting to police. A ‘real’ victim would not flirt with someone who was raping them.
“So it’s these types of attitudes that were affecting the judgments that the jurors were making when they were trying to reach a verdict, and it was impacting on their judgments.”
Though the studies were conducted on Australians, this obviously is not a merely Australian phenomenon. Conviction rates in many other large, developed countries, including the U.S., are very, very low. Rape report rates are very, very low. And no, I’m not surprised. When I blog about rape several times a week, read dozens of blogs posts and articles about rape every week and see the comments that people leave, they precisely reflect these views. Was I going to believe that these views didn’t somehow make it into the courtroom? I wish.
The findings get worse, though:
The institute’s report is also based on interviews with 2,000 people regarding their views on sexual assault cases.
Dr Taylor said the answers were revealing.
“One of the findings was that 44 per cent of males, 32 per cent of females believe that rape results from men not being able to control their need for sex,” she said.
“The implication of that is that the responsibility for rape is being taken away from the offender.
“So if a juror watches a trial and comes in with that belief, then they’re going to be less likely to hold the defendant responsible for what happened.”
Karen Willis is the manager of the New South Wales Rape Crisis Centre. She says she is not surprised by the findings.
“We really do need to get over this idea. If I was a man, I would be appalled by this idea that I was, at any moment, at any time I could lose control and do something shocking,” she said.
“It’s one of those myths I actually think men should be jumping up and down about because it really doesn’t say very nice things about men.”
The idea that such large numbers of people can believe that rape is about an inability to control sexual desire in 2007 is horrifying, but again, not hugely unexpected. And yeah, of course, if you have male jurors who think that rape is acceptable when a man is really turned on, they think the victim is hot and the rapist bought her dinner, what the hell do you expect to happen?
Willis is absolutely right that men should be insulted by such a view. Feminists have been saying for a long time that while rape myths are very dangerous and harmful to women, they’re downright insulting to men. It’s ironic that feminists are often the ones billed as believing that “any man can be a rapist,” when in fact it is other men who think that rape comes down to sexual desire. Seems to me that every man has been turned on at some point — through that line of thinking, couldn’t every man be a rapist?
The fact is that feminists don’t believe that shit. They recognize that rape is about control over women and the rapist’s views towards sex, views towards women’s worth and a basic respect for the autonomy of other people’s bodies. But that doesn’t mean we’re surprised by the idea that so many men think rape is about sexual lust. Sure, it insults them, but it also gives them extra privileges. If you convince society that rape is unavoidable, and the fault of women for being too good looking and too “available,” men get to keep raping. What’s a little insult compared to getting to do whatever the fuck you want to other people’s bodies with impunity?
There is a silver lining to the study, though. And it’s the fact that the Australian Institute of Criminology cares enough to do such a study. And they are considering changes:
Ms Willis says the legal system should review the way rape cases are heard in court but she is not sure if the cases should only be heard by a judge or magistrate.
“I think it’s absolutely worth having a look at,” she said.
“Just because we’ve been doing something in a certain way up until now doesn’t mean that we should keep to it, or if we find something is wrong with it we should throw it out. We should certainly review it.”
Of course, we know that judges aren’t exactly progressive when it comes to rape, either, so I’m not yet convinced that this is the solution. But I do think that it’s worth considering. Firstly, judges are less prone to defense attorney bullshit. They know the emotional tricks they pull, and are likely to get past them more quickly. You can also educate judges en masse more easily than you can educate millions of potential jurors. We do in fact eventually want to do wide scale education, but I think that we need both a short-term and a long-term fix. With more exploration, it may turn out that judge-based trials are the best short-term solution.
It’s not exactly an easy sell, though. Sadly, even the prosecutors who should be most aware of jury bias are defending the current system.
Mark Tedeschi QC is the senior crown prosecutor for New South Wales and the president of the Australian Association of Crown Prosecutors.
He says he has not encountered this kind of jury prejudice in his 30 years as a prosecutor and defence counsel.
“I don’t believe that most jurors decide cases based upon views that they’ve formed before they even hear the evidence,” he said.
“I think jurors take their oath very seriously, and that is an oath to decide the case based upon the evidence and the evidence alone, so whilst I think that ordinary people have their sympathies and their prejudices when they first arrive at court, I think that they very quickly put those aside.
“My experience is that you get good commonsense decisions most times from jurors, because there are 12 people, and there’s nothing like having a group of 12 people to soften the edges, to round the sharp edges that you might get in any individual member of the jury.”
I think it’s pretty clear here that Tedeschi is reaching a false assumption. I cover it only because I think that it is probably a common one. The assumption is that jurors take their oath seriously, therefore they must make fair decisions. This is false because what one person determines “fair” is different from another person’s determination — as is what people think is prejudice. You can take an oath to decide the trial based on evidence, but if you’re someone who thinks that black men are thieves, deciding on a case where a black man is accused of theft, the fact that the accused is black is evidence to you. Statistics bear this out. Black men are far more likely to be convicted of crimes that go to trial than their white counterparts. Is this because black men are less likely to be falsely accused? Is it because the evidence against black men tends to be of a higher quality? No and no. It’s prejudice.
And prejudice regarding rape, I think, is of a far more fuzzy nature than racial prejudice. Most people recognize the existence of racial prejudice. Even if they think that they don’t have that prejudice, they know that it exists and they have a fair idea of what it looks like. But if you think “rape victims always scream and fight their accuser,” you’re not going to see that as a prejudice. You’re going to see it as a fact, like “stabbing victims always have knife wounds.” And so when you go to court and hear a case with a rape victim that didn’t scream and fight, of course you’re not going to believe her. Just like you wouldn’t believe a stabbing victim who didn’t sustain any physical injuries. When prejudice turns into perceived “logic” — as it too often does — that’s when prejudice is the most dangerous. And that is precisely what we’re dealing with, here.
Thanks to the Australian Institute of Criminology for researching this issue and bringing a discussion to the table. It’s a hell of a lot more than I would ever expect out of the U.S. Justice Department.