Socially engineered juries....what next?

4 December 2018

In her submission to Parliament during a debate entitled “Rape Myths and Juries”, Ann Coffey MP advocated several potential solutions to what she characterised as a “crisis” being the “low” conviction rate (32%) for young men aged 18 to 24 charged with rape. Leaving aside (for the moment) any challenge to the assumption that high conviction rates is a legitimate measure of the integrity/success of our criminal justice system, it was a seemingly throw away but incredibly dangerous proposition that caught my attention and should be of concern to every member of our democracy. We covered this in further detail in our recent blog.
 

The proposal was that jurors for rape trials ought to be “vetted” specifically for those trials rather than identified through the random jury selection process our justice system has relied on for centuries.

The justification, as expressed, is that this special group would be better equipped for dealing with these trials and presumably have the extra fortitude believed necessary to withstand the “rape myths” thought to be so prevalent in the general public. There are so many problems with this ill-conceived suggestion. Here are just a few:

  • Which characteristics will we screen for? What characteristics might also (overtly or covertly) be screened for?  Perhaps IQ, racial prejudice, ageism, disability discrimination, homophobia or other identity/sexuality based discrimination?
  • How will we identify and measure these troublesome characteristics or beliefs a person holds?
  • What degree of affectation would be acceptable or unacceptable? Would being a little bit racist be OK but card carrying racist not?
  • How will we guard against the identification and measurement of these characteristics taking us back to the bad old days where classes of people, e.g. men, women and BAMEs, are excluded from this fundamental part of our enfranchisement?
  • Who will do the measuring?

Equally worrying is why people who possess sufficient character flaws so as to disqualify them from sitting on a rape jury should be allowed to sit on a jury for any other seemingly lesser offence? Presumably the complainants and suspects in those cases should be entitled to the same quality of justice or do we intend (deliberately or by default) to define rape as a “special” category of offence. It must be the case that those deemed not to have sufficient common sense or relevant collective experience to apply to a rape case should not be able to judge any fellow member of society?

Such a course would lead to “matching” the jury to the case. Whether matched to the complainant or suspect is unclear. Maybe we ought to match the jury to the complainant’s characteristics only - maybe, just to be fair, half with the same characteristics as the complainant and the other half with similar characteristics as the suspect. A burgeoning US type industry related to jury selection, investigation and vetting would be lucrative for some but deeply unattractive.

The reality is that “acquaintance rapes” where the complainant and suspect are aged between 18-24 are particularly difficult cases. The vast majority arise from circumstances where the fact of what happened is rarely in dispute. The very same incident/liaison is seen through the lens of each protagonist’s perception so that a cuddle which is not rejected is viewed as permission to go one step further; where the complainant’s unspoken “stop” is much more difficult to interpret accurately as “no”. Each thinks they have given and received a clear unambiguous signal; a couple lying spooning, everything ok so far - is her leaning back onto him an invitation to carry on or her pushing him away? Is her silence as he puts his hand on her breast, permission or is she frozen with fear? I agree it would be much clearer if they would both use actual words but this is rarely the case (even with mature adults).

I get that this is difficult, but socially engineered juries or creating “special” category of offences we do not trust our fellow members of society to judge is both dangerous and ill-conceived. 

Further information

For further information on the issues raised in this blog post, please contact a member of our criminal litigation team.

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