Much has been written about jury trials since the #MeToo wave came crashing through society. The movement that began with questioning men’s behaviour towards women has now rolled swiftly through to a questioning of the systems and establishments that either implicitly facilitate or expressly encourage sex offending. I’m interested in turning this critical lens in on the legal process itself.
In Australian courts the judges decide matters of “law” and juries are tasked with determining questions of “fact”. It’s a critical distinction, albeit with blurry edges. A judge may exercise his or her discretion to temper an aggressive cross-examination, and has some room for movement in how to answer a question from the jury about the definition of “consent”. A judge will decide whether evidence of prior sexual history -- either the complainant’s or the defendant’s -- is admissible. Critically though, it is the jury who decide if the actual elements of a criminal offence have been made out. In a trial for sexual assault between adults (as distinct from child sex offences, where consent is rarely a live issue), this means that in a “he said, she said” scenario, the final decision on who to believe is up to 12 random members of society.