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.
Only, they aren’t so random.
Bias and perceived bias
I was a judge’s associate for a year; the person who (amongst many other things) pulls names out of a barrel and marks them on the record when an individual is empanelled. In the courtroom there were four printed copies of the jury list. This lists the names, postcodes, and professions of the people who are waiting to see if I pull their name from the barrel. Once I call a name, both the prosecution and defence have about 20 seconds to find the name on their list and have a good look at the person. Each side has eight opportunities to veto — without giving reason — any person they don’t want on the panel.
A legitimate use of these vetoes is, for example, avoiding people who live in the same postcode as where the offending allegedly took place. A not-so legitimate use is when defence often challenge “students” and young-looking people because it’s common knowledge that young people are quicker to convict. Older people are said to have more perspective and will take pause before locking someone away. There is a growing body of research showing when jury prejudices do and do not affect the outcome of a trial. What’s most interesting and what actually has the biggest effect on the way justice is done in Australia, is that the legal professionals think juries are biased.
The highest point of case attrition for complaints of sexual assault is at the police stage. The second-highest point is when the police hand a brief of evidence over to the Department of Public Prosecutions. The reason for this attrition is that police officers and prosecutors exercise discretion in choosing which complaints to proceed with and which ones to drop. A large consideration is of course, how they think the matter will run at trial.
This is where a police officer’s projection of prejudice of a juror is more critical than any potential actual prejudice of a juror. Sex offence complaints are more likely to get to trial where the alleged assault also included the presence of a weapon — a knife, for example. Is this because police officers and prosecutors find it hard to believe women complaining of sexual assault, or because they think juries don’t believe women? Possibly both; they enable each other.
When I was an associate, many women whose names I’d called out and who had not been vetoed asked the judge to excuse them from sitting on the jury in a sex offence trial because they themselves had experienced something similar, and they didn’t want to sit through such evidence. The judge allowed their request, of course, but logic suggests this means that victims of sex offences are less likely to end up deciding guilt than perpetrators of sex offences.
The AIC says most sex offenders are not repeat offenders. And if Our Watch is to be believed — that one in five women are survivors of sexual violence — then some basic math suggests we should have one or two survivors as well as one or two perpetrators of sexual violence on every jury panel. Except then the survivors ask to leave, and what started out as an attempt at a genuine cross-section of society is now older, male, and more likely to have offended than ever been offended against.
What can be done?
So what is the answer to all this unfairness? On the tour for my book Eggshell Skull I was asked almost every night what we could “do” about juries. Judge-alone trials are unappealing because it is important to have the public involved in the legal process; to have someone judged by their peers is a more powerful thing than a robed, remote arbiter. However, the law would look a lot more like justice if we acknowledged the connections between the moments of a defendant being charged, then arraigned, then receiving a verdict. These are not discrete, severable occasions. Prejudices and presumptions flow up and down between them.
We could prevent juror vetoes on the basis of age, then tell police officers and prosecutors that many more young people were going to be on juries, and that they ought to be more optimistic of securing convictions in allegations of intercourse continuing after consent was withdrawn. We could agree on a progressive definition of consent which is given to judges, juries, and also to first responders, so that right from the beginning, there was continuity in the attitude of the system a complainant must step through. Other countries do it better. In Austria two jurors must be the same gender as the complainant. What a message that could send — that the system itself was aware of the potential for subconscious bias, and was trying to fight it.
UK juries in the 12th century were once made up of “12 law men”. The common law system we have inherited is a biased one. Let’s together accept that the mechanisms of law are always capable of improving and progressing, to look more like justice in an age of equality.
If you or someone you know is impacted by sexual assault, domestic or family violence, call 1800RESPECT on 1800 737 732 or visit 1800RESPECT.org.au. In an emergency, call 000.