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After years of consultations and reports, the Scottish government is proposing to conduct a pilot to test out running rape trials with just a judge – and no jury.
The conviction rate in Scotland for rape and attempted rate is woefully low. Only 51% of trials lead to a conviction, which is simply not acceptable in a modern justice system. Reform is clearly needed to increase convictions.
The idea to run juryless trials is tied to concerns that this low conviction rate is in part due to rape myths held by jurors. Rape myths are false beliefs about rapists, people who have been raped and the act of rape or sexual assault itself. It’s the belief that people who have been raped are at fault if they wore “revealing” clothing, for example. It’s an assumption that people commonly lie about being raped for revenge purposes.
Research has consistently shown that rape myths influence juror decision-making. The more accepting of rape myths a juror is, the more likely they are to judge the accused with a not guilty verdict.
Jurors who believe, for example, that intoxicated people are partially to blame if they are assaulted, that male sexuality is “uncontrollable” or that rape only ever happens as a violent crime committed by a stranger are more likely to give a not guilty verdict in rape trials.
It is not only jurors who are affected by rape myths, however. Judges are, after all, also human. They are fallible and could be potentially influenced by rape myths. Therefore, it is unlikely that judge only trials will stop the role that rape myths may play in decisions about verdicts.
Psychological research has shown that experts develop routine and automatic cognitive short cuts so as to make their decision-making fast, efficient (and often accurate). Through experience, experts learn what information to use and what information to ignore, which allows their decision making to become more efficient. However, this efficient cognitive system can sometimes filter out important pieces of information incorrectly (such as when a particular case has an abnormal feature or the expert does not have experience of a particular case issue). It can lead to overconfidence, which can make the decision maker less likely to take advice from others. Expertise can be paradoxical in this way. It can lead to an over-reliance in bias.
Judges and other legal experts are therefore not immune to bias. Research has found that the decisions made by magistrates, for example, are more aligned with biased decision-making models than rational decision-making models. Their decisions are inconsistent across their own caseload and inconsistent when compared to the decision-making of other magistrates. If their decisions had been rational, we could expect significantly more consistency.
Extra-legal factors, even trivial ones such as whether judges have had lunch, have been shown to bias judges’ decisions. And despite their prevalence, judges have rarely been shown to counter rape myths in their courtrooms. Together, the evidence makes clear that there is reasonable doubt as to whether juryless trials will positively influence rape trials.
Flawed pilot
The pilot is also unlikely to give an accurate reflection of what would happen were juries to be removed from rape trials.
Government ministers will review the results of the pilot to see if the conviction rate climbs, which is, in itself a serious problem. Any potential review of judicial decisions by ministers may undermine the independence of the judiciary. Likewise, it may potentially bias (explicitly or implicitly) judges into reaching guilty verdicts during the pilot. This pressure may also lead to an inflation of convictions during the pilot, which may not continue post-pilot once supervision from the executive is removed – hardly ideal conditions for establishing fair legal procedures from the perspective of either the accused or the accuser.
Judges are also likely to be more aware of the low conviction rates in rape trials than jurors, again, leading to a pressure on the decision maker to convict. This pressure or bias would outlive the pilot. Retired judge, Lord Uist, recently made similar warnings.
The change being proposed is a drastic one, yet it is unlikely to benefit anyone. From a complainer’s perspective, it is unlikely that the conviction rates will increase dramatically (due to rape myths influencing the judiciary). If they do, this change will be caused by pressure in the system for an increase in convictions and not due to a more rational or fair evaluation of the evidence from the decision maker.
The accused, meanwhile, will no longer be judged by a jury of their peers, rather their fate will be made by a legal professional, employed by the state. That means only a certain view of the world will inform the decision that will drastically alter their life, rather than multiple perspective from all avenues of society.
The change may even decrease confidence in the jury system more generally. Why are jurors competent enough to reach verdicts in murder trials but not rape trials, members of the public may ask. Juryless trials in rape cases may be the first step to the removal of jury trials all together.
A jury selection process would be an alternative strategy for increasing convictions in rape trials and for attenuating the role that rape myths play. Jurors who display a tendency towards rape myths would be screened for and removed from the jury pool using scientific measures such as the Illinois Rape Myth Acceptance scale. This would be a sounder approach than removing juries. In combination with this, rape myths can also be targeted by educating both prospective jurors and young people in schools – and even judges – about the dangers of rape myth. Hopefully education would also remove rape myths from society before individuals are selected to be jurors.
The authors do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.
