The fact-finder in sexual violence cases
Juror decision-making in sexual violence cases: the issues
6.11In the following paragraphs we assess the issues with relying on juries as fact-finders in sexual violence cases. These fall into two broad categories:
- questions about the information and experience on which jurors tend to rely when making decisions in sexual violence cases (which may be called the “decision-making” problem); and
- the harmful effect on complainants of the presence of the jury at trial (which may be called the “harm” problem).
The decision-making problem
6.12The field of sexual violence is one that is commonly misunderstood by people without training or education in the area. Research has revealed that widely held assumptions about how frequently sexual violence occurs, and when, where and against whom it occurs, are usually incorrect and do not reflect the reality of sexual violence: see Chapter 1. Although the jury is intended to apply combined common sense and life experience to ascertain the facts in a criminal case, one might suggest this function is inhibited when applied to an area of human conduct that is frequently subject to misconceptions and misunderstandings.
6.13As such, the role of fact-finder might be better filled by someone with prior training and education in the particularities of sexual violence. In this vein, in a previous Law Commission review of juries generally, one submitter said, speaking particularly to the use of juries in sexual violence cases that:
experts who have a thorough knowledge of rape trauma would understand aspects such as shock, impact, further contact with rapist etc. … Only those who are thoroughly educated in the area of rape trauma are properly equipped to make informed judgements – a jury is not.
6.14The dominant model for understanding juror decision-making generally is that jurors create a narrative structure – a “story” – to interpret and measure the evidence presented to them at trial. However, different jurors construct different stories based on the same evidence, which researchers have concluded is the result of jurors’ different experiences and beliefs about society – their “social world” knowledge. This has ramifications for decision-making in sexual violence cases, because it has been established that a layperson’s “social world” knowledge about sexual violence – where it occurs, and against whom, and how the perpetrator and victim react to it – is frequently wrong or misconstrued. It does not align with established research into sexual violence and sometimes runs directly counter to it. Thus, assuming that a juror relies heavily on his or her social world knowledge to construct a narrative structure and understanding of a sexual violence case, the decision that a juror reaches in that case may be based on knowledge that is fundamentally incorrect.
6.15These issues should not be overstated. There is research evidence that jurors are generally extremely conscientious in approaching their task and, to the extent that individuals bring prejudices and myths to the jury room, these may be counteracted or at least mitigated by the collective jury process.
6.16However, the core problem with jurors deciding sexual violence cases is not necessarily one of individual juror prejudice. In one jury study it was noted that in some of the sexual violence trials, individual male jurors expressed “strongly sexist” views either about their fellow jurors or about the case itself. Such views, when they are presented by individual jurors, may be able to be overcome in the process of collective decision-making that a jury goes through, and in the case referred to, that is what happened: the rest of the jury over-rode those views and the defendant was convicted. But the problem is not necessarily individual juror prejudice or sexist views; rather, it is the idea that “common sense” and experience can be applied to the facts of a specific form of criminal offending which, because of its distinctive features, is at risk of illegitimate reasoning and incorrect decision-making when handled by people who have no prior expertise in the area.
6.17The Australian Institute of Criminology carried out two studies of juror decision-making in sexual violence cases in 2009. The studies revealed that jurors had pre-existing attitudes about sexual violence that they brought to trial; that these influenced their views on whether the complainant was credible and whether the defendant was guilty; and that those pre-existing attitudes were more influential than the facts of the cases and the manner in which evidence was given in the cases.
6.18Previous research also suggests that jurors sometimes do not feel comfortable convicting in the absence of “hard” evidence, even if they are satisfied that a complainant is telling the truth and feel sure of the guilt of the accused. Research that the Law Commission was involved in as part of its Juries project in 1999 indicated that some jurors felt that a charge could not be “proved” in the absence of tangible evidence to verify their view. While “hard” evidence can quite legitimately be expected to make a case more robust, that has ramifications for sexual violence cases where there is often no conclusive evidence of physical harm or injury resulting from the incident.
6.19A study by Blackwell and Seymour looked at trial outcomes in 137 trials related to charges of sexual violence against children. They found that the three individual variables most predictive of conviction in those cases were propensity evidence, evidence from an actual witness to the offending, and positive medical evidence or DNA. The authors concluded that, given the particular characteristics of sexual violence cases and that corroborative evidence is usually absent, a more inquisitorial approach with specialist courts and judges might be required, at least in cases of sexual violence against children.
6.20Another associated problem is that 12 individual jurors in a sexual violence case may find it more difficult to come to a verdict if they are affected by cultural misconceptions about sexual violence or if they are apprehensive about convicting in the absence of conclusive physical evidence, even if they are satisfied that the requirements of the offence are made out. “Hung” juries may be more common in sexual violence cases. A hung jury usually results in a retrial and retrials put complainants at significant risk of re-traumatisation because they are required to go through the whole process again.
6.21One senior prosecutor we spoke to said that they are “reasonably often” in the position of asking complainants to go through trial again because a jury has been unable to agree and a retrial has been ordered. Figures from the Ministry of Justice do suggest that retrials are more common for cases involving sexual violence than for cases involving other kinds of criminal offending. In 2014/2015, 37 of the trials in the District Courts that involved sexual violence were retrials. Expressed as a percentage of the total number of cases of sexual violence heard in the District Courts that year, this amounts to eight per cent. In contrast, only 0.8 per cent of the total number of criminal trials heard in the District Courts that year were retrials.
The harm problemTop
6.22The second main problem in sexual violence cases is the “harm” problem. The need to give evidence of the alleged sexual violence in front of a group of 12 strangers may put complainants at risk of harm. It can be expected that it is often more difficult to give evidence before a jury than before a single person who is acting as a fact-finder (such as a judge). In small towns, it is possible the complainant could cross paths with jurors in the future. One consequence may be that the complainant’s anxiety at having to give evidence may affect the fullness of their disclosure and therefore the quality of their evidence.
6.23Another concern goes to the nature of the questions asked by defence lawyers in the presence of the jury. Questions may draw on rape myths and stereotypes, seeking to engage juror misconceptions and “social world” knowledge about how victims or perpetrators of sex offences should behave, but which is usually not borne out by the research. The presence of the jury may exacerbate the problem because jurors can bring pre-existing, misconstrued knowledge about sexual violence into the court room, which defence lawyers can use to benefit their client’s case.
6.24We observe in Chapter 4 that cross-examination is a fundamental feature of the criminal trial in New Zealand, but when conducted in front of a jury it can encourage the “theatre” of the criminal trial, in a way that causes harm to a complainant which is beyond what is necessary in the process of testing his or her evidence.
Views of submitters and consulteesTop
6.25Submissions to the Issues Paper made various arguments against the current jury system. Some individual submitters expressed their lack of faith in juries to come to the right decision to the effect that “there is no place for juries in a creditable justice system”.
6.26Some submitters, though, had faith in the jury to come to the right decision. One submitter who had acted as a lawyer on or observed a number of sexual violence cases said:
I cannot recall a trial where I have walked away from the Courtroom after a not guilty verdict with misgivings about the verdict. I have never felt that I had been party to a miscarriage of justice in that a guilty person has been acquitted… almost always the jury’s decision has been a sensible one.
6.27Submitters made other arguments against the current jury system including that:
- Modern trials can be highly complex and lengthy, and use a great deal of resources for jurors, staff, and judges.
- Jury composition is based on an “arbitrary lottery” and members are not considered representative of the community – many professional people excuse themselves due to work commitments leaving mainly unemployed or retired people to act as jurors so that the modern jury no longer constitutes trial by one’s peers.
- Some jurors have difficulties evaluating the evidence and/or maintaining objectivity and jurors do not have the skills or experience in estimating or evaluating demeanour, inference, probability, cumulative facts and other abstract issues involved in a trial.
6.28The New Zealand Law Society and the Criminal Bar Association, in their submissions on the Issues Paper, did not support a move away from the jury model for a number of reasons, including that citizens should be able to sit on juries and participate in the criminal justice system. The Public Defence Service communicated a similar view, noting that “juries allow for public involvement in the criminal justice system, creating confidence as a result”. They warned against “assuming” that juries are vulnerable to misconceptions about sexual violence or are incapable of following directions regarding their task.
6.29They also noted that “[t]o find that jurors’ decision-making is suspect in sexual trials would necessarily undermine the use of juries in all trials”. We do not think this is necessarily the case given that certain features of sexual violence that make it less amenable to trial by jury are not inherent in all forms of criminal offending.
6.30The reference group with whom we corresponded during the drafting of this Report (see paragraph 1.60) said that the framework of the jury system and the requirements it imposes are the cause of most of the damage done to complainants in the current trial process. The jury is the source of “the essence of the trial problem and poor complainant experience.”
6.31That reference group also noted the disadvantages of the lay juror model in terms of resourcing, time, and legal complexity. If the current jury model were changed, that would significantly cut down time and resources required to be spent on admissibility of evidence, modes of evidence, propensity and veracity evidence, counter-intuitive evidence, and judicial directions required for a lay jury of 12 – with this workload being repeated in every jury trial. The same could be said of all jury trials, but for a trial involving sexual violence, speedy case disposal is likely to be particularly desirable for the complainant (see Chapter 4).
6.32The nature of sexual violence is such that, as a form of criminal offending, it is not well suited to fact-finding by a jury comprised of 12 laypersons. Both the decision-making problem and the harm problem need to be addressed through legal and policy reform of some kind.
6.33A number of people consulted on this issue believed that the only effective reform proposal that can meet these problems is to change the fact-finder in sexual violence cases. This requires consideration, then, of what could replace the jury as fact-finder in sexual violence cases, which we do below.