Juror attitudes and biases in sexual assault cases

Sexual assault has among the highest rates of acquittal and lowest rates of proven guilt compared with other offences. Given that more than 70 percent of sexual assault incidents are not reported to police and only about one in 10 reported incidents results in a guilty finding, increasing conviction rates for sexual assault is a key issue for the criminal justice system. This paper presents findings from two recent studies conducted by the Australian Institute of Criminology. These show that juror judgements in rape trials are influenced more by the attitudes, beliefs and biases about rape which jurors bring with them into the courtroom than by the objective facts presented, and that stereotypical beliefs about rape and victims of it still exist within the community. As jurors are members of the community and are randomly drawn in order to be representative of it, the two studies together indicate that successful prosecutions of sexual assault will remain low until we acknowledge that jurors interpret what they see in light of their own beliefs, experience and expectations. We need to know what these belief structures are and how they directly impact upon judgements in rape trials, if conviction rates are to improve. Toni Makkai Director Sexual assault is one of the hardest offences to prosecute. Primarily this is because these offences are usually committed in private, there is often little or no corroborating evidence and it is usually one person's word against another (ODPP & AFP 2005). The onus is upon the Crown to prove beyond reasonable doubt that a defendant is guilty; the defendant is not required to prove innocence. This means that prosecutors have the extremely difficult task of convincing a judge or jury that the offence took place, that the complainant did not consent, and that the defendant knew that the complainant was not consenting or was reckless as to such consent. When it comes down to the word of one person against another, with no witnesses and no other supporting evidence, making a case beyond reasonable doubt is a hard task indeed. Faced with such difficulties and limited resources, prosecutors often need to make hard decisions about which cases to prosecute and which to let go. While the public interest is a factor, prosecutorial decision-making about whether to prosecute a sexual assault case also usually involves a judgement about the probability of success, based on expectations of how judges and juries are likely to view the complainant and her story. Since defendants can, and often do, choose not to give evidence in court, the credibility of the complainant is crucial to whether she is likely to be believed, the ability of the prosecution to convince a jury beyond reasonable doubt and, hence, the probability of a guilty verdict. Through experience, prosecutors develop knowledge about what jurors are likely to look for in a sexual assault complainant, the attributes that might make a good or bad impression on jurors and whether the circumstances surrounding the incident (e.g. prior relationship, alcohol consumption) are likely to reduce the plausibility of the complainant's story in the eyes of jurors. A study of prosecutorial decision-making by Lievore (2004) found that prosecutors were more likely to prosecute sexual assault cases when: * the victim was injured * the victim physically or verbally expressed non-consent * the assault was severe (involved some level of threat or force, weapon use) * there was additional evidence linking the defendant to the assault * the defendant used force * the defendant was a stranger. In a study of New South Wales sex offences, Fitzgerald (2006) found that criminal proceedings were more likely to be instigated where the incident involved aggravation and was reported to police earlier rather than later. Essentially, the above are indicators which either support the evidence given by the complainant (injury, severity, weapon use) or which reflect community preconceptions about 'real' sexual assault cases (rape is committed by strangers, a victim would always clearly articulate that she was not consenting to sex and would physically fight against it). …