New research finds jurors do not subscribe to rape myths and casts doubt on mock jury studies

The work, undertaken by academics at University College London, is also informed by research that casts serious doubt on the value of mock juries as a proxy for real jury attitudes.

North of the border, the Scottish government is relying on mock jury research to inform proposed changes to the criminal justice system, including the abolition of the Scots ‘not proven’ verdict.

Between 2017-2019, Professor Cheryl Thomas, director of the UCL Jury Project, conducted research commissioned by the then President of the Queen’s Bench Division, Sir Brian Leveson, to inform the senior judiciary on whether they needed to change how jurors are directed in rape cases.

The research involved 771 jurors, belonging to 65 discharged juries in four different regions.

Concerns have arisen in recent years over the conviction rate in rape cases and the possibility that this is lower than it should be because juries believe in rape myths. A petition to Parliament in 2018 called for jurors to be given training in such myths, citing various anecdotal sources. Calls have also been made, in the absence of any empirical evidence, for the complete abolition of juries in rape trials.

Professor Thomas writes: “None of these claims were based on any research with actual juries in England and Wales. Instead they have relied on public opinion polls, a single study that used students and volunteers to act as proxy (“mock”) jurors and anecdotal views of prosecutors in rape cases who were asked post-acquittal why they thought they did not achieve a conviction in their cases.”

The petition claimed that, compared to other crimes, the conviction rate in rape cases is 21 per cent lower.

Professor Thomas, however, could find no source for this figure.

She states: “It is unclear what the source could be of the statistic cited that the conviction rate in rape trials is 21 per cent lower than other crimes.”

In fact, the data show that the conviction rate is comparatively higher.

“Detailed research on all jury verdicts in all courts in England and Wales over a substantial period of time had already shown that juries convict in rape cases more often than they acquit, and that the jury conviction rate in rape cases is higher than it is for other serious crimes such as attempted murder, GBH, and threatening to kill.”

The research found that “hardly any jurors believe what are often referred to as widespread myths and stereotypes about rape and sexual assault”.

The vast majority of jurors “do not believe that rape must leave bruises or marks, that a person will always fight back when being raped, that dressing or acting provocatively or going out alone at night is inviting rape, that men cannot be raped or that rapes will always be reported immediately”.

The finding of a serious disparity between the beliefs of actual jurors compared with those of non-jurors is supported by a separate study the unit undertook, which found that most jurors are reluctant to even serve on juries.

In this survey, 87 per cent of 1,175 jurors said they would have opted out if jury service were voluntary. In contrast, there is an inherent self-selection bias in mock juries that makes them a poor proxy for real ones.

Professor Thomas writes: “Regardless of how demographically representative a group of volunteer “mock” jurors are, the very fact that they have volunteered to take part in a mock jury study means they cannot be representative of the vast majority of those who actually serve on juries in England and Wales.”

Thomas Ross QC welcomed the research.

He told Scottish Legal News that the courts have taken clear steps to address misperceptions that juries may have.

He said: “Professor Thomas’s Research is extremely interesting.

“In the case of Donegan in 2019, the Scottish Appeal Court noted that ‘in recent years, in line with the approach in other jurisdictions, notable steps have been taken in Scotland seeking to address and demystify for court users various supposed “myths” associated with the reporting of and the reliability of rape allegations and to improve the experiences of those involved and those giving evidence. Procedures have been adopted to address the perceptions of the jury and the requirement of their role, most notably section 288DA’.

“This section requires a judge, in certain circumstances, to direct the jury that there can be good reason why a complainer may delay in reporting a sexual crime, with the result that such delay does not necessary mean that the allegation is false. A similar provision (288DB) requires a judge, in certain circumstances, to direct the jury that the absence of physical resistance or physical force does nor necessarily mean that the allegation is false.”

Mr Ross added that these sections were introduced in the Abusive Behaviour and Sexual Harm (Scotland) Act 2016, which, by the Scottish government’s own admission, was “designed to challenge any preconceived notions jurors may have about how a person should react when they are victims of a sexual offence”.

“In other words, it was a response to ‘rape myths’. Of course, in 2017 there was absolutely no evidence that jurors had preconceived notions of that sort – there still is no evidence in 2020,” he said.

“The ‘rape myth’ argument has been used to justify the abolition of the requirement for corroboration and even used to argue for the removal of juries in sexual offence trials – despite the complete absence of any evidence to support their existence.

“Professor Thomas’s work will hopefully put an end to those arguments – and allow an evidenced-based approach, free of hyperbole, to address difficult task of ensuring a fair hearing for accused persons and complainers.”

A Scottish government spokesperson told SLN: “Any potential reform would not be based solely on any one piece of research. That’s why, prior to the Covid-19 pandemic, a broad range of stakeholder events were underway to seek views on all of these findings and any implications they may have for criminal justice reforms.

“This work has now resumed and we will publish a summary of these discussions in due course.”