Gender discrimination and juries in the 20th century
| Date | 01 July 2018 |
| DOI | 10.1177/1365712718782990 |
| Published date | 01 July 2018 |
| Subject Matter | Articles |
Article
Gender discrimination and
juries in the 20th century:
Judging women judging men
Andrew L-T Choo
City Law School, London, UK
Jill Hunter
University of New South Wales Faculty of Law, Sydney, New South Wales, Australia
Abstract
This article presents a comparative study of the 20th-century exclusion of women from par-
ticipation on juries. It explains that until the 1970s, and in some cases even the 1990s, sub-
stantial formal limitations on jury franchise were placed on women in Ireland, Canada, the
United States, New Zealand and Australia. This situation existed notwithstanding women’s
equality of political franchise through the vote and despite judicial references to the centrality
of the jury. While in England and Wales women were not treated differently from men in
formal terms after the 1920s, property qualifications denied them substantive equality and
informal limitations excluded women disproportionately. We highlight some distinctive fea-
tures of the English experience as compared and contrasted with the laws and policies on jury
composition operating in other jurisdictions, and ask whether the legacies left by the tradi-
tionally unrepresentative jury and the battles for gender equality offer lessons relevant to
understanding jury trials in contemporary times.
Keywords
Australasia, England and Wales, Ireland, juries, North America, women
Introduction
Trial by jury has embedded in courts the principle of orality, shaped the law of evidence and demanded
lawyers use language that speaks to the people, the community served by the law. At least two out of
three of these elements of our justice system manifest even where no jury is in the courtroom. This article
compares the 20th century evolution of English and Welsh women’s jury franchise rights with the same
Corresponding author:
Andrew L-T Choo, City Law School, 4 Gray’s Inn Place, London WC1R 5DX, UK.
E-mail: andrew.choo.1@city.ac.uk
The International Journalof
Evidence & Proof
2018, Vol. 22(3) 192–217
ªThe Author(s) 2018
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DOI: 10.1177/1365712718782990
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history in Ireland, Australia, New Zealand, Canada and the United States.
1
It reveals that during this
period, excepting some isolated and limited examples, chiefly in the United States, jury franchise—the
‘lay acid’ injected into the ‘closed shop of the legal expert’ (Bankowski, 1988: 20)—was far from
democratic. Instead, particularly in common law courts beyond England and Wales, the law condemned
women’s voices to be unheard in the jury room and women witnesses and women defendants to be sized
up and evaluated by all-male juries. Not infrequently these women testified to wrongs by men—to be
judged only by men. This partial or complete exclusion of 50%of the population over a period far longer
than juries have included women is a tale that has been told frequently about the United States, but
infrequently beyond.
With this backdrop in mind, we explore the grand scale of the jury system’s failure. This article has
two major aims. It shows, first, the widespread and pervasive nature of gender discrimination on
common law jury eligibility throughout much of the 20th century; and, second, distinctive patterns and
practices of exclusion that operated across comparable common law countries, but not in England and
Wales. To this end we detail the Australian experience as broadly representative of particular patterns of
legislative practice and (to a lesser extent) of women’s campaigning which, as we indicate, were
repeated, sometimes with small variations, in the other countries surveyed. The geographic and temporal
spread of this history is striking. It takes place over the first three quarters of the 20th century, extending
on occasion nearly to the 21st century. For Indigenous women in Canada, the United States and
Australia, substantive discrimination continues. Women’s exclusion from juries took place despite
extensive, persistent and insistent campaigning by women’s groups, actions met by trenchant resistance.
This dynamic spanned generations and sits oddly with women’s gaining of the vote.
This article builds on a body of English (see Cornish, 1971; Crosby, 2016, 2017; Logan, 2008, 2013)
and United States
2
work describing aspects of jurywomen history, and also on more isolated scholarly
commentary in the other jurisdictions. What follows is split into pre- and post-World War II. This natural
division enables concentration on the 1919 reforms that operated in England and Wales from the 1920s,
on Irish reforms in the same period and on the widespread inertia that was more common elsewhere; and
then on the most significant reform trends in Australia, New Zealand, Ireland, Canada and the United
States, and the eventual realisation of formal gender equality in all these countries. We note that this
formal equality was not in practice open to all women and we conclude with some observations on the
contemporary relevance of this history.
Before World War II
England and Wales
Historical development and initial reform.
3
While, in numerical terms, women and men are represented
relatively equally on trial juries in England and Wales today,
4
just over two centuries ago Sir William
Blackstone (1979: 348) was writing of the exclusion of women from juries on the basis of ‘defect of sex’
in the following terms:
[I]f a juryman be an alien born, this is defect of birth; if he be a slave or bondman, this is defect of liberty, and
he cannot be liber et legalis homo. Under the word homo also, though a name common to both sexes, the
female is however excluded, propter defectum sexus: except when a widow feigns herself with child, in order
to exclude the next heir, and a suppositious birth is suspected to be intended; then upon the writ de ventre
inspiciendo, a jury of women is to be impanelled to try the question, whether with child, or not.
1. It seems likely that casting the net wider merely restates what this account offers: see, for example, Law Reform Commission of
Hong Kong (2008: [1.5]). For beyond the common law, see Pastovic (2016).
2. See n 50.
3. See further Anwar et al. (2016); Crosby (2017); Logan (2013); Thornton (2004).
4. See below.
Choo and Hunter 193
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