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Jury Directions in Rape Trials in Scotland

Document Cited authorities 3 Cited in Related
Vincent
Author
DOI10.3366/elr.2016.0324
Pages76-82
Published date01 January 2016
Date01 January 2016

The Scottish Government introduced the Abusive Behaviour and Sexual Harm (Scotland) Bill into the Scottish Parliament in October 2015. The Bill includes provisions that will create a statutory requirement for judges to issue juries with specific directions targeting public misconceptions in sexual offence trials.1

Abusive Behaviour and Sexual Harm (Scotland) Bill (as introduced) s 6, available at http://www.scottish.parliament.uk/S4_Bills/Abusive%20Behaviour%20and%20Sexual%20Harm%20(Scotland)%20Bill/SPBill81S042015.pdf (henceforth the “Bill”).

This measure was one of the proposals in the government's earlier consultation paper, Equally safe – reforming the criminal law to address domestic abuse and sexual offences.2

Scottish Government (2015) (henceforth “Equally Safe”), available at http://www.gov.scot/Publications/2015/03/4845. The proposal follows a manifesto commitment, see Scottish National Party, Manifesto 2011 (2011) 19, available at http://votesnp.com/campaigns/SNP_Manifesto_2011_lowRes.pdf .

 If enacted, the proposal will be the first instance in Scots law of a statutory requirement for judges to issue jury directions. This note considers the evidence supporting the introduction of the proposed directions in rape trials and discusses some of the factors on which their potential value will be likely to depend JUROR MISCONCEPTIONS IN RAPE TRIALS

The Bill includes provisions for jury directions to counterbalance the prejudicial misconceptions that can exist amongst jurors in sexual offences trials in relation to delayed reporting by the complainer or the absence of either physical force by the perpetrator or resistance by the complainer.3

Scottish Government, Abusive Behaviour and Sexual Harm (Scotland) Bill: Policy Memorandum (2015) 10–14.

The traditional difficulty in demonstrating prejudicial attitudes amongst jurors in sexual offence trials has been the secrecy of jury deliberations.4

The Contempt of Court Act 1981 s 8 prohibits research into jury deliberations.

This can lead some to question the extent to which such prejudices exist amongst jurors.5

See, e.g., The Law Society of Scotland, Equally Safe – Reforming the criminal law to address domestic abuse and sexual offences, Consultation Response (2015) 3, available at https://www.lawscot.org.uk/media/538818/crim-equally-safe-reforming-the-criminal-law-to-address-domestic-abuse-and-sexual-offences.pdf.

However, there is now a well-established international literature that provides robust evidence of these attitudes and their influence. Mock jury research shows that in rape cases, for example, jurors' assessment of the credibility of a complainant is often based upon, and adversely affected by, inaccurate pre-existing attitudes about how a “real” victim of rape would react.6

See, e.g., L Ellison and V E Munro, “Reacting to rape: exploring mock jurors' assessments of complainant credibility” (2009) 49 BJ Crim 202; N Taylor and J Joudo, The Impact of Pre-Recorded Video and Closed Circuit Television Testimony by Adult Sexual Assault Complainants on Jury Decision-Making: an Experimental Study (2005).

 These include the mistaken beliefs that victims would physically resist a sexual attack and exhibit signs of external or internal physical injury, and would report the incident immediately to the police.7

Ibid.

 Other mistaken assumptions are that victims would be visibly upset when giving testimony at trial.8

Ibid.

 It has long been recognised that the defence seeks to exploit these types of expectations in rape trials,9

See, e.g., G Chambers and A Millar, “Proving Sexual Assault: Prosecuting the Offender or Persecuting the Victim?” in A Worrall and P Carlen (eds), Gender, Crime and Justice (1987) 58–80.

 and mock jury research increasingly indicates the extent to which a complainant's perceived failure to meet them can underpin a not guilty verdict.10

Ellison and Munro (n 6).

The research supports the government's position in both Equally Safe and the subsequent Bill, by indicating that these prejudicial misconceptions or “rape myths” do exist and are widely held amongst jurors.11

See, e.g., L Ellison and V E Munro, “Turning mirrors into windows? Assessing the impact of (mock) juror education in rape trials” (2009) 49 BJ Crim 363.

Juror attitudes continue to be identified in Scotland, as elsewhere, as one of the main difficulties associated with prosecuting rape cases.12

Crown Office and Procurator Fiscal Service, Review of the Investigation and...

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