What do we know about ‘rape myth’ research and the claim that there is ‘overwhelming evidence’ that juries are prejudiced in rape trials?
| Published date | 01 April 2024 |
| DOI | http://doi.org/10.1177/13657127231217510 |
| Author | Stuart Waiton |
| Date | 01 April 2024 |
What do we know about ‘rape myth’
research and the claim that there is
‘overwhelming evidence’that juries
are prejudiced in rape trials?
Stuart Waiton
Abertay University, Bell Street, Dundee, DD1 1HG, UK
Abstract
This paper examines the research by Fiona Leverick and demonstrates the methodological
flawsinmuchofthe‘rape myth’and mock jury research. Other ideas about rape myths and
the ‘justice gap’are explored and seen to be questionable. Furthermore, through a detailed
examination of the rape myth acceptance scales, which Leverick describes as being ‘scien-
tifically validated’, we trace the ideological and political-ethical nature of these scales and
show a clear one-sidedness in how researchers have used them. Most particularly, we find
that there is one-sidedness when it comes to the question of victim empathy. One result of
this is that mock jury research has indicated that victim empathetic participants are finding
individuals guilty of rape, despite the lack of evidence, and almost nothing has been said
about the potential miscarriages of justice being demonstrated in these cases. The argu-
ment is thus made that rather than there being overwhelming evidence of rape myth pre-
judices amongst the public, there appears to be a one-sidedness amongst most rape myth
researchers that is encouraging a sentiment of victim empathy that could distort the prin-
ciples of justice regarding defendants being innocent until proven guilty based on a need to
prove guilt beyond reasonable doubt.
1
Keywords
feminism, jury, justice, justice gap, mock jury research, rape myth, Scotland
Corresponding author:
Stuart Waiton, Abertay University, Bell Street, Dundee, DD1 1HG, UK.
Email: s.waiton@abertay.ac.uk
1. Beyond reasonable doubt has been replaced by ‘satisfied that they are sure’in England and Wales but the original definition will
continue to be used in this paper.
Article
The International Journal of
Evidence & Proof
2024, Vol. 28(2) 154–177
© The Author(s) 2023
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/13657127231217510
journals.sagepub.com/home/epj
Introduction
In her paper on rape myths and jury decision making, Fiona Leverick argued that there was ‘overwhelm-
ing evidence that prejudicial and false beliefs held by jurors about rape affects their evaluation of the evi-
dence and their decision making in rape cases’(Leverick, 2020: 255) (my empahsis). Subsequently, in
2021, the chief legal officer in Scotland, Lord Advocate Dorothy Bain, made a case for juryless trials
in rape cases and explained that ‘We should be properly informed by the work of Fiona Leverick’
(Taylor, 2021). Juryless trials have become a reality in Scotland, or at least a potential reality following
the proposal made in the Scottish government’s Victims, Witnesses, and Justice Reform Bill, published in
April 2023. In the online factsheet explaining this proposal, Leverick’s paper is highlighted as showing
the ‘influence of rape myths’(Scottish Government, 2023). Supporting the juryless trial project, chief
executive of Rape Scotland Sandy Brindley explained that there was ‘overwhelming evidence’that
jury members are influenced by ‘rape myths’(Green, 2023).
Despite the claim that there is ’overwhelming evidence’supporting the need to have juryless trials in rape
cases, the reaction against the proposal has been significant. Back in 2021, president of the Scottish Criminal
Bar Association Tony Lenehan warned against the potential elitism of lone judges overseeing rape trials,
noting that serious criminal cases of this kind are ‘ill-suited to judgment by a single mind drawn from an
entirely middle aged, affluent, university educated pool of people’. At this time, defence advocate Thomas
Ross described the idea of juryless trials as an ‘authoritarian nightmare’(Taylor, 2021).
2
By May 2023 the Scottish Bar Association that represents criminal defence solicitors announced that
there would be a boycott of the pilot scheme for juryless trials, something that meant the proposed project
would potentially not go ahead. Vice president Stuart Murray said that the pilot project was a ‘blatant
attempt to increase conviction rates’, noting that failings in rape cases related more to the investigative
stage and the difficulty of proving beyond reasonable doubt cases where there is often a lack of evidence
such as CCTV footage and extensive witness testimony (BBC, 2023).
Academic papers and research projects assessing rape myths have been produced since the 1970s
(Brownmiller, 1975). They have often been motivated by the relatively low conviction rate of rape
cases. Much of this research promotes the idea that there are ‘rape myths’that limit the possibility of
guilty verdicts in rape cases. In the last decade, Fiona Leverick has become one of the leading academics
exploring this idea, indeed her name is mentioned 19 times in Lady Dorrian’s document, Improving the
Management of Sexual Offence Cases, a document that led to the proposed Victims’Bill (Scottish Courts,
2021). What Fiona Leverick did in 2020 was to pull together past research to demonstrate that the evi-
dence of prejudicial and false beliefs held by juries was ‘overwhelming’. Partly as a result of her work,
this understanding has been used as a basis to have juryless trials in rape cases.
Here we will examine Leverick’s claims in detail to ascertain the extent to which there is or is not over-
whelming evidence of rape myths in society.
Methodological problems of Fiona Leverick’s claim of ‘overwhelming
evidence’
In May 2023 Fiona Leverick and co-authors James Chalmers and Vanessa Munro argued that the pro-
posed Victims, Witnesses and Justice Reform (Scotland) Bill was ‘without doubt one of the most
2. In April 2023 the former UK Supreme Court president Lady Hale opposed the project and argued that it was not juries that were
the problem but rather, more work needed to be done earlier in the process, like police investigations and proper maintenance of
evidence. Furthermore, Hale gave a warning about the potential to undermine the legitimacy of the legal system, stressing the
‘importance of a fair trial in criminal cases –it’s not only to convict the guilty, it is to reassure the innocent that they won’tbe
wrongly convicted. That’s a major reason for all of us being law abiding: the reassurance of a fair trial if you are accused of a
crime.’Available at www.scottishlegal.com/articles/lady-hale-warns-against-juryless-trials (accessed 23 June 2023).
Waiton 155
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