Stacey Dooley: Rape on trial

I found what the defence lawyer said very interesting. If you are not certain they are guilty then you should say not guilty because it’s better for 9 guilty people to go free than 1 innocent person to go to prison.

But in a ‘he said, she said’ case which rape often is - you can never be certain of who is telling the truth? And to me that’s why so many get found not guilty or the case falls apart.

With non-stranger rape where the defence is consent, the standard of beyond reasonable doubt (or ‘can you be sure’ is what judges suggest now) is hard to satisfy.

The issue is that people have become very used to having ‘solid’ evidence of a crime in the form of CCTV (very unlikely in rape), DNA (irrelevant if consent is the issue) and some form of financial trail (again not relevant).

In rape, the main evidence is oral and circumstantial.

I was on a jury for a historical rape many years ago. We ended up convicting on an 11-1 majority. I was a second standout for a while, although I always thought he did it; my issue was I thought he was 80% likely to be guilty, as opposed to being sure. The standout was a computer programmer, probably on the spectrum. He was never going to be ‘sure’ as he thought very much in binary.

I don’t think there is an easy solution. Maybe guidance should include the idea that oral evidence, even in the technological era, can still be decisive. But no one wants innocent people going to jail and I suspect that, even those who write fervently on here that women should be believed, would think differently when they actually had to take the decision based purely on oral testimony.

It’s not just about people lying. I believe in rape cases it’s not merely whether the accuser consented but whether the defendant had a reasonable belief that the accuser consented. Which makes things harder for the jury.

Also men worrying about being “falsely accused” is always baffling to me given men are more likely to be sexually assaulted than they are falsely accused.

This is not 100 accurate.

It is not solely about evidence as frequently the fact sexual interaction occurred is not disputed. What is most often disputed is whether it was consensual. And on that regard belief is a key aspect.

It’s why “stranger rapes” have a higher conviction rate as the jury are more likely to believe a victim’s account that no, she did consent to have sex with the strange guy she just met as she was running through the park.

It just seems like where the two parties know each other juries are more likely to have reasonable doubt (and of course other factors come into play too.)

And of course there is the reality that sometimes in these situations both the accused and defendant vehemently believe their version of events.

That Channel 4 programme was utter shite if you've ever sat on a jury. A jury can only discuss the case when every juror is present. There's no deliberating until all the evidence has been heard. If anyone is not abiding by the rules you would let the judge know. I watched part of an episode and found it such a distortion of what goes on that I couldn't watch it all.

I think all cases are very hard to decide when they're largely down to circumstantial evidence or simply who to believe, particularly if each party believes what they're saying, but obviously then there are nuances depending on the law relating to the offences being tried. I don't have a solution, but I do think that the treatment of women as a whole by society has to change and then this will filter through.

On the case I was on the jury for I honestly cannot tell you what some of the jurors actually believed because they never vocalised it in the jury room and we did a series of anonymous votes. We were allowed majority decisions at the direction of the judge. I very firmly believe the correct decisions were reached.

The "problem" is that a guilty verdict in a criminal trial requires proof "beyond reasonable doubt" and in rape cases there is rarely such proof. It's not enough to be 80% sure the defendent is guilty, if you're only 80% sure you have to go with not guilty.

Where a rape case is a Hanratty-style rape, i.e. the alleged-attacker claimed never to have met the victim and it was a case of mistaken identity, proof can be found (as in the Hanratty case, after several decades of people claiming he was wrongly hanged advances in forensics found his semen on the victim's clothing, which kind of sunk the argument he wasn't there).

The rape cases where both parties agree they had sex but the man claims it was consensual and the woman claims it wasn't are much harder to prove beyond reasonable doubt. "I didn't consent" isn't proof the victim didn't consent. People lie. Someone is definitely lying and it can be hard for a jury to know for certain who.

I think the divide between men siding with not guilty and women siding with guilty is that a woman thinks "I could be the victim" and a man thinks "I could be falsely accused". Either way these feelings should be irrelevant, but if you take the emotion out of it, you'd probably have to side with the defendent.

I also agree that juries should be random, otherwise we start going down a slope like the USA where jurors are asked questions pre-selection which raises all sorts of issues around fairness and bias. It's easy to think women will be more likely to convict in rape cases, but women also have their own biases. I think some of this comes from a almost trying to reassure themselves eg I won't be raped because I don't walk home on my own or because I don't dress like that or I'd never get in that situation. I don't agree with any of those things, but it's easier to think that than accept that anyone of us could be in a situation where we are raped. It's a way of feeling like you have some control over it whereas in reality that's not true. I think in the documentary (I've not watched it all properly yet) one jury which was 9 females still found the defendant not guilty.

I hate that I believe this, but I don’t think it’s true to say that all women jurors would side with a female victim. There will be some that think, “That could be my son, brother, husband.” I can understand that to a certain extent.

What I will never understand is misogynistic women. Those who believe that women whose lifestyle - clothes, social habits, sexuality etc. is a green light for predators. Women with those views can be jurors too.

I will admit I don’t know much about the legal system but I am being to wonder if trial by jury is outdated. Evidence generally has become way more complex and sophisticated than it was when the system was first implemented. As the bottom line is beyond reasonable doubt, I think it’s a lot to ask inexperienced people to be entirely sure.

I'm sorry, I just can't understand this post. For example, what is "reminder divide"?

While I'm sympathetic to what you're saying about the make up of juries, I don't think it would be at all fair (and against the principle on which jury trial is based) to pre-selected juries so that they are more sympathetic to one side or the other

While a unanimous verdict is desirable, it isn't always required. If the jury can't agree the judge is allowed to accept a majority verdict, so there is, within this system, an allowance made for the possibility of one or two jury members who just can't agree

I've sat on two juries for quite large trials and I was impressed by how seriously all the jurors took their case and their role in it. In one case we came to a majority verdict, which was reached by serious and respectful discussion which resulted in a disagreement with one juror unable to agree with the rest of us - which is quite a principled stand to take, while 11 people argue with you

I’m really not sure in the case I was thinking of it was three previous cases that had gotten to trial ( who knows how many actual victims there were) but I don’t think there is a hard and fast rule.

publications.parliament.uk/pa/ld199900/ldjudgmt/jd000622/z-1.htm

I agree with Julie Bindel.
Rapists, especially those known to their victim, can basically rape safe in the knowledge they will get away with it even if the woman reports it to the police.
If a woman as much as has a friendly chat with a man they can and will use that to argue sex was consensual.
I also strongly agree with a pp about porn and the anti kink shaming crowd normalising strangulation etc which leads young people to believe normal sex is boring being as it is now derided by the stupid term “vanilla”.
There are some things you actually should be ashamed of so keep your horrible and dangerous fantasises to yourself and get professional help to understand why violence is a sexual turn on for you.
I also agree that rape verdicts should not be decided by a jury.

Then there should be gay men on juries too if it’s a gay man that has been raped.

I absolutely think age should be a factor on juries( maybe it is). Elderly jurors will have very different views on consent,etc.

Similar to the TV programme someone mentioned earlier they were shown different scenarios, invited to debate and then told what the law classed. More in depth (and consistent) than what judges do.

Interested in your ideas of what would work though? I think we are all agreed that a 2% conviction rate is not right.

So if a suspect has a position or responsibility and trust they get added protection for crimes ie a
jury just won’t hear about previous convictions and will think well he’s trustworthy. How many convictions are they allowed to have before being classed as of ill repute happens?

Bearing in mind I'm not a lawyer or have any professional knowledge here...

I think juries should have a professional advisor who can guide them through what is relevant and what isn't. And any legal language. The jury will still have the final decision but they would have input.

I think there is a really interesting discussion about reminder divide in Jury opinion and we have to think carefully about the biases a male may have on a rape jury. How do we know a juror isn't a full on Andrew Tate fanatic or at least prone to toxic masculinity himslef? A lot of men use pornography so this may have over time given a deep innate acceptance of rape being just sex. A male up for May have possibly assaulted a woman and never been arrested. A man may be horrendous to not impacting a contact's life severely as in the jurors mind the crime isn't as severe as the law sets out.

All the above I think merits a disproportionate number of women of rape jurys? A women's court for a women's crime? I think women discussing the intimate details of assault on a jury room would be a lot more forthcoming with a just women there possibly (or a majority). The presence of male jurors may in fact be an inhibitory factor to a full discussion with women not wanting a debate over the nature of a very male crime with a obviously a great deal of sensitivity.

Poor female jurors cannot by the nature of the system simply say a male juror was arguing she was asking for it and so bringing the legitimacy of the trial into question. With a unanimous jury it only takes one male with the attitude that rape only happens in darkened alleys by strangers and women near responsibility of everything that happens within a shared private venue to bring the whole thing down.

As a general rule you aren’t told about previous convictions as Juries become very biased as if you did it once you’ll do it again. There is the odd exception and you aren’t allowed to mislead the jury so I’d expect defence to make song and dance about previous unblemished character if no convictions but not say anything if there are. There was a case where the bloke had gotten off in multiple cases when accused of rape as relied on defence of consent and jury had let him off. Judge allowed evidence about previous cases to come in on the basis he was a “bad egg” or some such.

Im not sure its that the jurys dont beleive the women but its proving it beyond all ressonable doubt.

Juries are guided by judges. They get training on the job. How do you think you would provide mandatory training to juries as you seem to be suggesting something different? They're 12 people chosen at random from the electoral roll.

On the case I was on, the judge had expertise in trying cases involving sexual offences. There was none of the making remarks about the complainant and the summing up and guidance was very clear. However we weren't being asked to decide on consent

Just watched and am so impressed by the strength of the women in the programme. The cost to the people affected by this is so totally unjust. It's depressing.

Whatever the right system is it's not this.

I think there should be mandatory training for jurys about what does and does not count as consent. This isn't for people to have their own take on.

Funding to clear the backlog needs to be committed. Definitely feel sexism is behind this being the biggest backlog

What disturbs me most is that rapists are walking free and able to repeat offend. i get that wrongful imprisonment of someone not guilty would be horrendous. But rapists being able to repeat offend and ruin lives also is.

Maybe some sort of opaque register where if another case is raised against the same individual evidence from previous cases can be taken into account. Though can see the issues with this.

Maybe mandatory counselling and courses for all men accused even if innocent - about consent. It's not like that would ruin someone's life if innocent.

Who knows.

But think the documentary showed things are totally messed up. Well done to those women involved though. It takes a lot and they kept going. That's incredible.

What do you suggest?

Well in that case I hope you're content to continue to have rates of conviction for rape so low that as an act it is effectively endorsed by our justice system.

I would never agree to any crime being removed from these legal principles:

Trial by jury
Innocent until proven guilty
Guilt proved beyond reasonable doubt

I think in large part it’s the nature of the crime. There’s often little in the way of forensic evidence and it’s often a case of he said/she said. The jury need to convict Beyond reasonable doubt which is a very high bar

Reasonable doubt isn't even mentioned nowadays. Juries are told they must be sure. They are definitely not told they must be "almost certain" which is not a standard of proof.

Trial by jury is not perfect, no system is. I think a lot of people generally do have prejudices about how they think women should behave which influences the outcome of rape trials.