Will piloting juryless trials for rape cases in Scotland lead to a reduction in bias?

The Victims, Witnesses, and Justice Reform (Scotland) Bill (2023) is set to make significant changes to the Scottish legal system, including the reduction of jurors required in criminal cases from 15 to 12 and the abolition of the controversial 'not proven' verdict. Additionally, the bill grants ministerial powers to allow the piloting of juryless trials for rape and attempted rape cases that adhere to strict criteria. These changes are designed to reduce the backlog of cases in Scottish courts and to improve access to justice for victims of crime (Scottish government, 2023). However, the question remains: Will these changes lead to higher conviction rates due to the removal of potentially biased jurors?

The role of juries in the Scottish legal system is to provide a fair and impartial assessment of the facts of a case (Curley et al, 2022a). However, research has shown that juries can be subject to biases that can impact the decision-making process when rendering a verdict (Willmott, 2019). These biases can include pre-trial publicity bias (Ruva & Coy, 2020), racial bias (Curley et al, 2022b), rape myth bias (Dinos et al, 2014), and social media influence (Taylor & Tarrant, 2019), all of which can lead to a lack of impartiality and a failure to consider the evidence presented in court.

The piloting of juryless trials for rape and attempted rape cases has the potential to reduce bias in the decision-making process (Scottish government, 2023). Research has shown that jurors are more likely to acquit the accused in sexual assault cases than other trial types (Suarez & Gadalla, 2010), even when the evidence presented in court is strong and the victim's testimony is credible (Hackett, Day and Mohr, 2008). This is often due to rape myths and other biases that can impact the decision-making process (Chalmers, Leverick and Munro, 2021). 

Rape myths are false beliefs about rape that are prevalent in society and can often be perpetuated by the media (Merken & James, 2020). These myths include the idea that victims of sexual assault are to blame for the assault (Gravelin, 2019), that false accusations of rape are common (MacMillan, 2018), and that rape only occurs in certain situations, such as when the victim is drunk or wearing revealing clothing (Garza and Franklin, 2020). These myths can be harmful to victims of sexual assault, as they can lead to victim blaming, stigmatization, and a lack of belief in their experiences (Gekoski et al., 2023).

By removing jurors from the decision-making process, it may be possible to reduce the impact of these biases and to provide a more objective assessment of the facts of the case. For example, presiding Judges possess a clear understanding of important legal concepts such as corroboration and the appropriate use of the not proven verdict – admittedly a moot point once abolished from the Scottish legal process – and interpreting expert witness testimony (Smith v Lees, 1997, JC 73). Furthermore, Judge only trials would be in the unique position of providing complainants with a justification of how they arrived at their decision, a facet currently unavailable to those affected (Scottish Government, 2021). However, it must not be assumed that legal professional and indeed judges are unaffected and free from by rape myths bias (Curley and Munro, 2023). Indeed, it could be contended that the criminal justice process during trial itself perpetuates rape myths, given the adversarial nature of the proceedings and the trial structure (Cowan, 2021). In order to sway juries, the adversarial process encourages lawyers to use psychological shorthand of rape mythology and set complainants directly against defendants.  Thus, the burden of proof lies with the complainant whereby their testimony may be distorted and prohibited by defence counsel (Russell, 2017).

Research has shown that rape myths are prevalent among jurors and can impact the delivery of justice in sexual assault cases (Willmott, 2019). Jurors who accept rape myths are less likely to believe victims of sexual assault (Fraser et al., 2022), more likely to blame victims for their assault (Burton et al., 2012), and more likely to acquit defendants (Ormston et al, 2018). This can lead to a lack of justice for victims of sexual assault and a failure of the justice system to hold perpetrators accountable for their actions.

One study found that jurors who held rape myths were more likely to acquit defendants in sexual assault cases over any other trial type, even when the evidence was strong, and the victim’s testimony was credible (Finch and Munroe, 2005). The study also found that jurors who held rape myths were more likely to engage in victim blaming, such as suggesting that the victim was responsible for their assault because of their behaviour or clothing.

Another study found that jurors who were exposed to rape myths in the media were more likely to hold negative attitudes towards victims of sexual assault and less likely to hold defendants accountable for their actions (Stubbs-Richardson, Rader, & Cosby, 2018). This highlights the importance of media representation in shaping attitudes towards sexual assault and the impact this can have on the delivery of justice.

It is essential to address the impact of rape myths on jurors and the justice system. One way to do this is through education and training for jurors. Providing jurors with information about rape myths, their impact, and how to recognize and address them can help to reduce their influence on the decision-making process (Pang, Davies and Lui, 2022). It is also important to ensure that judges and lawyers are aware of the impact of rape myths on jurors and the need to challenge and address them in court (Mitchell, 2010).

Another way to address the impact of rape myths on jurors is using expert witnesses. Expert witnesses, such as psychologists or social scientists, can provide evidence on the impact of rape myths on jurors and how they can influence decision-making in sexual assault cases (Pierson, 2016). Therefore, the author argues that the use of such expert testimony may help to educate jurors and challenge their preconceived notions about sexual assault.

It is also essential to address the impact of rape myths in wider society. This includes challenging negative attitudes towards victims of sexual assault and promoting a culture of consent and respect. The media also has a crucial role to play in this, by portraying victims of sexual assault in a more positive and sympathetic light and avoiding the perpetuation of rape myths in their reporting (Aroustamian, 2020).

However, there are also concerns about the potential impact of these changes on the delivery of justice. Some legal professionals have argued that the trial by jury process is a fundamental safeguard against wrongful convictions and that the removal of jurors could lead to miscarriages of justice (EBA, 2023). Others have argued that the piloting of juryless trials for rape and attempted rape cases could lead to a lack of public confidence in the legal system as this move will undoubtedly lead to questioning the efficacy and reliability of juries in other trial types (Curley and Munro, 2023). 

It is essential to acknowledge that the proposed changes to the Scottish legal system are not a panacea for the challenges inherent in sexual assault cases. Even with the introduction of juryless trials, sexual assault cases are likely to remain difficult to prosecute, and conviction rates may not improve significantly. Nevertheless, the proposed changes are an important step forward in the ongoing fight for justice for victims of sexual assault.

It is also worth noting that the proposed changes to the Scottish legal system are not without precedent. In England and Wales, rape cases are heard by a judge and a panel of three lay assessors, who are trained to understand the complex legal issues involved in sexual assault cases. This system has been in place since 2019 and has been praised by some as a fairer and more equitable way of delivering justice in sexual assault cases.

Ultimately, the impact of The Victims, Witnesses, and Justice Reform (Scotland) Bill (2023) on juries and conviction rates will depend on a range of factors, including the implementation of the changes, the training and education of legal professionals, and public perceptions of the legal system. While the reduction in jurors and the piloting of juryless trials for rape and attempted rape cases have the potential to reduce bias and improve access to justice, it is essential to ensure that these changes do not compromise the delivery of justice or erode public confidence in the legal system.