Sunday, 29 June 2008

Do juries deliver justice?

It's common for feminists to point out that the legal system often fails women, particularly those seeking protection from sexual and other violence. Stories of those like Louise Nicholas show how the Police may be uncaring or even hostile towards complainants, and how going to court can be humiliating and traumatic. I think there's another aspect of the system that needs some good old-fashioned feminist scrutiny, and that's juries.

Most people prefer a trip to the dentist over jury service, and try to get out of it any way they can. When I was called up, I was pretty keen: I wanted an insight into how the justice system works. My jury's case was one of a young guy in his late twenties, accused of indecently assaulting a boy of about 14 years of age a couple of years previously. As a feminist, I went into the trial with the belief that sexual assaults are underreported, that the system treats victims poorly, and that it takes a great deal of courage for victims to come forward – therefore, a complainant should usually have the benefit of the doubt. As the trial proceeded, everything got grey. The accused was an idiot, but in my estimation, a harmless one. He'd had a mentoring relationship with the complainant, and had allegedly touched the complainant on the groin once while playfighting, and on the knee while they were in a car together, at unspecified times. Far more damaging to the complainant were other aspects of his lifestyle revealed in court: he was a frequent cannabis smoker (he'd pleaded guilty to possession; let his young charge go about unsupervised at night; had porn mags in his house, which the complainant often visited; and was generally irresponsible with poor judgement.

As the trial went on, it became increasingly clear that the complainant was a little shit. He was caught out telling a bunch of childish lies on the stand, where it was also revealed that he and his mates had gone to a local school one night and smashed all the windows. The defence lawyer was obliged to bring up these matters, as there was no other way to defend his client against the rather non-specific charges against him. Much of the kid's misdemeanours were news to his family: they looked on and cringed. The arresting officer took the stand, and was questioned by the defence lawyer about the way he'd recorded the details of the investigation. One of the key pieces of 'evidence' against the complainant came from the officer, who claimed the complainant had admitted he 'was sometimes too friendly with the boys' he mentored. When questioned, the officer conceded he'd recorded the accused's admission a full month after it was supposed to have happened, because he'd 'forgotten' it.

What the hell was going on here, you might ask? Why were the Police so eager to prosecute this case, with no direct evidence, and so reluctant to prosecute other cases of sexual violence or misconduct? You can see the horns of the feminist dilemma I was having. On the one hand, I wanted to believe the complainant; on the other, I was very uneasy about how and why the Police had prosecuted the accused.

Things were difficult. When the jury began to deliberate, they became diabolical. For a start, the jury did not represent a cross-section of society. There was a disproportionately high number of retired people. Most of the few young people there were unemployed. There were more women than men, one of whom was a stay at home mum. Others of us occupied various jobs, none particularly flash or important. As far as I know, only three of us were parents.

Before we retired, the judge gave us strict instructions on how to consider the evidence before us. Here are some of the highlights of the deliberations which followed:

One juror proposed asking the judge whether the porn enjoyed by the accused was gay or straight. If we could establish whether the complainant was gay, he suggested, we'd know whether he was more or less likely to molest boys.

Several jurors could not understand the difference between evidence and fact. They thought that they were required to believe everything put forward as evidence, even when two pieces of evidence contradicted one another.

A devoutly Catholic woman (who took the liberty of criticising my de facto relationship over lunch) said we must find the accused guilty of indecent assault, whether he'd done it or not. As a marijuana smoker, he needed to be in prison. She told me that it was because of views like mine that people like him remained 'on the streets'. She suggested ignoring the judge's instructions on how to consider the evidence.

An elderly woman juror, who was quite lovely but appeared to be suffering the onset of dementia, commented, 'I don’t really understand things. Usually my grandson does things for me'.

In my long-winded way, the point I am trying to make is that unpleasant social ideas plus the inability to reason according to the judge's instructions may equal terrible outcomes. The gay/straight porn argument disturbed me the most – it illustrates how dangerous 'common sense' ideas about sexuality can be. Imagine if ALAC's 'Lisa' had taken her rapist to court. What would my jury have made of that? I'd bet you everything I've got that we would have spent our deliberation arguing between two propositions: a) by getting drunk, a woman is signalling that she wants it, and b) a drunk woman may not want it, but it serves her right anyway. Which of these two sorry ideas would we have settled on?

I don't know what the answer is, but my intention isn't to be critical of people who do jury service. Jurors are on a hiding to nothing. They sit is an airless room for hours, under fluorescent lights with cheap instant coffee and Vanilla Wine biscuits, pulling their hair out at other jurors' inability to understand what they're saying. They have inadequate information on which to make a decision; and they consider information which is not presented in the orderly way it appears in television coverage, but in a haphazard mess. They get tired and their concentration slips, despite their best efforts. They're not allowed to ring out to find out how their kids or workplaces are getting on, except under exceptional circumstances. They slowly but surely go mad. And in certain cases, such as that of the Kahui twins, they have to consider matters which are unspeakably horrible. To top it off, no matter what decision they make, they'll be criticised.

Would you like to know what happened in my case? When the jury retired, nine initially believed the accused to be guilty. I'm not usually a person who likes bossing and browbeating others, but this sent me into a panic: I couldn't have lived with myself if I'd sent an innocent guy to prison. So with the help of the youngest juror, we simply nagged and wore away at the others until they gave in with exhaustion and agreed to a not guilty verdict. In the name of some abstract principle of justice which I'm not fully convinced of – and in defiance of my own feminist beliefs – I was an unethical, mean bitch. Like the other jurors, I followed my conscience and did my best – but I couldn't put my hand on the Bible and swear to you that we, or any other participants in this unpleasant justice process, achieved anything socially useful at all.


Anonymous said...

I am glad you posted this. Over the weekend I have been considering such issues - eg what happens in a court case and jury deliberation and does that actually equal a fair outcome. Also when is it OK to talk about false accusations because unfortunately they do sometimes happen.

#13baby said...

The victim may or may not have been a, to quote, 'little shit' who went around smashing windows, but does that make it any worse that he was sexually abused?

#13baby said...

Pardon me, I meant to say does that make it any better, not any worse.

My point is that those who accuse others of rape almost always have their lives picked apart by the media and by other unsympathetic males, and everything they've done that makes them any less than a saint is always constantly raised as if it had any bearing on the anguish they have suffered.

Anna McM said...

Fair point. In this case, I don't believe any abuse took place, or I would have approached the whole thing differently. The incidents the kid described kept changing, and were non-sexual and accidental contact respectively. Although the kid was a shit, I suspect there were other problems in his life which manifested through the indecent assault complaint, which makes it even more unfortunate that it ended up in court. I don't imagine that false charges are laid very often, but I suspect that when they are there are almost certainly other problems going on in the lives of the people involved, and a compassionate response is needed. (I'm thinking particularly of that awful case of the woman who claimed to have been raped by a guy with a gun claiming to be a police officer.)

I agree though, if the kid had been abused the fact he was a shit shouldn't have mattered (although it probably would matter to a jury). Bringing that up is similar to using the sexual history of a rape victim against her to suggest the attack was her fault. In this case, the defense had no other way of defending the accused (there were no witnesses to the alleged indecent assaults, no specific times given when they took place). But if that tactic had been used against someone who had a genuine complaint, it could have devastated him/her.

The whole trial was just unpleasant: I think that both the complainant and the accused were people with a lot of problems, and both their lives were made worse by going to court.

Julie said...

I had a similarly depressing experience on a jury a few years ago. Most disturbing was the woman who insisted that the accused must prove his innocence, rather than the reverse. It was her fourth time on a jury...

In that case I believe the race (Chinese) of the accused played a significant part in the high level of suspicion in the jury room, which was almost wall to wall Pakeha. It was a case with scant evidence and it was not at all clear why the police had brought the case, given that even if they had had sufficient evidence against the person they charged it was pretty clear he was a minor player.

#13baby said...

Anna, you say "if that tactic had been used against someone who had a genuine complaint, it could have devastated him/her." Given that there were, as you say, no witnesses to the abuse, how can you be so sure that it didn't happen? In a situation of taking the abuser's word vs taking the abused's word, in my opinion one has to take the side of the abused.

I'm re-reading your post and trying to find out what made you assume that the victim was lying. You say that you started with the intent to give the victim the benefit of the doubt, but then you say "everything got grey". What made it grey, other than the victim's behaviour?

You say the defense lawyer had "no choice" in bringing up the victim's behaviour but to me that can't be true. There is always a choice, and not defaming somebody for having the courage to complain should not be a difficult choice to make.

At first I was ambivalent about this but then I imagined that the victim was a delinquent teenager who was touched on the crotch by a male who had a mentoring relationship with her, who left porn mags out around the house when she visited, and whose abuser's lawyers insisted on raking over her background when she dared to make a complaint. In such a case I think any jury that did not convict would be doing so due to sexism and victim-blaming.

Idiot/Savant said...

I couldn't put my hand on the Bible and swear to you that we, or any other participants in this unpleasant justice process, achieved anything socially useful at all.

Sure you did: you stopped someone from going to prison when the evidence wasn't strong enough to convince you. And that seems pretty socially useful to me.

Terence said...

Thanks Anna - interesting post.

Did I read somewhere that New Zealand may be moving to majority (rather than consensus) verdicts in jury trials?

Anna McM said...

It depends on how you define abuse. A touch on someone's knee is not abuse, I don't think - nor is accidentally touching someone's groin while doing a WWF hold during a bout of boy wrestling. In fact, I think it does a disservice to those who have been abused to present incidents like these as abuse. And while it's not laudable to leave porn around the house, it a) doesn't fulfill any legal definition of abuse I know of, and b) doesn't mean that any actual abuse took place. The accused was certainly a fool, but that's not what he was charged with. I would suggest that any harm done to the complainant by his 'mentor' was by setting and awful example and actually facilitating some of his bad behaviour. It seems to me that this is the more important issue - which is just another reason why the court process was the wrong environment to produce any positive outcome for either party.

#13baby said...

To me, abuse is any unwelcome sexual content. I have no doubt that the attacker in this case thought he wasn't doing anything wrong, but that's often the case, and male-style 'horsing around' often degenerates into abuse. In my opinion if there is physical contact and the victim feels that they are being abused, then it's abuse. So in my opinion the attacker in this case was guilty.

Attempts to outline some sort of empirical black-and-white situation where one action is abuse but another isn't is just another way that the legal system disempowers victims, by telling them that sorry, no matter how violated you feel, the law says you weren't abused - as if that's a comfort!

#13baby said...

Oh yes, and I believe it is illegal to make pornography available to minors

Anna McM said...

There was no evidence that the porn was made available to the minor - just that it was in the accused's house.

Terence, I think you're right about proposals to move to a majority verdict of some sort, but I can't remember who made them. On the face of it, it worries - it seems that it would make dodgy decisions easier. I'd be very keen to hear from someone with knowledge in this area!

#13baby said...

Well, unless he was taking active measures to keep the porn out of the sight and reach of the minor, I'd say he wasn't meeting his responsibilities under the law.

And I just wanted to emphasize I am not very convinced by the idea that the crotch-contact was an accident. Every man who grabs somebody on the crotch and is rejected will claim it was an accident when he gets into court, if not well before.

Anna McM said...

A jury is only allowed to consider charges which have actually been brought against the accused, so supplying porn to a minor was not under deliberation. As there was also no crotch grabbing, crotch grabbing was not considered either.