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.