“If she had been in a situation where she had been raped, would she not have tried to fight back at all in any way?”
It is a sentiment that many people have heard – but what if it was expressed by jurors in a rape trial?
What goes on in a jury room is shrouded in secrecy out of legal necessity, never to be made public.
But a pioneering research project is turning this fundamental tenet of the Scottish justice system on its head through a ground-breaking study.
Amid stubbornly low conviction rates for rape and sexual assaults, researcher Elaine Jackson is investigating how jurors make decisions in rape trials – using mock trials to understand how they think.
The lecturer at the University of the West of Scotland, and a PhD candidate at the University of Glasgow, has invited ordinary citizens to act as jurors and examine real cases – allowing her to examine the deliberative process in real time.
The aim is to understand how common misconceptions about rape influence verdicts in sexual assault trials.
Volunteers, selected as mock jurors on the same principles as real trials, tune into the ‘trial’ at the High Court in Edinburgh via Zoom video conferencing.
Actors perform excerpts from real rape cases, but real lawyers take the part of the defence and prosecution, and the trial is overseen by a retired judge.
Volunteers are divided into a control group and an experimental group – but they aren’t told which.
During deliberations, a planted researcher systematically expresses rape myths in the experimental group during the deliberations, allowing Jackson to observe how these beliefs and misconceptions spread.
Ideas planted include “would she not have at least tried to call out for help?” or “would she not have tried to fight back?”
These trial prompts focus on four key areas: absence of resistance, false allegations, the possibility that the complainer inflicted injuries on herself, and delay in reporting a rape.
They were all inspired by the Ormston Scottish Jury study of 2019, which established common rape myths seen in similar studies.
While other studies have used the mock trial format, Jackson’s study is the first to look at juries within the deliberation setting.
The plant – or ‘confederate’ – raises these issues after ten minutes if no other juror has explicitly touched on a rape myth to observe what happens in the discussion.
“It isn’t about what people believe, but how these beliefs are replicated in a group setting,” Jackson explains.
“We are investigating how attitudes play out in real time, and can observe how jurors challenge, agree or remain silent.
“No other study that I know of has investigated juries at the juror level within the deliberation setting.
“Most research uses pre and post deliberation verdict choices, so we know something unique is happening during deliberation. My study is trying to understand this phenomenon.”
“It enables you to observe how problematic rape myths spread and how jurors respond or challenge them – in real time. It gives unprecedented access to dynamics of decision making as it unfolds”
Elaine Jackson
The set up is designed to be as realistic as possible.
“Rather than use hypothetical scenarios, we use real cases. We have a retired judge who provides real directions and real prosecution and defence lawyers,” Jackson says.
“It is crucial that it is a robust, credible stimulus and to be as realistic as we can.
“It enables you to observe how problematic rape myths spread and how jurors respond or challenge them – in real time. It gives unprecedented access to dynamics of decision making as it unfolds.”
The latest figures show the conviction rate for rape is consistently lower than for other types of crime. In 2022/2023, overall conviction rate in Scotland for rape and attempted rape was 54 per cent, compared to 86 per cent for all crimes.
And Scottish Government research also suggests that the figure falls to between 22 and 27 per cent when there is a single charge of rape.
But cases in Scotland have risen by a third over the last decade, and last month, 1919 revealed that investigating departments were at “breaking point” amid concerns over resources.
Rape Crisis Scotland has called for “urgent reform” of the way that sexual offences are handled by the justice system in Scotland.
Last year, the Scottish Government scrapped plans for a pilot of judge-only trials for rape and attempted rape cases, citing a lack of cross-party support for the plans.
So far, 105 participants have taken part in Jackson’s research, including two pilot studies.
Before the trial, participants provide both demographic information – their age, and educational background, for example – and complete a rape myth questionnaire designed by Jackson to “tease out” any implicit biases that can be examined during and after the deliberation.
The survey asks questions such as: “Any woman who is careless enough to walk through “dark alleys” at night is partly to be blamed if she is raped”; “interpreting harmless gestures as “sexual harassment” is a popular weapon in the battle of the sexes”; and “alcohol is often the culprit when a man rapes a woman”.
There are 30 questions and participants are asked to rate, on a scale of one to seven, how far they agree or disagree.
It is “significant qualitative research”, Jackson tells 1919, although the size of the study so far means it is difficult to produce conclusive results at this time.
“We can’t draw firm conclusions yet, and analysis is still ongoing. But we are beginning to observe patterns that warrant further investigation”, she says.
“We are seeing increased social awareness and changing attitudes about rape and sexual assault; for example, people understand the freeze response – why people might not resist a rape – better.”
Jackson’s previous research, using a similar set-up to examine the three-verdict system in Scotland, found that it reduced the odds of conviction by 40 per cent.
Elaine Jackson
It was cited by Justice Secretary Angela Constance in her response to the criminal justice committee as it scrutinised the Victims, Witnesses and Justice Reform (Scotland) Bill, which proposes abolishing the three-verdict system.
The bill, which is going through the Scottish Parliament, still proposes setting up a specialist sexual offences court, and getting rid of the not proven verdict.
And Jackson hopes that this research, while still at an early stage, will also have an impact, ultimately helping the justice system address deeply entrenched attitudes.
“The research will provide evidence about whether current jury selection and trial procedures adequately protect against implicit bias,” she says.
“My hope is for it to be impactful and to assist the legal profession with evidence-based policy making. I hope to contribute to that in some way.
“While the research is still at an early stage, it suggests that simply challenging rape myths doesn’t eliminate deeply entrenched attitudes.
“I think there is potential for intervention. Systemic changes are very nuanced and very complex, but research can contribute to the ongoing policy discussion.
“There are questions about our approach to sexual assault trials, myth acceptance and how we select jurors. I hope to contribute to that.”