Scotland’s juryless rape trials are based on a myth

Scotland currently faces a huge threat to the criminal justice system, in the form of juryless trials in rape cases.  

In the Victims, Witnesses, and Justice Reform (Scotland) Bill, currently making its way through Holyrood, there is a proposal to carry out a pilot scheme where rape cases are adjudicated by a judge without a jury. A key reason given is that there is ‘overwhelming evidence’ that the public are prejudiced and believe in what are called ‘rape myths’ – with people blaming the victim instead of the perpetrator of a rape. Essentially, the argument is that the public cannot be trusted because they are backward and sexist and cannot possibly be expected to come to a just decision in a court of law. 

When you examine this ‘overwhelming evidence’ though, it suddenly appears very shaky. 

The proposal for juryless trials in Scotland first came about via the paper Improving the Management of Sexual Offence Cases, written by Lady Dorrian, the second most senior judge in Scotland. The paper relies heavily on the research of professor of criminal law and criminal justice, Fiona Leverick, who is cited 19 times to justify the need for juryless trials.  

Leverick’s key paper, What do we know about rape myths and juror decision making was published in 2020. In it, she states that:  

there is overwhelming evidence that jurors take into the deliberation room false and prejudicial beliefs about what rape looks like and what genuine rape victims would do and that these beliefs affect attitudes and verdict choices in concrete cases. 

This idea – that rape myths are endemic in the justice system – has been repeated time and again to justify the abolition of juries in rape cases. But, as I show in a journal article out this month, Leverick’s claims appear to be unscientific and biased.

In her paper, Leverick cites a mass of evidence, largely from mock jury trials, as asking actual jurors about their decisions is banned. Participants in the mock trials are given evidence and asked to judge whether an imaginary person is guilty of rape. The studies use volunteers, many of whom are students, and often feature unrealistic scenarios that bear no relationship to a real trial. 

To begin with, we should be extremely wary of this kind of evidence being used to influence public policy. As professor of legal psychology Andreas Kapardis has observed, ‘Many psycho-legal researchers would agree…that authors of unrealistic jury simulations should qualify their findings and should refrain from putting them forward as the basis for policy changes’. 

But the problems with the research run much deeper. 

As well as carrying out mock trials,  participants are asked to fill out a rape myth acceptance survey. This usually consists of around 30 questions, which are intended to assess if a participant has problematic views or values regarding sexual aggression. The idea behind the study is simple: if a person has these problematic views, and they are more likely to judge someone as ‘not guilty’, then this shows rape myths are to blame for people not being convicted of rape. 

On a scale of one to seven, participants are asked to rate statements like this: 

• When it comes to sexual contacts, women expect men to take the lead.  
• After a rape, women nowadays receive ample support.  
• If a woman invites a man to her home for a cup of coffee after a night out this means that she wants to have sex.  
• Most women prefer to be praised for their looks rather than their intelligence. 

If you answer with a one, it means you strongly disagree and are therefore an ethically good person. If you answer with a high number this means you are ethically problematic. You can see the problem with this already. These questions are based on a particular form of feminist ideology that has an in-built ideological and political bias. And it should be obvious that there is a huge gulf between thinking women like to be praised for their looks and being a rape apologist. 

The problems do not end there.  

In general, the mock trials do not feature any strong evidence against the accused. There tends not to be any incriminating forensics, eyewitnesses accounts, or CCTV footage showing the alleged crime. As one academic explains, there is a ‘lack of compelling evidence’ to find guilt.  

In this case, ‘problematic’ participants are perfectly entitled to arrive at a not guilty verdict. In fact, you would think that the majority of the mock trial participants would find the accused not guilty. There is a presumption of innocence in Scottish law – and it is up to the prosecution to prove ‘beyond reasonable doubt’ that someone is guilty of a crime. If that threshold is not met, someone should not be found guilty. 

Disturbingly though, time and time again, around a quarter of participants come to a guilty verdict in Leverick’s mock trials. These participants are exactly the kind of people who answer the above survey suggestions ‘correctly’. Yet if they are the model for juryless rape trials, we could potentially see a significant number of miscarriages of justice.  

Almost nothing is made of this by the researchers who carried out this work. Indeed, it would appear that their own bias and belief that we should believe all (alleged) victims means that they are blind to the fact that in a court of law we do not know who the victim is.  

There appears to be no concern in this research that a victim could be a falsely accused man. Instead it is presumed that false allegations of rape are extremely rare, when in reality the research into false allegations is inconclusive.  

The Scottish government and those in the Scottish criminal justice system need to take a closer look at this evidence. Judges in Scotland will soon be receiving ‘trauma informed’ training, so that they too can be more understanding and empathetic in rape cases. Very soon the possibility of a fair and just trial will be almost completely undermined.