"A rape! A rape!"

The full quotation from Webster's The White Devil runs thus:

"A rape! A rape! ... Yes you have ravished justice.  Forced her to do your pleasure."

This provides me with an excellent introduction to the reason for my recent visits to Nottingham.  Also, by an odd co-incidence, the exceedingly nasty villain of the current 'crash-bang-wallop' thriller I am reading is an admirer of Webster's who calls himself 'the White Devil' (1). Anyway, rape is the subject of this post.

My 'AmDram' society was approached by a couple of university professors of law looking for actors to play in a courtroom scenario in which a young woman accepts a lift home from a colleague after a departmental party, invites him in for coffee, gives him a goodnight kiss at the door and is then raped in her hallway - or not - depending on ... well, what a jury depends on was the object of the exercise.  The two professors had engaged the services of a marketing company to produce a 'jury' of 24 people for each scenario.  At the end of each scenario, the 24 people were divided into 3 'juries' of 8 and sent to different rooms where their discussions and verdicts were recorded and filmed.  I should stress that there was a completely different jury for each scenario.  Also, each scenario differed slightly, so that the following variables were introduced: the victim being either emotional or calm; the victim either reporting the rape immediately or waiting 3 days; the victim having minor injuries or not; the judge (er, that was me!) giving slightly different summations; the presence or not of an expert witness, and so on.

As you all know, real-life juries are completely private, so this was a rather good idea to gain some insight as to what influence these various factors exerted, if any.  We tried to make it fairly realistic in that the two young barristers (real-life barristers) wore their wigs, gowns and judicial collars.  They kindly loaned me gown and collar but, alas, no wig.  Despite my pleading I was not permitted to hang anyone!  The scripts were written by the two professors and seemed fairly realistic to me. I shall be fascinated to read the results of this research later in the year.

Mostly, I think, the juries reached 'not guilty' verdicts which was entirely correct but even so I was amazed at how many went for a guilty verdict.  In none of the scenarios was there anything definitive by way of evidence. No witnesses, obviously, no medical evidence of physical trauma beyond slight bruising to the victim's chest and wrist for which the medical report refused to offer any explicit reason. (My wife, for example, only has to brush against the corner of a table to produce a bruise the size of a soup plate!)  So, to my mind, there was absolutely no objective reason to find the man guilty but, of course, some jurors are not objective, they are very subjective.  They might, as I did, feel that in some of the scenarios, the probability was that the man had raped her, but as the lawyers and the 'judge' constantly reminded them, they had to be absolutely sure of the defendant's guilt if they were going to bring in a 'guilty' verdict. In none of the scenarios was that the case.

My tentative conclusion is that the demeanour of the witnesses is critical.  Oddly enough, my experience in directing plays confirms this observation. I always remind my actors that when they are standing centre stage declaiming Shakespeare's immaculate verse they should not assume that the entire audience are watching and listening, spellbound.  Some of them can't understand Elizabethan language, some of them are only there because the son or daughter are in the play, some of them are wondering if the curtain will come down in time for them to catch the last bus home, and so on, and so on.  Ours is a visual age not, like Shakespeare's, an aural age. Therefor, what is loosely called 'body language' is of the utmost importance.  The way an actor stands, his gestures, his movement, tells an audience that can't quite follow all the words, what is going on. In summary, one gesture is worth a thousand words! In my opinion, much the same dynamic takes place in a courtroom.  Visual images, I would suggest, have a disproportionate effect on viewers - and the entire multi-zillion pound advertising industry will confirm it!

Thus, I offer up, very tentatively, one suggestion; that in rape cases, and perhaps others, the main protagonists, by which I mean the victim and the defendant, should be screened in the way that security officers are screened in terrorist trials.  This, I think, would concentrate the minds of the jury on the facts of the case rather than on visual, subliminal and possibly misleading impressions.

(1) The Death List by Paul Johnston, paperback by MIRA publishers - truly, a nail-biter!

Comments

[dearieme]

Being lawyers, the researchers themselves are very unlikely have sat as jurors. Will they have a panel of ex-jurors to assess the plausibility of the mock jury discussions? P.S. why 8 jurors; surely 12 for England, 15 for Scotland?

[David Duff]

I gather they chose juries of 8 because time was limited for their deliberations and they wanted to make sure everyone got a chance to speak their mind. Also, it made transcribing the recordings that much easier. However, there were 3 juries of 8 for *each* of the 9 scenarios. That's a total of 216 people - men, women, old, young, black, brown and white, middle and lower class. There were usually differences between the jruy outcomes.

Also, and rather to my surprise, the jurors took it very seriously and virtually *all* of them seemed to pay close attention to the proceedings some of them taking down copious notes. I think it was very well done, and given the inherent practical difficulties, as near to a genuine replication as you could get.

Exactly what the research will show, I'm not sure - and what use it is put to is also doubtful. The feminist movement is all too keen to bend the law for politico-social purposes.

[dearieme]

"as near to a genuine replication as you could get": do you speak as an ex-juror, David?

[David Duff]

Ah, you have me on the hip, 'DM'. No, I have never been chosen, thank God, although my son has been hit twice, poor sod. Certainly from the appearance of the 'jurors' they appeared to my inexpert eyes to be a very average cross section, certainly neither of the young barristers raised any objections. As to how and what they discussed, of course, I do not know; nor do I know how that would have compared to a real jury, although it's worth bearing in mind that the 3 different juries usually reached different conclusions. Remember, the object of the exercise was to see what effect, if any, the differences between scenarios had on different juries.

[Hank]

David

Ssounds interesting, do tell us the results.

Here the Death penalty is on moratorium.. Something between 10 and 20 death sentences were overturned on DNA evidence. They were all multiple Rape or murder rape cases from before DNA was allowed as evidence.

Ofcourse no really says they were Rape case, you have to read the summaries of the cases then the light comes on. The local feminists had been waging a loud and likely to be successful campaign to restrict the available defenses in a rape cases. Well that campaign ended real quick once DNA testing started.

Rapes are never committed on Main Street at noon wutg thirty witnesses, you have no witnesses a dead or highly traumatized victim, police under pressure to make an arrest. If you have a death penalty, in my book rapists are certainly candidates, the evidence needs to be 100% solid.. Your idea of a screen to hide body language is a good one, but you really need mandatory physical evidence such as DNA for a conviction in these cases.

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What will probably happen with the results of your study is that in similar cases the lawyers will have a profile of jurors who are inclined to vote guilty or not guilty given certain scenarios and facts. The lawyers try to exclude jurors or pick strategies on how to present evidence on the profiles. And not do things that would annoy the jurors. Which is one thing if both sides have access to the results the net being that the evidence presented is understandable to the given jury. If only one it can swing a case in a way it shouldn’t go. Assuming your lawyers know their business you helped do some good.

But didn’t Shakespeare say something Lawyers?

[David Duff]

Hank, I don't agree that rape deserves the death penalty, indeed, the more I think about it the more I realise there are, so to speak, degrees of rape, ranging from rape in marriage to stranger-rape with extreme violence. Sentences need to reflect that variety, I think. The difficulties, in many cases, arising from the absence of any witnesses or substantive forensic evidence makes conviction extremely difficult and I am not *unsympathetic* to feminists - and others, they don't have a monopoly of feeling! - who desire to change the rules in order to gain a greater number of convictions, but even so I am utterly opposed to such efforts.

Rape is often associated with drink and here we have another difficulty with English law. According to what I learned in recent weeks, a woman can only be deemed to have consented to sex (the usual defence) is if she has the freedom and capacity to make that choice. Obviously, if she has been drinking a prosecutor will claim that she did not have the freedom and the capacity to make any choice. That's fair enough, but exactly how much drink incapacitates her is, I suppose, another question for the lawyers to argue over.