Sexual Assault Trials Research Articles

Loaded Words in the Courtroom

Historically, loaded words like victim were common in courtrooms. Even today, states like New Jersey use the word victim to refer to the for crimes in which consent is a defense (e.g., sexual assault). Concerned that defendants will be prejudiced, judges recently have banned such loaded words from their courtroom. Others, however, argue that such steps are counterproductive and have no empirical justification. In this paper, I examine the existing psychology literature regarding loaded words. I conclude that loaded words like victim can bias individual jurors in some criminal cases. If judges use the word victim in situations in which jurors may think the judge is referring to the person allegedly injured, the jurors may be more likely to find the defendant guilty, at least before deliberation with other jurors. To test this conclusion, I conducted a web experiment to determine whether jurors were more likely to find the defendant guilty when the complaining witness was described as a victim than a complainant in the judge's closing instructions. Participants in the experiment were shown a video of a simulated sexual assault trial, which concluded with a judge reading the New Jersey model instructions mentioning the word victim about ten times (participants in the control group saw a video in which the judge used the word complainant).

Children, Sexual Abuse and Suggestibility: What Laypeople Think They Know and What the Literature Tells Us

This article summarizes the extensive research literature on laypeople's and jurors' beliefs about children's memory, suggestibility and responses to child sexual abuse. In particular, it discusses the extent and types of misconceptions held by laypeople/jurors, as well as the effects of age, education and gender on those misconceptions. The results from an analysis of mock jury studies where different types of expert testimony were presented are then considered in order to understand the types of expert testimony that would be admissible in courts in Australia, with a particular focus on the Uniform Evidence Act. As a result of this analysis, particular reform options are discussed and recommended in order to counter juror misconceptions in child sexual abuse trials.

Restorative Justice and Child Sex Offences: The Theory and the Practice

Restorative justice advocates have made a number of claims about the effectiveness of restorative justice in relation to sexual assault crimes, such as its ability to defuse power relations between the parties and heal the harm. This article examines whether or not restorative justice is one of the ways forward in the difficult area of prosecuting child sex offences by re-analysing some of the data reported in Daly (2006) and comparing restorative justice with other reforms to the sexual assault trial. It concludes that there is insufficient evidence to support the view that there are inherent benefits in the restorative justice process that provide victims of sexual assault with a superior form of justice.

Not-So-Uniform Evidence Law: Reforming Longman Warnings

The Australian, New South Wales and Victorian Law Reform Commissions recently conducted a joint inquiry into the uniform evidence legislation. The Commissions made unanimous recommendations regarding the majority of issues in their Final Report. However, reform of Longman warnings—given in sexual assault trials to warn the jury of the effect upon an accused of a delay between the alleged crime and trial— proved contentious. While the Australian and Victorian Law Reform Commissions favoured limiting judicial discretion over Longman warnings, the NSW Law Reform Commission believed that this would compromise the accused person's right to a fair trial. This article offers a critique of the NSW Law Reform Commission's dissent. The article commences by considering the Commission's approach to the fair trial principle. It suggests that the Commission's analysis is predicated on a narrow understanding of this principle, and asserts that fairness to an individual defendant cannot alone justify unfettered judicial discretion over Longman warnings if such warnings cause systemic prejudice to a class of victims. The article will then canvass several aspects peculiar to sexual assault trials that render warnings about delay problematic. Finally, evidence of the increasingly routine application of Longman warnings will be considered. In light of this evidence, the Commission's argument that such warnings are necessary to ensure fairness on the facts of individual cases is no longer convincing.

Perceptions of Sexual Assault: The Expression of Gender Differences and the Impact of Target Alcohol Consumption1

This research examined the impact of defendant/complainant alcohol consumption and prior sexual history evidence on mock jurors' evaluations of a sexual assault trial. Participants (N = 196) were provided with a simulated trial in which the beverage consumption of both targets and the sexual history between them was manipulated. The results displayed a complex interplay between target beverage consumption and gender of participant. Typically observed gender effects—that is, women, compared to men, were more supportive of the complainant and less supportive of the defendant—was contingent upon target beverage consumption. Depending on how aggressive participants perceived the defendant to be, women were more sympathetic to the complainant, with this being contingent upon complainants' and defendants' beverage consumption.

General Pretrial Publicity in Sexual Assault Trials

An experiment was designed to explore effects of general pretrial publicity in sexual assault trials. Four pretrial publicity conditions (no publicity, neutral news media, prodefendant, and antidefendant) in the form of simulated newspaper articles were presented to 356 participants. Participants subsequently read a mock rape trial summary and reported verdicts. In the absence of pretrial publicity related to sexual assault, women were more likely than men to convict the defendant, but the presence of sexual assault pretrial publicity in any form eliminated sex differences in conviction rates.

Juror Perceptions of Child Eyewitness Testimony in a Sexual Abuse Trial

ABSTRACT A mock child sexual abuse trial was used to study juror perceptions of child eyewitnesses. The child's age (5, 11, or 16) and level of involvement (victim or bystander) were varied across conditions in order to test their impact on juror perceptions and verdict. Results indicated a significant effect of level of involvement on the verdict; defendants in trials involving a bystander witness received higher guilt ratings than defendants in trials with a victim-witness. In addition, jurors perceived the child's eyewitness testimony to be more believable when the child was younger. Implications for the impact of these findings on real-life child sexual abuse cases are discussed.

The Impact of Mock Jury Gender Composition on Deliberations and Conviction Rates in a Child Sexual Assault Trial

This study investigated how the gender composition of mock juries affects deliberations and conviction rates in a child sexual assault (CSA) trial. As opposed to studies in which mock jurors make decisions as individuals, mock jury research allows for investigation of how individual decisions translate into group verdicts. Gender composition within mock juries was varied to examine whether well-established gender differences in individual judgments affect the jury-level decision-making process. Three hundred men and women, in 6-member mock juries, heard a fictional CSA trial. During deliberations, proprosecution/ prodefense statements by women were approximately equal, whereas men made more prodefense statements. Women switched votes during deliberations more than did men; jurors in woman majority mock juries changed from not guilty to guilty more often than did jurors in nonwoman majority juries, and vice versa; and woman majority mock juries convicted most often. Findings indicate that predeliberation gender differences led to unique jury deliberation strategies and voting patterns.

Judicial Perceptions of Jurors' Understanding of How Children Respond to Sexual Victimisation

This article examines judicial views in Australia and overseas on juror understanding of the behavioural responses of children to sexual victimisation. The article highlights that some judges in Australia perceive jurors as being sufficiently knowledgeable on this subject matter so as not to warrant the use of expert opinion evidence in child sexual assault trials. In contrast, many judges in the United States and Canada have concluded to the contrary, that jurors lack sufficient understanding of the behaviour of sexually abused children and the underlying dynamics of child sexual abuse so as to necessitate the use of expert evidence at trial. Such stark differences in judges' assessment of jurors' understanding of this subject matter give rise to questions regarding the basis upon which judges are making such conclusions and the validity of these conclusions. This article points to the fact that judges in Australia and overseas have seemingly reached decisions in relation to this issue on the basis of their own subjective views without any recourse to more objective data, such as the findings of empirical research. Such subjective decision-making introduces potential bias into the trial process.

To Catch A Sex Thief: The Burden of Performance in Rape and Sexual Assault Trials

All the world's a stage, And the men and women merely players: They have their exits and their entrances; And one [wo]man in [her] time plays many parts. (1) Jacques' observation in Shakespeare's As You Like It describes the typical rape and sexual assault trial in the United States. The complainant (2) plays many different characters throughout the course of the trial. Prewritten cultural scripts dictate her (3) lines. The setting is both the courtroom and the scene of the alleged rape as imagined by the jury. Unique to a rape play, however, an accuser cannot be sure which role the jury will assign to her by the time it begins its deliberations. Is she to be cast as a whore? (4) A vengeful liar? A tease? Mentally unstable? If she has the proper background and the defendant is a stranger, can she play the role of an innocent Madonna whose perceived purity may result in the rarest of events: a guilty verdict? While every trial has elements of theater, (5) rape and sexual assault cases are unique because they emphasize the gender performances of the accuser and the accused. Complainants who testify are not just recounting the events of the alleged They are also defining the essential parts of their gender roles for the jury. Every statement, mannerism, action, and emotion of the accuser on the witness stand relays information about her gender to the jury. If the jurors deem a performance emotional, they may assume the accuser is stereotypically hysterical and unreliable. If, however, she appears cold and calculating, the jury may believe she is a gold-digger using the criminal trial as a prequel to a lucrative civil suit. If she shows much anger (as though it were possible for someone who has been raped to be too angry), the jury may see vengeance as her motive for crying rape. Which predefined gender roles the jury assigns the accuser and accused during the trial are important in determining whose story the jury will ultimately believe. At its core, a criminal rape trial taps into the linguistically and culturally founded beliefs of the jury in order to reach a desired outcome. In most cases of simple (6) as Susan Estrich has labeled acquaintance rape, the defense attempts to access certain meta-narratives about sex and rape to convince the jury that the alleged rape event was really consensual sex. These rape myths and the rhetoric of rape and sex, not statutory rules and procedures, are the critical pivot points for shaping the jury's decision. (7) The trial itself is like a play where the actors and their agents fight to define the roles and script utilizing these meta-narratives. As Stephen Schulhofer has written, [s]ocial attitudes are tenacious, and they can easily nullify the theories and doctrines found in the law books. The story of failed [rape law] reforms is in part a story about the overriding importance of culture, about the seeming irrelevance of law. (8) The William Kennedy Smith, Jr., Big Dan's Tavern, Central Park wilding, and Mike Tyson trials, as well as the failed trial of Kobe Bryant, illustrate an important concept of law in America: the roles assigned by the media and jurors to the accuser and accused are fundamental to the outcomes of rape trials. When the defense attorneys for Kennedy Smith, Jr. successfully painted him as a respectable doctor from a good family and his accuser as an unstable money-grubber, the jury found him not guilty. (9) Kobe Bryant's defense team successfully deployed a similar strategy and his case did not even go to trial. (10) In the Big Dan's Tavern trials, the defendants were portrayed as wild Portuguese immigrants who represented a culture built on misogyny. (11) Similarly, the Central Park wilding cases were framed less as traditional rape cases than as general acts of violence by Black and Hispanic hordes against innocent, civilized New Yorkers who needed protection. (12) Mike Tyson was the embodiment of the wild man who could not be controlled by society's rules and the prosecution exploited that perception. …

To Catch a Sex Thief: The Burden of Performance in Rape and Sexual Assault Trials

Despite decades of efforts to reform American rape law, prosecution and conviction rates remain low compared to similar crimes. While activists led legislatures to adopt important statutory changes for rape and sexual assault, only modest effects in the levels of sexual violence have been observed. Nonetheless, reform-minded scholars continue to focus on statutory and rule tinkering as a means to quell rape. This article argues against the commonly held belief that the crucial factors in determining the outcome of rape trials are substantive and procedural in nature. Rather, the issues of performance, representation, and language often pre-determine the outcomes of rape trials. When a complainant testifies on the stand, she is forced into one of several roles by jury attitudes and defense narratives. These roles fit defense scripts and create a heavy burden of performance on the accusers. This burden of performance operates to put a complainant's gender identity on trial and results in the incorporation of dangerous societal myths into the fact-finding process. The way by which this process works is analogous to that of disaster pornography. Academics have observed that compassion fatigue has resulted because of overexposure to disaster imagery. Similarly, as society has become saturated with rape narratives, it has become desensitized and dissociated from complainants' stories of rape. Because of this phenomenon, there needs to be a fundamental rethinking concerning rape law reform. Otherwise, success in the fight against rape will be as rare as it has been for the last thirty years.

Effects of Interview Style and Witness Age on Perceptions of Children's Credibility in Sexual Abuse Cases

The present study concerned effects of interview style and victim age on perceptions of child victim/witnesses and defendant guilt. In 2 experiments, participants read written scenarios of child sexual abuse trials. The scenarios included a transcript of the child victim/ witness's forensic interview, in which questioning varied from less leading to highly leading. In Experiment 1, child age (4 years vs. 7 years) did not significantly influence guilt ratings, but mock jurors were less likely to convict the alleged perpetrator and less likely to rate the child as credible and reliable when testimony was elicited through a highly leading vs. an intermediately or less leading interview. The effect of interview style on guilt ratings replicated in Experiment 2 for a 4-year-old victim/witness but not a 7-year-old victim/witness. In both studies, women compared to men were more likely to convict the defendant and to believe the child. Implications for understanding jurors’ reactions to child victim/witness testimony are discussed.

The mark of refusal

What consequences do poststructuralist theories of language have for feminist strategies addressing rape? In particular, what might be the fate of attempts to secure the meanings of certain words uttered by women in this context, such as ‘no’? Can we bracket off such statements from the agon of the juridico-linguistic domain in a manner that short-circuits all contest? In contrast, if we agree that such contest is an irrevocable component of the field in which feminist struggles take place, does this mean we no longer need to attend to the destiny of women’s refusal before the law? This article will consider these questions in relation to the framing of refusal in a recent Australian sexual assault trial. I will suggest that a poststructuralist feminist strategy might turn to the political process of recontextualization that attends such utterances, in order to contest the institutional rewriting of rape as romance.

Is There a Case for the Legal Representation of Children in Sexual Assault Trials?

(2004). Is There a Case for the Legal Representation of Children in Sexual Assault Trials? Current Issues in Criminal Justice: Vol. 16, No. 2, pp. 160-182.

Telling it Like it isn’t: Obscuring Perpetrator Responsibility for Violent Crime

Part I of this article introduces the interactional and discursive view of violence and resistance, part II illustrates its application to the analysis of sexual assault trial judgments, and part III provides a detailed analysis of an entire judgment. In giving their reasons for verdicts and sentences, the majority of judges accounted for the assaults by drawing on psychological concepts and constructs. These psychological explanations or causal attributions were grouped into one or more of eight categories: alcohol and drug abuse, biological or sexual drive, psychopathology, dysfunctional family upbringing, stress and trauma, character or personality trait, emotional state, and loss of control. The causal attributions in all categories systematically reformulated deliberate acts of violence into non-deliberate and non-violent acts. Psychologizing attributions, that is, causal attributions that functioned to conceal the violence and mitigate the perpetrator’s responsibility, accounted for 97 percent of attributions. Through line-by-line analyses of the full text of one judgment, we show how psychologizing attributions are combined in use with other linguistic devices to (i) conceal violence, (ii) mitigate perpetrators’ responsibility, (iii) conceal victims’ resistance, and (iv) blame or pathologize victims.

SUSAN EHRLICH, Representing rape: Language and sexual consent. London & New York: Routledge, 2001. Pp. ix, 174. Pb $26.95.

In Representing rape, Ehrlich provides a detailed linguistic account of a sexual assault trial. The data for this study come from two sources: a university tribunal and a criminal trial in which complaints were brought against a single man, pseudonym Matt, on behalf of two women. While focusing in each chapter on particular linguistic details, Ehrlich traces their use across several contexts within the legal proceedings – direct testimony, cross-examination and the delivery of judgments. In doing so, the author shows how the details of language use feed into larger frameworks of meaning and legal practice.

The Impact of Complainant Sexual History Evidence on Jurors' Decisions: Considerations From a Psychological Perspective.

Although Canada's sexual assault laws have undergone considerable modification and revision since the late 1970s and early 1980s, it has only been within the past decade that a “rape shield” protection has applied to the complainant's prior sexual conduct with the defendant. Although the admission of evidence concerning the complainant's prior sexual conduct with the defendant now receives legislative protection, it can still, under some circumstances, be admitted at trial. Specifically, if the trial judge determines that the evidence pertaining to the complainant's prior sexual conduct with the defendant is of significant probative value to a fact at issue (other than the complainant's consent or credibility) and that this value is not outweighed by any potential prejudicial effects, it may be admitted at trial. Drawing on psychological research investigating the role played by complainant/defendant relational history in people's evaluations of sexual assault, the current article critically examines the potential impact that this evidence may have on jurors' decisions in sexual assault trials. This review suggests that significant dangers are associated with its introduction at trial and also includes a discussion of the legal implications of these research findings.

Big girls don’t cry: the effect of child witness demeanor on juror decisions in a child sexual abuse trial

Objective: This study investigated the effect of child witness demeanor (defined as crying) on mock jurors’ decisions in a simulated First-Degree rape trial. Method: One hundred and thirty-three undergraduates serving in the role of mock jurors read a trial summary in which the primary independent variable was the demeanor of the alleged child victim (i.e., calm, teary, hysterical crying). In addition to reading the summary, participants viewed pencil drawings of the witnesses that were presented as “courtroom drawings.” Results: The results showed that the teary condition led to more guilty verdicts and a greater belief in the alleged victim than the other demeanor conditions. Conclusions: Findings from this study indicate that demeanor can impact the perception of a child who is an alleged sexual assault victim in court. However, it is not simply the case that any display of demeanor will lead to a positive outcome for the alleged victim. Instead, it appears that too little or too much emotion from the alleged child victim negatively affected credibility in the eyes of the mock jurors.

Asked and Answered: Questioning Children in the Courtroom

In the present experiment, we analysed court transcripts in which children aged 5 to 13 years provided the key evidence in sexual abuse trials. We developed two separate coding schemes for lawyers' questions and children's responses. Consistent with past research, defence lawyers conducting cross-examination asked a higher proportion of complex, grammatically confusing, credibility-challenging, leading, and closed questions than prosecution lawyers. In responding to defence lawyers' questions, child witnesses rarely asked for clarification and often attempted to answer questions that were ambiguous or did not make sense. Furthermore, over 75% of children changed at least one aspect of their testimony during the cross-examination process. These findings have important implications for the way in which children are examined in court.

Polygraph Evidence and Juror Judgments: The Effects of Corroborating Evidence1

A total of 169 college freshman were presented with a mock transcript of a sexual assault trial. We varied both polygraph expert testimony indicating that the defendant was deceptive (polygraph/no polygraph) and testimony by a medical expert and eyewitness who further corroborated the defendant's guilt (corroborating evidence/no corroborating evidence). Whereas the presence of corroborating evidence influenced verdicts as well as probability of commission (PC) estimates regarding the defendant, evidence of a failed polygraph test did not significantly influence verdicts or PC estimates, nor did the presentation of polygraph evidence interact with the corroborating evidence.