• Lewis Ross

Sexual Crimes and Low Conviction Rates

What should we do about low conviction rates for sexual offences? Much of the discussion, for example in the UK Government’s recent End-to-End Rape Review, focuses on the problem of prosecution: i.e. too few accusations of sexual assault make their way to court. For example, in that report, it was suggested that only 1.6% of rape accusations ever result in anybody being charged. This is clearly an outrageously low figure. The reasons for the lack of prosecutions are varied. For example, cultural issues in the way investigators treat purported victims can lead to victim-disengagement; resourcing issues can lead to difficult crimes being deprioritised or taking inordinate time to investigate; an absence of psychological support can deter victims from coming forwards. These are all are real and solvable problems and much has been said about them.

Here, I want to consider the problem from a different angle—namely, what should we do if prosecution rates rise, but conviction rates do not? After all, prosecutions are not an end in themselves. The problem is that too few people who are guilty of sexual assault are being punished. So, what steps, if any, should be taken if conviction rates fail to rise along with prosecution rates?

We can tease apart two broad explanations for why the conviction rate for sexual offences might remain low. First, it genuinely might be ‘epistemically’ more difficult to adjudicate some sexual allegations. And second, we might have problems concerning bias and prejudice in the adjudication process. The idea that bias and prejudice create problems in the way that people evaluate evidence about sexual assault is a familiar one, but the first explanation is probably more controversial, so I want to briefly expand before moving on.

The criminal standard of proof—i.e. the standard we must meet to find someone guilty—is that their guilt must be demonstrated ‘beyond a reasonable doubt’. An unfortunate possibility is that sexual offences tend to have features that make them harder to prove beyond a reasonable doubt than other offences. That different crimes vary in how hard they tend to be to prove is, I think, not implausible. For example, breaches of financial regulations governing the stock market often have certain features, particularly their complexity, that makes them harder to prove in front of a jury than more routine offences such as burglary.

An unfortunate possibility is that sexual offences tend to have features that make them harder to prove beyond a reasonable doubt than other offences.

Sexual crimes—contrary to the myth of stranger danger—are typically carried out in private by someone known to the victim. When these cases are disputed in court, guilt typically turns on the question of consent: whether it was in fact given, or whether it was reasonable for the accused to think it had been given. Since proving consent can turn on whether particular words or gestures occurred in a room containing only two individuals, it might be that guilt is often difficult to prove beyond a reasonable doubt, even if we have a presumption in favour of believing accusers. We can, after all, default to believing that someone is telling the truth about being a victim without this meaning that we cannot have a single reasonable doubt if the accused pleads innocence. In this context, having a reasonable doubt is compatible with being fairly confident that the accuser is telling the truth.

One reaction might be that this response fails to learn the guiding idea behind the #believewomen movement: perhaps if someone makes an accusation, then there just cannot be reasonable doubt. Whatever the merits of this view in our interpersonal lives, I find it difficult to accept as a legal stance, because it requires a much weaker interpretation of ‘beyond reasonable doubt’ than we find in other very serious criminal cases, such as murder, where we tend to go to every length to give the accused the benefit of the doubt.

In reality, the difficulty of proof and the existence of bias and prejudice can be mutually reinforcing problems that make the criminal justice system less hospitable for sexual assault victims. I want to discuss three potential solutions: the first of which I am highly sceptical, the second about which I have reservations, and a third proposal which I wholeheartedly endorse.

1. Lower the Standard of Proof?

If the problem is that the ‘beyond reasonable doubt’ standard is too high, then one suggestion is to lower it: i.e. make it so that sexual assaults no longer have to be proven ‘beyond a reasonable doubt’, but only to a weaker standard like ‘beyond considerable doubt’ or ‘more likely than not’. On the assumption that many guilty people are being acquitted because it is hard to prove their guilt to an extremely demanding standard, lowering the standard of proof might increase the global accuracy of the legal system in cases involving sexual assault.

While appealing in one respect, lowering the standard of proof is a dangerous path to tread. A key role for the legal system—indeed, a prerequisite for its legitimacy—is to inspire confidence in the wider community. It would be unfortunate if it came to pass that people regarded sexual assault convictions as less secure than convictions for other serious crimes, a conclusion that they would be entitled to draw if a lower standard of proof was used for sexual crimes compared to, say, murder. Secondly, lowering the standard of proof for sexual crimes would, in addition to convicting more guilty people, invariably lead to more innocent people being convicted too. There is no clear answer to the question of how much worse it is to convict an innocent person than acquit a guilty person, but conventional legal thinking suggests it is considerably worse. Given that it is not possible to know exactly how many guilty people are acquitted under the present approach, nor how many innocent people would be convicted were we to lower the standard of proof, this approach would represent a fairly substantial gamble. Moreover, it would be a very imprecise way to increase conviction rates, not targeting the guilty in particular, but rather akin to trying catch a certain type of fish just by using a bigger net, indifferent to who else is caught up in the process. There are more precise interventions available. I think there is a moral imperative that we attempt more targeted interventions first, before considering whether to ‘trade-off’ innocent people being convicted in order to punish a greater number of offenders.

[L]owering the standard of proof for sexual crimes would, in addition to convicting more guilty people, invariably lead to more innocent people being convicted too.

2. Replace Trial by Jury?

There is evidence that jurors are influenced by a variety of rape myths, which make them more likely to acquit sexual offenders. There are also concerns that jury unanimity requirements are hard to surmount in sexual assault trials. It has also been suggested that juries tend to be more credulous and likely to acquit than wizened trial-weary judges. So, one possibility would be to replace trial by jury with trial by a single judge (as many common law countries already do for less serious crimes) as a way of counteracting these issues. Indeed, in many states influenced by the Civil Law tradition, there is no general right to a trial by jury.

I think this proposal is more appealing than lowering the standard of proof. But I still have some reservations. First, in a more muted way, removing trial by jury only for sexual crimes creates a similar concern about undermining public confidence in such trials. After all, trial by jury is typically seen as a right that we extend to those accused of the most serious crimes, so removing it for accusations of rape could create the perception that defendants in sexual cases are not receiving the same protections as those facing other serious charges. Of course, one might then suggest, as some have, that we should remove trial by jury for all crimes. There are, however, political and philosophical values to trial by jury, as a symbol of public involvement in the legal system, and as a ward against the state using criminal trials as a way of silencing dissent (for example, see the recent jury-led acquittals of Extinction Rebellion protestors). Further, given the fact that the judiciary is largely unrepresentative of the wider community, often stocked with people with a limited type of life-experience and from a rather rarefied demographic, one might question whether single judges are really much more immune from bias than the average jury.

Finally, there is also something rather pessimistic or defeatist about removing trial by jury for sexual trials: it would accept the idea that we, as a society, simply cannot be trusted to give victims of sexual assault a fair deal. Now, charging a proposal with pessimism is not an objection if pessimism is indeed justified. However, I believe that such a conclusion is somewhat premature, as there are ways of reforming trial by jury that we have not yet explored. I’ll end by discussing these.

[W]e ought to open up the jury room to academic study, allowing those who devote their lives to understanding and improving the trial process to learn how juries actually make up their minds in criminal trials.

3. Reform Trial by Jury.

A regrettable impediment to making criminal trials more hospitable for sexual assault complainants is that we don’t actually know very much about whether and how juries are going wrong. Indeed, the 1974 Juries Act (in England and Wales) makes it an offence to disclose the content of a jury’s deliberations: similar offences exist in other jurisdictions, often with the intention of protecting the jury from undue influence. Although I cited evidence above about jurors and rape myths, this evidence is largely taken from ‘mock juries’—often students paid to take part in psychological studies—rather than real juries deciding whether or not to imprison a real person. Indeed, many ‘mock jury’ studies simply give students a questionnaire to fill in, without simulating the deliberative element of a trial. These ersatz jury studies do not tell us all we need to know about how real juries perform, especially when they are given the chance to deliberate at length, facing a very high-stakes decision. So, we are considerably ignorant about the influence of rape myths in the context of a jury trial. (Indeed, other studies are much more circumspect about the impact of such myths on jury deliberation.) We need to remedy this ignorance, by doing away with the idea that jury deliberations ought to be a black box. Rather, we ought to open up the jury room to academic study, allowing those who devote their lives to understanding and improving the trial process to learn how juries actually make up their minds in criminal trials. This is not a matter of interfering with jury deliberations. In my view, audio recording and subsequently transcribing jury deliberations for academic study would not problematically interfere with the role of the jury in the case at hand. Without information about actual jury trials, we are shooting in the dark.

In tandem with allowing scrutiny of jury deliberations, we should use the fruits of this study to give serious consideration to reforming trial by jury. For instance, we ought to consider whether we might introduce an epistocratic element into jury service, by ensuring that jury members meet some threshold of deliberative competency. Or, we might impose greater degrees of oversight on jury deliberations, for example in the form of professional jurors who serve as chairpersons, and are empowered to remove jurors who peddle myths about rape and consent in the course of deliberations. Or, we might appoint advisers to aid the deliberation of juries, for example by including those with psychological experience of the different ways in which sexual assault victims are apt to behave, as a way to encourage juries not to rely on pernicious misconceptions when making up their minds. Of course, any such reform in the vein of those suggested would have to be carefully calibrated so as to not interfere with the political role of the jury as a check on state malfeasance. But, evidently, there are many proposals along the lines of those I’ve just suggested that we should explore. These proposals have the potential to address problems with the trial process, but to do so in a fairly targeted way, without undermining public confidence in the legal system or removing protections afforded to those who are accused of serious offences. To evaluate which proposal is the most effective, we need to have more information. The first step is opening up trial by jury to serious and intensive academic study.

Disclaimer: Any views or opinions expressed on The Public Ethics Blog are solely those of the post author(s) and not The Stockholm Centre for the Ethics of War and Peace, Stockholm University, the Wallenberg Foundation, or the staff of those organisations.