Rape myths, jury deliberations, and conversation analysis: a new approach to an age-old problem

Authors: Emma Richardson, Laura Jenkins & Dominic Willmott, School of Social Science and Humanities, Loughborough University, UK

Achieving justice for complainants of rape and serious sexual offence (RASSO)

Rape and serious sexual offences (RASSO) are gendered crimes with high rates of prevalence, yet a multitude of barriers contribute to low rates of reporting to the police (Taylor & Gassner 2010).

For those who do report, very few cases successfully progress through the criminal justice system due to high attrition rates, and various ‘evidential difficulties’, and even fewer result in a conviction (Willmott et al, 2018; 2021).

Evidence indicates that false, prejudicial, and stereotypical beliefs and attitudes known as ‘rape myths’ (Burt, 1980) permeate every stage of the process. These beliefs impact the perceived credibility of complainants and the culpability of the accused in every interaction, from emergency calls, police interviews and decision-making, and when cases progress, in court-room cross-examination, jury deliberations, and judges’ verdicts (Jordan, 2004; Parratt & Pina, 2017; Drew, 1992; Ehrlich, 2001; Temkin et al., 2018).

In our current project, we are examining the final stage of this process, the jury deliberations in a realistic (mock) rape trial recreation.

The presence of rape myths in jury deliberations

Qualitative studies, often thematic analyses of transcripts of audio-recorded mock trial deliberations, have consistently evidenced the presence and prevalence of rape myths within jurors’ deliberations.

Leverick’s (2020) thematic review summarises the work which includes beliefs that genuine rape victims physically fight back to such an extent that defensive injuries should be present (Ellison & Munro, 2009, 2013, 2014), that genuine rape victims are visibly distressed while testifying at trial (Finch & Munro, 2006), that false allegations of rape occur routinely (Chalmers, Leverick & Munro, 2021; Ellison & Munro, 2010a, 2013) and that rape is often the result of uncontrollable sexual urges, used to argue the defendant’s belief in consent (Ellison & Munro, 2009, 2010b).

What we know much less about is what happens when jurors use these myths in their arguments, how other jurors respond to them, and how these myths impact the decision-making process.

How conversation analysis can be used to explore this issue

To understand how and when jurors invoke false and prejudicial beliefs when talking about rape and sexual offences, we are undertaking an applied conversation analysis (CA). CA is a method used to explore in granular detail how communication practices substantially impact conversation outcomes. It examines how speakers do things through their talk, focusing specifically on their social actions e.g. greetings, asking questions, or delivering news (Sacks, 1992).

‘Applied’ (as opposed to ‘pure’) CA focuses on institutional talk (such as that which occurs in the courtroom), as opposed to what we might think of as mundane, ordinary conversation.

Our data are 435 hours of audio-recorded deliberations across six separate deliberating jury groups, transcribed using the detailed Jefferson (2004) transcription system which indicates when speakers talk at the same time using square brackets, silences within a tenth of a second, and marks features such as stretched or speeded up delivery, emphasis, and pitch and volume changes (Drew, 2005).

This analysis permits us to move beyond evidencing the mere presence of rape myths, as others have done and instead to look, in detail, at how these are constructed.

We find that when rape myths are invoked by jurors, they are accepted and agreed with, expanded on or rebutted. Here’s an example, look out for lines 1-2 where Juror 4 (J4) suggests that in a real rape, the perpetrator would not ask the victim if she had a condom, which other jurors then build on.

Juror 4 contests the complainant’s rape claim, by highlighting that the defendant mentioned a condom. What struck us, as analysts, is the way Juror 4 begins to conceptualise what constitutes "real rape" and how this conceptualisation continues to be built collaboratively between the jurors as the conversation unfolds.

Two jurors respond with minimal agreement (lines 3-4), after which Juror 4 provides further explanation – that the defendant "wouldn’t be bothered about the condom if he were gonna rape her." (lines 6-8). It is the Foreperson who elaborates on why bothering with condoms undermines the possibility of rape, by asserting that in the hypothetical scenario of a (real) rape, "he would have carried on as well" (line 9), leaving us to infer that demonstrating the capacity to stop sexual activity is morally upright and self-controlled behaviour rather than characteristic of a rapist, a claim to which several jurors agree (lines 15, 17, 18 & 19), despite this being a myth.

What conversation analysis and the Jefferson (2004) transcription system allows us to do is 'see' how the rape myths are collaboratively produced during deliberative discussion and debate. The methodology shows how speakers overlap their talk and 'build' these myths that are often not as clear-cut as stating a rape myth outright.

Our intention is for this applied work to inform ongoing academic and policy debates around the impact of rape myths on jury impartiality and ultimately, trial outcomes. Where new insights are gleaned from this novel approach, policy solutions to the problem of rape myths among jurors can be more reliably informed and advanced.

With UK politicians, policy-makers and justice organisations currently disagreeing about whether rape myths actually negatively influence jurors, and if so, what should we do about it (e.g. recent Ministry of Justice research among English jurors led by Professor Cheryl Thomas concluded there to be little evidence of the problem, whilst in Scotland, the Government have recently commissioned judge-only trials to tackle what they perceive to be a major problem of rape myth bias among jurors based on research led by Professors James Chalmers, Fiona Leverick and Vanessa Munro).

What is clear, is that there remains a need for new and novel methods by which rape myth bias among jurors and juries must be assessed. We anticipate that our research is one way in which greater clarity might be achieved through application of this new CA approach. Indeed, a jury system free from prejudice and bias makes for a fairer system of justice. Not just for complainants, but for defendants, society more broadly, as well as the legitimacy of justice organisations and pathways.
 

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