Stuart Waiton

Scotland’s juryless rape trials are based on a myth

(Photo: iStock)

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.

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