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One CE Credit/Hour in Ethics and Legal Issues
Jurors in Rape Cases: Putting the Complainant on Trial
by Robert Rosenthal
- Learn about the limitations of research on juries
- Understand how characteristics of the complainant/defendant can affect jury decision making
- Understand the relationship between cognitive styles and how jurors interpret rape cases
On the morning of December 5, 2002, three high school football players from Carson high school went on a field trip to the University of California, Los Angeles campus. The three men, Deshawn Carter Stringer, Jamar Dawson, and Chuwan Anthony, left the tour group and entered campus dormitories. After Stringer allegedly groped the buttocks of one UCLA student, he knocked on the door of Jane Doe, an under-graduate unacquainted with these men. She allowed Stringer to enter her room, at which time she alleged he “began to make sexually suggestive comments” (Daniels, 05/28/04, B1). She contended that after she rejected his advances, he raped her. After this act occurred, she claimed Dawson and Anthony entered her dorm room and raped her. Jane Doe testified, “I thought that if I cooperated, maybe I wouldn’t get hurt, maybe I would be OK” (Daniels, 05/07/04, B1). She claimed that she then gave Stringer her e-mail address and telephone number so that he would leave her room. After the men left, Jane Doe finished writing a paper, went to class, and obtained a “morning after” pill from the campus health clinic (Daniels, 05/28/04). She reported the incident three hours after it occurred (Daniels, 05/04/04).
In the subsequent rape trial, the defense attorneys argued that consensual sex occurred between the complainant and the defendants. On May 28, 2004, a “jury of nine women and three men deadlocked 11 to 1 in favor of acquittal for James Dawson and Chuwan Anthony” and 6 to 6 for Deshawn Stringer “on charges of rape and forcible oral copulation” (Daniels, 5/28/04, B1). The following month, the judge dismissed the charges against Dawson and Anthony (Daniels, 07/23/04).
I recall feeling outraged when I learned of the jurors’ votes. I wondered how, in contemporary society, in one of the more politically liberal cities in America, a jury could possibly imagine that Jane Doe consented to sex with three strangers. Moreover, I wondered how a predominantly female jury could cast 11 not guilty votes for two of these men.
A review of the literature on juror decision-making revealed that jurors frequently do not believe the complainant in rape trials. Several variables impact jurors in these cases, including race, gender, beliefs, and cognitive style (Feild & Bienen, 1980). Jurors appear more likely to believe a black man would commit rape than would a white man. Female jurors, who one would think more likely to empathize with the (usually female) complainants, also frequently doubt the complainant, perhaps due to a belief in a just world (Wright, 1995). The influence of rape myths may also lead many jurors to doubt the veracity of the complainant. In addition, jurors with authoritarian cognitive styles appear less likely to believe a complainant’s story, in part because these stories often have inconsistencies or contradict cultural myths about rape (Olsen-Fulero & Fulero, 1997).
CRITERIA FOR A GUILTY VERDICT
To understand how jurors make sense of rape cases, it is necessary to review what criteria must be met in order for a defendant to be found guilty. Three factors must be demonstrated: 1) the complainant was involved in a sexual act; 2) the defendant is identified as the person with whom the sexual act occurred, and 3) the defendant used force/the complainant did not give consent for this act to occur. In many rape cases that go to trial, it has been established that the defendant and the complainant had sex; thus, the main issue of the trial concerns whether the intercourse was consensual. The issue of consent often leads defense attorneys to explore the complainant’s actions in as much detail as the prosecution explores the defendant’s actions. However, as I will argue, jurors appear more likely to judge and/or doubt the behavior of the complainant than that of the defendant (Olsen-Fulero & Fulero, 1997).
EXISTING RESEARCH AND ITS LIMITATIONS
Before suggesting what motivates the behavior of juries in rape trials, it is useful to consider the limitations of the study of juries in general. Gary LaFree writes in Rape and Criminal Justice, “Regardless of how interesting juries might be, studying them is not easy. A 1956 federal law… prohibits researchers from observing jury deliberations” (LaFree, 1989, p. 153). To overcome this problem, most researchers create mock juries, typically composed of college students, in order to study jury behavior (LaFree, 1989). However, studies show that college students tend to convict less often than do actual jurors. In addition, mock jurors tend to read cases rather than observe a trial, whereas, in actual cases, the observed behavior of defendants and the complainant can sway the jury (Hastie, Penrod & Pennington, 1983). Furthermore, “a real jury decides the fate of an actual defendant; a mock jury usually knows that its decision will have no such impact” (Hastie, Penrod & Pennington, 1983, p. 41). The infinitely lower stakes in a mock trial may lead to a far different decision-making process for both the individual jurors and the group as a whole. Moreover, perhaps because of the high stakes in real trials, it appears that juries do not logically evaluate the facts, but instead construct a story based on the incomplete information provided (Olsen-Fulero & Fulero, 1997). The low stakes and the diminished likelihood of inconsistencies in a simulated trial likely enable mock jurors to evaluate the case in a more rational manner.
Despite the limitations of mock trial research, such studies do provide several insights into the decision-making of jurors. In their chapter “Juror Decision Making in Rape Trials” in Jurors and Rape, authors Hubert Feild and Leigh Bienen compare several mock jury research studies. These studies showed a correlation between the characteristics of the complainant and the defendant and the decision reached by the jury, especially in regards to race. The studies found a correspondence between race and sentencing, with black defendants given longer sentences when the complainant was white, and even lengthier sentences when the complainant was both white and physically appealing. In contrast, black and white defendants received similar sentences when a black woman was raped (Feild & Bienen, 1980). In addition, “jurors were inclined to treat a defendant of the race opposite to themselves more severely than one of the same race” (Feild & Bienen, 1980, p. 142). Black and white jurors who were better educated tended to give more lenient sentences to defendants, while older white jurors also gave lighter sentences. Furthermore, black jurors who had previously served on juries tended to give longer sentences (Feild & Bienen, 1980).
Considering that jurors are more likely to give a harsher sentence to a defendant of a different race, one would think that the same would apply to defendants of a different sex. Considering that the majority of rape cases involve a male defendant and a female complainant, it would follow that female jurors would treat male defendants in a severe manner (cases in which the complainant is male and/or the defendant is female will not be explored in this article).
However, female jurors frequently do not side with the female complainant. Indeed, according to a Newsday article, “The most sympathetic juror a rape victim can hope for… is not a well-dressed, educated working woman, but a stocky, conservative, middle-aged Italian man. The Italian man, the researchers reason, regards women as fragile and in need of defense and will usually side with the accuser” (Tyre, 1991, p. 10). The article also quotes Barbara Eganhauser, a lead sex crimes prosecutor in Westchester County, who believes “women, even young women with contemporary lifestyles and values, often reject another woman’s accusation or rape and sex abuse out of their own fear” (Tyre, 1991, p. 10).
Several other authors also note that female jurors often do not accept as true the testimony of complainants. Attorney Julie Wright (1995) argues that these jurors distrust the complainants because they do not want to believe that something horrible could happen to “good people”. Such women subscribe to the “just world hypothesis,” that bad things do not happen at random, but rather everything in the world occurs for a reason. According to this theory, misfortune strikes only those worthy of hardship (Wright, 1995). Wright cites Elaine Walster’s research study, in which undergraduates were told of increasingly horrible things that happened to another person. The worse the event, the more likely the subject assigned blame to the other person, as it was “reassuring if the person [could] somehow blame the victim, taking the loss out of the realm of the uncontrollable” (Wright, 1995, p. 20). Using this logic, female jurors do not wish to imagine that rape could happen to them, and therefore the more they identify with the complainant, and the more hideous the crime, the more they need to deny the complainant’s claim. Wright notes that “Linda Fairstein, Chief of the Manhattan District Attorney’s Sex Crimes Unit, has observed that ‘for many women, the need to shield themselves from their own vulnerability to sexual assault is paramount. If they can insist that the victim engaged in behavior that they would never engage in, such as visiting a bar or going to a man’s apartment, they can convince themselves they are not at risk’” (Wright, 1995, p. 22). Thus, it is so frightening for the female juror to identify with the complainant that she needs to deny the complainant’s testimony, in order for the juror to feel safe in the world.
Furthermore, Gloria Cowan (2000) contends that women often disbelieve other women’s tales of sexual violence out of their own internalized oppression. She writes that many women are hostile to their own sex, and internalize negative female stereotypes. These women are more likely to “blame the victim” in the case of rape or sexual harassment. Cowan’s research study, using questionnaire responses from 155 college women, found a correlation between women’s hostility towards other women and women’s toleration of men mistreating women. While Cowan’s article does not specifically apply to jurors in rape cases, it does provide a persuasive argument as to why females may be disinclined to believe the victim of sexual abuse.
In addition to race and gender, societal myths about rape appear to exert a major influence on jurors. The authors of “Rape Trauma Experts in the Courtroom” note that the general public often does not believe the stories of alleged rape victims (Boeschen, Sales & Koss, 1998, p. 415). However, while research with polygraph tests indicates that many complainants do indeed have inconsistencies in their stories, it appears that these tests are an unreliable tool to use with those who have experienced the trauma of a sexual assault. Studies which did not use polygraph tests “have found that only 2-4% of victims falsely allege that rape has occurred, which is the same estimate of false allegations for other crimes (Katz & Mazur, 1979)” (Boeschen, Sales & Koss, 1998, p.415). Considering that complainants are often blamed and put on trial more than the alleged rapist, complainants are more likely to underreport rape than would victims of other crimes, with “only 16% of rape victims [reporting] to the police” (Boeschen, Sales & Koss, 1998, p. 415). Yet, despite the low percentage of reporting, many individuals continue to believe that complainants have an ulterior motive for alleging rape. In one study, more than half the participants “endorsed the notion that most reported rapes are false accusations intended for revenge or cover-up,” further supporting the notion that rape victims are viewed as culpable (Olsen-Fulero & Fulero, 1997, p. 406).
Several authors describe fictions that the general public believes about defendants and complainants. Aviva Orenstein (1998) describes the falsehoods such as: “‘nice’ (well educated, middle class, employed) men do not rape; only men who cannot secure normal consensual sex resort to rape;” rapists are likely to be armed lunatics who have never met their victims (p.668). Orenstein also details the myth that complainants “are either sexually confused, vindictive, or trying to cover up some indiscretion [and therefore] have a strong incentive to lie about rape” (p. 669). Moreover, she writes of the mistaken beliefs that women are in such control of their sexuality that they must be active participants in sex, and that women who drink or use drugs are positioning themselves for sexual acts.
Regarding socially accepted myths about complainants, Andrew Taslitz (1999) lists four kinds that can discredit the story of the alleged rape victim. To begin with, society appears to endorse the figure of the silent woman. Thus, if a woman is too loud in her behavior, she deserves any and all consequences; if a woman speaks out after an assault, she has also broken the code of silence, and is worthy of suspicion. Secondly, society believes rapists are bullies, and a man who does not behave in an aggressive manner across all situations could never be guilty of sexual assault. Thirdly, this culture believes only men of color can rape, which means that white men are necessarily innocent of such a crime. Finally, society often sees “rape as seduction,” in which “no” means “yes,” and the woman secretly wants to be dominated (Taslitz, 1999, p. 33).
In “Telling the Victim’s Story,” law professor Mary Coombs writes of how rape myths lead jurors to conclude a complainant’s story is false (Coombs, 1993). She devises two categories to describe how rape stories are disavowed: “Not True” and “So What” (Coombs, 1993, p. 281). The “Not True” category encompasses stories in which an upstanding (white and middle class) man appears incapable of raping a morally compromised woman, who has some reason to cover up her indiscretion. The “So What” category describes a woman who may have been exploited, but whose behavior was so questionable (she was inebriated, dressed provocatively, and/ or flirting) that she was “asking for it” (Coombs, 1993, p. 283).
Because of these myths, some speculate that the complainants feel obliged to whitewash the tale in order to convince the jury of their violation. Coombs speculates that complainants diminish anything that could be perceived as their own misbehavior. Coombs uses the William Kennedy Smith case, in which the complainant said the defendant raped her on his family compound, as an example in which the complainant may have stretched the truth in order to appear more upstanding to the jury. The complainant said they “kissed once or twice [before] he pushed her to the ground, held her down, and raped her” (Coombs, 1993, p.299). Coombs wonders what would have happened if the complainant had described the kisses as “sensual, not merely friendly” (Coombs, 1993, p. 302). She concludes that the jury would have been even less likely to believe that she could have been a victim of rape, since she aroused Smith by kissing him. Coombs concludes that rape myths are so entrenched that many women feel compelled to alter details of their stories in order to appeal to the jury (Coombs, 1993). However, any minor fabrication or slight inconsistency in the complainant’s story could be contradicted by the defense, which in turn would likely weaken the prosecution’s case.
Rape myths, in addition to the characteristics of juror, complainant, and defendant, appear to greatly affect how a juror perceives a rape trial. Yet these traits and beliefs only indicate what influences a juror; it does not demonstrate how the juror makes his or her decision. In “Common Sense Rape Judgments: An Empathy-Complexity Theory of Rape Juror Story Making,” authors Lynda Olsen-Fulero and Solomon Fulero propose that a juror’s cognitive framework, in addition to his or her cultural background and biases, affects how he or she interprets the story relayed in the trial (Olsen-Fulero & Fulero, 1997).
Before discussing cognitive complexity, one needs to consider that jurors do not all process the same information from the case. Indeed, jurors do not arrive at their decision “in the most logical way possible,” especially in how they evaluate the conditions necessary for rape to occur (Olsen-Fulero & Fulero, 1997, p. 403). The conditions are as follows: “the victim engaged or was engaged in sexual intercourse … the defendant [was] identified as the man who was present at the scene” and the victim did not give consent (p. 403). However, jurors often disregard these criteria in deciding the case, instead taking into account other issues, such as “the number of charges brought against the defendant, the presence of a weapon during the assault, and the extent of injury to the victim, even when the critical issue of the trial is the identification of the defendant as the rapist and not whether the rape occurred” (p. 404). In other words, jurors may focus on the violence of the crime, when the issue is identification, not consent.
It follows that in order to comprehend the juror’s interpretation of the story relayed at the trial, one must look at how individuals consider and interpret stories. The authors consider two major cognitive styles: authoritarian and cognitively complex (Olsen-Fulero & Fulero, 1997). The authoritarian personality includes the following traits: “law-and-order morality, punitiveness, political conservatism, moralistic religiosity, low educational level, [and] traditional sex roles” (p. 410). These are the type of people most likely to believe in a just world where only the wicked are punished. Several studies find a correlation between performance on the Just World Scale and the responsibility of the complainant, with those who believe strongly in a just world more likely to blame the victim. This type of person sees the world in black or white terms; either someone is guilty or innocent. While they are more likely to give harsh sentences to defendants in non-rape trials, they tend to side with the defendant in rape trials (Olsen-Fulero & Fulero, 1997). In part, this is due to the unique nature of rape trials, in which the complainant’s behavior is more likely than the defendant’s to be placed under a microscope (LaFree, 1989). “Defendants do not always testify in rape trials and … when they do testify, their testimony tends to be shorter than that of the victim, [which reinforces] the courtroom impression that it is the victim rather than the offender who is really on trial” (LaFree, 1989, p. 160). It appears that authoritarians tend to focus only on evidence which reinforces their preexisting stereotypes (such as rape myths), and are likely to make quick decisions based on limited information (Olsen-Fulero & Fulero, 1997).
In contrast, individuals with a complex cognitive style are able to process ambiguous or conflicting information, and find a way to integrate most of the evidence presented in the trial. A cognitively complex person can learn of a complainant’s inconsistent behavior and still believe that she was sexually assaulted. These jurors “are, in general, higher in socioeconomic status, more liberal, more educated, more intelligent, and less sex-role stereotyped (Olsen- Fulero & Fulero, 1997, p. 415). In comparing the cognitively complex to the authoritarian type, one sees that an individual’s educational, religious and political background often contributes to his or her cognitive style.
One limitation of Olsen-Fulero and Fulero’s two categories is that both represent opposite ends of the spectrum. One wonders how someone between these cognitive extremes would analyze a rape case. Yet, overall, the authors offer a persuasive theory: the personal attributes and cognitive style of a juror influences how he or she forms the story of the case, and this story in turn influences how the juror makes a decision (Olsen-Fulero & Fulero, 1997).
A SECOND LOOK AT THE CASE OF JANE DOE
The previous discussion of how jurors make decisions in rape cases sheds light on the hung jury in the case of Jane Doe. One can better comprehend how a predominantly female jury would doubt the story of the complainant. These female jurors may fear that they too could be a victim of such a crime. The statements of two female jurors lend credence to this hypothesis. Juror Nkechi Odili-Obi, 23, said, “It’s not so far-fetched to me that today a female would go and have consensual sex with three men after ten minutes of meeting them. It wasn’t that I believed the defendants; I just didn’t believe Jane Doe, and once I didn’t believe her, that was it for me” (Daniels, 05/28/04, p. B1). This juror was approximately the same age as Jane Doe; it is possible that she identified with the complainant and felt the need to blame the victim, so that she herself would not feel at risk of gang rape. It is also telling that Odili-Obi was more focused on the behavior of the complainant than that of the defendants, as was another juror, who called herself Candace. Candace said, “There were a lot of holes in her testimony. I had a hard time believing that someone’s grades were more important to them than their body or who they are in the world” (Daniels, 05/28/04, p. B1). Neither juror seemed to empathize with Jane Doe; instead, they questioned how she could have behaved in an illogical manner if she was sexually violated. While it seems far-fetched to imagine that a woman finishing a paper would want three strangers to have sex with her, these jurors preferred this story to the one in which she was raped.
The race of the defendants and complainant also may have influenced the jury’s vote. Jane Doe was Asian-American, while the three defendants were African-American (“Alleged Rape Victim,” 2004). African-American male defendants tend to receive harsher sentences than white defendants, especially when the complainant is not African-American. However, in this case, Jane Doe had a photo in her dorm room of her African-American boyfriend (Daniels, 05/07/04). If the jurors frowned upon such interracial dating, they may have felt that if Doe had already dated one African-American male, she would welcome the opportunity to have sex with three more African-American men.
Rape myths also may have contributed to the jury’s findings. The juror Candace took a “boys will be boys” approach towards the high school-aged defendants. She said, “There was never any question that what they did wasn’t the smartest thing. But that does not make them rapists” (Daniels, 05/28/04, p. B1). Perhaps the jurors thought that any woman willing to open the door to these football players must have anticipated the sexual consequences. Her behavior would then be characterized as “So What,” as in, “of course she should have known this would happen.” Jurors with an authoritarian view would see her as violating traditional sex roles by allowing the defendants to enter her room. Authoritarian thinkers may also have ignored the fact that Stringer had allegedly assaulted another woman shortly before entering Doe’s room, as this information would conflict with the story of Jane Doe as consensual sex partner. Moreover, even though the case fit the stereotype of strangers committing rape, the jurors could still view the three football players as “nice high school boys,” especially since none of them brandished a weapon.
The above analysis is speculative, as there is no way to know how each member of the jury arrived at his or her decision. Yet it appears credible that race, gender, the just world hypothesis, rape myths, and an authoritarian cognitive style contributed to the jury’s decision. I can only hope that in the future, jurors in rape trials will focus on the behavior of the defendant(s) more so than on the behavior of the complainant, and that the population will learn that “no means no,” men must take responsibility for their actions, and anyone, regardless of appearance, can be a rapist.
Robert Rosenthal is a third year student in the Psy.D. program at the Graduate School of Professional Psychology at the University of Denver. He received his Bachelor of Arts in English Literature at Princeton University and has previously worked as a teacher and in the entertainment industry.
Editors Note to Registrants: This is the third in a series of National Register Graduate Student Forum articles. If you know of any students who would like to be considered for an upcoming issue, please ask them to contact the The Register Report editorial staff for details and requirements.
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