There’s a Reason Some Have Suggested Rape Trials Without Juries

Within the movement to insist that we should all take rape more seriously, take allegations of such so, there’re insistences which are just and righteous and some that are less so. The idea that we should take every allegation seriously enough to fully investigate and if necessary, then prosecute, is not only reasonable but just. The thought that we must take seriously every allegation to the point of considering nothing more than merely the allegation is not just nor righteous. “Hedunnit” is not enough to jug a man while it’s entirely plenty to consider whether he done it.

Out on the wilder shores of said movement there is an idea that it’s the juries who are wrong. Some suggest that juries not be used. Others that only those specially trained in the most modern rape identification techniques be allowed to serve on such juries. The problem is that this is to miss the point of what a jury is for – jury nullification.

Hundreds of protesters have marched through Irish cities after a defense lawyer used an alleged rape victim’s choice of underwear to argue that the teenage girl had consented to sex.

The demonstrations in Dublin, Cork, and Limerick followed the acquittal of a 27-year-old man after his lawyer told jurors the teenage complainant “was wearing a thong with a lace front.”

The case sparked fury in Ireland, with thousands of women sharing images of their underwear on Twitter and the hashtag #thisisnotconsent in the aftermath of the verdict.

The man, who was acquitted by a jury at Cork’s Central Criminal Court on November 5, denied raping the 17-year-old girl in a lane in the city.

Elizabeth O’Connell, the defence counsel, reportedly told jurors: “Does the evidence out-rule the possibility that she was attracted to the defendant and was open to meeting someone and being with someone? You have to look at the way she was dressed. She was wearing a thong with a lace front.”

There are indeed overtones of that hated past here. “You’ve had sex once, consensually, so this wasn’t rape because you’re not a virgin” is only just over the line into caricature. But to insist that this decision, as with others, means we should change juries is to miss their point.

English law – and I rather assume Irish, a slightly different system – doesn’t like even the discussion of jury nullification. The Americans don’t like it just as much but will debate it. The point being that one of the good reasons for the jury being there is that we’ve a group in the court and trial system able to just say “but we don’t think that should be a crime.” Or even “the punishment is too high, we’ll not find guilty, or only of a lesser crime and therefore punishment.” When we’ve a system which does not include just average members of the public called in off the census rolls then it’s far too easy for a system to end up dominated by those with bees in their bonnet.

The classic observation being theft to the value of five shillings. Which used to be punishable by hanging or more likely transportation. At a time when juries themselves defined the value of what had been stolen it’s amazing how many people were convicted of theft to the value of 4 s 11 d.

That’s what – even if the system itself will stoutly deny it – juries are for. To give us, the wider society, a voice in what is a crime and what isn’t.

A jury of eight men and four women acquitted the man unanimously after deliberating for 90 minutes, the Irish Examiner reported.

Whatever happened the jury simply didn’t think that this was rape by that man. And the very point of having that jury there is so that whatever fashion of definition sweeps through legal circles, or academic, it’s the societal definition out here which wins through. That’s the very point of it all.

Which is, of course, why the suggestions from some that we not have them. They wish to impose their definition, rather than our, in our courts.