What is it with Humza Yousaf? Scotland’s First Minister has plenty on his plate: police are investigating the SNP’s financial affairs, feminists are pushing back against his plans for gender recognition reform and now lawyers are boycotting the pilot scheme for jury-less rape trials that he has vocally championed. At some point, this stops being simple misfortune and instead suggests serious political miscalculation.
Criticism of the Scottish government’s plans to try rape cases without a jury has been building. Now, with at least seven legal bodies having voted to reject the proposed changes to court proceedings, a near unanimous boycott looks likely to render the pilot scheme unworkable. Good. From Bud Light to Maybelline make-up, calls for boycotts are two-a-penny nowadays. But this action by lawyers deserves public backing.
Juries are more sophisticated and less ignorant than Humza Yousaf credits them
Trial by jury has long been a hallmark of civilisation and a key component of democratic society. Being found guilty of a crime and punished, potentially through imprisonment, is such a serious infringement on our rights that it demands the consent of fellow citizens. For this reason, all rape and attempted rape trials in Scotland are currently decided by a jury of 15 people. Yet, under proposals backed by Yousaf, people could be found guilty of rape on the word of a single judge.
These reforms, first proposed by Scotland’s second most senior judge, Lady Dorrian, are in response to recent figures suggesting a conviction rate of just 51 per cent for rape and attempted rape, compared to 91 per cent for all other crimes. Those backing plans for judge-only trials assume this lower conviction rate is the fault of sexist jurors harbouring prejudices, or ‘myths’ about the crime of rape. Yousaf is clear this is why he wants to ditch juries for rape trials:
‘We know through the weight of evidence that exists just how many rape myths, rape misconceptions, stereotypes exist.’
His justice secretary, Angela Constance, agrees. She told BBC Scotland that there is ‘overwhelming’ evidence that juries have misconceptions about rape. But is this true?
Back in 2013, legal scholar Helen Reece tackled the assumption that rape myths are widespread and erroneously influence juries head on. In her superb paper, Rape Myths: Is Elite Opinion Right and Popular Opinion Wrong? she argued, ‘We are in the process of creating myths about myths.’ Reece explains that rape myths or ‘rape supportive attitudes’ are false beliefs such as that rape is a violent attack carried out by a stranger; that rape only happens outside of the home; or that flirtation or ‘asking someone back for coffee’ implies consent and therefore rules out rape. Reece convincingly argues that, while people believe that these myths exist, there is little evidence they hold such views themselves.
Indeed, it is precisely because rape is no longer considered to be a crime that occurs only in violent circumstances outside the home that many more rape cases come to court – and jurors have to engage in the difficult task of differentiating rape from sex that was wrongly perceived to be consensual. As Reece argues, arriving at a judgement in such situations requires knowledge of human behaviour and life experience – not necessarily legal expertise.
One reason for low conviction rates in rape trials is that there are rarely witnesses or CCTV footage to provide proof. It is often one person’s word against another. In such circumstances, a failure to prosecute might point to recognition of this ambiguity, not a reflection of sexist prejudices. In other words, juries are more sophisticated and less ignorant than Humza Yousaf credits them.
As well as taking the trauma of rape victims seriously, juries might also consider the harms of wrongful conviction. Trial by jury is an important safeguard against false imprisonment. Yet the starting point for the Scottish government’s reforms is a desire to drive up the rate of convictions – not to get closer to truth or justice.
Those now calling for a boycott of juryless trials are concerned that the courts are becoming a site for political experimentation. Former senior judge Lord Uist has previously described the plans for single-judge rape trials as ‘constitutionally repugnant’ and accused ministers of ‘treating the courts as forensic laboratories’. Aberdeen Bar Association vice president Ian Woodward-Nutt told BBC Scotland that replacing juries with a ‘specific named trial judge’ could expose that one individual ‘to public scrutiny and thus pressure relative to his or her decision making’. These concerns make clear that accusers and accused, women and men, all stand to lose when criminal proceedings become politicised.
Woodward-Nutt is clear that ‘this proposed pilot amounts to a deeply troubling attack, both on the criminal justice system, but also on the independence of our judiciary.’ Scotland’s First Minister is backing reforms that risk undermining Scotland’s criminal justice system, incarcerating innocent men and treating rape victims as legal guinea pigs. Scotland’s lawyers are right to boycott this ill-conceived plan.
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