If Socialengineering, Why Not Jurisengineering?

Over the course of our history, we’ve sought to create fair processes to achieve fair outcomes. The problem, of course, is that no matter how fair the processes, it seems the outcomes are never quite what some demand. If women comprise 51% of the population, for example, they should comprise 51% of corporate CEOs and board members.

It makes perfect sense, provided you ignore a multitude of factors that could explain why that hasn’t happened and focus instead on the one explanation that you want it to be: sexism. To consider any other factors would likewise be sexist, since sexism has been pre-ordained as the cause of this disparate outcome. So the obvious and expedient solution is to socially engineer corporations to mandate the outcomes that they should have but for sexisim. After all, sexism is wrong, so this has to be right.

David Lorimer has raised the question in the legal context, having written an “as yet” unpublished paper calling for the elimination of juries in rape cases. The problem is that juries aren’t convicting as many “acquaintance rape” defendants as they should.

Interestingly the researcher is quoted as using anecdotal evidence from police officers and barristers to claim that there is “a disproportionately high number of acquittals in ‘acquaintance rape’ cases, in which the assault was allegedly carried out by a person known to the victim” and that “many ‘believe there is something about these cases that fail (sic) to get convictions’”. The Times further quotes the researcher as concluding “…the law around rape and the public perception of rape are two separate things and that’s why jurors are failing to convict”, leading to the proposal that: “‘Judges should hear rape trials alone in a bid to combat jury bias and unwarranted acquittals”.

As has become the accepted starting point of inquiry, the outcome (aquittal) fails to match the anticipated outcome based upon the assumptions, that women are raped constantly by acquaintances and are rarely mistaken or would lie about it. Ergo, if defendants are acquitted, the only possible explanation is jury bias. When outcome dictates process, the solution seems clear: tweak process to achieve the desired outcome, in this case more convictions.

Lorimer has a solution.

My own conclusion, that both judge and jury could be replaced by a tribunal of cross-disciplinary expertise in rape cases, was borne out of less ‘empirical’ and more jurisprudential analysis, albeit with a measure of quantitative abstraction (a combined analytical approach which I have described as ‘Jurisengineering’).

My analysis is essentially a critique of the idea that probative value can somehow directly outweigh prejudicial effect (PV>PE for short) leading to the conclusion that the law effectively draws a jurisprudential veil over prejudicial effects in jury decision making and evidential assimilation.

While the mechanism of a jury to determine facts is lauded for all criminal trials of all other crimes, rape alone is the one for which the prejudice of the jury against the woman, notwithstanding the gender composition of the jury, is so overwhelming as to overcome the probative value of the accusation.

To the extent Lorimer’s PV-PE makes any sense at all, given that it’s a fundamental misapplication of Rule 404(b) to direct evidence, he flips the concept on its head to contend that a jury’s rejection of an accuser’s testimony isn’t for lack of belief, but discrimination. After all, why else would they possibly not believe the woman and, upon her claim alone, convict? By his “jurisprudential” view, there is no possible reason but discrimination.

Essentially, Lorimer characterizes efforts to defend against an accusation of rape as comprising the improper “prejudicial effect” of evidence that ought to be rejected from trial. After all, if defendants are allowed to defend, they only muddy up the evidence with their prejudice. His examples, a complainant’s prior sexual history and failure to use force to resist, reflect his inexperience with trials or defenses, but he’s no lawyer so why should he be expected to know anything about trials.

The approach he proposes is to remove the clearly biased jury from the fact finding process and replace it with a “tribunal of cross-disciplinary expertise in rape cases,” properly versed in the litany of reasons why everything that should, that would, support the claim of rape didn’t happen, so that they wouldn’t be hampered in convicting based on failure to sustain the burden of proof. Jurisengineering.

Silly? Ridiculous? Of course, but entirely consistent with what’s happening now in the dissonant approach to rape and sexual assault, as opposed to every other crime. It would be lunacy to suggest that a defendant accused of murder should be denied due process, and yet it’s now argued that providing due process to a person accused of rape promotes rape.

The argument is grounded in claims that rape is grossly under-reported, that false accusations are “miniscule” such that there can be no excuse for disproportionate dismissals and acquittals. These contentions are repeated, ad nausseum, and believed with near absolute certainty by most people, despite being either unproven or false. But you can’t argue that without being a misogynist, at best, and rape apologist, at worst. This is the orthodoxy, and no heresy will be tolerated.

Whether the word “jurisengineering” catches on remains unclear. People do so like cute names. And it’s similarly unclear that anyone would be so bold as to seriously propose restructuring criminal trials by replacing juries with tribunals of gender studies experts. But we’ve already seen changes suggesting that “jurisengineering” has stuck its nose into law.

Between the untethering of rape from any cognizable definition, to “trauma informed” policing, to calling “rape experts” as witnesses, to allowing prior bad act witnesses to taint the defendant, the law is being reshaped to achieve the dogmatic outcomes and overcome the “prejudice” of facts and logic that produce acquittals. This is what comes of believing in fantasies and tweaking the process to achieve them. Even if Lorimer’s particular solution is absurd, it’s happening already.

20 thoughts on “If Socialengineering, Why Not Jurisengineering?

  1. Guitardave

    At least these little inquisitions will give us something to do with the Gender Studies grads…

  2. Lucas

    What’s happening with Title IX in colleges seems close enough to “jurisengineering”. In particular, I think Lorimer would agree that the panels used in Title IX cases form a tribunal of cross-disciplinary expertise, even though I would likely disagree with his definition of expertise.

    Empirically, it does not seem to be working well.

  3. MonitorsMost

    Proving things beyond a reasonable doubt can be hard. Especially squishy things like scienter, mens rea and lack of consent. Get rid of the squishy things, you get rid of those damn acquittals. Changing the decider doesn’t go to the heart of the issue.

    1. SHG Post author

      Squish aside, it’s the middle man. If your decider is muttering “guilty” before the opening, chances of conviction improve markedly.

      1. MonitorsMost

        Doing it that way puts you at risk of the decider going and looking at the standard and applying it in good faith. Safer just to change the standard.

  4. Mark Brooks

    Mr. Greenfield, when the sexual assault allegations made by Dr. Ford against Mr. Kavanaugh were made public, I did some web searching to see what data existed on false allegations. I came across this recent research paper published in 2017 in the Journal of Forensic Psychology. The paper is titled “The Prevalence of False Allegations of Rape in the United States from 2006-2010” and authored by Andre W . E. A. De Zutter, Robert Horselenberg and Peter J van Koppen. [Ed. Note: Link deleted.]
    The closing of the abstract is “Approximately 5% of the allegations of rape were deemed false or baseless. That was at least five times higher than for most other offence types.”

    As David Lorrimer is a PhD candidate, he might avail himself to look at this paper and its references.

    Mark Brooks

      1. Mark Brooks

        Mr. Greenfield, I am not sure if you able to take a look at the complete research paper itself. Perhaps I should not have just posted the last 2 sentences of the abstract. These on their own, without knowledge of the complete abstract (and paper) could give a different picture and perhaps give the impression that I was “introducing false statistics into your blawg”.

        That said, even on their own, they are in keeping with Francis Walker in his blog “How To Lie and Mislead With Rape Statistics : Part 1. ( in fact they are higher than his)

        Quoting Walker “So when you look at things on a comparable basis and from crime data across the country and across multiple years, instead of the percentage of unfounded reports being lower for rape than other types of crime, forcible rape actually has the highest unfounded rates and was consistently 4x the average.”

        The paper is very much in line with Walker’s various analyses, as this section in the Discussion part shows:
        Quoting ” False allegations of rape are a problem for all parties involved. In cases where no one is accused directly, no innocent suspects are targeted; false allegations still result in a waste of police resources. The prevalence of false allegations of rape is at the kernel of a heated debate among researchers [3]. Methodological problems jeopardized the validity of the reported prevalence figures [4]. The current estimate on the prevalence of false allegations of rape is probably a conservative estimate. It is so because the UCR Program of the FBI revised the criteria, and since 1994 uses more stringent criteria than before. Now it has to be established through investigation that no crime had occurred before an allegation of a crime can be categorized as unfounded. It is difficult to establish that a crime did not occur, especially in the context of rape.
        A rape scenario as well as a consensual sex scenario usually only involves two parties. If one of the parties is lying about the true nature of the scenario it may be difficult to proof that the crime either occurred or did not occur. If, for instance, the sexual encounter is not disputed, but only the consensual nature, then other evidence should discriminate between rape and a consensual scenario. If such evidence is absent then it is impossible to discriminate between rape and a consensual scenario. In that case, doubt concerning the true nature of the allegation will always persist. A false complainant who never retracts her story of rape, and the investigation does not reveal proof of its falsity or baselessness, such a case will never be
        classified as an unfounded rape allegation following the current criteria of the FBI.
        The results of the current study, therefore, seem to indicate that the new guidelines of the FBI are followed by most or all law enforcement agencies in the U.S. As a consequence of the new guidelines, law enforcement agencies do not seem to, routinely, use the unfound category to clear criminal cases anymore. Therefore, a drop in the number of false and baseless allegations of rape was to be expected when the new policy was effective.”

        In their Conclusion section these comments are noteworthy:
        Quoting, “False allegations of rape, however, are more harmful. Besides wasting police time, they cause public unrest, and innocents could be convicted or suspected of a rape they did not commit. It seems imperative to differentiate false from true allegations of rape at an early stage of the police investigation. ”

        This is why I suggested that David Lorrimer as a PhD candidate should have read this paper.

        Hopefully you might see that I was not “introducing false statistics into your blawg” and we could have a laugh along with a Red Stripe.

        Mark Brooks

        1. SHG Post author

          As a courtesy, and just this once, I’ve posed this comment. I understood your point and purpose, but please remember that the same rules of staying on topic and not jumping down collateral rabbit holes because of tenuous connections applies to everyone. A lot of people here make random connections between the very specific topic of a post and various orthogonal issues they believe to be related and valuable. Perhaps they are. Perhaps my post was a miserable failure for not repeating things I’ve written about dozens of times before whenever someone new decides it would be a great idea to writer a thousand words about it in a comment, as if this was their blog and my soapbox was theirs to muse at whatever length, in whatever direction, on whatever subject, struck their fancy.

          But it’s not. It’s my blog, written solely for my amusement. Some readers may agree. Some may not. But this is not a democracy, and I try to apply the same rules here to everyone as they’ve kept this blog from becoming a cesspool. Please respect that. And I still look forward to a laugh and Red Stripe, but sometimes a gentle admonition is in order.

          1. Mark Brooks

            Mr. Greenfield, It was never my intention to offend you, or disrespect your blog or go off topic. I thought that David Lorrimer’s proposals were based on false premises and was trying to point this out. Perhaps the reason for the “disproportionately high number of acquittals”, was not the jury system he wants to abolish, but that the claims were unfounded in the first instance. This from the data showing the rate of false claims for rape were significantly much higher than for other serious crimes.

            Again, apologies and keep up the good work
            Mark Brooks

  5. B. McLeod

    And, after stamping out the right to jury trial, we’ll have to Persky any bastard judge who lets a defendant go. Perfect.

    Bearing in mind that the reason why our founders valued juries was they saw them as a mechanism that could keep runaway courts from sentencing people to “crimes” such as preaching in Gracechurch Street. If we were to categorically except all “acquaintance rape”charges from right to jury trial, politically targeted defendants would all come to be charged with “acquaintance rape.”

    I know, I know, it’s just crazy to think people would weaponize this and abuse it for political ends, right? Because that could never happen.

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