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David Lorimer has raised the question in the legal context, having written an “as yet” unpublished paper calling for the elimination of juries in rape cases.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.