The Bastard Verdict

This morning, in a piece headlined "Campaigners: ‘Not proven’ allows rapists to go free", the Scotsman report that Rape Crisis Scotland has come out against Scotland's "bastard verdict" of not proven in their submission to the Scottish Government on abolishing corroboration.  I don't have the full text of their submission, but as far as the article tells, therein the organisation contends "that guilty people are walking free" because of the third verdict and that "not proven" acquittals "can be as devastating to victims as a not guilty decision". The organisation's national coordinator, Sandy Brindley, is quoted to the effect that:

“We’re concerned it gives juries an easy way out of difficult decisions. They are particularly prone to going for not proven in rape cases, particularly ones which do not conform to the stranger rape scenario. The one positive with not proven is you can say to the woman, ‘this does not mean you weren’t believed’. But it’s still an acquittal, and the experience is still devastating. The bottom line for the survivor is the person who raped them is walking free – not proven is not going to change that.”

Empirically, it is certainly the case that juries avail themselves of the "not proven" verdict far more regularly in trials alleging rape and attempted rape than in criminal proceedings alleging other offences.  The latest data for 2011/12 shows that 53% of people indicted for rape or attempted rape were convicted in the High Court, while 38% of accused persons were acquitted. Not proven verdicts constituted the minority of acquittals (44%), but a substantially higher percentage of acquittals than the average, across all categories of crime, from homicide, crimes of dishonesty, vehicular offences and so on (18%).

Whatever impression courtroom dramas might cultivate about the percentage of folk who secure acquittals, it isn't the case that vast swathes of folk who end up in the dock walk free, guiltlessly. Across all categories of crimes prosecuted in 2011/12, 87% of accused persons were convicted, with "not proven" acquittals making up just 1% of all outcomes in cases which came before our criminal courts.  

Because of the sheer volume of criminal work, however, the actual number of acquittals is not insubstantial.  Of the 124,736 people proceeded against in 2011/12, Scottish judges and juries acquitted some 5,497 of them. The bare percentages can be misleading on rape and attempted rape prosecutions too. In 2011/12, just 94 people were proceeded against in court, accused of rape or attempted rape. Fifty were convicted, twenty acquitted on a "not guilty" verdict, and sixteen where the jury determined that the charge was "not proven".

So why eliminate "not proven"? To my eye, Rape Crisis Scotland is making two distinct points. Firstly, they are rebutting the contention that the verdict softens the blow for the complainer to any substantial extent, where juries fail to convict the accused. As an empirical assessment of the experiences of those who have gone through the trial process, and heard the acquittal pronounced in court, this seems highly plausible. It is not, however, a fatal critique of the third verdict. It merely undermines one reason, amongst other reasons, used by its proponents to justify its retention.

From the perspective of complainers, the distress clearly results from acquittal, not the form of the acquittal. The same critique - if we can call it a critique - could be made of the not guilty verdict.  As a consequence, today's criticism of not proven is really a catspaw for the broader, more familiar argument that the conviction rate is too low. And what's more, as the statistics indicate, while it is true that a far larger percentage of acquittals in rape proceedings are not proven than on average, the actual number of not proven acquittals in the High Court are not terrifically high. As barriers go to securing rape convictions, the "not proven" verdict seems at most of peripheral significance, the impact of its repeal negligible. A red herring, all said.

So why recommend it's abolition? Here we come to Rape Crisis Scotland's second contention, that the verdict produces wrongful acquittals which a simple "guilty or not guilty" choice would avoid. Because of the seal on the jury room, and the illegality of conducting empirical research on jury decision-making, there's no hard evidence to confirm or refute Brindley's thesis. But for the sake of argument, how might "not proven" be exercising this baleful influence? Unhelpfully, the Scotsman piece does not elaborate at much length, but I'll hazard a guess at the reasoning which might underlie this claim.  

Juries are saturated with myths about rape, unreasonable suspicions about the credibility of complainers, and patriarchal assumptions about sexuality which distort their deliberations. Combined, these wrongheaded apprehensions produce an environment where jurors are given excessively to doubt the veracity of complainers and are reluctant to convict accused persons. Particularly in circumstances where the accused does not conform to uncritically accepted ideas about the appearance, social class or manner of a rapist, or where the complainer's behaviour or manner in the witness box deviates from the jury's ideas of how a credible victim comports themselves. Or, as Brindley says, where the alleged sexual assault occurred - as most sexual assaults occur - in domestic circumstances where the victim and the perpetrator are known to one another, and may have been in a romantic relationship at the time the alleged offence took place. Apprehensions of stranger danger still cast a long shadow.

All of which may be true, but as far as I can see, these points relate only very tenuously to the availability of the not proven verdict to juries.  

 

Brindley's argument has to be that by eliminating the not proven verdict, juries will apply themselves more seriously to the issues of guilt or innocence than they do at present. Implicitly, she suggests that that harder choice, without resort to an ambivalent acquittal, will lead to higher rates of conviction. Given the straightened choice of guilt or innocence, in Brindley's model, our currently lax, evasive or myth-saturated juries would behave differently. But why should we expect this to be the case? Isn't it much, much more likely that an undecided jury, unable to find the charge proven beyond reasonable doubt at present, will continue to vote to acquit whether or not they have one or two acquittal verdicts available to them?

If the reason that juries are not convicting more people is attributable myths about rape, unfair scepticism about the credibility of complainers, or because of an elementary lack of evidence in cases turning primarily on the issue of consent, eliminating the third verdict does precisely nothing to challenge any of these factors. As we can see from the English and Welsh experience of prosecuting sexual offences, we can expect them stubbornly to persist under a two verdict system too. There are many reasons for the low conviction rate for rape in our justice system. The bastard verdict isn't one of them.