Call It What It Is
What should be call it when a jury seizes on a ridiculous excuse to acquit a rapist? Par for the course, that’s what it is. There’s another term, which I’ll explain: “jury nullification.”
I’m sure by now most folks who read this blog have read the story out of Sydney, and I won’t repeat the details. Many folks have pointed out that it’s patently stupid to assert that skinny jeans cannot be removed without cooperation, and then even cooperation in removing clothing does not indicate consent. That’s worth saying, but really isn’t that utterly obvious? Yes. Yes it is.
Why would a jury acquit a rapist based on such a flimsy defense, over the testimony of the woman who was raped? Because they want to. The last time I wrote about a story out of Australia, it was just about the same thing. The police and prosecutors believed the survivor, they prosecuted her case right up through the jury trial. And then the jury wouldn’t convict. In that case, the woman was a sex worker, and the assailant admitted using force. I said then:
This is not a legal problem. This is not a problem statutory reform can solve. Her work was legal where she was doing it. She was a service provider engaged in a lawful business enterprise … And this is not an enforcement problem. The police made an arrest and the prosecutors brought the case. The judge didn’t throw it out. The case went all the way to a jury.
This is a cultural problem.
This case, too, is not a statutory or a law enforcement problem. This is a cultural problem. There is a term lawyers use for when juries in criminal cases won’t convict even though it’s clear that the prosecutor has proved the charged offense beyond a reasonable doubt: jury nullification. There is no appeal from an acquittal, even if ridiculous, even if bigoted, even if wrongful. The finality of an acquittal is often discussed as a check on tyranny, but it can have the opposite effect. Jury nullification can mean that the community will simply deny some people justice. Jurors can deny rape survivors justice.
I’ve discussed solutions to this problem before, but there is really only one. The culture that produces the jurors has to change.
h/t Jos at Feministing.