In 2015, Canadian judge Robin Camp acquitted Alexander Scott of raping a woman at a party. According to reports, Camp questioned why the victim didn’t do more to resist the attack. He said:
She knew she was drunk… Isn’t it up to her to be more careful?
Camp also noted the alleged victim’s lack of physical and verbal resilience and low socioeconomic status. Four law professors later filed a complaint criticizing the decision, calling it sexist and reflecting stereotypical thinking.
Such stereotypes have an undesirable influence on the decisions of the justice system. Although they can have a functional influence on how we form our impressions of others, stereotypes can undermine fairness.
Stereotypes and thinking
A useful way to think about a criminal trial is to present a series of persuasive messages directed at the investigator. In many jurisdictions, the investigator is a judge and, in more serious cases, a jury.
We can use persuasion research to understand and counter the effect of stereotyping. He generally finds that there are two ways in which persuasive messages can influence people.
These processes are described in dual process models – in particular heuristic systematic models and elaboration likelihood models.
According to these models, there are two modes of thinking. The central or systematic path involves in-depth deliberative reflection. In contrast, the peripheral or heuristic route relies more on shortcuts and pre-existing knowledge – like stereotypes.
Although the central path seems to be the best way to make decisions, people can only use effort in their thinking if they have the motivation and ability to do so.
What influences jurors?
Judges like Camp aren’t the only ones influenced by stereotypes in sexual assault or rape cases: Jurors’ perceptions are also affected.
Sexual assault convictions often depend on circumstantial evidence, as there is usually little corroborating evidence. This means that jurors in these cases are likely to rely on their stereotypes to interpret what happened and who should be blamed.
Jurors are also often influenced by the characteristics of the defendants, such as their attractiveness, race, and socioeconomic status. Defendants are considered more likely to be guilty when they belong to stereotypical social categories related to the characteristics of the particular crime they are suspected of having committed.
It’s not just stereotypes about the defendant’s appearance that influence perceptions: those derived from courtroom design also affect how jurors decide a case. In one of our studies, a defendant sitting at the bar table with his lawyer was considered less likely to be guilty than a defendant who sat in either an open dock or a glass dock.
Why stereotypes happen and what can be done about it
One hypothesis as to why stereotypes have such an effect is that perceivers want to use as little mental effort as possible, and therefore use stereotypes to reduce the amount of effort required.
However, there is evidence that perceivers think more carefully about information that is unexpected or inconsistent with stereotypes. Our research suggests that stereotypes can in fact be used to maximize the amount of information assessed under tax conditions.
Although stereotypes are pervasive and often functional, in the justice system their influence on investigators can lead to unfair results for both victims and accused. This reduces trust in the justice system and is undesirable for the community.
So what changes can we make to reduce the negative effects of stereotyping?
One suggestion is that we should get rid of juries and have judge-only trials. But, as Camp’s example shows, judges are sometimes also influenced by stereotypes. And research shows that judges, like juries, have a hard time ignoring inadmissible information and stereotypes.
This is not a criticism of jurors or judges. Rather, it is an acknowledgment that they are human.
Another possibility is to change the way jurors are asked to do their job so that they rely less on stereotypes. One option could be to use structured question tracks to instruct jurors, rather than the traditional way of giving verbal instructions.
We could also redesign courtrooms to remove elaborate docks, which can create stereotypes about the threat posed by the accused.
Whatever strategy is chosen, there is a real need for empirical evidence to inform law reform and practice. This will increase the chances that the change will actually improve the fairness of the criminal justice system.
This article is based on the author’s chapter in New Directions for Law in Australia: Essays in Contemporary Law Reform, published by ANU Press.