Figures for 2018 show that 69.5 per cent of jurors struck off in criminal trials in Victoria were women, meaning women are more than twice as likely to be targeted.
How are jury members dismissed?
In selecting a jury of 12 for trial both prosecutors (the Crown) and defence teams are entitled to veto certain jurors, whose numbers are randomly drawn, without giving any reason.
While both sides have the right to strike people off a jury, the criteria for the Crown are stricter than the accused’s.
The Crown cannot dismiss on the basis of age, gender, race, physical appearance or occupation, according to Office of Public Prosecution guidelines.
But lawyers for the accused are able to remove jurors if they believe they would receive a better outcome in trial, without needing to provide any justification – what is known as a peremptory challenge.
Defence lawyers argue that peremptory challenges are one of the fundamental safeguards against a jury that is, or is perceived to be, biased, and that challenges allow the accused to feel involved in choosing the type of people who will judge them.
Peremptory challenges and stand asides are considered a quick and efficient way of removing prospective jurors who are obviously not impartial or otherwise appear unwilling or unable to serve on a jury.
In Victoria, the only information both parties receive – and base their challenge on – is the occupation of potential jurors and what they look like.
Critics such as the Victorian Equal Opportunity and Human Rights Commission condemn the practice of peremptory challenges.
“A person’s capacity to serve on a jury or ability to be impartial cannot be discerned from a person’s gender, race, age, disability or physical features, and a process that accepts the misconception that it can only serves to promote inaccurate and often prejudicial stereotypes,” it said in a submission to the 2014 Victorian Law Reform Commission (VLRC) report.
Peremptory challenges are not the only way someone can be removed from a jury. A person who is selected for a jury panel can seek to be excused by the trial judge due to poor health, financial hardship, care of dependants and old age. They can also ask to be excused because they do not believe they can be impartial (for example, because they know the defendant).
Despite this, the 2014 VLRC report found that juries are still not truly representative of the community at large because of challenges. Though there have been some improvements, this remains the case.
Women continue to be under-represented on criminal trial juries in Victoria, especially when you compare this state’s juries with those in NSW.
In 2017 – the only year available to compare – the gender split in NSW was 49 per cent male to 51 per cent female. The same year in Victoria the split was 44 per cent female to 56 per cent male.
The gender split of jurors who are summoned to court for duty roughly equates with Victorian population statistics, which show women are slightly more represented in the general population than men.
Last year, those in the total jury pool (those who turn up for jury duty) for criminal matters in Victoria was 50.4 per cent women and 49.6 per cent men.
But after the process of excuses and peremptory challenges, female representation dropped to 45.5 per cent. That means one in 17 women in the jury pool was challenged, compared to about one in 37 men.
Legislation introduced at the beginning of 2018 saw the number of prospective jurors who can be removed before the trial halved from six to three.
As a result there was a very slight improvement in the gender split at criminal trials. Women made up 45.5 per cent of empanelled jurors in 2018, up about 1 percentage point from 2017.
The data gives weight to long-held concerns among advocates that the “challenge” function of jury selection perpetuates stereotypes about race, gender or occupation and can tamper with the “representativeness” of a random sample of jurors.
The data also suggests women excuse themselves at a higher rate than men, but this is not the sole reason for the imbalance.
“There is a clear relationship between the exercise of peremptory challenges and the gender imbalance of juries, as the [VLRC] observed in 2014,” says the VLRC’s Bruce Gardner.
“The use of peremptory challenges can significantly skew the representation of certain groups, including women.”
This is particularly the case for sensitive issues such as sex offences.
Data obtained for the past two years shows men are preferred over women on sexual offence cases. This preference is at a more pronounced rate than in criminal cases overall.
At 27, Rosie was one of the youngest jurors empanelled for the case. She says there were only three or four jurors on the case who were under 50, and she was one of only four women.
John Desmond, a Melbourne criminal defence barrister, has for decades advised clients in the types of jurors they should challenge in sexual assault cases. He admits that the gender and age of jurors does weigh on the mind of a defence lawyer, but disputed that he might want fewer female jurors in a rape case.
“I would say anecdotally au contraire,” he said.
“There’s nothing better than having a good grandmother on a jury. She knows what little missy gets up to and how she behaves.
“She’s got the experience of life to know that there are young girls out there that say and do things that aren’t quite according to Hoyle, so I’m happy with mature women.”
‘Too bossy’, ‘too empathetic’: targeted occupations
Apart from appearances, the only other information made known to Victorian courts during empanelment is a potential juror’s occupation.
Rosie saw that multiple teachers were dismissed from the jury panel she was part of: “It felt like the people that were challenged had jobs that sounded almost like they had a political opinion.”
Defence lawyers argue that peremptory challenges are one of the fundamental safeguards against a jury that is biased.
Mr Desmond argues that lawyers are justified when they challenge social workers or nurses as potential jurors.
“Nurses are exposed to graphic violence, trauma and injuries and they treat them on a daily basis, and I would guess a fair percentage of their practice involves potentially treating victims of crime,” he said.
“So the feeling can be – not that they are – but they can be a risk of being potentially biased.
“If you’ve got a particular niche area of training, how can you divorce that?” he said. “And you couldn’t, so get rid of her.”
Dr Jacqueline Horan, a jury researcher with Monash University and a member of the Victorian Bar, has long argued that peremptory challenges should be abolished in Australia, following the lead of the United Kingdom in 1988.
“There’s absolutely no research that supports any ability to pick and choose how a person is going to vote on a jury [on appearances alone],” Dr Horan said. “At the moment the flavour of the month is to challenge teachers and nurses.”
Anecdotally, in legal circles there is the presumption that “teachers are too bossy” and nurses could be too empathetic to victims, Dr Horan said.
Both NSW and Victoria’s departments of Justice were unable to provide The Age with data showing the breakdown of challenged jurors and their occupations.
But as part of an investigation into the process, the VLRC surveyed challenged jurors in 2013. Of the 74 survey respondents, it found people believed they were challenged because of their occupation (52.78 per cent), followed by their gender (19.44 per cent).
About one-third said they did not know why they were challenged.
An imprecise science
Not all defence lawyers are ardent supporters of the challenge function. Barrister and criminal justice spokesperson for the Australian Lawyers Alliance Greg Barns described jury selection in Australia as a “primitive exercise”.
“It’s not like in America – it’s a hunch you take. You want a jury of a particular type of cohort.
“People will say a lot of older women don’t have a lot of sympathy for young rape victims.
“It’s all witchcraft, no one does any testing,” he said.
What happens inside a jury deliberation room is kept secret from the public to ensure the integrity of the process. But it means there is little known about the attitudes and possible biases in jurors’ deliberations.
Jurors in Victoria face up to five years’ jail time for speaking to journalists about deliberations on a case. But Rosie’s experience left her questioning the process.
“The part that I found hardest to reconcile was what happened once we were in the jury room,” she said. “You get thrown into a room and you have to work it out amongst yourselves.”
Rosie says she found herself working hard to challenge what she called “slut-shaming” arguments from other jurors in the room.
“Some of the things I heard some people say, I still find really chilling,” she said. “They were very swayed by the defence’s use of this person’s adult life and behaviour that’s completely separate to what the charges were and demonstration that they were not a ‘moral person’.”
Associate Professor Blake McKimmie, a researcher in the psychology of juries from the University of Queensland, says there is a still a lingering idea of what a “normal” victim looks or acts like among the public, and therefore among juries.
“What a stereotypical victim seems to be like, the ones that people expect to see and believe is the one that is emotional, who verbally and physically resists, who goes to police and reports, typically isn’t intoxicated and is dressed relatively modestly,” he said.
He said that despite violent attacks by strangers making up a minority of rape and sexual assault cases, most jury members formed their views of what a “normal” victim looks or acts like based on such cases – rather than the most common type, which is sexual assault beween aquaintances.
Some academics, like Dr Horan, advocate an eradication of challenges.
“Hospitals are completely run by empirical data that tells them this is the best way to do it, and that’s exactly how courts should be run.”
Rosie believes that the jury system in general isn’t suitable for the treatment of sexual crimes, as a jury must be unanimously convinced of the person’s guilt “beyond reasonable doubt” in a crime which by its nature often lacks physical evidence or witnesses.
“I think it’s a really difficult concept to grasp,” she said. “Because especially in sexual assault cases, especially in historical ones, it’s impossible for there not to be doubt due to an entire person’s life history, [defence] being able to frame it in a way that’s shaky.”
Although the jury she served on did reach a consensus on the accused’s guilt after two days of “robust discussion”, Rosie says she felt the process to get there was “inherently wrong”.
“I feel very strongly that the justice process that we went through more broadly, like the jury process … it’s completely inappropriate for the subject matter.”
With so much risk of stereotyping and bias, some have posited that judge-only trials would be a fix. But Dr Horan says that option is far from a straightforward solution.
“Highly educated people suffer from exactly the same misconceptions about sexual assault as average jurors, so there’s no guarantees,” she said.
But Dr McKimmie is optimistic that the system will improve for victims who fall outside this stereotype, especially in a post-#metoo world where the public are presented with cases that fall outside of the stereotype.
“As juries start to convict for some of those cases that would otherwise be seen as edge cases, then you’ve got prosecutors who say ‘Actually, yes’,”
“And because prosecutors say ‘yes’ to more cases, then police encourage victims to keep going, so then you get more cases coming through,” he says.
“So in my wildest dreams, in my imagination, it will become a positive reinforcement cycle.”
- With Adam Cooper
* Real name withheld for legal reasons
Rachael Dexter is a journalist & audio video producer at The Age.
Craig Butt joined The Age in 2011 and specialises in data-driven journalism.
Eleanor Marsh is an Audio Video Producer at The Age
Nicole Precel is a video journalist and reporter at The Age. She is also a documentary maker.