Courts Struggle With Handling Juror History Of Sexual Abuse

The Ghislaine Maxwell case recently spotlighted problems with screening jurors for a personal history of sexual abuse before seating them in sexual offense trials, particularly when using written questionnaires. (Elizabeth Williams via AP)

When a juror in the Ghislaine Maxwell trial spoke out about his own sexual abuse in a media interview, there was a swift and resounding reaction that sexual abuse victims cannot be impartial jurors in sex crime trials and that this juror should have been excluded during jury selection.

But experts told Law360 that the process of screening jurors for any personal experience of abuse is causing problems, for jurors, for attorneys and for courts, and needs to be reformed.

Maxwell was convicted Dec. 29 in U.S. District Court in New York on five of six counts related to trafficking teenage girls for her former boyfriend, the late financier and previously convicted sex offender Jeffrey Epstein, to sexually abuse.

Last month, Juror 50 in the Maxwell trial, who wishes to be identified by his first and middle names, Scotty David, told several media outlets that he was sexually abused as a child and that he disclosed this in the jury room. Two other jurors, who wish to remain anonymous, have also said they spoke in the jury room about their experiences of abuse.

Speculation began immediately that the juror’s history of abuse may be grounds for a new trial.

It was revealed Thursday night that Juror 50 did in fact fail to disclose his history of sexual abuse on his questionnaire — and so the court will now have to look into what went wrong in the screening process.

Judge Alison Nathan has ordered an evidentiary hearing into any potential problems with the juror’s answers on his questionnaire.

“To be clear, the potential impropriety is not that someone with a history of sexual abuse may have served on the jury,” Judge Nathan specified in her order. “Rather, it is the potential failure to respond truthfully to questions during the jury selection process that asked for that material information so that any potential bias could be explored.”

Before jurors were empaneled, each was given a 51-question questionnaire intended to screen for experiences that may cause bias in the juror’s decision-making. There was a question on the questionnaire about whether a juror had a history of abuse — indicating that the lawyers and the courts believe it could be an indicator of bias.

Dominic Willmott

Manchester Metropolitan University

Law360 talked to Dominic Willmott, an expert in legal psychology at Manchester Metropolitan University in England who has dedicated his career to researching jury decision-making in rape trials.

Willmott said his many years of research on this topic had told him two things. First, there is no well-established scientific literature that sexual abuse victims lean one way or the other when deciding whether to convict or acquit a defendant accused of sexual crimes. Second, there is incredibly persuasive evidence that what does sway jurors is not whether they have experienced sexual violence, but their attitudes toward it — something that is not asked about on the questionnaire.

“We conducted two studies looking at whether people with experience of sexual victimization are more likely to convict or acquit a defendant on trial for sexual crimes,” Willmott told Law360.

“In the first study, 75% of jurors who had been sexually victimized returned a guilty verdict, and 25% returned a not guilty verdict — so that one indicated a tendency to convict,” he explained. “But in the second study, 100% of jurors who had been victims of sexual crimes returned a not guilty verdict — indicating a tendency to acquit.”

The conclusion? Willmott says there is just not strong enough evidence one way or another.

Willmott noted that the predominant process for jury selection and voir dire in the U.S. is typically referred to as “scientific jury selection,” but the notion that sexual abuse victims are biased jurors is just not backed up by a rigorous body of scientific research.

“If that’s what we are calling it, then we should be looking at the science,” he said. “Assuming, without a well-established evidence base, that victims are more inclined to vote one way or another is simply not scientific, and therefore we should not be excluding anyone based on that supposition.”

The academic added that recent multicountry research from the World Health Organization suggests that 1 in 3 women globally have been, or will be, sexually victimized during their lifetime. Other figures suggest 1 in 10 men will also experience sexual abuse over the course of their life.

After noting that the question on the Maxwell jury questionnaire asked jurors not only whether they themselves had been sexually assaulted, abused or harassed but also whether a friend or family member had been, Willmott said this question would exclude almost everyone.

“When you widen the question out to your social network, realistically almost everyone would have to answer yes to that question if they were being truthful,” Willmott said. “So that leaves you with an incredibly small jury pool.”

Another researcher who has studied the idea of bias in jury selection, Paul W. Eastwick, a professor of psychology at the University of California, Davis, agreed that there seems to be a different set of rules for sexual abuse victims.

“I would note that it is just as reasonable to suggest that jurors without sexual abuse history are also biased, just in a different way,” Eastwick told Law360. “In other words, all jurors will bring their own experiences with them into the deliberations, and — from a social science perspective — there isn’t an official standard that makes one set of experiences the normative default and a second set of experiences the ‘biased’ ones.”

Bette Bottoms

University of Illinois, Chicago

Bette Bottoms, professor emerita of psychology at the University of Illinois, Chicago, has conducted a study that does indicate victims of abuse are slightly more likely to have empathy with victims in a sex crime trial — but she does not believe this means that we should not have abuse victims on juries.

In fact, Bottoms echoed Eastwick’s point — if anything, the evidence suggests that people who have not been abused have a tendency that should be considered as well, and that there shouldn’t be a special category for abuse victims.

“We do not believe our study supports the argument that these abused jurors should be struck from the jury during jury selection. Instead, we argue that their experience with abuse is just one among thousands of experiences that make jurors individuals, and just one more piece of experience they should draw from while deliberating a case,” Bottoms told Law360.

“Why do we think it is fair to strike the abused jurors, but not those who were not abused?” she said.

“Consider describing our results a different way,” she added. “We found that jurors who were not abused did not have as much empathy for the victims. They did not find defendants guilty as often. That is indeed a bias.”

In general, Willmott has found that personal characteristics and experiences are not strong predictors of bias. What is a strong predictor of bias, on the other hand, is what he calls “attitudes” — long-held beliefs, based on societal stereotypes, about certain crimes. Rape beliefs are — according to the science — the most important predictor of bias in rape trials, Willmott explained.

“In our studies, sexual victimization was not a significant predictor of jury decisions. In fact, when considered alongside a number of other juror characteristics, the only factor that was a consistent predictor of verdict choices was rape myth beliefs, the extent to which you believe misconceptions or endorse stereotypes about sexual violence.”

Rape myths are defined as beliefs about sexual violence that are factually incorrect but widely believed. They include beliefs in false statements such as: false allegations of rape are common; any delay in reporting rape is suspicious; people who get voluntarily intoxicated are at least partly responsible for their rape; if the complainant did not scream, fight or get injured, then it is not rape; and an encounter is not rape if a complainant fails to sufficiently communicate lack of consent to the accused.

“Nearly all of the research conducted over the last 40 years shows us that the degree to which you believe in these rape myths directly contributes to whether you will convict or acquit a perpetrator accused of a sex crime,” Willmott said.

The idea that our attitudes toward factually incorrect but widely cited beliefs about rape have a detrimental impact on jury decision-making is incredibly well demonstrated by scientific evidence, he said. “And yet we do not screen for that, and we focus on whether the juror has themselves been victimized when we have no well-established evidence base that this would affect their decision-making.”

“The truth is that we apply a separate set of rules and standards to victims of sexual violence throughout the whole criminal justice process and that’s why we need radical reforms regarding how we treat victims and manage the impact of bias upon jury outcomes,” Willmott said.

Willmott also told Law360 that as someone who studies attitudes toward sexual abuse victims, he was disappointed by the public reaction to Scotty David’s story.

Lisa Wayne

National Association of Criminal Defense Lawyers

Lisa Wayne, the executive director of the National Association of Criminal Defense Lawyers, told Law360 that from the perspective of a defense attorney, it is crucial to be able to explore a juror’s personal history in these kinds of cases.

But Wayne added that it doesn’t seem in this case that the juror with a history of abuse intentionally misled the court — the problem arising in this case was that lawyers were not able to delicately explore the question of any past history of abuse.

The question asked of jurors, in full, read:

“Have you or a friend or family member ever been the victim of sexual harassment, sexual abuse or sexual assault? (This includes actual or attempted sexual assault or other unwanted sexual advance, including by a stranger, acquaintance, supervisor, teacher or family member.)”

There were then three boxes that jurors could check: Yes (self), Yes (friend or family member), and No.

Wayne said the phrasing of the question in this case could have given rise to error.

“This could easily have been a misunderstanding on the part of the juror as to what he was being asked,” Wayne said. “It’s not a very good question.”

“It seems very possible that this juror never intentionally misled anyone,” she added. 

Wayne said that in sexual assault cases, she would always expect to see a question about whether jurors had been victims of assault — but not questions as complicated as this one.

“We try to make them very simple and straightforward in order to avoid this kind of confusion,” Wayne told Law360. “You don’t want these long run-on sentences with multiple choice answers.”

“This is the perfect example of the kind of question that causes problems,” the attorney added.

Wayne also said that in her extensive experience as a criminal defense lawyer, she has found it is extremely unusual for jurors to intentionally mislead the court during jury selection.

“I’ve tried hundreds of jury trials,” she explained. “And I know that jurors take this incredibly seriously. They do not intentionally mislead the court. The only issue is whether you are able to ask the right questions.”

Wayne said the issues that have arisen out of this trial demonstrate how important it is for courts to be careful about the way they deal with sexual abuse histories in jury selection.

“This just shows how important it is to get this right,” she said. 

Wayne noted it is a “delicate area of questioning” and jurors have said “that they were sexually assaulted 30 years previously and forgot about it” until they were being questioned.

These screening questions should be asked through in-person questioning and not through written questionnaires, she said.

“It is so important to be able to carefully and delicately explore very personal and traumatic experiences that people have repressed,” she said. “And that wasn’t allowed to happen here.”

Judge Nathan, who presided over the Maxwell trial, has asked the parties to submit written briefings on whether there should be a new trial. In the meantime, she has scheduled Maxwell’s sentencing for June 28. Maxwell faces up to 65 years in prison.

–Reporting contributed by Max Jaeger. Editing by Robert Rudinger.

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