I always wanted to be picked first, or second, even third, when team captains chose their squad for school sports. It was a vain hope. I usually waited in that anxious cluster until the final few.
When I reached adulthood, this mysteriously changed. I always found a spot on the B team squad when I played Saturday hockey in Griffith. Reliability and effort seemed to make up for my lack of sporting talent. This team needed bodies on the field! I ran up and down the left-wing, yelling loud encouragement and scoring more fouls than goals.
I was thinking about this shift in ‘selection anxiety’ a few weeks ago, when I was called up for jury service. I’ve received a few of these invitations over the years, but I always had good reason not to attend. I still held hope that I might not be picked, standing in the queue outside the courthouse, shuffling through the security check and even after presenting my credentials to the court officer. A vain hope.
When we proceeded to the court room, our numbers had reduced from about sixty to thirty. We took our seats in the gallery and listened to the details of the sexual assault case. My heart sank. But there were still two opportunities to escape. I waited as others went forward to present their excuses to the Judge, seated aloft on his stand. They had to lean forward and ‘stage whisper’, just so he could hear them. When the woman with the pending colonoscopy was refused, I decided not to join the queue. I didn’t want to share our difficult family experience. I thought I could be objective.
Instead, I nursed that sinking feeling, as twelve numbers were pulled randomly from the box. The tenth slip, ‘Call Number 86’, was mine. We moved to the jury box. My last hopes of avoiding this responsibility were pinned on Defence objections. I’d taken note of all the circulating jury myths: arrive late to join the back of the queue, wear conservative clothing, look stern. None of these worked. Even the real estate agent and the funeral director, both likely acquainted with almost every resident in Albury, were retained without objection.
We twelve received our instructions and made our promises. Moving to the jury room, we relinquished our mobile phones and our plans for at least five working days. The jury also included a hotel duty manager, a bank teller, a disability service provider, an IT student, a small business owner, several retirees, and me. Twelve strangers made to quit our everyday lives for this serious ceremonial world. We sized each other up, hoping to agree.
Proceedings started after a brief morning tea with the Prosecution and Defence outlining their cases. It felt like joining a long-running TV show mid-season, with each character having their own version of the script. It was uncomfortable. Like going to the cinema on a whim and freezing in the air conditioning. It was like sitting on a squeaky chair in a very quiet concert hall. Like overhearing strangers talk about their intimate sex lives, in a café or in a slow-moving queue. Like listening to terrible office gossip that goes on-and-on before a serious meeting. Like trying to make sense of a badly translated instruction manual, but the sequence of fitting parts involved leggings, under wear, penises and vaginas. It was boring and sensational all at once.
After each session we stumbled agog into the jury room, shocked and exhausted by this awful obligation. Exhausted by avidly scribbling our notes as a learned professional in wig and gown assassinated the character of the poor and under-educated witness. Drained by watching her, over video link for hours, drawn further and further into his articulate and demeaning trap. Tired by the confusing tactics and ‘linguistic fog’ of the cross examination. By the contradictory detail of text messages, bank statements, employee timesheets, and transcripts from a Police body-worn cameras. And then the cross examination of friends and family with their confusing and inconsistent recounts of her risky and self-destructive behaviour.
This all seemed like evidence of prior and unrelated traumas. Wasn’t this a sexual assault case? ‘Why is her behaviour on trial and not his?’
At 4pm we escaped out the back door, each to our homes and normal lives. Avoiding civic spaces and cancelling plans that might imply our own research. Unwanted thoughts seeped into banal conversations. I reviewed details of evidence, between dinner and bedtime, while trying to manage urgent work tasks. I slept badly and woke up thinking about broken relationships and trauma.
But in the morning, I remembered to wear warmer clothes and to take my own food. Small comfort.
On day three, during the lunch break, a fellow juror admitted, “On the first day, I thought ‘Right. Let’s just hang this bastard’, but now I don’t know”.
I agreed, “I don’t know either”.
The judge warned us not to read into behavioural cues, from both the stony-faced defendant or the stoic and the crying witnesses. Our role was to determine the facts. That was the responsibility and the problem. The prosecution must prove beyond reasonable doubt that a complainant did not consent, and the accused knew that they were unconsenting. Assembling the facts was not straightforward, because legislative restrictions don’t prevent the use of victim-blaming statements in sexual assault trials. So jury members, ordinary members of the public like me, are exposed to ‘rape myths’ that muddy discernment of the facts. Scholar Annie Cossins notes the common acceptance of seven rape myths in our society.
1) She asked for it (or she is somehow responsible, because she was drunk)
2) It wasn’t really rape (because she didn’t fight)
3) He didn’t mean to (male sex drive)
4) She wanted it (secret rape desire)
5) She lied (change of mind afterwards)
6) Rape is a trivial event (women exaggerate its effects)
7) Rape is a deviant event (rape only happens away from home, which is safe)
Nothing prevents victim-blaming like the above. As a jury member, I noted three rape myths: used by the defence to question the complainant’s credibility. Perhaps they used more? This is an adversarial process.
The defence used aggressive, sarcastic and insulting tactics. They posed confusing and suggestive statements to the witnesses and asked them to agree. The Prosecution seemed listless, embarrassed, even weak. The witness evidence was difficult to watch: the confusion, the crying, the anger. What a relief when it was over. But now we had to make a decision!
It is a standard legal principle that the accused should be presumed innocent until proven guilty and should receive a fair trial. Our society recognises the reality of sexual assault. We want to protect victim survivors from further harm and to reduce the high levels of violence in the community at large.
Oh, for a simple “Pinocchio” test.
Oh, that I had never been picked!
Leave a Reply