Women under-represented on juries in serious criminal trials

While it is over 40 years since women won the right to be included on jury selection panels, men continue to dominate most juries in serious criminal trials.

An analysis by The Irish Times of 200 trials in the Central Criminal Court, which deals almost exclusively with rape and murder, shows that men dominated the jury in 57 per cent of cases.

Women dominated the jury in only 17 per cent of cases, while there was an even six/six split between the genders in 26 per cent of cases.

The gender imbalance was most noticeable in rape trials, where 61 of 100 juries were dominated by men compared to only 13 dominated by women. To put it another way, 723 men sat on the juries compared to 477 women.

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In murder cases male jurors were in the majority in 52 cases compared to 23 with female-majority juries.

Both the reasons and consequences of the gender imbalance in Irish juries remain unclear, mainly due to the secretive nature of jury selection and jury deliberation.

Many studies suggest women are more likely to judge female rape complainants harshly and to acquit men accused of rape. In 2009, Irish academics who studied 108 rape trials found that male-dominated juries had the highest conviction rate. There was not a single conviction in the 17 cases which had female-dominated juries.

Conviction rates

Understanding the reasons behind acquittals in such cases is particularly important to the Irish justice system, which has one of the lowest conviction rates for rape in Europe.

One experienced defence counsel said she preferred women on a rape jury because she believes they make better jurors.

“I tell my solicitor to get me women on my jury. And it’s not because they are harsh on other women. I find women are more analytical. I’ve been doing this for a long time, and I know that women are going to very, very rigorously analyse the facts.

“I usually can trust women to do what they are told and to listen to the evidence and to say, ‘you know what, he might be guilty but that’s not enough.’ Whereas men haven’t the time for this analysis, and are going ‘for God’s sake, look at the cut of him, he’s guilty’.”

Another solicitor agreed. “When it comes to rape or sexual assault, men tend to be more protective of women, whereas women are more analytical.”

However, some researchers suggest linking conviction rates solely to juries’ gender make-up may be overly crude.

Previous international studies have returned mixed results, with some suggesting men are more likely to acquit a male accused of rape and others stating that age and social background are far better predicators than gender.

Anecdotal evidence

“There’s anecdotal evidence that women tend to be harder on other women but I really don’t think so,” another senior counsel said. “Gender wouldn’t be a major factor. Age would be more likely to play a role [in juror selection].”

According to a Rape and Justice in Ireland study, "a woman with traditional attitudes as to sex roles is likely to be more hostile to a rape complaint than a man with more egalitarian values. Accordingly, there is little evidence that simply increasing the number of women on rape juries would improve the conviction rate."

Nonetheless, there have been sporadic calls for legislating for more balanced juries, such as in the aftermath of a trial last year of a man accused of raping and beating his wife.

At the start of the trial the man objected to all but one female juror, resulting in a jury of 11 men and one woman. He also unsuccessfully objected to a female judge hearing the case. In the end he was convicted, with the sole female juror acting as forewoman.

Thirty years ago an Oireachtas committee on women's rights recommended all rape juries have even numbers of men and women, a recommendation that was later rejected by the Law Reform Commission, which said there was no conclusive evidence that it would make any difference.

The reasons women are underrepresented on juries are similarly unclear. It could be due to lawyers objecting to more female jurors at the empanelling stage.

Selection

A better explanation may be found in examining the jurors who show up for selection in the first place. During one week last February, 342 people showed up for jury service at the Central Criminal Court, of which only 41 per cent were women.

Assuming that roughly equal numbers of men and women are called for jury service, this means that women are less likely to show up.

According to Conor Hanly, one of the authors of the Rape and Justice in Ireland study, one possible explanation for this is that women are still less likely than men to be in salaried employment and more likely to be responsible for childcare.

Employers are legally obliged to pay their staff during jury service, but if someone does not receive a salary they receive no compensation whatsoever. This, combined with extra childcare costs for prospective jurors, means there is little incentive for those outside of salaried work to turn up for jury duty.

“I suspect that’s probably the reason,” said Hanly. “But it’s very difficult to say without an exhaustive study which would be logistically a huge effort.”

The Law Reform Commission in 2013 recommended the introduction of a “modest daily flat rate payment” to allow “greater participation in the jury system by women, students and the economically disadvantaged in our community.” Successive governments have yet to respond to the suggestion.

Structural reasons

"It's a general concern," said Hanly. "The Supreme Court has said juries should be generally representative of society. Now, you're never going to get a perfect mirror of society, and that's fine as long as there aren't structural reasons for it."

Hanly added that the female imbalance “is just one part of the broader question on how representative our juries are”.

The Juries Act excuses many professions from service, including doctors, nurses, civil servants and teachers.

“Even today if you look at all the exclusions in the Act, most of the middle class is removed, basically anybody with a professional background,” said Hanly. “It’s an enormous amount of people, so there is a very real question mark about whether our jury panels are representative at all.”