Explicit and Implicit Bias
To understand the specified forms of bias, it is important to first confirm the generalized ideas of explicit and implicit bias. In general terms, explicit bias may be described as the conscious bias whereas implicit bias is the unconscious bias. These types of biases are very broad types of which many specifications can be branched. Although each of these forms of bias have the potential to affect the viewpoints of potential jurors, implicit bias is a large focus of what the biases discussed below will demonstrate.
Explicit Bias
Explicit bias may be described as the more conscious bias that is formed through stereotypes and reflects our consciously held world views (Huhtanen). An example of this may be a police officer that assumes a female sex worker could not have been sexually assaulted, and therefore decides to refrain from writing a report and conducting an investigation (Huhtanen). These beliefs may often be linked to acceptance of another’s sexual orientation, religion, political viewpoints, or lifestyle choices when they differ from one’s own.
Implicit Bias
Conversely, implicit bias may be described as the automatic and unconscious process of assigning a stereotype and/or linking negative or positive attitudes to a particular group or to an individual associated with a group (Huhtanen). This involves the workings of the unconscious mind when evaluating important decisions. Implicit cognition is defined as the process of automatic and unconscious identification, categorization, differentiation, and labeling of the world around us (Huhtanen). This type of bias is present even in individuals who are true to unbiased justice in the courtroom in their consciousness (Huhtanen). The unconscious and unknowing application often hinders the minds of jurors.
Gender Bias
Gender bias is a form of bias that may present itself in both implicit and explicit manners. A multitude of studies have been performed on how gender bias is present in the courtroom. As gender bias involves a variety of factors relating to personal gender as well as society’s accepted gender roles, it is seen to affect most individuals. A general definition of gender bias is necessary to decipher the role that it plays in the jury as well as how it affects victims within specific groups such as the LGBTQ+ community.
Overview
Gender bias may be described as the inclination toward, or prejudice against, one gender versus the others. This category of bias is very broad, as it contains both implicit and explicit bias. However, it often times stems from a gathering of stereotypes and attitudes that are deep rooted in their origin (Huhtanen). In the specific instance of sexual assault cases, this bias interferes with the judgement of the jury to determine the evaluation of the victim and suspect credibility as well as the determination of if the crime was truly committed (Huhtanen). There is a widespread acceptance of negative stereotypes about women, for example, pertaining to the idea of what a “real rape” is (Johnson). The rape of a woman is often seen to be that a woman is assaulted, suffers injury, and immediately reports this attack to the police (Johnson). Thusly, there is a widespread belief that many rape allegations are false and do not require action (Johnson). Often times, females that are victims of domestic violence and sexual violence tend to be treated with a large amount of scrutiny and disbelief (Huhtanen). Ultimately, this places the blame on the victim sometimes purely because of their appearance, demeanor, lifestyle, and reputation (Huhtanen). In a scenario-based study that presented a written survey asking for a rating of guilt based on the scenario, it was found that female jurors are more likely than male jurors to favor female plaintiffs and vice versa (Karl L. Wuensch). This may be due to gender bias as it relates to male defendants as well as heightened empathy to victims (Karl L. Wuensch). Although it is common for both male and female survivors to be accused of stating false allegations, studies have shown an increased amount of bias against women.
LGBTQ+ Individuals
When speaking of gender bias, it is important to note the distinction between sex and gender (Huhtanen). Sex is assigned at birth based off anatomy and may be labeled as either male, female, or intersex (Huhtanen). This is based off many characteristics of the individual such as hormones, reproductive organs, facial hair, and chromosomal makeup (Huhtanen). Gender is a learned characteristic that refers to accepted roles and behaviors that are assigned to males and females (Huhtanen). This involves factors such as clothing, jewelry, behavior, and emotions (Huhtanen). Often times, the distinction is not seen between these factors and it is evident through examination of bias (Huhtanen). This becomes an increasing issue when evaluation cases involving victims from the lesbian, gay, bisexual, transsexual, and queer (LGBTQ) communities (Maddera). This shows the evolution of gender bias into anti-gay bias. There are many negative beliefs that are deep set in society pertaining to the idea that gay men are highly promiscuous and prone to pedophilia (Johnson).
To prove this idea, a study was done that examined a sampling of undergraduate students using a written case scenario that they were then questioned on regarding their verdict as well as their confidence in their verdict (Tisha R. A. Wiley). The case scenario had multiple contexts pertaining to the sexual orientation of the defendant, but all relating to the assault of an underage victim by an adult perpetrator. Results showed that compared to straight defendants, gay defendants face largely unfair presumptions of guilt in the verdicts of pedophilic sexual assault cases (Tisha R. A. Wiley). This remains true both for defendants who were revealed to be gay as well as those who were just perceived by the jurors to be gay (Tisha R. A. Wiley). This trend not only demonstrated applications in the assault of young boys by gay men, but also of young girls by gay men (Tisha R. A. Wiley). As these ideas are heavily present, people are often subconsciously lead to protect these stereotypical beliefs and may not know of the false perceptions they have.
Victim Blaming
Many factors have been found to increase victim blaming and increase of bias. One very large aspect of juror perception of the victim is their general respectability. Respectability refers to the juror’s viewpoint of the victim on a social, economic, and characteristic status or value. Additional views pertaining to standards set for victims with different levels of acquaintance with their perpetrator may also affect the juror interpretation.
Plaintiff Respectability
Factors such as the victim’s attire at the time of the crime and general respectability of the victim are a source of major bias. These factors may lie under the categories of implicit and explicit biases. Victims who are considered to be generally respectable in their character, social status, and general demeaner were found to be more heavily believed in their case (Edith Greene). Those victims who are seen as less respectable are generally found by juries to not be as readily believable and favored (Edith Greene). A study on the perception of a victim’s attire was done by distributing a questionnaire to high school participants that contained a vignette describing a date rape. This study, performed in 1995, confirmed that victims who were dressed in provocative clothing at the time of the crime are more likely to be held responsible for the actions of the defendant although unwanted and forceful sex occurred (Linda Cassidy).
Various studies have also shown that in addition to attire, sexual history of the victim have a large impact on the evaluation of their case (Schuller and Hastings). Specifically, plaintiffs with a more prevalent sexual history including more partners, were evaluated with more doubt and blame and lessened credibility (Schuller and Hastings). This is attributed to the belief of many individuals which is that those who are highly sexually active promote sexual assault by being promiscuous and leading the perpetrator on. Another previous study was done on victim responsibility as based on mock jurors’ determination of victims who are overweight or have a sexual history (Gotovac and Towson). It was found that specifically women who were both unchaste and overweight received an increased amount of victim blaming and general responsibilities for their sexual assault (Gotovac and Towson). This demonstrates the bias that many people have against those who are overweight, unattractive as pertaining to society’s standards, or historically promiscuous. They often see these people as undesirable and unrespectable. This leads to many conclusions stating that the perpetrator would find the victim undesirable or that the perpetrators assault was called for and normalized.
A major study was done in which a date rape trial was described in a written scenario and a randomized biographical context was given to each participant in the study (Daniel M. Rempala). The participants were asked to determine guilt or innocence as well as rating various aspects of both the defendant and victim (Daniel M. Rempala). It was found that when large amounts of nondiagnostic information such as occupation, religion, relationship status, and hometown are presented about the alleged victim, a lower percentage of guilty verdicts are reached than if extraneous information about the defendant is given (Daniel M. Rempala). This excess of victim information is often heightened by self-incrimination laws that causes less defendants to have to take the witness stand, thusly placing the full focus on the victim (Daniel M. Rempala). More findings from this study showed that negative stereotypes associated with rape victims may affect the perceived salience of the victim, causing victim blaming to increase (Daniel M. Rempala). In other words, when the victims’ attributes and respectability are being very deeply examined, they are more likely to have the blame placed on them based off society’s standards (Daniel M. Rempala). Some examples of these respectability factors may be causality, guilt, extroversion, and social normalcy.
Defendant's Relationship to Plaintiff
Juror perception of the blamability of the victim is also largely related to the relationship that the victim shares with the defendant. It has been found that the perceptions of stranger rape and acquaintance rape differ greatly, attributing more blame to the victim when the defendant was an acquaintance (Ashley A. Wenger). A study was done through the administration of a mock trial summary and survey to undergraduate students at the University of Nebraska-Lincoln (Ashley A. Wenger). Results showed that pre-existing intimate relationships between the plaintiff and the defendant lead to harsher judgements of the victim as well as increased victim blaming (Ashley A. Wenger). Previous studies have been performed on this factor pertaining to violent crimes such as homicide (Dawson). These studies have found that victim blaming and leniency in defendant punishment often result partially from stereotypical images that are present relating to the degree of intimacy that exists between the individuals (Dawson). It was shown that there is a necessary distinction in the details of the intimate relationship that would affect the perception of the crime (Dawson). Specifically, those who were friends with the victim often received the same judgements as if they were a stranger or an acquaintance, however those either in an intimate relationship or a family relationship were set to a different viewpoints (Dawson). Defendants that shared an intimate relationship with the victim were found to receive either no conviction or more leniency in their verdicts due to the increased intensity of emotions associated with these relationships as well as the assumption that this points to a lack of premeditation (Dawson). Many cases of intimate partner violence are not recognized at all due to the generalized societal beliefs that there cannot be non-consensual sexual situations between intimate partners.
The CSI Effect
There are some unconscious bias theories that may have a large amount of influence on the decisions of the jurors. This is an idea called the CSI effect (Kaplan). This occurs in the minds of people through the effect of television crime shows on juror expectations and perceptions of cases (Kaplan). This may lead to unreasonable expectations among jurors and in general society, the elevation of forensic evidence over other forms of evidence, and the perceiving of forensic evidence as infallible (Kaplan). Additionally, this also causes many people to only rely on physical evidence in case evaluations. This can be an issue in sexual assault cases specifically since there is no solid evidence in many sexual assault cases. Therefore, the trivial nature of the “he said/she said” evidence of these trials taints the factual approach to verdict decisions and leads many jurors to doubt the victims recounting (Tuerkheimer). Therefore, the trivial nature of the “he said/she said” evidence of these trials leads many jurors to doubt the victims recounting. This effect also relates to bias in jurors that may come from syndicated television courtroom and news media portrayal (Podlas). Syndicated television courtroom refers to the programming of real trials as they happened (Podlas). Studies have found that this television programming can teach some things about the justice systems that are often flawed or misinterpreted by the people viewing it (Podlas). Although the CSI effect has been seen to have an effect on a person’s knowledge and bias, it has not been found to have enough of an effect to change the verdicts reached by the jurors (Logan A. Ewanation).
Compiled References:
Ashley A. Wenger, Brian H. Bornstein. "The Effects of Victim's Substance Use and Relationship Closeness on Mock Jurors' Judgements in an Acquaintance Rape
Case." Sex Roles 54 (2006). Print.
Brownmiller, Susan. Against Our Will: Men, Women and Rape. New York: Simon & Schuster, 1975. Print.
Burd, Kayla Ann. "When and Where Do Biases Emerge? Memory and Decision Making across Legal Contexts." Cornell University, 2018. Print.
Burt, Martha R. "Cultural Myths and Supports for Rape." Journal of Personality and Social Psychology 38.2 (1980): 217-30. Print.
Chiara Rollero, Stefano Tartaglia. "The Effect of Sexism and Rape Myths on Victim Blame." Sexuality & Culture 23 (2019): 209-19. Print.
Daniel M. Rempala, Andrew L. Geers. "The Effect of Victim Information on Casuality Judgements in a Rape Trial Scenario." The Journal of Social Psychology 149.4
(2009): 495-512. Print.
Dawson, Myrna. "Rethinking the Boundaries of Intimacy at the End of the Century: The Role of Victim-Defendant Relationship in Criminal Justice Decisionmaking over
Time." Law & Society Review 38.1 (2004). Print.
Edith Greene, Heather Koehring, Melinda Quiat. "Victim Impact Evidence in Capital Cases: Does the Victim's Character Matter?" 28.2 (1998). Print.
Felson, Richard B., and Paré Paul-Philippe. "The Reporting of Domestic Violence and Sexual Assault by Nonstrangers to the Police." Journal of Marriage and Family
67.3 (2005): 597-610. Print.
Gotovac, Sandra M. A., and Shelagh PhD Towson. "Perceptions of Sexual Assault Victims/Survivors: The Influence of Sexual History and Body Weight." Violence and
Victims 30.1 (2015): 66-80. Print.
Hafemeister, Thomas L. "Supreme Court Examines Impact of Errors in Detecting Bias During Jury Selection." Violence and Victims 15.2 (2000). Print.
Holland, Kathryn J., and Lilia M. Cortina. ""It Happens to Girls All the Time": Examining Sexual Assault Survivors' Reasons for Not Using Campus Supports." American
Journal of Community Psychology 59.1/2 (2017): 50-64. Print.
Huhtanen, Heather. Gender Bias in Sexual Assault Response and Investigation: End Violence Against Women International, 2020. Print.
Johnson, Holly. "Limits of a Criminal Justice Response: Trends in Police and Court Processing of Sexual Assault " Sexual Assault in Canada. University of Ottawa
Press, 2012. Print.
Kaplan, Jacob. "Public Beliefs About the Accuracy and Importance of Forensic Evidence in the United States." Print.
Karl L. Wuensch, Matthew W. Campbell, Frederick C. Kesler, Charles H. Moore. "Racial Bias in Decisions Made by Mock Jurors Evaluating a Case of Sexual
Harassment." The Journal of Social Psychology (2002). Print.
Linda Cassidy, Rose Marie Hurrell. "The Influence of Victim's Attire on Adolescents' Judgements of Date Rape." Adolescence 30.118 (1995). Print.
Logan A. Ewanation, Susan Yamamoto, Jordan Monnink, Evelyn M. Moeder. "Perceived Realism and the Csi-Effect." Cogen Social Sciences 3 (2017). Print.
Maddera, Julia C. "Batson in Transition: Prohibiting Peremptory Challenges on the Basis of Gender Identity or Expression." 116. Print.
Mobley, Sara Jane. "Identifying Juror Bias: Using the Pretrial Juror Attitude Questionnaire for More Effective Voir Dire." (2007). Print.
Monica Romero-Sanchez, Jesus L. Megıas. "How Do College Students Talk About Sexual Assault?" Journal of Gender Studies 24.6 (2015). Print.
Podlas, Kimberlianne. "Please Adjust Your Signal: How Television's Syndicated Courtrooms Bias Our Juror Citizenry." American Business Law Journal 39.1 (2001).
Print.
Renae Franiuk, Jennifer L. Seefelt, Joseph A. Vandello. "Prevalence of Rape Myths in Headlines and Their Effects on Attitudes toward Rape." sex Roles 58 (2008): 790-
801. Print.
Sable, Marjorie R., et al. "Barriers to Reporting Sexual Assault for Women and Men: Perspectives of College Students." Journal of American College Health 55.3
(2006): 157-62. Print.
Sapir Sasson, Lisa A. Paul. "Labeling Acts of Sexual Violence: What Roles Do Assault Characteristics, Attitudes, and Life Experiences Play?" Behavioral and Social
Issues 23 (2014): 35-49. Print.
Schuller, Regina A., and Patricia A. Hastings. "Complainant Sexual History Evidence: Its Impact on Mock Jurors' Decisions." Psychology of Women Quarterly 26.3
(2002): 252-61. Print.
Shichun Ling, Jacob Kaplan, Colleen Berryessa. "The Importance of Forensic Evidence on Decisions of Criminal Guilt." Science & Justice (2020). Print.
Slyder, Leah M. "Rape in the Civil and Administrative Contexts: Proposed Solutions to Problems in Tort Cases Brought by Rape Survivors." Case Western Reserve Law
Review 68.2 (2017). Print.
Spencer, Chelsea, et al. "Why Sexual Assault Survivors Do Not Report to Universities: A Feminist Analysis." Family Relations 66.1 (2017): 166-79. Print.
Tisha R. A. Wiley, Bette L. Bottoms. "Effects of Defendant Sexual Orientation on Jurors' Perceptions of Child Sexual Assault." Law and Human Behavior 33.1 (2008).
Print.
Tuerkheimer, Deborah. "Incredible Women: Sexual Violence and the Credibility Discount." University of Pennsylvania Law Review 166.1 (2017). Print.
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