Jury nullification debate – part 1

With the possible exception of the sexual molestation of a child, rape is a crime that evokes the most visceral of responses from the average person. And for good reason. Sex that is physically forced or obtained by threat of harm sadistically reduces victims to their most helpless state, and leaves lingering damage that may well last the remainder of a person’s life.

So says Paul Elam in the opening of his article on jury nullification and rape. This quote, from a man who has publicly stated that it he ever found himself on a jury a rape case that he would vote to acquit no matter the evidence.

He has his reasons, but first, an introduction to jury nullification. Juries in America have the right to disregard the evidence presented and still vote to acquit an obviously guilty defendant. In the 1850’s, many juries used nullification to disregard the Fugitive Slave Act. During Prohibition, juries frequently let bootleggers free.

Nullification also has had immoral applications, such as Southern juries refusing to convict white defendants for murders of black victims.

I could consider nullification myself in certain situations. For example, if I ever serve on a jury for any marijuana case, I’d vote to acquit despite the evidence. The government’s prohibition of marijuana is wrong and immoral, so a vote for not guilty is necessary and proper.

Elam calls for nullification in rape cases, and he has pledged to vote to acquit on any case no mater the evidence. His reasons are twofold – America’s corrupt criminal justice system and rape shield laws.

In his article, he lists the several processes in a rape case, from the police report to the trial, and details all the possible areas that mistakes can be made. He makes a compelling case, but he misses an important and obvious point.

The endemic problems with our criminal justice system do not pertain to rape cases only, but are problems in any type of case, whether it be murder, drugs, robbery, or whatnot. With the highest per capita prison population in the world, sloppy police work, over-zealous prosecutors, over-worked and under-paid public defenders, mandatory minimums, three strikes and you’re out laws, a reliance on fallible eyewitness reports, coerced confessions, and a disgraceful class imbalance, America’s justice system is woefully broken.

If Elam is to use America’s broken system as a reason to call for nullification in rape cases, then why not at any criminal trial? Why not set murderers and robbers free along with the rapists?

And, that query brings us to Elam’s second bit of reasoning – rape shield laws.

Elam defines rape shield laws well.

Ostensibly, rape shield laws were enacted to limit a defendants ability to cross examine a plaintiff regarding her past sexual conduct, the logic being that such information is not only irrelevant, but might prejudice jurors. For instance, if it were brought out that a married woman alleging rape had engaged in extramarital affairs, it might cause a bias in some jurors that strongly disapprove of such behavior and prompt them to acquit her alleged assailant.

He goes on to say that such laws “seem reasonable,” and he makes a poor attempt to disprove their reasonableness. His approach is to list two instances where rape shield laws were misapplied. That’s all. He makes no attempt to argue against the value or use of the laws. Such an attempt would be doomed to failure, for rape shield laws are important and necessary. Sadly, we still live in a time where many potential jurors could be biased against a sexually promiscuous victim, and those biases could easily lead to the conclusion in the mind of a juror that “the slut deserved it.” Back to my earlier query: why not vote to acquit in any and all criminal cases? Elam’s reasoning is just as applicable in murder trials as it is in rape trials. But, no reasonable person would wish to set any and all defendants free.

Jury duty is an important and difficult task. If called to serve, one must look at the evidence carefully, disregard emotion and visceral reactions, and determine the facts as best as possible. If reasonable doubt exists, then by all means, acquit.

But, if a defendant is obviously guilty, a refusal to convict is morally unjustifiable.