Is the #MeToo Movement for Real? Implications for Jurors' Biases in Sexual Assault Cases

AuthorMary Graw Leary
PositionProfessor of Law, The Catholic University of America, Columbus School of Law
Pages83-121
Louisiana Law Review Louisiana Law Review
Volume 81
Number 1
Fall 2020
Article 8
12-11-2020
Is the #MeToo Movement for Real? Implications for Jurors’ Is the #MeToo Movement for Real? Implications for Jurors’
Biases in Sexual Assault Cases Biases in Sexual Assault Cases
Mary Graw Leary
Follow this and additional works at: https://digitalcommons.law.lsu.edu/lalrev
Repository Citation Repository Citation
Mary Graw Leary,
Is the #MeToo Movement for Real? Implications for Jurors’ Biases in Sexual Assault
Cases
, 81 La. L. Rev. (2020)
Available at: https://digitalcommons.law.lsu.edu/lalrev/vol81/iss1/8
This Article is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital
Commons. It has been accepted for inclusion in Louisiana Law Review by an authorized editor of LSU Law Digital
Commons. For more information, please contact kreed25@lsu.edu.
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Is the #MeToo Movement for Real? Implications for Jurors’ Biases
in Sexual Assault Cases
Mary Graw Leary*
TABLE OF CONTENTS
Introduction.................................................................................... 82
I. Undeniable Systemic Attrition in Sexual Assault
Cases in the Criminal Justice System............................................. 84
A. Frequency of Sexual Violence................................................. 85
B. Attrition in Reporting and Law Enforcement Response.......... 86
C. Attrition in Prosecution Decisions
and Jury Performance .............................................................. 87
II. Research Indicates Many Reasons for
Juror Contribution to Attrition ....................................................... 95
A. Bias and Sexism....................................................................... 95
B. Belief in Rape Myths ...............................................................97
C. Rape Culture .......................................................................... 102
D. The Problem of Attrition in Rape Cases Has Remained
Constant Despite Legal and Social Change........................... 103
III. The #MeToo Movement and Its Potential
Influence on Juries ....................................................................... 105
A. The #MeToo Movement Defined .......................................... 106
B. Potential Effects of the #MeToo Movement.......................... 109
C. Potential Effects on the Jury Attrition Problem
in Sexual Assault Cases ......................................................... 111
1. Societal Influences .......................................................... 112
2. Influence on Evidence.....................................................114
3. The Influence on Investigations and Prosecutions.......... 115
Conclusion.................................................................................... 118
Copyright 2020, by MARY GRAW LEARY.
* Professor of Law, The Catholic University of America, Columbus School
of Law. Special thanks to Abigail Rinard and Lauren Huston for research support;
Steve Young for incredible investigation and research; Paula Hannaford for her
insight and feedback; Eric Claeys and the faculty of George Mason Law School
for their helpful feedback and comments; and the staff of the Louisiana Law
Review. A particular thanks for all the survivors of sexual violence and
harassment who bravely share their stories in courts across the nation.
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82 LOUISIANA LAW REVIEW [Vol. 81
INTRODUCTION
Most criminal defendants enjoy a constitutional right to trial by a jury
of their peers.1 This right, long considered a flagship component of the
American criminal justice system, is designed to function with other trial
rights, to ensure an accused receives a fair trial. By acting as an important
buffer between the government and the accused, juries are meant to help
prevent government oppression of the people.2 Such a system hopes to
ensure that criminal defendants are treated with dignity and protected from
unfair harm. While it is an open debate whether the system is successful
in doing so, there is no such debate for victims3 of sexual crimes. It is
abundantly clear that victims of sexual violence are not only traumatized
from their initial victimization, but also retraumatized from a criminal
justice system in which they have few rights and what rights they have are
often honored only in the breach. For decades, research has demonstrated
that one of the stages in the criminal justice system at which victims are
denied justice most frequently is the trial itself, where juries often
mishandle cases of sexual violence.
Juror research demonstrates it is axiomatic that juries judge sexual
assault victims more harshly than other witnesses, base their verdicts on
perceptions of the victim and not evidence, and contribute to the attrition4
1. U.S. CONST. amend. VI.
2. Williams v. Florida, 399 U.S. 78, 100 (1970) (“Given this purpose, the
essential feature of a jury obviously lies in the interposition between the accused
and his accuser of the commonsense judgment of a group of laymen, and in the
community participation and shared responsibility that results from that group’s
determination of guilt or innocence.”); Duncan v. Louisiana, 391 U.S. 145, 156
(1968) (“Providing an accused with the right to be tried by a jury of his peers gave
him an inestimable safeguard against the corrupt or overzealous prosecutor and
against the compliant, biased, or eccentric judge.”).
3. The preferred term for those who have experienced sexual violence is
“survivor,” not “victim.” However, since this Article focuses on the
revictimization of these survivors in the criminal justice system, it uses the terms
“victim” and “survivor” interchangeably. See, e.g., Key Terms and Phrases,
RAPE, ABUSE, & INCEST NATL NETWORK, https://www.r ainn.org/articles/key-
terms-and-phrases [https://perma.cc/DBJ3-VTSQ] (last visited Sept. 12, 2020).
To be clear, however, these individuals are more than their victimization and are
survivors.
4. Attrition rates generally refer to the rate sexual assault cases “drop out”
of the criminal justice system between the time of the victimization through to th e
termination of the case. See, e.g., Barbara Kra& Anja Berger, A social-

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