Few trials involving child sexual abuse have reached the level of notoriety as United States v. Ghislaine Maxwell (2021). Maxwell was convicted of five counts of child sex trafficking stemming from her involvement in Jeffrey Epstein’s sexual abuse of minors. But a month later, a juror in her case – self-identified as Scotty David – admitted that he had experienced child sexual abuse himself and that he had discussed his experience with fellow jurors during deliberations. As reported by The Independent (2022), he had marked “no” when asked about his history of child sexual abuse on his pre-trial voir dire questionnaire. This revelation prompted the defense to request a retrial. As we write, trial judge Alison Nathan has pursued an evidentiary hearing regarding David’s voir dire questionnaire responses, but she has not yet granted a retrial, arguing that although the juror’s failure to respond truthfully during voir dire is problematic, there is nothing inherently wrong with permitting jurors with sexual abuse experiences to serve on trials involving sexual abuse. Even so, Judge Nathan will review briefings submitted by both parties regarding a retrial. 

Does a history of child sexual abuse influence jurors’ decisions in child sexual abuse cases? Attorneys and judges intuit that it might, routinely asking about such experiences during voir dire (Bochnak, 2012; Cramer et al., 2009; Plotkin, 2020). Our recent research provides a scientific basis for understanding that, in general, jurors’ sexual abuse experiences do influence their judgments in sexual abuse cases (Jones et al., 2020).

The Influence of Jurors’ Sexual Abuse Experiences on Case Judgments: What the Science Reveals

Many laboratory and field studies have examined the impact of various juror characteristics, experiences, and attitudes on their reactions to victims and case judgments in child sexual abuse cases (for reviews see Burke et al., 2020; Golding et al., 2020). For instance, compared to others, jurors with more pro-child attitudes and more victim empathy tend to believe child sexual abuse victims more and are more likely to convict their accused abusers (Bottoms et al., 2014).

We recently published the only empirical study that we know of examining how jurors’ own sexual abuse experience influences their judgments in child sexual abuse cases (for details, see Jones et al., 2020). We expected that, compared to non-abused jurors, jurors with sexual abuse experience would have more empathy for child victims in general, find victims to be more credible, and be more likely to convict defendants. Why, psychologically? People who have experienced traumas are often more empathic with, feel more similar to, and are more prone to help and protect others who are suffering (Tedeschi, 1999; Stidham et al., 2012). Believing victims and convicting abusers are ways to help and protect child abuse victims.

Method. We used meta-analyses to combine data from nine existing studies in which 2,447 adults played the role of juror and considered details of a child sexual abuse trial, then made case judgments. Case circumstances, defense and prosecution arguments, witness statements, judicial instructions, etc. were reviewed by practicing attorneys for realism. Victim testimony was provided variously across the studies as video footage from actual child victims at a pretrial hearing, video of child actors, written summaries, or detailed written transcripts. Mock jurors rated how credible they considered the victim, whether they would vote guilty, and their confidence in that guilt judgment. The latter two were combined into a “degree of guilt” measure.

In an ostensibly unrelated task, often weeks or months before the mock trial, participants indicated the extent to which they generally empathized with child sexual abuse victims on the 11-item Child Victim Empathy Scale (Bottoms et al., 2014; example item: “I can really empathize with the helplessness a child victim might feel during a sexual assault”). At that time, the mock jurors also responded to the following voir-dire types of questions:

(a) “Have you yourself ever been the victim of child sexual abuse (that is, as a child —under age 18 years— did you have sexual contact that you did not want)?”,

(b) “Have you yourself ever been the victim of adult sexual abuse (that is, as an adult —over 17 years old— did you have sexual contact that you did not want)?”, and

(c) “Do you personally know anyone else who was the victim of child [adult] sexual abuse?”.

Results. Our diverse sample of 2,447 jury-eligible undergraduates included 14% who indicated being abused as a child, 17% who indicated being abused as a child or as an adult, and 43% indicated being either abused as a child or adult or knew someone who was sexually abused. (These percentages are similar to national incidence studies.)

Analyses revealed that jurors who had been abused themselves were more generally empathic toward child sexual abuse victims, more likely to believe the particular victim in the case they considered, and more likely to favor a guilty judgment in the case. Further, in terms of psychological mechanisms, mock jurors’ increased general child victim empathy drove their pro-victim case judgments – that is, jurors who were most child-victim-empathic were most likely to believe the child victims and most likely to convict.

When we expanded these analyses to include jurors who not only had been abused themselves but who were also either victimized as an adult or who knew another victim, the pattern of results replicated, but the effect sizes were weaker, especially for degree-of-guilt judgments: Such jurors were similarly more child victim empathic and, in turn, rated the child victim as more credible and the defendant as guiltier than did jurors without sexual abuse experiences or acquaintances.

In summary, our methodology involved an unusually large sample of victims and non-victims, a high level of scientific rigor (especially considering that this issue cannot be studied with a true experiment), and approximated circumstances of actual trials. In keeping with attorney and trial consultant intuitions, we found scientific evidence that compared to non-victims, potential jurors in child sexual abuse cases who have directly or vicariously experienced child sexual abuse empathize more with other victims, are more likely to find them credible, and are more likely to convict. This pattern of results was strongest when isolating jurors who had experienced child sexual abuse themselves. Results were similar but weaker when expanding the definition of abuse experiences to include being abused as adults and/or knowing other victims. Of note, even though abused jurors were as a group more likely to be pro-victim and convict compared to the non-abused jurors, there were individual differences among them. Abused jurors who were more generally child-victim empathic were most likely to convict; those with lower levels of general child-victim empathy were less likely to convict. Other research indicates that this is true among non-abused mock jurors as well (Bottoms et al., 2014).

Implications for Trial Practice

First, statistically speaking, the sizes of our effects are overall small to moderate, indicating that other factors we did not measure also affect case judgments, including, of course, case evidence. Even so, Bottoms et al. (2014) found that, individual differences among jurors such as empathy and attitudes are powerful enough to manifest even when evidence is strong and unambiguous. A further examination of individual differences (i.e., severity of sexual abuse) in mock jurors of these studies did not correspond to case judgments; however, greater severity of sexual abuse did increase jurors’ empathy for child victims (Cieminski, 2022). These experiences do not necessarily indicate whether sexually abused jurors will convict or not.

Second, it is always difficult to predict specific individual behavior from group trends (Poldrack et al., 2018). Although we discovered a meaningful effect of abuse history on case judgments among more than 2,400 mock jurors, simply knowing one individual juror’s abuse history does not allow us to predict that particular person’s verdict.

Fifth, be careful about the definition of bias. Legally, bias precludes jurors from considering case evidence fairly and applying the law to a particular set of case facts to determine a verdict. It is not bias when one’s legal decision is simply shaped by one’s experiences, attitudes, or interpretation of the evidence. As put by Diamond (2007), “A jury is not a blank slate… [Courts] tell jurors to consider all of the evidence in the light of reason, common sense, and experience . . . All human decisionmakers (judges as well as jurors) find it necessary to draw on their prior experiences to make sense of what they see and hear (p. 51).” To conclude that abused jurors render biased decisions would require data showing that abusive experiences prevent jurors from using legal evidence and the law to render decisions. There is no such existing evidence.

A final issue to consider is the challenge of assessing jurors’ abuse experiences. Prospective jurors may not be able or willing to answer voir dire questions about abuse experience due to shame, privacy concerns, normal forgetting, relabeling of abusive experiences, misunderstanding of the questions, etc. (Bottoms et al., 2016). We do not know why Scotty David denied his abuse experiences on his voir dire questionnaire, which asked whether he or a family member had been a “victim of sexual harassment, sexual abuse or sexual assault,” and if so, whether he believed the experience would affect his “ability to serve fairly and impartially as a juror in this case” (CNN, 2022). Regarding the latter part of that question, we do know that social psychological research shows that even if humans can recognize their attitudes or biases, they are not able to judge the extent to which such attitudes will influence their future behavior (e.g., Ajzen & Sheikh, 2013). Setting that aside, jurors might not appropriately categorize their sexual abuse experiences as legitimate experiences of sexual abuse. The method preferred by scientists who study child abuse is to provide specific, well-defined examples of the target type of abuse. Courts would benefit from doing the same.

Conclusion

In conclusion, we have found scientific evidence that compared to mock jurors who have not been abused, those with past abuse experiences generally have more empathy for other victims, and in specific cases, they believe victims more and are more conviction-prone. Legal conventional wisdom has presumed that it is fair to strike abused jurors, but not jurors who were not abused. Consider describing our results a different way: Compared to abused mock jurors, those who were not abused did not have as much victim empathy, and in turn, acquitted more often. Why should non-abused jurors’ relative inability to empathize with a child sexual abuse victim and greater inclination to acquit reflect impartiality? On the contrary, we argue, as have others (Vidmar, 1997), that there are many benefits to including abused people on juries in child sexual abuse cases. Parallel arguments have been raised by researchers about the benefits of including victims and victim-empathic jurors (and judges) in rape cases (Fulero & DeLara, 1976; Deitz et al., 1982) and domestic abuse cases (Bandes, 1996). In fact, after talk of abused jurors being struck in Harvey Weinstein’s sexual harassment trial, a trial consultant expressed the concern that “broad dismissals like that raise questions of discrimination against sexual assault survivors” (Sherman, 2020). 

Jury selection ought not to produce jury compositions disproportionately biased for defendants to the detriment of victims whom the law is designed to protect.

Tayler M. Jones-Cieminski, Ph.D., is a postdoctoral fellow in pediatric neuropsychology at the University of Wisconsin-Madison. She has published several articles and book chapters on issues related to psychology and law.

Margaret C. Stevenson is Associate Professor of Psychology at Kenyon College. She has published over 40 papers and two books related to psychology and law, including her most recent, The Legacy of Racism for Children (Oxford).

Bette L. Bottoms is Professor Emerita of Psychology and Dean Emerita at the University of Illinois at Chicago. She has published over 100 papers and 7 edited books on various topics related to psychology and law.

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