During jury selection for the high-profile sex crimes trial of Ghislaine Maxwell, a confidential questionnaire presented by the court asked potential jurors, “Have you or a friend or a family member ever been the victim of sexual harassment, sexual abuse or sexual assault?” Juror No. 50 checked the box for “no.” After the trial, Juror No. 50 revealed that, during deliberations, he told his fellow jurors that he had been sexually abused as a child and for years had kept this abuse a secret. The court must now decide whether Juror No. 50’s failure to tell the truth requires invalidating Ms. Maxwell’s convictions and granting her a new trial.
On March 8, at an unusual hearing, Juror No. 50 testified that he regretted making “an honest mistake” when rushing through his questionnaire. He was asked to describe repeated instances of abuse at the hands of a former stepbrother and his friend when the juror was 9 and 10 years old and the aftermath for him and his family. But, he told the court, the abuse “doesn’t define” him, and he does not think of himself as a crime victim.
This hearing, the threat to the integrity of Ms. Maxwell’s convictions and the gross invasion of Juror No. 50’s privacy might have been avoided and should have been. Juror No. 50 never should have been asked about his history of sexual abuse in the first place.
The Sixth Amendment entitles every criminal defendant to a trial by impartial jurors. That’s why jurors are screened, whether orally or with questionnaires like the one in Ms. Maxwell’s case. Questions often correspond to issues at hand — about negative experiences with police officers, for example, in cases in which police will testify; drug use in trials for drug crimes; or experience with financial institutions for white-collar crime prosecutions.
The idea is to identify jurors whose experiences could render them unable to be fair and impartial. By this logic, it may seem reasonable to ask potential jurors during selection for a sex crime trial whether they have ever experienced sexual violence. Lawyers on both sides may have good reasons for wanting to know. But the search for impartiality in a sex crime trial must be handled differently. Questions like the one to the Maxwell jury show how far American courts are from reflecting some basic truths about sexual violence and send the wrong message about what impartiality means.
For one thing, sexual violence is extremely pervasive. According to the National Sexual Violence Resource Center, one in five American women will experience rape or attempted rape at some time in her life, to say nothing of other sorts of assault. One in four American men will experience some form of sexual violence, including rape, coercion or unwanted sexual contact. Furthermore, when an inquiry includes sexual harassment — which encompasses behavior that may not even be illegal — how many women can confidently tick the box “no”? Even assuming some people can truthfully attest to having experienced none of the above, questionnaires like the one in the Maxwell case want to know what friends and family have suffered, too, making it tough to imagine who could possibly say “no” — if people are paying attention.
These queries can turn a sacred civic responsibility into a source of humiliation and disrespect. We know how underreported sex crimes are. According to the most recent estimates, up to some three-quarters of the time the victim never goes to the police. Many victims often express fears of being defined by the worst thing that happened to them. If you are among the vast majority who choose silence after such a crime, imagine how jarring it would be to be required to identify yourself as a victim in court — under time pressure, maybe even in writing, on a form whose future disclosure you can’t control — simply because you reported for jury duty.
These questions also imply that sexual violence carries a taint and makes for defective jurors. This is troubling in itself. Consider where it leaves us: Do we really want to stack our juries with “objective” people who believe — no doubt often incorrectly — that they don’t know anyone who has ever been sexually harassed, abused or assaulted? Wouldn’t such a jury have biases of its own? Studies show that rape myths (that a woman should do everything she can to repel her attacker, for example, and that her resistance is a critical factor in determining the rapist’s culpability) affect deliberations in rape cases. To signal a preference for the supposedly unencumbered juror may produce a jury pool even more burdened by false and prejudicial views.
Alison J. Nathan, the presiding judge, took care to note before the hearing that there’s nothing wrong with jurors relying on their experience when deliberating in a case like Maxwell’s: “To be clear, the potential impropriety is not that someone with a history of sexual abuse may have served on the jury. Rather, it is the potential failure to respond truthfully to questions during the jury selection process that asked for that material information so that any potential bias could be explored.” In fact, we should not just tolerate jurors drawing from experience; we should recognize it as the reason our Constitution empowers a diverse jury, not the same judges over and over again, to decide criminal convictions.
Because sexual violence is common but secret, we need to explore the potential for bias in another way. Courts in these cases should ask an open-ended question: Does anything in your life keep you from being impartial? If we pose the question as an invitation rather than an invasion, it will be much easier to answer in an honest way. Courts might even rely on the common practice of asking potential jurors if they are crime victims generally and then invite potential jurors to speak with the judge and attorneys if they want to elaborate in private. (This already happens in some New York courts.) These approaches signal trust and confidence in the potential juror. They make a space for honesty and introspection from all of us, whatever our life stories.
Courts have long affirmed the propriety of jurors drawing on their experiences, about everything from how guns work to knowledge of the banking industry. In a society in which so many of us have direct experience of sexual violence, why ask a question that separates us from our peers and could keep us from sitting in judgment with them?
Tali Farhadian Weinstein (@talifarhadian), a former federal and state prosecutor in New York, is a legal analyst on NBC News and MSNBC.
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