Intoxicated But Not Incapacitated: Are There Effective Methods to Assist Juries in Interpreting Evidence of Voluntary Complainant Intoxication in Cases of Rape?

Abstract

Jurors often negatively evaluate complainants making allegations of rape when those complainants were intoxicated at the time of the assault. It is, therefore, essential that legal practitioners have effective methods of ensuring that jurors use evidence of intoxication for the legally permissible purpose, which is to determine the complainant’s cognitive capacity to consent. This study examines whether providing judicial instructions about how jurors should make use of complainant intoxication evidence assists jurors to use this evidence appropriately. University students (N = 212) read a case synopsis of an Australian criminal trial in which the complainant described experiencing mild or moderate levels of cognitive impairment due to alcohol consumption. Participants were then given a standard instruction about using the evidence of the complainant’s intoxication or one that provided an upper decision limit for determining complainant cognitive capacity (providing inference support). As expected, presenting evidence about the complainant’s alcohol-impaired cognitive state attenuated participants’ negative perceptions of the complainant. The judicial instructions also assisted participants as they evaluated a moderately intoxicated complainant as less capable of consenting when participants received an instruction that supported the correct inference to draw from the evidence compared to a standard instruction. However, parallel mediation analysis showed that rape schemas mediated the relationship between perceived complainant capacity to consent and perceptions of defendant guilt. Judicial instructions that support perceivers’ inferences may assist participants to more appropriately evaluate information about complainants’ intoxication, however problematically, rape schemas still influenced decisions about defendant guilt.

Keywords

rape victim blame alcohol judicial instructions credibility

Rape is a crime disproportionately committed by men against women (Hohl & Stanko, 2015) and has consistently high attrition rates through the criminal justice system in many countries (Daly & Balhours, 2010). In Australia, only 19.1% of rape complainants made a report to police and as few as 5.7% of cases proceed to trial (Cox, 2015). The conviction rate for rape cases is lower than many other crime types (Jehle, 2012) and may discourage complainants from reporting (Cox, 2015). Complainant intoxication is common in rape cases (Cowley, 2014) and is associated with police and prosecutor decisions to decline to proceed with rape complaints (Lievore, 2004). Critically, evidence of complainant intoxication in rape trials is associated with a significantly lower conviction rate than cases in which the complainant is sober (Munro & Kelly, 2009). In this study, we explore whether modifying juror instructions about complainant capacity to consent can improve juror decision making regarding evidence of complainant intoxication in criminal trials for rape.

Given that voluntary complainant intoxication is common, it is important to ensure that jurors use this evidence as they are required to by law. In England and Australia, the jury must find three facts to return a guilty verdict for rape: (a) sexual intercourse, (b) without the complainant’s consent, and (c) with the defendant’s knowledge that there was no consent (Crimes Act, 1900; Sexual Offences Act, 2003). Consent is commonly defined as being freely and voluntarily given by someone with the cognitive capacity to consent (Criminal Code, 1899). Alcohol can impair a complainant’s cognitive capacity to make decisions about consent and intoxication evidence may be used to determine whether the complainant had cognitive capacity to consent (Quilter & McNamara, 2018; R v Francis, 1993).

This decision is complex. If a complainant consumes alcohol, they do not immediately lose their capacity to consent (R v Bree, 2007). To have capacity to consent, the complainant must be capable of understanding their situation and making up their mind (R v Lang, 1976, p. 52). The jury must decide, based on the evidence about the complainant’s intoxication, if a complainant has the capacity to consent. Given the varied effects that amounts of alcohol have on individuals (e.g., Dry, Burns, Nettelbeck, Farquharson, & White, 2012), judges and prosecutors are understandably concerned about jurors’ use of complainant intoxication evidence in rape trials (Carline & Gunby, 2011).

Jurors’ Use of Complainant Intoxication Evidence

The cognitive story model of jury decision making provides one explanation for how jurors make decisions in criminal trials for rape where consent is the contested issue (Pennington & Hastie, 1991). This model suggests jurors use preexisting information about how the world works, like schemas, as well as case evidence to build stories about how events occurred (Devine, 2012). Schemas are scripts for how we expect events to occur (Smith & Studebaker, 1996). Jurors hold schemas for consensual sex and rape events (Littleton & Axsom, 2003; McKimmie, Masser, & Bongiorno, 2014), and these schemas affect how blame is attributed (Stuart, McKimmie, & Masser, 2019). Jurors’ preferred story, generally the one that is most consistent with their schema for the offense (Pennington & Hastie, 1991; Smith, 1991), will be used to decide their verdict. If complainant testimony in a rape trial matches jurors’ consensual sex schema, then they may decide consent is present (making a not guilty verdict more likely). However, if complainant testimony matches jurors’ rape schema, then they may decide consent was not present (making a guilty verdict likely).

There is considerable overlap between schemas for consensual sex and rape and women and men are placed into gendered roles in both schema (Littleton & Axsom, 2003). In these schemas, women act as sexual gatekeepers (Laner & Ventrone, 2000). In traditional consensual sexual scripts, women are expected to restrict sexual activity to maintain allure (O’Sullivan & Byers, 1996). In rape scripts, women are expected to vigorously physically and verbally resist the advances of the perpetrator (e.g., Littleton, Tabernik, Canales, & Backstrom, 2009). In both schemas, passivity (i.e., a lack of resistance) is considered an indicator of consent (e.g., Carroll & Clark, 2006).

Voluntary complainant intoxication increases the likelihood the complainant will appear to be passive during an assault. For example, alcohol impairs a complainant’s ability to physically resist (Davis, Combs-Lane, & Jackson, 2002) and attempts at verbal resistance are subtle in alcohol-involved assaults (Abbey, 2002). By impairing the complainant’s ability to physically and verbally resist, making her behavior more passive, alcohol-involved assaults match consensual sex schema to a greater extent. Also, rape schema involve the defendant inducing the complainant’s intoxication (e.g., by spiking the complainant’s drink; Littleton, Tabernik, et al., 2009). However, voluntary intoxication matches casual consensual sex schema (e.g., Carroll & Clark, 2006; Littleton, Grills-Tacquechel, & Axom, 2009; Littleton, Tabernik, et al., 2009). In trials where there is evidence the complainant became voluntarily intoxicated, both the rape and consensual sex schemas suggest the complainant consented—the complainant’s behavior is inconsistent the former and consistent with the latter. Given that schemas can lead to complainant intoxication evidence being used to blame the victim of sexual assault or inaccurately infer consent, effectively distracting jurors from the purpose for which evidence of complainant intoxication is intended, it is important to investigate how we can support jurors to use this evidence as required by law to determine capacity to consent.

Presenting Complainant Intoxication Evidence to the Jury

Rather than being used as an extra-legal factor by jurors, evidence of complainant intoxication should be used to determine capacity to consent. To make a decision about whether the complainant had capacity to consent, jurors need to evaluate the complainant’s cognitive state and the extent to which alcohol consumption may have impaired their decision making. Presenting direct evidence of the complainant’s cognitive capacity, through the complainant’s testimony when questioned by the prosecutor (examination-in-chief), may be one way of assisting jurors to use intoxication evidence to determine complainant capacity to consent.

Prosecutors are reluctant to use examination-in-chief to present detailed information about the complainant’s impaired cognitive state due to intoxication (Carline & Gunby, 2011). Research suggests presenting brief information about the complainant’s intoxication (e.g., number of drinks consumed or a subjective description like “I felt drunk”) can lead the jury to blame the complainant for the assault (Schuller & Wall, 1998; Untied, Orchowski, Mastroleo & Gidycz, 2012) or doubt her credibility (Lynch, Wasarhaley, Golding, & Simcic, 2013; A. M. Wall & Schuller, 2000). Providing brief information about complainant intoxication does not give jurors the appropriate information to make a fair evaluation of how the complainant’s capacity to consent was affected by intoxication. Furthermore, providing only brief information can lead jurors to make inferences derived from schemas or stereotypes (Fiske & Taylor, 2013). This means that jurors may use stereotypes about intoxicated women or sexual schemas to interpret the victim’s behavior, rather than focusing on how alcohol has reduced the complainant’s capacity to consent. These stereotypes suggest that intoxicated women are more sexually available than non-intoxicated women (George, Gournic, & McAfee, 1988; A. M. Wall & Schuller, 2000), making it seem more likely that consent were given.

In constrast, prosecutors can present to the jury evidence of the complainant’s capacity to consent through questioning the complainant about how alcohol impaired her cognitive and physical state. For example, prosecutors could ask the complainant about whether she was able to think clearly or rationally given her intoxication. Rather than harming the complainant’s credibility, this detailed evidence answers the issue of the complainant’s capacity to consent and may mean that jurors will be less reliant on stereotypes to infer the complainant’s cognitive capacity. In this study, detailed information about the impact of alcohol on the complainant’s cognitive capacity will be provided for mild and moderate levels of complainant intoxication to see if, in combination with judicial instructions, jurors can be supported to make decisions about capacity to consent.

Judicial Instructions to Interpret Complainant Intoxication Evidence

The purpose of judicial instructions is to assist the jury in their role as fact finders (Bornstein & Greene, 2011). However, instructions do not always assist the jury as intended. Research suggests that jurors struggle to accurately infer meaning from instructions (e.g., reasonable doubt; McKimmie, Antrobus, & Baguley, 2014). The language, structure, and concepts within instructions are complicated and contribute to the difficulties jurors have in applying instructions (Daftary-Kapur, Dumas, & Penrod, 2010).

There have been various attempts to reform instructions to make them more user-friendly for jurors including simplification (e.g., Greene & Bornstein, 2000). When judicial instructions are simplified, the instructions are rewritten using less complex language and structure. Some simplification approaches attempt to make the instructions conceptually simpler (e.g., question trails; McKay, Nolan, & Smithson, 2014). However, to make instructions which tell jurors to make an inference (i.e., determining cognitive capacity to consent) easier to use, jurors need more information to help to decipher the instruction and apply a consistent standard for capacity to consent (e.g., Stoffelmayr & Diamond, 2000). This is the opposite of most simplification approaches, which normally reduce the length and information in an instruction.

To make instructions about capacity to consent easier for jurors to use, a balance has be struck between giving the jury more guidance about capacity to consent and not increasing instruction complexity (Greene & Bornstein, 2000). A review of simplification strategies suggests conceptual simplification, rather than reducing linguistic complexity or instruction length, improves juror use of instructions (Baguley, McKimmie, & Masser, 2017). One option to conceptually simplify the capacity to consent instruction is to provide the jury with a list of examples of how a complainant without capacity to consent might behave (e.g., if the complainant slurs or uses illogical speech this might suggest they lack capacity to consent). However, providing examples of complainant behavior as indicators of cognitive capacity might exclude relevant information for jurors to consider (R v Bree, 2007). Also, judges are wary about providing examples of how an incapacitated complainant might behave because alcohol influences the cognitive and physical capacity of individuals in very different ways. As such, example behaviors may not be accurate for all complainants (Dry et al., 2012).

Another method to simplify instructions for capacity to consent is to provide some limits on the scope of the decision about capacity to consent (Stoffelmayr & Diamond, 2000). The instruction could be modified to indicate when a complainant does not have capacity (i.e., an upper limit on the decision about capacity to consent). This provides some additional guidance for jurors by indicating when capacity would be lost by a complainant. Importantly, this simplification approach does not restrict the factors that the jury might consider to evaluate the complainant’s capacity to consent, which is a key concern for judges in these cases (R v Bree, 2007). In this study, we will evaluate a modified judicial instruction which provides an upper limit on capacity to consent (i.e., identifies when a complainant has lost capacity to consent) to see whether this instruction assists jurors to make decisions about the complainant in a trial for rape.

Rape Myth Acceptance and Juror Gender

Belief in rape myths and juror gender also influence how intoxicated complainants are perceived. Rape myths are widely held, inaccurate beliefs about how sexual violence occurs (Burt, 1980; Hockett, Smith, Klausing, & Saucier, 2016). Belief in rape myths influences whether rape complainants are held to blame for sexual violence (Grubb & Turner, 2012) and whether an event is seen to be a legitimate instance of rape. Rape myths about intoxicated women are negative and imply that intoxicated women are to blame for rape or that intoxicated women are looking for sex (McMahon & Farmer, 2011). Given this, we will include rape myth acceptance as a covariate in our analyses so we can examine the influence of rape myths on our key dependent variables.

Juror gender has also been found to influence how intoxicated rape complainants are perceived. Men sometimes blame rape complainants more than women (e.g., Hockett et al., 2016), while women sometimes blame rape complainants more than men (e.g., Cameron & Stritzke, 2003). As juror gender can influence decisions made about intoxicated complainants (Grubb & Turner, 2012; c.f. Cameron & Stritzke, 2003), we will include participant gender as an exploratory factor in our analyses.

Current Study

The purpose of this study was to test the effectiveness of providing a modified judicial instruction about cognitive capacity to consent to see whether this assists jurors in making decisions about this issue in criminal trials for rape. We presented mock jurors with a trial synopsis in which the complainant described experiencing either mild or moderate physical and cognitive symptoms of intoxication at the time of her assault. Participants were then presented with either a standard instruction about the rape offense or an instruction about capacity with an upper limit (describing when a complainant would not have capacity to consent).

We anticipate that providing participants with detailed information about the complainant’s intoxication will reduce their reliance on stereotypes to make inferences about the complainant’s behavior and reduce victim blame (Stuart et al., 2019). When this detailed information is paired with the modified judicial instruction about capacity to consent, we expect that participants will perceive the moderately intoxicated complainant as less able to consent as required by law (Quilter & McNamara, 2018; R v Francis, 1993):

Hypothesis 1 (H1): We hypothesize that participants will evaluate the moderately intoxicated complainant as having less capacity to consent, as being less to blame and more credible when participants are presented with the upper limit instruction compared to the standard instruction. For a mildly intoxicated complainant, we expect a more limited impact of instruction type on participants’ perceptions of capacity to consent, credibility, and blame.

We also want to investigate the relationship between the two decisions that participants are required to make in criminal trials, capacity to consent and decisions about defendant guilt. Despite the steps taken to assist participants to make more accurate decisions about complainant capacity to consent, we anticipate that participants may still rely on consensual sex or rape scripts as a schema to decide their verdict (as predicted by the story model; Pennington & Hastie, 1991).

Hypothesis 2 (H2): We hypothesize that the relationship between perceived complainant capacity to consent and extent of guilt will be mediated by consensual sex and rape schema. We expect that the more a complainant is perceived to have capacity to consent, the less the events will match rape schema and/or the more similar events will seem to consensual sex and the less guilty the defendant will seem.

Method

Participants and Design

Participants were 212 jury-eligible (Australian citizens aged 18 years and older) undergraduate psychology students aged 18 to 47 years (M = 20.80, SD = 4.20) at a major metropolitan university campus who took part for course credit (98 men, 110 women, and 4 who did not disclose their gender). Participants took part in the study online and were randomly allocated to one of the four conditions made up by the between-subjects manipulation of complainant intoxication (mild, moderate) and direction type (standard, upper limit for capacity to consent). Key dependent variables included participants’ perceptions of the complainant (blame, credibility, and capacity to consent), perceptions of the defendant (blame and guilt) and the similarity of the case events to rape and consensual sex schema. The study protocol was approved by the university Human Research Ethics Committee.

Materials

Stimulus

The stimulus consisted of a trial synopsis followed by the judicial instructions. The manipulation of the complainant’s level of intoxication was presented in the trial synopsis. In this, participants were presented with a transcript of the complainant’s testimony in which she was questioned by the prosecutor. The complainant described a typical alcohol-involved assault scenario.

During her testimony, the complainant mentions consuming alcohol. Complainant intoxication was manipulated through the complainant’s testimony about the physical and cognitive impairment she experienced as a result of consuming alcohol throughout the evening leading up to the rape. No other information, for example, the total number of drinks consumed by the complainant or the complainant’s blood alcohol content was provided in the trial synopsis.

In the mild intoxication condition, the complainant testified that she experienced increased gregariousness/humor, mild euphoria, reduced inhibitions, and small muscle control loss, the physical and cognitive impairments associated with a blood alcohol content of approximately .05 (National Institute on Alcohol Abuse and Addiction [NIAAA], 2010). In the moderate intoxication condition the complainant testified that she experienced the deficits described in the mild intoxication condition as well as poor balance/coordination, slowed reaction time, slurred speech, memory impairment, engaging in risky behavior, and slow decision making. These physical and cognitive impairments are associated with a blood alcohol content of .08 to .10, achieved by binge drinking 4 to 5 standard drinks in 2 hr (NIAAA, 2010; the trial synopses are available at https://osf.io/95fhk/).

The judicial instructions included the definition of rape and consent from the Sexual Offences Act (s1; 2003), which is similar to rape definitions used in several Australian criminal law jurisdictions (e.g., Crimes Act, 1900). In the modified instruction condition participants were also given an upper limit for the decision of capacity to consent. The modified instruction identifies the point at which the complainant would not have capacity to consent (i.e., prior to losing consciousness). The text of the inference support instruction was: A person who voluntarily consumes alcohol may not have the capacity to consent to sexual penetration. A person’s capacity to consent to sexual penetration may be impaired before they lose consciousness as a result of alcohol they have consumed. If a person does not have the capacity to consent to sexual penetration, they cannot give consent and consent cannot be present.

Measures

Acting in the capacity of a juror in the criminal trial, participants were asked to answer a series of questions. Participants were asked to indicate whether they thought the defendant was guilty or not guilty. Participants were also asked the extent to which they thought the defendant had raped the complainant on a scale of 1 (strongly disagree) to 7 (strongly agree) as a measure of extent of guilt. A bipolar scale was used to measure extent of guilt so rating intensity and direction was provided (Kennedy, 2011). Bipolar scales have been used in continuous measures of guilt previously (e.g., Bright & Goodman-Delahunty, 2006).

Complainant blame

Complainant blame was measured using six items about the complainant’s responsibility for the assault including items about extent of fault, experience of self-blame and sympathy felt for the complainant (reverse coded).

Complainant credibility

Complainant credibility was assessed with five items focused on the complainant’s believability as a witness including her honesty, the accuracy of her memory and her overall credibility.

Complainant capacity to consent

Complainant capacity to consent was measured using seven items assessing perceptions of the complainant’s mental capacity to make a decision about consenting to sexual intercourse. Items queried whether the complainant was able to logically reason, was in control of her actions or was mentally impaired at the time of the assault.

Defendant blame

Defendant blame was measured using five items about the defendant’s culpability for the assault. Items included the extent to which the defendant was to blame and was in control of the alleged assault events.

Consensual sex and rape typicality

Consensual sex typicality was measured using three items focused on the extent to which the case events appeared similar to participants’ schema of consensual sex. The three items were the following: How similar are the events portrayed in this case to a typical act of consensual sex?; To what extent are the events portrayed in this case like a typical act of consensual sex?; To what extent would you categorize the events portrayed in this case as typical consensual sex? Rape typicality was measured using three identical items with the term rape replacing consensual sex.

Complainant blame, credibility, capacity to consent, defendant blame and consensual sex and rape typicality were measured on 7-point scales. Scale anchors represented absolute rejection or endorsement of the item, for example, 1 (none) to 7 (complete). Responses across the items for each construct were averaged following recoding so higher scores indicated higher levels of the construct. Reliability for all constructs was high (see Table 1 for Cronbach’s alpha scores).

Table 1.

Condition Sizes, Means and Standard Deviations for Dependent Variables.

		Complainant Blame	Complainant Credibility	Complainant Capacity	Defendant Blame	Rape Typicality	Consensual Sex Typicality	Extent of Guilt	Verdict
	α	.88	.89	.90	.84	.99	.94	—	—
	n	M (SD)	M (SD)	M (SD)	M (SD)	M (SD)	M (SD)	M (SD)	Guilty (Not guilty)
Mild intoxication
Standard
Men	23	3.32 (1.37)	4.25 (1.31)	3.31 (0.95)	5.55 (0.82)	4.59 (1.50)	3.20 (1.73)	5.00 (1.60)	18 (4)
Women	26	3.36 (1.41)	4.90 (1.14)	3.14 (1.28)	5.71 (0.73)	4.91 (1.27)	2.61 (1.36)	5.46 (1.10)	23 (3)
Inference support
Men	25	3.51 (1.56)	4.33 (1.14)	3.67 (1.08)	5.19 (0.88)	4.71 (1.60)	3.36 (1.87)	5.00 (1.73)	17 (7)
Women	29	3.40 (1.45)	4.54 (1.23)	3.41 (1.17)	5.64 (0.67)	4.83 (1.40)	2.89 (1.57)	5.45 (1.18)	24 (5)
Moderate intoxication
Standard
Men	22	3.58 (1.22)	4.28 (0.91)	2.94 (1.16)	5.45 (0.79)	4.71 (0.99)	3.12 (1.59)	4.62 (1.56)	18 (3)
Women	32	3.24 (1.54)	5.06 (1.17)	2.22 (1.04)	5.71 (0.71)	5.49 (1.27)	2.67 (1.70)	5.94 (1.13)	27 (5)
Inference support
Men	28	3.51 (1.56)	4.44 (1.44)	2.13 (0.78)	5.50 (0.63)	4.66 (1.58)	2.87 (1.55)	5.61 (1.29)	25 (2)
Women	23	3.03 (1.13)	4.50 (1.04)	1.99 (0.83)	5.75 (0.66)	5.52 (1.30)	2.20 (1.45)	6.00 (0.95)	21 (2)
Total	208	3.36 (1.39)	4.56 (1.20)	2.83 (1.20)	5.57 (0.74)	4.94 (1.40)	2.85 (1.61)	5.42 (1.38)	177 (31)

Updated Illinois Rape Myth Scale (UIRMA; McMahon & Farmer, 2011)

The UIRMA is a 22-item measure of Rape Myth Acceptance. The scale includes several myths about intoxicated complainants and defendants (e.g., “If a girl is raped while she is drunk, she is at least somewhat responsible for letting things get out of control”). Responses to the items were made on 1 (strongly agree) to 5 (strongly disagree) scales. Higher scores represent greater rejection of rape myths (α = .94).

Manipulation checks

Finally, participants were asked to complete several manipulation check items to assess perceptions of complainant intoxication (1, completely sober to 7, extremely intoxicated), and the relevance of intoxication to determining complainant capacity to consent (1, not at all relevant to 7, extremely relevant).

Procedure

Participants were provided with a study information sheet, including their right to withdraw without penalty, and gave their consent to participate. Participants read the trial synopsis containing either the mild or moderate complainant intoxication manipulation. Then participants read the judicial instructions containing either the standard instruction or the modified instruction. Participants completed the measures and were debriefed.

Results

Manipulation Checks

Responses to the manipulation checks were analyzed using two 2 (complainant intoxication) by 2 (instruction type) ANOVAs. Complainant intoxication was successfully manipulated with the complainant perceived as significantly more intoxicated in the moderate intoxication condition (M = 6.35, SD = 0.86) than in the mildly intoxication condition (M = 5.22, SD = 1.06), F (1, 205) = 71.72, p < .001, η = .25. No other significant effects emerged, ps > .075. However, the inference support instruction did not increase participants’ perceptions that the complainant’s intoxication was relevant to determining her capacity to consent. Rather, participants who read the standard instruction evaluated intoxication as equally relevant to determining capacity to consent (M = 5.65, SD = 1.58) as participants who read the inference support instruction (M = 5.75, SD = 1.50), F (1, 203) = 0.31, p = .581, η = .001. No other significant effects emerged, ps > .068.

Main Analyses

Unless specified otherwise, all analyses are 2 (complainant intoxication: mild vs. moderate) by 2 (instruction type: inference support vs. standard) by 2 (participant gender: men vs. women) ANCOVAs with the UIRMA entered as the covariate.¹ The condition sizes, means, and standard deviations for all continuous dependent variables are reported in Table 1.

Rape myths

To assess the impact of rape myths on key dependent variables, we examined the relationship between as measured by the UIRMA and our key dependent variables. Rejection of rape myths was significantly related to participants’ perceptions of the complainant, defendant, and the typicality of the events in each ANCOVA analysis. Rejecting rape myths to a greater extent was associated with reduced complainant blame, reduced complainant capacity to consent, and viewing the events as less typical of consensual sex. Rejecting rape myths to a greater extent was also associated with increased complainant credibility, defendant blame, extent of guilt, and perceiving the events as more typical of rape (see unstandardized regression coefficients in Table 2).

Table 2.

Summary of Covariate Results for ANCOVA on Dependent Variables.

Dependent Variable	F	η	B	95% CI
Complainant blame	198.37**	.49	−1.30	[–1.48, –1.12]
Complainant credibility	60.65**	.22	0.75	[0.56, 0.93]
Complainant capacity	23.16**	.08	−0.44	[–0.62, –0.26]
Defendant blame	57.23**	.21	0.45	[0.33, 0.57]
Extent of guilt	48.80**	.18	0.76	[0.55, 0.98]
Rape typicality	25.90**	.11	0.61	[0.37, 0.84]
Consensual sex typicality	99.29**	.32	−1.20	[−1.44, −0.96]

Note. CI = confidence interval.

p < .001.

Complainant blame, credibility, and capacity

To test H1, we examined the results of the ANCOVA analyses on complainant blame, credibility, and capacity to consent. After controlling for rape myths, no significant effects were observed for complainant blame, all ps > .169. For complainant credibility, there was a significant two-way interaction between instructions and participant gender after controlling for rape myths, F (1, 199) = 6.32, p = .013, η = .02. Analysis of simple effects within participant gender suggested that for women, the complainant was perceived as less credible when the modified instruction was given (M = 4.33, SD = 1.04) compared to the standard direction (M = 4.94, SD = 1.15), F (1, 199) = 9.05, p =.003, η = .03. In contrast, there was no difference in men’s evaluations of complainant credibility on the basis of direction type, F (1, 199) = 0.37, p = .544, η = .001. No other significant effects emerged, ps > .104.

For complainant capacity to consent, there was a significant main effect of complainant intoxication after controlling for rape myths. Participants who read about a mildly intoxicated complainant rated the complainant as more cognitively capable of providing consent (M = 3.38, SD = 1.13) than those who read about a moderately intoxicated complainant (M = 2.32, SD = 1.01), F (1, 199) = 56.55, p < .001, η = .20. There was also a significant instruction by complainant intoxication interaction, F (1, 199) = 8.92, p = .003, η = .03. Analyses of simple effects within complainant intoxication revealed that when participants read about a moderately intoxicated complainant, those who received the inference support instruction evaluated the complainant as less able to consent (M = 2.08, SD = 0.80) than those who received the standard instruction (M = 2.55, SD = 1.18), F (1, 199) = 5.89, p = .016, η = .02. When participants read about a mildly intoxicated complainant, there was no difference in evaluations of capacity to consent on the basis of instruction type, F (1, 199) = 3.22, p = .074, η = .01. No other significant effects emerged, ps > .215. H1 was partially supported.

Defendant blame and extent of guilt

After controlling for rape myths, no significant effects emerged for defendant blame, ps > .161.

For extent of guilt, there was a significant main effect of participant gender after controlling for rape myths, F (1, 198) = 5.74, p = .018, η = .02, such that women agreed more strongly that the defendant had raped the complainant (M = 5.59, SD = 1.56) than men (M = 5.18, SD = 1.12). There were no other significant effects, all ps > .062.

Event typicality

There were no significant main effects or interactions for consensual sex typicality or rape typicality, all ps > .066.

Verdict

To analyze participants’ decisions about whether the defendant was guilty or not guilty of rape (the dichotomous verdict measure), a logistic regression was undertaken with the UIRMA, participant gender, complainant intoxication level, instruction type and the interaction of instruction type and intoxication level entered as predictors. The dichotomous verdict measure was entered as the outcome variable. A test of the full model with all seven predictors against a constant only model was significant, χ (7, N = 204) = 28.81, p <.001. This suggests that the predictors as a set accounted for differences in verdict decisions. The model correctly classified 84.8% of verdict decisions.

Table 3 shows the regression coefficients, Wald statistics, odds ratios and the 95% confidence intervals for the odds ratios. Based on Wald statistics, only rejection of rape myths (as measured by the UIRMA) significantly predicted verdict decisions. The odds ratio for rejection of rape myths suggests that the more rape myths are rejected, the more likely a guilty verdict is.

Table 3.

Logistic Regression Analysis of Dichotomous Verdict as a Function of Rape Myth, Juror Gender, Complainant Intoxication, and Instruction Type.

	B (SE)	Wald Statistic	Odds Ratio	95% CI for Odds Ratio
	B (SE)	Wald Statistic	Odds Ratio	Lower	Upper
Constant	−2.39 (1.24)	3.74	0.09
UIRMA Score	1.29 (0.29)	18.68***	3.64	2.02	6.53
Participant gender	0.64 (0.87)	0.54	1.90	0.34	10.46
Complainant intoxication	−1.01 (0.81)	1.55	0.37	0.08	1.78
Instruction type	−0.47 (0.81)	0.33	0.63	0.13	3.09
Complainant intoxication × Instruction type	1.42 (0.91)	2.50	4.16	0.71	24.42
Participant gender × Complainant intoxication	−0.76 (0.90)	0.72	0.47	0.08	2.70
Participant gender × Instruction type	−0.27 (0.88)	0.09	0.76	0.14	4.31

Note. R = .13 (Cox & Snell), .23 (Nagelkerke) CI = confidence interval; UIRMA = Updated Illinois Rape Myth Scale.

***

p < .001.

Parallel mediation analysis

To test H2, a parallel mediation analysis was conducted using bootstrapping procedures through PROCESS Model 4 in SPSS (Hayes, 2012). The model examined whether there would be an indirect effect of participants’ perceptions of complainant capacity on extent of guilt via either consensual sex or rape schemas. Rape myth acceptance and participant gender were entered as covariates. Table 4 displays the correlations for key dependent variables. Figure 1 depicts the parallel mediation model tested using PROCESS and the coefficients and standard errors for each path.

Table 4.

Correlations Between Complainant Blame, Complainant Credibility, Complainant Cognitive Capacity, Defendant Blame, Extent of Guilt, Consensual Sex, and Rape Typicality.

Measure	1	2	3	4	5	6	7
1. Complainant blame	—	−.67*	.32*	−.43*	−.46*	.63*	−.55*
2. Complainant credibility		—	−.29*	.43*	.54*	−.49*	.59*
3. Complainant capacity			—	−.31*	−.35*	.40*	−.38*
4. Defendant blame				−	.39*	−.47*	.51*
5. Rape typicality					—	−.39*	.53*
6. Consensual sex typicality							−.44*
7. Extent of guilt							—

Note. Correlations are Pearson’s correlation coefficient.

p < .01.

Figure 1.

Parallel mediation model depicting indirect relationships between perceived complainant capacity to consent and defendant guilt.

The total, b = −0.29, t (206) = −3.99, p < .001, and direct effect, b = −.15, t (206) = −2.19, p = .030, of perceived complainant capacity on defendant guilt were both significant, suggesting that partial mediation had occurred (Hayes, 2009). The total indirect effect of complainant cognitive capacity on defendant guilt, representing the sum of the specific indirect effects, was significant, b = −0.13; confidence interval (CI) [–.23, –.06]. The specific indirect effect via consensual sex typicality was not significant, b = −0.03; CI [–.09, .01]. However, the specific indirect effect via rape typicality was significant, b = −0.10, CI [–.18, –.04]. The overall regression model was significant, with 29% of variance in extent of guilt accounted for perceived complainant cognitive capacity, consensual sex, and rape typicality, R = .29, F (3, 202) = 36.85, p < .001. In addition to directly influencing extent of guilt, perceptions of complainant capacity to consent indirectly influenced extent of guilt through perceptions of rape typicality. Specifically, as perceived capacity to consent increased, the alleged assault events are seen as less similar to a typical rape. However, the more that the events were perceived to be similar to a typical rape, the more likely the defendant is perceived to be guilty. H2 was partially supported.

Discussion

Complainant intoxication evidence is common (Cowley, 2014) and is associated with attributing blame to complainants in rape trials (Grubb & Turner, 2012). The purpose of this study was to investigate whether modified judicial instructions, including an upper decision limit, would support jurors to make decisions about the complainant’s capacity to consent as required by law. We found that the modified judicial instructions assisted mock jurors to make more accurate decisions about complainant capacity to consent for a moderately intoxicated complainant (supporting H1) and that rape and consensual sex schema mediated the relationship between participants decisions about complainant capacity to consent and defendant guilt (supporting H2).

Consistent with H1, we found that when the complainant described herself as being moderately impaired by alcohol, participants who received the instruction with an upper decision limit evaluated the complainant as less able to consent than those who received the standard instruction. There was no effect of instruction for the mildly intoxicated complainant. This suggests that relatively short and simple judicial instructions on complainant capacity to consent can assist jurors to make complex but relevant decisions about evidence regarding the complainant’s level of intoxication.

However, there was no interaction between level of complainant intoxication and instruction type on participants’ perceptions of the complainant’s credibility or blame for the assault as predicted. This result is contrary to earlier research on complainant intoxication evidence, which suggested that intoxicated complainants are perceived to be more to blame for their assault and less credible as witnesses at trial (e.g., Lynch et al., 2013). One explanation for this may be the description of complainant intoxication used in this study. Previous studies used brief and ambiguous information to describe complainant intoxication (e.g., number of drinks consumed; L. Wall & Quedara, 2014). In this study we provided participants with a detailed and less ambiguous description of how the complainant’s cognitive capacity was affected by intoxication which may have negated participants’ reliance on stereotypes about rape complainants. This information may have reduced perceptions of the complainant’s responsibility for the rape event (i.e., complainant blame) by focusing mock jurors’ attention on issues around capacity instead.

Another explanation for why no effect of complainant intoxication was found on complainant credibility or blame is the absence of a no alcohol condition in this study. Previous studies which have found an effect of complainant intoxication on complainant blame have used no alcohol conditions, where the complainant does not drink at all, with the largest differences in complainant blame observed between no alcohol and alcohol conditions (e.g., Untied et al., 2012; A. M. Wall & Schuller, 2000).

There was partial support for H2, that the relationship between perceived complainant capacity to consent and extent of guilt was mediated by consensual sex and rape schema in parallel. Only rape typicality—the extent to which the case events matched participants’ rape schema—mediated the relationship between perceptions of complainant capacity to consent and defendant guilt. The more that participants thought that the complainant had capacity to consent, the less the alleged assault events were seen as similar to rape. However, to the extent that the case events resembled the rape schema, the more that participants thought it was likely that the defendant was guilty. Problematically for judges and prosecutors, rape schema, which often do not match the legal definition of rape, play a key role in (mock) jurors’ determination of defendant guilt.

Rape Myths and Juror Gender

Rape myths consistently influenced perceptions of the assault events, the complainant, and defendant. The more that participants rejected rape myths, the more positively they evaluated the complainant, and the more negatively they evaluated the defendant. Rejection of rape myths was also associated with seeing the events as being more like a typical rape and less like consensual sex. This is consistent with existing research which suggests that endorsement of rape myths results in blaming complainants for rape and justifying the use of sexual aggression by perpetrators of rape (Hockett et al., 2016).

Participant gender interacted with instruction type to influence participants’ perceptions of the complainant’s credibility. Women perceived the complainant to be less credible when they received the inference support instruction compared to when they received the standard instruction. This suggests that there may be negative consequences for complainant credibility associated with focusing women’s attention on the complainant’s capacity to consent through modified judicial instructions. The just world hypothesis suggests that women may attribute more responsibility to a rape complainant to reduce dissonance about the threat that rape poses to their safety (Lerner & Miller, 1978). In this study, complainant blame and credibility were strongly negatively correlated (see Table 3). Focusing women’s attention on capacity to consent in the modified instruction condition may have strengthened the perceived threat of rape, resulting in increased complainant blame and reduced credibility.

Limitations and Future Research

The effect of instructions on participants’ perceptions of the complainant and case is arguably qualified by the results obtained on the instruction content manipulation check. Participants evaluated complainant intoxication as equally important in determining complainant capacity to consent, regardless of the type of instruction they received. However, this question assessed whether participants thought intoxication was relevant to assessing cognitive capacity. Future research should use an objective comprehension test to assess whether participants understood, and applied, the modified instruction.

Another limitation was our sampling of university students as mock jurors in this study. Meta-analytic reviews of jury simulation studies suggest community members and college students make similar decisions in mock juror paradigms (e.g., Bornstein et al., 2017). However, some studies suggest that university students are less biased toward defendants than community members when deciding rape cases (e.g., Keller & Wiener, 2011). A recent meta-analytic review suggest students are more punitive toward defendants than community members in cases involving vulnerable victims (including children, elderly people, and sexual assault victims; Bornstein et al., 2017). Given these mixed findings, future research should replicate this work with community members as mock jurors.

Based on recent work concerning the appropriate power for interactions within factorial designs (e.g., Giner-Sorolla, 2018), we acknowledge that the sample for this study is relatively small especially given the inclusion of participant gender as an exploratory factor. We reran all analyses, excluding participant gender, as a more powerful test of our core hypotheses and found substantially the same pattern of results suggesting these results are robust (see footnote 1). However, future research should directly replicate this study using a larger sample.

Our research protocol for this study utilized trial procedures from the Australian and the United Kingdom criminal law systems (for example, jury-eligibility requirements). We also used a trial synopsis which contained the prosecutor’s examination-in-chief of the complainant without cross-examination by defense counsel. By challenging a complainant’s stereotypicality (e.g., Zajac & Cannan, 2009), cross-examination can influence how jurors perceive the complainant. It is important that jury decision-making research which proposes modifications of trial procedure, such as the modified judicial instructions in this study, are replicated using ecologically valid trial procedure from a variety of jurisdictions (Krauss & Lieberman, 2017). Future research should assess the effectiveness of these modified instructions incorporating trial procedure from other jurisdictions (e.g., the United States or Canada) and including processes like cross-examination.

In this study, we used a continuous measure of defendant guilt which asked participants to consider the extent to which they found the defendant guilty. Typically, studies use continuous measures of defendant guilt which ask participants to consider the likelihood that the defendant is guilty (Bornstein et al., 2017). Future research should replicate this work using a likelihood based continuous measure of defendant guilt.

Future research should also investigate whether the content of the modified capacity instruction could be adapted for use within primary prevention for sexual assault. There is a need for effective intervention to prevent alcohol-involved rape on university campuses (Gerbicki et al., 2017). The content of the modified instructions may be suitable for use in education programs targeted to prevent rape.

Conclusion

Jurors apply themselves diligently to making fair decisions in trials but are aware that decision making is challenging (Thomas, 2010). Research should aim to help judges and barristers make decisions about the most effective ways to assist jurors to use evidence as required by the law in criminal trials. Importantly for judges and prosecutors in rape trials, these results suggest when presented with evidence of how intoxication affected the complainant’s cognitive capacity via complainant testimony, the inference support instructions seem to support jurors to determine a moderately intoxicated complainant’s capacity to consent. Our evaluation suggests that (mock) jurors’ use evaluations of complainant capacity to consent in their decision making, but problematically also rely on legally irrelevant schemas to reach their verdicts.

Footnotes

Declaration of Conflicting Interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) disclosed receipt of the following financial support for the research, authorship, and/or publication of this article: This research was supported by the Australian Government through the Australian Research Council’s Discovery Projects funding scheme (project DP120101104).

Notes

Author Biographies

Faye T. Nitschke is a PhD candidate in the School of Psychology at the University of Queensland, Australia. Her research investigates how jurors’ emotional responses to evidence influence their decision making in criminal trials. She is also interested in how criminal trial procedure, such as judicial instructions or examination style of counsel, influences jurors’ perceptions of eyewitnesses.

Barbara M. Masser, PhD, is a professor and holds the Australian Red Cross Blood Service Chair in Donor Research in the School of Psychology at The University of Queensland, Australia. Her research interests include basic and applied aspects of attitudes and social cognition, gender, sexual aggression, and blood and blood production donation.

Blake M. McKimmie, PhD, is an associate professor (Reader) in the School of Psychology at The University of Queensland. His research investigates how jurors make decisions and the effect of being in a group on individuals’ attitudes and behaviors. He runs the Applied Social Psychology Lab in the School of Psychology:

Maddison Riachi graduated with a bachelor of psychological science (first class honors) in 2015 from The University of Queensland. Maddison is currently studying a doctorate of Psychology (Clinical and Forensic) at Swinburne University. Maddison’s primary research interest is child maltreatment, in particular, the risk assessment of child maltreatment.

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