Strength Versus Sensitivity: The Impact of Attorney Gender on Juror Perceptions and Trial Outcomes in a Rape Case

Abstract

We examined the impact of attorney gender on perceptions of a criminal rape trial. Community members (N = 208) read a trial summary describing a rape scenario in which the gender of the prosecuting and defense attorney were manipulated. The results revealed indirect effects of prosecuting and defense attorney gender on verdict through perceptions of characteristics related to attorney competency. Qualitative analyses further showed that the terms “strength” and “powerful” were central to juror perceptions of male attorneys, whereas the terms “sensitive” and “sympathy” were central when the attorneys were female.

Keywords

rape sexual assault attorney gender jury decision-making

Calls for change through trends, such as the #MeToo Movement, continue to push the public health issue of sexual assault to the forefront of national conversations (Burke, 2018). Despite the national and global spotlight on this issue, confusion often surrounds how sexual assault is defined and what is encompassed by consent. Sexual assault is defined as “any nonconsensual sexual act proscribed by Federal, tribal, or State law, including when the victim lacks capacity to consent” (Office on Violence Against Women, 2021, section 2). The foundation of this definition is that the act is nonconsensual, or a party involved in the sexual act did not give consent for the act to occur. Legally, consent is described as “a freely given agreement to the conduct at issue by a competent person,” (10 U.S.C § 920 [Art., 120], 2017, section 7). Continued attention to the issue of sexual assault also has potential implications for reporting, prosecuting, and convicting those accused of these crimes. For example, there has been a documented increase in rapes reported to the police in recent years (Morgan et al., 2018). Even with an increase in reporting, national crime data capture only part of the picture of rape in the United States, as rape is still an underreported crime. It is estimated that more than one million women are victims of rape every year (Black et al., 2011), but only about 25% of those are reported to the police (Morgan et al., 2019). Moreover, only 37% of reported rape cases are prosecuted (Tjaden & Thoennes, 2006), and only about 3.3% of all incidences of rape, both reported and not reported to police, result in a conviction (Tjaden & Thoennes, 2006).

Due to the low rates of prosecution and conviction of rape cases, it becomes increasingly important to understand the factors that influence these trials. Previous research has shown that factors outside of strictly legal evidence (i.e., extra-legal factors) influence jurors in criminal cases (Daftary-Kapur et al., 2010) and rape cases are particularly susceptible to the influence of extra-legal factors (Ford, 1986). Further complicating how rape is perceived are cultural norms about sex and gender. The prototypical rape case involves a man assaulting a woman (Rennison, 2002). This dynamic of male perpetrator and female victim is uncommon for most other crimes (e.g., murder, robbery), which normally involve both a male defendant and male victim (Morgan et al., 2019). Thus, rape is considered a gendered crime. Our culture's attribution of rape as woman-victim focused only amplifies gender being central in rape trials and may make gender (including that of the attorneys) more salient to jurors in court, possibly impacting legal decision-making. Although prior research has investigated the perceptions of victim/perpetrator gender in instances of rape (Gerber et al., 2004; Schneider et al., 1994), there is almost no published research investigating the impact of attorney gender on perceptions of rape. This absence of research limits our understanding of how women are perceived in rape trials. The purpose of the current study is to fill this gap in the literature by examining the effects that prosecuting attorney gender, defense attorney gender, and juror gender have on legal decision-making in rape trials.

Gender in the Courtroom

Generally, extra-legal factors have been shown to affect juror perceptions and trial outcomes in criminal cases (Daftary-Kapur et al., 2010). In the context of rape, extra-legal factors related to the victim and defendant, such as defendant desirability, have been extensively examined (Lynch et al., 2020). Moreover, researchers have demonstrated an effect of gender on juror perceptions of rape. Multiple studies have examined participant perceptions of victim gender in rape scenarios, finding that male rape victims are consistently blamed more than female rape victims (Davies & Rogers, 2006; Gerber et al., 2004). Similarly, participants hold the least disapproval of a rape when the perpetrator is a female and the victim is a male as compared to other gender match-ups (Hannon et al., 2000). While the above-mentioned research on victim and perpetrator gender are not in the context of criminal trials and do not have participants render a verdict, these studies still add to the understanding of gender as an extra-legal factor in relation to rape. Additionally, participant gender has proven to be a factor for determining rape trial verdicts. Many studies have examined these effects, consistently finding that female participants render more guilty verdicts and have more pro-victim attitudes than male participants in rape trials (Golding et al., in press).

With regard to attorney gender, several studies have investigated the effects of attorney gender in nonsexual criminal trials. In a breaking-and-entering case, participants preferred to retain a male defense attorney over a female defense attorney (Hodgson & Pryor, 1984). Similarly, in an assault and robbery case, male defense attorneys were more successful than female defense attorneys at obtaining a not-guilty verdict for their client (Hahn & Clayton, 1996). Finally, Salerno et al. (2018) investigated how attorney gender interacts with the expression of anger in a prosecuting attorney's closing statement in a murder trial. Participants acted more favorably toward male prosecuting attorneys who were angry, as participants viewed them as “powerful” and hirable. Participants acted less favorably toward female prosecutors who displayed anger, as they were seen as “shrill” and less hirable than male prosecutors. While all of these studies indicated that attorney gender impacted juror perceptions, there has been no clear and consistently demonstrated effect of attorney gender on verdict outcome (Nelson, 2004).

In addition to research that has shown female attorneys to be perceived as less effective than male attorneys at achieving their desired result in nonsexual criminal trials (Hahn & Clayton, 1996; Hodgson & Pryor, 1984), there has also been an observed effect of attorney gender on other types of legal cases. In the context of cases that appear to be “women's issues,” which are usually legal cases related to children and family matters, jurors and the general public tend to believe female attorneys to be better suited for these trials (Brown & Campbell, 1997; Sumoski, 2001). Legal cases that are typically deemed “women's issues” include custody battles and divorce trials (Brown & Campbell, 1997; Sumoski, 2001). While these studies did not investigate rape as a “woman's issue,” these trials could reasonably be seen as pertaining more to women because of the gendered nature of rape. This could lead the public to view a female attorney as better suited for a rape trial in the same way that a female attorney is viewed as the more appropriate gender for family and child cases, thus resulting in an effect of attorney gender.

Attorney Gender and Rape

Despite the gendered nature of rape trials, the impact of attorney gender on these trials has received very little attention. In fact, to the best of our knowledge there has been only one published study that has investigated the impact of (defense) attorney gender on perceptions of rape, and it was conducted over three decades ago (Villemur & Hyde, 1983). The researchers manipulated the gender of the defense attorney, attractiveness of the victim, age of the victim, and gender of the undergraduate mock jurors. Participants listened to a 50 min audio tape of a mock trial and were shown an image of the victim. Results of the study showed that having a female defense attorney in a rape case led to fewer guilty verdicts rendered by participants than having a male defense attorney. The authors also found a significant interaction between juror gender and defense attorney gender with regard to attribution of fault, such that male jurors attributed more fault to the victim when presented with a female defense attorney compared to a male defense attorney. Female jurors did not show significant differences in attribution of fault to the victim based on defense attorney gender. Although this study (Villemur & Hyde, 1983) presents initial evidence for the effect of defense attorney gender on rape trials, it does not explain why these effects occur by measuring potential mediating variables, such as attorney competency. Perceptions of attorney competence, or the attorney's ability to practice law (operationalized by measuring traits such as skill, intelligence, and efficiency; Fiske, 2018; Fiske et al., 2007), could reasonably affect the outcome of a trial. Furthermore, the authors only examined the effects of defense attorney gender, with no manipulation of prosecuting attorney gender, leading to a limited view of outcomes related to female attorneys.

The Villemur and Hyde (1983) results provide evidence of an effect of defense attorney gender on outcomes and perceptions of rape trials, but it is unclear whether these results would hold today given the substantial cultural shift for sexual assault victims over the past three decades. Since the 1980s, there has been a move toward more inclusive terms defining sexual assault, including a broader definition of what constitutes force, consent, and penetration for an act to be classified as rape (United States Department of Justice, 2014). Moreover, the progression of the antirape movement and rise of the #MeToo Movement have led to differences in the way that our culture perceives victims of sexual violence (Leary, 2020). These changes could impact juror perceptions and decision-making in today's rape trials.

Similar to beliefs about defense attorneys, female prosecutors may be perceived by jurors as a more appropriate gender for an attorney in a gender-focused crime such as rape. The National Institute of Law Enforcement and Criminal Justice suggests that female prosecutors may be more emotionally sensitive to rape victims (Reich et al., 1978). This emotional sensitivity could allow these female attorneys to better represent the victim's case, leading to more guilty verdicts rendered by jurors. However, it is important to note that this speculation about female prosecutors was made in 1978 and gender norms, particularly in the criminal justice profession, have evolved in subsequent decades. For example, in 1980 only about one-third of all individuals enrolled in law school were women but today women make up about one-half of all law school students (American Bar Association [ABA], 2020; Martin & Jurik, 2007). Therefore, it is unknown how jurors may respond to the gender of an attorney in a contemporary context. Further, there is no known published research that has examined the effect of prosecuting attorney gender in rape trials, making the present research even more crucial to understanding the impact of attorney gender on rape trials.

The Present Study

Due to the dearth of research investigating the impact of attorney gender and the importance of understanding extra-legal factors in juror decision-making, this study aimed to investigate juror perceptions of attorney gender in the courtroom within the context of a rape case. The present study expands on prior research investigating attorney gender (Villemur & Hyde, 1983) by examining the impact of both prosecuting and defense attorney gender on a rape trial. This study used a 2 (prosecuting attorney gender) × 2 (defense attorney gender) × 2 (participant gender) between-participants design. Participants were presented with a summary of a mock rape trial and were then asked questions about how they perceived the trial. The gender of the prosecuting and defense attorneys was manipulated using color drawings of each. Based on the limited existing research, we had three hypotheses.

Hypothesis 1

1a: Consistent with prior research (Villemur & Hyde, 1983), we predicted that there would be a main effect of defense attorney gender; participants would have more pro-defendant judgments (e.g., fewer guilty verdicts) when the defense attorney is female compared to male.

1b: We predicted that defense attorney gender would indirectly affect verdict outcomes through juror perceptions of characteristics related to prosecuting and defense attorney competency (i.e., competence, skill, intelligence). For example, jurors would perceive the defense attorney as more competent and the prosecuting attorney as less competent, leading to fewer guilty verdicts rendered by jurors when presented with a female defense attorney compared to a male defense attorney. We hypothesized that jurors would perceive a female defense attorney as more competent than a male defense attorney in a rape trial because a rape trial would be perceived by jurors as a “women's issue,” much like family and marriage legal trials (Brown & Campbell, 1997; Sumoski, 2001), thus resulting in an indirect effect on the verdict rendered.

Hypothesis 2

2a: There would be a main effect of prosecuting attorney gender, such that participants would have more pro-victim ratings (e.g., more guilty verdicts) when presented with a female prosecutor compared to when presented with a male prosecutor. This prediction is based on studies which have shown that female attorneys are deemed more competent in the context of gender-based legal issues than male attorneys (Brown & Campbell, 1997; Sumoski, 2001).

2b: Similar to Hypothesis 1b, we hypothesized that prosecuting attorney gender would indirectly affect verdict outcomes through juror perceptions of characteristics related to prosecuting and defense attorney competency (i.e., competence, skill, intelligence). For example, when participants are presented with a female prosecutor compared to a male prosecutor, participants would give higher ratings of prosecuting attorney competency and lower ratings of defense attorney competency, leading to more guilty verdicts rendered. Again, we believe this indirect effect would occur because participants would view a female prosecutor as better fit for the trial than a male prosecutor due to a rape trial being viewed by jurors as a “women's issue” type of trial (Brown & Campbell, 1997; Sumoski, 2001).

Hypothesis 3

We expected a main effect of participant gender. Female participants would be more pro-victim than male participants. This prediction has robust support across many legal decision-making studies investigating rape trials (for a review see Golding et al., in press).

Exploratory Analyses

In order to better understand how attorney gender impacts juror perceptions and further explain any indirect effects found in the data, we constructed cognitive networks to analyze qualitative data collected corresponding with participants’ reasoning for why the prosecuting and defense attorneys were either assigned or hired to handle the trial. We used a Pathfinder network (PFNET) analysis technique (Schvaneveldt, 1990) to create visual depictions of participant reasoning data, which have been used in prior research investigating mock jurors' perceptions in criminal trials (Golding, Wasarhaley et al., 2015; Magyarics et al., 2015). We employed these analyses to further explain any results found from the study in order to offer deeper insight into how attorney gender specifically impacts juror perceptions and outcome.

Method

Participants

Participants in this study consisted of 250 community members recruited from the website Mechanical Turk (MTurk), a participant recruitment service owned by Amazon. Research has shown that MTurk is a valid source for obtaining participants and is often more representative than convenience samples used in research (Berinsky et al., 2012). Participants received $1 for completing the online survey. The data of 42 participants were omitted from analyses due to participants being unable to correctly answer (a) both manipulation-check questions concerning the independent variables (i.e., what gender was the defense attorney, what gender was the prosecuting attorney) or (b) more than half of the trial comprehension-check questions about the trial (e.g., where did the detective take the victim, what did the defense argue). The final sample consisted of 208 participants, 108 men and 100 women, which was above the required 198 needed for sufficient power (0.95) at a medium effect size (GPower Software; Faul et al., 2009). All participants were U.S. citizens and at least 18 years of age, and thus eligible for jury service. The subjects were primarily (79.8%) White, with 10.1% identifying as Black, 4.8% Asian or Pacific Islander, 3.4% Hispanic/Latinx, 1.4% “other,” and 0.5% Middle Eastern. Participant ages ranged from 18 to 77 years (M = 38.24, SD = 11.50).

Materials

Trial Summary

Participants were presented with an approximately 1,500-word written summary of a fictional criminal trial of rape in the first degree. A modified version of this summary has been used in previous jury decision-making research (e.g., Lynch et al., 2020). The summary intended to depict an acquaintance rape scenario, which was done in an effort to reflect a majority of real-life rape cases (Breiding et al., 2014). The summary stated that the victim of the alleged rape went for a walk at a park near her home where the defendant asked to join her. The two walked together and then parted ways. The victim stated that the defendant followed the victim home without her knowledge and threatened her with a knife as she entered her home. The victim claimed the defendant raped her and then left the residence. The defendant claimed that the sexual encounter was consensual, and that he did not threaten the victim with a weapon. The summary also included direct examination and cross-examination of two witnesses. A detective testified for the prosecution; he recounted arriving at the scene and taking the victim to the hospital. The defense included a witness who recalled seeing the victim and defendant walking and talking together at the park. The attorneys then made their closing arguments, and the participants were instructed by the judge to come to a verdict on the trial. Participants were given a description of the elements needed to render a guilty verdict (i.e., the defendant and victim engaged in sexual intercourse, and that the defendant did so by forcible compulsion), as well as a description of the standard of proof required (i.e., beyond a reasonable doubt).

Regarding the attorneys, they were introduced in the opening description of the case using their gender-appropriate names (e.g., Jill Stevens, Sally Davis, John Stevens, and Sam Davis), and stating their role in the trial (i.e., prosecuting or defense attorney). Participants were also shown an image of each attorney. The image was a drawing of a White male or White female attorney wearing a gray suit on a wood backdrop. We manipulated each attorney's gender. The study used four images to represent the attorneys – two female attorney drawings and two male attorney drawings. The participants saw one of the drawings to represent the prosecuting attorney and another drawing to represent the defense attorney. The drawings were counterbalanced by matching each image used in a trial with each of the other three images available. This method ensured that each image was used as both the prosecuting and defense attorney in the trial, and that each image had been used with all of the other available images.

Trial Questionnaire

Participants were asked to provide a verdict for the trial (guilty or not guilty). They were then asked to rate the guilt of the defendant (1 = not at all guilty, 10 = completely guilty). Participants were finally asked to generate a reason for their verdict. Next, participants rated the prosecuting attorney on three items related to competence, which have been used to measure competence in previous studies (Fiske et al., 2002; Ven et al., 2017). The three items were competence, skillfulness, and intelligence (0 = not at all, 10 = extremely). The participants were next asked the same set of questions about the defense attorney.

Finally, to better understand participant perceptions of the attorneys in the trial, two questions were asked about why the prosecutor or defense attorney was chosen for this case. These questions were open-ended and asked the participant to describe why they thought the prosecutor was assigned to the case, and then why they thought the defense attorney was hired by the defendant. These data were used in PFNET analyses (Schvaneveldt, 1990) to construct visual depictions that reflect relations between different concepts. These depictions are made up of nodes that represent words or phrases and are linked together, representing associations between the nodes. These depictions have been used in various other studies to illustrate the cognitive schemas of participants in the context of criminal court cases (Magyarics et al., 2015).

To construct these networks, we first identified key terms found in the reason data for why each attorney was chosen for the trial. Any key terms were words/phrases that were highly descriptive and of meaningful importance in the context of this study; frequency of terms was also taken into consideration when creating the key terms list. Additionally, we eliminated stop words from this list (e.g., “the,” “a”), and examined the context of each word/phrase within the attorney choice response data. Context was necessary in understanding the participants' use of the word (for instance, the word “knowledge” being used in descriptions for both female and male defense attorneys). In the reason data for female defense attorneys, the word “knowledge” is used to say a female defense attorney has more knowledge of the female experience, whereas for a male defense attorney the word “knowledge” is used to say he is knowledgeable (i.e., smart). Context was used to create separate phrases for two different concepts utilizing the same word. This ensured that the frequency of a word was not counted more towards one use of a word that was being used for multiple concepts than the other, thus leading to a more accurate visual depiction of the data. The PFNET networks were constructed using Matlab (2012).

Procedure

The procedure was approved by the first author's Institutional Review Board. Participants were presented a survey through the website Qualtrics. Participants gave consent and then read the criminal trial and answered questions about their perceptions of the trial. In addition, participants answered questions about the trial at various points throughout the summary. Manipulation-check questions required participants to correctly identify both the prosecuting and defense attorneys’ genders, ensuring that participants were aware of these manipulations. The comprehension-check questions asked participants to recall information about the trial, ensuring that the participants were accurately comprehending the trial summary. At the end of the survey, participants were asked questions about their demographics, including items asking about their gender, age, and political beliefs. Questions were presented in the same order to all participants, as we had no reason to believe that order would affect participant responses. Additional questions to those described earlier were presented to participants but were not analyzed as they did not pertain to the hypotheses of the present study. The survey took about 25 minutes to complete.

Results

The only variable used to determine participant verdict decision was the verdict variable, as it is the most important outcome variable, and participant responses on verdict decision and guilt rating were highly correlated (r = .74, p $\leq$ .001). The data for the study were analyzed using indirect effects models. Table 1 presents the descriptive statistics for all outcome variables as a function of participant gender, prosecuting attorney gender, and defense attorney gender. Table 2 presents the confidence intervals (CIs) for all indirect effect analyses.

Table 1.
Means (Standard Deviations) of Dependent Measures as a Function of Independent Variables (N = 208).

Variable Verdict Prosecuting attorney competence Prosecuting attorney skill Prosecuting attorney intelligence Defense attorney competence Defense attorney skill Defense attorney intelligence

Overall 0.50 (0.50) 7.44 (2.09) 7.14 (2.08) 7.67 (1.82) 7.61 (1.72) 7.52 (1.76) 7.66 (1.78)

Participant Gender

Male 0.43 (0.50) 7.09 (2.19) 6.80 (2.17) 7.45 (1.89) 7.67 (1.52) 7.51 (1.60) 7.68 (1.68)

Female 0.59 (0.50) 7.82 (1.91) 7.52 (1.91) 7.90 (1.71) 7.55 (1.91) 7.53 (1.93) 7.64 (1.88)

Prosecuting attorney gender

Male 0.53 (0.50) 7.13 (2.36) 6.82 (2.28) 7.41 (1.86) 7.36 (1.81) 7.17 (1.87) 7.39 (1.85)

Female 0.48 (0.50) 7.73 (1.76) 7.44 (1.84) 7.91 (1.75) 7.84 (1.60) 7.84 (1.59) 7.91 (1.68)

Defense attorney gender

Male 0.57 (0.50) 7.91 (1.80) 7.65 (1.84) 8.18 (1.57) 7.76 (1.72) 7.75 (1.73) 7.86 (1.76)

Female 0.44 (0.50) 6.96 (2.26) 6.62 (2.18) 7.14 (1.91) 7.45 (1.70) 7.27 (1.76) 7.45 (1.78)

Note. Verdict—not guilty = 0, guilty = 1.

Table 2.
Confidence Intervals (CIs) of Indirect Effects of Defense Attorney Gender and Prosecuting Attorney Gender on Verdict Through Participant Perceptions of Characteristics Related to Attorney Competency.

Independent variable Mediating variable Outcome Point estimate SE 95% CI

LL UL

DA gender → PA competence → Verdict −0.67 0.24 −1.20 −0.28*

DA gender → PA skill → Verdict −0.76 0.26 −1.37 −0.32*

DA gender → PA intelligence → Verdict −0.73 0.22 −1.21 −0.36*

DA gender → DA competence → Verdict 0.01 0.04 −0.05 0.10

DA gender → DA skill → Verdict 0.06 0.05 −0.02 0.18

DA gender → DA intelligence → Verdict −0.01 0.04 −0.11 0.06

PA gender → PA competence → Verdict 0.45 0.24 0.03 0.97*

PA gender → PA skill → Verdict 0.49 0.26 0.05 1.05*

PA gender → PA intelligence → Verdict 0.37 0.20 0.004 0.80*

PA gender → DA competence → Verdict −0.01 0.05 −0.10 0.09

PA gender → DA skill → Verdict −0.06 0.06 −0.20 0.06

PA gender → DA intelligence → Verdict 0.03 0.05 −0.05 0.16

Note. *CI = CI is significant; DA = defense attorney; PA = prosecuting attorney.

Hypothesis 1: Defense attorney gender

We used PROCESS (Hayes, 2013) to examine direct and indirect effects, following the general rule that an indirect effect is significant when the upper and lower limits of the 95% CI do not cross zero. Hypothesis 1 predicted that (a) there would be a direct effect of defense attorney gender on verdict, and (b) that defense attorney gender would be indirectly related to verdict through perceptions related to both the prosecuting and defense attorneys’ competency (i.e., competence, skillfulness, intelligence).

The analyses indicated that there was not a direct effect of defense attorney gender on verdict (OR = 0.61, p = .073); thus, Hypothesis 1a was not supported. However, there was a significant indirect effect of defense attorney gender on verdict through perceptions of prosecuting attorney competency, such that when participants were presented with a female defense attorney, they perceived the prosecutor to be less competent (95% CI: [−1.20, −0.28]), less skillful (95% CI: [−1.37, −0.32]), and less intelligent (95% CI: [−1.21, −0.36]), than participants presented with a male defense attorney, which resulted in a lower conviction rate (see Figure 1a). No measures related to the defense attorney's competency were significant. Thus, Hypothesis 1b was partially supported, as defense attorney gender indirectly affected verdict through perceptions of prosecutor competency, but not through perceptions of defense attorney competency.

Figure 1.
Indirect effects model analysis of (a) relationship between defense attorney gender and verdict, and (b) relationship between prosecuting attorney gender and verdict. Both models demonstrate indirect effects of through perceptions of prosecuting attorney competence, skill, and intelligence.

Hypothesis 2: Prosecuting attorney gender

Hypothesis 2 predicted (a) a direct effect of prosecuting attorney gender on verdict, and (b) an indirect effect of prosecuting attorney gender on verdict through perceptions of characteristics related to prosecuting and defense attorney competency (i.e., competence, skillfulness, intelligence). There was not a direct effect of prosecuting attorney gender on verdict (OR = 0.82, p = .485). However, we found an indirect effect of prosecuting attorney gender on verdict through perceptions of prosecuting attorney competence (95% CI: [0.03, 0.97]), skill (95% CI: [0.05, 1.05]), and intelligence (95% CI: [0.004, 0.80]; see Figure 1b). When participants were presented with a female prosecuting attorney, the participants perceived the prosecuting attorney to be more competent, skillful, and intelligent, thus leading to more guilty verdicts rendered. Prosecuting attorney gender did not indirectly affect verdict outcomes through perceptions of defense attorney competency. In sum, Hypothesis 2a was not supported by the analysis and Hypothesis 2b was partially supported.

Hypothesis 3: Participant gender

The third hypothesis received support. The logistic regression reached significance at model 1 ( $X^{2}$ [3] = 18.62, p $\leq$ .001) and yielded a main effect of participant gender (OR = 2.12, p = .011); female participants (59%) were more likely than male participants (43%) to render a guilty verdict.

Exploratory Analyses: Network Models

We analyzed reasoning data for both the defense attorney and prosecuting attorney in order to better understand participant perceptions related to attorney gender. With regard to defense attorney gender, we created two cognitive networks to depict juror perceptions about why each defense attorney would be hired—one describing the reason(s) a female defense attorney was hired by the defendant (see Figure 2a), and another describing the reason(s) a male defense attorney was hired (see Figure 2b). When examining the reasons participants gave for hiring female defense attorneys (Figure 2a), the central node was “sensitive,” and another node having multiple connections being “appear sympathetic.” One participant, when asked why the defendant may have wanted to hire the female defense attorney, said, “…to make the defendant look better, to look sympathetic being represented by a female.” With regard to characteristics related to the competence of a female defense attorney, this reason was given infrequently by participants (the descriptor “competent” is the only occurrence of this idea). Additionally, when competence did appear in the network, it was not a central node.

Figure 2.
Why hire PFNET models of participants who rendered a not guilty verdict for (a) a female defense attorney and (b) a male defense attorney.

For the male defense attorney (Figure 2b), the central node within this network was “strength,” with other surrounding nodes of “more competent lawyer,” “best for the job,” and “assess case well.” To give more context to these nodes, one participant stated that the male defense attorney was hired by the defendant because, “men [portray] strength and knowledge.” All of these descriptions focus on the male defense attorney being chosen for the job because of his competence as an attorney, rather than any other characteristic.

We then analyzed data related to why the participants believed the prosecutor was assigned to this specific case. We again created two cognitive networks to represent why participants believed the female prosecutor was assigned to the case (Figure 3a), and why the participants believed the male prosecutor was assigned to the case (Figure 3b). Participants described the female prosecuting attorney as being assigned to the case mainly because of sympathy. Participants described the female prosecutor as being assigned because she was able to “garner sympathy from the jury” and was also able to have “sympathy for the victim.” The nodes seemed to revolve around the idea that the female prosecutor was assigned to the case because of emotion. A few nodes described the female attorney as being assigned to the case for reasons related to competency. For example, one node simply described her being assigned because she was an “effective attorney.” Another node alludes to her as being assigned because of her competence (“female attorney better”), but when looking at specific responses, one participant states that, “women are usually better at sex crime cases.” The male prosecutor, on the other hand, was described as being assigned to the case because he was a “capable lawyer,” “powerful,” and “authoritative.” They also describe him as better able to understand the defendant, and as “not emotional” and “not biased.” Participants seemed to believe he was assigned to the case primarily for his strengths as an attorney, rather than for emotional reasons.

Figure 3.
Why assign PFNET models of participants who rendered a guilty verdict for (a) a female prosecuting attorney and (b) a male prosecuting attorney.

Discussion

The present study examined the impact of attorney gender (both prosecution and defense) in an adult rape trial and showed that this extra-legal factor influences legal decision-making in these trials. Specifically, there did not appear to be a direct effect of prosecuting or defense attorney gender on verdict, contrary to previous research (Villemur & Hyde, 1983), but it was shown that both prosecuting and defense attorney gender indirectly affected verdict outcome through perceptions related to prosecutor competence (i.e., competence, skill, intelligence). Participants perceived the prosecutor to be less skillful, less intelligent, and less competent when presented with a female defense attorney compared to a male defense attorney. Conversely, participants perceived the prosecutor to be more competent, skillful, and intelligent when the prosecutor was a female compared to a male prosecutor. Thus, mock jurors utilize information, besides the testimony of the witnesses and evidence presented, to assess the trial and make decisions about the outcomes of the case. In this way, the present results support prior findings that have demonstrated the impact extra-legal factors have in general on rape trials (Lynch et al., 2020). The results also yielded a main effect of participant gender. Female participants were more pro-victim than male participants and were more likely to yield guilty verdicts, which is consistent with a robust literature finding gender differences in how rape cases are perceived (see Golding et al., in press for a review).

While the effects of extra-legal factors are apparent in most types of criminal trials (Daftary-Kapur et al., 2010; Trahan & Stewart, 2011), the specific impact of attorney gender appears to be unique to rape trials. Previous studies investigating attorney gender have shown no consistent impact of this factor on verdict outcomes in nonsexual criminal trials (Hahn & Clayton, 1996; Hodgson & Pryor, 1984; Nelson, 2004), although researchers have shown that jurors perceive male and female attorneys differently. One possibility for the unique impact of attorney gender in rape trials is that rape trials are typically gendered in a way that other criminal trials are not (i.e., male defendant, female victim), thereby increasing the salience of gender.

The effect of attorney gender on rape trials could also be explained by female attorneys being better suited in cases that are deemed “women's issues” (e.g., Sumoski, 2001). The group of cases deemed “women's issues” could extend to rape trials because of society's perceptions of rape as being woman-victim focused. This attribution of female attorneys as being a better fit for rape trials than male attorneys could explain the indirect effects of attorney gender on verdict. A female attorney, regardless of her position in the trial, may be perceived as the best attorney for the job because she is a woman. This could lead to the effects of the prosecutor being perceived as less competent when presented with a female defense attorney, and the prosecutor being perceived as more competent when it is a woman. This explanation would account for why an effect of attorney gender has not been found in nongendered criminal trials.

It is important to note that the present results extend prior research (Villemur & Hyde, 1983) on attorney gender and rape trials in two ways. First, the present study used indirect effects to further analyze the results. There was evidence of indirect effects involving legal decision-making (Golding, Lynch et al., 2015); both prosecuting and defense attorney gender indirectly affected verdict outcome through perceptions of prosecuting attorney competency, skill, and intelligence. Having a female defense attorney resulted in perceiving the prosecutor to be less competent, less skillful, and less intelligent, which led to participants rendering more ‘not guilty’ verdicts. However, having a female prosecutor led participants to perceive the prosecutor to be more competent, skillful, and intelligent, resulting in more guilty verdicts rendered. These findings offer a greater understanding of how attorney gender affects legal decision-making, and demonstrates the need for more research on the effects of attorneys in criminal trials that examines both defense and prosecuting attorneys simultaneously. Presenting and examining perceptions of both attorneys in the legal process can give us a more accurate representation of the real-life impact that attorneys have, and more specifically allows researchers to better understand how women are perceived in various courtroom positions.

Second, we expanded on prior research (Villemur & Hyde, 1983) by using Pathfinder analyses, which offered further explanation of the role gender plays in court. We found that participants used preconceived gender stereotypes in describing why a defendant would choose a female or male defense attorney, and why a male or a female prosecutor would be assigned to the case. Researchers have demonstrated that the typical woman is perceived as high in warmth and low in competence, whereas the typical man is perceived as high in competence and low in warmth (Eckes, 2002). These two terms, warmth and competence, have been widely accepted in the field as the two dimensions of social judgments (Fiske, 2018). Warmth refers to traits related to interpersonal relationships or personal intent (either good or ill intent); therefore, being high in warmth typically includes traits such as friendly, likable, sincere, and understanding (Fiske, 2018; Fiske et al., 2007). Alternatively, competence refers to traits related to a person's ability to carry out that intent; high competence includes traits such as intelligent, knowledgeable, skillful, and efficient (Fiske, 2018; Fiske et al., 2007).

Our networks revealed that participants stated that the defendant would hire a female defense attorney primarily due to traits that could be argued as relating to high in warmth. Specifically, participants described the female defense attorney as “sensitive,” as seen through the central node, and also described the defendant hiring her because she “appears sympathetic,” and “compassionate.” All of these traits are arguably highly interpersonal, or having to do with good intent, thus relating to high in warmth. Moreover, terms related to competence were rarely used to describe why the defendant may hire the female defense attorney. The trait “competent” only appeared once in the network and was not a central node. Similarly, the female prosecutor was described as being assigned to the case because she would be able to “garner sympathy” or because she could have “sympathy for the victim.” These traits, again, are arguably highly interpersonal, and thus reflect perceptions of warmth. Female prosecutors were not often described as competent, with only one node describing her as being assigned because she was an “effective attorney,” and another node describing her as a “better” attorney, but this appeared to be in relation to sex crime cases specifically. This leads us to believe that the female prosecuting and defense attorneys were perceived as high in warmth but not high in competence, similar to how the typical woman is perceived (Eckes, 2002).

The male defense attorney was described by participants as being hired primarily due to his “strength,” with other nodes referring to him as a “competent lawyer,” and that he was hired because he “assesses [the] case well.” Additionally, the male prosecutor was described as being assigned because he was a “capable lawyer,” “powerful,” and “authoritative.” These traits are arguably describing the male prosecuting and defense attorneys as being high in competence, as these terms refer to a high ability to carry out intent. There were no nodes clearly referring to warmth for either the male prosecuting or defense attorney, leading us to believe that the male attorneys were perceived by participants as high in competence but not high in warmth, similar to stereotypes about the typical man (Eckes, 2002).

The perceived warmth of female attorneys partly explains the results related to attorney gender. Perceived warmth may have been viewed as beneficial to the trial by participants, because of the sensitive and gendered nature of the crime committed. Due to the female attorneys being viewed as warm, whereas male attorneys were viewed as competent (but presumably cold), female attorneys may be perceived as better suited for handling this type of trial than male attorneys.

It should be noted that the present study did not find a direct effect of prosecuting or defense attorney gender on verdict (Hypotheses 1a and 2a). This finding supports previous research involving nonsexual criminal trials, which has not consistently presented a direct effect of gender on criminal court cases (Nelson, 2004). The lack of impact of prosecuting and defense attorney gender on verdict may reflect that it is not gender, but other factors relating to attorney gender that impact trial outcomes in rape cases. Moreover, the use of a trial summary description and images of the attorneys may not have led to detecting a direct effect of attorney gender in a rape trial. The direct impact of attorney gender may be revealed in a more realistic trial setting, which could involve having mock jurors watch a realistic trial video.

Implications

These results have important implications for the research on attorney gender and legal decision-making in rape trials, as well as for the real world. Regarding the former, the current study extends prior studies that have found an effect of defense attorney gender in rape trials (Villemur & Hyde, 1983). It also supported the current literature concerning the effects of juror gender on rape trial outcomes (Golding et al., in press). Furthermore, the results of this study have expanded the knowledge surrounding rape trials and the effects of gender in the courtroom by offering evidence as to why these effects occur through indirect effects and cognitive networks.

These findings have potential implications for the outcomes of rape trials, as well. Currently, instances of rape are not only underreported, but also prosecuted at a very low rate, thereby leading to low rates of conviction (Morgan et al., 2019; Tjaden & Thoennes, 2006). The results presented can offer a possible explanation for these low conviction rates, as defense attorney gender specifically may be playing a role in conviction rates at rape trials. Defendants represented by female defense attorneys may be less likely to be convicted, leading to an even harder uphill battle for victims of rape. This, of course, is likely not the only factor contributing to low conviction rates. There is a large body of literature describing how factors such as rape myths impact juror decision-making in rape cases (see Leverick, 2020); thus, attorney gender should not be considered a sole, or even main, explanation for low conviction rates. Moreover, qualitative data regarding jurors’ perceptions of why a male or female defense and prosecuting attorney would be assigned to, or hired for, a case give us reason to believe that jurors still draw on gender stereotypes about men and women when evaluating attorneys in the context of rape trials. A female attorney may not be described as competent or skillful, but rather sympathetic and compassionate, which may lead to more success for female attorneys in rape trials, specifically. This assumption of female warmth may cause jurors to automatically deem a female attorney as better suited for a rape trial, and therefore have a better case, overall.

The attribution of female attorneys as warm may also be what is hindering female attorneys' growth in their field (Nelson, 2004). It could explain why female attorneys are deemed less hirable (Salerno et al., 2018), or are less successful (Hahn & Clayton, 1996), as this idea of a female attorney as warm could be perceived as a weakness, not a strength, in nongendered criminal cases. The sexism that is present in this ideology may hinder female attorneys in general, as these attitudes could be detrimental to their careers. In 2019, roughly half of law school students were women (ABA, 2020), but female leadership in law is far less than half. Only about 21% of all equity partners were women in 2019 (ABA, 2020). This flawed idea of female attorneys could contribute to the low numbers of females in leadership positions in law.

Limitations and Conclusions

Despite the important findings concerning attorney gender, the present study is not without limitations, which could impact the generalizability of these findings. First, this study was conducted using mock jurors making individual judgments, rather than having participants deliberate in a group setting. For this reason, the results of the study may not translate well into an actual courtroom setting. However, it should be noted that researchers have found that individual jurors’ beliefs generally predict jury outcomes (Diamond, 1997). Second, participants in our study were presented with a written summary of a rape trial. The impact of attorney gender may not have been as salient to mock jurors because only pictures and a summary were provided to participants. Although prior studies have shown that the medium in which a trial is presented does not have a large effect on trial outcomes (Bornstein et al., 2017), it is important to note that this study was a meta-analysis that did not include a large number of rape trials in their analysis. Additionally, the researchers concluded that despite their results, it is still important to replicate findings using different trial mediums (Bornstein et al., 2017). Due to the nature of the trial, a more realistic medium (e.g., video) may produce different results.

Third, participants in this study were recruited using a recruitment service. While this sample may be more generalizable than the college student samples typically used in juror decision-making research, it is far from ideal. Participants recruited from MTurk specifically appear to be more White, politically liberal, and younger than the average population (Berinsky et al., 2012). Additionally, there may be bias present as mock jurors self-select to complete our study, rather than being randomly selected to participate from a population. Fourth, the current study used pictures of attorneys that were White and with traditional gendered appearances. It is reasonable to believe that altering the race of the attorneys would have some effect on verdict outcomes due to the demonstrated impact of attorney characteristics on rape trials. Additionally, due to the images of the attorneys used in the present study look like the “typical” man and woman, the gender stereotypes and assumptions made about them based on their gender may have been more readily available to mock jurors than if the images of the attorneys did not fit the idea of a “typical” man or woman. For this reason, it is important to investigate gendered appearances of attorneys on rape trial outcomes.

Finally, our study only used a female victim and male perpetrator. The idea that gender may be more salient to jurors in rape trials because of the gendered nature of the crime leads us to believe that varying the gender of the victim and perpetrator could produce different results than those found in the present study. Examining these effects would allow for a greater understanding of the impact of gender on rape trials, and the effect that the characteristics of the victim and defendant have in combination with the gender of the attorneys that represent them.

In sum, we have demonstrated an effect of attorney gender on rape trial outcomes and shed light on mock juror perceptions of male and female attorneys within these trials. The current study offers another perspective for thinking about gender stereotypes in the courtroom and their impact not only on trial outcomes, but also on the attorneys themselves.

Variable	Verdict	Prosecuting attorney competence	Prosecuting attorney skill	Prosecuting attorney intelligence	Defense attorney competence	Defense attorney skill	Defense attorney intelligence
Overall	0.50 (0.50)	7.44 (2.09)	7.14 (2.08)	7.67 (1.82)	7.61 (1.72)	7.52 (1.76)	7.66 (1.78)
Participant Gender
Male	0.43 (0.50)	7.09 (2.19)	6.80 (2.17)	7.45 (1.89)	7.67 (1.52)	7.51 (1.60)	7.68 (1.68)
Female	0.59 (0.50)	7.82 (1.91)	7.52 (1.91)	7.90 (1.71)	7.55 (1.91)	7.53 (1.93)	7.64 (1.88)
Prosecuting attorney gender
Male	0.53 (0.50)	7.13 (2.36)	6.82 (2.28)	7.41 (1.86)	7.36 (1.81)	7.17 (1.87)	7.39 (1.85)
Female	0.48 (0.50)	7.73 (1.76)	7.44 (1.84)	7.91 (1.75)	7.84 (1.60)	7.84 (1.59)	7.91 (1.68)
Defense attorney gender
Male	0.57 (0.50)	7.91 (1.80)	7.65 (1.84)	8.18 (1.57)	7.76 (1.72)	7.75 (1.73)	7.86 (1.76)
Female	0.44 (0.50)	6.96 (2.26)	6.62 (2.18)	7.14 (1.91)	7.45 (1.70)	7.27 (1.76)	7.45 (1.78)

Independent variable		Mediating variable		Outcome	Point estimate	SE	95% CI
DA gender	→	PA competence	→	Verdict	−0.67	0.24	−1.20	−0.28*
DA gender	→	PA skill	→	Verdict	−0.76	0.26	−1.37	−0.32*
DA gender	→	PA intelligence	→	Verdict	−0.73	0.22	−1.21	−0.36*
DA gender	→	DA competence	→	Verdict	0.01	0.04	−0.05	0.10
DA gender	→	DA skill	→	Verdict	0.06	0.05	−0.02	0.18
DA gender	→	DA intelligence	→	Verdict	−0.01	0.04	−0.11	0.06
PA gender	→	PA competence	→	Verdict	0.45	0.24	0.03	0.97*
PA gender	→	PA skill	→	Verdict	0.49	0.26	0.05	1.05*
PA gender	→	PA intelligence	→	Verdict	0.37	0.20	0.004	0.80*
PA gender	→	DA competence	→	Verdict	−0.01	0.05	−0.10	0.09
PA gender	→	DA skill	→	Verdict	−0.06	0.06	−0.20	0.06
PA gender	→	DA intelligence	→	Verdict	0.03	0.05	−0.05	0.16

Footnotes

Declaration of Conflicting Interests

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

Funding

The authors received no financial support for the research, authorship, and/or publication of this article.

ORCID iD

Mary M. Levi

Author Biographies

Mary M. Levi is a clinical psychology doctoral student at the University of Kentucky. Her research focuses primarily on jury decision-making in victimization cases. She is also interested in research related to the intersection of mental health and legal and forensic psychology.

Kellie R. Lynch is an assistant professor of criminology and criminal justice at the University of Texas at San Antonio. Her research interests include intimate partner violence, domestic gun violence/homicide, the implementation of gun violence policies, campus safety and sexual assault, victim help-seeking, and victim blaming. Dr. Lynch's work also focuses on improving the system response to victims of gender-based violence and facilitating the effective delivery of victim services. She regularly works with agencies at the university, community, and national levels that aim to reduce gender-based violence and protect victims and their families.

Jonathan M. Golding joined the faculty in the Department of Psychology at the University of Kentucky in 1988 and is a full professor. He is an active researcher investigating legal decision-making in cases involving various types of victimization (adult rape, child sexual assault, stalking, domestic violence, and elder abuse). Dr. Golding's research has led to numerous publications in scientific journals and books as well as conference presentations.

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