Justice for all, including potential jurors

"Were you ever sexually abused as a child?"

The question stunned the potential juror. She knew of the child abuse charges the defendant faced, had answered general questions gauging her ability to be fair, but had no idea when she approached the judge’s bench that she would be required to reveal her deepest secret. She paused, while the judge, the clerk, the lawyers, the stenographer, and the defendant himself--all huddled around her--listened intently.

In each of the dozens of child abuse trials I prosecuted, I saw firsthand the devastating effect this question, and the ones that followed ("when did the abuse happen? where? what was your relationship with the perpetrator? what was the nature of the abuse?") had on many potential jurors. Citizens who dutifully reported to perform their jury service left the courtroom shattered, often sobbing. “Thank you, you’re excused,” the only response offered, is insufficient.

A 1994 Supreme Judicial Court opinion requires this invasive probing whenever defendants charged with child sex crimes opt to compel potential jurors to answer whether they were victims of childhood sexual abuse. Citizens who have done no wrong, have brought no suspicion upon themselves, are obliged to report to court to reveal, under pain of perjury, their most painful memories. The Court noted that without such forced questioning, adult survivors of childhood sexual abuse might be reluctant to "discuss such a private and highly emotional event with a judge," and the defendant might be prejudiced if they were seated on the jury. Other than remarking that such questioning was a "sensitive issue," the Court failed to address safeguards protecting childhood sexual abuse survivors from the trauma of revealing their abuse.

We can do better than inflict unnecessary anguish on citizens reporting for jury duty while still ensuring a fair trial for defendants. I am not advocating new laws exempting sexual assault victims from jury duty (nor, I suspect, would most victims want to be deemed ineligible for such service). Rather, there are policies that court administrators, judges, and district attorneys, in collaboration, can implement immediately.

First, the written materials sent to citizens called for jury duty, including the questionnaire they are required to fill out, should disclose that in cases involving sexual offenses against minors, potential jurors may be required to answer at an individual interview whether they have ever been the victims of childhood sexual offenses. Judges presiding over child sex crime trials could also alert the jury pool about the individual interview questions. Forenotice of those questions would greatly alleviate the anguish they cause.

Second, judges should cut off further questioning and excuse potential jurors once they indicate they have been sexually abused. Some judges already do that; many do not, but rather pry into additional details. Such further questioning only exacerbates the emotional distress the forced disclosure causes. In all of my trials, only once was a juror who disclosed past sexual abuse seated on the jury, and even then that juror had to be excused during jury deliberations when it became apparent that the past abuse interfered with impartial consideration of the evidence. Would such a policy make it easier to contrive an excuse from jury duty? Anyone who would fabricate past childhood sexual abuse just to duck service ought not to be deciding an important case anyway.

Third, each district attorney--who all employ victim witness advocates--could ensure that an advocate is in each courtroom during jury selection to assist any potential juror who is compelled to disclose a past victimization. These trained professionals could provide contact information, advice about procedures for further disclosure if desired, and point the potential juror toward available resources and services.

Currently, victims of past childhood abuse are left on their own to deal with pain our system demands they revive. This has been going on for years, obvious to all involved in the selection of juries deciding child sex crimes. It doesn't have to be that way. We can and should be more caring, not with more laws, but by demanding our elected and appointed leaders implement measures ensuring justice for all, including potential jurors.

Michael Chinman, who was a candidate for Norfolk District Attorney in 2010, is on the Advisory Board for Community Voices, a victims’ advocacy organization.