Male, female jurors use differing scales of justice

February 13, 1994|By Adam Pertman | Adam Pertman,Boston Globe

When the jury first voted on a verdict in Erik Menendez's trial for killing his parents, the division could hardly have been more stark: The six men wanted to convict for first-degree murder, while the six women opted for the much-reduced charge of voluntary manslaughter.

The high-profile trial ended because the jury deadlocked. But legal experts, social scientists and psychologists agree the split decision provided an unusually vivid illustration of a little-discussed but increasingly evident phenomenon -- that men and women often view accounts of criminal cases very differently, particularly when those cases involve allegations of sexual, mental or physical abuse.

This split has long been an implicit truth among trial attorneys, who routinely use peremptory challenges to exclude potential jurors by gender. Now it is becoming a focus of public attention, both because of widely viewed trials such as Mr. Menendez's, and because of gender gaps in polls on highly publicized episodes involving such personalities as Tonya Harding, Sen. Bob Packwood, R-Ore., and Lorena Bobbitt.

"Reasonable men and women don't deal with justice in the same way," said William Pollock, a Harvard Medical School psychologist and author of a book on changing male-female roles in U.S. society. The courts, he said, are just beginning to deal with the gap.

Experts said that was not only because of overt differences in gender perspectives in some cases, but also because women seem to be asserting themselves more on juries -- as in society at large -- and because of a growing acceptance in judicial circles of "women's concerns," such as whether a defendant had been battered before committing a crime.

Public-opinion surveys in recent news stories seem to bear out the gender split:

* A Gallup poll last month showed 57 percent of women but only 31 percent of men agreed with the not-guilty verdict for Lorena Bobbitt. An equally lopsided 75 percent to 49 percent of women-to-men respondents said they felt sympathetic toward Mrs. Bobbitt regardless of her guilt or innocence.

* Last November, before Mr. Packwood lost considerable support by resisting investigators' attempts to obtain his diaries, a poll conducted for the Portland Oregonian newspaper showed 60 percent of women and 34 percent of men in his state wanted the senator to resign for allegedly making unwanted sexual advances to women.

* A Gallup poll last month said almost 58 percent of men wanted Tonya Harding to remain on the U.S. Olympic team if she was not charged in the attack on fellow figure skater Nancy Kerrigan. About 45 percent of women expressed that view, a gap analysts attributed partly to women's propensity to attach more significance to personal morality and men's tendency to make more legalistic judgments.

Jury consultants around the country, who probably have the most experience on the gender-split issue because their job is to advise lawyers on picking jurors, said in interviews that this male-female chasm is still little understood or discussed publicly, but is frequently fundamental to their work.

"In many legal cases, we see women looking at the evidence differently," said Diane Wile, president of the Chicago-based National Jury Project. "The reason is women's life experiences and their feelings about power are so different than men's."

In the Menendez trial, female jurors evidently believed the 23-year-old defendant turned to violence after sexual abuse by his parents; prosecutors implied that Mr. Menendez was gay, and male jurors reportedly made homophobic comments about him during deliberations.

Almost all those interviewed recently said the line in this example was unusually sharp, but they also agreed it underscored the basic gender differences that surface in more subtle ways in many other cases.

All the experts said men tend to give less weight to mitigating circumstances and more to the bottom line of guilt or innocence, while women more often factor in the reasons for someone's actions.

Everyone interviewed cautioned against drawing overly broad conclusions from polls that show men and women responding differently to allegations of wrongdoing. Abbe Smith, deputy director of the Criminal Justice Institute at Harvard Law School, was one of several specialists who argued that, in addition to gender, class and life experience go far in shaping one's views.

"But it's clear that men and women do have different value systems, what I like to call 'the baggage of life,' " said Robert Hirschhorn, a Texas-based jury consultant. "So gender is a starting point and not an ending point . . . but when you're examining legal matters, it's a very, very important consideration."

Indeed, attorneys have so systematically used gender in making determinations about jurors that it has become a major legal issue. The Supreme Court heard arguments last November, and is expected to decide in its current term, whether to expand the existing prohibition against race-related peremptory challenges to include gender as well.

Peremptory challenges allow attorneys to dismiss potential jurors jurors without stating a reason, and all sides agree that if the court rules to ban exclusion by gender -- as most observers expect -- it would radically alter the way juries are selected and, as a result, could transform many verdicts in unpredictable ways.

In the case before the court, a woman's lawyers used peremptory challenges to remove all the men from a jury, which then decided in her favor in a child-support case.

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