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Partial Justice: How Unconscious Bias Hinders the Legal System

By Erin Atalla


 

Introduction

Pit bulls are dangerous. Eating salad is healthy. Black people are criminals. The unconscious mind jumps to assumptions more willingly than the conscious. If one is unaware that their behaviours are shaped by their biases, they may not realise they are acting with prejudice. [1] With 80% of thought processes being conducted unconsciously, these form a substantial amount of the way we act and respond. [2] In this way, it is possible for a progressive, socially-minded person who consciously challenges prejudice in the world to also react in ways fuelled by subconscious racism, sexism, and other discriminations. [3] Diversity Australia defines an implicit stereotype as “the unconscious attribution of particular qualities to a member of a certain social group … based on learned associations between various qualities and social categories, including race or gender.” [4] In the legal field, these implicit stereotypes or unconscious biases are particularly problematic as they directly undermine fair and unprejudiced procedures. Ultimately, unconscious bias prevents the course of justice, both before and during trial, and should be challenged.


Before trial

Unconscious biases exist surrounding which social demographics are more likely to commit crimes. In New Zealand, Māori people face twice as many police proceedings than European people in their first encounters with police, indicating a tendency of the criminal justice system to take a harsher approach when Māori people are involved. [5] This suggests that indigenous people are unconsciously suspected more than those from white backgrounds, propounding that police are more likely to find evidence compelling if it confirms suspicion of an indigenous person. This presents the danger of confirmation bias – an unconscious bias where people regard information that is in line with their pre-existing beliefs as more valuable and ignore that which contradicts. [6] For people disadvantaged by unconscious biases, police interrogations can be unfair as shown in the disparate numbers of police proceedings against non-white individuals. [7] Furthermore, vulnerable suspects may be susceptible to having their own memory manipulated by a retelling of events, and those with language barriers may not be able to communicate properly and therefore agree with the simplest solution. [8]


These factors, alongside tactics used in police investigations, may result in false confessions. Gibson v Western Australia (2017) 51 WAR 199 was a case in which Gibson, an indigenous man, made a false confession that resulted in a term of imprisonment. Gibson was particularly vulnerable due to language barriers and having a lower IQ. As a result of the police acting on the presumption of guilt, likely somewhat motivated by the unconscious bias against indigneous people, Gibson was swayed by the police and lawyers with whom he interacted, and pleaded guilty. [9] The police then proceeded with confirmation of their already-established belief that Gibson was guilty. The problematic consequences of false confessions raised in this case are reflected in the findings of Western Australian Supreme Court of Appeal where the conviction was quashed due to a miscarriage of justice. This case emphasises how false confessions can provide confirmation of the bias that indigenous people are likely guilty, tainting the validity of police investigations. [10] Thus, unconscious bias can limit justice in pre-trial processes.


During trial

Unconscious bias continues to exist during court proceedings and limits justice. Impartiality is at the core of the legal system, requiring a level of impersonality and rationality. [11] However, it is also necessary to recognise that, while the judicial system is set up to operate with this sense of detachment, those who work within the legal system are not emotionless robots, but are instead a product of their experiences. [12] As a result, all individuals will have their own beliefs and morals that impact their professional life. Therefore, the unconscious bias of individuals can affect the theoretically unbiased legal system. In Australia, 27% of the prison population is made up of Aboriginal and Torres Strait Islander adults, in comparison to 2% of the total population. [14] This shows that the consequences of unconscious bias can be deeply unjust for minority groups who experience prejudice.


Implicit stereotypes surrounding gender tend to have a tangible disadvantage to women. These presumptions include that female lawyers are less suited to the technical aspects of law than men, less suited for leadership, and generally less capable. [15] Unfortunately, these biases manifest in women still lacking value in the legal system in comparison to men. In 2017/18, female barristers made approximately $80,000 while their male counterparts made $200,000, creating the highest pay gap of any occupation. [16] This statistic shows that women are not equal in the legal field – a reality fuelled by unconscious bias. Thus, when women appear in court, they are less likely to be taken seriously or regarded as highly as their male colleagues.


During trial, the consequences of these beliefs are easily observable. Female judges, even in the highest of positions, are substantially more likely to be interrupted by barristers than male judges in the same positions. [17] Expert witnesses are held in higher regard when their profession is correlated with their gender (such as male surgeons being perceived as more credible than female surgeons). [18] Furthermore, victims of sexual offences, who statistically tend to be female, are frequently subjected to traumatising cross-examinations that play on assumptions surrounding factors such as clothing and past sexual history. [19] These all limit the ability of women to access justice to a satisfying degree, therefore illustrating how unconscious bias manipulates trials.


Solutions

Once the existence of unconscious bias in the legal field is more widely acknowledged, the challenge surrounds finding solutions to ensure justice is achieved. Unconscious biases pose a particular threat as split-second decision-making is more difficult to counter than conscious thought processes. However, by making individuals aware of their biases, they are more likely to change their behaviour so it does not reflect their prejudices. [20]


The need for continuous professional development is a well-established part of legal careers. Programs that aim to educate on unconscious bias already exist in Australia, such as the Judicial Commission of NSW that focuses on multiple topics such as Aboriginal cultural awareness and sexual assault issues. [21] Awareness of implicit stereotypes should be prioritised for both those involved in investigations and trial processes, such as police and judges respectively. JustSpeak advocates that greater emphasis on “anti-bias and de-escalation training for frontline police” would reduce “systematic bias”, assisting in the administration of justice pre-trial. [22]


Judges pose a slightly different challenge as their extensive experience and specialist knowledge may lead them to be unwilling to concede that they are prejudiced. [23] However, as the Honourable Justice John Basten acknowledges, “a truly impartial judge must be able to identify and counter unconscious prejudices”. [24] Having a greater proportion of women in the judiciary may assist judges in seriously considering their unconscious gender biases. [25] By increasing the representation of women, gender awareness would become more implicit in the professional legal world. Instead of implementing formal training that can be easily disregarded, representation would facilitate a lasting shift in attitudes surrounding gender. [26]


Conclusion

An awareness of unconscious bias allows us to challenge our prejudiced attitudes, and enables a change in our actions. [27] Actions – not unconscious thought – cause injustice, so fostering awareness will encourage just legal processes. To alleviate the effects of unconscious bias, awareness should be improved in all sectors of the administration of justice to further promote impartiality in the legal system.



 

References

[1] Sarah Fiarman, ‘Unconscious Bias: When Good Intentions Aren’t Enough’ (2016) 74(3) Educational Leadership 10, 10.

[2] Kathleen Nalty, ‘Strategies for Confronting Unconscious Bias’ (2016) 45 (May) The Colorado Lawyer 45, 45.

[3] Ibid.

[4] ‘What is Unconscious Bias?’, Diversity Australia (Web Page) [1] <https://www.diversityaustralia.com.au/services/unconscious-bias/>.

[5] JustSpeak, A Justice System for Everyone (Report, February 2020) 1 <https://www.justspeak.org.nz/ourwork/justspeak-idi-research-a-justice-system-for-everyone>.

[6] Nalty (n 2) 45.

[7] Joseph Briggs and Russ Scott, ‘Police Interviews and Coerced False Confessions: Gibson v Western Australia (2017) 51 WAR 199’ (2018) 28(1) Journal of Judicial Administration 22, 38.

[8] Ibid.

[9] Ibid.

[10] Ibid 36.

[11] Kathy Mack, Sharyn Roach Anleu and Jordan Tutton, ‘Judicial Impartiality, Bias and Emotion’ (2021) 28(1) Australian Journal of Administrative Law 66, 67.

[12] Ibid 67-8.

[13] Mack (n 10) 67-8.

[14] Australian Law Reform Commission, Disproportionate Incarceration Rate (Report No 133, January 2018).

[15] Ibid.

[16] Australian Taxation Office, ‘Individuals – Table 15A’ (Taxation Statistics 2018-2019, 2019) <https://data.gov.au/data/dataset/taxation-statistics-2018-19/resource/47b26cb2-a680-444f-99ab-e94ed4ae9886?inner_span=True>.

[17] Amelia Loughland, ‘Female Judges, Interrupted: A Study of Interruption Behaviour During Oral Argument in the High Court of Australia’ (2019) 43(2) Melbourne University Law Review 822.

[18] Blake McKimmie et al, ‘The Impact of Gender-Role Congruence on the Persuasiveness of Expert Testimony’ (2019) 38(2) University of Queensland Law Journal 279, 284.

[19] Elise Kinsella, ‘Questioning of sexual assault victims during trials ‘worse’ than in the 1950s, criminologist finds’, ABC News (online, 25 March 2021) < https://www.abc.net.au/news/2021-03-25/experts-question-how-justice-system-deals-with-sexual-offences/13248172>.

[20] Nalty (n 2) 47.

[21] Kate Lumley, ‘Without fear or favour, affection or ill will: addressing gender bias in NSW judicial education’ (2014) 12(1) Judicial Review: Selected Conference Papers: Journal of the Judicial Commission 63, 74.

[22] JustSpeak (n 5) 1.

[23] John Basten, ‘Judicial education on “gender awareness” in Australia’ (2014) 12(1) Judicial Review: Selected Conference Papers: Journal of the Judicial Commission 45, 58.

[24] Basten (n 23) 60.

[25] Ibid 50.

[26] Ibid.

[27] Ibid 52.



 

BIBLIOGRAPHY

A Articles/Books/Reports


Australian Law Reform Commission, Disproportionate Incarceration Rate (Report No 133, January 2018)

Australian Taxation Office, ‘Individuals – Table 15A’ (Taxation Statistics 2018-2019, 2019) <https://data.gov.au/data/dataset/taxation-statistics-2018-19/resource/47b26cb2-a680-444f-99ab-e94ed4ae9886?inner_span=True>

Basten, John, ‘Judicial education on “gender awareness” in Australia’ (2014) 12(1) Judicial Review: Selected Conference Papers: Journal of the Judicial Commission 45

Briggs, Joseph, and Russ Scott, ‘Police Interviews and Coerced False Confessions: Gibson v Western Australia (2017) 51 WAR 199’ (2018) 28(1) Journal of Judicial Administration 22

Fiarman, Sarah, ‘Unconscious Bias: When Good Intentions Aren’t Enough’ (2016) 74(3) Educational Leadership 10

Groves, Matthew, ‘Bias by the numbers’ [2020] (1) AIAL Forum 60

JustSpeak, A Justice System for Everyone (Report, February 2020) <https://www.justspeak.org.nz/ourwork/justspeak-idi-research-a-justice-system-for-everyone>

Kinsella, Elise, ‘Questioning of sexual assault victims during trials ‘worse’ than in the 1950s, criminologist finds’, ABC News (online, 25 March 2021) <https://www.abc.net.au/news/2021-03-25/experts-question-how-justice-system-deals-with-sexual-offences/13248172>.

Loughland, Amelia, ‘Female Judges, Interrupted: A Study of Interruption Behaviour During Oral Argument in the High Court of Australia’ (2019) 43(2) Melbourne University Law Review 822

Lumley, Kate, ‘Without fear or favour, affection or ill will: addressing gender bias in NSW judicial education’ (2014) 12(1) Judicial Review: Selected Conference Papers: Journal of the Judicial Commission 63

Mack, Kathy, Sharyn Roach Anleu and Jordan Tutton, ‘Judicial Impartiality, Bias and Emotion’ (2021) 28(1) Australian Journal of Administrative Law 66

McKimmie, Blake et al, ‘The Impact of Gender-Role Congruence on the Persuasiveness of Expert Testimony’ (2019) 38(2) University of Queensland Law Journal 279

Nalty, Kathleen, ‘Strategies for Confronting Unconscious Bias’ (2016) 45 (May) The Colorado Lawyer 45

Price, Heather, and Errol Price, ‘Diversity and inclusion: Unconscious bias – a persistent challenge for female lawyers’ [2020] (70) Law Society of NSW Journal 72

‘What is Unconscious Bias?’, Diversity Australia (Web Page) <https://www.diversityaustralia.com.au/services/unconscious-bias/>


B Other

‘Implicit Association Test’, Project Implicit (Online Test) <https://implicit.harvard.edu/implicit/takeatest.html>



 

Erin Atalla is a second-year student studying a double Bachelor of Laws and Bachelor of Arts, majoring in human rights. She is passionate about various social justice issues, especially regarding gender equality and refugees. Erin is enthusiastic to pursue a professional future in law and social justice.























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