Playing the race card : racial bias in judicial decision-making
University of British Columbia
Master of Laws - LLM
Racial bias does not have to be explicit to be felt. In the context of the criminal justice system, even implicit bias can have huge impacts on complainants and accused. While judicial impartiality and neutrality are hallowed principles in our judicial system, there is clear evidence of racial bias in judicial decision-making. The prevalence of racial bias throughout the criminal justice system creates the need for explicit considerations of race for the system to produce substantive equality, and for the legal system to apply to and protect all people equally. Sexual assault is an area of law where complainants likely face implicit racial bias. Further, it is possible that there is less perceived societal harm to the sexual assault of minorities. If racial complainants are less likely to be believed, or are less sympathetic complainants, then the criminal justice system will fail to adequately deter crimes against minorities. This thesis asserts that counsel should be advancing the topic of race in the context of sexual assault due to its racialized nature and the pressing need to find a way to reduce its prevalence as the current approach has failed to do over the last ten years or more. If the topic of race is raised, it allows the judge to attempt to counteract any of his potential implicit biases, as well as factor race into his considerations regarding deterrence. The current erasure of race in sentencing impacts both complainants and accused, and may limit the criminal justice systems ability to effectively deter crime. Ultimately, the thesis suggests judges record the race of the accused and complainant in their sentencing decisions for sexual assault. This data on the racial demographics of sexual assault convictions will allow researchers to measure judicial racial bias in sentencing, as to identify whether there is explicit, implicit and/or structure inequality in the criminal justice system such that sexual assaults involving minority complainants are less likely to result in convictions.
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Law, Peter A. Allard School of