In the aftermath of the acquittal of all four defendants in the Belfast Rape Trial, there has been an outcry that the criminal justice system as it currently stands in prosecuting sexual assault and rape cases is failing women.
I couldn’t agree more.
But in actual fact, it is failing all parties.
Can we ever be Sure Beyond all Reasonable Doubt?
The standard of proof in a rape case, to prove beyond all reasonable doubt that a party did not consent, or that one party knew, or ought to have known that the person did not consent and continued on recklessly, is almost impossible to meet in circumstances of rape, particularly if there has been alcohol involved. The standard of proof is rightfully high considering that a conviction of rape carries a potential life sentence and non-custodial sentences in rape have proved to be exceptional.
Another huge barrier to reaching this threshold is the high evidential requirement of criminal trials. When criminal trials rely so heavily on testimonials, adding alcohol and memory lapses, such as in the Belfast rape trial in to the equation is enough to create inconsistencies and therefore reasonable doubt from the very offset. There can also be inconsistencies in reporting rape from the sheer shock and trauma of the rape itself. Further, there is no prescribed way in which a person who has been assaulted reacts either during or after the incident. Juries can often make sweeping assumptions about the person’s behaviour, which can undermine the person’s claim.
I am not arguing that the threshold for criminal cases of this nature should be reduced – far from it – what I am arguing is that there is something in the circumstances of rape cases that fundamentally debar themselves from reaching this threshold. This is because considering the usual circumstances in which sex occurs and which rape is alleged; between two parties who know each other, with or without the consumption of alcohol, where there are no sure signs of a struggle and no key witness, a trial will come down to a battle of testimony and supporting evidence.
It is difficult to see beyond a violent assault by a stranger, where consent has very clearly not been established and the person is unknown to the complainant, how a jury could conclude beyond all reasonable doubt that consent has not been given. This leads to a situation where women who report rape and proceed to trial have the odds stacked against them from the beginning – and this is just for the cases that actually make it to court. Most reports of rape will never not make it to trial, be it because the complainant withdraws the complaint or the Director of Public Prosecutions deems that there is not sufficient evidence to proceed to court. A not-guilty outcome does not mean that the defendants are innocent. It simply means that a jury found that there was not enough evidence, or that the evidence was not convincing enough, to prove their guilt beyond all reasonable doubt. When a not-guilty verdict is pronounced, it further perpetuates the notion that women lie about rape, for vindictive reasons or in the case of the Belfast rape trial, because the defendant is a “famous person.” Women are chastised for not coming forward to report rape, but when they do they go up against the beast that is the criminal justice system. They must face their assailants again in court, submit themselves to the invasive, traumatic and often humiliating experience of having their clothes and their sexual history aired in public, all in an attempt to meet a standard of proof that is, in my opinion, almost unattainable. I doubt that we can ever reasonably reach a position of beyond all reasonable doubt in most rape cases. It is no wonder why more women are not lining up to be put through this process and meanwhile, incidents of rape and sexual assault continue to go undetected and unpunished. Women are damned if they do and damned if they don’t.
Naming and Shaming
Thankfully, in the Republic of Ireland, all parties retain anonymity during rape proceedings and the public are denied access to the courtroom. In Northern Ireland, the defendants do not have anonymity and the public may view the trial, which has led to the identity of the complainant being revealed and published on social media. This is a real concern and would prevent women from coming forward in the future.
It is difficult to think how justice has been served in light of this specific case. Northern Ireland law permits for the defendants to be named even before a guilty conviction. Even after a not-guilty verdict, the public nature of the trial, combined with the incriminating WhatsApp messages, has created a situation where people still think that the defendants did something wrong and should be punished for it. The trending of #Ibelieveher, again shows the outrage of women (and men) everywhere who think that justice has not been served. Meanwhile, those who believed that she was lying all along feel justified by the verdict.
While I think that their actions are morally reprehensible, the social stigma that comes with being publicly accused of rape, to be then found not guilty, is a pretty hefty cross to bear for the rest of your life. The woman at the centre of the case, whose own messages to her friend were almost prophetic in predicting how the trial would turn out, must have believed strongly enough that she was wronged to proceed with the traumatic process of a public criminal trial. Those feelings that she must have had, and still has, of injustice and wrongdoing, have gone unaddressed. Although, Olding gave a sort of penitent apology to the woman after he had been acquitted, all the parties involved have received no real closure in the process. Justice has not been done or seen to be done.
A Culture of Toxic Masculinity
What the entire trial has revealed is deep-seeded misogyny in the form of WhatsApp messages. As Una Mulally has pointed out, it should be misogyny on trial here. This is the real kernel of the system failure – a culture which promotes the objectification and dehumanisation of women. It is from this culture, that issues concerning entitlement to women’s bodies, sexual assault and disregard of consent arise. Unfortunately, these WhatsApp messages are nothing unusual – the men who wrote them obviously did not expect private congratulatory ‘legend’ messages to become fodder for public consumption. What our focus needs to be is on replacing this culture with one that seeks to humanize relationships between men and women. These men also have been failed by the system of which they are a part – the system of toxic masculinity and patriarchy that applaud and reward displays of such laddish behaviour. It cannot be for a court of law in major public trials to tell us right from wrong. We need to take responsibility for shaping our society and preventing similar occurrences from happening in the future.
This culture cannot be weeded out overnight. We need to look beyond the verdict of this trial to transforming the systemic failures in our culture.
Study to Identify the Prevalence and forms of Sexual Violence
In their report, the Dublin Rape Crisis Centre calls on the government “yet again” to commission a comprehensive study of the nature and prevalence of sexual violence in Ireland today. The last such report was commissioned 16 years ago in 2002. It is hard to understand how the government intends to create strategies to tackle sexual violence, or indeed the culture that enables forms of sexual violence, if it has no information about it. This is a clear failure of the State and one that needs to be rectified immediately.
Promotion of Co-educational Schools
What needs to happen is for us to build a society that demystifies the prejudices that we have about the opposite gender. This needs to start from as early an age as possible, through the promotion of co-educational schools. Ireland has a long history of segregation of girls and boys. Recent figures from the Centre Statistics Office report that out of 364 secondary schools in the county, just 144 of them are co-educational schools. This leads to the unspoken assumption that there is something inherent to our gender that requires us to be kept apart, as well as propagating an aversion to the other gender. It leaves us dreadfully under-prepared for the realities of the real world, where women and men are expected to co-exist as well as sheltering each other from all aspects of our humanity – such as periods, puberty etc. It is only through the constant interaction that children will learn to see the ‘other’ as themselves and create sensitivity towards the other gender from an early age.
A More Nuanced Sexual Education
Schools should be required to provide a more nuanced sexual education that moves beyond the simple biological teaching of how sex happens to include an understanding of sex, sexuality and consent. This needs to happen in early secondary school. We need to take a more pragmatic and realistic approach to sex education. The Dublin Rape Crisis Centre reported that they had “noticed two worrying and perhaps interlinked trends: an increase in the levels of sexual pressure, coercion and violence; and a growing concern around consent and choice when it comes to sexual behaviour” which they have understood to be because those reporting had “not received sufficient education around personal choice and informed consent.”
It is imperative that we have these conversations and promote discussion of this from early teens. I have previously written about the need for mandatory consent classes in college. Sexual Health and Guidance Week (SHAG), at colleges are particularly effective in promoting good sexual habits as well as addressing real-life issues surrounding consent and alcohol.
Sexual Harassment Committees
Schools, colleges and workplaces should be required to establish sexual harassment committees that receive complaints and that can seek to mediate situations and come to an understanding between the parties. This could be a forum for discussion where aggrieved parties can voice their complaints in a private and controlled setting. Obviously, this is premised on the assumption that the incident has occurred between two people who belong to the same institution. The issues in the respondent’s behaviour can be pointed out and the respondent can be given an opportunity to tell their side of the story. Appropriate sanctions can be taken with emphasis on a mediation between the parties. This takes in to account that the people involved usually know each other and often have to co-exist after the process, where the antagonism that comes with a criminal trial arguably prevents any meaningful moving forward. This also ensures rehabilitation of the offender and a hope that they will not repeat the same behaviour again. A second violation would result in harsher penalties, such as suspension or expulsion in schools/colleges or dismissal in the workplace. Institutions such as these have the networks and systems to be able to implement such procedures. The procedure for making a complaint would need to be highlighted and understood by each person upon joining the institution and should be as straightforward as possible. Women especially need to feel safe and assured about making such complaints that their confidentiality and privacy will be respected. More mechanisms need to be put in place which seek to promote a culture where sexual harassment, assault and rape are taken seriously and where women, especially, are listened to and believed. Men and women need to be held accountable for their actions but must also be given the opportunity to correct their ways.
Trained Police in Sexual Crimes
Further police forces need to be trained in how to investigate and collect evidence in cases involving criminal sexual allegations. Many allegations do not make it to trial simply because the police have made an error in the collection of evidence. Special attention needs to be paid to treating the complainant sensitively and with dignity in these situations and in understanding how trauma can play a role in the relaying of information.
It is easy after a verdict such as this to say that the system is rotten to the core. I understand the frustration and tiredness of people everywhere who have had enough. But we must learn from what this trial has taught us and go to the root of the problem if we are ever going to tackle it. Government especially needs to take a more proactive and pragmatic role in shaping educational policies that address these issues.