How courts treat rape is not just a woman’s issue
There’s no point telling us we’re wrong to be worried about rape trials if no one explains what’s going on, writes Eilis O’Hanlon
SINCE controversy erupted over a senior counsel’s comments in court about the lace thong worn by an alleged rape victim, arguably the most significant thing to happen is not the social media campaign in which thousands of women posted pictures of their underwear together with the hashtag #ThisIsNotConsent, an important expression of concern though that was.
It’s the silence that followed from those who might have been expected to come out publicly to explain the legal background as to why the original remarks were made. Normally one would expect a certain level of debate back and forth around the issue.
There have been some general statements to the effect that an alleged victim’s clothing might, under certain circumstances, be admissible as evidence; but nothing more categorical than that. If the campaigners are wrong, then why not explain to them why they were wrong? Instead, there was tumbleweed.
That might be explained by the fact that the case is now closed. The 27-year-old man who was on trial denied raping a 17-year-old girl in an alleyway in Cork, and he was acquitted unanimously of the charge after 90 minutes’ deliberation by a jury of eight men and four women. It’s impossible to say what weight was attached by the jury to that part of the summing up by defending barrister Elizabeth O’Connell SC when she said: “Does the evidence out-rule the possibility that she was attracted to the defendant and was open to meeting someone and being with someone? You have to look at the way she was dressed. She was wearing a thong with a lace front.”
Unlike in other countries, jurors in Ireland are not permitted to give their reasons for coming to a particular verdict. It might be a positive move if they were. The legal profession may not like what it sees as uninformed commentary on trials, but, in matters of such huge public interest, speculation is bound to flourish in a vacuum.
Defendants are entitled to a vigorous defence, but that doesn’t mean it should be without limits. Clearly many people looking in on this case felt that the complainant’s underwear was not relevant, hence the wave of disgust that followed, not only in Ireland but around the world as news spread. That in itself is an indication of how far we’ve come. The protests which took place across the country were a stirring testament to the feeling of women that the justice system does not treat alleged victims of sexual assault with due sensitivity. The protesters are clearly pushing at an open door when it comes to challenging outdated notions about what constitutes informed consent.
The Taoiseach endorsed the sentiments being expressed across Ireland without reservation, saying that, regardless of what a woman wears or drinks or where she goes: “Nobody asks to be raped, and it’s never the victim’s fault.” The bigger question posed by Solidarity TD Ruth Coppinger, who grabbed attention in the chamber by holding up a lacy thong of a sort worn by the complainant in Cork, is “the failure of law-makers in this House to do anything about it”.
Because if most people would agree that a victim is never to blame for a sexual assault, then why do such nasty insinuations persist in society and online, with all the chilling effect that has on victims’ willingness to come forward and report their ordeals? And why does it take sensationalist headlines for politicians to sit up and take notice? That’s partly why Coppinger held up the thong in the Dail chamber. She could have spoken passionately about the treatment of women in Irish courts all day, and her words would have been listened to politely then ignored. By doing what she did, she ensured that the issue got the attention it demands.
It similarly took the trial of Ulster rugby stars Paddy Jackson and Stuart Olding on rape charges in Belfast earlier this year for Justice Minister Charlie Flanagan to set up a review under NUI Galway law lecturer Tom O’Malley to look at all aspects of how rape trials are conducted. All defendants were acquitted in that instance, too, but there was similar disquiet that, during the lengthy trial, the alleged victim’s underwear was passed around the court for examination, not merely referenced in closing statements. Some of the unease at what happened in Cork is arguably a hangover from the feelings provoked in Belfast.
Whether Coppinger is right to talk about “routine victim blaming in Irish courts” is hard to quantify, though she did mention cases where a complainant’s fake tan or use of contraception had been used against them; but routine or not, it only takes a few high-profile cases to deter victims from coming forward.
Why put oneself through the further ordeal of being humiliated in court when the odds are stacked against getting justice anyway? The statistics show many women decide it’s just not worth it.
In an adversarial system, some unpleasant attention on the behaviour of the complainant may be unavoidable. Claims must be tested with evidence. Determining whether there was consent is not always straightforward; negotiating this contested territory requires a delicate balance in every case.
But there are certain incidents so troubling to public consciousness that they become lightning rods for understandable discontent. The fact that the complainant in the Ulster rugby trial faced four separate legal teams while having no right to legal representation of her own was one instance. That thong seems to be another.
Tackling perceived failings in the system might involve taking on vested interests in the legal profession, but in terms of securing public backing it would not even be a hard ask. If it helps, centre-ground politicians should cease segregating it as a “woman’s issue”, and start thinking of it as a law and order issue.
That should be meat and drink to their respective bases. That women do not feel safe, and that conviction rates remain so stubbornly low for alleged perpetrators, ought to be seen not only as every bit as urgent as, say, the epidemic of rural crime, but as manifestations of the same scandalous tolerance for criminality.
‘Tackling perceived injustices in the law is not a hard ask’