Ireland has a long history of failing women. Despite tokenistic gestures and occasional calls from establishment politicians for more “girl bosses”, little has changed and less has been done to compensate for past failings.
The Irish government recently retraumatised survivors of the Mother and Baby Homes in the latest attempt to cover for the state and the church. In Stormont, answers for survivors of the homes were recently kicked down the road yet again. Successive cuts have been made to domestic and sexual violence supports North and South, and proper sex education rooted in consent is denied to many. This is by no means an exhaustive list.
This treatment is perhaps most notable, if not most shocking, within the legal system. The idea that the courts and the police are designed to protect us jars totally with images of police with their knees on female protesters necks following vigils for Sarah Everard – herself murdered by a cop. In Belfast, women who protested in solidarity, and socially distanced, were targeted and fined up to £500. Politicians who have broken regulations have been spared such treatment.
Other recent injustices are plentiful. The infamous Belfast rape trial pulled apart any visage of protection or fairness for women as a rape victim’s underwear and intoxication levels were weaponised against her fight for justice.
In a sexual assault case in Cork around the same time, a young girl’s lacy thong was used as a defence by her attacker to imply she was ‘asking for it’. This prompted widespread backlash and the hashtag #ThisIsNotConsent trended. These events created activists and renewed fury in those who have been fighting for a long time. They sprung forth a spontaneous rupture of protest north and south and prompted women to speak up about their experiences.
Courtroom tactics
A survivor of sexual assault in Dublin, solicitor Sarah Grace, has spoken about her experience in the courts in the past week. Sarah was attacked by a stranger who broke into her apartment while she slept, repeatedly strangling her and penetrating her with a violent punch. She successfully fought him off and escaped but was left with serious post-traumatic stress disorder and panic attacks.
Shortly before her trial date, problems began to arise. Sarah learned there was to be a year long delay, but only as she prepared to fly back to Dublin from France in order to quarantine for two weeks so she could give testimony. Using her experience as a solicitor she was able to successfully advocate for herself that the original trial date stand. Sarah was fortunate; not every woman has this experience to lean on.
In fact, in most cases it can take anything up to three or four years from when an offence was initially reported to gardaí before court begins. One factor in the delay is if a defence counsel indicates an intention to cross-examine the victim on their past sexual history. In such cases the complainant is entitled to legal representation, and so a trial may be delayed while that is arranged. This was raised during a statutory review of how sexual offences are investigated and prosecuted.
In their submission the Bar Council attempted to address this. It resolves that in order to avoid delays, “appropriate” notice should be given by lawyers’ who intend to cross-examine victims on their sexual history.
But the Bar Council’s recommendation misses the point; why is a victim’s sexual history even considered a legitimate line of investigation?
This feeds into a culture of victim-blaming that is so often seen in society and is now being replicated within the legal system. It acts as a deterrent to other victims who might consider coming forward. In the 2018 Gillen Review Report into the law and procedures in serious sexual offences in NI, it was recognised that “the humiliating and distressing nature of cross-examination” in these cases has led to phrases such as ‘second rape’ or ‘judicial rape’ becoming “common parlance due to the enduring evidence from complainants of their adverse treatment in court.”
Victims on trial
Throughout her trial, Sarah recalled feeling she was being cross-examined as a witness to the crime, rather than a victim, and like she was the one on trial. She says in an interview with Una Mullaly, “By the end of the trial I was brought to my knees. I don’t wish that on my worst enemy. I don’t wish that on the offender. Even the attack hadn’t done that to me.”
This experience has been echoed by many. During the Belfast rape trial, the victim gave evidence on just one day of the nine-week trial but was cross-examined by each of the defendant’s lawyers and spent a total of eight days in the witness box. One of the accused, rugby player Paddy Jackson, was represented by Queen’s Counsel Brendan Kelly who focused on the woman’s behaviour on the night in question when the incident occurred. CCTV footage was shown that criticised her “flirtatious behaviour” towards other men in the nightclub and Kelly accused her of going to the VIP area simply to meet celebrities. The defence relied on popular rape myths and sexist tropes. And they won.
In her case, Sarah Grace recalls that it “was the biggest shock of all” when her private counselling notes were used, adding that “no other crime permits therapy notes to be used against a witness”. Disgracefully, Ms Grace was not given prior warning that these notes could be used in the trial.
Noeline Blackwell, CEO of the Dublin Rape Crisis Centre, points out that counselling notes are only used in cases of sexual assault victims and not in other cases of physical abuse. She added that counselling notes of sexual assault victims are only used “to discredit victims” in court, going on to say, “very often, defence will ask for notes that they don’t use. It is used as a way of intimidating; it is used as a way of reducing people’s capacity to access counselling.”
Counselling is supposed to be a safe place where people can heal and talk through their trauma but the courts use this to take a woman’s dignity from her. It’s a question of disbelieving victims of sexual violence, who are majoritvely female.
Political failure to act
Following the Belfast Rape Trial, Miriam Duffy, Executive Director of Rape Crisis Midwest, said the centre received a “huge” influx of calls after the verdict was announced. She said there was a general feeling of helplessness and frustration among callers and that many victims of sexual violence were glad they did not report their incidents to the authorities. Other clients expressed a wish to withdraw complaints they had already made.
A study conducted in Australia and New Zealand analysed tactics employed by lawyers during cross-examinations in cases of rape. Researchers found that there was little to no difference in the methods used in modern-day proceedings and those of the 1950s, which include; endorsing the defendant’s character, highlighting the victim’s lack of injury and questioning their lack of resistance. With a weight of testimonies’, both publicly and privately, from victims of sexual violence against the methods of cross-examination, the legal system has done little to address these issues.
John Gillen who authored the Gillen report complained that the Stormont Executive has been “’far too slow” on proposed sex offence case reforms, almost two years after he made 253 recommendations in the wake of the Belfast rape trial. His comments came after two women were murdered outside of Belfast, causing him to hope aloud that, “we don’t have to wait until women and girls are murdered until these things change,” on BBC Radio Ulster.
Perhaps this lethargic approach to change in the face of outrage and retraumatisation of victims expresses most clearly the extent of the sexism within the system, and why we need to rally against it.
Sexism in the system
Ultimately, Sarah’s attacker was convicted. She remarked that “after months of feeling I wasn’t being listened to and wasn’t heard, I finally felt acknowledged, that someone cared. That was more healing than the sentencing itself.” But for many who are dragged through the courts they do not get a result like this. Just 3% of rape cases referred to prosecutors in the north in the past year led to prosecution and conviction. In the South only one in four gets convicted.
This is less than half the conviction rate for murders and manslaughters, and even lower than the rate for sexual assaults (31%). Will more criminalisation and greater powers within the state to hand down lengthier sentences solve the problem of sexual crime? Very unlikely, though it would undoubtedly send out a message that these crimes will be taken seriously, a bare minimum which is not achieved today.
But the low conviction rates and indeed the cuts doled out by Stormont and the Dáil to sexual assault services are indicitive of a political establishment that normalises inaction in the face of gender based violence, and that is wedded to a system which oppresses women. That establishment is happy to send a message to women to silently endure sexual attacks.
Ultimately, we can and should fight for immediate reforms within the legal system but until we have wider societal change and discussions about why the objectification of women seems to be so entrenched in the capitalist system, sexual violence will still prevail. From witch trials to rape trials the status quo have never failed to create imaginative and brutal systems of oppression which seems to be all-powerful and immovable, and in all that time women have always rallied against them. Although oppression is felt individually it will only be challenged collectively. That fight continues.
