Reform of Rape Trails in Northern Ireland
How should the justice system treat complainants and defendants when charges of rape and sexual crime come to court?
This is the central question which is addressed in a report published last week in Northern Ireland by retired Judge Sir John Gillen. The report follows an inquiry after the high profile rape trial of two Ulster Rugby players. Sports star defendants, lurid details and an acquittal by the jury ensured sustained and viral media coverage. With street protests and online hashtags, it was the case that everyone was talking about in Northern Ireland and much further afield. This brought the legal challenges of a rape trial to the attention of a new audience in a new digital age.
Rape and sexual crime are often some of the most difficult crimes to prove and the statistics are frightening. Approximately 85,000 women and 12,000 men are raped in England and Wales alone every year; that's roughly 11 rapes (of adults alone) every hour. In Northern Ireland there were 823 reported rapes in 2016/17, and 15 convictions for rape(1). The number of rapes reported here has doubled from ten years before. Only around 15% of those who experience sexual violence choose to report to the police(2). Only 5.7% of these reported rape cases end in a conviction for the perpetrator(3); this equates to a conviction rate of less that 1% of all rapes recorded.
These are some of the lowest levels for both reporting and conviction of any crime. The offences are obviously traumatic and difficult to talk about. Around 90% of perpetrators were known to their victims prior to the rape raising issues of fear of reporting because of ongoing abusive relationships. Some victims feel shame or that they are somehow responsible, and the prospect of reporting the events to the police and them being relayed in a public court puts many people off. A significant number of the crimes involve no other witnesses and end up being one person’s word against another about whether any sex occurred and was consensual. Many victims simply feel they won’t be believed.
Questions around the public administration of justice in sensitive cases involving potential sexual crime have been in the news a lot this year. In recent weeks, this case from County Cork sparked protests when the female defence barrister said to the jury, “You have to look at the way she was dressed. She was wearing a thong with a lace front." These words caused many women to post pictures of their underwear on social media with the hashtag #ThisIsNotConsent. Unfortunately this line of defence is not new, as this particularly tragic Scottish case from 2002 shows where a girl of 17 took her own life after her rape case. A different story, which is currently on the BBC NI website describes the experience of a man who was acquitted after being falsely accused of rape, however ‘he lost his partner, a well-paid job, friends and his home’. More widely, these discussions are unfolding just a year on from the #MeToo movement and months after the appointment of Judge Brett Kavanaugh to the US Supreme Court.
It’s clear that there is a huge disconnect between the way allegations of sexual crime are talked about publicly and the way they are proved in Court. Allegations of sexual crime or dispersions on the character of either the complainant or defendant can now be made very publicly via social media. However the testing of evidence in court involves a forensic approach and a very high threshold for the crime to be proved beyond all reasonable doubt. The difference between the heated tribalism of social media and the cold procedures of the court room only furthers misunderstandings and frustrations about the legal system. Neither seems like a particularly human space which might mitigate the deep trauma faced by victims of sexual crime or false allegations.
Judge Gillen attempts to address some of these difficulties in his report which draws upon the expertise of specialist organisations, legal professionals, jury members and most importantly the experiences of many victims of rape and those acquitted of rape charges. It also considers the procedures for rape trials in fifteen other jurisdictions. Here are some of the key recommendations made in the report:-
Access to trials involving serious sexual offences should be limited to close family members of the complainant and the defendant.
The Complainant should have access to legal representation.
Cross-examination of complainants should be pre-recorded and away from court - initially for vulnerable people but eventually extended to all complainants in serious sexual offences;
The accused will be anonymous until they are charged, but from that point they will be identified;
Measures to combat rape myths and stereotypes, like suggestions that victims provoke rape by the way they dress or act;
More robust attitude by judges to prevent improper cross-examination about previous sexual history;
Accused will have right to apply for a judge-alone trial without a jury - this would only be granted in "rare circumstances";
New legislation to manage dangers created by social media;