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When consent is contested, both sides are fighting for a 'win'

The Dublin Rape Crisis Centre, while accepting the verdict of the Belfast jury, is concerned about how all parties are treated in such cases and how it can deter reporting sexual violence.

THE DUBLIN RAPE Crisis Centre notes that the trial in Belfast of three people for rape and other sexual offences and another for withholding information has concluded with the acquittal of all four defendants.

We recognise also the importance that the Belfast case has had in opening up a wider debate on the meaning of rape and the meaning of consent. This case was a classic one where the issue was not whether sexual activity took place, but rather, whether that activity was consensual.

The case highlighted what is rape: sex without consent. It also highlighted the need for all those engaged in sexual activity to ensure that their partner is consenting. As was stated, submission is not consent. A person does not have to yell or call out for help. A person may be frozen. All of these are normal and real responses. They are not consent. Consent involves active agreement. Anything less is unacceptable.

The case also showed that when consent is contested, both sides are fighting for a ‘win’. For the defendants, they win if they can convince the jury that there is an element of doubt in the woman’s story. For the prosecution to win, the woman’s evidence – and the police and medical evidence – must be believed by the jury. The defendants can only be found guilty if the State proves its case beyond a reasonable doubt.

Inefficient and cruel

While the DRCC accepts the decision of the jury in the case, we are concerned about the way complainants and accused are treated in such trials, both in Northern Ireland and the Republic. All parties were subjected to questioning on the most intimate and private aspects of their lives in a way that was inefficient and cruel. In this case where there were four defendants, the woman in question spent six days being cross examined by four legal teams, one for each defendant. She herself was unrepresented even the prosecution Queen’s Counsel was presenting her allegations. Each of the legal teams was headed by a skilled and experienced Queen’s Counsel familiar with the courts and criminal processes.

As far as could be established, this young woman had no experience of the courts or of such a trial. When she tried to explain the impact of the rape, she was accused of reading up on it rather than experiencing it. In order to achieve the law’s legitimate aim of trying to rock her evidence, she was put into a grilling, relentless legal process, unrepresented, for six days.

While the system north and south of the Irish border is different in terms of publicity, the treatment of complainants is quite similar in such cases where there is a conflict of evidence. We believe that this is quite wrong and that steps must be taken to recognise the rights of complainants in the court process. These rights exist but just are not recognised by the courts, which traditionally look only mainly to the rights of the accused to a fair trial.

We believe that recognising when a complainant is being unfairly treated will not detract from the rights of an accused. The rights of all must be maintained. The object of the trial should be to identify whether criminal behaviour occurred with the minimum of trauma to all parties.

Deter those who might otherwise report

We are concerned that the reporting on this case will further deter those who might otherwise report rape. Those who report in cases where the defence claims the sex was consensual will be afraid of the treatment they may receive in court. And yet, if complainants don’t report, rapists will not be brought to justice. If rapists are not brought to justice, those who are harmed are not vindicated and our whole society is less safe. If people are innocent of the rape, the courts should be the best place to vindicate the rights of the innocent person.

It is perfectly possible to allow complainants to have their own legal support in court to allow them to prepare for and to understand the process they are facing without impinging on the rights of the accused. Indeed, this already happens in a limited way in some rape trials and it should be extended more generally. This should be done urgently. It would allow those who report to gain some control in the case and better balance the rights of all.

In addition, provisions in the Criminal Law (Sexual Offences) Act 2017 and the Victims of Crime Act 2017 that would give some limited protection to vulnerable witnesses and which are still in abeyance should be activated immediately. And attention should be paid to arrangements in place in the UK and elsewhere for a better way of taking evidence and to arrangements elsewhere in Europe that would allow the State and the complainant to co-operate on the prosecution of the case.

Differences between court systems

We would also like to draw attention to differences between the court system in Ireland and in Northern Ireland. In Ireland, the public are excluded from rape trials. This would have prevented the extra pressure caused by packed public gallery and attendance of the defendant’s team mates, Irish rugby captain Rory Best and Ian Henderson.

In our system too, neither the complainant nor the accused is named until the trial is over. Sometimes those involved are not named even after a person is convicted. While there are some difficulties with our system, this case shows that it is a more humane system as the naming of high-profile defendants was a significant factor in the interest of the press and public in this case.

Noeline Blackwell writes as spokesperson for the Dublin Rape Crisis Centre.

  • Article image shows Paddy Jackson arriving at court in Belfast during the trial. Pic: Charles McQuillan/Getty Images