An unusual gender divide in the courts

A new study finds that Irish women jurors are less likely than men to empathise with female complainants, writes KATE HOLMQUIST

A YOUNG WOMAN goes out, drinks too much, then is raped by a male she hooked up with in the pub or at the party. If she is among the one in four women who can summon the courage to go to the gardaí, there’s a one-in-three chance the rape will be tried in court and, if it is, she will face a jury whose female jurors are more likely than their male counterparts to judge her harshly and side with the perpetrator.

While it may have come as a surprise to many, female-dominated juries are less likely to convict alleged rapists than male-dominated ones, according to a study by Conor Hanly of NUI Galway, with Deirdre Healy and Stacey Scriver, Rape and Justice in Ireland, which was published this week. However, people working in the legal and support services were not at all surprised. It is well known in the Irish justice system and internationally that female jurors are less likely to empathise with female complainants and more likely to side with the male defendants, says Prof Ivana Bacik, a Labour Party senator and lawyer.

One reason could be that juries are not representative and tend to be made up of unemployed and retired men and of older female homemakers. When they look at the defendant, these homemakers may be thinking “that could be my son”, Bacik suggests.

We might expect women to spring to the defence of other women, when in fact they are more critical, especially in the majority of cases where both the alleged perpetrator and the victim knew one another and were drunk.

“It’s a dog-eat-dog world,” says Clióna Saidléar, policy and communications director of Rape Crisis Network Ireland, when she explains that living at the bottom of the power ladder is so deeply ingrained in women that some cannot bear to acknowledge the vulnerability of the alleged victim, preferring to believe that women get what they deserve. To acknowledge their own vulnerability, and their daughters’, to being randomly raped by an opportunist is too much to cope with, she suggests.

Blaming the victim, when she doesn’t conform to the “real rape” stereotype of being attacked by a stranger in a dark alley, is a defence mechanism against facing the disturbing fact that any woman could be raped at any time, most likely by someone she knows in a social situation, she says.

“The only thing that makes sense is that there’s a distancing thing going on,” agrees Maryann Valiulis, head of the Centre for Gender Studies at TCD.

“It is such a horrible thing to believe that rape happens randomly and that it could be someone you know. You don’t want to believe that the men you know could be rapists.”

Rape victims in the study had an average age of 23 and worked as barmaids, clerical workers or shop assistants. In 65 per cent of cases they were intoxicated. Most perpetrators – with the average age 27 – were most likely to be construction workers, and 75 per cent were intoxicated.

At the launch of the study, Director of Public Prosecutions James Hamilton said: “If the only witness is so drunk she cannot remember it clearly, there is a real problem in the case.”

Stacey Scriver suggests that, in addition to female jurors’ psychological defences, there may also be a double standard towards excessive drinking in women and men. “The tendency [is] to excuse young men – just being young, experimenting, acting foolishly – and to blame women as though their drinking is a moral failure rather than the same foolish experimentation as with the men. Perhaps this is the same critical attitude that women internalise and bring on to juries: they find reasons to excuse men and to blame women.”

VICTIMS WHO DO not conform to the “real rape” stereotype of the woman raped by the stranger in the empty car park, as described by rape survivor Susan Estrich in her landmark book, Real Rape (1988), which informed the study, can be their own harshest critics, blaming their lack of judgment in not knowing beforehand what the male friend – or even ex-boyfriend or husband – intended to do, which is why only one in four rapes are reported to gardaí.

The unsettling conclusion is that opportunistic young men who are so inclined may think they have carte blanche to serially rape women in alcohol-sodden social situations where there are no witnesses present.

Scriver says: “Usually there is not excessive violence. These are rapes of indifference. The man does not care about the will of the woman and you can see this repeating itself in numerous relationships and contexts. It’s possible that they will never have to account for what they have done to numerous women.”

So what can be done to redress the imbalance of power? Reform of the jury selection process to include more middle-class working men and women was suggested by the DPP this week. Fundamentally, though, there needs to be an education campaign for young men, teaching them to respect women, Scriver believes.

Saidléar agrees: “We should be judging the man and not the woman. Binge-drinking and sexual violence go together. We should have a campaign aimed at young men about this very dangerous situation. It’s the potential perpetrators who need to change, not women.”