‘The trial was on a par with the rape, but I’m glad I testified’

The young woman was visibly shaking as she stood just a few feet in front of the three men accused of raping her.

The judge had ordered her to stand there and point to exactly who, according to her account, did what to her.

During the trial it was alleged the men had poured vodka over the pregnant woman’s face, before taking it in turns to rape her. She also alleged she had been urinated on and locked in a wardrobe.

When the trial resumed the next day there was no sign of the woman. A garda explained the woman’s boyfriend woke to find a note from her reading: “Don’t be mad, I can’t go today. I’m terrified. I love you. I will be with my friends.”

More than half of sexual violence reports against partner included rape

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Belfast rape trial juror’s online comments are referred to AG

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Media appeals over reporting restrictions

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The trial collapsed and the judge, the late Mr Justice Paul Carney, issued a warrant for the woman's arrest. He ordered that no discretion be used when executing it.

“If she has to spend a long time in prison herself waiting for a re-trial that’s her fault,” he commented.

By the time gardaí tracked the woman down she had taken an overdose of pills along with half a bottle of vodka. They rushed her to hospital.

She was later discharged and brought to court, under arrest, by gardaí. Mr Justice Carney ordered she be held in custody until she finished giving her evidence. She was taken to a holding cell, near the ones holding her three alleged attackers, where she remained until 2pm that day.

A new jury was sworn in and the woman was released after a garda told the judge he was confident she would turn up for court when required. The three men were later acquitted.

That case was in 2012. There are many differences between it and the trial which concluded in Belfast this week. Although both involved allegations of gang rape and both resulted in acquittals, the alleged offences and the ordeal the complainants went through in court are very different.

They also occurred in two different jurisdictions; the trial involving the arrested woman took place in Dublin’s Criminal Courts of Justice.

But both cases raise a troubling question: are rape trials as they currently stand an appropriate way to deal with this most sensitive of crimes?

Vulnerable witness

The Belfast rape trial that ended this week saw the 21-year-old complainant being questioned over the course of eight days by five different barristers.

In the trial Paddy Jackson and Stuart Olding were accused of raping the then 19-year-old Belfast student during a party. Their friend Blane McIlroy was accused of entering the room naked and asking the woman for sex. A fourth man, Rory Harrison, was accused of covering up the alleged rape by misleading police and withholding information during the investigation.

The four accused were acquitted of all charges by a unanimous decision of the jury.

As a “vulnerable witness” under the law, she was entitled to give evidence from behind a curtain which was drawn over the witness box, meaning she did not have to look at the accused. But this did little to protect her identity.

A camera placed in front of her streamed her image to a television screen set up in front of the dock and the public gallery. The gallery was usually full, or nearly full, meaning every day dozens of members of the public were able to see her face and hear her name.

The woman is entitled to life-long anonymity under law but it wasn’t long before her identity was being shared across social media.

If anything, the conversation has only grown louder since the unanimous acquittals of Jackson, Olding and their two co-accused on all charges

Jackson's barrister, Brendan Kelly QC, who questioned her over the course of three days, put it to her that she claimed she was raped because she was "petrified" her friends would see pictures or hear rumours of her having group sex with the men.

At one point he asked for the clothing, including the underwear she was wearing that night, to be shown to the jury. The blood-stained garment was passed around for examination.

By this stage public commentary about the woman’s treatment had reached a fever-pitch. Many saw her cross-examination as the interrogation and retraumatisation of a vulnerable woman and feared her treatment would deter others from coming forward.

The hashtag #ibelieveher started to trend on Twitter and flowers were being sent to the woman, care of the prosecution.

If anything, the conversation has only grown louder since the unanimous acquittals of Jackson, Olding and their two co-accused on all charges. Rallies in support of the woman were held across the island on Thursday, and politicians, north and south, demanded changes to protect complainants in rape cases from this type of questioning.

Two trials

These changes can't come soon enough, according to one Irish woman who spoke to The Irish Times this week. After two trials the man who followed her, raped and beat her was convicted and jailed by a UK court last year. She describes herself as "one of the lucky ones", in reference to the successful conviction.

“It sounds weird when I say that actually. I’d rather I was lucky by winning the EuroMillions to be honest.”

During the woman’s two trials, the rapist’s lawyer attacked the woman’s character, she says. “She said I had wanted rough sex in a hallway with a stranger. And then I had become embarrassed by it,” she says.

“If they cannot build a case around the defendant they will vilify the survivor,” she said. “I was asked was I Irish and if I like to drink a lot. That was immediately left to hang in the air for a British jury to put two and two together and go ‘oh she must have been really drunk.’

“I was also asked why, if I was so scared of him, I shared details of my family and my work. That was when I was pleading with him. You personalise yourself so you can humanise yourself.”

She reasoned if she could tell her attacker something about herself, she would be a human being in his eyes which might prevent him from murdering her. The detective in the case later told her she was lucky to get out of that corridor alive.

The complainant in the Belfast rape trial told the jury, “In that situation you don’t scream or shout because you are so scared.” According to the woman raped in the UK there are actually four reactions: “Fight, flight, freeze and appease.”

She chose to appease by chatting to the man, allowing his barrister to suggest she was up for sex.

The system needs to change, she said. Part of that must involve changing the culture among legal professionals in rape cases so they can’t put complainants on trial when defending a case.

“With barristers there is no incentive to change, unless there is a counter-productive element to it. Judges have to crack down on that kind of questioning.”

No anonymity

When Trish Kelly was sexually assaulted, she decided to take the case to court. The perpetrator pleaded guilty, and Kelly chose to remain anonymous but says this meant little in reality.

“The court process is tough,” Kelly says. “There is no such thing as anonymity especially if the victim knows the perpetrator, as is the case in over 80 per cent of cases. Word gets out anyway, whether by mouth or nowadays Twitter. Everyone can have a say, whether their opinion is right or wrong.”

Earlier this week The Irish Times printed an open letter from the victim of a marital rape to the appeal court judges who had reduced her rapist's sentence from 10 years to 8½ years.

“The judgment you issued is in my opinion deeply flawed. Most fundamentally it completely ignored the context in which the rape occurred, given the existence of domestic violence and abuse,” she told the judges.

Following the verdict in Belfast the woman in the marital rape case laid out the changes she would like to see in the Irish system.

For her, a lot could be done to minimise the trauma of a trial by introducing relatively simple reforms to the system.

“I certainly think the waiting time to go to trial adds a huge stress and trauma. There was a two-year delay in my trial.

“That is a huge stress because you’re constantly reliving it as you know you’re going to have to give that evidence in court. So you just can’t let go of it. You can’t recover really until you’re through it,” she said.

“Any measures that are done to reduce the delays from reporting to going to trial would help victims.”

According to the Courts Service, if someone is charged with rape today, it will be late 2019 before a trial begins. The woman believes these lengthy delays are one of the reasons so many people decide not to proceed with their complaints.

“There are so many times during that process where you go ‘Jesus I’m not sure if I want to go ahead with this.’ There were definitely times when I said that.” She said it was only because of her support network of family and friends that she stuck with the case until verdict and conviction.

There are other, more basic reforms which could help complainants, she says.

“There is so much technical argument that goes on. If there was a pre-trial preparation hearing then at least everything could be sorted in terms of having it ready to go. There were so many stops and starts in my case for really very simple, practical things.”

Sorting out things such as interpreters and expected legal issues before a trial begins would go a long way, she said.

The courts recently introduced a basic pre-trial checklist but it is little more than a box-ticking exercise and has largely failed to cut down on delays.

The trial of the woman’s then husband was delayed for three weeks partly because someone had forgot to hire an interpreter for the accused.

“They knew the date for I don’t know how long beforehand. It makes no sense and there’s no understanding of the impact that can have on the complainant.”

Other countries

So there are problems with both the Irish and UK systems. Is there anything we can learn from other countries?

In Germany and Denmark complainants in rape cases are entitled to a lawyer, paid for by the state, from the moment they make a complaint to police. Their lawyer acts for them throughout the trial and can make applications to the court to protect their interests.

In Ireland, complainants are entitled to a lawyer only when there is an application to question them about their past sexual history during the trial – and only for as long as it takes for that application to be completed.

Several European countries operate an inquisitorial system instead of an adversarial system. This means the judge acts as an investigator and is the only one allowed to question the alleged victim in the trial.

And in some of those countries, including France, the complainant can actually join the state as a party to the case, granting them much more control of how the trial is run.

The Law Reform Commission in New Zealand, which unlike most EU countries operates a common-law system very similar to Ireland's, recently recommended the abolition of juries in rape cases. Cases should be held before a specialist judge who is trained in dealing with vulnerable witnesses, the report said.

In 2016, 2,549 sexual offences were reported in the Republic, and 59 went to trial – just over 2 per cent

One benefit of this is that the absence of a jury would make barristers far less likely to aggressively question complainants, as such a tactic would do little to impress a trained judge.

However, before we overhaul the system it’s worth bearing in mind each of these systems has its own problems. And Ireland is already making significant, though slow, progress in the area of protecting victims.

The Criminal Law (Sexual Offences) Act 2017 and the Victims of Crime Act 2017 grant several protective measures, including allowing for the pre-trial video-taping of vulnerable witnesses’ evidence, meaning they would spend less time in the courtroom.

However, many of these provisions have not yet commenced.

“I’m of the view that if there is legislation that can be commenced first, that should be done before we start making more changes,” says Tony McGillicuddy, a criminal law barrister.

McGillicuddy says the legal system should be “should be open to being examined to see how it could be improved” and that the Bar Council now does additional training for barristers in dealing with vulnerable witnesses at trials.

But he adds it’s important to always remember the rights of the accused in such cases, who are innocent until proven guilty.

“It’s hard to have a fair trial for an accused without the jury seeing the account of a complainant being challenged.”

‘Glad I testified’

The number of alleged rapes that end in successful prosecutions is low. In 2016, 2,549 sexual offences were reported in the Republic, and 59 went to trial – just over 2 per cent. In 2009 – the last year for which there are figures – the conviction rate in rape cases in the Republic was 8 per cent.

And in that small number of cases when a guilty verdict is handed down, is it “worth it” for the victim?

“I am still glad I testified,” says the woman whose rapist was sentenced to seven years. “After the first hung-jury trial, I had to face the very real possibility that the second trial would fail. I questioned whether or not I was willing to be a witness. I decided it was important for me to do so.

“I am not the first to say it, but the experience of testifying was on a par with the rape itself. I do not judge anyone who would decide against this for themselves,

“My fear is that after this massively public trial [in Belfast], countless survivors won’t come forward.”

Trish Kelly – whose attacker was also found guilty – says she, too, would do the same again. “The perpetrator got the wrong victim on the night: me,” she says. “He took control that night. I took it back by speaking out and reporting him.

“You could say I’m lucky because he pleaded guilty but even if he hadn’t I would still do it because this was my truth and as tough as it was I would do it all again.”