Most rapists go unpunished for their crime in Ireland. Why? Róisín Ingle reports
'It never occurred to me that he wouldn't be found guilty," says Joan, a 40-year-old woman who lives in rural Ireland with her husband. "The Director of Public Prosecutions described it as a prima facie case and the judge thought it was strong enough to be tried in front of a jury. I was gutted when the not guilty verdict came. I just could not believe it." The harrowing story of the night she says she was sexually assaulted is not easy to tell, but she has been moved to speak out because of the "utter isolation and humiliation" she felt when the case went to court. She hopes her account will encourage debate on why Ireland has such a low rate of rape convictions, with more victims deciding not to proceed with cases, or opting out of the court process, than anywhere else in Europe.
In one way, Joan was lucky. Her case came before the courts less than a year after the incident. Many cases can take up to three years, leaving victims in a vacuum, struggling to move on with their lives. For a variety of reasons, including resistance to the treatment victims perceive they will get from defence counsel in court, the majority don't even get as far as the courtroom door.
In her report, Rape: A Forgotten Issue, Prof Liz Kelly of London Metropolitan University compiled figures from justice ministries across 20 EU countries and found that Irish victims are the least likely to see their cases through to the end. For every 100 people who report rape or other sexual assault here, 95 opt out of the process before there is even a chance of the case being heard.
Elsewhere, the acclaimed Sexual Abuse and Violence in Ireland (SAVI) report revealed that we also have one of the lowest reporting levels in Europe.
It is estimated that the number of sex crimes committed in 2002 (the last year for which figures are available) is at least 10 times higher than the number reported to the Garda. Fewer than one in 10 women (the figure is even lower for men), report sexual offences. Just less than half of the participants in the SAVI survey who said they had been victims of sexual assault said they had never before told anyone about their attack.
Experts believe an investigation into why so many people decide not to proceed is vital if we are to understand the societal and legal barriers encountered by victims.
A research project at the National University of Ireland Galway, partly funded by the Department of Justice and the Rape Crisis Network Ireland, is likely to result in the most comprehensive study of issues surrounding the processing of sexual assault cases in this country.
"What we are doing is trying to build up an accurate picture of rape and our society's response to that crime by looking primarily at the degree of attrition and the reasons why victims drop out when they do," says law lecturer Conor Hanly who is leading the research. "Until we know exactly why that is happening we are operating in the dark."
The researchers will contact every rape crisis centre in the country, and all those women who decide to make a complaint to the Garda will be asked to participate. The study is likely to involve about 100 cases, depending on the response of victims, and is expected to continue for three or four years.
"It's a brutal crime which by common consent is massively under-reported, which means that the vast majority of rapists get away with their act and that essentially is why we are conducting this research," Hanly says.
A spokesperson for the Department of Justice says that if the research shows changes are needed in the way such cases are prosecuted, the Minister will strengthen the legislation.
JOAN WAS out socially with a group of people who included the man she says attacked her. At the time, he was a close family friend.
Having suffered a recent personal tragedy, she was drunk and emotional when she accompanied the friend back to his house, where she believes she fell asleep.
Later, noting Joan had left, a member of her group became concerned and called Joan's husband to go to collect her from the man's house. When her husband arrived, he and another witness say they saw the man on top of Joan, who was on the floor with her trousers and underwear down and bra pulled up around her neck.
"Afterwards, my husband kept saying, 'The bastard raped you, he raped you'," she recalls.
After she talked to friends, there was never any question but that she would report the incident, she says.
She turned up at a sexual assault unit with severe bruising and bite marks on her breasts. While it was a confusing and traumatic time she says gardaí and the staff at the unit were "kind and understanding". Research shows she was fortunate in this, as complainants can come across a more hostile environment, often feeling they are not being believed.
Joan says the trial was to be just as painful, confusing and, at times, humiliating as the physical assault. As merely a witness in the State's case, she felt from the beginning, "totally out of the loop". "We got no feedback from the State solicitor. The man who assaulted me had access to all the information on the case while we only had our statements," she says.
Joan had an appointment with the barrister taking the State's case on the first morning, but he didn't turn up at the meeting. When the case began, one of the first things that happened was the defence barrister attempted to have her rape crisis counsellor removed from the court.
"Three times I had to stand up and explain that I needed her there," she remembers. "The man, the perpetrator, had neighbours in with him for a gawk but their presence was never questioned."
As a witness, Joan was not entitled to full legal representation and had only a watching brief which she had to pay for. Like most victims who aren't entitled to legal representation, she feels it would have meant she was more informed about what was going on. The defendant, meanwhile, had a full legal team and free legal aid.
"All the time I felt like I was the one on trial," she says. "I never expected to be grilled the way I was. They had me in tears. References were made to my weight which should never have been allowed. There was lots of talk about my being a married woman and going off with another man. The defence tore lumps off me but I felt the prosecution didn't fight back enough on my behalf."
The accused man exercised his right to remain silent and so never had to take the stand. "He just had to sit there. And at the end the judge wished him well and said not one word to me," she says.
ACCORDING TO Kate Mulkerrins, legal policy adviser at the Rape Crisis Network of Ireland, we can learn much from the UK, where it is expected that recent legislative and procedural change will lead to an increase both in cases being brought to court and convictions.
"In the UK they have been experiencing similar problems and in response they have revisited the legislative framework of sexual violence and altered the law a lot," she says. The biggest change made was in the area of consent. The previous UK law placed considerable emphasis, as Irish law does, on the defendant's view of consent. Where the jury concluded that the defendant genuinely believed the woman was consenting, no matter how unreasonable or bizarre that belief, then the jury had to decide to acquit.
"This subjective view of consent was seen as a rapist's charter," says Mulkerrins. "After the change in law, juries in the UK are now able to look at the facts and objectively decide whether the defendant's belief that he had consent is reasonable or not and if it isn't they can deem him guilty."
Mulkerrins believes a change in the law here would send out a positive message to victims who are prone to "self blame". "They think, 'Who is going to believe me? I was drinking, I had X amount of pints.' Having a statutory definition of consent in place would encourage more people to come forward."
And when victims come forward they need to be believed. Those working with rape cases know from experience that this fear of being made to look like a liar is crucial in stopping women, and men, proceeding with their cases.
"If you come from the right class, have the right accent and the right responses and conform to the perception of a rape victim you will most likely be believed," Mulkerrins says. "But if you don't, a climate of scepticism can kick in."
But what about false allegations? "We believe that the very least those who report are entitled to is neutrality," she replies. "We have a presumption of innocence for the accused, but we can often presume the opposite with the complainant. It would be much more useful if we could start from a presumption of innocence on both sides."
This climate of scepticism is being tackled in different ways across Europe. In Germany, 25 per cent of victims who report sex crimes see the process through to the end - five times higher a percentage than here. This level has been achieved by the introduction of more focused resources and outreach services.
In the UK, a dedicated police unit called Sapphire, part of the Metropolitan police service in London, was set up three years ago solely with the aim of "improving victim care and investigation". A spokeswoman says that while she couldn't comment on convictions, there had been an increase in the number of reports made since the unit was set up.
"Each person who makes an allegation is assigned an officer who keeps them informed and supports them throughout the court process," she says.
Recently, EastEnders sought the help of Sapphire officers when creating a rape storyline for the soap, a testament to the high profile these specially trained officers have earned.
But even with more support at this level, the adversarial nature of our court system means it will never by easy for victims. The Director of Public Prosecutions James Hamilton says it is inevitable that the court ordeal will be "a bruising process" for the alleged victim, a process not made any easier by the frequently long delays. He is "delighted" at the appointment of more judges announced this week by the Minister for Justice, Michael McDowell. "I hope some of them will be deployed in the Central Criminal Court to cope with the backlog of these cases there," he says.
He has no reason, he says, to dispute the high level of rapes which go unreported to the Garda, but points out that our record is a positive one when it comes to successful convictions in the cases which go to court. The DPP estimates that while he sends on for prosecution only 30 to 40 per cent of the cases that come to his office, successful convictions are secured in 70-75 per cent of those.
"There are obviously a lot of cases where it is one person's word against the other and in many cases while you may believe what the victim says is probably true, we all know that probably true isn't good enough in court," he says, explaining why some files are not sent for prosecution.
He praises the research being undertaken in NUI Galway and says he believes it's important to collate comprehensive statistical information on these cases. His office is upgrading its case-tracking system, and when this is completed it will lead to more reliable information on cases, much of which he hopes to put in the public domain.
THE RESEARCH in Galway is also expected to provide answers to many burning questions. "We need to ask why, after 25 years of lobbying by good and committed people, so little has changed. There seems to be a gap between the ideology and the practice," says Mulkerrins. "We really need to look at why people fall out of the process at the last minute. Many of them just can't face what it is going to mean to them. The ultimate humiliation and the ultimate debasement which occurs in court. Like Joan they don't feel court is a safe place. They feel they will be exposed and unprotected and we urgently need to combat this."
Meanwhile, Joan is still coping with the effects of her ordeal. A few weeks ago she had a panic attack in an airport, brought on by the thought of not being with her husband. "I cannot be without him. I can't get into taxi on my own. We moved house recently and I refused to move in until it was fully alarmed," she says.
At one point last year she took an overdose and had to be hospitalised. "I didn't want to die, I just wanted to get away from the world for a while," she remembers.
Through working closely with counsellors in her local rape crisis centre, Joan is slowly recovering, but she is still able to work only part-time. The man cleared of the assault still lives close to her.
"I will always have a fear of seeing his face at the window or peering around the door," she says.
The question of whether she would encourage other people to go through what she did, reporting a rape, enduring the court case, is a difficult one for Joan.
"I am not sorry I reported it from my own personal point of view. I never would have known, I would have always wondered should I have proceeded," she says. "But I have been left with no faith in the system because of the way I was treated.
"I can't say what someone else should do. I am a mature married woman with the support of my husband and friends. I can't imagine what it would be like to be a 16-year-old in the same situation."
She pauses for thought. "But I think yes," she says finally. "I would say yes, go out there and report it. Maybe that is the only way all of us women can fight to do something, to change the system. You should do it for all of us. The ones who have gone through the system and the ones who are yet to go through it. Things need to change."
Joan is not her real name. She does not wish to be identified