Rape trials: weighing up the two rights that make prosecuting rape so difficult

“I barely made it through. I sit here and I look you in the eye, and I tell you it tore me to pieces.”

Hours after her rapist was sentenced to 17 years in prison last week, Leona O’Callaghan went on RTÉ television to deliver her verdict on a legal process that had taken four years. Those were “four years of my life that I won’t get back, where my kids didn’t have a mum, where I was in and out of hospital.”

The day after O'Callaghan appeared on the Claire Byrne Live programme to say that the "current process is not working," a report was published in Northern Ireland which arrived at a similar conclusion about the system there.

Sir John Gillen said he believed “the massive under-reporting” of the crimes of sexual assault and rape “and the high attrition rate are unacceptable in a society that lays claim to the rule of law.”

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The system in the North is “too daunting for complainants and needs radical revision” leaving victims subject to “secondary victimisation”.

The Gillen review makes more than 200 recommendations for how that “radical revision” might evolve, including legal representation for complainants, pre-recording of cross-examinations, and imposing restrictions on social media use.

There is a sense among legal observers that we now have the opportunity to weigh up the two apparently conflicting rights that make prosecuting rape so difficult

He recommends that defendants continue to be named, but that trials no longer take place in public. This is currently one of the principal differences between the Republic and the North: here, defendants are named only on conviction if the victim chooses to waive his or her anonymity, and the public are excluded from rape trials.

Direct comparisons between the numbers of rape cases North and South of the Border are difficult, because of variations in how figures are recorded. In 2017, 2,945 sexual offences were reported in the Republic including 655 rapes, according to the CSO.

Also in 2017, 72 rape cases and four cases of sexual assault went to trial. In 2009 – the last year for which there are such figures – the conviction rate in rape cases was 8 per cent. According to the DPP, of 56 rape cases finalised at the Central Criminal Court in 2016, 82 per cent resulted in a conviction, but that includes convictions on lesser charges.

In the North in 2017/2018, a decision to prosecute was made in 23 per cent of reported rape and sexual assault cases. Of the rape cases that end up court, 24 per cent result in a conviction, and over half of sexual assault cases result a conviction, rates that Gillen says are “extremely low”.

Trials on trial

Later this year or early next year, a working group chaired by Prof Thomas O’Malley will publish an examination of how rape trials are conducted in the Republic. It will look at the anonymity of defendants and a range of other issues. Last week, Minister for Justice Charlie Flanagan said the reviews by Gillen and O’Malley “will help assist us in forming best practice within our own jurisdiction.”

Few observers expect the O’Malley group to recommend removing the anonymity of defendants, because of the risk of damage to the reputation of the accused if they are acquitted, and the potential for the complainant to be identified.

There is a sense among legal observers that we now have the opportunity to weigh up the two apparently conflicting rights that make prosecuting rape so difficult: the right of defendants to a fair trial, and the right of complainants to be treated with dignity and respect.

An “unnecessary conflict” has emerged between the #MeToo and #Ibelieveher social movements and the criminal trial process, and that conflict needs to be disentangled, says barrister Tony McGillicuddy.

“As a society, we’re trying to say to people who have been sexually assaulted that we want you to report, that you are supported, and you will be treated properly. Those are the good things that came out of those movements. But there is a separate and important value system for criminal trials that somebody is presumed innocent until proven guilty. Each of those fulfils a different public interest, but they both have a value.”

Labour Senator Ivana Bacik agrees with Gillen that “rape trials can be a secondary victimisation for the complainant. But we want to make sure that women are not put off making a complaint. Our system has been reformed, and it is responsive to reform.”

In his report, Gillen points out that one of the things complainants fear most is the process of cross-examination and "techniques that seek to victim-blame" through rape myths. Cross-examination is "an inherently rough process," says Conor Hanley, a lecturer in law at NUIG, and one of the authors of the Rape and Justice in Ireland 2009 report. Because of its adversarial nature, it would be difficult "to turn it into anything but a fairly bruising encounter. What we can do is restrict the worst excesses of it. We can do much more in terms of providing support to the complainant before she goes into court."

Another option might be the adoption of a European-style inquisitorial system instead of an adversarial system, meaning the judge acts as an investigator and is the only one allowed to question the alleged victim in the trial, something O’Malley may consider.

Calls for reform coalesced recently in the reaction to closing remarks made by a barrister in a Cork rape trial, in which she drew attention to the complainant’s underwear (see panel). On the Claire Byrne programme, Mr Flanagan said it was time for new protocols for lawyers. The traditional “full-blooded defence” often using whatever means available “was not acceptable”, he said.

Bacik would like to see the “prevalence and persistence of sexual stereotypes” tackled through legislation empowering judges to direct the jury to disregard any comments made around sexual stereotypes. Her party is drafting legislation to that effect. Another avenue suggested by Gillen is that juries could be shown videos or given training on rape myths.

“My view on the argument about sexual stereotypes and rape culture is that I don’t think we’re going to change that by trying to force a couple of rules into rape cases,” says McGillicuddy.

Not everyone agrees the current system for conducting rape trials needs reform, or that rape myths are widespread. “It’s a complete misconception that the system is malfunctioning,” says solicitor Dara Robinson.

“Somebody who makes a complaint and comes to court and isn’t believed by a jury – that’s our system doing what it is designed to do.”

However, he is “coming around to the view that it should not be possible for the media to report on rape trials until the verdict is known.” He cites the Belfast rape trial as an example of sensationalist media and says it shows the need for limitations on social media.

For other observers, what made the Belfast rape trial so remarkable was the image of complainant facing four separate legal teams over several days of cross-examination. “The same thing would happen here” if a similar case were to arise, says Noeline Blackwell of the Dublin Rape Crisis Centre. “The defendant rightly has access to the best criminal lawyers available, through legal aid if they can’t afford it. We’re not saying they should haven’t that right; we’re saying the complainant’s rights in this situation are not recognised.”

Equal legal representation

In Germany and Denmark, complainants in rape cases are entitled to state-funded legal representation. Here, separate legal representation is available to complainants if an application is made for their prior sexual history to be taken into account. There are calls for it to be extended to complainants who do not wish to disclose their medical records or counselling notes. The Dublin Rape Crisis Centre would like to see it extended even further to all complainants who want it, particularly where the issue is one of consent.

The centre is expanding its panel of trained support workers to help complainant through the process, but, “They’re not able to represent the complainant. Where it is important that a jury hears what both the complainant and the defence has to say, legal representation makes sense.”

But extending representation for complainants could run into constitutional issues, Hanley believes, “because the defendant would essentially be faced by two hostile prosecutors.”

“Why is the accuser in a rape trial so special that they require legal representation?” asks Dara Robinson. “Where do you draw the line? Should there be legal representation for a complainant in a serious assault trial?”

Another of the measures Gillen puts forward, and which the O’Malley review is expected to look at, is whether cross-examination of complainants might be performed outside the courtroom, and the video shown to the jury. There’s “no reason in principle” why this can’t happen, Hanley believes, providing the reasons are explained to the jury. “It’s worth exploring as a pilot project for particular group of vulnerable witnesses,” says McGillicuddy.

One area on which all the legal experts who spoke to The Irish Times last week agreed with Gillen: the trial process takes far too long. Currently, it is more than three years from the time of complaint to trial date, something a former judge of the Court of Appeal, Garrett Sheehan described in this newspaper as "an act of cruelty against a complainant" and unfair to the accused.

Aside from all of the structural reforms, the other significant change being called for is around culture. Minister for Justice Charlie Flanagan said last week it time for a change in both legislation and public thinking. Many observers believe cultural change can’t begin and end on the steps of the court.

It's almost treated as a soccer game – one side won and the other side lost

Blackwell says, we need to build “into the entire system an understanding that all the preconceptions we as a society have about the way people dress, how much people drink, whether or not people scream – none of these even start to counterbalance the crime of having sex with somebody without their free and voluntary consent.”

A Eurobarometer poll in 2016 found that 21 per cent of Irish people think that having sex without consent is okay in certain situations. Eleven per cent said being drunk or on drugs makes it okay, and nine per cent believed going home with someone or wearing provocative clothing, justifies rape.

“These myths are there, they’re in our society, and they inevitably find their way into the jury room,” says Hanley. “One of the justifications for jury trials is that it keeps the verdict within shouting distance of public perceptions. A difficulty arises when public perceptions are wrong.”

One of the suggestions being looked at by Gillen is whether rape trials could be conducted without juries. McGillicuddy argues that we shouldn’t lose faith in jury trials. “There was concern a few years ago that juries would not be able to try complex cases involving financial crimes, but the Anglo cases shows otherwise.”

There is a need for public education on how rape trials are conducted – and the legal profession should play a part in explaining the process, says McGillicuddy. “If there is an acquittal in a rape case, it is seen as a defeat for the complainant.

It’s almost treated as a soccer game – one side won and the other side lost. But an acquittal in a rape trial does not mean the jury is saying the woman made it up, or is a liar. They’re just saying that on the facts of this case, we weren’t satisfied beyond a reasonable doubt, so we’re finding the defendant not guilty. It’s the jury applying the high standard of proof, and we have that high standard for a reason.”

For him, it also comes back to public education on the meaning of consent. We have a good definition of consent in the Criminal Law (Sexual Offences) Act 2017, he points out.

“Every 16-year-old in the country should have that definition of consent taught to them in school, and it should be a requirement that’s it’s posted in every nightclub and every toilet in the country. As a society, there’s something wrong when people have more knowledge of the drink driving laws than they do about the definition of consent.”