Court cases should not be another assault of rape victims

Criminal justice is part of the war against sexual violence and it is part of the answer to it. If we are to stop or even reduce such harm, we need laws that protect us and systems that punish those who carry out these crimes.

At the Dublin Rape Crisis Centre, the issue arises in the context of our submission to a Law Reform Commission review. It gave us the opportunity to consider again what we call “The Journey of the victim through the justice system”. It is something that we talk about a lot.

As it stands right now, however, our justice system is also part of the problem. Neither our investigative processes nor our adversarial court system suit the investigation and prosecution of sexual violence or the related crimes of domestic or other gender-based violence.

In all of these, people are assaulted and harmed in the most intimate way possible, mostly in hidden places. Many of these cases pit the credibility of the complainant against that of the accused.

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As rape is the absence of consent in intercourse, the complainant will prove the case if the jury is convinced of their evidence beyond reasonable doubt. The accused will be acquitted if they can raise that doubt.

The rights of the complainant as a victim of crime are not equal to the rights of an accused. It is only after a case is over, with the accused convicted, that the court takes a real interest in the impact of the crime on the victim.

In our Law Reform Commission submission, we suggested it is time for an audit of the system from a victims’ rights perspective and for reforms that better respect those rights. If victims of crime don’t come forward to report, then crime goes uninvestigated and unpunished. And perpetrators remain free to repeat the crimes, with the victim or with others.

Invasive questioning

Without seeking to underestimate the trauma induced by other crimes, victims of sexual crime have a particular difficulty because of the extremely invasive, personal nature of the collection of evidence and the equally invasive level of questioning that may be needed to establish facts.

Trained gardaí in specialist units and Sexual Assault Treatment Units will do this to best practice standards, but even where resources are available – which isn’t always – the process is extremely wearing and difficult for victims.

The trauma of the trial is exacerbated if witnesses are subjected to hostile questioning

In other jurisdictions, the criteria for gathering evidence and how it is presented for prosecution are being adjusted to take account of the special nature of these offences and the dignity of the victim. We need to examine if that’s possible here too.

That’s even before the case gets to court. In serious cases of sexual violence in the Republic, the public are excluded from court proceedings and the parties remain anonymous at least until the end of the case.

However, for victims of sexual crime, the process of testifying can be harrowing, given the intimate nature of the offence, the often close relationship between the victim and the perpetrator and the need to recount the explicit sexual details in the formal and unfamiliar setting of a courtroom, in the presence of the accused.

Indeed, we have had clients describe their experiences in court as being tantamount to a second assault. The trauma of the trial is exacerbated especially if witnesses’ testimony and character are subjected to hostile questioning.

No representation

In many cases of sexual violence, the main evidence is given by the person harmed – who has no legal representation for most if not all of the trial. The accused’s defence is often that the sexual interaction was consensual. In such cases, the complainant’s evidence must convince a jury, beyond reasonable doubt, that events happened as they recount them. If the accused, who is legally represented normally, can raise that reasonable doubt, they are acquitted.

If there is a conviction, the next fraught question is sentencing. Judges are given direction from previous court cases; but it is very general. They make decisions based on their own assessment of the law and previous cases. A number of matters relating to the accused are taken into account – a guilty plea or failing to plead guilty, a loss of status or job, whether the person was in a position of trust.

A victim can and usually does make an impact statement. There is little public or victim understanding of how these are balanced and how much the victim’s voice matters. In the UK, guidelines drawn up by committees composed of judges, legal practitioners, victims and academics give more clarity to the court and the public.

In the Dublin Rape Crisis Centre, we often marvel at the strength and resilience of those victims who do report and continue within the justice system because that system for sure does not make it easy. But, as we told the Law Reform Commission, their participation is crucial to the public good and the rule of law. Better recognition of their rights is essential. And urgent.

Noeline Blackwell is chief executive of the Dublin Rape Crisis Centre