Most of the time, the courts go about their work without impinging much on the thoughts of the public at large, save for those unfortunate enough to find themselves involved in proceedings. One issue that has regularly trained public attention – and ire – on the courts, however, has been a perception that judges are too lenient, and at times inconsistent, in sentencing rapists. In no area of the law, arguably, has there been a greater gap between the system and public expectations of it.
Against that background, it is encouraging to see a steady increase in the severity of rape sentences. The average sentence for rape has been increasing for the past 15 years, and the Courts Service annual report for 2019 shows that trend continuing, with 63 per cent of convicted rapists having received more than 10 years in jail. That’s an increase from 43 per cent in 2018.
Sentencing is just one of many areas in which the courts have been failing rape survivors, however. The system forces victims into an adversarial courtroom, where they have no formal status and where their choice of clothing and their sexual histories are treated as fair game. Cases take several years to come to trial, which prolongs the cruelty for victims and results in many of them, not surprisingly, withdrawing their complaints.
In Northern Ireland, a 2018 report by retired judge John Gillen made useful recommendations, including legal representation for complainants and pre-recorded cross-examinations. A report on sexual offences in the Republic by the legal academic Thomas O'Malley is expected imminently. The implementation of that report will be one of the first tests facing new Minister for Justice Helen McEntee.
In any trial, the accused has a right to a fair trial. That principle is sacrosanct. But it co-exists with the State’s obligations to those who suffer a violent sexual crime. That is to say nothing of the normative power of the courts in shaping views and embodying society’s values. At present, the legal system’s handling of sexual offences trails badly behind the community it serves.