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#MeToo, #IBelieveHer and the Belfast Trial: Drawing Distinctions

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About The Author

Bláthnaid Breslin (Joint Editor-in-Chief)

Bláthnaid recently graduated from the University of Nottingham with a first class degree. She is currently undertaking the BPTC in London, funded by a Lord Denning scholarship, and will begin the BCL at Oxford in September. She has a particular interest in land law and social housing. Outside the law, Bláthnaid is a talented tennis player who played for the University of Nottingham Ladies’ II Team.

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This article is part of the 'The Belfast Trial' series, edited by Bláthnaid Breslin.

In March 2018, four Irish rugby players were acquitted of charges of rape (faced by Paddy Jackson and Stuart Olding), exposure (Blane McIlroy) and perverting the course of justice (Rory Harrison). The jury’s decision has been the subject of heated controversy, in Ireland and abroad. In this series, two Keep Calm Talk Law writers examine some of the major talking points that emerge from this highly publicised saga.

Other articles from this series are listed at the end of this article.

The acquittal of the four defendants in the Belfast rape trial provoked anger and indignation. For many, particularly in the age of #MeToo, the acquittals are seen as another example of a system that appears rigged to protect men’s interests.

A number of features of the trial caused this response: Whatsapp messages sent between the defendants after the incident exhibited a total lack of respect towards women, while the comments made by the barrister for Stuart Olding in his closing speech (asking why the complainant didn’t ‘scream the house down’ when there were ‘middle class women’ sat in the room downstairs) intensified concerns that, for many victims, the process of holding their attacker to account in court amounts – in effect – to a ‘second rape’.

While marches were organised in various Irish cities to express support for the complainant, the principal medium for the reaction to the acquittals was online. The hashtag #IBelieveHer trended on various social media platforms; blogs and Facebook posts were widely shared in support of the complainant, expressing frustration and anger at a system that had, once again, failed to protect women.

To the extent that these responses reflect support for the complainant and her bravery in coming forward, express disgust at the misogynistic attitudes of the defendants, and offer a critical examination of the proper means by which a defence barrister can protect his client’s best interests in cross-examination, this movement is another welcome example of a shift in society’s attitude to sexual assault allegations. 

What this article seeks to examine, however, is the tendency of some of the responses within the #IBelieveHer movement to elide legal guilt with socially and morally unacceptable conduct. Many posts shared after the acquittals sought to go behind the jury’s unanimous verdict of not guilty. They sought to review the evidence and question the innocence of the defendants, labelling them as rapists and perpetrators of sexual assault.

This article contends that this ignores and undermines the fundamental protections that exist for defendants in the criminal justice system. The vindication of victims’ rights is just one of a number of aims of the criminal justice system, which must also accommodate the objectives of deterrence, punishment of offenders, due process, and the avoidance of injustice.

This article therefore argues that a distinction must be drawn between legal guilt and ‘social guilt’. It suggests it is useful to maintain both types of guilt, because condemnation in the social sphere is not subject to the limitations of the criminal justice system and can thus afford to be victim-centric. Indeed, part of the strength of the #MeToo and #IBelieveHer movements is their ability to reach beyond legal accountability and declare other misconduct as morally and socially unacceptable. However, this is a strength that is undermined if the movement fails to distinguish legal wrong from moral and social wrong.

Fundamental Defendant Protections

In order to prove that a defendant is guilty of rape - described by Lord Hope in R v A [2001] as ‘the most humiliating, distressing and cynical of crimes’ – there are two major hurdles to be overcome by the prosecution. Firstly, they must prove beyond any reasonable doubt that the defendants were guilty of that crime. Secondly, they must prove beyond reasonable doubt not only that the complainant did not consent, but also that the defendant did not reasonably believe the complainant was consenting (the mens rea). 

Proof beyond Reasonable Doubt: The Golden Thread

A defendant is presumed innocent until proven guilty; this is a fundamental feature of the criminal justice system, and one of great constitutional importance. A key element of this presumption is that the burden of proving guilt is on the state, and the standard of that proof is proof beyond all reasonable doubt. The jury cannot convict unless they are sure (usually considered to be certainty of at least 90%).

This principle is enshrined in the right to a fair trial under Article 6(2) of the European Convention of Human Rights, though its constitutional importance predates the Human Rights Act 1998. In Woolmington v DPP [1935] Viscount Sankey LC expressed the principle as follows:

[T]hroughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt subject [to a limited number of exceptions, including the defence of insanity and the defence of diminished responsibility]… No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.

There are various justifications for this principle, a full survey of which is beyond the scope of this article. At the centre of these justifications are, however, two principles: the idea of the relationship between the citizen and the state, and a recognition of the implications of judgment against the accused. If a citizen is to be accused by the state, bearing in mind in particular the imbalance in resources available to the parties, the state must prove it. And with a finding of legal guilt there comes – in the case of rape – a deprivation of liberty and the labelling of the accused as a rapist. These are not consequences to be imposed lightly; the criminal burden and standard of proof ensures that they are not.

Reasonable Belief in Consent: The Mens Rea

Focusing on the charge of rape – the most serious charge in the Belfast trial – Section 1(1) of the Sexual Offences Act 2003 requires the prosecution to show the intentional penetration of the complainant by the defendant; that the complainant did not consent; and that the defendant did not reasonably believe that the complainant consented. Thus, a lack of consent is only one element of the crime of rape: a complainant may have not consented, but the defendant will not be guilty of rape unless he knows that consent was lacking.

The defendant must therefore have intentionally violated the free will of the victim. This is consistent with rape being ‘the most humiliating, distressing and cynical of crimes’; it is only when this condition is proved that the defendant deserves the consequences that come with a finding of legal guilt: labelling, punishment and, in the case of rape, imprisonment.

Application to the Belfast Trial

The defendants could only be found guilty of rape and exposure if the jury were sure that they committed the crime: if there remained any (reasonable) doubt after hearing the evidence for and against that finding, the jury had to acquit. In this case, there were various sources from which that doubt might have come.

The Level of Alcohol Involved

Both the complainant and the defendants were heavily under the influence of alcohol at the time of the events that formed the subject matter of the trial. Alcohol butts the ability of the fact finder to reach a sure conclusion about what exactly occurred on the night in question. This is not to condemn the complainant for having alcohol in her system, but it is a symptom of the imperfect fact-finding process of the criminal trial.

It is the role of the jury to recreate what occurred over a year earlier, in the artificial environment of the courtroom, using the testimony and real evidence before them. This process is acutely difficult when the crime of rape is being prosecuted: it is often, and usually only, the individuals involved who know what actually happened between them. The jury is therefore restricted to their conflicting testimonies (‘his word against hers’). When the recollection of those witnesses is affected by alcohol, the process of reconstruction is made all the more difficult. This lack of certainty might have created a reasonable doubt in the jury’s mind.

Live Oral Testimony and the Principle of Orality

The complainant and each of the defendants gave evidence, live in court. The principle of orality in criminal evidence means that the law places great weight on the availability of cross-examination as a tool to test the evidence of both sides, and to assist the arbiter of fact in its fact/truth-finding mission. As Lord Hanworth MR described in Mechanical & General Inventions v Austin Motor Co [1935] AC 346, it is:

[A] powerful and valuable weapon for the purpose of testing the veracity of a witness and the accuracy and completeness of his story.

Indeed, if the cross-examination of the complainant was such to create reasonable doubt in the minds of the jury, then their decision to acquit the defendant must be respected.

Further, it is important to recognise that when the jury evaluates live testimony, it is not only the words of the witness that matter; the jury’s perception of their evidence also relies on more subtle indications of veracity, such as the demeanour and tone of the witness. It is therefore difficult properly to evaluate the credibility of a witness by simply reading a trial transcript (this is one of the reasons why the test for an appeal against finding of fact is set so high); therefore, claims that the jury ‘got it wrong’ - without more - are not compelling. 

The Testimony of Dara Florence

Dara Florence was another woman at the party who walked in on the incident that occurred between the complainant, Paddy Jackson and Stuart Olding. On her account, what she saw was a consensual encounter – albeit one that she only saw for a matter of moments.

This weakness in her evidence was tested before the jury in cross-examination, and the jury would have been directed by the judge to consider carefully the weight to attribute to each item of evidence. If, after this process, the jury decided that they believed the testimony of Ms Florence, then that would have cast doubt on the prosecution case, and that decision must be respected.

Reasonable Belief in Consent

The jury must also have been sure that - even if the complainant did not consent – the defendants did not reasonably believe she was consenting. The dispute between the prosecution and the defence as to who followed whom up the stairs in Paddy Jackson’s house, and the complainant’s actions before and during the incident, might legitimately have created doubt as to whether the defendants knew that what they were doing was violating the complainant’s free will.

Why? The Multifarious Aims of the Criminal Justice System

There is a temptation – particularly when faced with defendants such as those in the Belfast trial, and an account such as that of the victim – to take a victim-centric approach to criminal justice. However, these fundamental defendant protections must be given due regard, as the aims of the criminal justice system go beyond the vindication of victims’ rights: the law must also ensure that those who attract punishment for crime have deserved it, that those who are innocent are acquitted, and that those who are convicted are fairly labelled. This must all be done by due process. It is a fundamental aspect of this due process that defendants are tried by their ‘peers’: trial by jury provides an essential check against state power.

It is because of these multifarious aims of the criminal justice system that the hurdles to conviction outlined above exist, and it is important that the response to the acquittals recognises these aims. While #IBelieveHer can legitimately believe that the complainant did not consent to the encounter with Paddy Jackson and Stuart Olding, it must be careful not to override the verdict of the jury by declaring them guilty of a crime for which they were acquitted. To do so is to ignore and undermine the legal requirements for, and the implications of, a finding of guilt.

Legal Guilt and Social Guilt

The defendants were not legally guilty of rape and exposure, but this does not mean they were not morally and socially in the wrong. Texts sent between the defendants in the aftermath of the incident displayed a total lack of respect towards women – for example: ‘Pumped a girl with Jacko’, ‘She was very, very loose’, ‘Love Belfast sluts’, 'We are all top shaggers'.

These messages are illustrative of a degradation of women which will not be tolerated in today’s society. Drawing upon the momentum created by the #MeToo movement, #IBelieveHer rightly condemns this misogyny. The movement’s reach also legitimately extends further: the social media response to the acquittals is right to take its condemnation beyond the text messages and cover what happened between the complainant and the defendant. 

It is right to recognise that the complainant did not, in all likelihood, consent to what happened. The incident was therefore unacceptable, and something which today’s society will not tolerate. It is important to understand that this recognition does not mean that the defendants were guilty of rape, as a lack of consent is one of three elements to be proved.

The #MeToo movement’s readiness to extend its focus beyond what is legally sexual assault has been criticised by some commentators, who have argued that it is overreaching its proper limits, and in doing so, is undermining the ability of women positively to consent. 

But this extended focus is in fact one of the strengths of the #MeToo movement: limitations exist to a finding of legal guilt, which are attributable to the multifarious aims of the law. However, no such limitations exist in the social sphere, and the #MeToo and #IBelieveHer movements can afford to take a victim-centric approach to allegations of sexual assault. This offers protection – or at least support – to women where the law cannot. However, this strength can only be maintained if the distinction between legal guilt and social guilt is recognised. Otherwise the response falls victim to arguments that the movement is overreaching.

Conclusion

The #IBelieveHer movement is at risk of eliding legal guilt with moral and social wrong; to the extent that it does so, it ignores and undermines fundamental defendant protections that exist in the law. These protections are necessary to meet the many aims of the criminal justice system.

However, the #IBelieveHer response is not subject to the same limitations as the legal system and can afford to be victim-centric in its response to allegations of rape and sexual assault. This is a strength of the movement, but it is a strength only to the extent that the lines between legal and social wrong are maintained.

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Tagged: Courts, Criminal Law, Human Rights, Justice, Rule of Law, Sexual Offences

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