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The Belfast Trial: What Relying on Rape Myths Means for Justice

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About The Author

Elizabeth Smart (Guest Contributor)

Elizabeth is an LLM student at the University of Birmingham with an interest in International Law and Crime. She hopes to practice as a barrister having been inspired by the criminal justice system in her role as a volunteer for the Witness Service. Elizabeth is an outspoken advocate for both Human and Animal Rights, a lover of seabirds, and can often be found practicing origami.

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 Paddy Jackson and Stuart Olding of rape has been the subject of much discussion and controversy. #IBelieveHer, a hashtag shared in support of the victim, gained significant traction on Twitter, while equally vocal support was expressed for the defendants.

The Belfast trial does not sit easy with many campaigners of women’s rights, for a number of reasons. One of the main controversies involved comments made by Counsel for Stuart Olding in his closing speech, in which he invoked certain ‘rape myths’. Particularly concerning was his assertion that a ‘real victim’ should act in a certain way following an assault.

Such suggestions formed the basis of the defence narrative of the case. In light of this, the question of how far a defence barrister can, and should, go in discrediting a complainant in the interests of their client must be addressed.

However, this presents a conflict for the criminal justice system: on the one hand – as explained by Bláthnaid Breslin for Keep Calm Talk Law – there exists the presumption of innocence and a barrister’s obligation ‘to promote fearlessly and by all proper and lawful means the client’s best interests’. On the other hand, vulnerable witnesses must be adequately protected from the ordeal of the trial process to ensure that they give their best evidence. This concern is especially pertinent for complainants of sexual assault, who may consider that the risk of being disbelieved and publicly discredited outweighs the desirability of pursuing justice.

This article will therefore discuss and seek to discredit various rape myths and tactics that are commonly used by defence Counsel in sexual assault cases, before considering whether further regulation of the cross-examining of victims is a feasible solution to preventing their use in the future.

Rape Myths in the Belfast Trial

A rape myth is a falsehood or misunderstanding about the crime of rape, the reasons for it being committed, and the reactions of victims. For example, it is a myth that the victim’s clothing is pertinent to the question of consent: a recent exhibition in Brussels, which displayed the clothing worn by victims of rape and sexual assault, represented a powerful and compelling challenge to this fallacy.

Furthermore, it is a myth that rape is always about sexual gratification. As Samuel Muchoki and Simiyu Wandibba have documented, rape is more often than not about power and violence. Research by David Lisak et al. demonstrates the inaccuracy of a further well-cited myth: that false allegations of rape are common.

A final, common myth is the suggestion that ‘real victims’ of rape will scream, fight back, and immediately go to the police. This has now been accepted to not be true, as shown by the repeal of Section 120(7)(d) of the Criminal Justice Act 2003. This provision prevented a previous complaint to the police from being admitted as evidence of consistency in the complainant’s case if the complaint had not been made as soon as ‘reasonably’ possible.

This final myth played a major role in the Paddy Jackson case: in his closing statement, barrister Frank O’Donoghue QC (appearing on behalf of Stuart Olding) asked the jury to consider why the complainant did not ‘scream the house down’. He also argued that the middle-class girls downstairs would not have tolerated ‘a rape or anything like that’. The suggestion implicit in these comments is, that if the complainant had really been raped, she would have reacted differently. This is a troubling suggestion. As Naomi Long – the leader of the Alliance party, whose tweet on the matter reportedly almost brought the trial to an early close – stated:

Middle-class girls? What? Because 'working-class girls' wouldn't care/don't matter/think rape is normal? What is the implication of that comment even meant to be? Appalling at every level.

Long was correct to criticise O’Donoghue QC’s comments. They imply that a person who does not consent to sex must scream and fight to prove they did not consent; this fails to acknowledge that screaming and crying are not the only indications of a lack of consent. They also imply that there is a ‘right’ way to be a victim of sexual assault, and if a victim does not act ‘correctly’ while being assaulted it follows that they will not be believed in court. Such an approach effectively amounts to using a victim’s reaction to trauma against them, in order to discredit their testimony.

O’Donoghue QC’s comments ignore the fact that a victim’s reaction to sexual assault is not something that they can control. As James Hopper has explained, victims often report dissociation or a feeling of disconnect from their body that means they are unable to move, fight back, or call for help. The opposite of O’Donoghue QC’s suggestions is therefore true: a silent response is wholly consistent with a lack of consent.

Furthermore, a study by Grace Galliano et al. has found that victims who delayed reporting were far less likely to have attempted to fight back. There is therefore a clear connection between a dissociated response to assault and a reluctance to report. This attitude is encouraged by the approach of the defence in the Belfast trial.

The use of this tactic is troubling: it directly invokes the rape myth that the only ‘correct’ way to be a victim is to fight back and scream for help – a myth which has been shown to be false. It is not hard to see why, following its use, more victims may decide to forego reporting their sexual assault because they fear that they will not be believed.

A Common Problem with Defence Narratives

Common defences to accusations of rape see defence Counsel arguing that the complainant did in fact consent, or that the defendant reasonably believed that they did. In advancing these defences, it is common for the defence to use a narrative that paints a picture of a victim who regretted a sexual encounter and ‘cried rape’.

The prevalence of the use of this line of argument cannot be legitimate. For one thing, it overlooks that it has been proven that there are no more false allegations for rape than for any other crime. It is also doubtful that the modest percentage of rape allegations that are false would overcome the hurdle of the Crown Prosecution Services’ two-stage ‘Code Test’ and actually get as far as a trial. There is unlikely to be sufficient evidence (evidence that is admissible, credible, and reliable) that stands a good chance of ensuring a conviction, and it is likely there would be no public interest in prosecuting. Therefore, any suggestion that a complainant is making false allegations does not account for the fact that, at this late stage in the criminal justice process, very few false accusations are likely to have survived.

Furthermore, such a line of defence effectively amounts to telling a vulnerable complainant that they are lying. When the stress and trauma that is inflicted on victims of sexual assault is borne in mind, it becomes clear this suggestion should not, in any modern legal system, be embarked upon lightly. The presumption of innocence is an integral feature of criminal justice, but it does not require a starting-point whereby it is presumed the complainant is not telling the truth.

Indeed, there are defences to rape that do not invalidate the experience and trauma that victims endure; for example, the defence of a reasonable belief in consent. A lack of consent must still be proved by the prosecution – unless one of the evidential presumptions in Section 75 of the Sexual Offences Act 2003 (SOA 2003) apply – beyond reasonable doubt, with case law making clear that the consent proved must  be an agreement rather than the lack of an objection.

However, this state of affairs is undermined when a defence barrister is permitted to suggest that a complainant should not be believed unless they actively communicated their lack of consent. This is especially so when the facts of the Belfast Trial are considered: here, one of the defendants admitted during the trial to presuming that the complainant had consented rather than presenting evidence of her conscious and active choice to consent.

Discrediting the Complainant: Beyond the Courtroom

In many ways, the tendency to discredit victims and their lack of consent in cross-examination mirrors the way in which complainants are all too frequently discredited outside of the courtroom. So while it is true that there is a high evidential burden – which makes rape difficult to prove, particularly given cases rarely involve third-party witnesses – the offence’s low conviction rate calls into question whether society has the right attitude to complaints of rape.

According to statistics published by the Crown Prosecution Service (CPS), juries acquitted defendants in 62.3% of rape trials that occurred between 2016 and 2017. This figure is made all the more powerful when consideration is given to the fact that rape is an offence that is notoriously under-reported and one for which it is difficult to find sufficient evidence, such that very few cases make it to trial. Indeed, the gap between estimated assaults (648,000 people in 2017, according to the Office of National Statistics) and convictions (2,991, according to the CPS’s statistics) is disheartening and calls into question the ability of the justice system to hold perpetrators of sexual assault to account.

Research carried out by the Inspectorate of Prosecution in Scotland found that two of the most common reasons for victims not reporting their assault were a fear of the ‘degrading’ and ‘terrifying’ court system, and a belief that the perpetrator will never face justice. This was evident in the Belfast Trial: as the Irish Times reported, the victim texted a friend the morning after the assault saying:

[N]o I don’t want to get the police involved, you know how it goes, they won’t get charged.

Recently, the #MeToo movement has played a valuable role in encouraging victims to share their stories and speak out against institutionalised mishandling of sexual assault and harassment. However, the facts of the Belfast Trial suggests that one barrier to progress is the criminal justice system itself; it is failing to catch up.

Indeed, it is a sad but real fact that the discrediting of one victim in the manner seen in the Belfast Trial further discredits many other victims: they are deterred from coming forward and helping ensure that perpetrators of sexual assault are held accountable. It is clear that many complainants would rather not endure the stress of going to court, particularly when the chances of conviction are so low. 

Is Regulating Defence Barristers the Way Forward?

The comments of the defence Counsel in the Belfast Trial arguably amount to the perpetration of a rape myth. It must therefore be questioned why barristers are given the freedom to make such suggestions to, and about, complainants of sexual assault.

Resolving this issue involves tackling one major dilemma: if the law were to impose limits on the permissible grounds of cross-examination of complainants, this would conflict with the duty of defence Counsel to properly protect their client’s best interests. There is therefore a tension between protecting the defendant’s rights – to have their lawyers criticise and discredit the prosecution’s case – and the desire to avoid discouraging victims from reporting crimes.

A balance must be struck between these two competing aims. It is, however, difficult to identify where this balance lies. This is particularly so given a central issue in rape trials is whether a complainant truly consented; if defence counsel is restricted in their ability to test the evidence of the complainant, then it becomes very difficult to put forward a defence based on a lack of consent. However, if defence barristers remain unrestricted in their lines of questioning, the ability to shame a complainant for her response to the assault will perpetuate the problem of under-reporting.

Any proposal to introduce restrictions on lines of argument which defence barristers can use would not be novel. As Jack Slone has explained for Keep Calm Talk Law, Section 41 of the Youth Justice and Criminal Evidence Act 1999 has already imposed restrictions on when the defence can use a complainant’s sexual history in cross-examination.

Some may argue that – in line with the principle of orality which, as Bláthnaid Breslin has explained for Keep Calm Talk Law, requires spoken evidence to be used in court instead of written statements – it is preferable that a complainant should be required to give honest answers to difficult questions in open court. This allows the complainant to explain in their own version of events before the court in a way which allows that account to be subsequently tested.

However, to permit such difficult questions requires faith to be placed in the defence counsel that they will not use the prejudices of society – represented by the jury – against the complainant. The CPS claims that prosecutors are provided with specialist training to handle rape prosecutions, and are instructed on how to ‘robustly’ challenge rape myths if they appear in court. This is certainly to be welcomed, but concerns can be raised about the success of this when the defence counsel is simply playing to prejudices held by society at large.

After all, the problem is not that these myths are not sufficiently challenged: the narrative used by the defence in the Belfast Trial was challenged by the prosecutor. But no matter the strength of the challenge against it, the fact a rape myth has been used can never be taken away from the jury. Thus, the problem is that they are permitted to be used by defence Counsel in the first place.

While not explicitly contradicting the law and definitions of consent, the defence team in the Belfast Trial successfully undermined the concept of active consent by utilising rape myths as a strategy to discredit the complainant.

One potential solution to this problem would be to require judges to intervene when barristers attempt to use these myths to their advantage. This could be done by giving a direction to the jury to disregard certain suggestions. The jury must follow the judge’s direction; this would therefore be a simple and immediate method of regulating defence counsel that does not rely on the prosecutor to – often without prior research – convincingly challenge the rape myth.

Conclusion

A major societal overhaul of the way complainants are treated is needed, such that it is considered ludicrous to suggest that not screaming for help is evidence that a victim, who may be paralysed by fear, did in fact consent.

Ultimately, these myths must be called out for what they are: fallacies that prevent justice for victims. Great strides are being made in this regard: rallies were held across Ireland to show solidarity with the complainant after the Belfast Trial and to demonstrate that such myths will not be tolerated.

But lawyers and their arguments do not exist in a vacuum; if society had definitively moved on from rape myths, then juries would not be amenable to such defence tactics. The Belfast Trial demonstrates that this is not the case: these tactics work precisely because they resonate with beliefs held by juries.

Ultimately, it is argued that until rape myths disappear from societal discourse altogether, it is reasonable to protect vulnerable complainants from their use by defence counsel at trial. If this course of action is not followed, there will continue to be outrage and disgust at the misinformation that has permeated courtrooms.

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Tagged: Courts, Criminal Law, Justice, Sexual Offences

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