The Criminal Justice System and Lessons from the Belfast Rape Trial

The issues around the recent Belfast rape case have been well rehearsed; the unavoidable media saturation kept it well on the agenda of too many workplace coffee breaks and social media rants. This article will not rehash those conversations. Its purpose is to explore the challenge made to the criminal justice system by the activists who organised the rallies in its aftermath.

The rally outside the court on the day after the judgement saw around 800 people attend in a collective expression of anger at the process, regardless of the verdict that was delivered. We had heard things said by legal professionals that we felt surely had no place in a court of law. Sexist stereotypes about women, sex and rape are a part of our culture. We may have to roll our eyes or call it out when we encounter it in our social circles, but to see those same myths and stereotypes being put to work in a state institution was truly disturbing.

It’s worth noting that the Public Prosecution Service agrees with my assessment. Their document ‘Policy for Prosecuting Cases of Rape’ lists 11 examples of ‘myths and stereotypes’ which they say they do not allow ‘to influence decisions’. This list includes things like ‘if they did not scream…it was not rape’. And yet defence teams can clearly rely on this myth with total freedom before a jury. This is highly inconsistent.

My own personal motivation for wanting to speak out in the aftermath of this case came from the fear that what had been laid bare by the media was likely to put off future victims of rape from reporting and seeking justice. We already have a serious problem with under-reporting in this country, which could be as high as 83% if it falls in line with the figure identified for England and Wales through the 2016/17 Crime Survey.

It’s no surprise that so few people choose to seek justice when they are raped. The most recent statistics released by the PSNI paint a dismal picture when it comes to prosecution and conviction rates. Last year only 5% of the almost 900 rapes reported to the police resulted in a charge or a summons and only 1.8% of those reported ended in a conviction.

Women talk to each other about these experiences. We know what our friends and family members have been through, with nothing to show for it. I have the utmost respect for any victim of rape who chooses to face what many describe as a secondary trauma in order to bring a rapist to justice. And post-Belfast rape trial it worries me that there will be far more who are forced to suffer in silence unless we seize this moment to bring about change.

As we organised our public rally we formulated a series of demands, the first of which addressed the most pressing issue – the criminal justice system. When it came to writing this particular demand, we didn’t have much in the way of solutions. It was mainly intended to be a statement of fact, for which the evidence base is our collective experience:

Our criminal justice system is not fit for purpose when it comes to dealing with sexual crimes. Victims are re-traumatised and are treated like they are on trial. The system is designed to defend the rights of the accused with little regard for the victim.

Our simple message to everyone involved in the prosecution of rape in this country was ‘this is not good enough’.

In the weeks since that day we’ve been pleasantly surprised to find that this message has been heard. The authorities in the south were the first to react with the Irish Justice Minister announcing a review of rape trials in light of concerns raised by the Belfast trial, and guided by recommendations made in a recent report by the Irish Rape Crisis Network.

A week later came the announcement of a review in the north led by retired judge Sir John Gillen who will report to the Criminal Justice Board in January 2019. The review does intend to look at ‘those changes that may require legislation’, but there is also a clear intention to focus on ‘those changes that may be introduced fairly quickly into the actual process itself’ in light of the current legislative black hole in which many good intentions are currently languishing.

These announcements are a positive development; whether or not we can claim them as a victory for our campaign remains to be seen.

Will a departmental review led by a retired judge have enough independence from the system to be able to see it through the eyes of those it is meant to serve? Victims groups like Nexus, Women’s Aid and Victim Support were among the first to meet with judge Gillen, but already the narrative of more protections for the accused is capturing the limelight.

This is particularly difficult given that when reporting restrictions were lifted on the recent case, we got a glimpse of just how much protection is already afforded to those in the dock under our current system, such as the withholding of evidence that could ‘indicate bad character’. Contrast this with the recent conviction of Bill Cosby in the United States, which depended on evidence from other women who accused him of similar crimes; something that would most likely not have been admissible in a similar case in a UK court.

It also stands in stark contrast to the methods used to undermine claimants in rape cases, which largely depend on character assassination. The idea that victims feel like they are the ones on trial is not a new one and as far back as 1976 a judge led review into the treatment of complainants in UK courts led to amendments to the Sexual Offences Act to curb the use of evidence about a complainant’s sexual past. However, with limited changes in practice inside the court room, research undertaken by Sue Lees in 1993 confirmed that women were still being systematically humiliated in court and that victims were continuing to find the experience extremely distressing.

Passed in 1999, Section 41 of the Youth and Criminal Evidence Act attempted to impose more stringent restrictions on what evidence can be presented regarding pervious sexual behaviour and on aggressive cross-examination of vulnerable witnesses. However, Professor Jennifer Temkin’s work between 2000 and 2008, interviewing barristers who defend rape cases, demonstrates their willingness to discredit a claimant based not on the facts of the case, but on their appearance, clothing or sexual character.

As recently as 2016 there was outrage at the decision to allow evidence from two witnesses in the appeal hearing in the trial of footballer Ched Evans in Wales, which outlined their previous sexual encounters with the claimant. The evidence met the criteria for an exemption to the legal restrictions, but the impact on victims was devastating.

In the coming months we intend to engage with the DOJ review, knowing that we are not legal experts, but that we have created a platform for ordinary people who have been failed by legal experts time and time again. We would like to see our claim that ‘victims are treated like they are on trial’ and ‘the system is designed to defend the rights of the accused with little regard for the victim’ properly interrogated.

There are many ideas on the table from other jurisdictions – mandatory training directed by judges for all jurors in rape trials so that they can identify rape myths, legal representation for claimants who currently have none and occupy only the status of a witness to a crime, moving from an adversarial to an inquisitorial system for rape cases, or the recently adopted Icelandic approach of requiring the accused to prove that they obtained consent. All of these deserve attention and without exploring every possibility all we will get is more tinkering around the edges of a failing system.

After recent discussions with a colleague whose work has required her observe rape cases over many years, she left me with the depressing assessment that it is virtually impossible to get a successful rape conviction in this country where the key dispute is over whether or not the sexual encounter was consensual. I am inclined to agree and can think of multiple scenarios where it seems highly unlikely that a jury could convict ‘beyond reasonable doubt’ in light of the prevailing influence of myths and stereotypes about women, sex and consent.

However, it is usually at moments like this that the greatest catalysts for change are born. In the cultural momentum created by the #metoo movement, as people become more accustomed to believing victims of sexual assault, it seems that our criminal justice system still has a lot of catching up to do.

Kellie Turtle is a Feminist Activist and WRDA’s Women’s Sector Lobbyist.