Tuesday 11 December 2018

'She fears she wasn't believed' - new details on Cork rape trial expose ordeal endured by complainants

It was the trial that made international headlines and sparked protests. Now new details on the case expose the ordeal endured by rape complainants. Shane Phelan and Ralph Riegel report

(Stock image)
(Stock image)
Clear message: A mural has appeared next to the Bernard Shaw, Dublin, in support of the teenager whose thong was discussed. Photo: Damien Eagers

Shane Phelan and Ralph Riegel

It was around 2am as the 17-year-old girl made her way home on foot through her home town.

She had been at a party with teenage female friends, but after the festivities ended she decided to head home on her own. The route was familiar to her and would usually be considered a safe one.

But as she reached a street just outside the town centre she happened upon a man 10 years her senior.

What happened next would become the subject of considerable dispute in what has become known as the Cork rape trial.

The girl claimed he dragged her up a laneway and raped her on a muddy patch of ground. A witness would later say the man had his hand around her throat.

But the man would deny this, claiming the witness misread the situation. He insisted the girl and he felt attracted to each other, began kissing and then had consensual sex.

On first glance, the circumstances of the incident do not appear to set it apart to any great degree from the dozens of other deeply distressing rape cases the Central Criminal Court deals with on an annual basis.

However, the subsequent rape trial, which ended in the man's acquittal, would make international headlines and spark protests in towns and cities across the country.

The reason for this was that the complainant's choice of underwear was put under the spotlight by a female defence barrister. The lawyer's remarks, in which a jury was urged to consider the fact the young woman was wearing a thong with a lace front, have been widely condemned.

Solidarity TD Ruth Coppinger very much caught the public mood when she held up a thong in the Dáil and called for an end to what she described as "routine victim blaming" in the courts.

Justice Minister Charlie Flanagan, who is a solicitor, said he didn't feel there were any circumstances under which references to the clothing an alleged victim would be acceptable.

"Clothes don't rape women. Rapists rape women," he said.

While much of the fall-out from the trial has focussed on barrister Elizabeth O'Connell's comments to the jury, relatively little has been reported about the circumstances surrounding the case or the reaction of the girl.

Now a young woman aged 20, she was said to be "heartbroken" by the verdict and the subsequent controversy the case sparked. "She is very upset. Her main concern is that she fears she wasn't believed," a Garda source familiar with the case told the Irish Independent.

"But she is also very emotional about the impact the case had on her family and the way in which the clothing she wore on the night has become an issue, particularly in the media. It has been very, very tough on her."

The ordeal has been compounded by the previously unreported fact that the 10-day trial before Ms Justice Carmel Stewart, which ended on November 6, was in fact a retrial.

The first trial in Dublin last year was halted amid legal argument over medical testimony. It would be another 16 months before the case could be tried again.

The Irish Independent has also learned the defendant in the case, a married father with several children, had problems with alcohol and was well-known to gardaí.

However, the rape charge was by far the most serious offence he had ever faced.

The events at the centre of the case unfolded in the early hours of a July morning in 2015 in a busy town in Co Cork.

Both the defendant and complainant are from the locality.

But such was the efficiency and sensitivity with which gardaí handled the case, few in the community were aware the trial related to the area.

Under Irish law there is a prohibition on identifying rape complainants, while the identity of a rape accused can only be disclosed if they are convicted.

Even then, this can only occur where their identification would not in turn identify the victim, unless they waive their right to anonymity.

The family of the then 17-year-old girl became concerned when she did not return home from the party and went searching for her. Relatives were shocked to discover her in a distressed state.

Gardaí were called and, as is normal in cases where rape is suspected, the girl was taken to the nearest sexual assault treatment unit, in this case at the South Infirmary in Cork city.

A full-scale investigation swung into action. The scene was cordoned off for a forensic and technical examination.

CCTV was sought from nearby premises and people who had been in the area around the time of the incident were interviewed.

A female garda from the local station was the investigating officer.

It did not take long for a suspect to be identified.

He was someone many gardaí in the locality were well familiar with.

A few years earlier, he had been convicted of assault causing harm, but was spared a prison sentence when the jail term was suspended. Violent disorder charges would follow after another incident, but he was found not guilty.

Other cases against him involved charges for intoxication, criminal damage, motoring and public order offences.

During one hearing, a judge heard the man had a problem with alcohol.

A week and a half after the incident, the then 27-year-old man was arrested for questioning and it is understood he strenuously denied raping the girl during interviews.

He was released without charge and a file was sent to the Director of Public Prosecutions.

It would be November of that year before word came back that he was to be charged.

Gardaí brought him to the nearest district court, where he was charged and granted legal aid. Within weeks the case was sent forward for trial at the Central Criminal Court.

The trial was fixed for the Criminal Courts of Justice in Dublin and got under way in front of Mr Justice Paul Coffey in June of last year.

However, the case would get bogged down in legal argument over the presentation of medical evidence and the jury was discharged following an application from the defence.

A retrial was later fixed for the new criminal courts complex at Anglesea Street in Cork city and got under way on October 24.

Again, there were periods of legal argument, but the same technical problems over medical evidence did not arise during the retrial and the jury would get to decide the outcome.

As the case progressed, it became clear the central issue was that of consent.

As reported by the 'Irish Examiner', prosecution counsel Tom Creed SC would tell the jury: "You have heard her say she did not consent. You have heard him say she did consent.

"The major issue you have to deal with is whether she consented to sexual intercourse. It is one way or the other. Either she did or did not. If you are satisfied she did not consent and that he knew she did not consent then you convict."

During the trial, the jury heard the young woman, who had never had sex before, was "quite clear" she did not consent and was dragged over 30 metres to the spot where the alleged rape occurred.

The man gave evidence in his own defence, denying he dragged anyone anywhere.

He would tell the court they went up a lane and lay down in a muddy area. Quizzed in detail about what happened, he claimed he could not get fully erect.

While it was possible his penis entered her vagina, he did not think it did.

The man, who is now aged 30, insisted they had been kissing, but no witness was put forward to corroborate this.

One witness had approached and asked if everything was alright, but the man said he told the witness to mind their own business. He said the girl was worried about getting mud on her dress, but insisted she did not cry out.

The man also denied placing his hand on the girl's throat.

He said the girl started "getting funny" as if "she snapped out of a buzz". They were going to have sex, but she said "stop" and he did, he said.

The jury heard that afterwards the girl told the accused: "You just raped me."

But he told the teenager: "No, we just had sex."

The comments which would end up causing so much controversy came during the closing address to the jury by defence counsel Elizabeth O'Connell SC, an experienced barrister mainly working in he south of the country.

"Does the evidence out-rule the possibility that she was attracted to the defendant and was open to meeting someone and being with someone," Ms O'Connell asked.

"You have to look at the way she was dressed. She was wearing a thong with a lace front."

Contrary to some reports internationally, the barrister did not show any underwear to the jury.

After hearing the closing arguments, the jurors, eight men and four women, took just 90 minutes to reach an unanimous verdict of not guilty.

The man wept loudly after the verdict was given.

It is understood his wife has stood by him throughout the case.

Following the verdict, the distraught young woman was ushered from the court to be comforted by her family.

Irish Independent

Editor's Choice

Also in Irish News