Wednesday 23 January 2019

Eilis O'Hanlon: There is a moral, as well as a legal dimension to cases of alleged rape

The verdicts of juries must be respected, but the rugby rape trial in Belfast raises many important questions, writes Eilis O'Hanlon

STATEMENT: Stuart Olding could have pocketed his not guilty verdict and walked away. Instead his statement tried to address how the woman at the centre of the case had been treated. Photo: PA
STATEMENT: Stuart Olding could have pocketed his not guilty verdict and walked away. Instead his statement tried to address how the woman at the centre of the case had been treated. Photo: PA

Eilis O'Hanlon

Churchill said that democracy was the worst form of government, apart from all the others.

The same could be said of trial by jury. Those criticising the verdicts of not guilty on Ulster rugby players Paddy Jackson and Stuart Olding over the charges of rape of a woman at a south Belfast house party in June 2016 would do well to remember it.

Over 42 days, one of the longest trials in Northern Ireland's history, the jurors in Laganside Crown Court heard evidence from the complainant; from the two men accused of her rape; from fellow players Blane McIlroy, who was charged and found not guilty of exposure, and Rory Harrison, who was charged and found not guilty of perverting the course of justice and withholding information.

They heard from investigating officers who handled the case; from other witnesses who were at the party; from the taxi driver who took the young woman home afterwards. They also heard from two separate doctors.

In the end, the members of the jury who made it to the end of the trial concluded, unanimously, that, on the evidence presented to them, a not guilty verdict against all four men was the correct decision.

There is nothing wrong with expressing disappointment at the outcome of a criminal trial. People are entitled to their opinion, or to feel immense sympathy for the young woman at the centre of the case, or to call for changes to the way that alleged rape victims are treated by the courts. All that is entirely legitimate and healthy.

The rallies which took place around the country last Friday were a deeply moving declaration of solidarity with women affected by the issues which the trial raised.

But it's equally important for those who have gone way beyond the expression of basic human sympathy and sought instead to criticise the verdict to honestly answer one simple question, namely: Would they, had they been on that jury, have found those four individuals guilty or not guilty of the charges?

Many of those who say they would have found them guilty have only a sketchy understanding of the evidence presented.

It's quite something to say, in these circumstances, that they would have been satisfied beyond reasonable doubt of the men's guilt, and that the jury either did not understand the case or take it sufficiently seriously.

From my own and others' experience of jury service, there is no reason to doubt that jurors are acutely cognisant of their responsibilities.

When told, as Judge Patricia Smyth instructed the remaining jurors in Belfast during her summing up, to lay aside all "prejudice and emotion", and to come instead to "common sense conclusions" based solely on the evidence which was presented to them in the course of the trial, that is overwhelmingly what ordinary men and women in that position strive to do, having the humility to accept that it is not their place to second guess the evidence.

Now, it could be that the hurdle of proof is set too high, even though rape is one of the most serious offences on the statute book, making it imperative that allegations should pass the highest evidential bar. It could even be that we should just jail certain defendants without further ado once an allegation has been made, simply because of who they are and what they are deemed to represent. That certainly seems to be the feeling in some quarters.

That, though, is not an antidote to the weaknesses of the system. It would in itself be a display of unfairness, and anyone who thinks otherwise has no place on a jury. It's not about you or your feelings. It's about the evidence, and those against whom sufficient evidence does not exist should not be punished in order to restore some symbolic "balance" to an otherwise unfair world.

Indeed, those protesting most loudly about the verdict would, in other circumstances, surely laud the so-called Blackstone's formulation that "it is better that 10 guilty persons escape than that one innocent suffer".

But even after dismissing some of the wilder criticisms of the verdict as ill-informed and overwrought, that does not mean there is nothing left to say about this high-profile case. Olding issued a statement immediately afterwards in which he directly addressed the events of that night, saying: "I want to acknowledge publicly that although I committed no criminal offence on the evening of June 28, 2016, I deeply regret the events of that evening."

He went on to note that the young woman had come to the court and given evidence as to her perception of the incident, before adding: "I'm sorry for the hurt that was caused to the complainant."

That was a commendable thing to do. Stuart Olding was not required to do so. He could have pocketed his not guilty verdict and walked away without looking back. His decency in acknowledging that there was, is, and must be, a moral dimension to such sexual encounters, and that the young woman's feelings do matter hugely, even if she was not raped, is a vital contribution to the conversations that now need to happen.

One of the most harrowing days in court came when her friend, who cannot be named to protect her own and the complainant's anonymity, read out the text messages which the young woman had sent to her in the hours following the party at Paddy Jackson's house. Later it was possible to compare those messages to the explicit and boastful ones being sent and received by the defendants and their friends at exactly the same time. Reading them side by side is a valuable exercise in empathy.

The court is no place for philosophical inquiry. It restricts itself to simple questions, specifically: was the complainant, according to the law, raped? In this case, the answer decided upon by the jury was that she wasn't.

It's still possible to take the evidence which was heard during the nine-week trial, and use it as a door into a broader discussion of how men treat women, especially casual sexual partners, and how what is known as the "hookup culture", often fuelled by large quantities of drink, does a disservice to everyone involved, again the women in particular. It is not something to glorify. Everyone involved is diminished by it.

Paddy Jackson conceded as much when he gave evidence during the trial, saying: "I don't ever want to be involved in something like this again."

In his own evidence, Stuart Olding also addressed the WhatsApp messages that he sent the next day, in which he described the events of the evening as "like a merry-go-ground at a carnival", admitting: "I'm certainly not proud of talking like that, but I did it and I have done it and I shouldn't have done it."

Anyone tempted to paint that evening in retrospect as something to celebrate should pay heed to the regretful words of the men themselves.

It's important not to exaggerate the extent of the backlash against the young woman in question when the verdicts came in, because most men commenting on the case were not inclined to be vindictive, but it would be foolish to deny that it did unleash an ugly undercurrent of misogyny, not least on social media, where there were calls for her to be named and shamed.

Some even demanded that women who make accusations of rape, only to see their alleged attackers found not guilty, to be prosecuted for wasting police time, which is a total misunderstanding of the purpose of a criminal trial.

Consent is complicated. It's not simply about making sure that sexual partners seek active, rather than passive or assumed, consent before undressing. That undoubtedly does have to become part of the negotiation between sexual partners, especially in a culture which takes sex more lightly than in previous times; but one can consent, in every legal sense of the word, to a sexual act, and still end up feeling misused in the moment. The only way through that, airily idealistic as it might sound, is for people to be more respectful of one another and more considerate of the different ways that the same acts can be perceived by all involved.

What became known as the Belfast rugby rape trial should spur a wider debate about the way in which the legal system handles rape allegations. Nothing is more absurd than saying that the system favours false accusers. Statistics alone show the difficulty of bringing rape cases to court and then securing a conviction. Rape is also hugely under reported.

Some things could certainly be looked at. In Northern Ireland, the use of character witnesses feels like outdated nonsense. (It doesn't happen in the South.) Juries are instructed to only base their verdicts on the facts presented in court and not to speculate beyond the confines of the case. In those circumstances, it does seem contradictory that they are then presented with vague statements on a defendant's impeccable character from people who were not even present during the incident over which a dispute has arisen. Why should complainants not be allowed to call character witnesses to testify on their behalf as well?

But the counter argument that the system itself is irretrievably broken feels like a step too far as well. Alleged victims do get a raw deal in court, and not solely in rape cases; they can feel forgotten because attention is on the alleged perpetrator. Defendants, though, have an absolute right to fight for their good name. Claims must be tested in court, and alleged victims will always find that process painful. If there are still too many unanswered questions after they've told their story, or too many things that they just can't remember, acquittal must follow.

A conviction for rape must only ever be handed down when a jury is absolutely convinced of the defendants' guilt. In this instance, the jury was not convinced, and therefore did what it was their duty to do.

What was surprising last week is that more attention was not paid to the prosecution case. The men were not put on trial by the alleged victim, but by the Crown (the State, as Irish law would have it), which had satisfied itself, as the North's Public Prosecution Service explained afterwards, that there was "sufficient evidence to provide a reasonable prospect of conviction and it was in the public interest to prosecute".

The young woman in this case was merely a witness for the prosecution. That might seem like a nit-picking distinction, but it's central to navigating the right way through the aftermath. It was up to the Crown to prove its case beyond reasonable doubt. It self-evidently failed to do so.

That blame was flung at the young woman afterwards, rather than at the prosecution, is a telling indication of the pressures which can be placed on alleged rape victims when they give their version of events, and which undoubtedly act as a disincentive to reporting. She was subjected to over a week of cross examination, with every word of her testimony forensically dissected, while the defendants were on the stand a matter of hours between them.

It could also be that putting four defendants on trial, for different offences, over-complicated the case when it needed to be stripped back to basics. This meant she faced four sets of legal teams, each headed by an experienced QC, and each pursuing its own line of rigorous cross examination.

There is no realistic alternative to probing claimants in court, because not all claims are equally true. That, however, is no reason to treat every woman who alleges rape as a liar. Most decent people, even those who fully support last week's verdict, naturally recoiled from the spectacle of this young woman's prolonged ordeal on the witness stand. That is something which should be looked at.

Noeline Blackwell of the Dublin Rape Crisis Centre has suggested that alleged rape victims should have an automatic right to their own counsel, rather than relying on the State to protect their interests. That could easily be done without undermining the rights of defendants.

Now that it's all over, the best hope is that this case acts, as the #MeToo movement did in cases of sexual harassment, as a spur to a deeper understanding of consent, and a greater appreciation of the frequently shocking reality of rape trials.

This particular case attracted huge attention because of the celebrity of the men who were accused and unanimously found not guilty, but the aspects of it which caused concern to many observers are far from unique.

Sunday Independent

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