Sunday 20 January 2019

Lessons of the Belfast rape trial

Supporters gather outside the Department of Justice on St Stephen’s Green during the Rally for rape trial victims.
Photo: Tony Gavin
Supporters gather outside the Department of Justice on St Stephen’s Green during the Rally for rape trial victims. Photo: Tony Gavin
Editorial

Editorial

The Belfast rape trial has raised the most serious questions in relation to the sexual interactions between men and women, primary among which is the meaning of rape, which is sex without consent, and as a consequence of that, the meaning of consent. In recent times there has been a wider discussion around the meaning of "consent", specifically when it is offered and withdrawn. This is an overdue discussion, still evolving. However, despite its importance to the nature of sexual violence, consent remains misunderstood.

In the aftermath of the Belfast trial, Noeline Blackwell, of the Dublin Rape Crisis Centre, was correct to highlight the need for all those engaged in sexual activity to ensure that their partner was consenting. She was also convincing when she stated - as was also stated at the trial - that submission is not consent: "A person does not have to yell or call out for help. A person may be frozen. All of these are normal and real responses. They are not consent. Consent involves active agreement. Anything less is unacceptable."

The jury trial concluded with the acquittal of four men, two of them Ireland rugby internationals, for rape and other sexual offences and for withholding information. That verdict must be and is respected. However, the trial has raised a number of issues, consent being but one: another is the way in which claimants and accused are treated in such trials. In this case, the young woman spent eight days under cross-examination by four legal teams. She herself was unrepresented, other than by prosecution counsel. This is an area which is, admittedly, difficult to reconcile. However, all effort must be made to protect complainants in rape cases against unfair or irrelevant cross-examination. Where rape is alleged, the trial procedure is of its nature potentially distressing, humiliating or embarrassing for the complainant in a way which other trial procedures are not. These are problems which any humane system of criminal justice must seek to address, but without unfairly limiting the rights of the accused.

The Belfast rape trial has also raised another issue, the phenomenon of social media, which was a feature of the evidence as contained in the text messages sent between the four defendants in the aftermath of the incident concerned, but more broadly in public commentary during and after the trial. This is an issue which could be further considered by the Law Reform Commission here to establish whether sanctions can be properly imposed against those who have crossed the line, in this case, for example, by the identification of the young woman concerned.

However, these and other issues aside, the criminal justice in this country, North and South, operates on the basis that, where doubt remains as to a particular allegation, the doubt should be resolved in favour of the accused. This is expressed in the principle that the accused is presumed innocent until proved guilty and in the onus that is placed on the prosecution to prove its case beyond reasonable doubt. Society has to make a choice about the balance it wants to draw between ensuring and avoiding a conviction. At present, the criminal justice system operates on principles which assume the need to avoid convicting an innocent person is, in a free society, the most important principle. In the aftermath of this trial, it remains the case that this is a price worth paying.

Sunday Independent

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