Traumatised rape victims should be supported through legal process

GROTESQUE, unbelievable, bizarre and unprecedented seems like an apt description of the callous treatment meted out by the Irish criminal justice system to an alleged gang rape victim.

Giving evidence in the Central Criminal Court three weeks ago, some confusion arose when a woman alleged a number of men had trapped her in a wardrobe before she was taken to another room and raped.

In order to establish who had allegedly done what, Justice Paul Carney made the very unusual request of asking the woman to get out of the witness box and walk to the back of the dock, where she stood facing the three defendants’ backs.

She was instructed to point at the men she was accusing in turn, but this was not deemed sufficient to adequately identify the defendants, so the woman was then asked to move to the front of the dock and face them head on.

According to a report in the Sunday Independent, the woman was left “visibly terrified” as she stood within inches of her alleged attackers, prompting one barrister to privately remark that he feared she was going to “collapse during the ordeal”.

The following day the woman failed to appear in court to continue her evidence and a bench warrant was issued for her arrest.

Later that day the woman was discovered by gardaí in her home, where she had taken a cocktail of vodka and sleeping tablets in an apparent overdose attempt. She was rushed to hospital and, on her release two days later, brought directly to the court where she was remanded in custody, in a holding cell in the basement of the new court complex, because she was deemed a flight risk.

A number of hours later, after gardaí gave assurances that she would give evidence, she was released from custody. The men were subsequently found not guilty of the rape charges when the trial went ahead.

Regardless of the verdict, the issue here is not the guilt or innocence of the men but rather the insensitive treatment of the alleged victim in advance of the jury’s finding — treatment that followed the letter of the law but failed to show even a modicum of compassion for the alleged rape victim.

In the eyes of the law, the woman was just a witness — albeit, one to her own alleged rape — who was not co-operating with the trial and, accordingly, was treated no differently than a hostile witness in any other criminal case. Perfectly legitimate legally, but hard to fathom on a human level.

According to the Rape Crisis Network Ireland (RCNI) there are three main hurdles when it comes to successfully prosecuting rape cases: the decision to make a formal complaint, the decision of the DPP to prosecute and the trial process itself.

In this country, only one in ten rapes is reported to gardaí, while the DPP prosecutes just one in three of the cases that lands on her desk. Notwithstanding the ultimate verdict in the case, the very fact that there was deemed to be sufficient grounds to prosecute in the first instance was something of a minor miracle when evidence in contested rape cases can very often be condensed into just four words: “he said, she said”.

For those men and women who have had their bodies violated, the prospect of coming to court and having their characters assassinated by our adversarial court system is seen as a second assault.

Regrettably, there is no alternative to robust cross-examination of victims because it’s the only way to ensure the rights of defendants, who come to court with a presumption of innocence, can be protected.

A number of important statutory reforms in recent decades should be noted: The provision of anonymity for both the complainant and the accused, the rescinding of a barbaric rule which meant a husband could not be charged with the rape of his wife and the strict restriction of both sexual history evidence and corroboration warnings by trial judges.

However, in practice, as a recent study by Senator Ivana Bacik showed, judges allowed sexual history evidence be introduced in 70% of surveyed cases between 2003 and 2009, meaning that victims still, all too often, feel like they’re the ones on trial.

Outside of the courtroom, it is the pervasive “rape myth“, that there are so-called “serious” rapes involving violent attacks by strangers, and lesser “date rapes”, where both parties know each other, that has really stymied progress in the fight against sexually based offences.

As countless surveys constantly inform us, women are deemed to be asking for it if they have the temerity to act a certain way, drink over a certain amount or dress in a subjectively provocative manner.

Some men, it is argued, can’t be blamed if they misread the signals from those harlots who dared lead them on — often, by merely engaging them in some kind of bland conversation out of misplaced politeness — and any degree of acquaintance can automatically translate as consent.

Of course, this ignores the unpleasant reality that 90% of rapists are known to their victims and just 10% of cases qualify as “real rape”, involving the aggravated attack of a stranger.

This preoccupation with outmoded perceptions of acceptable morality can perhaps be explained by the socialisation of women from an early age to act at all times with a heightened awareness of the risk of rape — from girls who are taught to be wary of strange men to young women who are warned not to walk home alone at night or that men are only after one thing — so that, when an allegation of rape is made, the immediate reaction is to try to apportion blame to women’s own reckless courting of risk.

This conditioning of women to blame themselves was hinted at in a comprehensive RCNI study, Rape and Justice in Ireland, which found women-dominated juries did not convict a single defendant of rape while male-dominated juries were more likely to convict — indicating that women tend to be their own, and each other’s, harshest critic.

Any hope of imminently denting the centuries old stereotype of the fallen woman, begging to be attacked, is probably a tad optimistic but, while courts should by no means be weighted in favour of the complainant, equally, they should not reduce victims’ experience to that of an inconsequential and isolated third party.

Traumatised victims, who will have already endured an appalling ordeal before their case ever reaches court, should be supported through the combative legal process and any potential for intimidation by defendants should be kept to a minimum.

In other jurisdictions, specially trained police officers liaise with victims from the moment of complaint right through to the end of the court process while here the RCAI, whose funding has been cut by 30% since 2008, have hundreds of trained volunteers who offer a similar nationwide service, but victims are not routinely made aware of it.