Louise O'Neill: 'When I look at how difficult it is for a rape victim to even get a case to court, I wonder if our legal system is fit for purpose in 2020'

I often think about a conversation I had with a barrister a few years ago. She was an impressive sight, in her gown and wig, her high heels click-clacking on the wooden floors of the Four Courts.

“How would you feel,” I asked her, “if you knew that the client you were defending was probably guilty of rape and if they walk free from that court room, they were very likely to re-offend? Would you feel guilty?”

“No,” she replied. “It would just mean that the other barrister hadn’t done their job properly.”

There are many careers that require a certain self-preservation, an ability to maintain an emotional distance in order to do your job properly. I’m sure doctors, nurses, social workers, psychologists etc have all developed coping mechanisms so they can separate their work from their personal lives.

But I’ve never heard a doctor talk about the welfare of their patients as if it were an amusing game, as if there can ever be winners and losers when the stakes are so high. Of course, not everyone in the legal profession thinks like this.

I know many people who work in law who are highly ethical and their professional conduct reflects that.

They would argue that the Irish legal system is preferable to somewhere like the United States which has the highest rate of incarceration in the world and which both unfairly penalises its poorest citizens and deliberately targets people of colour.

If you’re a wealthy American, you can afford the best lawyers and will easily afford bail. By contrast, those who can’t afford to post bail – even for relatively minor crimes - are trapped in jail until their case goes to court.

Unable to work, they become increasingly vulnerable to spiralling into debt they may never recover from. Black Americans are incarcerated at more than five times the rate than their white peers, and in her seminal book, “The New Jim Crow”, Michelle Alexander argues that, “by targeting black men through the War on Drugs and decimating communities of colour, the U.S. criminal justice system functions as a contemporary system of racial control, even as it formally adheres to the principle of colour- blindness.”

I’m not an expert but from my understanding, the idea of false imprisonment is so horrifying within the Irish legal system that there’s a belief it’s better to have ten guilty people go free rather than risk having one innocent man or woman jailed for something they didn’t do.

But when I look at how difficult it is for a rape victim to even get a case to court, let alone see a conviction or significant jail time for the perpetrator, I can’t help wonder if our legal system is fit for purpose in 2020.

Many victims, especially of sexual and domestic violence, have come to believe that the system won’t protect them; that our laws were created by men, for men. Whenever there’s a resurgence of #IBelieveHer tweets on social media, with victims sharing their experiences of abuse, there are always a few voices shouting that the victims should have gone to the Gardaí, made a report, filed a complaint at the time, insinuating that the victims' failure to do so has endangered other potential victims.

While we all want victims to report - and we need to find ways to dismantle the obstacles that are put in the way of that - we still have to remember that every victim is different, and each one will have a differing capacity to process their trauma.

Not every victim feels emotionally able to take the legal route. Some may simply want to have their voices heard, to know they are seen and believed. I think there’s a reason why we haven’t had a proper #MeToo movement in this country; our defamation laws are so draconian that victims are afraid of speaking out lest they be sued.

I know of women who have been abused, assaulted, harassed, or belittled by people in positions of power and who, after naming their abusers publicly, received threatening legal letters demanding they apologise and recant their statements.

Women sitting in their lawyer’s office, crying, as they are gently told how much money it would cost to fight this in the High Court with no guarantee that they would be successful at the end of it all. It all turns on money; money that many of these women don’t have but their abusers invariably do.

Some of these women have had to choose between losing everything they own, and the right to tell their own story about what happened to them, to their bodies, their lives. Their truth is taken from them, and the abusers thrive in the ensuing silence. It burns because Irish women have a history of being told to stay quiet; we were supposed to be good girls and smile as they cut out our tongues. The Church silenced us for generations and now it seems as if our defamation laws are doing the same. Plus ça change, plus c'est la même.

Louise Says:

Read: Blood Moon by Lucy Cuthew. Tackling period stigma and slut-shaming, this is one of the best Young Adult debuts I’ve read in years. It’s a very special book.

Listen: Code Switch. This podcast interrogates race and identity in a way that is highly engaging and compelling.