After a great deal of awareness-raising and educational work on the subject of rape culture, the report of a trial perpetuating rape myths represented two steps forwards and 1,000 steps back, says.
WHEN I read last week’s Irish Examiner
I understand the accused man was entitled to a defence. Subsequently, the 27-year-old was found not guilty by the jury of eight men and four women at the Central Criminal Court.
I also acknowledge that the barrister in question is not an expert in sexual violence. However, her instruction to the jury to consider the type of underwear (in this case, a lacy g-string) worn by the complainant was irresponsible, not to mention reprehensible.
When tasked with representing an accused rapist, it is incumbent on barristers to become knowledgeable about the dynamics of rape and the pervasive nature of victim-blaming in our society. In fact, even a cursory interest in this topic would furnish them with an insight into rape myths, such as the one put forward as evidence by Ms O’Connell.
Noeline Blackwell of the Dublin Rape Crisis Centre stated in an Irish Examiner article published on November 7 that she was unsurprised by the barrister’s strategy. As a researcher and activist who focuses on gender-based violence, trauma and recovery, I find myself sharing Ms Blackwell’s sentiments. I also feel the need to discuss this case and its damaging effects for all survivors and our wider society.
Determining whether consent was given or not is at the heart of all rape trials, and this can be a difficult thing for a jury to ascertain, depending on the evidence available. Unlike in Sweden, where the defendant must provide evidence that they received consent, the burden of proof lies with the complainant. Sadly, in Ireland, research documents low rates of reporting of sexual violence, in addition to high rates of attrition.
The inherent difficulties involved in proving rape are compounded by the use of deeply entrenched rape myths, and it is clear that victim-blaming has not dissipated. Given this toxic environment, is it any wonder most survivors do not report sexual violence?
Rape myths regarding female and male victims have a long history. Women who report sexual violence tend to be ascribed blame based on their character type or for being ‘careless’.
For instance, it is commonly believed that rape is the response of a man’s uncontrollable passion, which a woman ‘invites’ with her ‘provocative’ clothing or behaviour.
By taking responsibility away from men who perpetrate sexual violence, women are thus viewed as the guardians of morality. Culminating in feelings of shame, survivors often internalise such victim-blaming attitudes.
Patriarchal norms of femininity and masculinity underpin such rape myths, and gender inequality is at the root of sexual violence. Much educational and awareness-raising work has been done to challenge rape culture, particularly by rape crisis centres.
This has been complemented by the wider anti-rape movement globally. With the Me Too movement, we have witnessed the outpouring of stories that, for far too long, were silenced.
Many of us stood in solidarity with the woman at the centre of the Belfast rape trial. These moments represent a seminal shift in our gender-based violence landscape. Change feels possible.
And then another report of a rape trial involving rape myths emerges and it feels like two steps forward, 1,000 steps back.
It has been said that although rape law in Ireland is straightforward on the books, it is left open to exploitation by the legal system. This is true of the trial in Cork last week.
Despite their obvious falsity, rape myths endure because of statements such as the one made by Ms O’Connell. This begs the question: Do barristers believe rape myths, or do they knowingly employ them to secure their clients’ freedom? Either way, the life and psychological well-being of a 17-year-old girl was treated with callous disregard. Despite the numerous writings on this subject and the progress achieved in some areas, it remains important to reiterate the facts and to dispel such rape myths.
A woman’s clothing does not determine her desire to engage in sexual activity. Women should be able to choose clothing, be it under or outer-wear, that feels good, without ever giving a second thought to men or sex. This includes not considering how they will be perceived by men.
It is not a woman’s responsibility to base her choices on men’s perceptions or behaviour. Men are responsible for their own behaviour and a woman is never ‘asking for it’.
Consent is ongoing. It is an enthusiastic yes. It is freely given and received. A person who is unconscious cannot give consent. Consent can never be assumed. Consent involves clear communication. Consent does not involve pressure. Clothing — of any type — is not consent.
With regard to establishing consent, Ms O’Connell asked: “Does the evidence out-rule the possibility that she was attracted to the defendant and was open to meeting someone and being with someone? You have to look at the way she was dressed. She was wearing a thong with a lace front.”
Let’s look at this ‘evidence’. This was a rape trial. As such, the jury was tasked with deciding if the complainant gave consent to engage in sexual intercourse.
Firstly, whether or not the woman involved was attracted to the accused is immaterial. Attraction does not equal the desire to engage in sexual intercourse or even kissing.
Second, a woman’s openness to ‘meet and be with’ someone is not proof that consensual sex took place. Finally, at the risk of repetition, a woman’s clothing does not constitute evidence of desire, or openness to engaging in sexual activity or consensual sex.
I am not a barrister, but it seems evident to me that, instead of providing evidence, Ms O’Connell simply stated what the complainant was wearing. That this statement was presented as evidence was only possible because of rape myths.
Consent, the very thing that was in question, was not established. The woman’s motivations were substituted for her actions and these motivations were assumed, not proven. And this is what constitutes the law.
Barristers have a responsibility to deal with evidence alone, instead of resorting to rape myths. Judges have a responsibility to ensure only evidence is presented at rape trials.
Patriarchal myths have no place in the courtroom. Survivors of sexual violence deserve to at least live in a country where they can safely report rape and expect a fair trial.
Rapists and would-be rapists need to know that there will be consequences for their crimes. This will never be a reality if we continue to propagate rape myths in our courtrooms and in our society.