It is unnecessary to spend much time rehashing the disturbing details of the Belfast rape trial, which has dominated news headlines in Ireland in the past two months. If you have been following the case closely you will be all too familiar with the facts. If you haven’t you can find a detailed overview of the case here, or a more succinct version here. In brief, the four accused stood on trial for the following offences against a then 19-year-old Belfast student; Paddy Jackson for vaginal rape, Stuart Olding for oral rape, Blane McIlroy for indecent exposure (he claims she performed consensual oral sex on him although she claims they did not engage in sexual intercourse of any kind), and Rory Harrison was charged with perverting the course of justice by withholding evidence from the police. Following a 42 day trial, the four accused were acquitted of all charges and left the court room as free men.
The Irish public viewed on the side lines as court reporters revealed one sordid detail after the other. For some, the revelations made throughout the trial were a shocking insight into the attitudes and behaviour towards women in society. For others, it simply made overt what had been familiar and known to them for some time. Elements flagged by the general public include the exchange of sexually explicit and derogatory messages and photos in an all-male WhatsApp group, the sexually aggressive posturing within alpha male rugby culture, and the general pervasiveness of toxic masculinity. Above all, it elevated a much needed conversation about consent to the top of public agenda.
An emotional and exhausting trial for all involved culminated with a not guilty verdict for all charges brought against the four accused. No matter how the jury decided, the public, who are not held to strict standards of proof, were always going to exercise autonomous judgment derived from a mishmash of news sources. The response was predictably divided. Some pockets of society argued that justice has been served, while supporters in favour of the victim prompted an #Ibelieveher campaign and took to the streets to show their compassion.
‘Beyond all reasonable doubt’
Rape cases are notoriously difficult to prosecute due to the high burden of proof, ‘beyond all reasonable doubt’. This standard must be met in respect of both prongs of a rape charge: the jury must be satisfied firstly, that penetrative sexual intercourse took place, and secondly, that the intercourse was not consensual and the defendant was aware of such. Unlike a murder trial there is no body and usually little conclusive physical evidence for the jury to work with. More often than not, the successful prosecution of rape charge hangs on the jury’s interpretation of the intentions of the accused, which can result in a verdict grounded less in evidence than personal experience.
How does one go about proving something as intangible as intentionality beyond all reasonable doubt? The answer is with great difficulty. Which is why most reports do not result in a formal charge, let alone prosecution.
It is with good reason that an accused person is innocent until proven guilty. It is with good reason that the burden of proof in criminal trials is ‘beyond all reasonable doubt’. But in the case of rape, such barriers to prosecution are causing the law to become stuck. The most recent Sexual Abuse and Violence in Ireland report conducted in 2002 found that 42% of women experienced sexual abuse in some form. The report also finds that only 10% of sexual offences were reported. The latest figures for conviction in rape cases from 2016 showed that the conviction rate for rape in the Republic of Ireland was at just 2%.
Such a low conviction rate could be interpreted to suggest that a lot of women reporting rape are simply lying. Yet according to research carried out by Trinity College Dublin and London Metropolitan University, it is estimated that 9% of rape allegations made in Ireland are false.
The disparity between a 2% conviction rate when 91% of cases are deemed to be legitimate is staggering. In its efforts to protect the accused, the vast majority of guilty men remain unpunished (and therefore undeterred) while the vindication of woman’s right to bodily autonomy is left shambles. It is no wonder only a limited percentage of Irish women choose report in the first place.
At what point have we tipped the balance too far in favour of the accused when the statistics would implore us to act otherwise?
Toxic masculinity. A ‘buzzword’ that make some men bristle, and the most apt description of the WhatsApp and text message conversations that were revealed during the trial. The defence team may have successfully argued that the accused were ‘braggarts, not rapists’, but there was little hiding the vile and objectifying view these young men have towards women with whom they engaged in sexual relations.
From where does an attitude of such demeaning inequality spring? I have spoken before about the over-sexualisation of the opposite sex in Ireland from a young age, which begins in the segregated school system and influences the way men and women regard one another at all levels of society.
An object cannot feel pleasure. An object cannot give consent.
The so-called locker room talk the defendants engaged in is rampant in our society and it would be naïve to think the opinions that inform such commentary are restricted to words alone. Sending an explicitly demeaning text about women does not make someone a rapist, but their attitudes towards women as mere sexual objects are aligned. Both herald from a broader culture of unbridled male dominance and privilege, whose consequences are wide-ranging.
The minimalist definition for rape under Irish law is sexual intercourse without consent. That does not mean tying her to a bed, holding a knife to her throat or forcing yourself on her in the back of an alley. Violent rape is its most extreme classification, and while it is the predominant narrative that grips our attention, it is not the category into which most rape cases fall.
For some rapists, the unwillingness of their victim is part of the thrill. For others, they engage in the act purely for their own sexual gratification. In the latter category the woman serves as a pleasure vessel, whose consent is irrelevant to the entitled actions of the rapist. Such men fail to identify their own behaviour as unconsensual.
When you reduce a woman to a sexual object her consent becomes beside the point. An object cannot feel pleasure. An object cannot give consent. A sexual object is for your pleasure only.
The law does not concern itself with your attitude towards rape it concerns itself only with your attitude towards consent. Unfortunately, wider society and the sexual education of Irish children fail to reflect this.
‘Sex’ should be followed by ‘consent’ as soon as it enters a child’s vernacular, and for this reason it is imperative that consent classes go hand in hand with sexual education classes beginning with primary school. Thankfully, Minister for Education Richard Bruton seems to agree. Rather than the responsibility being foisted on universities, no child should leave the Irish education system without knowing what sexual consent is, how it is given and received, and vitally, how it is denied.
Despite the complainant of the case being in a state of shock when reporting the rape to a medical examiner, her inconsistencies were exploited by the prosecution when the case reached the courts. This tells us that an inexact knowledge of what constitutes a sexual offence and how it should be reported can be detrimental to the case of the complainant.
If women and men in Ireland are to fully appreciate the need for consent, they should be well versed in the legal terminology for sexual offence that are committed in its absent. They should be able to identify when a sexual offence has been committed and the necessary steps to follow to report and preserve evidence in the immediate aftermath. Educating young school children in how they should report a rape feels rather Margaret Atwoodesque but it is the reality in which we live.
An emphasis on the precision of oral evidence is also critical, and each person handling a victim of a sexual offence, from medical professionals to members of an Gardai Siochana, should be specially trained in how to handle such cases and the importance of the accuracy of their account should be impressed upon the victim from the initial stage.
A commonality of the Belfast rape case and the #Metoo movement is the role of the public as the final adjudicator. As with Kevin Spacey, Michael Colgan and countless others embroiled in naming-and-shaming momentum that began with Harvey Weinstein, the disclosure of the defendant’s name in rape cases in Northern Ireland (but not in the Republic) will have far-reaching consequences for all four accused in spite of the final outcome of the trial. The greater public know that a verdict of not guilty is not the same as innocent when such a high burden of proof must be met, and for most people their pre-conceptions based on news reporting will remain intact. It remains to be seen if and how the rugby careers of Paddy Jackson and Stuart Olding will progress.
Margaret Atwood recently spoke out against the dangers of trying an accused in the court of public opinion when the proper judicial channels are deemed ineffective. Her warnings came around the same time as the publishing of the ‘Sh*tty Men in Media’ list, a spreadsheet compiled of the names of 70 men within the media industry who had been accused of sexual misdemeanours, much of it violent. The women who updated the list did so anonymously and none of the claims were investigated when the list went viral.
The journalist Moira Donegan who published the list did not intend for it to go public and her intentions were only to protect her fellow colleagues. Her plan was deeply flawed and left potentially innocent men without opportunity to defend themselves. Alternatively, traditional channels of justice have proved hopelessly inadequate and forcing to create their own avenues for protection.
The fallout of the Weinstein reporting has the potential to harm innocent men while circumventing the course of justice, but unless women feel protected by the higher powers they cannot be blamed for taking up this role themselves.
Amongst all this discussion of past sexual misdemeanours committed by men, it cannot be forgotten that the effective reporting incidences of sexual misconduct and violence is not just about punishment, it is about protecting other women in the future. It was this impulse above any other that prompted the 19-year-old victim in the Belfast rape case to finally go to the police.
The same systems which encourage women to report offences of sexual assault simultaneously make its prosecution prohibitively problematic. If such an incident takes place within the framework of an official institution or organisation, this does at least potentially provide non-legal avenues for recourse, but if such structures are not in place, an impossible to win all-or-nothing court case is the only available option. It is little wonder that the majority of women choose to remain silent. While all perpetrators of sexual violence and misconduct should feel the full force of the law, the legal system in its current form has proved impotent and it is clear that it is not designed to handle the realities of such crimes: their regularity, their systemic nature, and frequently, their lack of physical evidence.
If women are to be protected it is obligatory that there be established a whole new body to handle reports of sexual abuse when the available evidence is unlikely to meet the burden of proof in a criminal case. A civil suit is always an option but this is costly, placing a huge financial burden on the victim, which could be devastating if she loses. Furthermore, on a whole current procedures are still vastly ill-suited to the everyday occurrence of sexual misconduct in its many forms and contexts. It is likely in such a system that the punishment would no longer fit the crime but for most women the end goal of reporting sexual violence is to ensure it doesn’t happen again, to themselves or other women.
Undoubtedly the complainant in the Belfast rape case was forewarned about the realistic chances of the state winning the case, but she pressed ahead regardless. Her bravery has stimulated an overdue conversation about the misogyny which is rife in Irish society and the devastating consequences it can engender. Let us not waste this precious opportunity.
Featured image¨Rape of the Sabines¨ By Girolamo del Pacchia – J. Paul Getty Museum, Public Domain, https://commons.wikimedia.org/w/index.php?curid=48327746