Rape is one of the most serious offences in the criminal code and one of the worst imaginable violations of human dignity. In spite of gross under-reporting and the shame and social pressures that continue to occlude our view, we also know that rape, like all sexual violence, is alarmingly prevalent. By one estimate, only 10 per cent of rape victims in the Republic report the crime, and just 8 per cent of those cases result in convictions.
A criminal justice system that deters victims from reporting crime is failing at its most fundamental. And make no mistake: the system itself is at the heart of the problem. A succession of trials has illuminated the cruel conditions victims often endure in a system that deals with a case of sexual violence much as it does a car theft.
Vulnerable victims are forced into the hostile environment of an adversarial courtroom, where they have no formal status, where their sexual histories and their choice of clothing are treated as fair game and where even the guarantee of anonymity is under strain. And that’s assuming the trial begins at all. It takes an average of four years for cases to get to court, during which time many complaints, not surprisingly, are withdrawn.
Amid rising public disquiet, the authorities North and South are under pressure to act. In a preliminary report on the regime in Northern Ireland, retired judge Sir John Gillen makes some useful recommendations, including legal representation for complainants, pre-recorded cross-examinations and restrictions on social media use. Moves are already in train in the Republic to control social media use in the courtroom, with Chief Justice Frank Clarke having announced a new practice direction just last weekend.
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The rest of Gillen’s themes may be covered by the review by legal academic Thomas O’Malley into sexual offences in the Republic. The Gillen report suggests the North should follow the Republic in banning the public from attending rape trials, but he advises against granting defendants anonymity after they are charged (south of the Border, defendants remain unnamed until conviction and, then, only when publication of their names will not identify their victim though the latter can choose to waive anonymity).
Any trial must vindicate the rights of complainant and accused. The defendant must have a fair trial. At the same time, as Gillen points out, a state’s obligations to those who suffer a violent sexual crime are much wider than simply working for the conviction of a perpetrator. Courts have a normative power that goes hand-in-hand with their legal authority: they shape views, they embody social values, they tell us what we stand for and what we don’t.
A system that cannot treat rape victims with dignity and respect is failing those victims. But it is also failing in its basic duty to society at large.