Time to balance rights and fairness in court

This piece by Dublin Rape Crisis Centre CEO and Spokesperson Noeline Blackwell appeared in the Irish Examiner on 29 March 2018.

Dublin Rape Crisis Centre believes legal assistance should be provided to complainants in rape trials where the main issue is credibility, says CEO and spokesperson Noeline Blackwell.

It is not surprising the Belfast trial of four men, on varying charges of rape, sexual offences and withholding information, had been a major talking point over the past two months.

The sexual activity involved one woman and three men. The reported evidence was highly conflicted which meant that during the trial, we could — if we wanted to — speculate on who was telling the truth; who was the more credible.

We could be awestruck by the copious amount of drink taken by some of the ‘actors’. And we could take a dim view at how the men texted and boasted about it the morning after the night before.

And now the verdict is out. All of the men have been acquitted of all charges against them and they leave the court, as they entered it, innocent of any criminal wrongdoing.

However, it is no occasion for triumph or triumphalism.

The court process was shown to be a cruel one in many ways — in ways that we well understand and encounter often in the Dublin Rape Crisis Centre.

The young woman complainant was the chief witness for the prosecution.

It was the prosecution’s job to prove beyond reasonable doubt that the young woman did not consent to what took place and that the three men involved should reasonably have known that.

For the defendants, they had to convince the jury that there is an element of doubt in the woman’s story.

This case, then, was all about conflicting accounts of the same set of incidents.

The conflict was played out this way: The prosecution called the young woman as a witness.

To avoid any suggestion that they might have coached her, they would have kept their distance from her. The prosecution spent a court day taking her through her evidence.

Then the defence teams got to work. For a further six court days, four legal teams headed by senior, or Queen’s Counsel, members resolutely and determinedly cross-examined the woman to identify inconsistencies and gaps in her evidence which would make the jurors doubt her evidence.

It should be said that they also resolutely cross-examined the police witnesses about what they had done and what they hadn’t done.

A major difference, though, between the police and the woman as witnesses is that the police were trained in court practice and processes and give evidence regularly.

The woman, as far as we know, had no previous experience of court or cross-examination.

The other big difference is that the police were giving evidence of a case

She was giving evidence about most private aspects of her own life.

She has no lawyer to help her prepare for the case or the ordeal she was put through.

Of all the people in that courtroom, she was the one who had to prepare for this case alone and suffer through it on her own.

Having thought about how hard it would be to report, she went ahead and did so.

According to newspaper reports, she said that the more she thought about it, she believed “rape is a game of power and control”.

She said: “They rely on your silence. The only way you take the power back is when you actually do something about it. I may be preventing it happening to someone else. It could so easily have been my friends outside Ollie’s. It could have been my sister outside. It was the best decision I made.”

Those whom we support in court cases often have the same motivation.

And, yet, this case does not make it easy to encourage people to report rape.

Yes, the law is different south of the border, where our cases are heard without the public and where neither accused nor complainant can be identified at least until the case is over.

But our system is not that different.

If the issue is consent, there is a straight conflict of evidence between the accused and the complainant.

The complainant will be asserting that s/he did not consent and that the accused should have known that.

The accused will press every single aspect of the case to try to get a jury to doubt the complainant’s claim.

And while this case might have been worse than most, with the complainant facing four defendants with four legal teams, it is never easy.

Worse than that, it is not fair.

It is not fair to those victims of crime who do their duty as citizens when they turn up as witnesses for the state.

But the experience is so traumatic for many that all the good work that they may have done, trying to get over their deep hurt and trauma, may be undone by the court process.

In some European countries, victims co-prosecute with the State.

They have their own legal team and bring their own charges if necessary.

That is probably quite a leap for our common law system. However, we have a precedent in our own system which could improve such court cases very quickly.

Some years ago, the law was changed to allow legal representation to a complainant if the accused wanted to question her on her sexual experience with other people.

That did not in any way reduce the accused’s right to a fair trial.

But it did increase the complainant’s understanding of what was happening in court.

It recognised that the victim of crime has rights too.

That limited representation should now be extended to complainants right throughout trials where the main issue is credibility.

It would give some rights to the victim of crime. And it would allow recognition of the rights of the victim not to be re-traumatised.