Sexual Violence on Trial

Local and Comparative Perspectives

Rachel Killean, Eithne Dowds, Anne-Marie McAlinden, Rachel Killean, Eithne Dowds, Anne-Marie McAlinden

• Editore: Routledge
• Anno: 2021
• ISBN:
  9781000361278
• Edizione: 1
• Argomento: Ciencias sociales
• Categoria: Criminología

Sexual Violence on Trial provides a contemporary critical examination of the investigation, prosecution and cultural contexts of sexual violence. It draws on Northern Ireland as a case study, while also drawing on experiences from other jurisdictions across the United Kingdom and island of Ireland. Public and academic debates concerning the high-profile 'Belfast/Rugby Rape Trial' and the subsequent Gillen review of the arrangements to deliver justice in serious sexual offence cases have been mirrored at a global level with movements such as #MeToo and #TimesUp. This book brings together the perspectives of practitioners and academics to discuss contemporary challenges surrounding the societal and legal framing of sexual violence. It examines key aspects of the criminal justice process including the challenges of supporting victims; of responding to a range of forms of sexual violence such as rape, peer abuse, intimate partner violence and forced-to-penetrate cases; as well as alternative perspectives and future reforms. It also considers broader debates including balancing the interests of victims and defendants; the impact of cultural myths and stereotypes; the challenges of the digital age; models of consent; legal representation for victims and anonymity and publicity surrounding trials.Written by leading authorities in the field, Sexual Violence on Trial will be of great interest to students and scholars of Criminology, Law and Sociology.

Part I

The criminal justice process

1 Sexual offence trials in Northern Ireland

The cultural and legal dimensions

Rachel Killean, Eithne Dowds and Anne-Marie McAlinden

Rugby rape trial: Is this NI’s #MeToo moment?¹

Rugby rape trial: ‘I Believe Her’ rallies planned across Ireland²

Acquittal in Irish Rugby Rape Case Deepens Debate on Sexual Consent³

How the ‘rugby rape trial’ divided Ireland⁴

Retired appeal court judge John Gillen to lead review of serious sex crime cases⁵

Who was really on trial in the Ireland and Ulster rugby rape case?⁶

Rugby rape trial verdicts: PSNI to investigate naming of complainant on social media⁷

North’s justice system failing sexual violence victims, report finds⁸

Rape allegations surge but conviction rates for the offence are falling⁹

‘Police let me down after I reported being raped’¹⁰

Introduction

On the 28 March 2018, a Northern Ireland criminal trial that had dominated news outlets, social media and public discourse nationally and internationally came to an abrupt end. After less than four hours’ deliberation, the jury delivered a verdict of not guilty on all charges against two Ireland and Ulster Rugby players, Paddy Jackson and Stuart Olding, and their friends Blane McIllroy and Rory Harrison. The trial, often referred to as the ‘Rugby Rape Trial’, concerned the alleged rape of a 19-year-old woman in 2016, and included charges of rape, sexual assault, exposure, concealing evidence, and attempt to pervert the course of justice. Over the course of nine weeks of hearings, the Belfast courtroom’s public gallery of 100 seats was often full, with an area sectioned off for news reporters. As the newspaper headlines presented at the outset of the chapter convey, the trial was the subject of local, national and international media attention throughout and for many weeks after it ended.¹¹

Despite warnings from the presiding judge Patricia Smyth regarding social media commentary, the trial’s details were dissected and hotly debated both on- and off-line throughout. The conduct of the trial, including eight days of cross-examination of the complainant and the open, public display of her bloodied underwear in the courtroom, sparked outrage from her supporters. Others were indignant at the treatment the defendants received from the media coverage; their photos appeared in papers almost every day, their families were filmed entering the courtroom, and many felt they were being ‘tried by the media’. The not guilty verdict resulted in public protests and the emergence of an #IBelieveHer social media campaign. The defendants’ careers were seriously affected despite their acquittal, although this was as a consequence of Club discipline breaches rather than the negative publicity. Some two years later, at the time of writing, the ripple effects of this trial continue to be felt in Northern Ireland. The primary impetus of this book stemmed from academic and professional focus on the conduct and aftermath of this particular case in Northern Ireland. However, the issues, challenges and reform agendas it generated, in terms of how the state should investigate and prosecute sexual violence, have broader relevance for other jurisdictions.

There are several interlinked explanations for the public reaction to the Rugby Rape Trial. As already mentioned, the defendants included two sporting celebrities. As Northern Ireland currently has no framework for defendant anonymity, their names were known from the point of charge, generating public interest from the outset. The sense of scandal was felt all the more for having taken place in a traditionally conservative Christian society. The details of the alleged offences were also shocking to many, as were subsequently published misogynist WhatsApp messages shared between the defendants in the immediate aftermath of the events. More broadly, the trial took place at the significant moment in which global social movements such as #MeToo and #TimesUp were reigniting long-standing debates around responses to sexual violence, both legal and otherwise (see e.g. Fileborn and Loney-Howes, 2019; see also Serisier this volume). As a consequence of its high profile, the trial brought into the public spotlight realities long known to sexual violence researchers, legal practitioners, victim support organisations and activists: that such trials, both in Northern Ireland and elsewhere, are always legally complex, potentially re-traumatising for complainants, challenging to achieving a fair trial, and often shaped by problematic social and cultural understandings of appropriate sexual behaviour. In particular, one of the central issues within public discourses surrounding the case was the fact that the woman was subjected to days of intrusive cross-examination by four defence counsel drawing on many of the dominant cultural ‘rape myths’, yet, as a complainant and mere witness for the prosecution, had no separate legal representation. Although each defendant has the right to challenge the case against them by virtue of their fair trial rights, the manifestation of this right in the present case highlights perhaps the primary tension within legal and academic discourses on responding to sexual violence within adversarial trials, the equality of arms principle and the need to ensure parity between victims and defendants.

Less than a month after the Rugby Rape Trial finished, the Northern Irish Criminal Justice Board¹² commissioned an ‘independent review of the arrangements to deliver justice in serious offence cases’.¹³ The review, led by Sir John Gillen¹⁴ and an advisory panel,¹⁵ was established to consider the law and procedure relating to serious sexual offence cases in Northern Ireland, ‘taking account of experience from recent cases in Northern Ireland’.¹⁶ The scope of the review was broad, including, but not being limited to: support for complainants, victims and witnesses, from the time of the initial complaint through to post-trial support; restrictions on public attendance at court hearings; pre-recorded cross-examinations; the impact of social media on the conduct of court hearings; delay in the court system; disclosure of evidence; the definition of consent; defendant anonymity; the voice of marginalised communities; support for children and vulnerable adults; arguments for and against jury trials; complementary mechanisms; and restrictions on reporting (Gillen, 2019: 7–8).

One year later, following extensive consultations with complainants, acquitted defendants, judges, the legal profession, civil servants, prosecutors, victims’ groups, human rights groups, police, academics, the press and politicians in Northern Ireland, the rest of the United Kingdom, Ireland and beyond, Sir Gillen published his final report (Gillen, 2019). Sixteen key recommendations emerged, encompassing almost all aspects of the legal process in relation to sexual offence trials. Many of these recommendations are discussed in this volume, but to briefly summarise, they included: limiting public access to sexual offence trials; introducing pre-recorded cross-examination; publicly funded independent legal representation for complainants (up to but not including the trial); measures to combat rape myths; measures to manage the dangers created by social media; a more robust approach to preventing improper cross-examination about previous sexual history; steps to prevent excessive delays; restructuring the disclosure process; a shift towards an affirmative consent model; further research into the impact of sexual violence on marginalised groups; shifts in advocacy style when dealing with children and vulnerable adults; training in relation to trauma, rape mythology, jury misconceptions and jury guidance for legal professionals; retaining jury trials, except in rare cases, and the publishing of the identity of the accused post-charge while anonymising their identity pre-charge; the consideration of alternative victim-led restorative justice practices; and related resource impact assessments (see Gillen, 2019: 29–31). Arguably, the extent of the proposed recommendations highlights the inadequacy of the current system in delivering justice to either complainants or defendants. A year on (at the time of writing), only limited progress had been made in implementing Gillen’s recommendations. This can be attributed in part to a recent prolonged period of political stalemate as devolution from the UK Parliament to the Northern Ireland Assembly was only restored in January 2020. While the absence of a functioning Northern Ireland Executive in the interim has inevitably impacted on the opportunities for new legislation, the majority of recommendations do not require specific legislation. However, a member of the group established to oversee the review’s implementation stated that while some progress had been made, many of the recommendations required budgetary commitments that had yet to be made.¹⁷ As a result, there is still some way to go before the criminal justice system in Northern Ireland can be said to have addressed the failings highlighted by the Review.

As academics living and working in Northern Ireland with a research interest in sexual violence and criminal justice, we were keen to contribute to and engage with the Gillen Review. In addition to submitting a detailed response to the Review,¹⁸ we organised a conference at Queen’s University Belfast in September 2018, bringing together criminal justice practitioners (including the police, prosecutors, defence and judiciary), victim support organisations and academics. This conference explored the contemporary systemic challenges in the investigation and prosecution of serious sexual offences in Northern Ireland and elsewhere and balancing the rights of the accused while providing support to victims and complainants. The summary report of the conference was also submitted to the Gillen Review.¹⁹ Furthermore, the conference highlighted the need to continue critical reflections on how sexual violence is framed and processed via the law. This edited collection is the result of that belief. It draws together conference participants and those with expertise in the field to continue the conversation and to reflect on the recommendations made by Gillen the following year. It aims to respond to the need for ‘more opportunities for researchers and practitioners to interact, thereby increasing the likelihood of meaningful dialogue and innovation’ (Wuestewald and Steinheider, 2009: 109).

In adopting Northern Ireland as its primary case study, the book contributes to the limited scholarship and literature on Northern Ireland’s criminal justice and criminology (see especially McAlinden and Dwyer, 2015). In so doing, it not only provides a timely reflection on the particular challenges highlighted by the Rugby Rape Trial and the Gillen Review, but also contributes to a ‘wider consciousness of what is both shared and diverse within and across all the UK jurisdictions … contribut[ing] to a richer, more complex and more challenging British criminology’ (Croall et al., 2012: 6). Indeed, while the book is predominantly located within the Northern Ireland context, it also highlights similar challenges in other jurisdictions, exploring the impact of comparative and alternative approaches in combatting sexual violence. While focusing primarily on the criminal justice response, and its limitations, the book also considers broader social and cultural norms which underpin sexual violence.

Thus, the main objectives of this collection are threefold. First, to add a Northern Ireland perspective to the literature on responses to sexual violence by including contributions of practitioners and scholars working principally in Northern Ireland and providing an up-to-date critical exploration of the challenges associated with investigating and prosecuting sexual crimes. Second, to situate those challenges within the broader discussion around responses to sexual violence by drawing from comparative international and domestic contexts and incorporating alternative perspectives. Third, to provide a text accessible to academics and practitioner...

Indice dei contenuti

• Cover
• Endorsements
• Half Title
• Series Page
• Title Page
• Copyright Page
• Table of Contents
• List of contributors
• Table of cases
• Table of statutes
• Foreword
• Acknowledgements
• List of abbreviations
• PART I: The criminal justice process
• PART II: Social and cultural influences
• PART III: Comparative perspective
• PART IV: Alternative perspectives and future reforms
• Index