Tuesday February 18, 2020

Due process abandoned on the altar of social media

The reaction online and in the streets to the Belfast rape trial verdict is understandable, but the presumption of innocence must remain the cornerstone of the criminal justice system

1st April, 2018
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Many showed their support for the complainant in the rugby rape trial by staging protests in Dublin (pictured here), Cork, Belfast, Limerick and Galway Picture: Gareth Chaney/Collins

Within minutes of the Belfast rape trial verdict, the court of public opinion gave its reaction on social media. The nuances and legal facts of a lengthy nine-week trial at Laganside Crown Court were swept aside as the Twitter judge and jury rushed to pass judgment. The tone of the online commentary was clear.

Many on social media made it clear that they felt the four men acquitted of all charges were instead actually guilty. The concept of due process was abandoned by those who had never set foot in Crown Court 12, nor listened to the evidence presented by the prosecution and defence or the directions by the judge. The deliberations of the jury, who had diligently sat through each day, hour and minute of the trial, were dismissed on the basis of gender.

A jury dominated by eight men, with just three women jurors, was always going to side with the accused, was the overwhelming conclusion on Twitter. These were the definitive and absolute views of a BBC radio DJ and a showbiz journalist, among other apparent experts.

This conveniently ignores the academic study led by Dr Conor Hanly of NUI Galway of 108 Irish rape trials, which found that women are more likely to acquit men accused of rape because they tend to judge female rape complainants more harshly.

Stuart Olding: was acquitted

I had first-hand experience of this phenomenon when I sat through a rape trial where a female friend was the victim. After the acquittal, the gardaí spoke to the jurors and it was the female members who expressed the least sympathy with the complainant.

It was evident from the online reaction that the basic legal principle of our judicial system, the presumption of innocence, was upturned and replaced by the notion of guilty until proven innocent. There are two reasons why the foundations of the legal system were rejected online and by the thousands who took to the streets all over Ireland in the #IBelieveHer rallies last Thursday. Both are well-meaning and conscientious, but they conflate emotion and generality with legal facts and the standard of evidence in the context of the Belfast rape trial.

Paddy Jackson, Stuart Olding, Blane McIlroy and Rory Harrison were guilty of appalling sexism, crass chauvinism and contemptible crude behaviour as shown in their abhorrent WhatsApp group chats. That does not make them guilty of rape. “It wasn’t a court of morals, it was a court of law,” said Paul Dougan, Stuart Olding’s solicitor, to Sean O’Rourke on his RTÉ radio show last Thursday.

Secondly, the reaction to the verdict is coming from a place where the silenced have finally been given voice through the #MeToo movement. The photographs of many of those attending the rallies all over Ireland displayed raw pain on the faces of women who may have experienced their claims being dismissed out of hand rather than investigated.

For instance, the detection rates for sexual offences declined by a fifth in 2017 when compared to the previous year.

The Policing Authority has raised concerns that the Garda were over-reporting the detection of crimes and an inquiry is currently ongoing.

I have written on these pages before about my lucky escape from a serious sexual assault. Although reported to the Garda, it was not investigated and I had never told anybody about it because of the predictable narrative that I was to blame because I was out too late, alone and should have known better.

Blane McIlroy: found not guilty on a charge of exposure

The #MeToo campaign powerfully confronts the excuses and practices that have harboured men who have acted with impunity for generations.

In Shakespeare’s play Measure For Measure, written in 1603, a young woman called Isabella is urged to give her virginity to a powerful government official in exchange for his pardoning her brother who is on death row. When Isabella threatens to tell, the response of the intending rapist still rings true over 400 years later:

“Who will believe thee, Isabel?/My unsoil’d name, the austereness of my life,/My vouch against you, and my place i’ the state,/Will so your accusation overweigh.”

But, the Belfast trial was not a court of morals or a catch-all example of all the awful wrongs done to women. It was a court of law where the presumption of innocence is still the cornerstone of the criminal justice system.

It is not enough to say: “I believe you.” It is not enough for an accusation of rape to be presumed to be irrefutable proof. The ideal that rape victims should be believed does not translate into the presumption of guilty until proven innocent. It is not reason enough to disregard due process.

The prosecution failed to reach the burden of proof threshold on the basis of evidence presented before the court. The jury had reasonable doubts about the guilt of the defendants. These are the legal facts.

The high standard required in criminal trials of “beyond a reasonable doubt” is intentionally designed to favour defendants because of the presumption that it is better to have ten guilty people go free than one innocent person be wrongly incarcerated. That may be hard to stomach, but it must be weighed against the consequences of unjustifiably depriving an individual of their liberty.

What should happen? The Dublin Rape Crisis Centre has campaigned for legal assistance which should be provided to complainants in rape trials where the main issue is credibility. Noeline Blackwell outlined how the woman at the centre of the Belfast trial had no lawyer to help her prepare for the case. The prosecution is not her legal team. The complainant faced four defendants with four legal teams but she had no legal representation to object to questions around her credibility.

“Demands for solidity can quickly turn into demands for groupthink, making it difficult to express nuance.” These sage words from the American feminist Roxane Gay ring true in the aftermath of the rugby rape trial.

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