The price of speaking out – the unjust treatment of SA victims in Irish courts is systemic
In 2018, almost 400 women staged a march to Cork Courthouse, where underwear was symbolically laid on the court steps in protest over comments made during a rape trial that the teenage complainant’s choice of underwear – a lace thong – implied consent.
“Does the evidence out-rule the possibility that she was attracted to the defendant and was open to meeting someone and being with someone?”, the accused’s senior counsel, Elizabeth O’Connell, asked during closing arguments.
“You have to look at the way she was dressed. She was wearing a thong with a lace front.”
This scandal was among the most infamous incidents to occur in recent memory regarding the treatment of sexual abuse victims in Irish courts, and caused outcry across the country. Under the hashtag #ThisIsNotConsent, Irish women posted photographs of their underwear in all shapes, colours, and materials to protest the use of such techniques in court. Supporters gathered at the Spire in Dublin, where a ‘washing line’ was strung between lampposts displaying women’s underwear, with others also gathering in protest in Limerick, Galway, and Waterford. In a now famous moment, Solidarity TD Ruth Coppinger brandished lacy underwear in the Dáil to raise awareness of the controversy.
“It might seem embarrassing to show a pair of thongs here in this incongruous setting”, she said at the time. “How do you think a rape victim or a woman feels at the incongruous setting of her underwear being shown in a court?”
There was a twofold argument being made in protest of the incident. Principally, the egregiously unjust way in which the underwear had been treated as implied consent; it should go without saying that a person’s clothing can never overwrite their consent, and hence justify their abuse. But the outcry also sought to highlight a more general problem within the Irish court system; the relentless and systemic shaming of victims of sexual assault, and disrespecting of the privacies they should be entitled to – an issue which has been criticised for effectively retraumatising the victims the courts are (supposedly) there to provide justice to.
Many think of this controversy in 2018 as being a watershed moment or turning point, however, while it indeed caused a significant spike in conversation and awareness, the truth of the matter is that subsequent victims have not been saved from similar experiences.
Just last week, a young woman who was raped by her 62-year-old landlord described the showing of her underwear in court during the trial as being an “out of body experience.”
But beyond underwear, this shaming persists. In recent days, jurors in a rape trial taking place in the Central Criminal Court were shown video footage of a sexual encounter between the complainant and a man not on trial, in an attempt to evidence the defence’s claims that the complainant’s word was unreliable, and to imply promiscuity.
The complainant, who had taken issue with the footage being played and chosen not to be present in court for it, took to the witness stand to continue cross-examination afterwards.
Under questioning from the defence’s Padraig Dwyer, the complainant confirmed that she was saying that she had been raped by both the accused man and the second man seen in the video, which was taken on the same night.
“The reason I’m asking you about the second man is to show that your word is not reliable in relation to what is rape,” defence counsel said.
“There’s a big difference between the incident with the first man and the second man,” the woman replied. “One rape can be very different from another rape.”
The full picture when it comes to the systemic nature of victim blaming and shaming within Irish courts extends beyond these more publicised cases, but the patterns seen across them amount to a certain – if harrowing – indication of the overall situation.
Defence strategies frequently rely on discrediting the survivor’s character, focusing on their sexual history, appearance, or personal choices rather than the alleged actions of the accused. Survivors are often cross-examined in ways that leave them feeling violated once more, a process that can deter others from reporting sexual crimes altogether.
In addition to cultural attitudes, outdated legal structures continue to enable these practices at a systemic level. Calls for legislative reform have been made repeatedly, yet little has changed in practice, with there being perhaps no better example than the issue of victims’ counselling notes being used as evidence.
The admissibility of victims’ counselling records has been widely condemned for some time, further emboldened by the fact that those of the alleged perpetrator are not admissible. It is a particularly perverse invasion of privacy; to take the details shared in confidence to a professional about a traumatic experience, and then make those details public in a courtroom and open them up to possible misrepresentation and manipulation by defence counsel.
Survivors who go through with the trial process are effectively being forced to evaluate whether the treatment of their mental health and trauma is worth the ‘risk’ of having this counselling experience used against them. The start of the year saw Susan Lynch, a woman who was raped by her former partner, say in her victim impact statement that she did not receive any counselling because she thought the notes from the sessions would be used against her; she is one of a countless many.
And yet, it was reported last month that a previous government commitment to ban outright the use of rape survivors’ counselling records as evidence is likely to be rolled back.
With just a fraction of rape/assault cases being taken to court, and an even smaller fraction resulting in prosecutions, a substantial ‘justice gap’ already exists regarding the handling of sexual crime in Ireland. And the more we hear about how victims are allowed to be treated in court at a systemic level, the more it becomes evident that the barriers to justice extend far beyond social and cultural constraints, to the legal framework itself.
