Antiquated legal system discriminates against rape victims

BY JOANNE CORCORAN


Rapists in Ireland can be pretty confident that the chances of their being brought to justice are slim indeed. This opinion will scarcely be dented by Michael McDowell's announcement last week of plans to tackle the severe backlog of such cases by relegating rape trials to the circuit courts. It was only after years of lobbying by women's groups that the law was changed so that all rape trials are held in the Central Criminal Court in Dublin.

Recent statistics show that the number of sexual assaults and rapes reported to gardaí rose by 83% to almost 2,000 last year. Given that reporting of these types of crimes by victims remains consistently low - this figure is just the tip of the iceberg.

Our antiquated judicial system is still proving to be a very effective deterrent for victims of sexual assault and rape. There are problems at every stage.

Statistics show that four in ten women have been abused or sexually assaulted in their lifetime, but less than 10% of rape and sexual assault victims report to the gardaí.

More astounding are the actual conviction rates in such cases. Only 1% of rape cases referred to the DPP end up with a conviction. From the length of time it takes the DPP to decide to bring a case to trial to the length it takes for that trial to come to court, to the conduct of cases and the subsequent lack of severity of sentencing, the entire process denies justice to victims.

First, the person who has been raped or sexually assaulted must see a doctor as soon as possible. The medical examinations following this type of crime are handled better now than before, with new training provided for gardaí dealing withsexual assault cases, but for the victim they remain invasive and distressing.

Following this, the woman must relive her ordeal by relating the exact details of the incident to the gardaí.

If the victim intends to press charges, she must then await a court date. There is currently a backlog of up to two years for a rape case to be heard. If for any reason the case is delayed on the date set for it, the case is put back for another two years. This means that due to the lack of judges and courts available, most victims must wait four years before their case is heard.

According to Ingrid Wallace of the Rape Crisis Centre, "women are thinking three, four even five times before they will report an attack because they are reluctant to put their lives on hold for this length of time".

In an unprecedented move in May, Justice Paul Carney publicly denounced the lengthy postponement of rape trials. He said the "pain and suffering" of victims and relatives in the cases which could not be dealt with on the designated dates was "beyond comprehension".

In the previous month's session for the setting of trial dates, Justice Carney was forced to appoint dates up to Dec 2003 for 19 rape trials.

Victim support groups are slamming the length of time rape and sexual assault victims must wait to receive a hearing. Lillian McGovern of Victim Support Ireland says that "justice delayed is justice denied. It takes enormous courage for women to come forward and report this sort of crime, and then they are told that they must wait years before their attacker is brought to justice. More courts and judges need to be appointed to deal with this problem".

Another factor causing concern is the length of time rapists and sex offenders are allowed to be at large after an attack is reported. The nature of the crime means that attackers often reoffend. One rape victim, who has been awaiting a trial for three years, says "it's not the thought that he will come after me that bothers me. My family and friends are overprotective of me now. It's the thought that there are other women out there who don't know what he's done and what he's capable of. As far as I'm concerned they are all at risk while he is free to walk the streets".

When at last they get to court, many victims feel that they are the ones on trial. Rape and sexual assault are the only crimes where the victim has to prove that they did not in any way contribute to what happened. Many women have felt themselves harshly interrogated by the defence counsel and that implications are made about their character implying they are lying. The old stigma of "she was asking for it", although supposedly dead and buried, is still very much present in the Irish judiciary system. A victim's previous sexual history is still admissible in a Dublin courtroom, even though this has been disallowed in many other countries.

Lavinia Kerwick, the first rape victim to give up her anonymity, said at the time of her ordeal "I felt that day in court as if I'd been raped again". Earlier this year, handing down a suspended sentence to a rapist, the judge wished the attacker well and commented that "no actual injury was inflicted on the victim other than rape".

Women's groups argue strongly that the whole process of questioning in rape and sexual assault trials criminalises women and makes them victims for a second time. At present, the state prosecutor decides how the victim's case is presented in court. In order to try to prevent this, women's rights activists have campaigned strongly for separate representation for victims of sexual assault in court.

Two cases in the last couple of weeks reflect the current system's inadequacies. On Thursday 18 July, for the first time, a husband was sentenced for raping his wife. Although marital rape has been recognised as a crime since 1990 (the legislation's recent vintage is itself a shameful fact) this is the first time anyone has been successfully prosecuted under it. The husband had told his wife that the gardaí could not touch him because they were married. That it took ten years for someone to be convicted of this crime shows that the husband was almost correct in his assumption.

Last week, a man branded 'a sadistic stalker' was given just three years after pleading guilty to three counts of sending obscene postal packages, three counts of harassing women by persistently communicating with them and three counts of harassing women by continuously watching or besetting them on dates between October 1996 to February 2001. He told one woman in a letter that if she didn't obey him she was 'f...ing dead' and admitted that he got a kick out of terrorising women.

His victims hit out at the sentence, saying that three years of jail time is hardly sufficient for five years worth of terrorising three different women.

Sentences handed out in these cases do not reflect the seriousness of the crime. In this state, rape is simply not given the status it deserves, as one of the most violent crimes that can be committed. Critics have argued that a male dominated judiciary is not in a position to understand the impact a sexual offence has on a victim and that this lack of understanding is reflected in the imposition of light sentences.

The Supreme Court has stated that rape must be viewed as one of the most serious offences in our criminal law because:

"The act of forcible rape not only causes bodily harm but it is also inevitably followed by emotional, psychological damage to the victim which can often be of long term and sometimes life duration."

Within this framework, however, sentencing in individual cases is afforded wide judicial discretion. It is common to find minimum sentences imposed, such as that on the 41-year-old businessman who pleaded guilty to unlawful carnal knowledge of a 14-year-old girl and was given a four-year sentence.

Out of all the sentences appealed by the DPP, over three-quarters are for sexual crimes. This shows the level of dissatisfaction felt by victims with the justice they receive.

Many Irish women are concerned about the attitude Irish society takes towards violence against women. They are increasingly questioning the decisions made in court cases, particularly where the defendant pleads guilty and is given a suspended or short sentence.

The mention of alcohol as a mitigating circumstance in assaults is also a source of concern. Consumption of large amounts of alcohol would appear to be a positive attribute when a man is defending himself against a rape charge. For example, a man who indecently assaulted his twelve-year-old babysitter was in 1992 given a three-year suspended sentence in the Dublin Circuit Criminal Court. The accused pleaded guilty and the judge took this and the fact that he was a chronic alcoholic into account when imposing the sentence.

The overall approach to these serious crimes, from the tardiness of the DPP through a criminal law system skewed against the victim, to the lack of specialist services for women and girls who have been assaulted, is indicative of society's continuing ambivalence regarding women and our rights.

What is clear is that until the judicial system in particular is fundamentally reformed, rape will remain one of the most underreported of crimes and one that can almost be committed with impunity.