Bearing witness
A new report published by Victim Support NI highlights that court culture is still causing unnecessary suffering to victims of sexual violence. Victim Support NI Policy Manager Louise Kennedy explains why that is bad for justice.
In 40 years supporting victims of crime, Victim Support NI has witnessed first-hand the impact of the criminal justice process on victims. That impact is most stark for rape victims, who endure an especially lengthy wait to reach trial, then face often gruelling cross-examination about the traumatic detail of their attack in open court. These issues have taken centre stage in our Bearing Witness report, which tracks 27 sexual offences trials in Northern Irish Crown Courts between October 2018 and October 2019.
Many of the issues are not new. The Gillen Review has already laid bare the deficiencies of our criminal justice system in trying rape and sexual offences cases. This report adds an additional perspective to that analysis: that of ordinary members of the public.
The Bearing Witness report documents the observations of 10 men and women with no criminal justice background as they watched sexual offences trials across Northern Ireland. The decision to use ordinary members of the public was two-fold: one, they were unbiased by familiarity with the system’s culture and practice, and could provide a fresh perspective on the system’s problems (and potential solutions). And two, as it is the public who sit on juries, it stood to reason that they should be best placed to critique the machinations of justice.
What observers found largely reflected the findings of the Gillen Review, but also highlighted new areas of concern. This piece will focus on four core findings, relating to the prevalence of rape myths, ill-treatment of complainants, deficiencies in court technology, and the role of juries.
Rape myths
Observers found that defence counsel relied frequently on rape myths, especially during complainant cross-examination. These myths were identified in all but one trial which reached complainant cross-examination stage, and were interwoven throughout defence narratives. The most commonly observed rape myths were that complainants would have fought, screamed or run away if they’d been raped, and that delay in reporting proved that no rape took place. However, myths of all kinds were identified. These included that if a person is flirtatious or wearing certain clothing they are responsible for what happens to them; that someone who is in a relationship with the accused couldn’t be raped by them; that someone from a ‘good’ background could not be a rapist, or that someone who is unemployed, a single mother, an addict, or had social services involvement as a child must be lying. As a complainant seeking justice for rape in a Northern Irish court, one might endure victim blaming, character assassination, accusations of ‘crying rape’, or having one’s natural bodily response to trauma used as evidence that the allegations were fabricated.
Even more significant was the fact that myths were rarely challenged by prosecutors or judges at the time they were uttered. In some cases, prosecutors made general attempts to counter myths at other stages of the trial, and judges used summing up to state that there is no typical rapist or victim. Observers felt, however, that this was too little too late, as by then the myths had gone unchallenged for so long that they were possibly accepted as fact by juries.
Dignity and respect
Perhaps some of the most disheartening observations related to how complainants were treated by defence barristers during cross-examination. In every case except one, defence counsel were reported to have fallen short of their obligation to treat complainants with dignity and respect. Observers reported aggression, harassment, mockery, victim-blaming, cruelty and unreasonable attacks on complainants’ character, and consistently expressed their opposition to what they felt was unfair treatment of complainants. The observers also painted a mixed picture when it came to interventions to curtail such ill-treatment, with recorded interventions comparatively low in number.
Technology
Technology plays a key role in rape cases. A victim’s vulnerability means that they are often granted ‘special measures’ to help them give evidence. This can include using their pre-recorded ABE interview as evidence-in-chief, or allowing them to give evidence from another room via video link. Yet, in spite of the importance of this evidence, observers reported that the majority of ABE videos played in court had poor sound, bad visuals, or both. Some had sound so incomprehensible that the jury had to be given transcripts, which they read instead of looking at the visual evidence from the complainant’s facial expressions. Only one ABE video observed throughout the entire project was described as of good quality. Observers also reported technical issues when complainants gave evidence via video link.
Juries
One entirely unexpected thread that emerged was about the role of juries. This was not something observers were asked about in detail. Nonetheless, they commented that jury members were sometimes inattentive or asleep, and that some didn’t seem to grasp their role and the legal principles they were tasked with applying. It was, of course, not possible to ask jurors what they felt or thought, as their deliberations are legally privileged. The observations therefore paint an unfinished picture of jury involvement. That does not mean, however, that they can simply be disregarded. Many aspects of jury inattention seemed to be linked to bad quality evidence, poor technology, long and unedited ABE footage, or long monotonous monologues from barristers and witnesses. But this was not exclusively the case, and one must ask if it makes for good justice if a juror doesn’t understand what is going on, or simply doesn’t want to be there.
So, what now?
These observations should give pause to any believer in a fair and noble justice system. Whilst the Gillen Review provided a comprehensive blueprint for change in May 2019, and we are starting to see the green shoots of improvement off the back of subsequent reforms, our staff and volunteers continue to report that many of the problems identified by observers still persist today.
The dominance of rape myths and ill-treatment of complainants, and the ineffectiveness of efforts to curtail such behaviours, suggests their normalisation within court culture and practice. The acceptance of such behaviour, and the cultural antipathy to challenging it, must change. Stricter guidance on usage of rape myths and a review of standards of conduct, with real consequences for failing to follow those rules, is surely the logical starting point. But there is also a wider cultural issue at play, these tactics are used because they have been proven to work. Educating jurors and the public about rape myths will be key. Ultimately, however, the courts must forge a new cultural paradigm whereby the perceived value of such defence narratives is negated.
In terms of technology, it is unfathomable that such problems are arising in 21st century courts, given the democratisation of audio-visual content creation, heralded by the ubiquitous smartphone. Yet every day poor video recordings are inhibiting juries from effectively assessing evidence. There is no excuse for this remaining unaddressed. Standardising police and court equipment, training anyone recording interviews, and putting in place quality assurance testing of audio-visual evidence are achievable solutions.
The juries question is perhaps more complex. Trial by jury forms the bedrock of our justice system. Technological improvements, and a re-thinking of the primarily auditory style of evidence delivery, may go some way to address the issue. What cannot easily be overcome are juror failings to understand judicial directions or legal standards, or distinguish rape myths from valid evidence. Taking more time to educate juries about their role, the unconscious biases they may hold, and what is expected of them may work. But should those efforts prove unsuccessful, what is our plan B?
We are now at a critical juncture in Northern Ireland, where we have an opportunity to make profound cultural change to our criminal justice system and how it impacts victims. This will require nothing short of radical action, including implementation of the Gillen and Bearing Witness recommendations. It will take time before we can say if the reforms have improved the system for the victims of tomorrow. In the meantime, this court observer panel has captured the experiences of the victims of today. We hope those who work within the system, and those responsible for reforming it, embrace this fresh perspective and use it to see not only the criminal justice system’s problems, but also solutions, with fresh eyes.
The Bearing Witness Report is available at: https://tinyurl.com/victimsupportni
If you have been a victim of crime and need emotional support, assistance at court, or help to make a Criminal Injuries Compensation application, contact us at:
Belfast Hub: belfast@victimsupportni.org.uk
028 9024 3133
Foyle Hub: foyle@victimsupportni.org.uk
028 7137 0086
Or you can get in touch via Live Chat on our website: www.victimsupportni.com
