Page 48
Sex
When Justice Isn’t Justice: Questioning the appropriateness of linear justice in instances of rape and sexual violence By Kate Flood, SS Law and Business Editor’s Note: This Article discusses sexual violence, which some reads might find disturbing. Despite ever-increasing allegations of rape and sexual violence, the number of prosecutions and convictions are plummeting. This reality comes against a backdrop of decades of policy reform, constant calls from campaigners and academics, and commitments from governments to secure justice for victims and survivors of sexual violence. Varsity reports that in the UK there are three convictions for every 100 allegations, this is not indicative of justice; rather, in the words of Dame Vera Baird, Victim’s Commissioner for England, it is tantamount to the “decriminalisation of rape.” It is contended that the justice pursued under the current system is not only inappropriate, but that it misinterprets ‘justice’ as understood and desired by the victim. Instead, a more nuanced approach should be adopted, to reflect the complex experiences and needs of victims and survivors. Victims and the Adversarial System: Ireland, the UK, and the US employ adversarial legal systems, which are intended to secure justice for the accused, and not for the victim. This sets the tone for the way in which cases of rape and sexual violence are dealt with by the police, the court, and ultimately, by society at large. According to Daly and Bouhours, less than 20 per cent of survivors report their experiences to the police and that only 8 per cent of those cases ever advance to trial. Judith Herman once surmised, “if one set out intentionally to design a system for provoking symptoms of traumatic stress it would look very much like a court of law.” Under an adversarial system, it is the sole objective of the defence to cast doubt on the case of the prosecution. This poses particular problems in instances of rape and sexual violence, as the testimony of the victim may be the only evidence and so their word will be aggressively attacked and questioned by the defence. Such cross-examination can be re-traumatising, as accusations of lies and exaggeration are thrown at survivors, and they are forced to relive the terror and helplessness endured during the original attack. Victims are expected to contend with this while also dealing with the mental consequences of having experienced sexual violence. Hence, their psychological trauma stands to be exacerbated. The possible manifestations of this trauma, such as blocking out memories and feelings being employed against victims by the defence in an attempt to undermine the reliability of their testimony. In this way, survivors are forced to endure a “second rape” as they battle to satisfy the burden of proof in a system that focuses on protecting the interests of their attacker. There are, of course, mechanisms that could be introduced in order to improve the experience of victims progressing through the adversarial system. Survivors could be given the option of receiving psychological support, to try and minimise the traumatic implications of the criminal-justice process. The Dublin Rape Crisis Centre advocates for the entitlement to separate legal representation throughout the process of reporting and to advance an allegation of rape or sexual violence. It is thought that this would ensure that victims are treated compassionately by the police, and that they receive effective and beneficial medical care. Additionally, courts and juries could be educated as to the many psychological consequences of sexual violence, and the ways in
