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When Justice isn’t Justice: Questioning the Appropriateness of Linear Justice in Instances of Rape and Sexual Violence by Kate Flood [Page
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
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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
which they can play into the strategies pursued by defence teams during cross-examination. Measures such as these would work to vindicate the right of victims within the adversarial process; however, could they possibly ensure meaningful justice for survivors?
A Linear Perception of Justice
The reality is that reforms, such as those outlined above, simply may not be enough. Reforming the adversarial system for cases of rape and sexual violence would still subject victims to a system that inherently de-emphasises victims and survivors. This de-emphasis is unavoidable as the system advances a linear perception of justice, wherein there is a process with a beginning and a definitive end. Moreover, it is generally understood that the success of such a process can be denoted by positive, punitive outcomes. In this way, justice is presented as something which McGlynn and Westmarland describe as being “dichotomous: you either get it or you don’t.” Furthermore, this approach to justice is representative of what societal and policy discourse deems to be ‘justice’ in cases of sexual violence. As Dianne Martin notes, this presupposes that justice for victims of such egregious crimes can be secured by equating “recognition of harm with length of prison sentence.” This line of thinking advances the notion that there exists, what Asher Flynn refers to as a “recognisable rape narrative” which can be applied to any and every case of sexual violence. Effectively, there is no meaningful interrogation into the real needs, and justice-interests of victims, which in reality can vary from case to case. The issue is that alternatives to the status quo are often dismissed before they can be duly considered. So embedded is linear justice in society’s understanding of what justice is and ought to be, that it dominates policy debate, and drowns out calls for a more innovative and nuanced approach.
Moving Beyond Linear Justice
Nonetheless, there have been many attempts to shift and recentre the discourse on victims, and to apprehend justice as something which must be seen to be done from their perspective. Rather than being a static, ‘onesize-fits-all’ concept, most victims of sexual violence have a very fluid and variable understanding of what justice is. In this way, their idea of justice, and what it should entail, is often quite apart from the perception of justice advanced by the criminal system. Clare McGlynn and Nicole Westmarland, in advancing the case for what they term ‘Kaleidoscopic Justice,’ recognise this disjunction. They suggest that by better understanding the victim’s perspective on justice, and embedding the idea of kaleidoscopic justice, we, as a society can begin to properly and adequately address the lack of justice for victims and survivors of sexual violence. Their work sees justice “as an ever evolving, nuanced and lived experience,” which emerges in different themes: consequences, recognition, dignity, voice, prevention and connectedness. They suggest that justice be taken for the complex, changing and ongoing concept that it is for survivors. As such, a given case of rape of sexual violence would be approached and dealt with based on the circumstances, experiences and needs of the victim. This could involve incorporating restorative justice and/or ensuring that the victim has access to perpetual support, be it emotional, psychological or financial. Moreover, where appropriate, the education or rehabilitation of the accused could be pursued, rather than, or in tandem with, conviction. In this way, each victim would be seen as an individual, with their own unique and complex set of circumstances; as someone who has a definition of justice which may or may not align with that of another victim.
