Listowel: convictions should be hard

Sat 19 Dec, 2009

Trials for sexual offences are difficult for the complainant – unfortunately they have to be

THE WEB and airwaves were alive with outrage this week after a Kerry man, Danny Foley, was sentenced to seven years imprisonment for a violent sexual assault on a woman who was found semi-naked and bruised. The outrage was not simply about the assualt, however. The Irish Examiner newspaper led on Thursday morning with the story that was to dominate the discussion for days, reporting that, prior to sentencing, 50 people “said to be neighbours and friends, trooped into the courtroom and marched up to the accused, in single file. Each man shook his hand – some hugged him warmly, with tears in their eyes.” (1)

Phone calls to and text messages that flooded-in to radio stations were read out on air and the social messaging service Twitter lit-up with fury. People were outraged and described the stunt as a further assault on the victim.

The Examiner’s report made a fairly obvious allusion to the difference between the treatment of the victim and that of her assailant: “It was witnessed by the 24-year-old victim who cut a lonely figure in the front seat of the public gallery. Dressed in black, she sat with a female garda, a counsellor from the Kerry Rape Crisis Centre and a friend.”

The complainant in this case deserves our sympathy, but not that of the court. No doubt her courtroom experience was unpleasant – but unfortunately that is the price of a fair legal system. A court of law must remain strictly impartial and treat every claim and counterclaim with disinterest.

And yet, rape and sexual assault cases are already treated differently to other forms of violent assault. Despite being done in the name of the complainant, this actually harms both parties, complainant and accused alike. In the Listowel case the complainant was granted anonymity which was respected by the press, however she herself pointed out that people in Listowel knew she was the complainant. This makes a mockery of the anonymity granted – but the answer is not to tighten the law but to abandon the right to anonymity altogether. Granting anonymity may be done in the name of protecting the complainant but it in fact stigmatises women who have been raped or sexually assaulted. Any genuine complainant has nothing to hide and certainly nothing to be ashamed of. Rape victims, like victims of any violent crime, should not feel stigmatised and it is long overdue that everyone accepted this fact.

Outdated notions about a ‘woman’s reputation’ being damaged have no place either in modern society or in the courts. For a start, being violently attacked – sexually or otherwise – confers no blame on the victim, nor should it. However, the law as it stands stigmatises the complainant in rape and sexual assault cases: anonymity is not provided in any other area and offering it in cases of sexual assault suggests that victims need to be protected from scorn.

Unfortunately the wind is very much blowing in the direction of destroying open justice in the name of ‘victim’s rights’, ‘rights’ such as denying the accused the right to defend themselves, which would amount to slanting trials against the defendant while anonymity simultaneously suggests something ‘shameful’ has happened to the complainant.

Speaking in the Dáil in 2007, Labour Party TD Pat Rabbitte, Fine Gael TDs Terence Flanagan and Olwyn Enright and Fianna Fáil TDs Noel O’Flynn and Chris Andrews as well as independent Finian McGrath all congratulated the then minister for justice, Brian Lenihan, for his introduction of anonymity clauses in the Criminal Law (Human Trafficking) Bill 2007. Now enacted as the Criminal Law (Human Trafficking) Act 2008, this is another instance of Irish law being skewed away from the presumption of innocence for the defendant, supposedly in the name of protecting the victim, while also harming the complainant by implying they require special protection.

The idea that women are especially vulnerable defies the idea of equality before the law and is an insult to women who are every bit as emotionally and psychologically strong as men. No single event, no matter how terrible, should be allowed to dominate the life of a person it happens to but today’s therapeutic culture views people simply as either vulnerable victims or angry agressors (and often as both) rather than the strong, capable and rounded human beings they are.

In her her victim impact statement the complainant spoke of feeling judged in north Kerry for pursuing her case, but said she was not sorry for telling the truth. Nor should she be. It is impossible to know to what extent she was being judged by the public but, ultimately, she did the right thing in coming forward. The law cannot be decided on the basis of how anyone feels, no matter how appallingly they have been mistreated.

Justice must not only be done, it must be done openly and transparently and perpetuating a culture of victimhood is in no-one’s interest. The complainant in the Listowel case has been vindicated and she has every right to that vindication. Anonymity, however, well meaning in intent has not served her and will not serve others in her position.

(1) People queued to shake this sex attacker’s handDonal Hickey Tralee, Irish Examiner, December 17, 2009
(2) See: Dáil Éireann - Volume 640 - 25 October, 2007: Criminal Law (Human Trafficking) Bill 2007: Second Stage