In reflecting upon the confirmation hearings for Judge Brett Kavanaugh, a Yale student declared “Kavanaugh is a symptom of a much larger problem at Yale, where Yale is complicit in giving powerful men power and then being complicit when they abuse their power.” In fact, Kavanaugh is a symptom of a much larger problem than just Yale, where society as a whole is complicit in giving powerful men power and then being complicit when they abuse their power. The case has sparked yet another global debate around sexual violence against women, the legal and societal presumption of innocence, and the corruptions embedded in criminal justice systems regarding rape. Injustices such as these prevent millions of women from coming forward to report their experiences of assault.
Dr. Christine Blasey Ford has accused Kavanaugh of sexually assaulting her while the pair were teenagers in high school. Two other women have also reported that Kavanaugh has exposed himself indecently in the past and has been complicit in trying to get young girls drunk at college parties so that they could be raped. Kavanaugh has been nominated by President Donald Trump to fill a seat on SCOTUS, the highest court in the land. SCOTUS make rulings that affect all of society, on issues involving the constitution. In a dramatic series of events in the US Senate, Kavanaugh’s nomination for the position of Supreme Court judge was approved by an 11-10 majority vote. However, final confirmation of this became subject to a week-long delay when it was agreed that there would first be a full FBI investigation into the sexual assault allegations.
The case is reminiscent of multiple accounts of rape and sexual assault that have shaken courtrooms, the media, and society throughout the world in recent history. One recalls the Steubenville rape case, a small town setting in which even convicted rapists were mourned in the media and community as having had their football careers stolen and futures destroyed, while the victim was slated for “her own bad behaviour”, blamed for being abused and for “people trying to blow up our football programme because of it”. Finally, to bring it even closer to home, one cannot forget the latest case of rape decided in Northern Ireland, in which Ulster rugby players were found not guilty of the reported assault. Opinions flooded our own media. On the one hand, citizens of Ireland got #IBelieveHer trending, crying that the verdict does not equate to innocence; it simply means there was not enough evidence to prove certain guilt. On the other, the accused received defence and sympathy from society, who were angry that their rugby careers may be tainted as a result of the case.
In most justice systems across the world, including our own, the accused is afforded the presumption of innocence; the burden lies on the prosecution to prove the guilt of the defence. Until that point, there is an assumption that the accused is innocent of the crime, in the interests of upholding the rule of law and the right to a fair trial, a provision protected in the Irish Constitution. However, as valid as this right stands, when rape and sexual assault comes into question in today’s culture, especially involving those in positions of privilege and power, we forget something. A presumption of innocence does not, or rather should not, result in a presumption that the victim is always lying, especially when it is statistically proven that in the majority of cases, they are not.
This point becomes especially significant when we pair such a presumption with the demonstrable failings of the criminal justice system. The traumatic process in Ireland, for example, treats sexual histories, clothing choices, and general behaviour of the victim as fair evidence against them. A 2009 study for the Dublin Rape Crisis Centre, looked at 40 rape cases between 2003-2009 in which frequent applications to introduce evidence about a plaintiff’s sexual history were granted, on the basis of the defence’s claim that the complainant was promiscuous. The process of getting to trial and the aftermath is equally disturbing; delays in gathering evidence and gaining a date for a hearing can leave a complainant stranded for years, while inconsistent, often unfair sentencing further worsens the ordeal if the accused is proven guilty, a rare occurrence.
Considering all this, why would someone put themselves through such a system if they wasn’t telling the truth? Why would a woman lie when 90 percent of victims choose not to report their cases, because they recognise the increased trauma that they will suffer as a result? Why would a person lie when they know that their success is limited from the start, when they know that there is a mere 8 percent conviction rate in rape cases in Ireland? Why would a woman lie when she realises that one in three cases result in a partially suspended sentence? Why would she even come forward in the first place?
It would be dangerous to remove the presumption of innocence from our justice system. Cases in which the accused is innocent of rape must occur, however rarely. However, the legal and societal outlook that the complainant in such cases is certainly lying as a result of this presumption, is an unfair outlook and not the logical conclusion from the premise. This interpretation shames women in a society in which they are already sexually stigmatised. Women are blamed for their own abuse, due to how they act, what they wear, how much they drink, while simultaneously being treated as mere objects for men’s sexual pleasure. This is highlighted in the Whatsapp messages exchanged between the Ulster rugby players earlier this year, where the complainant in that case was described as a “merry-go-round” they each got to ride. A justice system that facilitates this culture only serves to normalise it within our society and prevents women from reporting their experiences of sexual abuse.
If we persist in considering the character of the accused rapist, their power and position, we must also begin to acknowledge the systematic obstacles that face victims in their pursuit of justice. In doing so, we can begin to realise that while protecting the right to a fair trial is important, conversely, it is equally as significant not to jump to the conclusion that the complainant victim is lying, when it has been proven that this is a rarity. We must reform the narrative, before the narrators become utterly powerless, hopeless, scared. Silent.