The term justice means different things to different people and can evolve with changing circumstances. For many survivors of sexual violence, this concept carries with it the promise of acknowledgment and vindication or, as Gisèle Pelicot said, “shame must change sides”. But too often they are met only with the reality of secondary trauma inflicted by cultural and structural violence.
In her seminal 1997 book, Truth and Repair: How Trauma Survivors Envision Justice, Judith Herman says that what many survivors need is truth and repair but that what the justice system provides is punishment and monetary damages. There is little importance traditionally given to fairness, respect and voice. The sociological model of procedural justice highlights the importance of fairness in the procedure, as opposed to only the outcomes. Despite significant reform since 1997, survivors are still telling us they do not experience justice.
For survivors, the level of legitimacy they place on a system is heavily dependent on how much trust they have in the process. Criminal justice reforms, including the outgoing Government’s A Victim’s Journey, have tried to deliver increased fairness to victims in the adversarial system. But what survivors like Miriam Henry — whose brother Gerald avoided jail after being convicted of sexually abusing her — keep telling us is that the system is not trustworthy and, damningly, that it harms more than it protects.
Where the criminal justice system delivers a guilty verdict and a sentence, survivors often struggle with how to interpret this win that cost them so much and marginalised them in the process
Our criminal justice system seeks to identify and respond to the actions and intentions of the perpetrator. But for the survivor, the true trauma includes the unseen systemic and cultural harms that isolate and silence. We see it in unsupportive friends and family, or a community dissecting the horrific facts of a crime for entertainment, or in the lack of comprehensive support services. For a victim, the goal of activating a formal justice response — getting to a courtroom — is to achieve entry to a response system whose processes are designed to undermine and discredit not only the survivor’s actions but their character also. Where the criminal justice system delivers a guilty verdict and a sentence, survivors often struggle with how to interpret this win that cost them so much and marginalised them in the process.
Aoife was diagnosed with HIV in Australia in 2020: ‘He was unknowingly positive. We had no idea’
Ministers, super juniors and chief whips - what jobs are filled in the cabinet?
Silent Witness review: Cosy crime drama delivers plenty of killer blows
Caroline Darian, daughter of Gisèle Pelicot: ‘It’s difficult to be the daughter of a sexual criminal and the daughter of an icon like my mum’
Survivors like Nikita Hand feel abandoned by the justice system and are left only the option to pursue civil cases, which offer fewer protections and little satisfaction. Our low reporting and prosecution rates coupled with the injustices of the system itself that survivors attest to, amounts to a level of failure which arguably puts this criminality, in the main, beyond the reach of justice. This is an untenable violation of human rights.
An obvious example of the fundamental shortcomings in the system is the positioning of the survivor as merely a witness to the event as opposed to a participant in the court process. This censors the voice of the most important person in the process. The right to a fair trial is important, indeed a right that we would defend, but for Rape Crisis Ireland (RCI) the right to fairness should be applied equally. The application of the defendant’s rights must not come at the expense of the rights of the survivor to privacy, dignity and what should be equal participation in a criminal justice process. Another is the blatant victim-blaming clothed in the language of relevance practised by the defence. The disclosure of the survivor’s private and unrelated information, used only as a tool to discredit, is unacceptable, and a humiliating indictment of the outdated practices of the process.
Survivors of sexual violence, despite these myriad worthy reforming efforts, continue to be failed
The Irish criminal justice system is anachronistic. Most sexual violence law has its roots in patriarchal property rights and is imbued with patriarchal values and adversarial practice. We are no longer living in a world where women’s bodies are men’s property. We have, for 100 years, worked to adapt this system to recognise that women’s rights are human rights. But what remains are the foundational adversarial approaches to how we structure the pursuit of truth in our justice system. Survivors of sexual violence, despite these myriad worthy reforming efforts, continue to be failed. As a country dedicated to being at the forefront of democratic and human rights-based values, RCI believes it is time to ask whether we need a new approach, a legal and cultural shift that speaks clearly and unequivocally to who we are and how we treat those made vulnerable by these crimes.
Violence against women and children especially is acknowledged and accepted as an epidemic which is growing exponentially. It is time for a bold reassessment of the way we treat survivors of sexual violence. It is urgently needed. The adversarial system inflicted on the survivors of these crimes is not fit for purpose; it never was.
This is why RCI is calling for the new government to establish a commission on justice. This commission should explore and assess the positioning of the survivor within criminal justice on a human rights basis but also the balancing of the rights of survivor and accused. Such a consideration of justice has the potential to move us beyond the cycle of short-term fixes and mitigations that inevitably lead to their own set of new problems. We should no longer accept that simply because it has always been so.
Dr Clíona Saidléar is executive director of Rape Crisis Ireland
- Listen to our Inside Politics Podcast for the latest analysis and chat
- Sign up for push alerts and have the best news, analysis and comment delivered directly to your phone
- Find The Irish Times on WhatsApp and stay up to date