IN EARLY 2017, the conviction of Hollywood producer Harvey Weinstein for sexual crimes (he was subsequently jailed) became the kick-off point for the MeToo movement.
The movement was a rallying moment for people – particularly women – who had experienced sexual assault, harassment and rape.
Taking the form initially as the hashtag #MeToo, it was used as a way for people to speak out about the sexual violence they had experienced. It served to show that they were not alone, and that gender-based violence is widespread.
MeToo has continued to inspire survivors to write about their experiences online. Some do this anonymously; others use their name.
Some choose to name the perpetrator, while others don’t.
As more people turn to the internet to disclose their experience, questions have started to emerge.
Such as: what does the disclosure of sexual assault, rape or harassment mean for the survivor – and could the naming of alleged perpetrators lead to legal issues for survivors and/or social media platforms?
Are survivors turning to social media-based groups who might promise help – but not have the requisite skills or training?
The vast majority of sexual crimes are not pursued through the courts – how can the legal system better support victims?
And as these sexual crimes show no sign of disappearing, how can Irish society move towards a space where they decrease?
To take a closer look at the situation in 2021, The Journal spoke to a young man who disclosed his rape on Tumblr; the CEO of Dublin Rape Crisis Centre (DRCC) Noeline Blackwell; sexual health educator Dr Caroline West; and retired judge of the High Court, Judge Bernard Barton.
‘I wrote about my rape on Tumblr’
Figures released in February of this year showed that in 2020, the Director of Public Prosecutions (DPP) ordered the prosecution of 168 people charged with rape. This was an increase from from 124 in 2019, the Irish Times reported.
This number, said Noeline Blackwell, is a “fraction” of the cases reported to the gardaí. While people might report their crime, that does not mean that they will always choose to pursue a legal case – or that the DPP believes there is enough evidence to secure a conviction. Just because there is not enough evidence does not mean a crime did not take place.
The number of suspects facing prosecution for sexual offences in 2020 also rose – to 530, from 459. Overall, numbers “have been going up over the past five years”, said Blackwell.
As the numbers have risen, so too appears to be prevalence of people speaking out about their experience. “We have seen a significant step forward in the discussion around the previously very hidden issue of sexual violence,” said Blackwell.
One man in his late 20s, named Chris, spoke to The Journal about how, after he was raped by an acquaintance five and a half years ago, he wrote about the experience on the website Tumblr, (a social networking site), as a way of disclosing what had happened.
He found that writing about it online helped, particularly as he later decided not to pursue a legal case – something which he highlights is common among rape survivors.
In Chris’s case, though the encounter started off consensual, at one point he got uncomfortable and asked the man to stop. Physical force was used to keep going.
“I think it’s important to point out those things because it’s a complex story, it’s not the simple one that many people imagine rape to be. It’s still a legitimate story,” said Chris.
He didn’t approach the gardaí at first. “In the immediate aftermath I didn’t think of it as assault,” he explained. But six months later, while having a full STI test, he realised that it was the first time he had felt at real risk of having contracted an infection.
“That was the point I realised: I did not choose to be in this situation,” he explained.
I think the night I went home from that test, I wrote the Tumblr post. It was just saying – here I am, this is something that happened to me.
As a queer man, the internet had been a place for Chris to express his queerness on his own terms. So writing a personal post about his assault “felt safe”.
I could be myself and if people see it they see it, and I don’t have to deal with the sit-down, face-to-face conversation with someone. I don’t want to ‘come out’ about what happened to me. If they want to ask questions, that’s fine - I feel like I have said what happened.
He said “it’s not surprising” to see more people disclosing their experiences online post-MeToo, “when so few cases are prosecuted and so few are won that people are fed up”. Faced with the potential of not being able – or not desiring to – pursue a legal case, survivors can instead turn to the internet to have their story heard, and to find solidarity.
The impact of MeToo has meant that survivors’ concerns around being believed have lessened, said Chris.
Before [MeToo], there was not as much public discourse but the question was ‘would you be believed’. That has flipped now. Most people expect survivors who come forward will be believed by a lot of people.
‘It was – we believe it, but we still don’t care’
The election of Donald Trump in the US helped spur Chris on further. Hearing the reports about Trump’s alleged sexual misconduct had an effect on him. “As soon as the sexual assault [claims] came out, I thought: he’s gone – who will vote for this guy?” explained Chris.
But, as we know, Trump was voted into power. “It’s odd that something abstract would affect me but that was the point I started to talk to friends,” said Chris. “[I thought,] this might be more serious than I had realised or let on.”
Chris had felt that when women came forward with stories about Trump, “no one seemed to disbelieve the story had happened. It was: we believe it but we still don’t care”. To him, this was indicative of attitudes within society about rape and sexual assault.
In part spurred on by this, Chris rang the Dublin Rape Crisis Centre a year after his assault. As there was a long waiting list for counselling, he was seen by a therapist one year later.
“It was only when I was at my first session with my therapist and I told her what had happened, she asked ‘is it okay for you to call it rape?’… That was the first time I associated it with what happened. I was very uncomfortable.”
He went to the gardaí in the autumn of 2019. The gardaí told Chris that if they were to investigate the case, they would have to take his phone off him and access all of his online accounts.
“Ultimately I reached a point where I thought: ‘I don’t really want my personal life to be invaded for an incredibly low chance of something happening’,” he recalled.
He noted that the DPP not pursuing a case, or getting a not guilty verdict, could “be interpreted as ‘nothing happened’, so I wasn’t willing to take that risk as well.” In addition, he had concerns about going through the court system itself.
I think also at the moment with the legal system, because it’s a crime against the State – [as a rape survivor] you are a witness to your own crime, and we’ve heard the stories about ways people are treated.
‘They feel they’re on trial’
The issue of how victims are treated in sexual violence cases was raised recently by solicitor Sarah Grace, who spoke to the Irish Times after a man was convicted of breaking into her home and violently sexually attacking her.
She has written to the Minister for Justice, Helen McEntee, to outline her concerns around how the courts interact with victims, and is due to meet with McEntee on the subject.
McEntee was also due to meet with a rape survivor in Co Kerry, who has called for character testimonials for defendants in rape cases to be discontinued.
Noeline Blackwell of DRCC said there can be numerous reasons why survivors don’t pursue court cases.
“There is a well recognised concern that only a small proportion of those who disclose sexual offences go forward to report them to the Gardaí for prosecution. And many more will drop out of the process between the time of report and going to court,” said Blackwell.
“Because most victims know the perpetrator and may even live or work with them, there can be pressure to withdraw. People may also get so tired of the delay and the invasive nature of the investigation that they give up,” she said.
Even if they stay engaged, delays and the overall air of hostility that they feel from the justice system can make it a really traumatic experience. They feel that they’re not believed, and that rather than being a witness, they’re on trial – without legal support and with their most intimate thoughts and actions being questioned.
This year, Minister McEntee launched a new Victims Charter website, which has a dedicated section for victims of sexual crime. Her department also launched a new strategy, Supporting A Victim’s Journey.
McEntee’s comments on the strategy highlight that the justice department is aware of the concerns from sexual violence survivors:
After suffering the most appalling abuse and violence, many victims feel they cannot come forward and report what happened to them. Sometimes this can be because of a fear they won’t be believed, or a fear of how the crime will be investigated. Many fear how they will be treated in court: how they could be traumatised again as they seek justice. I want to remove that fear, support victims every step of the way and create a system centred around them.
Though Chris ultimately decided not to pursue a court case, he was still left with anxiety about the decision. He was “living with quite a bit of guilt, which was ‘I haven’t done anything to stop this guy going out and doing it again – who knows if he has or not? Is this my responsibility, to go out and do something about that?’”
“It asks a lot of the people who are most affected and most traumatised to take more responsibility on. It’s a difficult position to be put in,” he said.
This is interlinked with Chris’s thoughts on how the MeToo movement might have put an onus on survivors “to tell their story no matter what the cost is to them”.
He worries that after personal stories were central to the successful marriage equality and abortion referendum campaigns, the onus remains on people affected by the issue to speak up.
“I do feel we are asking survivors to be incredibly vulnerable and put themselves in harm’s way from the responses they might receive,” said Chris.
He is also concerned about how protected people are when sharing their stories online. “I don’t think [social media sites] can be described as safe spaces,” he said. “They are tools but I think that tools can be weaponised in any number of ways.”
Chris has done a huge amount of personal and therapeutic work, and also has a good support network, but cautioned that not every survivor has this. He said it is legitimate and understandable that people can find power in sharing their story – especially when they don’t feel, like him, that they will get legal justice.
But there can be an impact on survivors of telling their story in order to receive the validation they might not get from the courts.
For him, the focus needs to be turned to how we as a society can combat sexual violence.
This primarily comes down to teaching people about consent from a young age. “Even if the word ‘yes’ is not spoken, how do we recognise it?” explained Chris.
While sexual assault as a crime might never disappear, Chris said that it would be huge for society “if everyone recognised what consent is, and that it can be given and withdrawn at any time.”
“Not only could it increase the likelihood of successful prosecution if jurors, judges, and lawyers all had a clear understanding, but it could also act as a deterrent in the first place.”
‘Having people say victim-blaming things was quite hard’
Dr Caroline West is a sexual educator and lecturer. She has also chosen to disclose her experience of sexual assault, and speaks about it during her workshops.
“I do wish people didn’t have to share their trauma for people to care, but in my situation I like using it as a learning tool for people and being able to talk about it in person rather than an abstract theory,” she said.
She described MeToo as “the catalyst for looking at everyday sexual violence”. “I think it was really interesting for bringing the idea into play that sexual violence is a spectrum,” she said. Learning about the spectrum helped her to heal.
She said that MeToo can encourage informal conversations and empower people to go to a Rape Crisis Centre or the gardaí. “Seeing people share experiences that you might identify with can empower people and break the silence.’”
But, like Chris, she said that disclosing online can also make people vulnerable.
“Some people would say that if it is anonymous it doesn’t count – you have to put your name to it. But for some people that is not an option due to defamation laws, or fear of retribution.”
The other side to this is that people can share their story and find “accounts doubting the story or victim-blaming or being nasty, screenshotting those stories and sharing them”.
In addition, encouraging people to speak out can lead to contact from other survivors. While this can bring solidarity, it can also be difficult for survivors. “Sometimes you mightn’t be able to process that trauma,” said West.
In theory it can be a good idea but in reality it can be hard to control the narrative and the abuse people can face as a result. When I shared my experience, having people say the victim-blaming things was quite hard. It was a whole other thing to deal with alongside the violation – you have to deal with people saying what were you wearing, etc. It’s doubly traumatising.
Often online disclosure “is something people will be very proud of, and the pushback or speculation that comes [in some] spaces is very difficult”, said Noeline Blackwell.
West said that the big question is: why do people feel the need to speak out? She puts it down to the justice system being “not fit for purpose” in dealing with sexual violence, and said a trial can re-traumatise a victim and lead to victim blaming.
She pointed to a court case in 2018, where a woman was asked during a rape trial about the underwear she wore on the day in question. The case (the man was acquitted) led to protests and international coverage of what happened.
Like Chris, West believes the solution to tackling the underlying issue of sexual violence in Irish society is “to build a consent culture from the ground up”.
“At the moment we do live in a rape culture, but we are working toward a consent culture,” she said.
Post-MeToo, consent classes began to be rolled out in Irish colleges and universities. “There was backlash; there were op-eds about how terrible this is. But now they are being rolled out into secondary schools,” said West.
She said that age-appropriate consent classes should happen “from womb to tomb, making it a continuous conversation”.
In Irish society we are great at talking about something for a while and then we go quiet again. There are cycles of outrage and then silence. I still feel there is a long way to go. I didn’t realise what had happened to me was sexual violence.
Survivor groups
As more people have begun disclosing online, there have also been online-based survivor-led support groups appearing. Some share stories and campaign through social media, offering peer support. But Chris urged caution about solely relying on these.
“The trained professionals are going to give you the best reception you are going to get. I cannot emphasise how wonderful the DRCC are,” he said.
“I think unofficial groups are good and I think they can be constructive. The concern comes because it is such a wide-ranging field.”
Building his understand that what happened to him is an abuse of power has helped him. “It’s not about sex. It’s a very specific type of thing and I think those peer support groups might be missing some of that, and certainly in terms of disclosure I would urge people to go to a professional source first to build up your resilience.”
When it comes to people contacting the DRCC, Noeline Blackwell said that in 2020, they saw a pattern similar to what usually happens at Christmas – calls stayed low.
“This was an experience that was seen throughout Europe, it really was that people did not look for help,” she said. Reasons included a lack of privacy, she said, along with new carer responsibilities.
“During the lower levels of restriction we saw increased reporting,” she added.
“It’s important to realise sexual assaults were still happening, people still needed forensic attention. The trope of the Saturday night rape is only one type of sexual assault.”
The numbers have been going up every year but the DRCC can’t account for why. The last country-wide sexual violence survey was published in 2002, and the CSO is now engaged in a further large study, but the results won’t be known for the next two to three years.
‘The consequences are out of your control’
When it comes to people deciding to disclose online, Noeline Blackwell said that it can bring some people “part of relief of hidden burdens to be able to share, and often it can be hard to share in traditional ways in society as people don’t want you to talk about it”.
“All of that is fine but the consequences are somewhat out of your control then unless you’ve had time to think,” she cautioned.
Blackwell said that Twitter and other social media sites “have allowed people to say things not always in the safest way, not always correctly, but have allowed people to do what they do on our helpline – not say who they were, sometimes not even have to talk.”
She believes issues like the Repeal movement “made young people question why it was that assaults that were so vicious and violent and that had such damage to them, their parents, siblings, others – why was it that you weren’t allowed to talk about them?”
When people disclose about their assault, some might choose to name their perpetrator, while others don’t. It’s a hugely personal thing. If the case does get to court and there is a conviction, victims are afforded anonymity, while the perpetrator is named (unless their naming would identify the victim).
“The thing is that it’s impossible to generalise about it because people come with their own reasons,” said Blackwell.
But amongst the reasons we hear quite regularly are that people recognise that it is not their shame and that it should not be for them to carry the secret and the shame.
People also have told her they want the perpetrator named so that it is recognised that what happened is a widespread problem.
She said that the gardaí have told the DRCC that some people name the perpetrator “in case there are other victims of the same perpetrator out there.”
On this topic of choosing to name a perpetrator or not, Chris said that he guessed there could be two main motivations behind naming: “Seeking accountability, especially when the legal system might not be an option or a survivor might not want to go down that road but still believes – justifiably, I think! – that there needs to be some sense of justice for them; and also to try to warn or protect others who an assaulter might try to abuse”.
“I think the latter part is related to the concerns about what responsibilities a survivor has, as I said above. Although again, I’d fall pretty heavily on the side of believing that it’s not up to survivors to put themselves at risk to protect others, and that survivors are not responsible for their assailant’s actions at any stage, but that it comes back to education around consent and the knock-on effects that has on people’s behaviour, and how the justice system thinks about and treats sexual assault and rape.”
Blackwell also raised the question of what social media sites can do to protect people who make disclosures.
“There is still a lot of talking to be done with very powerful commercial entities, not just the social media companies – porn sites as well,” she said.
Harmful sharing happens very, very, very fast. Safe sharing is much slower.
One concern for a person who does name a perpetrator online could be the risk of defamation. A retired judge of the High Court, Judge Bernard Barton said that people should be extremely cautious around naming an alleged abuser online.
“If they’re saying that they identify the person as being a perpetrator of an alleged crime against someone, that is very serious. You’re saying this person is a criminal,” said Judge Barton.
Ireland’s defamation laws come under the Defamation Act 2009. To prove defamation, you must show that the statement was published, referred to the person alleging defamation, and was false. ‘Published’ can mean published online – but Judge Barton pointed out that there is a debate over who ‘published’ a defamatory statement: was it the person who wrote it, or the website?
“There’s a big debate at the moment about online platforms and whether online platforms are going to be liable for defamation, and that’s a question which courts haven’t had to decide,” he said.
The platforms believe that they’re just platforms and they seem to think that they’re immune. I think they’ve got a problem – I don’t believe that is the case, because it’s just a matter of time where the platform is going to be brought into proceedings as a co-defendant, as a publisher.
He added: “One of the things which a jury has to decide is the extent of the defamation. If it is over the internet this could be enormous [due to the potential reach of a social media post], so you would see why the platforms would fight this tooth and nail.”
He explained more about the potential legal issues that could occur if someone names an alleged perpetrator online.
“So the problem of going on the internet [and] saying ‘I’m the victim of a crime’ – you might be, but to identify Joe Bloggs as your assailant is defamatory unquestionably. Until the fact is proven, it is defamatory,” said Judge Barton.
If it’s true, it’s unlikely that the alleged perpetrator is going to sue, because the defence of the media outlet relying on the story they got from the alleged victim is ‘it’s true’. Unlike a criminal case where the burden of proof is to establish the case beyond any reasonable doubt, the burden of proof in civil action is to establish the case on the balance of probabilities.
In a defamation action, which is a civil action, the plaintiff would be the alleged assailant. If a civil case was taken over a comment that was published, the defendants might include the alleged victim alongside the publisher. That is different to a rape trial, for example, which is a criminal case – and the plaintiff in a rape trial case would be the alleged victim.
Noeline Blackwell said that “the chilling effect of litigation and defamation in this country is real, and it has been used not just online, but offline as well, to deny people comment which if they could afford to go to court could well be found to be valid.”
The issue of anonymous online accounts can also be an issue, as much as they can be a helpful tool for survivors to speak out, she said.
But the situation overall regarding people speaking out in an online space, particularly if they name a perpetrator, is one that is constantly evolving.
Said Blackwell:
I think we can’t have either extreme. We can’t have it that someone can post something online, even if a relief to themselves, if what they are doing is unfairly destroying someone else’s reputation or career. We can’t have a situation either where nobody can speak the truth because they are so terrified of defamation.
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