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Survivors of sexual violence are let down by the criminal justice system – here’s what should happen

The poor treatment of survivors, when combined with few perpetrators being convicted and a perception of lenient sentencing, could tacitly signal to society a “decriminalisation of rape”, writes Dr Simon McCarthy-Jones.

HOW WELL DO criminal justice systems treat survivors of sexual violence? The answer is not only important to survivors. It also signals to society how sexual violence should be viewed.

The poor treatment of survivors, when combined with few perpetrators being convicted and a perception of lenient sentencing, could tacitly signal to society a “decriminalisation of rape”. This cannot be permitted.

Many survivors in the United Kingdom, Ireland and the US (which all have adversarial legal systems) have negative experiences of the criminal justice system (CJS). Many also have positive experiences. But certain key problems are flagged time and time again.

There is an urgent need to discuss and rectify these.

Problems entering the system

The first problem with the CJS for survivors is that most never enter it in the first place. Sexual assault is the most unreported crime against the person. Over 80% of survivors never report their experiences to the police.

The reasons for this are often rooted in fear. Fear of disbelief, of unjustified blame, of retribution, of re-traumatisation, of the impact on their family and community and of being let down by the system. One Irish study found the CJS had “assumed such terrible proportions in the minds of some rape victims that they would prefer to forego any prospect of justice rather than engage with it”.

Even when people do enter the CJS, many leave it again. Survivors’ first contact with police is well known to be a “make or break” stage. A 2006 study found that more than 80% of rape survivors without advocacy support felt bad about themselves, and reluctant to seek further help, after their first contact with police.

In recognition of such problems, many police forces have committed to improving training for officers. This seems to be having some positive effects. For example, a 2015 report found that 69% of survivors of sexual violence in Ireland who filed a complaint with police felt the police had treated them sensitively (an increase of 6% from the previous year).

The problems at trial

Around 8% of cases reported to police are taken to trial. Here, survivors face further challenges. As the psychologist Judith Herman has noted, “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”.

In particular, cross-examination is frequently cited as retraumatising. In adversarial legal systems, it is the job of the defence to bring the prosecution’s case into doubt. In sexual violence cases, the survivor’s testimony may be the only evidence. This will therefore be the focus of attack for the defence. This is typically done by undermining the survivor’s credibility and reliability, and their story’s plausibility and consistency.

Survivors may be accused of lies and fabrication. Rape myths and stereotypes can be invoked. Detailed questioning can recreate the powerlessness and terror of the original assault. This is referred to as secondary victimisation or the second rape. It can have serious consequences for survivors’ mental health and well-being.

Survivors have to deal with this while potentially suffering from the psychological consequences of experiencing sexual violence. For example, rape is the most likely form of trauma to lead to post-traumatic stress disorder (PTSD).

People with PTSD will often try to avoid thoughts and feelings about the trauma. Yet survivors will be forced to address the trauma in excruciating detail in court. PTSD is also associated with exaggerated feelings of blame, overly negative thoughts and assumptions about oneself, and difficulties with memory.

Ironically, the psychological consequences of sexual violence can be what the defence uses to undermine survivors’ claims to have experienced sexual violence.

What should happen now

Reforms to the legal system have focused more on improving its effectiveness (for example, increasing conviction rates) than on increasing its sensitivity to survivors’ needs. Yet, it has been questioned whether a prosecution that results in a conviction but devastates the victim is really a success.

The starting place for improvement is listening to survivors. This can establish what their needs are, what justice is for them, and what changes they think are necessary. Obviously, this will have to be balanced against the rights of defendants.

Survivors should have legal, psychological and advocacy support. They should be entitled to separate legal representation throughout their trial. This can increase their satisfaction with the process. They should have the support of an advocate. This can make survivors less likely to be treated negatively by the police, more likely to receive medical care and less likely to be distressed by medical services.

Survivors should be offered psychological support throughout their involvement with the CJS. Courts and juries should be educated on the potential psychological effects of sexual violence on survivors. This should include effects that relate to strategies commonly employed by the defence during cross examination.

For example, defence lawyers often attempt to undermine the reliability of survivors’ testimony by challenging them about memory fallibility. Courts may consider inconsistencies, low detail, errors and omissions in survivors’ memories as undermining their testimony. However, contemporary psychological understandings of memory consider this typical. Memory is not like a DVD.

Beyond reform

Reform may not be enough. The adversarial system is designed to achieve justice for the accused, not the victim. A parallel system, which decouples the pursuit of justice for victims from the administration of justice for offenders, could be helpful to survivors.

A shift to an inquisitorial system could also help survivors. Here, the state investigates an event and the persons involved to establish the truth.

And yet, all this may still be unsuccessful if we don’t remove from society the myths and prejudice that surround sexual violence. This is work for everyone.

Dr Simon McCarthy-Jones is an Associate Professor in Clinical Psychology and Neuropsychology in the Department of Psychiatry at Trinity College Dublin, where his research focuses on hallucinations and the impact of sexual abuse.

This article was originally published in The Conversation.

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    Mute Keith Dunne
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    Jun 8th 2019, 9:52 PM

    Straight outta Carlow.

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    Mute G
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    Jun 8th 2019, 9:04 PM

    Gwan the boyz yup yup

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    Jun 8th 2019, 11:00 PM

    Embarrassing…

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    Mute Daragh Ó Murchú
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    Jun 9th 2019, 12:19 AM

    @TamuMassif2019: cad go díreach a bhfuil náireach fúthu ?

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    Mute TamuMassif2019
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    Jun 9th 2019, 12:57 PM

    @Daragh Ó Murchú: I never put much effort into Irish at school…

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    Mute TamuMassif2019
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    Jun 9th 2019, 1:00 PM

    @Daragh Ó Murchú: Them denying their own culture and trying to act if they belong to another culture and to another race, why making eejits of themselves.

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    Mute Mike Spillane
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    Jun 9th 2019, 2:49 PM

    @TamuMassif2019: you haven’t got a clue. I’d say Irish wasn’t the only part of your education you neglected.

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    Mute David Hickey
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    Jun 9th 2019, 5:12 PM

    @TamuMassif2019: Would you say the same of a rock band? Rock music is from the south of the US originally. Should we stop that, and only play trad so?

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    Mute Disco Pants
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    Jun 8th 2019, 9:12 PM

    Lowest common denominator trash for the most brainless in society.

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    Jun 8th 2019, 9:18 PM

    @Disco Pants: ooooooh look at me I use big words to seem smarter than anyone else

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    Jun 8th 2019, 9:18 PM

    @Disco Pants: moron

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    Jun 8th 2019, 9:20 PM

    @Disco Pants: idiot

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    Jun 8th 2019, 9:22 PM

    @Conor Daly: who bees you dog? Gnome sayin

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    Jun 8th 2019, 9:22 PM

    @Disco Pants: i bet you would be great crack on a night out

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    Mute j4VEpUO8
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    Jun 8th 2019, 9:25 PM

    @Disco Pants: put down what you don’t understand is smart thinking

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    Mute j4VEpUO8
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    Jun 8th 2019, 9:26 PM

    @T Jay O’Mea: putting

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    Jun 8th 2019, 9:40 PM

    @Disco Pants: bellend

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    Jun 8th 2019, 10:03 PM

    @Disco Pants: Hey mate you havnt got a clue what’s up

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    Jun 8th 2019, 10:07 PM

    @Disco Pants: brainless? Most of these lads are above average intelligence. They have to be to write songs and have the intelligence and confidence to come up with lyrics on the spot

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    Mute Barry Dempsey
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    Jun 9th 2019, 7:55 AM

    @Disco Pants: thanks for your insight. Lowest common denominator trolling

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    Jun 8th 2019, 9:50 PM

    Anyone else remember Scary Éire?

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    Jun 8th 2019, 10:09 PM

    @Cheeky Bums: Yeah, last I heard he got whacked in Compton, drive by shooting. Rip Scary

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    Jun 8th 2019, 11:51 PM

    @Cheeky Bums: They played the sugar club on Paddy’s weekend, wasn’t there but it was a great gig so I’ve been told.

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    Jun 10th 2019, 10:35 AM

    @Cheeky Bums: Yeah, Saw them live back in the day.. great band.

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    Jun 8th 2019, 9:21 PM

    Mago x mathman have some really good stuff that deserves more air play

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    Jun 8th 2019, 10:40 PM

    Load of me b. O. X s

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    Jun 8th 2019, 10:14 PM

    I said a hip hop …… stall it down the shop ….

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    Jun 9th 2019, 7:39 AM

    “entrenched racism”? How about a fact check on that claim.

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    Jun 8th 2019, 11:54 PM

    It’s quite astonishing that an article about Irish rap has no mention of Scary Eire

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    Jun 8th 2019, 10:46 PM

    Just need to avoid the trap that happens with any Dublin scene where a group of artists get good, then disappear up their own posteriors

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    Jun 8th 2019, 10:28 PM

    Kneecap’s album gets played a lot in our car. Check them out on YouTube/Spotify if you haven’t already.

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    Jun 8th 2019, 10:39 PM

    The comments here are hilarious

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    Jun 8th 2019, 11:43 PM

    Is seems like most Irish hip hop that makes social media graduated out of gonzaga college

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    Jun 8th 2019, 9:53 PM

    Straight outta Carlow

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    Jun 8th 2019, 10:05 PM

    @Keith Dunne: or Straight outta Carlaa

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    Jun 8th 2019, 10:22 PM

    I really don’t the Kneecap boys would call themselves northern Irish and what’s with the ‘his real name is an Irish name’ comment? What’s that supposed to mean? Belfast is cheap compared to Dublin but you would be hard pushed to get a room in a shared house for less than £250 a month. For a flat, you’ll be talking £500 a month unless it’s in the absolute worst areas

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    Jun 9th 2019, 4:30 AM

    @De20: We are taking Irish hip hop and somehow you manage to make it about property prices….shame on you.

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    Jun 9th 2019, 1:43 AM

    Fair play lads all the best no mention of Rob Kelly from Wexford who really blazed a trail for the hip hop community

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    Jun 9th 2019, 2:42 PM

    Rap/ hip hop just never sounds good done by Europeans it just comes across as lame and fake .

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    Jun 9th 2019, 8:27 PM

    diddi diddle dillidy dillidy dillidy dee

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    Jun 8th 2019, 10:05 PM

    These boys are very talented not mainstream which is great….we are sick of PC bullshit we’re know
    what’s going down

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    Jun 8th 2019, 11:03 PM
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    Jun 8th 2019, 10:32 PM

    5th element on youtube. Class lads!

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    Jun 9th 2019, 9:49 AM

    Calling all da scraggy b I tches from accross the land. Jump up on me 1997 Civic and we’ll show those nerds.

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