Allison Morris: Gillen report on sexual offences provides basis for fairer system of justice

Allison Morris
Allison Morris

When I first heard a member of the judiciary had been tasked with transforming a patriarchal system that has been failing women and children for decades it didn’t exactly inspire me with confidence.

But that was until I met retired appeal court judge Sir John Gillen and read his report.

For what this man, who presided over numerous high-profile trials in his life, has achieved in a short period of time is quite remarkable.

With confidence in our political institutions at an all-time low, the fact that the Gillen review was commissioned in April, published preliminary findings in November, will be out to public consultation until January and deliver its full findings in February - without a justice minister - is yet further evidence of how impotent the Stormont assembly really was.

Left in the hands of civil servants and politicians I’m convinced the comprehensive body of work produced by Sir John Gillen would have taken years to complete and implement.

Instead reforms should get under way early next year.

It is not by any means a victims’ charter. The 222 recommendations, if properly implemented, will provide the bones for a fairer, more just, modernised and fit for purpose system of justice.

But what it does do is address the very real and well documented issue of under reporting of sex crimes in Northern Ireland and the appallingly low rate of conviction.

Women and on occasions men do not report rape and sexual assault for a number of reasons, many of them very valid and understandable.

There is the fear of being blamed, the fear of being shamed, the fear of not being believed.

The myths surrounding rape and the societal attitudes around how women and young girls are expected to behave, the fear of the trial process, the fear of the perpetrator - often known to the victim - are all factors.

Rape is the only crime where the complainant will be effectively put on trial, where their previous sexual history, the clothing they were wearing, the number of drinks they had, will all be subject to aggressive cross examination.

Consent rape cases remain, in my opinion, almost impossible to prove beyond reasonable doubt under the present definition of the law, even when violence is a factor doubt can be introduced.

A defendant can still plead guilty to assault and claim the sex was consensual and all the defence have to do is produce an element of reasonable doubt.

The Gillen report proposes amending the wording of the Sexual Offences (Northern Ireland) Order 2008, to state that the failure to say or do anything when submitting to a sexual act, or not to protest or offer resistance to it, does not in itself constitute consent.

This is important in cases of domestic violence and coercion when a victim may be acting out of fear of violence or other serious threats, or if the person is overcome through the effect of alcohol or drugs.

These are crucial distinctions that will protect not only complainants but the small minority of men who may face false allegations, because removing the doubt as to what is consent or not makes the issue of rape much clearer.

I spoke at an event this week during which one woman said she is positive the person who attacked her does not think of himself as a rapist. Men who have sex with women so drunk they can barely stand do not in many cases consider themselves criminals. But they are.

And should the suggested proposals be implemented in full the definition of rape will now be so much clearer.

What Sir John Gillen has also understood and addressed is that this is not just a judicial problem, that it requires education and an attitude change.

Not just in addressing the myths that surround rape, of which there are many, but also the need for consent training and education for both young men and women at an early age.

So that they know what is a crime and what isn’t, so that they know about respectful, sexual contact and healthy relationships.

What must also be said is that I fully believe that the current reviews of the law in cases of rape and sexual assault both north and south of the border would not have happened had it not been for the outcry and public protests by women.

They made their voices heard and they were listened to. But the battle isn’t over, without a justice minister Westminster will need to implement legislative change needed to reform our archaic justice system.

That will require more momentum, more pressure, more political lobbying and there are plenty of people up for the task ahead.

Campaign group Reclaim the Night, are holding a rally this Saturday, November 24, assembling at 7pm in Buoy Park, near St Anne's Cathedral in Belfast.