During my recent criminal law readings, I came across a harrowing truth regarding sexual assault and the way in which it is handled by the judiciary. This struck me deeply and brought to my attention to an alarming need for judicial diversity, specifically in cases regarding sexual violence, given that according to the statistics, women are simultaneously under-represented in the judiciary and the more common victims of sexual assault. This issue is magnified by the disconcerting increase in incidents of sexual offences in Northern Ireland in the past year. Following the recent story of the blatant sexual assault on the London underground, which has undoubtedly disturbed women everywhere, I felt that this striking discussion could not go unexplored.
During my readings of Herring’s criminal law textbook, I learned that if a defendant, ‘wrongly but reasonably’ believed the victim had consented, he cannot be found to have committed the offence of rape. However, the victim has in fact suffered rape as, regardless of the belief of the defendant, she did not give her consent.
This, to me, is nothing short of unjust.
The victim has not consented and so has suffered a serious harm for which she will not receive any sort of compensation merely because of the belief of the defendant. Given that less than 10% of alleged rape cases ended in prosecution over the last year in Northern Ireland, there is clearly a dire need for development in this area. This also feeds into an argument common in criminal law which questions how mens rea or ‘guilty mind’ can truly be proven. How can it be proven that the defendant’s belief that he had consent was indeed genuine? Furthermore, it is arguable that there may be a risk that a male-dominated judiciary may side with the defendant, given that in the past, they have labelled victims partially responsible for their own sexual assault due to, for example, excessive consumption of alcohol. These opinions should arguably not be given the valuable platform of the judiciary, and this inevitably raises the question of whether a judiciary consisting almost entirely of men may impact how rape cases are dealt with, and whether justice can be properly served.
During 2021/22, 96% of sexual violence suspects in Northern Ireland were recorded as male. Taking this into account, it seems inappropriate and unjust that cases of sexual assault are brought before a predominately male judiciary. This proposes an argument for judicial reform, which would ideally include female judges being brought in for cases dealing with offences such as sexual assault and domestic violence. Following the retirement of Lady Black, Lady Arden, and Lady Hale in 2022, there are currently only 2 female judges sitting in the UK Supreme Court. In fact, at only 8%, the UK has the joint worst representation of female justices (tied with Pakistan). Although there may be an argument that female justices could create a risk for bias, as they may sympathise with the assault victims, the correct judicial scrutiny would prevent this and ensure that their judgement will uphold the current standard and that justice is properly achieved. Also, this potential bias is no different than the possible risk of a male-dominated judiciary siding with the defendants, as mentioned above, which is arguably even more harmful.
Between April 2022 and March 2023, approximately 4232 sexual offences were reported in Northern Ireland. This is an increase of almost 200 offences from the year before, and highlights the desperate need for reform on this topic. Specifically, in the last 5 years, one in every ten females (11% of the female population in Northern Ireland) in Northern Ireland has experienced sexual violence of some sort. In comparison, only one in fifty males (2% of the male population in Northern Ireland) have experienced this violence throughout the same time period. Although this article is in no way aiming to overlook the sexual assault of men, the statistics make it evident that this issue is much more serious for women and encourage that this should be reflected in the judiciary. The alarming difference between the number of sexual assaults suffered by men and women is so significant that it seems unfair that the judiciary is managed by the minority and often, the offending sex. Evidently, change is needed.
Awareness surrounding sexual violence has been raised more than ever since the foundation of the global Me Too movement in 2017, which empowered women worldwide to speak up about the assault and harassment that they have suffered. Additionally, there has recently been an increased effort in educating teenagers and young adults on the meaning and importance of consent. These efforts signify a step in the right direction, however focus must now be placed on implementing greater judicial diversity. The statistics above demonstrate the severity of this issue in Northern Ireland and the indisputable need for development. New Zealand, for example, boasts a 50% representation of female justices, and with this equal divide of male and female justices, justice is certainly more likely to prevail. A diverse judiciary is more likely to deliver a balanced judgement and would mean that victims can, with much more certainty, expect that their outcome has been reached appropriately. Although the publishing of the Judicial Diversity and Inclusion Strategy in 2020 shows that we are heading in the right direction, we must now continue to take further steps to improve our female representation within the judiciary in order to ensure that sexual assault victims achieve the justice they deserve.
If you have been affected by any of the topics featured in this article, please do not hesitate to contact the 24 hour Domestic and Sexual Abuse Helpline at 0808 802 1414.