25-minute read
Dermot Feenan
LLB MA LLM Barrister-at-Law FRSA
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In my article ‘Defenders of Paddy Jackson: Abuse, Avoidance, and the Elusiveness of Closure’, I examined hostile reactions to concerns about the signing of Paddy Jackson to London Irish Rugby Football Club.
Mr Jackson, who had played rugby for Ulster and Ireland, was acquitted in 2018 of rape and sexual assault at a party in his home. Communications between himself and others, some of them also accused of offences linked to the party, led to concerns about misogyny. I addressed those concerns in my initial article ‘The Belfast Rugby Rape Trial, Misogyny, and Justice in Northern Ireland’. Even though, Mr Jackson offered an apology there remains a belief that he showed no genuine remorse, that this purported apology was stage-managed by his lawyers.
In 2018, the Irish Rugby Football Union (IRFU) and Ulster Rugby terminated their contracts with Mr Jackson following widespread and substantial protest across Ireland and abroad. No club in Britain signed him in the immediate aftermath of the trial. After London Irish announced his signing in May 2019, two of the clubs’ sponsors announced that they would withdraw their sponsorship. One, drinks giant Diageo, who had sponsored the club for almost 30 years through its product Guinness, stated that the signing was no longer consistent with the company’s values. A further sponsor, Paddy Irish Whiskey, announced in June 2019 that it was reviewing its sponsorship. On 10th September 2019, London Irish announced that Mr Jackson would not be playing in the team’s friendly match against Munster – his first game back on the island of Ireland – on 13th September 2019. This followed reports that protests against Mr Jackson would be held outside the match venue.
I noted in the second article about Mr Jackson’s signing to London Irish common characteristics among those reacting to the concerns. These shared characteristics included their gender (men), politics (being on the right), and sense of entitlement to engage in abuse by trolling others online. The abuse varied, but it included, variously, misogyny, racism, Islamophobia, anti-feminism, and homophobia. Those hostile reactions stand in the way of rapprochement with those who hold opposing views. I also argued that the troubling characteristics in the reactions necessarily adhered to the signing of Mr Jackson, making the issue of the signing much more problematic for the club, Mr Jackson, and remaining sponsors of the club. The club failed to address the wider problems that gave rise to concerns about the conduct of Mr Jackson and others. All of this not only makes closure of the issues raised by Mr Jackson’s conduct unlikely but sustains concerns about misogyny.
In this article, I expand on this concern with the lack of closure and misogyny. I elaborate on the problematic aspects of the conduct of Mr Jackson and others which continue to give cause for concern. I seek to explain that conduct within the context of concerns about rugby culture and attitudes to women. I re-visit the characteristics of the Twitter reactions to explore the relationship between prejudicial attitudes towards women and others who have been historically disadvantaged, including with reference to race, religion and sexual orientation. Understanding social life also requires paying attention, where necessary, to online activity in everyday lives. In doing so, I reflect on the role of lawyers in addressing some of the contextual issues which lie beyond matters of guilt or innocence in a trial of rape and sexual assault.
Conduct of Mr Jackson and others
In my previous articles, I referred to key aspects of the conduct of Mr Jackson and others in the trial which have given rise to concern. These include the objectification of women; demeaning language towards women; the idea that women and sex are challenges to be won, with associated celebration of what is perceived to be sexual conquest; the excessive consumption of alcohol; and the apparent lack of genuine remorse by Mr Jackson. These concerns have been widely shared.
Nolene Blackwell, Dublin Rape Crisis referenced a “[l]ack of respect for women […] shown in the WhatsApp group and the fact a girl left his house in a state of distress.” When questioned about Mr Jackson in the wake of the announcement that Diageo, one of the sponsors of London Irish, had withdrawn sponsorship she also referred to “[a] lack of remorse or any indication that attitudes have changed. They’re not the attitudes of Diageo. They are not the values of an awful lot of people here.”
The concerns about the conduct of Mr Jackson and others must be understood within the context of a set of interconnecting problems.
Prevalence of, and low rate of convictions for, sexual offending
The first problem is the abysmally low rate of conviction for rape and sexual assault; offences which are widespread.
According to Police Recorded Crime in Northern Ireland, there were 3,551 recorded sexual offences (including rape) in Northern Ireland in the period June 2018 – May 2019.
Research by Dr Helen Beckett and Dr Dirk Schubotz of young people’s self-reported experiences of sexual exploitation and sexual violence in Northern Ireland found that 11 per cent of sixteen-year-olds in 2010 had experienced sexual exploitation by an adult. Females were almost six times more likely to experience such sexual exploitation than males. Almost 7 per cent of respondents had been given alcohol, solvents or drugs and then taken advantage of sexually while they were under the influence of these intoxicants. The vast majority (76 per cent) of these were experienced by females.
Beckett and Schubotz also interviewed 110 professionals from across a broad spectrum of disciplines, including social care, health, policing and justice, youth work and education. The professionals reported concerns about the frequency of young males being sexually manipulative or aggressive with female peers. This manipulation and aggression included cases of sexual activity in situations of questionable consent, rapes and other sexual assaults, sexual activity in return for drugs or alcohol and the distribution of child abuse images (often within the guise of sexting sexual images sent by mobile phone).
In their 2016 research on intimate partner violence in Northern Ireland, Dr Jessica Leigh Doyle and Professor Monica McWilliams found that almost half of all study participants – 29 of 63 (46 per cent) – reported that they had been raped by their partner, and a further two reported attempted rape.
They also found a high level of sexual violence towards women beyond rape. A total of nine participants (63; 14 per cent) reported that their partner had, for example, choked or hit them during intercourse or inserted objects into their vagina or anus.
The state of education about what is genuine consent is woeful, leading some men to believe they can insist on marital sex whenever they want it and women not to know that forced sex is rape, as the following quotation from the study by Doyle and McWilliams illustrates.
‘I woke up and he was inside [me], and I was like “get off, get off, what are you doing?” He [said] “I’m your husband, you’re my wife, I can do what I want to you”. I couldn’t breathe. It could’ve been rape and I wouldn’t have known it was rape – that’s being truthful’. (Interview, February 2016)
Professor Chris Greer, who has conducted extensive research on the press and sex-crime reporting, notes that aspects of the press in Northern Ireland undermine serious discussion of issues that might actually help to reduce victimisation. In his study of press reporting of sex crime in Northern Ireland, published in 2003, he found that the Sunday tabloids used sensationalist labels, such as ‘beast’, ‘fiend’ and ‘monster’, to describe sex offenders. This labelling gives the clear indication that offenders are somehow visually distinguishable from ‘normal’ people when, of course, they are not: they are more likely to be the unremarkable uncle, stepfather, acquaintance etc. Greer argued that a number of factors, including market pressures and the career aspirations of individual journalists in an increasingly competitive industry “all orient representations of sex crime toward the sensational and the shocking, usually at the expense of any serious discussion around issues that might actually help to reduce victimisation.” Given the significance of the press in shaping public beliefs, addressing these effects is also important.
Immediately after the Belfast rugby rape trial the Criminal Justice Board in Northern Ireland commissioned an independent review of sexual offences in Northern Ireland. The review was led by Sir John Gillen, a retired judge. His report was published in May 2019. Sir John recognised the profound professional concern about the process of the law in investigating, processing and determining serious sexual offences. He observed that for complainants, “attempting to navigate a system designed for police and professional lawyers at probably the most vulnerable point in their lives, can prove insuperable.”
The Gillen Review noted many of the typical challenges to justice for complainants. These included the “unacceptably low” rates of reporting of rape and sexual assault. Even when complainants do report to the police, the path, he wrote, “is harrowing and the attrition rate is high”. Convictions are “very low”, with the rate of conviction for rape much lower than for sexual assault. Concerns about similarly low rates of convictions in England and Wales led the Director of Public Prosecutions to announce on 12th September 2019 that the independent Crown Prosecution Service (CPS) watchdog – Her Majesty’s Crown Prosecution Service Inspectorate – will hold a review of rape charging decisions to increase accountability and reassure victims of sexual offences. The CPS will also introduce, among other measures: mandatory training programme for specialist rape prosecutors; a project to understand changing sexual behaviours and associated myths and stereotypes; and new pre-trial therapy guidance for complainants.
Concern about such issues multiplied during the trial of Jackson and others as a result of three key phenomena. First, the emergence from the 1990s of a series of criminal cases and government enquiries establishing that thousands of children had been abused over decades, with state and non-state institutions not merely ineffectual but at times complicit in the abuse. This concern extended through the 2014-2016 Northern Ireland Historical Institutional Abuse Inquiry, the largest inquiry into historical institutional sexual and physical abuse of children in UK legal history. Second, the surge in revelations from 2013 of prolific sexual offending by Jimmy Savile – which, again, revealed the unwillingness of the establishment to act on information about Savile’s offending. Thirdly, the #MeToo movement which took off largely on social media in October 2017 after allegations of rape and sexual assault by film producer Harvey Weinstein; with women individually adding their voices to scores of others; revealing epidemic levels of harassment, violence, and everyday sexism. Again, many individuals and organisations covered up or turned a blind eye to the allegations.
There have undoubtedly been other phenomena that contributed to the concerns associated with the Belfast rugby rape trial, such as the slow accumulation over years of revelations about sexual assaults and harassment of women and girls; increasing challenges to institutional authority; and growing confidence among women about their right to autonomy, knowing what is and isn’t consent, and feeling solidarity with other women that they are not alone. These three key phenomena are important, however, for understanding the nature and extent of reaction to the conduct of Mr Jackson and others.
Allied to the challenges outlined above is the culture of rugby and accompanying misogynistic attitudes to women.
A context of rugby culture and attitudes to women
The conduct of Mr Jackson and others are explicable in part with reference to aspects of the culture of rugby.
Masculinity and misogyny
The behaviour of Jackson and his teammates, plus those who have condoned or minimised the behaviour, must be understood as involving intersecting problems. One is the culture of rugby, which is, as the late Steven Schacht observed in a paper ‘Misogyny on and off the “Pitch”: The Gendered World of Male Rugby Players’, historically entrenched in particular norms of masculinity. While rugby and many other sports historically closed off to women are now admitting and indeed in some cases supporting women, that legacy remains.
In his ethnographic study of a rugby club, anonymised as ‘Ballycross’, in Northern Ireland in 2015/2016, Thomas Kavanagh states: “Socially, Ballycross is a place where fear of appearing ‘politically incorrect’ can be shelved; where sectarian, hypermasculine, homophobic and racist opinions can be aired or explored under the guise of banter” (p. 342). Kavanagh refers elsewhere to misogyny. He refers to two new players who became “the ‘performers’ of the more problematic misogynistic and homophobic masculine discourses” within the club. Kavanagh recounts a conversation on the team bus in which a teammate asks Andy about his experience with a woman in a pub recently:
““Oi, what happened with that chick the other night.” “What chick?” “You know, the one you were talking to at the bar.” “Oh, yeah, the little Southern girl. She’s tidy, eh? Na, second night in a row she asked me back to hers and all I get is a finger bang.” Chris holds up two fingers like a gun. “You gonna keep trying? I’ll give it a crack.” “I dunno, eh? Like, she’s fit, but do I wanna waste like a month trying?” I know, you see that girl I pulled last night? Easily an eight, maybe an eight and a half. And we’re fooling around and she says, ‘I’m a virgin.’ And I’m like, ‘Oh fuck. Do you wanna not be?’” “Hahaha.” A few laughs are genuine, a few faces slightly strained. “But I get nowhere. So, do I put in the graft, and it’ll be a lotta hard graft, or do I get my dick sucked by a three tonight?” (p. 337)
Kavanagh notes that the majority of men at Ballycross “drink, socialise and pick up girls together” (p. 343) and they were referred to “simply as sexual objects to be conquered” (p. 344). Schacht refers to the rugby party as the space “where masculinity is most fully celebrated and femininity most forcefully and relationally put in a subordinate position.”
Consumption of large quantities of alcohol at these social gatherings is also part of the culture. Kavanagh notes “Getting drunk was the goal for some, proving themselves through handling large quantities of alcohol the aim for others” (p. 350). Drinking games included ‘Fat fuck’, which, Kavanagh says, “is crude and unnecessarily demeans women” (p. 354), and ‘Never have I ever’, which reinforces misogyny. Sexual conquests are also promoted through the games.
This formation of masculinity through the subordination of women is evidenced elsewhere in rugby, as illustrated in chants or songs. In April 2017, it was reported that chants were printed for rugby players at the University of the West of England (a former polytechnic; ‘poly’) prior to a match with the University of Bristol. Words included: “I’d rather be a poly than a cunt”, and “Drink, drink, wherever you may be, we are the boys of U. W. E. and we don’t give a shit and we don’t give a fuck, cos we’re all going home with a Bristol slut”.
In October 2014, The Guardian reported that the London School of Economics had disbanded a men’s rugby club after members distributed a leaflet that contained homophobic and misogynist slurs. The leaflets referred to women as “mingers”, “trollops” and “slags”, and described women who play sport as “beast-like”. The club passed off the comments as “banter”.
While some of these examples are from England, it should be remembered that there are significant similarities in rugby culture between England and Northern Ireland (even if there are some particular differences).
In 2015, the University of Oxford introduced mandatory anti-misogyny training for any rugby player wishing to participate in one of the university’s competitions. The person behind the requirement was Dave Llewellyn, 27, an Oxford graduate and sportsman who said he got fed up with the levels of boorishness in the locker room. He said many of the jokes and songs which went along with rugby promoted sexist attitudes, ended up making women feel uncomfortable and could increase the risk of sexual violence.
In March 2018, a female rugby referee in Northern Ireland was subjected at a match to what was described in a complaint report as “sustained, vile, sexist abuse” from four male spectators. They yelled at Derry player and referee Grainne Crabtree, using the words “slag” and “ho”. She was told by the men that she was a “fucking joke” and told: “take your shorts off we get a better look at your arse”. Ms Crabtree stated that the abuse made her feel “anxious and unsettled”.
Following submission of her initial report, Ulster Rugby issued a £2,000 suspended fine against the club. Ms Crabtree received no apology from the club and the men were not held to account. The Ulster Society of Rugby Football Referees consequently refused to officiate at the club’s matches. It was only after a further report was submitted that Ulster Rugby increased the fine to £5,000 (with £2,000 to be returned to the club if there were no further incidents within two years). None of the men were identified or disciplined. Ulster Rugby also initiated a review on educating referees on how to deal with abuse. The club announced that a “plan is now in place at the club to ensure that [it] remains a safe place for spectators, players and officials”. At no point did Ulster Rugby or the club recognise the distinctive gendered aspects of the abuse and the need to specifically address this.
In October 2018, six members of the men’s rugby club at University College London were banned from university bars and ordered to attend sexual harassment training after they sang sexist songs, which resulted in female students crying. The male players, who boarded a bus shared with the women’s hockey team, were described as “very intimidating” by one of the female students. “They came on and were physically trying to move us. Boys were picking girls up. I had one of them sitting on me so I couldn’t move. They were shouting, chanting.” Another said: “They were leaning across girls. It was very intrusive and very invasive. Then they started singing and chanting. It was all very aggressive.”
In May 2018, The Telegraph reported that a former female employee at the home of England Rugby said that she was “inappropriately patted” on two occasions by a senior staff member but “felt powerless to complain”. The Rugby Football Union (RFU) head of Human Resources, Lucinda Pullinger, called for members to change their behaviour and cease using inappropriate language when talking to the RFU’s female workforce. She left the organisation to become Global Head of Human Resources for the Instant Group. The newspaper also reported that female staff said they felt uncomfortable at rugby dinners and council meetings and events.
In view of the foregoing concerns, the signing of Mr Jackson by London Irish and a number of their subsequent statements were problematic. Brian Facer, Chief Executive, London Irish, stated upon announcement of the signing: “We’ll judge the man when he’s here and the way he conducts himself.” He added: “But I’m fairly sure we’ll be comfortable with who he’ll be.” In the week before London Irish’s scheduled match in Ireland, the team’s coach, Declan Kidney, stated: “Paddy Jackson is a very good player. There was obviously things that happened in the past, but we just look forward.” When questioned about concerns on the incident giving rise to the trial: “When you say it’s a concern, everyone has to learn from their mistakes of the past, you know?” He added: “We respect the fact that everyone is entitled to their opinion, but the past is the past. Life moves on and he’s done very well since he’s arrived here. He’s a good player and we’re delighted to have him here for that reason.” Mr Kidney was a coach for Ireland, working with Mr Jackson when he played for the country. He was also involved in Mr Jackson’s signing. The views of senior members of London Irish avoid the evidence of Jackson’s conduct as revealed in the trial and his previous racially offensive conduct. Mr Kidney’s statement that “the past is the past” failed to recognise that many remain concerned about Mr Jackson’s conduct and could be seen as indicative of a culture that has too often swept abuses under the carpet. Many might reasonably ask whether Mr Jackson has learned any lesson(s), and if so what.
The particular challenges for masculinity in Northern Ireland
While there are similarities in rugby culture between Northern Ireland and elsewhere in formations of masculinity and misogyny, there are a number of aspects of social life in Northern Ireland which give particular dimensions to male rugby players’ attitudes to women. Chief among these is the traditional male-dominated culture of Ireland (north and south of the border). Political violence centred on the north, especially during the period of conflict euphemistically called ‘The Troubles’ (1969-late 1990s), has also shaped masculinity in distinctive ways. The dominance of narrowly-drawn religious views (whether through the conservatism of Roman Catholicism through to the biblical fundamentalism of Free Presbyterianism) has also shaped a restricted masculinity.
Harland’s PhD study of inner city boys aged 14-16 years in Belfast in the late 1990s – young people who had lived through the final stages of the conflict – found that they held to narrow ideas of masculinity, believing that men should be powerful, strong, brave, intelligent, healthy, sexy, mature, and in control of every aspect of their lives. Similar results were reported in Harland and McCready’s five-year longitudinal study of 378 adolescent boys in post-primary school in Northern Ireland. Amongst boys aged 11–13, the majority believed that men should be dominant, aggressive, a good fighter, competitive, powerful, heterosexual, and able to stand up for themselves. Harland and Dr Fidelma Ashe, who has written extensively on masculinity in Northern Ireland, refer to the hyper-masculinity apparent among males affected by the long period of violent ethno-nationalism that characterised the conflict.
It is not surprising that in Northern Ireland and other countries where masculinities have recently been shaped by violent conflict that sexual activity would not remain unaffected. Dr Lloyd Vogelman’s research in apartheid Africa found that rape there formed as a component of the “war culture” in the country at that time. This culture involved a set of meanings and practices that accepted violence as a legitimate solution to conflict. Men raped primarily to bolster their masculine pride and feed their desire for power. This behaviour was largely attributed to the rapist’s need to live up to society’s ideal of masculinity, the need to compensate for feelings of powerlessness, alienation in the workplace, political and racial oppression, the male’s socialized belief in rape myths, the need to compensate for sexual and masculine inadequacy, and the male’s strong association of sex with violence. Helen Moffett argued that in post-apartheid South Africa, contemporary sexual violence is fuelled by justificatory narratives that are rooted in apartheid practices that legitimated violence by the dominant group against the disempowered.
Social attitudes to gender and sexuality in Northern Ireland reflect these phenomena, with ideas about masculinity intimately tied up with views about women, gender identity, and sexual difference.
The racial homogeneity of Northern Ireland, which was exacerbated by the fact that during the long period of conflict few immigrants moved to Northern Ireland, has also added into this mix distinctive racisms. The racist stereotype of the violent black male evident in Liam Neeson’s disclosure in February 2019 that while growing up in Northern Ireland he went out to kill any “black bastard” after learning that a friend had been raped by a black man is symptomatic of this culture. The lack of awareness of racial privilege and racist conduct is evident also in Mr Jackson’s ‘blackface’ incident, his failure to publicly apologise for that conduct, the apparent failure of Ulster Rugby to discipline Mr Jackson, and the widespread view among some of his northern Irish supporters that the conduct warrants no apology. The convergence of this and other troubling attitudes towards women, gay men and racial minorities are evident among some of those who support Mr Jackson, as noted in my article ‘Defenders of Paddy Jackson: Abuse, Avoidance, and the Elusiveness of Closure‘; a theme echoed by Dr Karen Lumsden and Emily Turner in their edited collection Online Othering: Exploring Digital Violence and Discrimination on the Web.
Rugby in Northern Ireland has also traditionally been played in state-maintained schools rather than in the voluntary sector schools largely run by Catholic orders. The former draw their pupils typically from the Protestant population, and the better-resourced, more prestigious schools tend to be grammar schools such as Methodist College, Belfast, which Paddy Jackson attended. These grammar schools tend also to draw their pupils from predominantly middle-class backgrounds. Thrown into the mix of gender formation are issues of religion and class. The privileges associated with the middle class and Protestantism are remain evident in relationships with establishment institutions such as the BBC. As Robbie Best notes astutely in a blog ‘The Entitled Men of Northern Ireland’, BBC Northern Ireland’s broadcast of the final of the Northern Ireland rugby Schools Cup each year, feeds into the psyche – and by implication the sense of entitlement – of young men. The class background and assumed sense of entitlement of the defendants in the Belfast rugby rape trial was not lost on some commentators in Northern Ireland.
It is helpful that the IRFU undertook to address problematic aspects of masculinity following the trial. The IRFU stated:
“following the trial the IRFU gave a commitment to conduct an in-depth review of existing structures and educational programmes.
We identified additional programmes that could be added to the education curriculum, particularly in the areas of healthy behaviours and relationships and the decision-making awareness relating to these.
We did recognise it was incumbent upon us to ensure our programmes matched the ever-changing social environment.”
The IRFU, along with Rugby Players Ireland, engaged the services of an external consultancy, Gleeson Mills, which specialise in the prevention of harmful sexual behaviour, to contribute to player education. This involved an “interactive two-session workshop developed specifically for elite sporting professionals to discuss and promote healthy intimate relationships while looking at risks associated with situations they might find themselves in.”
Social (online) life
The role of social media surrounding the trial of Mr Jackson was significant. Platforms such as Twitter and Facebook extended the scope of press reporting. It also led to an unprecedented level of polarised communication, broadly divided between those who dismissed the allegations and those who believed the allegations. Even after the verdict, social media remained awash with divided opinion.
The ease of access and anonymity offered by social media, combined with the trigger-happy, febrile atmosphere sometimes engendered in disputes, enabled abusive attacks on the defendants and the complainant. Indeed, an ‘alleged troll’ identifying the complainant in contravention, under the Sexual Offences (Amendment) Act 1992, of the life-long ban on naming complainants in rape trials. The man who did so was convicted and sentenced.
The role of social media was one of issues addressed in the Gillen Review. The Review focused on the relevance of social media to procedure. It did not, necessarily, address the broader context within which social behaviour generally is affected by and affects social media. Part of the broader context which is highly relevant to the conduct of Mr Jackson and others is how digital technology and social media platforms have enabled the creation, distribution and consumption of pornography, and associated objectification and demeaning of women.
This is accelerated by social media companies’ manipulation of the link between our need for social validation and the stimulation of dopamine in reward-motivated behaviour. The sexually demeaning language in the JACOME WhatsApp group and another social media group ‘Juicers’ of which the players were members was, in part, a reflection of this effect. The communication suggested men who had become their own porn stars, enthralled by the language of their performances: ‘legends’, ‘pumped her’ etc.
Professor Nicola Gavey, a clinical psychologist who has researched and written about rape, refers to the “narcissistic performative nature” of sexual violence and rape which are now filmed, distributed or referred to on social media. “Different types of behaviour become possible,” she says, with these communication technologies. She believes there is a growing connection between sexual violence and a wider cultural tolerance of misogyny. As Dr Karen Lumsden and Emily Turner show in Online Othering, online communication has also enabled a surge in sexism and misogyny; including what has become referred to ‘gendertrolling’.
Perhaps one of the reasons that many young women have reacted so strongly to the messages sent by Jackson and others lies also in their experience of social media. In a study published in 2017 of pupils aged 11 to 16 years old in the United Kingdom, 29 per cent of the 2,745 participants reported being bullied. Only 1 per cent of the study’s participants said that they had been victims purely of online bullying. The researchers concluded that cyberbullying creates few new victims but is mainly a new tool to harm victims already bullied by traditional means. Young people will be only too aware of the harmful environment through which they grow, which may be less obvious to adults who entered adulthood long after the arrival of social media. There are generationally different experience during formative years of the scale and effect of modern online abuse.
The rise in such abuse online had already given rise to significant concerns, with the government tasking the Law Commission of England and Wales to conduct a scoping exercise on the adequacy of the law’s response to abusive and offensive online communications. The Commission noted in 2018 (and there is little reason to doubt that their conclusion should not resonate in Northern Ireland:
“What is clear from the studies, and from the many qualitative reports we have received, is that online abuse is a widespread phenomenon in England and Wales. The internet facilitates the dissemination of abusive and offensive communications, and the targeting of victims, in many ways that would not be possible, or at least as easy, in relation to “offline” communications.” (para. 2.154)
The Law Commission noted that while it is difficult to accurately quantify the scale of abusive and offensive communication online, “some groups in society have been found to be the target of disproportionate amounts” of such communications, including women, ethnic minorities and LGBTQ individuals.
These aspects of broader social context within which to understand the Belfast rugby rape trial have been far less explored generally but may also partly explain why so many girls and women – who disproportionately experience the direct adverse effects of this behaviour – reacted so vehemently against Jackson and others. As the trial reached its end and afterwards, hundreds, perhaps thousands, of people took to social media with the hashtag #IBelieveHer – illustrating a new development in how justice is perceived and addressed. Legal scholars and practitioners generally have been far less attuned to such developments in online life.
Implications for legal representation
Shortly after the trial, the law firm representing Mr Jackson stated that it had issued a Notice of Intention to sue for defamation against an Irish senator who used Twitter to praise the complainant and question Mr Jackson’s innocence. The firm added: “We will not hesitate to repeat similar legal action against anyone, who deliberately or otherwise, sees fit to attack our client. We are examining carefully every item of social media commentary which seeks to challenge the integrity of the jury’s full endorsement of our client’s innocence.”
While technically this option is legally open, it seemed to misjudge both the context against which many assessed the conduct of Mr Jackson and others and this unfolding phenomenon on social media – with proliferating anonymous accounts which can be turned on and off instantly, and where communications spread as through a hive.
Joe McVeigh, solicitor for Mr Jackson, said of protestors that it was “not for them to tell the jury they are wrong. It’s not for people on social media to tell the 11 members of the jury that they came to the wrong decision.” He referred to other trials of people who had been acquitted of rape and asked “[w]hat is it about this trial that is having them react in such an emotional way on social media?” The comments show a lack of appreciation not only of how social media works, but also of the entirely reasonable position that someone may disagree with the verdict of a court – which should be obvious to any northern Irish lawyer familiar with numerous miscarriages of justice. Mr McVeigh’s formulation: “having them react in such an emotional way” contains the implication of loss of control and reason which has been used historically to subordinate women. In this historical formulation, women are framed as emotional in opposition to male reason – and not to be taken seriously. Mr McVeigh’s instruction that it was not for anyone to “tell” a jury exacerbates this narrative.
McVeigh then spoke of a “common sense” verdict. He stated that his client had been consistent in his denials, whereas: “[c]onsistency was never a feature of the complainant.” The attack on the complainant and the counterposing of ‘common sense’ – a trope typically used to shore up the status quo – will likely have aggravated matters further.
The tone of the delivery, too, cannot have helped. Susan McKay, a respected Northern Irish journalist, referred to how McVeigh “denounced angrily the ‘vile commentary on social media’ that had ‘polluted’ the process” (emphasis added). In an interview for a television documentary, she also referred to Mr McVeigh’s statement as “quite belligerent”.
That the threats came largely from men, on behalf of men accused (and just acquitted) of sexual offences against women, and against protestors (who in fact were largely girls and women) probably exacerbated the misjudgement and very likely prompted the wave of people who then adopted the hashtag #SoSueMePaddy. Much of the ongoing controversy surrounding Jackson, including in his signing to London Irish and the decision not to include him on the team in their friendly against Munster – his first game back on the island of Ireland – has continued to be played out on social media, with some still using the hashtag #IBelieveHer. The continuing antipathy towards Mr Jackson cannot have been helped by Mr McVeigh.
These were not the only statements by male lawyers acting for the defendants which rightly caused controversy. One question posed by a defence barrister during his summing up was indicative of the type of damaging gendered and classed stereotypes that afflict rape trials. The barrister, Frank O’Donoghue QC, said: “Why didn’t she scream? … There were a lot of middle-class girls downstairs – they weren’t going to tolerate a rape or anything like that.”
The statement was not only classist, but in being said by a male lawyer it simply reinforced the widespread and then-growing concern that justice was not being done in the case. A variety of reasons will affect whether someone who experiences sexual assault or rape informs another person. In fact, research by Bennett and Schubotz on sexual violence in Northern Ireland found that young people from well-off and average well-off backgrounds were much more likely to say that they did not tell this to anyone than respondents from not well-off backgrounds (71 per cent, 77 per cent and 30 per cent, respectively). Moreover, a rhetorical question about a complainant not screaming conveys the well-known myth in rape and sexual assault cases that instantaneous fight is the only conceivably correct response to the rape or sexual assault, the absence of which puts the complainant’s case into question.
While many girls and women appeared to treat availability of social media as a #MeToo or solidarity opportunity, the male lawyers not only treated social media as a threat but in their criticisms of, and attempts to silence, users of social media they may have been seen as engaging in double standards given that Jackson and others had used social media to demean the complainant. Treating social media as a risk to law and defendants rather than as also an empowering technology for women can also be seen in the post-trial talk by Brendan Kelly QC, senior counsel for Mr Jackson. The talk, titled The Dangers of Social Media during a Criminal Trial, noted in its abstract how social media played its own part in the presentation of the Crown case but added that “it was arguably the impact of social media outside the court room that would be the cause of much controversy and concern, which has led to the ongoing review headed up by Sir John Gillen.” The abstract proceeded to state that Mr Kelly would address “the risks and pitfalls associated with the emerging phenomenon of social media on the modern trial process, and how trials are reported.” Mr Kelly wrongly implies that it was problematic use of social media which gave rise to the Gillen review.
There are a number of lessons from the trial regarding social media which might now inform legal representation, including the need for careful assessment of whether or not interventions are likely to harm or help a client in the immediate and long-term.
Conclusion
Hopefully, the communication between Jackson and his former teammates and friends will soon be viewed ruefully as a product of a very different age from which we have learned and moved on. There have been some positive developments since the trial, including the Gillen Review and the introduction by the IRFU of training on relationships and preventing harmful sexual behaviour. On 13 May 2019, the Department of Justice and the Department of Health in Northern Ireland jointly published a 2019/20 action plan under the Stopping Domestic and Sexual Violence and Abuse Strategy (2016). This included continuation of some existing programmes, including the Crown Court Observers’ study, to gather information on victims’ and witnesses’ experience of the court system in sexual offence cases. New additions included the development of an action plan to progress the agreed recommendations of the Gillen report into the law and procedures in serious sexual offences and initiate work on their implementation. The Belfast Area Domestic Violence Partnership rebranded to include sexual violence and abuse; becoming the Belfast Area Domestic & Sexual Violence and Abuse Partnership. The Partnership brings together agencies, organisations, groups and individuals who share a common interest and purpose in improving services and support for all victims of domestic and sexual violence and abuse. And, in August 2019, Raise Your Voice, was launched. It is an organisation that aims to tackle sexual harassment and sexual violence in Northern Ireland through working in the community, increasing public awareness, educating organisations on best practice and lobbying for legislative reform.
Many lessons still need to be learned before closure of concerns surrounding Mr Jackson might be reached. London Irish misjudged in signing Mr Jackson and in its subsequent announcements. There remain considerable numbers of people engaging in avoidance of the issues, including through, as shown in my article ‘Defenders of Paddy Jackson: Abuse, Avoidance, and the Elusiveness of Closure’: whataboutery, minimisation, distortion, and selective narrowing of concern(s). The problematic aspects of masculinity in rugby, which draw from the troubled gender history of Northern Ireland – a country seeped in hyper-masculinity and narrowly drawn ideas of being male – have combined with more recent phenomena such as the proliferation of online pornography and gendertrolling to reproduce misogyny. The problems of a legal system structured and practiced to subordinate women were also central to concerns in the trial of Mr Jackson and others. The media have also contributed to problems for women seeking justice. Education, law, journalism, and sport are key sectors where improvements still need to be made.
Until Mr Jackson clearly and genuinely demonstrates that he recognises the valid, extensive and ongoing concerns of many people with his conduct and the context from which it emerges, there will likely be little prospect that protest about his return to professional rugby will disappear. And until he demonstrates such insight, I will continue to boycott London Irish and its sponsors. Mr Jackson’s conduct and the behaviour of many of his supporters has combined to create such toxicity on a matter of public interest that it is almost inconceivable that he should be admitted back into any representative capacity playing for Ulster or Ireland. And, whether Mr Jackson plays for London Irish or not, the concerns surrounding his trial are not only about Mr Jackson and others involved in the Belfast rugby rape trial: they go much deeper and must still be addressed.
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Acknowledgement
Thanks to Karen Bensusan for comments on a draft of this article.
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@ Dermot Feenan 2019