People are entitled to the presumption of innocence

I had an uneasy feeling when I first read about the 25-year-old Irish woman, Ann-Marie O’Loughlin, who was charged with raping another woman in Brisbane, in Australia.

The incident which gave rise to the charges occurred in a toilet in The Caxton Hotel, a hugely popular night spot with a strong sports connection.
There was an encounter between the Edenderry-born O’Loughlin and a second woman, following which a complaint was made to the police. The evidence was that the two women had kissed for three minutes, following which the other woman – who hasn’t been named for legal reasons – claimed that she had been ‘digitally raped’ by the Irish nurse.
She stated that while she had willingly kissed O’Loughlin, she had not given permission for Ann-Marie to pull up her top and bra and touch her breast.
My first reaction was that the accusations sounded very odd. For a start, if the two women became involved in a sexual encounter in a toilet, clearly there was an element of consent; the fact that the initial physical engagement was happening, apparently between two strangers, in the environs of a ‘ladies’ emphasised the sexual intent. Of course it is possible for one woman to force herself on another if she is a lot bigger and stronger and there is no reason whatsoever to imagine that women are incapable of aggression. But in the context of the circumstances described, the account sounded less than reliable.
But who are we to know?
Ann-Marie O’Loughlin had originally been found guilty and sentenced to two and a half years in prison. The thought made me wince. Partly it was because she was Irish, but that wasn’t the only reason that it had the aura of a profoundly unjust outcome. There was, it then emerged, an issue about directions, which had been given to the jury by the initial presiding judge, to do with how it could use ‘intoxication’ when resolving the issue of mistaken belief.
It is not clear from reports whether one or both of the women were drunk at the time of the incident or to what degree. In the end that became irrelevant. On appeal, Ann-Marie O’Loughlin was granted a retrial and the other woman – who is apparently suffering from cancer – subsequently withdrew her complaint. The prosecution no longer had a case and the charges were dropped. Instead of doing time, Ann-Marie O’Loughlin is a free woman. It is likely that she will return to Ireland.
The end result is a vindication for Ann-Marie O’Loughlin – and also for anyone who felt instinctively that there was something strange and possibly even bogus about the charges. So why did I still feel very odd about it all?
Something else was bothering me. I realised that, if a man had been accused of the same rape, in the prevailing climate here in Ireland – and indeed more widely – it would be completely unacceptable for me, or anyone else, to think that he might not automatically be in the wrong.
My own initial reservations in the Brisbane case occurred because it was a woman who had been accused in a way that seemed unconvincing. I felt in my bones that, at the very least, Ann-Marie O’Loughlin believed that she had the consent of the other woman for whatever had occurred.
But if this can be true for a woman, why might it not also be the case where a man is concerned?
How did Irish people involved in counselling or assisting women who make complaints about rape, react personally when they read the original story? Did they feel – as I did – sympathy for Ann-Marie O’Loughlin in her predicament?
Was there a twinge of recognition that things cannot always be assumed to be as black and white as it is generally maintained, in cases that come to court, where accusations of rape are made? That there can indeed be shades of intent and degrees of guilt and elements of ‘mistaken belief’? That it is not always an open and shut, black and white issue?
This is not in any way to suggest that the crime of rape is less than hugely serious. Nor is it to imply that women have not been greatly abused in intimate personal relationships by men in all sorts of different ways over the centuries. They have.
The patriarchal structures of society, the crude male dominance which is an essential matter of faith for the major religions in this part of the world – Islamic, Jewish, Christian (and, within that fold, especially Roman Catholic) – and the historical treatment of women as property to be bought and sold all specifically run counter to the fundamental right of women to be treated equally in any relationship.
It is a fact that women have been used and abused and mistreated horribly. Anyone who suggests otherwise is daft.
But that does not mean that a lack of honesty or rigour about the reality of the diverse and frequently muddy ways in which sexual encounters can happen is justified.
Nor does it mean that it would be okay to cry to the heavens for vengeance if a man found guilty of rape in circumstances similar to Ann-Marie O’Loughlin were to be freed in precisely the same way on appeal.
In this area of human interaction – for understandable historical reasons – there is a terrible tendency nowadays to want to insist that everything is always cut and dried.
‘No means no’, we are told. Which is fine. A man – or a woman – steps out of the shadows and says to another woman, “I want to fuck you.” The woman says “NO” and moves quickly on. The individual who stepped out of the shadows gives chase and attacks the victim. No meant no. To chase the woman and force her to have sex is rape of the most horrible kind.
And, just to be clear about it, in a situation where people have no prior knowledge of one another, to rush without express permission to genital contact, is extremely risky and potentially leaves the instigator open to accusations of rape. In all sexual encounters we owe the other party the duty of decency, respect and – even in one off situations – love.
But two women get drunkenly excited in a toilet and one thinks it’s fine to lift the other’s bra up. She goes further and puts her hand up her skirt. In Ann-Marie O’Loughlin’s case, none of us know precisely how that happened, what was said between them and why the ‘leading’ partner was subsequently accused of having gone too far, in a way that was allegedly violent enough to merit an accusation of rape.
We don’t know what the complainant’s state of mind was before the incident. We don’t know what conflicted emotional feelings she was experiencing at the time.
We don’t know how repressed the sexual impulses she was indulging had been, whether it was the first time for her to engage in a sexual entanglement with a girl, whether she felt guilty about it, or the extent (or otherwise) to which she might have wanted afterwards to undo something she had readily entered into in the first place by accusing the other party of rape.
It is in many ways a cautionary tale, though Ann-Marie O’Loughlin is unlikely to see it like that. She was besmirched by the accusation. Her reputation, across the world – around which nowadays news travels faster than the speed of light – was torn to shreds. She always protested her innocence. The fact is that she was always entitled to that presumption. And – the reality that drunken sex is a generally bad idea aside – here’s the real lesson: the weight of history, and the fact that men are usually stronger and that many of them are more readily capable of violence notwithstanding, so is anyone else accused in a similar way...
It is a thought that should have weighed more heavily with whoever in The Sun newspaper made the decision to turn the accusations made last week against Westlife manager and X-Factor judge, Louis Walsh, into a front page story.
A complaint was made by a 24-year-old man to the Gardaí about an alleged incident in the toilet of Krystal night club in Dublin, on the night of the last Westlife concert in the O2. Right now, however, there is no reason whatsoever to believe that anything of substance lies behind the accusations.
The Gardai are duty-bound to investigate any complaint that is made to them. But they also have a responsibility to ensure that information does not leak to journalists or anyone else.
The story that allegations had been made and were being investigated can only have been confirmed by Garda sources. But the fact that an investigation is underway should not in itself be a story. Totally groundless complaints can be made out of spite, as a form of wish fulfillment or as a result of psychiatric illness. It is thus grossly unfair to drag anyone – well known like Louis Walsh or otherwise – into having to defend their reputation in the media when there is no prosecution.
Louis Walsh has dismissed the allegations as lies. Anyone who knows Louis and how careful he has always been about his private life would be inclined to take that at face value. But this much is crystal clear: it is utterly wrong that his reputation should have been placed in jeopardy by whoever in the Gardaí leaked the story in the first place.
There is only one absolute certainty in all of this: that nothing will be done to rectify or compensate for that...