Challenging the role of good character evidence in rape trials: Monsters,myths and mitigation

Abstract

This paper explores rape reform in the context of the 2019 Gillen Review in Northern Ireland. While the challenges presented by rape myths featured heavily in the review, the relationship between rape myths and character evidence was not considered. In addressing this gap, this paper argues that the admission of good character evidence on behalf of the accused contributes to a hierarchy of rape, with violent rape by ‘monsters’ at the top and ‘mistakes’ by ‘good guys’ at the bottom. In doing so, the paper furthers important conversations on character evidence in scholarship on evidence and proof, as well as the critical feminist literature on rape. Further to this, in considering reform options the paper makes a practical contribution by arguing that, while reform to the admission of good character evidence during trial should be treated with caution, such evidence should be formally removed as a mitigating factor during sentencing.

Introduction

In Northern Ireland, the acquittal of the four defendants in the 2018 high-profile ‘Rugby Rape’ trial prompted an independent review into the law and procedure in prosecuting serious sexual offences led by The Right Honourable Sir John Gillen (the ‘Gillen Review’) (Gillen, 2019; Killean et al., 2021). Although concerns have long been raised over the criminal justice system's treatment of rape in Northern Ireland, the attention brought by the ‘Rugby Rape’ trial provided the necessary public and political momentum to critically reflect on the current system (McKay, 2018). The review covered a range of issues, from public access to trials to measures complementing the criminal justice system, and resulted in over 255 recommendations. Within this context, the challenges presented by rape myths featured prominently in the review (Gillen, 2019: chapters 6, 8, 11 and 16). Rape myths refer to false and prejudicial beliefs about rape and have been the focus of much academic and policy debate (see e.g. Leverick, 2020; Waiton, 2023). In this regard, the literature has drawn attention to the existence of broader stereotypes and cultural paradigms around what constitutes ‘real’ rape and a ‘real’ rapist. According to these paradigms, a ‘real’ rape involves a young virginal victim who is violently attacked at night by a stranger; she resists but is overpowered and sustains multiple injuries (Estrich, 1987). A ‘real’ rapist is often constructed as someone who has no previous acquaintance with the victim, an ‘other’, and at its most extreme a ‘monster’ (O’Hara, 2012), thus far removed from ‘the man next door’ (Temkin et al., 2018: 216). Linked to this, some studies have pointed to a reluctance of juries to convict due to the severe consequences associated with a guilty verdict, in terms of the sentence imposed and labelling attached to the offender, particularly in the case of young defendants (see Carline et al., 2020; George and Ferguson, 2021; Willmott et al., 2021). ¹

Research, however, has found these paradigms to be at odds with the reality of rape, where the parties are often known to one another and the rape takes place in a private location, with physical force only one of many methods that may be used by perpetrators. ² While mock jury studies have shown that participants are more willing to accept that rape can take a variety of forms (Ellison and Munro, 2013), and societal conversations are becoming more nuanced in this regard (see e.g. Fileborn and Loney-Howes, 2019), allegations of rape that sit outside the ‘real’ rape scenario involve layers of complexity that continue to complicate determinations of guilt (Ellison and Munro, 2013: 308–314). While the complexity and challenges of rape myths have often been tied to debates on the removal of juries in rape and sexual offence trials (see e.g. House of Commons Hansard, 2018), the Gillen Review (2019: 215–216 and 562) opted to retain jury trials and combat myths via measures such as jury education and written judicial directions. However, missing from this discussion was any consideration of the relationship between rape myths and character evidence in criminal trials. This paper addresses this gap by considering the extent to which the admission of good character evidence on behalf of the accused reinforces problematic assumptions around who can be labelled a rapist and thus juror (un)willingness to convict. In particular, this paper argues that the way good character evidence manifests in the rape trial sustains, perpetuates and legitimises a hierarchy of rape, rapists and punishment, with rape by ‘monsters’ at the top and ‘mistakes’ by ‘good guys’ at the bottom.

Good character evidence refers to evidence of the accused's good ‘general reputation’ in order to show ‘the tendency and disposition of the man's mind towards committing or abstaining from committing the class of crime with which he stands charged’. ³ It has been suggested that such evidence, and the judicial directions provided to the jury in respect of a defendant's good character, address the initial prejudice faced by the defendant by virtue of being on trial, thus providing an ‘important safeguard’ ⁴ against miscarriages of justice (Glover, 2020; Ross, 2004). However, in the context of rape and sexual violence, where it is often ‘a pure question of credibility’ (Gillen, 2019: 25), it has been suggested that the high status and class of some defendants can afford them ‘credibility excess’ (MacKenzie, 2022: 792), while complainants suffer a ‘credibility deficit’ (Tilton, 2022: 409) as a result of the long-standing suspicion of female sexuality. Questions of character thus bring the adversarial nature of the criminal trial to the fore and reflect what Tilly (2008: 33) has described as the ‘double game’ of credit and blame. While character and behaviour evidence, in the form of rules governing the admissibility of bad character evidence relating to the accused and the complainant's sexual history, have been the subject of much academic and policy inquiry (see Conaghan and Russell, 2023; Home Office, 1998; Law Commission, 2001; Levanon, 2019; McGlynn, 2018), the role of evidence relating to the good character of the accused has received considerably less attention. Further to this, good character evidence also features as a mitigating factor at the point of sentencing, an area that, while understudied (see Belton and Dhami, 2024; Jacobson and Hough, 2007), has been subject to increasing scrutiny at both the local (Rosato and McLaughlin, 2025) and international level (Queensland Advisory Council, 2024: 271–303).

The article thus makes three significant contributions at the level of theory and praxis. First, in illuminating the relationship between good character evidence and rape myths, the paper contributes to the analysis of what has been described as one of the ‘most disorganised and confusing areas of English Law’ (Murphy, 1998: 71). Within this context, it extends the critical feminist literature on the laws complicity in sustaining a criminal justice system that acts as a source of harm rather than redress for many survivors of sexual violence (see e.g. Russell, 2016). Second, the paper deepens the analysis of good character evidence by exploring how it manifests both pre- and post-conviction, the latter being a particularly opaque area of the law. Third, in considering options for reform the paper makes a practical contribution by arguing that any reform to the admission of character evidence during trial proceedings should be treated with caution, due to the potential impact on both the complainant and the defendant, but that good character evidence relating to the accused should be formally removed, via legislation, as a mitigating factor during sentencing.

The discussion in this paper is timely and important in light of the ongoing legislative and practice-based reforms occurring in Northern Ireland, as well as those in comparative jurisdictions (see e.g. Law Commission, 2024; Queensland Advisory Council, 2024; Scottish Sentencing Council, 2024). Indeed, the paper can be situated within broader conversations on criminal justice responses to sexual violence that have been occurring in the context of new governmental strategies to tackle violence against women and girls, such as the development of Northern Ireland's first Ending Violence Against Women and Girls Strategic Framework (Northern Ireland Executive, 2024). While the framework is primarily aimed at prevention, part of its wider vision is ‘[A] justice system which has the confidence of victims, survivors, and the public’; this involves ‘considering specific measures in the field of criminal legislation and sentencing to enhance the confidence of victims, survivors, and the general public in the justice system’ (Northern Ireland Executive, 2024: 36–38). The paper provides an important opportunity to consider the role of good character evidence within these wider conversations, thus advancing the policy agenda and potentially improving the way complainants’ experience the criminal justice system.

The article will proceed as follows. First, it introduces the socio-legal context of Northern Ireland and the Gillen Review. Second, it provides an overview of the literature on dominant myths and stereotypes, specifically the ‘monster myth’. Third, it moves to consider the admission of good character evidence relating to the accused during the trial and sentencing process, illustrating how the use of such evidence ‘scaffolds’ (Gavey, 2015) problematic attitudes about who can be labelled a rapist. Fourth, it examines options for reform in this area highlighting some of the key tensions that arise. Finally, the article concludes by reflecting on the deeply engrained social and cultural attitudes and beliefs that render the use of good character evidence a particularly effective, yet problematic, defence strategy, and the broader implications this discussion has on long-standing questions surrounding the relevance of character and behaviour evidence in criminal trials.

The socio-legal context of Northern Ireland and the Gillen Review

In Northern Ireland, a sexual offence is reported to the police on average every two hours (Department of Health, Social Services and Public Safety and Department of Justice, 2024). Yet figures from the Public Prosecution Service (PPS, 2023a) reveal that while the PPS received 684 files on rape in 2022/23, a prosecution or diversion decision for an offence of rape was only made in respect of 76 of these cases, and out of the 97 defendants dealt with in the Crown Court for an offence of rape, 27 were convicted of that offence. While attrition is a cause for concern across a range of jurisdictions (see e.g. Kelly et al., 2005), the unique post-conflict context of Northern Ireland presents a number of social and cultural challenges that impact responses to sexual violence. For instance, Northern Ireland is characterised by high levels of religiosity, attitudes of shame and stigma in relation to issues of sex and sexuality, and an ‘eerie silence’ (Kearney, 2024) around sexual and gender-based violence (Killean et al., 2021: 7–8). Research has drawn connections between this silence and factors such as: the lack of any formal relationship and sex education in Northern Ireland, the continuing hold of paramilitaries, complex community relations with the police, and the normalisation of violence against women and girls in particular (Killean et al., 2021: 7–8; Powell, 2022). Indeed, following reports of the 24th woman to be killed in Northern Ireland since January 2020 experts called for an end to the culture of victim blaming that minimises and excuses such abuse (Kearney, 2024). This culture is evident in an Amnesty International (2008) survey of students in Northern Ireland that found a significant number of respondents held women responsible for sexual violence if they were: drunk (44 per cent); flirted (46 per cent); failed to say no clearly (48 per cent); wore revealing clothes (30 per cent); had many sexual partners (33 per cent); or were alone in a dangerous/deserted area (47 per cent). The potential impact of these views on the criminal justice process was noted by the Criminal Justice Inspectorate (2010: 46) in a thematic report where concern was raised about the ability of juries to make accurate judgements in sexual offence cases. More recently, research into the high-profile ‘Rugby Rape’ trial identified the dominant use of rape myths, particularly those relating to the use of force and resistance and ideal victimhood, in defence narratives (Dowds, 2022a). This trial, involving the acquittal of two Ulster and Ireland Ruby players for the alleged rape and sexual assault of a 19-year-old women in 2016, received extensive local and international media attention providing the impetus for the subsequent independent review of the law and procedures with regard to serious sexual offences in Northern Ireland commissioned by the Criminal Justice Board (Department of Justice, 2018). The final report from the review, led by The Right Honourable Sir John Gillen (the ‘Gillen Review’) was published in May 2019 with over 200 recommendations.

The scope of the Gillen Review was wide-ranging, and the challenges presented by rape myths cut across a number of chapters. The review noted that ‘there appears to a growing recognition that some people still harbour often unspoken views about appropriate behaviour of women and men and that these myths may be impacting on trial outcomes’ (Gillen, 2019: 192), posing a ‘major challenge to the concept of a fair trial’ (Gillen, 2019: 88). Measures to combat these myths as recommended in the Review include juror training, such as a myth-busting video at the outset of trial, enhanced written directions to the jury, the admission of expert evidence where necessary, public awareness-raising campaigns and extensive training for legal professionals. Despite acknowledging the ‘potential presence of jury myths and stereotypes’, the absence of concrete local empirical evidence on the matter saw Gillen reject the removal of the jury in sexual offence trials (Gillen, 2019: 551–553). A Gillen Review Implementation Plan was published in June 2020 concentrating on 14 strategic priority areas, including ‘jury rape myths’ as well as wider ‘education and awareness’ (Department of Justice, 2020). In progressing some of the recommendations, the Gillen Education and Awareness Working Group, led by the Northern Ireland Department of Justice, conducted a public survey on rape myths, reporting that 87% of respondents said that rape myths were either very or somewhat prevalent in Northern Ireland (Department of Justice, 2022). Similarly, research from the Women's Resource and Development Agency (WRDA) found that 80.8 per cent of respondents to their survey on violence against women believe Northern Ireland has a problem with rape myths and rape culture (Powell, 2022: 45). In a follow-up report from WRDA a lack of public confidence in the justice system was highlighted and, while it was acknowledged that work on implementing the Gillen Review recommendations was ongoing, ⁵ there was a desire for complete ‘reform and restructure’ (Crory, 2023, 17).

In this respect an area of growing concern is the use of good character references relating to the accused in rape trials. For example, in a campaign to abolish these references, Rape Crisis (2022) labelled them ‘re-traumatising & unnecessary’, ⁶ and campaigners have highlighted the ‘detrimental’ impact they can have on complainants’ coming forward (Rosato and McLaughlin, 2025). The failure to recognise that good character evidence may perpetuate dangerous myths around offender characteristics or suggest that certain individuals should be given a more lenient sentence has been considered a ‘huge omission’ of the Gillen Review (Rape Crisis, 2022). Indeed, the crime of rape and the label ‘rapist’ are extremely charged notions, the parameters of which are informed by shifting social, cultural and legal norms on appropriate, inappropriate and criminal sexual behaviour (Conaghan, 2019; Munro, 2010). The following section seeks to deepen this analysis by setting out the theoretical literature on rape myths, and specifically the ‘monster rapist’, before turning to consider the role of good character evidence in reinforcing this myth.

Rape myths: The ‘monster rapist’

Rape myths have been defined as ‘descriptive or prescriptive beliefs about rape (i.e. about its causes, context, consequences, perpetrators, victims, and their interaction) that serve to deny, downplay or justify sexual violence that men commit against women’ (Gerger et al., 2007: 423). According to Leverick (2020: 257) such beliefs can be divided into four categories: (1) beliefs that blame the victim/survivor, e.g. if the complainant was drinking or flirting they are at least partly responsible for what followed; (2) beliefs that cast doubt on allegations, e.g. treating delays in reporting as suspicious; (3) beliefs that excuse the accused, e.g. that male sexuality is uncontrollable or that women send ambiguous signals of sexual willingness; and (4) beliefs about what ‘real rape’ looks like, e.g. violent rape by a stranger. While these myths can overlap and operate simultaneously, this section focuses on the latter two categories and their reinforcement through the ‘monster myth’ (see O’Hara, 2012; Tuerkheimer, 2021). According to the monster myth a rapist is portrayed as ‘a subhuman-looking stranger, violent, mentally deranged, impulsive, with no access to consensual sex’ (Schafran, 2005: 15), and can be contrasted with the ‘good guy’, that is, typically, white middle class educated men who would not label themselves or others like them as rapists (Martinez et al., 2018). The juxtaposition of the ‘monster’ and the ‘good guy’ represents a form of ‘othering’, sending the former into ‘symbolic exile’ while the latter is insulated from critique (Hall, 1997: 258). This process of othering is also highly racialised, with men from ethnic minority groups often vilified and marked as dangerous (Tilton, 2022). As noted by Mack and McCann (2021: 106):

The racialized stereotypes that buttress these narratives include the dominance and superiority of White men; the unrapability of Black, Indigenous, and trans people; the innocence and purity of White women who need protection; the exoticization and dehumanization of women of color; and the monstrosity and primitiveness of Black men.

Images and narratives of the monster rapist often dominate media representation of sex offenders (O’Hara, 2012). As noted by Mason and Monckton-Smith (2008: 694), ‘perpetrators of violence are regularly described as “beasts” or “perverts” and distanced from “ordinary” men’. O’Hara's (2012: 251) analysis of news coverage from three rape cases supports this, highlighting the use of language associated with animals to describe offenders, such as ‘pounce’, ‘stalk’, ‘prowl’, ‘hunt’, as well as descriptions of the offender as ‘sick’ or a ‘devil’. Although there was evidence of some balanced reporting, research has largely shown that news media sensationalises stories of sexual violence, casting the perpetrator as a ‘devious monster’ (O’Hara, 2012: 257), an aberration from the norm (Boyle et al., 2023: 116). ⁷ Yet the reality of rape stands in contrast to this paradigm, with rape and sexual violence occurring within families (Gekoski et al., 2016; McOrmond-Plummer et al., 2014), within institutions (McAlinden, 2015) and by those in positions of power (Campbell, 2024; Lynch, 2024).

Indeed, the exposure of abuse perpetrated by high-profile powerful men in society demonstrates that many abusers are not socially disturbed outcasts, but rather ‘hiding in plain sight’ (Boyle, 2017). Take for example the abuse perpetrated by the late television presenter Jimmy Savile and American film producer Harvey Weinstein. Although these abusers are now widely labelled ‘monsters’ in the media (see e.g. Pettifor, 2024), such framings were not immediate (Donegan, 2020). In the case of Savile, for example, Boyle (2017: 1563) has questioned why this case did not generate significant attention or credibility during his lifetime, positing that it is due to a ‘wider cultural acceptance (contemporary as well as historic) of men's sexual entitlement to, and abuse of, women’. Within this context, the current use of the monster trope seeks to obscure the complexity of these cases and the continuum of violence they represent; a continuum that implicates not only the perpetrator but also society (Boyle, 2017: 1654). As noted by McAlinden (2014: 188) in the context of child sex offenders, ‘the fact that these offenders may be “of us” rather than “other than us” is a deeply unpalatable truth for society to countenance’. They are thus marked as a ‘monstruous, exceptional other’ (Boyle, 2017: 1571), no longer a man, but a mythical figure detached from reality (Boyle et al., 2023: 116).

O’Hara (2012) has described the far-reaching impact of the monster myth, noting that it shapes public opinion about rape, can affect policy making and impact the legal system. While there has been some debate around the prevalence of rape myths in society and their impact on the criminal justice process (for an overview see Waiton, 2023), a recent study carried out by the Crown Prosecution Service (CPS) into public perceptions of rape and consent in England and Wales found that:

[T]he public continue to hold narratives around stranger rape as the primary model for rape, beliefs about what ‘real rape’ looks like, how victims should behave, and a tendency to want to either exonerate the accused, find reasons for their actions, or set them apart from ‘ordinary’ men (Equally Ours, 2024a: 23).

The monster myth was evident in this study, with one participant conceptualising rapists as ‘loners, bullies, sick-minded individuals’ (Equally Ours, 2024a: 139). Further to this, the study uncovered some problematic beliefs around attributions of responsibility, with focus groups of men contrasting rapists that planned and strategised—‘intentional rapists’—with ‘accidental rapists’—those who were not ‘careful enough to get consent’, obscuring the responsibility of the latter (Equally Ours, 2024b: 35). Similar sentiments were found in an earlier review into the criminal justice system's response to adult rape and serious sexual offences across England and Wales where it was noted that, ‘[I]t is often quite difficult to convict young men of good character—basically [they are] quite normal looking. They don’t look like a pervert or anything’ (George and Ferguson, 2021: 62 emphasis added). In this way, the monster myth represents a ‘catastrophized conception of rape’ with ‘demanding standards’ (Tilton, 2022: 412). Thus, in situations where the defendant does not fit the ‘monster’ stereotype and the act itself lacks the ‘monstrous’ characteristics of a ‘real rape’, individuals may be less inclined to label the defendant a ‘rapist’ and thus a ‘sex offender’—a label described as ‘one of the most stigmatising … in modern society’ (Sandbukt, 2023: 931).

Now that the theoretical backdrop has been set, the next section turns to consider the law surrounding the admission of good character evidence, further drawing out its complicated relationship with rape myths.

Good character evidence: Credibility, propensity and asymmetry

Good character evidence relates to an individual's good ‘general reputation’. While the rule in R v Rowton provided that evidence of specific good acts and individuals’ personal opinions of the accused's character was inadmissible at trial, ⁸ the Court of Appeal in R v Del-Valle stated that such evidence is routinely admitted in modern criminal trials. ⁹ In Northern Ireland and England and Wales, according to the leading case of Hunter ¹⁰ and the Crown Court Compendium (Judicial College, 2024: 11–1; Judiciary NI, 2010: 95–96), ¹¹ good character evidence of the accused may be admissible (i) to bolster the accused's credibility and (ii) as relevant to the likelihood of guilt (propensity), e.g. such evidence ‘may make it less likely that the defendant acted as alleged’. ¹² The relevance of character evidence, both good character and bad character, is premised on inferential reasoning and the ‘common sense notion that “nothing predicts behaviour like behaviour”’ (Roberts, 2016: 708). Yet such ‘conformity’ reasoning has been subject to disagreement and debate. Murphy (1998: 82) and Munday (1997), for example, argue that such reasoning rests on flawed logic as behaviour is neither consistent nor predicable. Redmayne (2015: 15), on the other hand, has noted that ‘information about past behaviour can be powerful evidence in a comparative exercise’. While such debates are complex, in light of the evolving scientific terrain upon which they may be built (see Glover, 2020: 687), a further rationale for the admission of good character evidence relates to the accused's fair trial rights and the need to uphold the presumption of innocence. In this respect, good character evidence works to ‘offset’ (Brabyn, 2005: 599) the ‘serious credibility problem’ (Glover, 2020: 692) suffered by the defendant simply by being on trial.

An area of concern over the years has been the nature and extent of the good character directions given to the jury. Key principles governing the good character direction as derived from the cases of Vye and Aziz ¹³ were summarised in Hunter ¹⁴ as follows: a direction on credibility must be given where a defendant has good character and has testified or made pre-trial statements; a good character direction on propensity must be given where a defendant has good character whether or not they have testified or made pre-trial statements; exceptions to the foregoing include where a defendant has no previous convictions but has admitted other reprehensible conduct then the judge, if they consider a good character direction would be an insult to common sense, has discretion to decline to give a good character direction; a jury must not be misled; a judge is not obliged to give absurd or meaningless directions. In Hunter, ¹⁵ the court developed five categories of defendant character outlining the entitlements of each relating to a good character direction. For instance, a defendant is entitled to a direction if they are of absolute good character (no conviction, cautions, reprehensible behaviour) or effective good character (old, minor or irrelevant convictions/cautions), and the judge has no discretion. The last three categories relate to instances where evidence of the defendants bad character is admitted (cautions, convictions, reprehensible behaviour) and the judge will have discretion to deliver a modified good character direction depending on who has adduced the evidence and for what purpose e.g. where bad character is introduced by the defence in respect of previous convictions or cautions unrelated to the offence charged, the defendant will not get a good character direction on credibility but may get a modified direction on propensity. ¹⁶

To offer an example of how good character evidence might feature at trial, in Northern Ireland, during the Rugby Rape trial, one of the defendant's former teammate's, Fitzpatrick, gave evidence of his good character, as did his brother's partner and a family friend. Fitzpatrick described Jackson (the defendant) as ‘… always very placid. He was focused. You respected his judgment on the field. For a young guy he showed leadership. He was never out to hurt someone’ (Belfast Telegraph, 2018a). In response to the defence questioning whether Jackson ever caused any trouble, he replied: ‘Never’, and when asked whether he had ever witnessed Jackson being violent on the pitch he replied, ‘Never on the training field or playing. He was competitive but he played within the rules. There are guys out there out to hurt people on the field’ (Belfast Telegraph, 2018a). As part of the judicial directions to the jury it was noted that each of the defendants were of good character, but Judge Smyth added: ‘Of course good character can’t by itself provide a defence for a criminal charge, but you should take good character into account’ and it was up to the jury to choose ‘what weight you give to them in this case’ (Belfast Telegraph, 2018b). A more detailed example of the judicial charge to the jury is provided in the fictional extract set out below:

The defendant is a man of good character. He has no convictions recorded against him and you heard that he is highly regarded within the community in which he lives. Good character is not a defence to the charge but it is relevant in two ways. First, the defendant has given evidence—he didn’t have to give evidence. His good character is a positive feature which you should take into account in his favour when considering whether you accept what he has told you. Second, the fact that he has not offended in the past may make it less likely that he acted as the prosecution alleges in this case. What importance you attach to his good character and the extent to which it assists on the facts of this particular case are for you to decide. In making that assessment you may take account of everything you have heard about him (Smyth, 2021: 77).

While, as noted, the admission of good character evidence was not discussed in-depth in the Gillen Review, the fact that ‘the complainant's testimony is often treated with disbelief and the defendant, who can call good character evidence, may seek to undermine their character or actions whereas the complainant is not accorded the right to call’ was identified as an inequality in the courtroom (Gillen, 2019: 163). In discussing the unique nature of sexual offences and the possible explanations for low conviction rates, that ‘most defendants are of previous good character; it is usually one word against another’ was also mentioned (Gillen, 2019: 100).

It should be noted here that although good character evidence on behalf of the complainant is generally inadmissible, there is a limited exception where such evidence may be relevant to an issue at trial, including where the issue is that of consent or absence thereof in a sexual offence case. ¹⁷ Nevertheless, this is said to be ‘rare’ (Law Commission, 2024: 236) and the ‘imbalance’ with respect to character evidence was recognised in the Law Commission's (2024: 235–236) consultation on evidence in sexual offences prosecutions in England and Wales. ¹⁸ Within the context of these discussions, the ‘link between character evidence and rape myths’ was identified by some stakeholders who expressed concern that ‘a defendant's GCE [good character evidence] is often used by barristers to reinforce certain societal myths such as the fact that having a rape conviction could be the worst thing that could happen to a young man’ (Law Commission, 2023: 239). Further to this, results from a CPS survey shared with the Commission (2024: 240) found that 61 per cent of respondents felt that the rules around character evidence provided an unfair advantage to defendants, and some believed these rules contribute to the poor trial outcomes seen in rape cases involving young adult defendants.

A court observation project from Northern Ireland supports these claims, with myths relating to the character of the defendant or complainant being identified in five trials (Kennedy, 2021: 19). In respect of the defendant, observers noted that in one case the defence ‘used the “nice boy defence”’, and in another case ‘many references were made to the fact that the defendant came from a good family, the parents attended church each week and that the defendant was now a university student’ (Kennedy, 2021: 20). Similar findings were reported in the Northumbria court observers project, with one observer noting that the defence tried to portray the defendant as a ‘well mannered … shy boy’, while in another case ‘[The defendant] had 8 character references, all of which put importance on [him] being a “family man” etc. as if this means he wouldn’t/couldn’t commit rape’ (Durham et al., 2017: 29–30). Similarly, Temkin et al. (2018: 216–217) reported that, in one of the cases they observed, reference was made to the defendant's good character 13 times and that the defence closed the case by asking the jury to decide ‘Whether D was a respectable but silly older man who had had his head turned by a gothic redhead or whether he was a sex offender’. The framing of this question promotes a false binary based on cultural conceptions of a ‘real rapist’ e.g. a monstrous stranger as outlined earlier, and neat categories of guilt and innocence. Research from New Zealand with real jurors provides an illustrative example of such binary thinking. In this study expectations of violent, evil perpetrators were identified, with one juror noting that the defendant in the case was a ‘clean cut guy’ and not a ‘brute’ (Tinsley et al., 2022: 478). In language similar to the focus group of men in the CPS study described in the rape myths section above, jurors also categorised some of the cases as ‘mistakes’, ‘not premeditated’, as someone ‘overstepping the mark’ and as down to the naivety, as opposed to malice, of the perpetrator (Tinsley et al., 2022: 478).

The narratives created around the defendant's good character play into wider societal views that distance the ‘ordinary’ ‘good guys’ from the ‘monster’ rapists and increase the chances of ‘jury nullification’ (Childs, 2000: 216). As encapsulated in the following quote from a sexual violence support professional in Northern Ireland:

Rather than appearing that he forced himself on her, they’re focused on the, well, actually all those things before [drinking together and going back to someone's house], and also looking at him and see[ing] him really well dressed, and a young fellow, and the rest of his life ahead of him (Dowds, 2022b: 837).

In this respect, attention to a defendant's good character during a rape trial might even evoke sympathy for the defendant and concern over the impact a conviction could have on their future (see Sweeny, 2020). As noted by Harding (2015: 4), when it comes to rape, ‘if we’re expected to put ourselves in anyone else's shoes at all, it's the accused rapist's’. While acknowledging the role of good character evidence from the perspective of the accused—that it seeks to counter certain biases and stereotypes, e.g. ‘he looks guilty’ (Ross, 2004)—such evidence can undermine the already compromised position of the complainant. Indeed, the ‘culture of scepticism’ (Kelly et al., 2005: 83; Tuerkheimer, 2017) surrounding allegations of sexual violence has been well documented. In Northern Ireland, for example, a survey of 58 young people conducted as part of the Gillen Review (2019: 194) found that 83 per cent did not believe the suggestion that ‘false allegations are common’ was a myth. In this way the legal system operates as an ‘echo chamber’ (Tilly, 2008: 35) for conversations on credit and blame in which the ‘sympathetic vindication’ (McMillan and White, 2015: 290) experienced by the defendant stands in stark contrast to the disbelief experienced by the complainant.

Further to this, even where a trial results in a conviction, the good character of the accused may be relevant as a mitigating factor at sentencing (PPS, 2023b: 54). A mitigating factor refers to ‘the individual circumstances of the offence or the offender which reduces the overall seriousness of the offence’ (Judiciary NI, 2017). Good character falls into the latter category, and such ‘personal mitigating factors’—also encompassing remorse and addiction for example (Belton and Dhami, 2024; Jacobson and Hough, 2007)—are considered across all categories of offences and have been found to be particularly influential when cases are on the ‘cusp of custody’ (Belton and Dhami, 2024: 209). According to Ashworth (2015: 178) the inclusion of good character as a mitigating factor may align with proportionality theory and treating isolated lapses more leniently. In Northern Ireland, the Court of Appeal has held that:

In this jurisdiction it has long been recognised that being of good character and not having a criminal record is something which stands in a defendant's favour when it comes to sentencing and may lead to a reduced sentence. However, this factor is clearly less relevant where the offending is very serious …’. ¹⁹

In respect of rape specifically, guidance ²⁰ in both Northern Ireland and England and Wales provides that good character is of limited value, ²¹ and the Northern Ireland Court of Appeal has stated that the absence of a criminal record is a neutral factor ‘in the majority of cases.’ ²² However, in a response to the Law Commission's consultation in England and Wales, the Commissioner Designate for Victims of Crime in NI explained that ‘[T]he use of character witnesses’ post-conviction (as part of mitigating statements) is often particularly galling for victims of sexual and or domestic violence where guilt has been determined’ (Hanna, 2023). This suggests that good character evidence continues to play a role at sentencing, and may, by definition, reduce the seriousness of the offence, thus contributing to a potential hierarchy of punishment and causing distress to victims. Indeed, the particular distress caused to victims of sexual or domestic violence referred to by the Commissioner Designate speaks to the unique contest of credibility that they have already had to endure during the trial process ²³ and the susceptibility of this category of victims to secondary victimisation. ²⁴ In this respect, although good character can feature in the context of sentencing other offences, sexual offences may be distinguished considering Gillen's (2019: 100) point above that most defendants in these cases are of previous good character, thus increasing the likelihood of such evidence being used.

The sentencing terrain is, however, complicated, as it appears that character in general can also play a role in assessments of the dangerousness or risk posed by an offender. In the case of Kubik, ²⁵ for example, the offender was convicted of rape and sexual assault. In this case the victim encountered the offender outside a taxi company, she had intended to get a taxi home, but the office was shut. As the victim's phone had died the offender asked her if she wanted to go to his house, she agreed assuming she could use the phone. On the walk he asked her if she wanted to work for him then said: ‘I’ll show you’, proceeding to sexually assault and rape her against a parked car. When the victim managed to push the offender off he masturbated, ejaculated and ran off. While the trial judge considered the offender dangerous, and thus a risk, the Court of Appeal reassessed this decision. The Court of Appeal noted that it ‘is required to take into account the nature and circumstances of the offence and may take into account any pattern of behaviour of which it forms part and any information about the offender’. ²⁶ In drawing out themes from the pre-sentence report the Court of Appeal explained:

One of those [themes] was the level of force or violence used. We have already commented on this in our consideration of aggravating factors. We accept, of course, that violence was used in the attack but the issue is whether there is a significant risk of repetition of such violence. The second theme concerns the opportunistic and impulsive nature of the offence. That has to be seen against the background of a man in his late 20s in respect of whom there was no evidence that he had behaved in a similar fashion nor any suggestion that he had a propensity to do so. The third theme concerns the limited responsibility taken for his behaviour. The concern, of course, is that his failure to recognise his responsibility may be an indicator that he does not consider that such an attack is a serious offence. That again has to be set against a pre-existing background of a good work record, a previous stable relationship and an absence of any similar activity in a mature man. ²⁷

Ultimately the Court of Appeal concluded that there was no significant risk of future similar offending. While there is a complex interplay of factors to be considered, it is concerning that the positive dimensions of the offender's character outweighed the particular circumstances of the assault in this case, including the defendant's minimisation of what occurred and failure to take responsibility.

The relationship between risk and character in sexual offence trials came under scrutiny in 2022 when sentencing remarks from a member of the Northern Ireland Judiciary led to public outrage and the provision of judicial training (BBC News NI, 2022). In this case the police described the offender, convicted of sexual assault, as ‘dangerous to females’ with ‘67 previous offences, some of which are domestic in nature’ (Reid, 2022). The Judge, however, did not feel the threshold for dangerousness was met. In the course of the sentencing judgment it was noted that the offender received support from a prison chaplain who stated that, ‘[T]he character image of the defendant being a menace to vulnerable women is one I find hard to reconcile given his moral sensibilities’ (Belfast Telegraph, 2022). In sentencing the offender, the judge remarked, ‘you are still a young man … There's nothing that will stop you moving on with your life in a more productive way, finding work or finding a wife or partner, getting a family and a home’ (BBC News NI, 2022). Such remarks were labelled ‘incredibly problematic’ and ‘horrifying’ by Women's Aid NI (BBC News NI, 2022). It is acknowledged that assessments of risk and dangerousness are subject to certain criteria ²⁸ and the judiciary will make decisions based on knowledge and materials the wider public are not privy to. However, the point here is to highlight the potential for these assessments to be distorted by certain myths and stereotypes and for problematic narratives to subsequently emerge. As noted earlier, sexual offending behaviour is often normalised and ‘hidden in plain sight’ (Boyle, 2017), it also sits on a continuum of violence—the recognition of which seems to be missing in the abovementioned cases. In this respect, complainants have expressed concerns around the failure of the criminal justice system to adequately acknowledge the harm of sexual violence (Crory, 2023: 18–19) and, while complainants’ justice needs are multifaceted (McGlynn and Westmarland, 2018), there is a growing discontent with sentencing in sexual offences (see Brooks-Hay et al., 2024; Crory, 2023: McNaughton Nicholls et al., 2012; Powell, 2022) as well as the lack of transparency around sentencing practices (see Department of Justice, 2021: 12; Marsh et al., 2019).

It thus appears that the use of good character evidence relating to the accused is a cause for concern, both pre- and post-conviction, with particular manifestations in the context of sexual offences. Indeed, this section has sought to outline how the use of good character evidence can reproduce and legitimise rigid understandings of rape and rapists, tied to the paradigmatic ‘real rape’ and ‘monster’ stereotype. Consequently, where an allegation does not match these preconceived notions, in respect of the act itself or the defendant's character and background, individuals may be less inclined to say that the defendant was responsible. As such, it is argued that good character evidence contributes to a hierarchy of rape, rapists and punishment, with violent rape by ‘monsters’ at the top and ‘mistakes’ by ‘good guys’ at the bottom. With this in mind, the next section moves to consider specific measures that might be used to address and dismantle this hierarchy as well as some of the key tensions likely to arise.

Reform: Challenges and possibilities

As demonstrated in the preceding analysis, the law surrounding good character evidence is complex and there are a range of competing interests and narratives that come to the fore, making reform a difficult task. As a starting point, however, it is useful to look to the Law Commission (2024: 247–251) in England and Wales where a number of reform options have been set out, including; no reform due to the possible relevance of good character evidence and the burden of proof being on the prosecution with the result of imprisonment if found guilty; removal of good character evidence and directions for both defendant and complainant on the grounds that it is of limited value; scope for good character directions relating to the complainant to reduce the imbalance where a ‘wholesale attack’ on the complainant's character has occurred; or a general increase of complainant good character evidence and directions. None of these options are straightforward and they are likely to have a knock-on effect on other areas of the law of evidence. For example, with respect to removing good character evidence and directions for the defendant, this disrupts a long-standing rule of evidence that is deeply connected to understandings of fair trial rights (see Glover, 2020: Ross, 2004). While this is not to say that jettisoning this rule will always undermine a defendant's right to a fair trial, there is a need to be cognisant of the potential impact this may have on defendants from minority backgrounds (see Ross, 2004: Tilton, 2022). As discussed earlier, some defendants fit the monster stereotype more easily than others, and character evidence may work to humanise the defendant, allowing them to be ‘acknowledged as a person, to seek the fullest possible understanding by the jury of their situation’ (Childs, 2000: 16; see also Orenstein, 1998). Within this context, however, critical reflection on the parameters of the definition of good character and the type of evidence admitted might be warranted. Further to this, if the rules on good character evidence and directions were to be removed the rationale for this decision would have to be clearly outlined, e.g. is it due to the prejudice admission of such evidence can have on the complainant’s right to a fair hearing and the reinforcement of rape mythology ²⁹ or due to a belief that good character evidence has limited probative value? If the latter, there will be implications for the admissibility of character and behaviour evidence in general.

In terms of the complainant, as noted above, the rule laid out in Mader ³⁰ provides that the dispositional character of a witness may be relevant where it goes to an issue at trial. In this respect, the Court of Appeal approvingly cited R v IWAT (Amado-Taylor). ³¹ In this case, the appellant had argued that sexual activity was consensual, with the complainant taking an active role. Whereas the complainant's account was that she told the appellant to stop and that she was a virgin. The Court of Appeal held that ‘[I]n those circumstances such evidence about her virginity, about her attitude towards sexual intercourse before marriage and her religious beliefs on that topic were relevant to the basic issue of whether there was indeed consensual intercourse’. ³² However, as acknowledged by the Law Commission (2024: 235), the admission of character evidence relating to the complainant on this basis rests on a dubious connection between sexual behaviour evidence and credibility and/or propensity. Expanding the current framework on the admission of good character evidence for the complainant would therefore require careful reflection so as not to undermine important feminist work around sexual consent as person- and situation-specific and current protections against the admission of sexual history evidence (see e.g. McGlynn, 2017). Further to this, complainants already find the criminal justice system deeply invasive (see Hanna, 2021; Moroz and Dinisman, 2024). Thus, an attempt to balance the scales by allowing more character evidence relating to the complainant may amount to an additional invasion into their private lives, with harmful consequences for those who sit outside the ‘ideal victim’ prototype (Childs, 2000: 217; Law Commission, 2024: 249). Relatedly, trial progression could be negatively impacted due to the additional time and resources needed to consider such evidence, compounding existing challenges associated with delay in sexual offence cases. For example, recent figures from Northern Ireland show that the average time taken to complete sexual offence cases was 757 days, the highest among all offence categories (Graham, 2023: 3).

An option favoured by the Law Commission (2024: 239) is that, where ‘the jury has heard no evidence about the complainant's good character and the complainant has no prior convictions then, if the trial judge decides that fairness demands it, there should be a jury direction that explains why the jury has heard no evidence of the complainant's good character and that no inference adverse to the complainant should be drawn from its absence’. It is submitted that this may be an option worth pursuing, as it would not substantially alter the logistics of the trial but may provide the jury with the necessary context in relation to the asymmetry between the defendant and complainant in the context of the adversarial criminal trial. If such directions were read in conjunction with enhanced judicial directions on ‘avoiding assumptions about rape and other sexual offences’ (Judicial College, 2024: 20–5), and other myth-busting measures, they may go some way to disrupting problematic beliefs around the type of conduct that falls under the rape offence and the type of person that might commit rape. Within this context there should also be a focus on preventing ‘wholesale’ attacks on the complainant in the first place, through robust judicial and prosecutorial intervention in the face of inappropriate and misleading defence narratives and lines of questioning drawn from rape myths (see Gillen, 2019: 216: PPS, 2010: 23; PPS, 2023b: 12).

Turning to sentencing, as noted in the previous section, once convicted, good character may be included as a mitigating factor. The role of good character as a mitigating factor in general has, however, been deemed ‘controversial’ (Roberts, 2011: 11) and representative of a form of illegitimate ‘social accounting’ (Ashworth, 2015: 190; Belton and Dhami, 2024) balancing a person's good deeds against their wrongdoing. Interestingly, in the limited body of empirical research that exists on public perceptions to sentencing in the specific context of sexual offending, respondents have either held mixed views (Biggs et al., 2021: 74) or felt that the ‘character of the offender (whether they are in employment, have a family, are of good standing in the community)’ should not be taken into account as a mitigating factor (McNaughton Nicholls et al., 2012: 56). Indeed, in one study it was felt that ‘good character’ may be more suited as an aggravating factor where the offender hides behind a ‘cloak of respectability’ to commit the offence, e.g. abusing a position of trust (McNaughton Nicholls et al., 2012: 56). ³³ This view is reflected in a current consultation on rape sentencing in Scotland, where it is acknowledged that good character may be taken into account in many offences, but that the Council ‘does not consider that it is particularly relevant to the offence of rape’ (Scottish Sentencing Council, 2024: 35). Similarly, the Queensland Advisory Council (2024: 307) has recommended legislative changes to the effect that in determining the character of an offender being sentenced for a sexual offence committed by an adult, a court must not take into account evidence in the form of character references; a person's standing in the community; or evidence of significant contributions made to the community. Such an approach aligns with international standards, as encapsulated by the United Nations (2021: Article 9) ‘model rape law’, prohibiting the use of an offender's character or reputation as a mitigating factor. In this respect, the position in Northern Ireland, and other jurisdictions considering reform in this area, should state firmly that good character is of no value as a mitigating factor in all, not just the majority, of rape and sexual offence cases, and such information should not be included in any ‘plea for mitigation’ (PPS, 2023: 54). As sentencing guidelines are issued by the Northern Ireland Court of Appeal as opposed to a statutory body, the removal of good character as a mitigating factor could be placed on a statutory footing via the forthcoming Sentencing Bill (see Department of Justice, 2021) ³⁴ and follow similar wording to that of the Queensland Advisory Council.

It is acknowledged that there is still a danger that good character will appear under another guise at sentencing, especially if it continues to feature pre-conviction. Indeed, the sentencing process has been described as ‘highly subjective’ (Hough et al., 2003: 3) and a ‘kind of moral assessment’ (Ashworth, 2015: 199) of the offender. However, formal removal at the level of statute will encourage more consistency in approach and send a clear public message that good character does not reduce the severity of sexual offending. Such an approach might alleviate some of the secondary victimisation experienced by complainants throughout the criminal justice system and address concerns raised in this paper around the potential creation of a hierarchy of punishment where ‘good guys’ are considered less culpable. What is left unresolved, however, is the relationship between character and assessments of risk for the purpose of sentencing. In this context, it might be worth further elucidating the meaning of some of the factors that may be taken into account in these assessments and how they interact with character evidence and previous convictions/offending behaviour, including ‘any pattern of behaviour of which it forms part and any information about the offender’. ³⁵ Further to this, there should be a recognition that dominant myths relating to ‘real rape’, ‘real/monster rapists’ and ‘ideal victims’ can work in tandem to increase or decrease perceptions of risk, and appropriate judicial training should be devised accordingly. While such clarifications and training might not impact the ultimate sentence imposed, as there are an array of factors to be considered and increased punitiveness is not the aim of this paper, it may produce sentencing narratives that reflect a fuller understanding of the ‘plurality and diversity of risk’ (McAlinden, 2022: 397), the nature of sexual offending and the continuum upon which it sits.

Conclusion

The crime of rape is a serious wrong that the law has long struggled to meaningfully address. In what has been described as the ‘promise and paradox of justice’, rape is a crime that may be considered the ‘worst of crimes’ on the one hand, yet it is trivialised and minimised on the other (Henry et al., 2015: 1). Situating this struggle within contemporary reform agendas, this paper examined the role of good character evidence in contributing to a hierarchy of rape, rapists and punishment, with rape by monstrous strangers at the top and mistakes by good guys at the bottom. Indeed, the criminal justice system is based on binary classifications: guilt v innocence; victim v perpetrator; good v bad. While the law may present itself as a ‘neutral arbiter’ (MacKinnon, 1989: 162) in this respect, feminist scholars have argued that the law is informed by norms and value judgements that have traditionally privileged the male perspective (see e.g. Bibbings and Nicolson, 2000). Within this context, the rape trial often comes down to a contest of credibility wherein the character of the complainant and defendant take centre stage. While a core premise of the criminal trial is that it is better to let ten guilty men go free than to convict one innocent, and good character directions are said to form part of the ‘fairness framework’ (Glover, 2020: 677) within which the presumption of innocence is protected, the complainant is also entitled to have their allegation fairly considered.

Yet, as has been argued in this paper, the admission of good character evidence relating to the accused allows the defence to construct a narrative of ‘silly girls’ versus ‘nice young lads’ (McMillan and White, 2015) based on broader myths and stereotypes that form part of the ‘cultural scaffolding of rape’ (Gavey, 2015). Such myths are thus woven into the criminal justice system under a cloak of legitimacy as a result of rules and procedures that allow, and indeed encourage, their infiltration. It is here a core tension in respect of the defendant and complainant arises and the complexity of trying to redress the imbalance of the adversarial trial comes to the fore. Indeed, character evidence may serve a ‘rehabilitative’ (Brabyn, 2005: 599) function on the one hand, and act as an ‘oppressive tool’ (Orenstein, 1998: 691) on the other. In this way, the interlinked nature of this area of law is revealed, with the admission of good character evidence, in respect of both the defendant and the complainant, at times triggering the admission of additional character or behaviour evidence, underlining the need to critically reflect on how such evidence might work to dispel some myths while reinforcing others. Any reform in this area thus poses a number of inherent challenges and provokes broader questions about the rationale behind character evidence in criminal trials that continue to perplex scholars and courts alike (see e.g. Redmayne, 2015).

This paper also considered the role of good character evidence post-conviction. In this respect, the offenders character sits within a broader matrix of factors that need to be considered when a sentence is determined. While there is a need for more transparency around sentencing practices to increase public awareness and understanding of the process, ³⁶ the inclusion of good character as a mitigating factor, even if treated neutrally, reinforces the idea that rape by those who fit the conventional ‘good guy mould is not as serious, or as worthy of punishment, as rape by outcasts, criminals or ‘monsters’. Thus, even where a victim has secured a conviction they can be left feeling like ‘the rights and interests of the perpetrator superseded their own’ (Brooks-Hay et al., 2024: 31), contributing to their ongoing secondary victimisation by the justice system. Further to this, such reinforcement is deeply problematic in light of the fact that a key barrier to reporting rape and sexual violence is the perception that the violation experienced by the victim was not serious enough or that they will not be believed (see e.g. Powell, 2022: 29). As such, good character should be formally removed, through legislation, as a mitigating factor in sexual offence cases. While the argument in this paper is specific to rape and sexual offences due to the unique nature of these offences and the well documented vulnerability of complainants, there is scope to consider the role of good character more broadly given the recognition of its limited value in sentencing other serious offences and its ‘ambiguous’ theoretical foundation as a personal mitigating factor (Roberts, 2011: 11).

Fundamentally, the discussion of good character in this paper has highlighted a real and ongoing challenge around the type of conduct we are willing to recognise as rape and the type of perpetrator we are willing to label a rapist. Thus, beyond the criminal justice system there is a need for broad public awareness campaigns that specifically address and counter the harmful monster myth. A good example is the Police Scotland (2021) sexual crime prevention campaign ‘That Guy’, challenging men's attitudes and behaviours towards women. This campaign illuminates the everyday harmful behaviour and microaggressions that form the backdrop of sexual violence, as encapsulated in the following line from the campaign, ‘most men don’t look into the mirror and see a problem, but it's staring us right in the face’ (Police Scotland, 2021). The Police Service of Northern Ireland (PSNI, 2025) recently launched a similar campaign, ‘The Power to Change’, encouraging men and boys to reflect on their own behaviours. Indeed, in order to create a system capable of processing rape complaints regardless of the defendant's character and background, and regardless of whether the complaint itself possesses the characteristics associated with the ‘real rape’ stereotype, it is necessary to confront the structures and attitudes, both inside and outside the courtroom, that firmly endorse and entrench rape paradigms that are hierarchal in nature.