Sexual offence laws: Ireland launches review of complainant protections in rape trials

Jennifer Sadler-Venis

The case, which saw all four men found not guilty, has triggered independent reviews in both Ireland and Northern Ireland. Ireland’s Minister for Justice and Equality, Charlie Flanagan, has tasked Professor Tom O’Malley, lecturer of law at National University of Ireland Galway, with undertaking an independent review. Northern Ireland’s review, led by retired appeal court judge Sir John Gillen, will go out for public consultation in November.

Flanagan says: ‘I am anxious to ensure that victims have appropriate protections during a court process and I have ordered a review of the investigation and prosecution of sexual offences with an emphasis on vulnerable witnesses.’

During a Dáil Éireann (Irish parliament) debate in September, Flanagan said the review would examine the mechanisms that are available in law and practice to protect vulnerable witnesses, and will look at the investigation and prosecution of sexual offences, including measures to protect vulnerable witnesses during evidence. It will also focus on further practical and legal support for victims, and restrictions to the reporting of trials for sexual offences.

Noeline Blackwell, Chief Executive of Dublin Rape Crisis Centre (DRCC), says she hopes for more legal protection for complainants. In most rape trials, ‘the accused is supported by legal aid and a full team of expert, experienced lawyers who are not only aware of the law but also aware of how to influence the jury’. By contrast, the complainant, who must also convince the jury to believe her, has no support.

The DRCC states that ‘if there is to be a new role short of legal representation, it must be more than silent support in court. It must give effective protection and an effective voice to complainants who play such an important part in ensuring that those who commit sexual crimes are held to account’.

Further, with such legal counsel, expert witnesses could be called in to speak about the impact of sexual offence crimes on victims. Blackwell points out that trauma can affect the complainant’s recollection of the alleged rape, but trials ‘don’t take into account that trauma can be part of it and don’t give evidence about that’.

Luz Nagle, Co-Chair of the IBA Crimes Against Women Subcommittee, argues for pre-recorded rather than live cross-examination. She says ‘technology aids in providing a safe environment to present evidence and reduce a victim’s trauma. For instance, having cross-examination in a small room with set rules by the judge and playing the pre-recorded testimony to the jury.’

She also believes that prior sexual history should be restricted as evidence. ‘It should be about consent to the present sex act, otherwise we are telling sex workers that they cannot be victims of rape.’

Similarly, Isabel Bueno, Co-Chair of the IBA Women Lawyers’ Interest Group, says courts should protect complainants from a jury’s unconscious bias by ‘explaining that sexual abuse and rape can occur even inside families, homes, communities, where no intoxication of any substance occurs.’ Blackwell says this could be in the form of judicial directions given to the jury by the judge.

Nagle suggests South African Sexual Offence Courts should be a model for other countries, as they ‘offer key components to accomplish justice and protection for both the alleged victim/survivor and accused’. Such components include ‘a special court room, a separate waiting room for adult witnesses/survivors, a separate waiting room for child witnesses/survivors, and special testifying room with CCTV equipment,’ according to Rape Crisis Cape Town Trust.

O’Malley is expected to conclude the review and bring proposed changes to Minister Flanagan in the coming months. Flanagan says he will ‘make recommendations in respect of legislative and practical changes that will reflect the needs of vulnerable witnesses’.

The review is complemented by the Law Reform Commission’s recent Issues Paper on Knowledge and Belief Concerning Consent in Rape Law, which will also lead to proposed legislative changes from the Commission. The Paper requested 'views on four Issues relating to the mental element of rape’ by 26 October.

In Ireland, if an accused states in court that the complainant consented, ‘the test is whether he “honestly” or “genuinely” believed this’. Issue 1 of the Paper asks whether this law should be retained and then asks consultees to consider three more Issues if they believe change is necessary.

In England, Scotland, Wales and other common law jurisdictions, the requirement is not for ‘honest’ belief, but ‘reasonable’ belief. As such, Issue 2 asks whether such an element should be added to the definition of rape in Ireland. Blackwell, and the DRCC, believe it should, ‘and that would be one step in the right direction. One step nearer to ensuring that people have to be careful to identify if there was consent.’

Similarly, Issue 3 considers reform to ‘make mistaken belief in consent a defence’. To rely on this defence, the accused ‘would have to establish that [they] took “reasonable steps” to ascertain whether the complainant was consenting’.

Finally, Issue 4 proffers a separate offence that would cover situations where ‘an accused honestly but unreasonably and mistakenly believed that the complainant was consenting’. A similar offence – that of ‘negligent rape’ – was recently created in Sweden.

As Blackwell says, ‘it’s in all our interest that the system be reformed in such a way that it actually facilitates investigation, prosecution and trial of cases where people are carrying out crimes of sexual violence up to and including rape.’ In doing so, ‘it’s perfectly possible, in our view, to ensure that everybody’s rights are protected.’

Last year, Ireland’s Criminal Law (Sexual Offences) Act 2017 updated the country’s existing laws to protect child victims and offer new criminal evidence provisions. The latest review comes in addition to a 2018 amendment that will increase the monitoring of convicted sex offenders.