Reforming sexual offences law in Ireland

Image Credit: Jtdirl at en.wikipedia

In light of solicitor Sarah Grace’s recent open letter to the Minister for Justice, Grace Donnellan examines proposed reforms to Ireland’s sexual offences law.

Many were shocked when during a Cork rape trial, the defence barrister held up the complainant’s underwear from the night of the alleged rape and said “does the evidence out-rule the possibility that she was attracted to the defendant and was open to meeting someone and being with someone? You have to look at the way she was dressed”. Protests erupted across the country as people were shocked this act of victim-blaming occurred within a courtroom. The case received international attention. The Belfast Trial led to similar outrage as the complainant had every detail of her night picked apart in the courtroom. During the trial, her underwear was passed around for the jury to examine and the defence counsel cited her lack of physical resistance as evidence of consent.

While these cases shocked the public and caught national attention, the practices that garnered such outrage are well known to those who have had to go through the legal system regarding a sexual offence. One such woman is solicitor Sarah Grace. Grace was the victim of a physical and sexual attack in her home in 2019. After her experience with the legal system concerning this, she has written an open letter to the Minister for Justice with several suggested reforms of the law and court practice regarding sexual offences.

The reforms suggested by Grace are: ending the disclosure of notes from victims’ private therapy sessions during the trial, the default use of screens, allowing legal representation for victims, amending the definition of rape, introducing Rape Shield Laws, improved barrister training and greater victim anonymity. 

Speaking to The University Observer, Noeline Blackwell, Chief Executive Officer of the Rape Crisis Centre, says “the issues raised by Sarah Grace in her clear and comprehensive letter to the Minister for Justice all refer to how she, as a victim of crime was treated in the criminal trial of the man who attacked her. She has spoken for many victims giving evidence who can be re-traumatised through feeling humiliated, disrespected and that they themselves are the person on trial.”

Commenting on the letter Blackwell continues “we very much welcome the proposed reforms...These will go some way towards adjusting a trial system which is not suited to hearing testimony in crimes of intimate violence. The issues she raised... are all valid examples of how our court system was not designed to hear sexual offence cases and needs urgent reform.”

Grace considers the purpose of disclosing intimate therapy notes in a trial as “largely (if not exclusively) to discredit the victim”. The prospect of this disclosure may prevent victims from pursuing legal action and thus acts as a barrier to justice for many victims. The Criminal Law (Sexual Offences) Act 2017 can be used to compel the disclosure of counselling records without the consent of the victim. This procedure is applicable only in criminal trials where there are sexual offences. Grace proposes that the victim should be able to give evidence by default via a screen or video link. She states that it was a huge stress for her to obtain approval to appear in court via a screen, continuing; “I do not believe I would have been physically or mentally capable to give proper evidence without the screen, which would have denied both the judge and jury evidence to carry out justice.”

Speaking to The University Observer, Deirdre Healy, Director of the UCD Institute of Criminology and Criminal Justice and Associate Professor at the Sutherland School of Law, says; “The current system can act as a significant barrier to justice for victims of sexual violence….Research shows that victims report higher levels of satisfaction when they receive regular updates about their cases, have access to holistic and multi-disciplinary services, and are treated with sensitivity, respect and compassion. Victims of sexual violence can also benefit from additional supports at the trial stage (for instance, being allowed to give evidence via video-link).” Echoing Blackwell she continues “these supports are particularly important given that some victims have likened the trial process to a 'second victimisation'.”

Healy also says that; “A particular concern is that victims of sexual violence rarely report such crimes to the police. The Rape and Justice in Ireland study found that victims were often reluctant to report to police due to fears about the legal process. It is therefore important to address barriers to reporting alongside any reforms of the legal process to increase victims' faith in the system. In addition, victim advocates could help to protect the rights of victims and ensure their needs are met, as experiences in other countries have shown.”

Grace argues that victims should be allowed legal representation in order to properly prepare for trial. Other European countries, such as France and Belgium, have provided for general rights to legal representation and research has shown the cross-examination process there to be less hostile to the victim as a result. In Ireland, the 1995 Civil Legal Aid Act allows limited legal representation for complainants but does not extend to advocacy rights. The 2001 Sex Offenders Act states that the complainant can have access to a legally aided barrister to argue on her behalf where the accused seeks to bring forward “sexual history” evidence. This representation is limited to evidence which many activists believe should not be allowed in court at all. In fact, Grace proposes a Rape Shield Law be introduced which would exclude a rape or sexual violence victim’s past sexual behaviour as evidence in trial, such as is the case in Australia. 

Grace contends that the current ‘section 4’ definition of rape should be amended to include all non-consensual penetration. While the 2017 Criminal Law Act first introduced a statutory definition of consent, it is apparent that this definition is not comprehensive enough. As well as the issue raised by Grace, the current definition requires that the prosecution not only prove lack of consent, but also prove the ‘mens rea’, or mental state of the accused, beyond reasonable doubt. If the accused believed there was consent they do not have this mens rea. This has created a standard that is very hard to reach.

Grace also writes that improved training for barristers should be introduced in order to target “unacceptable and disrespectful behaviour adopted by defence lawyers when cross-examining a sexual violence survivor”. Finally, she has called for greater victim anonymity. Technically in Ireland the complainant’s identity is kept anonymous. Nonetheless, the rise of social media has made this much more difficult to police. Additionally, Grace wrote that she was “personally identified through articles published in the media despite not being named”. She proposes that victims be “consulted in advance on which facts of the case can identify them, and which parts of the Victim Impact Statement they do not want publicly reported on.” However, this would not solve problems stemming from social media.

It is apparent that our criminal justice system was not created to handle sexual offences in a compassionate manner. Healy says “I think a victim-oriented and rights-based approach is essential for dealing with sexual violence cases in Ireland. At their best, such approaches have the potential to help victims navigate the legal process, get justice, and recover from the harm done to them. However, it is important to ensure that any reforms are evidence-based, properly resourced and holistic in nature to ensure that victims’ experiences at all stages of the legal process - including the reporting stage - are addressed. When reforms are implemented carefully, and with due consideration to all stakeholders including defendants, a victim-centred approach can benefit all concerned.” It is vital that no one is left behind when amending our current laws and court practice, we must listen to victims, like Grace, as our legal system moves forward.