THE IDEA of open-ended jail terms for rapists considered most likely to reoffend was suggested by barrister and legal academic Tom O’Malley at a conference in Dublin at the weekend.
As well as the length of sentences, the conference also discussed sensitive issues such as cross-examination of victims about their sexual history.
Prof Tom O’Malley of NUI Galway said sentences for rape in Ireland were among the highest in Europe. He said an acquittal by a jury of one’s peers should not be regarded as “attrition”.
He asked whether indefinite sentences should be considered to deal with the problem of repeat offenders, who would then be kept in jail until they were judged suitable to be allowed free.
“The difficulty is in determining who will reoffend and who will not,” he said. People who received treatment reoffended less than those who did not, but research was divided on its success rates.
Prof O’Malley was speaking at the conference on “Rape: Victims on trial?” organised by the Dublin Rape Crisis Centre and the law department of Trinity College.
Director of Public Prosecutions James Hamilton said the task of rape trial juries was not to decide whose version of events they accepted but to be satisfied of the guilt beyond reasonable doubt. It was logical for jurors to form the view that they believed the account of the complainant on the balance of probabilities, but were not satisfied to the standard required in a criminal trial.
It also heard President Mary McAleese stress that society had an interest in ensuring that rape victims felt supported in going through the legal process and Senator Ivana Bacik describe the impact of separate legal representation for victims when asked about their sexual history.
The conference marked the 30th anniversary of the Rape Crisis Centre.
President McAleese said that 30 years ago, victims had been shamed into non-reporting of the crime, which inhibited the interrogation of law and practice. A culture of non-reporting led to “a culture of invisibility where victims of crime were so paralysed by welter of fear” that they failed to report or to follow through.
This had been combated by the Rape Crisis Centre.
While medical and Garda personnel were much better trained in dealing with rape victims than they were 20 years ago, “there are attitudes from the ambient atmosphere which make victims uncomfortable”.
Ms Bacik said research carried out jointly with the Rape Crisis Centre and the office of the DPP into separate legal representation for victims when they were to be questioned about their sexual history showed that such representation was used by complainants in 21 per cent of cases before the Central Criminal Court in 2007 and 2008.
It appeared that notice of an intention to ask such questions was being given by the defence even where there was no prospect of them doing so. The reasons given for seeking such evidence showed the persistence of rape myth, for example, that the complainant was generally “promiscuous”, Ms Bacik said.
However, judges were much less willing to accept grounds of such a speculative nature and usually granted permission when the evidence was relevant and/or that it would be unfair to the accused person to refuse to allow it.
Mr Hamilton said he intended to continue assisting in this research by recording the basis on which applications to cross-examine complainants about their sexual experience were made, the basis on which they were granted and the extent to which they appeared to affect outcomes, to see how this new legislation was working out.
A Victim's Story: 'They treated me as though I was dirt'
A RAPE victim told the conference she had to move home as a result of making her complaint which led to the conviction of the rapist.
The woman said her case was similar to the recent case in Listowel, Co Kerry, when a large number of people, including a priest, shook hands with a man convicted of rape.
"The legal system is about laying responsibility for everything that happens on the victim. I feel the credibility of the woman is on trial from the moment something happens. Even when he pleaded guilty, I was still on trial.
"In an Irish small town everyone knows who you are. Although you are supposed to be anonymous in court, you're not. The consequences of my speaking out were I had to move.
"People didn't recognise me any more. They treated me as though I was dirt. People I thought I knew didn't know me any more.
"I was not the person who did anything wrong, yet he was treated like the victim, I was treated like the perpetrator because of what he did."
Director of Public Prosecutions James Hamilton said the attitudes of society were a huge problem. "The criminal justice system can't change the attitude of neighbours or of people in a small town," he said.