How rape trials in Republic differ from those in North

Irish system provides for greater privacy, public exclusion and statutory definition of consent

 

Yesterday’s Belfast rape trial verdict has generated concern among many organisations working with survivors of rape that it may discourage the reporting of sexual abuse to the Garda. Reporting rates for crimes of rape and sexual abuse are already very low; at least partly due to the fear of many victims that they may be subject to a “secondary victimisation” in court.

While accepting the verdict that acquitted the four men, certainly anyone who followed the Belfast trial over the past nine weeks would have had to appreciate how traumatising the entire trial experience, particularly the experience of giving testimony and being cross-examined in court, must have been for the young woman complainant.

So, in this context, it is really important to emphasise some significant procedural differences between the trial of rape in Northern Ireland, and in this jurisdiction. In particular, our laws provide much greater levels of privacy both for the accused and the complainant than the relevant law in Belfast. In rape trials conducted here, not only does the complainant remain anonymous (although illegal social media breaches of this rule have been noted); but in addition the names of accused persons are not made public unless they are convicted.

Our new Domestic Violence legislation, currently before the Dáil, will introduce a much-needed new offence of 'coercive control', again a very important victim-focused measure

This is to protect the reputation of accused persons in the event of an acquittal, but it also has the effect of reducing gratuitously salacious media coverage – fairer for accused and complainants alike. This disparity alone would have made an enormous difference to the way in which the Belfast trial was reported upon, as much of the media and public interest related to the men’s identities.

Public exclusion

Secondly, members of the public are excluded from attending rape trials in Irish courts. This rule would again have made an immense difference in the conduct of a trial such as this; and is clearly fairer both to complainants and to accused persons.

In addition, our new Domestic Violence legislation, currently before the Dáil, will introduce a much-needed new offence of “coercive control”, again a very important victim-focused measure.

And our recently passed Criminal Law (Sexual Offences) Act 2017 has introduced substantial new procedural protections for victims within the trial process, and for the first time creates a statutory definition of consent – very important in those cases which turn on that precise issue.

An acquittal in a rape case does not of course necessarily mean that the jury did not believe the complainant, or believed the complainant did not consent, because the prosecution must not only prove lack of consent, but also prove the “mens rea” or mental state of the accused, beyond reasonable doubt. It is indisputably difficult to prove rape – a fact which emerged in a different context during the hearings of the Oireachtas Committee on the Eighth Amendment.

Thus, although we have different procedures from Northern Ireland in some respects, we know that more needs to be done here too, in order to reassure victims that the process through which they will go if they make a complaint of rape will be fair to them, as well as to the accused.

For a start, all the relevant protective provisions in the 2017 Act should be commenced as a matter of urgency.

Legal representation

Secondly, we should look again at the issue of separate legal representation for complainants. One striking aspect of the Belfast trial was the fact that the young woman complainant was alone in court, without legal representation; whereas each of the four accused had a separate legal team, as was their right. This meant that she could be subjected to cross-examination by four separate barristers. The same situation applies here, although we do have some minimal rights of legal representation for complainants.

Law reform alone is obviously not sufficient to address the causes of rape or sexual assault

The 1995 Civil Legal Aid Act allows limited legal representation for complainants in rape cases, not extending to advocacy rights. The 2001 Sex Offenders Act provides that the complainant can have access to a legally aided barrister to argue on her behalf in court where the accused seeks permission to bring forward so-called “sexual history” evidence.

The question now is whether we should extend that right of representation further for complainants in rape cases, particularly where there are several defendants. This is certainly one potential reform that should be examined to see if it could be implemented without unduly encroaching on the due process rights of the accused.

General rights of legal representation are already provided for in other European jurisdictions, such as France and Belgium, where in rape cases the complainant is legally represented as a party in the case (a partie civile) – and research we conducted some years ago showed the cross-examination process there to be less hostile to the victim as a result.

Consideration should now be given to whether there is scope to introduce a similar model into Irish law, by way of support to the complainant. But law reform alone is obviously not sufficient to address the causes of rape or sexual assault. A preventative approach should emphasise the vital role of education in changing attitudes and challenging prevailing myths about rape, in order to tackle cultural perceptions of masculine entitlement and reduce the incidence of sexual abuse.

Senator Ivana Bacik, is Reid Professor of Criminal Law, Criminology and Penology at Trinity College Dublin