Introduction of preliminary hearings in rape trials ‘urgently needed’

Initiative must be supported by adequate resources within court system, says researcher

Those involved in rape trials should “refuse to accept” delays which only compound the trauma of victims, a seminar exploring the realities of court experience has heard.

Dr Susan Leahy, a senior lecturer in law at the University of Limerick, presenting an overview of her new research at an online seminar hosted by the Dublin Rape Crisis Centre (DRCC), said lengthy trial adjournments served nobody's interests.

During the preparation of her report The Realities of Rape Trials in Ireland, published on Monday, such delays were the most common voluntarily raised issue among legal professionals and court accompaniment workers who participated.

It sets out a “clear and urgent need for preliminary trial hearings” where the issues that could lead to delays, including disclosure and applications for the admissibility of sexual experience evidence or counselling records, could be dealt with in advance of the actual hearing.

“This would not only minimise delays but also prevent any unnecessary distress for complainants,” the paper notes.

The Criminal Procedure Act 2021 proposes the introduction of preliminary hearings, a move welcomed by Dr Leahy who said it must be supported by adequate resources within the court system.

“We need to get to a place where we refuse to accept delay as part of the process and to actively challenge it,” she told the seminar.

Barrister Katherine McGillicuddy said she has seen court delays affect both the accused and the victim. “It really is a case of justice delayed is justice denied,” she said.

Ms McGillicuddy noted a testimony in the report relating to a complainant who had delayed getting counselling until after the trial as a form of personal protection.

“I found that on a personal level very sad that a person would delay a process that may be of benefit to them in terms of long term recovery, if that’s the right word, because they wanted to do the trial first and the trial then is delayed several times,” she said.

The report conducted semi-structured interviews with legal professionals and court accompaniment workers and also examined the areas of consent, judicial directions in trials, sexual experience evidence, counselling records and legal representation for complainants.

DRCC chief executive Noeline Blackwell said questions had to be asked regarding the need for access to counselling records, and advocated for the presence of legal representation for the complainant during cases where they are being questioned on their own sexual experience.

The report identified a consensus on the existing regulation of sexual experience evidence admissibility which it said seems to be working well “in the sense that applications are only successful where the evidence is genuinely relevant to the case”.

As regards to access to counselling records, it said a wider debate was required as to whether they should ever be used as evidence.

“In the meantime, the introduction of the scheme to regulate the disclosure of counselling records is an important recognition of the challenges posed by this type of evidence and the trauma and upset complainants may experience if details of their experiences of counselling are introduced as evidence at trial,” it said.

Mark Hilliard

Mark Hilliard

Mark Hilliard is a reporter with The Irish Times