Irish judges should receive guidelines on how to warn rape juries about prejudicial stereotypes of rape complainants, a leading expert has said.
Other jurisdictions, including Northern Ireland and the UK, allow judges to address juries about so called "rape myths", including the notion that alcohol consumption or revealing clothes can somehow imply consent.
In the UK, non-statutory guidelines exist for how judges can address these issues before sending the jury out to deliberate.
However no such guidelines exist for Irish judges who have traditionally been reluctant to address such issues for fear of giving rise to a later appeal against the jury verdict.
Dr Susan Leahy, author of the book Sexual Offending in Ireland: Laws, Procedures and Punishment, said jurors in rape trials can become distracted by questions of how much the complainant had to drink or what they were wearing, when in fact the only question they have to decide is whether she consented or not.
“When they’re in the courtroom with the wigs and gowns, jurors can get distracted from the issue of consent with issues like ‘didn’t she behave foolishly’ or ‘God should she really have drunk that much.’”
Instructions from a judge could “bring the jury back to reality”, she said. “Before they go into the jury room, the judge can drag them back into reality and remind them it’s not their job to determine if someone was foolish. It’s their job to determine if there was consent or not.”
The introduction of the guidelines could be examined in the Government’s current review of the laws surrounding rape and rape trials, she said.
Dr Leahy believes it is vital to instruct jurors on “rape myths” as research shows they are believed by a significant proportion of people. A 2016 Eurobarometer survey showed that 11 per cent of Irish respondents believed that being drunk or on drugs may make having sexual intercourse without consent justified.
Nine per cent believed that voluntarily going home with someone or wearing revealing, provocative or sexy clothing could justify non-consensual sex.
Under Dr Leahy’s proposal, judges would be given template instructions on how to address these myths in their address to the jury. These directions would not be prescriptive or mandatory and could be adapted to fit the case in question.
“You’re not putting in a direction saying ‘you must say this or that’. You’d get a backlash on that here because it’s an interference with judicial independence and also it might not fit a particular trial.”
In the UK these directions are contained in the Crown Court Compendium which is issued to judges in the form of a “bench book”, something which is not available to Irish judges.
The issue was highlighted during the recent high-profile trial of Irish rugby players Paddy Jackson and Stuart Olding in Belfast. The pair were found not guilty of rape. Using the guidance in the bench book as a template, Judge Patricia Smyth instructed jurors they must not assume the complainant in the case wanted sex just because she had consumed alcohol or gone back to Mr Jackson's house.
Dr Leahy said the format of such guidelines in the Republic could be set by the Judicial Council which is due to be established once the Judicial Council Bill 2017 passes the Oireachtas.
“This is a really cheap way to further advance the Bill. It doesn’t require legislation and it doesn’t require a lot of research. We have the template from the UK. It could be a very easy win.”