The publication of the review of Protections for Vulnerable Witnesses in the Investigation and Prosecution of Sexual Offences marks a significant advance in the recognition of the rights of victims of sexual offences. If the recommendations are carried out, victims of sexual offences and other vulnerable victims will have greater access to justice and our whole society can have greater confidence in the justice system.
In particular, the report, written by NUI Galway academic and barrister Tom O’Malley, addresses the reality known to every victim who has reported a sexual offence: that Irish criminal law processes, procedures and personnel do not adequately understand the nature of sexual offences. Thus the rights of victims of these crimes are often ignored. Worse, it fails to understand the invisible trauma to a person’s most intimate self. It means that our courts are frequently a cruel place for victims, where they risk being as traumatised by the court process as they were by the original offence. As a result, many are discouraged from reporting at all – giving confidence to perpetrators that they may possibly never have to account for their harmful actions.
The review was first promised by then-minster for justice Charlie Flanagan in April 2018 so it is heartening that, after a long hiatus, Minister Helen McEntee has pledged to implement it without delay. She has set a 10-week delivery deadline for an implementation plan that includes all relevant actors, including frontline agencies. As one of those organisations helping victims in the aftermath of rape and sexual assault, and having listened carefully to their concerns and experiences, the Dublin Rape Crisis Centre made a raft of proposals to the review group in December 2018. Many of these suggestions are reflected in the report and will do much to address the challenges victims face at present.
On hearing these accounts at the Centre, it has often struck us that the same barriers and difficulties arise over and over in different contexts, in courts at all levels, throughout the land. Among the main issues for victims are delay in investigation and in trials, a sense of frustration and bewilderment through misinformation or lack of information, a sense of being alone and vulnerable in court, of being made to feel guilty and of the fear of reprisals from the accused.
Delay in trials is hugely upsetting for people who have been steeling themselves to give evidence only to hear when they arrive in court that a last-minute application is granted and the hearing date is pushed out for further agonising months. This report proposes to tighten case management so that such applications are made separately, before a case is listed for hearing.
Rigours of trial
One of the peculiarities of many sexual offences is that the main evidence in the case often consists of the contrasting statements of the person making the complaint and the person accused. A jury will hear one account presented in person by a lay witness who has suffered the offence and the trauma. The other account will be presented by expert and experienced lawyers representing the accused person. There is a serious imbalance in the two presentations. Dublin Rape Crisis Centre proposed that to re-balance the situation, the complainant should also have legal representation. While the review group did not accept that recommendation, they do say that victims should have greater access to free legal advice and information throughout the process. We definitely agree: victims who understand the process make informed decisions and can better withstand the rigours of investigation and trial.
Importantly, the review recognises the impact of trauma on victims and advises that legal personnel – including judges – receive training on how to better interact with vulnerable witnesses. This includes awareness of rape myths and biases which, because they are so pervasive throughout society, have an impact in our legal system too; who can forget the image of a lawyer holding up a young woman’s underwear in court, implying that wearing particular underclothes implied that she was asking for sex?
This report is a tribute to the work of Tom O’Malley and the inter-departmental inter-agency group. It is also a tribute to the many victims of sexual offences who, in spite of their own difficult experiences, spoke about those experiences to us or in public. In itself, therefore, the report is an important statement. However, its real importance hinges on its recommendations being carried out. Ms McEntee’s commitment to start work on certain aspects immediately, to produce a plan of action for the whole report within 10 weeks and to ensure implementation is essential.
Victims of sexual violence have lived too long in dread of a criminal justice system that serves them very poorly. That has to end. The programme for government calls sexual violence an “epidemic”. To end this epidemic, like any other, those in charge must ensure that mechanisms to stop the spread of violence are in good working order. Right now, the justice mechanism is not: every time a victim reports a sexual offence, all the flaws identified by Tom O’Malley impede their rights. This is just not good enough. We expect – and victims need – speedy, fully resourced implementation at the earliest opportunity possible.
Noeline Blackwell is CEO of the Dublin Rape Crisis Centre