Use of character references in rape trials needs to end
Such references are outdated and hark back to a time when legal system had narrow views
'A 2019 judgment brought much-needed clarity, so that we in Dublin Rape Crisis Centre, our colleagues around the country and all those who support victims and society generally can gain insights into sentences.' Photograph: Dave Meehan
In her powerful article in Wednesday’s Irish Times, addressed to the young Dingle woman who was a victim of rape by family friend Conor Quaid, Róisín Ingle highlighted a lasting blight in our legal system.
It is one which, viewed from the victim’s perspective, continues to demean and reduce the reality of the crime that has taken place.
Following a conviction for rape (and every other offence), the judge has to set what is called a “headline” sentence.
That is a sentence which the judge decides is objectively or normally correct for the crime, without taking anything else into account.
Such references come from a time when the legal system had strong if narrow views on who was respectable and worth hearing, and who was not
Then the judge has to individualise that sentence. Their job is to take into account any factors that make this particular crime more offensive than the norm – aggravating factors – and also take into account any relevant factors that could be found to the credit of the person convicted.
In a decision in December 2019, the Supreme Court clearly – and thankfully – set out categories of rape so that the same act which would merit a headline sentence of – for instance – seven years would merit higher sentences if there was also a particular breach of trust of a minor or intimate partner.
That judgment brought much-needed clarity, so that we in Dublin Rape Crisis Centre, our colleagues around the country and all those who support victims and society generally can gain insights into sentences.
We know less, a lot less, about the other side of the equation: what credit to give a convicted person against the normal sentence.
Credit is given for a person pleading guilty early, or where a crime is a person’s first offence or, as in this case, for a person’s good character.
Because we do not have national sentencing guidelines, or even an information database of previous sentences and because each judge is considered independent in their own court, we, the public, cannot tell what weight is given to these various factors.
Indeed, we are often told by lawyers that these character references mean very little to judges. Nonetheless, anyone facing a sentence will be told to gather such references from so-called respectable members of their community and those very people will be under pressure to produce them.
It is clear that the impact of these references will vary from case to case. Without personalising it to this case or any other one, we are aware that references have a particularly significant impact on victims in defended sexual offence cases involving a conflict of fact between the person who makes the complaint – the victim – and the person accused of the offence.
In such cases in particular, the production of references, after conviction, makes a strong statement as to who is believed by “respectable” society. And who is not.
Our legal system which personalises sentences to take account of aggravating and mitigating factors is a good one. It is important that we recognise the particular circumstances of each case. But it does need adjustment.
We have legislation that allows the publication of sentencing guidelines on sexual offences and we have recommendations from the O’Malley Review of Sexual Offences that suggest they be prioritised.
Transparency and accountability
Basic transparency and accountability requires them, indeed, as well as an information database.
Also needed is an inquiry into what type of personal information should be produced as a testament to a person’s character.
It continues to make sense to provide information which identifies their commitments and economic situation, as well as their criminal history or lack of it.
In this day and age however, it is hard to see the value to a court of opinions about a defendant’s respectability from another person.
Such references come from a time when the legal system had strong, if narrow views on who was respectable and worth hearing, and who was not.
Hopefully, that time has passed. With it should pass the use of character references in court.
Noeline Blackwell is chief executive of Dublin Rape Crisis Centre and a human rights lawyer.
Anyone affected by sexual violence can seek support on the National 24-Hour Helpline 1800-77 8888. More information can be found at drcc.ie