Abstract
Sexual assault cases have historically resulted in persistent victim dissatisfaction with, and alienation from, the prosecution process. As a result, some adversarial jurisdictions have moved contentiously towards integrating victim participation rights within the legal process to address sexual assault victims’ procedural and substantive justice concerns. The introduction of section 34 of the Sex Offenders Act 2001 (IRE), which allows a victim to access state-funded legal representation to oppose a defendant’s application for the introduction of the victim’s sexual history evidence in court, is one such example. Drawing from five interviews conducted with high-level criminal justice professionals, legal stakeholders and victim support workers, and an analysis of primary source documents, including legislation and reports, this article argues that, although section 34 represents a unique response to the problems raised by the use of a victim’s sexual history evidence in criminal trials, its shortcomings may hinder its capacity to improve sexual assault victims’ procedural justice experiences in ways unanticipated from its introduction.
Keywords
Introduction
Adversarial justice is characterized by a contest between the state and accused, meaning that individual victim interests are not legally represented unless within ‘a passive context, [either] as [a] police informant or as [a] witness for the prosecution’ (Kirchengast, 2013: 569). This emphasis on the contest between the state prosecutor and accused has ‘eclipsed the recognition of the victim’s inherent interest’ (Victorian Law Reform Commission (VLRC), 2016: 26) for a due process that affirms the accused’s rights in relation to the power of the state (VLRC, 2016). This has led commentators to describe victims as the ‘forgotten’ party, whose views and interests remain largely alienated and excluded from the criminal justice system (Doak, 2005).
The reluctance to recognize victims as anything more than a prosecution witness stems from a concern that victims ‘will invite potentially subjective and thus prejudicial submissions on matters of state concern’ (Kirchengast, 2013: 570), which may compromise the ‘objective and public nature of the criminal justice system’ and hinder an accused person’s due process rights to a fair and impartial trial (Doak, 2005: 294–296). While greater credence has been given to victims’ rights and interests over the past three decades, the emphasis on a victim’s witness status has continued to be reflected in conservative adversarial reform, which has focused on enhancing the provision of information to victims, and, to a more limited extent, victim participation, for example, through a Victim Impact Statement. 1 Despite such changes, most victims continue to feel denied of procedural and substantive justice, 2 particularly in sexual assault cases, 3 as the challenges commonly associated with the legal process, such as insensitive treatment by authorities and distressing cross-examination, 4 become exacerbated, increasing the likelihood of secondary victimization (Doak, 2008). 5
Concerns over procedural (in)justice for sexual assault victims have underpinned Ireland’s shift towards increased consideration and involvement of victims in the legal process, beyond that of their witness status. In 2001, Ireland contentiously introduced a limited form of independent legal representation (ILR) for sexual assault victims pre-trial. Constituting a form of victim participation, this reform is distinct within adversarial systems in allowing a unique level of victim input. Section 34 of the Sex Offenders Act 2001 (IRE) (henceforth, section 34) inserted a new section (4A) into the Criminal Law (Rape) Act 1981 6 which allows sexual assault victims to access state-funded legal representation 7 to oppose a defendant’s application to introduce a victim’s sexual history evidence in court. This is a significant right in light of the parameters of adversarial legal systems, which have traditionally excluded victims. It also enables victim interests to be acknowledged and included, thereby recognising ‘a triangulation of interests’ among the accused, state and victim (Lord Steyn cited in Attorney-General’s Reference (No. 3 of 1999) [2001] 2 AC 91: 118). The ILR thus arguably helps to address some of the main criticisms pertaining to the prosecution process for sexual assault victims, particularly in relation to the cross-examination stage.
Drawing from interviews 8 conducted with five high-level criminal justice professionals, legal stakeholders and victim support workers, and an analysis of primary source documents, including legislation and reports, this article explores the extent to which section 34 provides an opportunity to prevent victims’ sexual history evidence from being used in court and improve victims’ procedural justice experiences. The article begins with a discussion of the emergence of ILR for sexual assault victims in Ireland, before presenting an overview of the potential benefits of section 34 in enhancing victims’ procedural justice experiences. It then considers how the various shortcomings of the reform, such as those revolving around the delayed notice of intention, the legal representative’s limited role and the inconsistency in judicial discretion, might compromise its positive impacts. The article concludes by contending that, although section 34 marks a unique approach to enhancing victims’ participatory rights and attempting to prevent the introduction of victims’ sexual history evidence in criminal trials, its limitations may hinder its capacity to improve sexual assault victims’ procedural justice experiences in practice.
Initial Proposals for ILR for Sexual Assault Victims in Ireland
In Ireland, initial proposals for ILR for sexual assault victims were put forward by rape crisis centres, women’s organizations and members of the Joint Oireachtas Committee in 1987.
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These groups lobbied for increased recognition of sexual assault victims’ rights throughout the criminal prosecution process in light of major criticisms related to the conflicting interests among the victim, accused and prosecution (the triangulation of interests), and the ill-treatment of sexual assault victims within the criminal justice process generally (Irish Law Reform Commission (ILRC), 1988). These criticisms were focused in particular on the cross-examination of victims, during which it was common for prosecutors to refrain from objecting to certain lines of questioning, such as questions related to the victim’s previous sexual history. In an attempt to address some of these shortcomings, it was proposed by the Joint Oireachtas Committee, along with other support bodies, that sexual assault victims be granted ILR throughout criminal justice proceedings. In this context, the legal representative would be entitled to intervene throughout the trial to protect the victim’s interests whenever they considered it appropriate to do so (ILRC, 1987, 1988). In making its recommendation, the Joint Oireachtas Committee (cited in the ILRC, 1987: 69) argued that: [A] defendant in a rape case […] can apply for legal aid and receive free legal representation. The complainant however is denied access to discussion or consultation with the legal representatives of the State. Indeed it is normal for a complainant to meet the State prosecutor for the first time in court on the day of the hearing. This practice is unacceptable, […] having regard particularly to the special and unique circumstances that apply in rape and sexual assault cases. […] Victims of rape should be able to consult with the State’s legal representatives before the court hearings and […] be fully briefed on court procedures, including the type of questions likely to be put to them by defending counsel. State counsel in prosecuting a case does not […] officially represent a complainant and […] complainants in cases of serious sexual assault, and particularly rape, should be granted free legal representation.
This recommendation was initially rejected by the Irish Law Reform Commission (ILRC) on the basis that it would be ‘constitutionally suspect’ if proceedings for sexual offences were conducted upon ‘fundamentally different principles from those applied in all other criminal proceedings’ (ILRC, 1987). Furthermore, the ILRC believed that such a radical change would tilt the balance of the criminal trial in favour of the prosecution as it would result in dual representation for the victim, despite the fact that the prosecution represents the state and, as such, does not routinely prioritize the victim’s interests. In support of its argument, the ILRC (1987: 69) claimed that permitting dual representation would be ‘hostile to the interests of the accused’ and jeopardize their right to a fair criminal trial.
Although the ILRC (1987) rejected the proposal for ILR for sexual assault victims throughout the entire trial, a modified version of this proposal was put forward to the Commission by the Joint Oireachtas Committee that a victim be entitled to ILR where a defence application is made to the judge for leave to cross-examine the victim on their prior sexual history. However, this proposal was also rejected by the ILRC (1987: 69) on the grounds that: The implementing of this suggestion would make a substantial change in criminal procedure, which would […] probably have far-reaching consequences. In practice, representation would be unlikely to make any difference to the judge’s ruling. […] Correspondents may not have appreciated that judges have a duty to protect all witnesses from unfair cross-examination by counsel […] they do not need counsel appearing for witnesses to remind them of it.
The ILRC (1987: 69) cited other potential consequences of such a proposal: If representation of witnesses in rape cases were allowed, it would be difficult to refuse it in other cases. Cross-examination about previous sexual behaviour […] is not the only kind of cross-examination about past conduct which may cause distress to prosecution witnesses.
Concerns also arose about the possibility of legal representatives ‘coaching’ victims by advising them on how to answer questions in cross-examination, or downplay or highlight certain aspects of their evidence (ILRC, 1987: 70). The ILRC (1987) stated that such ‘coaching’ would not only distort the course of justice but also undermine the principles upon which the adversarial criminal trial is based. Additionally, it raised concerns about funding victim ILR, suggesting that it would need to include means testing such as is applicable to accused people applying for legal aid (ILRC, 1987). The Commission argued that this could place some victims in a more vulnerable position by leaving them unrepresented (ILRC, 1987). At this point in time, therefore, the proposal was rejected.
Introducing ILR for Sexual Assault Victims under Section 34
Ireland revisited the idea of separate ILR for victims 10 years after the ILRC (1987, 1988) rejected the Joint Oireachtas Committee’s recommendations (Raitt, 2010). The issue of ILR re-emerged due to consistent pressure placed on the government by the Dublin Rape Crisis Centre. In particular, the centre drew upon empirical research findings from a report by Bacik et al. (1998), which presented a comparative analysis of the impacts of the laws and legal procedures that provided assistance, representation and support to victims of rape across 15 member states of the European Union. In this study, every jurisdiction, except England and Wales, and Ireland, offered victims some form of ILR throughout proceedings (Bacik et al., 1998). In light of their findings, Bacik et al. (1998: 18) recommended ILR for victims, arguing that ‘such a right should extend from the reporting stage, through to the trial’, to ensure that victims are kept informed of the case’s progress and pre-trial procedures. Bacik et al. (1998: 18) further argued that the victim’s prospective legal representative could also be present at trial to ‘intervene on behalf of the victim, for example, to request that certain protective measures be adopted, and to prevent unduly hostile questioning of the victim’, such as questions relating to their previous sexual history.
Given Ireland’s conservative history of law reform in the area of victims’ rights, the eventual introduction of separate ILR – via section 34 – marked a unique and contentious legislative response. Section 34 allows a victim to access state-funded ILR to oppose a defendant’s application to introduce a victim’s sexual history evidence in court. The amendment to the Criminal Law (Rape) Act under section 34, subsection 4A(1), states: Where an application under section 3
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or 4
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is made by or on behalf of an accused person who is for the time being charged with an offence to which this section applies, the complainant shall be entitled to be heard in relation to the application and, for this purpose, to be legally represented during the hearing of the application.
A victim’s legal representative can challenge an application by the defence to seek the leave of the judge as outlined in section 3(1) of the Criminal Law (Rape) Act. This right is significant as it marks the first attempt within an adversarial criminal law jurisdiction to grant sexual assault victims the right to have ILR in this context. It also represents legal recognition of the trauma associated with sexual assault victims giving evidence in court, under cross-examination in particular. This form of ILR could thus help to reduce the likelihood of secondary victimization resulting from criminal procedures and attend to victims’ key procedural justice needs, as explored in the next section.
Increased Victim Participation Meeting Victims’ Procedural Justice Needs
As stated above, the introduction of section 34 marks a significant milestone in the area of victims’ rights. Participants in this research identified that ILR has strong potential to address victims’ procedural justice needs for information, voice, control and arguably, validation. In relation to information, the victim’s representative can test the rationale for the application to cross-examine the victim on their prior sexual history and force the defence to justify the application, to a greater extent than would be possible were the victim not legally represented. ILR also provides the victim with information that enables them to better understand the rationale for the application and the outcome, as their legal representative acts as an interpreter of the law and criminal prosecution process. In terms of voice, the victim’s legal representative has the ability to oppose the legal argument underpinning the application and its relevance to the case. In this way, the representative can be seen as accountable to the victim as they defend the victim’s interests and right to privacy. This is an important benefit of section 34 as it gives a voice to victims who have traditionally had very limited input into their case due to their role as a witness. Section 34 may also enhance victims’ control in the process, as their legal representative can counteract the argument to include the victim’s sexual history evidence; and if the counter-argument is upheld by the judge, the victim will be more likely to feel a sense of agency and control in the process. However, even where the defence’s argument to adduce the victim’s sexual history is accepted, the victim’s perception of being heard through their representative will in turn enhance their sense of autonomy and control throughout proceedings. With regard to validation, Participant A, a Principal Officer working within a national gendered-based violence organization who was consulted in this research, argued that the victim may feel validated if the case results in a guilty verdict, but that ‘the system is not really geared to validating them [victims] otherwise’.
This all suggests that victim participation through the provision of ILR has the potential to address some of the main criticisms of the prosecution process in relation to victim experiences, particularly as it may contribute towards the victim’s sense of achieving procedural justice, and allow them to feel like genuine participants rather than mere witnesses. This is an important consideration in light of the findings emerging from Payne’s (2009: 22) report on the perceptions and experiences of rape victims in the criminal justice system: Victims frequently expressed anger that their place in the criminal justice system is effectively as a witness in their own case. Many were disappointed that the prosecution represents the Crown, rather than the victim, in contrast to the defendant who has his [sic] own legal representation.
The broader implications of Payne’s (2009) findings may therefore suggest that, prior to the introduction of section 34, the absence of ILR for sexual assault victims in Ireland meant that victims did not feel supported or confident that their privacy, including in relation to their prior sexual history, would be protected. In this regard, the provision of ILR has the potential to enhance victims’ procedural justice experiences and address the objectives of the An Garda Síochána Victims’ Charter (IRE), which include that priority be given and commitment made to protecting victims’ dignity, concerns and needs.
On this note, participants in this research contended that Ireland has come a long way in relation to protecting sexual assault victims’ privacy and procedural justice needs (Participant A, Principal Officer, national gendered-based violence organization; Participant B, CEO, sexual violence support centre). Indeed, Participant A described section 34 as providing a necessary protective barrier between the victim and the arbitrary use of previous sexual history questioning: The experience was that, in looking at sexual history, there was a general trolling through a woman’s sexual history [experiences]. […] She’s trolled by the fact that she’s had lots of partners and then to imply that she was […] ‘wildly promiscuous’ and […] ‘careless’ as to who she slept with.
The importance of such concerns are reflected in the beneficial role of ILR in this context, as Bacik et al. (2010) note: Victims groups were delighted to see the introduction of section 4A, enabling the victim in a rape or sexual offence trial to have legal representation to enable her or him to argue against the introduction of evidence relating to sexual experience. […] This represented some improvement on the old law, and might contribute to making the trial process a less traumatic experience for the victim.
Section 34 can thus act as a legislative safeguard to shield victims from these sorts of questions, or at least challenge the perceptions that lead to such questioning. As Participant A noted, the ILR ‘protects the victim from an incursion into their private life’, which may prevent secondary victimization and go some way towards addressing victims’ procedural justice needs, as victims are more able to challenge, control and prevent the introduction of their sexual history evidence in court.
Victim inclusion in and satisfaction with the criminal justice process
The significance of enhanced victim participation rights through ILR has been emphasized by Bacik et al. (1998: 17–18), who discovered that: A highly significant relationship was found to exist between [victims] having a lawyer, and overall satisfaction with the trial process. The presence of a victim’s lawyer also had a highly significant effect on victims’ level of confidence when giving evidence, and meant that the hostility rating for the defence lawyer was much lower.
Within this context, section 34 could increase victims’ confidence during the cross-examination stage, and thereby enhance the likelihood of victims reporting and mitigate the high rates of attrition in sexual assault cases. For the Director of Public Prosecutions (DPP), this equates to potentially securing more convictions, which contributes towards its stated aims of prosecuting in the public’s interest and providing protection from sex offenders (Rape Crisis Network Ireland (RCNI), 2012).
Victim participation in the criminal justice process is important even in cases that do not result in conviction. Most participants in this research shared this view in line with procedural justice theory, which posits that the attainment of a conviction is not the only factor determining a ‘just’ outcome (Clark, 2010; Tyler, 2007). As Participant C, a sexual assault clinical lead counsellor, observed: Initially if somebody is found not guilty, there is […] immediate […] distress, anxiety, anguish […] disbelief and anger. […] When people have had a little time to reflect, they can reflect on at least the fact they have got to court, because not many cases get to court. […] Lots of people […] say, ‘I’m not even thinking about the verdict, I just want my case to be heard, I just want charges to be brought’; […] they have held the person who perpetrated the offence accountable, they haven’t just ignored it, or not reported or dropped out. That in itself is an achievement, being able to face the person that did this in a courtroom setting is very powerful. […] People have said to me, ‘[…] I think they believed me, but I think they believed him too’. […] People will say beyond reasonable doubt is a very high level of proof […] because you can doubt anything. Or they will say, ‘It’s easier to believe that I was a fibber, than that he was a rapist.’
This comment demonstrates that, for some victims, reporting the crime and taking the case to trial represents a victory in itself, and signifies the importance of ensuring that the offender is held morally accountable, even when the crime cannot be proven in a court of law. It also highlights the significant role that procedural justice plays in shaping victims’ perceptions of justice outcomes.
Problems with the Application of Section 34
Notice of intention to cross-examine on prior sexual history
One of the concerns regarding the practical application of ILR for victims relates to section 4A(2), which deals with ‘notice of intention’ (otherwise known as applying for ‘leave’). Section 4A(2) states: Notice of intention to make an application under section 3 or 4 shall be given to the prosecution by or on behalf of the accused person before, or as soon as practicable after, the commencement of the trial.
Additionally, it states: Subsections (3), (4) and (5) set out the obligations of the prosecution to notify the victim of the application and his/her right to be legally represented, the judge’s obligation to ensure subsections (2) and (3) have been complied with, and the judge’s obligation to postpone or adjourn the trial if, ‘in his [sic] opinion’, the period between the complainant’s being put on notice of the application, and the application itself, is not long enough to ‘have afforded [the victim] a reasonable opportunity to arrange legal representation’ – respectively. (RCNI, 2012: 6)
The participants in this research noted that it is common for defence lawyers to apply for leave to cross-examine well after the commencement of the trial, which limits the time available to the victim to prepare for court and arrange ILR (Participant C, sexual assault clinical lead counsellor; Participant B, CEO, sexual violence support centre). As Participant B argued, ‘prior to setting the court date, one would hope that the defence would make the request before the trial, but sadly sometimes it happens that the defence doesn’t make the request until during a trial’. Not only does this have emotional and psychological consequences for the victim, but, as Participant B argues, it can also impact on the victim’s confidence when testifying, which can prolong their recovery.
In a recent submission tendered by Ireland’s Legal Aid Board to a Review into the Investigation and Prosecution of Sexual Offences, 12 they stated that defence counsel generally notify the prosecution of their intention to make an application ‘close to, or after the commencement of the trial, [and] sometimes shortly before the complainant is due to give evidence’ (Legal Aid Board, 2019: 4). This limits the time available to source counsel who are sufficiently briefed on the case. It also diminishes any opportunity for meaningful consultation between the victim and legal representative. In fact, it is common for victims to meet their legal representatives ‘outside the courtroom door’ on the day of the hearing (Legal Aid Board, 2019: 5). When considering that the rate of Legal Aid uptake by victim-applicants increased by 81% over the last five years (26 applicants in 2014 compared to 47 applicants in 2018), resourcing issues will continue to impact victims’ experiences of procedural justice and will likely affect their quality of evidence in instances where the judge decides to accept the defence’s application to cross-examine the victim’s prior sexual history.
In a study conducted by Bacik et al. (2010, cited in RCNI, 2012), they found that notice of intention to apply for leave to adduce sexual history evidence is usually issued by the presiding judge, regardless of whether the application was made before or during the trial. Further, they state that ‘[the] defence may be giving notice of intention to make a section 3 application even where there is little or no real prospect of them doing so’ (2012: 6). Bacik et al. argue that section 3 applications were thus being made (late or otherwise) as a basis to ‘intimidate’ the victim and ‘discourage’ them from continuing with the prosecution (2012: 6). Bacik et al.’s (2010) and Hanly et al.’s (2009) studies also draw attention to the wide range of ‘apparent bases’ for granting section 3 applications. They found significant discrepancies among judges in the exercise of their discretion to permit section 3 defence applications in the trial to not only adduce previous sexual history evidence, but also cross-examine the victim (Bacik et al., 2010; Hanly et al., 2009; RCNI, 2012).
These issues have been observed in other adversarial jurisdictions. For example, a UK-based study conducted by Kelly et al. (2006: 77) identified that safeguards on victims’ sexual history in rape trials were overwhelmingly ‘evaded, circumvented and resisted’. The study found that, in practice, two-thirds of the trials sampled permitted applications to admit sexual history evidence without adhering to procedural rules. Furthermore, similar to the findings of the present research, Kelly et al. (2006) identified that applications were not commonly made pre-trial and two-thirds of the applications made at trial were admitted. Additionally, there was a strong correlation between an application to permit sexual history evidence and a defendant’s acquittal (Kelly et al., 2006; see also McGlynn, 2017). 13
Comparative trends are also notable in Scotland. Research conducted by Burman et al. (2007), for example, reveals that despite amendments to the Sexual Offences (Procedure and Evidence) Act 2002 (Scotland) intended to prevent the arbitrary use of sexual history questioning of the victim, defence counsel frequently sought late applications to cross-examine the victim’s prior sexual history either as a procedural step or as a basis to intimidate the victim. Burman et al.’s (2007: 2) study examined 231 sexual offence cases that were indicted to the High Court over a 12-month period (1 June 2004–31 May 2005) and found that almost three-quarters of High Court sexual offence trials (72%) included section 275 14 applications to adduce sexual history evidence under the revised Act. This figure stands in stark contrast to the findings of their initial study where applications for leave were only observed in just one-fifth of trials (21%) (Burman et al., 2007). Their study also found that ‘lodging of […] late application[s] […] was not, in itself, a barrier to the success of an application’ (Burman et al., 2007: 78).
These findings suggest that the perverse rationale to include a victim’s sexual history evidence, late or otherwise, is not unique to Ireland, but rather is indicative of a broader problem across adversarial systems. At the same time, the findings raise issues in regard to judicial decision making, which tie in with other concerns identified by the participants around the limited nature of the legal representative’s role in Ireland.
The limited role of the legal representative
The ILR provided for victims under section 34 only applies to the application stage. This means that if the judge allows the application, the victim has no further legal assistance and must go on to endure the cross-examination about their prior sexual history without representation. As demonstrated in the discussion above, applications to cross-examine the victim on their prior sexual history are commonly admitted by the judge. For example, Bacik et al.’s (2010) study found that, between 2003 and 2009, 70% of applications to allow prior sexual history evidence were granted by the Central Criminal Court across a sample of 59 cases of rape and/or aggravated sexual assault. This raises questions as to the relevance and value of the legal representative, given their limited role and input.
Participant A, a Principal Officer working within a national gendered-based violence organization, argued that the extent of the representative’s role in the trial is dependent upon the judge’s discretion. While the victim is entitled to have ILR in the event of an application, such representation is only supposed to be for the part of the hearing that involves the legal argument as to whether the victim’s past sexual history should be allowed in evidence. In reflecting on this issue, Participant A explained: The representation is around the ordeal in the absence of the jury [and] the legal argument [as to] whether the evidence is admissible or not. Now there may be some pre-hearing of the evidence for the judge to assess what is at issue, but the trouble then is that the legal aid is for the ordeal only and not for the subsequent questioning, and the practice there I think varies. Sometimes the court asks the person [the legal representative] to wait for the questioning to see that it follows the spirit of what was agreed in the legal argument and sometimes conversely, the judge will ask the legal representative to leave.
The problem here is that this judicial discretion leads to inconsistencies in victims’ experiences with the criminal justice system, including their perception of procedural justice and better substantive outcomes. Such inconsistencies are likely to contribute to attrition rates and dissatisfaction levels with the criminal justice process. Significantly, this discussion highlights problems pertaining to judicial discretion and (in)consistency in legal procedure. It also points to a need to expand the legal representative’s role so that they can be present during the cross-examination of the victim if the judge decides to accept the defence’s application. This may help to address issues of consistency in judicial decision making and potentially reduce feelings of anxiety and stress experienced by sexual assault victims who are cross-examined. This is an important consideration in light of one of the key objectives of the reform, which is to assist victims throughout the cross-examination – a stage in the criminal trial that is identified as one of the most traumatic aspects of the trial for sexual assault victims.
A limitation of section 3: Supporting myths about rape and sexuality?
Although section 34 has increased the scope for victim participation through ILR and supporting victims’ interests and right to privacy about their previous sexual experiences, section 3(1) of the Criminal Law (Rape) Act creates a possible limitation. Section 3(1) states that ‘no question shall be asked in cross-examination at the trial, by or on behalf of any accused person at the trial, about any sexual experience of a complainant with a person other than that accused’ (Criminal Law (Rape) Act, emphasis added). This means that questions may still be asked in relation to the victim’s previous sexual history with the accused. What is problematic about this is that research has shown that most rapes and sexual assaults are perpetrated by someone who is known to the victim, such as an intimate partner (Daly and Bouhours, 2010). In addition, while section 3(1) is supposed to offer a protective measure to victims, section 3(2)(b) maintains that judges can permit questioning or evidence relating to a victim’s sexual history if they are convinced by the defence’s application that such evidence or questioning has relevance and significance to the case, insofar as the jury might be persuaded to believe that the accused person was guilty were that evidence not adduced (Criminal Law (Rape) Act). James Hamilton (2010: 2), former Director of the DPP, supported this legislative provision, claiming: What is important is to have a legislative scheme which will allow evidence of previous sexual history to be admitted where it is properly relevant, as will frequently arise where a rape is alleged to have been perpetrated by a person who is, or has been, in a sexual relationship with the complainant.
What is concerning about this is that the legislation fails to recognize the complexities surrounding rape investigations and prosecutions, as any evidence relating to a victim’s prior sexual history can reduce the likelihood of successful conviction. This is especially so considering that consent (or lack thereof) is difficult to prove in rape cases, particularly in the context of intimate relationships, in relation to which misconceptions surrounding sexual assault remain prevalent (Kelly et al., 2006). For example, considering that rape in marriage was not defined as a crime in many common law jurisdictions until the late 20th century, it is not uncommon for the myth that rape cannot occur in marriage to infiltrate social and legal discourse, as many people still believe that marriage (or an intimate relationship) implies ongoing consent – thus upholding the myth that only ‘stranger rape’ is ‘real rape’ (Hasday, 2000). Other rape myths in relation to intimate relationships revolve around the idea that women maliciously fabricate claims to seek revenge (Easteal and McOrmond-Plummer, 2006; Estrich, 1987). Such problematic beliefs have been proven to distort the pursuit of justice, from as early as the initial reporting of a crime through to the trial (Easteal and McOrmond-Plummer, 2006; Estrich, 1987). This is especially so in relation to jury deliberations, where preconceived (but false) notions based on gendered prejudice have been known to influence the verdict (Taylor, 2007). Despite a breadth of research that counteracts these myths and false claims, such beliefs persist among criminal justice personnel and the general public (Easteal and McOrmond-Plummer, 2006; Estrich, 1987).
The Irish legislation thus does not provide sufficient protection from these misconceptions. The legislation does acknowledge that, traditionally, these prejudices have impacted on trials; but by allowing applications and giving the judge discretion in exceptional circumstances, it allows prejudice to continue to shape the outcomes of cases and the experience of victims in relation to procedural and substantive justice. This is evident in Bacik et al.’s (2010) study in which they found that the most common bases upon which applications were made were when there existed consensual sexual relations between the accused and victim before the crime, alleged promiscuity or routine display of suggestive behaviour by the victim and previous allegations by the victim of sexual crime. As mentioned above, their research also identified that nearly three-quarters of applications to allow such evidence were granted by the court in 59 cases of rape and/or aggravated sexual assault (Bacik et al., 2010). While the percentage of cases in which the victims consented to the application to cross-examine is unknown, this proportion of successful applications is problematically high; and it can be presumed that, given the damaging effects of cross-examination for victims, it is unlikely that many victims (if any) would have consented to the application (RCNI, 2012). In light of these findings, Bacik et al. (2010) highlight ‘strong criticisms of the rule [allowing the admission of previous sexual history evidence in certain circumstances] which can perpetuate outdated and sexist myths about rape and sexuality’ (cited in RCNI, 2012: 5).
As noted above, these findings are not unique to Ireland, but reflect trends in other adversarial jurisdictions that exploit loopholes in safeguards to prevent the introduction of victims’ sexual history. For example, in considering the findings of the broader research from which this article derives, in Australia, the state of Victoria has a statutory safeguard placing limits on the cross-examination of a victim’s previous sexual history unless, ‘because of special circumstances, it would be likely materially to impair confidence in the reliability of the evidence of the complainant’ (Criminal Procedure Act 2009 (Vic), s. 352(b)). As in Ireland, Victoria admits sexual history evidence in circumstances where the judge deems that: It has got substantial relevance; […] if someone is saying it’s rape and they subsequently allegedly had sex with the perpetrator, that would be relevant. […] It doesn’t sit that one minute you’re saying you’re raped and the next minute you’re consensually having sex with him. (Participant D and Participant E, Judges of the Victorian County Court)
Discussing more contentious scenarios, Participant E cited instances in which she would consider permitting a victim’s sexual history evidence in court, particularly where there had been a breakdown in a marriage and the woman claimed that she would have ‘never’ had sex with the accused subsequent to the breakdown. Participant E described how, in such cases, women may claim that they were sexually assaulted in a position to which they had not consented, while the defence may claim that, because this position was a part of the victim’s prior ‘sexual history […] and repertoire […] [that] she did do these things beforehand with consent […] that is an issue you might then want to seek to cross-examine her about’. Other Australian-based studies have also found that, in practice, many Australian jurisdictions still frequently use a victim’s sexual history evidence and reputation in court (Heath, 2005; Heenan, 2003).
According to McGlynn (2017), the experience in England and Wales reveals similar failures in the law’s response to the perceived ‘relevance’ of sexual history evidence. The Court of Appeal judgment in R v Ched Evans held that the victim’s sexual history evidence with persons other than the accused (third-party evidence) should have been considered in accordance with the ‘similarity exception’ under section 41(3)(c)(i) of the Youth Justice and Criminal Evidence Act 1999 (UK) because the complainant had: (a) ‘been drinking’; (b) ‘instigated certain sexual activity’; (c) ‘directed her sexual partner into certain sexual positions’; and (d) ‘used specific words of encouragement’ (Judge v UK, Application No. 35863/10, 2011 SCCR 241 at 28; McGlynn, 2017). McGlynn (2017: 391) argues that these judgments ‘undermine the principles of autonomy and free choice which should underpin any notion of consent to sexual activity’ and serve to construct highly ‘prejudicial assumptions about women’s passivity in sexual activity’ (2017: 382). Permitting defence applications in these circumstances also problematically serves to render women responsible for their victimization and offers legal impunity to perpetrators for their infractions.
The experiences in comparative international jurisdictions therefore shed light on the weak legislative frameworks governing restrictions on the admission of victims’ sexual history evidence insofar as they allow for the infiltration of rape myths and stereotypes in the courtroom in ‘exceptional’ circumstances. Similar to Bacik et al.’s (2010) argument of the dangers of allowing for these exceptions, such examples also highlight that, in practice, the legislation in place does little to protect victims’ rights and interests and ‘hinders them [victims] from giving their best evidence’ (McGlynn, 2017: 391). This can leave victims equally as vulnerable as they would be if the legislation did not exist.
Conclusion
The provision of separate ILR for sexual assault victims in Ireland represents a significant shift towards enhancing victims’ rights in adversarial criminal justice systems. It allows a unique level of victim participation in the legal process, enabling victims to access government-funded ILR to oppose a defendant’s application for the introduction of their sexual history evidence in court. The introduction of this reform demonstrates that Ireland has sought to redress the trauma associated with sexual assault victims giving evidence, and being cross-examined in particular. As noted by the Stern Review (2010: 98): Although the representation in Ireland is limited, it represents an important recognition that there are times during the trial process where victims must be allowed to participate in the trial as more than witnesses – in order to protect their rights and interests.
This article has explored the significance of the reform within this context, drawing upon the ways in which increased victim participation through ILR can enhance sexual assault victims’ experience of procedural justice, specifically by offering victims a voice, degree of control and information during the process. If a case results in a guilty verdict, it may also offer victims validation.
However, the shortcomings of the reform, such as those revolving around the delayed notice of intention, legal representative’s limited role and inconsistency in judicial discretion, question the extent of the positive impacts of this reform for victims. The findings throughout this article demonstrate that, even since the introduction of this reform, a high volume of applications to adduce victims’ sexual history were being granted, which suggests that there appears to be minimal preclusion of victims’ sexual history evidence in criminal trials in practice. And ‘despite compelling justifications for restrictions on the use of sexual history evidence’, the failed safeguards point to the ‘erroneous purposes’ for which it is frequently admitted in court (McGlynn, 2017: 373), many of which stem from the ‘resilience of cultural mythologies about women and sexuality’ (Stubbs, 2003: 23).
On this backdrop, while noting the potentially beneficial impacts of ILR for sexual assault victims in the context of section 34, particularly in terms of fostering victim participation within the legal process and protecting victim’ from further harm, the findings presented throughout this article suggest that the implementation of ILR has had a counter effect of retaining sexual history evidence in trials. This issue is not unique to Ireland, but rather, as demonstrated throughout this article, is commonplace across international jurisdictions even amid reform to rape shield legislation designed to protect victims’ sexual history evidence from being used in court.
Ultimately, the shortcomings of section 34 lend further support to research which has critically analysed women’s experiences of procedural injustice following a bevy of victim-oriented reforms intended to improve victims’ status, rights and treatment (see, for example, Bronitt, 1998). The gaps between the theoretical aims and practical outcomes of section 34 limit the prospect of sexual assault victims attaining procedural justice through the restricted form of ILR offered in Ireland. While one solution may involve the need to extend the ILR beyond the application stage, urgent responses are also needed to ‘challenge [the] deeply embedded practices […] that result in women’s sexual history and character influencing determinations of responsibility, blame and guilt’ (McGlynn, 2017: 392), and that underpin the frequency and rationale of applications to adduce sexual history evidence.
Footnotes
Declaration of Conflicting Interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.
