A rape trial shouldn’t spell a second trauma

Leona O’Callaghan, right, hugs consent protester Stacie Ellen Murphy outside the Central Criminal Court in Dublin late last year after Patrick O’Dea of Pike Avenue, Limerick, was sentenced to 17 years for her rape and sexual assault on dates in 1994 and 1995. O’Dea pleaded guilty on the second day of his trial. Caroline Counihan says that almost all survivors of rape and sexual assault will describe the trial as one of the most difficult things they are forced to experience, and that we need to change that if we are to improve justice for victims. Picture: Laura Hutton/Collins Photo Agency

Reporting sexual violence and going through a criminal trial is arduous and challenging for many survivors and the system needs a major overhaul, writes Caroline Counihan.

In Ireland, reporting sexual violence and going through a criminal trial is still arduous and challenging for many survivors, despite recent significant improvements in the system.

For those survivors who stay the course and for whom the Director of Public Prosecutions sends the case to trial, almost all will experience it as one of the most difficult things they have experienced. We need to change that if we are to improve justice for victims.

Last year, in the wake of the nine-week trial in Belfast which saw Ireland and Ulster rugby players Paddy Jackson and Stuart Olding cleared of rape, Justice John Gillen was handed the challenge of reviewing how

sexual crime cases are dealt with in the North. His report has recently been published and a parallel report in the Republic, led by Dr Tom O’Malley of NUIG is expected to be completed shortly.

While the North’s terms of reference for the report into the law and procedures in serious sexual offences cover several aspects of law and procedures, the terms of reference of our review are restricted to protections for vulnerable witnesses of sexual offences.

Nevertheless, Justice Gillen’s report and recommendations are relevant to the review in this country, as they keep a clear focus on the survivor’s “journey” through the criminal justice system, analysing its difficulties and suggesting solutions along the way.

Though there are some differences between the two criminal justice systems, they have so much in common that Sir John’s perspective and conclusions are very useful to us.

RCNI’s own standpoint is that sexual violence survivors are inherently vulnerable, and certain groups are even more so. All survivors need specialised supports to engage with the criminal justice process so that they are facilitated to give their best evidence, and in such a way that the risk of being re-traumatised by the court process is minimised.

We expressed these views in Hearing Every Voice, the report we published last year setting out the findings of the small group of experts from different disciplines we convened to examine the issues facing vulnerable witnesses.

Long delays are a very serious deterrent and source of additional trauma to survivors. There is much we can do.

Sir John’s analysis and proposed solutions speak of “radical steps” to combat delays, and advocate “front-loading” the system and improving case-management at the early stages, with co-operation from both prosecution and defence.

In the Belfast rape trial, what struck many people unfamiliar with these cases was the lengthy, intensive cross-examination of the complainant. Sir John looked at how that process might be improved from a complainant’s perspective. For instance, he recommends more robust control of defence cross-examination by judges, particularly in relation to “previous sexual history” evidence.

While our own law in this area differs from that in the North, his general point applies to our own system. RCNI would add that judges should be alert also to forestall or cut off cross-examination by the defence which is irrelevant, repetitive, or oppressive or which tries to insinuate that someone is more likely to have consented to sex because of the way they were dressed, the amount they had drunk, and so on.

Sir John recommends, as did we, that we move to pre-recorded cross-examination for many children, other vulnerable witnesses and eventually, adult complainants.

Pre-recording cross-examination as well as statements would reduce significantly the time between the offence taking place and the child (or other vulnerable) victim giving evidence.

This would improve recall and therefore, the quality of the evidence, and it would mean that lengthy delays between charge and trial would not take such a toll either on survivors or on the quality of their evidence.

Throughout the survivor’s journey through the system, Sir John notes that the professionals involved must be specialists with the appropriate training.

This includes training for judges and a “radical departure” from traditional advocacy styles. He expresses very well our own view that professional training should include material on rape myths, the impacts of sexual violence, the reasons why these crimes are so under-reported and why survivors might withdraw their complaints (and so on), delivered by outside experts to judges, barristers and solicitors.

We also agree with Sir John that it would be good for survivors to have more access to legal advice and information, but we would say that this needs to be available to survivors from the moment at which they are first thinking about making a Garda report through to sentencing (and beyond, sometimes).

We welcome very much his strong focus on child witnesses and how they can be both protected and helped to give their best evidence. He advocates strongly that the Barnehus or ‘Child House’ approach should be tried.

It brings together all relevant experts, psychological and legal, to support the child in a friendly, informal and unthreatening environment as s/he is asked questions which will be recorded and stand as their evidence at trial.

It is very heartening that Barnehus will now be piloted in this country as it has been in England very recently. We do have specially trained professionals already to do pre-recorded interviews with child victims of sexual (and sometimes other) offences, so we can now build our Barnehus on a firm foundation.

Key people in the process are the members of the jury. While some matters can be addressed in the courtroom through instructions from the judge, it has to be recognised that jurors bring a wealth of their experience and indeed prejudice into a courtroom.

However, changes in attitudes towards rape survivors must also be addressed. Sir John’s report advocates, among other things, awareness-raising programmes, such as the large-scale one launched by our own Minister for Justice Charlie Flanagan called No Excuses just last Thursday — as well as much more education at all levels.

We would go further and look forward to a day when we don’t have to tackle rape myths in the courts because the cases are tried on evidence alone and these biases (if they still exist) are excluded altogether.

Caroline Counihan BL is the Legal Policy Director at Rape Crisis Network Ireland

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