Clodagh Finn


Is it time to scrap character references in court?

The kind of premeditated manipulation practised with great skill by sex offenders also works on the friends, priests and TDs who are so often called on to write references, writes Clodagh Finn

Is it time to scrap character references in court?

INTERESTING words from barrister Michael O’Higgins who said there was no error of judgement in giving a convicted criminal a reference in court. It does not condone the crime, he said, but simply gives a wider view of a person.

You have to wonder if victim-impact statements succeed, in any shape or form, in giving a wider view of a person, but more on that anon.

Mr O’Higgins was speaking after former Irish Times journalist Tom Humphries was sentenced to just two-and-a-half years for grooming and sexually abusing a teenage girl.

There was public outrage about the leniency of the sentence. And rightly so. It was followed, with equal intensity, by a rush to condemn former hurler Dónal Óg Cusack and sports journalist David Walsh for providing character references.

However, there is little point in tearing strips off the two individuals concerned. They are just part of a wider system that needs reform.

Some might even say that what they did showed admirable loyalty. Hurling star Dónal Óg said his intention was to “help a human in a dark place”, while David Walsh said he in no way condoned the “terrible wrong” committed by Humphries but that a friend was there through thick and thin.

Surely, even those who commit the worst crimes have a right to their friends. We won’t get anywhere excoriating these two men for doing what they considered to be right.

The real question is this: Why do we allow what your friends say about you to be admitted as some kind of ‘evidence’ in a court of law? It is all the more bewildering when the crime involves sexual violence.

To allow character references in such cases shows a shocking lack of understanding of how sexual abusers operate to groom their victims.

The more upstanding they are in the community, the better able they are to manipulate that position to target the vulnerable.

If you stand up in court and champion their work for, say, a voluntary organisation, you are inadvertently praising them for inveigling themselves into a position where they can freely abuse.

The sexual offender is also well-versed in manipulating would-be reference writers. As Cliona Saidléar, director of the Rape Crisis Network of Ireland, told Joyce Fegan in this newspaper: “What we often find is that when a perpetrator identifies and targets someone to groom, they’ll groom everyone around them. They work to set up that silence.”

The kind of premeditated manipulation practised with great skill by sex offenders also works on the friends, priests and TDs who are so often called on to provide character references in court. So why are they still part of the process?

Mr O’Higgins has said “not much” weight is given to references but they “are part of the fabric” of the legal process. Ahead of references, he said, a judge takes into account a guilty plea, assistance to gardaí during the investigation, the level of remorse, then expert reports. Character references come at the very end of that list.

As a former reporter who spent long hours on the press bench, those testimonies designed to give the offender a fully rounded character often came across as formulaic and ugly in their cynicism.

If an offender has minded ill parents or was always polite and punctual in work — regular reference inclusions — how can that in any way cast light on an individual’s propensity to commit crime, and in particular a sexual one?

The world is full of sexual offenders who mind ill parents and are punctual and polite at work.

At the other end of the spectrum, it does not serve us to dismiss sexual offenders as ‘monsters’ or ‘sick sex pests’.

To demonise them is to make them even further invisible, as nobody will see the volunteering, ill-parent- minding individual as a threat.

The complexity of sexual violence and, in particular, the crime of grooming and targeting children will never be understood if we fail to realise that the people who commit it are human and among us.

Pointing out other aspects of a sexual offender’s sometimes good character misinterprets the nature of the crime. It also, it seems to me, gives the offender an unfair advantage over the victim.

Where is the rounded picture of the victim in our courts? Ireland introduced victim-impact statements in 1993 and, while welcome, they are often a poor counterbalance to the, in my view, outdated practice of character references.

There was nobody to speak up for the teenage girl at the centre of this deeply depressing case. She didn’t get any opportunity to be presented as a complete person.

Given what has happened to her and how it has affected her — she says she has lost her trust in men and has permanent flashbacks and severe panic attacks — she may find it very difficult to see a wider view of anything.

Speaking on her behalf, her counsel told the court: “Dealing with sexual encounters with a man three times my age made me physically, mentally and emotionally ill.”

She also wrote: “I never felt as low and as small about myself when this happened to me.”

At least now we have a chance to hear the victim’s voice, but it is heard in a very limited and incomplete way.

Some have said that the introduction of victim-impact statements is cathartic for victims — and let’s hope that they are — but it is difficult to see how their inclusion is enough to offset the offender-focused narrative in court.

That narrative in the Humphries case is the story of an acclaimed writer who fell from grace and a fevered discussion about the wrongs of feeling sympathy for him. The inclusion of character references in the case just added to that version.

I’m much more interested in the other person in this story, the one who felt low and small and who suffered immensely but who wasn’t afforded the opportunity to have a rounded character, unlike the perpetrator.

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