Sexual history as defence ‘unjustified’

JUDGES are allowing rape victims be questioned in court about their sexual history in nearly three in four trials, leading to growing concern about the prejudicing of cases, according to research.

Rape victim support groups want the law changed because of the prevalence of ‘rape myths’ used by defence teams wanting to cross-examine victims about their sexual history.

The Director of Public Prosecutions (DPP) James Hamilton has admitted that legislation on when a victim’s sexual history is allowed in court is “limited”.

Mr Hamiliton said a scheme was needed to prevent the prejudicing of cases by, for example, suggesting a victim is promiscuous.

The research by barrister and Senator Ivana Bacik examined 40 rape cases that went to trial over six years. Convictions were only achieved in less than a third of cases. In 70% of the trials, the judge allowed the defence to question a victim’s sexual history under what is known as a Section 3 application.

The reasons offered for questioning their sexual history, often unjustifiable according to Ms Bacik, included suggestions a victim’s behaviour was promiscuous or sexually suggestive.

Other arguments made by defence teams included issues raised about a victim’s subsequent sexual relations, whether they had made previous allegations of a sexual nature or if they had had sexual relations with the accused prior to the incident.

“We were very concerned in our research to see that in quite a large number of cases where the defence was looking to bring evidence of the victim’s sexual experience, they were using arguments that we felt were really unjustified,” Sen Bacik said.

The Dublin Rape Crisis Centre, which launched the research to mark its 30th anniversary, said while progress had been made in assisting victims in recent years, many still feared the criminal justice system.

“They themselves feel they are the ones on trial not the accused,” said the centre’s chief executive, Ellen O’Malley-Dunlop.

Speaking at the launch of the research, DPP James Hamilton said his office would consider drawing up guidelines for prosecution teams on the issue of a victim’s sexual history being raised at a trial.

“It may be that an examination of the current practice will indicate that some legislative change is required,” he said.

However, he believed more research was needed.

Mr Hamilton also said that the jury system in Ireland was out of date.

“I want to reiterate my view that the jury system in this country is very much in need of reform.

“As a result of the wide variety of exemptions from jury service which are given to various professions and occupations – including many of the professions and in practice much of the public service – the professional middle classes appear to be underrepresented on juries.”

The skewing by defendants of juries could also be stopped by limiting the number of challenges to their selection, he added .