Sexual offence case reform to be considered by Law Reform Commission

The State’s expert legal body is to examine the law regarding the inclusion of victims’ sexual history in trials and the high attrition rate in sexual offences cases.

The Law Reform Commission will also probe the legal situation surrounding separate legal representation for complainants in sexual offences cases. The issues form part of a major review of the law on sexual offences, comprising just one of 15 projects the legal research and advisory body will examine in its fifth programme of work, spanning three years.

The other projects include:

The commission said it drew up its work programme after extensive public consultation during 2017 and 2018. It said it received 70 written submissions and had considered 150 proposals, before identifying 15 projects.

These were considered by the Attorney General’s consultative committee and the Oireachtas justice committee before being approved, without modification, by the Government last March.

The commission said that during the public consultation process it received a large number of submissions concerning the need to review specific aspects of sexual offences law and for the consolidation of the law.

“The project will therefore examine the case for reform of certain specific aspects of sexual offences law, including: the definition of rape; sexual history evidence; the high attrition rate in sexual offences cases, and whether procedural and other reforms could have an impact on this; and separate legal representation for complainants,” the commission said.

It said that in relation to consolidating the various pieces of legislation, it noted that the Criminal Law (Sexual Offences) Act 2017 had provided for significant reform, but that it did not consolidate the law.

The commission said it remained the case that some sexual offences on the statute book date back to the nineteenth century.

Justice Minister Charlie Flanagan has said he expected to receive soon the report of a review group on issues surrounding witnesses in trials of sexual offences. That group, chaired by Tom O’Malley BL, who is also a member of the commission, was set up in April 2018 following the Belfast rugby rape trial.

The commission said its project would also be informed by its own ongoing project on knowledge and belief as to consent in rape law. The expert body said it expected to publish Issues Papers on two of the projects by the end of the year: the first on adult safeguarding and the second on caps on damages.

It said the Department of Health had made detailed submissions to it requesting the commission examine the legal issues around vulnerable and at-risk adults. The commission said previous work it did, back in 2006, was reflected in the Assisted Decision-Making (Capacity) Act 2015, which it pointed out had not yet been fully commenced.