Report on sexual assault witness protection deemed "a piece of window dressing"

Pictured at Government Buildings today are the Minister for Justice & Equality, Helen McEntee TD, and Mr Tom O’Malley of NUI Galway, as they launch the O’Malley Review of Protections for Vulnerable Witnesses in the Investigation and Prosecution of Sexual Offences. Photograph: Sam Boal / Photocall Ireland

"A piece of window dressing" is how a rape survivor and victims' rights advocate described the new report examining how vulnerable witnesses are treated when prosecuting sexual abuse cases. 

“It doesn’t go far enough to ensure that people are getting real justice," Linda Hayden, founder of the Victim's Alliance said.

She asked why the report does not address woefully low sexual abuse prosecution rates, which the Dublin Rape Crisis Centre previously found were only 4% of all cases of rape and sexual assault. 

Despite repeated calls from victims' rights groups to allow complainants in sexual assault cases to have their own legal representation, the new report, chaired by barrister and NUIG law lecturer Tom O'Malley, advises against this, saying it would “risk upsetting the well-established balance” during trials.

However, it does call for new pretrial hearings to be established where complainants would be legally represented. Any barrister planning to question a complainant about their sexual history would need to apply to do so at that pre-trial hearing. And if they were permitted to question the complainant in court on their sexual history, the complainant would be permitted legal representation for those questions.

“The provision around representation in court doesn’t go far enough at all," Ms Hayden said. "Legal representation is only allowed if it's agreed beforehand that the victim will be questioned about their sexual history. But there are other ways to undermine and shame a witness by asking stuff that's irrelevant to the offence - like what they drank, what they wore, why they were there."

Ms Hayden cited the 2018 case which sparked international outrage when the defense barrister of a 27-year-old man who was accused and acquitted of raping a teenager suggested to the jury that the girl's lacy underwear was a sign of her consent. 

But Ms Hayden said that despite the report's shortcomings, it was "a step in the right direction."

"It gives me hope that things are being done to listen to victims," she said.

She welcomed the recommendations to give legal advice to complainants from the point of offence; a national education campaign about consent; and special victims units in the Gardai.

And while training for legal professionals dealing with victims of sexual crime was important, the real question was whether measures would be introduced to make sure that that training was implemented, she said.

"It’s lovely to have something that’s finally victim-centric but it doesn’t go far enough. It’s not getting people justice," she said. "It's a box-ticking exercise so that we are fulfilling the ratification of the EU Victim’s Directive."

Ms Hayden, who survived rape at a Waterford hotel after a wedding 20 years ago, never pursued her attackers due to "trauma and shame." But the experience has pushed her to campaign for victim's rights. 

“The system is not set up to protect victims,” she said. “But we’re not going to stop until it’s fixed.” 

Eileen Follette’s life was almost destroyed aged 13 due to her cousin’s repeated sexual abuse in Tralee, Co Kerry.

But in June, 25 years after the abuse, Padraig Tangney Jnr, 39, received a suspended prison sentence for sexually assaulting his younger cousin.

Ms Follette welcomed news that the O’Malley report may make the criminal justice system easier for victims but said that societal stigma around sexual abuse still needed to change.

“You’re still made to feel like you’re in the wrong,” she said. “Everyone knows it happens but it’s all hushed up. But that cycle of abuse and silence must stop now to prevent the next generation from being hurt.”