Defence lawyers holding young alleged victims 'to a higher standard' in sexual offence trials

Report finds young complainants are more likely to be vulnerable to having applications made for access to sexual experience evidence

The report found previous acts such as sexting or sending nude images were being used to discredit young complainants' credibility.

Defence lawyers are holding young alleged victims in sex offence trials to a higher standard, probing whether they have accessed pornography, engaged in sexting, or sent nude images, according to research to be launched today.

What’s Sex Go to Do with It?, carried out for Rape Crisis Ireland by Sinead Ring of Maynooth University, examines the laws restricting the defence’s ability to cross-examine complainants in sex offence trials about their sexual experiences outside of what the defendant has been charged with.

It found:

• Some 39% of sexual offence trials last year featured applications and cross-examination for the defence on the complainant’s sexual experience evidence;
• Child and adolescent complainants are among the most likely to be vulnerable to having applications made for access to sexual experience evidence. These young people are typically the subject of such applications to challenge the jury’s “assumed impression” of a young victim being “sexually innocent” because of their youth;
• Acts including accessing pornography, sending texts, or social media messages were seen as probative by lawyers for challenging a complainant’s credibility.
• The quality of separate legal representatives to represent complainants varies, with some not having the necessary experience of sexual offence trials to effectively represent the complainant.

Ms Ring told the Irish Examiner that interviews conducted with lawyers as part of the research for the report highlighted that “what counted as relevant sexual experience is given a very broad interpretation”.

She said that using history about a complainant including them having accessed pornography, engaged in sexting, or sending nude images are not what people traditionally would have thought of as sexual experience.

She said: “Children are held to an even higher standard than adult complainants — they are expected to be particularly innocent and particularly ignorant of sex and sexual matters, and the problem is then that they are always going to fail that test.

“Anyone who has ever been a teenager will have a natural curiosity about sex and sexuality.

“These days on phones, people are engaging in online flirting, they are exploring their sexuality online in a way that never happened before.”

In an unregulated space

Ms Ring also pointed out that young people are living in an unregulated online space, and people are receiving pornography, receiving photographs, and being asked to send photographs in ways that would never have happened before — and often without their consent.

She added: “To hold that up as a reason to doubt their credibility, or say that they have a damaged credibility and shouldn’t be believed, or to say that they were consenting to sex because of a text they sent, can be really traumatic.”

The report says that in cases where a complainant and the defendant had been in a casual relationship or were acquainted in some way, “digital evidence of communications is often used to support a defence of honest belief in consent and/or to undermine the complainant’s credibility”.

It said: “The report shows that evidence of prior consent is being used to cast the complainant as inherently untrustworthy or as an illegitimate rape victim.

“The introduction of evidence of prior sexual experiences with the defendant amounts to inferring that consent is irrevocable.”

It recommends that the legislation around the use of sexual history evidence, Section 3 of the Criminal Law (Rape) Act 1981, be repealed and replaced with a new provision, “in order to better ensure that evidence of the complainant’s other sexual experience(s) is restricted from entering the rape trial”.

It calls for ongoing monitoring of decisions relating to the disclosure of counselling notes, to allow researchers and lawyers to gain a better understanding of how the law is being applied.

What’s Sex Go to Do with It? is being launched at the Criminal Courts of Justice in Dublin this evening by Ms Justice Úna Ní Raifeartaigh, judge at the European Court of Human Rights, during a Rape Crisis Ireland symposium: The Relevance Test in Practice: Evidence, Justice and Survivors’ Rights.