Children in care targeted by sexual history applications despite rape shield laws
'What's Sex Got to Do with It?' report found that applications to introduce evidence about a complainant's sexual history, or to cross-examine them on the issue, were made in at least 39% of sexual offence trials last year. Stock picture
Report after report in recent years has shown that children in care are at risk of being sexually exploited, groomed, and subjected to sexual abuse.
A new report published last week is examines legislation put in place decades ago that restricted the cross-examination of complainants in sex offence trials about their sexual history, particularly in cases involving people who grew up in State care.
' What’s Sex Got to Do with It?' by Dr Sinead Ring for Rape Crisis Ireland found that the so-called rape shield legislation is not working as intended.
It focused on Section 3 of the Criminal Law (Rape) Act 1981 and was compiled following 21 in-depth interviews with barristers, solicitors, policy specialists, court accompaniment workers, and legal aid clerks with direct experience of how the law operates in practice.
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It found that applications to introduce evidence about a complainant's sexual history, or to cross-examine them on the issue, were made in at least 39% of sexual offence trials last year.
“Although overt character attacks on complainants have declined, arguments for admitting this evidence continue to rely on the same discredited inferences the rape shield was designed to exclude — that prior consent predicts later consent, and that a complainant's sexual history undermines their credibility,” states the report.
Children and young people are among those most likely to be the subject of such applications in court, according to the report.
Prof Ring told the : “There are particular issues around how lawyers are talking about children and adolescent complainants — teenagers in particular.
“Their imagined virginity or innocence is being used as a reason to bring in this other evidence to counter this impression. That is not fair — it would not be done with an adult.”
Prof Ring pointed to research by Debbie Ging in 2022 that found just under 20% of girls have been pressurised into sending sexually explicit photos or videos of themselves.
She said: “Adolescents are also more vulnerable because of the sheer number of records about them because they are using phones, and also the care records if they are in care.
"It seems like people who are the most vulnerable in society in terms of age and experience of the care system are the ones who are most likely to be abused in the first place and are then more likely to have sexual experience evidence in relation to them brought up in their trial.”
Prof Ring singled out children from backgrounds in State care as being particularly vulnerable to having applications made to have evidence about their sexual history deemed admissible in trials where a person is accused of sexual violence against them.
The report highlighted concerns among participants that third-party records, including social work, medical, counselling, and school records, can be used by defence teams to challenge a complainant's credibility.
It said such records were viewed by some participants as a "fertile source of defence arguments" aimed at undermining complainants in court.
The report states: “Young people who have experience of contact with the care system are more likely to be subjected to Section 3 applications, simply because there are more records about them.
"Often these records can relate to a considerable period of time. The finding that care-experienced children and young people are at heightened exposure to being cross-examined as to sexual experiences echoes the insights of a recent review of the processing of sexual offences in Ireland.
"A participant from the Child and Family Agency with oversight of disclosure raised as a matter of concern the potential disadvantage in terms of disclosure and exposure to cross examination for complainants who have a care history.”
The report notes that “a very wide range of behaviour” can be included in social workers’ reports on children in care, including referencing concerns about the young person having been previously sexually exploited “or engaging in ‘risky’ behaviour or sexually suggestive behaviour”.
Recent reports from the Child Law Project on child care proceedings highlighted concerns about the exploitation of children in care, particularly those placed in unregulated emergency accommodation.
The reports noted that many of these children absconded went missing from their placements, leaving them vulnerable to criminality and sexual exploitation.
In 2023, a report from the Sexual Exploitation Research Project revealed that children and young people in residential care, or who go missing while in State care, are being targeted for sexual exploitation.
Prof Ring’s report argues that the probative value of social care records are limited in the cases of children and young people in care who are complainants in sexual offence trials. It points out that such records are hearsay “because they are out of court statements being adduced for the truth of their contents”.
It says that the complainant is being asked to answer questions about a record they have not created, may be years old, that they have long forgotten, and which may contain errors.
The report also warns that there is a potential of care records “to mobilise stereotypes about care-experienced complainants as damaged or promiscuous and therefore not credible”.
On a broader level, extending to women and girls in the entirety of society, Prof Ring argued that the focus on their behaviour “runs counter to the core tenet of rape law — that consent must be given freely on each occasion with each sexual partner".
The report says that if judges are allowing evidence on past sexual history with others or on previous occasions with the defendant, “women who have (ever had) sex are at risk of being excluded from the protection of the criminal law”.
Prof Ring stressed to the that lawyers making applications to allow sexual history evidence are not doing anything wrong. She pointed instead to the system itself, saying it needs to be examined and improved to ensure greater protection for complainants.
She said: “We can change this– – we can reform the law and it is solvable. We can make huge progress by tightening up the law and discussing what relevance is in this context.”
The report is calling for the current legislation to be repealed and replaced by “a new, more tightly defined provision”. Among other procedural reforms being sought is the provision of mandatory written reasons for court decisions on Section 3 applications.
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