Judgment in same-sex rape case was perplexing in the extreme

IRRESPECTIVE of age or sex, the decision arrived at by Mr Justice Paul Carney this week in the case of a young man who pleaded guilty to the rape of a much older man is perplexing in the extreme.

It was worrying to say the least and one which, I think, was justifiably criticised by the chairwoman of the Dublin Rape Crisis Centre, Breda Allen. She said that as a result of the decision, victims of sex crimes may decline to report attacks.

It involved the case of 17-year-old Gary Davis who pleaded guilty to buggering his 50-year-old victim. He raped him in a car park after assaulting him and knocking him to the ground.

Apparently, both victim and perpetrator had been drinking in a flat with another man and they both left together in the early hours of the morning.

It was no consolation to the victim, but he was very intoxicated at the time when Davis had his way with him.

It's no consolation to society at large that Mr Justice Carney quoted from a Court of Criminal Appeal judgment of December 2002 which influenced his decision to suspend the sentence of three years.

In fact, Mr Justice Carney said there were exceptional factors in the case before him to merit a suspension of the sentence. I have to admit that they would not seem exceptional to the disinterested observer:

Davis was remorseful and pleaded guilty at the earliest opportunity. Any sensible person would, when the realisation dawned on him exactly what he had done.

The judge noted, as submitted by the defendant's senior counsel and supported by the Probation and Welfare Services report, that Davis had been at a difficult age.

Now, with all due respect, what is exceptional about that? All adults go through that difficult age, but they do not all go out and rape.

Davis had also been experiencing difficulties with his sexual orientation. If everybody who experienced such difficulties as Davis did and gave rein to them, as he did, where would society be?

Allowing for all that, what I really fail to understand is the judge's subsequent logic. According to the court report, Mr Justice Carney also took into account the age gap between Davis and his victim.

"The victim was 33 years older than the defendant. The victim is of a stocky build while the defendant appears to be a reedy young man," said the judge.

What is the relevance of the disparity in their ages and what is the relevance in the difference in their builds? Are they "exceptional factors"?

The victim was drunk. He was raped by the defendant. Are they exceptional factors? Can we now assume that any reedy young man can assault and rape another who is considerably older and on the stocky side and drunk? Come to think of it, at my age and build I should be very wary of reedy young men.

Supposing it was a woman he had raped, would the outcome have been any different? I have every respect for Mr Justice Carney. He is, after all, an eminent figure and a senior judge of the Central Criminal Court, but I have to admit that his decision in this case left me, and many others, very perplexed.

It seems remarkable that in this case the defendant could walk out of court with a suspended sentence after committing a horrendous rape.

The judge certified Davis as a sex offender and directed he stay under the supervision of the probation and welfare services.

Is that all you get for committing rape and assault these days?

The same judge some time ago, at a seminar, made a case for the televising of court cases. He said it seemed to him there was a very strong case to be made that the citizen should be entitled to monitor and observe the fair administration of justice in their home through the contemporary technology of television.

It's something I had reservations about for a long time, because the American model is not one I would welcome.

However, given the disparity of sentencing in cases, especially rape cases, the public are entitled to see how "the fair administration of justice" is arrived at.

The judge referred specifically to the possibility of reporting of family law cases, which does not happen at the moment but which is the subject of an ongoing debate.

MR Justice Carney said that the absence of reporting such cases was damaging to our understanding of the nature of our society. He pointed out that it was only because of the centralisation of serious sexual crime cases in the Central Criminal Court that we had an understanding of what is happening there. While some recent decisions may be rather disconcerting, I think the judge is right in advocating a greater openness in court reporting. Obviously, in the case of family law there would have to be anonymity if it were ever decided that they should be reported. Family law is a harrowing enough experience, without having sensitive issues paraded before the public.

Something which the public saw this week across the water was the wonderful display of integrity by so many members of the Labour Party. Tony Blair scraped home by just five votes in a vital House of Commons test of his controversial plans to introduce university top-up fees. Given the majority his party normally has, it was an incredible outcome.

The thought struck me, as I'm sure it did others, as to what would have happened in the Dáil if so many members of Fianna Fáil had an attack of conscience on a critical vote as did so many members of the British Labour Party. Perish the thought, and perish it is exactly what they would do. They would do precisely as they were told by the chief whip, as they have done on several occasions since they have been returned to power.

They may be the Soldiers of Destiny but the only destiny they worry about is their own and that of the party in that order. The country, and their constituents, take a poor third place in their order of priority.

With the hugely controversial university fees issue, Tony Blair faced an enormous challenge. In the end, he won by 316 votes to 311 and that was only after days of intense campaigning by ministers and rebels.

Mr Blair had staked his authority on winning the vote, which was widely seen as his biggest test as prime minister.

I'm sure you remember what happened here when Minister for Education Noel Dempsey was last year talking about re-introducing third-level fees, which was a source of aggravation between Fianna Fáil and their junior coalition partners, the Progressive Democrats.

The potential rift between the two parties was healed by throwing money at the minister, money which apparently had not been there before.