Elaine Loughlin: Perpetrators of sexual violence do not deserve cloak of respectability

Character references for sex criminals can leave victims distraught, campaigners say. File Picture

Vincent Williams is a dedicated, honest, and trustworthy man. That’s according to the 23 people who presented character references to court after the 41-year-old of Mountain Park, Tallaght, Dublin was convicted of five counts of sexual assault of children.

His victims might disagree with that description.

But this recent case is not unique. Courts up and down the country have seen politicians, priests, business owners, and members of the GAA all provide glowing and unchallenged references for convicted criminals.

Character references, which a lot of the time are submitted in the form of a letter, are commonly used and are not subjected to the scrutiny of cross-examination.

Last week, leader of the Seanad Regina Doherty published a bill that would end the practice that allows people to provide unvouched character references in the mitigation of a sexual or violent crime.

The experience of listening to statements, which give ‘pillar of the community’ and ‘respectable man’ accounts after conviction, can leave victims retraumatised by the court experience and can put others off taking a case in the first place.

“We currently have a criminal justice system that is a cold place for women when it comes to sexual and violent crimes,” said Ms Doherty in publishing her legislation. 

“Character references are brought in mitigation of the crime before sentencing in an attempt to reduce sentences.

“I am told by members of the legal profession that judges tend not to give much weight to courtroom character references, but under our current system, such references, unchallenged, retraumatise victims of violent sexual crimes.”

If judges are not swayed by character statements, then why are they even used?

In determining a sentence in almost all crimes, including rape and other sexual offices, judges are given the discretion to individualise the jail term handed down.

Elaine Loughlin - On the Plinth

They can take into account any aggravating factors that might be deemed to make the crime more offensive than the norm, likewise they can draw on mitigating factors that might give cause for a reduced sentence.

For example, one person may steal out of pure badness and a desire to make money, another person may commit theft because they have no food in the fridge and need to provide for a hungry child.

In other criminal cases, sending a person to prison for a first minor offence could result in them losing their job, but handing down community service would not.

But in the case of rape and sexual assault, can there be any justifiable reasons?

Mitigating factors can include age, lack of a previous criminal record, an early guilty plea, and of course good character.

Defence teams currently try to prove this good character by gathering as many letters as possible to submit to the court, which judges are obliged to read.

Putting people on the stand where they are subject to cross-examination on the character references provided would at the very least add “context” and “balance”, according to Noeline Blackwell of the Dublin Rape Crisis Centre, who says victims can be left distraught as they are subjected to one-sided “nonsense” about their abuser in court.

“The least I think we can expect is that people who give those references don’t just treat it casually,” she said. “I think the whole business of somebody handing reams of letters, saying this is a good person one way and another, that is really almost an abuse.

“There’s no way of testing it, so asking people to swear or affirm that the evidence they’re giving is true is a good first step.”

In drafting her bill, Ms Doherty said she had wanted to outright ban the use of character statements in cases where a person is convicted of a sexual offence, but she came up against legal issues.

On the other side of the world, a near-identical debate is under way between a victim of sexual assault who is pressing to have character references banned in Tasmania and legal groups pushing back against the move.

The friends, colleagues, and even a police minister described former businessman John Wayne Millwood as “honest, reliable, and trustworthy” and “ethical at all times” in statements given to the court.

Millwood, who pleaded guilty to child sexual offences mid-trial in 2016, was sentenced to four years in prison for abusing his victim, referred to as ‘ZAB’.

Tasmanian law was updated in 2016, but ZAB claims the legislation is too narrow.

Senator Regina Doherty has introduced a bill that would end the practice of providing unvouched character references in the mitigation of a sexual or violent crime. Picture: Gareth Chaney

ZAB is now campaigning to end the use of character witnesses — either written or via court testimony — as these references are irrelevant and add a “veneer of respectability” to a sex offender’s crimes.

However, the Australian Lawyers Alliance has argued that arbitrarily prohibiting the use of evidence of otherwise good character for a specific category of offence, “fetters the court’s discretion and creates unfairness”.

Back in this country, Labour’s Ivana Bacik says the issue should be looked at, but as a barrister she can see difficulties around how the changes suggested by Ms Doherty would fit into the general processes of criminal trials.

“There would be procedural and constitutional difficulties with some aspects,” she said.

“I think the logistics of it would have to be worked out, because generally only evidence given in the course of the trial is given under oath and subject to cross-examination, and the plea in mitigation, as it’s called by the defence council, which follows the conviction is not subject to the same rules of evidence. So it really would require an overhaul.”

Does the fact that someone turns up to Sunday Mass or togs out for his local football team somehow make rape more acceptable?

Why should the capacity to gather a crowd of so-called upstanding members of the community matter in the case of someone who is convicted of a sexual offence?

A cloak of respectability is being used to diminish the impact and gravity of abuse, but as Ms Blackwell points out, “it’s never respectable to abuse somebody else”.