SEPARATE LEGAL REPRESENTATION IN RAPE TRIALS

1. SEPARATE LEGAL REPRESENTATION IN RAPE TRIALS Ivana Bacik with Ciara Hanley, Jane Murphy and Aoife O’Driscoll Rape Law – Victims on Trial? Conference Dublin Castle 16th January 2010

2. “Sexual Experience” Evidence • Common law rule allows admission of evidence that complainant/victim has had sexual intercourse with the accused or with others • Strong criticisms of the rule: • Undermines credibility of the complainant • Can prejudice the jury against the complainant • Can perpetuate outdated and sexist myths about rape and sexuality • Statutory restrictions on the common law rule now in place, eg in England, Canada – some provide general prohibition subject to specific exceptions • Ireland – more general statutory test

3. Statutory Test in Ireland – Section 3 of the Criminal Law (Rape) Act 1981 • Section 3(1): • “….except with the leave of the judge, no evidence shall be adduced and no question shall be asked in cross-examination at the trial, by or on behalf of any accused person at the trial, about any sexual experience (other than that to which the charge relates) of a complainant with any person;…” • Section 3(2)(b): • “The judge shall give leave if, and only if, he is satisfied that it would be unfair to the accused person to refuse to allow the evidence to be adduced or the question to be asked, that is to say, if he is satisfied that, on the assumption that if the evidence or question was not allowed the jury might reasonably be satisfied beyond reasonable doubt that the accused person is guilty, the effect of allowing the evidence or question might reasonably be that they would not be so satisfied.”

4. Application of the Section 3 Test • DPP v. McDonagh and Cawley, CCA, 24th July 1990 • Finlay CJ: Grounds for Trial Judge to exercise discretion: “solely consist of the question as to whether he is satisfied that if the evidence or question was not allowed, the jury might reasonably be satisfied beyond a reasonable doubt that the accused person is guilty, whereas, the effect of allowing the evidence or question might reasonably be that they would not be so satisfied.” • DPP v. GK, CCA, 5th July 2006 • Kearns J: ““Having regard to the severely restrictive terminology of the statutory provision, the Court is of the view that, in general, a decision to refuse to allow cross-examination as to past sexual history may more readily be justified in most cases than the converse… Furthermore, the younger the age of a complainant, the less desirable it is to ever allow cross-examination which may well be extremely traumatic for a complainant of tender years. Where a form of questioning is allowed, it should be confined only to what is strictly necessary and should never be utilised as a form of character assassination of a complainant.”

5. Separate Legal Representation for the Complainant • Bacik, I., Maunsell, C. and Gogan, S., The Legal Process and Victims of Rape. Dublin Rape Crisis Centre, 1998 – study of rape trial procedures across EU • Where complainants in rape trials had a lawyer, we found a highly significant relationship between that and overall satisfaction with the trial process. • Complainants who were legally represented found it easier to obtain information on the investigation and trial process, were more confident in giving evidence, and had lower hostility rating for the defence counsel • Legal representation also meant that the impact of the legal process on the family of the victim was lessened. • We recommended the introduction of a right to legal representation for victims of rape– to extend from reporting stage through to trail stage, but restricted so that the lawyer does not act as a ‘second prosecutor’.

6. History of Separate Legal Representation - Section 4A Procedure • Section 26(3) of the Civil Legal Aid Act 1995 – limited representation • Law Reform Commission 1988 – recommended against legal representation • Department of Justice Discussion Paper 1998 – recommended limited representation where defence makes section 3 application • Section 34, Sex Offenders Act 2001 – inserted new Section 4A into 1981 Act • “(1) Where an application under section 3 .. is made by or on behalf of an accused person who is for the time being charged with an offence to which this section applies, the complainant shall be entitled to be heard in relation to the application and, for this purpose, to be legally represented during the hearing of the application.” • “(2) Notice of intention to make an application under section 3 .. shall be given to the prosecution by or on behalf of the accused person before, or as soon as practicable after, the commencement of the trial for the offence concerned….”

7. Overview of our Current Research Our focus limited to cases which have gone to trial before the Central Criminal Court of: • rape • rape under Section 4 • aggravated sexual assault • All cases took place since section 4A came into force • We reviewed rape cases brought before the Central Criminal Court between 2003 and 2009 (in fact our research covers some cases which have not yet come to trial).

8. Overview of files reviewed (59 in Total)

10. Section 4A Procedure • A common feature in the majority of the 59 cases reviewed to date was that notice of intention to make an application under section 3 was issued to the prosecution by the defence before the commencement of the trial, in accordance with the procedure set out in section 4A • It appears that late notice of intention to apply for leave and/or a delay in making the application on the part of the defence will not automatically preclude the possibility of the trial judge hearing the section 3 application • It is particularly noteworthy thatnotice of intention was generally issued regardless of whether the intended section 3 application was actually made at trial.

13. Role of Separate Legal Representative • Limited information on file about arguments offered by SLR during Section 3 Application • Observations about Role of SLR and Section 4A Procedure: • Notice procedure prevents “ambush” of complainant • Notice enables instructions to be provided to SLR as to complainant’s view of section 3 application – not necessarily to oppose it • SLR will advise complainant as to likely outcome of section 3 application • SLR can assist Court in limiting scope of cross-examination, even where permission is given to adduce the sexual experience evidence • SLR’s presence may have “moderating” effect upon conduct of case • SLR generally stays in court throughout cross-examination of complainant, even where formal role completed once section 3 application has been made

14. Concluding Observations SLR procedure is being used relatively frequently – 66 cases since 2003; in 21 per cent of sexual offence cases before the CCC in 2007 and 2008 Concerns raised by our Study: Defence may be giving notice of intention to make a section 3 application even where there is little or no real prospect of them doing so. This should be explained to complainants to allay the fears they are likely to feel on receipt of such notice. It is impossible at this stage to ascertain the effect that the appointment of a separate legal representative has upon the outcome of the section 3 application. But detailed notes are now being kept on any ongoing or future rape/sexual offence trials on this particular aspect of the section 3 procedure.

15. Concluding Observations (Contd.) • Particular concerns must arise from the frequency with which section 3 applications are being granted, even where separate legal representation has been afforded to the complainant, and even where consent is not an issue • The wording of section 3 itself, in particular the criteria by which the judge must make the decision to give leave to adduce such evidence, should be reviewed. • This research tells us in very revealing terms about: • 1) the highly prejudicial nature of the reasons being offered by the defence for their desire to adduce section 3 evidence; • 2) the unpleasant prevalence of rape myths underlying the arguments most commonly used to argue for the inclusion of this evidence.