SEPARATE LEGAL REPRESENTATION IN RAPE TRIALS

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SEPARATE LEGAL REPRESENTATION IN RAPE TRIALS

• Ivana Bacik
• with Ciara Hanley, Jane Murphy and Aoife
  ODriscoll
•  
• Rape Law Victims on Trial? Conference
• Dublin Castle
•  
• 16th January 2010

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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• Can perpetuate outdated and sexist myths about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

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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.

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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.

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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.

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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.

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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).

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Overview of files reviewed (59 in Total)
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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 that notice of
  intention was generally issued regardless of
  whether the intended section 3 application was
  actually made at trial.

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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 complainants 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
• SLRs 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

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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.

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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.