Adjournment Debate. - Representation at Criminal Trials.

The effective prosecution of rape and sexual assault is an essential element in the elimination of violence against women. Furthermore, from the victim's point of view, the way cases are handled throughout the criminal process is clearly of great importance. Many women describe their journey through the legal system as adding painfully to the trauma of the original abuse. Research shows consistently that women do not report cases of rape and sexual assault to the Garda for fear of being disbelieved, humiliated and embarrassed by inappropriate questioning, revictimised and traumatised by Garda handling of the report and through lack of confidence in the willingness or ability of the Garda to take appropriate action.

In a criminal trial for a rape offence the entire prosecution is undertaken by the State. The victim is regarded as the chief witness for the State and will be the first witness to give evidence on behalf of the State. It is possible that she, as a witness, will not have met either the solicitor or barrister representing the State and she will not have had access to the book of evidence, which contains all other evidence to be presented at the trial. She has no rights to direct what witnesses should be called.

The reality for victims in the present system is that the processing of rape and sexual assault cases through the criminal justice system exacerbates rather than alleviates the devastating effects of the crime for the victim and serves to intensify the distress experienced by the complainants, thus producing an experience of revictimisation. Complainants report feelings of disempowerment and humiliation at their treatment throughout the process and incomprehension, betrayal and anger at the appalling attrition and conviction rates in these cases.

The Rape Crisis Centre is strongly critical of the serious inadequacies of the present system which produces feelings of isolation, vulnerability and guilt in victims. It has consistently argued that in the case of rape, sexual assault and other sexual offences, the fact that the victim is not represented by her own lawyer is particularly unjust as the victim is the only party to the trial who has no voice. The particular circumstances of the crime of rape, its effect on the victim and her unique treatment throughout the criminal process must be taken fully into account.

The achievement of justice for the accused should not and need not be incompatible with justice for the victim. While it is the function of the courts to ensure the defendant's right to a fair trial, this must be balanced against the court's obligation to protect the rights of the complainant in a rape and sexual assault trial. She is entitled to be kept fully informed at every stage of the process and to be treated with respect and courtesy by all those involved from the moment the report is made to the final outcome of the trial.

Separate legal representation for complainants in rape and sexual assault cases could provide much needed support for complainants, render the trial process considerably less traumatic for them and contribute significantly to bringing about an increase in reporting rape. The Second Commission on the Status of Women also recommended that rape victims should have separate legal representation and in our manifesto we gave a commitment to introduce such representation. I hope we are moving along that road.

I thank Deputy McGennis for raising this important and topical issue. The question of separate legal representation for victims of rape is a complex issue with constitutional implications. It will be mentioned in the discussion paper on the law on sexual offences to which the final touches are being put and which I hope will be published within a few weeks.

The purpose of the discussion paper is to raise issues that have not already been addressed in legislation dealing with sexual offences which has been enacted in the recent past. These issues will be placed before the public for their comments and the response to them will be a backdrop to how we deal with them over the next few years. The discussion paper will not come up with the answers; it will pose the questions and set out the arguments. For that reason, I would not like to pre-empt the discussion paper by speculating on any of the issues raised in it. The question of separate legal representation for complainants in rape cases is far from being a straightforward matter.

The issue was raised by the 1998 Law Reform Commission report on the law on rape and because of the constitutional and other difficulties it saw in relation to the proposal, it recommended against separate legal representation. There has also been recent judicial reference to the constitutional difficulties that may attach to separate legal representation. As I said, I do not want to prejudge the outcome of the forthcoming discussion on the issue. I have an open mind at this stage given the legal complexities. However, all the relevant issues will have to be carefully teased out with the legal advisers.

While the question of separate legal representation remains under consideration, several measures have been taken in recent years to improve the position of complainants in rape cases in the criminal trial process. The civil legal aid scheme has been extended to allow a complainant in a serious sexual assault case to consult a legal aid solicitor who may accompany the complainant into court. That entitlement has been placed on a statutory basis in the Civil Legal Aid Act, 1995. Other statutory initiatives include the extension provided in the Criminal Law (Rape) (Amendment) Act, 1990, of the restrictions on the cross examination of a complainant on her or his past sexual history to all sexual assault offences. Also, under the Criminal Justice Act, 1993, the court is required in determining sentence to take into account the effect of the crime on the victim and to this end can receive evidence from the victim. The jurisdiction to permit the receipt of such evidence is independent of both the prosecution and the defence and the evidence can be given in court with the assistance of a solicitor or counsel.

I anticipate that the closing date for submissions on the discussion paper will be around the middle of the year and consideration of the many issues, including separate legal representation that will be raised in the paper will commence shortly afterwards.

As the subject for discussion this evening has focused on the victims of rape in criminal cases, I have concentrated on that area in my reply. However, in a wider context, I am determined to fulfil a pre-election promise to ensure that all crime victims have available to them the support they need. I assure Deputy McGennis that this more general issue will be addressed in the context of the new charter on victims of crime. Prior to the general election we promised to produce, publish and implement this charter if returned to Government. That is a promise I intend to fulfil and, accordingly, the charter on the victims of crime is being prepared by the Department of Justice, Equality and Law Reform.