Vol. 491 No. 2
4 Mr. Flanagan asked the Minister for Justice, Equality and Law Reform the steps, if any, he proposes to take to protect rape victims in court, with particular reference to evidence relating to their past sexual experience; his views on whether the current position is satisfactory; and, if not, if he will introduce appropriate amending legislation. [11633/98]
Under the law prior to 1981, there was considerable latitude for evidence relating to a complainant's past sexual experience to be given in a trial for rape. The Criminal Law (Rape) Act, 1981, significantly modified the law by restricting the extent to which evidence could be adduced or a complainant could be cross-examined as to any sexual experience the complainant might have had with a person other than the accused. Under section 3 of the 1981 Act, no such evidence can be given except with the leave of the judge, on application made to the judge in the absence of the jury, and only if the judge is satisfied that a refusal to give leave would be unfair to the accused. The term "unfair" in this context is defined, in essence, by reference to whether the effect of allowing the evidence would make a difference between a finding of guilt and an acquittal.
Section 6 of the 1981 Act provides for the exclusion from the court of all persons except officers of the court and persons directly concerned in the proceedings, during the hearing of an application under section 3, but this is without prejudice to the right of a parent, relative or friend of the complainant to remain in court.
Section 13 of the Criminal Law (Rape) (Amendment) Act, 1990, significantly amended section 3 of the 1981 Act. Prior to 1990, the restrictions on the extent to which evidence could be permitted applied only to sexual experience with persons other than the accused. Since the 1990 Act, the restriction applies to sexual experience with any person, including the accused. In addition, the 1990 Act extended the provisions of section 3 of the 1981 Act to all sexual assault offences, as defined in the 1990 Act.
The law in this area is one of the issues being addressed in the discussion paper on the law on sexual offences which I will publish this month.
I put it to the Minister that his silence on the question of separate legal representation for victims in such cases means he is not in favour of it. I would like to press him on the issue of separate legal representation for victims having regard to the adversarial nature of our criminal legal system and with a view to ensuring criminal trials dealing with sexual offences must be made less traumatic for the victim and that criminal law in this area must become more victim-friendly than at present.
The Minister referred to the 1981 and 1990 Acts and it is timely, as we approach the end of another decade, for a comprehensive review to ensure the type of harassment and intimidation which takes place in certain court cases ends. What does the Minister intend to do, if he is ruling out the concept of separate legal representation for victims? What does he intend to do to ensure the State provides an appropriate level of support for victims.
Deputy Flanagan raised an important matter. The question of separate legal representation for rape victims has been discussed in several reports in recent years with varying conclusions. The Law Reform Commission, in its report on the law on rape, recommended against separate legal representation. The commission questioned the constitutional propriety of such a proposal stating — to use its words — that it might be constitutionally suspect since it tilts the balance of the criminal process significantly in favour of the prosecution in a defined range of offences by permitting a dual representation hostile to the interests of the accused, thereby depriving him of one of the long-standing benefits of criminal trial conducted in due course of law.
The 1993 report of the Second Commission on the Status of Women also decided separate legal representation for the complainant was not feasible. One of the terms of reference of the working party on the legal and judicial process for victims of sexual and other crimes of violence against women and children was to review past recommendations that there should not be separate legal representation. In its 1996 report, the working party was of the view that separate legal representation for complainants in rape and sexual assault cases would provide much needed support for complainants, render the trial process considerably less traumatic for them and would contribute significantly to bringing about an increase in the reporting of rape. The working party recommended that mechanisms for the provision of separate legal representation, including its insertion in the legal aid system, be developed and implemented.
Subsequently, the 1997 report of the Task Force on Violence Against Women, recommended that the issue of separate legal representation be addressed in the forthcoming discussion paper on the law on sexual offences. The discussion paper, which I intend to publish later this month, will deal with the matter in detail. It will invite submissions on a particular approach being suggested in the paper with a view ultimately to the formulation of whatever legislative changes are deemed necessary and appropriate.
I hope this indicates to Deputy Flanagan that I have not closed the door on the question of separate legal representation. However, there is no getting away from the fact that there are constitutional constraints on what can be achieved in this area. Apart from the constitutional difficulties which led the Law Reform Commission to recommend against separate legal representation, there has also been judicial reference to the constitutional difficulties which may arise with separate legal representation. Having said that, I assure Deputy Flanagan and the House that I am committed to looking at the matter anew and it will be discussed in the context of the discussion paper which will be of considerable assistance when discussing our approach to the question of sexual offences into the new millennium.
Deputy Flanagan referred to the victims of crime. I am committed to introducing a new charter for the victims of crime, which I intend to publish this year. This document will also be of considerable significance and assistance.
I thank the Minister for his lengthy reply which I hope will be followed up with enthusiasm. I would like to press the Minister on the question of a timeframe. I understand the document he is about to publish will invite further submissions but the need for a timeframe is important. By not putting a timeframe on the Minister's deliberations and on when he proposes to bring forward such appropriate amending legislation as he might deem fit, the level of trauma and the unsatisfactory nature of the law of evidence in this regard is such that it militates against many victims coming forward to report criminal activity in a comprehensive way, complaints being made and trials taking place in accordance with the manner in which criminal trials should proceed to a prosecution.
The probability is the reporting of incidents of rape would increase if we were to have separate legal representation. I outlined the difficulties we face. They have been underlined by the Law Reform Commission and the Judiciary in case law and all relate to the constitutionality of the provision of such separate representation. It is difficult to give Deputy Flanagan a specific timeframe within which changes, where appropriate, would be made. This is because a discussion paper is being presented to the public and those with an interest in the subjects addressed in the report will be asked to make their submissions. They will be received from a wide variety of sectors and each must be closely examined. All I can say at this point is I will pursue the matter as expeditiously as I possibly can, recognising always the grave complexity in respect of some of the matters under discussion.
Despite the Minister's answer to Deputy O'Flanagan, I put it to him that perhaps a timeframe would be a good idea because it is more than a year since the report of the Taskforce on Violence Against Women recommended the way forward, as proposed by Deputy Flanagan, and a number of other changes in relation to rape cases. It would also be worthwhile because only a small percentage of those cases proceed to court. There has been more than a year to consider this matter.
Regarding the Minister's reply to the question tabled, despite the fact that the Criminal Law (Rape) Act, 1981, as amended in 1990, gives victims a certain amount of protection in relation to their past sexual experience, is he satisfied the practice in law and in court cases is as intended in the legislation? In his discussion on the issue will be consider that this law might also need to be further amended to protect victims in court?
There is a perception the amendments introduced in the l981 and l990 rape Acts do not go far enough to alleviate the humiliation and stress suffered by victims, but it would still be extremely difficult for me to categorically give a timeframe within which possible changes would occur, for the reasons I outlined. The question of any improvements will be discussed in great detail in the discussion paper and I would not like to pre-empt what may be contained in it by addressing specific changes which may or may not be necessary to the 1981 and 1990 rape Acts. Suffice to say, it is my intention to ensure there will be a full discussion on the contents of the discussion paper. Everybody concerned will be given an opportunity to contribute, including Members, and there will be opportunities in the future, following the publication of the paper, for Members to ask questions on it and, I hope, to make significant and constructive contributions to it.
(Mayo): Will the Minister acknowledge that his view that the introduction of separate legal representation for rape victims would result in an increase in the number of reported rapes reflects a negative attitude given that the Dublin Rape Crisis Centre confirms only 29 per cent of all sexual assault cases are reported to the Garda? From the point of view of those who have been raped the low conviction rate, in the region of 2 per cent, is a deterrent to their coming forward because of the manner in which such cases are dealt. Everything possible should be done to encourage, induce and assist people to report such cases and have them dealt with by the courts.
Does the Minister favour a suggestion made at the crime forum recently that a greater burden of proof in rape cases should rest with the defendant? Does he agree there is an urgent need for judges to receive special training in dealing with rape and sexual assault cases given that sensitivity has not always been evident from the Bench in dealing with such cases in the past?
I will deal with the last question first. The vast majority of judges dealing with rape cases have considerable experience. I hope there is consistency in sentencing policy. If the Deputy knows of a particular case which he wishes to raise with me, I would be delighted to consider it. However, we must be aware the Judiciary is independent of the Executive. The Deputy may have misunderstood me. I want to see an increase in the reporting of rape crimes. It is my wish that all crimes, particularly such heinous offences, should be reported.
On the question of shifting the burden of proof, at common law in our criminal justice system the burden of proof which must be discharged by the prosecution is that an individual should be found guilty by the jury being convinced he is so beyond a reasonable doubt. That would also apply in criminal cases where a jury does not hear the case.
The increase in the incidence of rape as indicated by recent figures is a matter of great concern. In that respect the Garda Commissioner stated he launched an investigation into why the number of rape offences appears to be on the increase given the number being reported. I hope his investigation will be completed in the not too distant future. I look forward to reading his findings to ascertain if any further measures are required which could be put in place in the perimeters within which we operate.
Will the Minister accept that his leisurely approach is inappropriate, given the statement by the director of the Rape Crisis Centre, which he did not mention, that the single most important change needed to improve the position for rape victims is to provide legal representation? It is one thing to have reports, discussion and consultation, but the need for political direction from the Minister on this issue is as important, if not more so. Despite all the questioning the Minister has undergone, we are not clear about his view on the desirability and effectiveness of having legal representation for rape victims.
There has been such a huge increase in the incidence of rape that the Garda has carried out research into this matter. I am surprised it has not produced the findings of that research. Does the Minister intend that those findings will be published? At a time when crime levels generally are dropping, he must be aware of the grave concern that crimes against women are on the increase. The lack of clear policy on how to meet the need is disturbing. Will the Minister give some idea of his view on this matter? Most of us are aware there is a constitutional dimension to this. The Minister argued in the past for amendments to the Constitution on other issues. He certainly supported an amendment on the issue of abortion. On this issue he would support rape victims if he indicated that he supports an amendment to the Constitution to ensure legal representation, if that is required. The Minister is in the driving seat and it would be extremely helpful to those concerned with rape victims if he made that clear.
It would be great if the world were as simple as that expounded by Deputy McManus. She has made one of the most remarkable allegations ever levelled against me, and she is the first to do so. She has accused me of being leisurely. In regard to the issue about which I am much more concerned, Deputy McManus was in Government for more than two years and had ample time——
Not long enough.
——to address all the issues she now feels should be accelerated. I have been Minister for Justice, Equality and Law Reform for less than a year and am about to produce one of the most significant documents ever produced on sexual offences. In so far as the political joust is concerned, I trust that reply puts an end to it.
The Minister is still telling us nothing.
I certainly favour separate legal representation for rape victims. There is, however, a constitutional difficulty with that. The Law Reform Commission has said so and there is case law to suggest it is so. Regarding the possibility of an amendment to the 1937 Constitution to address this problem, let us be clear on what we are talking about. We are talking not only about the Constitution but about due process and the right of an individual to receive a fair trial. In our jurisdiction an individual is presumed innocent until proven guilty. It would not be possible to reverse that burden without causing considerable injustice. Whether the Deputy likes it or not, the difficulties I have outlined are real. I favour representation, but the question of how limited it must be in the context of how it is constrained by the parameters must be discussed in great detail because it is a complex matter.
Does the Minister intend to publish the findings of the research undertaken by the Garda?
The Garda may not let the Minister do anything.
That matter will be discussed with the Garda Commissioner and if it is in the public interest that it should be published, that will be done.
Will the Minister agree that ten years after considerable consultation, which took place at great cost and took much time, and submissions by all interested parties before the introduction of the rape legislation, of which we are all proud, nothing has changed? It has been borne out that the amendments introduced do not adequately meet the requirements of the Rape Crisis Centre and the women's rights committee of that time. The Law Reform Commission and other groups would make that same point. There is a body of evidence to suggest that we have totally failed women in terms of their having confidence in taking cases to court. The same arguments pertain now as ten years ago.
I agree with Deputy Barnes, who has been interested in these matters for longer than most people. The matter has dragged on. I am trying to bring it to finality by publishing a discussion paper, which I trust will lead to legislation to deal not only with the issue of separate legal representation for victims of rape but the whole spectrum of sexual offences. The document has not been published and I cannot give definitive answers as to what my position will be on any of these matters. I can indicate a preference for what I would wish to see, but in so far as I would wish to see certain objectives realised, because of legal difficulties we may not be able to achieve all we desire. That is a common feature of legislative procedure and has been since Adam was a boy.
The discussion paper on sexual offences is nearing completion. It represents a very important stage in the evolution and evaluation of the need for further reform of the law on sexual offences. The question of rape will obviously be covered in the discussion paper in so far as the law relating to it is concerned. In so far as I can assist the victims of rape, legislatively or otherwise, within the parameters I will be obliged to operate, I will do so. For example, I ensured that the amount available for Victim Support in 1998 was increased considerably from the previous year and I know the organisation appreciated this. I am conscious of the needs of victims of all crime and I am anxious to do what I can to alleviate the stress and trauma they have suffered and will suffer in the future.
Whatever about Adam we are concerned about Eve.
