That leave be granted to introduce a Bill entitled an Act to amend the Criminal Law (Rape) Act 1981 (as amended) to enable complainants to be heard and legally represented in relation to applications to adduce evidence about the clothing worn by a complainant at the time of the alleged offence; to amend the provisions in respect of previous sexual history evidence and to provide for related matters.
Táim ag roinnt mo chuid ama le Teachta Martin Kenny. Approximately 12 months ago, it was reported that in a rape case in Cork, the defence lawyers introduced as evidence a lace thong belonging to a 17 year old complainant. It was an appalling and indefensible strategy that clearly implied that the victim was in some way responsible or to blame. The dreadful approach taken by the defence team in this case rightly drew criticism here and internationally. It was discussed in the Dáil when Deputy Coppinger brought the issue up. She quoted the barrister, who said:
Does the evidence out-rule the possibility that she was attracted to the defendant and open to meeting someone and being with someone? You have to look at the way she was dressed. She was wearing a thong with a lace front.
This was an appalling commentary and it was of no evidential value. Ultimately, it was an extremely cynical strategy.
It was clear to me and to Deputy Martin Kenny as a consequence of this that there are not adequate protections for victims of rape and sexual offences to prevent this kind of behaviour, which has no evidential value. We have tried to fix this clear failing in the law. The legislation we are bringing forward tackles the use of references to clothing of the complainant in sexual offences trials. It would also ensure that there are greater safeguards to sexual history evidence being introduced. The manner in which this will work is that where it is sought to introduce clothing evidence, the defendant must make an application to the judge, who would have a hearing without the jury but with the legal representatives of the defence, the prosecution and, crucially, legal representation for the complainant, before deciding whether it would be admitted. This procedure exists in respect of sexual history. It could only be admitted if it was the case that it would not be possible for the defendant to have a fair trial without it being introduced. It is a very reasonable and sensible Bill. The other reform it introduces is that the complainant would be represented in any hearings on admissibility. That is not currently the case.
There was no evidential value for the introduction of that evidence at the time. It was a form of victim blaming, which caused disgust in Ireland and throughout the world. We need to ensure that where evidence is introduced such as clothing or sexual history, it is done in a way that is relevant to the case and that there are safeguards. We need to ensure that it is not introduced in such a way as to impugn or shame the complainant or in a way that has no evidential value. This legislation has great value and will improve the conduct of sexual offences trials in this jurisdiction.