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Criminal Law

Dáil Éireann Debate, Tuesday - 17 April 2018

Tuesday, 17 April 2018

Ceisteanna (39)

Jim O'Callaghan

Ceist:

39. Deputy Jim O'Callaghan asked the Minister for Justice and Equality to outline the status of his review into the legal protections offered to complainants in sexual assault cases; and if he will make a statement on the matter. [16488/18]

Amharc ar fhreagra

Freagraí ó Béal (6 píosaí cainte)

I wish to ask the Minister for Justice and Equality about victims of sexual assault and rape. What steps does the Minister believe can be taken to encourage victims of sexual assault and rape to make complaints if they have been the victims of those criminal acts?

I imagine we can agree that one of the significant policy issues or problems that needs to be addressed is that significant numbers of victims are deterred from making official complaints when they have been the victims of crime. What steps does the Minister believe should be taken to deal with that?

As the Deputy will be aware, the Government has given significant consideration to law on sexual offences in recent years, including with regard to the needs of the complainant. The Criminal Law (Sexual Offences) Act 2017 provides for a statutory definition of consent and other measures that give protections to complainants during court proceedings. I intend to bring forward further legislation this year, including the criminal law (sexual offences) (amendment) Bill 2018, the general scheme of which has been published. The Bill will deal with sentencing for sexual offenders. Further legislation will strengthen post-release supervision of sex offenders.

Other provisions serve to protect complainants in sexual offence cases from any additional trauma arising from the criminal process, including restrictions on public attendance at hearings and on press reporting. An Garda Síochána has begun a programme of establishing divisional protective services offices with specially trained staff to investigate these difficult crimes. The recently enacted Criminal Justice (Victims of Crime) Act 2017 has significantly enhanced protections for victims of crime, including victims of sexual offences.

The Deputy will also be aware that complainants in sexual offence cases can access legal advice in certain limited circumstances. This is given effect through the Legal Aid Board, which provides a legal advice service free of charge to complainants in prosecutions for certain rape and sexual assault cases. A person seeking this service is not required to undergo a means test or to make any financial contribution. A legal aid service is also provided in certain rape and sexual offences cases where the complainant's prior sexual experience has been raised by the defence in the course of the trial. In these instances the Legal Aid Board will appoint a solicitor and a barrister to represent the complainant where the issue of previous sexual history is being raised. This service is also available without a means test.

In this context, I am examining the investigation and prosecution of sexual offences as a whole to identify any scope for further practical or legislative steps that would support victims of sexual offences while fully respecting the rights of the accused.

We need to try to identify why so many victims of sexual assault and rape do not report the crime. Part of the reason is that in many instances they know the perpetrators, but it is unquestionably the case as well that another part of the reason is that they are deterred by the process. Part of the reason they are deterred by the process is that they think it is an alien process and one under which they will be challenged. This can mean issues in respect of their personal lives may be unnecessarily exposed.

We need to do something to create greater legislative support for people who are victims of crime and who are deterred from making a complaint in respect of sexual assault or rape. One method by which we could do this is to ensure that any individual who makes a complaint to An Garda Síochána in respect of sexual assault or rape would be given legal advice immediately by the Office of the Director of Public Prosecutions. This legal advice could include advice on the process involved for such an individual. Many people are unaware that victims will have to give statements, other relevant witnesses will have to give statements, disclosure will have to be made to the person accused if there is to be a prosecution, and that subsequently there will be a trial at which the victim will have to give evidence and be cross-examined. We need to recognise that the lack of knowledge and awareness on the part of victims in respect of this matter is acting as a deterrent. We need to encourage them.

I am open to hearing from the Deputy about any submissions, observations or draft legislation. I know he has introduced some legislation in this area. I welcome that and I give my commitment to Deputy O'Callaghan, Deputy Ó Laoghaire and other Deputies that I am keen to listen and engage to ensure we can have the best possible legal system to deal with these deeply sensitive and personal issues.

The Government recently approved the drafting of the criminal law (sexual offences) (amendment) Bill following publication of the general scheme earlier this year. The main purpose is to provide for presumptive minimum sentences for repeat sexual offenders. The Bill also contains provisions relating to the crime of incest.

I will shortly bring to Cabinet the general scheme of a sex offenders (amendment) Bill. The scheme proposes several amendments to the Sex Offenders Act 2001 following a review of the management of offenders under that Act. The scheme includes several amendments to notification requirements on the sex offenders register under the 2001 Act as well as provisions for electronic monitoring of sex offenders and court powers to prohibit a sex offender from working with children. The important thing is to ensure that our courts system is no longer a cold and distant place for complainants or victims of crime.

The Minister is correct in saying that Fianna Fáil will be introducing legislation seeking to give effect to what I outlined earlier, that is to say, providing legal aid to a victim of sexual assault or rape at an early stage at the time he or she makes the complaint. We should bear in mind that the accused gets legal aid from the time the complaint is made. There should be a similar structure of to provide support to victims of such crimes. We believe it is important that they be provided with legal aid at an early stage as well as legal representation in certain limited circumstances.

We should recognise, however, that no matter what changes we make to our legal system, there will always be a difficulty when we have two conflicting accounts of what occurred on a particular occasion. If one person states that there was consent and another person states that there was not consent, we will always have a difficulty unless we have extraneous evidence corroborating one side or the other. No matter what system we have, it will always be difficult to determine where fault lies or if fault arises when we have two conflicting accounts in respect of consent. In any event, that should not deter us from trying to come up with new measures that will provide support to victims so that they can make a complaint in the knowledge of what will happen. No one could complain if we had a fair and supportive system that allowed a complainant to make a complaint and that allowed the process of justice then to take its course.

While the Deputy spoke of the matter of consent and the definition of it, and the legal position surrounding consent or the absence thereof, I want to refer to the recently passed Criminal Law (Sexual Offences) Act which introduced, for the first time, a statutory definition of consent to a sexual act. It states that a person does not consent to a sexual act if they allow the act to take place due to the application of force, or the threat of the use of such force. It also states that a person cannot consent if they are unconscious, asleep or intoxicated from alcohol use or any other substance. It further states that a person does not give consent if they are mistaken as to the nature or purpose of the act.

I agree with what Deputy O'Callaghan said. We can look at that further. At the request of the Attorney General, the Law Reform Commission has undertaken to examine and make further recommendations on the issue of a reasonableness test for an honest belief of consent.

In the context of the review that I recently announced, I intend to meet Rape Crisis Network Ireland and other representative groups in the next few days. The legal protections for complainants will form part of that review, which will include consultation with relevant stakeholders and take account of proposals made in this area such as the recent Rape Crisis Network Ireland convened interagency group report on vulnerable witnesses. The terms of reference of this review are currently being finalised. I would be happy to keep the House informed. I acknowledge the contributions of Deputies Ó Laoghaire and O'Callaghan and others in this area, and I would be happy to commit to working with them.

Question No. 40 replied to with Written Answers.
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