Dr Susan Leahy: Time to reconsider whether Irish law protects complainants in rape trials

Dr Susan Leahy

Law lecturer Dr Susan Leahy, co-author of Sexual Offending in Ireland: Laws, Procedures and Punishment, writes for Irish Legal News on the conduct of rape and sexual assault trials in Ireland.

In light of the publicity surrounding a recent Cork rape trial where details of a complainant’s underwear were raised during defence counsel’s closing arguments, it is time to consider once again whether Irish criminal law and procedures are sufficiently robust to protect complainant’s interests.

Although the law in this area lay relatively untouched for a significant period of time, the Criminal Law (Sexual Offences) Act 2017 introduced some important and much-needed reforms. Most notably in the context of the current controversy, the 2017 Act introduced a statutory definition of consent, providing for the first time a clear, positive statement of what constitutes a legally valid consent to sexual activity. In addition, the Criminal Justice (Victims of Crime) Act 2017 has introduced important rights for victims of crime which ensures that victims of sexual offences are legally entitled to certain supports (e.g. court accompaniment) throughout the trial process.

These are significant and long-awaited developments but, as the recent case demonstrates, more is required if the lingering tendency to unfairly and inappropriately prejudice complainant’s testimony by raising ‘rape myths’ or stereotypical attitudes about rape and rape victims is to be eradicated from the Irish legal system.

There is no doubt that further law reform is necessary in this area. For example, the Law Reform Commission is currently reviewing the ‘honest belief defence’, that is, section 2(2) of the Criminal Law (Rape) Act 1981 which states that a defendant must be exculpated of a rape offence if he held an honest (even if unreasonable) belief in consent. Admittedly the practical effects of this defence are disputed, with some commentators highlighting that, although reasonable grounds for a belief in consent are not required to raise the defence, jurors are in practice unlikely to be swayed by spurious or unfounded claims of honest belief. However, the negative symbolic effects of the defence are undeniable, supporting the idea that an unfounded, unilaterally formed belief about consent is sufficient to avoid liability for rape. This is entirely at odds with the message of ‘free agreement’ and communication which is at the heart of the new statutory definition of consent. Thus, it is to be hoped that this reform will be forthcoming from the legislature once the Law Reform Commission have completed their review of the law.

However, it is clear from recent events that change in this area requires much more than law reform. Deep-seated attitude change is also required to make sure that myths and stereotypes about rape and rape victims can no longer distort the focus of rape trials from a determination of whether there was a legally valid consent to whether the details of the incident conform to erroneous and prejudicial stereotypes about rape and ‘appropriate’ victim behaviour.

Outside of traditional law reform, much investment in training of those who work within the criminal justice system is required to make sure that everyone is striving to make sure that victims are always treated fairly and respectfully in rape trials and that irrelevant information is not used to confuse and prejudice jurors in their deliberations. Attitude reform within society more generally is also required to eradicate any lingering tendencies to blame victims and to educate the general public about the realities of rape, most significantly that the victim is never to blame and his/her behaviour should never been viewed as precipitation.

Put simply, while a lot has been achieved in terms of legislative developments in this area of the law, much work remains to be done. Recent events have clearly illustrated that what is perhaps most urgent is training and awareness raising so that rape myths no longer distort the trial process in rape trials, unduly furthering the trauma experienced by complainants and compounding the difficulties of proof in these complex trials.