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Sinn Féin publish amendments to tackle reference to clothing in sexual offences trials

28 November, 2018 - by Donnchadh Ó Laoghaire TD

Sinn Féin have today published amendments to the Criminal Law (Sexual Offences Bill) to tackle the practice of making reference to the clothing of the complainant in sexual offence trials.

The Bill will be debated by the Justice Committee tomorrow.

Speaking today, Justice Spokesperson Donnchadh Ó Laoghaire TD said;

"The story that emerged from the recent court case in Cork, was appalling, indefensible and was a strategy which clearly implied that the victim was to blame.

“It was shocking to read reports of this recent case, where rape was complained of by a 17 year old, that the defence lawyers attempted to point to her thong as proof of her consent.

“It is clear proof that there are not adequate protections for victims of rape, when they appear before the Courts.

"The deeply traumatic and difficult experience of many complainants is a huge contributor to the fact that Rape is so under reported. We need to radically change that experience.

“We will be seeking amendments to the Criminal Law Sexual Offences Bill to tackle this phenomenon, and to make it much harder for the Defence to introduce clothing as evidence in this way.

“The amendment has safeguards built in, so that, that clothing evidence could be brought before the courts in exceptions where it would be unfair to the defendant not to have this evidence introduced. Clearly that has not been the case in recent instances.

"More often, it has its roots in a culture where it is acceptable to imply consent on the part of the complainant.

"And the effect of referencing past sexual history, and of pointing to the clothing worn by the complainant, are essentially the same, they ascribe blame to the victim, and a form of attacking their character or implying fault.

"We will therefore seeking to extent those sections, of the 81 and the 01 Act, which currently restrict bringing in evidence of sexual history, to the clothing worn by the Complainant.

"I believe this would address the instance of the case in Cork, and would be a significant step forward in tackling victim blaming strategies in court.”


NOTE TO EDITOR – The Criminal Law Sexual Offences Bill will be debated tomorrow at 2;30 in the Oireachtas Justice Committee

Amendments submitted:

To Insert the following section after Section 4.

Amendment of Criminal Law (Rape) Act

4A - The Criminal Law (Rape) Act 1981 is hereby amended by the insertion after section 4A of the following sections:

“4B - (1) If at a trial any person is for the time being charged with a rape offence to which he pleads not guilty, then, except with the leave of the judge, no evidence shall be adduced and no question shall be asked in cross-examination at the trial, by or on behalf of any accused person at the trial, about the clothing worn by the complainant at the time of the alleged offence.

(2)(a) The judge shall not give leave in pursuance of subsection (1) for any evidence or question except on an application made to him, in the absence of the jury, by or on behalf of an accused person.

(b) The judge shall give leave if, and only if, he is satisfied that it would be unfair to the accused person to refuse to allow the evidence to be adduced or the question to be asked, that is to say, if he is satisfied that, on the assumption that if the evidence or question was not allowed the jury might reasonably be satisfied beyond reasonable doubt that the accused person is guilty, the effect of allowing the evidence or question might reasonably be that they would not be so satisfied.

(3) If, notwithstanding that the judge has given leave in accordance with this section for any evidence to be adduced or question to be asked in cross-examination, it appears to the judge that any question asked or proposed to be asked (whether in the course of so adducing evidence or of cross-examination) in reliance on the leave which he has given is not or may not be such as may properly be asked in accordance with that leave, he may direct that the question shall not be asked or, if asked, that it shall not be answered except in accordance with his leave given on a fresh application under this section.

(4) Nothing in this section authorises evidence to be adduced or a question to be asked which cannot be adduced or asked apart from this section.

(5) Where a justice of the District Court conducts a preliminary examination of a charge of a rape offence, then, except with the leave of the justice, evidence shall not be adduced and a question shall not be asked at the examination which, if the examination were a trial such as is mentioned in subsection (1), could not be adduced or asked without leave in pursuance of this section.

(6) On an application for leave the justice shall—

(a) refuse leave unless he is satisfied that leave in respect of the evidence or question would be likely to be given at such a trial, or

(b) give leave if he is so satisfied.

(3) Subsection (3) shall apply to an application under subsection (6) of this section with the substitution, for references to the judge, of references to the justice.

4C.—(1) Where an application under section 4B is made by or on behalf of an accused person who is for the time being charged with an offence to which this section applies, the complainant shall be entitled to be heard in relation to the application and, for this purpose, to be legally represented during the hearing of the application.

(2) Notice of intention to make an application under section 4B shall be given to the prosecution by or on behalf of the accused person before, or as soon as practicable after, the commencement of the trial for the offence concerned or, as the case may be, the commencement of the proceeding concerned referred to in section 4(1).

(3) The prosecution shall, as soon as practicable after the receipt by it of such a notice, notify the complainant of his or her entitlement to be heard in relation to the said application and to be legally represented, for that purpose, during the course of the application.

(4) The judge shall not hear the said application without first being satisfied that subsections (2) and (3) have been complied with.

(5) If the period between the complainant's being notified, under subsection (3), of his or her entitlements under this section and the making of the said application is not, in the judge's opinion, such as to have afforded the complainant a reasonable opportunity to arrange legal representation of the kind referred to in this section, the judge shall postpone the hearing of the application (and, for this purpose, may adjourn the trial or proceeding concerned) for a period that the judge considers will afford the complainant such an opportunity.

(6) This section applies to a rape offence and any of the following, namely, aggravated sexual assault, attempted aggravated sexual assault, aiding, abetting, counselling and procuring aggravated sexual assault or attempted aggravated sexual assault, incitement to aggravated sexual assault and conspiring to commit any of the foregoing offences.”

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