Rape trial anonymity should be retained in Republic, expert says

The law on the anonymity of defendants and complainants in rape trials in the Republic works well and should be retained, according to a leading academic.

NUI Galway law lecturer Dr Conor Hanly said he was surprised by the recommendation of Sir John Gillen, in the wake of the Belfast rape trials, that the rule in Northern Ireland, which allows for the naming of defendants, should not change.

The trial in Belfast last year in which rugby players Paddy Jackson, Stuart Olding and others were found not guilty, received massive publicity because of the identities of the accused.

In the Republic, a defendant in a rape trial is not identified until the trial is over and then only if there is a conviction and the identification does not endanger the anonymity of the complainant.

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However, a complainant can opt to waive her rights so that a convicted rapist can be identified.

In his interview with The Irish Times, Mr Gillen said he felt the “greater contribution to justice” was served by naming the accused in rape trials so that others who might have been assaulted by the same person might seek justice.

Jackson and Olding were found not guilty “but their names are mud,” Dr Hanly said. He said that naming defendants in rape trials can destroy their reputations even though the people concerned have a presumption of innocence.

Noeline Blackwell, of the Dublin Rape Crisis Centre (DRCC), said she had "some sympathy" for Mr Gillen's view on the issue of anonymity, given that people accused of other types of serious crime are publicly named.

However, the issue of “celebrity trials” and the intimacy of what was involved in sexual assault cases, had persuaded her that “on balance” the anonymity of defendants should be retained.

The DRCC has not recommended any change to the anonymity rule in a submission to a review currently under way into how investigations into and prosecutions of sexual offences are conducted.

The review, chaired by Tom O’Malley, of NUI Galway, is due to report in the first quarter of this year. The review group has met Mr Gillen as part of its work.

Ms Blackwell said that allowing for the publication of a defendant’s identity meant that victims of sexual crimes by celebrities would be less likely to press charges, given the intense focus any trial would receive from the media.

Rape myths

Dr Hanly, the author of the 2009 report Rape and Justice in Ireland, said he thought there was scope for jurors to be educated about rape myths prior to a rape trial, but that it was a complicated issue given that trials are adversarial processes.

Addressing jurors prior to a trial about such matters as the fact that most rapes are committed by persons known to the victim, do not involve serious injury, and that there is no stereotypical response from the victim, would have to be done in a very neutral way.

He believed that there was an argument for the pre-trial recorded cross-examination of the complainant, so as to reduce the burden of the trial process, something which has also been suggested by the DRCC.

Overall, however, Dr Hanly said, society’s concern for victims should not come at the expense of the defendant’s right to a fair trial.

The DRCC, in its submission to the review, said that complainants should have increased legal advice and representation during rape trials for applications that are heard in the absence of the jury, as well as when they are considering whether they should waive their right to anonymity following a conviction.