Lawyers for a convicted child rapist have told a High Court judge that rape victims are subject to criminal prosecution if they publish their own identity.
Last March, a jury convicted a 41-year-old Wicklow man of repeated sexual attacks on a neighbouring child when she was aged approximately nine.
The man had pleaded not guilty to four counts of rape and two counts of indecent assault in Co Wicklow on unknown dates between 1987 and 1989. Mr Justice Michael White, sitting at the Central Criminal Court, imposed a seven-year sentence earlier this month.
At that time he continued an order, made during the trial, preventing the publication of the identity of both parties. He said he made this order at the request of the Director of Public Prosecutions (DPP).
Last week, lawyers for the DPP brought the case back before Mr Justice White and told the court that the woman now wished to waive her anonymity so her abuser could be named.
Defence counsel Colman Fitzgerald SC indicated to the court that he intended to contest the application on the basis that there is no basis in law for the anonymity of complainants to be set aside.
At a full hearing on Thursday, Paul Murray SC, for the DPP, said the relevant law is the 1981 (Rape) Act where section 8 provides for the anonymity of a rape accused during trial and up to and until conviction.
He said section 7 of the act states that “after a person is charged with a rape offence no matter likely to . . . identify a woman as the complainant in relation to that charge shall be published”.
He said after conviction the anonymity afforded to a rape accused automatically falls and he can be identified.
He told Justice White that he did not believe a trial judge had to make an order in a situation where it was “clear on the face of it” that disclosing the name of the convicted man would tend to identify the complainant.
“The media cannot do so if to do so would contravene the protection afforded to the complainant,” he said. He said the act places a responsibility on the media and provides for penalties and said an offender cannot be named by a media acting responsibility if to do so would contravene section 7.
Remarkable
He said it would be remarkable if a victim of sexual assault simply has no right to waive their anonymity.
He said if a person did go public in breach of the act he didn’t think there was any legal sanction.
Mr Fitzgerald replied that he disagreed and said that the law makes it an offence for anyone to publish the identity of a rape complainant.
“There is nothing there that permits the complainant to discard the prohibition of [the Act],” counsel said.
The court heard that the practice of complainants being identified began when rape survivor Lavinia Kerwick waived her anonymity in July 1992. Mr Fitzgerald said he could not find any legal basis “for what I acknowledge is routinely done”.
Citing a judicial review taken by Independent Newspapers on the lawfulness of reporting restrictions imposed by Judge Mary Ellen Ring in October 2016, Mr Murray said the High Court ruled that the restrictions ought not to have been continued after the men were sentenced for a sexual offence.
“The continuation of the order . . . was not warranted by the necessity to ensure a fair trial or to protect the [defendant’s] rights. There is no evidence to suggest that the preservation of his identity post-conviction was necessary to ensure the preservation of the complainant’s identity under s. 7 of the Act.”
Justice White said the application had raised significant issues for the court and significant issues as to whether judges should be saying something during the course of these trials.
He said he would give a written judgment on June 28th next and asked the DPP and the defence to submit written submissions by June 10th and June 19th respectively.
The man first raped his victim during a game of hide and seek when she was aged approximately nine years old and he was 17 years old. He raped the girl three more times during that summer and told her not to tell anyone as it was their secret.
The victim came forward to make a statement in 2013 and there were a number of trials which collapsed before the man was convicted.