The most vulnerable victims of rape and sexual assault should be able to pre-record their evidence instead of appearing before a court, the Oireachtas’s joint committee on justice has heard.
The lengthy delays in sexual assault cases getting to trial not only retraumatise victims, but affect the quality of victims’ memories, Caroline Counihan, legal policy director at the Rape Crisis Network of Ireland (RCNI), said on Tuesday.
The negative effects of memory loss due to trial delays could be negated for at least the most vulnerable witnesses, such as children and people with a mental disorder, by opting for pre-recorded evidence, she said. Other victims could be allowed to pre-record their primary evidence, she said, adding that the “primacy of oral evidence in our criminal justice system is at odds with modern psychology”.
Any new legislative framework should give judicial powers to allow “novel individually tailored” measures to assist a vulnerable witness in giving evidence, Ms Counihan went on. She said resources must also be deployed to enable lawyers to access appropriate training to challenge some of the “many pervasive rape myths” which, she said, much defence cross-examination was still based on.
From the Bar of Ireland, Dara Hayes BL, said victims of sexual assault should be entitled to legal representation when questioned about their past sexual experiences. Such a provision was already in place for rape victims, and this “anomaly” between the two types of assault should be solved, he said.
The impact of trial delays on victims can be “significant”, Mr Hayes said, as victims ready themselves for a date that then gets postponed. Backlogs in the court system, now stretching to 2023, could be “significantly ameliorated” with greater resources, he added.
Mr Hayes said the Bar Council of Ireland welcomed the proposed introduction of preliminary hearings as a means of alleviating some uncertainty in the run-up to a trial. Legislation to introduce pre-trial hearings, which would hear some evidence once a plea is entered, is currently before the Oireachtas.
Deirdre Kenny, director of advocacy at One in Four, a support service for survivors of childhood sexual abuse, said it is important to understand how a witness’s trauma can be provoked in a court setting. Ms Kenny said the “traumatic stress” felt by victims during a trial can hinder their ability to deliver a credible account of their experience.
Flashbacks
“Some people experience flashbacks. A person can lose all awareness of their present surroundings as they live through the trauma as if it was happening again,” she said.
“We have observed in court how language, tone of voice, the style of questioning, and the use of silence, are all devices that can either reassure or trigger a traumatic response in witness,” she added.
Kathrina Bentley, chief executive of Men’s Aid Ireland, said it is “extremely difficult” for men to report sexual assault and rape, and many men tell the charity’s helpline they fear they will not be believed.
“They talk about their shame, masculinity, gender stereotypes, and how the crime is not classed in law because of their gender,” she said.
Little is known about intimate partner sexual violence against men, but the service received 13 calls in 2020 from men who had been sexually assaulted by partners, 11 of which were female partners, she said. She also gave an example of an 18-year-old who reported to Men’s Aid in 2020 being sexually assaulted by his mother and his sister.
“These men suffer in silence, as it is difficult for society to accept that women too can be – and they are – perpetrators of violence.”
Ms Bentley said “forced to penetrate” assault of a man by a woman, where a woman coerces a man to penetrate her, should be recognised as a crime under Irish criminal law. Ms Bentley called for increased resources to support male victims and to research the area.
Anyone needing support should contact: Women's Aid Helpline (24 hours) 1800 341 900; Dublin Rape Crisis Centre Helpline (24 hours) 1800 778 888; Men's Aid Ireland national confidential helpline – (01) 554 3811; gardaí (24 hours) 999/112
