Law to prevent questioning of rape victims in court on sexual history ‘is not working’

A law intended to protect rape complainants from being questioned about their sexual history during trial is “not doing the job it was designed to do” and should be repealed and replaced, according to a report.The so-called “rape shield” law was designed to restrict the defence’s ability to cross-examine complainants in a sexual offences trial about their other sexual experiences beyond the events subject of the charge.However, a judge has discretion whether to grant applications to admit evidence regarding other sexual experiences and will take into account factors including the defendant’s fair trial rights. The report, which was written by Maynooth University associate law professor Sinéad Ring and “supported by” Rape Crisis Ireland (RCI), found 39 per cent of sexual offence trials last year involved an application to admit such evidence.READ MOREIn the report the figure is described as “surprisingly high”, although no data is available concerning how many applications are granted.The report is based on 21 “in-depth interviews” with lawyers, policy specialists, court accompaniment workers and legal aid clerks with direct experience of how the law operates in practice. Among the interviewees were 13 practising lawyers with an average 18.5 years’ experience.The report found “overt character attacks” on complainants have declined, but it said arguments for admitting this evidence “continue to rely on the same discredited inferences the rape shield was designed to exclude”.These include the notion that “prior consent predicts later consent, and that a complainant’s sexual history undermines their credibility”.It said two groups faced particular risk of intrusive cross-examination: adults who are in a relationship with an accused, and child or adolescent complainants.The latter are often questioned about matters “as far removed” from the offence as social media use, including dating apps, or accessing pornography, the report said.Applications, it also said, were frequently made with little notice, sometimes on the first day of trial, limiting complainants’ ability to engage with the process.“Complainants are still being asked about their sexual history in ways that rely on outdated and discredited assumptions about what a ‘real’ rape victim looks like,” Ring said. “The law needs to change, but so does how relevance is understood and argued in these applications.”RCI executive director Clíona Saidléar said Ring’s report “gives us, for the first time, an evidence-based picture of how the rape shield actually operates in Irish courtrooms”.“It confirms what survivors have long told us: that going through the criminal justice system can mean having their private lives put on trial alongside the accused,” she said. “It is also perversely acting to reinstate sexist rape myths long discredited.”She said RCI would be using the findings “to press for the legislative and procedural reforms survivors deserve”.The report is to be launched on Thursday by Judge Úna Ní Raifeartaigh of the European Court of Human Rights during an event at the Criminal Courts of Justice, Dublin.The event, to be opened by Catherine Ardagh, Minister of State at the Department of Justice, will explore the application of the relevance test in applications concerning disclosure of sexual experience. Speaking in advance of the event, Ardagh said that combating all forms of domestic, sexual and gender-based violence remained a priority for the Government “as well as ensuring victims and survivors are fully supported”.