Tag Archives: conferences

Panel 4: Crimes of Sexual Violence: Debates and Developments in Irish Law

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The final panel session examined sexual violence from the domestic perspective. The session was chaired by Nora Owen, a former Minister for Justice and member of the Commission for Victims of Crime.

The Director of Public Prosecutions, James Hamilton began by setting out the difficulties in prosecuting cases of unlawful carnal knowledge since the decision of the Supreme Court in CC v Ireland [2006] 4 IR 1 and the subsequent enactment of the Criminal Law (Sexual Offences) Act 2006. He noted that it may be necessary under the 2006 Act to prove the absence of consent if the accused can show that he or she honestly believed that the child had attained the age of 15 or 17 years. The DPP stated that the wholly subjective test as to the defendant’s belief as to the complainant’s age had the effect of exonerating conduct which the legislature had seen fit to criminalise. He also stated that while further research was needed, a difference seemed to exist between prosecutions under the 1935 Criminal Law Amendment Act and prosecutions under the 2006 Act. The 1935 Act was often used in circumstances where rape or sexual assault charges would have been appropriate, in order to ensure that the complainant did not have to give evidence as to the issue of consent. However, prosecutions under the 2006 Act seemed to be exclusively in circumstances where the activity amounted to sexual exploitation, but where the activity was consensual. More serious cases involving a lack of consent were now being charged as rape and or sexual assault.
The DPP discussed his Office’s participation in two projects on attrition rates in rape cases. He noted that the oft cited figure of 1% conviction rate was erroneous, and it was likely that the real figure was closer to 7%, which was broadly similar to England and Wales. After examining some developments in sentencing for sexual offences, the Director concluded his presentation with a call for the codification of the law on sexual offences in order to make the law more accessible and comprehensive.

Dr. Tom O’Malley from NUI Galway described the former absolute liability for unlawful carnal knowledge as an atrocity, and noted that it was surprising that the provisions had lasted so long. The Supreme Court decision in CC was impeccable in terms of logic and justice. Following an intriguing tour through the climate of moral panic surrounding the introduction of the offence of unlawful carnal knowledge in the 1935 Act, Mr O’Malley criticised the present unclear state of the law. There was a need to clarify whether the offence of defilement should be one of strict liability or of absolute liability. He suggested that a solution could lie in taking into account the age difference between the parties.

Pauline Walley’s contribution consisted of a powerful insight into the practitioner’s experiences of prosecuting and defending trials of sexual offences. She highlighted the difficulties posed to victims and witnesses by procedural issues raised by defence counsel that lead to adjournment of trial. She suggested that a statutory case management system should be introduced in the criminal courts. The efforts made by individual judges were not enough to ensure efficiency. She suggested that issues such as disclosure, fitness to plead, and the raising of the defence of insanity should be dealt with pre-trial by a judge assigned to deal with case management issues. Ms Walley also called for the provision of greater resources, in particular proper facilities for the giving of evidence by vulnerable witnesses. This point was picked up by the Chair in her concluding remarks when she noted that no matter how much legislation is passed, it is of no use unless resources are provided to improve the operation of the criminal process.

Summary provided by PhD candidate and Government of Ireland Scholar Sinéad Ring.

Panel 2: Security Council Resolution 1325: Women, Peace and Security

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Madeleine Reese, Head of Women’s Rights and Gender Unit, Office of the UN High Commissioner for Human Rights, began her presentation by noting the limitations of international law as a tool of social transformation in post-conflict zones. She observed that progress in this arena has been tremendously slow, such that what often passes for success in the context of international law might not be so regarded elsewhere. In evaluating the potential of Security Council Resolution 1325 on women, peace and security, she stated that while it contained some ‘packages’ which would prove useful in improving women’s political participation, ultimately its recognition of women as agents for social change was muted – particularly in its language, which advocates the participation of women ‘where possible’. This presentation followed a broader theme which emerged in the papers presented at the conference: that blackletter law has little impact in the absence of proper implementation, backed by solid gender analysis. Ms. Reese argued that polarisation during conflict begins before conflict and is ultimately the product of social norms. While formal justice mechanisms were therefore important, they were unlikely to bear fruit unless regard was had to issues of recognition and redistribution.
First, it was important to ensure that transitional justice processes described women’s experience of conflict accurately. Procedure and process ought to be adapted to fit the emotional and practical needs of participating women. To illustrate the problems which can arise in practice, Ms. Reese cited examples from the ICTY; including women travelling unaccompanied to the Hague to participate in the tribunal and unsupported on their return home. The jurisprudence on rape itself also generates difficulties for female victims. The requirement to prove that the victim did not consent deterred women from participating in the Yugoslav and Rwandan tribunals. Ms. Reese advocated more intelligent prosecution to overcome this difficulty. For example, prosecuting sexual violence against women as torture (as is often done in the case of sexual violence against men) would overcome the consent requirement. Second, women’s social and economic rights ought to be enhanced so that they could overcome the social barriers which tended to exclude them from post-conflict negotiations. Ms. Reese argued that temporary special measures of positive discrimination ought to be applied post-conflict.

Col. Ben Klappe, Military Judge/Judge in the District Court Arnheim/Netherlands Defence Academy, presented ongoing efforts to prevent sexual abuse and exploitation by UN peacekeepers. He began by noting that UN peacekeeping forces have been dogged by allegations of sexual abuse since the Balkan missions in the early 1990s. Col. Klappe’s own presentation centred on allegations made against UN peacekeeping personnel in Bunia, DRC in 2004. The most recent set of allegations is contained in the Save the Children report No One to Turn to, published in May 2008, which claimed that sexual violence perpetrated against children went largely unreported. Col. Klappe outlined the following UN initiatives which aimed to tackle this problem:

Col. Klappe argued that a key obstacle in this area was the difficulty in disciplining perpetrators. Disciplinary power extends at most to repatriation and sending States retain exclusive criminal jurisdiction. The Special Committee on Peacekeeping Operations mandated the development of a legal framework enabling criminal prosecution. The 2007 model memorandum of understanding between the UN and sending countries has shored up possibilities for enforcement. In the memorandum, sending countries undertake to bring the full force of their legal sanctions to bear in enforcing agreed standards of conduct for troops. Another important recent development from the victims’ perspective is the General Assembly’s adoption in 2007 of a victim assistance strategy. Under this strategy, victims would receive assistance to address their needs which could include medical treatment, social support, legal services or material care.

Lt. Col. Oliver Barbour, Irish Defence Forces/GBV Consortium, dealt with two related areas. First, he touched on the work of the Irish Consortium on Gender Based Violence which has 14 members, including two Irish government departments as well as Irish human rights, humanitarian and development agencies. Its objectives are: to ensure that actions to prevent and respond to GBV are visible and systematically addressed in the work of its member agencies; to document and share resources on the prevention of GBV and to develop an advocacy strategy to promote awareness of and improve actions on prevention of GBV. The Consortium’s Advocacy Group works to raise awareness of the consortium’s work and GBV, and is promoting the development by the Irish government of an effective Irish National Action Plan on UNSCR 1325. During 2008, the Consortium will build on its current training and dissemination work and will also host an international conference in Dublin.
Second, Lt. Col. Barbour discussed the wide range of attempts to integrate a gender perspective into EUFOR’s recent operation in the Democratic Republic of Congo. His core message was that gender issues ought to be given effect at a practical operational level. In explaining the successes of efforts in the DRC, he discussed a number of key initiatives:

  • gender issues had been incorporated into the planning stage of the mission and eventually formed part of the operational plan.
  • a gender advisor was appointed to the EU OHQ to provide basic training for OHQ and FHQ personnel
  • reports on gender issues were compiled weekly.
  • a gender issues soldiers’ card was developed which provided for a zero tolerance policy on sexual exploitation and abuse.
  • women were specially trained to take part in patrols along w
    ith soldiers.

Lt. Col. Barbour reported that, as a result of these efforts, the force’s credibility among local women and among influential women’s organisations improved tremendously. However, he expressed concern that the legal officer was appointed gender officer at FHQ as he suggested that this ‘double-hatting’ undermined the importance of the role.

Summary provided by PhD candidate and IRCHSS scholar Máiréad Enright.

Panel 3: The Role of Transitional Justice in Addressing Crimes of Sexual Violence

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The second afternoon session, examining the response of transitional justice mechanisms such as truth commissions, trials and reparations to sexual violence was as depressing as it was informative. The three speakers brought experiential, methodological and geographic diversity to their papers, but the recurring theme was the immense difficulty of responding adequately to the psycho-social trauma of mass rape in the post-conflict environment.
Fionnuala Ní Aoláin focussed her discussion of truth, DDR and reparation mechanisms, but concentrated mainly on the limits of our understandings of harm. She argued that the exclusionary emphasis on sexual violence fails to fully understand the problem of women’s experiences in conflict situations. She used an examination of the afore-mentioned mechanisms to illustrate the gap between what women cite as harms and those that Truth Commissions and courts say are harms. Prof. Ni Aoláin also referred to the consistent criticism of transitional justice that it replicates the centuries-old division between the public and private sphere, reflecting make fears of violation over those suffered by many women. Similarly, the emphasis of transitional mechanisms on primary harms instead of secondary harms marginalises the experience of women who experience the latter in the same way as the former.
Professor Penny Andrews spoke of her extensive experience of transitional justice in South Africa, prefacing her remarks with the sobering observation that sexual violence rates have reached “epidemic” levels after 1994. Though international law has had a major impact on legal development in the State, it has not translated into protections for women bar in some encouraging isolated cases highlighted by the speaker. As Prof. Andrews pointed out, “a legal edifice can be in place but it doesn’t addresses attitudes”. A theme running through the three speaker’s comments was the inadequacy of transitional justice to respond to “ordinary” rape and the need for multi-faceted approaches. Prof. Andrews’ brief treatment of the Jacob Zuma case and the racialisation of gender-based violence shows how far justice and freedom in the private sphere are from the ostensible freedom in the constitution and state structures.
Judge Teresa Doherty, currently sitting in the Special Court for Sierra Leone and formerly of the Papua New Guinea Magistrate, High and Supreme Courts brought her experience in these courts to illustrate the difficulties of trial-based responses to gender-based violence. As presiding Judge in the AFRC trial, she has been responsible for crafting original jurisprudence on the crimes of forced marriage and sexual slavery. Prosecutions for rape and sexual violence remain all too rare so it was comforting to hear of this progress. Nonetheless, Judge Doherty’s references to trial of gender-based violence and sexual slavery in Papua New Guinea were once more sobering, capped by a tragicomic tale of a man who beat his wife to death who came before her court unable to understand that domestic chores might be subject to division between man and wife. In concurrence with her two preceding speakers, Judge Doherty stressed the necessity of education, and incontestable argument in light of the three discussions.

Summary provided by PhD candidate and Government of Ireland Scholar Pádraig McAuliffe.

Panel 1: Responding to Sexual Violence – Recent Developments in International Law

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The first panel session focused on the role played by International Law, and in particular, International Tribunals, in responding to Sexual Violence in conflicts. The session provided both an account of some positive developments in the area as well as problems, in respect of law (both International and domestic), and cultural and political challenges in responding to sexual violence.
The first speaker, Dr Kelly Askin, opened the session with an account of how the past 15 years has the recognition of Gender Based Violence (GBV) as a human rights issue. Taking the conference through the key court decisions from the International Criminal Tribunals for the former Yugoslavia and Rwanda, she informed the conference that the cases have established that GBV can be prosecuted as a war crime even in cases of defendants who were “in charge” rather than directly involved in the crimes. However, setting the tone for the rest of the speakers, Dr Askin went on to note the many missed opportunities and acquittals, and the fact that it takes sustained pressure for these crimes to be successfully prosecuted in practice. She also noted that now that the International Tribunals had set down the jurisprudence, it was time for the domestic courts to “step up” and do more to prosecute GBV.
The downbeat tone was picked up by the next speaker, Professor Doris Buss, who presented findings on the legacy of the International Criminal Tribunal for Rwanda. Reporting on the “bleak” record of the Tribunal she noted that there was a very low success rate in prosecuting sexual offences. Problems were found at all points in the system – investigations, prosecution and trials. Professor Buss noted that whilst in International Law rape had become visible as a mass crime, it remained almost invisible at the point of the individual; and whilst International Law has developed significantly in relation to prosecuting GBV, the institutional and the cultural problems continue.
The final speaker, Amira Khair, presented a disturbing account of the practical experience of working with women victims of sexual violence in Sudan. The experience made clear how Sudanese law is not a solution to GBV, but is in fact part of the problem. The law on rape exposes the victims to further abuse, as it requires four male witnesses to establish a victim did not consent to the sexual act. Without these witnesses there is a danger that the victim could be prosecuted for adultery because she had sex outside marriage. The law therefore does not provide the space for victims to seek legal protection and/or justice; something reinforced by the cultural context of not speaking out in relation to sex.
The session concluded that International Tribunals using International Law were only part of the way in which rape victims can obtain justice. Local courts, truth and reconciliation commissions, reparations, all had a part to play in tackling GBV after a conflict. It also took courage on the part of the legal players; which in itself was a telling issue as Professor Buss concluded “How did we get to the point where it needed courage to convict someone for rape?”

Keynote Address: Mr Micheál Martin, T.D., Minister for Foreign Affairs

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Mr Micheál Martin opened the Conference by highlighting recent International and national developments in relation to sexual violence. He began by welcoming the important development at the heart of the conference – that sexual violence was now recognised as a human rights violation. Indeed he emphasised that Ireland supported the fact that sexual violence was now being prosecuted as a crime against humanity and a war crime.
Mr Martin informed the conference that Ireland has recently taken over as chair of the Human Security Network (a group of like-minded countries from all regions of the world that, at the level of Foreign Ministers, maintains dialogue on questions pertaining to human security); the conference is the first event of Ireland’s chair of the network. The Minister stressed that Ireland was committed to making Gender Based Violence a focus of its time as Chair of the Network in order to ensure that the eyes of the International Community remained focussed on the issue.
Domestically, Mr Martin noted that gender based violence was also a high priority for the government. He informed the Conference of recent developments nationally which included the establishment in 2007 of Cosc, the National Office for the Prevention of Domestic, Sexual and Gender-based Violence. The initiative created a dedicated office at Government level which has the key responsibility to ensure the delivery of a co-ordinated “whole of Government” response to domestic, sexual and gender-based violence. Cosc will launch the first phase of consultation on a National strategic Action Plan on Domestic and Sexual Violence in autumn 2008. Legislation reforming the whole area of sexual offences to ensure a workable, updated and simpler approach to the area would also be introduced in the future.
The Minister noted that conference was very relevant to the work of the government both internationally and nationally. He welcomed delegates and speakers and the contribution they would make to the overall debates that were necessary to ensure ongoing reform to the law on Sexual Violence at all levels.

Reforming Laws on Sexual Violence: International Perspectives

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The Centre for Criminal Justice and Human Rights at the Faculty of Law, University College of Cork is hosting the third Annual Criminal Law Conference with the support of the Department of Foreign Affairs. It is the first event of Ireland’s chair of the Human Security Network 2008-2009.
The aims of this international conference are to assess international criminal law developments on crimes of secual violence, to inform law and policy debates to strengthen responses to sexual violence and to promote awareness of sexual violence as a human rights violation. The conference programme comprises International and Irish speakers. Academics and practitioners from all over the world (including Australia, Canada, the US, Sudan, Timor-Leste and Europe) as well as from Ireland will present on and discuss trends in the prosecution of sexual violence with particular focus on International law developments.
The sessions will be summarised and posted on the blog.

The 2nd Postgraduate Conference in Criminal Justice and Human Rights

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The second annual postgraduate conference on criminal justice and human rights will take place here in the Centre for Criminal Justice and Human Rights on 1 May 2008. The papers are drawn from postgraduate students in Ireland, the UK, the US and Singapore and offer a very broad range of perspectives on criminal justice, human rights, and the interaction between the two. All interested parties are welcome to attend, although you ought to register on or before the 25th of April 2008, using the registration form that can be found here.

The keynote address is entitled The Future of UN Human Rights Treaty Monitoring and will be presented by Professor Michael O’Flaherty of the University of Nottingham and the (UN) Human Rights Committee. The conference will also feature an after-lunch presentation by UCC Law’s Professor Steve Hedley entitled “Finding Employment and Getting Published”, which should be of interest to all aspiring academics.

As in 2007, the conference is supported by Clarus Press. Full details of the conference, including the full programme, are available here.

Plenary 4: Ombudsman for Children Emily Logan – Respecting the Voice of the Child

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Ombudsman for Children, Emily Logan began by giving a brief background to her Office. It has been in operation for three years and began with fifteen staff and a small budget of €280,000. The Office has so far received 1700 complaints from children. Children were involved from the very establishment of the office. A constant theme that ran throughout Logan’s address is that the voice of the child is all important. Article 12 of the UN Convention on the Rights of the Child addresses this issue; the child has a right to form their own views and to be heard.

In Ombudsman Logan’s experience children attach a great weight to being heard during decisions that may affect them. Many complaints to the Office have come from children who have been subject to administrative decisions with the decision makers underestimating the effect of such decisions on the child. There is a consistent denial of the right to participate in decisions and Ombudsman Logan expressly mentioned the issue of family separation. Other complaints from children involve children in the care of the state. Children are often troubled by their lack of access to siblings when they are in care. Logan pointed out that decision makers often claim to have carried out a comprehensive examination of a particular situation but may not in fact ascertain what the child thinks should happen. Logan also highlighted the recent criticism of teachers about student’s behaviour in class. Their complaints are about very minor disruption and Logan expressed her disappointment about this.

She then presented a series of pictures on power point to reveal a number of findings. She showed that young people often have the capacity to be comfortable with issues such as death that adults are not so comfortable with. A child should never be underestimated because of their age. There are different ways to engage young people to find out what their views are, art is a good example. Participation of the child does not always have to be resource intensive.

She then went on to show two DVD presentations. The first was of a boy from the Travelling Community talking about his experience in education. Logan pointed out that when he was asked to take part in the DVD he wanted someone else’s voice to be used as he was embarrassed about how he would come across. In fact he highlighted the issues he faced perfectly through his own voice. The second DVD presentation was of the Big Ballot that the Office recently carried out. 75,000 children in 500 schools took part across a broad section of the community. The ballot sought to find out what were the concerns facing children in Ireland today at a time of rapid change. Not everyone is happy with the work of the Office and one individual did bring a legal challenge against the ballot for undermining the place of the family in the Irish Constitution.

In conclusion Ombudsman Logan stressed that legislation is required to properly hear the voice of the child. People working with children can make the difference while waiting for this change.

Summary provided by LL.M (Criminal Justice) candidate, John Cronin.

Plenary 4: The Honourable Mr Justice John McMenamin – The Minor List in the High Court: A case study

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Mr Justice John McMenamin was in charge of the minor’s list in the High Court for three years. The list evolved in the 1980s in response to holes in the statutory regime. Young persons at risk of suicide, drugs, prostitution, abuse and other exceptional circumstances would be taken out of the custody of their parents but there was no suitable legislative framework at the time, so the minor’s list in the High Court evolved as an important response. Justice McMenamin said an important lesson he learned after taking over the list is that one does not have to reinvent the wheel every time a new judge takes control of the list. Other judges had been dealing with the same issues in the past – shortages of resources, the channelling of cases to court, and the upholding of order, for example. In this paper Justice McMenamin brought attention to the particular kind of difficulties that arise in balancing a youth’s right to liberty and right to life and the benefit of inter-agency discussion and co-operation in trying to arrive at sensible and appropriate solutions to these difficulties. These issues were highlight by means of a case study from the Judge’s experience in managing the Minor’s list.

In this paper he presented a case study, based on the story of an individual he referred to as Shay (not his real name). At 15 Shay found himself before the court – he had no contact with his father, he had been the victim of sexual abuse within the family, he had been assaulted by a neighbour, he suffered from an attachment disorder and had psychological and drug-related problems but he had never been convicted of an offence. He was placed in the centre in Finglas where he did well but once he left Finglas there was a difficulty as to where he could go. The right to liberty militated against him being detained – he could be placed in a unit with youths who had committed offences, but he had not been convicted of any offences; he could have been left free but there was a high risk of suicide; he could be placed in a low security unit but there was a risk he would abscond. Thus the High Court had to come up with some kind of solution that would respect both Shay’s right to liberty and his right to life

Ultimately Justice McMenamin took the unprecedented step of bringing all parties and agencies together to sit down and examine the problems faced in practice and the shortcomings in the system. There was an attempt to work through the issues. The central issue in Shay’s case was whether a long-term order could be made for his detention up to the age of eighteen. The making of long-term orders without review is outside the limits of our constitution. Just as Justice MacMenamin was about to make an order in the case the District Court were also making an order the same day. Shay had two different legal representations. He pointed out that this typifies the need for joined up courts and law and an idea of what is in the best interests of a child. He pointed out that in only 2% of the cases before him parents were represented; it was mainly the state who took an interest in a child. Frequently parents suffered their own problems. Ultimately after balancing out all the issues a decision was made to detain Shay in a high security unit under review.

Justice McMenamin concluded by highlighting some of the lessons that can be learned. Involvement of the courts should be as a last resort. They should be use in an emergency as a means of intervention on the behalf of the state. The duties of parents are correlative to the rights of minors. This is difficult when parents do not want to be responsible. The balancing of libertarian values and the right to life offer difficult problems. He pointed out that there will always be holes in the system, no system is perfect. There is a strong indication that one size does not fit all, the institutions available do not suit all scenarios. Agencies can all interact in a positive manner to intervene where necessary.

Summary provided by LL.M (Criminal Justice) candidate, John Cronin.

Semi-Plenary 1: Brian Fitzpatrick – Restorative Justice an Irish Perspective: Reflections on the National Commission on Restorative Justice

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Mr Fitzpatrick of the National Commission on Restorative Justice, began by outlining who is on the National Commission. The committee has representation from the Gardai, the Courts Service, the Probation Service, the Principal Prosecution solicitor and two lay members. The recent Joint Oireachtas Committee report was significant in the area of restorative justice (RJ) as it had cross party consensus, this helps to create momentum. The report recommended more use of RJ, put it on a statutory footing, foster judicial interest and to profile the benefits of RJ for victims.

He then went onto examine what exactly RJ is. Like O’ Mahony he conceded there was no unanimous idea of what it is and he gave a sample of the definitions available. It offers the victim fairness, respect and satisfaction. It offers them the opportunity to speak, participate in the outcome and to receive an apology. It offers the offender a greater appreciation of the harm caused and hopefully a positive impact on recidivism. It empowers the community via involvement.

Over 80 countries use some form of RJ, with Canada having 12 distinct models. Fitzpatrick pointed out that many models of RJ are rooted in the community and address cultural and ethnic issues. He then went on to highlight how RJ is used throughout the world and its use in both adult and juvenile cases. After this brief discussion he focused his attention on Ireland how we have used RJ. He focused mainly on the Garda Diversion Programme. He applauded the Gardai’s commitment and professionalism in helping with implementation of the 2001 Children Act. There was a 93% satisfaction for victims in the restorative approach. Juveniles said it was not an easy option. There was a 33% reconviction rate of juveniles subsequent to diversion. Fitzpatrick pointed to the distinct advantage of having both the victim and the offender’s family involved.

He went on to point out that RJ in the future will only be one of a number of options available to the criminal justice system, it will not overtake the existing system but offers some distinct benefits. He pointed out the large number of people receiving sentences of six months or less. It is his belief that if more of them were diverted there would be better outcomes for both victims and offenders.

He concluded by saying that RJ has now gained a foothold in Ireland and can be used as an alternative to tackle crime. It is limited but growing and the Commission’s task is a work in progress.

Summary provided by LL.M (Criminal Justice) candidate, John Cronin