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

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.