Seanad debates

Wednesday, 17 November 2021

Report on Victim’s Testimony in cases of rape and sexual assault: Motion


10:30 am

Photo of Mark DalyMark Daly (Fianna Fail)
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I welcome the Chairman of the Oireachtas Joint Committee on Justice to the House and fáilte roimh an Cathaoirleach to the Seanad. This is one of the initiatives that this Seanad had undertaken for the renewal of the Seanad. A number of reports have suggested bringing in the Chairs of committees to the Seanad after they have published reports, examining the recommendations of those reports and seeing what action has been taken regarding those reports. All too often many Members here have served on committees where the reports are published and then there is perhaps a lack of action on the recommendations thereafter. When Senators, Deputies and, indeed, the Chairs of committees put the effort in, and witnesses and organisations come before committees, it is beholden on us all to follow up on the recommendations, on foot of those witnesses' testimony and the efforts put in by everybody. The recommendations are often argued over by committee members. However, we are lucky that in this Parliament more often than not the majority of reports get unanimous approval from the committee members, and there is no or very rarely any division on it. This report is probably the most important report we have on the Order Paper at the moment as it relates to the issue of rape and sexual assault. As we know, all too often less then 10% of victims report incidents of sexual violence or rape to gardaí. As I am sure the Chair will outline, the number of convictions is extraordinarily low and many victims feel like they are retraumatised by the system that we currently have at this moment in time.

I welcome Deputy James Lawless to the House to outline the work that the committee put in, and obviously the testimony that came before the committee and the recommendations of the report. I note in his report that he has sent a copy to the Department and the Minister. The committee did so when it published the report. Perhaps we will hear the response the committee got to the recommendations and will hear what actions its members are aware of that have been implemented on foot of their recommendations.

Photo of Lisa ChambersLisa Chambers (Fianna Fail)
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I move:

That Seanad Éireann shall take note of the Report of the Joint Committee on Justice entitled 'Report on Victim’s Testimony in cases of rape and sexual assault', copies of which were laid before Seanad Éireann on 11th June, 2021."

I welcome Deputy Lawless who is the Chairman of the Oireachtas Joint Committee on Justice and thank him for giving of his time. I thank the Cathaoirleach for initiating this process within the Seanad and it is very timely. It is a good use of Seanad time because as the Cathaoirleach said, many excellent reports are published by Oireachtas committees that gather dust and their recommendations are never actioned or perhaps only some of them are. It is a good use of our time to follow up on those recommendations given the amount of excellent work that was put in by the committee Chair and members, and of course those who gave evidence to the committee that led to the compiling of this excellent report.

The figures are shocking whereby less than 10% of victims report instances of sexual assault or rape to the gardaí. In 2008, only 8% of reported rape cases resulted in a conviction and the percentage increased slightly to 11% in 2018. Let me be blunt and say that one would almost be unlucky to be convicted of rape in this country because the statistics are so shocking. The rates of reporting, prosecution and eventual conviction are so low so is it any wonder victims do not come forward? They probably feel that the chance of getting justice for what they have been through is extremely low. There is no doubt about it. Our system is broken. Something wrong is going on here and there is a reason the rate of reporting of these crimes is so low. I understand that it is the most serious crime yet it has one of the lowest level of reporting, which is something that must be addressed.We have to ask why reporting is so low and then we can probably say why the conviction rate is so low. The conviction rate is so low because victims are not coming forward to report the crimes. That is something we have to address. The committee's report goes a long way towards addressing the underlying reasons victims choose not to come forward and go through the justice process.

The committee's intention was to look into the reasons victims were not engaging with the justice system. In going through the justice process from their first engagement with the Garda to the courts, victims find it to be a very traumatic process, and they find themselves to be re-traumatised by going through that. That is something we must address. Victims are scared of the justice system when it comes to reporting sexual offences and going through the rape trial process. In most instances, the approach of the defence in those trials is to try to discredit the credibility of victims and to assassinate their character so that the jury will not believe what they are saying. That is not always the approach, but it is often the case in those types of trials, which is widely known by the public. That is why victims are very afraid to come forward and go through that. We need to address that.

A key area that victims are afraid of is that their previous sexual history will be brought before the courts and put out there in all its glory in every single detail. The victim is required to answer questions of his or her previous sexual history. I have a real problem with that and I think that should not be allowed but, unfortunately, that is permitted in those trials. One of the most high-profile cases recently was the Belfast rape trial. It was widely publicised on social media and in regular media and it is was everywhere. Every detail of that trial was all over the place. The victim was treated appallingly in that trial. For any woman who had experienced sexual assault or rape and was thinking of coming forward, could she be blamed for not wanting to, having seen what happened to victim in that case? I still stand in solidarity with her despite the verdict. I acknowledge there is a verdict and we accept that. However, the process itself and what she was put through was just appalling. That is something that we need to address. I do not have all the answers but what happened to that young woman was outrageous. It was disgraceful. It still makes my stomach turn to think of the process that she was put through. I have no doubt that had a chilling effect on other victims who might have wanted to come forward or who may think about coming forward in the future. We all remember what happened in that trial and how she was treated. That is something that needs to be addressed.

I will touch upon a couple of the recommendations in the report, which are excellent and stand out. A key recommendation is to increase the number of judges to reduce delays in these trials coming through. There is a recommendation for specialist training for the Garda and for those in the justice system to help victims go through this process. We know the process is traumatic and is preventing victims from coming forward. A simple recommendation that can be implemented today is to ensure that the victim and the accused sit as far away from each other as possible. That might sound simple but coming face to face with your attacker is a traumatic experience for the victim that re-traumatises them. It is crucial to ensure that separate legal representation is there to support the victim particularly when they are being questioned and cross-examined about their previous sexual history. I have been clear on why that should not be allowed in a rape trial but it is there; giving victims separate legal representation to get through that particular process is crucial.

The report went beyond the justice process and focused on the relationship and sexuality education, RSE, curriculum and the need to educate our young people about consent. We have a big job there. A large number of young people do not know what consent is.

I commend the Chairman and committee members in both Houses on their work and I am glad to have the opportunity to discuss this issue in the House. We have a lot of work to do but this is a great starting point. If he has time, I ask the Chairman to touch upon the process of engaging with the witnesses and how he felt that went and to share any responses that have been received to date from the Minister and the Department on how they intend to action these important recommendations.

Photo of Mark DalyMark Daly (Fianna Fail)
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I will call Deputy Lawless, Chairman of the Joint Committee on Justice. I thank him for coming to the House to discuss this report. As Senator Chambers said, this is a very important topic. There are many cases that can be discussed, but I must warn Members not to mention people by name because we do not want to bring the House into disrepute. There is the issue of parliamentary privilege but we must balance those powers.

The subject of this report is a systems failure that has been going on for far too long where those who have been subject to the horrific crime of rape are not getting the justice that they deserve. We need to change the way our justice system work to make sure that they get the justice to which they are entitled.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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I thank the Cathaoirleach for inviting me. I am delighted to be here on behalf of the committee to share a flavour of our report and give an update on this important report. I want to acknowledge the work of the Cathaoirleach, Senator Daly, in the innovation of bringing forward these types of sessions. This is something that the Seanad, as a strong second Chamber, can excel in. As someone who campaigned for the retention of this forum a number of years ago for exactly this purpose, I am delighted to see it being ventilated and used for significant probing of legislation, holding Oireachtas committees and the Government accountable and putting us on notice in these types of exercises. It is a worthwhile initiative and I commend the Cathaoirleach and the House on taking it on. I am delighted to be perhaps the first committee Chairman to come before the House in this regard.

The joint committee is answerable to the Oireachtas as opposed to the Government through the separation of powers. My duty is the Dáil and Seanad and, of course, to the people who are sovereign. While I am a member of a Government party, and very proudly so, I chair the committee in an impartial way and the committee does its work independent of any party persuasion. We do it as comprehensively and impartially as we can. I think that we work well together. I want to recognise Senators Gallagher, Ward, Ruane, Martin and McDowell who are members of the committee and I thank them for their contributions not just to this report but to all the many reports and exercises that we have performed.

The Joint Committee on Justice, as its name would imply, is law heavy. We have the greatest workload before us than any other committee in the Oireachtas. Up to Christmas, we had a boast that we processed more legislation than all the other committees put together. That it is a function of our productivity, and I thank the members for that, but also the nature of the work that comes before us. The one thing that we were very keen to do at the outset, was not allow ourselves to become enslaved by legislation and to become reactive, but that we would actually initiative our own reports. One in four of our meetings does that. They are part of what we call elective modules of which this was one. It may have been the first one that we took on since the committee was put in place because we felt the importance of the topic was such that it should be the first elective module. We took it on to study in that way. Other modules that we have considered include policing during Covid, and whether civil liberties have been balanced correctly and whether the right balance has been struck, and we considered GDPR and made some important recommendations on the Irish data protection regime, which impacts onto Europe. That is something that we might discuss here on another occasion. We considered the system of courts and court houses in Ireland and our next meeting will consider the engagement of minority communities with the justice system.

Today we are discussing the report on the testimony of victims in cases of rape and sexual assault and how those victims have often been re-traumatised and had to relive their ordeal by going before an adversarial court system. One reason we sought to prioritise this was the O'Malley report, an academic report published shortly before the committee was convened, which made findings on these cases. There was also the statistic, which my good friend and colleague, Senator Chambers mentioned, that only 10% of sexual assault or rape cases are currently reported and between 8% to 10% of those actually secure conviction. Therefore, only on average one in ten cases are reported to the Garda or prosecution authorities and of those one in ten, only one in ten is securing a conviction. Only one in 100 cases ends up in court with a conviction.There is obviously a significant difficulty with that if somebody is defiled in such a way but they do not see justice done at the end of the process. That said, it is a difficult issue because we also have canons of law dating back centuries, not just in this jurisdiction but internationally, which say that the presumption of innocence applies. That is a very important principle of the common law and the criminal law. Awful as it must be to be a victim of an assault or crime of this nature, it is also awful for somebody to be wrongly accused, put in the box and charged with this offence if that person was not in fact guilty and it was a case of mistaken identity. I often say to people that they could be put in the box although they know they did not do it because they were not there, or perhaps they were, but the facts were a little different from what had been alleged. Unfortunately, these things also happen. It is important that we have a system of checks and balances. That goes into some of the issues around testimony. There was some suggestion, for example, that victims would not have to give evidence. It is a principle of the law that people can challenge their accuser. Those principles are set in stone also for good reason, so there are difficulties around that.

That said, we had comprehensive engagement and some very strong submissions. We had representatives of the Rape Crisis Network Ireland, Men's Aid, One in Four, the Bar of Ireland and the Department of Justice before the committee and they made very strong representations and gave testimony, as they always do. One of the points that came up was the difficulty that arises when victims have to go back into a courtroom. People talk about retraumatising. Victims have already suffered an horrendous ordeal and then six, 12, 18, 24 or 36 months later, they have to re-enter a courtroom and may have to go toe to toe with and encounter their accuser if evidence is given live. They may have to do that a number of times if the case is listed, re-listed, adjourned and re-adjourned.

To my mind, the most important finding from the report, although it may be a less intuitive or obvious one, is that we clearly need more judges. This was a factor in a number of reports. We need more judges at every court level in this country, including the criminal courts system. It is difficult enough for victims to build themselves up and step into a courtroom. They may not sleep for a few nights in advance and may get a family member or friend to accompany them, only to be told on the steps of the court three hours later that the case has been put back for a month or six months. The reason for that is usually that a judge was not available and the list was too busy on the day. The committee, across the board, found a number of times that we need more judges in many areas. The per capitacomparison across Europe and elsewhere suggests we are below where we need to be in that regard.

I was a little disappointed by the Government's response to our report in that regard. I look forward to hearing what the Minister will say later. I was disappointed by the remarks from the Government on judges' salaries when judicial appointments were discussed recently. The appointment of a judge means the appointment of a court, which will sit every day through the legal year. That judges happen to be well remunerated is a separate issue. It is unfortunate at times that the debate moved into that area.

The next recommendation we considered was that, in general, we take a victim-centred approach and consider a place for the victim. There is currently some level of representation for victims in a court scenario in circumstances where we have an advocate to assist. In certain specialist cases, such as the question of previous sexual history, the joint committee recommended that this representation be extended across the board so that there is a legal team in place for the accused. The person in the box who has been charged with the crime has a legal team and there is a legal team for the prosecution, that is, the Director of Public Prosecutions and the Chief State Solicitor, but victims find their own way. They may have a friendly garda or a family member to accompany them but there is no formal procedure in place to engage with them. Sometimes, if they are not in court, they may be waiting at the end of a phone or relying on a text or call from a friendly garda who may or may not get in touch to ask how everything went on the day and outline what will happen the following day. We have recommended that there be formal legal representation to guide victims through the process and, where necessary, to advocate for them in the courtroom. This representation should be on a par with the prosecution and the defence.

We touched on specialist training for legal teams and witnesses giving evidence. That has already been rolled out in part by the Bar Council and others and it needs to continue. One of the few pluses from Covid is the adoption of remote systems. There was already some provision for remote evidence to be taken in these types of cases and that has been accelerated because of Covid. Advances have been made in technology in the courts, but we need to double down on that. Many courtrooms still do not have proper facilities, audio recordings, video footage, etc. This is an obvious thing to do in cases where persons do not want to be in the same room as persons who they allege defiled them. They can contribute by video link, take questions and the jury can still assess their evidence but they are not physically in the same room. That needs to be rolled out faster and better.

There is an argument for what we call familiarisation, where someone holds the person's hand on the way in and points out where the jury sits, where the dock is, how the system works and engages in those types of conversations.

Senator Chambers touched on the subject of sexual education in the classroom, RSE in the early days, its more recent incarnations and the topic of consent. I hope we can all agree that such examples are fundamentally needed in the education system so that people know what is right and wrong when they are going out. In this day and age, there is no excuse for any confusion over that, but it should be included in the curriculum.

We talked about rolling out the use of video. We had representatives of Men's Aid before the committee who highlighted that this is not a gender-specific issue. Traditionally, women have suffered more, but men are not immune either. We had some impassioned and moving testimony from Men's Aid, which was very useful. We were delighted to take that on board.

The statistics can be a little bit misleading in the sense that a case can be struck out or not go to trial. Different pleas can be made and different issues taken into consideration. The joint committee recommended that statistics be carefully collated so that it is apparent at the end of the year what exactly has happened, which cases have gone to trial and which have not and where this information sits in the wider set of figures so that we can make sense of the statistics.

I look forward to the debate. We have a set of recommendations to be put to the Government. Some are being actioned and some are not. I ask the Government to progress the remaining actions with the rapidity and urgency they deserve, in particular, and the adoption of video links across courtrooms, the further roll-out of specialist training and advocacy for victims in a courtroom, as well as for the prosecution and defence. Above all, and this applies not just to this report but across the board, we need more judges, simpliciter, so that people have their day in court on the day they expect to have it and their case is not held up, delayed or adjourned multiple times. Justice delayed is justice denied. That was probably our principal finding.

A Chathaoirligh, I again thank you for the invitation. I look forward to the debate. If possible, I will make some closing remarks and respond to any points or questions made by Senators. I look forward to hearing their views and thank them for hosting me.

Photo of Mark DalyMark Daly (Fianna Fail)
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I thank the Chairman for outlining the 14 recommendations in the joint committee's report and its overall work on legislation.

Photo of Robbie GallagherRobbie Gallagher (Fianna Fail)
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I too welcome the Chairman of the Joint Committee on Justice to the House. Senator Ward and I have the pleasure of sitting on the committee chaired by Deputy Lawless. The manner in which he conducts his business and steers the committee is very impressive. His appetite for work is also hugely impressive. He gave some examples of it. I am delighted with the experience of serving with him.

I acknowledge the presence in the Visitors Gallery of Alan Guidon, the clerk of the committee. I am sure my colleagues will agree that we are very fortunate to have him as our clerk. He is very efficient and hugely helpful to members as they go about their business. He is very welcome to the House.

Senator Chambers and Deputy Lawless mentioned the sad and depressing statistic that only 10% of victims come forward and report crimes to the Garda. I found that information heartbreaking, as I did the fact that, as Deputy Lawless noted, only 10% of cases are prosecuted.

Deputy Lawless outlined the process the joint committee went through. We invited a number of stakeholders to our hearings and listened to what they had to say.I found it very moving, and heartbreaking in many ways, to listen to the testimony of some of those who represented victims who have gone through the process.

A number of recommendations have been made in the report, which have been forwarded to the Department and the Minister. Some of them, as Senator Chambers noted, seem very simple, and we might legitimately ask why it has taken so long to shine a light on this subject and why so few women and men come forward in the first instance to report incidents. It is shocking that only 10% of cases relating to those who come forward result in a successful prosecution. That is harrowing. It is impossible for me to step into the shoes of someone who has been a victim, and the presentations made to the committee were as close as many of us will ever, I hope, come to that.

The recommendations are fairly simple. We discussed issues relating to judges and the length of time it can take a case to go through the courts. It is important we try to step inside the shoes of the victim in having to go through the process of giving evidence and making statements, and then getting a date for court. We can only imagine how traumatic it would be to have to step into a courtroom and be given a specific date and, lo and behold, a week or two before that date or even less, to be told the case is being postponed. That happens often and it must be a shocking experience to go through as a victim. Clearly, more judges are needed in order that we can expedite the process and these persons can try as best they can to get through the process and get their lives back on track once it has been completed.

Other simple measures the Chairman of the committee outlined relate to the use of ICT. You would imagine that would be very basic to implement. More evidence should be examined in regard to how it could be relayed via ICT. Many of my colleagues at the committee are well used to the courtroom, and in many cases it is a home from home for them. For those of us who do not normally enter a courthouse, however, it is a very intimidating atmosphere. In the case of trials for sexual assault or rape, we can only imagine how someone going through that process must feel. Even sitting in a courtroom and being close to the person who was responsible for them being there in the first instance is very difficult, and that too is something one would imagine would be a fairly basic principle. Even sitting outside the courtroom in waiting rooms, the victim could have to confront that individual, and I imagine that would be traumatic to have to go through.

I was delighted to be a part of the committee and to have gone through the process. I feel I know a little more about the process than I did at the outset and I was delighted to support all the recommendations, which are fairly basic, as I outlined. The key issue, which was acknowledged also by the Chairman of the committee, relates to the process of education regarding sexual behaviour and consent, something we have to expedite through our primary schools, at the appropriate age, and through secondary schools and third level. Many third level institutions have done great work in this regard and it is very important . Surprising though it may seem, there is much ignorance in respect of this issue, so education is the key in that regard.

I look forward to the Department and the Minister responding to the recommendations in the report. We have delayed this for much too long. It is far too serious an issue to drag our heels on. We owe it to the women and men who have been victims of these horrible crimes to make the experience of having to go through a court case as bearable as it can be under the circumstances. I echo the call of the Chairman of the committee for this report and its recommendations, which are all ones of common sense, to be implemented as soon as possible.

Photo of Pauline O'ReillyPauline O'Reilly (Green Party)
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I am skipping other Senators' speaking slots because I am stepping in for the Cathaoirleach, who has to leave presently. I thank all the members of the committee, several of whom are here for this debate, for their work on this, in particular the Chairman. Apart from the detail of what needs to be done about conviction rates, where we can all recognise there is a problem, let us be clear that nobody should be raped or sexually assaulted. It should never get to the point where these crimes have to be brought to trial.

That is at the heart of this issue and let us not forget it. We can get bogged down in legalistic language and alienate people. We need to say strongly that the problem here is there is violence against women and those rates have not changed. We pat ourselves on a back as a society and say we have made so many improvements to people's well-being, but when it comes to violence against women, there has been no change. In fact, we do not even know the extent of it, so it could be even worse, and certainly during the pandemic it was worse. That is particularly true of rape and sexual assault of women, although I do not for a moment want to leave out the men and those of all genders who are raped and sexually assaulted. It is important to mention them. Nevertheless, having read the statement of the National Women's Council of Ireland in particular, I know this is about oppression and control of women, their sexuality and their bodies, for generations and decades, and that is at the heart of all this.

That is recognised in the report. Part of the reason for the under-reporting relates to shame about sexuality and coming forward. It is difficult to know what exactly is the reason for the under-reporting, but I believe the low conviction rates contribute to it. When I sat on the joint policing committee of Galway City Council, there was not even a statistic for how many people were coming forward with rape and sexual assault incidents. There were statistics for everything else, from bike crime to drug offences, yet that fundamental problem at the heart of our society, that poison and epidemic, was not reported. I am fortunate I was able to have it changed in the case of Galway City Council, but those statistics need to be provided throughout the country. We need to bring these issues to the surface and have a proper conversation about them if we are to deal with them in order that people will feel they can come forward.

The main issues the report seems to have identified relate to the delays in trials proceeding, the need for specialist training of front-line professionals and the need for improved court services and facilities, including judges. I will concentrate on the issue of relationships and sexuality education, RSE, which is at the heart of the problems within our society. One recommendation was to incorporate the teaching of consent within new RSE curriculums at primary and secondary and to roll out programmes of consent throughout tertiary education. Some of that is starting to happen but not quickly enough, and we have to ask ourselves why that is. It is not only about reducing the rates of rape and sexual assault but also about who sits on the juries and the kinds of rape myths and biases people bring in. I was the foreperson of a jury in one of these cases. Everybody brings their baggage in with them, and if they have had training in consent, they bring that in with them as well.We need a serious overall of the relationship and sexual education curriculum.

I welcome the confirmation last week by the Minister for Education that homophobic statements in school social, personal and health education, SPHE, materials have been removed by the Department of Education. I am not sure why they were there in the first place but it was confirmed last week that they have been removed. There is no place for this in our teaching. We must have an inclusive and progressive curriculum on RSE that is reflective of a modern Ireland and includes all sexual and gender identities to avoid excluding LGBTQI people. This must come outside of religious influence, which is a problem across our schools. We need strong oversight of external facilitators and it must be consistent across schools. Students need to be exposed to ideas of consent and inclusive sexuality and relationships education from an early age in order to root out these issues from society.

Another recommendation is to ensure separate legal representation to support victims of sexual assault. That is critical, quite apart from the other issue of having more judges. People must feel comfortable and supported through the process. I point to the programme for Government commitment to implement the findings of the O'Malley review of supports for vulnerable witnesses in sexual violence cases, particularly its recommendation on the need for intermediaries for vulnerable victims. The report recommends we introduce a registered intermediaries scheme similar to that in place in Northern Ireland. These intermediaries would be professionals who help people to communicate to the court, not only having legal representation but support in communicating.

A number of countries in common law jurisdictions have already successfully implemented such schemes. I know there is a pilot scheme under way here. I am interested in hear from the members of the committee if there is an update on that pilot. The Rape Crisis Network has advocated a flexible approach across the use of these schemes, for example, in cases where a vulnerable witness may be better served by an intermediary with no professional training but who is familiar with the witness's particular style of communication.

It is also important to recognise the difficulties for organisations that support those who are victims in finding funding. I am informed that it is difficult to shake a bucket for services that support people who have been raped on the streets of our local towns. That needs to be recognised and more resources need to put in place to support these organisations.

I would like to publicly praise the work of a few organisations in Galway. The Galway Rape Crisis Centre provides counselling and support for those affected by sexual abuse and sexual violence in the county. I read through its annual report for 2020 and the amount of work its staff and volunteers do is incredible. They provide an important service, one for which, unfortunately, there is very high demand. One of the shocking statistics about crime of this kind is the number of abusers who are family members, friends or partners of the survivor.

I also mention two other organisations. COPE Galway is a charity that provides support services for people who are homeless, often women and children who are experiencing domestic abuse, and older persons. In 2020, it helped 603 people as part of its domestic abuse services. Domestic Violence Response is another organisation which offers counselling and support for victims of domestic violence.

My time is up. There is so much more to be said. I thank Deputy Lawless for the committee's work. Having this matter aired in this setting is an important step.

Photo of Mark DalyMark Daly (Fianna Fail)
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I ask the Senators who are due to attend meetings to keep their contributions short. I call Senator Gavan.

Photo of Paul GavanPaul Gavan (Sinn Fein)
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We are all under pressure. I will give way to Senator Ruane as she has to leave shortly. I will speak after that if that is all right.

Photo of Mark DalyMark Daly (Fianna Fail)
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That is fine.

Photo of Lynn RuaneLynn Ruane (Independent)
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I appreciate that. I will not use all the time available to me because, as a victim of sexual assault, I always struggle to speak about this topic.

It struck me that the report found that less than 10% of victims report incidents of sexual assault or rape. As the mother of two daughters, I would like to be able to encourage my daughters, if something was to ever happen to them, to hold the person responsible accountable. To be honest, I do not think I would do so. When I see how people are treated and how victims, primarily women, have their lives scrutinised as if they are on trial. If you report a crime, the person at fault does not have to defend himself. The woman has to defend herself, her history, who she is, her past sexual relationships and what she was wearing and doing. She is scrutinised. I do not know how anyone could stand over watching a loved one being scrutinised in that way when trying to hold somebody accountable for something that the person in question, not the loved one, did. We have so many campaigns saying who is at fault for rape and sexual violence but the State institutions, through they way in which they have operated for a long time, reinforce a view that is the opposite of the message of such campaigns because victims continue to be scrutinised in this way when they try to prosecute.

The committee has done good work but we have a long way to go. When we were drafting the report the story of Zoe, which is not her real name, hit the newspapers. Zoe was the youngest person ever to give an account of personal sexual assault. She was only a child. That case exposed huge wrongs in our system in relation to how we treat vulnerable witnesses, especially children who are the most vulnerable of all. My office drafted a report and, I hope, the Joint Committee on Justice will do a new piece of work in the new year on underage witnesses. That would add to the report before us.

Some parts of the report stand out. It contains many recommendations on infrastructure, including the need for information technology, IT, for video testimonies and the appointment of more judges. Infrastructure aside, there are aspects of the report that can move much more quickly, for instance, the impact assessments that should be made to prioritise a victim-centred approach to stop retraumatisation. We must ensure the availability of specialist training for questioning of vulnerable people. This needs to be rolled out as soon as possible for members of the legal profession. The report suggests that this should be voluntary but to be effective, it must be mandatory, possibly at King's Inns.

We must also ensure the refurbishment of court premises to allow for everything that I said in relation to structural issues. We must ensure separate legal representation to support victims of sexual assault is provided throughout the entire trial process, as appropriate but particularly when questioned about their sexual history during cross-examination. It is important that comparable resources are made available on a par with the legal representation afforded to the prosecution and defence to ensure the balance between a victim's rights and the fair procedures to which a defendant is entitled. We must ensure the roll-out of a scheme for the training and accreditation of intermediaries progresses as quickly as possible and is monitored with a view to its implementation on a nationwide basis.

The joint committee also recommended that consent be incorporated within the new RSE curriculum at both primary and secondary level and that programmes of consent are rolled out at third level as a matter or urgency. This is extremely important. While we can have discussions about how wrong sexual assault and rape are and who is at fault, we must also accept what we need to do at the earliest possible stage in terms of how we treat our young people and address their understanding of consent and what they think it is or is not. We are also failing young men because they are now the product of the previous generation and the generations before that. If we want to get to a stage where we no one experiences sexual assault, we must equip our young people to ensure they do not commit sexually assault. We need to accept that and it needs to begin at school age.The report goes on to recommend that we, "Assess the potential to compile these statistics by use of a singular body or database or through developing a system which would apply an individual identifying number to each case, to better track such cases as they progress through different State institutions including data from the Family Law Courts, if appropriate."

I thank the committee for its report. I thank Senators for listening to the contents of the report. I hope we can move forward and look at those underage victims. I hope we can look at the Barnahus model that was being implemented in Galway. We need to consider how we can implement that on a much wider basis for vulnerable children who are also witnesses in their own sexual assault cases.

Photo of Barry WardBarry Ward (Fine Gael)
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Cuirim fáilte roimh Chathaoirleach an choiste dlí agus cirt. I had the honour to be part of the committee that put together this report. We had a number of engagements with various witnesses from a variety of perspectives. We received an extraordinary perspective from those who represented victims, particularly of sexual assaults and rape. As has already been noted, we received evidence from Rape Crisis Network Ireland and Mens' Aid Ireland, among others. There were also written submissions. What came with that was the tremendously important perspective of those who have been victims, who have gone through the court system as victims and who had the experience of giving testimony or being in court. There is no doubt that is an unpleasant experience. In fact, it is often an unpleasant experience for witnesses who are not victims. Part of what this report does is to seek to address that and to deal with people's court experiences.

Some things have already been said in the course of this debate that I think are inaccurate. Reference was made to a trial outside this jurisdiction and the treatment that was given to a victim and a witness in that trial that was appalling, and I do not dispute that. However, it would not have happened in this jurisdiction. There are measures in place here, for example, relating to sexual history. It is exceptional in the context of rape trials for sexual histories to be opened. That does not mean it does not happen, but there is a specific legal basis on which it happens and it is unfortunate every time it happens because it does exactly what we have heard here, that is, it discourages victims from coming forward.

There has been much talk about the statistics around the number of victims who come forward, the number of cases that proceed to trial and the number of convictions that are obtained from those trials. Those figures are not only shocking, in and of themselves for the low rates they reflect, but they are also still estimates. The figures might actually be worse than those estimates that have been presented to the committee as part of this report. However, we must also be conscious of the fact it does happen that people are be falsely accused. I am not saying that accounts for the numbers by any stretch of the imagination. It simply cannot, because they are incomparable to almost any other set of offences that exist in our law.

One of the things we must consider in the context of the law, as has been mentioned by other speakers, is the balancing of rights and the protection of people who are before a court and accused of crimes. There has been a progressive change in that direction not necessarily because of anything any government in this jurisdiction has done but because of the victims directive at European level, which forces the Director of Public Prosecutions, prosecutorial authorities and the Garda to take a much more victim-centred approach and to have much greater consideration for the perspective of the victim and the difficulty and trauma a victim has gone through. Even in recent years since that became law, progress has been made. It does not mean, by any stretch, that we are in a situation where real parity exists in a criminal trial when a person must face the persecutor who committed an offence against him or her, as other speakers have said.

Someone, perhaps the Chair of the committee, said it is impossible for those of us who, thankfully, have not been the victims of sexual crime to put ourselves in that position and truly understand the trauma involved in coming to court and, essentially, reliving that experience. The difficulty is in squaring that circle and trying to create a parity while also respecting the rules of our judicial and criminal justice system, which allow the rights of all parties to be explored by the court. That is an extremely difficult task and tight line to walk. This report brings forward four recommendations that I hope will bring us closer to where that line is and closer to that parity.

My fear is there will never be real parity. It will never be easy for a victim to go to court. There will always be difficulties but we can take steps to make it easier and to progress the system to a stage where people are not recommending to their children not to go the Garda when they have been sexually assaulted. That is perhaps at the very heart of this problem. The system is so dysfunctional in terms of its outcomes and the experiences of victims that parents are telling their children just to leave it alone because they would be better off. That is pervasive and it is enormously damaging to the system. More important, it is damaging to the idea that we are going to tackle this as a societal problem. I hope this report will move us away from that to a situation where people are willing to come forward and put themselves in a situation to deal with the criminal justice system.

In some of the recommendations, there is mention of parity of representation between victims, the prosecution and the defence. For a long time in our legal system, we said that victims do not have a place in the court because they are not rational beings and they are looking for retribution for whatever crime has been committed. A situation exists in other jurisdictions where the victims of crimes decide on what the penalty is. Nobody is suggesting we go there because those victims are obviously not in a position to approach that rationally in the way an independent judge might be.

What has changed within my lifetime as a lawyer who has been involved in these sorts of trials is there is now a much greater appreciation of the importance and centrality of the role of the victim in allowing the court to understand properly. Those changes include victim impact reports, for example, which come after the fact. Now, with the victims directive, in the context of the actual trial, there is an allowance for the victim to give proper, uninterrupted, untrammelled evidence. Of course that evidence is subject to challenge, as it must be, but the directive allows victims to have their say, for their voices to be heard and their experiences to be lit before the court. That is tremendously important. To have that legal representation is another step forward.

The Department of Justice has taken steps forward by saying a senior counsel as well as a junior counsel should be assigned to represent a victim. I hear from colleagues that some of the Legal Aid Board offices have taken the view that means senior counsel only when, in fact, what we want is parity whereby a victim gets exactly the same strength of legal representation as any other party to the case, that is, both senior and junior counsel. That is important.

The report has recommended more judges, which is also important. As the Chair of the committee mentioned, there is a lack of progression in cases. The length of time it takes from the day you make the complaint to the Garda to the day you have your say in court is far too long. That also has a massive impact on victims. That is because of a lack of judges, courtrooms, registrars and court staff to staff those courts. All of those things must be increased if we are properly to deal with that issue. Courtrooms themselves have improved. In the Criminal Courts of Justice in Dublin, for example, there is infrastructure to separate accused persons in custody from victims. There is a separate stream for victims and a suite where they can go. That is progress but it has not happened everywhere in the country. The familiarisation of victims with the courtroom process and layout are tremendously important.

Consent training has also been mentioned and it is important. I have said that in this Chamber before. It is important in particular for young men, although I absolutely acknowledge that women are not the only victims of sexual assault and men are not the only perpetrators. For young men actually to understand the damage they can do and how not to overstep that line, how to be within the bounds of what is acceptable, is important. These are just some of the 14 recommendations in the report. We do not have time to go through them all, unfortunately, but I recommend the report. It takes steps along a balanced line at redressing the issues we have for victims in our courts and, I hope, will improve them, when implemented.

Photo of Rónán MullenRónán Mullen (Independent)
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I compliment everybody involved with this report. Its recommendations are all reasonable and important. Many would say more is needed and there are areas where the report has not gone and perhaps it should have gone. This is an evolving process as we become more aware of the trauma those who report sexual violence suffer and we are all aware we must always work to ensure people are not traumatised again by the system that is supposed to do justice in the end to all parties. We must work hard against anything that causes people not to have recourse to the justice system when they have been assaulted.

As Senator Ward and others have said, we must balance key ideas in all of this and that is why the report is as capable as it is. We can say the integrity of the criminal justice process is contingent on the gathering of forensic evidence and on how that forensic evidence is gathered and preserved.We can say at the same time that it is only when victims are properly supported that they have the courage and resilience to endure the rigours of an adversarial criminal justice process. The care and support of victims, particularly vulnerable victims, should begin at the earliest opportunity in the aftermath of rape or sexual assault. In that context, it is unacceptable that there are only six specialist sexual assault treatment units in the State. Services in Limerick are provided on an ad hocbasis. Given that the victims of rape and sexual assault are frequently under 18 years of age, there needs to be significant investment in ensuring that services are more accessible and age appropriate. It is particularly important that services are available in large urban areas. There needs to be greater investment in suitably trained and qualified health professionals who can provide specialist and timely care to those who need assistance in the aftermath of rape and sexual assault.

The HSE needs to consider how to raise public awareness of the available sexual assault treatment unit services. Consideration should be given to a sensitive and appropriate public information campaign so that victims are aware that services actually exist. Insofar as it is possible, given the constraints of the current public health emergency, increased financial and human resources need to be targeted and applied to the delivery of specialist health services for the victims of rape and sexual assault. The geographical anomalies in the absence of services in significant tracts of the State and in many large urban areas need to be given urgent consideration. Young victims of rape and sexual assault may not have the financial means or physical ability to seek services at a special treatment unit, particularly if attendance at same would involve a significant journey on public transport.

I want to draw attention to recent correspondence, which many of us have received, from a particularly courageous person, Councillor Deirdre Donnelly. In her experience of these issues she discovered that "the legal system is so unbelievably unsupportive of victims". She is disappointed that, despite recommendations in the O'Malley report, a victim’s counselling records may be used as part of the accused defence. She asks whether it is right that a victim’s medical records should be available in sexual offence or rape trials. She compares that with the situation in other trials. She also gets down to practical issues, some of which are touched on by this report. These include, for example, in the context of the arrangements to be made for ingress and egress from a courtroom, the seating of a person who was reporting trauma, sexual abuse or violence and the accused person. She mentions that even at the stage of the investigation process, a “Do Not Disturb” sign should be on the door of a meeting room in a Garda station where a victim is making a complaint. That would seem to be fairly self-evident. Yet, that was not her experience.

The other issue, which I raised a number of years ago, is a need for some kind of track-my-crime process, whereby those who report crime would have a means of being kept properly informed of what is going on. I still do not think we are there. The moves were not made. I recall at the time the then Minister, Frances Fitzgerald, said it might be the way to go. However, the moves were not made that were trialed in other areas, for example, in various parts of Britain. Certainly, it was Councillor Donnelly’s experience that a long period passed where she had only occasional correspondence. In the end, she discovered from the Office of the Director of Public Prosections, DPP, that her case was not going to go to trial. There was, therefore, a lack of information and a lack of a sense of right to information, and there was the delay before a decision. There was, of course, a need to have somebody to explain why a decision has been made. This can be done while at the same time respecting the presumption of innocence and the rights of an accused person, which must be fully respected. However, it has to be possible to communicate with a person who is reporting a serious crime, particularly one as intimate and as difficult as a crime in the sexual domain. It has to be possible to find a way to keep those people briefed as to what is going on, without in some way confounding, obstructing or impacting on the fairness of the overall process. I acknowledge Councillor Donnelly’s courageous sharing of her experience, which we need to reflect on.

This is an area that is so fraught that when one has a contrarian point to make, one can feel almost nervous of doing so. I am in friendly disagreement with some of what Senator Pauline O’Reilly, who is now in the Chair, said. We need to have a deeper and broader debate on the consent issue. Consent training is important. It is important to have it at an early age. However, an excessive focus on consent to the exclusion of a wider reflection of what is going on in our society is like having a black and white TV instead of a colour TV. We are only going to get part of the picture. It will only be partial in how it educates people about their responsibilities to each other. Let us remember what consent classes are. They seek to train people in what is acceptable and what is not acceptable in a context where the law already makes that clear. I worry that the unique focus on consent is a desire to create some kind of a secular morality in a context where the moral landscape has changed. I am fully in favour, by the way, of talking about these issues in RSE classes, but it would be wrong to suggest that somehow the role of faith and of faith schools are somehow a problem. We need a both-and approach.

If we had more of the gospel of “love your neighbour” and what that means, which is part of our great tradition in schools, there would be less of a need for consent classes. We can have both. We can talk to people about morality, particularly in the context of Christian schools. Only last night I saw a wonderful presentation by Coláiste an Spioraid Naoimh Presentation school in Cork, to mark Presentation Day. It did not touch on these fraught issues, but it was quite obvious from the way those students talk about their experience, that they are being educated within a mentality of loving your neighbour and not just looking out for yourself. We need to draw on the best of our tradition as well. I am worried about suggesting that there should be consent classes at primary school. I question that aspect of the report and I would like to see what people mean by it. Parents have a right to be the primary educators in these important issues. Schools will know that the children are at different stages of maturity. It is important that the focus is always on the "love your neighbour" dimension, on treating people with respect, and on respecting physical distance with other people’s bodies. There are ways of doing it. However, if it is an overly sexualised programme that has been advanced for a political purpose, then that no longer focuses on the future welfare of possible victims as the highest value. All I am saying is that we need to open up a discussion about that. There will be a bit of right and there will be a bit of learning on all sides, but I would be careful of hanging my hat on consent and saying that it is the only thing that we need. It is a thin Band-Aid to a problem. If there is a wider values problem in society, and I am touching on the abuse of alcohol and on the abuse of social mores where people think they can just use each other, none of those issues can be dealt with through consent. We need consent and much more if we are going to have a society where men and women respect each other's rights and where there will be less violation of people's rights in this most terrible of areas.

Photo of Annie HoeyAnnie Hoey (Labour)
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I thank the committee Chairman for being present for this discussion. First, I will say for the record and for anybody who is listening to or watching this debate who has survived sexual assault, rape or any sort of violence, I believe you. I know that you were there. I know your pain. I believe you and you did nothing wrong. You survived and however you chose to handle the moments, hours, days, weeks and months after, you did their best. I stand with you. I know that I am not the only Member who feels the same.

I take time to make that declaration because I fear sometimes, in our haste to make substantive policy and legislative contributions on difficult topics, we can forget that at their core is people who have been through one of the single most traumatic and life altering experiences that one can go through. I welcome in the main the report of the justice committee on how we help survivors of sexual violence speak their truth and gain justice, because God knows we have a very poor reputation in that regard. It has to change. This report is welcome, and it needs to lead to urgent action.

I would like to make some points speaking directly to the recommendations. There are 14 main recommendations in the report and I will speak to four of them. The third recommendation calls for the availability of specialist training and guidelines for practice regarding the question of vulnerable witnesses to be rolled out as soon as possible for members of the legal profession. While the intention is good, I agree with many of the witnesses to the committee that the availability is not good enough. Mandatory training for all staff in the legal profession would surely be the best solution, not just for victims of sexual violence, but for all people.I am keenly aware that there are many vulnerable people who will make their way through the court system. Seeing as this week we mark the first ever Adult Safeguarding Day in Ireland, I think this is a point worth noting.

Recommendation 7 seeks to: "Ensure that separate legal representation to support victims of sexual assault is provided throughout the entire trial process, as appropriate, but particularly when questioned about their sexual history during cross-examination." This, coupled with training for barristers in how to safely cross-examine victims, is of paramount importance. In chapter 2 of the report, a victim is cited as saying:

I think overall I was probably on the stand for, give or take, four hours. I can’t tell you how horrific it is being cross-examined. To this day I can hear that barrister’s voice in my ear crystal clear to this day.

One of the truly grotesque aspects of the prosecution of sexual violence offences is the allowance, in certain circumstances, of a discussion of a victim's sexual history. While I appreciate that the report points out that there is a high bar for that to be permitted, I posit that there should be no bar. A victim's sexual history is not pertinent to a case, because sexual violence is not about sex, sexual preference or anything close to it; it is about power, control and abuse. I am sure we all remember the case which drew media attention a few years ago for the introduction of a victim's underwear as part of the defence's argument. That is simply about shaming and victim blaming, and it should have no place in a justice system that takes a victim-centred approach, which this report calls for.

Recommendation 9 seeks to, "Ensure the rollout of a scheme for the training and accreditation of intermediaries progresses as quickly as possible." Has the Chair of the committee received an update from the Minister on that? The report was published in June, so I would hope there has been some progress on the issue since then. It is an essential part of the plan to make these proceedings more manageable for victims.

Recommendations 11 and 12 make two suggestions, which I think must be discussed together. Recommendation 11 states: "[...]consent must be incorporated within the new RSE curriculum at both primary and secondary and that programmes of consent are rolled out at third level as a matter of urgency". I completely agree with this, having been involved in the rolling out of programmes of consent at third level. However, it is all well and good to suggest that we must roll out such programmes, but the resources and staffing must be made available. I spoke to some staff in higher education institutions who said that they wanted to get it right, but they did not have the time or the resources to do so. In recommendation 12, we see the committee report acknowledge: "[...]the prevalence of sexual violence within the LGBT+ community, in particular the high levels of sexual violence experienced by those who identify as being transgender or non-binary". I very much welcome the inclusion of this acknowledgement in the report. However, I would point out that if we want to use school settings as a place to have those important early conversations about consent, and we know there is a high level of violence experienced by members of the LGBTQ+ community, we have surely to ask if it is right that for this and many other reasons it is acceptable that the majority of schools in Ireland with a Catholic ethos refuse to teach sexual education in an inclusive way. All children, of all identities and orientations, whether they know it at that age or not, must know that their body is worthy of respect and care and that their consent matters. That is as true for gay, lesbian, bi, trans and intersex kids as it is for anyone else. The time has long since passed for the exclusion of LGBTQ+ people from sex, relationship and social education teachings in schools.

Perhaps the Acting Chairperson will have some patience with me, as what I am going to say next is deeply personal and is not easy to say out loud. We have spoken a lot about statistics and figures in here. Behind every statistic and figure is a person. I am just one of many people behind those statistics. I did what I was supposed to do; I went to the Garda station and I reported it. I sat in a room for hours with no food or water until I could go to a sexual assault treatment unit. I was literally scraped on the inside for evidence. To this very day, that was the most traumatic thing that has ever happened to my body and I will feel those scraping sensations for as long as I live. I gave my testimony in the station, but I knew that I was not going to be able to continue with the process. Even though I knew what had happened to me was wrong, I also knew that the case was going to go nowhere. I was already shattered by trying to piece together what happened just for that one testimony. I would not, and could not, do it again. I had no faith in either our legal system or how society would view me to even try to pursue it any further. I went home and I continued my life as best I could. I am not alone in the decision I made.

We need to do more than just push legislative change. We must challenge the societal belief that it is the victim's fault. We must accept that without a "Yes", it is a "No" - end of. I suggest that a bigger problem is a complete lack of faith in our legal system. Other people have spoken about that lack of faith. Senator Ruane said she did not know if she would encourage her daughters to go and report such crimes. I would agree with that, having been through the process. The bigger problem is the fact that society has ingrained into victims - into me and other people who have suffered - that we have done something to have caused our rape. This is a much bigger challenge facing us.

To conclude, I say to other people affected by this legislation, who have ever had to give testimony or have been unable to do so, that I believe you. I cannot guarantee that everyone you deal with in the future will believe you. I cannot guarantee that you will even get justice, and if anything, the statistics tell us that you have a 95% of not seeing your abuser convicted. I hope that this report results in real change. I hope that it gives victims confidence that they can give their testimony safely, with honesty and without fear of the incredible difficulty that they will have to go through. It is a long and difficult road that they have ahead of them. We in the Labour Party want to see this legislative, societal and cultural change. In the meantime, all I can say to victims is that I believe you. I am sorry that you have been let down by us all, but I believe you.

Photo of Pauline O'ReillyPauline O'Reilly (Green Party)
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I thank Senator Hoey and acknowledge the deeply personal nature of her story. I offer my support to the Senator, and I am sure the same will be said for all of our colleagues here. As the Senator said, unfortunately the story she shared is a very common one, but each story is individual and personal. I thank her. I think many people listening will identify with it. It is important to take things out of the purely legislative and overly convoluted way that we sometimes have of speaking. I thank the Senator again. I am here if she needs anything at all.

Photo of Erin McGreehanErin McGreehan (Fianna Fail)
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First, I thank Senator Hoey for sharing her story. I am sorry that this country failed her and thousands of women and men throughout the country. I am deeply moved and humbled to be in the Chamber with her today. I thank her for her bravery. It seems condescending to thank her for her bravery. I am blown away. I thank her for sharing her story, because it will make a huge difference to people.

To follow on from that, I must say that this report is most important. This issue deeply impacts people. It affects their lives and our lives. It affects our families, brothers, sisters, daughters, mothers and colleagues. This country has failed women and victims. We see, time and again, that this country is not a country for victims. According to the report, only 10% of victims report incidents of rape. Are we surprised, given that the system makes criminals out of victims and ignores them? Are we surprised, given that when a measly 10% of victims show the bravery to go to our Garda stations to report a crime and take the stand, 95% of perpetrators get let off?

I wish to take the Chair of the committee up on one of his comments. In his contribution, he stated that "checks and balances" are required in all proceedings. The Office of the Director of Public Prosecutions, DPP, will look at the evidence and then decide whether to bring a case. Before the Chair and the committee talk about vexatious complaints, I want to see whether there is evidence of such complaints. Given that only 10% of assault victims report these crimes, which is very low, if any research is done on vexatious claims of rape and assault, I imagine it will show that the number of such claims is incredibly insignificant and small. I ask the Chair to roll back on that attitude. We hear of the difficulties and trauma that are experienced by people when they go through the legal system. They will not go through the legal system just for the sake of it and to bring someone down.That is not what people do. You are not going to make yourself into a criminal. You are not going to say you were raped or assaulted just to make someone look bad in a vexatious claim because it is clearly very hard to report a crime.

I will go into some of the recommendations. I very much support this and our having a debate in the House on the work of the committee, because I am not on that committee and was not present at those debates, so this is a very good opportunity. Ensuring there is separate legal representation for victims is important in looking after them every step along the way. We all know rape is a most heinous crime. It is on your deepest and most intimate person. We must change how the courts system looks at this and how we interact with the courts system. We must respect this crime is of the most intimate nature and look after the victim at every step along the way. We must ensure it is not adversarial because our courts are adversarial. We have grown up with a patriarchal, adversarial system and we need to row back on that. There are many recommendations for how people should be able to report crimes and give evidence in court proceedings. This needs to be looked at. We must look at the victim, at their person and at their trauma. At every step along the way a person should meet someone who is trained in trauma-informed care. People who work in the Garda station, the gardaí and the administrative staff in court all need to have trauma-informed training.

I wish to highlight another issue. My attitude to many things is that prevention is better than cure. We should be working on preventing crimes. The best way to prevent crime and mitigate this is to educate people on the dignity of a person and of a body and about consent. I would say consent is not a political statement as Senator Mullen has spoken about. It is about protecting yourself, protecting other people and educating people about their bodies and about what is right and wrong. "Yes" means "Yes" and "No" means "No", and unless you hear a "Yes", it is an automatic "No". That is not about politics. That is not about religion. That is just about respect and understanding of people's right to their own bodily integrity. Furthermore, on prevention being better than cure, if 95% of cases do not end in conviction, people are saying to themselves they will get away with this. If you rape someone, you will more than likely get away with it in this country. I suggest 90% are probably not going to report it and people are probably going to get away with it. We need to crack down. We need to start saying "Yes" and speeding up our courts system. We need to get rid of those delays, because unless we start convicting people for the wrongs they are doing to victims, we are not going to see any change.

As a final point, the medical and counselling records have no place in a rape trial, nor does a person's clothing. I am wearing a short skirt today. If I get raped tonight, is that integral to the case? Does that have any relation to my person at all? No, it does not. How I feel or how I interacted with my counsellor has no place in a court. I thank the Acting Chair and again thank Senator Hoey.

Photo of Martin ConwayMartin Conway (Fine Gael)
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I totally agree with Senator McGreehan. I thank Senator Hoey very much. She is just amazing. There is no other word to describe it.

This report that has been commissioned by the Committee on Justice is very welcome. The recommendations should be implemented in full. Whatever legislation is required to implement them can be initiated in the Seanad. We will have no problem making time available urgently to implement these recommendations. I do not even think it needs to be done incrementally. The recommendations need to implemented immediately in one go. To be quite frank about it, they are only a starting point. The report is a starting point. We are way behind when it comes to dealing with this issue. It is shocking to think 95% of sexual crimes essentially go unpunished.

I was on the justice committee for a number of years. The various organisations, including the Rape Crisis Centre, the Rape Crisis Network and so on appeared before us. They highlighted the issue of counselling notes and medical notes. They have no place in any trial. They certainly should not be scrutinised or tossed around by defence solicitors trying to undermine the credibility of the victim. This should have been dealt with. I do not buy into any legal argument that this is appropriate because there is none.

It is shocking that in our country a victim is not entitled to legal representation unless he or she is being cross-examined by the defendant's legal team. That is alien. That is the type of thing that goes on in dictatorships. It is not what happens in a democracy like we have. It is simply wrong. It should not happen and should be addressed immediately. I do not even think it requires legislation. Maybe I am wrong. If it does, then let us get on with it, but there should be a directive from the Department of Justice that in a sexual abuse or violence case, the victim automatically gets legal representation. I do not think it is too much to ask. That should happen, really and truly.

There is an old saying that justice delayed is justice denied. That is very much the case when it comes to sexual abuse and violence cases. More judges are required. We need to front-load whatever judicial appointments are being made to this area to ensure there are not undue delays.

Overall, the justice committee does great work. When I was on the committee I found it to be a very good one. Obviously, that ethos is continuing but this report needs to be acted upon. It cannot be left on the shelf to gather dust. It cannot even be put up on the shelf but must be dealt with as a matter of absolute urgency.

Photo of Sharon KeoganSharon Keogan (Independent)
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I welcome Deputy Lawless to the House. I thank the committee for its work to date on this report. I thank Senator Hoey for her testimony. I apologise to her on behalf of each and every one of us as elected Members that she was not looked after and that she did not get justice. Many of the 95% of women of who are being raped, sexually abused or sexually assaulted will not get justice, and that is absolutely scandalous. We should not stand by that today nor allow it to happen any day. It must not be the case they will get away with it. We must be stronger when it comes to prosecuting those who perpetrate these crimes on women.I thank Senator Hoey and Senator Ruane also who spoke earlier. As one can see from that testimony, trauma lives on. It never ever leaves you. Those moments of pain, together with those that follow afterwards, where the injustices have taken place and where those who you think will protect you but fail to do so, live on with you and hurt. Those scars are still visible.

There are 14 recommendations here and from those I would like to touch on four, with the leave of the House.

The rate of prosecutions and convictions of these crimes is much lower than that of other serious offences. There is a serious problem there and the recommendations look as if they will do good work in combating that. One of the main reasons for the level of underreporting is directly linked to the experience of victims throughout the justice process. Court systems are intrinsically adversarial. There is the conflict between rights and establishment of the truth via examination and cross-examination. Any way that this can be made less so, particularly for the victim of sexual assaults, should be readily and speedily pursued. This should lead to the minimisation of any re-traumatisation victims may experience during the trial process and as a result more victims would feel encouraged to come forward to report such crimes.

Another recommendation states that: “While the current law is quite comprehensive, it is spread among several statutes and consideration should be given to codifying all provisions into a single statute.” That is a good point and the codifying process through the Houses will allow an opportunity to implement some of the recommendations of the committee.

One is the experience of the cross-examination. Two is the delays in trials proceeding and three is the trial dates being postponed at the last minute, which can cause considerable distress to victims. The cross-examination process can be changed but how can delays and postponements be avoided? The recommendation on impact assessment may provide suggestions.

The appointment of additional judges may be necessary to help counter the inevitable delays in trial dates due to Covid-19 restrictions. Preliminary trial hearings have also been suggested.

Sometimes cross-examinations can criticise or refute the victim’s evidence and this can further re-traumatise the victims. This is true but how on earth is cross-examination supposed to work without criticising or refuting evidence?

The committee’s recommendation of specialised training for barristers on how to interact with vulnerable victims could be of benefit but could be less than desirable if it inhibited the ability of the barrister to defend the client appropriately.

Court refurbishment to add witness suites could be a good idea as I know for children witness suites are made available for them.

We should also look at what can be done now by way of staggered court entry times to avoid both parties encountering each other before the trial.

I welcome the report in favour of the consolidation of the legislation and the use of this opportunity to implement some of the recommendation of the committee.

A serious educational process must take place in the area of consent. We must also look at the area of online pornographic material and what that does to young men, how it affects men and their view of women and how they see women as sexualised objects. It is a serious issue in this country where young people and very young teenagers are accessing online pornographic material which represents a dehumanising of women. I acknowledge that this may also happen to men.

To all victims out there, we want you to come forward, we want you to be heard and we do believe you.

Photo of Pauline O'ReillyPauline O'Reilly (Green Party)
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I will allow Senator Conway back in for a moment. I short-changed the Senator somewhat on time as he was supposed to be sharing.

Photo of Martin ConwayMartin Conway (Fine Gael)
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That is okay. I apologise to Deputy Lawless as I referred to him as the Minister and thought he was the Minister, but perhaps it is just a sign of the future that he will be the Minister.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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No offence taken.

Photo of Martin ConwayMartin Conway (Fine Gael)
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Sincere apologies.

Photo of Pauline O'ReillyPauline O'Reilly (Green Party)
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I call Senator Ollie Crowe.

Photo of Ollie CroweOllie Crowe (Fianna Fail)
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Before I start, I acknowledge the sincere heartfelt contribution of Senator Hoey and her courage and conviction to come in and say it in this Chamber this afternoon. To her I say I believe you. I think all Members felt her pain here this afternoon. We are certainly here to support you and to stand with you.

I welcome the report and I commend the Committee on Justice for its work, in particular the Chairman of the committee, Deputy Lawless, for his time here this afternoon. In his contribution he outlined the situation and the facts. It was comprehensive and right and he referred to 1%, that is one in one 100, as I am not sure if certain Senators were listening to his contribution. He was clear when he stated that justice delayed is justice denied, which members of the Committee on Justice have also stated.

I find it hard to comprehend, not being a member of the Committee on Justice, that the conviction rate is as low as 1%. The 2018 report states that only 11% of the reported rape cases result in conviction. As I outlined by the Chairman, when one considers that the vast majority of rape and sexual assaults are not reported at all, it is clear that the reality is that a tiny percentage of the people who commit these offences, unfortunately, are prosecuted.

That needs to change and in order for it to change we need reports and discussions like this. We need action to be taken. I strongly support the call in the report to move to a more victim-centred approach. It is clear from evidence here this afternoon and previously that we need a justice system that is much more understanding and compassionate to victims. Currently, that is not the case. That needs to change and the time for talking is over. We need action and change.

In this context, it is unfortunately not possible for the trial system to be made easy for victims but we must ensure that every effort is made to take account of how difficult it is for them and to minimise any re-traumatisation of victims in how difficult it is for them and how they feel. The recommendations made are based on the evidence provided to the committee and, if implemented, I am confident that they will make a meaningful impact.

As to a number of the recommendations, I strongly support any measures which support the victim during the trial process, as other Members have. We know this process makes more victims reluctant to report their cases.

The recommendation for victims to have the resource of separate legal representation, with the defence and prosecution on a par, is a recommendation which could make a substantial difference for victims. There is currently an imbalance between the victim’s right and fair procedure to which a defendant is entitled. This recommendation would go a long way towards addressing that imbalance.

Similarly, the recommendation to ensure that the victim and the accused are as far away from each other as possible in court, with staggered entry and exit times, and the recommendations around increasing the use of video technology can make a substantial impact. We need to encourage more victims to report the crime and anything that will put the victim in the centre and that supports them in that way is vital and is a way forward.

Finally, I urge the Minister, Deputy McEntee, and her Department to consider this report strongly and to implement the recommendations as soon as possible. We must change our approach and put the victim first. We cannot wait any longer and I strongly recommend that the Minister takes action now.

Photo of Mark DalyMark Daly (Fianna Fail)
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Glaoim ar an Seanadóir Ó Donnghaile. We will try to finish by 3 o’clock. I know that this is the Senator’s contribution-----

Photo of Niall Ó DonnghaileNiall Ó Donnghaile (Sinn Fein)
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My apologies, in the first instance-----

Photo of Mark DalyMark Daly (Fianna Fail)
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I wish to allow the Minister back in. My apologies as he is not the Minister yet.

Photo of Niall Ó DonnghaileNiall Ó Donnghaile (Sinn Fein)
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The Deputy has been promoted a couple of times now.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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A work in progress.

Photo of Mark DalyMark Daly (Fianna Fail)
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It is a work in progress.

Photo of Niall Ó DonnghaileNiall Ó Donnghaile (Sinn Fein)
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Tuigim gur ábhar iontach tábhachtach é seo. Gabhaim mo leithscéal leis an Teach as a bheith as láthair don chuid is mó den phlé. Bhí mé ag taisteal ó Bhéal Feirste. Is é sin an fáth. Ba mhaith liom mo leithscéal a thabhairt fosta ar son an tSeanadóra Boylan, a bhí ag iarraidh a bheith páirteach sa díospóireacht seo. I apologise to the Cathaoirleach, the Chairman of the committee and colleagues for missing a large part of today's discussion. I was travelling from Belfast. My colleague, Senator Boylan, who had really wanted to be part of this discussion, has unfortunately been unable to attend. I will say my few words briefly, conscious that we need to wrap up.

I commend the Joint Committee on Justice. I understand totally, as a former member of the committee, the volume of work that goes through it. It is encouraging to see that it has put this important issue to the fore of its agenda and work programme. I commend the Chairman and colleagues on that. The report deals with a very sensitive, shocking and devastating area of life, which is very often hidden from view unless you are directly affected by it, either as a victim of sexual assault, as a witness or as a relative, loved one or friend of a person who has been attacked. The report is victim- and witness-friendly across a range of areas, including those at all levels who staff the justice system, from the gardaí to the judges and all in between. The report applies the same sympathetic eye to the buildings, rooms and other facilities in which victims or witnesses are housed following their harrowing ordeals. It examines the criminal justice and courts system and how both respond to victims of rape and sexual assault, how better to understand the issues that need to be addressed and where the system can and should be improved. It is quite clear from the report's commentary that its authors were keen to ensure that the justice system is tailored in so many different ways, too many to mention in this short speech, to the human needs, emotional and psychological, of a person profoundly affected by rape or sexual assault and her or his family, relatives and friends.

To achieve its victim-friendly ethos and recommendations, the report readily acknowledges the help of stakeholders who presented: the Committee the areas of reform they believed were most urgent regarding the current criminal justice process for vulnerable victims in cases of sexual assault and rape.

The purpose of this, the report makes clear, was to establish what areas of reform could be improved and strengthened in order to create a more supportive system, with the lowest levels of trauma for those involved in proceedings, police, solicitors, judges and court and police buildings. The report's recommendations are set in the context of the progress already made, which the report acknowledges. It gives examples of that progress, including anonymity, rights of the victim and the provisions and special measures for victims under the age of 18 or those with an intellectual disability. It describes the use of victim impact statements as "a landmark decision in recognition of a victim's rights" and suggests that a single statute should be introduced combining all the measures in this complex area.

The report further identifies issues of concern and suggests actions in the following areas: legislation to extend anonymity of victims of sexual assault who have a mental illness or disability; the appointment of extra judges and preliminary trial hearings to deal with delays which cause anxiety for victims and witnesses; specialist training and a code of conduct for members of the legal profession, especially in the area of cross-examination and questioning of a vulnerable witness; acute separation between the victim and the attacker at all times; special measures for victims of sexual assault, use of intermediaries, screens, video link, restrictions on questioning relating to prior sexual history, etc.; public awareness around consent, its meaning and the need to change attitudes to it; and information, support and resources for vulnerable victims before and after a trial.

The report, as the Chairman of the committee will be aware, makes 14 pertinent recommendations, and I hope the Minister for Justice will implement them all to the full in letter and in spirit. Again, I commend the report, its authors and those who contributed to it. I know from my own experience that many stakeholder groups and representative bodies look to the justice committee as a very authentic and effective voice and lobby. I know the Chairman and colleagues will take their role very seriously. I also know that Senators, whether members of the committee or not, will work as collaboratively and as positively as we can with the committee in seeing that the recommendations of this report are brought to bear.

Photo of Mark DalyMark Daly (Fianna Fail)
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I will shortly call the Chairman of the Joint Committee on Justice back in to respond to Members and talk about the next steps. I am aware that the O'Malley report was published with 54 recommendations. What this is about as a process is looking at recommendations made by committees. We have discussed such recommendations before and we have all worked on them, but this is about making sure that action is taken and, working with the Chairs of the committees from here on, that they get an opportunity to revisit reports on behalf of committee members. I thank all Members of the Seanad who worked on the report and Alan Guidon, the clerk to the committee, who has worked so hard. We all know the amount of work that goes into not only publishing such reports but also bringing in the witnesses and making sure everything is done correctly. I thank Alan personally for his hard work on that because it is important that the hard work of the officials behind the scenes is recognised. They make sure that these reports happen, that witnesses get their opportunity to testify to parliamentary committees and that they work closely with the Chairman. I thank the Chairman, Deputy Lawless, for coming in and giving his observations and, I hope, his views on the next steps and on this new process we are undertaking in the Seanad in making sure the recommendations of reports by him and other Chairs of committees are talked about after the report is done. As the House will know, there are quite a number of reports on Seanad reform and we are discussing those as well. One of the key provisions of Seanad reform is having the recommendations of committee reports discussed in the Seanad.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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I thank the Cathaoirleach again for his initiative. I thank the Seanad for taking this item of business. We had a smile and there was a bit of confusion about my role on one or two occasions, but I think that is because this is a novel concept. It is something I absolutely commend. It gives ventilation to these committee reports and, as one Member said earlier, ensures that they are not left on a shelf but, rather, ventilated here and then scrutinised and returned to after the fact to see that they have stacked up. I thank Alan Guidon, who is in the Public Gallery, as the clerk to the committee. I am very honoured to speak on behalf of the committee and to chair the committee because it is such a hard-working, industrious, productive and talented committee. It is rich in Seanad membership, as I said at the outset, so I thank all my colleagues in this Chamber for that. I thank in particular Alan, who deals with aplomb with the volume of work that comes before us and the many constituent priorities in my own head as well as in every other member's head. He manages to make it look easy. That is always the best compliment if someone can do that.

I will respond to some of the contributions Members made if that is in order and if I have a moment to do so. I will start with Senator Hoey. I thank her for sharing her very personal, difficult story. I listened intently to her contribution, which was very moving and must have been very difficult for her to make. I believe her, of course, and I thank her for what she said. I am so sorry that she had that experience. It brings home, as other Members have said, the proximity, unfortunately, of these issues to all of us, be it in our work lives, our family lives or our social circles. Unfortunately, that is happening across the country.

Senator Ruane spoke as a mother of two. I am a father of two daughters and can empathise with the Senator, who is a very valued member of the committee and who made many contributions to it. I do not want to live in a world where people do not feel comfortable coming forward for the same reason.

Senator Ward made a point which was well articulated as always. He said there is a concern - I think we all share it - that there is a chilling effect in respect of particular lines of questioning. They are rare and there are existing procedures to stop those lines of questioning. For example, it is rare that a victim is cross-examined on their sexual history or their undergarments. It does not happen in the vast majority of trials, but when it does happen it is amplified into the media and everybody reads about it and is horrified and shocked, and that has a chilling effect on people coming forward. How do we manage that? From a statutory basis, there are rules and procedures in the common law whereby a judge will admonish the person and say, "No, you are not going there." Perhaps that needs to be put in statute and front-loaded. That is something we considered in our report.

Senators Mullen and Gallagher and, I think, another Member mentioned Councillor Deirdre Donnelly, who was documented in many of these findings. She was in touch with me recently as well regarding the report in the context of counselling records. I think a few other Members touched on the possibility of people's medical accounts and records being used in a trial. I was surprised to hear that. In the course of this report and in my own professional practice - I qualified as a barrister - I have never come across that. It is something we need to look at to see whether it can be done. I would have thought such evidence was privileged, inadmissible or both.It is something that I do not think should be possible. I will follow up on the matter on behalf of the Senators who raised it, as well as Councillor Deirdre Donnelly, who brought it to our attention.

Senator Pauline O'Reilly referred to RSE and consent. I totally agree with her. A very interesting point was made in respect of juries. Trials of this nature are on indictment and, in the age-old tradition, before a jury of one's peers. As our peers become more aware of these issues and consent training is rolled out and each generation comes through, they will be more knowledgeable, understanding and informed, so the people making that decision in the jury box will actually be recipients of that. That is a really profound point that carries through. It is certainly a point I will take away from this debate and it is yet another argument to support the roll-out of that training.

I thank Senator McGreehan for her comments. She made several very interesting and solid observations. She suggested that the protections that surround a trial process may somehow be linked or aligned with a suggestion that a complaint may be vexatious or frivolous. If that suggestion was made, it was not made at our committee. It did not feature in any of our discussions and it is certainly not a view I share. However, while recognising the validity and imperative of every single victim who comes forward - this may be where confusion arises and it is what makes the report so difficult - we must also stand on the Magna Carta, the bill of rights, the American declaration, the European Convention on Human Rights, the Constitution and, most recently, the European victims directive, which put in place the foundations of criminal trials and which mean that you cannot be automatically guilty when you walk into the room; there must be a protection and a defence available to those who are wrongly accused, which, unfortunately, does happen. Sadly, we have seen travesties of justice in this jurisdiction and many others across many areas and offences. That is something we should never stop trying to avoid because it is a pitfall of the justice system. That point may have been misinterpreted in the context of the comments made by Senator McGreehan.

Senator Conway spoke about leaving the report on a shelf. That is exactly what we do not want to do and it is why we are here today. I again thank the Cathaoirleach for facilitating this debate. It is so important that these reports are ventilated and given an opportunity. I am humbled and honoured to be the first committee Chairman to come before the Seanad. I commend the House on facilitating that. It has been extremely worthwhile. This has been a really useful debate. It helps to give the report legs and move it on to the next stage. It will certainly prompt a wider debate. I wish the House and the Cathaoirleach well in their future debates on this issue. I am sure that the Chairmen of other committees will come before the Seanad and that other reports will be scrutinised in the same way. That is exactly what we need to do and I thank the House and the Cathaoirleach for facilitating it.

Photo of Mark DalyMark Daly (Fianna Fail)
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I thank the Members who contributed to the debate. As the Chairman of the Joint Committee on Justice outlined, this is the first debate in the Seanad on the recommendations of a committee report. Such debates will generally take place approximately six months after the report is published in order that we can see which recommendations have been put in place and which remain outstanding.

Question put and agreed to.

Sitting suspended at 3.04 p.m. and resumed at 3.11 p.m.