Saturday 22 October 2016

Rape victims don't need to be put in the dock to get a 'fair trial'

Published 11/08/2015 | 02:30

Sexual experience evidence is only supposed to be introduced when it’s deemed imperative for the defence, but a study by Senator Ivana Bacik above, revealed that it was allowed in 70pc of the cases that she examined
Sexual experience evidence is only supposed to be introduced when it’s deemed imperative for the defence, but a study by Senator Ivana Bacik above, revealed that it was allowed in 70pc of the cases that she examined

Last week we learned it is possible for a rapist to be convicted and receive a lengthy sentence - but the price can be the character assassination of a traumatised victim in court.

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Martin Stokes's victim was only 14 when she met him walking along a rural road. She was alone, on her way to a friend's house, but he persuaded her to go into a field. He raped her there in the dirt. When she tried to resist, he told her he wasn't going to stop until he was finished.

When Stokes (24), from Corkhill, Kinnegad, in Westmeath, was arrested, he denied knowing the girl or being in the vicinity at the time of the attack. DNA evidence and the testimony of 10 witnesses, all of who saw him in the area, contradicted his lies. His own credibility clearly in tatters, Stokes's defence at his trial was another attack on his victim. The law helped him do it.

During the course of two-and-a-half days of cross-examination, his teenage victim was questioned about her sexual experience. A Facebook post she had written, in which she stated "can't believe I lost my best friend over a lad", was queried. Text messages she had written about sexual activity with a boy were also raised.

The defence case seemed to be that because the girl had written juvenile sexualised texts to a friend, she had consented to sex with a stranger in a field.

The fact that the girl was only 14 at the time, and legally incapable of consent, makes this line of questioning even harder to understand.

This type of evidence, because it can be highly prejudicial, is not supposed to be introduced in rape trials at all.

Since 1981, it's been banned. However, there is an exception, when details of the victim's sexual history are deemed essential to an accused's defence and right to a fair trial.

It's hard to imagine, though, what possible connection a Facebook post from a 14-year-old girl, about falling out with a friend over a boy, could have had to her rape or why it was so imperative to Stokes's defence that she be grilled about it in court.

It's similarly bafflingly why text messages, sent to a friend about a boy, were introduced. In the text messages the girl had apparently bragged about sexual activity, but in court she said she was "trying to act cool to my friends at the time and I was silly and stupid".

Stokes, having abandoned his claim that he had never met the girl, was desperately trying to convince the jury that not only had she consented, she had enjoyed it. He said she had been on top of him during sex urging him on.

Not content with spinning this perversion of the truth, the purpose of raking over personal messages the girl had sent to friends was to try to colour the jury's opinion of her; to suggest to them that maybe she was the kind of 14-year-old who would happily have porn-star sex with a man she met on a road.

Thankfully, it didn't work and the jury saw straight through Stokes's lies and found him guilty.

On Friday, Judge Carroll Moran said that in his 18 years on the bench he had never seen such "obvious mendacity" before sentencing him to 10 years in prison.

However, despite this positive outcome, there is something deeply disturbing about a criminal justice system that facilitates a child rapist in attacking that child's character. That assumes it is necessary, for the accused to get a fair trial, that the victim must first be put in the dock.

If the social media accounts of any teenager were trawled through, it is likely that some references to sexual activity, or comments about their latest crush, would be unearthed. Why should these messages be considered relevant if those teenagers were raped?

In her victim impact statement, which she bravely read to the court, Stokes's victim said she suffers from anxiety, panic attacks and depression and started self-harming after the rape, which happened in 2011. She said her teenage years had been stolen from her, she has suicidal thoughts, doesn't like going anywhere alone and her family had to move towns because of the rape.

Given how vulnerable and traumatised this girl is, how much she's already suffered, it's hard to see how the trial process she endured was anything other than cruel and brutal, even if she was ultimately vindicated at the end.

While sexual experience evidence is supposed to be introduced only when it's deemed imperative for the defence, a study by Senator Ivana Bacik revealed that it was allowed in 70pc of the cases she examined between 2003 and 2009.

Ms Bacik's report revealed some of the reasons defence teams use to try to admit evidence of a victim's sexual history - promiscuity, prior consensual sex and, bizarrely, using contraceptives and being newly single.

Barrister Gerard Murphy has said the Irish law, which allows this evidence to be adduced at trials, is both uncertain and imprecise. In fact, there's no requirement in the statute that it even be relevant. The decision is ultimately a subjective judgment call by judges about whether it would be fair to defendants to exclude it.

In Canada, in comparison, the law is clear that the evidence must be relevant and it must have significant probative value.

It also lists seven separate factors, including society's interest in encouraging the reporting of sexual offences and the risk of the victim's dignity and privacy being abused, which judges must take into account when making their decision.

Given the under-reporting of rape in Ireland, coupled with high attrition rates when victims find they can't cope with the adversarial trial process, this is an area of the law that needs to be urgently addressed.

Irish Independent

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