Sexual attack survivor to discuss legal reforms with Minister
Posted on 29th March 2021 at 21:44
A sexual attack survivor has said provisions allowing victims to be questioned about their sexual history or allowing the accused to personally cross-examine them in court were “barbaric” and had “no place in modern law”.
Sarah Grace, a solicitor, outlined seven specific areas for legal reform in an open letter to Minister for Justice Helen McEntee, published on Monday. Both women will meet on Tuesday to discuss the suggested reforms.
In the letter Ms Grace raises the lack of legal representation for victims in Ireland. She writes that although she understands victims cannot be coached, they should have some sort of legal support to prepare. “There is a stark difference between telling the victim what to say and allowing a highly vulnerable person to mentally prepare for the ordeal that is the trial,” she writes.
She has also called for training of barristers targeting certain behaviours in cross-examination such as “aggressive posturing, intimidation, using highly insensitive language, introducing a victim’s underwear in court”.
Ms Grace was attacked in her apartment in Grand Canal Dock in Dublin in July 2019. She was strangled, bitten and subjected to serious sexual violence, when a stranger broke into her bedroom while she slept. Her attacker, Ibrahim Elghynaoui, was found guilty of aggravated sexual assault and sentenced to 10 years in prison earlier this month.
Open Letter to Helen McEntee TD, Minister for Justice
Call for Changes to the Justice System for Sexual Violence Victims
23 March 2021
I want to thank you for reaching out and arranging a meeting with you to discuss my recent experience as a victim of sexual violence and the necessary improvements to our justice system.
I am hugely encouraged by your responsiveness, as well as the excellent initiatives already led by your Department in this area. ‘Supporting a Victim’s Journey' (the Strategy) is highly welcome, and I believe will create genuine change in supporting sexual violence survivors holistically throughout the criminal justice process. The Criminal Procedure Bill published by your Department is also greatly needed to address the stress on victims due to the significant delays and disruptions in criminal trials.
Despite these efforts however, there are still major shortfalls which result in victims of rape and sexual violence being failed by our justice system. I have outlined below a suggested agenda of the key issues which require urgent change, by order of priority:
1. Counselling Records: It is unacceptable that the notes from victims' private therapy sessions are disclosed in trial. Recommendation 5.6 of the Strategy on flagging this to victims is a step in the right direction, however we must go further and cease this practice entirely. As I understand it, disclosing the victim’s therapy records is not permitted for other criminal offences in Ireland, and the purpose appears largely (if not exclusively) to discredit the victim. Sexual violence victims have experienced unfathomable trauma, and therapy is critical to their recovery. The prospect of disclosing such private and sensitive records to the accused and their lawyers undoubtedly contributes to the alarming drop-off rate between sexual offences being reported to the Gardaí and those actually proceeding to trial. This is a fundamental denial of access to justice. It can also deter victims from seeking the therapy they desperately need, sometimes for years, which can lead to devastating life-long impacts on their mental and physical health. These intrusive laws and practices must be repealed urgently.
2. Use of a Screen: Victims should give evidence by default behind a screen or by video-link in all rape and sexual violence cases. I personally found the process to obtain approval for the screen immensely traumatic. It was not possible to confirm approval until the trial began, which was a tremendous source of stress. It is also absurd that the victim must sit within touching distance of the accused while recounting extraordinarily painful trauma inflicted by that person. Due to fears for my safety and PTSD from the ordeal I endured, I do not believe I would have been physically or mentally capable to give proper evidence without the screen, which would have denied both the judge and jury evidence to carry out justice. Given the nature of a sexual offence, it is in both the victim and the accused’s interests that evidence be given in a less adversarial manner. The screen in particular is a very light and portable device, and could easily be deployed across all courts in Ireland at a minimal cost.
3. No Legal Representation: Victims are the key witness in trial. They have a huge burden of responsibility on their shoulders as without them, there is no case to prosecute. Unlike the accused however (who is represented by an entire legal team), they must go on the stand and be cross-examined, about the most private and traumatic event in their life, in front of a room full of strangers. Yet victims are not allowed to have a lawyer to help them prepare for trial, or defend their interests throughout the incredibly complex criminal justice process. While I understand that victims cannot be coached, there is a stark difference between telling the victim what to say and allowing a highly vulnerable person to mentally prepare for the ordeal that is the trial. It is entirely unfair that victims be treated as witnesses, and misrepresentative of reality as they give a Victim Impact Statement at the end of trial. I appreciate this will require a more substantial overhaul of our current legislation, yet this must change if we are to call ourselves a modern and victim-friendly justice system.
4. Cross-examining the Victim: Provisions allowing to question a victim in certain cases about their sexual history, or allowing the accused to personally cross-examine the victim, are barbaric and have no place in modern laws. Many other common law jurisdictions, including Australia, Canada and the USA, have introduced Rape Shield Laws excluding a rape or sexual violence victim’s past sexual behaviour as evidence in trial. It is high time we joined these countries and introduce our own Rape Shield law.
5. Training for Barristers: I greatly welcome Recommendation 9.1 of the Strategy on training of lawyers and judges, and I believe this should be fleshed out in more detail. In particular, training should target unacceptable and disrespectful behaviour adopted by defence lawyers when cross-examining a sexual violence survivor, including aggressive posturing, intimidation, using highly insensitive language, introducing a victim’s underwear in court or walking out of the courtroom during the victim’s reading of her or his Victim Impact Statement.
6. Definition of Rape: the “section 4” rape definition is outdated, artificial and hurtful to victims. It is illogical that non-consensual penetration by a handheld object amounts to rape, but by a finger, for example, does not (particularly when the latter involves the added layer of trauma that an object would not, such as skin-on-skin contact and the possible need for preventative HIV treatment). Rape should include all non-consensual penetration.
7. Victim’s Anonymity: I am encouraged by Recommendations 3.1-3.7 of the Strategy on the anonymity of victim. However, in my case, I was personally identified through articles published in the media despite not being named, and there have been other recent examples of this. This also acts as yet another deterrent for victims to seek justice. I would suggest that victims should be consulted in advance on which facts of the case can identify them, and which parts of the Victim Impact Statement they do not want publicly reported on.
Sexual violence affect us all. In Ireland, 42% of women and over one in five men will become a victim of rape or sexual violence in their lifetime (SAVI 2002). Our justice system should be designed to keep these victims at the forefront and centre of proceedings, and not an after-thought at trial.
Ireland may be small, but our actions in recent years have been mighty. We have blazed a trail forward in fighting for fairer and more progressive laws, being the first nation to legalise marriage equality by popular vote, and tearing down outdated laws on divorce and abortion. There has been a huge shift in public opinion, and we now have an opportunity to act. I am hopeful that this can become yet another area in which we lead the way and can be proud of the changes achieved.
I look forward to meeting you on 30 March, and remain at your disposal in the meantime. Yours sincerely
In an interview with The Irish Times following the sentencing, Ms Grace outlined the traumatic experience of the attack, her issues with navigating the legal system and her process of healing, to offer instruction to survivors.
In the aftermath of the interview, Ms Grace was drafting an open letter to the Minister when the Department of Justice contacted her to arrange a meeting. She has praised the department and Helen McEntee for their responsiveness.
The seven areas of reform Ms Grace’s letter identifies relate to counselling records, the use of screens at trial, legal representation for victims, issues with cross-examining victims, training for barristers, the definition of rape, and issues regarding victim anonymity.
She says it is “unacceptable” that victims’ private therapy notes can be sought by a defence in preparation for trial where there are charges of sexual violence being brought.
On the use of a physical screen at trial, which Ms Grace managed to successfully advocate for in her case, she writes that “victims should give evidence by default behind a screen or by video-link in all rape and sexual violence cases”.
In questioning the definition of rape in Irish law, Ms Grace writes, “Rape should include all non-consensual penetration”. During the attack, Ms Grace was penetrated with a violent punch by her attacker, but in Irish law this crime was not characterised as rape, but as “aggravated sexual assault”. In Irish law, non-consensual penetration by a finger or hand is not classified as rape, whereas penetration with a hand-held object is.
On Friday Ms McEntee said she “read the article in the paper and I think, like a lot of people, while she’s a little bit younger than me, my first instinct was ‘Oh my God, that could have been me’.”
Speaking on RTÉ Radio, Ms McEntee commended Ms Grace and said through people outlining their lived experience within the criminal justice system, she could ensure the plans her department were putting in place would “actually work”. Officials in the Department of Justice are currently drafting a new Sexual Offences Bill, which will be published towards the end of the year.
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