A GROWING NUMBER of court reports which highlight the amount of character references given to convicted criminals in rape and sexual assault trials have shed light on a legal process which advocates say is difficult for victims.
The sentencing hearing at the Central Criminal Court of a man found guilty of 58 charges of the rape and abuse of his partner and her son last month heard how he received eleven character references, some of which described him as a “caring father” and good friend.
Another man convicted of sexually assaulting three girls at his home was also described as a good father and model employee at his sentencing hearing in January, when Dublin Circuit Criminal Court heard 23 references had been submitted on his behalf.
The use of character references is a standard part of criminal trials where a conviction occurs, but there have been fresh calls in some quarters to change the system to make proceedings easier for victims of sexual crimes.
However, experts warn that doing so could have wider implications for Ireland’s criminal justice system and may impact the capacity of the courts to process trials.
Character references are used at the final phase of trials to provide judges with context about convicted offenders when considering what sentence to give them.
The aim of references, which are submitted to a court after a verdict is given, is to potentially reduce the sentence a judge will hand down for the crime committed.
The problematic use of references in trials involving sexual crimes has been raised repeatedly in recent years, but came up again last month when advocates for a fairer system for victims heard from an unlikely ally within the courts system.
High Court judge David Keane told a sentencing hearing that referees should have to be cross-examined, after lawyers for a man convicted of the rape and sexual assault of his son asked the court to receive references from the man’s partner, parents and GP.
His remarks followed a debate in the Seanad earlier this year on the Criminal Justice (Amendment) Bill 2022, which would allow the prosecution to cross-examine referees.
“One cannot just say what one wants and allow it stand as being truthful,” Fine Gael senator Regina Doherty, who tabled the bill, said at the time.
“If a person is going to provide a character reference in a rape trial then it must be accurate and, more importantly, relevant to the sentencing.”
Because character references are not submitted under oath, there is no legal obligation for referees to be truthful and they cannot be questioned by the prosecution.
Dublin Rape Crisis Centre CEO Noeline Blackwell says that because of this, there is no way for them to be tested in the same way that victims themselves are during the course of a trial.
“When it comes to the end of [a trial], there is a situation where the victim has been put on oath and put under examination in very great detail in relation to the most intimate matters,” she told RTÉ radio earlier this month.
“A victim can be sitting in court knowing that there has been a conviction, often before a jury as well, knowing that a lot about their character came out, and knowing that some of the information that is going in is not their perception of the defendant.
“They cannot challenge it, they cannot touch it, they cannot even ask ‘was that done on oath?’ because it’s not done that way at the moment.”
Intimidating
Furthermore, advocates say that victims of sexual crimes can find it intimidating to have people of standing in their community sending letters to support the person they have accused.
Rape Crisis Network Ireland executive director Dr Clíona Saidlear explains that hearing references in court can also erode a sense of vindication that a victim gets when a conviction occurs.
“When it gets to that stage, the victim is past the finish line and it’s now about punishment and sentencing,” she says.
“But references can impact because they can be allowed to undermine the certainty the victim may feel after the jury has arrived at a guilty verdict.”
Despite this, Saidlear points out that judges don’t even have to take references into consideration in sentencing hearings, and that some judge have said that they are not particularly important.
That view is shared by barrister and academic Tom O’Malley, who says that although references do have some bearing on sentencing decisions, judges primarily make their decisions by relying on evidence and witness testimony heard in court.
However, O’Malley also highlighted the consequences of cross-examining references in trials involving sexual trials.
“First of all, there would be a question as to whether we should differentiate sex offences from other offences,” he said.
“And I would think that if we were to introduce a general rule, it would have to apply to all offences.
“It’s unlikely that it would be very contentious in most cases. But if it became routine that you had large numbers of character witnesses being called [to be cross-examined], it would of course slow down the proceedings quite a lot.
“And that in turn would reduce the capacity of the courts to process the huge number of cases that they have to deal with.”
Saidlear also suggested that cross-examination of references could lead to an erosion of the authority of the courts themselves.
“Could we open up a space where in essence, we are allowing for debate to happen in our courtrooms after the guilty conviction?” she asks.
“I think, perhaps, our courts would need to think very carefully about whether they would undermine their own authority or not.”
Nevertheless, there may also be some movement from the Government on the proposal soon.
A spokesperson for Justice Minister Helen McEntee told The Journal that the Government may consider character references over the next year.
“Minister McEntee is aware of the sensitivity of this issue for victims of crimes of a sexual nature during court proceedings,” a statement said.
“The implementation plan for Zero Tolerance, the third National Strategy on Domestic, Sexual and Gender-Based Violence, includes a commitment to examining further reforms that may be required to law, practice and procedure in the context of supporting DSGBV victims and survivors.
“One of the issues specifically identified for consideration over the next 12 months is the use of character references in criminal cases.”
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