THE JUSTICE MINISTER said a new bill that will strengthen laws around consent and character references in court will be delivered by the end of the year.
Helen McEntee said the changes in the Sexual Offences and Human Trafficking Bill are part of a “zero tolerance strategy” that will better support and protect the victims of crime.
Currently, if a witness is called to court to provide character evidence, this evidence is given under oath.
However, written testimonials are not sworn and the bill provides that when a person has been convicted of a sexual offence, character references presented at sentencing must be made via oath or affidavit.
The Department of Justice said this will “ensure that the person providing the reference swears to the veracity of their statement and can be called before the court for cross examination”.
“In effect, it will mean character reference letters will no longer be able to be read out in court unchallenged, if warranted,” added a Department spokesperson.
Speaking on RTÉ’s Today with Claire Byrne, Minister McEntee said: “Currently, a person may be called upon during a case or a trial, and they would then be able to be cross examined if they give evidence relating to an individual.
“However, when it comes to sentencing where a person has already been found guilty, it is open to a friend or a member of the community to put forward, in writing, a character reference testifying to their belief of this person’s character.
“They cannot be cross examined because this is not an affidavit, this is just a piece of paper that’s presented to the judge when the sentencing is happening.
“What we are saying now, is that this would have to be provided via an affidavit which would mean that, if required to do so, they would have to come before the court if it was asked that they were cross examined to be able to testify to what they’re saying.”
McEntee added that it can “hugely traumatic for that victim to hear it being read out in court that this person is wonderful and of high standing” after they have been found guilty of sexual assault.
“If somebody is willing to put to pen and paper that they believe this person is of outstanding character or has good reputation, they should be willing to answer questions in person,” said McEntee.
The bill will also strengthen the law in relation to consent.
The Department explained that at present, “a person can be found not guilty of rape if they honestly, but mistakenly, believed that they had the consent of the victim”.
A Department spokesperson said the “law is subjective” and added: “In effect, the alleged perpetrator can claim they are not guilty of rape because they honestly but mistakenly believed they had consent.”
The new bill will change this so that the belief “must be objectively reasonable rather than subjective”.
“Where the question of reasonable belief arises in a trial, the jury must have regard to the steps, if any, taken by the accused to ascertain whether the victim consented to the intercourse,” said the Department spokesperson.
Speaking on Today with Claire Byrne, Minister McEntee said: “What we are now saying is, ‘it must be an objective test’.
“So to me, you or any other member of the jury looking at this, is it reasonable to say that consent was given?”
However, McEntee said this is “not going to change the fact that this is always going to be a very difficult situation”.
“If you have a jury who only have the voices of the accused and the person who was accusing them, with potentially no other person involved in the scenario, they have to make a decision based on the evidence from both sides as to what they believe beyond reasonable doubt happened,” said McEntee.
The bill also ensures anonymity for victims in all trials for sexual offences, as well as providing anonymity for the accused for certain sexual offences.
“We are delivering a number of the recommendations from the O’Malley report relating to legal representation for victims if there is an application to cross-examine a victim about their previous sexual history in sexual offence trials and including ensuring victim anonymity in all trials for sexual offences,” said McEntee.
The O’Malley report was approved by government in 2020 and was prompted by concerns about the experiences of vulnerable witnesses in criminal proceedings for sexual offences.
It will still be possible to cross examine victims of sexual assault on their sexual history, but the bill includes changes to legal representation for victims in this regard.
McEntee told RTÉ that it is not for her to “decide what a judge may or may not accept or what they deem as being important in the grand scheme of the overall trial”.
She added: “What we are saying with this new piece of legislation, is that if a person is going to be cross examined on their previous sexual history, that they would have legal representation and that it would be the same representation that they have throughout the trial, which is currently not afforded to them, to make sure that they have support and the legal knowledge and expertise to be able to understand what is happening and the type of questioning that is involved in that.”
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