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Opinion: Justice delayed really is justice denied in rape trials - this is a big issue in Ireland

Dr Susan Leahy says a consistent delay in the legal process is one of the biggest stumbling blocks when it comes to rape trials

Dr Susan Leahy

IN RECENT YEARS, much attention has been paid to sexual offence trials and how best to minimise the trauma experienced by complainants of rape and sexual abuse as they journey through the criminal justice system.

The report of the O’Malley Review, published last year, identifies a number of reforms that are required if the laws and procedures in relation to these trials are to achieve best practice in the treatment of complainants within the trial process. 

A newly published report, The Realities of Rape Trials in Ireland: Perspectives from Practice, conducted in partnership with Dublin Rape Crisis Centre and funded by the Irish Research Council, broadly supports the recommendations for reform that have been proposed by the O’Malley Review.

Greatest obstacles

Drawing on interviews with legal professionals and court accompaniment workers who work within Irish rape trials, the report highlights the need for reforms such as greater guidance on the definition of consent and more robust procedures for the regulation of the introduction of sexual experience evidence and counselling records in sexual offence trials. 

However, beyond the discussion of specific legal reforms, the concern raised most often by legal professionals and court accompaniment workers alike was on delay, with this issue specifically highlighted by a majority of the legal professionals and all of the court accompaniment workers who were interviewed for the study. 

Participants spoke of the challenges caused by adjournments, when complainants prepare themselves for trial on a certain date, only to find that it is postponed to a later date, which may be several months away.

This has significant consequences for complainants who prepared themselves emotionally for the trial process, as well as making practical arrangements for time off work, childcare or travel and accommodation where the trial is due to take place outside of their own locality.

Above all, accompaniment workers in this study highlighted how the delay in the legal process is devastating for complainants whose lives are put on hold while they wait to have their case heard. Healing and closure can only truly be achieved once the trial process is behind them. Until then, complainants must constantly be mindful that they will need to relive their experience in the witness box as part of the trial process. 

A frequently cited maxim in legal circles is that ‘justice delayed is justice denied’. Nowhere is this more accurate than in the context of rape trials. The current delays within the system compound the trauma experienced by complainants and their families and friends who support them on their journey for justice.

Indeed, tackling delay is vital to maximising justice in these cases not only for complainants but also for defendants. It is in everyone’s interests that these trials are heard as promptly and efficiently as possible. 

How to tackle delays?

Unfortunately, given the complexities of sexual offence cases, there is no ‘quick fix’ for tackling delay. However, efforts are already underway to try to deal with this issue. For example, the Criminal Procedure Act 2021 which has recently been enacted provides for pre-trial hearings where issues such as disclosure of evidence can be dealt with in advance of trials.

Once this legislation is operative, it should help to minimise the potential for issues relating to disclosure to arise unexpectedly at the beginning of a trial, resulting in an adjournment while the legalities of disclosure are dealt with. It is to be hoped that this legislation will be commenced and, most importantly, adequately resourced, as a matter of urgency. 

A further key requirement in tackling delay is to tackle the culture within our criminal justice system where there can at times be an ambivalence or tendency to accept delay as part of the process.

We are now, more than ever before, aware of the need for the criminal justice system to be trauma-informed. The uncertainty and distress experienced by complainants as a result of delays within the system compounds trauma and may even contribute to some complainants’ decision not to pursue or continue with a formal complaint. To minimise trauma, we must minimise delays as much as possible. 

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The current delays within the system operate to the disadvantage of everyone involved, complainants and defendants alike. Until this delay is minimised to the fullest extent possible via procedural changes and, significantly, appropriate resourcing, the trial process cannot deliver justice effectively in these cases. 

Dr Susan Leahy is a Senior Lecturer in Law at the University of Limerick. She is co-director of the Centre for Crime, Justice & Victim Studies and researches in the area of sexual offences, domestic abuse and the rights of victims of crime. Release of the latest research by Leahy and Dublin Rape Crisis Centre can be viewed here, here and here.

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Dr Susan Leahy

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