Victim representation for sexual history evidence in Ireland: A step towards or away from meeting victims’ procedural justice needs?
| Author | Mary Iliadis |
| Published date | 01 September 2020 |
| Date | 01 September 2020 |
| DOI | http://doi.org/10.1177/1748895819851848 |
| Subject Matter | Articles |
https://doi.org/10.1177/1748895819851848
Criminology & Criminal Justice
2020, Vol. 20(4) 416 –432
© The Author(s) 2019
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DOI: 10.1177/1748895819851848
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Victim representation for
sexual history evidence in
Ireland: A step towards or
away from meeting victims’
procedural justice needs?
Mary Iliadis
Deakin University, Australia
Abstract
Sexual assault cases have historically resulted in persistent victim dissatisfaction with, and
alienation from, the prosecution process. As a result, some adversarial jurisdictions have moved
contentiously towards integrating victim participation rights within the legal process to address
sexual assault victims’ procedural and substantive justice concerns. The introduction of section
34 of the Sex Offenders Act 2001 (IRE), which allows a victim to access state-funded legal
representation to oppose a defendant’s application for the introduction of the victim’s sexual
history evidence in court, is one such example. Drawing from five interviews conducted with
high-level criminal justice professionals, legal stakeholders and victim support workers, and an
analysis of primary source documents, including legislation and reports, this article argues that,
although section 34 represents a unique response to the problems raised by the use of a victim’s
sexual history evidence in criminal trials, its shortcomings may hinder its capacity to improve
sexual assault victims’ procedural justice experiences in ways unanticipated from its introduction.
Keywords
Criminal prosecution processes, independent legal representation, procedural justice, Sex
Offenders Act 2001 (IRE), sexual assault victims, sexual history evidence
Introduction
Adversarial justice is characterized by a contest between the state and accused, meaning
that individual victim interests are not legally represented unless within ‘a passive
Corresponding author:
Mary Iliadis, Lecturer, Criminology, School of Humanities and Social Sciences, Deakin University,
Melbourne, Vic 3125, Australia.
Email: mary.iliadis@deakin.edu.au
851848CRJ0010.1177/1748895819851848Criminology & Criminal JusticeIliadis
research-article2019
Article
Iliadis 417
context, [either] as [a] police informant or as [a] witness for the prosecution’ (Kirchengast,
2013: 569). This emphasis on the contest between the state prosecutor and accused has
‘eclipsed the recognition of the victim’s inherent interest’ (Victorian Law Reform
Commission (VLRC), 2016: 26) for a due process that affirms the accused’s rights in
relation to the power of the state (VLRC, 2016). This has led commentators to describe
victims as the ‘forgotten’ party, whose views and interests remain largely alienated and
excluded from the criminal justice system (Doak, 2005).
The reluctance to recognize victims as anything more than a prosecution witness
stems from a concern that victims ‘will invite potentially subjective and thus prejudicial
submissions on matters of state concern’ (Kirchengast, 2013: 570), which may compro-
mise the ‘objective and public nature of the criminal justice system’ and hinder an
accused person’s due process rights to a fair and impartial trial (Doak, 2005: 294–296).
While greater credence has been given to victims’ rights and interests over the past three
decades, the emphasis on a victim’s witness status has continued to be reflected in con-
servative adversarial reform, which has focused on enhancing the provision of informa-
tion to victims, and, to a more limited extent, victim participation, for example, through
a Victim Impact Statement.1 Despite such changes, most victims continue to feel denied
of procedural and substantive justice,2 particularly in sexual assault cases,3 as the chal-
lenges commonly associated with the legal process, such as insensitive treatment by
authorities and distressing cross-examination,4 become exacerbated, increasing the like-
lihood of secondary victimization (Doak, 2008).5
Concerns over procedural (in)justice for sexual assault victims have underpinned
Ireland’s shift towards increased consideration and involvement of victims in the legal
process, beyond that of their witness status. In 2001, Ireland contentiously introduced a
limited form of independent legal representation (ILR) for sexual assault victims pre-
trial. Constituting a form of victim participation, this reform is distinct within adversarial
systems in allowing a unique level of victim input. Section 34 of the Sex Offenders Act
2001 (IRE) (henceforth, section 34) inserted a new section (4A) into the Criminal Law
(Rape) Act 19816 which allows sexual assault victims to access state-funded legal repre-
sentation7 to oppose a defendant’s application to introduce a victim’s sexual history evi-
dence in court. This is a significant right in light of the parameters of adversarial legal
systems, which have traditionally excluded victims. It also enables victim interests to be
acknowledged and included, thereby recognising ‘a triangulation of interests’ among the
accused, state and victim (Lord Steyn cited in Attorney-General’s Reference (No. 3 of
1999) [2001] 2 AC 91: 118). The ILR thus arguably helps to address some of the main
criticisms pertaining to the prosecution process for sexual assault victims, particularly in
relation to the cross-examination stage.
Drawing from interviews8 conducted with five high-level criminal justice profession-
als, legal stakeholders and victim support workers, and an analysis of primary source
documents, including legislation and reports, this article explores the extent to which
section 34 provides an opportunity to prevent victims’ sexual history evidence from
being used in court and improve victims’ procedural justice experiences. The article
begins with a discussion of the emergence of ILR for sexual assault victims in Ireland,
before presenting an overview of the potential benefits of section 34 in enhancing vic-
tims’ procedural justice experiences. It then considers how the various shortcomings of
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