Large numbers of rape victims are being questioned about their sexual history in court, even when it has nothing to do with their allegations, figures obtained by The Irish Times show.
Much of the time, the controversial practice is used by defence lawyers to demonstrate promiscuity on the part of the complainant. In a small number of cases, victims are questioned about their use of birth control to show they consented to sexual intercourse. In one case a woman was asked by a defence barrister if she owned any sex toys.
The UK government is currently reviewing the practice after it was highlighted during the high-profile trial of footballer Ched Evans, who was acquitted of rape. In that case, a judge controversially allowed two men who had had sex with the complainant to give evidence in Evans’s defence.
Critics of the practice, which is known in Ireland as "a section-three application", say it grants too much power to the accused and can be used to diminish the character of victims by insinuating they are promiscuous.
There are also fears that the prospect of being asked such personal questions in a court is discouraging some victims from coming forward.
Since 2001, complainants in rape cases have had an automatic right to their own lawyer paid for through legal aid when an accused indicates they intend bring a section three application
Defence barristers require permission from the court to ask such questions. Judges grant permission in the vast majority of cases.
Right to lawyer
Since 2001, complainants in rape cases have had an automatic right to their own lawyer paid for through legal aid when an accused indicates they intend bring a section three application. This lawyer can object to the line of questioning or negotiate certain limits on it.
Figures released by the Legal Aid Board following a freedom-of-information request show that over the last five years an average of 30 per cent of rape trials involved questions about a complainant's sexual history. In 2016, the practice was used in 28 rape trials out of the 99 which were scheduled.
In 2015, cross-examination on past sexual history occurred in 42 per cent of rape trials.
Documents seen by The Irish Times show lawyers are advised to tell complainants that successfully fighting a section-three application could lead to any conviction being overturned on appeal.
Since 2010, the State has paid €261,497 to provide legal representation for complainants facing section-three applications.
Mary Rose Gearty is a senior counsel who prosecutes and defends rape cases and has also represented complainants in section-three applications. She said in many cases the reason for it is to establish the credibility of a complainant such as in DPP v GK (2006), where the woman said she was a virgin before an alleged rape and the defence sought to demonstrate she was lying.
However, in other cases the defence uses it as a form of character assassination, Ms Gearty said.
“They are doing it not because it will be relevant to whether or not a rape occurred because they want the jury to know something about the woman’s – and it’s always a woman – prior sexual history in the hope that it will in some way damage her.
“It could be to show promiscuity, it could even be to show the type of sex the woman was having. Anything to try show the jury that the woman doesn’t care too much about her own morality or safety so why should they,” she said.
“Anyone in the business would have to acknowledge that happens. I hope it doesn’t happen too often but I would certainly say it does happen.”
Promiscuity
Research conducted by Senator and Trinity College professor of criminal law Ivana Bacik shows that out of 40 trials studied, a section-three application was brought in 15 cases to show promiscuity on the part of the complainant.
In 16 cases, it was used to show the complainant and accused had had a previous sexual relationship; and in 13 cases it was used to show the victim had made previous allegations of sexual assault.
On two occasions, it was used to show the woman was using birth control, while it was used three times to show the complainants were newly single or unhappy with their current partner.
Senator Bacik also found that judges granted permission to cross-examine on sexual history in 70 per cent of cases where it was sought.
Guidelines for lawyers representing complainants in rape cases advise them to “manage the client’s expectations” when advising them on whether to fight a section-three application.
The whole process is chilling for a victim, to have the most intimate details of their lives exposed before a judge and jury
The document states: “It should be borne in mind, generally speaking, a person convicted by a jury may appeal to the Court of Appeal on the basis that the conviction is unsafe and unsatisfactory. For example the basis on appeal might be that the trial judge erred in admitting/excluding certain evidence.”
The head of the Dublin Rape Crisis Centre, Noeline Blackwell, is worried section-three applications are having a "chilling effect" and are discouraging women from reporting rape.
“The whole process is chilling for a victim, to have the most intimate details of their lives exposed before a judge and jury,” she said.
“If you as a victim are told, as you must be told, that if you take your rapist to court there is a chance that they can at least apply to have your past sexual history heard, that can have a real chilling effect on a person going into court at all.”
Ms Blackwell said the tactic could also be used by rapists to scare victims into not proceeding with a case.
“Perpetrators who know their victims, they will know enough about the victim to be able to humiliate the victim if nothing else and maybe to freeze her out.”
Ms Blackwell said the cross-examinations reinforce “rape myths”, for example that rape can’t occur between partners.
“Even just one instance of sex without consent constitutes rape. And that is what our legal system just doesn’t truly get yet, that consent has to be given on every single occasion.”
Senator Bacik said up-to-date research is needed on how section-three applications are being used.
“It’s clearly disturbing it’s happening in so many cases, particularly when it has been used in an attempt to character-assassinate complainants.”
She said while evidence of complainant’s birth control being used in court is particularly worrying, “you would hope such issues wouldn’t hold much sway with modern juries”.
