Rape victims could be given legal representation in court when their own past sexual experience is under scrutiny, according to an unpublished Government document on sex offences.
But the paper, prepared by officials from the Department of Justice, Equality and Law Reform and due this month, warns that separate legal representation for rape victims in court could prove constitutionally impossible.
The document is the first review of the law on sex offences in 10 years. The section on sexual offences trials, seen by The Irish Times, does not recommend for or against representation for victims. However, its tone will disappoint the Rape Crisis Centre and other groups which have called for it.
"In the light of the problems, including constitutional concerns surrounding the matter," the document says it may be "that separate legal representation for complainants in sexual assault trials creates insurmountable difficulties".
The paper wonders if a case could be made for representation - "if it were constitutionally feasible" - when an application for evidence was made, or a victim was cross-examined about his or her past sexual experience. It invites views on "other means of supporting complainants in the context of the trial or of making the trial process less traumatic for them." The Rape Crisis Centre is researching other European trial systems, and this is expected to be completed in September.
The document also deals with setting up a paedophile register, which was promised by the Minister, Mr O'Donoghue, last year. It raises questions about the kind of offender to be included and access to such a register.
The document rejects the idea of putting the onus of proof on the defendant in a rape case, "to prove that he sought and obtained the consent of the complainant to sexual intercourse". This would carry the risk of serious miscarriages of justice, it says. "Often in such cases it is one person's word against another's with no witnesses and little additional evidence on which to guide a jury."
It also raises the question of the judge's discretion to warn a jury when evidence is uncorroborated.
Views are also "invited" on the need for a judge to be legally obliged to warn juries where there is a long delay between the sexual abuse and the trial.
The document cites the example of adults who may have been abused as children. One expert group has already recommended that a judge should warn juries that the delay should not imply that the victim is lying about the abuse.
The question of whether other sexual offences, in addition to rape and aggravated sexual assault, should be automatically dealt with in the Central Criminal Court is also discussed. Supporters of such a proposal say the change would mark the "gravity of the offence" and facilitate more consistent sentencing.
However, it concludes that sentencing inconsistency could be dealt with under the provisions of the 1993 Criminal Justice Act and invites views on the following questions:
"Is any further change in the law needed in relation to the warning about uncorroborated evidence?
"Is there any need to change the law to provide for a statutory warning in relation to delayed complaints?
"If it were constitutionally feasible would there be a case for having legal representation for complainants in sexual assault trials for the duration of an application to adduce evidence or cross-examine a complainant about his or her past experience? Are there other means of supporting complainants in the context of the trial or of making the trial process less traumatic for them?
"Is there a case for other sexual offences, in addition to rape and aggravated sexual assault, being triable exclusively in the Central Criminal Court?"
