Rape victim anonymity comes under spotlight after court ruling

By November 18, 2019 No Comments

Last May the Central Criminal Court handed down a seven-year prison sentence to a man who had turned the life of a Wicklow schoolgirl into a living nightmare. Sentencing the 49-year-old man, Justice Michael White said it was the cause of some embarrassment to the court that it had taken so many trials for her to get justice.

It had taken three trials and a trip to the Supreme Court before a jury was allowed to reach a verdict. Last March it found him guilty of repeatedly raping and molesting the then nine-year-old child in the late 1980s.

At a sentence hearing last May, the rape survivor told the court of how the abuse had affected every aspect of her life. She explained that when a garda detective who was investigating allegations around her abuser contacted her in 2013, she had to think long and hard about “going back” there.

She said she always wished she had done something about bringing her abuser to justice. What she did not realise in May was that her six-year fight to have her abuser face justice still had one hurdle to cross.

That afternoon she telephoned this journalist to check that the press would be publishing the name of her rapist. Her main motive in taking the case was to identify him to help any other child victims and protect future potential targets.

What followed that phone call shines a dim light on the approach the DPP and the judiciary have increasingly taken to the role of the press in reporting on these types of cases.

The woman was in court when Justice White continued an order made during the trial preventing the publication of the identity of the man because of his connection to the victim. At the request of the DPP he ordered that neither the identity of the man or his victim can be published.

The woman has told this reporter that she was not consulted about her wishes and did not realise how this order would affect her.

Court order
The court order meant that when the woman contacted the press indicating she wanted to waive her anonymity so her abuser could be identified, the press could not report the case according to her wishes. To do so would be in breach of a court order.

The press notified the court, and was informed that the DPP would need to bring the matter back to court.

In fact the judge’s gagging order was completely unnecessary, both in this case and many other cases where the DPP and courts have sought to tell the press what they can publish. There are already very strong laws, set down by the Oireachtas, which restrict reporting and protect victims as well as men accused of rape but not convicted.

The late and often controversial Justice Paul Carney was known to dismiss lawyers who raised concerns about reportage of sexual offending with a confident assertion that the media knew its responsibilities and knew what it would face if it got it wrong.

At the case’s next hearing the man’s lawyers made the argument that there was no legal basis for any rape victim to waive their anonymity, which seemed to take the court by surprise.

As it turned out Justice White ruled on Thursday the defence had no case, and its interpretation of the law was incorrect.

That means this judgment will not have any adverse effects on sexual assault victims who wish to waive anonymity in order to name their abusers. However, the judge called for the DPP to clarify the victim’s wishes before they leave the court room in any future case.

In the main, prosecution lawyers in such cases are usually extremely helpful to the press in clarifying the victim’s wishes in court. It just didn’t happen in this case.

Procedural decision
Justice White said that because the request in this case to roll back his gagging order came a week after the sentencing had concluded the court has no jurisdiction anymore in the matter. He described this as a “procedural decision”.

Yet some legal sources have said his decision could be open to challenge, and it is possible that the DPP may seek to appeal this ruling. One senior barrister said that the request was ancillary to the sentence, and therefore it could arguably be open to variance and that other judges might take this view.

There is no doubt that senior staff at the DPP will be taking a long hard read of the decision.