The Government has approved the publication of a bill central to its zero-tolerance plan to tackle domestic, sexual and gender-based violence.
The Criminal Law (Sexual Offences and Human Trafficking) Bill 2023 will strengthen the law around sexual offences and improve protections for victims of sexual offences and human trafficking.
The legislation, which will be debated in the Oireachtas following the summer recess, will see protections strengthened for victims in sexual offence trials where a character reference is provided at a sentencing hearing.
Currently, if a witness is called to court to provide character evidence, this evidence is given under oath. However, written testimonials are not sworn.
The Criminal Law (Sexual Offences and Human Trafficking) Bill provides that when a person has been convicted of a sexual offence, character references presented at sentencing must be made via oath or affidavit.
This, according to Minister for Justice Helen McEntee, will ensure that the person providing the reference swears to the veracity of their statement and can be called before the court for cross-examination.
In effect, it will mean character reference letters will no longer be able to be read out in court unchallenged, if warranted.
The purpose of including this provision in the bill is to protect the victims of sexual crimes from further traumatisation during the sentencing hearing, according to the minister.
The legislation also strengthens the law around consent.
At present, a person can be found not guilty of rape if they honestly, but mistakenly, believed that they had the consent of the victim.
This means the alleged perpetrator can claim they are not guilty of rape because they honestly but mistakenly believed they had consent
However, this will change under the Sexual Offences and Human Trafficking Bill.
The question now will be whether the belief is one that a reasonable person would have held in the circumstances, rather than whether such belief was honestly held.
The belief must be "objectively reasonable rather than subjective".
Where the question of reasonable belief arises in a trial, the jury must have regard to the steps, if any, taken by the accused to ascertain whether the victim consented to the intercourse.
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The bill will implement a number of the legislative reforms recommended in the O'Malley Review of Protections for Vulnerable Witnesses in the Investigation and Prosecution of Sexual Offences, which was approved by the Government on 4 August 2020.
Professor Tom O'Malley identified gaps in the statute book where anonymity was not guaranteed for some offences.
Therefore, the majority of his recommendations related to the anonymity of either the victim or the accused.
Key reforms in 'Supporting a Victim’s Journey’, which stemmed from the O'Malley report, are included in the bill.
They include separate legal representation for victims of sexual assault if there is an application to question them on their previous sexual experience.
If this application is granted, the barrister representing the victim will continue to represent the victim during the questioning.
Anonymity for victims in all trials for sexual offences will be ensured, and anonymity for the accused will be provided for certain sexual offences.
The bill also provides for a revised National Referral Mechanism (NRM) to help identify and support victims of human trafficking.
At the moment, An Garda Síochána is solely responsible for identifying victims of human trafficking but under the new NRM, other relevant departments and agencies will be designated as "competent authorities" to identify victims.
It will allow civil society organisations supporting victims of trafficking to be designated as Trusted Partners.
Finally, the bill will give effect to recommendations by the Defence Forces Independent Review Group.
The group recommended amendments to the Defence Act 1954 to ensure that persons subject to military law who commit sexual offences in this jurisdiction will be dealt with by An Garda Síochána and the civilian courts rather than by court-martial.
Minister McEntee, who worked with senators Regina Doherty, Lisa Chambers and Pauline O’Reilly on the legislation, has received Cabinet approval for the changes which will be examined across both houses of the Oireachtas from September.
