A campaign group for women in the Defence Forces has urged the Government to amend victims' rights legislation to ensure military crime victims have the same legal rights as civilians.
Diane Byrne, spokesperson for the Women of Honour group, says it is "deeply concerning" that victims of crime whose cases are with the Military Police or the Director of Military Prosecutions are excluded from this legislation.
The legislation – the Criminal Justice (Victims of Crime) Act – gives several important rights to victims of crime, including the right to be given reasons if a decision is made not to prosecute a case and the right to have that decision reviewed.
It also entitles a crime victim to be kept informed about significant developments in their case.
While the legislation applies to An Garda Síochána and the Director of Public Prosecutions, it excludes their military counterparts – the Military Police and the Director of Military Prosecutions – which generally have jurisdiction over offences committed on military premises or involving military equipment.
Depending on the circumstances, the military authorities can also have jurisdiction over offences committed by Defence Forces personnel while off duty.
'For the first time, victims’ rights were factored in’
The legislation is largely based on an EU directive, known as the Victims’ Directive, issued in 2012.
When the Irish legislation came into law in 2017, it was generally welcomed for placing victims at the centre of the criminal justice process.
"For the first time, victims had legal rights which must be factored into criminal justice system processes," Dr Susan Leahy, associate professor in law at the University of Limerick, told RTÉ Investigates.
"Prior to this, victims were seen as having interests which had to be accommodated, rather than legal rights to things like information, support and protection."
The Women of Honour group says that crime victims in the military system should be afforded those same rights and protections.
The group has highlighted issues such as harassment and mistreatment – including, in some cases, sexual assault – of women in the Defence Forces.
"Many of these people have suffered serious, sometimes horrific crimes, yet the fact that their perpetrator wears a military uniform means they, as victims, do not have the same statutory rights as everyone else," Ms Byrne said.
"That is simply unacceptable. All victims deserve the same protections and respect, regardless of who committed the crime."
‘You're re-victimised’
RTÉ Investigates spoke with two women, referred to here as Jane and Patricia, who made complaints to the Military Police about the same male Defence Forces member, alleging inappropriate behaviour over a prolonged period.
Four other women also made similar complaints about the man, relating to alleged incidents spanning roughly a decade.
RTÉ Investigates is unable to identify the man or his accusers for legal reasons.
Of the six cases, only one proceeded to a court martial, where a military judge found charges proven against him and ordered his discharge from the Defence Forces.
Jane and Patricia’s cases were among those not pursued, however.
Jane said she gave several interviews to the Military Police and believed her case would be prosecuted, only to be told informally by a colleague that it was being dropped, apparently because the alleged offences were statute-barred. She said the Defence Forces never provided an official explanation.
Seeking clarity, she consulted the Defence Forces Victim’s Information Handbook, which states that victims’ rights are "primarily set out in the Criminal Justice (Victims of Crime) Act, 2017." This wording, she said, gave the impression that those rights applied within the military system.
However, the Defence Forces recently confirmed that this Act does not apply to the military, though they claim to use it as "best practice."
Had a legal review been available to her, she said she would have used it.
"Why do victims come forward? You’re re-victimised," she said. "I'm not blaming the military judicial system, I'm blaming the legal system. It doesn’t give the same rights as outside."
Patricia also made a complaint about the same man, alleging inappropriate behaviour and alleging that he had effectively requested sexual favours in exchange for preferential treatment.
Through Freedom of Information, she obtained part of her case file, which included an internal Defence Forces memorandum acknowledging that some alleged victims in the case had not been provided with information about why their cases weren’t going to a court martial.
The memorandum, from earlier this year, stated that this information "was NOT communicated" to Patricia, but said that this was "in the process of being rectified."
However, as of today, Patricia says that she is still waiting for a formal explanation of why her case was not prosecuted.
In reply to queries from RTÉ Investigates, the Defence Forces said that it could not comment on specific cases but said that "any decision to formally include the Defence Forces" in the Victims of Crime Act would be welcomed.
Political pressure
Meanwhile, Ruth Coppinger TD has taken up the issue on behalf of the Women of Honour.
Last month, during a Dáil debate, Ms Coppinger asked the Tánaiste and the then Minister for Defence, Simon Harris, whether a person abused by someone in the Army would have the same rights as victims in the civilian system.
She pointed out that the Victims of Crime Act applies to the Gardaí, "but not to the Army."
"Will the Tánaiste extend the Act so that people can get information on their cases and have a right to a review if a case is not prosecuted?" Ms Coppinger asked.
Mr Harris told the Dáil that he would "engage" with his officials on the matter and said it "seems logical" to extend the legislation to the Defence Forces.
Speaking to RTÉ Investigates, Ms Coppinger said that if the Defence Forces "is to be a safe space for women and for LGBT+ personnel, it needs full transparency, and it should be covered by the Victims of Crime Act."
She said she is considering tabling a Private Members’ Bill to amend the legislation but said it would be preferable if the government did so.
"I want this done as quickly as possible," she said.
‘There must be certainty for victims’
Earlier this month, Mr Harris wrote to Ms Coppinger, acknowledging that the Defence Forces are excluded from the legislation but noting that "the military authorities advise that best practice dictates that all investigations are fully cognisant of its provisions."
He said there must be "absolute certainty" for victims about which protections apply and that he had asked officials to consider "the most appropriate pathway" to introduce legislation explicitly covering the Defence Forces.
However, RTÉ Investigates has established that the Department of Defence was asked in 2017 whether bodies under its remit – which include the Military Police and the Director of Military Prosecutions – should be subject to the legislation.
In the years since, the law has not been amended to include the military authorities.
The EU directive underpinning the Act defines a victim as anyone suffering harm caused by a criminal offence and applies to "competent authorities" involved in criminal proceedings.
As the Oireachtas considered how to transpose the directive in September 2017, several senators favoured a broad interpretation of "competent authorities", arguing that all State bodies with prosecutorial powers should be covered.
They cited Tusla and the Health and Safety Authority as examples, though the military system was not specifically referenced.
David Stanton, then Minister of State at the Department of Justice, rejected this broader approach. He told the Seanad that this expansion would go beyond the directive’s intent by including agencies that prosecute regulatory breaches rather than crimes with identifiable victims.
However, he agreed to keep the matter under consideration.
In December 2017 – shortly after the Act was signed into law – the Department of Justice wrote to the Department of Defence to say that Mr Stanton was examining whether the directive’s provisions should be extended to additional bodies with prosecutorial functions.
The letter, released under Freedom of Information, noted that some of those bodies "may fall within the remit" of the Department of Defence and invited further discussion.
The Department of Defence did not reply, however.
When asked why it had ignored this correspondence, a Department of Defence spokesperson told RTÉ Investigates that it had engaged "extensively" with the Department of Justice in 2015 and 2016 in an effort to have the legislation expanded to include the Military Police and the Director of Military Prosecutions.
The spokesperson said that the Department of Justice subsequently advised that the directive did not apply to military law offences and that it was not possible to extend the legislation to such offences.
"The requirement for further discussion did not arise," the spokesperson added.
But the spokesperson reiterated that the Tánaiste had asked officials to consider providing "appropriate legal underpinning" in the case of victims where criminal offences arise in the military justice system.
