Open letter to Minister for Justice from Sarah Grace

After deciding to speak publicly about her own experience in the Irish Times and on RTE Radio 1's Today with Claire Byrne show, solicitor Sarah Grace has been invited to meet Minister for Justice Helen McEntee on 30 March to discuss her experience of the courts system as a sexual violence survivor, as well as her recommendations for improvements.

Ms Grace is calling for legislative changes on a number of issues which are currently deterring sexual violence victims from seeking justice, as well as the introduction of Rape Shield Laws in Ireland.  ('Rape shield law' refers to legal limits on introducing evidence or cross-examining rape complainants with reference to their past sexual behaviour.)

Ms Grace's letter comes 20 months after she survived a violent sexual attack by a stranger who broke into her apartment while she was asleep on 17 July 2019. Her attacker was sentenced on 1 March 2021 to 10 years’ imprisonment for aggravated assault and burglary, among other charges.

The text of Ms Grace's letter is below and is also reported in The Irish Times.

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Open Letter to Helen McEntee TD, Minister for Justice

Call for Changes to the Justice System for Sexual Violence Victims

23 March 2021

Dear Minister

I want to thank you for reaching out and arranging a meeting with you to discuss my recent experience as a victim of sexual violence and the necessary improvements to our justice system.

I am hugely encouraged by your responsiveness, as well as the excellent initiatives already led by your Department in this area. ‘Supporting a Victim’s Journey' (the Strategy) is highly welcome, and I believe will create genuine change in supporting sexual violence survivors holistically throughout the criminal justice process. The Criminal Procedure Bill published by your Department is also greatly needed to address the stress on victims due to the significant delays and disruptions in criminal trials.

Despite these efforts however, there are still major shortfalls which result in victims of rape and sexual violence being failed by our justice system. I have outlined below a suggested agenda of the key issues which require urgent change, by order of priority:

1. Counselling Records: It is unacceptable that the notes from victims' private therapy sessions are disclosed in trial. Recommendation 5.6 of the Strategy on flagging this to victims is a step in the right direction, however we must go further and cease this practice entirely. As I understand it, disclosing the victim’s therapy records is not permitted for other criminal offences in Ireland, and the purpose appears largely (if not exclusively) to discredit the victim. Sexual violence victims have experienced unfathomable trauma, and therapy is critical to their recovery. The prospect of disclosing such private and sensitive records to the accused and their lawyers undoubtedly contributes to the alarming drop-off rate between sexual offences being reported to the Gardaí and those actually proceeding to trial. This is a fundamental denial of access to justice. It can also deter victims from seeking the therapy they desperately need, sometimes for years, which can lead to devastating life-long impacts on their mental and physical health. These intrusive laws and practices must be repealed urgently.

2. Use of a Screen: Victims should give evidence by default behind a screen or by video-link in all rape and sexual violence cases. I personally found the process to obtain approval for the screen immensely traumatic. It was not possible to confirm approval until the trial began, which was a tremendous source of stress. It is also absurd that the victim must sit within
touching distance of the accused while recounting extraordinarily painful trauma inflicted by that person. Due to fears for my safety and PTSD from the ordeal I endured, I do not believe I would have been physically or mentally capable to give proper evidence without the screen, which would have denied both the judge and jury evidence to carry out justice. Given the nature of a sexual offence, it is in both the victim and the accused’s interests that evidence be given in a less adversarial manner. The screen in particular is a very light and portable device, and could easily be deployed across all courts in Ireland at a minimal cost.

3. No Legal Representation: Victims are the key witness in trial. They have a huge burden of responsibility on their shoulders as without them, there is no case to prosecute. Unlike the accused however (who is represented by an entire legal team), they must go on the stand and be cross-examined, about the most private and traumatic event in their life, in front of a room full of strangers. Yet victims are not allowed to have a lawyer to help them prepare for trial, or defend their interests throughout the incredibly complex criminal justice process. While I understand that victims cannot be coached, there is a stark difference between tellingthe victim what to say and allowing a highly vulnerable person to mentally prepare for the ordeal that is the trial. It is entirely unfair that victims be treated as witnesses, and misrepresentative of reality as they give a Victim Impact Statement at the end of trial. I appreciate this will require a more substantial overhaul of our current legislation, yet this must change if we are to call ourselves a modern and victim-friendly justice system.

4. Cross-examining the Victim: Provisions allowing to question a victim in certain cases about their sexual history, or allowing the accused to personally cross-examine the victim, are barbaric and have no place in modern laws. Many other common law jurisdictions, including Australia, Canada and the USA, have introduced Rape Shield Laws excluding a rape or sexual violence victim’s past sexual behaviour as evidence in trial. It is high time we joined these countries and introduce our own Rape Shield law.

5. Training for Barristers: I greatly welcome Recommendation 9.1 of the Strategy on training of lawyers and judges, and I believe this should be fleshed out in more detail. In particular, training should target unacceptable and disrespectful behaviour adopted by defence lawyers when cross-examining a sexual violence survivor, including aggressive posturing, intimidation, using highly insensitive language, introducing a victim’s underwear in court or walking out of the courtroom during the victim’s reading of her or his Victim Impact Statement.

6. Definition of Rape: The “section 4” rape definition is outdated, artificial and hurtful to victims. It is illogical that non-consensual penetration by a handheld object amounts to rape, but by a finger, for example, does not (particularly when the latter involves the added layer of trauma that an object would not, such as skin-on-skin contact and the possible need for preventative HIV treatment). Rape should include all non-consensual penetration.

7. Victim’s Anonymity: I am encouraged by Recommendations 3.1-3.7 of the Strategy on the anonymity of victim. However, in my case, I was personally identified through articles published in the media despite not being named, and there have been other recent examples of this. This also acts as yet another deterrent for victims to seek justice. I would suggest that victims should be consulted in advance on which facts of the case can identify them, and which parts of the Victim Impact Statement they do not want publicly reported on.

Sexual violence affects us all. In Ireland, 42% of women and over one in five men will become a victim of rape or sexual violence in their lifetime (SAVI 2002). Our justice system should be designed to keep these victims at the forefront and centre of proceedings, and not an after-thought at trial.

Ireland may be small, but our actions in recent years have been mighty. We have blazed a trail forward in fighting for fairer and more progressive laws, being the first nation to legalise marriage equality by popular vote, and tearing down outdated laws on divorce and abortion. There has been a huge shift in public opinion, and we now have an opportunity to act. I am hopeful that this can become yet another area in which we lead the way and can be proud of the changes achieved.

I look forward to meeting you on 30 March, and remain at your disposal in the meantime.
Yours sincerely

Sarah Grace
Solicitor