Order protecting rapist’s identity cannot be altered
JUDGE URGES PROSECUTING LAWYERS TO CLARIFY VICTIM’S WISHES AHEAD OF SENTENCE HEARINGS IN FUTURE
A HIGH COURT judge has said he cannot change a order he made preventing the publication of the names of a convicted child rapist and his victim.
Mr Justice Micheal White said that the court made the order at the wishes of the Director of Public Prosecutions (DPP). When the DPP applied a week later on behalf of the victim to waive her anonymity, lawyers for the 49-year-old Wicklow man said there was no basis in law for a victim to do this.
The publication of the accused’s name could identify the victim in this case because they were neighbours so the victim would need to waive her legal anonymity in order for the rapist to be named.
In his ruling last Thursday morning at the Central Criminal Court, Justice White said that the defence view that the court does not have jurisdiction to allow a complainant to disclose her identify was incorrect.
But he said the application by the DPP in this specific case came after the trial and the court no longer had or has a mandate to alter its order made during the trial.
The man was convicted of repeatedly raping a neighbour’s nine-year-old child in the late 1980s after a trial last March. At his sentencing hearing in May, Mr Justice White imposed a seven-year sentence.
At that time the judge continued a court order, made during the trial, preventing the publication of the identity of both parties. He said he made this order ‘at the request of the DPP and the complainant’.
Speaking outside of court the victim told reporters she was never asked by the DPP at the sentencing hearing about her wishes and did not know she had to address the question of her anonymity.
In his judgement, Justice White said the victim of a sexual offence is entitled to tell third parties the identity of the offender but that ‘ the law renders it a criminal offence to publish or broadcast any matter governed by...the Act’.
He said that ‘while no actions may result from the decision of a victim to dispense with anonymity’ he believe it would be prudent for prosecutors to clarify the wishes of the victim and to make them known to the court.
He said the court was not making any ruling on this issue in this particular case because it’s mandate was expired.
The man first raped his victim during a game of hide-and-seek in the late 1980s, when she was aged approximately nine years old and he was 17 years old. He raped the girl three more times during that summer and told her not to tell anyone as it was ‘ their secret’.
The victim came forward to make a statement in 2013 and there were a number of trials which collapsed before the man was convicted.
Defence counsel Colman Fitzgerald SC said that it was an offence for anyone to publish the identity of a rape complainant and there was nothing in the law that permits a complainant to discard this prohibition.
The court heard that the practice of complainants being identified began when rape survivor Lavinia Kerwick waived her anonymity in July 1992. Mr Fitzgerald said he could not find any legal basis ‘for what I acknowledge is routinely done’.
We have been unable to print the initial court report until this week because of the issue of identifying the parties involved.