Vic­tim must wait to hear if rapist can be named

Wicklow People (West Edition) - - NEWS -

LAWYERS FOR a con­victed child rapist have told a High Court judge that rape vic­tims are sub­ject to crim­i­nal prose­cu­tion if they pub­lish their own iden­tity.

Last March, a jury con­victed a 41-year-old Wick­low man of re­peated sex­ual at­tacks on a neigh­bour­ing child when she was aged ap­prox­i­mately nine.

The man had pleaded not guilty to four counts of rape and two counts of in­de­cent as­sault in Co Wick­low on un­known dates be­tween 1987 and 1989. Mr Jus­tice Micheal White, sit­ting at the Cen­tral Crim­i­nal Court, im­posed a seven-year sen­tence on a date in May.

At that time he con­tin­ued an 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 Di­rec­tor of Pub­lic Pros­e­cu­tions (DPP).

Last week, lawyers for the DPP brought the case back be­fore Mr Jus­tice White and told the court that the woman now wished to waive her anonymity so her abuser could be named. De­fence coun­sel Col­man Fitzger­ald SC in­di­cated to the court that he in­tended to con­test the ap­pli­ca­tion on the ba­sis that there is no ba­sis in law for the anonymity of com­plainants to be set aside.

At a full hear­ing last Thurs­day, Paul Mur­ray SC, for the DPP, said the rel­e­vant law is the 1981 (Rape) Act which pro­vides for the anonymity of a rape ac­cused dur­ing trial and up to and un­til con­vic­tion.

He said the act states that ‘after a per­son is charged with a rape of­fence, no mat­ter likely to...iden­tify a woman as the com­plainant in re­la­tion to that charge shall be pub­lished’.

He said after con­vic­tion the anonymity af­forded to a rape ac­cused au­to­mat­i­cally falls and he can be iden­ti­fied.

He told Jus­tice White that he did not be­lieve a trial judge had to make an order in a sit­u­a­tion where it was ‘clear on the face of it’ that dis­clos­ing the name of the con­victed man would tend to iden­tify the com­plainant.

‘The me­dia can­not do so if to do so would con­tra­vene the pro­tec­tion af­forded to the com­plainant,’ he said.

He said the act places a re­spon­si­bil­ity on the me­dia and pro­vides for penal­ties and said an of­fender can­not be named by a me­dia act­ing re­spon­si­bil­ity if to do so would con­tra­vene sec­tion 7.

He said it would be re­mark­able if a vic­tim of sex­ual as­sault sim­ply has no right to waive their anonymity.

He said if a per­son did go pub­lic in breach of the act, he didn’t think there was any le­gal sanc­tion.

Mr Fitzger­ald replied that he dis­agreed and said that the law makes it an of­fence for any­one to pub­lish the iden­tity of a rape com­plainant.

‘There is noth­ing there that per­mits the com­plainant to dis­card the prohibitio­n of [the Act],’ coun­sel said.

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’.

Cit­ing a ju­di­cial re­view taken by In­de­pen­dent News­pa­pers on the law­ful­ness of re­port­ing re­stric­tions im­posed by Judge Mary Ellen Ring in Oc­to­ber 2016, Mr Mur­ray said that the High Court ruled that the re­stric­tions ought not to have been con­tin­ued after the men were sen­tenced for sex­ual of­fence.

‘The con­tin­u­a­tion of the order... was not war­ranted by the ne­ces­sity to en­sure a fair trial or to pro­tect the [de­fen­dant’s] rights. There is no ev­i­dence to sug­gest that the preser­va­tion of his iden­tity post-con­vic­tion was nec­es­sary to en­sure the preser­va­tion of the com­plainant’s iden­tity un­der s. 7 of the Act.’

Jus­tice White said the ap­pli­ca­tion had raised sig­nif­i­cant is­sues for the court and sig­nif­i­cant is­sues as to whether judges should be say­ing some­thing dur­ing the course of these tri­als.

He said he would give a writ­ten judg­ment on June 28 next and asked the DPP and the de­fence to make writ­ten sub­mis­sions by June 10 and June 19 re­spec­tively.

The man first raped his vic­tim dur­ing a game of hide and seek 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.

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