Persons providing character reference for rapist could face cross-examination

A person who provides a character reference for someone convicted of a sexual offence such as rape can be cross examined in court, under proposed new laws.

This is one of a number of changes in the Criminal Law (Sexual Offences and Human Trafficking) Bill 2023, which aims to strengthen the law around sexual offences and improve protection for victims of human trafficking.

Justice Minister Helen McEntee brought a memo to Cabinet on Tuesday detailing her plans under the new legislation.

The proposed Bill outlines that for someone who gives a character reference at a sentencing hearing, the reference must be given on oath or via affidavit.

Currently, if a witness is called to court to provide character evidence, this evidence is given under oath. However, written testimonials are not sworn.

Under this Bill, 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.

Under the reform of rape laws, the accused will have to convince a jury they took steps to get consent from their accuser. At present, a person can be found not guilty of rape if they honestly, but mistakenly, believed they had the consent of the victim.

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 under the proposed law.

Ms McEntee has said the Bill will “strengthen the law around consent in rape cases, requiring that an alleged perpetrator must demonstrate ‘reasonable belief’ that they had consent and removing the current defence of ‘honest belief’. She added: 

The use of character references can often cause further trauma for victims and it is clear to me that we need stronger rules around how they can be used in court.

The bill also sets out to deliver on other key reforms including separate legal representation for victims of sexual assault if there is an application to question them on their previous sexual experience, providing anonymity for the accused for certain sexual offences, and ensuring anonymity for victims in all trials for sexual offences.

The legislation will also implement recommendations by the Defence Forces Independent Review Group (IRG), including 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.

Child maintenance 

Social Protection Minister Heather Humphreys received Cabinet approval to draft a new Bill on foot of two recommendations of the Child Maintenance Review Group established in 2020 to examine child maintenance.

It is proposed to exclude maintenance payments from the means test for social welfare payments and to discontinue the legislative provisions on recouping contributions towards the cost of One-Parent Family Payments from liable relatives.

 The changes are expected to expand the number of one-parent households that qualify for social welfare payments and lead to increases in payments.

Housing Minister Darragh O’Brien sought cabinet approval to draft legislation that will underpin the right to first refusal to tenants facing eviction.

If, after 90 days, no bid is made by the tenant, or the landlord does not accept the bid, the landlord may proceed with a sale on the open market. Any sale that does not comply with the new measures would give the tenant the ability to seek redress through the Residential Tenancies Board (RTB). Significant damages of up to €20,000 can be awarded to the tenant through a RTB dispute determination order.

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