Fine Gael Seanad Leader Regina Doherty has produced new legislation which would make it much harder to provide character references in court for convicted sex offenders. Under her proposal, such references would now have to be provided under oath and would be subject to cross-examination by the prosecuting barristers. Neither of these are the case at present.
It is a well-intended piece of legislation, intended to reduce the number of occasions when a victim of a sex crime must listen to various pillars of the community extolling the virtues of the person convicted of an attack on them, and arguing for a more lenient sentence. It is also entirely misguided, and insufficient.
The correct approach, in this instance, would be to ban such references from being offered into evidence at all.
It is important, here, to understand specifically what we are talking about: In the course of defending a person accused of a sex crime, or indeed any crime, the defence has a perfect right to introduce evidence of that person’s good character. That may well be relevant to a jury considering whether there is reasonable doubt: Is this the kind of person who would do something like this is a perfectly human question, especially where the evidence is circumstantial, or it is one person’s word against another’s. That, here, is not what we are talking about.
The references Doherty’s bill seeks to amend take place after a person has been convicted. They are intended purely to sway the Judge in the matter of sentencing: He’s a good family man, Judge, from a good background, decent parents, comes from good stock.
The point of these statements is to try to ensure that a person who has been convicted of a serious crime gets a lesser sentence than somebody who had committed an identical crime, but did not have a person of stature to vouch for the “fact” that they are of good character. The whole thing, when you think about it, is obscene.
After all, by definition, a person who has been found guilty, beyond reasonable doubt, of a sex crime is, by definition, not of good character. It does not especially matter if somebody was a good family man, or pillar of the community, if they also committed a serious sexual assault, or a rape. All that that proves is that the community in question did not know the criminal nearly so well as they had imagined.
Nor are these statements necessary: A sentencing judge, after all, will have sat through the entire trial. They will have heard all the evidence, and facts, and read the background materials. Generally, they will know more about the defendant, or convicted person, than the jury does – though of course they are limited in terms of what facts they may “take into account”.
So, what purpose do these statements serve? Senator Doherty is absolutely right when she says that they have the potential to re-traumatise victims. It’s not immediately obvious what benefit to society they provide.
Of course, it is true that victims also get to make their own statements: Victim Impact Statements are a pre-trial accounting, to the court, of the impact the actions of a criminal had on their lives. These statements, by contrast, do serve a purpose: It is about the only time in a criminal trial where a victim of a crime can be heard, on their own terms, and get to tell their story without cross-examination by lawyers. They add a degree of heft and justice to proceedings, by their form: They amount to a recounting in public of a person’s crimes, and a demonstration that justice for those crimes will be done.
Character witnesses, by contrast, do no such thing.
Senator Doherty’s bill does not really accomplish much: Making somebody swear an oath to tell the truth before they say that somebody was of good character is hardly likely to dissuade somebody who genuinely believes a convicted person was previously an upstanding citizen. Nor is cross-examination in such circumstances likely to be very severe. The idea, presumably, is to discourage all but the most zealous character witnesses – but who but the most zealous would enter a courtroom anyway, to testify about what a good fellow a rapist is?
It would be better, and cleaner, for all involved, just to outlaw this kind of carry on altogether.