One of the things about living in a consensus-based political culture that prides itself on compassion is that it becomes almost habitual for society to approve of, and wave through, ideas that sound compassionate on their face.
Deputy Ruth Coppinger has come up with just such an idea: The ban, in rape and sexual assault cases, of counselling notes of “victims” being used in rape or sexual assault trials.
I have put the word “victims” in inverted commas for a reason. That is that until a trial is concluded, and somebody has been convicted of an offence, a person is not a victim formally in law. They are a complainant. Or an alleged victim. Or an accuser, if you prefer. They are a person who has made a very serious criminal complaint against another person, who we generally refer to as the “accused”.
In criminal trials, the accused has the presumption of innocence. That is not a meaningless phrase: They are literally innocent of any crime until such time as a jury of their peers is convinced beyond any reasonable doubt that they have committed one.
What’s more, the accused has much to lose: Their very liberty is at stake, as is – particularly in sexual trials – their reputation and the course of the rest of their lives. Innocence or guilt is an existential question for the accused person.
This brings us to the fundamental question at stake in a proposal to restrict the use of counselling notes at trial. Let us assume for a moment that there is something in those notes that casts doubt on the guilt of the accused person: Why shouldn’t that accused person have the right to see those notes, and to produce them in evidence? Why should we deny an accused person access to evidence that potentially exonerates them, or even raises reasonable doubt about their guilt?
It is not hard to imagine such a scenario: Imagine a situation where an accusation of rape has been made, but the alleged victim has confided to her counsellor that she thinks that something she said on the day of the incident might have made her attacker believe she consented. This situation will clearly not arise in the majority of such trials, but it is not inconceivable.
Now here’s what Coppinger’s bill mandates:
“In criminal proceedings for a relevant offence the content of counselling records shall not be disclosed to an accused, the counsel of the accused, the prosecution or to a court.”
The moral imperative behind this bill is the notion that for somebody who has suffered a serious sexual assault, the recounting of their private counselling notes in a criminal trial might be traumatising and upsetting. That is, of course, true.
But something being upsetting and traumatising is not good enough reason to ban it when the life and liberty of a whole other person – who remains legally innocent – is at stake.
What’s more, if reducing trauma for alleged victims is the objective, where do we end this? Is there not a similar argument for preventing accused persons from even testifying in their own defence? I mean, clearly it will be traumatic for a person who has been raped to hear her attacker – maintaining his innocence – testifying from the witness box that “she wanted it”. By definition, the prosecution of a rape or sexual assault case is traumatic because in order for the offence to be proven, the details of it must be recounted.
If we wanted to remove the “trauma” from rape trials, we would have to simply abolish trials altogether, and simply assume guilt.
This particular measure is particularly insidious, however, because it goes right at the basic right of a defendant to make a case in their own defence.
What’s more, there is already protection against exploitation. A Judge presiding over a trial is perfectly within his rights to refuse to allow evidence to be heard if he or she feels that it is irrelevant to the proceedings, or prejudicial to them. As the current system is designed, the prosecution is within its rights to challenge the production of counselling records in a trial by the defence if it believes those records to be irrelevant and/or prejudicial to the case.
What the Coppinger legislation does is to remove all discretion from a Judge in these matters.
Now, imagine for a moment a case where a victim has confided to a counsellor something that entirely contradicts what they told investigating Gardai. Perhaps something related to consent.
Almost every fair-minded person would, I think, consider this to be important evidence. With Deputy Coppinger’s law, it will be specifically excluded from a trial. And there would be nothing that a Judge, or an accused person, or even the media, could do about it. Because they will never know: The only person who will know is the counsellor, who will be obliged to stay quiet.
If there are miscarriages of justice on foot of this law, we will likely never know. That is what makes it so insidious.
Accused people in a fair society have a right to defend themselves fully in court, in a fair trial, against charges made against them. Deputy Coppinger wishes to take that right away. It is high time she was opposed.