The Supreme Court yesterday ruled (6 agreeing, though for different reasons, and 1 dissenting) that the constitutional right to reasonable access to a lawyer does not extend to a right to have a solicitor present during Garda interviews. In May 2014 the DPP had instructed gardaí to permit solicitors to attend interviews where requested, stemming from the fact that Irish and European jurisprudence and regulation was moving in that direction. There had not, at that point, been a ruling that there was such a right under the Irish Constitution, and Ireland has not opted into the EU Directive on Right of Access to a Lawyer in Criminal Proceedings. However, it had been strongly indicated in obiter statements in the case of DPP v Gormley and White that this was possible. The decision in Doyle indicates that Irish constitutional law has not reached that point, not yet at least. Continue reading “The Right to Legal Advice in the Garda Station: DPP v Doyle”
In the past few days two alarming stories have emerged pertaining to the response of the criminal justice system to rape allegations in Ireland. Both, if accurately reported, provide further evidence of the failure of the Irish system to respond appropriately, in a way which respects the rights of victims satisfactorily. Continue reading “Rape and the Criminal Justice System”
Minister Frances Fitzgerald stated in the Seanad last week that she is “committed to delivering a sea change in the oversight of policing.” At the core of the reform package which will supposedly deliver this is the Garda Síochána (Policing Authority and Miscellaneous Provisions) Bill 2015 and the soon to be created Policing Authority. She has stated that this body Continue reading “Politics and The Policing Authority”
Jennifer O’Connell wrote for the Irish Times on Saturday that the Dwyer trial has forced light onto the darkest part of Irish society. More than anything, I hope it forces us to confront the true nature of violence against women in Ireland.
This trial was about a misogynist’s criminal desire to control, dominate, harm and kill a woman. Continue reading “Graham Dwyer and Violence Against Women”
As of this week there have been 23 arrests since the protests in Jobstown over Irish water in mid-November (as well as the jailing of 5 individuals for contempt of court in related disputes). Of concern seems to be the method of the arrest, more than the arrests themselves. Accounts have been presented of up to 10 gardaí arriving in pre-dawn raids to homes to arrest individuals, some as young as 16 and still in school. Some commentators have mooted that this strategy can be appropriate when police believe resistance and the gathering of a crowd are possible. That analysis, however, involves a number of assumptions: that those involved are more likely than other arrestees to make a scene and that the surrounding community will react in a particular way. This, to my mind, is an issue of stereotyping to which I’ll return. Continue reading “Political Policing of Protests?”
There is no doubt that 2014 was a difficult year for policing in Ireland. By policing, I refer not just to an Garda Síochána but to all the agencies of the state involved in policing. Not a month has gone by without some new headline revealing more inappropriate activities and responses. A quick look at the website of the Garda Review reveals the extent of disquiet felt within the service. Continue reading “Policing in 2014: Annus Horribilis?”
Last summer the Government announced that a review panel of barristers was being tasked with reviewing over 200 cases in which Garda misconduct or failures in Garda investigation were being alleged. Recently, the Minister confirmed that the number of cases being reviewed has now risen to 305.
Seven barristers (two senior counsel, five junior counsel) have been appointed to undertake this task. By early November they had considered 140 cases, so it is clear that its work will continue well into the New Year. The individual determinations are not going to be published though some leaks have begun to appear in Irish newspapers (The Sunday Times reported last weekend that the review into the investigation of the death of Fr Molloy found no wrongdoing). Continue reading “The Accountability of the Criminal Justice System”
The General Scheme of the Garda Síochána Amendment Bill provides for the establishment of a Policing Authority for Ireland. This legislation is the result of a Government commitment earlier this year to establish an independent authority which was followed by a consultation process and a consultative forum held in Dublin last summer. This piece is a very initial comment on what’s proposed in the Bill, with further analysis to come. Continue reading “Ireland's Policing Authority”
One of the features of the Miss Y case that makes it particularly difficult to bear is that Miss Y, like Miss X all those years ago, was pregnant as a result of rape. According to the Rape Crisis Network Ireland, in 2011 90 women in Ireland became pregnant as a result of rape. We feel immensely sympathetic to those women, who were forced to have sexual intercourse against their will and are resultantly pregnant. We can all imagine the intense dilemmas that carrying and then parenting the child of a rapist would generate. Some of us may also consider how these women have, in the act of rape, been denied all power, control and autonomy over their body by their rapist. Not only should these women not have parenthood imposed upon them, but, we might believe that these women should, as part of their healing from this trauma, be able to reassert that power, control and autonomy over their body and their life. (See here for a further discussion of the survival of rape trauma syndrome.)
The Irish Times tells us today that almost 70% of people they surveyed support liberalising rape laws to permit it where the individual has been raped. This reaffirms what other studies over the last 18 months have found in Ireland. (See here, here and here) As it stands, these women can only access abortion if their life is at risk and even then, as Miss Y’s case so vividly displays, it can be even more complicated. This summer, while Ireland was examined by the UN Human Rights Committee, the chair, Sir Nigel Rodley, described our law’s denial of abortion to women who have been raped, as treating women “as a vessel and nothing more.”
For many, implementing a legal framework which would permit abortion where the individual is suicidal, has been raped, or knows that there is a fatal foetal abnormality is a moderate, acceptable response to the recognition that our current laws are ineffective or even cruel. In this piece I want to reflect on what a rape exception would look like, whether it is workable and whether it is indeed the answer to Ireland’s problem.
The first question to ask is when exactly would a rape exception be permitted? By this I mean to refer to the fact that unfortunately there are those who believe that some rapes are more serious than others, and indeed that in some instances the woman is not entirely blameless (Susan Leahy has discussed these issues at length here). It is all too easy to imagine that a debate on a rape exception in Ireland might generate discussion which centres on a hierarchy of rape, effectively distinguishing between the woman raped by strangers down an alley, as opposed to the university student who is raped by a man she was willingly kissing earlier that evening, when both had consumed alcohol. While many have put substantial effort into ensuring that all recognise that both of these scenarios constitute rape, and that women are never ‘asking for it’, there will undoubtedly be those who will suggest that a rape exception should not apply in both scenarios. Even permitting such a debate to be had will be harmful to many women, who may feel that their experiences of rape are being denigrated by society.
The second question relates to time limits. Will we be conscious of the highly traumatic nature of the situation of the woman when determining time limits? Ignorant assumptions, like ‘if you were really raped you’d report it and seek a termination immediately’, led, a number of years ago, to a proposal in Pennsylvania to restrict abortion to rape victims who reported the crime within 72 hours. Such an approach fails to acknowledge the shock and trauma which many victims experience in the aftermath. It denies space and time for a person to make autonomous decisions such as who to share their experiences with, and when. A number of countries have turned this discussion on its head, permitting extended periods for abortion in circumstances of rape. Latvia, for instance, permits abortion up until 28 weeks in circumstances of rape, longer than their usual 24 week time limit. I will argue below that if there is to be any kind of rape exception, it should be to permit it in extended circumstances such as these.Perhaps both of these issues can be overcome with relative ease: the exception would apply in any circumstance which might be considered rape and, as a minimum, be permitted as long it is reported within the period in which an abortion is deemed lawful.
The third question is where perhaps this becomes most practically taxing: how would a rape exception be enforced? As a minimum the woman would have to report the rape to someone and at least one person would have to be satisfied to a certain degree that someone raped her. This generates two subsequent questions: who should they report to and what level of satisfaction will be required. Given that the foundation of the exemption is that the sexual intercourse was criminal, the police seems like the most obvious recipient of any such report. Perhaps, if the Irish suicide exception is anything to go by, we would require a number of people to verify her claim. Possible professions that we might seek to be satisfied are police, lawyers, doctors, psychologists. All within a certain deadline.
Irrespective of resultant pregnancy, we already know that women are very slow to report a rape to an official. Official figures show that only 30% of rape victims reported the crime to the police in 2011. There are many reasons why women chose not to report rape: they do not wish to relive the trauma of their ordeal by telling the police, they fear the police will not believe them, the rapist is known to them and they cannot bear the possible repercussions, they do not wish to endure the trial, they do not believe that the rapist will be convicted. Indeed, just 7% of rapes report to the gardaí result in criminal sanctions, which represents just 2-3% of all rapes in Ireland.
Clearly women do not feel sufficiently supported, protected or believed by the criminal justice system and those figures suggest they are correct to feel that way. And that is without the additional trauma of this crisis pregnancy. Should a woman be told that she must satisfy the police and possible lawyers, judges or psychologists that she was raped in order to secure an abortion, it is likely that those who were brave enough to come forward would be seriously re-victimised by their experiences. It is also likely that many wouldn’t come forward: they may risk breaking the law and accessing abortion pills, they may try and scrimp money together to make the lonely journey to England for an abortion or against their express wishes, carry the child to term. None of these options aid these women.
To what standard would they have to satisfy these people? The extreme option is to require a conviction, though given our courts system it is impossible that this could be achieved in the time frame. In Poland the legislation states requires that a prosecutor be satisfied that “there are strong grounds for believing that the pregnancy is the result of a criminal act.” Legislation in Zimbabwe requires that a judge furnish a certificate that the rape was reported to the police; that, on the balance of probabilities the unlawful intercourse has taken place; and that the pregnancy is the result of such intercourse. Some countries require a medical examination, a useless ordeal for the woman given that in many cases the physical evidence of rape will no longer exist by the time the pregnancy is apparent (it is usually recommended that such tests are conducted within 72 hours of the rape, whilst it is rare for pregnancy to be detectable until 10-12 days after intercourse).
More than anything the experience of other countries clearly establishes the extent to which no matter how these exceptions are worded, they create a system through which the woman must be processed. Rather than working as stages which work to support the woman in question, these systems instead act as obstacles, blocking the path to bodily autonomy. In Mexico, despite a rape exception existing nationwide, the district of Guanajato has refused every such application in an 8 year period. In P & S v Poland (2009) it was held that despite laws which permitted this and despite the applicant having secured the necessary certificate she was denied access to abortion by medical practitioners: the system was “marred by procrastination and confusion. The applicants were given misleading and contradictory information. They did not receive appropriate and objective medical counselling which would have due regard to their own views and wishes. No set procedure was available to them under which they could have their views heard and properly taken into consideration with a modicum of procedural fairness.”
Between police, lawyers, judges, and doctors an unfortunate degree of scope exists for barriers to be erected, irrespective of legal entitlements. Systems become legalised, bureaucratic, time consuming, all of which mitigates against the exercise of such rights. At a time when the woman requires care and support, she becomes subject to judgment, burdens of proof and evidence.
The greatest concern with a rape exception then is that instead of supporting women and showing compassion in exceptionally difficult circumstances, these exceptions operate from the perspective of suspicion and cynicism. They aim to eliminate all but those who can be proven to be ‘real’ rape victims, forcing women to prove vulnerabilities, imposing substantial revictimisation. They reinforce what is worst about social attitudes towards women who allege rape to the point that they are not of assistance to those who seek help.
In addition, by centering on discourses of suspicion, by seeking the woman to satisfy certain individuals of her rape, they socially reinforce rape myths (she was ‘asking for it’ by how she dressed, drank, behaved, flirted and so on, see further here ) having huge consequences for all rape victims. We should be very concerned that such a system might mean that less rape victims come forward.
As this graphic shows there are many countries throughout the world which permit abortion for rape, but only a few where it is one of the few circumstances in which an abortion is permitted. If we wish to support and assist women who have been raped we should create a system in which they do not need to discuss that rape to secure an abortion, if that is what they wish to happen. We should seek to eliminate any situations which will exacerbate their trauma, and focus that time and effort instead on their recovery. The only way, I see, in which to do this is to permit abortion on grounds such as the health and wellbeing of the woman, as in England and Wales, with an extension of the time limits where it is suggested that the woman has been raped.
The following is the text of a letter written by a number of regular HRinI contributors and signed by over 100 academics, which was published in the Irish Times today (full list of signators only available online). Here we have added a number of additional signatures received after the letter went to press. Others who wish to express their desire for a referendum to repeal the 8th Amendment to the Constitution should sign the petition organised by the Abortion Rights Campaign here.
We are people in or from Ireland. We are under the age of 50. We could not vote in the 1983 abortion referendum which profoundly limited women’s autonomy. No subsequent referendum has provided an opportunity to undo that damage. Many of us have lived our whole lives under an abortion regime in which we have had no say. As a generation we have grown up knowing that the State would compel us to travel if we wished to exercise substantive control over our reproductive lives. Continue reading “Time for Our Referendum”