CHARACTER REFERENCES HANDED to a judge following a guilty plea or verdict in a trial have long been a source of controversy in Ireland.
Victim advocacy groups have campaigned for change for many years, saying the practice is re-traumatising for survivors of sexual abuse, particularly if members of their local community have submitted the letters on behalf of the convicted person.
Media coverage of individual cases has also led to nationwide debates about the suitability or appropriateness of allowing such references to be used as mitigating factors when judges are making sentencing decisions.
President Michael D Higgins signed the Criminal Law (Sexual Offences and Human Trafficking) Bill 2023, which radically reforms the system of character references, into law yesterday.
The wide-ranging legislation passed through the Oireachtas on 10 July but it was too late for some victims who were hoping – and expecting – to not have to sit through a trial only to end it by hearing about the ‘good character’ of their abuser.
Miriam Henry, a survivor of child sex abuse, initially believed her case would be heard under the new system.
Her older brother Gerald Henry of Lixnaw, Co Kerry, was found guilty on 9 July of habitually sexually abusing Miriam and her sister Irene when they were children and Gerald was in his teens.
He got an 18-month sentence, suspended for three years. He maintains that he is not guilty of the crime and has expressed no remorse or regret.
Before his sentencing, the sisters read victim impact statements. Immediately after, character references were read out in court.
From now on, those giving character references will have to be sworn in and, if deemed necessary, the author cross-examined on its contents.
Miriam said she and her sister had been told by their State solicitor in the lead up to the trial that the new legislation, if enacted in time, would prevent character references for the perpetrator going unchallenged in court. They found out in real time that this was not the case.
Miriam said it was “humiliating”.
“The trial therefore ended not on my words but on kind words about my brother, which made my words on the stand sound like lies.
“All we wanted was to be prepared. It is so hurtful to victims to hear people singing the praises of your abuser and, it is even more hurtful to hear the judge reference the contents of those letters and refer to them as mitigating circumstances in her judgment.”
Witnesses who are called to give character evidence during a trial are sworn in under oath and can be cross-examined. However, character references are submitted after a guilty verdict or plea but before a judge’s sentencing. They are offered as possible mitigation but, previously, were not sworn in and the author was not expected in court.
The new law changes this for cases involving sexual crimes. A person submitting a character reference now has to do so under oath or affidavit.
“This means that the person who provides the character reference can be cross examined if necessary,” Justice Minister Helen McEntee said on introducing the bill.
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.
Judges had been among those calling for change, with High Court judge David Keane telling a sentencing hearing in 2022 that referees should have to be cross-examined, after lawyers for a man convicted of the rape and sexual assault of his son asked the court to receive references from the man’s partner, parents and GP.
Miriam and Irene first reported the abuse to gardaí in 2018, and over the past six years Miriam says there was “no sort of care or humanity shown” to them by the justice system, including An Garda Síochána and the Courts.
The trauma, she says, was compounded by a lack of information given to them about the processes.
“When you show up in court, that’s the first time you’re really getting any information out of them about what’s going on, whereas by very stark contrast, the defendant, from the minute he’s charged and he gets his own solicitor, he’s told everything.”
In cases of sexual violence, victims are considered “witnesses of the State”, and Miriam says that’s exactly how they’re treated.
“The guards really do appear to treat you like a witness, the same as anyone,” she said.
Miriam and Irene are not seeking an appeal of the judgement.
“I could not go through this again,” said Miriam.
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