When sex offenders walk free: Experts weigh in on minimum mandatory sentencing

Irish judges typically depend on precedents set by superior courts when setting sentences

sexual assault

File photo: Pixabay

Sexual assault victims in Ireland are too often made to feel betrayed by the criminal justice system.

In one prominent case last year, a man who repeatedly raped his ex-girlfriend while she slept was initially handed a fully suspended sentence, allowing him to avoid jail.

The woman, Niamh Ní Dhomhnaill, described the judgment in an interview with Newstalk as sending “a clear message to Irish society that rape and sexual violence are not being taken seriously enough”.

It took an intervention by the DPP to bring Magnus Meyer Hustveit back from his native Norway to the Court of Appeal, which re-sentenced him to 15 months in prison after finding the original ruling was unduly lenient.

While non-custodial terms are rare for sexual offences, the issue of inconsistent sentencing was brought to the fore again this week by another harrowing trial.

The perpetrator in this case, a 77-year-old man, managed to evade jail for sexually assaulting his two young nieces.

The Irish Times reported that the man received a suspended two-year sentence after a judge considered a number of mitigating factors, including his expression of remorse and lack of previous convictions.

One of his victims was six when the abuse began. The other was assaulted at around 14.

What does such sentencing say about the Irish court system? For one, it shows the need for more formal guidelines to be established, according to Noeline Blackwell, CEO of the Dublin Rape Crisis Centre (DRCC).

Irish judges typically depend on precedents set by superior courts when dealing with rape and sexual assault cases.

“Sentencing guidelines would give victims a better idea of what to expect from their trial,” Ms Blackwell said.

“Experienced barristers and solicitors can usually give [clients] a general estimate for what [the accused] is likely to get, but there’s nothing by way of official guidance.”

Niamh Ní Dhomhnaill, who waived her anonymity last year so her rapist could be named | Photo: RTÉ

Need for sentencing guidance

A 2013 report by the Law Reform Commission (LRC) recommended that a new judicial council be set up to publish such guidance, but the move has been continually delayed.

Equally important to this process is the need for a definitive and up-to-date database on sentencing trends that can inform practice, according to Raymond Byrne of the LRC.

The data-gathering work undertaken by the Irish Sentencing Information System, while a positive step, has been limited by a lack of funding, he told Newstalk.com.

Another problematic issue the LRC has identified, Mr Byrne said, is the frequent tendency of judges to impose concurrent rather that consecutive sentences for repeat offenders.

Mary Crilly, director of the Cork Sexual Violence Centre, is one of a number of campaigners who wants to see mandatory prison sentences introduced for sexual crimes.

“Some judges are reluctant to give higher sentences because they’re conscious that they’re likely to be successfully appealed,” she said.

“It’s not good enough to accept that as the status quo,” she added. “The bar is set too low.”

A minimum five-year sentence would makes victims “feel validated, as if they matter”.

Ms Crilly said one of the challenges with sexual crimes is the need for an accused person to be proven guilty beyond a reasonable doubt.

Low conviction rates and light sentences leave too many feeling disenfranchised, wondering, “Why did I bother?” she told Newstalk.com.

Minister for Children and Youth Affairs Katherine Zappone TD (centre) is pictured at the launch of the Dublin Rape Crisis Centre's annual report yesterday | Photo: RollingNews.ie

Debate over mandatory sentences

However, others argue that mandatory sentences may also give rise to anomalies, preventing judges from taking exceptional circumstances into account.

“While you can see the immediate attraction of it - in thinking ‘all rapists should get 10 years’ - there are situations where there should be exceptions,” Ms Blackwell said.

Wholly suspended rape sentences are uncommon in the Irish criminal justice system, Ms Blackwell pointed out, citing research conducted by journalist Conor Gallagher that shows average terms have risen by nine months to 10 years over the past decade.

The Rape Crisis Network Ireland put forward a similar view in its 2013 submission on the last strategic review of penal policy: “[Mandatory sentencing] does not sit well with the key sentencing principles of proportionality and totality in our criminal justice system…

“Such sentences are neither in line with established principles of sentencing, nor a very sensitive instrument to address the complexity and difficulty of the many factors surrounding sexual crime, which should form part of the sentencing decision.”

One piece of proposed legislation campaigners in the field do widely welcome is the Sexual Offences Bill, which features new offences relating to the sexual exploitation of children, including measures to target online predators.

Heavy penalties are set to be introduced for these offences, with potential prison sentences ranging from 10 to 14 years, according to the Department of Justice. 

Speaking yesterday as the DRCC launched its annual report, Ms Blackwell called for the bill to be urgently enacted when the Dáil returns in autumn.

"The fact that about half of the counselling and therapeutic work of the centre is with adults who have suffered abuse as children makes our call for better protection for today’s children even more urgent,” she said.

“The Sexual Offences Bill, tackling internet abuse which is still not illegal in Ireland, will give today’s children a much better chance of staying safe than they have right now.

“While the government has flagged the legislation as a priority, it was not debated in the Dáil during its first term. We hope that it will be top of the agenda for the Dáil when it returns in September.”

The DRCC's national 24-hour helpline number can be contacted on 1800 77 88 88.