The Gazette 1946-49

GAZETTE

APRIL 1 9 88

The Cor roborat ion Requirement in relat ion to Sexual

Complainants:

Signi f icance of the 'DNA Test'

Ca r o l i ne Fenne l l,

B.C.L., (N.U.I.),

LL.M (Osgoode) B.L.,

Lecturer in Law,

University College, Cork.

Certain categories of witnesses or types of evidence ere

regarded, for policy reasons by our rules of evidence, to be

somehow suspect or unreliable. Corroborative evidence is

therefore required, in relation to such evidence, or the

testimony of such witnesses.

The testimony of complainants of sexual offences is one

such incident where corroboration is required

as a matter of

practica

or at least a warning to the jury is required as to the

danger of ac t i ng on such unco r r obo r a t ed evidence.

Hitherto this corroboration requirement has posed a not

inconsiderable obstacle to the prosecution of sexual offences.

The reason for the difficulties addressed. However, the accused

inherent in the application of the will no longer be able to undermine

requirement, lies in the definition of

what constitutes corroboration.

Despite sugges t i ons to the

contrary, corroboration does not

mean merely con f i rma t o ry or

supporting evidence.

It has, in

fact, a much narrower, more

technical meaning. This definition

of corroboration stems from the

decision of

R. -v- Baskervil/e

the e f f ect t hat corroborative

evidence constituted:

". . . independent testimony

which affects the accused by

c onne c t i ng or t end i ng to

connect him with the crime. In

other words, it must be evidence

which implicates him, that is,

which confirms in some material

particular NOT only the evidence

t ha t t he crime has been

committed but also that the

prisoner committed it".

Hence in a sexual offence case,

evidence of traces of semen found

in the victim's body, for example,

would not constitute

corroboration

of t he i nc i dent of

sexual

intercourse, as although such

evidence wou ld c on f i rm t he

occurrence of an act of sexual

intercourse, it would not connect

the accused wi th the act, the

subject matter of the alleged

offence. However, recent scientific

developments now enable the

particular accused to be connected

wi th an act of sexual intercourse.

This is a significant advance in this

area of the law, although further

obstacles to prosecution will

remain. If the offence charged is

one of rape, for example, the issue

of consent w i ll have to be

evidence of semen traces, by

alleging intercourse w i th third

parties, while denying that he had

intercourse with the complainant

on the occasion in question. This is

due to the development of what is

termed 'genetic fingerprinting'.

Genetic or DNA fingerprinting

refers to the fact that a sequence

amongst t he genes in each

person's DNA repeatedly occurs

along the length of the string-like

DNA molecules and varies in its

size at each location. All these

copies of the sequence create a

unique pattern in each individual —

a DNA fingerprint. Therefore traces

of hair, skin, blood or semen found

at the scene of the crime, can

connect the particular accused

wi th the incident in question.

However, the entire ambit of

prosecution of sexual offences is

not affected. In the context of rape

the accused can still utilise the

corroboration requirement to his

advantage. By pleading consent on

the part of the victim, he effectively

forces corroboration on the issue of

consent. The DNA fingerprint

evidence, in this context, is of far

less effect as it corroborates only

the incident of sexual intercourse

wi th the accused; it does not go to

the issue of consent.

Perhaps it is here then that a case

can be made for a modicum of

reform, in relation to the

co r r obo r a t i on

r equ i r emen t.

Advances in modern science, it

seems, can ameliorate the worst

strictures of the requirement, but

they cannot resolve the issue

entirely. The rationale of the

corroboration requirement in the

context of sexual complainants is

manifestly archaic. Resting, as it

does, on a view of women (who

made up by far the greater portion

of sexual comp l a i nan t s) as

inherently unreliable and hysterical,

perhaps the time is ripe for a

reassessment of t he current

validity of the rule.

Traditional

justifications such as that of Hale

in the context of rape:

" I t is an accusation easily to be

made and hard to be proved; and

harder to be defended by the

party accused though never so

innocent."

and Wigmore:

"The unchaste mentality finds

incidental but direct expression

in the narration of imaginary sex

incidents of which the narrator

is the heroine or the victim. On

the surface the narration is

straightforward and convincing.

The real victim, however, too

often in such cases is the

innocent man; for the respect

and sympathy naturally felt by

any tribunal for a wronged

female helps to give easy credit

to such a plausible tale";

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