The Gazette 1988

GAZETTE

APRIL 1 9 88

The Cor roborat ion Requirement in relat ion to Sexual Complainants: Signi f icance of the 'DNA Test'

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. 1 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

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. 58 Traditional justifications such as that of Hale 6 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: 7 "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";

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. 2 It has, in fact, a much narrower, more technical meaning. This definition of corroboration stems from the decision of R. -v- Baskervil/e 3 to 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". 4 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

by 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.

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. 5 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.

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