The Malta Independent 20 August 2019, Tuesday

Should rape crimes be time-barred?

Malta Independent Thursday, 28 August 2014, 12:00 Last update: about 6 years ago

A rather interesting legal point comes to mind in this discussion.  Should victims of rape be barred from submitting charges against their aggressors after a certain period of time has passed?

A multiple rape victim, dubbed Michelle in order to protect her true identity had said; “What they are going through… they don’t deserve it. Speak up, don’t let pride, shame or fear get in the way”. Victims of sexual violence might not necessarily speak up for the aforementioned reasons, however if one day they do pluck up the courage, then should their right to seek justice be time-barred as is currently stated in law?

At first glance, this law might look questionable, however when put into context, especially with reference to the presumption of innocence, then an interesting argument emerges. If a person were to be accused of rape, 30 years following the incident, how would that person be able to construct a solid defence? How would the person, if innocent, be able to prove their innocence without the memory of where he or she was on that day, at a certain time?

“The prescription period regarding rape cases depends on a number of issues, whether further violence was used, if it was aggravated, if the culprit was a tutor and others,” lawyer Michael Sciriha explained. “Whilst one condemns the crime of rape, the institute of prescription is there for a reason. Whilst I’m all out in favour of victims’ rights, one cannot forget the rights of the accused. There needs to be a balance between them and the defendant has a right to the best possible defence. If many years pass, the defendant is unlikely to remember witnesses who can testify to their whereabouts and keep documents to help prove his innocence and this would result in the case being imbalanced against the defendant”.

Dr Sciriha gave an example. “If you dated someone, then left her, and she returns 20 years later claiming that she was raped, it is highly unlikely that you could recollect information as to your whereabouts on that particular date. It would be your word against your former partner’s. The prescription process is there to ensure that neither side would have an advantage over the other”.

Save as otherwise provided by law, criminal action is time barred depending on the maximum number of years prison sentence the crime carries, however it is difficult to pinpoint the exact prescription period for rape as other factors, as stated by Dr Sciriha above, come into play.

Speaking with The Malta Independent Dr Gianella De Marco said she agrees with the prescription period, highlighting a person’s right to a fair trial. “It’s not fair for someone to have allegations brought forward against him on an incident that, for example, occurred 30 years ago. How would this person remember what he had done or who he was with on that specific date. If the person is innocent, how could he then set up the appropriate defence to show his innocence”.

Dr Joe Giglio is in agreement with Dr De Marco. “The prescription period In general, is a notion whereby the lapse of time renders more difficult for defendants to come forward with evidence and to provide an adequate defence, therefore I am not in favour of removing the prescription period. It adequately caters for persons who are victims of an offence. He spoke of the case involving priests, mentioning that in that situation, the time barring took effect from the last incident that transpired which resulted in a time barred period of fifteen years”.

The law states that; “With regard to a completed offence, the period of prescription shall run from the day on which the offence was completed; with regard to an attempted offence, from the day on which the last act of execution was committed; with regard to a continuous offence, from the day on which the last violation took place; and with regard to a continuing offence from the day on which the continuance ceased”.

The ratification of the Istanbul Convention

Malta recently became the 14th signatory of the Convention on preventing and combating violence against women and domestic violence (Istanbul Convention). The convention obliges governments that have ratified to take specific steps to counter all forms of violence against women: from stalking and sexual harassment to domestic violence, forced marriage and female genital mutilation.

Earlier this year, a survey conducted by the European Agency for Fundamental Rights showed that violence against women is an extensive and widely under-reported human rights abuse across the EU, with 33% of respondents having experienced physical and/or sexual violence since the age of 15; 22% having experienced physical and/or sexual violence by a partner; and 67% admitting not having reported the most serious incident of partner violence to the police or any other organisation.

The survey was based on face-to-face interviews with 42,000 women across the 28 EU member states. Women were asked about their experiences of physical, sexual and psychological violence, childhood victimisation, sexual harassment and stalking, including new mediums for abuse such as the internet.

The survey included a recommendation for the EU to explore the possibility of accession to the Council of Europe’s Istanbul Convention, and further indicates that the results of the survey can support other EU member states in ratifying the Istanbul Convention.

The Council of Europe website read; “The overwhelming majority of victims of stalking, sexual harassment, sexual violence and rape, forced marriage, physical, sexual and psychological abuse at the hands of intimate partners and forced sterilisation are women. Adding female genital mutilation and forced abortion as forms of violence that only women can be subjected to shows the shocking level of diversity in cruel and degrading behaviour that women experience. If we consider the fact that most violence is carried out by men, it is just a small step to understanding that violence against women is structural violence – violence that is used to sustain male power and control. This is even more obvious if we look at the patchy attempts of the police, courts and social services to help women victims which is seen in many countries across the world… Because it is not only women who suffer domestic violence, parties to the convention are encouraged to apply the protective framework it creates to men, children and the elderly who are exposed to violence within the family or domestic unit”.

This newsroom had asked several question to the Social Dialogue Ministry including whether the Ministry, including whether they “believe the period of prescription, in these forms of cases, should be removed or changed? Why and how?”

In response, the Ministry said that currently the legal provisions regarding rape and sexual assault are being discussed within the Inter Ministerial Committee working on the ratification of the Istanbul Convention. “The Committee has the objective of submitting proposals for legal amendments that may be necessary to satisfy the requirements of said Convention, in a manner that adequately addresses the severity of this heinous crime”.

Article 58 of the Convention document reads; “Parties shall take the necessary legislative and other measures to ensure that the statute of limitation for initiating any legal proceedings with regard to the offences within Articles 36 (sexual violence), 37 (forced marriage), 38 (female genital mutilation) and 39 (Forced abortion or forced sterilization) of this Convention, shall continue for a period of time that is sufficient and commensurate with the gravity of the offence in question, to allow for the efficient initiation of proceedings after the victim has reached the age of majority”.

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