Sinéad Ring

The cover artist for this issue is Hannah Tiernan, who is currently studying art at the National College of Art and Design, Dublin. She works mainly in sculpture, installation and photography. The photograph is part of an installation piece consisting of a large scale mono print on calico. In front hangs a muslin sheet imprinted with footprints and reflecting a projected series of fallen angles. For further information on the project, click on the attached document. More of Hannah Tiernan's work is on show at: https://www.facebook.com/HannahTiernanArtist?ref=stream.

This article considers the phenomenon of historical gendered institutional harm, examining the widespread incarceration of women and girls in Ireland through the decades following independence in 1922. In this period, thousands of women and girls were confined in a network of sites including Magdalene Laundries and Mother and Baby Homes. The article considers the responses to this history, focusing on those fields which concern themselves with matters of “wrongdoing” and “harm,” responses grounded in law and legalism. We explore both the utility and the limits of these approaches before proposing a criminological research agenda which draws on the centrality of the state in the perpetration of gendered violence. Although Ireland has become a by-word as a case of historical institutional abuse internationally, it remains remarkably understudied by criminologists. The article explores how the Irish example can speak to the discipline of criminology by forcing us to reimagine how we conceive of gendered harms and state-perpetrated harms.

A key contribution of Christie’s has been to show that the notion of the ideal victim (and offender) is concerned with meaning-making. It helps society to make sense of the suffering of individuals, and to respond appropriately to individuals’ demands for justice. However, as Christie (1986) makes clear, in order to qualify as an ideal victim, a person cannot threaten established social hierarchies. Similarly, the ideal offender must be someone who does not threaten the status quo: they must be outside the norm, a kind of monster. The contours of who can and cannot be an ideal victim or ideal offender illuminate the values held by a particular society. This chapter examines the salience of Christie's conceptualisation of the ideal victim/offender in the context of legal and political responses in Ireland to reports of historical childhood sexual abuse. It argues that abusers were typically constructed as monstrous, but victims were not ‘ideal’ because they threatened the established order of Church and State. It is argued that, contrary to Christie, non-ideal victims may still gain political purchase, if their offenders are constructed as ideal offenders.

This thesis interrogates the construction of fairness to the accused in historic child sexual abuse trials in Ireland. The protection of fairness is a requirement of any trial that claims to adhere to the rule of law. Historic child sexual abuse trials, in which the charges relate to events that are alleged to have taken place decades previously, present serious challenges to the ability of the trial process to safeguard fairness. They are a litmus test of the courts’ commitment to fairness. The thesis finds that in historic abuse trials fairness to the accused has been significantly eroded and that therefore the Irish Courts have failed to respect the core of the rule of law in these most serious of prosecutions. The thesis scrutinises two bodies of case law, both of which deal with the issue of whether evidence should reach the jury. First, it examines the decisions on applications brought by defendants seeking to prohibit their trial. The courts hearing prohibition applications face a dilemma: how to ensure the defendant is not put at risk of an unfair trial, while at the same time recognising that delay in reporting is a defining feature of these cases. The thesis traces the development of the prohibition case law and tracks the shifting interpretations given to fairness by the courts. Second, the thesis examines what fairness means in the superior courts’ decisions regarding the admissibility of the following kinds of evidence, each of which presents particular challenges to the ability of the trial to safeguard fairness: evidence of multiple complainants; evidence of recovered memories and evidence of complainants’ therapeutic records. The thesis finds that in both bodies of case law the Irish courts have hollowed out the meaning of fairness. It makes proposals on how fairness might be placed at the heart of courts’ decisions on admissibility in historic abuse trials. The thesis concludes that the erosion of fairness in historic abuse trials is indicative of a move away from the liberal model of criminal justice. It cautions that unless fairness is prioritised in historic child sexual abuse trials the legitimacy of these trials and that of all Irish criminal trials will be contestable

The cover artist for this issue is Hannah Tiernan, who is currently studying art at the National College of Art and Design, Dublin. She works mainly in sculpture, installation and photography. The photograph is part of an installation piece consisting of a large scale mono print on calico. In front hangs a muslin sheet imprinted with footprints and reflecting a projected series of fallen angles. For further information on the project, click on the attached document. More of Hannah Tiernan's work is on show at: https://www.facebook.com/HannahTiernanArtist?ref=stream.

Ireland has some of the most restrictive abortion laws in the world. Abortion has been criminalised since 1861, and the passage of the 8 th Amendment in 1983 introduced ‘the right to life of the unborn’ into the Constitution. The effects of the 8 th Amendment are felt on a daily basis by women leaving Ireland for abortion, by pregnant women receiving maternal care, by doctors caring for pregnant women, and by lawyers working for the health service. As predicted by the then-Attorney General Peter Sutherland at the time of the referendum, the 8 th Amendment has introduced an uncertain and practically unusable position to Irish law. It has, simply put, become “unliveable”. In late 2014 Labour Women, a branch of the Irish Labour Party, established a Commission for Repeal of the 8 th Amendment. That Commission comprised three groups: a political group, a medical group, and a group of legal experts. The authors of this paper are those legal experts. In this paper, we first outline the leg...

in Special Issue on Towards Transitional Justice (eds K O’Donnell, M O’Rourke and J. M. Smith) 55:1-2 (forthcoming Spring-Summer, 2020). The history of the Irish State is littered with shamed bodies. For decades the State collaborated with religious orders in incarcerating children and single women, shamed by their poverty, race, disability, or association with sexual transgression (Fischer Gender, Nation; O’Sullivan and O’Donnell; Smith; Buckley). Shaming practices such as head shaving, using numbers to identify children, or flogging were used to punish and control (Arnold; Coleman 121; Commission to Inquire into Child Abuse [CICA] vol. 1, ch. 8). Women and children in industrial or reformatory schools, psychiatric hospitals, County Homes, and Magdalene Laundries were burdened with a stigmatized identity that meant total exclusion from society (O’Donnell and O’Sullivan 257). As they have begun to speak publicly about their experiences, victim-survivors have forced the State and Irish society to acknowledge this history. Their testimony to experiences of neglect, beatings, forced labor, sexual assault, and imprisonment are an indictment of the sovereign State’s claim to protect its most vulnerable and to detect and punish crime within its territory. In response, the State offers an architecture of apology, investigation, and redress. Scholars have traced patterns of violation of domestic and international norms at the core of this framework (Gallen and Gleeson; O’Rourke, “The Justice for Magdalenes Campaign”; Ring, “The Victim of Historical Abuse”). These legal responses can usefully be analyzed in terms of the key objectives of transitional justice (truth telling; accountability; redress and reparations, and guarantees of non- recurrence). However transitional justice and its processes are themselves contingent and capable of oppression. Suppressed and marginalized knowledges may be omitted or excluded in the name of transitional justice (Mamdani; van Marle; Koggel). This article contributes to the literature exploring epistemic injustice in transitional justice processes by scrutinizing the Irish State’s legal responses to historical institutional abuse.2 In particular, we develop a theory of State shame that describes and explains the ways the Irish State perpetuates epistemic injustices against people who suffered abuse in State institutions. We unpack the relationship between the State’s performance of shame in these legal responses and its need to preserve its sovereignty—its professed singular competence to determine how painful national events are understood and resolved (Dean). We argue that the State uses discourses of its own shame to legitimate legal responses that prioritize its sovereignty over the demands of true shame. We show how this produces significant epistemic injustices in the present against people who suffered institutional abuse as in the past.

Adopting the special issue’s broad definition of criminal law reform, this article explores some of the ways the Irish criminal process is grappling with the demands for justice of adults who report childhood sexual abuse. In particular, it shows how the cultural notion of trauma is bound up with the construction of victims’ suffering. In historical child sexual abuse prosecutions, trauma is shown to be an effect of the abuse on the victim/survivor; a site of mediation of the relationship between the state and victims; and a site of mediation of the relationship between the state and its past. The article first explores these insights in relation to the law’s approach to questions of alleged procedural unfairness to defendants flowing from the passage of time. Trauma is exposed as both legitimating some forms of suffering, and disqualifying others. The article then employs the trope of trauma to expose the problems with current approaches to cross-examination of vulnerable victims a...

This article reviews the decisions of the US state courts on the admissibility of expert testimony on recovered memory in historic child sexual abuse prosecutions. Unlike their English and Irish counterparts, most US courts scrutinise the reliability of expert evidence on recovered memory. In examining the US decisions the article explores the challenges posed to the criminal process by the contested scientific status of recovered memory theory. It sets out due process arguments why expert evidence on the topic should not be admitted in a criminal trial.

246 Irish Student Law Review [Vol. 14 History In 2004 the applicant (A) was convicted on a plea of guilty of the offence of unlawful camal knowledge of a girl under the age of 15 (also known as defilement of a girl under the age of 15) contrary to section 1(1) of the Criminal Law ( ...

This model piece of legislation provides for: "An Act to respect human life during pregnancy by affirming pregnant women’s constitutional rights; recognising that sustaining embryonic and foetal life in pregnancy is an important social role, which should be voluntary and consensual, and enabling access to abortion, and in respect of related matters".

Prohibition applications relating to historic child abuse charges are a litmus test of the courts’ commitment to upholding fairness to the accused. This article argues that the prohibition case law reveals two trends: one in which fairness is being marginalised; and another in which it is given a contextualised meaning. The article argues that the latter approach represents an attempt to re-imagine fairness to the accused in prohibition applications. Analysing fairness in context is shown to be a continuation of a tradition in Irish constitutional jurisprudence of understanding fairness to the accused as both fundamental and evolving.

in Special Issue on Towards Transitional Justice (eds K O’Donnell, M O’Rourke and J. M. Smith)  55:1-2 (forthcoming Spring-Summer, 2020).


The history of the Irish State is littered with shamed bodies. For decades the State collaborated with religious orders in incarcerating children and single women, shamed by their poverty, race, disability, or association with sexual transgression (Fischer Gender, Nation; O’Sullivan and O’Donnell; Smith; Buckley). Shaming practices such as head shaving, using numbers to identify children, or flogging were used to punish and control (Arnold; Coleman 121; Commission to Inquire into Child Abuse [CICA] vol. 1, ch. 8). Women and children in industrial or reformatory schools, psychiatric hospitals, County Homes, and Magdalene Laundries were burdened with a stigmatized identity that meant total exclusion from society (O’Donnell and O’Sullivan 257). As they have begun to speak publicly about their experiences, victim-survivors have forced the State and Irish society to acknowledge this history. Their testimony to experiences of neglect, beatings, forced labor, sexual assault, and imprisonment are an indictment of the sovereign State’s claim to protect its most vulnerable and to detect and punish crime within its territory. In response, the State offers an architecture of apology, investigation, and redress. Scholars have traced patterns of violation of domestic and international norms at the core of this framework (Gallen and Gleeson; O’Rourke, “The Justice for Magdalenes Campaign”; Ring, “The Victim of Historical Abuse”).
These legal responses can usefully be analyzed in terms of the key objectives of transitional justice (truth telling; accountability; redress and reparations, and guarantees of non- recurrence). However transitional justice and its processes are themselves contingent and capable of oppression. Suppressed and marginalized knowledges may be omitted or excluded in the name of transitional justice (Mamdani; van Marle; Koggel). This article contributes to the literature exploring epistemic injustice in transitional justice processes by scrutinizing the Irish State’s legal responses to historical institutional abuse.2 In particular, we develop a theory of State shame that describes and explains the ways the Irish State perpetuates epistemic injustices against people who suffered abuse in State institutions. We unpack the relationship between the State’s performance of shame in these legal responses and its need to preserve its sovereignty—its professed singular competence to determine how painful national events are understood and resolved (Dean). We argue that the State uses discourses of its own shame to legitimate legal responses that prioritize its sovereignty over the demands of true shame. We show how this produces significant epistemic injustices in the present against people who suffered institutional abuse as in the past.

Nicola Barker, Sinéad Ring, Maria Drakopoulou and Rosemary Hunter*

This is an audio recording of a panel session at the Kent Critical Law Society Conference, 'The Society of Control: Interrogating Law, Governance and Regulation', held on 1-2 March 2014 in Keynes College, University of Kent. The panel, titled 'The Contribution of Feminism in Contemporary Public Debates about Law', featured three speakers.

Nicola Barker spoke on 'Feminism, Family and the Politics of Austerity' (commencing at 1.10). The powerpoint slides accompanying her presentation are provided alongside this audio file.

Sinéad Ring spoke on 'The Pernicious Nature of Rape Myths and How They Continue to Affect Rape Prosecutions' (commencing at 16.30).

Maria Drakopoulou spoke on 'Feminism, Tradition and the Question of Sexual Violence' (commencing at 41.00).

Rosemary Hunter acted as discussant, commenting on all three papers (commencing at (1.05.38).

The speakers are introduced at the beginning by Serena Natile.