Solicitor Frank Buttimer on sex crimes, consent, and when clients realise the game is up 

He says that there has been a huge increase in the volume of cases of sexually motivated crimes coming before the court. This, he says, is not down to an increase in the incidence of such crimes but a better preparedness among victims to come forward.

“It’s positive in many ways,” he told The Mick Clifford Podcast. 

“It’s reassuring that there is a preparedness on the part of victims to come forward, there are better supports for those who do and better training on the part of the police. Before there was a greater level of fear about coming forward for different reasons, like societal attitudes and there wasn’t that kind of willingness (to pursue a case). The law was not as advanced as it is (now). And there was previously a kind of societal tolerance of sexual offending.”

Through his work, Buttimer has observed that most cases of this type of crime these days do not involve extreme male-on-female violence. Neither, usually, is there an issue over whether a sexual act occurred. Instead, it is, for the greater part, around whether or not there was full consent before the act occurred. 

In such a milieu, he says, it can sometimes be the case that the two parties to the act have entirely different interpretations of whether consent was forthcoming.

“There are many instances with which I am familiar, and I’ve represented people where it happens,” he says of such a scenario. 

“An event occurs, a complaint is made in some given circumstances that could never have been envisaged by the male participant in the sexual encounter. 

And then something just goes off centre in relation to the event which leads the other party to make a complaint, which leads to a knock on the door for the male person, who would be in their late teens or 20, who has no idea that there was potential for a complaint.

“There’s an arrest, the whole family is up in a heap about it, distraught, and I’m saying, ‘you have to deal with it, there’s a complaint that the guards have to follow’. So you have that sort of stuff as well.”

What ensues is a process, the first step of which is an investigation by the gardaí after which a file is submitted to the DPP by the gardaí. 

Based on that and the DPP’s judgement on whether there is a good chance of a successful prosecution, a decision is made on whether to proceed. 

According to Mr Buttimer, there are many instances in this category where it doesn’t proceed from there, just as is the case with many other types of crime. When it does, the whole case can thereafter be down to the judgement of the 12 members of the jury as to whom they believe.

For the victim, this is a journey fraught with stress. Certainly, until recent years it was widely accepted that a huge volume of genuine complaints never made it to the court system. 

Notwithstanding the advances cited by Mr Buttimer, this scenario is still the case. For those that do, the new societal awareness — and law — about consent is often the central issue.

“It is a nightmare for somebody who may be innocent,” he says. “They may have to go through a trial process, particularly for rape or something that serious and it can take up to two years, maybe longer in Dublin. So you have that converse side to the whole thing today as well. The good thing is the societal change, encouragement of complaints, and the follow up but you also have young fellas, sexual activity occurring and then something just going offline that can lead to years of nightmarish family situations.”

Public perception

Practicing as a defence solicitor can bring various challenges, including an erroneous perception that the solicitor is somehow condoning anything that a defendant may be guilty of. On the whole, Buttimer says, people understand his function and the only negativity he has encountered was largely fleeting. 

Another perception often harboured in sections of society is questions over how a solicitor can defend a client if the solicitor “knows” the client is guilty. Buttimer points out that the system, which is for the greater part widely accepted in society, ensures that everybody is entitled to a defence, particularly in serious cases where a defendant is up against the full resources of the state.

“If people who are accused of a crime would not have access to a defence solicitor it would be contrary to any natural justice,” he says. 

As far as I’m concerned if a client tells you that they’re not guilty, then they’re not guilty. And how you take it on is by doing your best to challenge the evidence by either technical or legal approaches.”

There are occasions he says when a client might claim innocence on first consultation yet present him with a scenario that just defies logic. 

“They might tell me in, you know an inimitable fashion, what the story is. So I sit there listening to this absolute nonsense. And then I use one of my favourite expressions: ‘let me get this straight’. And I repeat to them in a language, which I hope they understand, how ludicrous the whole thing sounds. So usually there is this enlightenment about how ludicrous it sounds and you might get a Pauline conversion to a realisation that the game is up. But the method of communication between oneself and the client is really important in that scenario.”

Most crime that comes before the court has roots in societal issues, something that Mr Buttimer encountered on a daily basis. 

“A huge amount of it is background circumstances,” he says. 

“Family, challenges in education, societal and addiction challenges, and that does come from a certain element in society which, by the way, is an element that should be supported in court. The people who have those difficult circumstances deserve that level of support.”

Frank Buttimer is this week’s guest on The Mick Clifford Podcast.