TW: rape, sexual assault
Because Ireland can’t have nice things, we’ve reached the inevitable ‘two steps back’ following the ‘one step forward’ of passing the referendum to repeal the 8th Amendment. Most of us thought that it would have to do with the Iona Institute’s attempting to appeal the result. However, since an achievement in bodily autonomy apparently needs to be balanced with an offence to it, this week the Law Reform Commission has issued a report that recommends we respond to rape culture — by further muddying the legal definitions of rape.
Current Irish law, as set out in section 2 of the Criminal Law (Rape) Act 1981, states:
“A man commits rape if he has unlawful sexual intercourse with a woman who at the time of the intercourse does not consent to it, and at the time he knows that she does not consent to the intercourse or he is reckless as to whether she does or does not consent to it.”
The report issued by the Law Reform Commission, comprised of three men and a lone woman, recommends the creation of a new legal category of rape, the so-called ‘gross negligence rape.’ In the case where the poor man accused of vaginal rape — yes, the recommendation is that gendered and that specific — honestly believes that he had his partner’s consent, he would be tried for ‘gross negligence’ as opposed to being tried for actual rape. The Irish Times’ Colm Keena points out:
“Irish law on ‘honest belief’ reflects a UK House of Lords decision in 1976 that a belief in consent need not be reasonable in order to acquit a defendant, it need only be honest. The decision was introduced into Irish law in 1981.”
By this logic, the Law Reform Commission is seeking to close a loophole. The problem remains, though, that ‘gross negligence’ will be a lesser crime and its creation does nothing to address the fact that focusing on belief and intent incentivises lawyers “to adhere to sexist stereotypes to defend themselves,” thereby entrenching “sexist ideologies,” observes Keena.
Ireland is a country in which it is an incredible achievement for a rape case to reach the courts, and even more incredible for a conviction to be achieved. The Irish Independent notes:
“The court figures also show that in 2016, 704 offences of rape were dealt with by the Central Criminal Court, of these 142 saw a guilty plea entered. Another 279 went forward for trial (leading to a 48pc conviction rate). There were 160 offences deemed ‘nolle prosequi’ – meaning prosecution was not pursued at this time.”
“It could be argued that it is unfair to be labelled a rapist for making a mistake,” the Law Commission’s paper notes. It offers no comment on the fairness of being raped.
Current Irish rape law is already grossly negligent, focusing on intention and belief rather than the actual violation itself, and giving little provision for protecting the complainant. As it stands legally, rape victims are witnesses in the State’s prosecution and are therefore not entitled to their own legal representation. This was in part why the Chief Executive of the Dublin Rape Crisis Centre, Noeline Blackwell, had welcomed the legal review of rape cases when it was proposed. The Irish Times reported that “she said that very often the accused was represented by a skilled group of advocates including often an entire legal team, whereas the complainant was on their own with no experience of the court system or of being cross examined.” Regarding the proposed changes, “Ms Blackwell said she saw some merit in the idea of a new, lesser law but would like to consider the matter further.”
As far as ‘considering the matter further’ goes, when the matter is disingenuously redefining ‘rape’, we need to be careful as a country that’s already struggling to address gender disparity. Attitudes are improving, as demonstrated by the massive protests in response to the Belfast rape case acquittal. Nevertheless, waffling on sexual assault only underscores the importance of addressing rape culture and consent, both on and off campus.
