THE FORMULA TO describe the crime of rape is quite straightforward. Sexual intercourse without consent equals rape.
However, when you begin to drill into this formula then you see why, so often, in charges of rape before our courts, there is disagreement between the evidence of the person making the complaint and the person accused of the crime on whether, at the time, both parties consented to the sex.
The jury’s decision on this point alone will often decide an accused’s guilt or innocence.
We need a clear definition
It is crucial that there be a clear, accessible definition of consent. Right now to find out what it means, you have to search through Ireland’s common law. It has built up over a century of court decisions.
The most recent of these was last November, when seven judges of the Supreme Court gave their interpretation of our law on when consent exists and, crucially, when it does not exist. However, Supreme Court judgments or any judgments are not that accessible, unless you know where to look and what you are looking for.
Also, each judge gives a decision in the context of a particular case so it isn’t always easy to see the logical thread through judgments.
The Criminal Law (Sexual Offences) Bill 2015
That is why this week’s proposal by the Tánaiste and Minister for Justice and Equality to set out in black and white legislation what consent is, and what it definitely is not, is warmly welcomed by us at the Dublin Rape Crisis Centre, by our colleagues in other rape crisis centres and by many others who are working against sexual violence.
Assuming that the proposed change is included in the Criminal Law (Sexual Offences) Bill 2015, which is now coming towards the final laps in its marathon journey through the Oireachtas, we will not have any real change in the way that rape cases are dealt with by our courts.
But we will have a clear and definitive statement on that essential element of rape, the element of consent. Judges, those who have been harmed by rape, those who perpetrate rape, our society, will all be able to see that consent exists where both parties have sexual intercourse of their own free choice.
When consent does not exist
So if someone has sex with another who is asleep, who is incapacitated by drink or drugs, who is forced into sex by threats, there is no consent. Someone who continues to have sex if consent is withdrawn will commit rape.
We know from our work that people will often discount or minimise their rape because they don’t recognise the many different ways in which rape can take place and the proposed legislation makes clear that the list given is not conclusive.
The ‘honest belief’ defence
In addition to the Tánaiste’s proposals, following concerns raised by Minister Katherine Zappone TD, another troubling aspect of consent is to be referred to the Law Reform Commission: that is the low standard we set in Ireland for “honest belief” as a full defence.
As it stands, a person’s belief that the other person is consenting is a complete defence. While it must be the case that if someone reasonably thought that the person was consenting, then the accused must be acquitted.
The problem occurs when the person’s “honest belief” is the result of a bizarre, unreal thought process. They are free to leave court and continue to behave as they had before.
We believe that this is a dangerously low standard, which is now quite out-dated, and out of step with other countries’ laws. The Law Reform Commission, the Government’s own expert legal body, will undoubtedly tease this out to allow an accused to continue to defend themselves thoroughly, in a way that doesn’t lose touch with reason and reality.
Overall, these proposals to bring clarity to our rape laws are an important step in a wider conversation that our society is having about what is consensual sexual activity against what is sexual violence. That conversation must continue if we want to make Ireland a saner, safer society.
Noeline Blackwell (@Noeline_B) is a human rights lawyer and the CEO of Dublin Rape Crisis Centre. The Centre promotes discussion on the topic of consent, including through its #AskConsent campaign, part of its mission to prevent harm and heal the trauma of rape. The Centre runs a national 24-hour helpline at 1800 77 88 88. www.drcc.ie.
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