Consent: No More Blurred Lines

 
 

Helen Brady discusses how the long awaited Sexual Offences Bill will bring some much needed clarity to sexual consent law.


IN 2015, Niamh Ní Dhomhnaill, an Irish woman who was repeatedly raped by her boyfriend while she slept, bravely chose to waive her right to anonymity when she brought her case to court. She wanted to challenge the lax attitude that has prevailed towards sexual assault. Something that is clearly displayed by the leniency of the suspended seven-year sentence handed down to her rapist.

On 1st of February, the Sexual Offences Bill introduced by Tánaiste Frances Fitzgerald was presented at the report stage in the Dáil. This bill seeks to give a statutory definition of sexual consent in Irish legislation, and to clarify those situations where consent cannot be given, including when someone is asleep or too intoxicated to consent.

Noeline Blackwell, CEO of the Dublin Rape Crisis Centre, this month stated that this bill is “most important” in helping to “start a journey to identify in black and white what consent looks like”.

“This bill seeks to give a statutory definition of sexual consent in Irish legislation, and to clarify those situations where consent cannot be given…”

It has come as a surprise to many that this legislation was not already in existence. The Law Reform Commission made recommendations that sexual consent should be statutorily defined as far back as the 1980s. Our neighbours in England and Wales have long had statutory definitions of sexual consent, while in the US the definition can vary from state to state.

Until now, the situation in Ireland is that consent has been defined in case law rather than legislation, with judges having some discretion from case to case to decide what exactly constitutes consent. This can lead to inconsistency and uncertainty for juries who can tend to fall back on myths about consent perpetuated by rape culture – that the victim’s outfit was partially to blame for the attack, for example, or that not fighting back is the same as giving consent.

Juries are much more likely to adhere to a clear definition laid out in legislation, than to rely on past judgements. This move will likely aid a number of cases that otherwise would have been dismissed.

The recent high-profile case at Stanford University in America surrounding the rape of an unconscious woman by Brock Turner draws parallels with Ní Dhomhnaill’s case as mentioned above. Both victims were unconscious, both attackers were described in court as co-operative first-time offenders, young men figuring out their sexuality, and both attackers were handed lenient sentences for their crimes. Turner was sentenced to six months’ imprisonment despite his three charges of felony sexual assault carrying a potential sentence of fourteen years’ incarceration.

The sorry fact of the matter is that the majority of sexual assaults are never reported to the authorities, but could this new legislation help to change that? It seems likely, as for many, the main barrier to reporting is the uncertainty over whether the action qualified as a crime.

“It was recently reported that 21% of Irish respondents to a survey of over 1,000 people think having sex without consent is acceptable.”

This new legislation clarifies that consent cannot be given in a number of different cases. This includes; where someone is mistaken as to the identity of the person involved or the nature of the sexual act, is being unlawfully detained, is unable to communicate due to physical disability, or when consent has been offered on someone’s behalf by a third party, as well as the aforementioned circumstances of when someone is asleep or heavily intoxicated.

It seems such legislation could not come soon enough as it was recently reported that 21% of Irish respondents to a survey of over 1,000 people think having sex without consent is acceptable. The same poll, carried out by Eurobarometer, also found that 11% of Irish people think being drunk or on drugs justifies sex without consent.

Our out-dated and vague legislation is likely a cause of such lax attitudes. Indeed, our legislation needs to be updated to act as example for the general public. These figures reflect a huge misunderstand in the meaning of consent. Hopefully, a clearer definition will open people’s eyes that having a laid-back attitude to such a serious topic is dangerous.

In Ireland, the conviction rate for all those charged with rape in 2013 was a staggeringly low 19%, while the DRCC has stated that the rate of reporting sexual violence may be as low as 8%. This can be explained by the victims’ fears of not being believed, of being blamed for what happened to them, or of being treated insensitively by the Gardaí, the media and the court system.

A hot topic on university campuses, with consent campaigns being run by Students’ Unions around the country, consent can still seem like a grey area despite rising awareness. Must consent consist of an explicit “yes, I want to have sex with you”? Should we avoid altogether having sex when alcohol has been consumed? Indeed, a lot of situations are not clear cut. The clarity being given by this legislation will hopefully help people to gauge situations more easily.

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