Rape: Why not believe the woman?

The Law Reform Commission suggests the emphasis for consent should be shifted onto the man - where he would be expected to actively seek consent rather than the woman be required to give it, writes Mary Morrissy

How do you prove sexual consent? Can it be done in a court of law?

That was at the kernel of the Belfast rape trial. It figures in most rape trials since the legal definition of rape is sex without consent. And in the court process it nearly always comes down to ‘he said, she said’. The Belfast trial raised larger questions too, such as: Can our courts really deal with rape, and is our current system working?

The statistics suggest the answer is no.

The 2002 Sexual Abuse and Violence in Ireland report — the last comprehensive study on the subject — found that 42% of women had experienced some form of sexual abuse but only 10% of sexual offences were reported.Recent statistics show that only 8% of trials result in a conviction.

The legal machinery employed in rape cases is particularly cumbersome and pretty hostile to complainants. In our courts, the alleged rapist is seen as having broken the law of the State so the putative victim is considered a mere witness. So the man is perceived as having wronged society, but not having wrong the woman.

As Roe McDermott, journalist and gender/sexualities scholar, put it: “She is a vehicle for oral and other evidence, really, for whether this crime was committed by the defendant and if that defendant should be convicted for breaking the State’s law.”

Last week (July 27), the Law Reform Commission published a discussion document on rape justice, concentrating specifically on the issue of consent.

As it stands in Irish law, a man is not guilty of rape if he honestly — even if mistakenly — believes that the woman has consented to sex. This defence applies even in cases where the man’s belief is shown to be unreasonable.

“It should not be the case that a man can ‘walk out of court’ with his honest but unreasonable belief intact in a case where a woman had not consented to sex,” said Noeline Blackwell of the Dublin Rape Crisis Centre.

Although the defence of honest belief is rarely a deciding factor in rape trials, its existence is inconsistent with the view that sex without consent is rape, according to Ms Blackwell.

The Law Reform Commission is seeking submissions on whether a more objective “reasonable belief” should replace the “honest belief” clause in relation to consent, for instance, whether a more normal standard of proof should apply in rape cases. Ms Blackwell has suggested that a commonsense test could be applied to consent. This would shift the emphasis for consent onto the man — where he would be expected to actively seek consent rather than the woman be required to give it. This puts a different spin on the ‘no means no’ model, which places the onus on the unwilling partner to put a stop to an unwanted sexual encounter.

The commission also floats the possibility of introducing a lesser rape charge for those perpetrators who unreasonably, but honestly, believe the woman has consented. You could perhaps liken this to the division of the crime of killing between manslaughter and murder.

It’s interesting to see this option being put on the table for public debate by a respected legal body. Because, earlier this year veteran feminist, writer, and academic Germaine Greer made a similar suggestion and caused an absolute uproar.

Germaine Greer

Greer argued that the legal system couldn’t cope with rape.

“My feeling is we ditch rape altogether [as a crime] because it’s hopeless,” she told

The Guardian in January. “I have seen the police working up a rape case trying desperately hard to build it up so it will stand up in court — and wasting their time. The burden of proof is too high and that’s because the tariff is too onerous. Rape is a daily crime, it’s not spectacular. What we need is a coherent law of sexual assault.”

Following up on this thesis at the Hay Literary Festival in May, she used more colourful language.

“Most rape is just lazy, just careless, insensitive,” she said. “Every time a man rolls over on his exhausted wife and insists on enjoying his conjugal rights he is raping her. It will never end up in a court of law.

“Instead of thinking of rape as a spectacularly violent crime, and some rapes are, think about it as non-consensual… that is bad sex. Sex where there is no communication, no tenderness, no mention of love.”

She suggested that a fitting sentence for rape might be 200 hours’ community service and an ‘r’ tattoo on the rapist’s hand, arm, or cheek.

Greer’s latest book, entitled On Rape, will be published in September. Ah yes, you’ll say, the provocative Greer is promoting a book. And yes she is, but does that undermine her argument?

Isn’t Greer saying —in more intemperate and impatient language — what the Law Reform Commission is now throwing out here for public discussion — should we consider gradations of rape?

Greer’s suggestion to downgrade rape legally has been widely attacked. It’s seen in a broader context as evidence of Greer throwing in the towel on feminism, rejecting the principles of the #MeToo movement (she has been very dismissive of them, describing the Weinstein accusers as “whingeing career rapees”), as going over to the dark side of misogyny.

But is she not simply proposing another way of looking at rape? Regardless of her perceived motives — self-promotion, publicity — she is presenting a radical take on a really thorny issue. A take that acknowledges how ingrained sexual cruelty is in our Western culture and how poorly our justice system deals with it.

Isn’t this what the #MeToo movement is all about?

The movement has challenged the stereotype of the sexual predator as a stranger with a knife down a dark alley by demonstrating that the predator can be your friend, your brother, your husband, or your boss.

It has exposed sexist and entitled behaviour — from the illicit squeeze of the knee to penetrative sex — as part of a continuum that has persisted as a sickness in our society.

Greer has never been a clubbable feminist. Her views have always divided public opinion. She’s a contrarian, a controversialist, and has come out with some very wacky opinions. For example, that banning female genital mutilation is an attack on cultural identity.

This time, however, not only is she being attacked as being anti-feminist, she is being silenced by those very forums where her views could be debated and challenged. The Brisbane Writers Festival, for example, has “uninvited” her to its September event. Is that because her views on rape don’t conform with the prevailing feminist consensus?

The #MeToo movement is at a fervid moment of revolutionary action. It has managed to break open a decades-old silence about men’s sexual behaviour. After a century of not being believed, or being blamed for instigating sexual assaults and attacks, women are saying enough is enough. Now that the dam-burst has broken, this is not the time to stifle debate, particularly among feminists. And that means listening to views you don’t agree with, or even ones which offend you.

Greer’s contention about rape is simple and pragmatic: why not believe the woman and lower the penalty?

It seems to me she is only voicing what we’ve all been wondering since the Belfast rape trial.

We know who loses, but who exactly wins in a rape case?