Undermining of women is just defence in absence of consent law

Britain and Ireland share legal codes that justify the persecution of women in rape trials. But Ireland is worse in that it has no law to guide juries on the issue of consent, writes Conor Ryan.

“I KNOW that we’re all terribly careful to be politically correct about this and say surely women are allowed to go to people’s houses or take lifts in strangers’ cars without expecting to have to give them sex.

“[But] I think a jury is always going to say... she might have consented because of the way she behaved. So the woman’s behaviour at the time makes it difficult to get a conviction.”

This was the view of a senior British barrister who specialises in prosecuting rape trials.

He was interviewed by Jennifer Temkin, professor of law at the University of Sussex, in a study of the tactics barristers use to expose witnesses in rape cases.

Ms Temkin looked at the British system, which shares similar laws to ours, has the same structure in rape trials and also relies on the deliberations of a jury.

The similarity of results between yesterday’s Irish Examiner/Red C survey and a 2005 poll on British attitudes by Amnesty International also illustrated the links between the two jurisdictions.

It showed — when it comes to making the victim seem responsible — in both jurisdictions there are identical social faux pas playing on juries’s minds.

Yesterday’s survey identified 5-10% of people will consider a victim of rape to be totally responsible for bringing on the assault if she is drunk, wears revealing clothes, flirts extensively, walks through a deserted area or goes home with a man before deciding not to have sex.

At least a quarter found the victim in some way at fault in all situations.

Ms Temkin’s study examined how in rape trials barristers can use these misconceptions to ask a jury to decide whether the victim had done enough to avoid the natural sexual aggression in men.

The senior barristers she interviewed said defence cases often hinge on their efforts to undermine how a woman dressed or if she could be portrayed as a slut.

“Women who failed to mind what they did and where they went were lacking in common sense and were therefore to blame when a man sought the natural gratification of his urges,” her research said.

There has been no corresponding research here but a recent doctoral thesis by Sue Grogan — who co-authored the book The Legal Process and Victims of Rape in 1998 with Ivana Bacik and Catherine Maunsell — discovered the same inquisition in the witness box. Lobby groups call it the second victimisation of raped women.

Ms Grogan sat in the Central Criminal Court to monitor proceedings and watched the techniques of barristers.

During these trials defence counsel questioned victims’ psychiatric history, previous sexual exploits, social status, flirtatious manner, design of a woman’s “tight pink trousers” and if an accused man had been allowed indulge in “hanky-panky” before the alleged rape took place.

University College Cork doctoral researcher Susan Leahy said our system puts victims in an even more vulnerable position than in Britain because there is no clear definition of consent.

“In most rape cases, the contentious issue is whether the complainant consented. Despite the importance of consent, it has never been statutorily defined in this jurisdiction and legislation case law provides limited guidance,” she told a conference in Manchester earlier this month.

A definition was adopted in Britain in 2003. It has not produced the results victims’ welfare groups had hoped but it is generally considered a positive development.

We have not followed suit. It is 21 years since the Law Reform Commission made preliminary recommendations on the issue but no clear guidance has yet been given to inform juries when a woman has actually consented to sex and was not the victim of rape.

Law lecturer at NUI Galway Conor Hanly, who is leading a project examining attrition rates in rape cases, said the way the system is set up encourages defence teams to undermine women who make allegations.

“If a defence team can succeed in undermining the complainant the prosecution fails. So, they have to go on the attack in court,” he said.

Speaking at a conference last year, Mr Hanly said, apart from the wording of legislation, the policy of placing complex issues of consent before “amateur juries rather than trained judges” needed to be investigated.

“This fact has largely been ignored by legislators, policymakers, commentators and activists. Their efforts have been directed primarily at improving the training and understanding among judges and lawyers.

“Worthy efforts to be sure, but they have ignored the central role played by the jury in rape trials,” he said.

As the Law Reform Commission pointed out in 1987, while legislation might help, a “change in public attitudes towards rape was one of the most important influences in reporting trends”.

Mr Hanly said to this end, education is a very significant factor. This is highlighted further by yesterday’s Irish Examiner/Red C survey. It showed the ABC1 social class, which traditionally has the highest level of education, was significantly less likely to attach responsibility to a woman who was raped even if her behaviour was irresponsible.

Compared with people from working-class backgrounds, the ABC1 bracket was up to 60% more inclined to consider a victim to be free from any blame.

However, the law does not allow for a universally accepted definition of consent to be explained to juries before they begin their deliberations.

Policy officer at the Rape Crisis Network of Ireland Cliona Saidlear said this only serves to increase the potential for contrived values in some sections of society to sway the verdict of a rape trial.

“We need to know exactly what consent is and have that written into law, so if a woman is drunk or is dressed in a certain way people know it does not mean she is somehow inviting a man to rape her,” she said.

The Law Reform Commission has said it will revisit this issue in its current research programme.

However, its administration manager John Glennon said it is only beginning a busy six-year programme, so the investigation of sexual offences legislation and consent will not be delivered in the short term.