Law reform may change attitudes on sexual violence

The law on rape should provide a definition of consent which also helps change attitudes towards victims of sexual violence, writes Susan Leahy

RECENT comments by Mr Justice Paul Carney on the dangers of the neknomination drinking contest and its propensity to lead to a “tsunami of homicide and rape prosecutions” has highlighted once more how societal change can impact upon levels of sexual violence.

Particularly problematic is the societal inclination to discredit allegations of sexual violence involving alcohol and a related tendency to blame victims who may be seen to have put themselves in compromising situations.

This tendency is primarily rooted in the persistence of prejudicial and stereotypical attitudes about rape or ‘rape myths’ in society. These attitudes create an erroneous impression of what constitutes a ‘real rape’ or a ‘real victim’, with allegations falling short of this ideal likely to be treated with suspicion.

Those who work or research in the area of sexual violence have repeatedly highlighted the need for public awareness initiatives which inform the public about the reality of sexual offences in order to curb prejudicial attitudes which tend to blame victims of rape.

Such public awareness should also focus on seeking to minimise coercive sexual practices by highlighting the importance of making sure that one’s partner is consenting freely. However, whilst societal change is vital, law reform is also urgently needed.

Admittedly, law can be a blunt instrument in terms of influencing social change and generally follows rather than leads the public conscience. However, law reform can encourage us to rethink our attitudes to sexual offences and re-open debate about issues such as consent, most notably, when sexual activity should be considered to be consensual.

At present, the primary legislation on adult rape may be found in the Criminal Law (Rape) Act 1981 and the Criminal Law (Rape) (Amendment) Act 1990. In many ways, neither statute is fit for purpose in 21st century Ireland.

One of the most notable failings is the lack of a statutory definition of consent. Despite the fact that consent is the central dividing line between a legitimate sexual act and rape and is the centrally contested issue in the majority of trials, there is no clear definition of what is required for a legally valid consent.

The available guidance hails from decided cases. Although this case-law provides significant detail of what situations may vitiate consent, it is no substitute for a definitive legislative statement of what constitutes appropriate socio-sexual behaviour.

The need for such definition is evidenced in the fact comparable jurisdictions such as England have had legislative definitions of consent for many years.

A good definition should clearly identify the elements required for a valid consent (capacity, freedom and choice) and emphasise that consent must be communicated and never assumed. In this way, jurors are encouraged to focus on whether these elements were present in the impugned sexual encounter, minimising the potential to focus on prejudicial notions of appropriate victim behaviour.

A related issue is what is termed the ‘honest belief’ defence. This provides that a defendant in a rape trial must be exculpated if he honestly believed that the complainant was consenting.

This is, in itself, not necessarily objectionable and is necessary to protect defendants’ rights. The problem is the defence is defined subjectively which means that the defendant does not have to have reasonable grounds for this belief.

Lawyers diverge on whether the subjective formulation of the defence is contributing to difficulties of proof in rape trials. It can be argued that a modern jury is not going to acquit a defendant on the basis that, for example, he honestly believed that the complainant consented because she had been drinking with him or had flirted with him earlier in the evening.

However, practical effects aside, the current formulation of the defence sends a damning message about sexual communication, that is, that a defendant’s unilateral interpretation of a sexual encounter could exculpate, despite the reality as experienced by the complainant.

If for no reason other than contributing to the message that sexual activity must be a negotiated and freely chosen activity for both partners, reform of this defence is necessary.

Justice Minister Alan Shatter has promised a Sexual Offences Bill in the near future. Hopefully, the issues raised here will receive attention. Most importantly, it is hoped the legislature will engage in a meaningful way with the law’s power to lead the way in changing attitudes about sexual violence.

New laws must seek to offset the tendency to blame victims by providing a detailed definition of consent that minimises the potential for stereotypes to prejudice juror deliberations. Such reform should seek to deter coercive sexual practices by sending a very clear message about what constitutes a consensual sexual encounter.

* Susan Leahy is a lecturer in the Law School at University of Limerick.