Consent is a grey area in law but it shouldn’t be in practice

A definition of consent is urgently needed in Irish law but while we wait for the law to catch up, Jessica Casey hears how colleges are educating students on sexual consent

Consent is a grey area in law but it shouldn’t be in practice

Photo credit: Jack Leahy and Aoife Ní Shúilleabháin of the Union of Students in Ireland (USI) with Stephen Cleary from Lucan and Ellen Dugan from Leopardstown of NCI as the USI launched its SHAG week campaign in six colleges across the country last February. Picture Andres Poveda

THERE is no clear definition for consent under Irish law, leaving cases of sexual violence involving consent in a “grey area”.

In the last year ‘sexual consent classes’ began in colleges and universities around Ireland. These classes evolved from years of research and pilot projects carried out by the Rape Crisis Network Ireland (RCNI), psychologists and students.

It is a mistake to assume people don’t need to be educated about consent, says the RCNI.

RCNI director Cliona Saidlear said normalising the conversation around consent “so it wouldn’t be a big deal when they [students] talk” is important.

According to research conducted by the Union of Students of Ireland (USI), 16% of students have experienced an unwanted sexual encounter and 11% of female students say they have been subjected to unwanted sexual contact.

Carried out by USI on more than 2,500 students, the study also found that 5% of female students are victims of rape and a further 3% say they have been subjected to an attempted rape.

“Consent classes are the fastest and most efficient way to educate people on what is and is not acceptable when it comes to sexual activity and relationships. We need to teach young people to talk about consent, to report violence and rape, and ensure that consent is asked at all times before sex,” according to the research’s authors.

But the introduction of consent classes have not been without controversy — after being invited to attend a sexual consent workshop at Warwick University in Britain, one student wrote an article describing it as “the biggest insult I’ve received in a few years”.

NUI Galway first introduced consent workshops in 2015 — attendance at this was on a voluntary basis. And in September this year sexual consent workshops were scheduled for all students participating in orientation week at Trinity College Dublin’s halls of residence.

“In Ireland, really we can’t talk about sexual violence without talking about alcohol,” says Ms Saidlear. According to RCNI’s research, 80% of rape complainants and 76.6% of suspects had consumed alcohol on the night of the reported incident.

This research showed RCNI that the connection between alcohol and sexual violence in Ireland needs to be addressed, Ms Saidlear says. Following this, RCNI asked Dr Pádraig MacNeela of the school of psychology at the National University of Ireland Galway to research what college students made of the term “sexual consent”.

The aim of this was to gain an understanding of the rationale of students, when young people are socialising regularly in an environment where alcohol is consumed.

Different hypothetical scenarios were posed to 180 students in small groups as part of Dr MacNeela and his team’s research. Students were given case studies of young people in different situations and encouraged to discuss them.

While students had a good understanding of “clear-cut” situations, when it came to the scenarios between people that involved some ambiguity, such as excessive drinking, or one person seeming more eager earlier in the night but later changing their mind, Dr MacNeela says the students considered these as “grey areas”.

“For example, if a person had taken alcohol, the participants asked things like ‘Well, how much alcohol?’ or things like ‘Well, how did she smile at him?What kind of smile?’,” he says.

But consent workshops are not about telling students not to sexually assault, and they are not about sexual violence, says Dr MacNeela. The classes’ main aim is to encourage students to negotiate situations they might be involved in, and to get people to discuss what they are and aren’t comfortable with.

TCD’s orientation week classes were adapted from these earlier workshops. And although the Trinity workshops were automatically scheduled for all halls of residence students, Dr MacNeela says there was no one forcing the students to attend.

Statistically, there would be students entering first year who have already been victims of sexual violence — something Dr MacNeela says his team was conscious of. The classes are about discussing consent as a “norm”, and orientation week seemed like the best time to run the workshops, he noted.

Dr MacNeela says the feedback from the classes has been good: “People do enjoy them”.

There is currently no legislative definition of consent under Irish law, something RCNI says is urgently needed. “At the heart of all sexual violence crime is consent — and we don’t have a definition for that,” says Ms Saidlear.

Without a legislative definition of consent Ireland relies on case law from other jurisdictions such as England, says Susan Leahy of the school of law, University of Limerick.

This ties in with the work being carried out by certain initiatives and the work of non-governmental organisations, because there is no guidance available from the State, says Ms Leahy.

”We’re trying to educate young people without a clear mandate.”

A legislative definition of consent won’t fix everything, she says, as it would take time to come into effect and for judges to interpret it: “But it would kick start the conversation.”

A recent judgement will have implications for future cases involving sexual violence and consent; Last week, a seven-judge Supreme Court dismissed an appeal from a man convicted of raping his mother in 2008.

The appeal was on the basis that the man claimed he was under the genuine belief that his mother had given her consent. She had said the incident was not consensual.

The judgement from this case will now provide guidance in the future to judges when explaining the law on rape to juries; in particular in relation to cases when a defence is based on an alleged belief that a woman was consenting to sex.

While the Rape Crisis Network Ireland welcomes the clarification this case offers regarding consent in sexual violence law , it says there should be no reason not to include a definition for consent under the Sexual Offences Bill.

“We would say to the Tánaiste Fitzgerald in light of this ruling and as the Criminal Law (Sexual Offences) Bill goes to committee stage in the Oireachtas that there now does not appear to be any impediment to including a positive definition of consent. Indeed, we would contend this clarification of the law as it currently stands would offer reason to introduce a positive definition of consent,” it adds.

In a previous interview with the Irish Examiner, Tánaiste and Justice Minister Frances Fitzgerald said the department was examining if it would be possible to add a definition for consent to the Sexual Offences Bill.

If it was possible and found to be in the interest of victims, it would be inserted during the committee stages of the bills passage through the Oireachtas, the Tánaiste said.

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