Niamh Ní Dhomhnaill: sexual violence survivors must be involved in new consent laws 

The proposed changes to the legislation on consent are hopefully a welcome sign of improving criminal justice outcomes, but victims and survivors need more support to feel able to report rape or sexual assault in the first place

What legislators can do now, at this abstract stage, is to be curious about how the system appears to those of us who have experienced sexual violence, and more importantly, talk to us.

This year marked the 10th year since I had left an abusive relationship, and seven years since I waived my anonymity after an unsatisfactory outcome in the criminal courts.

Thankfully, many things have changed in my life in the intervening years. However, I still follow court cases, policies, and public commentary as I did back then. 

In the years that I waited to go to court, I watched and listened to try see how I might be judged — both in court and in media. 

Now, I observe because, whether I like it or not, I am still connected, and care deeply about the impact of sexual violence, practices in the legal system, and how sexual violence is spoken about and understood in society.

As I read the proposed changes to the law on consent last Wednesday morning, hopefully like many reading this, I was glad to see that further efforts are being made by the State to hold those accused of sexual offences to a greater account. 

This feels particularly pertinent in a week where it was reported there has been a significant increase in trials for sexual offences in Ireland.

The proposed change of the accused’s highly subjective ‘honest but mistaken belief’ seems to signal a move from privileging the perspective of the accused without scrutiny, to focus instead on the perspective of the victim or survivor. 

It hopefully says to those pursuing an outcome through the criminal justice system that their experience matters, and hopefully to ask questions of a person who is alleged to have caused considerable harm. 

It seems to seek to centre the survivor’s experience with the level of gravitas deserved, and to place accountability with the accused, rather than the survivor to prove it happened. 

This can only be a positive move for those considering reporting, and the worries of how to convince a jury, or how to overcome possible cross examination on one’s memories of the event/s. 

For many, including myself, this is the bit that plays on our minds — how do I convince a room full of strangers that something often called unspeakable really happened? 

This can be what prevents many people from coming forward and even considering reporting it — the oft-asked “Who would believe me?”. 

Justice Minister Helen McEntee has said: 'There will be an onus on the accused now to show that they took reasonable steps that any normal person would believe.' Picture: Sam Boal / RollingNews.ie

Justice Minister Helen McEntee has said: "There will be an onus on the accused now to show that they took reasonable steps that any normal person would believe.” 

The proposed objective test which Ms McEntee says “a reasonable person” would consider and understand the process of seeking consent obviously needs further detail. 

It will be interesting to see what the minister describes as an “objective test” looks like — is it based on such a test that is used successfully in other jurisdictions? 

I wonder how much might still come down to one person’s word against another? Or might the proposed change in legislation just lead the accused person to word their defence differently? 

My sense is that the devil is in the detail in this regard, and most likely it will not be until cases are tried under the proposed changes that we might be able to discern whether this change is effective or not.

What legislators can do now, at this abstract stage, is to be curious about how the system appears to those of us who have experienced sexual violence, and more importantly, talk to us. 

The system is intimidating and does not, in my view, give enough consideration to the impact of disclosure, and the multiple retellings of trauma. 

It was made very clear to me that I was a witness to the prosecution and my purpose was to aid a successful prosecution. A criminal case is not concerned with the impact — they are concerned with establishing what evidence there is to support an allegation, the lived experience of which can be whether someone feels believed or not. 

This is often what discourages people from reporting. It is for this reason that I believe that legislators should consult not only with those of us who have had outcomes in the criminal justice system, but also those who have not pursued criminal justice outcomes. 

I think the experiences of those who feel they could not pursue an outcome are imperative to consult — what was it that indicated to them it was not worth reporting?

We need to see ourselves in legislation and policies to feel we might be listened to and believed. 

Whether this makes use of gender neutral language or ensures there is more support for people who are considering making a report to the gardaí. 

It is my opinion that the focus, although understandable, is still over-stated on criminal justice outcomes. The missing piece, for me, is that most people are likely to need good support to feel able to report rape or sexual assault in the first place. 

If that support is not there, it is likely to be more difficult to walk into a Garda station and report it. The proposed changes to the legislation are hopefully a welcome sign of improving criminal justice outcomes, but victims and survivors need more than that — they need a myriad of supports, which might enable more people to come forward and report, should they choose to.

- If you are affected by any of the issues raised in this article, please click here for a list of support services.