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The idea that a person should be criminally punished for not making sure that a sexual partner has consented to penetrative sex is canvassed in the latest issues paper from the Law Reform Commission.
The law as it stands arguably encourages men “to adhere to sexist stereotypes to defend themselves”, thereby entrenching “sexist ideologies”, the paper says.
Irish law on rape says that an accused is only guilty when the sexual act occurred without consent and the accused knew there was no consent or was reckless as to whether consent existed.
The latter element of the definition is called the “mental element” of rape. It reflects the view that people should not be found guilty of serious criminal offences if they did not know at the time that they were committing an offence.
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To label someone a rapist is one of the most stigmatising things the justice system can do. Conviction involves a potential life sentence. “It could be argued that it is unfair to be labelled a rapist for making a mistake,” the paper notes.
On the other hand, the paper also states, it is of little comfort to the woman who has suffered sex without consent to learn that the man is not guilty of rape because he didn’t know she had not consented.
“If one of the purposes of criminal law is to prevent harm and provide retribution where harm is caused, it arguably does not follow that inadvertent or careless actions should be ignored, particularly where the harm can be easily avoided by a simple inquiry.”
‘Honest belief’
A claim by an accused man that he genuinely believed that the woman had consented to sex is called the “honest belief” defence.
Rape cases rarely depend on “honest belief” defences and are more usually focused on whether the woman actually consented at the time to the sexual act. This is why complainants often say that they felt it was as if they, rather than the accused, who was on trial.
While the honest belief defence is rarely relied upon in court, the principles raised by the topic are strongly debated in academia and society generally.
“It is worth considering the harm to society caused by the requirement of knowledge [the mental element] in the rape offence,” notes the commission paper, which is focused on the law as regards men accused of vaginal rape.
“The honest belief defence arguably legitimises and thus bolsters rape myths and sexist stereotypes that lead to victim-blaming attitudes and perceptions. These myths could include that dressing in a so-called provocative fashion invites violence; or if a woman did not fight back, it was not rape; or if two people have had sex with each other on a previous occasion there is ‘implied consent’.”
As matters stand, the paper notes, it could be argued that consent can be presumed, by the man, as long as the woman does not positively indicate that she does not want to engage in intercourse.
“This prejudices women who do not have the capacity, for whatever reason, to actively indicate their non-consent to penetration,” it says.
“Moreover, it is arguable that the defence may even encourage men not to engage in affirmative consent. As soon as a man inquires about consent, he may no longer rely on his honest belief in consent premised on the woman’s passivity.”
The paper also canvasses the idea that it is legitimate to punish a man for having sex with a woman whom he mistakenly believed was consenting to the act.
‘Moral obligation’
“It is arguable that in a situation as intimate and mutual as sexual intercourse, where the whole legality of the activity is premised on consent, there is a moral obligation to take the minimal step of ensuring that it is consensual.”
In law the notion of recklessness requires “advertence”. It requires that an accused thinks briefly about the issue of consent, but then decides, so to speak, not to worry about it any further.
A person who gives no thought whatsoever to the issue of consent, is not therefore viewed in law as having been reckless.
“Criminalising conscious advertence to the possibility of non-consent, but excusing the failure of the accused to give minimal thought to consent at all, to the extent that the woman could be said to be completely objectified, is arguably contrary to the goal of protecting the bodily autonomy of women,” the report notes.
In most other common law jurisdictions, including Northern Ireland, the belief that a woman consented must be a reasonable one. This introduces an objective test to the “mental element” of rape law.
In the Republic, an honest although unreasonable belief that a woman consented, is a defence against rape.
The commission is seeking submissions on whether the law should be changed to introduce an objective element to the consent test, and also whether a lesser rape offence, for persons who unreasonably, but honestly believed a woman had consented to sex, should be introduced.
It is not suggested that men who had an honest and reasonable belief that a woman had consented to sex could be found guilty of an offence.
The report can be read at lawreform.ie.