New statutory definition of sexual consent would challenge views on rape

UN Secretary General Ban Ki Moon has said "Violence against women takes a devastating toll on women's lives, on their families and on society as a whole. Most societies prohibit such violence – yet the reality is that too often, it is covered up or tacitly condoned".

Eradicating violence against women is a core priority for National Women's Council of Ireland (NWCI). While progress is being made, a number of key issues need to be addressed. There is a failure to understand the causes and consequences of violence against women, the pervasiveness of the problem and the huge challenges women face in coming forward, reporting crimes, surviving the criminal and civil legal system and rebuilding a life for themselves and their children. At least one in five women in Ireland experience domestic and/or sexual violence.

Last week we witnessed the courage and determination of Niamh Ní Dhomhnaill who waived her anonymity in the rape case against her former boyfriend, Magnus Meyer Hustveit, only to be told that although he admitted guilt and wrongdoing he will receive a seven-year suspended sentence.

Our laws prohibit such serious violence yet we implicitly condone it through lenient sentencing.

NWCI welcomed the publication last week of the Heads of Criminal Justice (Victims of Crime) Bill by Minister for Justice Frances Fitzgerald in order to transpose the EU directive on victims' rights into Irish Law. This legislation aims to move victims' rights centre stage in the criminal justice system. Its implementation will be supported by the new Victims Unit and local offices in An Garda Síochána. It is hoped that when victims are given statutory rights they will feel supported to pursue their cases and experience justice for the crimes that have been committed against them; and that the current high attrition rates for violence against women will be reduced.

The new Garda unit to address domestic and sexual violence and the development of a new Garda policy on domestic violence are also welcome, particularly in light of the recommendations of the Garda Inspectorate Report which highlighted the failings by An Garda Síochána to pursue domestic violence as a serious crime. These national reforms require both increased personnel and financial resources for effective implementation. Specialist units in each Garda division should now be established to address domestic and sexual violence and ongoing training is required to develop an expertise within the force that both supports the victim and pursues perpetrators to arrest and conviction.

We also welcomed the Heads of the Criminal Law (Sexual Offences) Bill, which aims to increase protection for victims of sexual violence as it introduces much needed reforms. However, it does not include a definition of consent which is a significant gap. Such a definition exists in other jurisdictions like the UK and Canada. It is very difficult to prove absence of consent in sexual offence cases, however a statutory definition of consent would challenge the stereotypes on rape and spell out the elements necessary to constitute genuine consent to sexual engagement. This is critical in light of recent commentary on rape within relationships and marriage.

In addition, guidelines for the judiciary for sentencing in rape and sexual assault cases are urgently needed so that sanctions are effective, consistent, proportionate and dissuasive. Training on intimate-partner abuse and sexual violence should be a requirement for the judiciary in both civil and criminal courts.

NWCI has consistently called for comprehensive data on sexual violence. The Sexual Abuse and Violence in Ireland (SAVI) report was published in 2002. A SAVI 2 report is long overdue and it is essential that this is funded and delivered in 2016.

The Government has also promised the introduction of new domestic violence legislation and a new strategy on violence against women. The legislation should establish domestic violence as a crime its own right with the potential of serious sentences, provide for emergency barring orders and a new offence of stalking. Critically the Government has promised to sign and ratify the Council of Europe Convention on Violence Against Women (Istanbul Convention) widely acknowledged as the blueprint for best practice in relation to tackling domestic and sexual violence.

All these legislative developments and promises are welcome. However NWCI is very concerned at the slow progress. Ireland’s failure to adequately challenge or respond to violence against women has come into serious national and international focus. On June 22nd the UN Committee overseeing Ireland’s compliance with the International Covenant on Economic, Social and Cultural Rights condemned Ireland’s record on responding to violence against women. The committee highlighted the legislative gaps in investigating and sanctioning perpetrators as well as the gaping hole in providing protection and assistance to survivors of such violence due to funding cuts.

Increased investment to frontline services and advocacy organisations is drastically needed so that women can receive the critical support they need. Budget 2016 provides an opportunity for Government to prioritise the issue of violence against women and commit the necessary resources both to frontline services and to effective implementation of Government strategies.

For NWCI and women throughout Ireland there can be no real equality between women and men if women continue to experience gender-based violence and the state fails to respond to the scale of the problem.

Orla O’Connor is director of NWCI and is chair of the Irish Observatory on Violence Against Women