Law and Gender in Modern Ireland

Critique and Reform

Lynsey Black, Peter Dunne, Lynsey Black, Peter Dunne

• Publisher: Hart Publishing
• Year: 2019
• ISBN:
  9781509917235
• Edition: 1
• Topic: Derecho
• Subtopic: Género y legislación

Law and Gender in Modern Ireland: Critique and Reform is the first generalist text to tackle the intersection of law and gender in this jurisdiction for over two decades. As such, it could hardly have come at a more opportune moment. The topic of law and gender, perhaps more so than at any other time in Irish history, has assumed a dominant place in political and academic debate. Among scholars and policy-makers alike, the regulation of gendered bodies, and the legal status of sexual and gendered identities, is now a highly visible fault line in public discourse. Debates over reproductive justice (exemplified by the recent referendum to remove the '8th Amendment'), increased rights for lesbian, gay, bisexual and transgender persons (including the public-sanctioned introduction of same-sex marriage) and the historic mistreatment of women and young girls have re-shaped Irish public and political life, and encouraged Irish society to re-examine long-unchallenged gender norms. While many traditional flashpoints remain such as abortion and prostitution/sex work, there are also new questions, including surrogacy and the gendered experience of asylum frameworks, which have emerged. As policy-makers seek to enact reforms, they face a population with increasingly polarised perceptions of gender and a legal structure ill-equipped for modern realities. This edited volume directly addresses modern Irish debates on law and gender. Providing an overview of the existing rules and standards, as well as exploring possible options for reform, the collection stands as an important statement on the law in this jurisdiction, and as an invaluable resource for pursuing gendered social change. While the edited collection applies a doctrinal methodology to explain current statutes, case law and administrative practices, the contributors also invoke critical gender, queer and race perspectives to identify and problematise existing (and potential) challenges. This edited collection is essential reading for all who are interested in law, gender and processes of social change in modern Ireland.

PART I

Gender and the Criminal Law

1

Sexual Offences Law in Ireland

Countering Gendered Stereotypes in Adjudications of Consent in Rape Trials

SUSAN LEAHY

I.Introduction

Set as it is against a backdrop of society’s understandings of appropriate and inappropriate sexual behaviour, there are few areas of the law more impacted by gender roles and stereotypes than the law on sexual offences. Ideals and societal expectations of appropriate socio-sexual behaviour for men and women, boys and girls, permeate every aspect of the law in this area. Indeed, entire volumes have been dedicated to discussions of these issues.¹ Given the inevitable space limitations of one chapter, it is not possible to fully rehearse the myriad ways in which gender considerations have influenced the development and implementation of the substantive and procedural law on sexual offences. The substantive rules relating to adjudications of consent in rape trials is the chosen focus here, as they represent a paradigm example of the impact of gendered stereotypes on the operation of sexual offences law. Further, an examination of this area of the law is timely, as the Criminal Law (Sexual Offences) Act 2017 has for the first time introduced a statutory definition of consent in Ireland. Although welcome, this reform effort remains unfinished as the rules relating to the defendant’s mens rea regarding consent, namely, the honest belief in consent defence, have yet to be reformed. This chapter is an opportunity to reflect on recent achievements whilst highlighting that much remains to be done if the influence of gendered stereotypes on the difficulties of proving an absence of consent in rape trials is to be tackled effectively.

The chapter begins with a consideration of how societal factors affect the operation of rape law and, specifically, impact upon adjudications of consent in rape trials. The substantive rules on consent and honest belief will then be discussed and critiqued and suggestions for further reform will be offered. The chapter concludes with a reflection on the need for change outside the formal legislative process if real progress is to be made in this area.

II.Rape Myths and Realities: The Attitude Problem in Rape Trials

The impact which prejudicial and erroneous attitudes about rape and rape victims exert on the operation of the law was first highlighted by radical feminists in the latter decades of the twentieth century. Commentators like Estrich suggested that the problem with rape law was ‘not the wording of statutes per se but rather our understanding of them … how a judge interprets and directs a jury, the “common sense” understandings of rape against which a juror will assess a rape allegation’.² Unfortunately, these ‘common sense’ understandings are often imbued with misperceptions about rape and rape victims. These misperceptions may be classified as ‘rape myths’, that is, ‘descriptive or prescriptive beliefs about rape (ie about its causes, context, consequences, perpetrators, victims and their interaction) that serve to deny, downplay or justify sexual violence that men commit against women’.³ Although the theory that societal attitudes (which may be erroneous and/or prejudicial) influence sexual offence trials was originally posited by feminists, it is now a generally accepted fact. For example, in the first edition of his seminal text on Irish sexual offences law, O’Malley acknowledges that ‘The study of sexual offences is in many ways a study of social values’.⁴ Similarly, McCullagh suggests that jurors’ ‘common sense’ understandings of consent ‘may reflect and embody the range of sexual stereotypes of rape that exist in Irish society’.⁵

The most oft-cited rape myth is the ‘real rape’ stereotype. Estrich defines ‘real rape’ as ‘a sudden surprise attack by an unknown, often armed, sexual deviant’ which ‘occurs in an isolated, but public, location and the victim sustains serious physical injury, either as a result of the violence of the perpetrator or as a consequence of her efforts to resist the attack’.⁶ The effect of this myth is that attacks which do not adhere to the ‘violent stranger in a dark alley’ stereotype are less likely to be seen as rape. This is problematic because, contrary to the myth, the majority of rapes involve offenders who are known to their victims, occur in private locations and typically involve little, if any, physical violence and serious injury such as wounds or broken bones. The erroneous nature of the ‘real rape’ stereotype is neatly illustrated by the findings in Rape and Justice in Ireland (hereafter ‘RAJII’), the most comprehensive and detailed Irish research on rape.⁷ There were three strands to this research, focusing on the primary attrition points for rape cases: (1) the victim’s decision to report to the Gardaí;⁸ (2) the Director of Public Prosecution’s (DPP) decision to prosecute;⁹ and (3) the trial.¹⁰ The reality of rape identified across the three strands of this research is squarely at odds with stereotypical expectations of ‘real rape’.

First, the majority of victims were raped by someone they knew. Of the victims interviewed in strand one of the research, 34 per cent had been raped by a stranger, with 25 per cent and 14 per cent reporting acquaintances and friends, respectively, as their attackers.¹¹ In the DPP files surveyed, 58.2 per cent of defendants were classified as ‘friend’ or ‘acquaintance’ with only 10.9 per cent identified as strangers.¹² Within the Central Criminal Court files analysed, nearly three-quarters of the complainants identified their attacker as someone with whom they had some form of prior relationship.¹³ Second, private as opposed to public locations were the most likely locations for rape. In the Central Criminal Court files, approximately three-quarters of the incidents in which the setting was specified occurred in a private place or vehicle.¹⁴ The complainant’s home was the most common location for attacks in both the interviews with victims¹⁵ and the DPP files.¹⁶ Finally, while the RAJII findings revealed that the majority of rapes involved some degree of force, the physical injuries sustained by victims tended to be relatively minor. For example, in the victim interviews, 71 per cent reported that the defendant used physical force against them,¹⁷ but 44 per cent of those reporting the use of force stated that the physical injury they incurred was relatively minor (eg bruises, cuts or scratches).¹⁸ Similarly, in the Central Criminal Court files, 70 per cent of complainants for whom medical reports were compiled reported physical injuries¹⁹ but only a minority of these were recorded as serious (ie broken bones,²⁰ strangulation marks²¹ or knife wounds²²).²³ Thus, the typical rape in Ireland is quite unlike the ‘real rape’ stereotype.

The other key, possibly even more pernicious, rape myth relates to expectations about victims themselves. Within rape trials, victim behaviour is scrutinised to determine whether the complainant is a ‘real victim’. As Larcombe notes:

Law’s ‘ideal victim’ is no longer sexually chaste but she is consistent, rational and self-disciplined; she rarely has a history of mental illness or sexual abuse, and she does not drink alcohol to excess or otherwise engage in ‘risky’ behaviour.²⁴

Of course, in reality, rape victims will rarely conform to this idealised archetype. Most notably, alcohol is a regular feature in rape cases and was a common factor across all three strands of RAJII. For example, in strand one, over two-thirds of the victims interviewed reported that they had been drinking at the time of the incident, the majority having consumed three or more drinks.²⁵ The DPP files showed that 80 per cent of the complainants had consumed alcohol around the time of the incident, with 45.4 per cent described as severely intoxicated.²⁶ Similarly, in the Central Criminal Court files, nearly two-thirds of complainants had engaged in what is officially medically classified as ‘binge-drinking’²⁷ prior to the incident.²⁸ Fifteen per cent reported consuming illegal drugs (predominantly cannabis or marijuana).²⁹ The expectation of consistency and rationality is also misguided. Given the trauma of rape and the fact that victims are very likely to blame themselves for their victimisation, expecting consistent accounts to be given throughout the investigation and trial is a fallacy. Nonetheless, expectations of ideal victim behaviour allow for victims to be portrayed as unreliable or unworthy of the victim label.

Despite the erroneous nature of rape myths, they are still prevalent in Irish society,³⁰ as demonstrated in the results of a recent Eurobarometer Report which surveyed perceptions of EU citizens about gender-based violence.³¹ Twenty-four per cent of those surveyed agreed that women are more likely to be raped by a stranger than someone they know.³² Twenty-three per cent agreed that women often make up or exaggerate claims of abuse or rape.³³ Further, although the numbers are considerably lower, there are still stereotypical expectations of ‘real’ victims. Eleven per cent of respondents believed that if someone is drunk or on drugs, that may make having sexual intercourse with them without consent justified. Further, 9 per cent of participants believed that voluntarily going home with someone or wearing revealing, provocative or sexy clothing could justify non-consensual sexual activity.³⁴ Although these figures demonstrate that rape myth acceptance (RMA) does not prevail amongst the majority of the population, attachment to ideals of ‘real rape’ and ‘real victims’ persist amongst a not insignificant proportion of society. Indeed, the existence of RMA may be higher than the statistics suggest. Ellison and Munro argue that ‘participants who respond to questionnaires may be well-versed in the socially “appropriate” attitudes to be voiced at this abstract level, and so may present a more progressive profile to the researcher than they in fact endorse’.³⁵ If this is the case, then attitudes which are not articulated by the majority in surveys may surface in real-life assessments of rape allegations.

If these attitudes persist in society, they are likely to influence juror deliberations in rape trials. As Temkin and Krahé highlight, jurors do not leave their long-held attitudes behind in the cloakroom when they enter a courtroom.³⁶ Research with juries is prohibited in Ireland and as yet mock jury research has not taken place in this area in this jurisdiction, but English research demonstrates the impact which RMA can have upon mock juror deliberations in rape trial simulations. Research conducted by Temkin and Krahé showed that jurors were more convinced that a defendant should be held liable and placed less blame on the complainant in stranger rapes than in rapes by acquaintances, and in particular, rapes by ex-partners.³⁷ Further, in mock jury research conducted by Ellison and Munro participants

exhibited a strong and, in many cases, unshakeable expectation that a genuine victim of rape would engage in vigorous physical resistance against her attacker, and that, as a result, there would be corroborative evidence of injury on the body of either.³⁸

Traces of ‘real victim’ stereotyping are evident in Finch and Munro’s research which showed that women who consume alcohol in the presence of a male drinker will be perceived as being...