Tuesday 28 February 2017

The law must define what consent is to help courts tackle rape

Ellen O'Malley Dunlop

Minister for Children and Youth Affairs, Katherine Zappone and Noeline Blackwell, chief executive of the Dublin Rape Crisis Centre at the launch of the centre’s annual report in Dublin this week. Photo: RollingNews.ie
Minister for Children and Youth Affairs, Katherine Zappone and Noeline Blackwell, chief executive of the Dublin Rape Crisis Centre at the launch of the centre’s annual report in Dublin this week. Photo: RollingNews.ie

In the 17th century, the English chief justice Sir Matthew Hale wrote: "The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract, the wife hath given up herself in this kind unto her husband, which she cannot retract."

For the most part, after 1922, all previous English law continued in effect in the new independent Irish State. Rape within marriage was not perceived to be an offence in Ireland until the law was changed in 1990. Sadly, some attitudes still reflect Hale's pronouncement, whereby some husbands can think that their wives implicitly give consent to sex by virtue of the fact that they are married.

At a conference entitled 'Rape Law: Victims on Trial', held in Dublin Castle in 2010, the then President, Mary McAleese, said that victims of rape who were able to report these most heinous crimes committed against them and stay the course of the criminal justice process were doing a service to all of society. The overall consensus from that conference was that victims, even those whose perpetrators were found guilty, felt that they, rather than the accused, were the ones being put on trial by the criminal justice system.

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