Dearbhail McDonald: Is intimate partner violence less of a crime in law's eyes?
George Hook's comments on consent within relationships were clumsy, but voiced what many were thinking, says Dearbhail McDonald
Published 19/07/2015 | 02:30
The conviction and sentencing of rapist Magnus Meyer Hustveit was a truly exceptional case.
This is not just because the baby-faced Norwegian (25), with a penchant for watching porn, received a wholly suspended seven-year jail term for repeatedly raping and sexually assaulting his former girlfriend Niamh Ni Dhomhnaill in her sleep.
It's not just because he walked free having convinced himself, at the tender age of 22, that repeatedly raping a woman for short-term gratification in her sleep is "a victimless crime", one he justified because he "wasn't allowed to watch porn" or masturbate.
For her part, Ms Ni Dhomhnaill, who attempted suicide after Hustveit admitted in an email exchange that he regularly raped her in her sleep, says her experience of rape is one of "utter confusion".
She says that it tormented her for a long time that Hustveit did these acts to her without her waking. And she accepts that were it not for his exceptionally frank email admissions, which formed the single-strand backbone of the prosecution, the case was unprovable.
The former teacher said she was at first "fooled" that what had happened to her was not really rape, because it didn't fit in with how rape is often understood.
She wasn't the only one.
Last week, broadcaster George Hook, a recent convert to the art of writing erotic fiction, posed a clumsy question - akin to a sexual novice fumbling with a bra strap - to Labour Senator and criminal-law barrister Ivana Bacik.
It was a question that goes to the heart of underlying social attitudes towards sexual violence, especially of the intimate partner kind.
"What about this," said Hook in that tantalizing timbre that hints he's about to turn up the heat.
"Hypothetically…you go into a relationship with somebody, be it marriage or be it you're living with someone. So now you're sharing a bed with somebody, yes, and obviously sexual congress takes place on a regular basis because you're living with someone.
"Is there not an implied consent therefore that you consent to sexual congress?"
Bacik was stunned by what she described as Hook's "outrageous suggestion". Hook protested that he would never say a man has implied consent from the woman with whom he shares a bed, but the pair went on to agree that rape and sexual violence prosecutions are inherently more difficult where there is an existing or prior relationship.
That is borne out in part by the stark fact that while marital rape has been a crime on our statute books since 1990, we've only had one conviction so far, despite endless annual reports of sexual violence within marriage.
And it is also borne out by the fact that the prosecutions we are most familiar with are the 'stranger danger' or child sexual violence type, rather than that between formerly intimate partners.
Hypothetical as it was, the line of interrogation on implied consent was a near PR disaster for Hook, a usually erudite and perceptive broadcaster, who issued a statement clarifying his remarks after Ni Dhomhnaill blasted them as victim blaming and rape culture.
But in his clumsiness, Hook articulated questions about the vast landscape of consent within relationships that have been raised in the minds of many people - male and female - I've spoken to in the wake of Hustveit's suspended sentence.
To be absolutely clear, this was not a case of implied consent. To be convicted for rape, the perpetrator must know that he did not have the consent of his victim or was reckless as to whether she consented.
Hustveit knew that he did not have Ni Dhomhnaill's consent after she confronted him (she woke up one night three years ago to find herself wet with what she believed was semen) and he admitted having sex with her while she slept.
Her protest acknowledged, the relationship continued - as did Hustveit's attacks.
The fact that Hustveit pleaded guilty rules out any notion of implied consent.
But his attitude towards his crimes ("I just wanted to come") and Hook's bungled navigation of implied consent are highly revealing.
Context and consent is critical when it comes to sex.
If a strange man gropes me in a public place (and, like many women, this has happened to me), that is a sexual assault, capable of being prosecuted.
If he is my lover and I rebuff a similar advance - I have a tongue-in-cheek 'not tonight dear…I'm on deadline' mug from the Newseum in Washington DC for such scenarios - is that something else?
If I (hypothetically) wake a lover up during the night for sex and they're none too pleased about it - there are voluminous websites and women's magazines advising on how best to go about mid-sleep arousal - can I argue that there is an implied consent he's up for it, even if the timing is all wrong?
This is not to trivialise the notion of consent.
No always means no, no matter how established or committed a couple are and no matter how advanced the sexual congress - to use Hook's phrase - is.
The reaction to Hustveit's non-custodial sentence, entirely within the range of sentencing options open to judges, has ranged from anger to incomprehension and commentary - in private - that it was an exceptional case that warranted an exceptional - ie. suspended - sentence.
Given Hustveit's guilty plea and extensive co-operation with gardai, I wonder will there be a huge appetite within the office of the Director of Public Prosecutions to appeal it on grounds of undue leniency?
Can a rapist walk away from a jail term just because he "wanted to come?"
Is it ever OK to accept a non-custodial term for rape?
An appeal would be welcome, not least to test whether intimate partner violence is truly in a class of its own.