Thursday 14 December 2017

New law's clarity long overdue to tackle the muddled thinking on sexual consent

One in 10 Irish surveyed believed being drunk or on drugs justified sex without consent (Stock photo)
One in 10 Irish surveyed believed being drunk or on drugs justified sex without consent (Stock photo)
Shane Phelan

Shane Phelan

A sizeable cohort of Irish people have decidedly peculiar views when it comes to the issue of sexual consent.

A recent Eurobarometer study found that one in five of us believes it is acceptable to have sexual intercourse without consent in certain situations. These included a smaller proportion of people who feel wearing certain clothing and going home with someone makes sex without consent OK.

One in 10 Irish surveyed believed being drunk or on drugs justified sex without consent.

Given the extent of this muddled thinking, it is perhaps unsurprising that the legislation governing the area has long been accused of lacking precision and clarity.

For example, it is not officially recognised in law that people cannot consent to sex when they are unconscious.

That is all about to change after the Cabinet this week approved measures tabled by Tánaiste Frances Fitzgerald to define consent, including situations when consent simply cannot be given.

Once enacted, the Criminal Law (Sexual Offences) Bill will clearly state that a person is incapable of consenting to a sexual act in certain circumstances.

These will include if they are asleep, unconscious as a result of intoxication, or unable to communicate because of a physical disability. The law will also mean consent cannot be offered through a third party.

The legislation is long overdue. Proposals in the area have been knocking around since the late 1980s.

The definition is perhaps somewhat fortuitously being tacked on as an amendment to a rather diverse sexual offences bill originally drafted in 2015.

That the Supreme Court had to intervene last year to clarify certain issues regarding consent left the Government with little option but to take action.

The new law is being introduced at a time when sexual offences are on the rise. CSO figures last autumn showed a 13pc year-on-year increase in sexual crime.

However, new legislation on its own will not put a dent in this. If the Eurobarometer findings are anything to go by, serious thought should be given by the State to funding a wide-ranging publicity campaign to accompany the passing of the bill into law.

The consent issue is just one of a number of gaps in our sexual offences laws the bill aims at closing. In many ways it is an effort to keep pace with technological advances, which have given rise to new methods of sexual exploitation, particularly of minors.

There is already plenty of legislation in relation to dealing with child abuse and child pornography offences.

But the bill will now add other offences, giving Ireland some of the most advanced child protection laws in the world. For example, it will become an offence to live stream a pornographic performance involving a child over the internet.

There will be a new offence targeting child sexual grooming via mobile or internet technology.

It will also become easier for children to give evidence in court, where they will be able to provide testimony behind a screen.

An accused person will also no longer be allowed to personally cross examine an alleged victim under the age of 14, or if the court orders, a child aged between 14 and 18.

Where there may be controversy in the bill is in provisions which will make it an offence to pay for sexual services. While critics fear this may drive prostitution further underground, Ms Fitzgerald has been adamant it will address trafficking and sexual exploitation of prostitutes.

Irish Independent

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