Sexual consent and the harmful reality of the 'grey area'

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Details: Parent Category: Comment; Category: In brief; Last Updated: Wednesday, 25 September 2019 09:13; Published: Wednesday, 25 September 2019 08:14; Written by Eibhlin Toomey; Hits: 9546

We live in a cultural climate where consent and sexual violence has dominated media outlets in recent years, with global campaigns such as #MeToo and high-profile rape trials which have highlighted the prevalence of sexual assault today and exposed rape culture (Davies 2018). This article aims to examine why consent seems to be such a difficult topic to understand, perceive and ultimately enforce by looking at Irish legal definitions and societal perceptions and misperceptions to understand why consent is considered a grey area.

The Oxford English Dictionary defines rape culture as “A society or environment whose prevailing social attitudes have the effect of normalizing or trivializing sexual assault and abuse” (Oxford English Dictionaries 2018). By OED standards when a judge herself asks a jury to keep in mind the underwear choices of a 17-year old alleged rape victim in their deliberations, this most definitely exhibits the signs of rape culture in Ireland (Dillon 2018).

Consent under Irish law

Rape is defined under Irish law in the Criminal Law (Rape) Act, 1981. Section Two of the Act states "(1) A man commits rape if (a) he has unlawful sexual intercourse with a woman who at the time of the intercourse does not consent to it, and (b) at that time he knows that she does not consent to the intercourse or he is reckless as to whether she does not consent to it.” (Criminal Law (Rape) Act, 1981). The parameters of this legislation were expanded by the Criminal Law (Rape) (Amendment) Act, 1990 Section 4 which created gender-neutral terminology in the definition of rape while also including anal penetration and penetration by an object in its definition. Also legislating for marital rape and including that the failure to resist an act does not in itself equate consent to the act (Criminal Law (Rape) (Amendment) Act, 1990).

While consent was paramount to both these Acts a legislative definition of the term was not instituted until the creation of the Criminal Law (Sexual Offences) Act 2017. This Act stipulates in Section 48. “(1) A person consents to a sexual act if he or she freely and voluntarily agrees to engage in that act.” (Criminal Law (Sexual Offences) Act 2017, Section 48). The Act importantly goes on to legally define scenarios where consent cannot be given including through fear or threat of force, while asleep or unconscious, incapacity due to the effects of drugs or alcohol and includes several other stipulations (Criminal Law (Sexual Offences) Act 2017, Section 48). The Act also specifies that the list of scenarios where consent cannot be given is not definitive and acknowledges there may be scenarios not covered within its legislation. The legislation also stipulates that consent can be withdrawn at any time, including while a sexual act is taking place (Criminal Law (Sexual Offences) Act 2017, Section 48).

While amending the legislation to include legal definitions of consent and scenarios where consent can be given was a long awaited and necessary measure for the Irish legal system there remains no definition legally of what constitutes consent. No parameters have been set as to whether consent needs to be given verbally or can implied through an individual’s behaviours. As such the legal task of deciding if an individual did indeed consent to an act in sexual assault cases can be difficult as there are no factors to establish what constitutes consent. While this could cause potential harm within the criminal justice system as to whether consent is given or not, it is also an important distinction which needs to be understood by anyone partaking in sexual encounters. If an individual is unsure of how consent can be given, there is a question of how they can be sure it has been given at all. The shortcoming of this definition is a fundamental flaw affecting how the Irish public can perceive and understand consent.

Societal perceptions of consent

The societal perception of sexual harassment has had an evident knock-on effect upon acknowledging and reporting sexual violence. The Union of Students Ireland ‘Say Something’ campaign in its Study of Students’ Experiences of Harassment, Stalking, Violence & Sexual Assault (2013) found a reluctance by student victims of sexual assault and harassment to report an incident. This reluctance the students surveyed claimed was due to a stated cultural normalisation of sexual harassment behaviour which is viewed as “just a laugh” or “typical lad” behaviour (USI Equality 2013, p.17). This report highlighted the under-education of college students regarding consent as 57% of those surveyed believe harassment incidents were not serious enough to report, 44% believing them not to be a crime and 22% believed they would be blamed for what happened, highlighting a lack of understanding of what constitutes consent (USI Equality 2013 p. 6). Worryingly despite this unwillingness to report harassment 31% of women surveyed reported feeling harassed, 19% of those had been physically groped, 11% subject to unwanted sexual contact and 5% victims of rape (USI Equality 2013 p. 7). Less than 3% of the female students surveyed had reported an unwanted sexual experience to An Garda Siochana (USI Equality 2013 p. 29). The statistics found in these reports emphasise the rape culture and normalisation of rape myths within Irish society today.

The Irish SAVI report (2002) highlighted the reluctance of those who have experienced sexual assault to report this crime with only 8% of those surveyed having done so. The perception of rape and ‘rape myths’ were also emphasised in the report’s findings with 40% believing that rape allegations were often false and 29% believing women who wear revealing clothing are ‘inviting rape’ (McGee et al., 2002 p.156). Another survey disturbingly found that 21% of Irish people believe sexual intercourse without consent is justifiable in some circumstances, with 27% of the overall EU respondents agreeing to this statement (European Commission 2016 p.7, 65). Rape myths as such are culturally absorbed by society as well as by the victims of the crimes themselves.

Positive change

However, positive (albeit non-governmental) action has already been taken to counteract the current deficiency in our education system such as the European CONVEY project and NUIG SMART Consent campaigns have focused on understanding the main issues of how and when consent can and cannot be given (Conveyproject.eu 2017; MacNeela et al. 2018). Such modern campaigns focus on the portrayal of affirmative consent, “an action, not a space of mind” is required, thus while non-verbal behaviour is constituted as consent, passivity is not (Halley 2016, p. 262). One of the most recognised theoretical definitions of consent is Hickman and Muelhenhard’s theorisation which describes consent as “the freely given verbal or nonverbal communication of a feeling of willingness to engage in sexual activity”, thus including both the implicit willingness as expressed explicitly (1999, p. 259). As the topic and act of consent effects so many lives it is imperative that further research and education on the subject continues.

Backlash

The prevalence of media campaigns and outcries against sexual violence paramount in the last few years have placed the topic of consent as a current hot button issue (Me Too Movement 2019). However, media representations of consent campaigns and the usefulness of promoting the awareness and understanding of the topic have recently faced backlash. These campaigns have been misconstrued by some resulting instead in the perpetuation of a view that males should fear accusations of sexual assault rather than the promotion of positive understandings of consent (Power 2019). The recent proposal by a UCD medical student for a consent app which would remove the possibility of a women later retracting consent was proposed to protect men from the growing fear of being “sued post intercourse due to consent not being recorded/denied/retracted, [and] the life destroying legal ramifications that follow” (Power, 2019). The lack of understanding of consent is highlighted here as the illogicality of this endeavour blatantly ignores the fact consent can legally be withdrawn (Criminal Law (Sexual Offences) Act 2017, Section 48). The fact that this was thought to be logistically and legally possible exemplifies and highlights the failings of education on consent and justifies the recommendation for increased discourse and education on the topic.

Conclusion

It is clear that continued research is needed academically, legally and governmentally to examine the topic of sexual consent in Ireland. This examination is needed to ensure we as a nation understand sexual consent to the utmost. Striving to eventually dispel rape myths caused by this lack of knowledge and remove the insidious, dangerous misconceptions produced by their internalisation. Ultimately endeavouring to removing the ambiguous grey area in which perpetrators are free to hide and where women’s character and clothing are free game.

References

Conveyproject.eu. (2017). Convey Project. [online] Available at: http://conveyproject.eu/ [Accessed 11 Mar. 2019].

Criminal Law (Rape) (Amendment) Act, 1990. No. 32. Office of the Attorney General: Houses of the Oireachtas.

Criminal Law (Rape) Act, 1981. No. 10. Office of the Attorney General: Houses of the Oireachtas.

Criminal Law (Sexual Offences) Act 2017. No. 2. Office of the Attorney General: Houses of the Oireachtas.

Davies, C. (2018). Online support grows for women after rugby stars' rape acquittal. The Guardian. [online] Available at: https://www.theguardian.com/law/2018/apr/09/online-support-grows-for-women-after-rugby-stars-acquittal [Accessed 14 Nov. 2018].

Dillon, F. (2018). Calls for legal reform in rape trials after court hears details of 17-year-old’s thong. The Irish Times. [online] Available at: https://www.independent.ie/irish-news/news/calls-for-legal-reform-in-rape-trials-after-court-hears-details-of-17yearolds-thong-37511224.html [Accessed 14 Nov. 2018].

European Commission (2016). Gender-based Violence. Special Eurobarometer 449. European Commission.

Halley, J. (2016). The Move to Affirmative Consent. Signs: Journal of Women in Culture and Society, 42(1), pp.257-279.

Hickman, S. and Muehlenhard, C. (1999). “By the semi‐mystical appearance of a condom”: How young women and men communicate sexual consent in heterosexual situations. The Journal of Sex Research, 36(3), pp.258-272.

MacNeela, P., O’Higgins, S., McIvor, C., Seery, C., Dawson, K. and Delaney, N. (2018). Are Consent Workshops Sustainable and Feasible in Third Level Institutions?. SMART Consent. Galway: NUI Galway.

McGee, H., Garavan, R., de Barra, M., Byrne, J. and Conroy, R. (2002). The SAVI Report- Sexual Abuse and Violence in Ireland. Dublin: Liffey Press.

Me Too Movement. (2019). Me Too. Movement. [online] Available at: https://metoomvmt.org/ [Accessed 22 Apr. 2019].

Oxford English Dictionaries. (2018). Rape Culture. [online] Available at: https://en.oxforddictionaries.com/definition/rape_culture [Accessed 14 Nov. 2018].

Power, J. (2019). Apology after ‘consent app’ proposal sent to UCD computer science students. The Irish Times. [online] Available at: https://www.irishtimes.com/news/education/apology-after-consent-app-proposal-sent-to-ucd-computer-science-students-1.3822963 [Accessed 17 Sep. 2019].

USI Equality (2013). Study of Students’ Experiences of Harassment, Stalking, Violence & Sexual Assault. SAY SOMETHING. Dublin: Union of Students Ireland.

Eibhlin Toomey has just successfully completed her BA Criminology with first-class honours at the University College Cork, Ireland, and her dissertation, the basis of this article, is published in the Internet Journal of Criminology at https://www.internetjournalofcriminology.com/undergraduate-masters-dissertations.