Conor Murphy | Features Editor
Note : This article is about and discusses rape and sexual assault directly throughout, and may be triggering to some readers.
Consent is a legal issue that provokes high emotions in most people for very good reasons. Our rates of rape and sexual assault are incredibly high while also being terribly hard to measure. For example, the foremost authority on sexual assault in Ireland is the Rape Crisis Network Ireland (RCNI), and they don’t try to judge what the overall rates of rape and sexual assault are because they only deal with victims directly, and not the randomised sample you need to judge those rates. However, several international studies have shown that in colleges and universities, between 10 and 20 per cent of women have been sexually assaulted. Rates of sexual assault of men tend to be much lower, although it is to be noted that a lot less work is put into studying men as victims of sexual assault, thus producing figures that tend to be less concrete (one study found around fifteen per cent of men and twenty per cent of women had been sexually assaulted in college. Others commonly have a 10-to-1 disparity). The varying rates reported are due to the different types of questions that are asked. If the researcher asks directly using the word rape they generally get a vastly lower rate than if the researchers ask specific behavioral questions around consent and being forced to sexual acts.
Currently the law basically states that rape is sex without consent. Yet, it doesn’t go into detail about what consent actually is. In effect, it means it has to be blatantly obvious through verbal or physical resistance
What these vastly varied results indicate is that plenty of victims don’t define what happened to them as rape, even when courts might. Victims often said things like “I didn’t want to ruin his life” as the basis for not reporting assault. The RCNI states that less than half of people they talk to ever report the crime to a formal authority. But that’s half of the people who’ve actually gone to the RCNI. It is therefore tremendously likely that vastly more have not reported the assault to either a counsellor or a formal authority. Even more worryingly: an Irish Examiner survey in 2010 showed that more than 40 per cent of people find the woman to be either partially or totally responsible in cases of rape if she is drunk or on drugs, and 37% believe that if the woman flirts “extensively with a man”, she is partially responsible for the rape.
In American media recently, there has been a flurry of debate around consent law, specifically around colleges, where active consent laws – laws that mean that you have to be certain that your partner wants to sleep with you – have come in to effect. This has been triggered by the numerous cases of reported rapes going unprosecuted in American colleges. Some colleges that have introduced active consent laws have had it forced on them by their states, even though the states themselves don’t have these laws more generally. It has been mooted that it could very well be a testing ground for the states to see whether they can carry these expanded definitions of consent into criminal law.
In tandem with this, there are movements in Ireland (though mainly on a legal professional level) to bring some version of this into Irish law, and along with that, to bring massive awareness campaigns in about consent. Both are important as each other from a societal point of view, though the fact that Ireland has the lowest rape conviction rate in Europe means that doing anything to fix this legal side is of paramount importance. There are subtleties to do with these possible laws that we can not possibly get into here, but it is good to lay out the possible options for legal change.
As It Is/No Means No
Currently the law basically states that rape is sex without consent. Yet, it doesn’t go into detail about what consent actually is. In effect, it means it has to be blatantly obvious through verbal or physical resistance (or an intoxicated inability to give either) that consent is not given. Critics, including RCNI and the Oireachtas Committee that recently dealt with this matter, say this ignores the larger realities of sexual interaction. Further Amnesty International have said the stringent criteria for consent is a big component in why we have the lowest rape conviction rate in Europe, estimated at around 1 per cent of cases.
The proponents of the current system often say the active consent would turn a lot of normal sexual encounters into possible rape convictions. While it is true that there will always be legally borderline cases, active consent does not require everyone to say “yes” every time, anything along those lines – just that you have to have a strong a reasonable case to believe consent has been given.
Active/Positive Consent
Active Consent has a very large backing at the moment in Ireland as the RCNI and the Joint Oireachtas Committee on Sexual Violence are all reporting on it and recommending it. The Legal Council and Amnesty Ireland have also talked about it positively. While it comes in slight variations, the point is that both parties must consent, verbally or non verbally, and then continue that consent throughout the sexual interaction. If you want to see a detailed version of this the RCNI has a version of this detailed in a report on consent in Ireland.
This definition is pushed by its proponents as one that realises interaction is nuanced and subtle, and that nothing in this world just comes down to a vocalised yes or a no. Lying down and saying nothing is not consent in and of itself, and on the flipside the absence of a “yes” does not automatically mean rape. To put it in a nutshell, this new law would mean you should have sex with people who are actively into it and that you shouldn’t assume. However a lot of people point out that this is the grayest definition possible, and given the judiciary’s treatment of victims currently, many don’t trust them to enforce a law that might technically give more wiggle room.
Only The Word Yes Means Yes
This is the strictest form of consent law. It is not that commonly taken up but it is pushed quite strongly by some internet movements. Proponents would say that making consent only happen when both parties say words of direct approval makes the law extremely clear. Critics would say it turns basically everyone in the world into a rapist, which more than a little trivialises the legal situation around it. Long-term couples, for example, are unlikely to currently verbally confirm their consent every single time they have sex. However it can also be argued that just because this isn’t the cultural norm at the moment, it doesn’t mean it can’t become an absolutely assumed responsibility in the future.
While college rape cases haven’t reached widespread news in Ireland or England as they have in America, it is only a matter of time before one does.
What makes this more than a bit confusing is that one of the bigger movements for active consent is called “yes means yes”, an unfortunate name as it reduces what they are campaigning to a stamp-sized slogan which misrepresents their bigger ideal. This is an issue that is repeated across the board. Plenty of articles from the Guardian and beyond seem to be confused at how more right-wing parts of the internet took a movement called “yes means yes” to mean “only the word yes means yes”. Obviously we can see that regardless of what side people are on, having clear arguments for what you mean would stop a lot of the semantic bickering over this topic.
While college rape cases haven’t reached widespread news in Ireland or England as they have in America, it is only a matter of time before one does. When it does, it seems unlikely that similar pressure would be applied to colleges as in America, but it still remains that colleges and universities will have to face this issue and decide on what definition they will use to talk about consent.
And that eventual legal change? That will only directly affect conviction rates, which is a huge step but there is such a wider sphere of influence that could be had by having clearer consent laws. A larger awareness campaign about consent is needed at the same time, something the RCNI call for repeatedly in their reports. However it will only get the attention in the national media it deserves if legal change is put forward – whether this legal change be for harsher sentences or changes in consent laws. These things need to be discussed in public to see if the bleaching effect of the media spotlight can help either the report rate, the conviction rate or at least open up society to the victims of this terrible epidemic.
