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What’s Law got to do with it? Rape in Ireland (part2/3)


As a result of a conversation about why men rape, I decided to check out the law to see what it had to say on the matter. 


The problem was "if men and women can be raped, then why is rape exclusively perpetrated by men almost exclusively against women?"

So, I went back to first principles to clarify for myself what is rape and there’s a little bit of history involved too, so enjoy. 

From antiquity, the crime of rape has had savage punishments, death not being the worst of them, so it’s something taken very seriously. It’s original meaning was a derivation of roman law and a latin word for “theft” – which, in this instance, was the theft of a most precious thing, hence a punishment befitting. You might have had to punch the emperor to find comparative punishment. 

Anyway, it’s often cited that the 12th century Codex of Gratian (Roman Catholic Law) was the first modern definition of rape, as a forced sexual intercourse, distinguishable and unique from all other assaults and abductions. I couldn’t find the original text, not having a PhD in medieval canon law, and even if I did, I don’t speak latin, so lets just leave it at that.
Specific to Ireland, skip forward a few years to the Offences against the person Act, 1861 (Chapter C), which has a section dedicated specifically to “Rape, Abduction, and Defilement of Women.” (section 48-55). 

This was amended and extended by the Criminal Law amendment act 1885, which really gets its teeth into crimes of a sexual nature, with a heading of “Protection of women and girls”. 

Section 3 (page 30) of the act goes into detail regarding women (not girls under 21), but makes really repulsive exceptions for prostitutes and women of ill repute. Nonetheless, the punishment of 2 years (with or without hard labour) doesn’t seem particularly harsh, but it should be remembered that physical assault is already covered elsewhere in Criminal Law and would be an additional indictment. For example, rape occurs if carnal knowledge is obtained “intimidation” or “by false pretences or false representations” or “applies, administers to, or causes to be taken … any drug, matter or thing … with intent to stupefy”. Again, explicitly within the act, it is sex specific.

Of note, within these acts, is the reinforcement of the crime of homosexuality. It was under these laws that Oscar Wilde was convicted and sentenced to hard labour.

Then, after independence, Ireland asserted its sovereignty, and Catholicism, by amending the inherited law. The Criminal law amendment act 1935, introduces new protections for girls under 15, girls between15-17 years of age, and feeble minded (sic) women. It amended the Children’s act of 1908 (sections 16, 17, 18) by increasing custodial or parental liability for children from 16 to 17 years of age, but, again, protection from prostitution and seduction was limited to girls. 

Bizarrely, while introducing these new protections, the act also prohibited contraceptives.

So that’s where things stood until the Criminal Law (Rape) Act, 1981, where rape on its own, for the first time, was the subject of an Act. It now had a capital R

The 1981 act also introduced anonymity for the complainant (section7), while simultaneously permitting the public naming of the accused (section 8), which is unique to sexual offense.
Here’s the original Irish legal definition from that act.


As can be seen, the crime was gender specific. It could only be committed by a man against a woman. It was defined by 2 things; the act itself and the knowledge of wrongdoing by the perpetrator (subsection 2).

A great many people were disappointed with the act, and over time, the objections to it meant that something had to be done (I was one of those objectors). Keep in mind the era that it was - this was the time of the divorce debate, the abortion debate, the gay rights debate, the religious control debate and beginnings of abuse recognition. It was pretty right-on and we were very keen to catch up with, and maybe overtake our more progressive European neighbours. 

So, in 1990 the definition was amended and expanded by the Crinminal Law (Rape) amendment act specifically Section 4. 


It should be noted that it also explicitly states that the crime can still only be committed by a male. However, it does allow for the understanding that a man could be raped by a man (buggery was still illegal at this time, so raping a man was a double offense – although I can’t remember any high profile prosecutions). This wording and the wording of the 1981 act are to be read together and are still in force.

So, women don’t rape. In fact, a woman can’t rape. What is odd about section 4, is that it fails to identify digital penetration, which I would have thought could be on a par with an object. Someone dropped the ball there, I think.

The 1990 Act provides definitions for sexual assault and aggravated sexual assault and includes a number of other expansions, including the recognition of rape within marriage (section 5). It allowed for the admittance of evidence without corroboration (section 7), for alternative verdicts (section 8) (ie. Arrested for one crime but found guilty of another, lesser crime).
More notably, it removed assumed consent as a defense.

  
Another significant feature of the 1990 Act was to remove any defence by virtue of age (children, through other legislation, having a special status and protection in criminal law), without any downward age limit with regard to sexual offences. Of course, in the meaning of the act, this refers to boys and male infants only, and this exception is only found regarding crimes of a sexual nature. Here, the words “male” and “his” are used unnecessarily, just in case there might be any confusion.


“But!”, I hear you ask  “What about a man raping another man? Isn’t that rape?. 

Well, finally, yes, it is, and it wasn’t until 1990 that it was finally recognised.  Unfortunately for gay men, though, consent was irrelevant because, even if it was consensual, its buggery – it was the act which was illegal, not its violence. I know that buggery sounds like a curiously antiquated word, almost humorous, but its illegality was no laughing matter for homosexual men. 

What is surprising is that it was not abolished as a crime until the Criminal Law (sexual offences) Act of 1993, section 2, and that was as a result of very serious public pressure on the government. 

However, age of consent was established at 17 years, except within marriage under section 3 of the act (therefore excluding homosexuality), something which is still under scrutiny. The act also protects people with mental impairment.

Notable though, is the use of the words “male” and “gross indecency”, to limit the offence to men only, and to cover a broad range of activity. To be clear, I support the extension the protection of young people to include boys (remembering that girls were specifically protected since 1861), but I can’t understand why it is limited to protection from males only.


Strangely, “gross indecency” falls short of the now abolished crime of buggery. Someone dropped the ball again.

So, that's kind of where things stood until the new century arrived. With the dawn of a new era of liberal understanding, it was hoped that equity and parity of protection could be expanded to all demographics within society. 

The next article in the series will look at how that worked out.

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