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What’s Law got to do with it? Rape in Ireland (part3/3)

Into the 2000's, sexual activity between young  males was still illegal, stemming from (what must be assumed as) some sort of oversight in the 1993 act.

This was finally sorted out by the Criminal Law (sexual offences) Act of 2006, which repealed certain sections of the 1993 act, and had the effect of decriminalising consensual behaviour (short of buggery) between boys over 15. Where an older man is involved, it is necessary to charge sexual assault charge and prove absence of consent. 

I don’t want to get too sidetracked into acts which were designed to protect children (the 2001 Act, for example, which was a great step forward in introducing “causing or encouraging sexual offence upon a child” as a gender neutral crime, protecting boys and girls equally, even though it was simply an extension of the protections provided to girls by the 1908 Children’s Act, and 1935 amendment), but I want to point out that it is increasingly difficult to tease apart sexual offences, rape, and child abuse as they have been fairly consistently grouped together under single acts.  

However, it is necessary to draw attention to the gender asymmetry of sexual offences, currently and historically.

 This brings me to an aspect of the 2006 Act which is still being looked at by legal-eagles. That is, the confusion which often arises between common law rape and unlawful carnal knowledge (also known as statutory rape). 

This related specifically to sexual offences with girls under the age of 15 (section 1, section 2 of the 1935 act, respectively). The key feature is that statutory rape does not require proof of the absence of consent (as a child cannot give meaningful consent). Only a man could commit the act, although a woman could be convicted of the lesser charge of aiding and abetting, unless she was actually involved in the act, in which case she could not be convicted (from R v Tyrell [1894] 1 Q.B. 710 which held that since the statute was created for the protection of girls, the female cannot be convicted as a party to it). 

Obscene as it would appear, this was the case until a Supreme Court decision in 2006 (C. C. v Ireland, the Attorney General and the Director of Public Prosecutions, unreported, Supreme Court, May 23rd, 2006) which successfully challenged the law as unconstitutional as it offered no defense whatsoever, and section 1 was struck down. The Criminal Law (sexual offences) Act in the same year, repealed section 2. 

The knock on effect of this was that a female involved in the act would also be aware of the age of the victim, and so be found guilty of a crime, but not rape, ever, not even statutory.

I still support the act as a step forward, because within the 2006 Act, children under 17 and 15 are given increasing protection from sexual abuse and that is good.
However, the thing which usually provides a good topic for discussion is section 5:

If two children have sex, why is only the boy guilty?

This is particularly worthy of consideration as the punishments are continually on the increase. The 2007 Criminal Law (sexual offences) act 2007, doubles the length of custodial sentences which can be handed down for sexual offences. When this is added to the lack of pre-trial anonymity (which will result in social exclusion regardless of any outcome), and the attitude towards male rape in prison, which generally regarded as part of the punishment (really…for shop-liftiing?) for males, one has to wonder if there is any solution to this double-standard.
For an answer, I looked at a Submission by the DPP, Oireachtas Joint Committee on Child Protection (26 September 2006), and I’m still confused.
Here’s an extract from the text:


At least, with regard to the resistance to changes in interpretation and the apparent double-standard, there is some honesty within the text.

And also,

It would seem that Rape and aggravated assault are inextricably linked (at least in the mind of the author of the submission) and also that a man being "compelled" to engage in sexual intercourse is not the same experience for a woman, with the penalties reflecting that. 

The absence of consent is the determining factor and, of course, it should  be remembered that insertion of an object qualifies as rape. So it's apparent that, aside from any psychological issues (along with shame, humiliation, fear, etc), the experience of having something inserted inside your body is an additional affront which separates rape from all other sexual crimes.

Of course, the question still remains as to the meaning of "consent" and "compelled". Does consent need to be constantly reasserted throughout intercourse? Does maintaining a relationship involve some form of compulsion for either men or women?

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