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GAZETTE
JUNE 1988
LAW REFORM COMMISSION
CONSULTATION PAPER ON
RAPE
This Consultation Paper, published
in October 1987 by the Law Reform
Commission, is a most useful
report. It sets out the present law
on rape and other sexual offences,
examines the areas wh i ch need
reform, looks at the position in
other jurisdictions and then sets
out the Commission's provisional
conclusions. Unfortunately, the
This Review was prepared prior to
the publication of the Law Reform
Commission's Report on Rape and
Allied Offences (LRC 24 - 1988),
May 1988. The author will review
the Report in a subsequent issue
of t h e
Gazette.
Commission found that the infor-
mation which it obtained from the
authorities about the effect of the
1981 Criminal Law (Rape) Act, was
so incomplete and inconsistent that
it was unable to draw soundly
based conclusions from it. The
Rape Crisis Centre provided the
Commission w i th its figures and
showed that in 1985, for instance,
it received 501 calls relating to
incidents of rape or sexual assault,
compared to the figures taken from
the Commissioner of the Garda
Siochana which showed that in
1985 the number of rape offences
reported to them amounted to only
73. This reluctance on the part of
women to report cases of rape to
the Gardai must surely be a cause
for concern. Let us hope that in the
future better records will be kept by
the Gardai and the Department of
Justice.
The Commission does not think
that a case has been made for
changing the legal definition of rape
wh i ch is based on vaginal sexual
intercourse, " t he description given
to it over the centuries both by law
and the commun i ty at large, and
wh i ch r ecogn i ses t he unique
feature of rape as distinguished
from other forms of sexual assault,
namely, the fact that pregnancy
may result from the ac t ". Though
some members of the Commission
remained unconvinced that this
latter argument was entirely logical,
they were loath to recommend a
change provided that degrading
sexual assaults equ i va l ent in
gravity to rape were capable of
being dealt w i th in the same
manner as rape.
Essentially the Commission saw
the question as one of nomen-
clature and presentation. Of course
this means that rape will continue
to be a charge which will of
necessity always be brought by a
female (the victim) against a male
(the accused). When I reached this
point in the Paper I turned to look
at the membership of the Com-
mission. It is made up of five
people, four men and one woman.
The four male members are legally
qualified and the female, Maureen
Ga f f ney, t h o u gh an em i n e nt
psychologist, does not appear to
have any legal qualification. In the
introductory chapter the Com-
mission talks about balance and
mentions that in the past there was
a tendency towards scepticism
about rape allegations.
I found my attitude became
polarised here, because I think it is
a great deal more than nomen-
clature which is involved. I found
myself wondering about a rape trial
in which, in all probability, the
Judge would be male, there would
be male prosecuting and defence
counsel and, probably, the defence
and prosecuting solicitors would be
male also. It seemed to me that this
must be at least part of the reason
for the low rate of reporting rape
incidents to the Gardai. It would
seem to me that by retaining the
traditional definition of rape, an
o p p o r t u n i ty may be m i s s ed
wh e r e by
po l a r i s a t i on
on a
male/female basis might have been
removed by including penetration
of the mou th or anus by the penis
or of the anus or vagina by
inanimate objects (which assaults
are now to be encompassed in a
new offence of aggravated sexual
assault, wh i ch is to be equally
applicable to men or women and
wh i ch would render buggery a
superfluous offence). Let me say
here that I do believe that we must
have a system of criminal justice in
wh i ch there is a heavy onus on the
prosecution to prove its case
beyond reasonable doubt and,
where doubt remains, it should be
resolved in favour of the accused;
but if the balance is to be right, the
c omp l a i n a nt mu st also f eel
sufficient confidence in the system
to lay the charge in the first place.
The Commission has recom-
mended the creation of t wo new
offences, namely sexual assault
and aggravated sexual assault. The
first will replace the offence of
indecent assault encompassing
less serious sexual assaults which
would be indictable offences but
only prosecutable on indictment at
the election of the prosecution. The
second, aggravated sexual assault,
will encompass the more serious
forms of sexual assault, which
carry the same maximum sentence
as rape, namely, life imprisonment.
Marital Rape
The Commission has looked at the
subject of rape within marriage
and, although it accepts that there
may be difficulty of proof, does not
see this as a reason for retaining
the exemption and, provisionally,
recommends the abolition of the
marital rape exemption w i th the
same maximum sentence as rape
on the basis that " a rape of a
particularly violent and degrading
nature perpetrated by a spouse is
not necessarily less loathsome
than such a rape perpetrated by a
stranger". Perhaps we can draw
some comfort when we compare
this quotation w i th one taken from
Hale, who wr o te in the 17th
century: " t he husband cannot be
guilty of a rape committed by
himself on his lawful wife, for by
their mutual matrimonial consent
and contract the wife hath given up
herself in this kind unto her
hu s band, w h i ch she c a n n ot
retract".
The Mental Element
A man can only be convicted of
rape if he has the
mens rea
at the
time he has sexual intercourse w i th
the woman w i t hout her consent,
i.e. he must know that she does not
consent to the intercourse or be
reckless as to whether she does or
does not consent (see Section 2 of
Criminal Law (Rape) Act, 1981).
The jury must consider whether a
man believed that a woman was
consenting to sexual intercourse
and the jury addresses the reason-
ableness (or otherwise) of the
grounds for that belief only to the
extent that this throws light on the
factual question of whether or not
the accused had such a belief.
Section 2 of the 1981 Act is based
on an English Act passed in 1976
following the controversial decision
of the House of Lords in the
Morgan
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