The Gazette 1988

JUNE 1988

GAZETTE

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

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

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-

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