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The Failure of Feminism? Rape Law Reform in the Republic of Ireland, 1980–2017

  • Ciara Molloy

Abstract

Based on Carol Smart's observation that rape law reform as lobbied for by the feminist movement during the 1970s and 1980s failed to achieve any meaningful change, this article seeks to examine the nature and implications of rape law reform in the Republic of Ireland from the 1980s to the present day. During the 1980s the conceptualization of rape changed from a proprietorial crime to a violation of individual bodily integrity due to feminist lobbying efforts and the emergence of a victim-centered approach in the criminal justice system. Though this changing conceptualisation has led to significant attitudinal change, particularly surrounding the issues of acquaintance and marital rape, procedural change has failed to secure higher conviction rates. In particular, this article demonstrates that the legal reforms achieved in the 1980s potentially resulted in a 2% decrease in rape conviction rates by 2007. When compared to England/Wales, conviction rates as distinctive from prosecution rates in Ireland remain chronically low. This indicates that any legal reforms must take account of the institutional bias ingrained the Irish criminal justice system against female rape complainants, which has continuing relevance for Irish legislation pertaining to sexual violence such as the Criminal Law (Sexual Offences) Act, 2017. Overall this article suggests that rape is an exceptional crime and needs to be reassessed as such.

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She thanks Professor Richard McMahon of Mary Immaculate College, University of Limerick, for generously offering his time and expertise in refining the article's key arguments. She also thanks the two anonymous peer reviewers who engaged in a critical reading of this article and provided invaluable suggestions that greatly enhanced the overall manuscript. Finally, she also extends thanks to the Department of History in Trinity College Dublin where the initial research for this paper was carried out.

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1. Smart, Carol, Feminism and the Power of Law (London: Routledge, 1989), 5.

2. Ibid.

3. See for example Henderson, Lynne, “Law's Patriarchy,” Law and Society Review 25 (1991): 411–44, at 431, 435.

4. Although adult male rape victims remain one of Ireland's hidden histories and tend to be relegated to a mere “dismissive footnote,” suggesting that this problem could be far more widespread than current statistics indicate, the majority of rape victims do appear to be female; Bourke, Joanna, Rape: A History from 1860 to the Present (London: Virago Press, 2007), 247. This article will, therefore, focus primarily on the experiences of female rape victims.

5. Anderson, Melisa, “Lawful Wife, Unlawful Sex—Examining the Effect of the Criminalization of Marital Rape in England and the Republic of Ireland,” Georgia Journal of International and Comparative Law 27 (1998): 139–66, at 141.

6. O'Malley, Thomas, Sexual Offences: Law, Policy and Punishment (Dublin: Round Hall Sweet & Maxwell, 1996), 3; and Christina Ryan, “Judicial Attitudes in Rape and Sexual Assault Cases in the Republic of Ireland: Sentencing in the Appellate Courts” (MPhil diss., Trinity College Dublin, 1998), 23.

7. Hederman, Mary, “Irish Women and Irish Law,” The Crane Bag 4 (1980): 5559, at 56; and Family Law Act, 1981, No. 22.

8. Mitra, Charlotte, “…For She Has No Right or Power to Refuse her Consent,” The Criminal Law Review 9 (1979): 558–65, at 559; and LeGrand, Camille, “Rape and Rape Laws: Sexism in Society and Law,” California Law Review 61 (1973): 919–41, at 925.

9. Ryan, Judicial Attitudes, 23.

10. Kelly, James, “‘A Most Inhuman and Barbarous Piece of Villainy’: An Exploration of the Crime of Rape in Eighteenth-Century Ireland,” Eighteenth-Century Ireland 10 (1995): 78107, at 81.

11. O'Malley, Sexual Offences, 4.

12. Offences Against the Person Act, 1861 (24 & 25 Vict c 100).

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15. Dublin Rape Crisis Centre, First Report (Dublin: Dublin Rape Crisis Centre, 1979), 7.

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19. Married Women's Status Act, 1957, No. 5.

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22. O'Malley, Sexual Offences, 26.

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28. Criminal Law (Rape) (Amendment) Act, 1990, No. 32.

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33. Irish Independent, April 14, 1988.

34. Irish Examiner, May 14, 1988.

35. DPP v Tiernan (1988) IR 250.

36. Ibid.

37. Brownmiller, Susan, Against Our Will: Men, Women and Rape (New York: Simon and Schuster, 1975), 1415; and Dublin Rape Crisis Centre, First Report, 3.

38. DPP v Tiernan (1988) IR 250.

39. Fennell, Caroline, “Criminal Law and the Criminal Justice System: Woman as Victim,” in Gender and the Law in Ireland, ed. Connelly, Alpha (Dublin: Oak Tree Press, 1993), 151–70, at 159.

40. Ibid., 166; Temkin, Jennifer, and Krahé, Barbara, Sexual Assault and the Justice Gap: A Question of Attitude (Oxford: Hart Publishing, 2008), 3132; and Hanly, Conor, Healy, Deirdre, and Scriver, Stacey, Rape and Justice in Ireland: A National Study of Survivor, Prosecutor and Court Responses to Rape (Dublin: The Liffey Press, 2009), 28.

41. Groth, Nicholas, Men Who Rape: The Psychology of the Offender (New York: Basic Books, 1979), 8.

42. Fennell, “Criminal Law,” 166.

43. Criminal Justice Act, 1993, No.6, Section 2 and Section 5.

44. McCormack, Micheline, ‘Little Girl’: The Lavinia Kerwick Story (Dublin: McCormack Books, 1997), 57, 73.

45. Ibid., 78, 90.

46. Rob Jerrard, “Marital Rape,” The Police Journal October (1992): 340–43, at 340.

47. McMullan, Sinead, “Marital Rape in Irish Law,” Irish Student Law Review 3 (1993): 8595, at 86.

48. Ryder, Sandra L. and Kuzmenka, Sheryl A., “Legal Rape: The Marital Exemption,” The John Marshall Law Review 24 (1991): 393421, at 395.

49. Anderson, “Lawful Wife,” 151–154; McMullan, “Marital Rape,” 86; and O'Malley, Sexual Offences, 48.

50. Criminal Law (Rape) (Amendment) Act, 1990, No. 32.

51. Dublin Rape Crisis Centre, First Report, 4; and Irish Press, June  29, 1982.

52. Irish Independent, September 5, 1986.

53. Russell, Diana, Rape in Marriage (Bloomington and Indianapolis, IN: Indiana University Press, 1982), 87.

54. Ferriter, Diarmaid, Ambiguous Republic: Ireland in the 1970s (London: Profile Books, 2012), 356.

55. Jung, Patricia Beattie, “Sexual Pleasure: A Roman Catholic Perspective on Women's Delight,” Theology and Sexuality 12 (2000): 2647, at 27.

56. Ferriter, Occasions of Sin, 439.

57. Sunday Independent, December 12, 1993.

58. Irish Press, December 13, 1993; Irish Independent, January 31, 2006; Irish Examiner, July 26, 2016; and Irish Independent, December 21, 2016.

59. Irish Times, May 23, 2016.

60. Ministry of Justice, Home Office and the Office for National Statistics, An Overview of Sexual Offending in England and Wales (London: The Stationery Office, 2013), 44.

61. Temkin and Krahé, Sexual Assault, 25.

62. Criminal Law (Rape) (Amendment) Act, 1990, No. 32; Bacik, Ivana, Maunsell, Catherine, and Gogan, Susan, The Legal Process and Victims of Rape: A Comparative Analysis of the Laws and Legal Procedures Relating to Rape, and their Impact upon Victims of Rape, in the Fifteen Member States of the European Union (Dublin: Dublin Rape Crisis Centre, 1998), 40.

63. Ibid., 248.

64. Hayden, Jackie, In Their Own Words: Coping with Rape and Sexual Abuse (Dublin: Hot Press Books, 2003), 72.

65. Evening Herald, January 5, 1977.

66. Flowe, Heather D., Ebbeson, Ebbe B., and Putcha-Bhagavatula, Anila, “Rape Shield Laws and Sexual Behaviour Evidence: Effects of Consent Level and Women's Sexual History on Rape Allegations,” Law and Human Behaviour 31 (2007): 159–75, at 172; and Hanly, Healy, and Scriver, Rape and Justice in Ireland, xxix.

67. Rape Crisis Network of Ireland, Rape and Justice in Ireland: An Introduction and Executive Summary, 2009. http://www.rcni.ie/wp-content/uploads/Exec-Summary.pdf (May 29, 2018).

68. Fennell, “Criminal Law,” 168.

69. Walby, Sylvia, Theorizing Patriarchy (Oxford: Wiley-Blackwell, 1990), 142.

70. O'Donnell, Ian and O'Sullivan, Eoin, “The Politics of Intolerance—Irish Style,” British Journal of Criminology 43 (2003): 4162, at 45; O'Donnell, Ian, “Sex Crime in Ireland: Extent and Trends,” Judicial Studies Institute Journal 3 (2003): 89106, at 98; and Office for National Statistics, Crime in England and Wales: Year ending September 2015. https://www.ons.gov.uk/peoplepopulationandcommunity/crimeandjustice/bulletins/crimeinenglandandwales/yearendingseptember2015 (February 26, 2017).

71. McGee, Hannah, Garavan, Rebecca, de Barra, Mairéad, Byrne, Joanne, and Conroy, Ronán, Sexual Abuse and Violence in Ireland Report (Dublin: Liffey Press, 2002), 128.

72. Rape Crisis Network of Ireland, National Rape Crisis Statistics, 2015, 21. https://www.rcni.ie/wp-content/uploads/RCNI-RCC-StatsAR-2015-1.pdf (May 30, 2018).

73. Leahy, Susan, “Reform of Irish Rape Law: The Need for a Legislative Definition of Consent,” Common Law World Review 43 (2014): 231–63, at 238.

74. Ferriter, Occasions of Sin, 444.

75. O'Donnell, “Sex Crime,” 95.

76. Ibid.

77. Bacik, Maunsell, and Gogan, The Legal Process, 265.

78. Sara Parsons, “Crime Trends,” in The Routledge Handbook of Irish Criminology, 15–48, at 17.

79. Bacik, Maunsell, and Gogan, The Legal Process, 293.

80. Leahy, Susan, “Bad Laws or Bad Attitudes? Assessing the Impact of Societal Attitudes upon the Conviction Rate for Rape in Ireland,” Irish Journal of Applied Social Studies 14 (2014): 1829.

81. Criminal Law (Sexual Offences) Act, 2017, No. 2.

82. Law Reform Commission, Rape and Allied Offences (Dublin: The Stationery Office, 1988), 9.

83. The author is indebted to the anonymous peer reviewer who drew attention to this issue.

84. Wängerud, Lena, “Women in Parliaments: Descriptive and Substantive Representation,” Annual Review of Political Science 12 (2009): 5169, at 51.

85. Criminal Law (Sexual Offences) Act, 2017, No. 2.

86. Elaine Loughlin and Joyce Fegan, “Sexual Consent to Be Defined in Law,” Irish Examiner Online, January 25, 2017. http://www.irishexaminer.com/ireland/sexual-consent-to-be-defined-in-law-440644.html (December 8, 2017).

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88. Robin, Gerald, “Forcible Rape: Institutionalized Sexism in the Criminal Justice System,” Crime and Delinquency 23 (1977): 136–53, at 136, emphasis added.

89. Sunday Independent, January 1, 2017.

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93. Bryden, David and Lengnick, Sonja, “Rape in the Criminal Justice System,” The Journal of Criminal Law and Criminology 87 (1997): 1194–384, at 1262.

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95. Hanly, Healy, and Scriver, Rape and Justice; Rape Crisis Network of Ireland, National Rape Crisis Statistics, 2013, 22–23. http://www.rcni.ie/wp-content/uploads/RCNI-National-Statistics-2013.pdf (January 8, 2017).

96. Fennell, Criminal Law, 167–68.

97. Criminal Law (Rape) (Amendment) Act, 1990, No. 32.

98. Dáil Éireann Debate, November 13, 1990, Vol. 402 No. 5 (1292–1293).

99. Dublin Rape Crisis Centre, First Report, 3.

100. Dáil Éireann Debate, November 13, 1990, Vol. 402 No. 5 (1289).

She thanks Professor Richard McMahon of Mary Immaculate College, University of Limerick, for generously offering his time and expertise in refining the article's key arguments. She also thanks the two anonymous peer reviewers who engaged in a critical reading of this article and provided invaluable suggestions that greatly enhanced the overall manuscript. Finally, she also extends thanks to the Department of History in Trinity College Dublin where the initial research for this paper was carried out.

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The Failure of Feminism? Rape Law Reform in the Republic of Ireland, 1980–2017

  • Ciara Molloy

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