“In a trial for Rape contrary to s. 48 of the Offences Against the Person Act 1861 and s. 2 of the Criminal Law (Rape) Act
1981 as amended by the Criminal Law (Rape) (Amendment) Act 1990 The prosecution must prove that that the accused had
sexual intercourse with a woman who at the time of the intercourse did not in fact consent to it, and that at that time the
accused knew that she did not consent, or, alternatively that at that time the accused was reckless as to whether she did or did
not consent.
Critically evaluate the concept of consent as a defence to Rape with reference to the recent decision of the Supreme Court in
the case of Director of Public Prosecutions -v- O’R [2016] IESC 64
20 (Marks)”
Sexual offences encompass some of the most serious offences known to Irish law. They are
also the area of law beset with conflicts of ideology. Sexual violence predates any common
law statute or legal rule and has been prevalent throughout history. Historically, the rape of a
woman has been constructed as a property crime whose redress was directed at the father or
husband of the victim. For example, in the old Arabic code, women were seen to be as
equally liable as the individual that had committed the rape. The punishment of which, was
the death of both individuals. The appeals process was solely directed at the husband and
only he could commute the death sentence of his wife. Comparably, early Hebrew law
sentenced both the victim and the rapist to death with both considered to be equally liable for
the crime. According to old Hebrew law, the punishment was simple if a sexual attack
occurred within the city limits: “ye shall bring them both out unto the gate of that city, and ye
shall stone them with stones that they die”
1
. It becomes abundantly clear that history has
viewed the woman as being equally culpable for the gross act that she has been forced to
endure.
In modern times, although there has been many reforms through the introduction of numerous
statutes and the adoption of certain legal rules, only one in ten victims of sexual crime in
Ireland reports that crime. Ireland has a low conviction rate for rape cases, standing at 1 – 2%
while the EU average is 8 – 10%
2
. This statistic paints a clear portrait. The law in Ireland
governing rape is insufficient. It creates a situation whereby the victim is subjected to a
lengthy, embarrassing trial wherein the complainant receives nothing more than a revival of
the memories of a crime that is seconded only by murder. The crime of rape is not one that
can be forgotten. The victims, both male and female, after being raped, commonly suffer
from post-traumatic stress disorder (PTSD), depression or dissociate themselves from society.
The emotional trauma and psychological effects of the assault can be long lasting and severe.
1
Frank M. Yamada as addressing rape in Deuteronomy 22:23-29,
2
Asking for it. Louise O’Neill. Page 22 (2015)
The judicial stance on rape can be seen in the The People (DPP) v Tiernan
3
where the Court
noted that any attempt to view rape as a minor offense would be unconstitutional, particularly
as it represented an attack upon the human dignity of the woman. Furthermore, the recent
case of Director of Public Prosecutions -v- O’R
4
saw a seven-judge sitting of the Supreme
Court rule that if an accused believed genuinely, albeit unreasonably, that a woman was
consenting to sexual intercourse, even though she did not consent, he is not guilty of rape.
Consent is therefore centripetal in the defence and the outcome of the majority of rape cases.
Rape is a common law offence that is made punishable by section 48 of the Offences Against
the Person Act 1861 which states: “Whosoever shall be convicted of the crime of rape shall
be guilty of felony, and being convicted thereof shall be liable . . . to be kept in penal
servitude for life.”
5
However, the crime of rape is defined in Section 2 of the Criminal Law
(Rape) Act 1981, as amended by the Criminal Law (Rape)(Amendment) Act 1990, in the
following terms:
“2-(1) A man commits rape if-
(a) He has sexual intercourse with a woman who at the time of the intercourse does not
consent to it; and
(b) At the time he knows that she does not consent to the intercourse or he is reckless as to
