Does the law around consent need to be changed?

It is often strange how even the smallest and most incongruous of objects can carry such a profound meaning. During a recent rape case in Ireland, the defence barrister presented a lacy thong as sufficient evidence for consent. As a result, the offender was subsequently acquitted of any conviction.

According to Irish law, a person may only be convicted of rape if “at that time he knows that she does not consent to the intercourse or he is reckless as to whether she does or does not consent to it.” Therefore, if the offender believes at the time that consent was granted, he shall be acquitted, even when consent was not given in the first place or had been withdrawn. This certainly highlights the difficulty of formulating a legal definition of rape, and the incremental consequences that are likely to follow.

Only one in 40 rape cases have reached a satisfactory resolution

In cases like this, it is far too easy to manipulate what it means ‘to believe’ something, particularly for the defence attorney. The greatest task for a judge and jury is to obtain a purely objective account of the offender’s thought process during the act, and their genuine belief of whether consent was obtained. According to the Irish MP Ruth Coppinger, only one in 40 rape cases have reached a “satisfactory resolution”. Coppinger recognises the need for legal change but stresses the importance of opening up the discussion to the whole of society about what consent really is.

This discussion, in its most immediate form, has erupted with protests since the ruling. It espoused the hashtag #ThisIsNotConsent – ‘this’ referring to the woman’s choice of underwear.  On a global scale, women from around the world have been posting pictures of their underwear, expressing outrage at the attorney’s claim that a 17-year-old girl’s choice of underwear must have indicated that she was “open to meeting someone”. The attorney’s statement implied that in order to seduce a man a woman must be wearing a certain type of underwear. Claims such as this can tend to be founded on the over-sexualization of women’s bodies rather than factual evidence.

The ambiguities in the law prevent convictions from being made

In light of the #MeToo movement, which emerged in October 2017, this court ruling does appear to be a digression from the improvements that have slowly filtered into society’s perception of non-consensual sex. While sexual violence is generally perceived as morally wrong, the ambiguities in the law prevent convictions from being made. Some may argue that bottom-up initiatives invoking awareness of the unacceptability of sexual harassment and violence may eventually transform the legal system. But others, who are more sceptical, demand an overhaul of the legal system to avert conflicting opinions on the extent of what can be considered as sexual harassment. Whether bottom-up or top-down, it is evident that something has to be done urgently to punish perpetrators accordingly.

At the level of Higher Education, Ireland’s rape trial has brought into question whether enough is being done to create and maintain a safe environment for students to flourish without fear of intimidation or harassment. In recent years, various universities such as the Universities of Kent and Durham have held consent classes for their incoming students. The aim of these classes is to bring awareness to consensual relations and the issues posed by ‘lad culture’ and ‘victim blaming’. Universities claim that a ‘grey area’ exists within consent which must be addressed. For instance, victim blaming is so pervasive in the minds of many that it is regarded as natural. According to Huffington Post UK, participants of consents workshops often believe that they already possess sufficient knowledge of victim-blaming. Yet the blame is continually shifted onto the female assaulted on the grounds of her attire and the fact that she was alone at the time of assault. Therefore, consent workshops are designed to encourage participants to recognise their deep-rooted prejudices against sexual assault victims and replace them with an understanding that sexual harassment and violence is not the fault of the victim, but the actions of the offender.

Universities claim that a ‘grey area’ exists within consent which must be addressed

One of the many questions concerning the role of consent in cases such as this is whether a grey area actually exists. Victim-blaming occurs after the perpetrator commits the act, but it is the act itself that universities have to tackle. The issue at hand is that rapists do not rape because they do not know what consent looks like. In many cases, rapists know exactly what constitutes as rape. This exemplifies the perception of rape as essentially a power dynamic. A rapist can exploit the complex legal problems surrounding rape, perhaps even drawing some perverse sort of empowerment from their ability to escape justice so easily. Thus, greater emphasis should be placed on creating a tougher legal system which enforces punishment and serves as a deterrent, rather than solely relying on consent classes which merely inform people how not to rape.

At the University of Warwick, efforts to normalise these conversations about the uncomfortable and complicated topics of rape and consent are beginning to materialise. The University started their very own #WeGetConsent campaign last year which aimed to increase awareness of sexual violence and harassment on campus, and its actions have gone further than consent classes. Rather than compulsory classes which may face a backlash of being condescending, Warwick offers a Moodle course on the subject. In addition, it has enacted an ‘Ask for Angela’ scheme to ensure the safety of girls in SU venues. These are all steps in the right direction, but is this enough to stop incidents of sexual assault occurring? Perhaps a greater emphasis on providing victims with adequate support and simplifying the process of reporting these incidents is the next step. Currently, victims are reminded that a lengthy process is needed to file a formal report, which may discourage those who are too vulnerable to pursue justice. Campaigns and classes are not enough. If we want to see positive changes, greater care and diligence should be taken on issues of rape, especially at the level of higher education.