Since the conclusion of the recent 8-week trial in Belfast where the jury, after what appeared to be a very short deliberation, found the two men accused of rape/sexual assault, the one man accused of exposure and the one man accused of obstructing justice in relation to the other defendants, not guilty there has been an enormous outpouring of concern about the nature of consent in sexual assault cases.
The following blog entry is an abbreviated version of a lecture I gave on CONSENT and the CONSENT provisions of the then new Criminal Justice (Sexual Offences) Act 2017, in October 2017 at Farmleigh House.
There is a general misconception as to the prosecution of rape crimes in that most rapes are "stranger" rapes, are usually aggravated i.e. associated with other physical trauma, coercion or intimidation; and therefore the interpretation of whether consent existed or not should never really an issue. Unfortunately, however, in practice most sexual assaults/rapes/ Section 4 rapes (c.75%) are perpetrated by known acquaintances, either of short or long duration, a familiarity engendered on Tinder, Facebook, in pubs, in the workplace or in one's own home. It is this familiarity, however tenuous, that creates difficulties in prosecution.
Increasingly, because of the high level of familiarity in sexualised crimes it is establishing or refuting or creating reasonable doubt as to the presence or not of consent that determines outcome, and sadly influences heavily the present day low-conviction rates.
In addition concerns about conflicts in adversarial court proceedings over the issue of consent is what drives most victims to either not proceed with or withdraw their complaints.
CONSENT IN HISTORY
From earliest times CONSENT in sexual relationships was considered a proprietary issue!
The provision for a Yes Means Yes Protocol was introduced into law by
the Criminal Law (Sexual Offences) Act 2017.
James Joyce and Sylvia Beach
THE MOLLY BLOOM
'yes I said yes I will Yes'
'yes I said yes I will Yes'
James Joyce and Galway's Nora Barnacle
THE 'NO MEANS NO' PROVISIONS
THE 'MAYBE' PROVISIONS!
This is also my perception but we must continue to find a way recalibrate the notion of CONSENT. I agree entirely with an opinion piece by Roe Mc Dermott (Irish Times April 7,2018) when she writes,
'A "yes means yes" framework is far healthier,
safer and more empowering,
as its basic tenet is that consent given freely
is enthusiastic and active;
and is ongoing, so must be a
continual process during sex.'
'We can, we should,(be asking for consent) and with the slightest bit
of practice, asking for consent
will soon feel like a natural part of sex.
And not just sex – good sex.'
Molly Bloom would also agree!
'yes I said yes I will Yes.'