Cheap stunts stifling the debate about rape

DISCUSSING our rape law is now a subject of such heightened sensitivity that most people stay away from it altogether. The current #MeToo zeitgeist has put the frighteners on the vast majority of us who now refuse to engage in open debate on this most complex, horrible crime of violence, except with our closest, most trusted friends.

Out of self-interest, regular people – and most media commentators – have decided that the risk of ventilating their opinions on this issue simply isn’t worth it: the downside is too punishing, the manifest penalty for saying the ‘wrong’ thing is too much to countenance.

And therein lies the biggest threat to our freedoms.

Because, shrill voices have entered the public square demanding, in effect, the urgent dismantling of two legal principles of fundamental importance to all of us – the presumption of innocence, enjoyed by all accused people, and the requirement that guilt must be proven beyond a reasonable doubt.

Negative populism is threatening to remove vital protections for people accused of sexual crimes, particularly rape. And cheap Dáil stunts, using women’s underwear for dramatic effect, serve only to close down conversation rather than open it up.

Most worrying of all, it makes the debate even more elitist than it already is. The regular man and woman in the street is encouraged to back off, leaving it all to law professors, lawyers, academics and self-serving politicians anxious only to follow where the crowd leads them.

This is a great pity – because the truth is we all need to participate a lot more in the public debate about sexual crimes in this country. We need to understand the problems that are present and the intricacies that increase as the individual circumstances become clear through the evidence at trial.

We need to listen to the likes of retired Northern Ireland Judge John Gillen when he explains that the low conviction rates for rape – only 8% in the Republic the last time we checked properly – are to be understood in the context of the one-on-one, private character of the offence, where in many cases there is zero forensic evidence supporting a guilty verdict.

We need to understand that a woman claiming rape cannot be questioned about previous sexual history except with the prior permission of the trial judge – and then only to challenge her credibility. And we need to consider why that is necessary if we are to maintain the right of an accused person to defend himself.

A study conducted by senator and legal expert Ivana Bacik in 2009 found that in a high number of rape cases judges granted defence applications to allow examination of the woman’s previous sexual history.

And this raises the question: is somebody really suggesting that an accused in a rape trial should be deprived of the right to question a woman’s previous history, irrespective of credibility issues, adjudicated on by a judge hearing all the evidence?

The real debate on reform of our rape law is now being conducted by the Law Reform Commission who are focussing on the defence of ‘honest belief’. At the moment, even in circumstances where consent is withheld, a man cannot be convicted of rape if he genuinely believes he had permission to have sex.

There is a very strong argument that this defence should be changed radically, in the light of experience.

The debate on our rape law has been distorted and abused by frantic, over-emotional reactions to individual cases.

What is required is unexcited, calm reflection. We need to dial back the rhetoric.

All law requires regular reform and the Rape Act is no different. But it shouldn’t be at the expense of centuries-old legal principles that balance the individual’s rights against the coercive power of the State.

There are very good reasons why there’s a presumption of innocence favouring accused people – it’s because the ‘state’ has proven its capacity, beyond all reasonable doubt, for trickery, evil and injustice time out of number. Rape is not a crime that can be separated out from all others. If today, fearful politicians playing to the mob tamper with the fundamental rights of a man accused of rape, then tomorrow they’ll tamper with those same rights in all other areas of crime.

Albert Einstein dismissed the notion that he was smart. He said he just gave more time than is usual to solving a given problem.

We have a problem with our rape law. And we need to give it lots of time. Kneejerk, quick-fix solutions may seem attractive to the baying, social media, lynch-mob brigade. But, they’ll only end in tears – and even greater injustice.

The young fella from Dublin admitted his part in a robbery and turned up at Tralee Circuit Court this week to receive his ‘medicine’.

But he couldn’t have anticipated the precise, intricate, and utterly politically correct wording that his barrister would use in an attempt to mitigate his sentence.

The court heard that the convicted man came from a good family, but had learning difficulties and, essentially, fell in with the wrong crowd.

Then the barrister said: ‘He got involved with a female from an ethnic minority group of Irish origin.’

Oops! Peter Casey has just knocked over his tea.