Men Can’t Be Raped According To Irish Law

By John Gormley: I was talking recently with a few acquaintances and the topic of rape came up.
How’s that for a bold opening gambit?
As you might expect, it came up sideways and almost out of nowhere. The general conversational theme concerned European directives and definitions, how these affect statistical data, which can, in turn have an impact on policy via public opinion. Oh yes, it’s not all football you know.
In any case, it was suggested that a commonly-accepted broad understanding allows for the rape of males. This, the argument goes, came from a long and concerted effort to broaden our understanding of rape, to include other forms of coercion in addition to the traditionally accepted idea of a violent sexual crime.
No surprise there, as it regularly forms a part of public discussion (By which I mean radio, TV and print opinion column interviews). Even the Dublin rape crisis centre, on its information webpage, states that “Men are raped and sexually assaulted too”, something reiterated by its poster campaigns.

Similarly, Womens aid, through awareness programs, such as “This is not happily ever after” explains that sexual violence has many forms, 7 of the 8 scenarios don’t involve violence and could be easily attributed to either sex. Both womens aid and the DRCC have regular workshops and education programs which focus on exploring the meaning of consent, which forms a central part of our understanding of rape.
This is all good.
Any effort to reduce sexual violence in our society is a good thing and I have supported it with my time resources (I think most people have).  Even with out doing anything, just now, for example, by linking back to their webages, I have improved their google rating.
So, once again, the point which was made, once again, is that both men and women can be raped.

What was curious, though, was an inference which cropped up quite innocently and sincerely and what must be kept in mind too, is that the people I was talking with were reasonably informed, had generally balanced opinions and had no obvious prejudice or agenda.
That is to say, that what was inadvertently voiced was well meaning.
If rape is so defined and broadened, to include all forms of coercion, in addition to physical force and/or violence (or threat of), then logically, men can be raped too.
Indeed, with very little effort I think most people could think of an example.  The rare example of forced violent rape is not the whole story. Thus, it may be more common than we think and males and females are exposed to rape by either males or females and all being equally deserving of protection. It is reasonable to look at the problem and deal with it, as a society.
I think most people could agree with this statement, but the inference came with only a cursory look at available information.
If males and females are exposes equally to the threat, it implies that the perpetrators can equally be male or female. So, this being the case, why is the crime committed almost exclusively against women and perpetrated exclusively by men? This is fully supported by crime statistics.  The inference is that women can, yet don’t but that men can, and do.
Well, I tried to head this off at the pass, but within a few heartbeats, the inference had become an assertion and was well on its way to becoming a statement. This is a problem.
So, I went back to first principles to clarify for myself what is rape. There’s a little bit of history involved too, so enjoy.
From antiquity, the crime of rape has had savage punishments, death not being the worst of them, so it’s something taken very seriously. It’s original meaning was a derivation of roman law and latin word for “theft” – which, in this instance, was the theft of a most precious thing, hence a punishment befitting. You might have had to punch the emperor to find comparative punishment.
Anyway, it’s often cited that the 12th century Codex of Gratian (Roman Catholic Law) was the first modern definition of rape, as a force sexual intercourse, distinguishable and unique from all other assaults and abductions. I couldn’t find the original text, not having a PhD in medieval canon law, and even if I did, I don’t speak Latin, so lets just leave it at that.
Specific to Ireland, skip forward a few years to the Offences against the person Act, 1861 (Chapter C), which has a section dedicated specifically to “Rape, Abduction, and Defilement of Women.” (section 48-55).
This was amended and extended by the Criminal Law amendment act 1885, which really gets its teeth into crimes of a sexual nature, with a heading of “Protection of women and girls”.
Section 3 (page 30) of the act goes into detail regarding women (not girls under 21), but makes really repulsive exceptions for prostitutes and women of ill repute. Nonetheless, the punishment of 2 years (with or without hard labour) doesn’t seem particularly harsh, but it should be remembered that physical assault is already covered elsewhere in Criminal Law and would be an additional indictment. For example, rape occurs if carnal knowledge is obtained “intimidation” or “by false pretences or false representations” or “applies, administers to, or causes to be taken … any drug, matter or thing … with intent to stupefy”. Again, explicitly within the act, it is sex specific.
Of note, within these acts, is the reinforcement of the crime of homosexuality. It was under these laws that Oscar Wilde was convicted and sentenced to hard labour.
Then, after independence, Ireland asserted its sovereignty, and Catholicism, by amending the inherited law. The Criminal law amendment act 1935, introduces new protections for girls under 15, girls between15-17 years of age, and feeble minded (sic) women. It amended the Children’s act of 1908 (sections 16, 17, 18) by increasing custodial or parental liability for children from 16 to 17 years of age, but, again, protection from prostitution and seduction was limited to girls.
Bizarrely, while introducing these new protections, the act also prohibited contraceptives.
So that’s where things stood until the Criminal Law (Rape) Act, 1981, where rape on its own, for the first time, was the subject of an Act. It now had a capital R. The 1981 act also introduced anonymity for the complainant (section7), while simultaneously permitting the public naming of the accused (section 8), which is unique to sexual offence.
Here’s the original Irish legal definition from that act.

Meaning of “rape”. 2.—(1) A man commits rape if— (a) he has unlawful sexual intercourse with a woman who at the time of the intercourse does not consent to it, and (b) 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, and references to rape in this Act and any other enactment shall be construed accordingly. (2) It is hereby declared that if at a trial for a rape offence the jury has to consider whether a man believed that a woman was consenting to sexual intercourse, the presence or absence of reasonable grounds for such a belief is a matter to which the jury is to have regard, in conjunction with any other relevant matters, in considering whether he so believed.

As can be seen, the crime was gender specific. It could only be committed by a man against a woman. It was defined by 2 things; the act itself and the knowledge of wrongdoing by the perpetrator (subsection 2).
A great many people were disappointed with the act, and over time, the objections to it meant that something had to be done (I was one of those objectors). Keep in mind the era that it was – this was the time of the divorce debate, the abortion debate, the gay rights debate, the religious control debate and beginnings of abuse recognition. It was pretty right-on and we were very keen to catch up with, and maybe overtake our more progressive European neighbours.
So, in 1990 the definition was amended and expanded by the Criminal Law (Rape) amendment act specifically Section 4.

Rape under section 4 . 4.—(1) In this Act “rape under section 4 ” means a sexual assault that includes— (a) penetration (however slight) of the anus or mouth by the penis, or (b) penetration (however slight) of the vagina by any object held or manipulated by another person. (2) A person guilty of rape under section 4 shall be liable on conviction on indictment to imprisonment for life. (3) Rape under section 4 shall be a felony.

It should be noted that it explicitly states that the crime can only be committed by a male. However, it does allow for the understanding that a man could be raped by a man (buggery was still illegal at this time, so raping a man was a double offence – although I can’t remember any high profile prosecutions). This wording and the wording of the 1981 act are to be read together and are still in force.
So, women don’t rape. In fact, a woman can’t rape. What is odd about section 4, is that it fails to identify digital penetration, which I would have thought could be on a par with an object. Someone dropped the ball there, I think.
The 1990 Act provides definitions for sexual assault and aggravated sexual assault and includes a number of other expansions, including the recognition of rape within marriage (section 5). It allowed for the admittance of evidence without corroboration (section 7), for alternative verdicts (section 8) (ie. Arrested for one crime but found guilty of another, lesser crime).
More notably, it removed assumed consent as a defence.

9.—It is hereby declared that in relation to an offence that consists of or includes the doing of an act to a person without the consent of that person any failure or omission by that person to offer resistance to the act does not of itself constitute consent to the act.

Another significant feature of the 1990 Act was to remove any defence by virtue of age (children, through other legislation, having a special status and protection in criminal law), without any downward age limit with regard to sexual offences. Of course, in the meaning of the act, this refers to boys and male infants only, and this exception is only found regarding crimes of a sexual nature. The words “male” and “his” are used unnecessarily, just in case there might be any confusion.

6.—Any rule of law by virtue of which a male person is treated by reason of his age as being physically incapable of committing an offence of a sexual nature is hereby abolished.

“But!”, I hear you ask  “What about a man raping another man? Isn’t that rape?.
Well, finally, yes, it is, and it wasn’t until 1990 that it was finally recognised.  Unfortunately for gay men, though, consent was irrelevant because, even if it was consensual, its buggery – it was the act which was illegal, not its violence. I know that buggery sounds like a curiously antiquated word, almost humorous, but its illegality was no laughing matter for homosexual men.
What is surprising is that it was not abolished as a crime until the Criminal Law (sexual offences) Act of 1993, section 2, and that was as a result of very serious public pressure on the government.

2.—Subject to sections 3 and 5 of this Act, any rule of law by virtue of which buggery between persons is an offence is hereby abolished.

However, age of consent was established at 17 years, except within marriage under section 3 of the act (therefore excluding homosexuality), something which is still under scrutiny. The act also protects people with mental impairment.

Gross indecency with males under 17 years of age.4.—A male person who commits or attempts to commit an act of gross indecency with another male person under the age of 17 years shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for a term not exceeding 2 years.

Notable though, is the use of the words “male” and “gross indecency”, to limit the offence to men only, and to cover a broad range of activity. To be clear, I support the extension the protection of young people to include boys (remembering that girls were specifically protected since 1861), but I can’t understand why it is limited to protection from males only.
Strangely, “gross indecency” falls short of the now abolished crime of buggery. Someone dropped the ball again.
This was finally sorted out by the Criminal Law (sexual offences) Act of 2006, which repealed certain sections of the 1993 act, and had the effect of decriminalising consensual behaviour (short of buggery) between boys over 15. Where an older man is involved, it is necessary to charge sexual assault charge and prove absence of consent.
I don’t want to get too sidetracked into acts were designed to protect children (the 2001 Act, for example, which was a great step forward in introducing “causing or encouraging sexual offence upon a child” as a gender neutral crime, protecting boys and girls equally, even though it was simply an extension of the protections provided to girls by the 1908 Children’s Act, and 1935 amendment), but I want to point out that it is increasingly difficult to tease apart sexual offences, rape, and child abuse as they have been fairly consistently grouped together under single acts.
However, it is necessary to draw attention to the gender asymmetry of sexual offences, currently and historically.
This brings me to an aspect of the 2006 Act which is still being looked at by legal-eagles. That is, the confusion which often arises between common law rape and unlawful carnal knowledge (also known as statutory rape).
This related specifically to sexual offences with girls under the age of 15 (section 1, section 2 of the 1935 act, respectively). The key feature is that statutory rape does not require proof of the absence of consent (as a child cannot give meaningful consent). Only a man could commit the act, although a woman could be convicted of the lesser charge of aiding and abetting, unless she was actually involved in the act, in which case she could not be convicted (from R v Tyrell [1894] 1 Q.B. 710 which held that since the statute was created for the protection of girls, the female cannot be convicted as a party to it).
Obscene as it would appear, this was the case until a Supreme Court decision in 2006 (C. C. v Ireland, the Attorney General and the Director of Public Prosecutions, unreported, Supreme Court, May 23rd, 2006) which successfully challenged the law as unconstitutional as it offered no defense whatsoever, and section 1 was struck down. The Criminal Law (sexual offences) Act in the same year, repealed section 2. The knock on effect of this was that a female involved in the act would also be aware of the age of the victim, and so be found guilty of a crime, but not rape, ever, not even statutory.
I still support the act as a step forward, because within the 2006 Act, children under 17 and 15 are given increasing protection from sexual abuse and that is good.
However, the thing which usually provides a good topic for discussion is section 5:

Female child under 17 years of age not guilty of offence.5.— A female child under the age of 17 years shall not be guilty of an offence under this Act by reason only of her engaging in an act of sexual intercourse.

If two children have sex, why is only the boy guilty?
For an answer, I looked at a Submission by the DPP, Oireachtas Joint Committee on Child Protection (26 September 2006), and I’m still confused.
Here’s an extract from the text:

There is a further difficulty of principle with a completely gender neutral offence. Under the old law the actus reus the act constituting the offence of the offences of both rape and statutory rape is penetration of the female by the male. If the offence is gender neutral, is male penetration to remain the actus reus? If so, and as seems to be the case under the 2006 legislation, the act of the male triggers the commission of the offence by the female.

and

If the female as well as the male who engages in under age sex commits an offence, then the girl is unlikely to come forward to complain. If she does, she may be unwilling to testify without a grant of immunity. If she is to be treated as an accomplice, is a jury to be warned about treating her evidence as unreliable? If such a law is passed, on what basis is a prosecutor to prosecute the male and not the female? If both are prosecuted, it is highly unlikely that either can be convicted. If only the male is prosecuted he is likely to argue in his defence that the female ought to have been prosecuted.

At least, with regard to the resistance to changes in interpretation and the apparent double-standard, there is some honesty within the text.

It is interesting to note that the existing laws relating to sexual offences are by no means exclusively gender-neutral. The law of rape is not gender-neutral, and I am aware of no body of opinionsuggesting it should be. The law of incest is not gender neutral either. On the other hand, the lesser offence of sexual assault is gender neutral. The law of buggery (now subsumed into the new law in the 2006 Act) is also in principle gender neutral although in practice likely to be committed by women only in very rare circumstances.

And also,

It seems to me that there are distinctions based on the physical difference between men and women which may validly be made, and arguably ought to be made. It is valid to regard penetrative sex as being of a different degree of seriousness for the woman who is penetrated than for the man who penetrates, even where a man engages in sexual intercourse without his full consent in the sense that his will is overborne.Indeed, for physiological reasons it must be rare indeed that a man is compelled by a woman to engage in sexual intercourse with her against his will. It is for this reason that the law of rape is not gender-neutral; it recognises that it is the woman who is penetrated and the man who penetrates, and it does not indulge in a false equation between the rape of a woman and the fate of a man who is compelled to participate in an act of sexual intercourse.The latter, of course, amounts at least to a sexual assault and is a serious offence although not carrying as serious a penalty as rape or aggravated sexual assault where the minimum penalty is imprisonment for life.

The 2007 Criminal Law (sexual offences) act 2007, doubles the length of custodial sentences which can be handed down for sexual offences.

About John Gormley

I am a Dublin-born man and happily married with one son - who is the reason I fight so hard for men's rights. I do not wish him to grow up in a society that is toxic for boys. I am a carpenter and furniture designer/restorer by trade.

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