Rape, Consent and the Quagmire Created by New Laws

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Victim-Centred Prosecution Law

In recent years victim-centred prosecution law has become common but the extent to which it distorts investigations is not fully appreciated. In 2018, over 150 American criminal lawyers, law professors and scholars signed an open letter denouncing the victim-centred investigative practises which flourished under the Obama regime:

By their very name, their ideology, and the methods they foster, ‘believe the victim’ concepts presume the guilt of an accused, threatens to subvert constitutionally-rooted due process protections.

A typical instance of the shift to victim-centred prosecution law is the constant use of the word “victim” to describe the complainant, before and during the trial itself.

Unfortunately, this designation seems to have crept in largely unnoticed into legislative documents and into press descriptions of court proceedings in recent years. It appears in the Victims of Crime Act 2017, where victim is defined and declared to be independent of any offence having to be established.

This danger has been alluded to by Angela Rafferty QC, chairwoman of the Criminal Bar Association. She warned about a practice increasingly evident here: “sexual offence cases where the complainant is labelled victim before a trial has even started”.

Definition of Consent

At the state level in the US, there is no uniform legal definition of rape; instead, each state has its own laws. These definitions can vary considerably, but many of them do not use the term rape anymore, instead using sexual assaultcriminal sexual conductsexual abusesexual battery, etc

In the EU there is also disagreement:

 The  European Union’s first directive (January 2024) on combating violence against women and domestic violence will not include the crime of rape.

Why? A number of countries – including Ireland – could not agree on a legal definition.

The jurisprudential momentum has been shifting from violence or the threat of violence to consent for some time.

The Sexual Offences Act 2017 extended the definition of rape by introducing the notion of consent and stipulating what constitutes consent.

Prior to this, rape was assumed to be accompanied by violence; the idea was fixed in the public mind of a stranger who plucks a woman off the street or accosts her in a lonely place and then forces himself on her by violence. But now most rapes do not occur between strangers, there is no violence and the two people are well known to each other and engage in intimacy but it is a question of how far this goes with consent.

The Criminal Law (Sexual Offences) Act 2017

In section 48 the Act of 1990 is amended by the substitution of a new section for section 9. Below we do not quote the full section but focus on a few key elements of consent.

9. (1) A person consents to a sexual act if he or she freely and voluntarily agrees to engage in that act.

(2) A person does not consent to a sexual act if—

(c) he or she is incapable of consenting because of the effect of alcohol or some other drug,

(4) Consent to a sexual act may be withdrawn at any time before the act begins, or in the case of a continuing act, while the act is taking place.
(5) Any failure or omission on the part of a person to offer resistance to an act does not of itself constitute consent to that act.

Comments: (4) and (5) are problematic. Suppose one party is initially willing, how is the other to be sure that this continues throughout If that person does not make any resistance, since it cannot be assumed that silence does imply consent.

How many consents must one party get from the other to be on the safe side?

Another issue is that in practice, the woman may drink as much as she likes, she has no responsibility for what happens, but the man is held responsible even if intoxicated.

Has the notion of consent helped clarify when rape occurs? It is hard to argue this since the woman is not required to say “No” if she does not want sex.

There can be a subtle shifting of the burden of proof to the man to prove he did have consent, a denial of due process. Yet another issue concerns reporting of alleged assault.

The woman who apparently gave her consent the night before can change her mind next morning and bring a rape charge against the man. She can still bring such a charge at some indefinite point in the future, if on reflection she believes she did not give consent or was too intoxicated to do so. She can do this even if she has little recollection of what occurred.


Critical comment on the Consent issue has been growing in recent years.

The Case against The Sexual Revolution by Louise Perry contains such heretical remarks as:  that consent workshops have little value; advice to women to avoid being intoxicated in mixed groups; that 21st-century liberal feminism has backed itself into a corner so far as rape goes.

The barrister Laura Perrins in a major article in 2013 raises the critical question of the public’s understanding of rape versus the legal definition. She goes on:

The crucial question is, are these decisions an accurate reflection of the public’s understanding of what the offence of rape truly is? Are these cases stretching the definition of rape so far that there is now an insurmountable gap between the Court’s understanding of what rape is, and that of the public’s? In the criminal law it is very important that the offence the courts say has been committed is a fair reflection of the public’s understanding of it. This is known as the principle of ‘fair labelling’: the label placed on the offender by the courts must be a fair description in the public’s mind – not just a lawyer’s mind – of what was done.

In a very recent article  Larissa Phillips says:

The modern feminist response to rape Is failing women, and it is failing victims of rape most of all. I reject the idea that advising women to be active advocates for their safety and well-being is restrictive.

For those dissatisfied with the advice offered by modern rape and trauma discourse, I offer the following alternative: Accept the awesome responsibility for your own personal security. Trust your instincts when they warn you of danger. If you are unlucky enough to be attacked anyway, fight like hell with everything you’ve got. If you are raped, go directly to the hospital for an examination and then file a police report. Pursue prosecution. Whether you resisted or not, know that it is never too late to fight to regain your whole self. 


An article in Gript  (Jan 28 2024) by Kevin Myers titled  The peril facing the modern man

considers the scandal of the Mícheál Ó Leidhin case, the broadcaster who was imprisoned for eighteen months for feeling the breasts of a woman who was in bed with him.

Gerard Casey goes into these matters, the changing definition of rape, consent, the complications of alcohol-related sex  in great detail in his book “After #MeToo: “Feminism, Patriarchy, Toxic Masculinity and Sundry Cultural Delights published in 2020 which is highly recommended.

The last chapter, tellingly titled A Presumption of Guilt,  deals among other things with the feminist attack on due process. Casey emphasises the Presumption of Innocence which he calls the Golden Thread running through the web of Criminal Law which is now under threat.

See also Gerard Casey  https://www.youtube.com/watch?v=sB2802Bs4RI  Rape, a Presumption of Guilt.



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