Sibeal Journal - Issue 1, Gender and Metamorphosis, 2015 Sibeal: Limerick

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Consent and its Construction in Rape Trials in Ireland: A Feminist Analysis Sarah Bryan O’Sullivan The Monster in the House: Grendel’s Mother and the Victorian Ideal Alison Elizabeth Killilea Monstrous Metamorphosis: Mothers’ Bodies and the Science
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  Sibéal Feminist and Gender Studies Network Sibéal   Issue 1 Gender and Metamorphosis   Journal 1, 2015     Table of Contents Consent and its Construction in Rape Trials in Ireland: A Feminist Analysis   Sarah Bryan O’Sullivan The Monster in the House: Grendel’s Mother and the Victorian Ideal   Alison Elizabeth Killilea Monstrous Metamorphosis: Mothers’ Bodies and the Science (Fiction) of Birth   Nicola Moffat ‘I had to remake myself. I had to unmake myself.' Mental Illness and its Treatment in the Literature of Anne Enright   Dr Michelle Kennedy    Thanks to:  Former Sibeal committee members Ann Marie Joyce, Patti O’Malley, Maeve O’Brien. New Sibeal Committee Mary Farrell, Mary McGill and Donna Mitchell Peer Reviewers Gender in Metamorphosis ‘Metamorphosis’ implies fluidity, liminality and processes of change. As a scientific term, it characterises the abrupt biological development of a species after hatching or birth. This idea of an in-between space or state, of growth, transition and transformation has captured the imagination of philosophers, poets and writers throughout history. In rejecting essentialist fixed identity categories, feminist scholars too have sought to understand how gender intersects with other identities, paying attention to how these are performed in and through gendered bodies. This journal represents a metamorphosis for Sibeal. The evolvement of a network that has provided support and space for researchers in gender and feminist studies to discuss and collaboration for 10 years is important. The publication of this journal is a new departure, a new extension of the reach of the network, providing a much needed publishing platform for post-graduates and early career researchers. Our network continues to grow, and as a result we are expanding to meet the needs of researchers. This publication has come about because of the hard work and contribution of members in order to support the important research undertaken in gender and feminist studies. Sibeal continues to metamorphosis because of members. Our first journal represents the wide reach of Sibeal, with contributions on consent and it’s construction in rape trials, Beowulf, Frankenstein, and mental health in contemporary Irish Literature. The quality of the contribuitions we received is a testament to the need for this annual journal. The Sibeal Journal will be space for researchers to develop their work, to be supported by others in their field, and to collaborate on new developments in Gender Studies and Feminist research. Get-Involved: The call for papers for our 2017 journal is at the end of this journal. Dr Deirdre Flynn, Noirin MacNamara, Dr Ailish Veale    Consent and its Construction in Rape Trials in Ireland:   A Feminist Analysis 1   Sarah Bryan O’Sullivan   2   Within the criminal law context in general, the issue of consent has proven a contentious concept. However, nowhere has this concept proven more problematic than in relation to the offence of rape. A number of aggravating factors may be identified in this regard. Due to the broad and multi-faceted nature of the term ‘consent’, a satisfactory definition of the concept appears to have remained elusive, with the legislature in a number of common law jurisdictions failing to provide a statutory definition of the term. The issue is further complicated by the fact that the legitimacy of sexual intercourse hinges on two factors, both of which are directly concerned with consent – ‘whether the complainant in a rape trial actually consented to the sexual intercourse and… whether the defendant understood the complainant to be consenting’ (Cowan, 2007: 54). However, undoubtedly one of the major criticisms in relation to consent in the offence of rape is its construction. The manner in which the offence of rape is constructed in law has influenced how it is defined and how its presence or absence is interpreted. This issue has led to heated debate, with many commentators pointing to the (ultimately problematic) construction of consent as a significant aggravating factor in rape trail convictions. Indeed, the construction of the concept of consent in these cases allows for clear distinctions to be drawn between rape and other criminal offences, adding weight to the argument that the construction of consent in rape cases is particularly problematic. Hence, given the problematic nature of the term, the centrality of the concept in respect to the offence itself and the issues surrounding its construction, the contention which exists in this area is not surprising. This paper will present an overview of the various issues surrounding the construction of  consent in the offence of rape. First, consent and the origins of the common law offence of  rape will be addressed. The manner in which consent is constructed and subsequently interpreted will then be outlined, before moving on to consider the feminist analysis of this construction. Finally, prior to concluding, the current position in this jurisdiction will be assessed and the potential for reform will be evaluated. Consent and the Common Law Offence of Rape – Origins 1  As will be outlined, in Ireland the offence of rape, as provided for under section 2 of the Criminal Law (Rape) Act 1981 (as amended by the Criminal Law (Rape) (Amendment) Act 1990) is a gendered offence, it can only be committed by a man against a woman. Nevertheless, the author is fully conscious of the fact that sexual violence can be inflicted upon male and female victims by male or female offenders. However, as Hanly et al note, ‘All the available evidence … indicates that men and women do not face an equal threat of sexual violence, and that rape is a crime that is overwhelmingly committed against women’ (2009: 13). This point is also highlighted by Bacik who refers to the archetypal gendered nature of the crime, where the victims are predominantly female and perpetrators are overwhelmingly male (2002: 148). Moreover, the gendered nature of the crime has clearly influenced the development of the law on rape and the manner in which the offence is interpreted. By focusing on a feminist analysis of consent in relation to the offence of rape, this paper aims to consider a specific aspect of the gendered nature of the offence. 2  BCL, LLM (Criminal Justice), PhD Candidate (TCD), Irish Research Council Scholar.    Historically, Blackstone defined rape as ‘the carnal knowledge of a woman forcibly and against her will’ (Blackstone, 1809). Undoubtedly this definition of rape fed into the culturally engendered implication, which has (arguably) only been dispelled in recent decades, before which time a complainant had to show physical resistance in order to prove a lack of consent. However, as O’Malley notes, with the abolition of capital punishment for rape in 1841 there emerged a clear willingness on the part of the judiciary to widen the definition of rape, allowing for the offence to have occurred where intercourse took place with a woman who did not consent, as opposed to intercourse with a woman ‘against her will’ (O’Malley, 1996: 36). Fortunately, due to increased pressure, campaigning and consciousness-raising by various victim advocacy groups, this is now the accepted view, both from a case law and legislative perspective. 3  In the Irish jurisdiction the definition of the offence of rape is to be found in section 2(1) of the Criminal Law (Rape) Act 1981, as amended by the Criminal Law (Rape) (Amendment) Act 1990. The provision provides; (1) A man commits rape if: (a) He has sexual intercourse with a woman who at the time of the intercourse does not consent to it; and (b) At the time he knows that she does not consent or he is reckless as to whether she does or does not consent to it, and reference to rape in this Act and other enactments shall be construed accordingly. In this section, which was modelled almost exclusively on its corresponding provision in England and Wales, consent is an element of both the actus reus of the offence, contained in section 2(1)(a), and the mens rea of the offences, as outlined in section 2(1)(b). 4  In relation to the mens rea element (or mental intent element) of the offence, the test to be applied when assessing culpability is a subjective one. Consequently, the defendant’s belief in the complainant’s consent does not have to be an objectively reasonable belief; it merely has to be an honestly held one. The subjective test can be traced to the House of Lords decision in  DPP v Morgan . In this case a majority of the House of Lords held that a man who has sexual   intercourse with a woman without her consent cannot be convicted of rape if he honestly believed she was consenting. As per Lord Hailsham, the court held that; …the prohibited act is and always has been intercourse without the consent of the victim and the mental element is and always has been the intention to commit that act, or the equivalent intention of having intercourse willy-nilly not caring whether the victim consents or not. A failure to prove this involves an acquittal because the intent, an essential ingredient is lacking. It matters not why it is lacking if only it is not there, and in particular it matters not that the intention is lacking only because of a belief not based on reasonable grounds ( Director of Public Prosecutions v. Morgan  [1976] AC 182, 215)   3   Director of Public Prosecutions v. Morgan   [1976] AC 182, 197. Hereinafter Morgan. Also, see section 9 of the Criminal Law (Rape) Act 1981   4  Criminal offences generally consist of two elements: the physical element (the actus reus) and the mental intent element (mens rea). Generally speaking, in order to find a person guilty of an offence both elements of the offence must be proven. Therefore, in the case of rape the prosecution must prove that the accused engaged in sexual intercourse with a woman who did not consent and that he knew she was not consenting or was reckless as whether she was or was not consenting.
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