Consent and its Construction in Rape Trials in Ireland: A Feminist Analysis.

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