A Critical Evaluation of Rape and the Police from a Sociological and Legal Perspective.

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Introduction: This essay endeavours to critically analyse rape law and the police from a sociological and legal perspective. Both of the topics mentioned above will have their historical developments and current criticisms discussed, amongst other things. Rape: Historically, on the rare occasion that a rape was acknowledged, it was seen as a crime against the property of the female victims father or husband.1 This is obviously the view of an archaically patriarchal society and thankfully great advancements have taken place in this area of law. Nevertheless, certain elements of male dominance still exist in aspects of rape law to this day; this essay will demonstrate this point. Rape is an offence originating from common law that is punishable by s.48 of the Offences Against the Person Act, 1861.2 Rape is when a man has unlawful sexual intercourse with a woman who at the time of the intercourse does not consent to it, and 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.3 The Criminal Law (Rape) (Amendment) Act, 1990, was introduced in response to widespread criticisms from the academic community. This act introduced the abolition of the absurd4 marital exemption in relation to rape.5 It also included the penetration of the vagina with a hand held object as well as oral and anal penile penetration into the definition of rape.6 The Irish legal system currently views rape as a crime of an extraordinarily serious nature.7 The Supreme Court in this case noted that any effort to view rape as a minor offence would be unconstitutional8, primarily due to the fact this would effectively be an attack on the human dignity of women. It is widely accepted that the development of rape law stemmed from the campaigning of womens organisations, rape crisis centres and various feminist writers.9 However, it is unfortunate that some feminist arguments see the improvement of rape law as a subordinate
1 2

McGregor, Is it Rape? On Acquaintance Rape and Taking Womens Consent Seriously (Ashgate, 2005) at 3. nd Hanley, An Introduction to Irish Criminal Law (Dublin, 2 ed., 2006) at 279. 3 S. 2 Criminal Law (Rape) Act 1981. 4 nd Hanley, An Introduction to Irish Criminal Law (Dublin, 2 ed., 2006) at 280. 5 S. 5 Criminal Law (Rape) (Amendment) Act, 1990. 6 S. 4 Criminal Law (Rape) (Amendment) Act, 1990. 7 D.P.P. v Tiernan [1989] I.L.R.M. 149 at 153. 8 Ibid at 151. 9 OMalley, Sexual Offences: Law, Policy and Punishment (Dublin, 1996) at 15-25.

objective below the destruction of a perceived patriarchy. An example of a sexist argument is the statement Rape controls women.10 Not only is this statement disrespectful to men as a gender, it is also highly offensive to rape victims because it views the raping of an individual as cog in a large sociological machine with the aim of societal control instead of a personal assault. As well as this, some feminists arguments are amazingly untenable. For example Smart attempts to link a rapists quote Rape is a mans right with another mans quote My sex life is what my wife will allow me to have and not what I would like, In order to demonstrated how the expressed phallocentrism of a criminally insane individual resonates with all men.11 These two quotes clearly do not resonate. Leahy maintains that although great advancements have been made to rape law in the statute books, little has changed in the practical sense for the victims of rape.12 This view explains why so many of the criticisms of the Irish rape law concern the course of the trial. Some critics go as far to say that the victim of the crime of rape is victimised twice, once by the perpetrator and again by the Irish legal system.13 An example of an area of the rape trial which has been and continues to be under severe criticism is that of the corroboration warning. This is a warning by the trial judge to the jury that unless they are satisfied that the testimony of the complainant is truthful they should be careful not to convict the accused in the absence of any corroborating evidence. 14 Temkin confidently expresses the view that this rule was based on sexist attitudes towards women.15 The legislature responded to such criticism by enacting the Criminal Law (Rape) (Amendment) Act 1990, Section 7 of which gave the trial judge discretion as to whether or not to issue a warning. Following the enactment of this act, Flood J. stated that it is a prudent practice for the trial judge to issue a warning, notwithstanding section 7.16 However as Hanley denoted17 the courts practice seems to have changed in light of the decision in The People (D.P.P.) v J.E.M.18 Writers such as McGrath have called for the corroboration warning to be abolished in its entirety, as it was in England by section 32(1) of
10 11

Barnett, Introduction to Feminist Jurisprudence (London, 1998) at 275. Smart, Feminism and the Power of Law (London, 1989) at 31. 12 Leahy, In a Womans Voice: A Feminist Analysis of Irish Rape Law, (2008) 26 Irish Law Times 203 at 203. 13 Barnett, Introduction to Feminist Jurisprudence (London, 1998) at 275. 14 http://www.citizensinformation.ie/en/justice/evidence/suspect_evidence.html accessed on 15/11/2010. 15 Temkin, Towards a Modern Law of Rape, (1982) 45 The Modern Law Review 399 at 418. She believes that the rule was based on the folkloric assumption that women are by nature peculiarly prone to malice and mendacity and particularly adept at concealing it 16 The People (D.P.P.) v Molloy (Unreported, Court of Criminal Appeal, July 28, 1995) 17 nd Hanley, An Introduction to Irish Criminal Law (Dublin, 2 ed., 2006) at 310. 18 [2000] 6 Irish Current Law Monthly Digest 34.

the Criminal Justice and Public Order Act 1994. McGrath outlines many of the potential justifications for the existence of the corroboration warning and convincingly argues their individual failings.19 An example noted by McGrath of a potential justification is that because sexual offence cases are hard to defend the defendant may not be accorded the full benefit of the presumption of innocence. However, in Ireland it is reported that only 1-2% of rape cases in Ireland result in convictions.20 This statistic demonstrates that sexual offence cases are not in fact especially difficult to defend. As well as having a lack of strong justifications, the corroboration warning is seen as being overly misogynistic in conception and application.21 Another common criticism of rape law is the limited right of separate legal representation for the complainant. Common law made it permissible to admit evidence that prior to the incident in question the complainant had sexual intercourse with the accused or with others. A statutory restriction was imposed on this rule by section 3 of the Criminal Law (Rape) Act 1981. Section 34 of the Sex Offenders Act 2001 inserted a new Section 4A into the 1981 Act. This section allowed for the complainant to avail of legal representation on foot of an application under section 3 by or on behalf of the accused.22 Ivana Baciks report entitled Separate Legal Representation in Rape Trials (Cited above) outlines the many benefits of separate legal representation.23 She recommended that legal represented should be introduced into Irish law, but not to the extent that the lawyer may act as a second prosecutor. As Hanley points out one of the primary complaints made by feminist critics is the introduction by the defence of evidence concerning the complainants prior sexual history. 24 The relevance of this evidence is debatable25 and is usually introduced to reduce the quality of the jurors interpretation of the complainants reliability. Section 3 of the 1981 Act, as amended by section 13 of the Criminal Law (Rape) (Amendment) Act 1990, attempted to protect the victim by requiring the defence to apply to the trial judge for permission to introduce evidence of the complainants previous sexual history. As noted above the Sex
19

McGrath, Two Steps Forward, One Step Back: The Corroboration Warning In Sexual Cases, (1999) 9(1) Irish Criminal Law Journal 22 at 37-43. 20 http://www.rte.ie/news/2003/1003/rape.html#article Accessed on 18/11/2010 21 Leahy, In a Womans Voice: A Feminist Analysis of Irish Rape Law, (2008) 26 Irish Law Times 203 at 207. 22 http://webcache.googleusercontent.com/search?q=cache:Hh1fxnSoaYAJ:www.drcc.ie/report/Ivana%2520Ba cik.ppt+limited+separate+legal+representation+in+ireland&cd=1&hl=en&ct=clnk&gl=ie 23 Ibid; She found that complainants were more confident in giving evidence and had a lower hostility rating for the defence counsel. In summary there was an overall satisfaction with the trial process. 24 nd Hanley, An Introduction to Irish Criminal Law (Dublin, 2 ed., 2006) at 306. 25 Ibid.

Offenders Act 2001 created further protection for victims by introducing a legal entitlement to separate legal representation. One would find it difficult to argue against Baciks belief that this right should be extended and protected to a greater extent.26 The final aspect of rape law under criticism that will be discussed in this essay is the laws preoccupation with what is termed stranger rape. Writers such as Leahy believe that the law operates on the assumption that the only real rape is the one committed by a violent stranger.27 Critics argue that this particular orientation makes it harder for complainants to prove that they did not consent because in 89% of rape cases the two parties are acquainted with each other.28 MacKinnon holds this opinion to the extent that she claims that if the accused is known to the complainant then consent is simply presumed.29 This is not necessarily the case. It is submitted here that consent is not presumed but that it is simply substantially harder to prove, and logically so. If a woman has had previous sexual relations with an accused man then it is completely reasonable that consent is harder to prove then in the situation of a violent stranger rape, after all, the women in all probability would have previously consented on numerous occasions, if the accused was a sexual acquaintance. The Police: The police force in the Republic of Ireland is known as the Garda Sochna. Its predecessor was the Royal Irish Constabulary which was the national police force from 1814 until 1921.30 It was in 1922 that the Garda Sochna was established.31 Today, the police force of Ireland is seen as an integral part of the criminal justice process, the culmination of which is the criminal trial.32 The primary function of the Garda Sochna under 7(1) of the Garda Sochna Act 2005 is to provide policing and security services for the State. In doing

26

http://webcache.googleusercontent.com/search?q=cache:Hh1fxnSoaYAJ:www.drcc.ie/report/Ivana%2520Ba cik.ppt+limited+separate+legal+representation+in+ireland&cd=1&hl=en&ct=clnk&gl=ie 27 Leahy, In a Womans Voice: A Feminist Analysis of Irish Rape Law, (2008) 26 Irish Law Times 203 at 204. 28 Rape Crisis Network Irelands Report on National Rape Crisis Statistics 2009 at 1. Available at http://www.rcni.ie/uploads/RCNINationalStatistics2009.pdf last accessed on 20/11/2010. 29 MacKinnon, Toward A Feminist Theory of the State (Harvard University Press, 1989) at 175 where she says: The law of rape divides women into spheres of consent according to indices of relationship to men. Which category of presumed consent a woman is in depends upon who she is relative to a man who wants her, not what she says or does. These categories tell men whom they can legally fuck, who is open season and who is off limits, not how to listen to women. 30 http://www.royalirishconstabulary.com/ Last accessed 20/11/2010. 31 http://www.policehistory.com/garda.html Last accessed 20/11/2010. 32 Brooke, Entrapment: Beyond the Judicial Pale, (2009) 27 Irish Law Times 289 at 289.

this they must also hold in regard the objectives set out in S.7 (1).33 According to recent statistics there are currently 14,547 members of An Garda Sochna, which are broken into ranks.34 Garda are greatly involved in the role of law enforcement, however, studies have shown that contrary to popular belief, police objectives are not primarily those of law enforcement law, which is only occasionally related to the police function.35 The Central focus of police work has always been the maintenance of social order36, as Cotterrell pointed out Law enforcement and peace keeping are two distinct tasks.37 A concept known to have a bearing effect on the process of law enforcement is the existence of police culture. Probably the most important aspect of police culture is the existence of group loyalty to the police as an organisation and the smaller units within it. An example of this group solidarity can be found in the Morris Tribunal where Justice Morris adverted to the fact that police solidarity hindered his investigation.38 Another important aspect of police culture is the polices image of society. Numerous studies have suggested that police perceive society to be a hostile one, continuously being on the verge of chaos.39 It is for this reason that police often perceive themselves as being the front line against chaotic disorder.40 The polices attitude towards socio-economic position is also important. The term slag refers to someone who leads an unconventional life to the extent that the police believe them to be involved in crime.41 Carey expands on this point, stating that the police attach suspicion to certain groups in society,
33

(a) preserving peace and public order, (b) protecting life and property, (c) vindicating the human rights of each individual, (d) protecting the security of the State, (e) preventing crime, (f) bringing criminals to justice, including by detecting and investigating crime, and (g) regulating and controlling road traffic and improving road safety. 34 http://www.garda.ie/FAQ/Default.aspx?FAQCategory=12 Last accessed on 20/11/2010. Commissioner: 1 Deputy Commissioner: 2 Assistant Commissioner: 11 Chief Superintendent: 39 Superintendent: 167 Inspector: 317 Sergeant: 2,078 Garda: 11,932 35 Manning, Police Work: The Social Organisation of Policing (Cambridge, 1977) at 39. 36 Cotterrell, The Sociology of Law: An Introduction (Dublin, 1984) at 289. 37 Ibid at 293. 38 Morris Tribunals report on Explosive Finds in Donegal at 23-24.Available at http://www.morristribunal.ie/sitecontent_80.pdf Here, Garda Martin Leonard is quoted as saying you dont want to hang your own. It is clear, according to Morris, that this ethic was active among many witnesses in order to prevent the Tribunal making headway. Last accessed on 20/11/2010. 39 Cotterrell, The Sociology of Law: An Introduction (Dublin, 1984) at 298. 40 Ibid. 41 Ibid at 299.

based not on reasonable cause but on other factors such as age, gender, race, attitude, incongruity, previous knowledge of suspect, suspect attitude towards police and various other operative factors such as the number of police officers on patrol.42 Carey believes that criminal laws ought to be enforced with respect for equal treatment and proportionality.43 Another example of the polices detachment from pure enforcement of the law can be found in numerous examples of what is known as police discretion. During the course of his work a Garda has the discretion as to how he is to enforce the law or whether or not to do so. He has the discretion as to where to patrol, who to arrest in a particular situation, under which laws to arrest them and discretion as to the allocation of police resources and time, to name but a few.44 It is for these reasons that it is argued that, to a certain extent, the police make the law. As the practical application of the law relies heavily upon a particular officers interpretation of the situation and their decisions thereafter, many academic commentators see the officers role as distinguishing between legal and illegal, which is in effect law making.45 Exposing the practical application of the law to the value laden beliefs of individual police officers may seem wrong in principle, however it is suggested here that this exposure is necessary. For an officer to weigh up each law applicable to a certain scenario would take quite a long time a therefore he would have to sacrifice a speedy reaction, which in a large amount of cases is key to justice. As well as this, it would be impossible for a police officer to react to every illegal act he witnesses, so it is necessary for the individual officer to apply a ranking criterion.46 It is for this reason that many believe that this discretion is a fundamental aspect of police work.47 The degree of police discretion leads to numerous problems, for example in the recording of crimes and statistics48, however there are many more serious criticisms of the police. Holdaway points out that the altering of evidence in certain cases can lead to what is known as verballing.49 This is the creation of an oral statement of admission or incrimination which is invented by the arresting or inventing officer and attributed to a
42 43

Carey, Police Targeting and Equality Rights, (2001) 19 Irish Law Times 8 at 9. Ibid at 15. 44 Vaughan, A New System of Police Accountability: The Garda Sochna Act 2005, (2005) 15(4) Irish Criminal Law Journal 18 at 21. 45 Cotterrell, The Sociology of Law: An Introduction (Dublin, 1984) at 290. 46 Vaughan, A New System of Police Accountability: The Garda Sochna Act 2005, (2005) 15(4) Irish Criminal Law Journal 18 at 21. 47 Holdaway, Inside the British Police: A force at work (Oxford, 1983) at 8. Here, Holdaway quotes a senior officer as saying that policemen must be willing to cut corners or else they would never get their job done. 48 Cotterrell, The Sociology of Law: An Introduction (Dublin, 1984) at 290. 49 Ibid at 292.

suspect.50 Holdaway points out that the use of verbals is not a common event due to the high cost to pay if found out, but it does exist.51 Another common criticism is that of police interrogation. Brooke is of the opinion that the Gardas statutory power of detention makes them especially dangerous as well as especially useful.52 This statement expounds the belief that although police detention and interrogation is a very useful tool in the protection of justice, it must not be used for punitive purposes. An example of a case where police abused their powers of interrogation is the case of The Republic of Ireland v The United Kingdom.53 In this case, the U.K. was challenged for its various interrogation practices, in particular the so-called 'five techniques', which included wall-standing, hooding and deprivation of sleep and food amongst others. It was held that through the implementation of these interrogation techniques the suspects were subjected to torture and inhuman or degrading treatment contrary to Article 3 of the European Convention on Human Rights. Another criticism of the Garda is the issue of entrapment. Entrapment is when a person is induced by a police officer to commit a crime that he or she had no previous intention to commit.54 Brooke makes clear, throughout his article, that entrapment is now recognised as a central example of impropriety on behalf of the police. It can be argued that a crime is a crime if committed under the free will of the criminal, regardless of any influence by the police. However, one of the key arguments against entrapment is that the police are funded to prevent crime, not to create crimes that would not otherwise have occurred.55 The recent case of R v. Winter56 is an example of a case involving entrapment. This case involved a man who wished to kill his wife. Upon hearing this, the police introduced an undercover contract killer to the scenario. The husband wanted the undercover officer to drive his car around Plymouth to provide him with an alibi. Although the police in this case and many like it cannot fully be said to have committed entrapment, they can still be criticised for involving a defendant in ever deeper levels of criminality.57

50 51

Ibid. Ibid. 52 Brooke, Police Interrogation: For Justice Not punishment-Part II, (2010) 28 Irish Law Times 48 at 52. 53 (1979-80) 2 E.H.R.R. 25. 54 http://www.lectlaw.com/def/e024.htm Last accessed on 21/11/2010. 55 Brooke, Entrapment: Beyond the Judicial Pale, (2009) 27 Irish Law Times 289 at 290. 56 [2007] E.W.C.A. Crim. 3493. 57 Brooke, Entrapment: Beyond the Judicial Pale, (2009) 27 Irish Law Times 289 at 295.

Finally, Vaughen outlines in his article how the problematic nature of police culture along with the reliance on a single organisation (The Ombudsman Commission) means that police accountability in Ireland is below the desired standard.58 He holds that the best way to change police accountability in Ireland is to build up a web of controls that push toward greater responsiveness and accountability.59 Conclusion: In the last few decades accelerated development has taken place in the area of rape law, in no small part down to the hard work of so many academic writers and support groups. However, this area of law is far from ideal. A recent news article spoke of a conference in Dublin City, in which it was revealed that Ireland has the lowest conviction rate in a study comparing 22 countries. This is an aspect of rape law, amongst many others, which must be altered. Despite rape laws obvious flaws, the hard work of academic commentators, support groups and feminists alike ensures that this will be an area of law subject to much advancement in the future. As this essay has demonstrated, the concepts of police culture and discretion are heavily embedded within the police force of Ireland. Although these two concepts create many problems, there are strong arguments in favour of them. Nevertheless it is clear that the Garda play an important role in law enforcement and indeed society as a whole.

58

Vaughan, A New System of Police Accountability: The Garda Sochna Act 2005, (2005) 15(4) Irish Criminal Law Journal 18. 59 Ibid at 22.

Bibliography:

Websites: http://www.citizensinformation.ie/en/justice/evidence/suspect_evidence.html http://www.rte.ie/news/2003/1003/rape.html#article http://webcache.googleusercontent.com/search?q=cache:Hh1fxnSoaYAJ:www.drcc.ie/report/ Ivana%2520Bacik.ppt+limited+separate+legal+representation+in+ireland&cd=1&hl=en&ct= clnk&gl=ie http://www.rcni.ie/uploads/RCNINationalStatistics2009.pdf http://www.royalirishconstabulary.com/ http://www.policehistory.com/garda.html http://www.garda.ie/FAQ/Default.aspx?FAQCategory=12 http://www.morristribunal.ie/sitecontent_80.pdf http://www.lectlaw.com/def/e024.htm Cases: D.P.P. v Tiernan [1989] I.L.R.M. 149. The People (D.P.P.) v Molloy (Unreported, Court of Criminal Appeal, July 28, 1995) The People (D.P.P.) v J.E.M. [2000] 6 Irish Current Law Monthly Digest 34. R v. Winter [2007] E.W.C.A. Crim. 3493. Books: Cotterrell, The Sociology of Law: An Introduction (Dublin, 1984) McGregor, Is it Rape? On Acquaintance Rape and Taking Womens Consent Seriously (Ashgate, 2005) Hanley, An Introduction to Irish Criminal Law (Dublin, 2nd ed., 2006)

OMalley, Sexual Offences: Law, Policy and Punishment (Dublin, 1996) Barnett, Introduction to Feminist Jurisprudence (London, 1998) Smart, Feminism and the Power of Law (London, 1989) MacKinnon, Toward A Feminist Theory of the State (Harvard University Press, 1989) Manning, Police Work: The Social Organisation of Policing (Cambridge, 1977) Holdaway, Inside the British Police: A force at work (Oxford, 1983) Articles: Leahy, In a Womans Voice: A Feminist Analysis of Irish Rape Law, (2008) 26 Irish Law Times 203. Temkin, Towards a Modern Law of Rape, (1982) 45 The Modern Law Review 399. McGrath, Two Steps Forward, One Step Back: The Corroboration Warning In Sexual Cases, (1999) 9(1) Irish Criminal Law Journal 22. Brooke, Entrapment: Beyond the Judicial Pale, (2009) 27 Irish Law Times 289. Carey, Police Targeting and Equality Rights, (2001) 19 Irish Law Times 8. Vaughan, A New System of Police Accountability: The Garda Sochna Act 2005, (2005) 15(4) Irish Criminal Law Journal 18. Brooke, Police Interrogation: For Justice Not punishment-Part II, (2010) 28 Irish Law Times 48. Statutes: Criminal Law (Rape) Act, 1981. Criminal Law (Rape) (Amendment) Act, 1990. Reports: Rape Crisis Network Irelands Report on National Rape Crisis Statistics 2009.