Assaulting the jury in rape trials

A colleague of mine once remarked: “There are two ways to come to know the truth. One is by arduous study, research and investigation – the other is by reading what is written in the opinion pieces of the Irish Times and believing the opposite!” I generally try to get through the week without read the IT—it is better for my digestion and my general health as it is not a good idea to start the day with raised blood pressure. (To be truly ecumenical I note that I attempt to apply the same policy of journalistic abstention to the Irish Independent and RTE.) However, I buy the Irish Times on a Saturday, primarily for its TV guide and then, succumbing to temptation, I generally read the rest of the paper.

On Saturday 12 December there was a particularly smug opinion piece by Kate Holmquist entitled “An unusual gender divide in the courts.” The burden of this piece was to report that female-dominated juries were less likely to convict alleged rapists than male-dominated ones. Such juries are particularly unsympathetic when the alleged perpetrator and victims knew each other and are drunk, which appears to be the case in approximately 60 to 70 per cent of cases. The implication of Holmquist’s piece was that we have clearly got the wrong sort of women on these juries – all women are women but not all women have raised their consciousnesses to the right degree.

I hesitate to say what I’m about to say, knowing only too well that to write as I am about to is to invite mindless abuse and vilification. Let me make it absolutely clear (should I really have to say this?) that I am not defending rape, making light of the experience of rape victims or attempting to trivialise sexual assault. Here goes.

Not everything that is currently called ‘rape’ is or should be considered equally serious.

Let me give an illustration of my point from another related area. Any unlicensed touching of one person by another is (or was – I’m not sure if Irish law still retains this category) technically battery. However, there is a difference between setting upon an unsuspecting person with a baseball bat while attempting to relieve him of his wallet, striking a rival rugby supporter because he expressed derogatory opinions of your team (this never happens but I don’t want to be ‘sportist’ and use a soccer example), defending yourself against an actual or threatened assault, jostling someone on the Dart, shaking someone’s hand or slapping someone on the back. These all are (or could be) examples of battery but they differ significantly from one another in terms of their legal and moral seriousness.

In the current legal environment, any man, simply by having sexual intercourse with a woman, puts himself in a material situation in which he could be accused of rape should the woman in question indicate that she did not consent to the act. Everything depends upon consent. In the case of what Holmquist refers to as ‘real’ rape (her scare-quotes, intended, no doubt, to demonstrate the lack of sophistication among the jurywomen) where the parties are unknown to each other and the circumstances are ones of gross physical assault, there is clearly a lack of consent and no theoretical evidential problem establishing this. On the other hand, where the parties are known to each other, have freely associated with each other and may often have a history of voluntary sexual association, it is very difficult to establish that there was no consent. Remember, the mere accusation of rape, let alone a conviction, can be sufficient to destroy a man’s life. Is it any wonder then that in such cases members of juries – men and women – are understandably reluctant, in the absence of corroborating evidence, to convict the accused man of what is generally regarded by most members of society as a heinous crime?

Confucianism has, as one of its doctrines, something Confucius calls ‘the rectification of names’. To call things that are essentially different by the same name, or things that are essentially the same by different names, is to invite intellectual confusion and to risk producing absurd social policies. While clearly intended by Rape Crisis Centre supporters to upgrade the relatively less serious to the more serious, to continue to include everything that currently lies within the conceptual reach of the term ‘rape’ is to risk bringing about the opposite result – the downgrading of the more serious to the relatively less serious.

Given its strong emotive charge and its conceptual imprecision, it is time to abandon the word ‘rape’ as a legal term and to settle on some less emotionally-charged term such as ‘sexual assault’, recognising that such offences can lie along a spectrum from the extremely serious to the relatively trivial. That way, there is a greater chance that justice will be done to women and to men.

Gerard Casey is a philosopher and professor at University College Dublin