Under the common law prior to the Criminal Law (Rape) (Amendment) Act 1990, a husband could not be guilty of raping his wife due to their mutual matrimonial consent. In 2002, legal history was made in Ireland when a unanimous jury found a man guilty of raping his wife while she was still recovering from giving birth. The man appealed his conviction, but was unsuccessful and was eventually sentenced to six years imprisonment in 2006.

Rape under section 4 of the Criminal Law (Rape) (Amendment) Act 1990 is defined as penetration, however slight, ‘of the anus or mouth by the penis’, or of the vagina by ‘any object held or manipulated by another person’; and sentencing for marital rape is the same as any other kind of rape, with a maximum sentence of imprisonment for life. However, according to the Rape Crisis Network Ireland, the average sentence for the crime of rape is 10 years.

In 2017, the first statutory definition of consent was provided for by the Criminal Law (Sexual Offences) Act 2017, which states in Section 48 that ‘[a] person consents to a sexual act if he or she freely and voluntarily agrees to engage in that act’. In The People (DPP) v O’R [2016] IESC 64, the issue of ‘knowledge or belief’ of consent as a defence to rape was raised, prompting an issue paper from the Law Reform Commission in 2018.

The issue of rape continues to be plagued by issues such as under-reporting, not least due to complainants’ lack of confidence in the legal system and their treatment in and out of the courts.

Seosamh Gráinséir