The Right to Rape

                                      Rape and sexual violence are understandably topics many people find difficult to talk about. But this contributes to a society in which myths and misinformation are common. Myths are also fuelled by ill-informed or unbalanced media reporting or sexual violence-related stories.


The legal construction of ‘woman’ grows out of the cultural understanding that women have a closer relationship to nature than men. Because ‘nature’ is constructed as ‘naturally’ antecedent to and outside of culturally-produced laws—of logic, reason, morality, and so on—to the extent that woman is part of nature, she too is outside of those laws, that is, she is illogical, irrational, and amoral.

This illogical, irrational, and amoral woman appears in both ‘common-sense’ myths or assumptions (‘what everybody knows about women’) and in legal or scientific discourses with their greater claim to an ‘objective’ truth value. Freud, for instance, saw the ability to reason, to use logic, and to make moral decisions as being produced during the Oedipal phase through an identification with the father and the subsequent acquisition of a superego. A woman cannot complete the Oedipal process, which is driven by a fear of castration, because she is, in Freud’s phrase, ‘already castrated’. Consequently, women ‘naturally’ have a less fully-developed superego and never fully enter into a social system based on logic and reason.

The circular nature of the relationship between common sense (that which goes without saying) and legal discourse constitutes a closed loop within which law both reflects and shapes the myths and the common-sense assumptions that drove the legislation.

A look at the legal understanding of rape can help to uncover this circularity and its consequences for women. One of the important ways in which rape is understood in legal discourse centres on the vexed issue of consent; in Irish law, for instance (although certainly not exclusively), consent is largely understood not in terms of a woman’s consent to or refusal of sex, but in terms of the male perception of events—that is, whether the man believes consent to be forthcoming.

Or, as Conor Gallagher put it:

Jurors are faced with the daunting task of determining what was going on inside the minds of those involved. To convict a rapist, they must determine first that the victim did not consent and second that the attackers knew she did not consent. (Conor Gallagher, Irish Times here)

This understanding reflects the frequently held ‘common-sense’ point of view that a woman can signify consent (is ‘asking for it’) for instance by dressing in a certain way, by walking on a quiet street late at night, by inviting a man into her home for a nightcap, or by accepting an invitation to his home after an evening out. Legal discourse accepts this system of signification, concerning itself with how the man has read these signs and, through this hermeneutic of consent, excludes the woman’s voice from the legal discourse surrounding rape. The term ‘crying rape’ in its everyday usage connotes a suggestion of spurious accusation; a woman cannot legitimately cry rape because a woman cannot name rape—precisely because rape is defined as sexual activity without consent, and consent is determined by the belief of the attacker.

Woman, thus excluded from culture as a subject, exists within cultural and legal discourse as a signifying object, to be ‘read’ according to the rules of the discourses within which she is constituted as (always already sexualised) body and as rationally and morally weak.

In the recent trial in Belfast of Paddy Jackson, Stuart Olding, Blane McIlroy, and Rory Harrison for raping or assaulting a nineteen-year-old woman or for obstruction of justice, the weight of argument rested on the perception of the young men involved that consent was forthcoming. Because she had joined Paddy Jackson in consensual kissing earlier that evening (which she brought to an end when she asked him her name and he did not know it) and because she had later been seen to walk upstairs and back into his bedroom (according to the young woman to collect her handbag in order to go home) mythical ‘common sense’ says that she had tacitly consented to sexual activity—or that the men involved could reasonably infer that she was consenting to such activity.

The young woman’s ability to provide a rational, believable account of events was undermined repeatedly: Arthur Harvey, McIlroy’s defence counsel, accused her of repeating in her testimony something she had read rather than her personal experience because of her use of the impersonal pronoun ‘you’ rather than ‘I’—despite the fact that this is a common usage in informal language. He suggested forcefully that she was not giving evidence of the events, but simply parroting someone else’s words. Her response, that she was not going to argue over grammar and would not have words put into her mouth, was the testimony of an articulate woman offering her account of events rationally and clearly. Throughout her cross-examinations, she articulately testified to the experience of rape. ‘In that situation, you don’t scream or shout because you are so scared,’ she said to Kelly at one stage. ‘You underestimate the state of shock you go into after being raped,’ she told O’Donoghue.

Fight, fight, or freeze

The state of shock the woman described, being so scared that you don’t scream or shout, is an accurate description of the body’s autonomic—not consciously willed or controlled—response, known to most of us as ‘fight or flight’. This is a biochemical reaction that both humans and animals experience during intense stress or fear that overwhelms conscious control of the body. The third component—‘freeze’—is less well known. ‘Freezing’ is, as we say here in Ireland, the sensation of being ‘rooted to the spot’ with fear or shock, of being literally frozen stiff with fright.

When Dara Florence, another young woman who had gone to the party after meeting McIlroy outside a nightclub, mistakenly entered the room, she saw what she described as ‘a threesome’ with nothing to indicate a lack of consent, since the woman was not struggling or calling for help. Any such ‘common-sense’ assumption that rape victims struggle, scream, and call for help was rejected by the medical examiner, Dr Janet Hall, who testified that the overwhelming evidence shows that most rape victims do not fight back. It was further rejected by Judge Patricia Smyth’s warning to the jury of the importance of drawing a distinction between consent and submission, advising the Jury that ‘where a woman is so overcome by fear that she lacks any capacity either to give consent or to resist, that woman does not consent but is submitting to what takes place’.

Nevertheless, Olding’s lawyer, Frank O’Donoghue QC, in his closing argument to the jury, repeated the belief that not fighting back or calling for help establishes consent when he asked the jury ‘Why was she unable to resist, why did she not say ‘no’?’ This despite the woman’s testimony that she had repeatedly said no, and that she had asked McIlroy ‘How many times does it take for a girl to say no for it to sink in?’

O’Donoghue went on to ask

Why did she open her mouth—why didn’t she keep her mouth closed? Why didn’t she scream—the house was occupied. There were a lot of middle-class girls downstairs—they weren’t going to tolerate a rape or anything like that.

What that says about working-class or upper-class ‘girls’—or about O’Donoghue’s mindset—would be the subject of a whole other article.

His closing argument specifically discounts Dr Hall’s testimony and the multiple studies supporting her argument that most rape victims do not fight back and pre-empts the Judge’s advice about the difference between consent and submission. The jury left the courtroom to start their deliberations with O’Donoghue’s words, echoing ‘common-sense’ wisdom, ringing in their ears. His words: ‘Why did she open her mouth—why didn’t she keep her mouth closed?’ apply both to her response during the assault and her testimony during the trial.

The right to rape

Male entitlement and the right of the attacker to define consent—and therefore rape—were supplemented in this trial by the presence in the dock of two members of the Ireland international rugby team (suspended at the time of the trial and later fired). During the trial, the Irish team’s success in winning the Grand Slam in a match against England on England’s home ground received massive publicity and was cause for much celebration. It would be impossible to estimate the extent to which the members of the jury were influenced by those celebrations.

The faith of the accused in their entitlement is reflected starkly in the texts sent among the defendants and their friends on the afternoon following the incident.

Blane McIlroy sent a text exclaiming, ‘What the f*** was going on. Last night was hilarious.’ The hilarity had apparently escaped the young woman, who left the house sobbing hysterically. She was also bleeding from a laceration to her vaginal wall, verified by testimony from Dr Philip Lavery who examined her. I am familiar with consensual sex; that’s not what the aftermath of consensual sex looks like.

The hilarity also escaped the taxi driver, Stephen Fisher, who took her home, accompanied by an apparently solicitous Rory Harrison. Fisher testified that ‘The young woman definitely seemed very upset. She was crying-stroke-sobbing throughout the journey’. He described Harrison’s phone call to McIlroy as apparently conducted ‘in code’. Harrison’s statement during that phone call that ‘She is with me now. She is not good. I’ll call you in the morning’ is decoded by his texts the following day. In response to a text from the young woman that ‘what happened last night was not consensual’, he texted ‘Keep the chin up, you wonderful young woman’. But to his friends McIlroy and Harrison he texted: ‘hopefully it’ll be thrown out. Just a silly girl who’d been done something then regretted it. She’s causing so much trouble for the lads’. He suggested that the explanation for her distress was probably that Jackson had rejected her—another claim based on the assumption that they were ‘all top shaggers’.

I’m not sure about the status of Freudian slips in texts, but the massive gap between ‘done something’ and ‘been done something’ to is precisely the issue to be examined in a rape case. Harrison’s ambiguous wording reflects his contradictory texts, and perhaps his feelings, but not his testimony. Asked why he had not revealed to the police when questioned the existence of the text from the young woman saying that what had happened was not consensual, he replied, ‘They didn’t ask about it’ and ‘I answered the questions I was asked’. They didn’t ask about it precisely because, at that time, they didn’t know it existed, because he had not told them of its existence. That evasion should, in and of itself, have justified the charge of obstruction of which he was acquitted.

McIlroy texted ‘love Belfast sluts’ with a picture of Dara Florence—the woman who testified that she saw what she assumed to be a consensual threesome, which made her the only ‘objective’ eyewitness who testified to her belief that the complainant had consented to what happened. She also texted her friends to that effect the next morning. But she was just a ‘Belfast slut’ in the minds of the men to whose defence she contributed.

The attitude of male entitlement shared by the members of the WhatsApp group, JACOME, and the prevailing attitude toward women among them as ‘sluts’ and ‘brassers’ is demonstrated in texts on the same afternoon from an unidentified member to Jackson, Olding, and McIlroy asking ‘Boys, did you pass spit roast brassers’ and ‘why are we all such legends?’

In response to a text from a friend asking, ‘Any sluts get fucked?’, Stuart Olding replied, ‘we are all top shaggers’ and ‘there was a bit of spit roasting going on last night’. To which Jackson replied, ‘There was a lot of spit roast last night.’

‘Spit roasting’ is commonly used to describe a woman penetrated simultaneously both vaginally and orally.

The arrogance, lack of shame or guilt, and the absolute absence of compassion demonstrated by these young men for a young woman who left Jackson’s house bleeding from a tear in her vaginal wall and ‘crying-stroke-sobbing’ sum up their sense of entitlement. Their defence depended on a presumption of the trifecta of power: their gender, their celebrity, and ‘common sense’ assumptions about a woman who, despite verbally refusing consent to the ‘top shaggers’ (‘How many times does it take for a girl to say no for it to sink in?’) had agreed earlier to consensual kissing and later walked upstairs to collect her handbag was therefore held to have signified consent. And it took the Jury three hours and forty minutes to agree.

We urgently need a public discussion about issues of consent. If I, in full view of the general public, carry an expensive phone, am I inviting thieves to steal it? If I invite a man into my home and he leaves with my phone, will I be told in court that I was asking for it to be stolen? If I accept an invitation into a man’s house with my phone and he takes it from me without my consent, did I offer it to him on a plate? If I am mugged on a public street and my phone is taken, am I to blame for walking the streets alone? If my having an expensive phone arouses uncontrollable desire in a thief to own it, is he no longer responsible for robbing me? Most people will agree that the answer to all those questions is no.

If I do any of those things while being a woman and I am raped, mythical ‘common sense’ says the answers to those same questions would probably be yes. No does not mean no if my attacker(s) can argue that by my behaviour—being a woman out in public alone, inviting a man into my home, accepting an invitation into his home, or agreeing to any level of intimacy—I have signified consent. If, by the mere act of being a woman, I inflame a man’s passion beyond the point of no return and then refuse to have sex with him, according to the prevailing myth he becomes my victim and is entitled to take what he wants.

Any such definition of a man as a slave to his erections insults all men. Any definition of rape as an act of overwhelming sexual desire denies all rational thought. The sense of entitlement demonstrated by those men while they assaulted that woman, and by their texts in the aftermath of that assault, denies the humanity of all women—‘sluts’ and ‘brassers’ every one of us.

How many times does it take for rational people to say that rape is not an act of sexual desire but of violence, control, and power for it to sink in? How long will it be before legislation determines that a woman’s right to say no supersedes a man’s right to rape?




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    About Dr. Jeannette Boyne

    Dr. Jeannette Boyne: former out-of-work actor, former working academic and Mellon Fellow, current contributing editor of, born in Ballyfermot, raised in Birmingham, educated by Columbia (the university, not the country). The old cliché says that journalism is the first draft of history; as Jeannette sees it, the job of an online journal like leftbucket is to provide its first edit. View all posts by Dr. Jeannette Boyne →