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The Normalization of Consent in Ireland

This blog piece was written by Ashley Perry. Ashley is a 2nd year PhD student at the Irish Centre for Human Rights at NUI Galway. Ashley’s research pertains to barriers to accessing justice for victims of sexual violence in jurisdictions across Europe which define rape differently. Particularly, her research utilizes a mixed-methods approach when comparing jurisdictions that define rape as sex without consent or through the use of force or the threat of force. The research aims to demonstrate that standalone, progressive legislation, such as defining rape as sex without consent, can present the same barriers to accessing justice that are found in other types of legislations if the criminal justice mechanisms that support the legislation are not properly monitored.

The Normalization of Consent in Ireland

The revelations of UCD lecturer, Dr Aoibhinn Ní Shúilleabháin, of being sexually harassed by a fellow academic for two years have instigated more questions than answers on how higher education institutions are ensuring the safety of those working and studying within their confines. The case also demonstrates that broader institutional barriers to access justice for victims across Ireland persist.

From the unacceptable measures carried out by the UCD human resources department to the failings of the administration at large to protect staff from sexual harassment, we should be perplexed as to how such acts can occur and continue without appropriate reprimand, which threatened Ní Shúilleabháin’s safety and wellbeing.

How could the heavily documented harassment such as following, initiating unwarranted, constant contact, and stalking the victim outside of Dublin, not warrant grave concern for Dr Ní Shúilleabháin’s well-being with the human resources department at UCD? Particularly, how can a victim repeatedly report harassment without the University considering that there is a case to initiate disciplinary proceedings?

Addressing these questions goes beyond the case at hand, yet it does provide a clear representation of how barriers to accessing justice for victims of sexual harassment and violence often lie not with lack of theoretical policies, but how these policies function in practice. Therefore, leaving significant developments needed to support victims once a complaint has been made.

Within the ‘Me Too’ era, the topic of consent, in many countries across the globe, has been superficially normalized. Normalization, in the sociological sense, is to form an idealized code of conduct that is rewarded when adhered to and punished if disobeyed. Within the context of consent, normalization cannot stand alone in theory, but as an established practice that prompts institutions to construct and implement systems to reward or punish those who are ‘under the norm’. More specifically, the construction and implementation of these systems should foundationally strive to eliminate barriers to accessing justice for individuals who fall victim to the norm being broken. In juxtaposition, the superficial normalization of consent is to acknowledge the concept of autonomy and breaches of such, without actively pursuing and implementing it in practice within criminal justice mechanisms and the systems that model their policies. For the normalization of consent to be fully realized, criminal justice mechanisms and the systems that model them should not only have blanket consent-based policies but ensure they work in practice and are accessible to victims through each step of the complaint process and beyond.

We can see this disconnect manifesting in real time in the statements made by government officials in the wake of the distressing reports from UCD. For example, the Minister for Further and Higher Education, Simon Harris, almost immediately published a video message to the public via Twitter. He condemned the actions of the perpetrator and the mishandlings of the University, while calling for a zero-tolerance policy for sexual harassment in higher education. However, this sentiment has already been adopted, in theoretical policy, in higher education institutions across Ireland for years. Yet, in practice, the accessibility and implementation procedures leave complainants, more often than not, without the ability to access effective remedies. Dr Ní Shúilleabháin mirrored this view when talking on RTÉ Live with Claire Byrne:

“You can have bright, shiny, and new policy and procedures, but unless everyone knows what they are and unless the cultures within these systems are changed to help victims who want to disclose what is happening to them so they can get support and then maybe complain if they wish to change, it can’t happen.

The parallels between the barriers to access justice in this case and for other victims of sexual harassment and violence aren’t merely negative coincidences within an overall functioning system. To the contrary, there are commonalities in the prolonged investigative processes, unsatisfactory victim support, and lack of updated information involving the case.

Dr Ní Shúilleabháin has discussed how the human resources department did little to encourage her to pursue a formal complaint and, at times, warned against this due to a prolonged investigative process. This is often expressed to victims of sexual harassment and violence within the criminal justice system. Though victims are believed, the ‘complaint-to-prosecution-to-conviction’ process could continue for years without resolution or remedy.

The Dublin Rape Crisis Centre highlighted this shortcoming in a report in 2018. The organization called for the criminal justice system to prioritize trials with an agreed, prompt schedule as victims can experience emotional fatigue from having to relive trauma for years in search of justice. In some cases, victims will choose not to proceed with the prosecution phase for this exact reason, which similarly delayed Dr Ní Shúileabháin from filing a formal complaint. To this day, little has been done to actualize this recommendation within institutional practice.

Similarly, a 2017 report, published by the National Women’s Council of Ireland, stated that formal reporting is often contingent on the nature and level of support given to victims when initially coming forward to a reporting body. The human resources department in question and the criminal justice system victims in Ireland navigate, oftentimes fall short in providing adequate support due to how victims’ demeanour and actions are presented. Dr Ní Shúileabháin admitted to being conscious of her pending contract at UCD and how her temporary status impacted her willingness to report. She did, however, document with the human resources department via email each incident of harassment. Factors like this limited her personal expression of concern, but nonetheless, did not alter her consciousness of the severity of the situation. If consent is to be normalized, support and guidance on how to proceed should be readily and enthusiastically available no matter the victim’s physical or verbal demeanour.

Another institutional barrier to accessing justice within the UCD case and those of victims across Ireland is the lack of information on how issues brought forward were dealt with internally. Whether it be Dr Ní Shúileabháin’s constant uncertainty of how her informal complaints were investigated and handled accordingly or victims’ consistent report of a lack of or insufficient communication portal with the investigating authorities, the uncertainty leaves the emotional, and at time physical, well-being of victims at risk. Irish Criminology scholar, Dr Deirdre Healy, reaffirms this point by stating (at page 23 of this 2019 report):

“Research suggests that satisfaction rates tend to diminish the deeper victims progress into the criminal justice system, as victims needs increasingly come into conflict with organisational imperatives…. Poor communication and the resultant of a sense of injustice appeared to impede on victim recovery and undermine their belief in the criminal justice system.”

While Dr Ní Shúileabháin’s experience is shocking and the institutional response should be condemned, this isn’t a small oversight at one higher education institution. This is a systemic problem with how Irish institutions and the criminal justice system have superficially normalized consent to the detriment of victims. The superficial normalization of consent, within the Irish context, tends to establish theoretical policies of protection and no-tolerance in an ode to believing victims. However, this does not negate the responsibility to guarantee the policies are performing in practice to the benefit of victims. The emergence of these theoretical policies striving to understand the ethos of consent are assumed to be genuine, but, yet again, it is not enough for victims. It is simply not a matter of accepting the concept of consent anymore. As a society we are leaning into this sentiment, but we must not rest on reaching the first milestone. Normalizing consent not only lies within embracing the concept, but developing institutional mechanisms and systems that validate it. Thus, transforming the concept into a tangible norm that victims can depend upon.

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