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File photo of a courtroom in the Criminal Courts of Justice, Dublin Sasko Lazarov/RollingNews.ie

Here are the legal options being considered about sexual consent

The Law Reform Commission is examining a number of issues in relation to rape cases.

THE LAW REFORM Commission will today publish a paper that examines a range of reform options in relation to consent.

The current law, as set out in section 2 of the Criminal Law (Rape) Act 1981, states: “A man commits rape if he has unlawful sexual intercourse with a woman who at the time of the intercourse does not consent to it, and at the 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.”

The LRC’s paper examines whether the accused’s belief in consent should be objectively reasonable and/or whether the accused should be required to take reasonable steps to confirm that the woman is consenting.

The Commission compiled the paper in response to a request from the Attorney General, who asked it to examine if changes should be made to the Act in relation to consent, in particular citing the Supreme Court’s judgment in the People (DPP) v C. O’R (2016) – a case where a man was convicted of raping his mother. You can read more about that here.

In this case, the LRC noted the Supreme Court confirmed that deciding if the accused “honestly” or “genuinely” believed that a woman was consenting to sex, this test is primarily subjective.

This means that attention is focused on what the particular accused actually (subjectively) believed, rather than on whether his belief in this regard was one that a reasonable person would have held in the circumstances.

Therefore, the Court confirmed that an “honest, though unreasonable, mistake that the woman was consenting is a defence to rape”.

‘Common sense’

The Court also added, however, that the accused’s asserted belief in consent “must be genuinely held”.

The Court therefore stated that a jury is not required to believe “an obviously false story” from the accused; and that jurors should use “shrewdness and common sense” to judge what the accused claims as to his mistaken belief “against their view of what an ordinary or reasonable man would have realised in the circumstances”.

In its paper, the LRC notes that the Attorney General’s request also arises against the immediate background of the wide-ranging reform of the law on sexual offences in the Criminal Law (Sexual Offences) Act 2017.

This Act made significant amendments to the general law on consent in rape and other sexual assaults.

The Oireachtas debated whether to include in the 2017 Act reform of the law concerning knowledge or belief under section 2 of the 1981 Act, but it ultimately decided that it would be preferable to have the matter referred to the LRC for further analysis.

The Commission was required to assess whether the current primarily subjective test should be retained, or whether a different test should be put in place that would include more objective elements.

The paper seeks views on the following four issues:

Issue 1 asks whether the current law relating to knowledge or belief should be retained. If consultees believe that this aspect of the present law on rape should be amended, they are then asked to consider a number of possible reform options.

Issue 2 examines whether an objective or “reasonable belief” element should be added to the definition of rape. Under this reform option, an accused’s belief in consent would have to be both honest (as under the current, primarily subjective, test) and reasonable (thereby importing an objective element) in order for him to be acquitted.

The inclusion of such an objective element in the definition of rape would be in line with the definition of some other serious offences in Irish law, such as manslaughter and sexual activity with a child, as well the definition of rape in Northern Ireland, England and Wales, Scotland, and other common law jurisdictions.

The Commission also asks whether the accused’s personal characteristics, such as his decision-making (mental) capacity, could be considered in deciding if his belief in consent was reasonable.

Issue 3 examines whether the law might be reformed so as to make mistaken belief in consent a defence. Under the current law, the absence of belief in consent is an element of the offence which must be proved by the prosecution.

Under the option being examined here, an accused, in order to rely on the mistaken belief defence, would have to establish that he took “reasonable steps” to ascertain whether the complainant was consenting. This would be similar to the law as it exists in Canada and Tasmania.

Issue 4 asks if there is any merit in the idea of having a separate offence, less serious than rape, to cover a situation where an accused honesty but unreasonably and mistakenly believed that the complainant was consenting. Such an offence might tentatively be described as “gross negligence rape”.

Under the law as it stands, an accused who knew that the complainant was not consenting or was reckless as to whether she was or not is guilty of rape.

Under the reform option being proposed here, an accused would be guilty of the lesser offence, whatever name it might bear, if he honestly believed the complainant was consenting, but his belief was unreasonable.

The LRC notes that he would not be guilty of either rape or the lesser offence if his belief was found to have been reasonable. Sweden has a lesser rape offence of the kind being discussed here.

Self-induced intoxication

The Commission also discusses briefly the separate but related issue of self-induced intoxication. Under the law as it stands, a person accused of rape cannot rely on self-induced intoxication (whether due to alcohol or drugs) to escape criminal liability.

This rule has been adopted largely as a matter of public policy. Many offences, including sexual offences, are committed by people acting under the effects of alcohol or drugs; and the Irish courts have consistently held that it would be contrary to public policy to allow them to escape criminal liability on that account.

The Commission asks if it should be expressly stated in legislation that self-induced intoxication is not a defence to a charge of rape.

The full paper can be read on the LRC’s website.

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91 Comments
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    Mute Dave Walsh
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    Jul 27th 2018, 12:22 AM

    Rape is wrong.But I worry because the balance of whom to believe if its one genders word against another falls on the female side.And that means innocent men could go to prison.Where is the justice in that?

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    Mute Dave O Keeffe
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    Jul 27th 2018, 12:27 AM

    @Dave Walsh: there are more raped women that never got justice that there are men in prison that didn’t commit a raoe. Both are wrong and both should be dealt with. But one happens far more frequently.

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    Mute Rachel O' Meara
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    Jul 27th 2018, 1:13 AM

    @Dave O Keeffe: Define “never got justice”, in a court of law if the accused is found not guilty then that’s usually what it means. Going on some of the comments you make on this site you seem to have this perceived notion that the fairer sex are weak creatures who need men like you to protect us from other men and from a big bad scary world…..please, if you think women are victims just because they are women then you are also part of the problem, sexism isn’t just all burly guys catcalling women as they walk by, it’s people like you thinking you can speak on our behalf or that we need protecting or that your a white knight in shining armour when in reality you’re just another gobs*ite in a tinfoil suit.

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    Mute Siobhán Ni Mhurchú
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    Jul 27th 2018, 1:27 AM

    Wow!

    36
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    Mute Margate
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    Jul 27th 2018, 1:41 AM

    @Dave O Keeffe: I think you made a very fair point. But ” your friend” Rachel below clearly is VERY unhappy with you…

    49
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    Mute Siobhán Ni Mhurchú
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    Jul 27th 2018, 1:43 AM

    @Margate: very very unhappy!

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    Mute Margate
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    Jul 27th 2018, 1:46 AM

    @Rachel O’ Meara: Phew! What did D O Keefe say thats so awfully wrong??? Sounds to me like you have ‘issues’ to address yourself…

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    Mute Ken Hayden
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    Jul 27th 2018, 2:05 AM

    @Siobhán Ni Mhurchú: I’ll sit this dance out , it’s just one of those things .

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    Mute Siobhán Ni Mhurchú
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    Jul 27th 2018, 2:12 AM

    @Ken Hayden: right decision I’d say

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    Mute Rachel O' Meara
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    Jul 27th 2018, 2:26 AM

    @Margate: Just past comments from Dave himself, he’s big on protecting women from everything and everyone except himself, just sick of his condescending comments, they come across like he’s someone from the 1940s.

    48
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    Mute Dave O Keeffe
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    Jul 27th 2018, 2:27 AM

    Wow, that escalated quickly! I was merely hinting at the fact that fewer that 32% of rapes are reported to the gardai.

    53
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    Mute Rachel O' Meara
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    Jul 27th 2018, 2:43 AM

    @Dave O Keeffe: No you were hinting that women couldn’t possibly lie and that in most rape cases women don’t recieve justice even though the person they accused received a fair trial and was found not guilty. What should we do keep sending them back to court to get the desired outcome? If that’s the case why bother with court just send the accused straight to jail.

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    Mute Dave O Keeffe
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    Jul 27th 2018, 2:46 AM

    @Rachel O’ Meara: no, I wasn’t even talking about court. In fact I didn’t even mention it. I didn’t mention lying or telling the truth or bias in any way. You got the wrong end of the stick. Look, I don’t know what your problem is but it’s yours, not mine.

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    Mute Rachel O' Meara
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    Jul 27th 2018, 3:20 AM

    @Dave O Keeffe: You were responding to Dave Walsh’s comment who said he was uncomfortable with the idea of believing one gender over another just because they happen to be female and he was afraid of sending an innocent man to prison, your response was that there’s alot more women who don’t get justice than innocent men in prison. Justice by it’s very definition is a judicial trial and use of laws to find out whether the accused is guilty or innocent correct me if I’m wrong but doesn’t that normally take place in a court room setting, so you see you did mention court and you clearly said a lot of women don’t recive justice, your presumption here that women don’t lie and men are automatically guilty I’d say that’s just a tad biased wouldn’t you?!

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    Mute Conor Paddington
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    Jul 27th 2018, 7:26 AM

    @Rachel O’ Meara: women typically don’t lie about rape, because it’s a horrifying thing. Of course some women do, all sorts of people lie about all all sorts of things. But, the fact is fewer than 1% of all rapes wind up in a criminal conviction, so the point you’re trying to make is a nonsense.

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    Mute Conor Paddington
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    Jul 27th 2018, 7:29 AM

    @Dave O Keeffe: it’s a new weird approach by the men’s rights/ alt right type crowds and I presume they’re getting it from their angry disenfranchised men sub-reddits. If you make a feminist point they call you sexist, if you try to point out that the majority if asylum seekers aren’t terrorist they call you a racist, and if you complain about the church’s treatment of the LGBT+ community they call you intollerant of religious beliefs. It’s sheer Brietbart rhetoric.

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    Mute John Mullin
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    Jul 27th 2018, 8:56 AM

    @Conor Paddington: actually you are speaking nonsense because that is a lie about fewer than 1% of rapes end in conviction. I was once told by a Garda that 50% of rapes reported are proven to be false within days when the alleged victim rows back on their claim on further questioning and facts don’t seem to add up. These false reports do more damage to real rape victims than any other set of circumstances as the real victims are afraid that they won’t be believed when they know others who have lied about it due to drugs and drink excess, embarrassment, revenge on ex’s, blackmail, excuse for an abortion, attention seeking, etc and any other twisted reason for such criminal behaviour. Ps nobody should be believed simply based on their gender, both genders lie very easily when they want to

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    Mute Cathal Murphy
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    Jul 27th 2018, 9:02 AM

    @Dave Walsh: I don’t think you understand what the word balance means

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    Mute Conor Paddington
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    Jul 27th 2018, 9:13 AM

    @John Mullin: one, that’s anecdotal. But there are also hundreds of reasons that those claims are retracted. Most of those rapes are by a person’s partner, and the reason they retract it is rarely because it’s lie. It also doesn’t defeat my point, because there are studies to show that more than 90% of rapes go unreported. Links: https://www.ncjrs.gov/app/publications/abstract.aspx?ID=240972 and https://web.archive.org/web/20140201182537/http://sgdatabase.unwomen.org/searchDetail.action?measureId=26309&baseHREF=country&baseHREFId=675

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    Mute Jonathan Byrne
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    Jul 27th 2018, 9:15 AM

    @Dave O Keeffe: ahh good oul deflection, well done Dave. I’m sure you an coner know what’s right for women, I mean yous seem to know everything else.

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    Mute Jonathan Byrne
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    Jul 27th 2018, 9:26 AM

    @Margate: I just think she smells the sh#t from an opionion by Dave trying to be so agreeable with somebody of the opposite sex, be wary of those people. They’ll act like an alter boy, for meaning of control.

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    Mute Conor Paddington
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    Jul 27th 2018, 9:29 AM

    @Jonathan Byrne: a come on, Jonatoon. Stop being a caricature. The pro-Trump stuff is one thing, you live in middle America, it’s the fashion. That’s understandable. But don’t come down on the right wing, misogynistic side of every argument. That said, your profile picture is of a guy who specifically said that what he liked about game of thrones is that he got to pretend he was raping women, so… yeah, adds up.

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    Mute Dave O Keeffe
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    Jul 27th 2018, 9:32 AM

    @Rachel O’ Meara: I’m actually really enjoying this. You came here accusing me of telling people what women need and speaking for women and all you’ve done is tell me what I meant while completely ignoring what I’ve actually said despite me telling you exactly what I meant. Someone that doesn’t report the crime doesn’t get justice. “Justice by its very definition is a judicial trial”….justice: just behaviour or treatment. Also, yes I did say that there are a lot more women who don’t get justice than men in prison falsely convicted of rape. Because it’s true, fewer than 32% of rapes are even reported to the gardai therefore 68% don’t get justice. But of course you left out the part where I agreed with the commenter that both are wrong.

    15
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    Mute Jonathan Byrne
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    Jul 27th 2018, 9:34 AM

    @Conor Paddington: emm, he’s a basketball player for the Oklahoma city thunder NBA team. I probley shouldn’t point out that cultural naivety. So tell me what’s the fashion were your from? I’m dying to know.

    10
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    Mute Conor Paddington
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    Jul 27th 2018, 9:47 AM

    @Jonathan Byrne: ah, I thought he was Jason Mamoa. I admittedly know very little about the Oklahoma NBA team, as I’m sure people from Oklahoma know very little about the Leinster Rugby team… anyway, the fashion where I’m from is not to be misogynists…

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    Mute Jonathan Byrne
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    Jul 27th 2018, 9:54 AM

    @Conor Paddington: and several million people in the Midwest of the 4th or so largest country in the world are all misogynist? Dang that’s overly judgemental.

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    Mute Jonathan Byrne
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    Jul 27th 2018, 9:56 AM

    @Jonathan Byrne: I’m also spreading the word around why leinster are pretty much the bulk of irish rugby. :)

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    Mute Jonathan Byrne
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    Jul 27th 2018, 10:02 AM

    @Jonathan Byrne: an I will say it does look like the bloke from game of thrones, never watched it, but the misses pointed it out.

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    Mute Lynda Ní Mhurchú
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    Jul 27th 2018, 10:14 AM

    @Dave Walsh
    If you understand that some men, in order to add weight to their nonsensical ‘mens rights activist’ opinions, masquerade as women online, you may get some sense of what is happening here.
    There is also that rare beast, the female MRA, but this is more likely to be the former.
    The anonymity of the Internet and the fact that they genuinely believe they are victims of a feminist society is reason enough for them. They simply do not have the strength of their convictions and therefore do not use their real identity.
    Literally or figuratively, Rachel is a big burly bloke catcalling you.

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    Mute VMKilshaw
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    Jul 27th 2018, 10:35 AM

    @Rachel O’ Meara: Wow, Rachel O’Meara, or is that even your name, or are you even a woman? A man who makes a pro-woman comment is not patronising women, or turning them into victims, or turning them into children, he has perhaps looked at the stats and has made an honest assessment of the real situation. You on the other hand sound like you have some big chip on your shoulder.

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    Mute Jonathan Byrne
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    Jul 27th 2018, 11:31 AM

    @VMKilshaw: ahh stats good oul believable stats. Its got nothing to suit your agenda of being self-victimised, I’m sure.

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    Mute World Leader Pretend
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    Jul 27th 2018, 1:24 PM

    Go easy on him @Rachel O’ Meara, he doesn’t talk to a lot of women, except for his mother and she’s not really a woman, is she?

    3
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    Mute Dave O Keeffe
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    Jul 27th 2018, 1:34 PM

    @World Leader Pretend: I wasn’t old enough to talk when my mother died but sure you have your fun.

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    Mute World Leader Pretend
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    Jul 27th 2018, 2:08 PM

    @Dave O Keeffe: I wasn’t aware so, I apologise for that flippant remark. But @Rachel O’ Meara seems like a nice girl. You should ask her out. I think she fancies you ;)

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    Mute Frank McGlynn
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    Jul 27th 2018, 2:37 PM

    @Dave O Keeffe: You have no way of knowing that to be true. You are clearly influenced by unrelenting feminist propaganda. The fact that women who are proven to have made false allegations get off so lightly (fines or suspended sentences) means that there is no real deterrent to prevent women from making such allegations.

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    Mute Rachel O' Meara
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    Jul 27th 2018, 3:24 PM

    @Lynda Ní Mhurchú: I’m not an activist and yes that is my real name and account. What I am is someone who wants true equality, in this particular case someone who thinks that simply believing someone because of their sex is wrong. Justice should to be blind to one’s gender in order to make sure both parties receive an honest and fair trial. I think the case of Gemma Beale in the UK is a good example of what happens when we come down on the side of one gender just because they are female. She was caught in the end but look at the damage that was done to her victims. No innocent person should ever have to go through that man or woman. The fact that you think that me simply asking for true equity makes me a man with an agenda says more about you then me. Enjoy your day.

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    Mute Rachel O' Meara
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    Jul 27th 2018, 3:40 PM

    @World Leader Pretend: I don’t think Dave could handle an independent minded woman like myself, I’d probably be locked in a room and not allowed to speak to anyone…..for my own protection of course.

    8
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    Mute Richard Smyth
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    Jul 27th 2018, 4:03 PM

    @Dave O Keeffe: A tenant of justice since the 1700’s is Blackstones Formulation, which states that it is better that 10 guilty go free than one innocent person be convicted. This correctly still applies in all crimes, but with rape it would seem we would be happier with 10 innocent men being convicted, so that no guilty man goes free. I fear for this brave new world.

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    Mute Frank McGlynn
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    Jul 27th 2018, 5:17 PM

    @Richard Smyth: That seems to be where the LRC and the Department of Justice are taking us.

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    Mute World Leader Pretend
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    Jul 27th 2018, 8:04 PM

    @Rachel O’ Meara: Well, I was kind of thinking that you would be a protective shield for him. Keep him safe from the big, bad, scary world. Make sure that he doesn’t come to any harm and most of all, make sure that he doesn’t get raped!

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    Mute Dave O Keeffe
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    Jul 27th 2018, 8:54 PM

    @Rachel O’ Meara: why would I want to “handle” any woman? Seems like you’re the one stuck in the 1940′s. As for the rest of your comment, it takes a disturbed mind to come to the conclusion that because I didn’t accept your vitriolic rant about me that I am incapable of having a conversation with a person who can think for themselves and would lock them in a room. What’s hilarious to me is that all I did was point out that rape is under reported. Nothing about courtrooms or lies or protecting women. You clearly misunderstood. But like I said earlier, that’s your problem not mine. You want equality? Then try not attacking my opinion on an issue by using my gender. If a woman had said what I said you wouldn’t even have bothered replying.

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    Mute Dave O Keeffe
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    Jul 27th 2018, 9:00 PM

    @Frank McGlynn: I’m going by the numbers reported to rape crisis centres Vs numbers reported to gardai. Which is the best available data.

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    Mute TamuMassif2019
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    Jul 27th 2018, 11:06 PM

    @Dave Walsh: It’s happening in the UK…

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    Mute Rachel O' Meara
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    Jul 27th 2018, 11:52 PM

    @Dave O Keeffe: It’s not your gender I have a problem with it’s your opinions. Reading your constant commentary on articles I get the impression that you honestly think women need to be protected from everyone and everything including themselves hence the locked away comment from myself. I’m sure you really are champion for all things relating to feminism except when you’re called out on your bullsh*t opinion by an actual woman the mask slips… disturbed mind, not too bright as I completely miss understood and finally the fact you retreat to if a woman said it it’d be ok, trust me it wouldn’t. On the law, it needs to be blind, to gender, to race, to sexual orientation, to religion etc otherwise it wouldn’t be fair and impartial. Good evening.

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    Mute Dave O Keeffe
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    Jul 28th 2018, 3:40 AM

    @Rachel O’ Meara: see? You’re still trying to tell me that you know what I was saying better than I do. I never mentioned the law or the legal system. Instead of fighting against an argument I didn’t make why don’t you have a go at what I was actually saying which is that 68 out of every 100 rapes go unreported therefore the vast majority of rape victims will never see justice. Therefore there are far more rape victims that will not see justice than there are men in prison for a raoe they didn’t commit. Simple maths. Even if all 32 out of 100 of the reports are false and all 32 men go to prison it’s still less than half the number that aren’t reported. Both are wrong but one happens far more often. Now, explain to me how that’s bullsh!t.

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    Mute Dave O Keeffe
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    Jul 28th 2018, 3:46 AM

    @Rachel O’ Meara: also, how exactly has my mask slipped? I gave my opinion and defended it. You immediately launched into a vitriolic personal attack because you misunderstood my point. “On the law” I never mentioned the law and I never said it shouldn’t be impartial or blind, so have fun arguing against something I never said.

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    Mute Lynda Ní Mhurchú
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    Jul 28th 2018, 7:34 PM

    @Rachel O’ Meara:
    I will define never got justice for you.
    13 year old groomed for a year, raped and it goes to court. Accused admits it but gets no custodial sentence, so she and her mother have to move house to get away from him. He’s off the sex offenders register automatically in 5 years. He’s suspected of a another assault while this case was coming up but because it was prior to his sentencing (not his offence) even if it’s also proven, he won’t serve the suspended sentence for the first.
    Real life current case, thousands more out there.
    Not so many innocent men sitting in prison however.

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    Mute Lynda Ní Mhurchú
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    Jul 28th 2018, 8:21 PM

    @Dave Walsh: where does it say the balance falls on the female side ?
    Where does that happen in fact currently or as proposed by the LRC?
    We know most rape accusations do not go to trial.
    We know most rape trials do not end in conviction.
    How is this the balance of belief falling on the female side, when most alleged rape victims are female and most rape accused male?
    Your fear is groundless and paranoid.

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    Mute Lynda Ní Mhurchú
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    Jul 29th 2018, 10:57 AM

    @John Mullin:
    There are untrained Garda up and down this country interviewing alleged rape victims. Now your one Garda may be like Enda Kennys man with the two pints, or he may be one of these untrained people who are the first that a rape victim encounters after an attack.
    Consider the Rotherham child grooming gangs not so far away. The police saw the men who were obviously not the kids parents pick them up from the police station; they saw them drive them around en masse in their cars; they saw signs of abuse and child prostitution but because the children’s stories kept changing they decided they were all ‘slags’ and gave the perpetrators a hall pass to rape children for years.
    Specialist trained personel are required to interview a possible rape victim. This is not happening as the standard procedure in Ireland.

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    Mute Moorooka Mick
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    Jul 27th 2018, 1:31 AM

    In today’s world of gender equality, any amendments to this law should treat both males and females equally.

    In the past the law seems to have been biased towards the female with the onus on the male to prove his innocence rather than the plaintiff having to prove the case.

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    Mute Conor Paddington
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    Jul 27th 2018, 7:35 AM

    @Moorooka Mick: that’s incorrect, first factually because the presumption of innocence is derived from the constitution and the burden of proof (beyond reasonable doubt) is set across all criminal cases. Second, fewer than 1% of rapes end in a conviction. If there was an increased burden on men under the law as it stands, that number would be meaningfully higher. I honestly (and would welcome an article to the contrary) can’t think of one recent case where it seemed that on balance an innocent man was going to jail for rape.

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    Mute Boyne Sharky
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    Jul 27th 2018, 8:26 AM

    @Conor Paddington: There quite a few, a lot more than I had imagined, the problem of course is that most, if not all, claim to be innocent and without evidence to prove otherwise nobody will ever know;

    https://www.bristolpost.co.uk/news/bristol-news/innocent-man-accused-rape-could-1597749

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    Mute Conor Paddington
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    Jul 27th 2018, 8:32 AM

    @Boyne Sharky: of course everyone claims to be innocent. But I mean how many cases are there where ot seems really obvious that an injustice is being done. Because a lot of tbe lads in these comments sections talk about criminal convictions of rape ad though you are guilty once accused, but that simply doesn’t stack up if you go by prosecution statistics. It doesn’t even stack up anecdotally.

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    Mute Boyne Sharky
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    Jul 27th 2018, 8:51 AM

    @Conor Paddington: I can see your point, I doubt many women would want to, and very few at any rate would be able to get through the criminal justice system and convict someone in the wrong.
    Having said that it has happened and continues to happen where someone is accused in the wrong, however rapes cases are notoriously difficult in which to secure a conviction. I vaguely remember reading a UK figure of about 5% conviction rates so it’s reasonable to expect a similar figure for here.

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    Mute Pragmatist2018
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    Jul 27th 2018, 5:44 PM

    @Conor Paddington: Conor the 1% claim seems unlikely to me. About 50% of rape cases that are prosecuted result in conviction. It is true that the majority of rape allegations do not result in prosecution. But I don’t know where you’re getting the 1% from. Also 59% of sexual assault is by someone known to the victim.

    Maybe its just that Irish juries are fairminded and refuse to be railroaded into a presumption of guilt.

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    Mute Pragmatist2018
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    Jul 27th 2018, 5:45 PM

    @Pragmatist2018: Correction around 80% of rapes are by someone known to the victim. I read that yesterday.

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    Mute Herbert
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    Jul 27th 2018, 1:32 AM

    At this stage we may as well get written consent.

    What’s being done about all of the cases that are thrown out, where the courts decide the accusation was false? False accusations need to result in prosecution

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    Mute Siobhán Ni Mhurchú
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    Jul 27th 2018, 1:39 AM

    @Herbert: written consent wouldn’t solve it either .rape can still happen afterwards

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    Mute Pat Patovic
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    Jul 27th 2018, 5:14 AM

    @Herbert: Nope. That wont help. Perhaps written consent with a couple of witnesses could solve this along with some video documentation. They better stay and observe for the duration of the act.
    Another way worth exploring could be legalized prostitution – when both parties will be guaranteed happy.

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    Mute Conor Paddington
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    Jul 27th 2018, 7:43 AM

    @Herbert: courts do not make a decision thst an accusation is false. They consider the alleged crime and try to be decide if it can be proved beyond all reasonable doubt. If it can’t be proved beyond all reasonable doubt, that doesn’t mean it didn’t happen and it’s far from making a decision that it’s false.

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    Mute Gulliver Foyle
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    Jul 27th 2018, 8:22 AM

    @Conor Paddington: we have seen a lot of recent cases (and from discussions with my daughters about their peers) where people crash in others houses and they wake to bring felt up or raped by someone else who fell asleep elsewhere. Apparently, in every case the mentioned (anecdotally around 10 in the last 4 years), it wasn’t reported even to the other male friends, who were able to laugh it off as “a good night but she freaked out in the morning”. Considering a few high profile cases like this ended in conviction, women still do not trust the legal system to protect them, and won’t even call the RCC. We may never get this right (until we get implants that record intent and consent), but we should start by educating victims that reporting is an acceptable and necessary thing to do.

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    Mute Liam Doyle
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    Jul 27th 2018, 8:39 AM

    @Herbert: it’s a criminal trial so the burden of proof is really quite high to convict. It’s hard to quantify numerically obviously, but Blackstone’s ratio in percentage terms would require over 90% certainty to convict. Therefore it doesn’t automatically follow that you can assume a false accusation from an innocent verdict. And a false accusation conviction would of course also be subject to the same high burden of proof. Most will fall between the two posts.

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    Mute Frank McGlynn
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    Jul 27th 2018, 2:50 PM

    @Gulliver Foyle: and also educate women that retrospective regret is not rape.

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    Mute World Leader Pretend
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    Jul 27th 2018, 4:50 PM

    @Herbert: Pre-coital agreements I think you call that. Problem is, where are you going to find a solicitor at that hour?

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    Mute Kian
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    Jul 27th 2018, 7:27 AM

    Why does the law make specific reference to the man? Makes it seem as if a woman cannot be the offending party. That should be changed anyway.

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    Mute Conor Paddington
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    Jul 27th 2018, 8:41 AM

    @Kian: because rape under the 1981 Act specifically is narrowly defined in Irish Law as intercourse, which is defined as the (I’m sorry, the stupid journal won’t let me say this… ffs) the thing that men have entering the thing that women have. But there are analagous crimes in which a woman can be guilty of, and an encoding of consent would cover all of them.

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    Mute Kian
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    Jul 27th 2018, 9:31 AM

    @Conor Paddington: Cheers Conor :)

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    Mute paul kelly
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    Jul 27th 2018, 7:04 AM

    Most casual sex in Ireland is under the influence of a mind altering drug ( alcohol), therefore consent cannot be legally given.

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    Mute Kian
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    Jul 27th 2018, 7:26 AM

    @paul kelly: I’d wager that the vast majority has no drugs involved. But in any case if both are high the. Neither can give consent so in your example both are at fault and neither are at fault

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    Mute paul kelly
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    Jul 27th 2018, 7:32 AM

    @Kian: If you are under the influence of alcohol, you cannot give legal consent.

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    Mute Toomasu Sumitsu
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    Jul 27th 2018, 8:07 AM

    @paul kelly: so in a drunken one-night-stand both parties are raping each other?

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    Mute Kendra Jackson
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    Jul 27th 2018, 9:06 AM

    @paul kelly: there’s a difference between being drunk enough to say yes and too drunk to say no.

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    Mute paul kelly
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    Jul 27th 2018, 2:15 PM

    @Kendra Jackson: Legally consent under the influence of alcohol is considered null and void.

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    Mute Richard Smyth
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    Jul 27th 2018, 4:19 PM

    @paul kelly: The legal position is that drunk consent is still consent. Incapacitated by drink is a different matter. However, unfortunately the law gives no definition of “incapacitated”

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    Mute Pragmatist2018
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    Jul 27th 2018, 5:42 PM

    @paul kelly: Paul that is the case in England but not in Ireland.

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    Mute Toomasu Sumitsu
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    Jul 27th 2018, 8:11 AM

    I can’t believe they’re making it this complicated! Keep the laws as they are but triple the sentences for rape and violent crimes, stop giving suspended and concurrent sentences and stop taking ridiculous “mitigating circumstances” into account.

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    Mute Mark McDermott
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    Jul 27th 2018, 5:02 PM

    @Toomasu Sumitsu: I have never liked that whole concurrent sentencing, it seems ridiculous.

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    Mute Lynda Ní Mhurchú
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    Jul 27th 2018, 10:01 AM

    If you understand that some men, in order to add weight to their nonsensical ‘mens rights activist’ opinions, masquerade as women online, you may get some sense of what is happening here.
    There is also that rare beast, the female MRA, but this is more likely to be the former.
    The anonymity of the Internet and the fact that they genuinely believe they are victims of a feminist society is reason enough for them. They simply do not have the strength of their convictions and therefore do not use their real identity.

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    Mute Dr Richard DeWitt
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    Jul 27th 2018, 10:54 AM

    @Lynda Ní Mhurchú: I’m sorry, you lost me at “if”.

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    Mute Lynda Ní Mhurchú
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    Jul 28th 2018, 7:17 PM

    @Dr Richard DeWitt:
    You lost me at I’m sorry

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    Mute Lynda Ní Mhurchú
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    Jul 28th 2018, 7:23 PM

    @Dr Richard DeWitt:
    It was posted in the wrong place, cannot delete on the journal .

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    Mute Lynda Ní Mhurchú
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    Jul 28th 2018, 7:23 PM

    @Dr Richard DeWitt:
    It was posted in the wrong place, cannot delete on the journal .

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    Mute Pragmatist2018
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    Jul 27th 2018, 5:38 PM

    There seems to be a pressure campaign by some NGOs to skew rape trials against the defendant. We should not repeat the mistakes that lead to the collapse of 50 rape prosecutions in the UK and the resignation of the UK DPP. In my opinion there is consent if both sides agree to the sex. I dont support defining sexual activity involving alcohol as rape because thats how a lot of consensual sex happens.

    A few weeks ago Sky News was talking to a university in Ohio in US where the policy is that any sexual contact involving alcohol is automatically considered sexual assault. There has been a lot written about the unfairness of the sexual assault investigative policies of many US universities who were essentially forced by the Obama Dept of Educations “Dear Colleague” letter to perform police-like functions of investigation that they are not always capable of implementing fairly. In University of Colorado (Pueblo), a man was expelled because a woman saw a hicky (a bite mark) on another woman’s neck. The woman with the hicky said that it was consensual, but he was expelled anyway. https://www.denverpost.com/2016/04/19/csu-student-sues-college-for-sanctioning-him-for-what-he-calls-consensual-sex/

    So I think its important that due process and the presumption of innocence be protected from Hard Left and Feminist groups that want to pressure the courts and juries. Im particularly concerned by talk of “training juries” as it may prejudice them with stereotypes about men.

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    Mute Richard Smyth
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    Jul 27th 2018, 7:29 PM

    @Pragmatist2018: I have also done extensive research on this, it is also referred to as Title IX. It is scary and ridiculous stuff. One of its proponents said that “it is good that a man feel a cold spike of fear before sex”. It has been watered down by the Trump admin ( its an ill wind)

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    Mute World Leader Pretend
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    Jul 27th 2018, 4:53 PM

    Can see this being a big problem for gay men. How can they legally have sex without a woman around to give the required consent?

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    Mute Lynda Ní Mhurchú
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    Jul 28th 2018, 7:20 PM

    @Rachel O’ Meara:
    Well ‘rachel’ I’ve been online for quite some time, and you don’t look or sound like any woman I’ve ever seen socialist, conservative or all shades in between …but you sound like a lot of men I’ve seen, many of whom use a female avatar to say anti-women shit.
    So in my experience if it looks like a duck, walks like a duck and quacks like a duck it’s a duck. But hey, maybe you’re an oddity.
    That aside the objective of the Law society in thos proposal could be seem by many women and men two ways ; either a stupidity clause which serves no logical purpose ( I don’t understand the law therefore it doesn’t apply to me) or closing a loophole with a sledgehammer instead of more appropriate, finer instrument.
    But you have strangely chosen to go for a full blown ad homenim attack on the first guy who criticises it and make sweeping statements about false rape which is known tho be about 1.8% of cases.
    And this is always the go to statement of MRA’s so could you explain this ‘ coincidence’, ‘rachel’ of the no profile?

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    Mute Richard Smyth
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    Jul 29th 2018, 10:38 PM

    @Lynda Ní Mhurchú: Lynda, your statistic for false rape claims is incorrect. The internationally accepted statistic is 2% to 10%. I believe even the DRCC accepts that range. The FBI’s statistic was close to 20%, until they stopped publishing it, because of pressure from women’s groups, as they said it was “unhelpful”. So even if we accept the lower range, that could be 1 in 10. In relation to your non acceptance of Rachel’s gender, my wife has the same views as her. My wife is a highly successful professional and she feels modern feminism is highly patronising to women and that new rules around consent, such as Title IX in the states are crazy. Her feelings would be as strong as Rachel’s.

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