Making changes to Irish law.

akaMrSmith

Hi everyone,
I am new here and I hope Im not breaking the first rule of this section. Im am looking for legal advice but not about a legal case. I would like to know if it is possible for an individual to bring about a change to laws in Ireland. Is this possible and if so how would one go about it? If this question does break the rules I apologise.

Dandelion6

There's no provision for a citizens' initiative or anything like that. You can of course lobby TDs to introduce legislation.

Del2005

Dandelion6 wrote: »

There's no provision for a citizens' initiative or anything like that. You can of course lobby TDs to introduce legislation.

If they don't agree with a law can a citizen not challenge it in court? Provided that they have deep enough pockets.

Lmklad

Del2005 wrote: »

If they don't agree with a law can a citizen not challenge it in court? Provided that they have deep enough pockets.

The Courts don't write laws, they interpret them. The most that could happen would be having a law struck down if it was deemed unconstitutional as in goes against the constitution. It's still up to the TDs to write the law the OP is looking for.

GerardKeating

Del2005 wrote: »

If they don't agree with a law can a citizen not challenge it in court? Provided that they have deep enough pockets.

That would only work is the law was in some way unconstitutional, and would not allow you to "add" new laws, just strike down existing ones.

One way would be to get 80/90 like minded "friends", and win enough seats in Dáil Éireann to be able to make laws.

akaMrSmith

What about the European courts? Can they force the Irish government to change/update laws?

GerardKeating

akaMrSmith wrote: »

What about the European courts? Can they force the Irish government to change/update laws?

They can (and do) strike down laws, and can put pressure on (even fine) the Irish Government if they do not make changes.

akaMrSmith

Thank you GerardKeating, once I find a solicitor that has experience in the European courts I will pursue this route.

Pro Hoc Vice

akaMrSmith wrote: »

What about the European courts? Can they force the Irish government to change/update laws?

Only if it's an area covered by EU law, even then each state can have varying degrees of lattitude in implementation.

akaMrSmith

Pro Hoc Vice wrote: »

Only if it's an area covered by EU law, even then each state can have varying degrees of lattitude in implementation.

Its equality, I have not checked European law. Is there a website I could use to do this?

GerardKeating

akaMrSmith wrote: »

Its equality, I have not checked European law. Is there a website I could use to do this?

Equality can be complicated, and not all areas are covered, for example (and this is extreme) discrimination based on skin colour (i.e. race) is covered by law, but discrimination based on hair or eye colour is not, unless it can be proved to be racially based.

Under Irish Law, if I discriminate against someone because they have a Traveller accent, this is illegal, but I can discriminate against people with Cork, Dublin, Cavan & Donegal accents because this is not covered in law.

GerardKeating

akaMrSmith wrote: »

Thank you GerardKeating, once I find a solicitor that has experience in the European courts I will pursue this route.

Is the a specific area of equality you are interested in. Taking a case all the way to Europe could take many years and cost over a million euro , unless you find someone with big pockets to fund it.

akaMrSmith

GerardKeating wrote: »

Is the a specific area of equality you are interested in. Taken a case all the way to Europe could take many years and cost over a million euro , unless you find someone with big pockets to fund it.

Id prefer not to say exactly what it is without a mod approving it first, it is a very sensitive subject in the area of csa. I dont mind going into detail but as Im new here I would prefer a mod to decide on whats acceptable to post.

Grolschevik

'CSA'?

akaMrSmith

Grolschevik wrote: »

'CSA'?

Child Sex Abuse.

Bepolite

For completeness Judges can change the law by creating new areas of law. If a situation is subtle enough a judge may make a decision that is in someway novel. Theoretically we're not going to have any Dennings here but it can and does happen, however the controls are tight and deference is shown.

The Singing Beard

What about challenging a certain law like clamping and the judge then sets a precedent?

Bepolite

The Singing Beard wrote: »

What about challenging a certain law like clamping and the judge then sets a precedent?

See above but precedent is overruled by legislation and is theoretically legislating from the bench. It's matter of degrees that I lack the skill to fully explain, or indeed, understand.

akaMrSmith

Let me narrow it down a little. I recently received an email from the rape crisis centre. One line of it reads:
"You are referring to the legal definitions of rape which as you correctly point out does not include the distinction that a male can be "raped" unless penetrated by a penis or other object either orally or anally, this is a technical term used for legal purposes."
Is this actually the case? If a woman forces a man to have intercourse through drink, drugs, physical force or any other means does this not mean the woman rapes the man? If indeed this is the case then is this not an inequality? According to the rape crisis centre this situation is defined by law as sexual assault, surly this cannot be the case? Could this not be considered sexual discrimination and if so then should the law not be changed to provide equality for both genders?
I clicked on the Dennings link but Im unsure what that reference relates to. I am not a solicitor and I don’t have any legal training so perhaps the Dennings link is relevant. Would it not be up to the government to make this change rather than judges? As this is 2014 and if the government seems to ignore this discrepancy according to the rape crisis centre then surly the European courts could force the government to make this change?

Pro Hoc Vice

akaMrSmith wrote: »

Let me narrow it down a little. I recently received an email from the rape crisis centre. One line of it reads:
"You are referring to the legal definitions of rape which as you correctly point out does not include the distinction that a male can be "raped" unless penetrated by a penis or other object either orally or anally, this is a technical term used for legal purposes."
Is this actually the case? If a woman forces a man to have intercourse through drink, drugs, physical force or any other means does this not mean the woman rapes the man? If indeed this is the case then is this not an inequality? According to the rape crisis centre this situation is defined by law as sexual assault, surly this cannot be the case? Could this not be considered sexual discrimination and if so then should the law not be changed to provide equality for both genders?
I clicked on the Dennings link but Im unsure what that reference relates to. I am not a solicitor and I don’t have any legal training so perhaps the Dennings link is relevant. Would it not be up to the government to make this change rather than judges? As this is 2014 and if the government seems to ignore this discrepancy according to the rape crisis centre then surly the European courts could force the government to make this change?

While this might me a Eutopen Convention on human rights issue (which I doubt) and it is not a EU issue as EU law does not deal with such matters. Sexual assault is a serious offence and agravated sexual assault carries the same maximum penality as Rape. Also rape under section 4 does exist so while it may not be called rape it can carry the same penalty,

Bepolite

Denning was famous for legislating from the bench, the English legal system allows much more freedom in this regard. It was more an aside.

The situation you are referring to is not an unknown in Irish criminal justice and there is a fair amount of literature out there on the subject. One thing to bear in mind though is are you making a distinction purely of words? For example rape is defined below. There is a huge amount of case law on the subject with various jurisdictions deciding various things especially around the area of what vitiates consent. An excellent example is if one partner is HIV positive does this vitiate consent... but I digress.

This is the legal definition of rape which is merely a word. For discrimination to be there one must evaluate if a sexual assault is taken less seriously - arguable it is but lets look at the legislation.

Criminal Law (Rape) (Amendment) Act, 1990

Rape under section 4 .

4.—(1) In this Act “rape under section 4 ” means a sexual assault that includes—

(a) penetration (however slight) of the anus or mouth by the penis, or

(b) penetration (however slight) of the vagina by any object held or manipulated by another person.

(2) A person guilty of rape under section 4 shall be liable on conviction on indictment to imprisonment for life.

[(3) Rape under section 4 shall be a felony.]

4(3) can largely be ignored for the purposes of this discussion.

So a man can rape a man or woman and a woman can rape a woman.

Aggravated sexual assault.

3.—(1) In this Act “aggravated sexual assault” means a sexual assault that involves serious violence or the threat of serious violence or is such as to cause injury, humiliation or degradation of a grave nature to the person assaulted.

(2) A person guilty of aggravated sexual assault shall be liable on conviction on indictment to imprisonment for life.

(3) Aggravated sexual assault shall be a felony.

So where a man is forced by violence the potential penalty is the same.

So we're left with the scenario of a woman raping a man by virtue of him being able for the act but unable to consent. There are going to be limited circumstances where this is possible an unfortunately the Irish courts have taken the position that the law should favour the female because of the possibility of pregnancy. Hence the mess that is termed our Romeo and Juliet legislation.

To be fair this is all in relation to adults, when children are involved the penalties are more serve and allow for punishment to be broadly equal in all circumstances.

akaMrSmith

Bepolite wrote: »

So we're left with the scenario of a woman raping a man by virtue of him being able for the act but unable to consent. There are going to be limited circumstances where this is possible an unfortunately the Irish courts have taken the position that the law should favour the female because of the possibility of pregnancy. Hence the mess that is termed our Romeo and Juliet legislation.

To be fair this is all in relation to adults, when children are involved the penalties are more serve and allow for punishment to be broadly equal in all circumstances.

Thank you for that information, it clears up a lot of things for me. I now have to assume the problem is not with the law but with the rape crisis centres interpretation of the law. Believe it or not this is a big relief for me. I would much sooner know the rape crisis centre has made a simple mistake than believe the law deems what happened to me as a lesser crime than if I was female. It may sound like a little thing but for me its actually quite a big thing.

Bepolite

akaMrSmith wrote: »

Thank you for that information, it clears up a lot of things for me. I now have to assume the problem is not with the law but with the rape crisis centres interpretation of the law. Believe it or not this is a big relief for me. I would much sooner know the rape crisis centre has made a simple mistake than believe the law deems what happened to me as a lesser crime than if I was female. It may sound like a little thing but for me its actually quite a big thing.

They haven't got the interpretation of the law wrong to be fair. Rape in the legal sense can't happen to a man from a woman. An aggravated sexual assault carries the same penalty but perhaps is considered by the public at large, and perhaps even the courts as a lesser crime (this is conjecture not something I can back up).

A non-violent encounter where a woman has intercourse with a man without consent will still be considered a sexual assault and carries a much lower penalty - so we do, therefore, have a discriminatory law. Unfortunately any articles I might be able to find are probably paywall protected on the likes of Westlaw.

OP is should be noted that this area of law is a prime example of Judges striking down a law, not being able to legislate from the bench so leaving a vacuum that the legislature then make an absolute haimes of filling in a hurry. Beyond this there is then collateral fall-out as that Judges deal with in a manner that was less than completely convincing to all observers. See CC v Ireland [2006] IESC 33

OP please also note that due to the length of my posts above one might come to the erroneous conclusion I have the first idea what I'm on about. I'm absolutely sure the foregoing is replete with errors, false assumptions and stuff I've most likely completely made up. Please treat my posts with the type of caution you'd treat a car made by an 11 year old.

akaMrSmith

Bepolite wrote: »

They haven't got the interpretation of the law wrong to be fair. Rape in the legal sense can't happen to a man from a woman. An aggravated sexual assault carries the same penalty but perhaps is considered by the public at large, and perhaps even the courts as a lesser crime (this is conjecture not something I can back up).

A non-violent encounter where a woman has intercourse with a man without consent will still be considered a sexual assault and carries a much lower penalty - so we do, therefore, have a discriminatory law. Unfortunately any articles I might be able to find are probably paywall protected on the likes of Westlaw.

Ouch! ok I really feel compelled to do something to change this. Legally not only was I not raped but because it happened in 1985 it was not a criminal offence. I have taken the extract below from Wikipedia:
“Incest is illegal in the Republic of Ireland under the Punishment of Incest Act 1908, which pre-dates the foundation of the state.
It is illegal for a male to have sexual intercourse with his granddaughter, daughter, sister (including half-sister), or mother; and for a female (over sixteen years of age) with her grandfather, father, brother (including half-brother), or son. The act does not refer to other familial relationships (such as grandson-grandmother), or same-sex relations.
It is punishable by up to seven years imprisonment for a female and up to life imprisonment for a male. The maximum sentence for males was increased from seven years to twenty years by the Criminal Justice Act, 1993; and further increased to life imprisonment by the Criminal Law (Incest Proceedings) Act, 1995.
The maximum sentence for females has never been increased from the seven years specified in the original 1908 act. A private members' bill introduced in 2012 by Denis Naughten TD attempted to redress this inequality in sentencing by increasing the maximum sentence for females to life imprisonment. However, during a speech made during the second stage reading of the bill in March 2014, Justice Minister Alan Shatter TD stated that while he was not opposed to the bill in principle, a sexual offences bill announced by the government on 17 December 2013 will "include measures to equalise upwards the penalties for incest by male and female offenders" and also "take a more comprehensive approach to reform of the law in this area".
Occasionally, offenders convicted of incest will be admitted to a psychiatric hospital for psychiatric treatment.”
I put this post in a different section earlier today:
“Been a victim of rape has most defiantly formed the person I am today. This ‘me’ lives with characteristics such as anxiety attacks, nightmares, depression, substance abuse, attempted suicides, eating disorders, post traumatic stress disorder, sleep disorders and a level of anger that I wouldn’t wish on anyone.
Living with all of the above is difficult enough on its own terms but what I find even more difficult to live with is the criticism and condemnation, not for been the victim of childhood rape, but for the character traits it has left behind. Most people I have known over the years have ostracized me for simply having the symptoms. Everyone hates sex offenders but the very same people, in my experience, display an incredible lack of empathy or even understanding for their victims. So next time you feel like criticising someone for any of the above characteristics please bear in mind that they might have those characteristics not because they are bad people but because they are the victim of rape.”
I however cannot even make the claim that I have to live with all this pain because I was raped as according to the law I was not raped. AGS cannot even conduct an investigation because legally I was not raped. This really is unacceptable to me.

Bepolite

akaMrSmith wrote: »

Everyone hates sex offenders but the very same people, in my experience, display an incredible lack of empathy or even understanding for their victims. So next time you feel like criticising someone for any of the above characteristics please bear in mind that they might have those characteristics not because they are bad people but because they are the victim of rape.”

I however cannot even make the claim that I have to live with all this pain because I was raped as according to the law I was not raped. AGS cannot even conduct an investigation because legally I was not raped. This really is unacceptable to me.

On your first point I could not agree more. While I am not, for one second suggesting, any impropriety on your part and I cannot emphasise this enough I will also make this point. Beyond the stigma, physical and mental injuries victims go through many offenders have themselves been abused. A point often overlooked by the hang 'um high brigade.

I again completely agree with your second point - it's not long ago that I was instructed in criminal law. I'm considered to be in an institution that doesn't necessarily attract the brightest of students but the audible gasps that go up while students are instructed on our sexual crime legislation pretty much says it all.

I think you're absolutely right to be outraged, I'm afraid I don't know where you should direct your activism though. The one point I might make is that perhaps here is not the right fora. Regardless of anything else my heart goes out to you.

akaMrSmith

Bepolite wrote: »

On your first point I could not agree more. While I am not, for one second suggesting, any impropriety on your part and I cannot emphasise this enough I will also make this point. Beyond the stigma, physical and mental injuries victims go through many offenders have themselves been abused. I point often overlooked by the hang 'um high brigade.

I again completely agree with your second point - it's not long ago that I was instructed in criminal law. I'm considered to be in an institution that doesn't necessarily attract the brightest of students but the audible gasps that go up while students are instructed on our sexual crime legislation pretty much says it all.

I think you're absolutely right to be outraged, I'm afraid I don't know where you should direct your activism though. The one point I might make is that perhaps here is not the right fora. Regardless of anything else my heart goes out to you.

Thank you for all the information you have provided me with. I'll leave it at that, perhaps one of the mods could close this post?

Bepolite

akaMrSmith wrote: »

Thank you for all the information you have provided me with. I'll leave it at that, perhaps one of the mods could close this post?

Please don't take my ramblings as gospel. There would be many public interest lawyers that would be willing to advise you, properly, for free.

Contact FLAC - www.flac.ie

GerardKeating

akaMrSmith wrote: »

Thank you for that information, it clears up a lot of things for me. I now have to assume the problem is not with the law but with the rape crisis centres interpretation of the law. Believe it or not this is a big relief for me. I would much sooner know the rape crisis centre has made a simple mistake than believe the law deems what happened to me as a lesser crime than if I was female. It may sound like a little thing but for me its actually quite a big thing.

It might not be considered discrimination, since the same definition of rape is applied to women as well, "No Penile penetration of victim, no rape", just sexual assault.