Irish rape law: still the “rapists’ charter”? Article 3 of the ECHR compliance in Irish rape law: subjective belief of consent and the use of therapy notes in rape trials

Abstract

This thesis examines whether Irish rape law and criminal procedure complies with positive obligations imposed on State Parties to the European Convention on Human Rights, specifically Article 3. Article 3 of the Convention prohibits torture, inhuman or degrading treatment and punishment and may never be derogated from as it is an absolute right in the Convention. The European Court of Human Rights has expanded Article 3 protections to encompass rape law and procedure, which is what this thesis is concerned with. The perspective used in this thesis is access to justice and focuses on how two elements of Irish rape law act as deterrents to survivors seeking justice. Those two elements are the defence of honest subjective belief of consent and the use of survivors’ counselling notes in criminal proceedings. This thesis looks at the low levels of reporting and convictions in rape cases and how these two elements create barriers for survivors in the justice system. This thesis ultimately concludes, with reference to cases from the European Court of Human Rights, that these elements of Irish rape law and procedure raise serious concerns around the right to be free from inhuman and degrading treatment. Cumulatively, these issues suggest a breach of Article 3 of the ECHR. This thesis also explores reforms for both elements of Irish law that may help to strengthen access to justice for survivors of rape and ensure compliance with human rights standards.