In the current climate, it is, perhaps, unwise to write this piece. Indeed, when I mentioned to some friends that I intended to write it, they were borderline horrified. “Completely agree with your sentiments” said one over whatsapp, “but you’re risking your career wading into that one”. An old friend who writes a column in a national newspaper and was kind enough to read an earlier draft that I would be, quote, “putting yourself in the crosshairs of a really nasty culture war row”.
And that’s sort of the point, and the reason to write it. Fear is no reason not to talk about difficult issues, but it is perhaps the number one reason that we don’t talk about difficult issues. As citizens of a republic, we have a duty, every now and then, to look at the laws which are in place in our country, and to try to figure out whether those laws are working as they should, and as most people would intend them to.
This week featured a very sad, and traumatic case in the courts. A man, Micheal O’Leighin, lost his reputation, and his career, and the chance to ever go through life without being branded and registered as a sex offender. He was convicted by a jury of his peers, who heard all the evidence against him. This writer was not in the courtroom, and therefore, we cannot exclude the possibility that the jury heard evidence which is not in the public domain.
What is in the public domain, however, is troubling, and – assuming it is a full accounting of the evidence – raises questions in my mind about whether justice was done, and whether our laws in one of the more sensitive areas of life are working as a person with common sense might wish them to work.
It is worth quoting in full the account of the facts provided by the Irish Times:
At a sentence hearing last week, Garda Niall Freyne told Michael Delaney SC, prosecuting, that the complainant, who is legally entitled to anonymity, was out drinking in a Dublin pub with a female friend when they met the defendant who knew her friend.
The group went on to another pub and the woman and Ó Leidhin were kissing. At the end of the night, Ó Leidhin asked the woman to go back to his flat in south Dublin and they got a taxi.
In the flat they were kissing and Ó Leidhin engaged in consensual sexual foreplay activity. He suggested that they have penetrative sex and the woman said no but left open the possibility that they might the next morning, Mr Delaney told the court.
In his account to gardaí, Ó Leidhin said he was unable to get an erection. The woman then fell asleep and woke later to find him on top her of her and groping her breasts. She said she told him to stop and get off her. He did so and told her “sorry, I’m horny”. The court heard that the woman was annoyed and told the defendant that she was clearly asleep.
The woman said she went back to sleep. Later that night Ó Leidhin drove her home and over the following days she texted him expressing annoyance at what had happened.
He met up with her and they spoke for an hour and “they agreed to differ” about what had happened, Garda Freyne said. In April 2019, the woman went to gardaí and made a complaint of sexual assault.
The victim in this case told the court in her victim impact statement that her life had been forever altered by her encounter with Mr. O’Leidhin. In the intervening period, and ever since, she had made an attempt on her life, was unable to sleep, and is haunted by the memory of how vulnerable and exposed she felt at his hands. There is no reason to doubt that these sentiments are genuine.
Nor is there much doubt that, by the letter of the law, Mr. O’Leidhin is guilty. He touched the victim sexually, without her consent. He admitted to it. That is non-consensual sexual touching, and, therefore, assault. The Jury were asked to rule on the facts before them, and they did their job.
But, life being what it is, the letter of the law, and the spirit of the law, and the behaviour – even well meaning behaviour – of drunken twentyand thirty somethings do not always line up.
Mr. O’Leighin is not the first man – and were he a woman he would not be the first woman – to try to wake up a sexual partner for sexual activity. Two people meet in a bar, go back to a house or a hotel room, engage in amorous activity, and then, later in the night, one of the two tries to instigate more such activity. It is not the kind of thing which is unheard of in the long history of human interaction.
After she said no, he and the victim went back to sleep. He drove her home the next morning. In the succeeding days, she texted to him that she was annoyed, so he went to her home and apologised at length. These facts are all undisputed, and a picture of a callous, cold-hearted, power-driven sexual predator they do not paint.
Lest I be accused of lacking empathy, let me say that the victim’s position in all of this is also perfectly understandable: She was asleep, in a strange bed, with a man she had known for only a few hours. She wakes up to find him pawing at her. She has no idea, at all, whether the man’s intentions are benign. Fear, on her behalf, was not an unreasonable or shocking response. Nor was the clearly negative motivation she imputed onto Mr. O’Leighin’s actions. Perhaps it took her a few days to process it. It certainly took her a year to work up the courage and conviction to press charges.
Mr. O’Leighin’s lawyers say, in mitigation, that his offending is at the “lower end of the scale”. That is for the sentencing judge, and nobody else, to decide. But from this standpoint, given the evidence in the public domain, it seems self-evidently true.
Nevertheless, he has lost his job, exposed his family to humiliation, and risks some form of custodial sentence. It’s a heavy price to pay for a quick tumble in the sheets with a person you’ve never before met.
Is the criminal law really capable of policing this kind of case? It is worth pondering, for example, what might have happened had Mr. O’Leighin simply denied that the events described by the victim ever took place, rather than saying there was a misunderstanding of his intent. In such circumstances, it would simply have been his word against hers, with no physical evidence, and a reasonable chance of reasonable doubt. If Mr. O’Leighin were a calculating sexual predator, the irony is that he may well be a free man today.
Moreover, is there no room – none at all – for a discussion in society about the wisdom, or folly, of jumping into bed with a person unknown to you, given the fraught nature of sexual politics in 2022? Is there no room for a discussion – like the one George Hook tried to have, before he got the boot – about the wisdom of putting yourself at the mercy of a strange man, in his bed? It is strange to live in a world where sexual freedom is so ubiquitous, even encouraged, and yet, so dangerous legally and physically for those who avail themselves of it.
It is a tragedy, after all, that one night out, followed by a “hook up” that went wrong, has effectively ruined two lives. Millions of people – of both sexes – before Mr. O’Leighin, did what he did and got a different reaction from the person in the bed with them. Millions more will do something like it in the future.
It’s a strange law, and a strange legal system, that sees one man carry the can for the increasingly twisted and psychotic thing that is modern sexual politics.