100 Years of Being a Woman in Ireland: From Fighting in the War to Fighting in the Court

100 YEARS OF BEING A WOMAN IN IRELAND: FROM FIGHTING IN THE WAR TO FIGHTING IN THE COURT

Larisa Mirt

Introduction

This article will examine 100 years of the Irish State from the perspective of being a woman working and living in Ireland. The focus of this piece is the legal change that has occurred in Ireland since the War of Independence. The essay will be divided into three parts. The first will give a brief overview of women’s role in the War of Independence and the Civil War and will describe the tension between nationalist sentiment and the feminist movement which shaped the legal landscape in the newly created Irish Free State. The second part will analyse the experience of women working in Ireland since independence, including the marriage bar and other developments. The third part will focus on what it means to be a woman living in Ireland. This part will anchor itself in the topic of marital rape.

The War of Independence and the Civil War

An organisation that played a massive role in the fight for independence and thus must be discussed is Cumann na mBan. This was an organisation run by women for women and supported women’s suffrage. During the War of Independence, it engaged in nonviolent activities such as fundraising and demonstrations.1

During the Civil War, Cumann na mBan continued its military duties. It was during this time that service entailed less gendered duties.2 Although its efforts were recognised by the new government in 1932, which was unusual ‘by contemporary European standards’,3 government-issued pensions were limited for members of Cumann na mBan. For example, women who had responsibilities equivalent to ‘higher IRA service grades’ were omitted.4 It is clear, then, that while acknowledging female military

1 Linda Connolly, Women and the Irish Revolution: Feminism, Activism, Violence (Irish Academic Press 2020). 2 ibid. 3 ibid 63. 4 ibid 64.

participation in the independence struggle, the government simultaneously contained it.

Feminism was clearly critical in developing the Irish Revolution, but the relationship between nationalism and feminism was complicated. Nationalist movements used tradition as a source of national identity, which included gendered ideas. Therefore, the biggest challenge for women at the time was reconciling these traditional ideas with the modern women’s movements. 5 This struggle between national identity and the feminist movement can be clearly seen from the development (or arguably at times, regression) of legal rights of the women living and working in Ireland post-Independence.

Employment and the Marriage Bar

The marriage bar impacted women’s place in the workplace heavily. It was introduced in the 1920s for the civil service and in 1932 for teachers. It effectively meant that once a woman was married, she would have to give up her job. This happened as a result of the country changing into a conservative country post-independence; independence ‘for the country did not mean greater independence for women’.6 Ireland became ‘economically depressed, socially conservative and religiously devout’ and the role of women in society was very restricted.7

The ban was introduced through changes in employment regulations for teachers, which meant that it was part of the terms and conditions upon taking up employment in the sector. This meant that this could be changed if sought, as it was not national legislation. This was different for women working in the civil service, where the ban carried a much heavier weight. It also banned any woman, married or not, to be employed at higher levels in the industry. However, this total ban was slightly alleviated by the financial gratuity women would receive once they got married.8

The marriage bar was eventually abandoned in 1977 when discrimination based on marital status was made illegal under the Employment Equality Act 1977. Equal treatment on grounds of gender has been since then, required by law. It is now unlawful for an employer to require a particular gender for obtaining a job or a promotion. It has

5 ibid 23. 6 Judith Harford and Jennifer Redmond, ‘I am amazed at how easily we accepted it’: the marriage ban, teaching and ideologies of womanhood in post-Independence Ireland’ (2021) 33 Gender and Education 186,187. 7 ibid. 8 ibid.

been rare for cases involving blatant gender discrimination in the workplace to come before the Courts, however, there have still been many cases which involve pregnancy discrimination, indirect discrimination and discrimination on family status.9

Gender discrimination claims still arise in the context of a complainant challenging an interview or selection process. 10 In South Eastern Health Board v Burke11, the claimant alleged bias against her as a female compared to the other candidate interviewed, who was male. The Labour Court found an inference of discrimination. Where this happens, the onus shifts to the respondent to prove that equal treatment was present. In Sheehy Skeffington v National University of Ireland Galway12, a promotion was challenged. The claimant established a prima facie case of discrimination. Given that the university then failed to rebut this, the Equality Tribunal found in favour of the claimant. In Dublin City University v Horgan13 the Labour Court set out a list of factors which should be considered when determining if the burden shifted to the respondent has been discharged.

What these cases highlight is the development of the law since the removal of the marital bar. Although issues in relation to women in the workplace remain, such as promotional processes, it is clear that the legal landscape has vastly changed and it is not the same as it was 100 years ago.

Marital Rape

Although rape was criminalised in Ireland, it was still legal for a man to rape his wife until the 1980s. Historically, it was believed that an unruly wife could wreak ‘havoc in the home and society’. 14 Legally speaking, there were three legal fictions underpinning marital rape in the common law: women as chattel, couverture and/or the unities theory. If women were treated as chattel and thus the property of men, then the husband who raped his wife was seen as using his property. The legal status of a married woman was called ‘couverture’, meaning that a wife had no legal rights apart from the ones she shared with her husband. The unities theory saw a husband and wife as one entity, so a

9 Maeve Regan and Ailbhe Murphy, Employment Law (2nd edn, Bloomsbury Professional 2017). 10 ibid. 11 EDA041 (12 January 2004). 12 [2015] 26 ELR 95. 13 EDA0715/2007. 14 Melisa J Anderson, ‘Lawful Wife, Unlawful Sex – Examining the Effect of the Criminalization of Marital Rape in England and the Republic of Ireland’ (1998) Georgia Journal of International and Comparative Law 139,142.

wife was not recognised as a person in her own right in the eyes of the law. It has been argued that the ‘modern’ concept of the exclusion of marital rape as a crime started from a comment made by Sir Matthew Hale who stated that the husband cannot be guilty of rape against his wife due to a mutual matrimonial consent which the wife gives and which cannot be retracted. There was no legal authority for this and yet this statement influenced the ‘English based judicial systems for over two hundred years’. 15 Thus, a common law policy was formed.

Even though Ireland gained its independence in the twentieth century, the country was still entrenched in the ideals set out by English common law. The Church also heavily strengthened the traditional roles of men and women in society, which can be also seen through divorce not being legalised until 1996. It was only in the 1990s that domestic violence was fully recognised as a problem. Domestic abuse was a growing statistic, and many women’s groups began to speak about this. The publicity was much bigger than before and many publicised cases came to the forefront, such as the nation’s first two cases of spousal rape. All these factors combined finally led to legislative changes and marital rape was criminalised in 1990 by the Criminal Law (Rape) (Amendment) Act. Before this, the common law exemption of marital rape was codified in accordance with England. 16

The first two cases of spousal rape will be called Case A and Case B, due to the fact that the case names are not obtainable. Case A reached trial in 1992. However, shortly after the wife gave her testimony, it was dismissed. It was alleged that the wife had lied regarding the motive of the attack. It went to a second trial in 1993, and the testimony was similar except that the wife admitted to having had three affairs. The judge instructed the jury that the 1990 Act did not recognise the spousal exemption anymore.17 Although this case failed, it has sparked a positive reaction in the Irish legal community. 18 The first marital rape conviction that was recorded in Ireland was in 2002.19

Further legal developments in this area include the Domestic Violence Act 2018, which makes psychological or emotional abuse a criminal offence. Furthermore, the

15 ibid 148. 16 ibid 139. 17 ibid. 18 ibid. 19 Anonymous, ‘First marital rape conviction recorded’ The Irish Times (Dublin, 19 July 2002) <https://www.irishtimes.com/news/first-marital-rape-conviction-recorded-1.1089006/> accessed on 24 February 2022.

Harassment, Harmful Communications and Related Offences Act 2020 makes it a criminal offence to make and distribute intimate images while causing harm.

It is clear that Ireland still has much to do in the legal field to improve the lives of women living in Ireland. However, as highlighted above, legal developments have occurred, and the legal landscape looks vastly different than it did 100 years ago. It seems fair to say that the Ireland today is closer to the Ireland that the feminists of the newly created Irish Free State had envisioned.