Changes to the law of consent in rape cases forthcoming
Rape accused will have to show consent belief was ‘objectively reasonable’ under new reforms.
The Government has approved the publication of the general scheme of a bill aimed at strengthening the law on consent in rape cases, and supporting victims of sexual violence.
The forthcoming Criminal Justice (Sexual Offences and Human Trafficking) Bill 2022 (the “Bill”) will strengthen the law on consent, knowledge, and belief in rape cases by changing the current situation.
Currently under Irish law a man is not guilty of rape if he honestly believed that he had consent, regardless of whether that belief is objectively reasonable. Under the proposed Bill, the accused’s defence that he believed the complainant was consenting has to be objectively reasonable; his belief must be one that a reasonable person would have held in the circumstances.
The changes proposed will be made to existing laws from 1981 which specifically refer to “a man” committing rape. The Law Reform Commission recently suggested that further amendments should be made to update them to include both men and women as perpetrators.
In relation to the forthcoming Bill, Minister for Justice, Minister McEntee said,
“This a very important and timely piece of legislation that will mean juries should have regard to the steps the accused took to check whether the woman is consenting, as well as the accused’s decision making capacity at that time.
“Currently the accused’s own subjectively honest but mistaken belief that the woman was consenting is a defence to rape. This needs to change.
“The changes I am bringing forward today progresses policy commitments I have made in key plans, such as Supporting a Victim’s Journey and Zero Tolerance; the third national strategy on domestic, sexual and gender based violence.
The current definition of rape is that the man knows that a woman is not consenting, or is reckless as to whether she is consenting. The new Bill will amend the fault or mental element of the rape offence by adding that the accused commits rape if, at the time of the sexual intercourse, he does not ‘reasonably believe’ that the woman was consenting. Juries will be asked to take into account the steps the accused took to check whether the woman was consenting. There will also be a new provision in the legislation that self-induced intoxication will not be a defence to a charge of rape in relation to the accused’s capacity to understand if he did have consent.
This proposed Bill will bring Irish law in line with the UK where The Sexual Offences Act 2003 abolished the Morgan defence of a genuine though unreasonably mistaken belief as to the consent of the complainant. In the UK currently the defendant (A) has the responsibility to ensure that (B) consents to the sexual activity at the time in question. Deciding whether a belief is reasonable is determined by the jury having regard to all the circumstances, including any steps A has taken to ascertain whether B consents (subsection (2) of sections 1 – 4 of the 2003 Act).
Read the government’s press release here in full
Read the Law Reform Commission’s 2019 report Knowledge or Belief Concerning Consent in Rape Law here