An “honest” belief that an alleged victim had consented to sex may no longer be a legal defence in rape cases if proposals being considered by the Government become law.
The Department of Justice and the Office of the Attorney General are considering the proposal to significantly modify the State’s consent laws.
The planned reform is at advanced stage, has the backing of the Law Reform Commission and is a key part of the Government’s plan to take action on consent laws.
Under the proposal, an accused person could not be acquitted of rape if a court found that their belief that the alleged victim had consented was not an objectively reasonable belief.
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Case law in the State indicates that an accused person could defend themselves from a rape charge by testifying that they honestly believed their accuser had consented to sex, even if that belief is not reasonable or rational.
In 2016, the Supreme Court found, in the case of The People (DPP) v C O’R, that an “honest, though unreasonable, mistake that the woman was consenting is a defence to rape”. It added that the belief must be “genuinely held” by the accused.
In 2017, the attorney general asked the Law Reform Commission to examine the issue. The “honest belief” defence came under scrutiny as the Oireachtas was passing a 2017 law that clarified the circumstances under which a person could not legally consent to sex. These included when they were asleep, unconscious, incapacitated by drugs or alcohol, or consenting under the threat or use of force.
The Law Reform Commission advised a change of the law to clarify that an accused person commits the crime of rape if he “does not reasonably believe” the alleged victim was consenting.
The Department of Justice is now progressing the planned reform with the Office of the Attorney General.
It is one of a number of reforms of the way the criminal justice system handles rape and sexual assault allegations, which is a focus for Government officials in the wake of a scoping inquiry into historic abuse in schools.
Last week, the Government announced a commission of inquiry into the handling of historic sexual abuse allegations in schools. Officials from a number of Government departments, who were tasked with writing a report on the recommendations of the scoping inquiry published last year, noted that the majority of survivors who detailed their experiences with the scoping inquiry “had a negative, and in some cases, retraumatising, experience with the legal system”.
[ Officials resist schools abuse redress schemeOpens in new window ]
In a report published last week, the interdepartmental group added that a negative experience with the legal system “may influence survivors’ perspectives on participating in a future process such as a commission of investigation”.
Survivors had called on the State to “make the legal system more accessible and appropriate for victims of sexual crimes”.
