While Irish law is clear that sexual intercourse without free and voluntary consent is rape, this week’s announcement by Minister for Justice Helen McEntee, endorsed by Cabinet, to qualify the defence often called “honest belief” is a step forward in helping us to understand better the shape and meaning of consent.
When the legislation promised by this announcement is developed, it will mark the end of a little-used but still ominous defence available to a person accused of rape. While the current law speaks about a man raping a woman, this is also to be updated in due course, so I will keep this commentary gender-neutral.
In effect, no matter what a victim says, and even if a jury thinks the belief is off the wall, a genuinely held belief of the accused will trump everything else
As it stands right now, the law allows an accused on trial for rape to say in their defence that they honestly believed the complainant was consenting to sexual intercourse. Of course that must be a defence, because the whole point of a rape charge is that the intercourse was non-consensual. However, current law takes this a long way down a particular path because it allows someone to say this even where their belief is totally unreasonable. An accused would have to convince a jury that the belief was truly genuine, but if they could do that, then they will be acquitted.
In effect, no matter what a victim says, and even if a jury thinks the belief is off the wall, a genuinely held belief of the accused will trump everything else in the trial.
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The existence of this defence, allowing unreasonable belief as a full defence, is another barrier in a justice system strewn with barriers to the reporting and prosecution of sexual offences. As we know, when people are raped it is most often by someone known to them. It could be their partner, a member of their family, a member of their local community, a friend or work colleague.
The victim will likely fear the reaction of the accused if they report the crime. If they expect the abuser to deny any wrong action or guilt, their experience of prior abuse from that person may convince them that the abuser will be believed even when they are saying something really far-fetched. As a result, they will often second-guess themselves into abandoning their right to report and have a crime investigated because they anticipate hostility, denial and downright lies – on top of the huge strain of holding and reliving every moment of a desperately traumatic event or events over the months or years until a trial is completed.
When this announcement becomes law – probably next year – an accused will still be able to say that they believed the complainant was consenting and so no crime took place. The difference will be that their belief will need to have some air of reality about it.
They will have to explain to a jury how they could reasonably have believed that. Identifying what’s reasonable and what is not may include explaining what steps they took to check that the complainant was consenting. Simple things like checking how the other party is doing, how they are feeling. It’s not an exhaustive checklist. It’s not in writing. It’s simply recognising that in sexual activity, everyone should be freely and voluntarily consenting to what’s going on. It also recognises that even in long-standing relationships, people change and evolve. Communication needs to continue to ensure that consent remains free, voluntary and real.
Abuser’s power
It won’t take away all the fears of someone who is contemplating reporting a sexual offence, but at least they won’t have that worry that their abuser’s power will convince others no matter what they say. As Minister McEntee commented in the media afterwards, it won’t be a question of automatically accepting one person’s belief over another’s.
This proposed reform comes after a long period of study. We had hoped it would be dealt with when the law of sexual offences was being reformed in 2017. However, to ensure that the rights of accused people to a fair trial and due process were maintained, it was shelved then.
In retrospect, the decision to ask the Law Reform Commission to examine the topic first was very useful. Its 2019 study weighed up the advantages and disadvantages of the law, and put them in the context of the world in which we live, where sexual crime is vastly misunderstood and under-reported. The commission had recommended the course of action now agreed by Government.
The announcement also suggests a very limited extension of a victim’s right to legal assistance. However, the Department of Justice has already committed to ensuring that victims have access to legal advice from the time of the offence right up to the trial. It is to be hoped that this legislation will deliver on that promise.
Another useful part of the proposal will plug a gap in current law. As it stands, some sexual offence trials, such as rape trials are held without the public, with both accused and complainant entitled to anonymity until sentence, and the complainant or an acquitted accused entitled to remain anonymous after that. Other sexual offence trials are not private. There is no logic to the distinction, and this week’s proposal intends to ensure all sexual offence hearings have the same rights of privacy and anonymity. That should also make it easier to report some offences where the victim would hesitate if the case had to be heard in open court.
Undoubtedly we have much more to do to ensure that the victims/survivors of sexual crimes feel empowered to come forward and report sexual crime without further traumatising themselves.. And certainly we have some way to go to make consent a normal, everyday and essential part of all our sexual encounters. But this week’s announcement is a step is in the right direction towards addressing that power imbalance between abuser and victim/survivor, and towards a healthier society with zero tolerance of sexual violence.